Calcutta High Court

Khaitan International Pte. Ltd. And Anr vs Apl Metals Limited And Ors on 5 October, 2024

OCD-4
                                ORDER SHEET

                      IN THE HIGH COURT AT CALCUTTA
                           COMMERCIAL DIVISION
                               ORIGINAL SIDE

                             CS-COM/795/2024
                           IA No. GA-COM/1/2024

              KHAITAN INTERNATIONAL PTE. LTD. AND ANR.
                                -VS-
                    APL METALS LIMITED AND ORS.


  BEFORE:
  The Hon'ble JUSTICE KRISHNA RAO
  Date : October 5, 2024.
                                                                 Appearance:
                                              Mr. Ranjan Bachawat, Sr. Adv.
                                                  Mr. Sourajit Dasgupta, Adv.
                                             Ms. Sritama Bhattacharyya, Adv.
                                                     Ms. Niharika Singh, Adv.
                                                       Ms. Rupal Singh, Adv.
                                                Mr. Ashok Kumar Singh, Adv.
                                                           ...for the plaintiffs


         The Court: Mr. Ranjan Bachawat, learned Senior Counsel, is

appearing for the plaintiffs.

         The plaintiffs have filed the present application for judgment

upon admission as well as other prayers including interim order and ad

interim injunction.

         The plaintiffs are engaged in the business of procurement and

supply of metals and metal products of diverse specifications. The

defendant nos. 2 and 3 both in their personal capacity and representatives

of the defendant no.1 approached the plaintiffs with a request for supply of

lead metal and scraps of diverse specification on credit basis. During such

negotiation between the plaintiffs and the defendants, the defendants

jointly and severally represented to the plaintiffs that the defendant no.1

owns and is in possession of the vacant land free from all encumbrances
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situated at 260, B. T. Road, Sukchar, Kolkata and assured the plaintiffs

that the said land would remain mortgaged or charged in favour of the

plaintiffs till the payment is made by the defendants.

         On and from 2019, as per the request and the agreement entered

into between the parties, the plaintiffs had started supplying various

metals, iron and scrap materials and diverse other goods to the defendants

from time to time till 15th July, 2024. After the delivery of the goods to the

defendants, the plaintiffs have raised invoices upon the defendants. On

receipt of the invoices raised by the plaintiffs, the defendants have made

part payment through bank transfer. The defendants subsequently failed

to pay the balance amount as per the invoices raised by the plaintiffs. The

defendants have never raised any dispute with regard to the quality of the

goods supplied by the plaintiffs or the invoices raised by the plaintiffs. The

defendants have kept a total amount of Rs.67,21,04,419/- as an

outstanding amount towards the plaintiffs. On 29th June, 2024, the

defendant nos. 2 and 3 have executed personal guarantee wherein they

unconditionally and irrevocably guarantee to the obligee upto a sum of

Rs.33,50,00,000/- each towards credit facility of the plaintiffs. The

defendants have further acknowledged on 1st August, 2024 that a balance

amount of USD 6,541,458.78 is due and payable to the plaintiffs. On 1 st

August, 2024 again the defendants have sent a letter showing balance of

USD 14,68,893.70 as on 29th July, 2024.

         In spite of executing the guarantee and confirming the balance

amount, the defendants have not paid any amount to the plaintiffs.

Subsequently, the defendants came with a Deed of Settlement by
                                       3

informing the plaintiffs that no amount is due and total amount has been

paid by the defendants to the plaintiffs.

         On going through the said Deed of Settlement, the plaintiffs

found that the Deed of Settlement which the defendants have relied upon

is forged one and accordingly, the plaintiffs have initiated a criminal case

against the defendants. Accordingly, police have registered a criminal case

and the defendant nos. 2, 3 and 5 were arrested by the police and were

sent to judicial custody. Subsequently, they have been released on interim

bail.

         Counsel for the plaintiffs submits that the defendant nos. 4 and 5

have resigned from the defendant no.1 company. The plaintiffs submit that

the defendant instead of making payment, have forged a document

showing that they have paid the amount. Accordingly, a criminal case has

been initiated and investigation is going on. The plaintiffs submit that the

plaintiffs apprehend that the defendant may siphon off the amount and

will also alienate the property and in future if any decree is passed in

favour of the plaintiffs, the said decree will remain in paper and the

plaintiffs will not be in a position to execute the decree. At this stage, the

plaintiffs pray for ad interim order restraining the defendants from

alienating their property and siphon off any amount from the account

maintained by the defendants.

         Heard the learned counsel for the plaintiffs.

         Perused the materials on record.

         This Court finds that after issuance of two separate letters dated

1st August, 2024, the defendants confirmed an outstanding amount of

USD 6,541,458.78 equivalent to Rs.54,88,57,501.13 to the plaintiff no.1
                                        4

and an amount of USD 14,68,893.70 equivalent to Rs.12,32,46,918.01

towards the plaintiff no.2 as on 29th July, 2024.

          Despite      clearly,   unconditionally      and     unambiguously

acknowledging their debts towards the plaintiffs to the extent of

Rs.67,21,04,419/-, the defendants failed and neglected to make payment

to the plaintiffs and instead of making payment, the defendants have

forged a document in the style of Deed of Settlement stating that the

defendants have paid the total amount to the plaintiffs.

          The Deed of Settlement which the defendants relied upon is

alleged to be a forged document. Accordingly, a criminal case has been

initiated. The plaintiffs have enclosed the documents i.e. the invoices

raised by the plaintiffs upon the defendants against the materials supplied

to the defendants. The defendants have neither denied the amount nor

have denied the invoices raised by the plaintiffs. On the other hand, the

defendants have given unconditional letter accepting balance amount in

favour of the plaintiffs.

          Considering above, this Court finds that the plaintiffs have made

out a prima facie case and balance of convenience and inconvenience is in

favour of the plaintiffs. This Court finds that if at this stage ad interim

order is not granted in favour of the plaintiff, there is every possibility that

the defendants will siphon off the entire amount and will also alienate the

property in favour of the third party and for which the plaintiffs will suffer

irreparable loss and injury.

          In view of the above, the defendant nos. 1, 2 and 3 are restrained

from disposing of or removing or siphoning off any fund or operating any of

their respective Bank without keeping apart a sum of Rs.67,21,04,419/-
                                        5

including (i) the account no. 20013709864, Indian Bank, Mid Corporate

Branch, Mission Row, situated at 14, Indian Exchange Place, 1 st Floor,

Kolkata- 700001 in the name of respondent no.1, (ii) Axis Bank, SME

Department, situated at 1, Shakespeare Sarani, A. C. Market, Kolkata-

700017, in the name of the respondent no.1 and (iii) Account

No.00210330002280, HDFC Bank Limited, Hyderabad, Lakdikapul,

Andhra Pradesh, in the name of the respondent no.1. The defendant nos.1,

2 and 3 are further restrained from dealing with, alienating or creating any

third party interest over the property, namely, (i) Mouza Kanakpur, Post

Office-Purba Medinipur, West Bengal, Pin-721139, belonging to

respondent no.1, (ii) Plot No.260, B. T. Road, Sukchar, Kolkata-700115,

belonging to respondent no.1 and (iii) Plot no.B4 and 5, UPSIDC Industrial

Area, Malwan, Fatehpur, Uttar Pradesh-212664, belonging to respondent

no.1, (iv) 16/S, Block-A, Second Floor, New Alipore, Kolkata-700053,

belonging to respondent no.1, (v) 18/1A, Hindustan Road, Kolkata-