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TMI Blog2023 (9) TMI 1571X X X X Extracts X X X X X X X X Extracts X X X X ..... The words used in the application are to the effect that the petitioner would lose security interest over the assets as the respondent is indebted to several other creditors and is unable to pay its dues. The only prayer is for a restraint on the respondent from dealing with or creating any interest over the 13 flats together with car parking spaces and other car parking spaces as specified in prayer (a) of the application. There is also no evidence on record to show that the petitioner is seeking enforcement of any mortgage. The respondent therefore cannot resist the reliefs on a pre-supposition of the petitioner s claim in the arbitration - The decision of the Bombay High Court in ADITYA BIRLA FINANCE LIMITED VERSUS CARNET ELIAS FERNANDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner s security may further be put at risk. This Court is of the view that the petitioner is entitled to an order of injunction restraining the respondent from dealing with any further or creating any interest over 13 flats/units together with 13 car parking spaces bundled with each flats/units and an additional 66 car parking spaces and undivided proportionate share of the land measuring 3337.34 square meters in the building to be constructed by the respondent. Application allowed. - HON BLE JUSTICE MOUSHUMI BHATTACHARYA. For the Appellant: Mr. Jishnu Saha, Sr. Adv., Mr. Reetobrata Mitra, Adv., Mr. Aditya Kanodia, Adv., Mr. Sourajit Dasgupta, Adv. and Mr. Nilkanta Basak, Adv. For the Respondent : Mr. Krishnaraj Thaker, Adv., Ms. Aasia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice dated 7th November, 2022 calling upon the respondent to make payment of the outstanding amount. The petitioner thereafter terminated the agreement on 14th March, 2023. The petitioner claims that the respondent is indebted to the petitioner for a total sum of Rs. 4,94,97,40,898.76/-. 4. According to learned counsel appearing for the petitioner, the respondent has already dealt with part of the 13 flats owing to failure in completion of the Project. Counsel submits that one of the 13 flats has already been attached in execution of an order passed by the Maharashtra Real Estate Regulation Authority (MAHRERA). Counsel also relies on the restraint orders passed by the Bombay High Court on the respondent s failure to comply with its directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of right in rem will have to be decided by a Court of law and not by an arbitral tribunal. In any event, the view of the Supreme Court in paragraph 46 of the Report in Booz Allen was on a suit for enforcement of a mortgage which is inherently and procedurally different from the nature of the present application. 7. The question to be decided is whether the petitioner is seeking to enforce any mortgage in the present application. The application does not disclose any such pleadings or prayers. The words used in the application are to the effect that the petitioner would lose security interest over the assets as the respondent is indebted to several other creditors and is unable to pay its dues. The only prayer is for a restraint on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 9 even if the petitioner gives up its claim for enforcement of mortgage properties. 10. It is undisputed that the respondent is indebted to the petitioner for a substantial amount of money in terms of the loan agreement and the supplementary agreement; the former containing an arbitration clause. It is also undisputed that the respondents created a charge on the 13 flats together with 13 car parking spaces bundled with each flat and an additional 66 car parking spaces and undivided proportionate share of the land measuring 3337.34 square meters in the building. The respondent also hypothecated its receivables to the petitioner. Both the document of charge as well as the deed of hypothecation dated 31st March, 2020 are a part of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute in the arbitration may be disposed of even before the arbitration commences. Section 9(1) is simply a stopgap measure before the arbitration starts and the parties can have a forum to have the remaining of their disputes adjudicated. Section 9(2) therefore mandates that arbitration proceedings shall be commenced within 90 days from the date of an interim measure of protection under section 9(1) or within such further time as the Court may determine. 14. There is sufficient evidence that the petitioner s right on the hypothecated and charged assets which is also the collateral for the loan advanced to the respondent is at risk. The restraining orders on the respondent by the Bombay High Court and other statutory authorities have alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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