[Cites 3, Cited by 0]
Calcutta High Court
Md. Zakaria Khan vs Molla Mohammad Abdul Kabir on 30 January, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
OCD-4
APOT/324/2025
WITH AP-COM/543/2025
IA No.GA-COM/1/2026
IN THE HIGH COURT AT CALCUTTA
Commercial Appellate Division
Original Side
MD. ZAKARIA KHAN
-VERSUS-
MOLLA MOHAMMAD ABDUL KABIR
BEFORE :
THE HON'BLE JUSTICE DEBANGSU BASAK
And
THE HON'BLE JUSTICE MD. SHABBAR RASHIDI
Date : 30th January, 2026.
Appearance:
Mr. Supratim Laha, Adv.
Mr. Bikash Shaw, Adv.
...for the appellant.
Mr. Siddhartha Banerjee, Adv.
Mr. Abhisek Baran Das, Adv.
Mr. Soumajit Majumdar, Adv.
Ms. Triparna Sarkar, Adv.
Mr. Shubho Mukherjee, Adv.
...for the respondent.
The Court :- Appeal is at the behest of the petitioner who applied
under Section 9 of the Arbitration and Conciliation Act, 1996 seeking interim
protection pending commencement of arbitral proceeding.
Appeal is against the order dated November 3, 2025 passed in AP-
COM/52//2025.
Learned advocate appearing for the appellant submits that, appellant
is one of the tenants of an immovable properties lying and situated at premises
No. 4/1, Gobinda Chandra Bhar Lane, Police Station- Burrabazar, Kolkata-
700 001. He submits that, two several agreements were entered into between
the appellant on one part and the respondent on the other with regard to
development of the immovable property concerned. In terms of such two
development agreements, appellant advanced a sum of Rs.1.25 crores to the
respondent. Appellant also undertook a construction and development of the
premises concerned. He submits that, appellant is entitled to recover the
advance granted as also the costs of construction from the respondent.
Learned advocate appearing for the appellant draws the attention of
the Court to various clauses of the two agreements. He submits that, in terms
of the various clauses of the two agreements, appellant was permitted to
identify the tenants to be inducted at the newly constructed premises.
Appellant was permitted to fix the rent for the newly inducted tenants.
Respondent was entitled to rent at the rate of Re.1 per sq.ft. The balance
amount of rent was receivable by the appellant. The respondent is now seeking
to resile from such agreed terms and conditions.
Learned advocate appearing for the appellant submits that, the
construction was completed in 2016. Cost of construction and the amount
advanced were not recovered from the respondent. In fact, the respondent did
not repay the advance or the cost of construction.
Learned advocate appearing for the appellant submits that the
appellant filed title suit seeking various reliefs. Such suit was dismissed under
Order VII Rule 11 of the Code of Civil Procedure, 1908 on the finding that the
appellant did not seek specific performance of the two agreements. Appeal
carried therefrom was also dismissed. He points out that in such title suit, the
respondent applied under Section 8 of the Arbitration and Conciliation Act,
1996 contending that, there was an arbitration agreement between the parties.
Consequently, the appellant applied under Section 9 of the Act of 1996 for the
interim protection.
Learned advocate appearing for the appellant submits that the
appellant will be rendered remediless in the event interim protection, as sought
for by the appellant is not granted. According to him, learned trial Judge erred
in not granting interim protection as prayed for. The respondent, at the basic
minimum should be restrained from inducting any new tenants at the property
concerned.
Respondent is represented.
We find from the records that two agreements were entered into
between the parties. Both the agreements concerned the development and
construction of the premises No.4/1, Gobinda Chandra Dhar Lane, Burrabazar
Police Station, Kolkata- 700 001.
Essentially, the claim of the appellant is for specific performance of
the two agreements. In the interregnum, pending adjudication of such claim of
the appellant, interim protection is sought for on behalf of the appellant which
the learned single Judge in the impugned order was pleased to refuse.
Learned trial Judge proceeded on the basis that the claim of the
appellant was a money claim. We find no material to the contrary. Essentially,
the appellant is seeking specific performance of the two agreements in order to
say that, the money claim of Rs.1.25 crores and the monthly income out of the
induction of new tenants should go to the appellant.
A large period of time lapsed from the completion of the construction
of the building. Construction of the building apparently was completed in
2016. It is the allegation of the appellant that, the respondent started
inducting tenants without the consent and permission of the appellant from
the year 2020 onwards. A considerable period of time elapsed from the date
when the construction was completed and the date when it is alleged that, the
respondent acted in breach of the agreement by inducting new tenants and the
initiation of the present proceeding.
In the interregnum the title suit which was filed by the appellant
before us, stood dismissed on the ground as noted above. It is contended that,
the appellant enjoyed an interim protection in the said suit. However, the
interim order passed in the suit is not made available to us at the hearing of
the appeal.
In such circumstances, we find no ground to interfere with the
discretion exercised by the learned Single Judge.
APOT/324/2025 along with all connected application are dismissed
without any order as to costs.
(DEBANGSU BASAK, J.)
(MD. SHABBAR RASHIDI, J.)
A/s.
