Calcutta High Court
Aditya Birla Finance Limited vs M/S. Lokenath Enterprise&Ors on 6 January, 2025
Author: Shampa Sarkar
Bench: Shampa Sarkar
OC-32
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
AP-COM/1000/2024
ADITYA BIRLA FINANCE LIMITED
VS
M/S. LOKENATH ENTERPRISE&ORS.
BEFORE:
The Hon'ble JUSTICE SHAMPA SARKAR
Date : 6th January, 2025.
Appearance:
Mrs. Tutul Das Singh, Adv.
Mr. Amar Singh, Adv.
Mr. Ranjit Singh, Adv.
Ms. Pooja Sett, Adv.
Mr. Pranit Biswas, Adv.
Mr. R. Deb Banerjee, Adv.
...for the petitioner.
The Court: Affidavit of service is taken on record. It appears
that the respondents have been served.
Perused the pleadings in paragraphs 27 to 29 of the application in respect of the jurisdiction of this Court to entertain the application. The loan agreement was executed at the branch office of the petitioner situated at 2nd Floor, Bangur BFL Estate, 31, Chowringhee Road, Kolkata - 700 016, as per the averments.
A credit facility agreement was entered into between the petitioner which is a non-banking finance company and the respondents. The agreement contains an arbitration clause. The respondent nos. 1 and 2 are the borrowers and the respondent no.3 is 2 the co-borrower. As a security to the credit facility extended by the petitioner, the respondents created mortgage of an immovable property being ALL THAT piece and parcel of land lying and situated at Mouza-Rambhadral, J.L. No. 7, R.S. No. 43, Touzi No. 226-183, L.R. Khatian No.- 19, under L.R. Dag No. 1305, Holding No. - 214 at K. C. Ghosh Road, as per Deed Holding No.195 at K. C. Ghosh Road, P. S. Kharda, Sodepur, Panihati(M), Dist. North 24 Parganas, W.B.- 700110. The total credit facility sanctioned was Rs.25,50,000/-. According to the petitioner, the same was payable by 188 equal monthly instalments at the rate of Rs.35,690/- each. The respondents defaulted. A loan recall notice was issued by the petitioner. Despite such notice, it is alleged that the respondents failed and neglected to pay the monthly instalments as per the agreement. At present, the claim of the petitioner is allegedly Rs.31,71,691/-.
This Court is, prima facie, satisfied that the credit facility was extended to the respondents. The respondents created equitable mortgage of the property mentioned above. Huge amount is payable as per the demand cum loan recall notice. The said notice was allegedly received as per the postal receipts annexed to the application.
Under such circumstances, in order to protect the claim of the petitioner, this Court directs that the property mortgaged to the financier company shall not be transferred, alienated or encumbered in any way. No third party rights will be created by the respondents in respect of the said property. The nature and character of the said 3 property shall also not be altered or changed. The property is described in the following manner :
"ALL THAT piece and parcel of land lying and situated at Mouza -Rambhadral, J.L. No. 7, R.S. No. 43, Touzi No. 226- 183, L.R. Khatian No.- 19, under L.R. Dag No. 1305, Holding No. - 214 at K. C. Ghosh Road as per Deed Holding No.195 at K. C. Ghosh Road, P. S. Kharda, Sodepur, Panihati(M), Dist. North 24 Parganas, W.B.-700110."
This order shall continue for a period of two months within which time the petitioner will take appropriate steps.
Prayer for appointment of a Receiver is not considered, at this stage.
Let this matter appear in the monthly list of March, 2025. Fresh service upon the respondents along with the copy of this order be effected in the addresses which are available with the lender in its record.
(SHAMPA SARKAR, J.) pa/sb