IMPORTANT POINT
Distinction should be drawn between provisions of Order XXXIX Rule 1 of CPC (Temporary Injunctions) and Order XXXVIII Rule 5 of CPC (Attachment before judgment).

JUDGMENT

Moushumi Bhattacharya, J.—The petitioner seeks an order of injunction against the respondent in respect of money lent and advanced by the petitioner to the respondent on various dates from May 2017 to February 2018 of a principal sum of Rs.7,50,00,000/- (Rs. Seven crore Fifty lakhs). The said amount was paid by the petitioner to the respondent by way of five cheques drawn on Axis Bank. According to the petitioner, the money was given as loan pursuant to requests made for such by the respondent and at an agreed rate of interest of 15% per annum.

2. Mr. Suman Dutt, senior counsel appearing for the petitioner submits that an interim order is called for since the respondent has denied the loan facility in its entirety. Counsel places the bank account statements of the petitioner from 01-05-2017 to 31-05-2017 which reflect that three transfers were made through RTGS by the petitioner to the respondent and a further statement for the period of 25-02-2018 to 28-02-2018 showing two further tranches of payments made by the petitioner to the respondent. Counsel further places the relevant Form 26AS which shows that the respondent has deposited TDS on account of three payments towards interest made by the respondent in favour of the petitioner which would be evident from the respondent filing his returns under “interest other than interest on securities”. Counsel further submits that the respondent holds 33.33 per cent shares as a partner in developing properties at various places in and around Kolkata and also immovable assets and properties, including two flats at Alipore Park Place, Kolkata and four bank accounts which are being operated by the respondent. Counsel relies on Harleen Jairath vs. Prabha Surana; 2019 (4) CHN (Cal) 412 for drawing a distinction between Order XXXVIII Rule 5 and Order XXXIX Rule 1(b) of The Code of Civil Procedure, 1908 (CPC) to impress upon the court that an order in the nature of a temporary injunction can be passed in the present circumstances.

3. Mr. Siddhartha Mitra, senior counsel and Mr. Reetobroto Mitra, counsel appearing for the respondent, resist the prayer for injunction on the ground that the respondent has already filed a written statement in the suit and that there can be no urgency in the matter since the petitioner withdrew an application with identical prayers in March 2021. Counsel submits that the present application is in the nature of an application for attachment before judgment under Order XXXVIII Rule 5 of the CPC and the respondent should first be given an opportunity to file his affidavit. Counsel takes a preliminary objection to the maintainability of the application on Section 13 of The Bengal Money-Lenders Act, 1940, which, according to counsel, bars a court from passing decree or order in favour of a money-lender in any suit instituted by a money-lender for the recovery of a loan advanced unless the court is satisfied that at the time when the loan was advanced, the money-lender held an effective licence. Counsel further submits that if a petitioner seeks relief under Order XXXVIII Rule 5 of the CPC, there must be a case made out by the petitioner that the respondent is either seeking to dispose of the whole or any part of the property or to remove the property from the local limits of the jurisdiction of the Court. Counsel submits that there is no such pleading or case made out in the application. Counsel relies on Raman Tech. & Process Engineering Co. vs. Solanki Traders; (2008) 2 SCC 302 in this context for contending that the purpose of Order XXXVIII Rule 5 is not to convert an unsecured debt into a secured debt. It is submitted that the petitioner is an unsecured creditor who admittedly does not enjoy any charge over any of the respondent’s properties as security for the loan.

4. I have considered the materials on record in the course of submissions of learned counsel appearing for the parties. Before dealing with the factual contentions, the point of maintainabili