Amit Shaw and Anr. Vs the Authorized Officer PNB Housing… — Arbitration | Calcutta HC (2025)

Amit Shaw and Anr. Vs the Authorized Officer PNB Housing… — Arbitration | Calcutta HC (2025)

What the court decided

AI extract

Outcome

Appeal (FMA 758 of 2025) and IA No: CAN 1 of 2025 disposed of; impugned trial-court order set aside; defendants/respondent nos. 1 and 2 restrained from disturbing the peaceful possession and enjoyment of the plaintiffs/appellants in respect of the suit property and/or from creating any charge or encumbrance on the suit property till disposal of the suit without due process of law; no order as to costs.

Issue for consideration

Whether the suit property is a secured asset in the mortgage created by the plaintiffs/appellants in favour of PNB Housing Finance Limited. +2 more

Court's answer

Prima facie, the subject property involved in the present suit is not a secured asset in the mortgage created by the plaintiffs/appellants in favour of PNB Housing Finance Limited.

Ratio / Principle

Respondent nos. 1 and 2 cannot encumber or charge the suit property and/or disturb the peaceful possession of the plaintiffs in respect thereof without due process of law.

Key takeaways

The above findings are tentative in nature insofar as the suit is concerned; the learned Trial Judge is at liberty to adjudicate the suit independently on its own merits without being influenced by the observations in this order or the impugned order.obiter¶¶23
Nothing in this order shall adversely prejudice either of the parties in the proceeding pending at Delhi (the Section 9, Arbitration and Conciliation Act, 1996 application) and/or any other proceeding.obiter¶¶24

Detailed headnote1 paragraphs

Calcutta High Court (Appellate Side), FMA 758 of 2025 with IA No: CAN 1 of 2025 (judgment 16.06.2025; Bench: Sabyasachi Bhattacharyya and Uday Kumar, JJ.). Appeal by Amit Shaw and another (plaintiffs/appellants) against the trial-court order dismissing their injunction application, directed against The Authorized Officer, PNB Housing Finance Limited and others. The appeal was admitted on arguable questions of law and fact and, on consent of the parties, heard along with the injunction application. The Court found, prima facie, that the suit property is not a secured asset in the mortgage created by the plaintiffs/appellants in favour of PNB Housing Finance Limited, and held that respondent nos. 1 and 2 therefore cannot encumber or charge the suit property and/or disturb the plaintiffs' peaceful possession without due process of law. The impugned order was set aside and the respondents were restrained from disturbing the plaintiffs' possession and enjoyment of the suit property and from creating any charge or encumbrance thereon till disposal of the suit. The findings were expressly declared tentative, the Trial Judge being left free to adjudicate the suit independently on its own merits, and it was made clear that nothing in the order would adversely prejudice either party in the pending Delhi proceeding under Section 9 of the Arbitration and Conciliation Act, 1996 or any other proceeding. No order as to costs.

Form No. J(2)

In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side

Present: The Hon’ble Justice Sabyasachi Bhattacharyya And

The Hon’ble Justice Uday Kumar

FMA 758 of 2025 IA No: CAN 1 of 2025

Amit Shaw and another Vs.

The Authorized Officer, PNB Housing Finance Limited and others

For the appellants	:	Mr. Surya Prasad Chattopadhyay, Mr. Arjun Samanta, Mr. Ankit Chatterjee
For the respondent nos.1 & 2	:	Mr. Sayak Ranjan Ganguly, Ms. Srijani Ghosh, Ms. Indrani Majumdar
Heard on	:	16.06.2025
Judgment on	:	16.06.2025

Sabyasachi Bhattacharyya, J.:-

In view of sufficient arguable questions of law and fact having been raised, we admit the appeal to be heard on the grounds taken in the memorandum of appeal.

Since both the contesting parties are represented by counsel and the ambit of the appeal is extremely short, co-extensive with the scope of hearing of the injunction application filed in connection therewith , on

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consent of the parties, we are taking up the appeal and the application together for hearing

The plaintiffs/appellants have filed a suit claiming their title and seeking injunction in respect of a property which, according to the plaintiffs, is not the subject-matter of the mortgage created by the plaintiffs in favour of the PNB Housing Finance Limited, of which the defendants/respondents are key functionaries.

It is contended that despite such factual position, the defendants/respondent nos. 1 and 2, on behalf of the PNB Housing Finance Limited, are seeking to disturb the plaintiffs’ possession and encumber the property unlawfully.

The learned trial Judge, it is argued by the appellants, dismissed their injunction application without taking into consideration such facts.

Learned counsel appearing for the contesting respondent nos. 1 and 2 submits that the PNB Housing Finance Limited has already initiated an application under Section 9 of the Arbitration and Conciliation Act, 1996 in Delhi, where an ad interim prayer having been refused, a challenge has been preferred against the same. It is submitted that by virtue of the present injunction, the plaintiffs are seeking to frustrate the said proceeding.

However, we find upon hearing learned counsel for the parties that prima facie , the subject property involved in the present suit is not a secured asset in the mortgage created by the plaintiffs/appellants in favour of PNB Housing Finance Limited and, as such, the respondent

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nos. 1 and 2 cannot encumber or charge the suit property and/or disturb the peaceful possession of the plaintiffs in respect thereof without due process of law.

Accordingly, FMA 758 of 2025 along with IA No: CAN 1 of 2025 are disposed of, thereby setting aside the impugned order and restraining the defendants/respondent nos.1 and 2 from disturbing the peaceful possession and enjoyment of the plaintiffs/appellants in respect of the suit property and/or from creating any charge or encumbrance on the suit property till disposal of the suit without due process of law.

There will be no order as to costs.

We make it abundantly clear that the above findings are tentative in nature insofar as the suit is concerned and the learned Trial Judge will be at liberty to adjudicate the suit independently on its own merits without being influenced in any manner by any of the observations made in our order and/or the order impugned herein.

It is further made clear that nothing in this order shall adversely prejudice either of the parties in the proceeding pending at Delhi which has been referred to above and/or any other proceeding.

(Sabyasachi Bhattacharyya, J.)

I agree.

(Uday Kumar, J.)

AD-12 TN