BHASKAR BHATTACHARYA. J. - (1.) This first miscellaneous appeal is at the instance of the defendant No. 1 in a suit for declaration and recovery of money and is directed against the order dated 30th September, 2004 passed by the learned Civil Judge, Senior Division, 9th Court, Alipore in Title Suit No. 34 of 2003 thereby disposing of an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure filed by the respondent No. 1 by passing an order restraining the appellant from transferring or alienating schedule 'B' property.
(2.) The respondent No. 1 filed a suit against the petitioner in the 4th Court of the learned Civil Judge, Senior Division, Alipore being Title Suit No. 34 of 2003 thereby praying for declaration that the claim of the respondent No. 1 on account of refund of advance of Rs. 4,20,4,622/- is a secured claim and that the respondent No. I is entitled to be treated as a secured creditor of the present appellant and for recovery of a total sum of Rs. 5,27,62,236/- including interest and for permanent injunction restraining the present appellant from transferring, selling, alienating or encumbering the properties mentioned in schedule 'B' of the plaint.
(3.) The case made out by respondent No. I may be summed up thus : (a) By virtue of a tripartite agreement entered into between the plaintiff, the defendant No. 1 and the defendant No. 2, it was agreed that the plaintiff would supply explosives to the defendant No. 2 which they would use in its coal mines and the defendant No. 2, instead of paying direct to the plaintiff for the said explosives, supply coal in lieu thereof of equivalent monetary value to the defendant No. 1 who in its turn would supply to the plaintiff melted ammonium nitrate being the principal raw material of the plaintiff. (b) By virtue of such tripartite agreement, the defendant No. 1 used to adjust the amount receivable from the plaintiff for the price of the melted ammonium nitrate supplied by it against the amount payable by it to the defendant No. 2 against the coal purchased by defendant No. 1 from defendant No. 2. (c) Out of the said arrangement, a sum of Rs. 4,20,41,622/- was laying unrecovered and unadjusted from the defendant No. 1 and in spite of specific demand made by the plaintiff the defendant No. 1 failed to pay the said amount. (d) In the meantime, the defendant No. 1 informed the plaintiff that it was declared as a sick company within the meaning of the Sick Industrial Companies (Special Provisions) Act, 1985 and accordingly, was referred to the Board for Industrial and Financial Reconstruction ("BIFR") under the said Act. (e) In view of the aforesaid fact, the plaintiff was not only entitled to recover the amount of Rs. 4,20,41,622/- with an interest of Rs. 1,07,20,614/-, amounting to Rs. 5,27,62,236/- in aggregate but was also entitled to a declaration that the plaintiff had become a secxired creditor of the defendant No. 1. The plaintiff was, therefore, also titled to get a decree of permanent injunction restraining the defendant No. 1 from transferring, alienating or encumbering the properties mentioned in schedule 'B' to the plaint.;