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Judgment
Re: C. O. No. 2628 of 2018
Affidavit-of-service filed in Court today be taken on record. The present revision has been preferred against an order passed by the Debts Recovery
Appellate Tribunal, Kolkata, thereby affirming an order of injunction passed by the Debts Recovery Tribunal restraining the defendants therein from
transferring, alienating and/or creating any third party interest in respect of the immovable property, that is, a flat situated at Premises No. 14/2B,
Jainuddin Mistry Lane, Ward No. 82, Kolkata- 700 027.
Learned counsel for the petitioner argues that although the petitioner is a developer in respect of the premises-in-question and valuable rights have
accrued in its favour by virtue of a development agreement and other contemporaneous documents, the injunction order was passed by the Tribunal
behind the back of the petitioner, without him being impleaded in the said proceeding. It is argued that the application under Section 19 of the
Recovery of Debts and Bankruptcy Act, 1993 did not contain any prayer for injunction in respect of the aforesaid premises, nor the schedule given in
the said application, in respect of which injunction was sought, encompass the suit property at 14/2B, Jainuddin Mistry Lane, Kolkata- 700 027.
It is further argued that, at the point of time when the said injunction order was first passed by the tribunal, a development agreement between the
petitioner and the borrower was already in place, which virtually conferred rights akin to ownership in favour of the petitioner. In such view of the
matter, it is submitted, the tribunals below acted without jurisdiction in granting injunction in respect of the said property, more so since the property
was not even the subject matter of the mortgage between the borrower and the bank.
This apart, it is submitted that the bank did not come with clean hands, since it was well aware of the interest of the developer/petitioner but merely
communicated the injunction order to the petitioner after it was passed, instead of impleading the petitioner in the proceeding. Learned senior counsel
appearing for the borrower, who has also taken out a second revisional application, bearing C. O. No. 3142 of 2018, against the same order of
affirmance of injunction, argued that, despite a specific direction by the tribunal that the bank and the borrower were to enter into a compromise, the
bank went on with the proceeding and sought for the injunction instead of implementing such order. However, learned senior counsel submitted that he
would be arguing on the merits of the case at the final hearing.
Learned counsel appearing for the opposite party no. 1/bank argues that the developer/petitioner was all along aware of the encumbrances of the
property in favour of the opposite party no. 1/bank. In this context, learned counsel places reliance upon an annexure to the application under Section
19 of the said Act of 1993, which was apparently a declaration of boundary given by the borrower, containing a mention about the disputed property.
Since the said document was a part of the record, it is submitted that the injunction order and prayer automatically encompass such property also.
It is further submitted that the borrower, in its revisional application, has admitted that the developer was aware of other encumbrances on the suit
property and as such, the developer is merely feigning ignorance in respect of the bank’s interest in respect of the present disputed property. It is
next submitted by learned counsel for the opposite party no. 1/bank that the purported development agreement only created an agency in favour of the
developer and no ownership rights devolved thereby. As such, there was no impediment for the bank to proceed against the borrower in respect of the
disputed property, since the said property still belonged to the borrower. Learned counsel places reliance on several clauses of the development
agreement to establish such propositions.
Upon hearing learned counsel appearing for all the parties, it appears that the petitioner in C. O. No. 2628 of 2018 has made out a prima facie triable
question for the hearing of this revisional application. Ingredients necessary in law for grant of stay of a portion of the impugned order have been
satisfied by the petitioner, inasmuch as this Court is of the prima facie opinion that the tribunals below acted without jurisdiction in granting injunction in
respect of the disputed property at 14/2B, Jainuddin Mistry Lane, Kolkata- 700 027, which was neither a subject of the mortgage-in-question nor a
parcel of the injunction prayer made in the tribunal.
In such view of the matter, let C. O. No. 2628 of 2018 and C. O. No. 3142 of 2018 appear together for hearing under the heading ‘specially fixed
matters’ on November 20, 2018. Till disposal of the revisional applications, there will be an order of stay of the orders impugned herein inasmuch
as the developer’s allocation in respect of the flat situated at Premises No. 14/2B, Jainuddin Mistry Lane, Kolkata- 700 027 is concerned. It is
made clear that the injunction granted by the tribunals below, by the impugned orders, will remain operative insofar as the “owners’
allocation†as contemplated in the development agreement dated August 11, 2016 is concerned as far as the creation of third party interest, transfer
and alienation of such portion is concerned.
It is further made clear that no order of injunction is being passed relating to the construction/change of nature and character in respect of the suit
property. The developer/petitioner will be free to carry on construction in respect of the disputed property, subject to the result of the revisional
application and the proceeding before the Debts Recovery Tribunal.