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The Arbitration And Conciliation Act, 1996

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Calcutta High Court
Bangabhumi Housing Pvt. Ltd vs Shima Ghosh And Ors on 28 September, 2012
Author: Sanjib Banerjee

AP No.585 of 2010

IN THE HIGH COURT AT CALCUTTA

Ordinary Original Civil Jurisdiction

ORIGINAL SIDE

BANGABHUMI HOUSING PVT. LTD.

Versus

SHIMA GHOSH AND ORS.

BEFORE:

The Hon'ble JUSTICE SANJIB BANERJEE

Date : 28th September, 2012.

Appearance:

Mr. Shyamal Sarkar, Adv.

Mr. J. Chowdhury, Adv.

The Court : This is a petition under Section 9 of the Arbitration and Conciliation Act, 1996, relating to an immovable property at 119, Park Street known as the White House. The petitioner claims to have entered into an agreement with the respondents for the purchase of the property. The petitioner says that the sale was on the basis that there was no encumbrance in respect of the property save its existing lease till the year 2040. According to the petitioner, subsequent to the execution of the agreement for sale and prior to the time fixed thereunder for making final payment, the petitioner discovered that the respondent no.5 herein had sought to grant a lease for a further period of forty years between 2040 and 2

2080 to another person and the respondent no.5 had concealed such matter at the time of executing the agreement of May 12, 2010. There is an order subsisting in the petitioner's favour that restrains the respondents from selling the property or creating any third party rights in favour of any person in respect of the property. The land measuring about two bighas and the building and structures thereat at premises no.119, Park Street was formerly owned by two brothers who expired in 1993 and 1995. The respondent nos. 1 to 4 are the heirs of one of the brothers and the respondent no.5 is only heir of the other brother. Between the respondents, they are the joint owners of the property with the respondent nos.1 to 4 being entitled to the undivided half share therein and the respondent no.5 entitled to the remainder. The petitioner says that the disputes with the respondent nos. 1 to 4 have been resolved and the respondent nos. 1 to 4 have agreed to abide by the agreement and execute the conveyance relating to their undivided half share in the property. The petitioner seeks the continuation of the injunction for a short time against the respondent nos. 1 to 4 pending the execution of the conveyance.

It has been the assertion of the respondent no.5 that notwithstanding the petitioner claiming that the petitioner was not made aware of the lease for a further period of forty years granted by the fifth respondent in the year 1998, such agreement is in favour of an associate of the petitioner or the person in whose favour such agreement was executed 3

is so closely connected with the petitioner that the fifth respondent did not consider it necessary to expressly indicate such fact and have it recorded in the agreement with the petitioner. The petitioner disputes such contention.

The agreement of May 12, 2010 provided for the payment of an initial sum upon the execution of the agreement and for the payment of the balance amount simultaneously with the execution of the deed of conveyance which was proposed to be completed within six months or so from the date of the agreement for sale. The fifth respondent had received an amount of Rs.1.5 crore upon the execution of the agreement and the fifth respondent is entitled to receive a further sum of Rs.4.5 crore in terms of the agreement. The fifth respondent says that though the arbitral reference is continuing, it will be inequitable for the petitioner to obtain a blanket order of injunction in respect of the property without the petitioner being put on terms.

In course of the hearing, an offer was given by Court to the petitioner to either deposit the balance consideration due under the agreement to the fifth respondent together with interest thereon from the due date of deposit thereof till the date of actual deposit for the petitioner to continue enjoying the order of injunction against the fifth respondent; or, the order of injunction would be vacated upon the fifth respondent depositing the amount received from the petitioner together with interest thereon from the date of receipt till the date of deposit. The petitioner says 4

that the injunction should continue unless the fifth respondent deposits the amount received by the fifth respondent together with reasonable interest thereon within a short time.

The order of injunction as subsisting against the respondent nos. 1 to 4 will continue only for six weeks from date within which the deed of conveyance relating to such respondents' undivided share in the property may be executed. The order of injunction against the fifth respondent will continue till such time within six weeks from date that the respondent no.5 is able to deposit the sum of Rs.1.5 crore together with interest thereon at the rate of 8 per cent per annum (simple) from the date of the receipt of payment till the date of deposit. The entire amount of Rs.1.5 crore plus interest thereon should be deposited by way of a fixed deposit with any nationalised bank and the deposit should be continued without any lien or any encumbrance. A copy of the fixed deposit receipt will be made over to advocate representing the petitioner within eight weeks from date. In default of the deposit being made within the time indicated, the subsisting order of injunction will continue. The petitioner's exercise of the option is without prejudice to the petitioner's rights and contentions in the pending reference; but upon the fifth respondent depositing the money as above, there will be no embargo on the fifth respondent from dealing with the fifth respondent's undivided interest in the immovable property in any manner whatsoever. 5

The amount to be deposited by the fifth respondent will abide by any order to be made in proceedings in connection with the pending reference.

The parties hope that the arbitral reference would be concluded as expeditiously as possible and the fifth respondent suggests that there is no reason for the reference not to be concluded by the end of this year. AP No. 585 of 2010 is disposed of without any order as to costs. Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (SANJIB BANERJEE, J.)

bp./kc.