The main legal point established in the judgment is that for the court to grant a relief under Order XXXVIII Rules 5 and 6 of the Code of Civil Procedure, 1908, there must be an element of certainty of success of the plaintiff's claims, and the court should consider the conduct of the defendant and the likelihood of the eventual decree not being satisfied by the defendant.

JUDGMENT

Debangsu Basak, J. - In a suit for recovery of price of goods sold and delivered, the plaintiff seeks an order of judgment on admission and order of attachment before judgment and injunction.

2. Learned advocate appearing for the plaintiff submits that, pursuant to the order placed by the defendant, the plaintiff from time to time sold and delivered raw jute to the defendant. The plaintiff raised invoices upon the defendant. A sum in excess of Rs. 24,41,932/- remains due and payable by the defendant to the plaintiff. The plaintiff demanded payment from the defendant. By letter dated March 12, 2011, the defendant acknowledged its liability to the plaintiff. However, despite such acknowledgement the defendant did not pay. He submits that, thereafter two notices for demand were issued. In response thereto, the defendant did not dispute the liability. The defendant never undertook the exercise of settlement of accounts which the defendant proposed by its letter dated March 12, 2011. Thereafter, according to him, the claim of the plaintiff stands admitted.

3. Subsequent to the filing of the suit, the plaintiff became aware that the defendant is trying to dispose of all properties belonging to the defendant. Consequently, the plaintiff seeks an order of attachment before judgment and order of injunction in order to protect the eventual decree that may be passed in the suit. In support of the contention that, the plaintiff is entitled to the relief of attachment before judgment and injunction, learned advocate appearing for the plaintiff relies upon (2008) 2 SCC 724 ( Rajendran & Ors. Shankar Sundaram & Ors.), (2010) 2 CHN (Cal) 203 (Abheya Realtors Pvt. Ltd. vs. SSIPL Retail Ltd. & Anr.) and (2015) 4 CHN 509 (Sourav Ganguly vs. Mahuaa Media Pvt. Ltd.). Learned advocate appearing for the defendant submits that, the claim of the plaintiff is barred by limitation. The goods were allegedly sold and delivered in the year 2008-09. The so-called acknowledgement of liability dated March 12, 2011 was issued by a person who was no longer in the employment of defendant on such date. Therefore, the so called acknowledgement of liability by the defendant as on March 12, 2011 is no acknowledgement in the eye of law. Consequently, if the writing dated March 12, 2011 is discounted, then claim of the plaintiff is barred by limitation since the suit was filed in 2014.

4. Referring to the letter dated March 12, 2011, learned advocate appearing for the defendant submits that, the same cannot be construed to be an unconditional acknowledgement of liability. He submits that, such letter was written by a person who was not in the employment of the defendant on the date of which such letter was issued. Assuming that the letter was issued at the behest of the defendant, then also, the same was in response to the letter dated September 22, 2010 of the plaintiff. The letter dated September 22, 2010 of the plaintiff contains an accounts statement prepared by the plaintiff. Such account statement itself establishes there were quality disputes if not anything else with regard to the goods claimed to be sold and delivered to the plaintiff. He refers to the mill receipts issued by the defendant. He submits that, there are quality and quantity disputes stated in the mill receipts on the basis of which the plaintiff is raising the present claim. Such disputes are endorsed on the mill receipts themselves. Therefore, without quantifying the value of the quality and quantity disputes as endorsed in the mill receipts, the claim of the plaintiff cannot be ascertained. The writing dated March 12, 2011 cannot be construed to mean an unconditional acknowledgement of liability on the part of the defendant. Moreover, the last sentence of such letter dated March 12, 2011 states that, the confirmation of liability was on the basis of mill receipts issued by our mills subject to deduction of any quality claim amount.

5. Relying upon AIR 1951 Cal 156 (Premraj Mundra vs. M