J. K. BISWAS, J. ( 1 ) THIS application dated October 8th 2002 has been filed by the plaintiff for interim reliefs; it has been filed in its pending suit (C. S. No. 467 of 2002 ). The plaintiff prays for the following interim reliefs : "a. Order of injunction restraining the respondents and each of them, their employees and agents from withdrawing any amount without leaving the balance of the sum of Rs. 1,94,13,556/- in the account/ accounts held by the respondent in the banks namely HDFC Bank, Branch: Nagpur, maharashtra (being account No. 1022320001331 bearing Cust. I. D. : 1988419) having net banking operational facilities through its different branches ineluding at Stephen House Branch, Kolkata, within the aforesaid jurisdiction, till disposal of the suit being C. S. No. . . . . . . . . . . . . . . . . . . . . . . . (sic) of 2002. B. Order of injunction restraining the respondents and each of them or their employees and agents from selling, transferring, alienating, parting with possession of and in any way dealing with the assets of the respondent No. 1 particulars whereof are setout in the schedule being annexed hereto and marked with the Annexure "b" till the disposal of the said suit being C. S. No. . . . . . . ;. . . . . . . . . . . . . . . . . .- (sic) of 2002. " ( 2 ) ON this application ex parte interim relief was granted to the plaintiff by an order dated October 9th 2002. By this order the defendants were restrained from selling, transferring and/or alienating their fixed assets without giving prior seven days notice to the plaintiff. Such interim order is still in operation. Defendants 1, 2 and 3 are contesting this application by filing an opposition dated January 21st, 2003. Defendants 4 and 5 are, however, not contesting it. The opposition filed by defendants 1, 2 and 3 has been replied to by the plaintiff by its affidavit affirmed in March, 2003. After obtaining leave under clause 12 of the Letters Patent the plaintiff filed the suit praying for a decree against the defendants for Rs. 1,94,13,556/ -. The case made out in the pleading is this. The opposition filed by defendants 1, 2 and 3 has been replied to by the plaintiff by its affidavit affirmed in March, 2003. After obtaining leave under clause 12 of the Letters Patent the plaintiff filed the suit praying for a decree against the defendants for Rs. 1,94,13,556/ -. The case made out in the pleading is this. The plaintiff is a company registered under the Companies act, 1956; and it carries on business from its registered office at 33, Brabourne Road, kolkata-700 001. Defendant 1 is also a company registered under the Companies Act, 1956; and it carries on business from its administrative office at F-202, Jagat Plaza, law College Square, Amravati Road, nagpur-440 010; and its registered office is also in Nagpur. Defendants 2 and 5 are directors of defendant 1, and defendants 3 and 4 are its chief executives. By handing over a copy of an agreement dated August 9th, 9001 defendants 2, 3, 4 and 5 represented to the plaintiff that defendants 3 and 4 jointly promoted defendant 1 for production of a unique chemical having extensive demand in the domestic as well as international market. This agreement was made between, and executed by, defendants 3 and ( 3 ) THESE defendants requested the plaintiff to give short term, 14% per annum interest bearing, business accommodation loan to defendant 1. Hence through defendants 2, 3, 4 and 5 the plaintiff paid to defendant 1 a total sum of Rs. 1. 76 crores during the period from September 21st, 2001 to March 4th, 2002; and the payments were made by cheques. Such cheques were deposited in the account of defendant 1 at H. D. F. C. Bank. By advocates notice dated March 22nd, 2002 the plaintiff demanded repayment of Rs. 1. 76 crores from defendant 1; it was a notice under Sections 433 and 434 of the Companies Act, 1956. As the money was not paid, the plaintiff through another advocates notice dated September 30th, 2002 demanded payment of Rs. 1,94,13,556/- from the defendants. The payment was not made; hence the suit for its recovery. ( 4 ) THE case of defendants 1, 2 and 3 is this. Defendants 4 and 5 by acting in collusion and conspiracy with the plaintiff committed fraud upon defendant 1 with a view to causing pecuniary loss to it. On May 25th, 2001 defendant 1 was incorporated. The payment was not made; hence the suit for its recovery. ( 4 ) THE case of defendants 1, 2 and 3 is this. Defendants 4 and 5 by acting in collusion and conspiracy with the plaintiff committed fraud upon defendant 1 with a view to causing pecuniary loss to it. On May 25th, 2001 defendant 1 was incorporated. On june 8th, 2001 it entered into a joint venture agreement with Avecia Inc. Corporation having its corporate headquarters at 1405, faulk Road, Wilmington, DE-19803; it was for setting up a 100% export oriented unit in Nagpur. It was agreed that the goods manufactured by defendant 1 would be marketed by its foreign partner. The Goyals who control one Shyam Ferro Alloys Ltd. , a nagpur based company, assured that they had financial strength to augment the financial requirement to set up the unit by defendant 1. It was agreed with the Goyals that defendants 4 and 5 would be appointed additional directors of defendant 1. By resolution of defendant 1 dated July 16th, 2001 defendants 4 and 5 were appointed additional directors of defendant 1; and in a meeting of defendant 1 held on December 1st, 2001 defendants 4 and 5 were authorised to operate its bank account. On january 15th, 2002 on the basis of representation of defendant 4, defendant 1 placed four purchase orders on certain suppliers in kolkata; the total value of the four orders was Rs. 1,77,27,500. All the suppliers had their offices at 23a, Netaji Subhas Road, kolkata, having same telephone and fax numbers. Immediately after obtaining the purchase orders the plaintiff, an associate of the Goyals, without knowledge of these defendants caused a sum of Rs. 1. 51 crores to be deposited with the HDFC Bank, kolkata in the name of defendant 1. Defendants 4 and 5 by using the name of the plaintiff deposited the amounts in the account of defendant 1; and by using the authority to operate bank account of defendant 1 they immediately paid such deposited monies to the purported suppliers chosen by them also in Kolkata. The plaintiff in fact never lent and advanced any money to defendant 1. The articles of association of defendant 1 and its board of directors never authorised defendants 4 and 5 to obtain any loan from the plaintiff or to make any payment to any of the purported suppliers. The plaintiff in fact never lent and advanced any money to defendant 1. The articles of association of defendant 1 and its board of directors never authorised defendants 4 and 5 to obtain any loan from the plaintiff or to make any payment to any of the purported suppliers. Because of the restrictive clause in the articles of association, no such loan could be obtained by defendant 1 without written consent of the foreign partner. Moreover, no goods were ever received from the four suppliers by defendant 1. Defendants 4 and 5, in fact, siphoned off the amount by using the bank account of defendant 1 as a conduit, and keeping the fact of withdrawal of secret to these defendants. A fraud was committed by the goyals. The purported borrowing of Rs. 1. 76 crores by defendant 4 being ultra vires the articles of association of defendant 1, it has no obligation to make any repayment. Defendants 4 and 5 and members of their families are the majority share holders (68. 17%) of the plaintiff, and this fact was suppressed from these defendants at the relevant point of time. For the crimes committed by the plaintiff, defendants 4 and 5, and the purported suppliers, defendant 1 filed a complaint before the Judicial Magistrate (1st class) at Nagpur on December 18th, 2002; it was registered as Criminal Complaint No. 212 of 2002. Hence the plaintiff is not entitled to any relief against defendants 1, 2 and 3. ( 5 ) APPEARING from the plaintiff Mr. Ghosh has placed strong reliance on (a) the resolution of defendant 1 dated July 16th, 2001, (b) the agreement dated August 9th, 2001 by and between defendants 3 and 4, and (c) the statement of accounts supplied by H. D. F. C. Bank. He has submitted that the case of loan of the plaintiff, for the purpose of interim relief, is sufficiently corroborated by these materials. His contention is that the two facts : (i) receipt of the sum of Rs. 1. 76 crores by defendant 1 from the plaintiff, and (it) failure to repay the sum are undisputed. He has submitted that the injunction is required to be granted by exercising the power under O. 41 R. 1 (b) of the Code of Civil Procedure. ( 6 ) MR. 1. 76 crores by defendant 1 from the plaintiff, and (it) failure to repay the sum are undisputed. He has submitted that the injunction is required to be granted by exercising the power under O. 41 R. 1 (b) of the Code of Civil Procedure. ( 6 ) MR. Chatterjee appearing for defendants 1, 2 and 3 has contended that the purported transaction cannot be lawfully accepted to be a loan obtained by defendant 1 from the plaintiff, as in view of clause 30 (4) of the articles of association of defendant 1, it has no authority to raise or borrow money from any person for the purpose of its business without written consent of Avecia Inc. (the collaborator ). He has also contended that as will appear from the facts and circumstances stated in the opposition, the purported amount was never given by the plaintiff to defendant 1 by way of any kind of loan; and on the contrary the transaction was fraudulently made by the plaintiff in collusion with defendants 4 and 5 who actually control the whole affairs of the plaintiff. It is his submission that cheques purportedly issued by the plaintiff in favour of defendant 1 were collusively deposited in bank account maintained at HDFC Bank and almost instantaneously defendants 4 and 5 siphoned off such moneys by showing payments to fictitious suppliers, the beneficiaries being once again defendants 4 and 5. It is his contention that the actual beneficiaries of the plaintiff as well as of the purported. suppliers are none but defendants 4 and 5. He has pointed out that the criminal case filed against the plaintiff, defendants 4 and 5, and the purported four suppliers is pending before the competent criminal court. It is his further contention that the facts of the case depict a unique case of fraud committed by defendants 4 and 5 who are in fact behind the plaintiff. He has submitted that no case has been made out, far less to speak of a prima facie case, for grant of interim reliefs as prayed for and particularly any relief in exercise of powers under O. 42 Rr. 5 and 6 of the Code of civil Procedure. He has relied on the decisions in the cases of : (1) Kotla venkataswamy v. Chinta Ramamurthy, AIR 1934 Mad 579 ; (2) Premraj Mundra v. Md. 5 and 6 of the Code of civil Procedure. He has relied on the decisions in the cases of : (1) Kotla venkataswamy v. Chinta Ramamurthy, AIR 1934 Mad 579 ; (2) Premraj Mundra v. Md. Maneck Gazi, AIR 1951 Cal 156 . ( 7 ) AFTER hearing the learned counsel for the parties and perusing the materials on record, I am of the considered view that the plaintiff is not entitled to any interim relief in this application. ( 8 ) THERE is nothing to show that defendant-1 ever approached the plaintiff for a loan. The mere facts that the cheques were issued by someone for the plaintiff, and they were deposited to the credit of defendant-1, in my view, do not by themselves make out a prima facie case of obtaining a loan by defendant-1 from the plaintiff. It appears that defendants 4 and 5 are the real persons who control the affairs of the plaintiff. These two defendants, apparently, arranged the whole transaction, i. e. the routing of the moneys. The moneys, as it appears, entered into the Bank account of defendant-1 only for creation of some evidence, and not for use and benefit of defendant-1. As rightly contended by Mr. Chatterjee theaarticles of association of defendant-1 being a public document, the plaintiff was supposed to have knowledge of the same. In clause 30 of the Articles of Association there is a specific prohibition regarding borrowing of money by defendant-1; it cannot take loan from any one for the purpose of its business without written consent of its foreign collaborator (Avecia Inc. ). The decision in the Madras case as cited by Mr. Chatterjee supports his contention that the story of giving loan by plaintiff to defendant-1, being inconsistent with the provisions in clause 30 of the Articles of association of defendant-1, cannot be considered a lawful loan, even if it was actually a loan. I find that. jon the facts, the plaintiff has failed to make out a prima facie case of giving loan to defendant-1 to the tune of rs. 1. 76 crorfes. The facts, as briefly narrated before, rather indicate, prima facie, that some fraudulent transactions took place; and in them the plaintiff, defendants 4 and 5, and certain purported suppliers, and behind all of whom the Goyals are sitting to control the affairs and to benefit, are apparently involved. 1. 76 crorfes. The facts, as briefly narrated before, rather indicate, prima facie, that some fraudulent transactions took place; and in them the plaintiff, defendants 4 and 5, and certain purported suppliers, and behind all of whom the Goyals are sitting to control the affairs and to benefit, are apparently involved. Initiation of the prosecution by defendant-1 is also a very significant fact for raising a prima facie doubt about the genuineness of the claim made by the plaintiff. It is also to be noted that defendants 4 and 5, against whom allegations of commission of crimes, in collusion with the plaintiff, have been made, have chosen not to contest this proceeding. The plaintiff also does not seek any interim relief against these two defendants, it prays for interim relief only against defendant-1. In my considered view, for getting any interim relief against defendant-1 the plain2004 Cal. /6 (2) (8 pp.) V G 23 tiff has failed to make out a case. ( 9 ) FOR the above reasons I find no merit in this application, and hence this application for interim reliefs is hereby rejected. The costs of this application shall be the costs in the suit. ( 10 ) URGENT xerox certified copy of this judgment may be supplied to the parties, if applied for. Application rejected.