M/S. Sarah International And Anr vs Md. Tahir Ejaz And Ors
2025 Latest Caselaw 2264 Cal/2

Calcutta High Court

M/S. Sarah International And Anr vs Md. Tahir Ejaz And Ors on 24 April, 2025

Author: Arindam Mukherjee

Bench: Arindam Mukherjee

OD-2

                                ORDER SHEET

                              IA NO. GA/1/2025
                                      In
                                 CS/14/2025

                    IN THE HIGH COURT AT CALCUTTA
                  ORDINARY ORIGINAL CIVIL JURISDICTION
                             ORIGINAL SIDE



                   M/S. SARAH INTERNATIONAL AND ANR.
                                    Vs
                         MD. TAHIR EJAZ AND ORS.



BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE

Date: 24th April, 2025.

Appearance:

Mr. Anujit Mookherji, Adv., Mr.Harsh Tiwari, Adv., Mr. Bhupendra Gupta, Adv.

For plaintiffs Mr. Rabindranath Basak, Adv., Mr. Aurin Chakraborty, Adv., Mr. Anirudhya Dutta, Adv.

For defendant no. 1 Mr. Abhishek Kabir, Adv.

For defendant nos.2 and 3

The Court: In a suit for recovery of excess amount of money alleged to

have been received by the defendants through mis-representation, the plaintiffs

have filed this application, inter alia, for injunction, attachment before

judgment and security.

This application was moved ex parte on 5 th March, 2025 when the

defendants were directed not to operate the bank accounts indicated therein

without keeping aside a sum of Rs.77,62,590/-. The operative portion of the

order is set out hereunder for convenience.

"Considering the above, this Court finds that the plaintiffs have made out

a prima facie case and balance of convenience and inconvenience are in favour

of the plaintiff. This Court finds that it is not proper at this stage by directing

the defendants to secure the amount before the Court but simultaneously this

Court is of the view that the purpose would be served if the defendants are

directed not to operate the bank accounts maintained by the defendants at

Punjab and Sind Bank, IBD Kolkata Branch, being No.05621000002156,

Punjab National Bank, Subodh Mullick Square Branch, being No.

0485010088390, Bank of Baroda, Dharmatalla Branch, being

No.06290200000731, without keeping aside an amount of Rs. 77,62,590 till

26th of March, 2025."

The plaintiffs say that this order should be extended as there is no

change in situation from 5th March, 2025 for vacating or varying the order and

if the defendants intend to contest the application then direction for affidavits

may be passed.

The defendant no.1 and defendant nos.2 and 3 are separately

represented.

On behalf of the defendant no.1, it is submitted that the case made out

by the plaintiffs in their application is completely vague as against the

defendant no.1.

It is the case of the plaintiffs that the defendant no.1 was a former

employee of the plaintiffs. The defendant no.1 was, according to the plaintiffs,

looking after the accounts. The defendant no.1 had introduced the defendant

nos.2 and 3. The defendant no.3 is a firm of a chartered accountants. The

defendant no.2 is one of the partners of defendant no.3.

It is further submitted on behalf of the defendant no.1 that the only

allegation against the said defendant no.1 is that he had persuaded the

plaintiffs to transfer certain sum of money to the bank account of the

defendant no.2 for meeting the tax liabilities. Neither the defendant No. 1 did

any independent amount of the sum given by the plaintiffs nor had any role in

connection with depositing the tax liability.

It is the further case of the plaintiffs that after reconciliation of account,

the plaintiffs found that a sum much in excess of the actual tax liabilities had

been transferred to the account of the defendant no.2 by the plaintiffs on the

understanding that the sum so transferred is the actual tax liability. The

plaintiffs have, therefore, sought for recovery of the excess money said to have

been credited in the account of the defendant no.2 allegedly in excess of the tax

liability. The defendant no.1 says that apart from the allegation that the

defendant nos.2 and 3 were introduced by the defendant no.1 to the plaintiffs

and that as an accountant while looking after the account, the defendant no.1

on a reasonable belief thought that the amount transferred to the account of

the defendant no.2 as the tax liability was the correct figure. There is no other

allegation against the defendant No. 1. The defendant no.1 has never received

any money from the plaintiffs for paying the tax liability of the plaintiffs and, as

such, the cause of action, if any, against the defendant no.1 is not only vague

but does not affix a liability for recovering the alleged excess money from the

plaintiffs. The injunction order, therefore, should be vacated as against the

defendant no.1.

It is further submitted by the defendant no.1, that the tests which are to

be satisfied for obtaining an order of attachment before judgment has not been

fulfilled in the instant case. Mere making out a prima facie case does not aid

the plaintiffs in obtaining an order of attachment before judgment. The

plaintiffs are to satisfy that there is a likelihood of passing a decree against the

defendant/defendants and that the defendants are removing themselves from

the jurisdiction of the Court to render the decree infructuous. On such ground

also, according to the defendant no.1, the order injuncting the bank accounts

of the defendants should be vacated.

It is also submitted by the defendant no.1 that there is no master-

servant relationship in existence between the plaintiffs and the defendant no.1.

Under normal service jurisprudence, in absence of any specific rules, no

disciplinary proceedings can or could be initiated against the employee

concerned. The allegations made against the defendant no.1, at the highest,

without admitting the same can be that of misconduct or negligence. No

disciplinary proceedings after his retirement can or could be initiated on that

ground against the defendant no.1.

The ex parte interim order, therefore, is also not sustainable on that

ground as against the defendant no.1.

On behalf of the defendant nos.2 and 3, it is submitted that the

defendant no.3 was admittedly engaged as a chartered accountant to look into

the accounts of the plaintiffs. There is no allegation that the defendant nos.2

and 3 did not deposit the tax liability of the plaintiffs for which the plaintiffs

have suffered penal consequences. So far as the alleged excess payment is

concerned, the story of the plaintiffs is vague and ambiguous. Admittedly, the

defendant nos.2 and 3 were to receive professional fees and other expenses for

looking after the accounts. The plaintiffs have not been able to demonstrate

that there was an agreed quantum of fees between the plaintiffs and the

defendant nos.2 and 3 which the plaintiffs have paid and thereafter and excess

sum is lying in the credit of the defendant No. 2. In absence of the fact that the

defendant nos.2 and 3 have been paid all its dues and thereafter an excess

payment has been realised has not also been demonstrated by the plaintiffs.

The interim order, therefore, should be vacated.

The arguments, however, could not be concluded.

Let this matter retain in its position and shall be taken up tomorrow (25-

04-2025).

(ARINDAM MUKHERJEE, J.)

Sb/