Dismissed¶20

Susanta Kumar Mukherjee and Anr. v. Susanta Pal and Ors.

Calcutta HC10 Jun 2025FMA/710/2025

Case brief

AI extract

What is this about?

Money suit — temporary injunction to restrain alienation of flats in completed development project refused and refusal upheld on appeal; unsecured debt ought not be secured; Order 39 Rule 1 and 2 with Section 151 CPC; Order 38 Rule 5 CPC attachment not attracted; development agreement 2012; fresh agreement with new developers; Power of Attorney cancelled 2017; claimed investment of Rs.40 Lacs unproven; appellants' non-performance found prima facie; appeal and application dismissed with request to Trial Court to expedite trial.

What did the court decide?

There is no infirmity in the order of the learned Trial Judge refusing temporary injunction which warrants interference; the appeal fails. ¶19

Susanta Kumar Mukherjee and Anr. Vs Susanta Pal and Ors. — Calcutta HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the refusal by the learned Judge, Commercial Court at Rajarhat, North 24 Parganas of the appellants' prayer for temporary injunction restraining the respondents from alienating or dealing with the flats in the newly constructed building should be reversed on appeal.

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Court's answer

There is no infirmity in the order of the learned Trial Judge refusing temporary injunction which warrants interference; the appeal fails.

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Ratio / Principle

This Court concurs that a pure money claim, which is at the highest an unsecured debt, ought not to be secured in ordinary circumstances.

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Key takeaways

No case under Order 38 Rule 5 CPC has been made out by the appellants.ratio¶16
Prima facie there is no material to support the appellants' claim of having invested approximately Rs.40 Lacs in the project.ratio¶17
As a prima facie finding of fact, the appellants failed to perform their part of the deal, which prompted respondent nos.1 to 4 to enter into a fresh agreement with respondent nos.5 and 6.ratio

Detailed headnote1 paragraphs

Temporary injunction — refusal affirmed. Appeal against order dated March 4, 2025 of learned Judge, Commercial Court at Rajarhat, North 24 Parganas declining temporary injunction under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure. Appellants, parties to a 2012 development agreement with respondent nos.1 to 4 who allegedly entered into a fresh agreement with respondent nos.5 and 6 and cancelled the appellants' Power of Attorney in 2017, sought restraint on alienation of flats in the completed project claiming investment of at least Rs.40 Lacs and risk of a paper money decree. Held: the suit is purely a money suit; a pure money claim, at the highest an unsecured debt, ought not ordinarily to be secured; no case under Order 38 Rule 5 CPC made out; no material supports the claimed Rs.40 Lacs investment; appellants prima facie failed to perform their part of the deal. No infirmity in the Trial Judge's order warranting interference. Appeal and connected application dismissed; Trial Court requested to expedite the trial.

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10.06.2025 Item No. 7. Court No.37. AB (ID 266019)

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F.M.A. 710 of 2025 With

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CAN 1 of 2025

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Sri Susanta Kumar Mukherjee & Anr. Vs

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Susanta Pal & Others

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Mr. Tapas Kr. Dey, Ms. Susmita Mondal ….for the Appellants. Mr. Prashant Agarwal, Mr. Sudipta Das, Mrs. Anamika Das …..for the Respondents.

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Dictated by Arijit Banerjee, J.

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By consent of the parties, the appeal and the application are taken up for hearing together.

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Affidavit of service filed in Court today, be kept with the records.

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This appeal is directed against a judgment and order dated March 4, 2025, whereby learned Judge, Commercial Court at Rajarhat, North 24 Parganas, refused to allow the appellants’ prayer for temporary injunction under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure. The order was passed on contest. 4. The appellants say that a development agreement was entered into by and between the respondent nos.1 to 4 and the appellants in respect of the concerned property. The agreement was executed in 2012. The appellants started work and invested substantial sums of

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money to the tune of at least Rs.40 Lacs. Suddenly the respondent nos.1 to 4, without terminating the agreement with the appellants, entered into a fresh agreement with the respondent nos.5 and 6 for the same development work. Subsequently, in 2017 the respondent nos.1 to 4 cancelled the Power of Attorney that they had executed in favour of the appellants. The appellants say that the project has now been completed by the respondent nos.5 and 6. There is every possibility of the flats that have been constructed being sold off to third parties. In that event, even if the appellants succeed in obtaining a money decree in the suit that the appellants have filed, the same will be a paper decree as nothing will be left against which such decree would be executable. Therefore, the appellants pray for an order of injunction restraining the respondents from alienating or dealing with the flats in the newly constructed building.

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We have not called upon learned Advocate for the respondents to make submission.

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We have carefully considered the judgment and order impugned in this appeal and also the submission made on behalf of the appellants. The suit filed by the appellants is purely a money suit. Apart from praying for a money

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decree, no other relief has been prayed for. The learned Judge has rightly held that a pure money claim, which is at the highest an unsecured debt, ought not to be secured in ordinary circumstances. We also find that no case under Order 38 Rule 5 CPC has been made out.

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Furthermore, the learned Judge has found and we also prima facie find that there is no material to support the appellants’ case that they have invested approximately Rs.40 Lacs in the project. We also find that learned Judge has found, as a matter of fact at least prima facie, that the appellants failed to perform their part of the deal which prompted the respondent nos.1 to 4 to enter into a fresh agreement with the respondent nos.5 and 6.

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Having considered the submission of the appellants and the judgment and order impugned before us, we are of the view that there is no such infirmity in the order of the learned Trial Judge which warrants our interference.

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