Calcutta High Court
Switching Avo Electro Power Limited vs Vaishali Gavhane & Ors on 23 July, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-3 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
IA NO. GA/1/2025
IN
CS/18/2025
SWITCHING AVO ELECTRO POWER LIMITED
VS
VAISHALI GAVHANE & ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 23rd July, 2025.
APPEARANCE:
Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Moti Sagar Tiwari, Adv.
Mr. Sailendra Kr. Tiwari, Adv.
Ms. Muskan Jalan, Adv.
. . .For the plaintiff/petitioner.
The Court : Affidavit of service filed in Court today is taken on record.
Despite repeated services being made on the defendants/respondents, no one
appears to oppose this application.
The application is, therefore, taken up in the absence of the defendants/
respondents.
In this suit the plaintiff/petitioner has sought for recovery of money lent
and advanced. On a perusal of the petition it appears that on tranches a
principal sum of Rs.3,20,00,000/- was lent and advanced to the defendant
no.3 company. The defendant no.3 was supposed to pay interest on regular
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basis but has failed to do so. As a consequence whereof, the plaintiff/petitioner
says that a sum of Rs.2,66,05,324/- has become due and payable on account
of interest at the rate of 18% per annum by the defendant no.3 to the
plaintiff/petitioner. The defendants/respondents have made part payment of
Rs.1,47,48,329/-. The defendant nos.1 and 2, according to the
plaintiff/petitioner, own and control the defendant no. 3 company. The said
defendant nos.1 and 2, according to the plaintiff/petitioner, have stood as
guarantors to the loan disbursed by the plaintiff/petitioner to the
defendant/respondent no.3. The subject loan transaction gives rise to an issue
which needs to be considered that is whether the transaction qualifies as one
under the provisions of Section 2(1)(c)(i) of the Commercial Courts Act, 2015.
This point could have been more effectively decided at this stage if the
defendants had appeared and expressed their views. The defendants as
recorded hereinabove have remained unrepresented at least after being given
three opportunities.
One of the limbs of the provision of Order XXXVIII Rule 5 of the Code of
Civil Procedure, 1908 (in short ‘CPC‘) takes into its fold the issue of the
defendants/respondents trying to avoid the Court or removing itself from the
jurisdiction of the Court to render a decree that may be passed against them as
infructuous. The conduct of the defendants gives rise to such presumption.
Although, the issue of attachment before judgment under the
provisions of Order XXXVIII Rule 5 of CPC or injunction under Order
XXXIX Rule 1 and 2 had fallen for consideration before the Division
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Bench of this Court in Sunil Kakrania & Ors. Vs. M/s. Saltee
Infrastructure Ltd. & Anr. reported in AIR 2009 Calcutta 260 and Kohinoor
Steel Private Limited Vs. Pravesh Chandra Kapoor reported in AIR 2011
Cal. 29 wherein the Division Bench after considering the provisions of
Section 94 of CPC had held that neither attachment before judgment nor
injunction under Order XXXIX Rule 1 and 2 can be granted in exercise of
power under Section 151 of CPC. This view was, however, impliedly
diluted by the Supreme Court in Rahul S. Shah Vs. Jinendra Kumar Gandhi
& Ors. reported in (2021) 6 SCC 418 wherein in paragraph 42.7 the Supreme
Court has held that in an appropriate case the Court is authorized to direct
security in exercise of its power under Section 151 of CPC. That apart and in
any event, Rahul S. Shah (supra) has also held that in suits relating to recovery
of money the defendant(s) should be directed to file affidavit stating in details
the assets and properties owned by such defendant(s). Rahul S. Shah (supra)
though was passed in connection with execution case but it has not made the
ratio laid down therein to be applicable to suits arising out of only commercial
dispute and inapplicable to ordinary money suit.
Taking into account the huge sums of money coupled with partial
repayment, written documents and balance confirmation which remains
uncontroverted at this stage, I find that the plaintiff/petitioner has been able to
make out a strong prima facie case. The balance of convenience and
inconvenience is also in favour of the plaintiff/petitioner. Unless the
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plaintiff/petitioner is granted an interim protection, there is every likelihood of
multiplicity of judicial proceedings.
In the aforesaid facts and circumstances, there shall be an order of
injunction restraining the defendants and each one of them from dealing with,
disposing of and/or creating any third party interest or from changing the
nature and character of the immovable properties, the particulars whereof are
provided in paragraph 31 at page 16 of the application, till 15 th September,
2025.
The defendants are afforded an opportunity to file affidavit wherein the
defendants shall clearly and specifically state the assets and properties owned
and/or are standing in their names. Let such affidavit be filed by 18 th August,
2025. Reply thereto, if any, be filed by 29 th August, 2025.
Let this matter appear in the monthly list of September, 2025.
It will be open to the defendants to seek for discharge and/or variation of
this order upon showing cogent grounds.
Since the defendants remain unrepresented, let a copy of this order be
served on the defendants by the plaintiff/petitioner. The plaintiff/petitioner
shall file an affidavit of service to that effect on the next date.
(ARINDAM MUKHERJEE, J.)
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