Emami Capital Markets Ltd vs Ideal Real Estate Pvt Ltd And Anr on 14 September, 2020

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Calcutta High Court

Emami Capital Markets Ltd vs Ideal Real Estate Pvt Ltd And Anr on 14 September, 2020

Bench: Shivakant Prasad

OD 9

                         AP 207 of 2020
                    IA NO. GA NO. 1 of 2020
                    (Old GA No. 990 of 2020)
              IN THE HIGH COURT AT CALCUTTA
               Ordinary Original Civil Jurisdiction
                         ORIGINAL SIDE



                EMAMI CAPITAL MARKETS LTD
                         VERSUS
            IDEAL REAL ESTATE PVT LTD AND ANR.

  BEFORE:

  The Hon'ble JUSTICE SHIVAKANT PRASAD

  Date : 14th September, 2020.


                                               For the petitioner:
                                              Mr. A.Mitra,Sr. Adv.
                                             Mr. Ajay Gaggar,Adv.
                                       Mr. Shreedhar Gaggar,Adv.
                                         Mr. S.Bhattacharya,Adv.

                                             For the respondents:

Mr. Dripto Majumdar,Adv.

Mr. Samrat Sen,Adv.

Mr. Paritosh Sinha,Adv.

Mr. Saubhik Chowdhury,Adv.

Mr. Aditya Dutta,Adv.

Mr. Akash Dutta,Adv.

Mr. Abhrajit Mitra,Sr. Adv.

Mr. Dinabandhu Chowdhury,Adv.

Mr. Tanmoy Mukherjee,Adv.

Mr. Amal Kumar Saha,Adv.

Mr. I.Paul,Adv.

The Court:-This is an application under Section 9 of the Arbitration and Conciliation Act, 1996 by which the petitioner had prayed for an order of injunction restraining the respondents, their men, servants, agents and/or assigns from withdrawing any amount from any of their bank accounts, including those mentioned in paragraph 48 hereof without keeping apart a sum of Rs. 70,80,61,644/-. By an order dated 25th August, 2020, a Co- ordinate Bench of this Hon'ble Court has passed an order of injunction in favour of the petitioner. However, a maintainability of the application and the jurisdiction of this Hon'ble Court as well has been addressed by the respondents and the question of maintainability has been kept open to be argued by the respondents on the next date with further direction that it would be open to the parties to seek for any further interim order and/or modification of this order passed on the said date and thus this matter appeared on the next date and in the order aforesaid a direction was given to the respondents to take appropriate instruction as to the present status, ownership and possession mentioned above and disclose the same to the Court on the next date of hearing.

This last part of the direction in the order has not complied with. However, the learned Advocate for the respondents previously raised the point of maintainability on account of the jurisdiction of this Court as well. It is pointed out that charge over which the immovable property as appears from the agreement and the materials on record are with regard to the mortgaged property and enforcement of such a charge cannot be maintained and is not permissible under Arbitration as they are not the subject matter of the arbitration and particularly before this Hon'ble Court in consideration of the parties agreeing to refer their disputes and differences to the arbitration in Kolkata. So, Kolkata does not mean this Hon'ble Court as the suit properties are situated within the jurisdiction of Alipore the District of 24 Pgs. (South). Firstly, as per the agreement, separate provisions appear therein. Secondly, with regard to performance of mortgaged properties of New Alipore, it does not fall within the jurisdiction of this Court. Thirdly, injunction can be had only before the Court having jurisdiction where the properties situated. Fourthly, injunction in respect of loan agreements dated 27th January, 2014, 7th November, 2014 and 16th May, 2015, cause of actions are different and they cannot be clubbed together. Fifthly, all the terms being the security 4 amount and the default clauses are different. Lastly, the agreements suffer from insufficiency of the stamp put thereon and in such a case as per the settled principle of law the agreement in the arbitration cannot be considered and cannot be viewed as agreement for arbitration. At this stage learned Advocate for the respondents submits for a week time to file affidavit in opposition in corporating the maintainability of the case together with the report concerning the status, ownership and possession with regard to the properties mentioned in the application.

Let the matter be listed one week hence with liberty to the parties to exchange their affidavits.

(SHIVAKANT PRASAD,J.) s.chandra

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