Gaurishanker Bihani vs Imperial Tubes Private Limited

@JUDGMENT-JUDGMENT

The Court :- In a suit for recovery of price of goods sold and delivered on the basis, inter alia, of balance confirmation the plaintiff seeks judgement on admission and injunction.

Learned Advocate appearing for the plaintiff draws the attention of the Court to the balance confirmation at page 33 of the application. He submits that a sum of Rs.45,789,708/- was admitted by the defendant. That apart, the plaintiff is entitled to accrued interest. He submits that, the defendant is likely to deal with the assets available to the defendant so as to prejudice the plaintiff in the eventual execution of the decree that may be passed.

Learned Advocate appearing for the defendant submits that, the plaintiff is not entitled to an order of injunction as prayed for. He relies upon a judgment and order dated February 7, 2020 in GA 2080 of 2019 and CS 61 of 2014 (Suravee Business Services Pvt. Ltd.Vs. Chittavalsah Jute Mills Ltd) as well as the Division Bench judgment reported in (2010) 3 Cal LT 268 (Kohinoor Steel Pvt. Ltd. vs. Pravesh Chandra Kapoor). He also relies upon (2008) 2 SCC 302 (Raman Tech. & Process Engg. Co. And Another Vs. Solanki Traders) in support of his contentions.

Learned Advocate appearing for the defendant points out that, the defendant filed a suit prior in point of time before the Learned City Civil Court, Calcutta challenging the balance confirmation. Such suit is still pending.

Learned Advocate appearing for the plaintiff submits that the defendant did not pay the full Court Fees in the suit filed before the Learned City Civil Court, Calcutta. There is no interim order passed in the said suit.

The suit is for recovery of price of goods sold and delivered. The existence of jural relationship per se is not disputed. The quantum of claim is disputed. There is a balance confirmation on which the plaintiff relies. Such balance confirmation is the subject matter of the previous suit also.

The plaintiff alleges, unless restrained the defendant is likely to deal with the assets which may cause prejudice to the plaintiff while trying to execute the eventual decree that may be passed in the present suit.

In Suravee Business Services Private Limited (Supra), the plaintiff therein in a suit for recovery of price of goods sold and delivered, sought an order of judgment on admission, order of attachment before judgment and injunction. On consideration of the facts of such case, order of judgment and order of attachment before judgment were denied. The order of injunction as prayed for was also denied on the ground that the balance of convenience was not in favour of granting injunction as prayed for therein. Kohinoor Steel Pvt. Ltd. (supra) was considered in Suravee Business Services Private Limited (Supra). In Raman Tech & Process Engg. Co. (supra) the Court was considering whether in the facts of that case an order under Section XXXVIII Rule 5 of the Code of Civil Procedure, 1908 could have been passed. On consideration of the facts of that case the Supreme Court was of the view, that an order of attachment before judgment is of drastic nature and the facts of that case did not warrant grant of such relief.

In the facts of the present case, the plaintiff herein seeks an order of injunction under Order XXXIX Rules 1 and 2. The plaintiff has to make out a prima facie case for the grant of an order of injunction. It has to establish that the balance of convenience is in its favour and that, non grant of the order of injunction would result an irretrievable injury to it.

Prima facie there is a balance confirmation existing in favour of the plaintiff. Money is due and payable by the defendant to the plaintiff. The jural relationship is not disputed. The parties are at issue with regard to the quantum. Therefore, the plaintiff succeeds in making out a prima facie case. The question is whether the balance of convenience is in favour of the plaintiff or not in granting the order of injunction.

In Suravee Business Services Private Limited (Supra), on consideration of the facts that since the plaintiff was not entitled to an order of judgment on admission and order of attachment before judgment and also on the consideration that the plaintiff therein did not have the balance of convenience in its favour order of injunction was not granted. The same should not be read as the authority to mean that, in a claim for recovery of money on account of goods sold and delivered a plaintiff will never ever be entitled to an order of injunction as prayed for.

In the facts of the present case, at this stage, since it appears prima facie, that the plaintiff will suffer an irretrievable loss unless it is protected by the order of injunction, it would be proper to restrain the defendant from dealing with the fixed assets save and except in its usual course of business. Normally the fixed assets of a debtor should be available for execution in the event of a decree being passed against the debtor.

Let affidavit in opposition be filed within two weeks from date, reply, if any, within two weeks thereafter.

List the application as "Adjourned Motion" four weeks hence.