O51GA3173of 2014 CS371of 2014 IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION SREI INFRASTRUCTURE FINANCE LTD.Versus SURYA TELEINFRA PVT.LTD.& ORS.BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date : 20th September, 2016.
Mr.Jishnu Saha,Sr.Advocate Ms.H.Chakrabarty,Advocate Ms.N.Chatterjee,Advocate Ms.Ruby Jaiswal,Advocate appeaRs.appeaRs.appeaRs.appeaRs.Mr.Sabyasachi Chowdhury,Sr.Advocate appeaRs.Mr.Kuldeep Mallick,Advocate appeaRs.Mr.Anil Chowdhury,Advocate appeaRs.Mr.Amritam Mandal,Advocate appeaRs.The Court : -The plaintiff claims that a credit facility of Rs.1.25 crore made available by the plaintiff to the fiRs.defendant company for developing its telecommunications infrastructure has been diverted for the acquisition of a property in the name of the fourth defendant.
The plaintiff says that its case is corroborated by the stance taken in the affidavits by the defendants.
The second and third defendants are shareholders and persons in control of the fiRs.defendant company.
The fourth defendant company is the entity in whose name the immovable property has been acquired against the loan furnished by the plaintiff to the fiRs.defendant.
The fifth defendant is said to be the principal person in control of the fourth defendant.
The plaintiff cannot immediately indicate the nexus between the second and third defendants and the fifth defendant or the business entities under their respective controls.
There is no dispute that the loan as aforesaid of Rs.1.25 crore was granted in the year 2012 upon formal documents in such regard being executed, beginning with the sanction letter of June 25, 2012.
The fiRs.defendant does not dispute the disbursal of the amount.
It is the fifth defendant’s affidavit which makes interesting reading and, if true, may give a whiff of how business is conducted in this country.
According to the fifth defendant, he brokered a deal between the principal person in control of the plaintiff and the persons in control of a company where the plaintiff or the principal person in its control had made substantial investments.
The fiRs.defendant claims that the plaintiff or the principal person in control thereof unblocked their investments upon receipt of a sum of Rs.52.50 crore after proceedings were instituted in the Company Law Board and a settlement petition was filed before the Supreme Court.
Out of the sum of Rs.52.50 crore received by the plaintiff or the principal person in control thereof, the fifth defendant claims that he was not entitled to a brokerage of Rs.2.5 crore for having facilitated the settlement.
The fifth defendant was, at one point of time, an employee of the plaintiff or an associate concern.
There are disputes between the plaintiff and the fifth defendant and other matters are pending in this Court in such regard.
The fifth defendant claims in his affidavit that the principal person in control of the plaintiff devised a mechanism for payment of a sum of Rs.1.25 crore out of the agreed commission of Rs.2.5 crore to the fifth defendant.
Ostensibly, a loan for such amount was to be made available by the plaintiff to the fiRs.defendant.
Such money was to be utilised for the purpose of acquiring an immovable property in the name of the fourth defendant which is controlled by the fifth defendant.
The fifth defendant further asserts that if the sum of Rs.1.25 core against the agreed commission of Rs.2.5 crore was directly paid by the plaintiff or the principal person in control thereof to the fifth defendant, the fifth defendant would cause the fourth defendant to refund the sum of Rs.1.25 crore to the fiRs.defendant whereupon the fiRs.defendant would repay the same to the plaintiff.
However, there is one aspect of the arrangement which has been pleaded which, though not impossible in Indian business, appears to plainly illegal.
The fifth defendant claims that if the money loaned by the plaintiff to the fiRs.defendant was not repaid and the plaintiff could write it off as a bad debt, there would be no obligation for the plaintiff or the principal person in control thereof to make the direct payment of Rs.1.25 crore to the fifth defendant.
The purported arrangement pleaded by the fifth defendant would make all the parties hereto parties to a sham transaction, but it is not inconceivable for such things to happen and divers transactions more baffling than the one pleaded by the fifth defendant take place on a regular basis, sometimes with the tacit blessings of the statutory authorities.
Since it is the admitted position that the money paid by the plaintiff to the fiRs.defendant has resulted in an immovable property being acquired in the name of the fourth defendant, it is necessary that such asset be preserved, whether in aid of the plaintiff’s claim or in aid of the arrangement pleaded by the fifth defendant in his affidavit.
Further, the fifth defendant says that the property is used by him as his residence.
At the initial stage of this petition, an order was passed in terms of prayers (a) and (e) on October 29, 2014 which was modified on November 12, 2014 whereupon the order of injunction only in terms of prayer (e) continued.
In view of the admitted grant of the loan by the plaintiff to the fiRs.defendant and the virtual admission by the defendants of such money being used for the acquisition of the concerned immovable property in the name of the fourth defendant, the subsisting order in terms of prayer (e) of the notice of motion stands confirmed.
Directions are also issued for expediting the suit.
Since written statements have been filed by all the defendants with the defendant Nos.4 and 5 serving a counter-claim with their joint written statement, the plaintiff should file its additional written statement dealing with the counter-claim within two weeks after the puja vacation.
Documents should be discovered within four weeks thereafter and inspection completed forthwith thereupon such that the suit, including the counter-claim, is made ready for hearing in all respects for it to be placed before the appropriate Bench in the new year.
GA3173of 2014 is disposed of without any order as to costs.
Urgent website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) S.Chandra