Calcutta High Court
Dibyendu Sekhar Lahiri & Anr vs Signet Media Services Private Limited & ... on 20 September, 2024
OCD- 5
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
G.A. (Com) No. 2 of 2024
In
C.S. (COM) No. 3 of 2023
DIBYENDU SEKHAR LAHIRI & ANR.
-VS-
SIGNET MEDIA SERVICES PRIVATE LIMITED & ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Hearing Concluded On : 09.09.2024
Order On : 20.09.2024
Appearance:
Mr. Sayantan Basu, Adv.
Mr. Tanmoy Roy, Adv.
... For the plaintiffs.
Mr. Subhabrata Dutta, Adv.
Mr. Debashis Sarkar, Adv.
Mr. Aranya Saha, Adv.
... For the defendants.
ORDER
1. The plaintiffs have filed the present application being G.A. (Com) No. 2
of 2024 in C.S. (Com) No. 3 of 2023 praying for interim order. The
plaintiffs have moved the present application for grant of ad-interim
injunction. By an order dated 14th June, 2024, this Court has granted
ad-interim injunction in favour of the plaintiffs. After receipt of notice,
the defendant had entered appearance and prays for time to file
affidavit-in-opposition. Inspite of opportunity given to the defendant, no
affidavit-in-opposition is filed but the Counsel for the defendant has
argued the matter on merit.
2. One Mahua Lahiri was the proprietor/ proprietress of the advertising
business and publicity agency under the name and style of Asha
Communication. After the death of Mahua Lahiri, the plaintiff No.1 and
the plaintiff no. 2 being the husband and daughter of the deceased
have started carrying out the said business. The Indian Newspaper
Society (hereinafter referred to as "INS") which protects, safeguards the
business interest, welfare and affairs of the Newspapers published in
India. The newspaper owners and publishers of the print media are the
members of the said INS and also have an accreditation facility for
advertising agencies all over India.
3. The defendant being in a precarious financial situation and being
unable to make payment to several newspapers, the agency
accreditation of the defendant with INS also suspended. The defendant
not being in a position to repay the dues and to revive their agency
accreditation with INS, approached the plaintiff to publish the
advertisement of its clients in various newspapers. The plaintiffs agreed
to the requests made by the defendant for publishing the advertising
and promotional materials in various newspapers and magazines,
namely, Ananda Bazar Patrika, Times of India, Bartaman, Eisamay etc.
The plaintiffs and the defendant entered into an oral contract that the
plaintiff would act as publishing agency of the defendant to get their
advertisements published on the basis of the terms and conditions
agreed between the parties.
4. Since November, 2017 till October, 2019 time to time as per the terms
and conditions agreed between the parties, the plaintiffs got the
advertisements of the defendant published through several newspapers
and magazines. After publication, the plaintiffs have raised several
invoices to an aggregate sum of Rs. 11,02,26,368/- from the month of
November, 2017 to October, 2019. The defendant made some payments
on an ad hoc basis in a running and continuous manner from time to
time but in an irregular manner and in breach of the terms and
conditions agreed between the parties.
5. In between 1st November, 2017 to 7th July, 2020, an amount of Rs.
3,37,42,633.27/- become due and payable by the defendant to the
plaintiffs. The plaintiffs have made several communications with the
defendant requesting the defendant to make payments of outstanding
dues. The defendant has issued three cheques total amounting to Rs.
4,06,34,047/- but all the cheques were dishonoured with the reason
"Funds Insufficient". The defendant has confirmed the accounts of 1st
April, 2019 to 12th November, 2019 for a sum of Rs.4,10,57,519.27/-
due and payable to the plaintiffs. The plaintiffs say that the defendant
has only disputed a sum of Rs. 57,190/- in the said accounts.
6. The plaintiffs say that on 7th September, 2019, the defendant had
acknowledged and admitted the outstanding by proposing a tentative
payment schedule for the outstanding amount and requested the
plaintiff no. 1 to release the advertisements on behalf of the defendant
for their different clients.
7. The plaintiffs say that the defendant failed to make a payment of the
outstanding amount of Rs. 3,37,42,633.27/- to the plaintiffs due to
which, the plaintiffs unable to make payment to several newspapers
where the advertisements were published for and on behalf of the
defendant and for which default of making payment, the accreditation
by INS of the said proprietorship firm and Mahua Lahiri (since
deceased) was suspended sometime in the month of December, 2019 as
a result a normal business could not be carried out by the plaintiffs.
8. The plaintiffs say that upon an enquiry, the plaintiffs came to know
that the defendant has been a regular defaulter not only to make
payment to the plaintiffs but also to other creditors and other
publication house, namely, Anandabazar Patrika and Others. The
plaintiffs further submit that the plaintiffs also came to know that there
are other several criminal proceedings also pending against the
defendant for failing to make payment to the creditors.
9. Learned Counsel for the plaintiffs submits that the plaintiffs further
came to know from the books of accounts of the defendant that the
defendant is not in a financial solvent position to make payment of the
dues of Rs.6,12,54,435.08/- to the plaintiffs and there is every chance
that the defendant may try to siphon away their money wrongfully and
illegally in order to deprive the plaintiffs of their legitimate claims.
10. Learned Counsel for the plaintiffs submits that the defendant instead of
making payment of dues to the plaintiffs, the defendant has purchased
flats in the name of their directors. The plaintiffs say that the plaintiffs
apprehend that the defendant deliberately removed its assets and funds
from the accounts of the defendant to frustrate the claim of the
plaintiffs.
11. Learned Counsel for the plaintiffs relied upon the judgment in the case
of Rajendran & Ors. -vs- Shankar Sundaram & Ors. reported in
AIR 2008 SC 1170 and submitted that the Court while exercising its
jurisdiction under Order XXXVIII, Rule 5 of the Code of Civil Procedure,
1908 is required to form a prima facie opinion at that stage and need
not to go into correctness or otherwise of all the contentions raised by
the parties.
12. Learned Counsel for the plaintiffs further relied upon the judgment in
the case of Rahul S. Shah -vs- Jitendra Kumar Gandhi & Ors.
reported in (2021) 6 SCC 418 and submitted that in a suit for payment
of money, before settlement of issues, the defendant may be required to
disclose his assets on oath, to the extent that he is being made liable in
a suit. He submits that at any stage, in appropriate cases during the
pendency of suit, using power under Section 151 of CPC, demand
security to ensure satisfaction of any decree.
13. Per contra, Learned Counsel for the defendant submits that the
plaintiffs have not disclosed any invoices to say that the defendant has
admitted the claim of the plaintiffs. He submits that in paragraph 11 of
the plaint, the plaintiffs have mentioned about the orders of
advertisement issued by the defendant but no document has been
brought on record to say that the defendant has placed the said orders
to the plaintiffs for advertisement.
14. Learned Counsel for the defendant submits that to avoid the period of
limitation for filing the suit, the plaintiffs have clubbed all the old dues
and have intentionally not disclosed the invoices. He submits that as
per the case made out by the plaintiffs, the alleged admitted claim
made by the plaintiffs is from November, 2017 to July, 2020 but the the
plaintiffs have filed the suit in the year 2023.
15. Learned Counsel for the defendant submits that the cheques
dishonoured was for a total sum of Rs.4,06,34,047/- but the claim of
the plaintiffs is only Rs.3,37,42,633.27/-. The defendant says that the
balance confirmation dated 13th November, 2019 which the plaintiffs
relied upon is only mentioned about the dues but it cannot be said that
the same is admission on the part of the defendant.
16. Learned Counsel for the defendant submits that the email dated 12th
October, 2019 relied by the plaintiffs does not disclosed the amount
outstanding or payable to the plaintiffs.
17. Learned Counsel for the defendant submits that the confirmation of the
accounts dated 13th November, 2019, which the plaintiffs have relied
upon alleged to have been signed by one P. Naskar but the person
named P. Naskar is not connected with the defendant company. He
submits that the plaintiffs have filed this application and prayed for
injunction only on the apprehension and there is no document shown
by the plaintiffs that the defendant is siphoning off the funds or
alienating the property.
18. Learned Counsel for the defendant submits that if this Court will
permit, the defendant will file the affidavit of assets of the defendant
before this Court.
19. Learned Counsel for the defendant has relied upon the judgment in the
case of Raman Tech and Process Engg. Co. and Anr. vs. Solanki
Traders reported in (2008) 2 SCC 302 and submitted that the power
under Order XXXVIII Rule 5 of the CPC is a drastic and extraordinary
power and such power should not be exercised mechanically. He
submits that Order XXXVIII Rule 5 should be used sparingly and
strictly in accordance with the Rule.
20. Learned Counsel for the defendant relied upon the judgment in the
case of Sunil Kakrania & Ors. -vs- M/s. Saltee infrastructure
Limited & Anr. reported in 2009 SCC OnLine Cal 1638 and
submitted that while passing an order of attachment by invoking the
provisions of Order XXXVIII Rule 5 of CPC, the Court has to follow the
guidelines as laid down by the Hon'ble Court. He submits that in the
present case, the plaintiffs do not fulfil the guidelines for getting an
order of attachment under Order XXXVIII, Rule 5 of the CPC.
21. Heard the Learned Counsel for the respective parties, perused the
materials on record and the judgments relied by the parties.
22. Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908, reads as
follows:
"5. Where defendant may be called upon
to furnish security for production of
property.-- (1) Where, at any stage of a suit, the
Court is satisfied, by affidavit or otherwise, that the
defendant, with intent to obstruct or delay the
execution of any decree that may be passed
against him,--
(a) is about to dispose of the whole or any part
of his property, or
(b) is about to remove the whole or any part of
his property from the local limits of the
jurisdiction of the Court,
the Court may direct the defendant, within a time
to be fixed by it, either to furnish security, in such
sum as may be specified in the order, to produce
and place at the disposal of the Court, when
required, the said property or the value of the
same, or such portion thereof as may be sufficient
to satisfy the decree, or to appear and show cause
why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise
directs, specify the property required to be attached
and the estimated value thereof.
(3) The Court may also in the order direct the
conditional attachment of the whole or any portion
of the property so specified.
[(4) If an order of attachment is made without
complying with the provisions of sub-rule (1) of this
rule, such attachment shall be void.]"
23. The plaintiffs have filed the suit against the defendant for recovery of
money. The plaintiffs have relied upon the confirmation of accounts
dated 13th November, 2019 wherein the defendant has admitted the
claim of the plaintiff. Though the defendant has taken the stand that
the signature appearing in the confirmation of accounts of one P.
Naskar is not connected with the defendant company but the defendant
has not shown any document that the defendant has taken any action
against the said P. Naskar. The defendant has not denied the seal of the
defendant company appearing in the said confirmation of accounts.
24. The plaintiffs have also relied upon the cheques issued by the
defendant which were dishonoured with the reason "Funds Insufficient"
but the defendant has not denied with regard to the issuance of the
said cheques. On 12th October, 2019, the defendant has sent an email
to the plaintiffs informing the plaintiffs that the amount outstanding
upto July, 2019 billing will be cleared by 28th October, 2019 and the
amount outstanding upto August, 2019 billing will be cleared by 15th
November, 2019. The defendant has not denied the said email but has
only submitted that the email does not contain the amounts.
25. The plaintiffs have relied upon the order passed by this Court filed by
one ABP Pvt. Ltd. against the defendant wherein it reveals that the
defendant is also liable to pay certain amount of ABP Pvt. Ltd. and
accordingly, this Court has passed a decree against the defendant and
subsequently the decree was put an execution. The plaintiffs have also
disclosed details of several criminal cases initiated against the
defendant on various courts and many of the cases, warrant is pending
against the defendant.
26. The plaintiffs have also disclosed documents wherein it reveals that the
defendant has purchased two flats on 4th March, 2021 and 15th
February, 2021 by way of registered Deed of Conveyance in the name of
the directors of the defendant company.
27. The judgment passed by the Hon'ble Supreme Court in the case of
Rajendran & Anr. (supra), the Hon'ble Supreme Court has held that
the Court while exercising its jurisdiction under Order XXXVIII Rule 5
of the CPC is required to form a prima facie opinion at that stage and
need not go into the correctness or otherwise of all the contentions
raised by the parties. In the case of Rahul S. Shah (supra), the
Hon'ble Supreme Court held that the Court may further, at any stage,
in the appropriate cases during the pendency of the suit using powers
under Section 151 of the CPC, demand security to ensure satisfaction
of any decree.
28. Considering the above facts and circumstances, this Court finds that
the plaintiffs have made out a prima facie case and balance of
convenience and inconvenience in favour of the plaintiffs. The
confirmation of accounts, dishonoured of cheques and the email of the
defendant are read together, prima facie it is establish that the
defendant is liable to pay the amount to the plaintiffs. From the
documents, it further reveals that the plaintiffs are liable to pay several
dues to many of the firms and parties and several cases are pending
against the defendant. Instead of paying the dues to the plaintiffs, the
defendant has purchased properties in the name of the directors of the
defendant company. This Court finds that if at this stage, an injunction
is not passed in favour of the plaintiffs, the plaintiffs will suffer
irreparable loss and injury. The defendant is restrained from disposing/
alienating/ creating any third party interest with respect to Flat No.- V-
I, 1st Floor, Merlin Warden Lake View, 104 Bidhannagar Road, Kolkata
- 700067 registered in the name of the defendant, the second being the
Merlin Warden Lake View, 104, Bidhannagar Road, First Floor, Block1,
Unit F & G, Kolkata 700 067 and also two other immovable assets
situated at P-499, Hemanta Mukherjee Sarani, Kolkata - 700 029. The
defendant is further directed to furnish security to the extent of Rs.
3,37,42,633.27/- with the Registrar, Original Side of this Court within
a period of two weeks from the date of receipt of this order. On receipt
of the amount, the Registrar, Original Side shall invest the same in an
interest bearing fixed deposit in any nationalized bank of auto renewal
till the disposal of the suit.
29. GA (COM) No. 2 of 2024 is disposed of.
(Krishna Rao, J.)
p.d/-
