Case Law Details
Sabyasachi Banerjee Vs Asha Mirchandani Waterstreet And Ors. (Calcutta High Court)
The Calcutta High Court disposed of an appeal challenging the refusal of an ad-interim injunction in a suit seeking a declaration that a consent decree dated 23 August 2022 was null and void. The appellant contended that the consent decree had been passed during the moratorium under the Corporate Insolvency Resolution Process (CIRP), which remained in force from 18 July 2022 until the Resolution Professional was discharged on 18 April 2023. It was argued that the decree, passed on 23 August 2022, was without jurisdiction and void. The appellant also claimed rights under an earlier agreement for sale relating to the same immovable property, asserted that over ₹4 crore had already been paid towards the agreed consideration exceeding ₹14 crore, and expressed willingness to deposit the balance consideration.
The respondents pointed out that the injunction application was already fixed for hearing before the Single Judge and that an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 was also pending. The High Court noted that the appeal was confined to examining the refusal of interim protection and that the injunction application was yet to be finally decided.
The Court observed that the Single Judge had declined ad-interim relief after finding that the appellant had relied on an oral agreement without producing documentary evidence to substantiate the agreement or the alleged payment of consideration. In the absence of such material, the Single Judge had concluded that the appellant failed to establish a threshold interest in the immovable property.
Although the appellant filed an application under Order XLI Rule 27 CPC seeking to produce documents evidencing payment, the High Court held that those documents had not been placed before the Single Judge when the impugned order was passed. On the basis of the material then available, the High Court found no error in the application of the principles governing grant of ad-interim injunction.
Clarifying that it had expressed no opinion on the merits of the dispute, the Court kept all issues open for consideration by the Trial Judge and disposed of the appeal and connected applications without any order as to costs.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
1. The appeal is at the behest of a plaintiff in a suit seeking declaration that a consent decree dated August 23, 2022 passed in separate suit is null and void.
2. Learned Senior Advocate appearing for the appellant submits that, on the date when the consent decree was passed, the Court lacked jurisdiction. The plaintiff in such suit was under Corporate Insolvency Reconstruction Programme in a proceeding pending before the NCLT, Kolkata. In support of such contention, he draws the attention of the Court to the orders passed by the NCLT and NCLAT in this regard. He submits that, there was a moratorium for the period from July 18, 2022 till the discharge of the Resolution Professional by the NCLT on April 18, 2023. The consent decree was passed during the period of the moratorium on August 23, 2022. Therefore, the consent decree is null and void.
3. Learned Senior Advocate appearing for the appellant submits that, the appellant made out a prima facie case and the balance of convenience and inconvenience being in favour of the appellant, learned Single Judge erred in not passing the ad interim order of injunction. He points out that, by the consent decree, an immovable property was sought to be dealt with. Such immovable property is the subject matter of a suit filed by the appellant earlier in point of time seeking specific performance of an agreement. He points out that, out of the agreed consideration of a sum in excess of Rs.14 crores, the appellant already paid a sum in excess of Rs.4 crores.
4. In response to a query of the Court, learned Senior Advocate appearing for the appellant submits that, the appellant is ready and willing to deposit the balance consideration price in terms of the agreement on before July 3, 2026.
5. Learned Senior Advocate appearing for the respondent nos. 16 and 17 draws the attention of the Court to the last order passed by the learned Single Judge. He submits that, the injunction petition is fixed for hearing on July 17, 2026. He points out that, an application under Order VII Rule 11 is pending.
6. We are considering an order, which refused interim protection in the present suit.
7. In the suit, the plaintiff claims that, there subsists an agreement for sale in respect of an immovable property. Plaintiff also claims that, there is a suit for specific performance of such agreement which is pending. Plaintiff claims out of the agreed consideration, plaintiff paid a sum in excess of Rs.4 crores. Balance of the price, as noted above, the appellant seeks time till July 3, 2026 to pay.
8. Challenge in the present suit is with regard to the consent decree.
9. Learned Single Judge refused to grant interim protection on the basis of the earlier proceeding and conduct of the parties with regard to the earlier proceeding. Learned Single Judge invited affidavits with regard to the present injunction petition.
10. We are informed that, there is a demurer petition filed by some of the parties which is also pending before the learned Single Judge. Learned Single Judge is yet to take a final decision on the injunction petition.
11. While refusing to grant interim protection, learned Single Judge noted that, that an oral agreement was pleaded by the appellant. Learned Single Judge also noted that, there was no documentary evidence corroborating the oral agreement or portion thereof. Learned Single Judge noted that, there was no documentary evidence produced evidencing payment of consideration amount or the part consideration as claimed by the appellant. In such circumstances, learned Single Judge returned a finding that the appellant could not satisfy the Court as regards threshold interest in the immovable property concerned.
12. Appellant before us filed an application under Order XXXXI Rule 27 of the Code of Civil Procedure, 1908. Appellant claims that the documents of payment of consideration are part of such application.
13. We need not enter into such arena of payment of consideration at this stage. Injunction petition as noted above is yet to be finally decided. On the basis of the materials made available to the learned Trial Judge, on the date when the impugned order was passed, we are not in a position to arrive at a finding that, the learned Trial Judge erred in applying the parameters for considering the grant of injunction at an ad interim stage. The documents now sought to be produced were not before the learned Single Judge. Therefore, the findings recorded in the impugned decision cannot be faulted at this stage.
14. We clarify that, we did not pronounce on the merits of the respective cases of the parties. Our observations made herein are limited for the purpose of consideration whether or not refusal to pass ad interim order as done by the learned Single Judge was correct.
15. All points raised by the parties are kept open to be agitated before the learned Trial Judge.
16. APO/24/2026 along with pending connected applications are disposed of, without any order as to costs.
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