At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE RAVI KRISHAN KAPUR
For the Appearing Parties: Rajarshi Dutta, V.V.V. Sastry, Nischay Mall, Jishnu Chowdhury, Aritra Bass, Abhijit Sarkar, Abhik Chitta Kundu, Souvik Sana, Advocates.
1. This is a suit for recovery of money. The plaintiff has filed this suit claiming a decree for Rs.83,46,507/- along with interim interest. The case made out in the plaint and the petition is that the plaintiff had advanced a sum more than Rs.1.50 crores to the defendant as a short term financial accommodation. The defendant had received the money and had admittedly appropriated the same. The suit was instituted sometime in July 2019. After filing of the instant suit, the plaintiff had taken out an application under Chapter XIIIA of the Original Side Rules of this Court for a summary judgment. Upon filing of the said application, this Hon'ble Court directed affidavits to be filed by the parties and had fixed the matter in the Monthly List of March, 2020.
2. It is an admitted position that the defendant has not filed its affidavit-in- opposition to the Chapter XIIIA application till date. The said application is pending before this Hon'ble Court. In the meantime, the plaintiff has been compelled to file the instant application praying, inter alia, for an order directing the defendant to furnish security for a sum of Rs.83,46,507/- to the satisfaction of this Hon'ble Court. It is alleged on behalf of the plaintiff that the defendant is in dire financial circumstances and does not have any assets to secure or repay the debt of the plaintiff. It further appears from paragraphs 12 to 15 of the petition that the net worth as reported for the financial year 2019-20 of the defendant is negative to the tune of Rs.4,307.71 lacs. It is also alleged in paragraph 14 of the petition that the original promoters of the defendant have relinquished their shares and the defendant is a habitual and regular defaulter. The sum and substance of the other allegations in the petition on behalf of the plaintiff is that the defendant is in impecunious circumstances and has no means to repay the plaintiff. In this background, Counsel on behalf of the plaintiff prays for an order in terms of prayer (a) of the petition. It is fairly submitted that prayer (b) which is in case of default in furnishing security may be considered at a subsequent stage.
3. Mr. Jishnu Chowdhury appearing on behalf of the defendant vehemently opposes the prayer for any ad-interim relief at this stage. He relies upon unreported judgment of this Hon'ble Court dated 20 September, 2017 passed in Sitaram Sultania v. Scope Vincom Industries Pvt. Ltd. for the proposition that unless an opportunity is granted to file an affidavit, no order can be passed in this application. He further relies upon an unreported judgment of this Hon'ble th Court dated 28 November, 2019 passed in QVC Exports Pvt. Ltd. and Ors. v.Cosmic Ferro Alloy Ltd. and Ors., for the proposition that a Court must adhere to the statutory safeguards as stipulated under Order 38 Rule 5 of the Code of Civil Procedure before any order can be passed in this application.
4. Counsel on behalf of the plaintiff in reply submits that the defendant has no answer to the merits of the case and is simply procrastinating the matter without any intention of repaying the plaintiff. The plaintiff relies upon a Supreme Court decision reported in the case of Rajendran and Ors. v. Shankar Sundaram and Ors., 2008 2 SCC 724: (AIR 2008 SC 1170) for the proposition that in the case of an unimpeachable claim there is no prejudice caused to the defendant if appropriate orders are passed. Mr. Chowdhury distinguishes the said judgment and submits that the judgment relied upon by the plaintiff was not passed at an ad interim stage but at a final stage and that is why an adequate opportunity must be afforded to the defendant to satisfy the Court before any order can be passed.
5. The plaintiff has also relied upon an unreported decision dated 20 September, 2019 passed by the Hon'ble Division Bench in the case of Harleen Jairath v. Prabha Surana and Anr. to contend that in a given case the Court has jurisdiction to pass orders even in an application under Order 38 Rule 5 even at the ad interim stage if the facts so warrant.
6. I have perused the petition and considered the rival submissions of the parties. I am of the view that at this prima facie stage, the fact that the plaintiff advanced a sum more than Rs.1.50 crores to the defendant is admitted and indisputable. The defendant had duly received and appropriated the said sum. There is not an iota of proof which has been furnished by the defendant to satisfy the Hon'ble Court that this sum can or will be repaid by the plaintiff or that the sum is not due and payable by the defendant. On the merits, Mr. Chowdhury fairly did not advance any arguments whatsoever. The suit was filed in July 2019. The application for summary judgment was taken out sometime in November 2019. Till date, the defendant has chosen not to file any affidavit-in- opposition to the application for summary judgment. It is also an admitted position that no written statement has been filed till date. Such dilatory tactics to procrastinate the matter are usual and common in matters such as the instant case. There is no denial of the allegations contained in paragraphs 12 to 16 of the petition which describe the impecunious financial condition in which the defendant is. There is nothing which the defendant has been able to demonstrate that there is any plausible defence to the unimpeachable claim of the plaintiff. In such circumstances, I am prima facie satisfied of the strong prima face case in its favour of the plaintiff. The balance of convenience is also in favour of orders being passed as prayed for herein. The authorities cited by the defendant are distinguishable and in apposite to the facts and circumstances of the instant case. The defendant was given an opportunity as far as back in November 2019 to file a defence both in the suit as well as to the application under Chapter 13A. No pleading has admittedly been filed by the defendant. This is a further distinguish feature in the instant case.
7. There is nothing which the defendant has been able to demonstrate to contest or contradict the claim of the plaintiff on merits. On the contrary, the defendant has deliberately and intentionally chosen not to file any pleading either in the suit or the application under Chapter XIIIA for more than a year. I am of the view that all that the defendant is seeking is the luxury of a long drawn out trial by which time the chance of recovery of the plaintiff s money would be lost forever. The sheer passage of time in such cases between the institution o
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f such suits and the final decree ordinarily make the claim irrelevant or the claimant disinterested. 8. In the circumstances, I grant an order at this stage, in terms of prayer (a) of the Notice of Motion. The defendant is directed to furnish security for the sum of Rs.83,46,507/- to the satisfaction of the Registrar, High Court, within a period of two weeks from the date of passing of this order. Directions are also given to the parties to file their affidavits in the meantime. Let affidavit-in-opposition be filed within three weeks from date; Reply, if any, be filed one week thereafter. List this application four weeks hence before the appropriate available Bench having determination. Order accordingly.