Calcutta High Court
Surender Kumar Goyal vs Skipper Limited on 2 May, 2025
Author: Soumen Sen
Bench: Soumen Sen
OC-12-13
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
[Commercial Division]
AO-COM/33/2024
WITH CS-COM/562/2024
IA NO: GA-COM/1/2024
SURENDER KUMAR GOYAL
VS
SKIPPER LIMITED
APOT/377/2024
SURENDER KUMAR GOYAL ALSO KNOWN AS
SURENDER AGARWAL
VS
SKIPPER LIMITED
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
AND
The Hon'ble JUSTICE BISWAROOP CHOWDHURY
Date : 2nd December, 2024.
Appearance:
Mr. Debnath Ghosh, Sr. Adv.
Mr. Arijit Bardhan, Adv.
Mr. Sarosij Dasgupta, Adv.
Mr. Biswaroop Mukherjee, Adv.
Ms. Saheli Bose, Adv.
...for the appellants
Mr. Anirban Ray, Sr. Adv.
Mr. Sayantan Bose, Adv.
Mr. Shounak Mukhopadhyay, Adv.
Ms. Manisha Das, Adv.
Ms. Priyanka Gope, Adv.
...for the respondents.
The Court: The appeal is arising out of an order passed on 27 th
September, 2024 in an application for judgment and decree upon admission of
sum of Rs.63,92,425.50 along with further interest at the rate of 24% per
annum from 1st November, 2023 till realisation or in the alternative, a direction
upon the defendant to furnish security of sum of Rs.63,92,425.50. The claim
is arising out of supply of PVC pipes and fittings of various specifications to the
defendant on the basis of oral orders placed by the defendant.
We have read the judgment of the Learned single Judge carefully. It appears
that in the mediation proceeding the appellant had agreed to pay a sum of
Rs.25,00,000/-. Although, confidentially is attached to the mediation
proceeding it appears that in the pending proceeding there is a candid
disclosure on the part of the defendant to pay Rs.25,00,000/- which however
the plaintiff did not accept. The reason for a reduced claim as it appears from
the impugned order is that the plaintiff had supplied expired, solvent and
defective material, to the defendant which de hors the business agreement
entered into between the parties. Notwithstanding such defence, the appellant
had agreed to pay a sum of Rs.25,00,000/- as full and final settlement. We feel
that the defendants should be given liberty to prove that for the rest of the
claims the appellant may have a defence at the trial. The learned single Judge
in paragraph 28 of the judgment observed that Court is not inclined to pass
judgment and decree upon admission. The learned Single Judge however
allowed security directed the defendant to secure a sum of Rs.38,63,500/-
relying upon Order XXXVIII Rule 5 of the Code of Civil Procedure and in
exercise of power under Section 151 of the Code of Civil Procedure. A question
arises whether the plaintiff was able to fulfil the conditions under Order
XXXVIII Rule 5 of the Code of Civil Procedure. The learned Single Judge has
recorded that although the claim of the plaintiff against the defendant was for a
sum of Rs.2,69,29,072.72 admittedly payments have been made by the
appellant defendant from time to time and the plaintiff claims on reconciliation
of account of that sum of Rs.38.63,506.60/- is due and payable by the
defendant to the plaintiff. This fact itself shows that the defendant is not
insolvent. Moreover there was no material available before the learned Single
Judge to show that any of the conditions under Order XXXVIII Rule 5 stand
fulfilled. In exercising power under Section 151 of the Code of Civil Procedure
to direct security relying upon the judgment in Rahul S. Shah reported in
(2021) 6 SCC 418 it has been seen whether the money claim is impeachable
and the defendant would not have the means to pay such amount in the event
of a decree being passed in favour plaintiff. It is also trite law when specific
provisions have been made in the Code of Civil Procedure for specific reliefs.
Ordinarily the court shall not invoke its inherent power. It has to be exercised
ex debito justitiae. Even if we apply the principle laid down in Rahul S. Shah
reported in (2021)6 SCC 418, it could have been for a sum of Rs.25,00,000/-
and the rest should stand to trial and hence the Court could not have directed
security of the entire sum even in exercise of power under Section 151 of the
Code of Civil Procedure. However, there was no cross objection with regard to
furnishing of security. Hence we modify the interim order by directing the
defendant to secure a sum of Rs.25,00,000/- with the learned Registrar,
Original Side within two weeks from date. In default, the said amount shall be
immediately executable. On receipt of the said amount, the learned Registrar,
Original Side shall invest the same in a suitable interest bearing fixed deposit
account yielding highest returns with a nationalised bank with auto renewal till
the disposal of the suit.
Both the appeal and applications are disposed of.
(SOUMEN SEN, J.)
(BISWAROOP CHOWDHURY, J.)
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