1. The issue in the present application whether the order of ad-interim injunction passed by this Court dated 12th September, 2024, is liable to be made absolute or to be vacated. Whether the petitioner has obtained ad-interim order of injunction by suppressing of material facts and whether the proceeds of an insurance policy of the husband of the respondent no.1 and father of the respondent no.2, the respondent no. 1 and the respondent no. 2 can be attached.

2. The petitioner carries on business in partnership with one Vishal Kapur in the name and style of “Hitech Air Systems” for sale, installation, servicing and allied activities in relation to air conditioners and providing air conditioning services.

3. The husband of the respondent no.1, namely, Kirti Loonia was the employee of the petitioner since the year 2009 as an Accounts Manager who died on 12th June, 2024, leaving behind his wife, the respondent no.1 and his minor daughter, the respondent no.2. Since the year 2009, the deceased Kirti Loonia used to discharge diverse duties including handling bank accounts and other finances for and on behalf of the petitioner.

4. Mr. S.N. Mookherjee, Learned Senior Advocate representing the petitioner submits that in course of employment, the deceased earned the confidence and trust of the petitioner to the extent that the petitioner has relied upon the deceased for looking after personal finances of the petitioner. He used to prepare and finalize the personal accounts of the petitioner and submission of the income tax returns of the petitioner. The confidence and trust upon the deceased was to such an extent that the petitioner authorized the deceased to have access to the personal bank accounts of the petitioner and to operate the same.

5. In the month of June, 2000, the petitioner opened a savings bank account with the ICICI Bank and at the material point of time, the deceased had already an account with the said bank. The mobile number and email of the deceased were registered in respect of the said account. The deceased was also authorized by the petitioner to operate the said bank account. The petitioner has also a savings bank account in the Standard Chartered Bank as well as with the Kotak Mahindra Bank and in view of the confidence and trust upon the deceased, the petitioner allowed the deceased to operate the said bank accounts and the deceased was privy to the password and other confidential information required to the said accounts.

6. After the death of the deceased on 12th June, 2024, the petitioner downloaded the details of the account maintained with the ICICI Bank and on scrutiny the petitioner finds that diverse unauthorized transactions which had been remain undetected. On detailed enquiry, it was found that since the financial year 2020-2021 till his death an aggregate amount of Rs. 8,95,50,000/- had been unauthorizedly debited from the account of the petitioner and credited to the personal account of the deceased being Account No. 627901506433, maintained with the respondent no.4. The petitioner further came to know that an amount of Rs. 5,00,000/- has been unauthorizedly debited from the Kotak Mahindra Bank account of the petitioner to the personal account of the wife of the deceased being Account No. 4811737179.

7. The deceased by unauthorisedly operating the bank accounts of the petitioner in collusion with the respondent no.1 and by removing an amount of Rs. 9,00,50,000/- has gained himself and his family members and associates including the respondent nos.1 to 3 of a pecuniary advantage.

8. Mr. Mookherjee submits that the deceased with active connivance along with the respondent no.1 has dishonestly misappropriated the money of the petitioner and converted the same for their own benefits and disposed of the same and has acted in a manner with the intent to deceive and perpetrate fraud.

9. Mr. Mookherjee submits that various portions of the aggregated amount of Rs. 9,00,50,000/- lying in the hands of the deceased and subsequently in the hands of the respondent nos. 1, 2 and 3 with the respondent nos. 4, 5 and 6 have already been alienated and wrongly disbursed by the respondent nos. 1, 2 and 3 jointly and severally. He submits that the respondent nos. 1, 2 and 3 have also utilized part of the aggregate amount of Rs. 9,00,50,000/- for purchase of various immovable properties, insurance policies, jewellery, shares and other assets. He submits that there is every apprehension that the remaining portion of the aggregate amount of Rs. 9,00,50,000/- will be alienated or utilized by the respondent nos. 1, 2 and 3.

10. Mr. Mookherjee submits that in order to protect the interest and right of the petitioner, the ad-interim order passed by this Court is required to be made absolute till the disposal of the present suit.

11. Mr. Dhruba Ghosh, Learned Senior Advocate representing the respondent nos. 1, 2 and 3 submits that which amount is authorized and which amount is alleged to be unauthorized is the matter of trial. He submits that the petitioner has not disclosed their statement of accounts to say that the deceased had transferred the amount from the account of the petitioner. He submits that as per the document submitted by the petitioner, the deceased was having share trading and is entitled to get commission. As per the document submitted by the petitioner, the deceased was entitled to receive Rs. 12,98,248/-.

12. Mr. Ghosh submits that the deceased was enabling the petitioner to make profits of crores of Rupees through equity business for which the deceased was entitled to handsome commissions. He submits that during the financial year 2020-2021, the deceased has obtained a sum of Rs. 25 lakhs from the respondent no. 1. The deceased was also entitled to get an amount of Rs. 57,500/- and Rs. 78,164/- being the share of partnership from Hitech Air Systems and “MEHO HCP Air Systems Private Limited. He further submits that for the financial year 2022-2023, the deceased had paid loan of Rs. 40 lakhs to Hitech Air Systems.

13. Mr. Ghosh submits that the petitioner has not explained how the deceased unauthorizedly transferred the amount and the petitioner has suppressed their fault as well as the fact. He further submits that the petitioner had not diligently maintained their account and thus only on the allegation upon the deceased and the respondents herein is not entitled to get any interim order.

14. Mr. Ghosh submits that insurance amount cannot be attached and has relied upon Section 60 of the Code of Civil Procedure, 1908. Mr. Ghosh has relied upon the insurance policies and submits that some of the policies have been commenced before 2021 and some of the policies are in the name of the respondent no. 1 and the respondent no. 2, thus the said policies cannot be attached. Mr. Ghosh has relied upon the judgment in the case of Bomminayana Nirmala & Ors. vs. Rachapathu Krishnamurthy reported in 2010 SCC OnLine AP 216 and submits that the Hon’ble Court held that the amounts payable under an insurance policy on the life of the deceased are exempt from attachment for any amounts due by insured under Section 60(1)(kb) of the Code of Civil Procedure, 1908. He further relied upon the judgment in the case of Regional Manager, L.I.C. of India vs. John Bosco & Ors. reported in 2002-3-L.W. 600. He further relied upon the judgment in the case of The Federal Bank Limited vs. Indiradevi Kunjamma & Ors. reported in 1984 SCC OnLine Bom 246.

15. Mr. Ghosh further submits that pension and gratuity of the respondents cannot be attached. In support of his submission, he has relied upon the judgment in the case of Radhey Shyam Gupta vs. Punjab National Bank & Anr. reported in (2009) 1 SCC 376.

16. Mr. Ghosh submits that the petitioner has suppressed the material facts before this Court and thus the petitioner is not entitled to get any interim order. He has relied upon the judgment in the case of General Manger, Haryana Roadways vs. Jay Bhagwan & Anr. reported in (2008) 4 SCC 127.

17. Mr. Ghosh submits that the petitioner has disclosed several documents in the affidavit-in-reply including the income tax returns of the deceased and the respondent nos. 1, 2 and 3. On receipt of the said documents, the respondents by a communication dated 26th March, 2025, requested the petitioner for production of the documents relied by the petitioner in his affidavit-in-reply for the purpose of inspection as the said documents are the confidential documents of the respondent nos. 1, 2 and 3 but how the petitioner has got the said documents and disclosed in the affidavit-in-reply. He submits that inspite of receipt of the communication dated 26th March, 2025, the petitioner neither disclosed the documents for inspection nor has sent any reply and as such the petitioner has suppressed the material facts before this Court and intending to obtain interim order without disclosing the original documents to the respondents so as to enable the respondents to give proper reply to the documents relied by the petitioner.

18. Heard the Learned Counsels for the respective parties, perused the materials on record and the judgments relied upon by the parties. After the death of the deceased on 12th June, 2024, the petitioner to access the ICICI Bank account of the petitioner, downloaded the details of the statements and on scrutiny, the petitioner found that diverse unauthorized transactions which had remain undetected. The petitioner had made inquiry and found that on and from the financial year 2020-2021 till the death of the deceased, an amount of Rs. 8,95,50,000/- had been unauthorizedly debited from the ICICI Bank account of the petitioner and credited to the personal bank account of the deceased. The respondent no. 4 by two letters dated 29th June, 2024 and 24th July, 2024, confirmed the debit transactions from the account of the petitioner to the account of the deceased maintained with the same bank. The petitioner further discovered that an amount of Rs. 5,00,000/- had been unauthorizedly debited from the Kotak Mahindra Bank of the account of the petitioner and transferred to the personal account of the respondent no. 1. When the petitioner came to know about the unauthorized debit of the abovementioned amount from the account of the petitioner to the account of the deceased and the respondent no. 1, the petitioner has accessed the laptop and the desktop which the said deceased was using during the course of his employment in the office of the petitioner and found that the deceased has transferred several amounts which are as follows:



19. It is the specific case of the petitioner that the petitioner had trust and confidence upon the deceased and was bound in a fiduciary character to protect the interest of the petitioner but the deceased availing himself of the character of the petitioner, operated the bank account of the petitioner and misappropriated/transferred the amounts in the name of the third parties. The petitioner has relied upon Section 88 of the Indian Trusts Act, 1882 which reads as follows:

                    “88. Advantage gained by fiduciary.— Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.”

20. In the case of Abdul Razack & Ors. vs. Mahammad Rahamatullah & Ors. reported in AIR 1964 AP 522, the Hon’ble Division Bench of the Andhra Pradesh High Court held that a person who is in a fiduciary position and is bound to protect the interests of another person and who takes advantage of the same and makes profit or drives benefit or acts in any manner adverse to the interests of that person he would be liable to that person or hold the benefit as a trustee as that person whose property he had utilized or against whose interests he has utilized or against whose interests he had acted. The principle embodied in that section is wide. It embraces all cases of dealing entered into by the person under circumstances in which his own interests may be adverse to that of the beneficiary.

In the present case, it is not denied that the deceased was not employed with the petitioner. The respondents have denied that the accounts were maintained by the deceased. The documents which the petitioner has relied upon and from the details of the transactions, this Court prima facie finds that an amount of Rs. 8,95,50,000/- is transferred to the account of the deceased and subsequently the same was utilized by the deceased by transferring the same in other accounts, purchased properties, securities, insurance etc. without the knowledge of the petitioner. It is also prima facie finds that an amount of Rs. 5,00,000/- has been unauthorizedly debited from the Kotak Mahindra Bank account of the petitioner to the personal account of the respondent no. 1.

21. As regard to the issue raised by the respondents that the insurance amount of the insurance policy cannot be attached for the same Section 60(1)(kb) of the Code of Civil Procedure, 1908, reads as follows:

                    “60. Property liable to attachment and sale in execution of decree. –

                    (1)(kb) All moneys payable under a policy of insurance on the life of the judgment-debtor.”

22. The respondents have pointed out the policies in the name of the deceased, the respondent no. 1 and the respondent no. 2. The said policies were purchased prior to 2021 and when the policy will be matured, the respondent no. 1 and the respondent no. 2 will be entitled to get the same. The respondents have relied upon the judgment in the case of Federal Bank Ltd. (supra) wherein the Bombay High Court held that the monies payable under an insurance policy on the life of a judgment debtor are exempt from attachment and say by virtue of clause (kb) of Section 60(1) of the CPC, irrespective of circumstances as to whether the insurance policy matured during the lifetime of the assured or the monies become payable after his death. In the case of Bomminayana Nirmala (supra), the Andhra Pradesh High Court held that the amounts payable under insurance policies on the life of the deceased are exempt from attachment for any amounts due by insured under Section 60(1)(kb) of CPC. In the case of Regional Manager, L.I.C. of India (supra), the Madras High Court held that the moneys payable under the insurance policy of a judgment debtor are entirely exempt from the attachment and sale irrespective of the circumstances as to whether the insurance policy matures during the lifetime of the assured or the moneys become payable after the death of the judgment debtor.

23. In the present case altogether 14 insurances policies are in the name of the deceased or the respondent no. 1 or the respondent no. 2. All insurance policies of the deceased were purchased and commenced before the alleged period of fraud. The policies’ monies received by the respondent no. 1 as nominee, is received in the bank account maintained with the respondent no. 4 which is under lien. Considering the above, this Court finds that no interim order with regard to the insurance policies of the deceased or of the respondent nos. 1 and 2 can be continued.

24. The respondents have raised the issue with regard to suppression of fact but the respondents have not brought to the notice to the Court with respect to any circumstances to say that the petitioner has suppressed any material facts. In affidavit-in- reply, the petitioner has disclosed several documents relating to the accounts, income tax and other documents of the deceased. On receipt of the copy of affidavit in reply along with the documents, the respondents had sent a letter to the petitioner for disclosure of the documents relied by the petitioner for inspection but the petitioner has neither given any reply nor has disclosed the documents to the respondents for inspection. This Court finds that the petitioner has filed an application for grant of interim order. Whatever the documents were available with the petitioner, the petitioner has disclosed the same in the plaint as well as in the application subsequently, the petitioner has discovered the documents and disclosed in the affidavit-in-reply. The documents which the petitioner has relied upon have already served the copy of the same to the respondents. The respondents have not filed any rejoinder by denying the said documents. The respondents have not disclosed any counter document to satisfy this Court that the documents relied by the petitioner are not genuine or the material documents have been suppressed by the petitioner.

25. Being aggrieved with the order passed by this Court dated 12th September, 2024, the respondent no. 1 had preferred an appeal in the said appeal, the appellate Court permitted the respondent no. 1 to withdraw a sum not more than Rs. 24,00,000/- from the account bearing No. 32710422532 maintained with the respondent no. 4, Standard Chartered Bank and subsequently by an order dated 19th September, 2025, this Court had further allowed the respondent no. 1 to withdraw an amount of Rs. 2,00,000/- from the ICICI Bank being Account No. 130001506221, Lake Road Branch, Kolkata– 700 029, without prejudiced the right and contentions of the petitioner.

26. Considering the above, this Court finds that the petitioner has made out a prima facie case and balance of convenience and inconvenience in favour of the petitioner. This Court also considered that if at this stage, the ad interim order is vacated, the petitioner will suffer irreparable loss and injury and there will be every chance of that the respondents will further alienate the property and the assets which are the subjectmatter of the present suit.

27. In view of the above, the ad interim order granted by this Court dated 12th September, 2024, is made absolute except to the amounts involved in the insurance policies.

28. GA No. 1 of 2024 is disposed of.

Later:

Counsel for the petitioner prays for stay of the operation of the interim order. This Court considered the submission, prayer is refused.