Calcutta High Court
Magma Fincorp Ltd vs Jmd Mega And Infrastructures Ltd. & Ors on 5 September, 2018
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.2476 of 2018
With
EC No.140 of 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
MAGMA FINCORP LTD.
Versus
JMD MEGA AND INFRASTRUCTURES LTD. & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date: 5th September, 2018.
Appearance:
Mr. Swatarup Banerjee, Adv.
Mr. K.K. Pandey, Adv.
Mr. Sreyash Basu Dasgupta, Adv.
Mr. Manish Kumar Mishra, Adv.
Mr. Supratim Laha, Adv.
The Court: This is a ploy by one of the partners of the judgment debtor no.6 to scuttle the enforcement of the award. Mr. Mainak Bose representing the judgment debtor no.1 has on the last occasion submitted that the partnership firm is the owner of the property and the partnership firm has no objection in the event the said property is sold in execution of the award against the judgment debtors. The property belongs to judgment debtor no.6. A mortgage was created by the judgment debtor no.6 and the judgment debtor no.1 in the capacity as co-borrower in favour of the decree holder by a registered deed of mortgage executed on July 8, 2014. The original title deed of property was deposited with the mortgagor as security for the deed. The award records that the borrower as well as co-borrower made few payments and thereafter did not pay the 2 remaining balance amount. The plaintiff instituted a proceeding against the borrower as well as the co-borrowers for realization of the loan amount. The award has been passed on 25th July, 2018 in favour of the decree holder. The said decree is now put into execution. Although the property situated outside the jurisdiction of this Court but at the invitation of the judgment debtor no.1 and on a submission made that the judgment debtor no.1 would have no objection in the event the property is sold in this proceeding a Receiver was appointed over the property with a direction to make valuation. The Receiver inspected the said property on 3rd August, 2018 when the Receiver did not find any trace of the applicant. On 31st August, 2018 Mr. Shantanu Das claiming to be one of the partners of the judgment debtor no.6 has filed this application for a declaration that the award is null and void and not binding on the applicant. The applicant claims to be a partner of the judgment debtor no.6. The applicant has failed to give any satisfactory explanation as to why being a partner he did not inspect the accounts of the partnership and find out the status of the property in question. The judgment debtor no.6 is the principal borrower and has benefited from the loan. The original title deed could not have been deposited with the award holder without the knowledge of the partners of the judgment debtor no.6. It is not the case of the judgment debtor no.6 that he was not allowed to inspect the accounts or he did not have any access to the books of accounts of the partnership. Even otherwise if it were the contention of the applicant that he was not given access to the books or allowed to participate in the business one would have expected him to take legal recourse against the other partners and assert his right. The applicant seems to have not done anything in this regard. The applicant at this stage urged that the judgment debtors are in collusion with each and have perpetrated fraud on the applicant. The applicant has failed to substantiate his right in this proceeding. The case made out by the applicant is unbelievable. It is 3 difficult to accept that he was unaware of the creation of mortgage. In any event this application is barred by delay, latches and acquiescence.
Under such circumstances GA No.2476 of 2018 stands dismissed. However, there shall be no order as to costs.
(SOUMEN SEN, J.) sp/