Calcutta High Court
Divij Mercantiles Pvt Ltd vs Smt. Sabita Rungta And Ors on 27 April, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
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OCD-3
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL APPELLATE DIVISION
ORIGINAL SIDE
APOT/52/2025
WITH
CS-COM/536/2024
DIVIJ MERCANTILES PVT LTD.
-Vs-
SMT. SABITA RUNGTA AND ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
-AND-
The Hon'ble JUSTICE MD. SHABBAR RASHIDI
For the Appellant : Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Shantanu Mishra, Adv.
Mr. Hemant Tiwari, Adv.
For the Respondent : Mr. Anupam Bhattacharya, Adv.
Mr. Sudhakar Thakur, Adv.
Mr. Rahil Faraz, Adv.
Mr. Sana Sallana, Adv.
HEARD ON : 27.04.2026
DELIVERED ON : 27.04.2026
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DEBANGSU BASAK, J.:-
1. Appeal is at the behest of the plaintiff and directed against the
judgment and order dated January 31, 2025 passed in IA No.
GA/1/2023 in CS-COM/536/2024.
2. By the impugned judgment and order, learned Single Judge
dismissed the application of the plaintiff for injunction and
attachment.
3. Learned Senior Advocate appearing for the appellant submits
that, the appellant lent and advanced money to the respondent.
Respondent deposited tax deducted at source on account of the
appellant with the Income Tax authorities. He draws the
attention of the Court to the documents evidencing deposit of tax
deducted at source with the Income Tax authorities on account
of the appellant. He submits that, by such action, a jural
relationship between the appellant and the respondent stands
admitted by the respondent. Quantum of loan is also admitted at
least to the extent of the acknowledgment made through the tax
deducted at source.
4. Learned Senior Advocate appearing for the appellant submits
that, application under Order XIIIA of the Code of Civil
Procedure, 1908 as amended by the Commercial Courts Act,
2015 was dismissed by the learned Trial Judge. A Special Leave
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Petition is pending directed against such judgment and order of
dismissal.
5. Learned Senior Advocate for the appellant submits that, an
application under Order VII Rule 11 of the Code of Civil
Procedure, 1908 filed by the respondent was also dismissed. A
Special Leave Petition carried which was dismissed.
6. Learned Senior Advocate appearing for the appellant submits
that, the respondent took a stand in its written statement as
also in the affidavit-in-opposition that, one Mr. Anil Chowdhury
arranged for the loan transaction and that, amount is payable by
the respondent to Mr. Anil Chowdhury and not to the plaintiff.
He contends that, such a stand is dishonest necessitating the
interim protection as sought for by the appellant.
7. In response to a query of the Court as to whether the respondent
deposited tax deducted at source with the income tax authorities
on account of the appellant or not, learned Advocate appearing
for the respondent submits that, the respondent did so.
8. Learned advocate appearing for the respondent submits that, the
loan transaction was arranged by one Mr. Anil Chowdhury and
that, the loan is repayable to such Mr. Anil Chowdhury. He
submits that, there is no liability of the respondent to the
appellant to repay loan amount.
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9. Learned advocate appearing for the respondent relies upon AIR
Online 2007 SC 80 (Raman Tech. And Process Engg. Co.
And Anr. -Vs- Solanki Traders) in support of the contention
that, under Order XXXVIII Rule 5 of the Code of Civil Procedure,
1908, the plaintiff must establish existence of prima facie case
and that, the defendant is removing assets from the jurisdiction
of the Court. He refers to the pleadings in the injunction petition
and submits that, the plaintiff did not establish at least the
second condition, if not both. Consequently, according to him,
the appellant is not entitled to the protection as prayed for.
10. As noted above, the appeal is directed against the judgment and
order, by which, learned Trial Judge, dismissed IA No. GA-
COM/1/2025 and refused to grant interim protection to the
appellant as the plaintiff.
11. The suit is for recovery of money. Issue with regard to the
maintainability of the suit, was considered by the learned Trial
Judge. Decision under Order VII Rule 11 of the Code of Civil
Procedure, 1908 was assailed before the Hon’ble Supreme Court.
The Special Leave Petition directed against such judgment and
order dated November 12, 2024 was dismissed on January 31,
2025.
12. The suit is for recovery of money lent and advanced. Respondent
filed returns with the income tax authorities acknowledging the
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jural relationship between the appellant and the respondent.
Acknowledgment of such jural relationship appears from the tax
deducted at source certificate issued by the respondent to the
appellant. Such certificate establishes that, the respondent
obtained money from the appellant and that, the respondent
deposited tax deducted at source on account of appellant with
the Income Tax authorities.
13. The respondent cannot be allowed to approbate and reprobate
between two authorities. Before the Income Tax authorities,
which, also possesses the adjudicatory powers under the Income
Tax Act, 1961, the respondent as an assessee therein is
acknowledging that there was a money transaction between the
appellant and the respondent and that, the respondent was
obliged to deduct tax at source on the income that the appellant
was generating out of the loan transaction and deposited the
same with the Income Tax authorities. Respondent invited the
Income Tax authorities to assess its return on the basis of such
a statement. Such respondent now cannot be heard to contend
that, there is no liability of the respondent to the appellant in a
civil suit before the Civil Court.
14. The stand that the respondent is now seeking to take before the
suit Court, with the deepest of respect, is dishonest. The present
stand is diametrically opposite to the stand taken by the
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respondent before the Income Tax authorities. Before the Income
Tax authorities, the stand is one of unconditional jural
relationship between the plaintiff and the respondent. While
before the suit Court, on the basis of the same transaction, the
respondent seeks to deny any jural relationship.
15. In Raman Tech. And Process Engg. Co. and Anr. (Supra), the
Supreme Court was concerned with an application under Order
XXXVIII Rule 5 of the Code of Civil Procedure, 1908 before the
Civil Judge, Junior Division. In the factual scenario obtaining
therein, Supreme Court held that twin requirement under Order
XXXVIII Rule 5 of the Code of Civil Procedure must be
simultaneously satisfied for a Civil Court to grant an order of
attachment under Order XXXVIII Rule 5 of the Code of Civil
Procedure, 1908. Twin conditions that must be simultaneously
satisfied are existence of prima facie case and the defendant
involved was removing assets from the jurisdiction of the Court.
16. In the facts and circumstances of the present case, the appellant
as the plaintiff is seeking order of injunction as also an order in
the nature of Order XXXVIII Rule 5 of the Code of Civil
Procedure, 1908.
17. Prima facie case stands made out by the appellant as noted
above. Balance of convenience and inconvenience lies
overwhelmingly in favour of the appellant in granting order of
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injunction, as prayed for. The appellant is likely to suffer injury
which may not be ultimately compensated by money alone in the
event order of injunction is not granted.
18. In such circumstances, it would be appropriate to pass an order
in terms of prayer (a) of the IA No. GA-COM/1/2025.
19. Respondent will submit an affidavit-of-assets before the learned
Trial Judge within a fortnight from date. In such affidavit-of-
assets, in addition to the assets available to the respondent, it
will specify the amount lying in its bank accounts as on April 27,
2026.
20. APOT/52/2025 along with connected applications are disposed
of without any order as to costs.
(DEBANGSU BASAK, J.)
21. I agree
(MD. SHABBAR RASHIDI, J.)
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