Tripura High Court
Aranyak Jewellers Pvt. Ltd vs Shyam Sundar Co. Jewellers Pvt. Limited on 11 February, 2025
IN THE HIGH COURT OF TRIPURA
AGARTALA
Commercial Appeal No.02 of 2024
1. Aranyak Jewellers Pvt. Ltd.,
a company incorporated under the
provisions of the Companies Act, 2013,
having its registered office at Subhash
Park, Khowai-799201, Tripura
2. Manojit Choudhury,
son of Monoj Kanti Choudhury, residing
at Subhash Park, Khowai-799201
3. Banasree Choudhury,
wife of Manojit Choudhury, residing at
Subhash Park, Khowai-799201
......... Appellant(s)
-Versus-
Shyam Sundar Co. Jewellers Pvt. Limited,
a company within the meaning of the
Companies Act, 2013, having its
registered office at 131, Rashbehari
Avenue, Suparno, Ground Floor,
Kolkata-700029 and also carrying out
its business from 44, Central Road,
Kaman Chowmuhani, Agartala-799001,
and 21/2, Hariganga Basak Road,
Agartala, Tripura, 799001
............Respondent(s)
For the Appellant (s) : Mr. A. Singh, Adv.
Mr. H. Sarkar, Adv.
Mr. A. Das, Adv.
For the Respondent (s) : Ms. S. Shah, Adv.
Mr. K. Roy, Adv.
Mr. K. Shah, Adv.
Mr. R. Chakraborty
Date of hearing & delivery : 11.02.2025
of Judgment & order
YES NO
Whether fit for reporting : √
Page 2 of 9
HON'BLE THE CHIEF JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT AND ORDER (ORAL)
Heard Mr. A. Singh, learned counsel appearing for the
appellants and Ms. S. Shah, learned counsel appearing for the
respondent.
[2] On the last occasion, Mr. Singh, learned counsel came
forward with a constructive proposal that the appellants were ready
and willing to secure the amount of Rs.2,41,00,000/- [Rupees Two
Crore Forty One lakh] which is the subject matter of the impugned
order of injunction passed by the learned Commercial Court, by way
of a bank guarantee and deposit of gold ornaments of equivalent
value before the learned trial court without prejudice to their right of
defence in the main proceeding.
[3] In view of above said submission made on the last
occasion, today the authorised representative of the appellant No.1
has submitted one affidavit and in turn, from the side of the
respondent also their authorised representative has submitted one
affidavit whereby both the parties have come to an amiable
settlement with the terms and conditions reflected in the later part of
this order.
[4] The appeal has been filed under Section 13(1A) of the
Commercial Courts Act, 2015 by challenging the order dated
14.08.2024 passed by the learned commercial Court, West Tripura,
Agartala in CM(INJ)03 of 2024 arising out of Commercial Suit No.03 of
2024.
[5] The respondent-plaintiff filed the suit praying for a money
decree of Rs.7,05,23,740/- as principal amount under different
counts and further a decree of Rs.3,00,00,000/- as damages or for
any other sum as on enquiry the court finds due and payable to the
respondent by the appellants and also praying for perpetual injunction
restraining the appellant-defendants, their men and agents from
exploiting the name/trade names of the plaintiff for a business as
similar to that of plaintiff and also for restraining them from offering
for sale of gold jewellery bearing the hallmark of the plaintiff to the
customers and from inducing any of the plaintiff's customer and
posing before them with the trade name/jewellery of the plaintiff and
representing them to be of the plaintiff and also from doing any other
acts, deeds and things directly or indirectly which is in conflict with
the interest of the plaintiff.
[6] The allegations of the respondent-plaintiff basically are that
the plaintiff is a reputed firm doing jewellery business since from the
time of their predecessor, late Gour Chandra Saha having their
business points at various parts of the State of Tripura and also at
Kolkata, West Bengal. In 2005, the appellant-defendants entered into
an oral agreement to act as a franchisee of the plaintiff by setting up
a shop at Khowai under certain terms and conditions including the
conditions that the shop would bears the name of Shyam Sundar
Company Jewellers at a conspicuous space along with any other name
as the defendant-appellant No.2 chooses to use and the defendant-
appellant No.2 would not sell with any other jewellery brand from said
showroom and they would also contribute proportionately in the
advertisement and publicity expenses of the brand of the respondent-
plaintiff.
[7] Accordingly, the respondent-plaintiff made capital
investment in the said business and gold ornaments would be supplied
to the appellant-defendants by the respondent-plaintiff on approval
basis but ultimately it was found that the defendants were deviating
from such mutually agreed terms and conditions and even started
issuing invoices without mentioning the name of Shyam Sundar
Company Jewellers Private Ltd. therein and also attempted to open
another shop. It is also alleged that from 2019, the defendant No.1
started slowly disassociating themselves from the plaintiff by not
contributing proportionately towards advertisement and promotion of
the business and also by not actively participating in the schemes
launched by the plaintiff and keeping a large amount of bills as dues.
It is also alleged that from June, 2020 the tax invoices of the
appellant-defendants are being issued in the name of Aranyak
Jewellers Pvt. Ltd. Further it is the allegation of the plaintiff that the
defendants were attempting to open a shop at Kaman Chowmuhani
near the shop of plaintiff with an intention to sell the jewellery of the
plaintiff from that shop in breach of that oral agreement.
[8] Mainly with such allegations amongst other allegations, the
plaintiff instituted the suit with above said reliefs and also prayed for
temporary injunction before the learned Commercial Court, West
Tripura, Agartala which was numbered as Civil Misc.(Injunction) 03 of
2024 arising out of Commercial Suit No.03 of 2024.
[9] Learned trial court on 29.06.2024 passed an ex-parte
temporary injunction, inter-alia, with the following order:
"27. Considering the relief as prayed by the Plaintiff, and
the undisputed claim to the tune of Rs.2,41,86,671/-
Hence
It is directed that the defendants CC Bank Account being
No.38194756280 maintained with State Bank of India,
Khowai Branch, & OD Account No.40476003353
maintained with State Bank of India, Dharmanagar
Branch shall stand freezed to the extent of i)
1,21,00,000/- and ii) 1,20,86,671/- respectively if any or
whatever amount is lying below the said amount till
disposal of the instant application of temporary
injunction or further order or orders and the defendant
are prohibited from withdrawing the amount by any
means and modes including electronic modes and the
Branch Manager of the aforesaid Bank Account are
directed to act according to aforesaid order. Defendants
are directed to show cause within 10 days from the date
of communication of this order as to why the application
for temporary injunction filed by the plaintiff shall not be
granted against them.
Plaintiff to comply the provision of order xxxix rule 3(a)
and 3(b) of the code of civil procedure at once. Apart
from above plaintiff is directed to serve copy of this order
to Both the Bank Manager. Office is also directed to
inform both Bank Manager by serving copy of this order."
[10] Against the said order, the respondent filed one petition
under Order XXXIX Rule 4 of the CPC for vacating the same and on
hearing, the learned trial court rejected the same vide order dated
14.08.2024. Being aggrieved by the said order, the appellants
preferred this appeal.
[11] Now, as indicated above, during the course of hearing, one
affidavit is submitted by the appellants in this Court incorporating the
following terms and conditions:
(i) The appellant-defendant No.1 shall secure the
claimed amount of Rs.2,41,86,671/- [Rupees Two crores
Forty One lakhs Eighty Six thousand Six hundred
Seventy One only] without prejudice to their rights and
contentions in the original suit and in the present
appeal.
(ii) To secure such amount, the appellant No.1 will
submit bank guarantee of Rs.50,00,000/- [Rupees Fifty
lakhs only] which would remain deposited in the learned
trial court and such bank guarantee shall be obtained by
utilizing the sum lying in the aforesaid frozen bank
accounts.
(iii) The balance sum of Rs.1,91,86,671/- [Rupees One
crore Ninety One lakhs Eighty Six thousand Six hundred
Seventy One only] will be secured by deposit of gold
ornaments which were purchased by the appellant No.1
from the respondent and the same shall be kept in a
locker maintained in any nationalized bank.
[12] The authorized representative of the respondent, namely
Sri Sourajit Roy by submitting his affidavit stated that the impugned
order may be varied or modified to incorporate that the defendant-
appellants through the defendant No.1 would secure the said sum of
Rs.2,41,86,671/- [Rupees Two crores Forty One lakhs Eighty Six
thousands Six hundred Seventy One only] by agreeing with the
aforesaid terms and conditions. It is further stated in the affidavit that
the gold ornaments may be accepted as a security only after
identification by the personnel of the respondent as the same has
been lying in the custody of the appellant No.1 for almost a year and
to ascertain the purity of such gold ornaments by appointing one
expert Valuer on the basis of the price of the gold ornaments
prevailing. It is further urged in the affidavit that the lockers where
the ornaments are to be kept may be maintained with any
nationalized bank in the name of the advocate on record appearing for
the parties who would only be allowed to operate the same and the
bank guarantee may be placed before the Registrar of the learned
Commercial Court with a Xerox copy of the same furnished to the
advocate of the respondent.
[13] We have considered the submissions of the learned counsel
of the parties with reference to the above said terms and conditions
but we are of the view that the gold ornaments shall be kept by
opening a locker in any nationalized bank at the instance of the
learned District & Sessions Judge, West Tripura, Agartala and such
gold ornaments shall be kept in safe custody of the learned trial court.
In view of the above and also in view of the aforesaid mutually agreed
terms and conditions and also considering the facts and circumstances
involved in the suit as well as in the appeal, the impugned order dated
14.08.2024 passed by the learned Commercial Court, West Tripura,
Agartala is hereby set aside with a further directions that:
(i) The appellant No.1 shall deposit bank guarantee of
Rs.50,00,000/- [Rupees Fifty lakhs only] before the learned
trial court within 2[two] weeks from the date of receipt of
copy of this order and such document(s) of bank guarantee
shall also be kept in a proper and safe custody of the learned
trial court to be renewed from time to time during pendency
of the suit. The appellants are given liberty to obtain such
bank guarantee utilising the sum lying in the frozen accounts
of the respondent.
(ii) The appellant No.1 shall also ensure deposit of gold
ornaments worth of Rs.1,91,86,671/- [Rupees One crore
Ninety One lakhs Eighty Six thousand Six hundred Seventy
One only] from the ornaments which were purchased/taken
by the appellant No.1 from the respondent within 2[two]
weeks from the date of receipt of copy of this order and such
gold ornaments will be kept in the safe custody of the
learned trial court in a bank locker as indicated above.
(iii) After such gold ornaments are deposited, the learned
trial court will appoint one suitable Valuer experienced in this
matter for ascertaining both the purity and value of such
ornaments and the learned trial court shall take an
endeavour to complete the said process not later than 6[six]
weeks from the date of receipt of copy of this order. While
appointing such Valuer, learned trial court may take into
consideration the names of such dependable valuer(s), if
any, as proposed by the parties.
(iv) After the aforesaid directions are complied with, the
learned trial court will modify the order dated 29.06.2014
accordingly resorting to the relevant provisions of law and
will also take endeavour to dispose of the main suit
expeditiously.
[14] With such observations and directions, this appeal is
disposed of accordingly.
Copy of this order be communicated to the learned Trial
Court by the Registry immediately.
No order as to costs.
Pending application(s), if any, also stands disposed of.
JUDGE CHIEF JUSTICE
Sujay
SUJAY GHOSH Digitally signed by SUJAY GHOSH
Date: 2025.02.19 12:43:56 +05'30'
