Techno Electric And Engineering Company Limited vs Mcleod Russel India Limited

Arindam Sinha, J

The Court : Mr. Bose, learned senior advocate appears on behalf of respondent no.1 and argues out his client's case in opposing this arbitration petition for interim measure. He first addresses on observation made by Court recorded in order dated 6th August, 2019. The observation is reproduced below:

"Respondents will be heard on adjourned date. They will also consider application of section 52 in Transfer of Property Act, 1882 with regard to transactions had between themselves, post notice of filing of this proceeding. They will be at liberty to show that the transaction was prior to filing of this proceeding."

He submits, it is petitioner's case that its contention is for interim measure being directed on it having sued his client in personem. That contention is also recorded in order dated 6th August, 2019. As such, there cannot be contra contention that in this proceeding some right to immovable property is directly or specifically in question.

Mr. Bose relies on judgment of a Division Bench of this Court in Bablu Ghosh Vs. Amrit Fresh Private Ltd. reported in 2016(3) CHN (CAL) 214, paragraphs 3, 8, 12, 13, 16, 20, 21 and 42 for view expressed that section 52 of Transfer of Property Act, 1882 has no application to arbitration proceedings. He also relies on view expressed by a learned Single Judge of High Court of Gauhati by judgment dated 25th July, 2013 in Arbitration Appeal 2 of 2013 (Brahmaputra Realtors Pvt. Ltd. Vs. G.G. Transport (P) Ltd. and Ors.) wherein same view has been expressed in paragraph 31, which is reproduced below:

"31. Once the suit is disposed of in terms of arbitration agreement by referring the matter to the arbitration, all obligations would be governed in terms of the Arbitration and Conciliation Act, 1996, after the matter is referred to the Arbitrator. The suit which was filed initially would not remain stayed; rather it stands disposed of upon allowing an Application under Section 8 of the Act. The rights of the parties would be adjudicated in terms of the agreement between them not otherwise. Therefore, as held by the learned trial court, the doctrine of lis-pendense cannot be stretched to an arbitration proceeding." Without prejudice to his above submissions, he relies on another Division Bench judgment of this Court in Syed Jaynal Abedin Vs. Moulvi Hyderali Khan Pani reported in 32 CWN 268, wherein finding was, the suit was not one, in which any right to immovable property was directly or specifically in question. He reiterates, petitioner's case against his client being in personem, no right to immovable property can be a question in this proceeding.

Moving on to merits of the petition, he draws attention to his client's affidavit-in-opposition wherein it disclosed valuation report dated 16th July, 2018, of valuer registered with, Ministry of Finance, Government of India and empanelled with this Court. He puts emphasis on value given of Sunny Park property having, inter alia, 32 cottahs of land and two storied brick built structure, to be in excess of Rs.87 crores. He submits, petitioner is sufficiently secured being an unsecured creditor having custody of title deeds of this property as well as a tea garden belonging to his client. Claim of petitioner is disputed and till before adjudication no further direction on interim measure, petitioner is entitled to. Mr. Bose concludes his submissions.

Court had requirement for assistance on what was passing through its mind, which is why observation regarding lis pendens was made in order dated 6th August, 2019. It is not a contention alleged by petitioner. Respondent no.1 has argued on the point. Other parties may or may not respond.

Added respondent will be heard on adjourned date, after which petitioner in reply.

List on 13th August, 2019.