[Cites 3, Cited by 0]
Calcutta High Court
Aryan Dhatu Private Limited vs Mars Bullion Trade Private Limited on 3 December, 2025
OCD-15
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
(Commercial Division)
AP-COM/887/2025
ARYAN DHATU PRIVATE LIMITED
VS
MARS BULLION TRADE PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE GAURANG KANTH
Date : 3rd December, 2025.
Appearance
Ms. Urmila Chakraborty, Adv.
Mr. Pankaj Agarwal, Adv.
Ms. Champa Pal, Adv.
...for the petitioner
Mr. Shounak Mukhopadhyay, Adv.
Mr. Swarajit Dey, Adv.
Mr. Saptarshi Kar, Adv.
...for the respondent
The Court: The petitioner has preferred the present application under
Section 9 of the Arbitration and Conciliation Act, 1996, seeking an interim
injunction directing the respondent to secure an amount of
Rs.1,98,00,000/- (Rupees one crore ninety eight lakh only) in an interest
bearing escrow account, pending resolution of the disputes between the
parties.
It is the case of the petitioner that pursuant to an agreement for sale
dated 30.06.2025, the petitioner agreed to purchase a commercial area
being No. "A" on the 5th Floor of Block-B in Axis Mall, New Town, Rajarhat
having a total area of more or less 17072 sq.ft. built up area for a total sale
consideration of Rs.12,21,00,000/-.
Learned Counsel for the petitioner states that the petitioner had made
a payment of Rs.1,98,00,000/- (Rupees one crore ninety eight lakh only)
towards part consideration, with the balance payable within 60 days i.e., on
or before 1st September, 2025. The agreement provided that failure to make
the balance payment within the stipulated period would result in
cancellation of the agreement upon which the respondent would refund
Rs.1.98 crores along with an additional sum of Rs. 2 lakhs received from the
petitioner. The petitioner states that he was unable to arrange the balance
consideration and, accordingly, vide letter dated 06.09.2025, cancelled the
agreement and sought refund of the amount paid. However, the respondent
vide letter dated 18.09.2025, asserted that the petitioner had no contractual
right to terminate the agreement and that the agreement could not be
treated as cancelled. The respondent further expressed willingness to extend
the time for payment and continue with the transaction as per the
agreement. The petitioner submits that he is unwilling to proceed with the
agreement and intends to invoke the arbitration clause. Hence, the
petitioner has preferred the present application under Section 9, seeking
interim protection in the form of securing the amount claimed.
Learned Counsel for the petitioner states that the agreement clearly
confers jurisdiction upon this Court to entertain the application under
Section 9 and that the nature of dispute and the admitted payment made
justify interim protection to prevent frustration of the arbitral proceedings.
Learned Counsel for the respondent states that the jurisdiction is
disputed and that the property is situated outside the territorial jurisdiction
of this Court. He further states that even his client is situated outside the
territorial jurisdiction of this Court. He further submits that the contract
itself stipulates that the termination can only be effected only by the vendor
i.e., the respondent herein. He states that in terms of the contract, the
petitioner cannot resile from the said agreement and cancel the agreement.
He further states that his client is ready to perform in terms of the contract.
Counsel for the respondent additionally submits that as per the contract,
time is of no essence and thus no specific period is defined for execution of
the agreement. He has further relied upon a judgment of this Court to
impress upon the fact that in terms of Order XXXVIII Rule 5 of CPC, the
petitioner is not entitled to refund of the said amount. Learned counsel for
the respondent relies upon Sanghi Industries Limited versus Ravin
Cables Ltd. and Another reported in 2022 SCC OnLine SC 1329 to
buttress his argument.
This Court has heard the submissions of both the Counsel and has
perused the materials placed on record.
It is an admitted position that the petitioner has paid a sum of
Rs.1,98,00,000/- (Rupees one crore ninety eight lakh only) to the
respondent towards part consideration. The petitioner has terminated the
agreement and whether such termination is valid and whether the
respondent is entitled to forfeit the said sum are matters to be adjudicated
in arbitration. The amount of Rs. 1,98,00,000/- (Rupees one crore ninety
eight lakh only) constitute a significant part consideration. If the respondent
is permitted unrestricted operation of the bank accounts without securing
the said amount, there exists a real and credible risk of dissipation of funds.
Such dissipation of funds may render the petitioner's claim illusionary and
deprive the arbitral proceedings of efficacy.
At this stage, the existence of a substantial and bona fide claim in
favour of the petitioner stands prima facie established. The judgment relied
upon by the respondent is not applicable to the present set of facts. This
Court is of the prima facie view that the balance of convenience lies in favour
of the petitioner and denial of an interim interlocutory protection may result
in irreparable loss to the petitioner.
In view of the above discussion, this Court is satisfied that an interim
measure is warranted to protect the subject matter of arbitration.
Accordingly, while the respondent may continue to operate its bank account
in ordinary course of business, the respondent shall at all times maintain a
minimum balance of Rs. 1,98,00,000/- (Rupees one crore ninety eight lakh
only) in the account described below:
Account No.00030340050737
Bank Name: HDFC Bank
Branch : 26, Kasturba Gandhi Marg, New Delhi-110001
This arrangement shall remain in force for a period of eight weeks.
The respondent is directed to file an affidavit within four weeks
disclosing and explaining the manner in which the sum of Rs. 1,98,00,000/-
(Rupees one crore ninety eight lakh only) is being secured in compliance of
this order.
The petitioner is directed to initiate the process for constitution of the
arbitral tribunal in accordance with the agreement between the parties and
to take all consequential steps for commencement of the arbitration without
any undue delay.
Learned Counsel for the respondent seeks and is granted an
opportunity to file an affidavit-in-opposition within a period of two weeks.
Reply to the same, if any, be filed within one week thereafter.
List after eight weeks.
(GAURANG KANTH, J.)
R.Bhar
