Calcutta High Court
Edelweiss Asset Reconstruction ... vs Jmd Mega And Infrastructutes Ltd. And ... on 18 July, 2024
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
OD-29
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
EC/140/2018
IA NO: GA/3/2018(Old No:GA/2776/2018), GA/4/2018(Old
No:GA/2954/2018)
EDELWEISS ASSET RECONSTRUCTION COMPANY LTD.
VS
JMD MEGA AND INFRASTRUCTUTES LTD. AND ORS.
BEFORE :
THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA
Date : 18th July, 2024
Appearance:
Mr. Swatarup Banerjee, Adv.
Mr. K.K. Pandey, Adv.
Ms. Enakshi Saha, Adv.
...for the award-holder.
Mr. A.K.M. Abdul, Adv.
Mr. Aniket Mitra, Adv.
Mr. Arnab Mukherjee, Adv.
Mr. M. Ahmed, Adv.
...for the applicant in GA/3/2018 and GA/4/2018.
The Court : The Receiver's report, filed in a sealed envelope today, be
kept on record.
However, no orders need be passed right now in view of Section
GA/4/2018, which is an application filed by third parties to the award,
purportedly under Order XXI Rules 97 to 101 of the Code of Civil Procedure.
Such application is taken up for hearing first.
The present application under Order XXI Rules 97 to 101 has been
preferred by a third party to the arbitral award.
2
Although the issue of maintainability was sought to be taken up first by
the Court, learned counsel for the respondent points out that the respondent
(award-holder) does not stake any claim to the property of the third party/applicant in the application under Order XXI Rules 97 to 101 of the Code of Civil Procedure.
It is pointed out from paragraph no.7 (b) of the application that the claim of the third party applicant is restricted to Dag Nos.2123 and 2131, pertaining to present Plot Nos.56, 57 and 57/1, Bosepukur Road, Kolkata-700 042 in the records of the Kolkata Municipal Corporation.
In the affidavit-in-opposition filed to such application, it is found that the property mortgaged to the award-holder is entirely different from the property of the third party applicant, being present Municipal Premises No.50, Bosepukur Road, Kolkata-700 042 under Municipal Ward No.67 of the Kolkata Municipal Corporation, which originally fell within Dag Nos.2122 and not 2123 and/or 2131 of Mouza-Kasba.
As such, the entire arguments of with the third party applicant can be resolved even without entering into the issue of maintainability.
It is clearly and unambiguously admitted by the award-holder that their claim is restricted to present municipal Premises No.50, Bosepukur Road, Kolkata-700 042 under municipal Ward No.67 of the Kolkata Municipal Corporation, which forms part of Dag No.2122 under Khatian No.472 in Mouza-Kasba. On the other hand, the property to which the third party applicant stakes claim is present Plot Nos.56, 57 and 57/1, Bosepukur Road, Kolkata-700 042 in the records of the Kolkata Municipal Corporation, which pertains to Dag Nos.2123 and 2131 of Mouza-Kasba.
3
Since the property of the third party applicant and the subject-matter of the present award are entirely distinct and different, the implementation of the award does not and cannot in any way hamper the right, title and interest of the third party applicant to their property in Plot Nos.56, 57 and 57/1, Bosepukur Road, Kolkata-700 042 within Dag Nos.2123 and 2131 of Mouza- Kasba.
Accordingly, GA/4/2018(Old No:GA/2954/2018) is disposed of in the light of the above observations, making it clear that the subject matter of the current execution proceeding has nothing to do with the separate and distinct property of the third party applicant.
GA/3/2018(Old No:GA/2776/2018) is, accordingly, disposed of as well. It is made clear that consequent to the above order, the previous directions to conduct sale in respect of Premises No.57/1, Bosepukur Road, Kolkata-700 042 stand hereby recalled.
The learned Receiver shall take steps to conduct sale in respect of Premises No.50, Bosepukur Road, Kolkata-700 042 under municipal Ward No.67 of the Kolkata Municipal Corporation, which forms a part of Dag No.2122 under Khatian No.472 in Mouza-Kasba, JL No.13, RS No.233 under Police Station-Kasba in the District of South 24 Parganas. A remuneration to the tune of 2500 GMs. shall be paid for the present to the learned Receiver by the award-holder within a fortnight from date.
The advertisement in that regard shall be published by the learned Receiver within a fortnight from date. A report with regard to the outcome of such advertisement and the subsequent steps taken by the learned Receiver in respect of such sale shall be apprised to the Court by way of a further report to be filed by the Receiver on the next returnable date. 4
The matter shall next be listed on August 29, 2024 for passing further orders in that regard.
(SABYASACHI BHATTACHARYYA, J.) s.pal