1. The plaintiff has filed the present application being GA No. 1 of 2023 in
CS No. 122 of 2023 under Order 12 Rule 6 of the Code of Civil
sum of Rs. 5,98,50,000/- along with interest @ 18% per annum
totaling in Rs. 49,05,79,367/- or in alternative for an order of
and from withdrawing any amounts from their bank accounts.
2. In the month of July, 2009, the defendant nos. 1 and 2 approached the
plaintiff for a loan of Rs. 7,50,00,000/- and in view of the relationship
amount of Rs. 7,50,00,000/- as loan to the defendants. The terms and
the defendant nos. 1 and 2 or such family companies as the defendants
would nominate. It was further agreed between the parties at the end of
each financial year, the defendant nos. 1 and 2 would issue necessary
the plaintiff for the purpose of tax.
3. The plaintiff has paid a sum of Rs. 5,98,50,000/- to the defendant nos.
1 and 2. At the end of each financial year, the defendant nos. 1 and 2
plaintiff upto 31st March, 2021. From the end of year 2021, the
defendant nos. 1 and 2 failed and neglected to issue balance
confirmation to the plaintiff. The plaintiff by an email dated 16th
defendant nos. 1 and 2 for repayment of the loan amount of Rs.
5,98,50,000/- along with interest accrued therein. The defendant nos.
demanded by the plaintiff, the plaintiff has filed the present suit.
4. Mr. Jishnu Chowdhury, Learned Senior Advocate representing the
the financial years 2014-2015, 2017-2018, 2019-2020 and 2020-2021.
5. Mr. Chowdhury submits that the defendant nos. 1 and 2 have not
denied with respect to the receipt an amount of Rs. 5,98,50,000/- from
plaintiff's to the accounts of the defendant nos. 1 and 2. He submits
that the defendant nos. 1 and 2 have also not denied with regard to the
balance confirmations showing the total amount of Rs. 5,98,50,000/-.
6. Mr. Chowdhury further submits that the plaintiff came to know that
the defendant nos. 1 and 2 are involved circumstances and have
numerous creditors in the market. He submits that the defendant nos.
projects in past but at present, the defendant nos. 1 and 2 do not have
any project which is upcoming. He submits that the involvement of the
taken over by other persons. He submits that the defendant nos. 1 and
2 and their concerns are at the stage of insolvency. Mr. Chowdhury
have filed several suits against the defendant nos. 1 and 2 and their
family concerns claiming total amount of Rs. 114 Crores.
7. Per contra, Mr. Krishnaraj Thaker, Learned Senior Advocate
8. Mr. Thaker submits that keeping in mind, our friendship with the
Estate Projects. It was agreed between the plaintiff and us that funds
"the Bhagat Group"). On the completion of the project and after sale of
towards project cost. The surplus, if any, would also be similarly
9. Mr. Thaker submits that pursuant to the above agreement and in terms
thereof, the plaintiff initially invested Rs. 2.78 crores in A. B. Nirvan
Builders Pvt. Ltd. sometime in the year 2009. The said amount was
by A. B. Nirvan Builders Pvt. Ltd. The said project was completed
sometime on 2012. In the said project, A. B. Nirvan Builders Pvt. Ltd.
had made a profit of approximately Rs. 1.95 crores. We offered to repay
the investment of Rs. 2.78 crores on completion of the project and the
share of profit after reconciliation of accounts. However, the plaintiff
of Rs. 2.78 crores may be re invested in further projects of the Bhagat
make. We accepted the plaintiff's request.
10. Mr. Thaker submits that at that point of time our group was involved in
several projects. However, it was mutually decided that the Goenkas
a. Aqua Beaumont situated at 19/2, Matheshwertalla Road,
Tangra, Kolkata, West Bengal- 700046 which was being
developed by Olympia Real Estate Chennai Pvt. Ltd.
b. Ergo situated at Plot A1-4, Block EP & GP, 804, Street No. 23,
GP Block, Sector V, Bidhannagar, Kolkata, West Bengal-
700091 which was being developed by Brilliant Dealers Pvt.
Ltd.
11. Mr. Thaker submits that the plaintiff invested an aggregate amount of
Rs. 5.69cr in Aqua Beaumont through Elegant Merchandise Pvt. Ltd.,
Piyush Kumar Bhagat and Manoj Kumar Bhagat being Rs.89Lakhs,
and Rs.2.8Crores Rs.2Crores respectively. In addition to Rs.2.18cr
being part of his initial investment of Rs.2.78 Crores through A.B.
Nirvan Builders Pvt. Ltd.
12. The plaintiff invested an aggregate amount of Rs. 4.48 crores in Ergo
through Elegant Merchandise Pvt. Ltd., Vidhan Estate Pvt. Ltd. and
Piyush Kumar Bhagat being Rs. 2.78 Crores, Rs.50 Lakhs and Rs.1.2
crores respectively. In addition to 60 lac being part of his initial
investment of Rs 2.78 cr through A.B. Nirvan Builders Pvt. Ltd.
13. Mr. Thaker submits that similarly Mrs. Meenakshi Goenka, the wife of
the plaintiff had invested an aggregate amount of Rs. 75 lakhs in Aqua
Beaumont through Canon Properties Pvt. Ltd. and Rs.50 lakhs in Ergo
through Manoj Kumar Bhagat.
14. Mr. Thaker submits that Aqua Beaumont received completion
certificate on September, 2021. After adjusting all receivables with the
cost of construction, it was found that Olympia Real Estate Chennai
Pvt. Ltd. has incurred a loss of Rs. 13.15 crores that is, there was a
deficit of Rs. 13.15 crores.
15. Mr. Thaker submits that Ergo received completion certificate on
December, 2018. After adjusting all receivables with the cost of
construction, it was found that Brillant Dealers Pvt. Ltd. has incurred a
loss of Rs. 13.15 crores that is, there was a deficit of Rs. 10.38 crores.
16. Mr. Thaker submits that the plaintiff had also purchased from (Brillant
Dealers Pvt. Ltd.) an office space of 2240 sq.ft. for a total Consideration
of Rs. 1.25 crore out of which Rs. 1 crore has been paid by the plaintiff
through Elegant Merchandise Private Ltd. However, Conveyance could
not be executed since 25 lakhs is still pending.
17. Mr. Thaker submits that one of the main reasons for the projects
incurring loss was the demonetization that happened in the year 2016
and implementation of GST, which increased the tax from 4.5% (in the
pre GST era) to 12%. This adversely affected the Real Estate market
and led to a downtrend in the Real Estate market at that point of time
i.e. during the period these projects were coming up.
18. Mr. Thaker submits that the investment by the Goenkas in these two
projects was to be repaid from the revenue generated from these
projects. However, as the project cost exceeded the revenue, the
Goenkas and the Bhagat Group have suffered loss proportionate to
their respective contribution towards total project cost.
19. Mr. Thaker submits that it is settled law that a contract entered into by
a company must be in writing. He submits that the alleged oral
contract as relied upon by the plaintiff with a company is null and void.
He submits that there exist written contracts which the plaintiff has
suppressed in order to make out the case of oral agreement.
20. Mr. Thaker submits that the moneys were advanced but there is no
instance of payment of any amount of interest as claimed by the
plaintiff @ 18% per annum. He submits that there is not a single
instance of deposit of tax deducted at source by the defendant no. 1
company on account of interest. He further submits that other than the
notice dated 14th June, 2023 which was sent just a month before for
filing of the suit, the plaintiff has not demanded for payment of interest
from the defendants.
21. Mr. Thaker submits that in the email dated 16th October, 2022, the
husband of the plaintiff not even alleged that the plaintiff or her
husband had provided any funds as loan to the defendants or other
companies of the Bhagat Group and Companies. On the contrary, the
contention in the said email is that moneys were advanced towards
buildings, plots and projects. He submits that as per the allegation
made by the plaintiff, the defendants have executed and made over
balance confirmation certificates to the plaintiff but the said balance
confirmation does not match with the claim of the plaintiff. He submits
that the said documents only records the fact that an aggregate amount
of Rs. 5,98,50,000/- has been paid by the plaintiff to the defendant
nos. 1 and 2 and there is no mention of the alleged interest @ 18% per
annum.
22. Mr. Thaker submits that the defendant nos. 1 and 2 received a notice
under Section 41A of the Cr.P.C. from the Bidhannagar Police Station
and from the said notice only, the defendants came to know for the first
time that the plaintiff had filed a criminal complaint against the
defendant nos. 1 and 2 for the offence under Sections 420/406/34 of
the IPC. He submits that the defendant nos. 1 and 2 obtained certified
copy of complaint, FIR dated 1st July, 2022 in which the husband of the
plaintiff has correctly stated that the real transaction between the
parties is the real estate ventures of the Bhagat Group of Companies on
a revenue sharing model. He submits that in the complaint dated 1st
July, 2022, the husband of the plaintiff has also provided several
indentures, agreements, allotment letters and various Memorandum of
Understanding (MOU) to the police authorities and from the said
documents, it reveal the true transactions between the parties which
the plaintiff has suppressed before this Court.
23. Heard the Learned Counsel for the respective parties, perused the
materials on record and the judgments relied by the parties. The
plaintiff has filed the suit praying for a decree for a sum of Rs.
49,05,79,367/- along with interim interest and interest upon judgment
@ 18% per annum. In the present application, the plaintiff has prayed
for judgment and decree upon admission. The plaintiff has mainly
relied upon the confirmation of accounts from 1st April, 2014 to 31st
March, 2021 total amounting to Rs. 5,98,50,000/-. As per the case of
the plaintiff, the balance confirmations are necessary for tax purposes
and are issued confirming loans and on the basis of the balance
confirmations, decree be passed on admission. In this context, the
plaintiff has relied upon the judgment in the case of Ajay Kumar
Agarwal -vs- Green Concretex Global Limited reported in 2020 SCC
OnLine Cal 2123 and submitted that wherein the Coordinate Bench of
this Court held that:
"33. The defence sought to be raised in the
present proceeding, in my opinion, is incongruous,
vague, nebulous and convoluted. The defence is
moon shine. In my opinion, no triable issue has been
raised by the respondent to the extent of the amount
covered by the cheques furnished by the respondent
to the plaintiffwhich were dishonoured. It will be a
travesty of justice to relegate such claim of the
plaintiffto trial. The object of Order XII Rule 6 of the
Code of Civil Procedure is to enable a party to obtain
a speedy judgment at least to the extent of the
admission made by the other party. The admission
may be in the pleading or otherwise. A pre-suit
admission would also suffice. In the present case, I
have no reason to believe that the balance
confirmations were procured by the
plaintiffdishonestly. The confirmation statements
clearly amount to admission. The cheques furnished
by the respondent to the plaintiffalso amount to
admission of liability to the extent of the aggregate
amount of the cheques."
24. The plaintiff has also relied upon the judgment in the case of Rishabh
Bengani -vs- Jaideep Halwasiya reported in 2020 SCC OnLine Cal
382 and submitted that in the said case also there was a balance
confirmation of the defendant and the defendant has acted upon the
balance confirmation, the defendant deposited Tax Deducted at Source
on 31st March, 2019 for a sum of Rs. 99,452/-. The Coordinate Bench
of this Court has accepted the said balance confirmations and passed
judgment upon admission with regard to the principal amount and
relegated the suit for trial with respect to interest.
This Court has considered both the judgments relied by the
plaintiff and finds that in the case of Ajay Kumar Agarwal (supra),
this Court has not only considered the balance confirmation but has
also considered that the defendant had issued eleven postdated
cheques in favour of the plaintiff for a total sum of Rs. 87,46,313/-,
though the claim of the plaintiff was Rs. 1,11,51,507/- and accordingly,
the Coordinate Bench of this Court has allowed judgment upon
admission only for a sum of Rs. 87,46,313/-, thus the said judgment is
distinguishable from the facts of the present case.
In the case of Rishabh Bengani (supra), the Coordinate Bench of
this Court has considered the balance confirmation of the defendant
upto the March 31, 2018 as well as Tax Deducted at Source on 31st
March, 2019 for a sum of Rs. 99,452/-. In the present case, the
plaintiff has relied upon the balance confirmation but has not produced
any document with respect to the Tax Deduction at Source and it is the
specific defence of the defendants in the present case that the plaintiff
has not shown any document to prove the Tax Deduction at Source,
thus the said judgment is also distinguishable from the facts of the
present case.
25. The plaintiff says that the defendants unable to explain the admission
about the balance confirmations and thus the plaintiff is entitled to get
judgment and decree upon admission. In this context, the plaintiff has
relied upon the judgment in the case of Uttam Singh Duggal & Co.
Ltd. -vs- United Bank of India & Ors. reported in (2000) 7 SCC 120
wherein the Hon'ble Supreme Court held that:
"12. As to the object of Order 12 Rule 6, we
need not say anything more than what the
legislature itself has said when the said provision
came to be amended. In the Objects and Reasons
set out while amending the said Rule, it is stated
that "where a claim is admitted, the court has
jurisdiction to enter a judgment for the plaintiff and
to pass a decree on admitted claim. The object of
the Rule is to enable the party to obtain a speedy
judgment at least to the extent of the relief to which
according to the admission of the defendant, the
plaintiff is entitled". We should not unduly narrow
down the meaning of this Rule as the object is to
enable a party to obtain speedy judgment. Where
the other party has made a plain admission
entitling the former to succeed, it should apply and
also wherever there is a clear admission of facts in
the face of which it is impossible for the party
making such admission to succeed."
26. The plaintiff has further relied upon the judgment in the case of Karam
Kapahi & Ors. -vs Lal Chand Public Charitable Trust & Anr.
reported in (2010) 4 SCC 753 wherein the Hon'ble Supreme Court held
that the phrase "approbate and reprobate" is borrowed from Scots law
where it is used to express the common law principles of election,
namely, that no party can accept and reject the same instrument.
27. The plaintiff has further relied upon the judgment in the case of
Adhunik Ispat Limited -vs- Triveni Infrastructure Development Co.
Ltd. reported in (2011) 2 CHN 527 wherein the Coordinate Bench of
this Court held that there are two elements as to judgment on
admission: the first is the factum and then there is the inference drawn
from the fact and the liability consequent thereupon. If the factum is
established, the maker of the admission is afforded an opportunity to
explain it away or dispute the liability that is the corollary to the
admission. If the factum is not proved, the matter ends.
In the present case, the plaintiff has relied upon the confirmation
of accounts. The defendants have denied with regard to the same,
merely confirmations pertaining to the receipt of moneys by the
defendant nos. 1 and 2 from the plaintiff. These documents are not
record of transaction between the parties and do not record any
promise to pay the moneys mentioned therein by the defendant nos. 1
and 2 to the plaintiff. This is because these documents are not the
complete accounts between the plaintiff and the defendants but merely
confirmations of money receipt. No Tax Deduction at Source shown by
the plaintiff with respect to the said balance confirmations. The
defendants have taken specific defence that the said amount is not of
loan and is with regard to the investment in the real estate project and
the plaintiff has suppressed the agreement entered between the parties,
subsequently, the defendants have brought the said document on
record by way of supplementary affidavit when the defendants came to
know about the criminal case initiated by the plaintiff against the
defendants in which the plaintiff has disclosed the agreements, thus
the said judgments are distinguishable from the facts of the present
case.
28. The defendants have relied upon the supplementary affidavit, wherein
the defendants have disclosed the documents i.e. the FIR initiated by
the husband of the plaintiff against the defendant nos. 1 and 2, written
complaint, Memorandum of Understanding dated 30th December, 2006,
Memorandum of Understanding dated 2nd March, 2015 and the
Memorandum of Understanding dated NIL. In the complaint dated 1st
July, 2022 of the husband of the plaintiff against the defendant nos. 1
and 2 to the Inspector-in-charge, Bidhannagar Police Station by
making the following complaint:
"From around 2000 onwards, the
abovenamed accused persons Piyush Kumar
Bhagat and Raj Kishore Modi frequently came
regularly to my office at the abovementioned
address in Sector-5, Salt Lake and asked me to
give money for their business and joint projects
such as Club Town, Space Town, Vedic Village etc.
In 2001, I purchased a plot of 250 cottahs of
land at the site of Raj Kishore Modi and Piyush
Kumar Bhagat's upcoming "Vedic Village" project.
Once the project was becoming successful, in 2007
Raj Kishore Modi negotiated with me in my office to
enter into a joint venture in which he would
construct many bungalows on my plot of land as
part of the project (by this time Mr. Modi and Mr.
Bhagat had separated from their joint business
and Mr. Modi had taken over Vedic Village project).
In exchange for the rights to do so, I was allotted
12 (twelve) bungalows out of the new
constructions. However, I was never handed over
possession of said 12 bungalows even though the
construction was completed. Instead, Mr. Modi and
his team have sold my bungalows without my
express permission or knowledge, to other persons
who are now in possession of said property, Mr.
Modi has paid me a sum of Rs. 3.30 Crore, without
any clarification as to what the payment is for.
Despite multiple reminders and requests to give a
complete account and pay for the full value of my
12 bungalows (fair market value is around Rs. 25
Crore), Mr. Modi has refused to do so, indicating
that the vast majority of the proceeds from the sale
of my bungalows have been laundered away by
showing the sale price of bungalows at much lower
than market value and receiving payment from
buyers in cash.
Further, from around 2004, Piyush Kumar
Bhagat took money in the account of a number of
his companies, his personal accounts and also to
the account of his brother namely Mr. Manoj Kumar
Bhagat. As and when possible, I transferred a
hefty sum of amount several times, which totaled
an amount of Rs. 15.5 crore via
cheques/NEFT/RTGS bank transactions issued
from my Sector-5 Salt Lake office (details enclosed).
In exchange of the abovementioned transaction, the
accused persons namely Piyush Kumar Bhagat,
Manoj Kumar Bhagat, and their abovenamed
companies/concerns promised me and agreed to
sell and transfer flats, land plots, villas etc. in nis
various projects to my name vide Indentures,
agreements, allotment letters and various
Memorandums of Understanding (MOU).
However, till date, the said person did not
fulfill any of his aforementioned promises and
failed to transfer flats, land plots, villas etc. in his
various projects to my name vide Indentures,
agreements, allotment letters and various
Memorandum of Understanding (MOU) as promised
to my name, despite repeated requests by me over
a long span of time. I have also made repeated
requests to provide an account of money
transferred to them by me and how the funds are
being used but they have failed to provide me the
same. As per my knowledge, I believe that the
funds have been funneled and laundered by them
and their men and agents with nefarious purposes.
They have also refused to pay back my money with
accrued interest, despite repeated requests."
29. The defendants have also relied upon the Memorandum of
Understanding dated 30th December, 2006 entered between the
defendant no. 1 and the husband of the plaintiff wherein the husband
of the plaintiff agreed to jointly developed the Residential Project in the
proposed location wherein the responsibility of the defendant no. 1 is to
drive the entire process of land acquisition, construction including
marketing and selling of flats and the responsibility of the husband of
the plaintiff is restricted to provide necessary financial assistance for
completion of project. It is also agreed between the parties that both
would be entitled to equal share of revenue from the sale of the project
in terms of the building plan approval.
There are two other Memorandum of Understandings dated 2nd
March, 2015 and another is undated and in both the Memorandum of
Understandings only signature of one party is available and another
party is not available. The said agreements/ Memorandum of
Understandings relied by the husband of the plaintiff in the complaint
made to the police of Bidhannagar police station on the basis of which
an FIR has been initiated against the defendant nos. 1 and 2. In the
said complaint, the said documents are mentioned as follows:
"Details of money given along with supporting
bank statements and agreements."
In the supplementary affidavit, the defendant nos. 1 and 2 have
categorically stated that only after receipt of the notice under Section
41A of the Code of Criminal Procedure, 1973, the defendant nos. 1 and
2 came to know about the said documents and had obtained the same.
With regard to the aforesaid document, the plaintiff has taken the
defence that the Memorandum of Understanding dated 30th December,
2006 is not properly stamped due to which the plaintiff has not
disclosed the same in the plaint and in the present application and the
same cannot be relied upon. As regard to two Memorandum of
Understandings, it is stated by the Learned Counsel for the plaintiff
that the same has not been executed by both the parties. It is further
case of the plaintiff that the case initiated before the police and the
Memorandum of Understandings are connected with the Vedic project
and not with regard to the loan amount of Rs. 5,98,50,000/- and as
such the said documents cannot be taken into consideration in the
present case. The Learned Counsel for the defendants submits that the
plaintiff has suppressed the material facts by not disclosing the
criminal case initiated against the defendant nos. 1 and 2 as well as
agreements/ Memorandum of Understandings which the plaintiff has
relied upon in the criminal complaint. The defendants have relied upon
the judgment in the case of Bhaskar Laxman Jadhav & Ors. -vs-
Karamveer Kakasaheb Wagh Education Society and Ors. reported
in (2013) 11 SCC 531 wherein the Hon'ble Supreme held that it is not
for a litigant to decide what fact is material for adjudicating a case and
what is not material. It is the obligation of a litigant to disclose all the
facts of the case and leave the decision-making to the court.
In the present case, the husband of the plaintiff made a written
complaint against the defendant nos. 1 and 2 on 1st July, 2022 by
disclosing details of money, bank statements and agreements. The wife
of the plaintiff has presented the plaint on 27th June, 2023 and the
same was admitted on the same date but in the plaint, the plaintiff has
not disclosed the complaint and the documents relied by her husband
in the said police complaint.
30. The defendants have relied upon the judgment in the case of Balraj
Taneja & Anr. -vs- Sunil Madan & Anr. reported in (1999) 8 SCC
396 wherein the Hon'ble Supreme Court held that under Order 12 Rule
6 of the Code of Civil Procedure, 1908, the court can, at an
interlocutory stage of the proceedings, pass a judgment on the basis of
admissions made by the defendant. But before the court can act upon
the admission, it has to be shown that the admission is unequivocal,
clear and positive. In the said case, the Hon'ble Supreme Court had
relied upon the judgment in the case of Razia Begum -vs- Sahebzadi
Anwar Begum reported in AIR 1958 SC 886 wherein the Hon'ble
Supreme Court held that Order 12 Rule 6 has to be read along with the
proviso to Rule 5 of Order 8. That is to say, notwithstanding the
admission made by the defendant in his pleading, the Court may still
require the plaintiff to prove the fact pleaded by him in the plaint.
In the present case, the plaintiff has relied upon the confirmation
of accounts as admitted document and prayed for judgment and decree
upon admission. The defendants have taken a specific defence that the
defendants denied that the defendants had acknowledged the debt or
any sum payable in the balance confirmations executed by the
defendants for the financial years 2014-2015, 2017-2018, 2019-2020
and 2020-2021. He submits that the said documents are not record of
transaction between the parties and do not record any promise to pay
the specific amount by the defendants. It is the specific case that the
documents are not completed accounts between the plaintiff and the
defendants but merely confirmation of money receipts. The defendants
have a specific defence that the said amount is invested in the project
but the plaintiff has stated that the said investment is with regard to
Vedic Project which is no way connected with the present case.
Considering the above, this Court finds that there is no
unequivocal admission on the part of the defendants and the defence
taken by the defendants is to be decided during the trial whether the
amount is in connected with investment in any project or the
agreement is admissible in evidence or not.
31. The plaintiff has also prayed for an injunction restraining the
defendants from dealing with their property and the bank accounts
connected with PAN No. AGYPB3619C and PAN No. ADJPB3555F. As
per the case of the plaintiff, the defendant nos. 1 and 2 are involved in
circumstances and have numerous creditors in the market and the
defendant nos. 1 and 2 were real estate developers and have developed
several projects but have not any projects which is upcoming. The
plaintiff has also stated that the defendant nos. 1 and 2 and their
concerns are at the stage of insolvency. The plaintiff has relied upon
the judgment in the case of Tata Chemicals Limited -vs- Kshitish
Bardhan Chunilal Nath & Ors. reported in 2022 SCC OnLine Cal
3343 wherein the Hon'ble Division Bench of this Court held that there
cannot be an absolute proposition that in a money claim no order of
injunction or attachment or receiver could be made. Order 38 to Order
40 of the Code of Civil Procedure, 1908 does not restrict the power of
the court to pass any order that a court is empowered to pass just
because it is a money claim. We have already discussed the
circumstances when the court can exercise any of such power.
The plaintiff has relied upon the judgment in the case of Kashi
Math Samsthan & Anr. -vs- Shrimad Sudhindra Thirtha Swamy
& Anr. reported in (2010) 1 SCC 689 wherein the Hon'ble Supreme
Court held that it is well settled that in order to obtain an order of
injunction, the party who seeks for grant of such injunction has to
prove that he has made out a prima farcie case to go for trial, the
balance of convenience is also in his favour and he will suffer
irreparable loss and injury if injunction is not granted. But it is equally
well settled that when a party fails to prove prima facie case to go for
trial, question of considering the balance of convenience or irreparable
loss and injury to the party concerned would not be material at all, that
is to say, if that party fails to prove prima farcie case to go for trial, it is
not open to the court to grant injunction in his favour even if, he has
made out a case of balance of convenience being in his favour and
would suffer irreparable loss and injury if no injunction order is
granted.
In the present case, the plaintiff has only made an averment that
the defendant nos. 1 and 2 are not having any project which is
upcoming. The defendant nos. 1 and 2 and their concerns are at the
stage of insolvency and borrowed about over Rs. 1,000 crore from
market but other than the said statement, there is no document to
prove the contentions of the plaintiff. There is no prima facie case and
balance of convenience is made out by the plaintiff for grant of interim
order for security deposit.
32. Considering the above, this Court did not find any merit in the
application either to pass judgment and decree on admission or to pass
injunction for security deposit as prayed for by the plaintiff.
33. In view of the above, GA No. 1 of 2023 in CS No. 122 of 2023 is
dismissed.
(Krishna Rao, J)
