Calcutta High Court
M/S. Dunlop India Limited(In Liqn) vs Smifs Capital Markets Ltd on 5 September, 2018
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
ORDER SHEET
CA 221/2018
CP 233/2008
CA 485/2017
IN THE HIGH COURT AT CALCUTTA
Original Jurisdiction
ORIGINAL SIDE
IN THE MATTER OF :
M/S. DUNLOP INDIA LIMITED(IN LIQN)
-AND-
SMIFS CAPITAL MARKETS LTD.
Versus
THE O/L, HIGH COURT, CALCUTTA
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 5th September, 2018.
Appearance :
Mr.S.K. Kapur, Sr. Adv., Mr.Jishu Saha, Sr. Adv., Mrs.Manju Bhuteria, Mr.Rudraman Bhattacharya, Mr.Arijit Basu, Mr.Sourajit Dasgupta, Advs.
Mr. Madhu Sudan Sarka, Adv.
Mr. Hiram Kumar Mitra, Sr. Adv., Mr. Ratnanko Banerji, Sr. Adv., Mr. S. Chatterjee, Mr. M.K. Seal, Advs.
Ms. Urmila Chakraborty, Ms. Arnabi Dutta, Advs.
Mr. Rajratna Sen, Mr. Anupam Dasadhikari, Advs.
Re : CA 221/2018 The Court : The applicant in this application, being one of the unsecured creditors of the company (in liquidation) prays for an interim order in terms of prayer (c) of the Judge's Summons to the effect that ICICI 2 Bank be restrained from selling or transferring or alienating or encumbering or parting with possession of the property situate at Plot No.132-A, having C.S. No.4/163 of Lower Parel Division at Dr. Annie Besant Road, Mumbai. The grounds urged by the applicant are, inter alia, that ICICI Bank has purchased by the said property in an auction sale conducted by itself and by committing fraud on Courts, including the Supreme Court of India.
However, Mr. Mitra, learned Senior Counsel appearing for the ICICI Bank raised strong objection to the maintainability of this application. He also opposed the prayer of the applicant for an interim order in terms of prayer (c) of the Judges Summons. Mr. Mitra submitted that the property in question was mortgaged in favour of ICICI Bank and the latter sold the property in exercise of power under sub-sections (5-A), (5-B) of Section 13 and other provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (in short, "the SARFAESI Act") after obtaining leave from the Hon'ble Supreme Court. In this regard, he referred to the orders dated February 12, 2016 and September 9, 2016 in I.A. 39-40/2015, passed by the Hon'ble Supreme Court in petition(s) For Special Leave to Appeal (C) No(s). 18265-18266/2013. It was further submitted that even under Section 34 of the SARFAESI Act, this Court lacks the jurisdiction to entertain the present application to challenge the sale of the said property.
Considering the submissions made by the learned Senior Counsel appearing for the applicant and ICICI Bank, as well as the aforementioned orders dated February 12, 2016 and September 9, 2016 passed by the Hon'ble Supreme Court I find some substance in the contentions raised on behalf of the ICICI Bank. The point of maintainability shall be decided at the time of hearing of this application.
Under the circumstances, I am not inclined to pass any interim order as prayed for by the applicant, at this stage, As prayed for by the parties, let this application appear on September 25, 2018.
(ASHIS KUMAR CHAKRABORTY, J.) S.Das AR[CR]