2022 (1) TMI 1004

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.... remitted a sum of Rs. 4 crores to the respondent by Real Time Gross Settlement (RTGS). The respondent duly received the said amount. Thereafter, the parties entered into a Memorandum of Understanding dated 13 June, 2016. The Memorandum of Understanding records that in view of the representation and assurances made by the respondent, the petitioner had lent and advanced a sum of Rs. 4 crores to the respondent repayable with interest @15% per annum for a period of six months. The agreement also records that, by way of security, the respondent had provided a flat of built up area of approximately 7060 sq.ft. in a building named "Ideal Unique Centre". The Memorandum of Agreement is signed by both parties. As and by way of additional security, the respondent also forwarded post-dated cheques to the petitioner particulars whereof are set out in the petition. 3. Subsequently, the respondent failed to honour its obligation under the Memorandum of Agreement and sought for extension of time to repay the loan. Pursuant to such requests, the parties entered into another Memorandum of Understanding dated 13 June, 2016, whereby the parties agreed that the loan would be repayable within a fur....

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....) Injunction restraining the Respondent from encumbering, disposing off, creating third party rights, or in any manner whatsoever dealing with in connection with property situated at Ideal Unique Centre unit number 4A, 4th floor, 10 East Topsia Road, Police Station Tiljala, Kolkata 700046; c) The Respondent be directed to show-cause why the Respondent shall not be directed to furnish security to the tune of Rs. 6,27,72,055/- (Rupees Six Crore Twenty Seven Lakhs Seventy Two thousand and Fifty Five only); d) In the event, the Respondent failing to show-cause, or not showing sufficient cause, the Respondent be directed to furnish security for a sum of Rs. 6,27,72,055/- (Rupees Six Crore Twenty Seven Lakhs Seventy Two thousand and Fifty Five only) or for such other sum as this Hon'ble Court may deem fit and proper in favour of the Petitioner; e) The Respondent be directed to file and affidavit of assets relating to their fixed and other assets, properties and bank accounts; f) All assets and properties of the Respondent as mentioned in paragraph 5 and such further assets as may be disclosed by the Respondent be attached; g) Ad-interim orders....

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.... Ispat Udyog Pvt. Ltd. vs. Jwala Cock Pvt. Ltd. (2021) SCC OnLine Cal 3009 this Court has no jurisdiction to grant any order in respect of an immovable property situated outside the jurisdiction of this Hon'ble Court. It is also contended on behalf of the respondent that in view of provisions of Order 13A and Order 37 of the Code of Civil Procedure, 1908 this application is premature and is liable to be rejected. 9. In reply, it was contended on behalf of the petitioner that the decisions cited by the respondent are inapposite and distinguishable to the facts and circumstances of the present case. In Ladymoon Towers Private Limited Vs. Mahendra Investment Advisors Private Limited (2021) SCC OnLine Cal 2082, the learned Judge had arrived at a finding that the loan transaction was a friendly loan and was not on the basis of any document. However, in the facts of the instant case, the disputes raised by the petitioner falls within the scope and ambit of Section 2(c) of the Commercial Courts Act, 2015 read with Explanation (a). Hence, there is no question of this suit not being maintainable before the Commercial Division of this Court. 10. At the outset, it is well settled that t....

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....nt. Accordingly, I find that the respondent has unequivocally, unambiguously and categorically admitted its liability to the petitioner. 12. I do not find merit in the argument of the respondent, that this is not a "commercial dispute" within the meaning of the Commercial Courts Act, 2015. On the contrary, I am of the view that this is a classic commercial dispute which falls within the ambit of Section 2(c)(i) of the Commercial Courts Act, 2015 read with Explanation (a) of Section 2(c) of the Act. The case cited by the respondent of Ladymoon Towers Pvt. Ltd. (Supra) is inapposite and distinguishable to the facts of the instant case. In the said decision, it was held that, the loan transaction was a "friendly" of "hand" loan and had been advanced without execution of any documents or mercantile documents. I find that, in the facts of the instant case, there is more than one document executed by the parties to support the conclusion that this is a commercial dispute and the respondent has admitted its liability towards the petitioner both in respect of principal and towards interest. I also find that the facts of the instant case, pertain to an ordinary transaction for realisatio....