Limited vs Karnani Constructions And on 3 February, 2026

Author: Aniruddha Roy

Bench: Aniruddha Roy

               In the High Court at Calcutta
                   Commercial Division
                      Original Side
      Judgment (2)

PRESENT :
THE HON'BLE JUSTICE ANIRUDDHA ROY


                                          IA No. GA-COM/4/2025
                                           In CS-COM/649/2024

                                       STRONG TOWERS PRIVATE
                                              LIMITED
                                                 VS
                                     KARNANI CONSTRUCTIONS AND
                                                ORS.

                                                  AND

                                          IA No. GA-COM/4/2025
                                           In CS-COM/650/2024

                                         KAMALESH MOHTA
                                                 VS
                                     KARNANI CONSTRUCTIONS AND
                                                ORS.



For the plaintiffs             : Mr. Sourojit Dasgupta, Adv.
                                 Mr. Aasish Choudhury, Adv.
                                 Ms. Uma Bagree, Adv.


For the defendants             : Mr. Rachit Lakhmani, Adv.
                                 Ms. Pooja Sah, Adv.


Heard on             : February 3, 2026

Judgment on          : February 3, 2026
                       [In Court]
                                       2


ANIRUDDHA ROY, J :

In Re: IA No. GA-COM/4/2025 in CS-COM/649/2025

FACTS:

1. In a commercial suit for recovery of money lent and advanced

by the plaintiff to the defendant, this is the second

interlocutory application filed by the plaintiff.

2. The defendants have not filed their written statement within

the mandated period under the provisions of the amended

Order VIII Rule 1 of Code of Civil Procedure, 1908 (for short

'CPC') and as such the defendants have forfeited its right to

file written statement.

3. The consistent case of the plaintiff in both the interlocutory

applications and in the plaint annexed at page no.19 to the

instant application, is that money has been lent and advanced

to the defendants by the plaintiff pursuant to the request

made by the defendants for a total sum of Rs.74,00,000/-.

The money was transferred from the bank account of the

HDFC bank of the plaintiff to the Indian Overseas Bank of the

defendants at Rajasthan during the period June 10, 2010

and January 5, 2011. The defendants have issued balance

confirmation starting from March 31, 2011 till March 31,

2023. The balance confirmation statements were exchanged

by and between the parties and was approved by the

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

defendants. The defendants have also in acknowledgment of

receiving payment from the plaintiff, deposited Tax Deducted

at Source (TDS).

4. Since the defendants defaulted in paying back the amount the

plaintiff served the demand notice dated May 3, 2023

claiming the principal along with interest.

5. In the backdrop of these facts, the first interlocutory

application was moved when upon hearing the parties

coordinate bench passed its judgment and order dated

September 10, 2024 of page no. 38 Annexure 'B' to the

petition.

6. The coordinate Bench had observed and directed as under:-

"21. Considering the submissions made by the Counsels for the respective parties and after perusing the materials on record, this Court finds that the plaintiff has made out a prima facie case and balance of convenience and inconvenience are in favour of the plaintiff. It is found that the defendants have not denied with regard to receipt of an amount of Rs.74,00,000/- from the plaintiff but the defendants had not brought any evidence on record to prove that the said amount has been returned to the plaintiff. On the other hand from the confirmation of accounts exchanged between the parties as well as TDS deduction, supports the case of the plaintiff. The defendant has also not brought any document on

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

record to prove that the plaintiff was the partner of the defendant nos. 1, 2 and 3.

22. In view of the above, the defendant nos. 1, 2 and 3 are restrained from dealing with the account No. 160802000000143 maintained with the Indian Overseas Bank, Rani Bazar, Bikaner, Rajasthan without keeping aside an amount of Rs. 74,00,000/- till the disposal of the suit. The defendants no.1, 2 and 3 are also restrained from transferring or alienating or creating any third party interest with respect to Flat No. 409, Kamal Apartments, C-6, SJS Highway, Bani Park, Jaipur-302016 till the disposal of the suit.

23. As regard the application filed by defendant no.4, this court finds that the defendant no. 4 has retired from the partnership from the defendant no. 1 company in the month of April, 2015 and the defendants nos. 1, 2 and 3 have also admitted that the defendant no.4 is not a partner of the defendant no. 1 company and had also retired from partnership of the defendant no.1 and thus the name of the defendant no.4 is deleted from the cause title of the plaint.

24. The department is directed to make necessary amendments by deleting the name of the defendant no.4 from the cause title of the plaint within two weeks.

25. GA-COM No. 1 of 2024 and GA-COM No. 2 of 2024 are disposed of."

7. The defendants did not prefer any appeal from the said

judgment and order dated September 10, 2024. The said

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

judgment and order has achieved its finality. The coordinate

Bench by its said judgment and order passed an order of

injunction restraining the defendants from dealing with a

particular bank account maintained with Indian Overseas

Bank, Bikaner, Rajasthan without keeping aside a sum of

Rs.74,00,000/- till disposal of the suit. The defendants were

also restrained from transferring, alienating and/or creating

any third party interest with respect to an immovable property

being plot no. 409, Kamal Apartments, C-6, SJS Highway,

Bani Park, Jaipur till disposal of the suit.

8. The plaintiff found that the claim of the plaintiff was not

secured in terms of the direction made by the coordinate

Bench, as mentioned above, and the plaintiff filed the instant

second interlocutory application upon discovery of further

bank accounts of the defendants so that the claim of the

plaintiff can be secured by making further direction of this

Court. Accordingly, the instant second application has been

filed.

SUBMISSIONS:

9. Mr. Sourojit Dasgupta, learned Advocate appearing for the

plaintiff/petitioner refers to the averments of the defendants

made in its affidavit-in-opposition. Specifically he refers to

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

paragraph no.9 to the affidavit-in-opposition and submits

that the defendants on oath stated the credit balance of the

defendants with the said Indian Overseas Bank on the day the

coordinate Bench passed its order on September 10, 2024

was approximately Rs.82,486/- and as on the date of the said

order of injunction when was passed the balance lying was

Rs.9300/-. The supportive bank statements are also annexed

to the affidavit-in-opposition being Annexure 'C' at page 48

thereto, to which learned Advocate for the petitioner has also

drawn attention of this Court.

10. Learned Advocate Mr. Sourojit Dasgupta, for the plaintiff then

has drawn attention of this Court to the specific averments

made in paragraph 10 of the affidavit-in-opposition and

submits that another immovable property is there of the

defendants measuring about 44.44 sq. yard located at

premises no. 67-68, Narendra Nagar, Jaipur along with

ground plus three storied building standing thereon. The

defendants tendered the said property by way of a security.

11. Mr. Sourojit Dasgupta, learned Advocate submits that there is

no legal sanctity behind the said property and the specific

statement has been made by the petitioner on oath in its

affidavit-in-reply, specifically in paragraph nos. 6, 7 and 13

thereto, that the plaintiffs are not willing to accept the said

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

property as a security. In support of such contention Mr.

Dasgupta, learned Advocate has placed reliance upon

paragraph nos. 6, 7, 9 and 13 from his clients affidavit-in-

reply affirmed on November 27, 2025.

12. Mr. Dasgupta, learned Advocate then submits that upon the

instant second interlocutory application being moved an order

was passed by a coordinate Bench on July 31, 2025 directing

the defendants to operate all bank accounts subject to

keeping aside a sum of Rs.94,00,000/- until further orders.

The quantum of Rs.94,00,000/- was arrived at taking into

account both the suits filed by the plaintiffs on the identical

cause of action against the same defendants being the instant

suit and CS-COM/650/2024.

13. Being aggrieved by the said order dated July 31, 2025 the

defendants carried out two separate appeals in two suits

being APOT/254/2025 and APOT/255/2025 when the

Hon'ble Division Bench by its order dated October 29, 2025

observed and held as under:

"We, therefore, see that the matter is pending before the Learned Single Judge who directed exchange of affidavits. We are told that affidavits have already been exchanged by the parties.

We are not inclined to interfere at this stage since the matter is yet to be finally decided by the Learned Single Judge. The Learned Single Judge has recorded

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

reasons for not accepting the supplementary affidavit filed by the defendants. The defendants will be at liberty to file further affidavit before the Learned Single Judge clarifying the doubts/queries of the Learned Single Judge, as recorded in the impugned order. Such affidavit may be filed within a fortnight from date. Reply thereto, if any, be filed by the plaintiff within a week thereafter. Let the matter be listed before the Learned Single Judge on November 19, 2025 as directed by His Lordship.

The Learned Single Judge is requested to decide the issue involved in the said two applications afresh, without being influenced by any observation in the order impugned in these appeals.

The appeals and the connected applications are disposed of."

14. Referring to the Division Bench order dated October 29,

2025, Mr. Sourojit Dasgupta, learned Advocate appearing for

the plaintiff submits that, an order of injunction be passed

restraining the defendants from operating its bank accounts

mentioned in paragraph no.11 to the instant application to

secure the claim of the plaintiff.

15. Mr. Rachit Lakhmani, learned Advocate appearing for the

defendants submits that questioning the maintainability of

the suit the defendants have taken out an application being

IA No. GA-COM/5/2025.

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

16. By an order dated September 17, 2025, the application was

dismissed by coordinate Bench. No appeal has yet been

carried out.

17. Learned Counsel for the defendants submits that the

defendants are intended to prefer a Special Leave Petition

from the said order dated September 17, 2025.

18. Mr. Lakhmani, learned Advocate appearing for the defendants

then submits that the orders already passed injuncting the

defendants from using the bank accounts without keeping

apart the claim of the plaintiff amounts to an order for

attachment before judgment. Order XXXVIII Rule 5 of Code

of Civil Procedure provides for attachment before judgment.

Several conditions are laid down which are specifically to be

satisfied first before passing such an order. In the facts of this

case, no such circumstance exists, neither pleaded by the

plaintiff in its application.

19. In support, he has relied upon a decision of the Hon'ble

Division Bench In the matter of: Pravesh Chandra Kapoor

Vs. Kohinoor Steel Private Limited reported at (2010) 3

CHN 448 (Cal) (DB) : AIR 2011 Cal 29.

20. Learned Advocate, Mr. Lakhmani then refers to Annexure B

at page 24 from the supplementary affidavit affirmed by the

defendants on July 29, 2025. Relying upon the said

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

valuation report, he submits that the defendants have already

offered to secure the claim of the plaintiff by inviting an order

of injunction on the immovable properties mentioned in the

said document, without prejudice to their rights and

contentions in the suit.

21. According to the learned Advocate for the defendants, the said

property referred to in the said document comprises of a

pieces of lands on which multiple shop-rooms are there. The

valuation report shows that the value for such land has been

evaluated by the said Government at Rs.15,35,670/- and the

available value will be Rs.51,19,500/-. He submits that

without prejudice to the rights and contentions of the

defendants, if an order of injunction is passed on this

property, there shall be sufficient bona fide on the part of the

defendants to secure the claim in the suit.

22. Learned Advocate for the defendants further submits that if

an order of injunction is passed in respect of the bank

account mentioned in paragraph 11 to the instant

application, then the entire running business of the

defendants will be jeopardised, as the regular day to day

expenses for running the business are being incurred out

from all these bank accounts.

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

23. In the light of above, Mr. Lakhmani, learned Advocate

appearing for the defendants submits that the order of

injunction already passed in the instant application dated

July 31, 2025 be vacated and/or suitably modified so that

the defendants can run their business.

DECISION:

24. After considering the rival contentions of the parties and on

perusal of the materials on record, prima facie, it appears to

this Court that a sum of Rs.74,00,000/- was transferred from

the bank account of the plaintiff to the bank account of the

defendants. Describing such transfer of amount to be a

loan/advance provided by the plaintiff to the defendants, the

plaintiff has demanded payment from the defendants, as the

defendants have committed default in paying off the dues to

the plaintiff.

25. When the order of injunction was passed on the bank account

by the coordinate Bench in the first interlocutory application

on September 10, 2024 upon hearing the parties, it was

never pointed out by the defendants that inadequate balance

was available at the relevant bank account upon which the

order of injunction was issued, as would be evident from the

statement made in paragraph 9 to the affidavit in opposition

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

filed by the defendants. This clearly shows a mala fide on the

part of the defendants with an attempt to defraud its creditor.

26. Through the supplementary affidavit filed by the defendants,

affirmed on July 29, 2025, the defendants have disclosed the

valuation report being Annexure-B at page 24 thereto. In the

affidavit in reply, the specific stand taken by the plaintiff is

that in so far as the said property measuring about 44.44

square yard area is concerned, the property is covered under

an unapproved scheme of the State and the legality of the

ownership of the defendants on the said property including

the construction carried out thereupon, have been questioned

by the plaintiff in its affidavit in reply.

27. The ratio of the judgment In the matter of: Kohinoor Steel

Private Limited (supra) is clearly distinguishable on facts.

While reading paragraph 23 of the said judgment wherein,

the Hon'ble Division Bench has analysed the legal provisions

in the light of the existing facts therein, it would be evident

that the allegations made by the plaintiff in its application

there, were not sufficient to satisfy the tests under Order

XXXVIII Rule 5 of CPC. In the facts of the instant case, it is

otherwise. When the order of injunction was passed by the

coordinate Bench on September 10, 2024 on a particular

bank account of the defendants, after hearing the parties, it

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

was never pointed out by the defendants that a meagre

amount of few thousands were lying at that bank account

whereas the claim of the plaintiff was to the tune of

Rs.74,00,000/-. Such stand of the defendants would further

be evident from the statement made in paragraph 9 of the

affidavit in opposition filed by the defendants in the instant

application. The documents submitted by the defendants at

page 24 to the supplementary affidavit affirmed by the

defendants on July 29, 2025, has also been controverted by

the plaintiff with a specific averment made in its affidavit in

reply that the said property belongs to an unapproved scheme

of the State and as such, the legality of the alleged ownership

and title of the defendants along with alleged construction

thereupon has been denied by the plaintiff. Therefore, prima

facie, sufficient presumption is there in favour of securing the

claim of the plaintiff. Thus, the ratio laid down by the Hon'ble

Division Bench In the matter of: Kohinoor Steel Private

Limited (supra) would not apply in the facts of this case.

28. This is a commercial suit. The defendants have forfeited their

right to file written statement. Prima facie, it appears to this

Court that money was lent and advanced by and was

transferred from the bank account of the plaintiff to the

defendants. The defendants have deposited TDS. The

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

defendants have issued balance confirmation. Despite there

being an order of injunction passed in the first interlocutory

application dated September 10, 2024, the defendants did

not carry out any appeal therefrom and the same has attained

its finality but still the claim of the plaintiff has not been

secured by the defendants by setting apart the claim of the

plaintiff in the subject bank account as directed by the

coordinate Bench. On a prima facie assessment of this Court,

it appears that the claim of the plaintiff is required to be

protected and there has been lack of bon fide on the part of

the defendants to protect the claim of the plaintiff.

29. In view of the foregoing reasons and discussions, the interim

order already passed in this application dated July 31, 2025

stands modified with further directions as follows :-

a) The defendants shall forthwith secure a sum of

Rs.74,00,000/- with the learned Registrar, Original

Side positively within a period of three weeks from

date;

b) In the event, such deposit is made by the defendants,

the Registrar, Original Side shall keep the same in a

fixed deposit account with any nationalized bank of

his/her choice with an immediate effect and shall

prepare a report and keep it in the original suit file.

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

Fate of the deposit shall abide by the final result in

the suit;

c) In the event, the defendants fail to deposit the said

sum of Rs.74,00,000/- with the learned Registrar,

Original Side, in addition to the order of injunction

already passed on July 31, 2025, there shall be an

order of injunction restraining the defendants

and/or each of them and/or their men, agents,

servants, assigns from dealing with and/or

transacting the bank accounts mentioned in

paragraph 11 to the instant application without

setting apart a sum of Rs.74,00,000/- in any

manner whatsoever until disposal of the suit;

d) Further, in the event, the defendants fail to secure

the said sum of Rs.74,00,000/- as directed above,

the defendants shall forthwith by way of an affidavit

shall disclose, if any other bank accounts in addition

to what has been stated in this petition is there which

are being operated by the defendants and other

details of properties, if any, with supportive

documents positively within two weeks after the time

frame made for the deposit to be made by the

defendants with the Registrar, Original Side;

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

e) Save as above, if the defendants secure the said sum

of Rs.74,00,000/- with the Registrar, Original Side

within the time period directed above, the defendants

shall be at liberty to apply before this Court for any

modification and/or variation of this order depending

upon the facts and circumstances at the relevant

point of time.

30. With the above observations and directions, the instant

petition IA No. GA-COM/4/2025 stands disposed of, without

any order as to costs.

In Re : IA No. GA-COM/4/2025 in CS-COM/650/2024

1. The plaintiff in the instant suit is different and the defendants

are same as in CS-COM/649/2024.

2. On reading of the plaint and the pleadings filed and

exchanged by and between the parties, it appears to this

Court that the transaction is also identical with that of CS-

COM/649/2024. Here also money has been lent and

advanced by the plaintiff to the defendants by way of transfer

of fund from the bank account of the plaintiff to the bank

account of the defendants.

3. Coordinate Bench has also passed an identical order of

injunction dated September 10, 2024. No appeal has been

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

carried out. The principal claim in the plaint is for a sum of

Rs.20,00,000/-. Interest has been claimed by the plaintiff.

The further bank account has been disclosed in paragraph 11

to the instant application by the plaintiff on which the plaintiff

now seeks an order of injunction, identically as prayed for in

IA No.GA-COM/4/2025 in CS-COM/649/2024.

4. After considering the submissions made on behalf of the

parties which are identical and common submissions made in

both the suits and in both the interlocutory applications, this

Court is of the view that identical order and direction can be

passed.

5. Accordingly, the order of injunction dated July 31, 2025

stands varied with further direction as follows:-

a) The defendants shall forthwith secure a sum of

Rs.20,00,000/- with the learned Registrar, Original

Side positively within a period of three weeks from

date;

b) In the event, such deposit is made by the

defendants, the Registrar, Original Side shall keep

the same in a fixed deposit account with any

nationalized bank of his/her choice with an

immediate effect and shall prepare a report and keep

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

it in the original suit file. Fate of the deposit shall

abide by the final result in the suit;

c) In the event, the defendants fail to deposit the said

sum of Rs.20,00,000/- with the learned Registrar,

Original Side, in addition to the order of injunction

already passed on July 31, 2025, there shall be an

order of injunction restraining the defendants

and/or each of them and/or their men, agents,

servants, assigns from dealing with and/or

transacting the bank accounts mentioned in

paragraph 11 to the instant application without

setting apart a sum of Rs.20,00,000/- in any

manner whatsoever until disposal of the suit;

d) Further, in the event, the defendants fail to secure

the said sum of Rs.20,00,000/- as directed above,

the defendants shall forthwith by way of an affidavit

shall disclose, if any other bank accounts in

addition to what has been stated in this petition is

there, which are being operated by the defendants

and other details of properties, if any, with

supportive documents positively within two weeks

after the time frame made for the deposit to be made

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.

by the defendants with the Registrar, Original Side

and

e) Save as above, if the defendants secure the said sum

of Rs.20,00,000/- with the Registrar, Original Side

within the time period directed above, the

defendants shall be at liberty to apply before this

Court for any modification and/or variation of this

order depending upon the facts and circumstances

at the relevant point of time.

6. With the above observations and directions, the instant

petition IA No. GA-COM/4/2025 stands disposed of, without

any order as to costs.

(ANIRUDDHA ROY, J.)

mg/Sbghosh/RS

IA No. GA-COM/4/2025 In CS-COM/649/2024 And IA No. GA-COM/4/2025 In CS-COM/650/2024 A.R., J.