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2016 DIGILAW 867 (CAL)

Jayanti Sounth v. Maitrayee Das

2016-11-10

ARINDAM SINHA, GIRISH CHANDRA GUPTA

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Girish Chandra Gupta, J : 1. The appellants applied under section 9 of the Arbitration and Conciliation Act, 1996 praying for the following reliefs:– “(a) Injunction restraining the respondent above named from dealing with and/or disposing or and/or creating any third party right or interest in respect of the property or any part or portion thereof, which is more fully mentioned and described in the schedule herein under written. (b) Mandatory injunction directing the respondent above named not to give effect or further effect to the cancellation of partnership agreement and the revocation power of attorney in connection with the said Hotel Hirak Jayanti at New Digha.” 2. The learned trial court dismissed the petition, inter alia, on the grounds that the petitioners had failed to produce books of accounts, trade licence or any other related document to show that the firm had actual existence or that the profits of the firm were distributed. The respondent had contended, inter alia, that the petitioners were engaged in running a business of a chit fund illegally by projecting the hotel as their business. The petitioners aggrieved by the order have now come up before this court. 3. It is not in dispute that the appellants before us have 90 per cent share in the profit and loss of the partnership whereas the respondent has the balance 10 per cent share. It is also not in dispute that the land belonged to the respondent on which the hotel building has been constructed by the appellants by applying their own fund. The appellants apprehend that the respondent is interested in selling out the property. That was the reason why the application for injunction was filed. 4. It appears that the respondent had borrowed fund from IDBI and the bank has taken steps under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The bank as the mortgagee naturally has the right to recover its dues by selling the property. We by our order dated November 7, 2016 have given notice to the bank in order to ascertain their dues so that the parties to the appeal or any one of them may by paying the dues of the bank redeem the mortgage. Pursuant to such notice Mr Mukherjee appeared for the bank and submitted that the dues are in the region of Rs.3.86 crores. Pursuant to such notice Mr Mukherjee appeared for the bank and submitted that the dues are in the region of Rs.3.86 crores. He however shall furnish the break up indicating the amount of principal and interest. Such break up shall be furnished by next Tuesday – November 15, 2016. 5. Mr Bandyopadhyay, learned senior counsel appearing for the respondent, submitted that the respondent has already procured a buyer who is willing to buy the property. The respondent intends to pay up the dues of the bank. 6. In our view, the respondent cannot be allowed to sell the property for the following reasons – (a) admittedly, there is a partnership; (b) admittedly, the land was contributed by the respondent and the building thereupon has been constructed by the appellants. Therefore, the land and building now belongs to the partnership. The respondent, prima facie, has no right to sell the property or even the leasehold interest in the land upon which the building has been constructed. 7. There is a serious dispute between the partners which requires to be adjudicated upon by an arbitrator. To have the disputes resolved by the arbitrator as also to secure the interest of the parties to this appeal, the following order is passed. 8. The appellants shall be entitled to redeem the mortgage upon payment of dues of the bank. Mr Mukherjee appearing for the bank submitted that he shall furnish the particulars of the sum of Rs.3.86 crore by next Tuesday. It will be open to the parties to the appeal to check the correctness of the accounts to be furnished. If there is any mistake or inaccuracy, it will be open to them or any of them to point out the same to the bank for proper correction. The appellants shall pay up the dues of the bank. They shall thus be entitled to redeem the mortgage. 9. It is clarified that the bank is not a party to this proceeding. It is not intended to pass any order against the bank. We have merely granted liberty to the appellants to redeem the mortgage. In case the appellants fail to do so within three months, the bank shall be entitled to take steps in accordance with law. 10. It is clarified that the bank is not a party to this proceeding. It is not intended to pass any order against the bank. We have merely granted liberty to the appellants to redeem the mortgage. In case the appellants fail to do so within three months, the bank shall be entitled to take steps in accordance with law. 10. In the event the mortgage is redeemed, the parties to this appeal, who are the partners, shall be entitled to carry on the business under the supervision of a receiver. Mr Ashoke Gupta, an advocate of this court, is appointed receiver at a monthly remuneration of 1000 G.Ms. to come out from the issues and profit of the partnership firm. He shall hold inspection twice in a month and keep such supervision so that the business can smoothly run and at the same time no illegal activities may be undertaken by any of the parties. 11. The respondent is restrained by an order of injunction from transferring the property. In the event the mortgage is not redeemed within three months from date, this appeal shall stand dismissed. 12. It is made clear that the proceedings pending before the Debt Recovery Tribunal shall remain stayed for a period of three months. 13. The title deed shall be made over to the receiver appointed by this court. He shall hold the same subject to further order to be passed by court or the arbitrator, as the case may be. The appeal and the application (CAN No.9819) are thus disposed of. 14. Certified photostat copy of this order, if applied for, shall be given to the parties.