- (1.) The Court : This is a suit for recovery of money. The plaintiff has filed this suit claiming a decree for Rs.83,46,507/- along with interim interest. The case made out in the plaint and the petition is that the plaintiff had advanced a sum more than Rs.1.50 crores to the defendant as a short term financial accommodation. The defendant had received the money and had admittedly appropriated the same. The suit was instituted sometime in July 2019. After filing of the instant suit, the plaintiff had taken out an application under Chapter XIIIA of the Original Side Rules of this Court for a summary judgment. Upon filing of the said application, this Hon'ble Court directed affidavits to be filed by the parties and had fixed the matter in the Monthly List of March, 2020.
(2.) It is an admitted position that the defendant has not filed its affidavit-in- opposition to the Chapter XIIIA application till date. The said application is pending before this Hon'ble Court. In the meantime, the plaintiff has been compelled to file the instant application praying, inter alia, for an order directing the defendant to furnish security for a sum of Rs.83,46,507/- to the satisfaction of this Hon'ble Court. It is alleged on behalf of the plaintiff that the defendant is in dire financial circumstances and does not have any assets to secure or repay the debt of the plaintiff. It further appears from paragraphs 12 to 15 of the petition that the net worth as reported for the financial year 2019-20 of the defendant is negative to the tune of Rs.4,307.71 lacs. It is also alleged in paragraph 14 of the petition that the original promoters of the defendant have relinquished their shares and the defendant is a habitual and regular defaulter. The sum and substance of the other allegations in the petition on behalf of the plaintiff is that the defendant is in impecunious circumstances and has no means to repay the plaintiff. In this background, Counsel on behalf of the plaintiff prays for an order in terms of prayer (a) of the petition. It is fairly submitted that prayer (b) which is in case of default in furnishing security maybe considered at a subsequent stage.
(3.) Mr. Jishnu Chowdhury appearing on behalf of the defendant vehemently opposes the prayer for any ad-interim relief at this stage. He relies upon an unreported judgment of this Hon'ble Court dated 20th September, 2017 passed in Sitaram Sultania Vs. Scope Vincom Industries Pvt. Ltd. for the proposition that unless an opportunity is granted to file an affidavit, no order can be passed in this application. He further relies upon an unreported judgment of this Hon'ble Court dated 28th November, 2019 passed in QVC Exports Pvt. Ltd. & Ors. Vs. Cosmic Ferro Alloy Ltd. & Ors., for the proposition that a Court must adhere to the statutory safeguards as stipulated under Order 38 Rule 5 of the Code of Civil Procedure before any order can be passed in this application.;