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IN THE HIGH COURT AT CALCUTTA
Jyotirmay Bhattacharya, Ishan Chandra Das, JJ.
Santosh Promoters Pvt. Ltd. & Ors. – Appellants
Versus
Intrasoft Technologies Ltd. – Respondents
F.M.A.2600 of 2016 With CAN 3088 of 2016 And CAN 7807 of 2016
Decided on : 09-12-2016
INJUNCTION - MONEY SUIT - PROPERTY TRANSFER RESTRAINT - ORDER 39 RULE 1(B) CPC - APPLICABILITY - DISTINCTION FROM ORDER 38 RULE 5 CPC.
Fact of the Case:
Plaintiff filed a suit for recovery of money due from the defendant, including rent, infrastructure user charges, service tax, and damages for delay in shifting from one floor to another in the leased premises. The plaintiff also filed an application for temporary injunction to restrain the defendant from transferring any of its properties during the pendency of the suit, alleging that the defendant intended to transfer its property to defraud the plaintiff and other creditors.
Finding of the Court:
The court held that an order of temporary injunction can be granted under Order 39 Rule 1(b) of the Civil Procedure Code (CPC) in a suit for realization of money, even if the property in respect of which the injunction is sought is not directly or indirectly involved in the suit, if it is proved that the defendant intends to transfer his properties to defraud his creditors.
Issues: Whether an order of temporary injunction can be granted under Order 39 Rule 1(b) of the CPC in a suit for realization of money, even if the property in respect of which the injunction is sought is not directly or indirectly involved in the suit.
Ratio Decidendi: The court distinguished between the provisions of Order 39 Rule 1(b) of the CPC and Order 38 Rule 5 of the CPC, which deals with attachment before judgment. The court held that while passing an order of temporary injunction, the court is not required to find out whether there is every possibility of passing a decree in favor of the plaintiff in the suit, but only whether a prima facie case has been made out by the plaintiff. On the other hand, while passing an order of attachment before judgment, the court has to consider the post-decree consequences and the standard of proof is higher.
Final Decision: The court allowed the appeal and set aside the impugned order of the trial court refusing to grant ad interim injunction. The court held that the plaintiff had made out a prima facie case for going to trial and that the balance of convenience and inconvenience was in favor of granting the injunction.
1. This First Miscellaneous Appeal is directed against an order dated 22nd December, 2015 passed by the Learned Civil Judge, (Senior Division), 2nd Court at Alipore in Money Suit No.11 of 2015 at the instance of the plaintiff/appellant.
2. The instant appeal was admitted for hearing on 26th June, 2016. After the appeal was admitted for hearing, an interim order was passed directing the parties to maintain status qua with regard to the possession of the parties in the suit property till the disposal of the application.
3. On the joint prayer made by the learned Counsel of the parties, we have decided to hear out this appeal on merit by dispensing with the requirement of filing paper book in this appeal as we were informed that all the papers which are necessary for disposal of the appeal are annexed to the application for vacating interim order, filed by the respondent.
4. Accordingly, we heard the learned Counsel appearing for the parties on the merit of this appeal.
5. Let us now consider the merit of the present appeal in the facts of the present case.
6. The plaintiff filed a suit for recovery of the outstanding amount to the tune of Rs.2,63,00,885/- (Rupees two crores sixty three lakh eight hundred eighty five) only due from and payable by the defendant on various heads and interest thereon @ of 24% per annum from the date of filing of the suit till recovery of the amount. Several other incidental reliefs have also been prayed for in the said suit.
7. According to the plaintiff, the defendant was a lessee in respect of the 5th floor of premises No.148 Rash Behari Avenue, Kolkata-700079, comprising of more or less 9,230 sq. ft. at monthly rental of Rs.2,49,210/- (Rupees two lakh forty nine thousand two hundred ten only) as lease rent and in addition to the monthly rent, a sum of Rs.2,43,890/- (Rupees two lakh forty three thousand eight hundred ninety) only was payable by the defendant to the plaintiff on account of infrastructure user charges per month.
8. It is also alleged by the plaintiff that apart from the monthly lease rent and the infrastructure user charges, the defendant was also required to pay service taxes on rent in view of Clause 3 of the lease agreement. The defendant has failed to pay the service charges resulting a sum of Rs.16,89,548/- (Rupees sixteen lakh eighty nine thousand five hundred forty eight) only became due and payable by the defendant to the plaintiff as on 31st December, 2013.
9. It is also alleged that for non-payment of service taxes on rent the defendant has also incurred liability to pay interest on the said dues @ 24% per annum upto 31st March, 2015. The plaintiff calculated the statutory charges which presently stands due on the aforesaid amount at Rs.22,72,069/- (Rupees twenty two lakh seventy two thousand sixty nine) only plus interest upto the date of filing of the suit.
10. It is also stated therein that the plaintiffs made payment of Rs.8,44,744/-(Rupees eight lakh forty four thousand seen hundred forty four) only on 24th December, 2013 and a further sum of Rs.8,44,744/- (Rupees eight lakh forty four thousand seen hundred forty four) only on 28th June, 2014, in discharge of its liability to pay various payments in terms of the lease agreement.
11. Thus, defendant’s liability to pay the balance amount will continue until such payment is made. It was also alleged in the plaint that the defendant also purchased the 3rd Floor of the said premises from the plaintiff and on such purchase being made the defendant’s tenancy in respect of 5th Floor stood determined. As per the agreement, the defendant was granted a fixed period for its shifting from the 5th Floor to the 3rd Floor. The defendant could not shift from the 5th Floor to the 3rd Floor within the stipulated period. There was 54 days delay in shifting from the 5th Floor to the 3rd Floor. As a result, the defendant became liable to pay damages at the rate of Rs.2,00,000/- (Rupees two lakh) only per day as per the ter
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