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2017 DIGILAW 63 (CAL)

Prannay Sureka v. Dhanalaxmi Bank Limited

2017-01-11

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2017
Jyotirmay Bhattacharya, J. : 1. This first miscellaneous appeal is directed against an order dated 25th January, 2016 passed by the learned Civil Judge (Senior Division), 4th Court at Alipore, in-charge in Title Suit No. 285 of 2016 at the instance of the plaintiffs/appellants. By the impugned order, the plaintiffs’ prayer for ad interim injunction was rejected by the learned Trial Judge. 2. At the time when the application for interim injunction filed in connection with this appeal was taken up for hearing by this Court, we are requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit. 3. We are informed by the learned counsel appearing for the parties that all relevant papers which are necessary for disposal of this appeal are available on record. 4. Since all the interested parties are now before us and the appeal can be decided on the basis of the materials on record, we have decided to dispose of the appeal itself by dispensing with the requirement of filing paper book in this appeal. 5. Let us now consider the merit of the instant appeal in the facts of the present case. 6. The respondent/Bank issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on 7th August, 2015 which was addressed to M/s. Alex Green Energy Private Limited and others. The plaintiffs/appellants were described as directors of M/s. Alex Green Energy Private Limited. The issuance of the said notice under Section 13(2) of the said Act is the cause of action for filing the suit for recovery of compensation. In the said suit, the plaintiffs have also prayed for permanent injunction both in prohibitory form as well as in mandatory form. The plaintiffs prayed for perpetual injunction restraining the defendant from making or publishing any statement terming the plaintiffs as defaulters or as directors of Alex Green Energy Private Limited in any manner whatsoever. Such relief was claimed by the plaintiffs on the basis of the allegation that the plaintiffs are no longer directors of the said Company as they resigned from the post of directorship with effect from 10th August, 2015. 7. Such relief was claimed by the plaintiffs on the basis of the allegation that the plaintiffs are no longer directors of the said Company as they resigned from the post of directorship with effect from 10th August, 2015. 7. The notice of resignation of a director submitted to the Registrar by the plaintiffs has also been annexed to the injunction application wherefrom it appears that one of the directors viz., Pranay Sureka was appointed as Director of the said Company on 6th February, 2012 and he submitted the said notice of resignation to the Registrar on 10th August, 2015. Similarly, the other plaintiff viz. Pratyush Kumar Sureka was appointed as Director of the said Company on 9th October, 2013 and he submitted the notice of resignation to the Registrar on 10th August, 2015. 8. In this set of facts, the plaintiffs have filed an application for temporary injunction in the said suit praying for an order of injunction restraining the defendant/Bank from making or publishing any statement terming the plaintiffs as defaulters or as directors of Alex Green Energy Private Limited in any manner whatsoever till the disposal of the suit. An ad interim relief in similar term was also prayed for by the plaintiffs in the said application for injunction. Such relief by way of ad interim injunction was refused by the learned Trial Judge. The instant appeal is directed against the said order of refusal to grant ad interim injunction passed by the learned Trial Judge. 9. Since the notice under Section 13(2) of the said Act was issued on 7th August, 2015, we do not find any apparent illegality in issuing the said notice describing the plaintiffs as Directors of the said Company as admittedly the plaintiffs were Directors of the said Company till 10th August, 2015. Subsequently, the defendant/Bank published the said notice under Section 13(2) of the said Act in newspaper on 9th October, 2015 describing the plaintiffs as Directors of the said Company. 10. Mr. Chowdhury, learned advocate appearing for the plaintiffs/appellants submits that since the plaintiffs ceased to be directors with effect from 10th August, 2015, the defendant/Bank ought not to have described the plaintiffs/appellants as directors of the said Company in the notice which was published in the newspaper on 9th October, 2015. 11. Mr. 10. Mr. Chowdhury, learned advocate appearing for the plaintiffs/appellants submits that since the plaintiffs ceased to be directors with effect from 10th August, 2015, the defendant/Bank ought not to have described the plaintiffs/appellants as directors of the said Company in the notice which was published in the newspaper on 9th October, 2015. 11. Mr. Banerjee, learned advocate appearing for the defendant/Bank submits that the said notice was published in the newspaper as per the statutory requirements. According to him, statute provides for publication of the exact verbatim copy of the notice which was issued to the addressees. As such, the contents of the notice dated 7th August, 2015 was not changed at the time of publication of the said notice in the newspaper on 9th October, 2015. 12. Be that as it may, since the plaintiffs have already resigned from the post of directorship with effect from 10th August, 2015, we dispose of this appeal with this direction that henceforth whatever notice will be published and whatever action will be initiated in connection with the said loan transaction, the defendant/Bank will describe the plaintiffs/appellants as Ex-Directors of the said Company. 13. It is, however, made clear that by this interim arrangement, we are not exonerating the plaintiffs/appellants from their liability which they have already incurred in connection with the loan transaction and this order is passed without prejudice to the rights and contentions of the parties in connection with the loan transaction and reserving the right of the respondent/Bank in taking up action for change of directors of the said Company in alleged violation of the loan agreement in accordance with law. 14. Both the appeal and the application for stay being CAN 2397 of 2016 are, thus, disposed of. 15. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.