Hindusthan National Glass And … vs Amit Das And Others on 3 August, 2026

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    Calcutta High Court

    Hindusthan National Glass And … vs Amit Das And Others on 3 August, 2026

    Author: Arindam Mukherjee

    Bench: Arindam Mukherjee

                                                                                     2026:CHC-OS:344
    
                 IN THE HIGH COURT AT CALCUTTA
                          ORDINARY ORIGINAL CIVIL JURISDICTION
    
    
    
    Present :
    THE HON'BLE JUSTICE ARINDAM MUKHERJEE
    
    
    
                          IA NO. GA/1/2026
                          IA NO. GA/2/2026
                          IA NO. GA/3/2026
                                  IN
                             CS/40/2026
          HINDUSTHAN NATIONAL GLASS AND INDUSTRIES LIMITED
                                 VS.
                       AMIT DAS AND OTHERS
    
      For the Plaintiff                 : Mr. Jishnu Saha, Sr. Adv.,
                                          Mr. Sakya Sen, Sr. Adv.,
                                          Mr. Rishav Banerjee, Adv.
                                          Mr. Ishaan Saha, Adv.,
                                          Mr. Shiv Ratan Kakrania, Adv.
                                          Mr. Tanuj Kakrania, Adv.
                                          Ms. Kiran Sharma, Adv.,
                                          Ms. Shreya Goenka, Adv.,
                                          Ms. Surabhi Mehta, Adv.
                                          Ms. Shadma Manzar, Adv.
                                                                   ..... Advocates
    
      For the Defendant No.1            : Mr. Biswaroop Bhattacharya, Adv.,
                                          Mr. Arik Banerjee, Adv.,
                                          Mr. Shourjyo Mukherjee, Adv.
                                          Mr. Biswaroop Acharya, Adv.,
                                          Ms. Neelanjana Ghorui, Adv.,
                                          Ms. Anusmita Bhattacharya, Adv.
                                                                   ......Advocates
    
      For the Defendant No.2            : Mr. Ratnanko Banerji, Sr, Adv.,
                                          Mr. Shaunak Mitra, Adv.,
                                          Ms. Urmila Chakraborty, Adv.
                                          Mr. Pujon Chatterjee, Adv.
                                                                 .....Advocates
    
                                           1
                                                                                2026:CHC-OS:344
    For the Defendant No.3      : Mr. S. N. Mookerjee, Sr. Adv.,
                                  Mr. Anirban Ray, Sr. Adv.,
                                  Mr. Shaunak Mitra, Adv.
                                  Mr. Dhruv Chaddha, Adv.,
                                  Ms.Urmila Chakraborty, Adv.,
                                  Mr. Tanish Ganeriwala, Adv.,
                                  Ms. Yamini Mookherjee,
                                  Mr. Arjun Ray, Adv.,
                                  Mr. Pujon Chatterjee, Adv.
                                                       ........Advocates
    
    For the Defendant No.4      : Mr. Anuj Singh, Adv.,
                                  Mr. Pujan Chatterjee, Adv.,
                                  Mr. Soumabho Ghosh, Adv.,
                                  Mr. Sutosom Bhattacharyya, Adv.
                                                       ........Advocates
    
    For the Defendant No.5,6,7 : Mr. Anindya Kumar Mitra, Sr. Adv.,
    and 8                        Mr. Soumya Majumder, Sr. Adv.,
                                 Mr. Puspal Chakroborty, Adv.,
                                 Mr. Victor Chatterjee, Adv.,
                                 Ms. Sanjukta Dutta, Adv.,
                                 Mr. Aman Agarwal, Adv.
                                                        .......Advocates
    
    For the Defendant No.9      : Mr. Jishnu Choudhury, Sr. Adv.,
                                  Mr. Vikram Wadehra, Adv.,
                                  Mr. Yubaraj Bhattacharyya, Adv.
                                                        ......Advocates
    
    For the SFIO                : Mr. Dhiraj Kr. Trivedi, Ld. ASG,
                                  Ms. Aparna Banerjee, Adv.,
                                  Mr. Tirtha Pati Acharyya, Adv.,
                                  Mr. Pushpendra Kumar, Sr.P.P
                                  Ms. Anupriya Sengupta,Adv.,
                                  Mr. Irshad Ahmed, Adv.
                                                          .......Advocates
    For the Respondents No.13   : Mr. Ritzu Ghoshal, Sr.Adv.,
                                  Mr. Sankarsan Sarkar, Adv.,
                                  Mr. Shayak Mitra, Adv.,
                                  Ms. Shreyashi Maity, Adv.
                                                            ...... Advocates
    
    
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                                                                                  2026:CHC-OS:344
       For the Respondent no. 15    : Ms. Parna Roy Choudhury, Adv.
                                      Mr. Suvendu Bandhopadhyay, Adv.
                                                          ........ Advocates
    
                                    :
       For the Respondent No.19         Mr. Arnab Basu Mullick, Adv.
                                                              ........ Advocate
    
       For Respondent no.31, SBI : Mr. Debashis Saha, Adv.
       Funds Management Limited.   Mr. Avirup Roy Sanyal, Adv.,
                                   Mr. Jyotishman Sarkar, Adv.
                                                         .......Advocates
    
       For the Provident Fund : Mr. Shiv Chandra Prasad, Adv.,
       Authorities (defendant no.36) Mr. Avijit Tewary, Adv.
                                                           ........ Advocates
    
       Heard on                     : 28th July, 2026
    
       Judgment on                  : 3rd August, 2026
    
    
    
    
      Arindam Mukherjee, J:
    
    
      1. In a suit for money claim with relief for declaration and injunction
    
         instituted on 11th June, 2026, the plaintiff has taken out an
    
         application being G.A.7 of 2026 inter alia for injunction. The
    
         application was moved ex parte on June, 16 2025 when an ad interim
    
         order was passed which was subsequently corrected on 18th June,
    
         2026. The defendant no. 3 and defendant nos. 5 to 8 have taken out
    
         their respective vacating applications being G.A. 2 of 2026 and G.A.3
    
         of 2026.
    
    
    Brief Facts:

    1. The Plaintiff company, Hindustan National Glass & Industries Limited

    (HNGIL), is currently under the management of Independent Sugar

    SPONSORED

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    2026:CHC-OS:344
    Corporation Limited (INSCO) following a successful resolution process

    under the Insolvency and Bankruptcy Code, 2016 (IBC) approved by

    an order dated 14th August, 2026 passed by the National Company

    Law Tribunal (in short, “NCLT”)

    2. Prior to this takeover, HNGIL operated an Exempted Provident Fund

    through a trust known as the ‘HNG Group Companies Provident Fund

    Institution’ for its employees. (hereinafter for the sake convenience

    referred to as the said Trust).

    3. Upon assuming control of the plaintiff company in September 2025,

    the new management conducted an internal review and audit with

    regard to the said Trust. This investigation said to have revealed

    massive financial irregularities perpetrated by the erstwhile trustees

    (Respondents 2-8) and a former employee of HNGIL (Respondent 1).

    On the basis of the above facts, the plaintiff company instituted the

    suit and filed an injunction application therein. The facts pleaded in

    the plaint and those alleged in the said injunction application

    persuaded this Court to hold that a prima facie, case has been made

    out by the plaintiff which was sufficient for passing on ex parte an ad-

    interim order of injunction dated 16th June, 2026 restraining the

    defendants from using the bank accounts and processing any

    transaction – against the Respondent nos. 1 to 8, 10, 11, 12 and the

    banks and financial institutions. Further, an investigation by Serious

    Fraud Investigation Office (in short, ‘SFIO’) was also directed. The

    plaintiff was further directed to comply with the provisions of Order 39

    Rule 3 of the Code of Civil Procedure, 1908 (in short, ‘CPC‘). The order

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    2026:CHC-OS:344
    dated 16th June, 2026 was subsequently corrected by an order dated

    18th June, 2026.

    4. After service of the application, the defendant nos. 1 to 8 have

    appeared and opposed the continuance of the ad interim order dated

    16th June, 2026 as corrected by the order dated 18th June, 2026.

    The defendant nos. 3 has filed an application for vacating the order

    dated 16th June, 2026 as corrected by the order dated 18th June,

    2026 being G.A. 2 of 2026 intera lia taking several grounds for the

    same. Although, the defendant no. 3 claims to have filed this

    application but on a perusal of the same, it appears to have been

    made also on behalf of defendant no. 2 and 4. The defendants no. 5

    to 8 have also taken out an application for vacating the order dated

    16th June, 2026 as corrected by the order dated 18th June, 2026

    being G.A. 3 of 2026.

    Submissions on behalf of defendant no. 1.

    i. It is submitted by the defendant no. 1 that no copy of the

    application or the plaint has been served on the said respondents.

    The plaintiff, according to the respondent no.1, has failed to

    comply with the provisions of Order XXXIX Rule 3 of `CPC‘ despite

    there being a specific direction in the order and that the statute

    also mandates such service. It is, therefore, prayed by the

    defendant/respondent no.1 that the ad interim order of injunction

    passed on 16th June, 2026 as corrected by order dated 18th June,

    2026 should be vacated. For non-compliance of a mandatory

    provision.

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    2026:CHC-OS:344

    ii. In elucidating the objection regarding non-compliance of the

    provisions of Order XXXIX Rule 3 of CPC, the Respondent No. 1

    has referred to the Judgment reported in (1993) 3 SCC 161 and

    2025 SCC Online 1674. By relying upon the said two judgments it

    is submitted by the Respondent No.1 that the provisions of Order

    XXXIX Rule 3 of CPC is mandatory in nature as held by the

    Hon’ble Supreme Court. Only by serving a copy of the application

    will not amount to compliance with such mandatory provisions.

    The plaint has to be served separately from the application even if

    a copy of the plaint is annexed to the application as in the instant

    case.

    iii. It is further submitted that assuming without admitting that on the

    plaint being annexed to the application amounts to compliance of

    the Provisions of Order XXXIX Rule 3 of CPC then also in the

    instant case, the plaint has been annexed without the annexures

    and as such there is no compliance of the mandatory provisions.

    iv. It is also the case of the respondent no. 1 that the plaintiff has no

    cause of action as against the said respondent to file and maintain

    the suit. The plaintiff company through its present management

    after taking over the company appears to have conducted an audit

    of the accounts through an Auditor/ Chartered Accountant

    engaged by them. The documents on the basis whereof the said

    auditor formed his opinion is not known to the respondent no. 1.

    The present management of the plaintiff company has attempted to

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    2026:CHC-OS:344
    fasten liability on the Respondent No.1 on the basis of such

    documents but the same were not given to the said respondent to

    allow him to respond or contrive of and are also not disclosed with

    the application. The respondent no. 1 was never given an

    opportunity to give his comments in this regard, even after the

    auditors report was prepared. The Respondent No.1 refers to Page

    863 being Annexure AG to this application appearing in Volume VII

    thereof and the corresponding pleadings in Paragraph 59 at Page

    15 of the application in Volume I in this regard. The Respondent

    No.1, therefore, submitted that the ad interim order dated 16th

    June, 2026 as corrected by the Order dated 18th June, 2026

    should be vacated.

    Submission by Respondent no. 2.

    a. It is submitted by the respondent no. 2 that the said respondent has

    been served with a copy of the application on 22nd June, 2026, but

    no copy of the plaint has been served. It is further submitted by the

    said respondent that even on merits the ex parte ad interim order

    dated 16th June, 2026 as corrected by order dated 18th June, 2026 is

    required to be discharged and/or vacated. The learned senior advocate

    representing the said respondent has drawn the attention of the court

    to various documents including the advice said to have been given by

    the learned advocate for the plaintiff to his client for filing the suit to

    demonstrate that there is no allegation as against the said respondent

    contained either in the plaint or in the application.

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    2026:CHC-OS:344
    b. It is the case of the respondent no.2 who is incidentally one of the

    promoter of the plaintiff company, its director till the change in

    management and also the trustee of the exempted trust fund that

    there is no allegation that the money required to be deducted from the

    employees, staff and workers of the plaintiff company were not

    deducted or along with the employers’ contribution was not deposited

    with the trust fund on regular basis as required under the statute.

    There is also no allegation that the employees, who had

    superannuated or in the case where their family members became

    entitled to the terminal benefits the same were not so paid. The

    resolution plan, so far as the provisions contained therein on being

    approved cannot be further questioned in a collateral proceeding

    unless an appeal has been preferred against the same. In the instant

    case the plaintiff has concealed the fact that an appeal challenging the

    acceptance of the resolution has been filed by the erstwhile

    management of the plaintiff company including the respondent no. 2

    which is now pending before the National Company Law Appellate

    Tribunal, (in short, NCLAT) .

    c. It is also the case of the respondent that at the present pursuant to

    the First Information Report (in short, FIR) having been lodged, there

    are two agencies; one who under the statute pursuant to the FIR is

    entrusted to investigate and the other in terms of the order dated 16th

    June, 2026 as corrected by the order dated 15th June, 2026. There

    may be a conflict in the process of investigation. Although, the

    respondent no. 2 is not feared to face the investigating agencies, yet

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    2026:CHC-OS:344
    that part of the order directing SFIO to carry out the investigation

    should be vacated for such reason. The respondent no.2 also draws

    attention to the averment in the plaint and the reliefs also to show

    that the plaintiff never came before the court for protecting the

    interest of the employees but to shield any liability that may have

    been fastened to the plaintiff pursuant to the take-over.

    It is also the case of the respondent no.2 that despite specific direction

    in the order dated 16th June, 2026 the mandatory provisions of Order

    39 Rule 3 of CPC has not been complied with. On that ground alone,

    the ex parte ad interim order is required to be vacated.

    Submission by Respondent no. 3

    A. It is submitted by the respondent no. 3 that the said respondent has

    already filed a vacating application being IA No. GA/2/2026 wherein

    apart from the merits, the said defendant/respondent has taken the

    plea of non-service of the plaint as one of the grounds for vacating the

    ad interim order dated 16th June, 2026 as corrected by order dated

    18th June, 2026. The defendant no. 3 also objects to the

    supplementary affidavit filed by the plaintiff/petitioner being taken on

    record. It is the case of the said defendant that the issue of vacating

    or contriving of with the ad interim order shall be on the basis of the

    documents already on record and as such the supplementary affidavit

    of the plaintiff should not be considered at this stage.

    B. In course of argument, the learned Senior Advocate for the respondent

    no. 3 has referred to paragraph 10A at page 19 of the supplementary

    affidavit filed by the plaintiff and then had referred to pages 27 and 29

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    of the said supplementary affidavit. By relying upon these documents,

    it is submitted by that prior to filing of the suit a specific criminal

    complaint on the selfsame allegations has been made on the basis

    whereof a First Information Report (in short, FIR) is said to have been

    registered. The complaint was made by one Rohit Agarwal, who has

    also verified the plaint and affirmed the instant application. The said

    Rohit Agarwal was aware of the complaint and as such ought to have

    disclosed such fact. Having not done so it is suppression of material

    fact for which the ad interim order should be set aside. Furthermore,

    once such FIR is registered it is within the purview of the authority to

    whom the complaint has been made to investigate into the same and

    bring it to a logical conclusion. The complaint made is based on the

    allegation of misappropriation and defalcation of trust fund. Since a

    competent authority is already in seisin of the matter SFIO is not

    required to be directed to further investigate. Moreover, according to

    the said respondent SFIO is empowered to investigate into the affairs

    of the company under Section 212 of the Companies Act, 2013 and

    not into the affairs of the trust fund which is independent and stands

    outside the ambit of the assets belonging to the company. Assuming

    without admitting that there has been a defalcation then also it is also

    submitted that the plaintiff’s money has not been defalcated for the

    recovery of which a civil suit like the instant one can be maintained

    that too during the pendency of the criminal case. The alleged

    defalcation, if any is in respect of trust fund to which the plaintiff has

    no right to seek recovery and as such the civil suit cannot be

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    maintained on the basis of such allegations. Mr. Mookherjee

    thereafter placed paragraphs 64, 66 to 68 of the plaint to show the

    allegation on the basis whereof the plaintiff has come to Court and

    submitted that the same does not relate to either the respondent no. 3

    or any of the trustees. It is further submitted that none of these

    allegations concern the respondent no.3, a managing trustee of the

    trust fund. There is also no allegation that the amount required to be

    deposited as per the provisions of the Employees’ Provident Fund and

    Miscellaneous Provisions Act, 1952 (in short, PF Act) to the trust fund

    has not been deposited. There is also no allegation that the amount

    which fell due to an employee, staff or worker of the plaintiff company

    on his superannuation or death as retiral benefit or the terminal

    benefit have not been paid between 2021 to 2025. Mr. Mookherjee has

    also placed reliance on page 352 of the application in Volume-III

    thereof to draw the attention of the court to the financial statement

    contained therein to contend that no deficit far less defalcation of the

    trust fund has taken place. It is also the case of respondent no. 3 that

    records reveal that the assets of the trust far exceed its liabilities.

    C. The respondent no.3 has further relied upon the resolution plan

    pursuant to which the order dated 14th August, 2025 was passed by

    NCLT. The said order is at page 190 (annexure-D – Volume-II of the

    application). Keeping side by side the resolution plan and the order

    dated 14th August, 2025, it was argued that the resolution plan

    submitted by the present management of the plaintiff company

    actually intended to extinguish the claims and/or dues of the

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    employees, staff and workers of the plaintiff company, which on being

    approved becomes binding on the employees in view of the provisions

    of Section 31 of the IBC. The trigger date as contained in page 39 of

    the resolution plan has also been informed to the Court to give the

    date from which the present management has become liable for the PF

    dues. The suit has been filed to avoid any penal consequence against

    the present management of the plaintiff company for default in paying

    the statutory dues in the garb of allegations against the trust and the

    trustees which are untrue on the face of record. Referring to

    paragraphs 43, 45, 48 and 49, it is submitted by Mr. Mookherjee that

    there is no allegation as against the said respondent of having received

    any siphoned off money from the trust. No particulars of bank account

    of the respondent no.3 has also been provided alleging that money

    said to have been siphoned off from the trust fund has been parked

    into the said account. It is also the case of the respondent no.3 that

    the allegation regarding change of management of the trust fund

    during the pendency of CIRP also does not hold good in respect of the

    respondent no.3 as the said respondent was not present in the

    meeting dated 16th December, 2023 and his leave of absence was

    granted as specifically recorded in the minutes of the meeting which is

    at page 796, Volume-VI of the application.

    D. Mr. Mookherjee has also referred to page 799 and annexure AA at

    page 815, annexure AD at page 844 and page 944 annexure AK to

    demonstrate that there is no allegation as against the respondent no.3

    and as such the plaintiff has no cause of action to file and maintain

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    the suit as against the said respondent. In that view of the matter, no

    interim or ad interim order can or could be passed against the

    respondent no.3. The order directing investigation by SFIO, however,

    acts as a prejudice to the interest of the respondent no.3 in the

    absence of any specific allegation against the said respondent and, as

    such, the said part of the order directory investigation by SFIO should

    be vacated or in the alternative the same for the time being should be

    stayed.

    Submission by Respondent no. 4

    I. It is submitted by the respondent no. 4 that that the ad interim

    order of injunction dated 16th June, 2026 as corrected by order

    dated 18th June, 2026 should be vacated in the facts and

    circumstances of the instant case. The respondent no. 4 further

    submits that there is no allegation as against the said respondent

    for siphoning out of funds. Referring to paragraphs 32, 34, 38 and

    page 754 of Volume-III of the application, it is submitted by Mr.

    Singh that the respondent no.4 was all along been shown and

    treated as an employee of the plaintiff company. As an employee,

    the respondent no.4 was entitled to get a car as per the prevailing

    scheme of the plaintiff company. The amount of Rs.35 lakhs

    alleged to have been taken away by the respondent no.4 was

    permitted by the said respondent as per a scheme of the plaintiff

    company by which a motor car was purchased and given to the

    respondent no. 4 as an employee. On repayment of the purchase

    price, the said car had become an asset of the respondent no. 4.

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    The car was never a part of the asset of the plaintiff company or

    the trust and as such the question of taking away or retaining the

    same in an un-authorised manner cannot and does not arise.

    II. It is also the case of the respondent no. 4 that assuming without

    admitting that the amount was not repaid under the scheme then

    also such fact and figure ought to have been shown in the

    resolution plan. It was not shown in the resolution plan as nothing

    was due. The resolution plan is a conclusive one and cannot be

    reopened in this proceeding by the plaintiff alleging the car to be an

    asset of the plaintiff company wrongfully taken away by the

    respondent no.4. It is also submitted by respondent no.4 that the

    said respondent was absent in the meeting held on 12th December,

    2023 wherein the management of the trust was altered which,

    according to the plaintiff, is in violation of the statutory provisions

    during the pendency of CIRP. The leave of absence was specifically

    recorded in the minutes and as such the respondent no. 4 cannot

    be handed up for the same.

    In the light of the aforesaid submissions and by adopting the

    submissions made on behalf of respondent nos.2, 3, 5 to 8 and

    respondent no.1, it is submitted by the respondent no.4 that the

    plaint discloses no cause of action as against the respondent no.4

    and the plaintiff also does not have any cause of action to file and

    maintain the suit against the respondent no.3. in such situation no

    order, in interim or ad interim form, can be passed or continued

    against the respondent no.4.

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    Submission on behalf of Respondent no. 5 to 8

    1. It is submitted by the respondent no. 5 to 8 that the application to

    which the plaint is annexed has been served, but the annexures to the

    plaint are not annexed to the application. Assuming without admitting

    that service of the application with a copy of the plaint annexed

    thereto is substantial compliance of the provisions of Order 39 Rule 3

    of CPC then also service of a copy of the plaint as an annexure to the

    application without the annexures of the plaint is not a proper service

    in compliance with the provisions of Order XXXIX Rule 3 of CPC. The

    ex parte ad interim order dated 16th June, 2026 as corrected by the

    order dated 18th June, 2026 is, therefore, liable to be vacated and/or

    discharged on that ground alone. It is further submitted, that no copy

    of the order has been served and, as such, his clients were unable to

    appreciate the scope of the order. Furthermore, on the facts of the

    instant case there is no necessity of passing of any interim order in

    favour of the plaintiff/petitioner.

    2. On behalf of the Respondent Nos. 5 to 8, it is also submitted that the

    plaintiff has no cause of action as against either of the Respondent

    Nos. 5, 6, 7 and 8 inasmuch as the money of which defalcation is

    complained of is not the money of the plaintiff company. It is at the

    highest the money of the employees, staff and workers of the plaintiff

    company which was to be deposited with the trust fund in compliance

    of the statutory provisions. It is further submitted by the said

    Respondent Nos. 5 to 8 that if the money does not belong to the

    plaintiff, the plaintiff cannot have any grievance about its alleged

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    defalcation or shortfall. The plaintiff, therefore, cannot file and

    maintain the suit. The Order dated 16th June, 2026 as corrected by

    the Order dated 18th June, 2026 as a consequence thereof, should be

    vacated on this ground alone.

    3. The respondent nos. 5 to 8 submit that the relief claimed in the suit

    cannot be granted to the plaintiff. Assuming without admitting that

    the plaintiff has a cause as against the defendant nos. 1 to 14 then

    also the relief(s) claimed in the suit cannot be granted. By referring to

    prayer (a) of the plaint appearing at page 933 of the application and

    paragraph 67 of the plaint at page 928 of the application, it is

    submitted that the money claimed by the plaintiff does not belong to

    the plaintiff. The genesis of the money is deduction from the

    employees added to the employer’s contribution towards the provident

    fund which is kept in a trust fund. The trust is a separate entity. The

    money in the trust fund is that of the employees, staff and workers of

    the plaintiff company. Once the money is deducted from the

    employees and with the employer’s contribution is deposited in the

    trust fund, it loses the character of the money belonging to the

    plaintiff. Since the plaintiff is not entitled to the money, no relief as in

    prayer (a) on the basis of the pleading as in paragraph 67 of the plaint

    can be given to the plaintiff. Similarly, the prayer (b) read with

    paragraph 68 of the plaint cannot be also granted to the plaintiff. The

    allegation of the plaintiff is that the trustees have defalcated and/or

    swindled out money belonging to the plaintiff, is a completely incorrect

    statement on the face of the record. Assuming without admitting that

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    the trustees have misappropriated the fund then also the said money

    can be recovered at the instance of the workers, staff and employees of

    plaintiff and has to be either put into the trust fund or with the

    balance money lying in the trust in case of the exemption being

    revoked is to be deposited with the provident fund authorities and not

    to the plaintiff as claimed under any circumstances. The suit

    according to the respondent no. 5 to 8 also suffers from misjoinder

    and non-joinder of parties. The trust wherein the money was being

    deposited had several trustees which comprised of representatives of

    the employer and the employee. Neither the employer’s representative

    nor the employees’ representative have been made parties to the suit.

    Furthermore, the allegation as to misappropriation of fund spreads

    over from 2021-22 to 2025-26. During this period, several trustees

    have changed. All these trustees were required to be made parties but

    only some of them and not have been made so. Any action against the

    trust has to be against all the trustees. It is well-settled principle of

    law that an action where all the trustees have not been made parties

    to a suit like that framed in the instant case is bound to fail. The

    respondent nos. 5 to 8 has also referred to page 796 of the application

    to submit that Manoj Bhaskaran, who was admittedly a trustee, was

    not made a party to cite as instance of non-joinder of parties. No

    interim order in aid of the reliefs claimed in the suit, for the reasons

    aforesaid, according to the respondent nos. 5 to 8 can or could be

    passed in favour of the plaintiff.

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    4. The respondent nos. 5 to 8 also submit that the plaintiff has not only

    suppressed the material fact but has given an incorrect picture of the

    fact regarding cancellation of the exemption granted to the trust. By

    referring to the provisions of the Employees’ Provident Fund and

    Miscellaneous Provisions Act, 1952 (in short ‘PF Act‘), it is submitted

    that the exemption is granted by the appropriate government. The

    appropriate government in the instant case is the central government

    who granted the exemption by issuing a notification. A notification

    dated 11th January 2011 is placed before the Court to demonstrate

    that the central government had given the exemption. It is also the

    case of the respondent nos. 5 to 8 that the exemption, if had to be

    cancelled, can only be done by the central government on issuing a

    further notification. The PF authorities or any other authority not

    being the central government can cancel the same. No such

    cancellation has taken place as yet and as such, the question of

    passing an order treating the exemption to have been cancelled,

    cannot be passed or be continued.

    5. The respondent nos. 5 to 8 also submit that no suit at the instance of

    the plaintiff can or could be maintained inasmuch as the right to take

    any action against the trustees if at all, is with the PF authorities in

    case of defalcation or misappropriation of fund. The veracity of the

    allegation is required to be scrutinized by the PF authorities to find

    out whether the plaintiff as the employer had deposited the correct

    amount from time to time as per the statutory provision. Unless the

    ascertainment takes place, it cannot be said that the plaintiff

    18
    2026:CHC-OS:344
    company as the employer had deposited the correct sum and that

    such sum has been misappropriated by the trustees. The respondent

    nos. 5 to 8 also submit that while approving the Resolution Plan the

    NCLT was informed by the PF authorities that a sum of Rs.5,27,500/-

    was the shortfall amount. By an order passed by the NCLT in the

    application of the PF authorities, the said sum of Rs.5,27,500/- had

    been made over to the PF authorities and as such, there is no further

    dues. Moreover, the case that the plaintiff is trying to run is contrary

    to the record as in the Resolution Plan there has been no amount

    shown to be due from the trustees to the plaintiff company whom the

    plaintiff company was under CIRP. The respondent nos. 5 to 8 has

    also referred to the provisions of Section 36 of the IBC in this regard.

    It is also the case of the respondent nos. 5 to 8 that no order for

    investigation by the SFIO can or could have been passed in the facts

    of the case. There is no pleading or prayer for such a relief. In absence

    of pleading and specific claim, no order in aid of the final relief

    claimed in the suit, can or could be passed at the interlocutory stage.

    The respondent nos. 5 to 8 refers to Section 212 of the Companies

    Act, 2013 to demonstrate that only the central government on the

    happening of certain events can direct investigation by SFIO. The

    Court is not empowered to do so. The Court can in an appropriate 6

    case request the central government to enquire and if necessary,

    direct investigation through SFIO, provided such pleading is made

    and relief is claimed in the suit. The suit is also bad as no notice

    under Section 80 of the Code of Civil Procedure, 1908 (in short, CPC)

    19
    2026:CHC-OS:344
    had been issued to PF authorities though they have been impleaded

    as a party defendant. In the light of the arguments advanced, the

    respondent nos. 5 to 8 submit that the interim order dated 16th June,

    2026, as corrected by the order dated 18th June, 2026 should be

    vacated.

    Submission on behalf of respondent no. 9.

    It is submitted that the respondent no. 9 was the Resolution

    Professional (in short, RP) appointed by the National Company Law

    Tribunal (in short, `NCLT), Kolkata Bench. The said respondent is

    neither a necessary nor a proper party to the suit. Although no orders

    have been passed against the said respondent but the said respondent

    prays and further intends to make an application for expunging his

    name from the array of the defendants.

    Submission on behalf of respondent no. 13.

    On behalf of the respondent no.13, it is submitted that the said

    respondent was engaged as the statutory auditor of the plaintiff

    company for the years 2018-19, 2019-20, 2021-22 and 2024-25. The

    statutory auditor (respondent no.13) did not personally visit the office

    of the Provident Fund Authorities to scrutinise the records. The

    statutory auditor also did not personally go and scrutinise the

    accounts at the premises of the plaintiff but only acted on the basis of

    the particulars, documents and accounts provided by the plaintiff

    which was collected by his team and scrutinised at the office of the

    statutory auditor. The statutory auditor, therefore, claims to be

    20
    2026:CHC-OS:344
    neither a necessary nor a proper party to this proceeding. No order

    can or could be passed against the said statutory auditor. It is further

    submitted that the name of statutory auditor be deleted and/or

    expunged from the array of defendants.

    Submission on behalf of respondent no. 15.

    On behalf of the respondent No. 15 it is submitted that the said

    respondent has been served with the copy of the application. The

    learned Advocate, however, on instruction submits that the second

    volume of the application has not been served on her client. However,

    in compliance with the order dated 16th June, 2026 as corrected by

    order dated 18th June, 2026, the said bank has stopped operation of

    the accounts as also passed necessary directions so that the

    securities, if any of the respondent no. 1 to 8 are not dealt with.

    Submission on behalf of respondent no. 31.

    It is submitted on behalf of the respondent No.31 and submits that no

    relief has been claimed against the said respondent. In the order there

    is also no direction upon them.

    Submission on behalf of respondent no. 36.

    It is submitted on behalf of the respondent No.36, the Employees

    Provident Fund Organisation (in short, ‘EPF’) submits that the plaintiff

    had on 16th June, 2026 as recorded in the order had made an

    incorrect submission. The trustees of the Exempted Provident Fund

    Trust of the plaintiff company did not deposit the amount as required

    under the provisions of Section 17(5) of the Employees Provident Fund

    and Miscellaneous Provisions Act, 1952 (hereinafter referred to as the

    21
    2026:CHC-OS:344
    PF Act) read with condition No. 28 of Para 27AA of the Scheme framed

    under the PF Act. Despite the exemption being recalled by the

    appropriate Government, it is also the case of the said respondent

    that only after the present management of the plaintiff company

    corresponded with the EPFO authorities it came to the notice of the

    EPFO authorities that there has been a deficit/shortfall in the funds

    required to be deposited towards employees contribution along with

    the employers contribution for the financial year 2025-2026 and for a

    further period of one month. It, however, appears that EPFO authority

    has taken no steps as against the trustees for having not complied

    with the provisions of Section 17(5) of the PF Act.

    In course of argument, the PF authorities have relied upon the

    following judgments :

    i. [1998] 6 SCC 35; (Jiyajeerao Cotton Mills Employees’ Provident

    Fund Institution v. Dev Kumar Holani & Ors.)

    ii. [2025] SCC OnLine Bombay 1754; (Dalmia Cement (Bharat)

    Ltd. & Ors. v. Central Board of Trustees, Employees Provident

    Fund Organisation.)

    By relying upon paragraph 9 of Jiyajeerao Cotton Mills Ltd. [supra] it is

    submitted by learned advocate representing the PF authorities that

    the Hon’ble Supreme Court while considering the scheme of 1952

    along with the amendments thereto did not hold that the scheme is

    ultra vires to any statutory provision. The only finding of the Hon’ble

    Supreme Court is that the amendments to the scheme are required to

    22
    2026:CHC-OS:344
    be notified which has been subsequently done by an order published

    by the concerned Ministry. The learned advocate for the PF Authorities

    has also placed before the court an order of the Government of India,

    Ministry of Labour and Employment dated 5th April, 2016 to contend

    that the exemption was extended in terms of paragraph 27A of the

    1952 Scheme to the plaintiff company with effect from 04.02.2005. a

    copy of such order is taken on record.

    By referring to Dalmia Cement it is submitted by PF authorities that

    as late as in 2025 the Division Bench of the Bombay High Court did

    not find any infirmity or anomaly in the provisions of the scheme to

    hold that the same are not binding. It is further submitted by PF

    authorities that in view of such legal position clause 29 of Appendix A

    to the 1952 scheme is binding. Once there has been a transfer of any

    nature the exemption stands withdrawn or revoked.

    However, the fact remains that no notification has been placed by the

    PF authorities withdrawing or revoking the exemption though the

    exemption was granted by way of a notification which has been relied

    upon by respondent nos.5 to 8.

    It is further submitted by respondent no. 36 that The PF authorities

    have placed before Court the print out of Form RM-2 being the annual

    audited returns of the trust fund filed with such authority wherein the

    employers’ and the employees’ contribution as per the provisions of

    the Employees’ Provident Fund Miscellaneous Provisions Act, 1952 (in

    short, PF Act) were to be deposited in respect of the plaintiff company.

    23

    2026:CHC-OS:344
    By submitting five such returns received by the PF authorities on

    different dates of December, 2023 which are taken on record it is

    submitted that there was no shortfall in the amount required to be

    deposited as per the provisions of PF Act with the trust fund till the

    financial year 2023-24. The only deficit was the surcharge amount

    which has been recorded pursuant to orders of National Company

    Law Tribunal (in short NCLT). It is further submitted by the PF

    authorities that until returns for the financial year 2024-25 and 2025-

    26 are not submitted and the details of the accounts relating to the

    trust fund showing the amount deposited are not provided, it will not

    be possible for the PF authorities to comment whether there has been

    any shortfall or deficit subsequent to the financial year 2023-24. It

    will also not be also possible for the PF authorities in such facts and

    circumstances to assertively say as to whether there has been any

    siphoning of fund from the said trust account which can only be

    computed if there is any difference between the money now lying in

    the trust fund and the money with interest that should be in the trust

    fund on the date of take over is noticed. It is also the case of the PF

    authorities that in terms of paragraph 27AA and clause 16 and 29 of

    Appendix A of the Scheme of 1952 the exemption granted to the

    plaintiff company for depositing the employees’ and employers’

    contribution as per the statutory provisions with the exempted trust

    fund automatically stands revoked once there has been an acquisition

    or transfer of any kind. In the instant case, the plaintiff company on

    being taken over by another entity in terms of the resolution plan

    24
    2026:CHC-OS:344
    approved by the NCLT under the provisions of Insolvency and

    Bankruptcy Code, 2016 will amount to acquisition or at least a

    transfer of any kind. This will automatically attract the provisions of

    clause 16 and 29 of Appendix A read with paragraph 27AA of the

    1952 Scheme for which the funds lying with the trust are required to

    be transmitted to the Employees’ Provident Fund Organisation (in

    short, EPFO) in terms of the statutory provisions. The money lying

    with the trust on having not been transmitted to the EPFO is clear in

    violation of the statutory provisions. It is the further case of the PF

    authorities that the employer is liable for any deficit or shortfall in the

    amount which was required to be deposited after deduction with such

    trust fund along with applicable interest and penalty co-extensively

    with the trustees and the trust.

    On behalf of PF authorities provisions of Sections 16, 17 and 18 of the

    PF Act has also been placed before this court to elucidate the

    responsibility of the employer and that of the trust apart from a writ

    petition filed by the plaintiff company before the High Court at Punjab

    and Haryana which has now been withdrawn by the present

    management of the plaintiff company.

    It is also the case of the PF authorities that there has been financial

    loss for consecutive 10 years from 2012-2013 which is evident from

    the report of a third party auditor engaged by the PF authorities. A

    copy of the said report has been placed before the Court is taken on

    record. The report also suggests that the exemption should have been

    25
    2026:CHC-OS:344
    withdrawn with effect from 1st April, 2015. It is the further case of the

    PF authorities that serious fraud has been committed in this matter

    and as such the order of investigation by SFIO is not only justified but

    should be continued. The PF authorities also say that the ad interim

    order dated 16th July, 2026 as corrected by the order dated 18th

    June, 2026 should not be vacated as any money which may be found

    to be siphoned off cannot be received and will cause serious detriment

    to the interval of the employees of the plaintiff company.

    Submission on behalf of the plaintiff.

    It is submitted by the plaintiff that admittedly the copy of the plaint is

    annexed to the interlocutory application. It is also the case of the

    plaintiff that the defendants/respondents have been made aware that

    a suit has been filed. It cannot, according to the plaintiff, therefore be

    contended that the defendants/respondents were not aware about the

    statements made in the plaint. The annexures to the plaint are

    separately annexed to the application and, as such, it cannot also be

    said that the defendants/respondents were not aware or could not

    look into the annexures to the plaint for making submissions. It is an

    admitted position that a copy of the application has been served along

    with the copy of the plaint annexed thereto. It may be correct that the

    plaint has not been separately served but there has been substantial

    compliance of the provisions of Order 39 Rule 3 of the Code of Civil

    Procedure, 1908 (in short, CPC) and, as such, the order should not be

    vacated on such ground as contended by the defendants/respondents.

    26

    2026:CHC-OS:344
    It is further submitted that there has been no suppression of any

    material fact. The allegation made by the respondents that the

    particulars of the police complaint were not disclosed in the plaint

    though the suit was instituted subsequent to the registration of FIR

    does not hold good if the events are chronologically taken note of. The

    plaint was verified and affirmed so as the application, on 8th June,

    2026. On the same day the police complaint was lodged at around

    4.30 pm with the police station which will be evident from the

    endorsement on the receipt copy annexed to the supplementary

    affidavit filed in this application. The police complaint and the FIR

    were made and registered after affirming the plaint. By referring to

    paragraph 61 it is submitted that a clear indication has been given in

    the plaint that the plaintiff shall rely upon the FIR or any complaint

    that may be made as the plaint was contemplating to make such

    complaint. There is, as such, no suppression of fact far less

    suppression of material fact.

    In course of argument, the plaintiff has further made the following

    submissions:

    The First Information Report (in short, `FIR’) in terms of the complaint

    made by the plaintiff on 8th June, 2026 was registered on 18th June,

    2026 i.e. subsequent to institution of the suit by presenting the plaint

    and passing of the order dated 16th June 2026 and 18th June, 2026.

    In this regard the plaintiff has referred to page 63 of the

    supplementary affidavit in support of the date and time when the FIR

    was registered. The plaintiff says that neither the fact of making of the

    27
    2026:CHC-OS:344
    complaint nor the registration of the FIR can or could have been

    included in the plaint due to their respective filing and/or registering

    dates and time since the plaint and petition were verified and affirmed

    on 8th June, 2026. The FIR was, in fact, registered after the initial

    order dated 16th June, 2026 was passed which was corrected by the

    order dated 18th June, 2026. The plaintiff at the earliest opportunity

    has brought such facts to the notice of the Court by filing the

    supplementary affidavit which was affirmed on 30th June, 2026,

    apart from making a statement in the plaint which demonstrate the

    fact that the plaintiff was contemplating to make a complaint. There

    is, as such, no suppression of any fact far less material fact which

    requires the ad interim order of injunction to be discharged and/or

    varied under the provisions of Order XXXIX Rule 4 of the Code of Civil

    Procedure, 1908 (in short, `CPC‘).

    The plaintiff then submits that the contention of the respondent nos.

    1, 2,3 and 5 to 8 that the plaintiff does not have any cause of action to

    file and maintain the suit or the plaint does not disclose any cause of

    action is untenable apart from the fact that there is no application for

    rejection of plaint on such ground. On a holistic reading of the plaint

    it will appear that the plaintiff company being an “establishment”

    under the Employees’ Provident Funds and Miscellaneous Provisions

    Act, 1952 (in short, `PF Act‘) was granted the exemption for

    maintaining the trust fund for the purpose of depositing the

    employees contribution after deducting the same as per the provision

    of PF Act along with the employers contribution and other statutory

    28
    2026:CHC-OS:344
    charges as applicable. In the event there is a shortfall in the amount

    required to be deposited in the trust fund as per the statutory

    provision it is the liability of the plaintiff as the employer and an

    “establishment” under the PF Act to make good such shortfall along

    with the applicable interest and penalty as per the statutory

    provisions. The plaintiff, therefore, remains liable to the employees as

    also the PF authority and the appropriate Government who had

    granted the exemption to the plaintiff company. The plaintiff then says

    by referring to page 796 that the defendant nos. 5, 6,7 and 8

    continued to remain as trustees along with the defendant Nos. 2, 3

    and 4 even after reconstitution that took place on 16th December,

    2023. The said defendants, therefore, cannot absolve their

    responsibility and liability as trustees just by contending that there is

    no shortfall without giving the amount which is now lying with the

    trust fund or was there with the trust on the triggered date from

    which the Resolution Plan approved by the National Company Law

    Tribunal (in short, `NCLT’) in respect of the plaintiff company become

    operated. The pleadings in paragraphs 61, 63 and 64 of the plaint

    according to the plaintiff clearly disclose the reasons for which the

    plaintiff has come to Court.

    The respondent Nos. 1, 2, 3 and 5 to 8 according to the plaintiff in

    course of their submissions have not denied or disputed their

    involvement with the trust. They have also submitted that there has

    been no default in depositing the money with the trust fund but none

    29
    2026:CHC-OS:344
    of them have come forward to show the amount presently lying with

    the trust fund though the respondent Nos. 2 to 8 even after

    reconstitution of the trust in 2023 continued to remain to be the

    trustees. The balance-sheet of the trust which has been shown to

    contend that there is no shortfall in the trust fund and that the asset

    of the trust exceeds its liabilities is dated 16th March, 2026.

    Subsequent thereto on audit as stated in the plaint was conducted

    wherefrom the plaintiff has come to know of the shortfall of over Rs.20

    crores in the trust fund. In course of tracing out such deficit, the

    plaintiff has come to know about money belonging to the trust lying

    with the defendant No.1 and the trustees being the defendants Nos. 2

    to 8, the particulars whereof as far as available to the plaintiff as on

    the date of filing the plaint has been provided. Further details which

    came to the notice and knowledge of the plaintiff have been included

    in the supplementary affidavit affirmed on 30th June, 2026. The

    plaintiff then refers to notice of revocation of exemption dated 15th

    April, 2026 appearing at pages 289-290 of Volume-III of the petition to

    submit that the Ministry of Labour and Employment, Government of

    India through the Regional Provident Fund Commissioner-1, EPFO

    Regional Office, Howrah, has revoked the exemption and have directed

    the plaintiff company through its present Directors to deposit the

    entire money lying with the exempted trust fund with the Office of the

    Employees’ Provident Funds Organization, (in short, `EPFO’). This

    notice in itself has given rise to a cause of action in favour of the

    plaintiff. The plaintiff has to deposit the entire amount which has been

    30
    2026:CHC-OS:344
    deducted from the employees as per the provisions of the PF Act along

    with the employers’ contribution and other charges. If there is any

    shortfall in such deduction or deposit, the same has to be made good

    by the plaintiff. The PF Authorities in course of their submissions

    have produced audited returns of the trust fund till 2023-2024. There

    is no audited document in respect of the financial years 2024-2025

    and 2025-2026. Any shortfall for these periods has to be accounted

    for by the plaintiff as the employer. The plaintiff, therefore, is entitled

    to collect the deposit or have the shortfall collected and deposited with

    the EPFO failing which the amount has to be paid by the plaintiff. The

    Resolution Plan approved by the NCLT in view of the provisions of

    Section 36 of the PF Act has not taken into consideration the

    provident fund dues. The plaintiff, therefore, due to misdeeds of the

    trustees will be saddled with the liability of shortfall in the deposited

    money. The plaintiff, therefore, is entitled to proceed against the

    respondent nos. 1 to 8 who were admittedly trustees during the

    financial years 2024-2025 and 2025- 2026 or beneficiaries

    thereunder. This is plaintiff’s cause of action which is clearly stated

    in the plaint. It is therefore, incorrect to allege that the plaintiff has no

    cause of action or the plaint discloses no cause of action. The plaintiff

    also says that the arguments advanced by the respondent nos. 1,2,3,4

    and 5 to 8 are technical in nature to confuse the Court if possible in a

    desperate attempt to avoid the rigors of being proceeded with. The

    plaintiff also says that the order of appointing Serious Fraud Investing

    Office (in short, `SFIO’) is also justified in the facts and circumstances

    31
    2026:CHC-OS:344
    of the instant case. In this context the plaintiff has relied on a

    judgment reported in 2023 SCC OnLine Del 8197 (R.K. Gupta and

    Others- Versus- Union of India Through Ministry of Corporate

    Affairs and Another) to further contend that in an appropriate case

    even if it is not prayed the hands of the Court are not fettered to

    appoint SFIO since it can be appointed to investigate by the

    appropriate Government. The plaintiff further says that “affairs of the

    company” as provided under Section 212 of the Companies Act, 2013

    cannot be given a restrictive meaning particularly in the facts and

    circumstances of the instant case. The affairs of the plaintiff include

    the deduction and deposit of the employers contribution which is

    shown in the balance sheet of the company for each year and

    statutorily required to be deposited with the exempted trust, the

    exemption whereof has been granted to the plaintiff company as an

    establishment under the PF Act. The affairs of the trust though

    managed by the trustees some of whom are the Directors of the

    Company or employees representative as the custodian of the fund

    cannot be delinked from the affairs of the company. There is also no

    embargo on SFIO in investigating the matter even if a complaint has

    been lodged with the jurisdiction police authorities.

    In reply the defendant no. 1 and 3 has submitted that the banks have

    frozen the accounts which are not part of the order dated 16th June,

    2026 as corrected by the order dated 18th June, 2026. It is further

    submitted that freezing of these accounts are causing hardship to the

    32
    2026:CHC-OS:344
    wife and the children of the said respondents. On behalf of the

    respondent no.1 a chart is handed over showing four accounts

    maintained with IndusInd Bank Limited, the defendant no.19. On a

    perusal of the chart it appears that the first account bearing

    no.152006070400 is a Savings bank account maintained in the name

    of the defendant no.1. The second and the fourth account respectively

    bearing no.159007352466 and 201036334059 are in the name of

    Tania Das as the first account holder while Amit Das, the defendant

    no.1 is a joint account holder. The bank account bearing no.

    201036334059 appears to be an overdraft account while the other one

    bearing no. 159007352466 is a savings bank account. The bank

    account bearing no.158017475547 is a savings bank account with

    Ankita Das as the first account holder while the defendant no.1 is one

    of the joint account holders. It is submitted on behalf of the

    respondent nos.1 and 3 that apart from the bank accounts which are

    maintained only in the name of the defendant no.1, the operation of

    other bank accounts should be allowed.

    The prayer for a specific direction as sought for by the defendants no.

    1 and 3 to allow operation of the other bank accounts is opposed by

    the plaintiff. The Respondent No.1 has also submitted that the

    submissions made by the EPFO authority are not the reflection of true

    and correct fact. In this regard, the Respondent No. 1 has referred to

    an Order dated 14th August, 2025 passed by the NCLT in an

    application filed by the Provident Fund Authorities being

    IA/2002/2024.

    33

    2026:CHC-OS:344
    It is submitted by the plaintiff that although the first bank account is

    exclusively in the name of the defendant no.1, the defendant no.1 is

    the joint account holders of the other accounts. One of the accounts

    being overdraft account cannot also form part of the dispute. Unless

    specific particulars of the accounts are provided by way of an affidavit,

    the Court should not take cognizance of this part of the submissions

    made on behalf of the respondent nos.1 and 3. On behalf of the

    IndusInd Bank, the respondent no.19 it is submitted that initially the

    account apart from that mentioned in Annexure ‘AK’ appearing at

    page 944 of the application was not frozen. The other accounts were

    frozen in view of letters issued to the bank. The bank has, however,

    not produced the letters to ascertain the background under which the

    other accounts were said to be implicated. These aspects will be

    considered at a subsequent stage when fuller and better particulars

    are available.

    Points for consideration:

    After hearing the respective submissions of the parties and

    considering the materials on record, the following points fall for

    consideration to decide as to whether the interim order dated 16th

    June, 2026 as corrected by the order dated 18th June, 2026 should be

    continued or modified or vacated:

    (i) Whether there has been compliance of the requirement of Order

    XXXIX Rule 3 of the CPC ?

    34

    2026:CHC-OS:344

    (ii) Whether the plaintiff has a cause of action to file and maintain the

    suit ?

    (iii) Whether the plaint discloses any cause of action ?

    (iv) Whether jurisdiction of this Court is ousted in view of the

    provisions of the PF Act ?

    (v) Whether the suit is barred for mis-joinder and non-joinder of

    necessary and proper parties ?

    (vi) Whether there is any suppression of fact for which the ex parte

    ad interim order is required to be varied and/or discharged?

    (vii) Whether investigation by SFIO can or could have been ordered

    or be continued ?

    Discussion and Analysis:

    Before taking up the aforesaid points for consideration, I find after

    considering the submissions made by the parties that the respondent

    nos.1 to 8 have made elaborate arguments to persuade this Court to

    vacate the interim order by pointing out the alleged flaws in the

    plaintiff’s case without themselves trying to prima facie satisfy the

    Court that the allegation of defalcation or misappreciation of trust

    fund is false as the money deducted and depreciated are lying in the

    trust fund.

    The defendant ns.3 and defendant nos.5 to 8 have respectively filed

    vacating applications being GA 2 of 2026 and GA 3 of 2026 but the

    said application also do not contain any document to show that this

    was the deduction from this number of employees, staff and workers

    and this is the employer’s contribution and the same is lying with the

    35
    2026:CHC-OS:344
    trust fund. No attempt has been even made to show the facts and

    figures after the year 2022-2023 upon which PF authorities have

    admitted to have received the audited accounts. Although, the learned

    Senior Advocate for the defendant nos.5 to 8 insisted to record that

    the argument advanced by the said defendants was only restricted to

    vacating of the order and not for the purpose of arguing the vacating

    application but on a comparative analysis of the entire argument

    advanced by the defendant no.5 and the grounds of challenge

    summarised in paragraph 24 of their application being GA 3 of 2026 it

    is apparent that there subsists no further point in the said vacating

    application which requires to be considered separately. The same is

    the situation with the vacating application made by the defendant

    no.3 being GA 2 of 2026 (paragraph 23 thereof) which has been noted

    hereinabove. The said application being GA 2 of 2026 can also be

    construed to have been made on behalf of the defendant nos.2 and 4

    from the statement made in paragraph 1 and the affidavit thereof.

    In the above facts and circumstances, on the completion of the

    arguments it was made clear to the learned Senior

    Advocates/Advocates representing the parties that the vacating

    applications will be considered to have been heard in course of

    hearing of the plaintiff’s injunction application being GA 1 of 2026 in

    which the defendant nos.1 to 8 have opposed the continuance of the

    interim order.

    Analysis of point (i)

    36
    2026:CHC-OS:344
    On the issue of compliance and/or non-compliance of the

    provisions of Order XXXIX Rule 3 of CPC, there is no dispute that the

    said provisions are mandatory in nature. The judgments cited by

    defendant no. 1 in this context also speaks of the same, however the

    ratio laid down therein has to be applied in the facts of the instant

    case. The object of the said provisions is to permit the defendant(s) to

    appear on the returnable date and oppose the ex parte ad interim

    order that may have been passed at the instance of the plaintiff(s) in a

    well-versed manner. The application and the plaint are, therefore,

    required to be served so that the defendants are not only put to notice

    about the institution of the suit but are made aware about the

    pleadings in the plaint and the averments in the application so that

    the defendant(s) can make appropriate submissions after considering

    the plaintiff’s case in the plaint and in the application on the

    returnable date. The copy of the plaint is directed to be served under

    the said rules because it takes some time to serve a copy of the plaint

    along with the Writ of Summons by which time the hearing of the

    interlocutory applications may be concluded, particularly keeping in

    mind that the application may not contain all the facts of the plaint.

    In the instant case, the allegations are that a copy of the plaint and

    the petition were not served beyond the timeframe provided under the

    said rule. The ex parte ad interim order was obtained on 16th June,

    2026 which was corrected on 18th June, 2026 but the application was

    served after 24 hours from the date of the passing of such order. The

    second grievance is that a copy of the plaint has not been served.

    37

    2026:CHC-OS:344
    After considering the submissions made by the plaintiff and the

    defendants it is an admitted position that a copy of the plaint is

    annexed to the interlocutory application which has been admittedly

    served on the defendant nos.1 to 8 who are opposing the same. The

    annexures contained in the plaint are not annexed as part of the

    plaint as a complete annexure to the application but the annexures to

    the plaint have been separately annexed to the application with

    corresponding pleading. The plaintiff, therefore, has made substantial

    compliance of the provisions of Order XXXIX Rule 3 of CPC. None

    of the defendants while opposing the application was found to have

    been taken by surprise while arguing the matter, on the contrary they

    have argued copiously. So far as the timeframe is concerned, it is

    correct that the copy of the application was served beyond the

    timeframe but on that ground alone the ad interim order cannot be

    vacated when a copy of the application has been served much before

    the returnable date. It was open to the defendants to ask for a

    complete set of the plaint once they received the copy of the

    application with a copy of the pliant annexed thereto without

    annexures. None of the defendants have done so. On the contrary,

    the defendants no. 1 to 8 strenuously argued for vacating the order on

    that ground alone.

    Analysis of point no. (ii) and (iii)

    On the ground of cause of action the pivotal argument of the

    defendant nos. 1 to 8 is that the money of which defalcation has been

    alleged is not the money of the plaintiff and as such the plaintiff

    38
    2026:CHC-OS:344
    cannot file and maintain a suit for recovery of the same even if

    defalcation has taken place. The money lying with the Trust according

    to defendant nos. 1 to 8 is that of the employees, staff and workers of

    the plaintiff company. The misappropriation of such money if at all

    can only be raised by the employees, staff and workers of the plaintiff

    company as they will be the only sufferer. Apart from that the PF

    Authorities can haul up the defendant nos.1 to 8 for having

    misappropriated the funds required to be maintained as per statutory

    provisions. The PF Authorities have been before the NCLT where they

    had alleged only of a shortfall of Rs.5,27,500/- towards surcharge

    payable as per statute which has been duly paid in terms of the orders

    passed by NCLT. There is, as such, no shortfall far less

    misappropriation of money as alleged by the plaintiff. Moreover, the PF

    Authorities have produced the audited balance-sheet of the Trust up

    to the Financial Year 2022-2023 and have clarified without any

    ambiguity that there was no short fall in the funds of the Trust. The

    Resolution Plan approved by NCLT also did not contain any

    stipulation as to the money owned by the defendants nos. 1 to 8 to the

    plaintiff. The allegation of the plaintiff regarding misappropriation or

    defalcation of trust fund, therefore, is bereft of any truth and should

    not be considered as per the defendants nos. 1 to 8. The plaintiff is

    not entitled to recover any money from the defendant nos. 1 to 8.

    On a conjoint reading of various paragraphs of the plaint, it is also

    apparent, according to the defendant nos.1 to 8, that the plaint

    discloses no cause of action. The plaintiff has no right to sue and no

    39
    2026:CHC-OS:344
    relief as claimed by the plaintiff can be granted to it. Although, the

    ground that the plaintiff has no cause of action or that the plaint does

    not disclose any cause of action are grounds available under Order VII

    Rule 11(a) of the CPC for which the defendants are required to take

    out an application but these points were allowed to be urged and are

    considered since the vacating applications made by the defendant

    no.3 and defendant nos.5 to 8 contains this point on an elaborate

    manner.

    On a plain reading of the plaint it is apparent that the plaintiff

    company went before the NCLT and underwent a Corporate Insolvency

    Resolution Process (in short CIRP). In the Resolution Plan submitted

    by the present management of the plaintiff (INSCO) there were

    stipulations as to an extinguishment of the claims of the staff,

    employees and workers of the plaintiff company as pointed out by the

    defendant no. 1 to 8 but the NCLT did not consider the same or gave

    any finding to that effect save and except kept the dues of the

    workers, employees and staff outside the purview of the Resolution

    Plan in view of the provisions of Section 36 (4) (iii) of IBC which

    specifically excludes such claims from the ambit of the Resolution

    Plan as a consequence thereof the Resolution Plan approved by NCLT

    has no binding effect under the provisions of Section 31 of IBC. The

    present management pursuant to the order dated 14th August, 2025

    passed by the NCLT took over the plaintiff company as per the

    approved Resolution Plan and thereafter appointed auditors to find

    out the money lying with the Trust fund from which the benefits to the

    40
    2026:CHC-OS:344
    employees, staff and workers of the plaintiff company are to defrayed.

    Since the Resolution plan did not take in account the money lying in

    the trust fund, there was no embargo on the plaintiff company

    carrying out such exercise. In course of such audit, the auditors

    reported shortfall and apprehended defalcation. This prompted the

    plaintiff to proceed further to collect particulars and institute the suit

    for realising such money from the defendants no. 1 to 8 who were

    charged with such allegation. The defendant nos.1 to 8 in course of

    their lengthy argument have time and again tried to point out the

    lacunae of the plaintiff’s case and its flaws but themselves did not

    come with any account to show that the amount which was deposited

    by the plaintiff company with the Trust is lying with the Trust and

    there has been no misappropriation or defalcation. This was also not

    an impossible task as the audited balance-sheet for the financial year

    2022-2023 was available and has been submitted with the PF

    Authorities which has also been produced by the PF authorities. It is

    clear from such audited accounts that there is a no shortfall till up to

    2022-2023. Only the final position for 2023-2024 and 2024-2025 and

    2025-2026 up to August, 2026 was required to be placed before the

    Court and explained. It may be correct that the assets of the Trust

    exceeds the liabilities but that does not give right to any of the

    trustees or those associated with the Trust to siphon out money. The

    prima facie case of the plaintiff that the auditors have reported

    defalcation of trust fund which gives rise to a cause in favour of the

    plaintiff to recover such money was not even attempted to be

    41
    2026:CHC-OS:344
    dislodged. It is a different issue whether the plaintiff is entitled to get

    back the money or a decree in favour of the plaintiff if it is ultimately

    found that the trust fund is misappropriated. An enquiry, therefore,

    is prima facie necessary to find out the veracity of the plaintiff’s

    allegation. It cannot be contended at this stage that the plaintiff has

    no cause of action or the plaint does not disclose any cause of action

    in absence of any prima facie cogent material from the side of the

    defendant nos. 1 to 8 dispelling the allegations outrightly. At the end

    of the day it is the plaintiff company who is “establishment” under the

    PF Act to whom the exemption has been granted. The trust may be a

    separate entity but has been specifically constituted for the purpose of

    depositing the money collected from the employees, staff and workers

    of the plaintiff company along with the employers contribution as

    required under the P.F. Act. The employees , staff and workers have

    no privity of contract with the trust. Their relationship is with their

    employer, the plaintiff. Only the statutory mandate commands the

    trust to pay the money to the employees, staff and workers. The claim

    is therefore lodged with the employer who certifies the correctness of

    the claim and makes a demand on the trust who in turn pay the

    employees, staff and workers. Any shortfall in the money has to be,

    therefore, accounted for by the plaintiff company as in the eyes of the

    PF Authority, the plaintiff is the establishment who has been granted

    the exemption and is required to comply with the statutory required.

    I am, therefore, unable to agree with the contention of the

    defendant nos. 1 to 8 that the plaintiff has no cause of action to file

    42
    2026:CHC-OS:344
    and maintain the suit or the plaint does not disclose any cause of

    action.

    Analysis on point no. (iv)

    The Provident Fund Authorities are authorized under Section 7A

    and 13 of the PF Act to conduct enquiry which shall be deemed to be a

    judicial proceeding within the meaning of Section 1963 and 228 and

    for the purpose of Section 196 of the Indian Penal Code. The authority

    is also given the powers under CPC and Code of Criminal Procedure

    for even conducting search and seizure. The scope of enquiry,

    however, gets restricted in view of the provisions of Section 7A(1) and

    Section 13(2) of the PF Act. The PF authority in a case where

    defalcation is alleged against the trustees of the exempted provident

    fund trust account conduct a full-fledged investigation like an

    investigating agency. It is also to be borne in mind that for the instant

    case, the plaintiff company has several units in different states in

    under the aegis of separate regional provident fund commissions.

    Keeping in mind the legal provisions as also the practical

    inconvenience, the arguments advanced by the defendants no. 1 to 8

    that the suit is barred in view of the provisions of the PF Act cannot be

    accepted. The interim order, therefore, cannot also be vacated on such

    ground.

    Analysis on point no. (v).

    On the issue of mis-joinder and non-joinder of parties it is correct

    that a trust is represented by its trustees and as such the trust has to

    either sue or can be sued through the trustees. Assuming without

    43
    2026:CHC-OS:344
    admitting that all the trustees who were associated with the trust for

    the period 2021-2025 have not been made a party as contended by

    the defendant nos. 1 to 8 but on a plain reading of the plaint it is

    apparent that specific allegation has been made against some of the

    trustees who have been made parties to the suit. It may be so that the

    plaintiff is of the view that the other trustees who were associated with

    the trust from time to time may not have been part of the

    misappropriation of fund and as such have not been made parties.

    In such circumstances, at this stage, the suit cannot be held to be

    barred for non-joinder and mis-joinder of necessary and proper

    parties. The ad interim order also cannot be vacated on this ground

    alone.

    Analysis on point no. (vi).

    Elaborate arguments have been made by the defendant nos. 1 to 8

    to demonstrate that the plaintiff has suppressed facts for which the ad

    interim order is required to be varied and/or discharged. It is the case

    of the defendants no. 1 to 8 that the plaintiff was required to state in

    the plaint that it had lodged a police complaint prior to institution of

    the suit on the selfsame allegation and that a FIR has been registered

    on the basis of such complaint. It is also urged that the plaintiff has

    made a mis-statement about the exemption granted to the plaintiff

    company with regard to the provident fund of the employees, staff and

    workers and thereby have suppressed the true and correct facts while

    it obtained the ex parte ad interim order. It is now settled position of

    law that an order can be vacated or discharged under the provisions of

    44
    2026:CHC-OS:344
    Order XXXIX Rule 4 of CPC if there is a suppression of fact by which

    the plaintiff obtains the ex parte ad interim order. The suppression as

    qualified by the Supreme Court in various judgments in such a case

    has to be material suppression. The test as to whether a suppression

    is of material fact it is to be seen that on such facts having been

    brought to the notice of the Court at the time of passing the order

    would have persuaded the Court from not granting such order. In the

    instant case the plaintiff has specifically pleaded in the plaint and the

    application that they intend to lodge a complaint regarding the

    defalcation of trust fund. The plaint and the petition were respectively

    verified and affirmed on 8th June, 2026 and were filed with the Central

    Filing Department of this Court as required on the same date. The

    complaint was lodged on the same date i.e., 8th June, 2026. The time

    endorsed in the document disclosed by the plaintiff in its

    supplementary affidavit gives an indication that the same was lodged

    after the plaint and the petition were affirmed and filed in the Central

    Filing Department of this Court. The FIR was lodged on 18th June,

    2026 which is admittedly after the suit was instituted upon

    presentation and admission of the plaint and the orders dated 16th

    June, 2026 and 18th June, 2026 were passed. At the highest, the

    plaintiff can be accused of not bringing to the notice of the Court

    about filing of the complaint on 16th June, 2026 or 18th June, 2026

    when the application was moved or the order was corrected even if

    this fact was brought to the notice of the Court it would not have

    persuaded the Court to retrieve the ad interim order of injunction.

    45

    2026:CHC-OS:344
    There can be as such no suppression far less material suppression.

    That apart and in any event a criminal case and a civil suit even if

    emanates from a common cause can be proceeded parallelly unless

    there is any legal embargo. The criminal investigation pursuant to the

    complaint will either lead to a filing of charge-sheet on the allegation

    bring prima facie establishes or a final report (FRT) will be filed. The

    subsequent action in such the criminal proceedings will be as per

    applicable law which will end in either holding the accused guilty or

    they will be acquitted. The money if any which is defalcated or

    misappropriated cannot be realised from the accused by imposing

    punishment under the applicable criminal law. In order to recover the

    money a civil suit has to be instituted and as such the two

    proceedings are permitted to continue simultaneously. So far as the

    cancellation of exemption is concerned, there is at least more than one

    document which shows that the PF Authorities have cancelled the

    exemption. As to whether the cancellation is in accordance with law

    or that the PF Authorities have exceeded their jurisdiction in

    cancelling the same when the exemption was granted by the Central

    Government relates to validity of the notice and the authority of the PF

    Authorities. This cannot be the subject matter of this suit or can be

    decided in this proceeding where plaintiff has alleged defalcation. This

    fact is also apparent when we find that the erstwhile management of

    the plaintiff company of which some of the defendants no. 1 to 8 were

    part of had filed a writ petition challenging the notice issued by the PF

    46
    2026:CHC-OS:344
    authorities in revoking the exemption before the Punjab and Haryana

    High Court in connection with its Rohtak unit.

    Analysis on point no. (vii)

    The defendant nos. 1 to 8 have strenuously argued that the order

    directing investigation by SFIO could not have been passed either in law or

    on the facts of the case and as such should be vacated. The main thrust of

    the argument is that SFIO can be directed to investigate into the affairs of

    the company in view of the provisions of Section 211 and 212 of the

    Companies Act, 2013 and that can be directed only by the Central

    Government. Assuming without admitting that there has been defalcation

    of the trust fund then also the same does not form part of the affairs of the

    plaintiff company for which investigation by SFIO could be directed.

    Moreover, a complaint before a competent authority to investigate has been

    made by the plaintiff in relation to the self-same set of allegations. An FIR

    has been registered and as such the investigation is in progress. At this

    stage SFIO cannot be invited to make investigation on the same issue.

    Furthermore, the PF Authorities under the provisions of Section 7A of the PF

    Act have wide powers to investigate and take appropriate measures against

    and erring establishment. The matter relates to defalcation of money of the

    provident fund trust. It is, therefore, well within the jurisdiction of the PF

    Authorities to investigate the same. While considering the arguments

    advanced by the defendant nos. 1 to 8 one cannot lose sight of the fact that

    the plaintiff is the “establishment” before the PF Authorities has six units

    spread over India. The exempted provident fund trust is where the statutory

    deductions from the salary and wages of the employees, staff and workers of

    47
    2026:CHC-OS:344
    all the six units of the plaintiff company with employer’s contribution has to

    be deposited. All the employees, staff and workers of the plaintiff company

    are to get their retiral and/or terminal benefits from a single trust fund.

    Moreover, a unit in a particular zone is under the control of the Regional

    Provident Fund Authorities of that zone. The exemption is, however, granted

    to the plaintiff company as an establishment under the PF Act and not to

    the separate units. The plaintiff company is, therefore, subject to different

    Regional Provident Fund Authorities where it has a unit. It is apparent from

    the record that the Regional Provident Fund Authority, Northern Zone had

    issued notice revoking the exemption in connection with the Rohtak unit of

    the plaintiff company at Haryana which was challenged by the company

    prior to the present management took over the same in the High Court of

    Punjab and Haryana and not before this Court within the jurisdiction

    whereof the plaintiff’s registered office is situated. In such a fact scenario for

    the PF Authorities to proceed against the plaintiff company there has to be a

    coordinated action from all the Regional Offices wherein the records of a

    particular unit is situated. It is also evident from the documents produced

    by the PF authorities that the Regional Provident Fund Commission has to

    request the Central Board of the Provident Fund authorities in taking an

    action against the plaintiff company. It may so happen that after an

    enquiry/investigation there is no shortfall in respect of the contribution of a

    particular unit. The Regional Provident Fund Authority of that zone in such

    a case may not find it necessary to proceed against the plaintiff or the

    exempted trust fund in connection with such unit. At the same time on a

    preliminary investigation if the SFIO funds that there is no truth in the

    48
    2026:CHC-OS:344
    plaintiff’s allegation then no further proceeding will take place against the

    defendants no.1 to 8. The power of the provident fund authorities to carry

    out investigation under the statutory provisions are also limited. The

    provident fund authorities at the highest can impose penalty and recover

    interest on the deficit amount and recover the same from the establishment

    to replenish any shortfall in the deposit. The provident fund authorities are

    not empowered to carry out a full fledged enquiry in case of alleged

    defalcation. If the PF authorities do not find any shortfall at the first

    instance they may not proceed for further enquiry unless non-payment is

    reported. The police authorities in West Bengal can investigate into the

    allegation of defalcation very conveniently within the State of West Bengal.

    However, there are five other units in different States the Police Authorities

    of this State may not find it convenient to investigate outside the State of

    West Bengal when the documents are spread over several States under the

    jurisdiction of the different regional provident fund commissions

    In the aforesaid facts and circumstances, an agency like SFIO is a more

    preferred agency for the purpose of investigation.

    So far as the contention of the defendant nos. 1 to 8 that investigation by

    SFIO can only be directed by the Central Government is also unacceptable.

    The powers of the High Court being a Court of record with the authority to

    exercise constitutional jurisdiction cannot be fettered by referring the

    provisions of Section 212 of the 2013 Act. In an appropriate case if the

    Court finds that an investigation is required where the business of the

    plaintiff company is spread out Pan India, the Court can always direct SFIO

    to carry out the investigation. The authority granted under Section 212 of

    49
    2026:CHC-OS:344
    the 2013 Act to the Central Government does not require the Court to

    request the Central Government to engage SFIO to investigate into the

    affairs of the plaintiff company as that will lead to the Central Government

    sitting on appeal over the order of the High Court while it orders

    investigation by SFIO. The object of the provisions of Section 212 of the

    2013 Act is to provide a check and balance from frivolous complaint being

    made by one set of directors or share-holders against the other to spoil the

    functioning of a company as it is often found allegation of fraud levelled to

    invite SFIO to investigate. This does not curtail the powers of the High Court

    to order investigation by SFIO in an appropriate case. Furthermore, the

    exemption under the PF Act is granted to the “establishment” being the

    plaintiff company in the instant case. The plaintiff company under the

    statutory mandate is required to deduct the requisite amount from the

    salary and wages of its employees, staff and workers and deposit the same

    with its contribution (employer’s contribution) to the exempted trust fund.

    The deduction and the employer’s contribution is reflected in the books and

    accounts of the plaintiff company. The allegation of the plaintiff is

    defalcation of such money. To adjudicate defalcation it is to be also seen

    whether the correct amount was deducted and with the employer’s

    contribution was deposited in the trust fund from time to time. The money

    deducted and the employer’s contribution, therefore, forms part of the

    affairs of the plaintiff company. Even if the money on being deposited with

    the trust fund changes its identity and character then also the issue of

    deduction and employer’s contribution remains as affairs of the plaintiff

    company being the exempted establishment for which investigation by the

    50
    2026:CHC-OS:344
    SFIO under the provisions of Section 212 of the 2013 Act can also be

    directed. In a supplementary proceedings under Section 94 of CPC, the

    Court is empowered to pass interim orders for the ends of justice. Since the

    matter relates to the social security benefits of employees, staff and workers

    of the plaintiff company which not only has statutory approval but is also

    recognised under the constitutional framework this Court feels to be in the

    facts of the case to direct investigation by SFIO for the ends of justice.

    Furthermore, the Court can appoint an expert under the provisions of

    Section 45 of the Evidence Act, 1872 (now Section 39 of Bharatiya Sakshya

    Adhiniyam, 2023) to come to a conclusive finding as to the variety of the

    allegations. Investigation by SFIO can in such a case be treated to be an

    expert today.

    Analysis of other issues:

    So far as the submissions made by the respondent no. 9 and 13 are

    concerned, on a plain reading of the plaint, it cannot be held at this stage

    that the said defendants are neither a necessary nor a proper party. The

    prayer for expunging their respective names made without any specific

    application, for such purpose are considered and rejected at this stage.

    This Court is also not required to clarify the scope of the interim order

    with regard to the bank accounts which the respondent no. 1 and 3 claimed

    to be not their accounts but the accounts maintained in the name of their

    family members as it appears from the accounts on which particulars are

    provided clearly shows that either the respondent no. 1 or the respondent

    no. 3are joint holders of such account. Even if, the respondent no. 1 and 3

    51
    2026:CHC-OS:344
    are not the first account holder, as joint account holders can operate the

    account.

    Conclusion

    In the aforesaid facts and circumstances, I do not find any potential

    substance in the argument of the defendant nos. 1 to 8 to either vacate or

    vary or discharge or modify the order dated 16th June, 2026 as corrected by

    the order dated 18th June, 2026 which has been further extended from time

    to time.

    The applications being GA/2/2026 and GA/3/2026 do not require any

    further consideration independently as the contents thereof has been

    elaborately argued by the parties. GA/2/2026 and GA/3/2026 are,

    accordingly, dismissed.

    The application being GA/1/2026 requires to be heard on affidavits.

    Let affidavit-in-opposition be filed by 3rd September, 2026. Affidavit-in-

    Reply thereto, if any, be filed by 30th September, 2026.

    Let this matter appear in the monthly list of October, 2026.

    The interim order initially passed on 16th June, 2026 and corrected by

    the order dated 18th June, 2026 which is in subsistence till 3rd August, 2026

    is extended till disposal of GA/1/2026.

    Urgent photostat certified copy of this judgment and order, if applied

    for, be supplied to the parties on priority basis after compliance with

    all necessary formalities.

    (Arindam Mukherjee, J.)

    52
    2026:CHC-OS:344

    Later:

    Stay of operation of the order is prayed for by the respondent nos. 1 to

    8, the prayer is considered and rejected.

    (Arindam Mukherjee, J.)

    53



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