Calcutta High Court
Emami Capital Markets Ltd vs Ideal Real Estate Pvt Ltd And Anr on 14 September, 2020OD 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.
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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.
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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
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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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