Calcutta High Court

K.P. Credit & Traders Private Limited vs Smt. Sabita Rungta & Ors on 31 January, 2025

                 IN THE HIGH COURT AT CALCUTTA
                              (ORIGINAL SIDE)
                       COMMERCIAL DIVISION


Present:

The Hon'ble Justice Krishna Rao



                              GA No. 1 of 2023

                                     In

                      CS (COM) No. 538 of 2024

                       (Old No. CS 168 of 2023)



                 K.P. Credit & Traders Private Limited

                                  Versus

                      Smt. Sabita Rungta & Ors.




           Mr. Suresh Sahani
           Ms. Anjana Banerjee
           Mr. Hemant Tiwari
           Ms. Jayanti Paul
                                             ... For the plaintiff.
           Mr. Anupam Bhattacharya
           Mr. Sudhakar Thakur
           Mr. Syed Rahil Faraz
           Ms. Sana Sultana
                                           ... For the defendants.


Hearing Concluded On : 20.01.2025

Judgment on          : 31.01.2025
                                        2


Krishna Rao, J.:

1. The plaintiff has filed an application praying for interim order. The

plaintiff has filed a suit against the defendants for recovery of an

amount of Rs. 7,09,57,617/- along with further interest at the rate of

18% per annum from the date of institution of the suit till realization of

the said amount.

2. As per the case of the plaintiff, in between 23rd June, 2015 to 21st

September, 2021 from time to time, the plaintiff lent and advanced an

amount of Rs. 8,50,00,000/- to the defendants.

3. On 1st April, 2016; 1st April, 2020 and 1st April, 2021, the defendants

have acknowledged its liability and provided confirmation of accounts

to the plaintiff.

4. In between 2nd April, 2016 and 1st October, 2016, the defendants paid

part payment of Rs. 2,05,00,000/- and in between 21st March, 2017

and 24th March, 2021, the defendants made part payment of Rs.

1,07,78,143/- towards the interest amount.

5. The plaintiff says that the defendants have also paid TDS from time to

time till the financial year 2020-2021. The defendants failed to pay the

balance amount of Rs. 6,45,00,000/- along with interest of Rs.

64,57,617/- to the plaintiff. The plaintiff has sent a letter to the

defendants on 23rd December, 2021 calling upon the defendants for

payment of Rs. 6,45,00,000/- along with interest of Rs. 64,57,617/- to

the plaintiff and on receipt of the notice, the defendants had sent a

reply to the plaintiff admitting the said amount but refused to pay the

said amount.

6. Mr. Suresh Sahani, Learned Advocate representing the plaintiff submits

that prior to filing of the present case, the plaintiff had filed a suit being

C.S. No. 31 of 2022 along with an application for grant of injunction

being G.A. No. 1 of 2022 and this Court had granted interim order

restraining the defendants to transfer or alienate his property. He

submits that the matter went upto the Appellate Court and by a

judgment dated 30th March, 2023, the Appellate Court rejected the

plaint on the ground that the plaintiff without initiating pre-institution

mediation process has filed the suit in the Commercial Division but the

Hon'ble Court granter liberty to the plaintiff to exhaust remedy provided

under Section 12A of the Commercial Courts Act, 2015.

7. The plaintiff after initiation of proceeding under Section 12A of the

Commercial Courts Act, 2015, has filed the present suit. Now the

plaintiff says that the plaintiff came to know that the defendants are

attempting to dispose of his properties only with the intention to

frustrate the claims of the plaintiff.

8. Mr. Sahani submits that the defendants have admitted the claim of the

plaintiff by repaying the part amount and also paying the TDS and in

the reply of the notice of the plaintiff, the defendants have not denied

with respect to the acknowledgement of the amount from the plaintiff.

9. Mr. Anupam Bhattacharya, Learned Advocate representing the

defendants submits that the defendants have no connection with the

plaintiff. He submits that only in the month of December, 2021, the

defendants received a letter from the Learned Advocate of the plaintiff

and the defendants have sent detailed reply to the plaintiff.

10. The defendants have made out a specific case in the affidavit-in-

opposition and in the reply to the legal notice of the plaintiff that the

defendants have not received any amount from the plaintiff. It is the

specific case of the defendants that one Shri Anil Kumar Chaudhary

agreed to provide loan of Rs. 10 crores through one or more entities

managed by him and the operation of those bank accounts would be

under the direct control of Shri Anil Kumar Chaudhary.

11. Mr. Bhattacharya submits that it was agreed that the tenure of loan

would be 15 years commencing from June, 2015. He submits that after

receipt of payment, part of the principal amount also repaid from time

to time to the entities indicated by Shri Anil Kumar Chaudhary based

upon the option available for the principal repayment and upon mutual

consent.

12. Mr. Bhattacharya submits that the defendants have no connection or

direct communication with any of the entities or the officers from whose

accounts the disbursements were made other than Shri Anil Kumar

Chaudhary. He submits that the husband of the defendant no. 1(a) and

father of the defendant nos. 1(b) and 1(c) had a talk with Shri Anil

Kumar Chaudhary lastly on 27th September, 2021 and thereafter the

where about of Shri Anil Kumar Chaudhary is not known to the

plaintiff.

13. Mr. Bhattacharya submits that the defendants have no connection with

the plaintiff and neither any amount was directly received from the

plaintiff nor the defendants have directly made any payment to the

plaintiff. He submits that all the transactions were made by the

defendants with Shri Anil Kumar Chaudhary and not with the plaintiff.

14. Heard the Learned Counsel for the respective parties, perused the

materials on record. The plaintiff has relied upon the documents to

establish about the transaction between the plaintiff and defendants. It

is the case of the plaintiff that the defendants are liable to pay principal

amount of Rs. 6,45,00,000/- and interest Rs. 64,57,617/- in total

amounting to Rs. 7,09,57,617/-. The plaintiff has prayed for interim

order restating the defendants from alienating his property or operating

bank accounts without keeping aside an amount of Rs. 7,09,57,617/-.

15. The plaintiff had made an averment that the plaintiff came to know that

the defendants are attempting to dispose of his properties in order to

frustrate the claims of the plaintiff. On the other hand, the plaintiff has

also stated that inspite of several attempts, the plaintiff failed to

ascertain the assets of the defendants.

16. In the case of Ramen Tech. and Process Engg. Co. and Anr. vs.

Solanki Traders reported in AIR OnLine 2007 SC 80, the Hon'ble

Supreme Court held that:

"5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements, under threat of attachment.

6. A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the court that the defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order 38 Rule 5 CPC. Courts should also keep in view the principles relating to grant of attachment before judgment."

17. In the case of Sunil Kakrania and Ors. vs. M/s. Saltee

Infrastructure Ltd. and Anr. reported in AIR 2009 Cal 260, the

Division Bench of this Court held that :

"21. Once we hold that in a simple money suit, an immovable property, for the construction of

which the money is allegedly payable by the defendant, cannot be the "property in dispute in the suit", clauses (a) and (c) of Order 39, Rule 1 cannot have any application and clause (b) may be applicable provided the condition mentioned therein is present. In this case, there is no averment in the plaint or the application for injunction that the defendant intended or threatened to remove or dispose of his property with a view to defrauding his creditors and even no name of any creditor has been given. Therefore, Order 39, Rule 1 has no application to the facts of the present case."

18. The plaintiff has relied upon the judgment in the case of Rahul S.

Shah Vs. Jinendra Kumar Gandhi and Others reported in (2021) 6

SCC 418 wherein the Hon'ble Supreme Court held that :

"42.7. 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. The court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree."

19. In the present case, the plaintiff has filed the suit for recovery of money.

The present application is filed for grant of interim order restraining the

defendants from alienating his property or from operating the bank

account without keeping aside an amount of Rs. 7,09,57,617/-. The

only allegation made by the plaintiff in the present application that the

plaintiff came to know that the defendants are attempting to dispose of

his properties in order to frustrate the claims of the plaintiff. The

plaintiff has not disclosed any materials that the defendants are

transferring or transferred their property to third party or are

transferring or transferred the amount to third party without paying the

dues to the plaintiff. The defendants have taken a specific defence that

the defendants have no contract with the plaintiff and all the