Jitendra Agarwal And Ors vs Pulak Modi And Ors
2025 Latest Caselaw 3231 Cal/2

Calcutta High Court

Jitendra Agarwal And Ors vs Pulak Modi And Ors on 1 December, 2025

Author: Debangsu Basak

Bench: Debangsu Basak

                                                                               2025:CHC-OS:239-DB


OC 6
                       IN THE HIGH COURT AT CALCUTTA
                       COMMERCIAL APPELLATE DIVISION
                                ORIGINAL SIDE

                                AO-COM/32/2024
                             IA NO: GA-COM/1/2024
                             WITH CS-COM/728/2024
                          JITENDRA AGARWAL AND ORS
                                       VS
                              PULAK MODI AND ORS

BEFORE:
HON'BLE JUSTICE DEBANGSU BASAK
        -A N D-
HON'BLE JUSTICE MD. SHABBAR RASHIDI
DATE: -DECEMBER 01, 2025.


For the Appellant               : Mr. Ranjan Bachawat, Sr. Adv.
                                 Mr. Shuvasish Sengupta, Adv.
                                 Mr. Bhavesh Garodia, Adv.
                                 Ms. Safura Ahmed, Adv.
                                 Ms. Sabarni Mukherjee, Adv.

For the Respondent              : Mr. Suman Kr. Dutt, Sr. Adv.
                                 Mr. Anuj Singh, Adv.
                                 Mr. Shounak Mukhopadhaya, Adv.
                                 Mr. Paritosh Sinha, Adv.
                                 Ms. Shrayashree Das, Adv.
                                 Mr. Tridibesh Dasgupta, Adv.
.

HEARD ON                         : 01.12.2025
DELIVERED ON                     : 01.12.2025

DEBANGSU BASAK, J.:-

1. The appeal is at the behest of the defendants in the suit and directed

against the order dated August 13, 2024 passed in IA GA-COM 1 of 2024

and IA GA-COM 2 of 2024, CS-COM 728 of 2024.

2025:CHC-OS:239-DB

2. By the impugned order, learned Single Judge passed an interim

order of injunction in IA GA -COM 1 of 2024 and dismissed the application

for revocation of leave granted under Section 12A of the Commercial Courts

Act, 2015, being IA GA-COM 2 of 2024.

3. Learned Senior Advocate appearing for the respondents/plaintiffs in

the appeal, raises the issue of maintainability of the present appeal. He

submits that, the learned Single Judge exercised powers under Section 151

of the Code of Civil Procedure, 1908 and recorded it to be so in the

impugned order. He refers to Order 43 of the Code of Civil Procedure, 1908

and Section 13 of the Commercial Courts Act, 2015 and submits that, the

orders passed under Section 151 of the Code of Civil Procedure 1908, is

not appealable under Order 43 of the Code of Civil Procedure, 1908 and,

therefore, cannot be appealed against, in view of the provisions of Section

13 of the Act of 2015.

4. Learned Senior Advocate appearing for the appellants submits that,

the present appeal is maintainable. He submits that notwithstanding the

impugned order recording that powers under section 151 of the Code of

Civil Procedure, 1908 were invoked, nonetheless, the learned Judge

exercised powers under Order 39 Rules 1 and 2 thereof, in passing the

impugned order.

5. Learned Senior Advocate appearing for the appellants draws the

attention of the Court to the prayers made in IA GA-COM 1 of 2024. He

submits that, the first prayer relates to furnishing of security under Order

2025:CHC-OS:239-DB

38 of the Code of Civil Procedure, 1908, while the second prayer is sought

in default of the appellants failing to furnish security in terms of the prayer

(a) of the petition. He submits that the appellants were not directed to

furnish any security and therefore, question of default does not arise.

Consequently, no order under prayer (b) of the petition should be passed.

6. In any event, learned Senior Advocate appearing for the appellants

submits that the powers exercised by the Court passing the impugned

order should be taken into consideration for the purpose of considering the

appealability of an order. He submits that, exercise of powers both under

Order 38 and Order 39 of the Code of Civil Procedure, 1908 are appealable

under Order 43 Rule (1)(q) and (r) thereof. Consequently, appeal under

Section 13 of the Act of 2015 is maintainable.

7. In this regard, he also draws attention of the Court to the proviso of

Section 13(1-A) of the Act of 2015. He submits that although, the heading

of Section 13 speaks of appeal from decree, nonetheless in the body of

Section 13 both decree and order are spoken of. He submits that orders of

the Trial Judge which falls within the categories of orders which are

appealable under Order 43 of the Code of Civil Procedure, 1908 are also

appealable under Section 13 of the Act of 2015.

8. Learned Senior Advocate, appearing for the appellants submits that,

neither the provisions of Section 151 nor Order 39 Rules 1 and 2 of the

Code of Civil Procedure, 1908 can be resorted to in the facts and

circumstances of the present case. He submits that, the claims of the

2025:CHC-OS:239-DB

plaintiff in the suit are one of damages. He refers to the reliefs sought for in

the application. He submits that, all of the claims are yet to be quantified.

Therefore, there should not be any order of injunction or an order of

security as prayed for by the plaintiffs.

9. Relying upon AIR 1961 SC 218 (Padam Sen And Another Versus

State of Uttar Pradesh) and 2022 SCC OnLine SC 1063 (My Palace

Mutually Aided Co-operative Society Vs. B. Mahesh & Ors.), learned

Senior Advocate appearing for the appellants submits that, powers under

Section 151 of the Code of Civil Procedure, 1908, cannot be utilized when,

there are express provisions in the Code.

10. Learned Senior Advocate appearing for the appellants submits that

there are no pleadings in the application, justifying the impugned order. He

draws the attention of the Court to the fact that the contract stood

terminated. He refers to the letter of termination. He refers to the prayers

made in the application. He submits that the respondents did not challenge

the letter of termination.

11. Referring to the impugned order, learned Senior Advocate appearing

for the appellants submits that, the learned Single Judge misconstrued

and misapplied the ratio of 2021 Volume 6 Supreme Court Cases 418

(Rahul S. Shah Versus Jitendra Kumar Gandhi And Ors.). He submits

that Rahul S. Shah (supra) was rendered in the context of an execution

proceeding. Moreover, no rules as directed in the paragraph 43 thereof,

were framed by the High Court.

2025:CHC-OS:239-DB

12. Learned Senior Advocate, appearing for the respondents, submits

that, the application in which the impugned order was passed is pending

adjudication. He points out that the Writ of Summons of the suit were

served. The appellants as defendants therein filed written statement with a

counter claim.

13. Learned Senior Advocate appearing for the respondents, submits

that the learned Single Judge exercised discretion in passing the impugned

order. Relying upon 1990 (Supp) Supreme Court Cases 727 (Wander

Ltd. And Another versus Antox India P. Ltd.), he submits that, an

Appeal Court should be slow in interfering with the discretion exercised

unless it is established that, the impugned order stands vitiated by

arbitrariness or capriciousness or the Court ignored any settled principles

of law regarding grant of or refusal to grant interlocutory injunction. He

submits that, in the facts and circumstances of the present case none of

such situation is involved.

14. The present suit, in which the impugned order was passed, revolves

around a contract that the parties entered into on April 14, 2023. Under

such contract, prima facie it appears that, the respondents herein, as

shareholders were required to sell their shares of and in the company to

the appellants. Apparently, the respondents did so. Apparently, the

respondents made over the share certificates of and in the Company to the

appellants, gave control of the Company to the appellants and discharged

their obligations under the agreement, entitling them to receive the

2025:CHC-OS:239-DB

consideration for the sale of the shares. The respondents received a part

consideration in respect of such sale of shares. Respondents called upon

the appellants to pay the balance. The appellants initially agreed to pay the

balance. Therefore, disputes and differences arose between the appellants

and the respondents with regard to the implementation of the contract

between the parties.

15. It is in this context, the suit was filed by the respondents. Prayers in

the plaint are as follows :-

"a) Decree for a sum of Rs.50,00,000 as pleaded in paragraph 26 hereinabove against the defendant nos 1 to 4 jointly and severally'

b) Decree for a sum of Rs.6,43,70,000 as pleaded in paragraph 27 hereinabove against the defendant nos. 1 to 4 jointly and severally.

c) Decree for a sum of Rs.30,04,054/- towards interest by way of liquidated damages as pleaded in paragraph 28 hereinabove;

d) Decree for a sum of Rs.70,79,255 together with interest of Rs.1,41,001 by way of liquidated damages as pleaded in paragraph 29 hereinabove against the defendant nos 1 to 5 jointly and severally;

e) Interim interest and interest upon judgement @15% per annum;

f) Receiver;

g) Injunction ;

h) Attachment;

i) Such order or other reliefs."

2025:CHC-OS:239-DB

16. In such suit, the respondents applied by way of IA GA No. 1 of 2024

for the following reliefs :-

"a) An order be passed directing the respondent nos. 1 to 3 to furnish security for the sum of Rs.50,00,000/- only to the satisfaction of this Hon'ble Court.

b) In default, an order of injunction may be passed restraining the respondent nos. 1 to 3, their men, agents, servants, assigns and/or representatives from operating their bank accounts without setting apart a sum of Rs.50,00.000/- to the credit of the petitioners in the suit;

c) An order be passed directing the respondent no. 4 and the respondent no. 5 to furnish security for the sums of Rs.6,43,70,000/- an Rs.72,20,256/- respectively, only to the satisfaction of the Hon'ble Court;

d) In default, an order of injunction may be passed restraining the respondent nos. 4 and 5, their men, agents, servants, assigns and/or representatives from operating their respective bank accounts without setting apart the sum of Rs.6,43,70,000/- and Rs.72,20,256/- to the credit of the petitioners in the suit.

e) An order of injunction be passed restraining each of the respondent nos. 1 to 5, their men, agents, servants, assigns and/or representatives from transferring, alienating, encumbering, dealing with or disposing of or otherwise creating third party rights in respect of their respective properties described in the Schedule being Annexure "B" hereto.

f) Ad-interim orders in terms of prayers above.

g) Costs.

2025:CHC-OS:239-DB

h) Such further and/or other orders be passed and/or direction or directions be given as their Hon'ble Court may deem fit and proper."

17. Learned Single Judge noted the transactions between the parties in

the impugned order. Learned Single Judge found it appropriate to grant

order of injunction as recorded therein. Learned Single Judge proceeded to

record in the impugned order that powers under Section 151 of the Code of

Civil Procedure, 1908 were being exercised.

18. Appealability of the present appeal is in issue. Appealability of the

present appeal is to be considered in the factual matrix as noted above.

19. Section 13 of the Act of 2015 deals with the right of appeal in a

Commercial Suit.

20. Section 13 of the Act of 2015 is as follows:-

"13. Appeals from decrees of Commercial Courts and

Commercial Divisions - (1) any person aggrieved by the judgement

or order of a Commercial Court below the level of a District Judge

may appeal to the Commercial Appellate Court within a period of

sixty days form the date of judgement or order.

(1-A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the Judgement or order.

2025:CHC-OS:239-DB

Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure 1908 (5 of 1908) as amended by this Act and Section 37 of the Arbitration & Conciliation Act, 1996 (26 of 1996).

(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act."

21. Sub-section (1) of Section 13 of the Act of 2015 provides that any

person aggrieved by the judgment or order of a Commercial Court below

the level of a District Judge may appeal to the Commercial Appellate Court

within a period of sixty days from the date of judgment or order.

22. Sub-section (1-A) deals with judgment or order of a Commercial

Court at the level of District Judge exercising Original Civil Jurisdiction or

Commercial Division of a High Court. It provides that, in such cases,

appeal would lie to the Commercial Appellate Division of that High Court

within a period of sixty days from the date of the judgment or order.

23. The proviso to Section (1-A) of the Act of 2015 stipulates that an

appeal shall lie from such orders passed by a Commercial Division or a

Commercial Court that are specifically enumerated under Order XLIII of

the Code of Civil Procedure, 1908 as amended by the Act of 2015 and

Section 37 of the Arbitration and Conciliation Act, 1996.

2025:CHC-OS:239-DB

24. Sub-section (2) of Section 13 provides that, notwithstanding

anything contained in any other law for the time being in force or Letters

Patent of a High Court, no appeal shall lie from any order or decree of a

Commercial Division or Commercial Court otherwise than in accordance

with the provisions of this Act of 2015. Although, the heading of Section 13

of the Act of 2015 is stated as "Appeals from decrees of Commercial Courts

and Commercial Divisions", nonetheless, the body of such section

including all its sub-sections, refers to judgment or order, also order or

decree.

25. Sub-section (2) of Section 13 prohibits any appeal from any order or

decree other than what is provided in sub-section (1) and (1-A) of the Act of

2015, notwithstanding, the Letters Patent, 1865 or any stipulation in any

other law to the contrary.

26. In the facts and circumstances of the present case, if the present suit

was not filed in the Commercial Division, then the impugned order would

be appealable under Clause 15 of the Letters Patent, 1865. By virtue of

Section 13 of the Act of 2015, Letters Patent, 1865 is applicable to adjudge

appealability.

27. An appeal from order or judgments or decrees passed by the

Commercial Court of the High Court such as ours, is therefore governed by

the provisions of Section 13(1-A) of the Act of 2015 which stipulates that,

appeal will lie only from those orders which are enumerated under order

XLIII of the Code of Civil Procedure, 1908 as amended by the Act of 2015

2025:CHC-OS:239-DB

and Section 37 of the Act of 1996. In the facts and circumstances of the

present case we are concerned with Order XLIII of the Code of Civil

Procedure, 1908.

28. There are two prayers in IA GA-COM 1 of 2024 which were dealt with

by the impugned order. Such prayers are as follows :

"a) An order be passed directing the respondent nos. 1 to 3 to furnish security for the sum of Rs. 50,00,000/- only to the satisfaction of this Hon'ble Court.

b) In default, an order of injunction may be passed restraining the respondent nos. 1 to 3, their men, agents, servants, assigns and/or representatives from operating their bank accounts without setting apart a sum of Rs. 50,00,000/- to the credit of the petitioners in the suit;"

29. The first prayer relates to furnishing of security while the second

prayer is in continuity of the first prayer and it relates to passing of an

order of injunction, in the event of default of furnishing security. The first

prayer is, therefore, to be considered under Order 38 while the second

under Order 39 of the Code of Civil Procedure, 1908.

30. It is trite law that, nomenclature used in passing an order is not

relevant. What is relevant for consideration is the power exercised and

source of power so exercised while passing the order. If, it is found that,

the authority passing the order is vested with the jurisdiction to do so,

then the order impugned, notwithstanding containing a different

nomenclature, should not be set aside merely on the ground of user of

such nomenclature.

2025:CHC-OS:239-DB

31. In the facts and circumstances of the present case, the learned

Single Judge was vested with the jurisdiction to pass orders either under

Order 38 or under Order 39 or both, of the Code of Civil Procedure, 1908.

32. By the impugned order, learned Single Judge restrained the

appellants from operating its specific bank account by keeping aside the

specified amount in such account till a particular date.

33. The impugned order can be construed to be in the nature of an

attachment order which can be passed under Order 38 of the Code of Civil

Procedure, 1908. The impugned order, is also an order of injunction which

can be passed under Order 39 Rules 1 and 2 of the Code of Civil

Procedure, 1908.

34. Substance of the order being in the nature as noted above and

substance of the application being in the nature again as noted above, the

issue of maintainability of the appeal is to be answered in the affirmative

and in favour of the appellants. The impugned order, notwithstanding it

recording that the order was passed under Section 151 of the Code of Civil

Procedure, 1908, the essence being an order of injunction and akin to an

order of attachment is appealable by reason of an Order 43 Rule 1 (q) and

(r) of the Code of Civil Procedure, 1908 and falls within the purview of

Section 13(1-A) of the Act of 2015.

35. Learned Single Judge exercised discretion, and gave reasons for the

exercise of discretion, in passing an order impugned. IA GA-COM 1 of

2025:CHC-OS:239-DB

2024 is yet to be finally decided. The impugned order, is an ad-interim

order.

36. Wander Limited (supra) is of the view that Appeal Court will not

interfere with the exercise of discretion of the Court of the first instance

and substitute its own discretion unless it is shown to be exercised

arbitrarily or capriciously or perversely or passed ignoring the settled

principle of law regulating grant or refusal of the interlocutory injunction.

37. Rahul S Shah (supra) notes that, during the pendency of the suit,

using powers under Section 151 of the Code of Civil Procedure, 1908, a

Court can demand security to ensure the satisfaction of any decree.

38. As noted above, the issue as to the nature and extent of the relief

that the plaintiffs are entitled to in the suit is yet to be finally decided. The

application in which the impugned order was passed in IA GA-COM 1 of

2024 is yet to be finally decided.

39. Padam Sen (supra) is of the view that inherent powers of the Court

are in addition to the power specifically conferred on the Court by the Code

of Civil Procedure, 1908. They are complementary in nature.

40. My Palace Mutually Aided Co-operative Society (supra) is of the

view that, inherent powers cannot be used in conflict with any other

existing provision, or in case where a remedy is provided for by any other

provision of the Code of Civil Procedure, 1908.

41. As noted above, the petition in which, impugned order was passed, is

yet to be finally decided. Therefore, we are minded to interfere at the ad-

2025:CHC-OS:239-DB

interim order stage. We are keeping all points open for the learned Single

Judge to decide as to the nature and extent of the relief that the plaintiffs

may be granted on final hearing of the application.

42. AO-COM 32 of 2024 along with all connected applications are

disposed of without any order as to costs.

(DEBANGSU BASAK, J.)

43. I agree.

(MD. SHABBAR RASHIDI, J.)

GH/TR