Anumati Consultancy and Services Private Limited vs Wellside Global Private Limited

For the Plaintiff : Mr. Ratnanko Banerjee, Sr. Advocate Mr. Jishnu Chowdhury, Advocate Mr. Shaurav Mitra, Advocate Mr. Suryaksh Manot, Advocate

For the Defendant : Mr. Surojit Nath Mitra, Sr. Advocate Mr. Samik Chakraborty, Advocate Mr. Mayank Kakrania, Advocate

Hearing concluded on : February 9, 2021

Judgment on : February 19, 2021

DEBANGSU BASAK, J. :-

1. In a suit where the plaintiff has money claim against the defendant,

the plaintiff has sought interim order of attachment before judgment

and an order of injunction against the defendant by this application. 2

2. Learned Senior Advocate appearing for the plaintiff has submitted

that, the plaintiff is not pressing for an order of attachment before the

judgment at this stage. He has limited the prayers of the application to a

prayer for injunction only.

3. Learned Advocate appearing for the plaintiff has submitted that, the

parties agreed that the defendant will construct and sell three flats to

the plaintiff. By reason of such agreement, the plaintiff had from time to

time paid a sum of Rs. 14,06,70,000/-. The plaintiff had thereafter

found that the defendant was not performing its part of the obligations.

The plaintiff had terminated the agreement and called upon the

defendant to refund the principal amount along with interest thereon.

The defendant had claimed that, it was entitled to deduct an amount on

account of premature termination of the contract by the plaintiff. The

plaintiff had approached the National Company Law Tribunal under the

provisions of the Insolvency and Bankruptcy Code, 2016. In such

proceedings, the defendant had tendered a sum of Rs. 12,81,22,349/-

claiming that such sum was due and payable after adjustment of the

amount that the defendant was entitled to deduct under the

contract. The National Company Law Tribunal (NCLT) had

disposed of such proceeding. The plaintiff being entitled to the 3

entirety of the sum of Rs. 14,06,70,000/- together with interest thereon,

had not accepted the tender of the sum of Rs. 12,81,22,349/- before the

NCLT. The plaintiff has now a claim in excess of Rs. 81 crores as against

the defendant.

4. Learned Senior Advocate appearing for the plaintiff has relied upon

2019 Volume 4 Calcutta High Court Notes 412 (Harleen Jairath v.

Prabha Surana) in support of the contention that, the plaintiff is

entitled to an order of injunction as prayed for.

5. Learned Senior Advocate appearing for the defendant has submitted

that, the petition does not contain any averment with regard to

attachment before judgment. He has relied upon 2008 Volume 2

Supreme Court Cases page 302 (Raman Tech. & Process Engg. Co.

& Anr. v. Solanki Traders) in support of his contention that an order

of attachment before judgment should not be passed in the facts and

circumstances of the case.

6. Referring to the averments made in the application and relying upon

All India Reporter 2009 Calcutta (Sunil Kakrania & Ors. v. M/s.

Saltee Infrastructure Ltd. & Anr.) learned Senior Advocate appearing

for the defendant has submitted that, the plaintiff is neither entitled to 4

an order of attachment nor an order of injunction. He has submitted

that, the flats were agreed to be handed over in May, 2020. Prior to the

expiry of time for handing over the flats, the plaintiff had unilaterally

terminated the contract. Under the Contract, the defendant is entitled to

deduct money from out of the consideration paid by the plaintiff in the

event of premature termination of the contract at the behest of the

plaintiff. He has submitted that, the plaintiff terminated the contract in

April, 2019 much prior to the date of expiry of the time to perform the

contract in May, 2020. According to him, the defendant cannot be said

to be in breach of the contract. The defendant had offered to refund the

price for the flats received from the plaintiff after deducting the amount

stipulated under the contract for premature termination of the contract.

The plaintiff did not accept such offer. Therefore, according to him, the

defendant cannot be faulted.

7. Raman Tech. & Process Engg. Co. & Anr. (supra) has

considered a petition under Order 38 Rule 5 of the Code of Civil

Procedure, 1908. Since the plaintiff has given up the prayer for

attachment before judgment, the ratio laid down in Raman Tech. &

Process Engg. Co. & Anr. (supra) need not be discussed herein. 5

8. Sunil Kakrania & Ors. (supra) has considered applications both

under Order 38 Rule 5 of the Code of Civil Procedure, 1908 as well as

one under Order 39 Rule 1 and 2 thereof, in suit for recovery of money.

In the facts of that case, the Court had found that the plaintiff therein

was not entitled to an order of attachment before judgment. Again on

facts, the Court had found that the plaintiff did not make out any case

for grant of an order of injunction under Order 39 Rule 1(b) of the Code

of Civil Procedure, 1908 in a suit for recovery of money.

9. Harleen Jairath (supra) has considered both Raman Tech. &

Process Engg. Co. & Anr. (supra) as well as Sunil Kakrania & Ors.

(supra). After reviewing the various authorities on the subject, it has

observed as follows :-

"49. In Chinese Tannery Owners' Association (supra) the Calcutta High Court was examining an interim order of injunction that had been granted in favour of the plaintiff in a suit for money decree. The defendant appellant raised the plea that the provisions of order 39 Rule 1 of the Code was not applicable and the Civil Court could not have invoked its inherent power under Section 151 of the Code. The Division Bench held that the mere fact that there are certain provisions as regards the issue of injunctions in Order 39 of the Code does not debar the Court from passing temporary injunctions 6

for doing justice in the exercise of its power under Section 151 of the Code. The relevant paragraphs are:

"3. It is necessary to consider first the point taken by Mr. Sen on behalf of the appellants that it is not open to the Court to pass any order of injunction in the exercise of its inherent jurisdiction under Section 151, Civil P. C. His argument is that where the Code has clearly and fully dealt with a matter, there is no scope for any action under inherent jurisdiction. He further argues in this connection that a reading of Section 94 of the Code makes it clear that the provisions of Order 39, Civil P. C. were intended to be exhaustive as regards this matter of temporary injunction. For this proposition he has relied upon the decisions in the case of 'HEMENDRALAL ROY v. INDO SWISS TRADING CO. LTD.', 24 Pat 496. and in the case reported in NAGABHUSHAN REDDY v. NARASAMMA, (1950) 2 Mad L J 482. Quite clearly an opposite view was taken in the Allahabad case of 'DHANESHWAR NATH v. GHANSHYAM DHAR', ILR (1940) All 201.

50. There cannot be an absolute proposition that in a money claim no order of injunction or attachment or receiver could be made. Order 38 to Order 40 of the Code of Civil Procedure does not restrict the power of the court to pass any order that a court is empowered to pass just because it is a money 7

claim. We have already discussed the circumstances when the court can exercise any of such power.

51. If there were doubts about exercising power under any of the aforesaid provisions, it can be safely stated that the court has inherent power to pass an order of injunction or attachment upon an unimpeachable liquidated claim being demonstrated and upon it being established that the respondents are taking steps to improperly deny the

realization of the claim."

10. In the facts of the present case, the plaintiff has claimed a decree for

a sum in excess of Rs. 81 crores on the basis of an agreement under

which, the defendant was to construct and deliver flats to the plaintiff. The

ultimate agreement between the parties, had obliged the defendant to

construct and make over unit Nos. 12W, 13W and 14W located on the 12th,

13th and 14th floor on the proposed building "Wellside Camac" to be

constructed by the defendant upon the plaintiff paying the agreed

consideration in respect thereof. Admittedly, the plaintiff had paid a sum of

Rs. 14,06,70,000/- to the defendant. Apparently, the parties had fallen out

of the contract. The parties have claimed differently with regard to the

termination of the contract. According to the plaintiff, it has originally

terminated the contract and the defendant is obliged to refund the entirety 8

of the consideration advanced along with interest at the rate of 18 per cent

per annum. According to the defendant, the termination effected by the

plaintiff has been premature therefore entitling the defendant to deduct

amounts stipulated in the contract. According to the defendant, it has to

pay a sum of Rs. 12,81,22,349/- to the plaintiff after deduction as claimed.

The plaintiff has expressed its unwillingness to accept such sum in full

and final settlement of its claim. This stand of the respective parties has

raised triable issues.

11. As noted above, the parties to the instant suit have raised triable

issues. However, it can be garnered out of the facts of the present case at

this stage that, the defendant is liable to pay the plaintiff. The quantum of

liability has to be decided.

12. Till such time such quantum of liability is decided and the defendant

pays the same, and since, the contract that the parties had entered into

related to units Nos. 12W, 13W and 14W on the 12th, 13th and 14th floor of

the proposed building, it would be appropriate to grant an order of

injunction restraining the defendant from creating any third party rights

over and in respect of such units without the leave of the Court. 9

13. IA GA No. 1 of 2020 in CS 142 of 2020 is disposed of accordingly.

[DEBANGSU BASAK, J.]