M/S Aditya Birla Capital Limited v. M/S Mondal Enterprise And ORS

OCD 6 ORDER SHEET AP-COM/506/2025

IN THE HIGH COURT AT CALCUTTA

COMMERCIAL DIVISION ORIGINAL SIDE M/S ADITYA BIRLA CAPITAL LIMITED VS M/S MONDAL ENTERPRISE AND ORS.

BEFORE:

The Hon'ble JUSTICE SHAMPA SARKAR Date: 23rd July, 2025.

Appearance:

Mr. Amar Singh, Adv.

Mr. Ranjit Singh, Adv.

Mrs. Tutul Das Singh, Adv.

Mr. Pranit Biswas, Adv.

Ms. Zoya Khanum, Adv.

Mr. Ratul Deb Banerjee, Adv.

...for the petitioner The Court:

1. Despite service, none appears on behalf of the respondents. This was the last opportunity given to the respondents to appear in the matter and the petitioner was directed to issue notice upon the respondents by order dated June 30, 2025. The affidavit of service indicates that such notice has been served along with the copy of the order of this Court dated June 30, 2025. The affidavit of service is taken on record. Despite such service, none appears on behalf of the respondents. Under such circumstances, the application proceeds in the absence of the respondents.

2. Aditya Birla Finance Limited merged with Aditya Birla Capital Limited by an order dated March 24, 2025 passed by the National Company Law Tribunal, Special Bench, Ahmedabad. The merged entity came to be known as Aditya Birla Capital Limited. All rights, liabilities, assets etc. of Aditya Birla Finance Limited vested with the petitioner thereafter.

3. Aditya Birla Finance Limited had extended the loan facility to the respondents and the respondents had mortgaged an immovable property being at Mouza - Basudebpur, Jl No.-56, Touzi No.-11, Khatian No.-207, Dag No.- R.S. & L.R. - 802, P.S.-Deganga, District-North 24 Parganas, West Bengal-743424 under Chowrashi Gram Panchayat on the terms and conditions contained in the said loan agreement dated 29th June, 2023.

4. The loan agreement was signed between the parties that is the petitioner and the erstwhile Aditya Birla Finance Limited on June 29, 2023 at the branch office of the petitioner at Chowringhee Road. The respondents were required to make payment in terms of the repayment schedule for the total loan amount of Rs.15,50,000/-. The payment was to be made in 180 monthly instalments of Rs.23,308/- each. Allegedly, a few instalments were paid, but thereafter the respondents neglected to make payments. As on November 5, 2024, a sum of Rs.18,91,351.48/- became due and payable.

5. The petitioner terminated the loan and also moved an application under Section 9 of the Arbitration and Conciliation Act, 1996. An order of injunction was passed for a period of two months on January 6, 2025,

restraining the respondents from creating any third party interest or making any addition or alteration or modification to the nature and character of the mortgaged property. It was further extended for a period of three months vide order dated 3rd March, 2025. Accordingly, the application for injunction was disposed of granting liberty to the petitioner to constitute an arbitral tribunal. By a letter dated April 10, 2025, the arbitration clause was invoked and as the respondents did not reply, this application has been filed.

6. As the petitioner is the merged entity and all rights, obligations, assets, liabilities of Aditya Birla Finance Limited vested with the petitioner which includes the loan agreement and the right to recover the loan. The petitioner claims to have stepped into the shoes of the lender. Clause 22 of the agreement provides that the place of arbitration shall be either Delhi or such other place as per the lender's discretion. By the notice dated November 5, 2024, the petitioner called upon the respondents to make payment, making them jointly and severally liable to repay the amount of Rs.18,91,351.48/- failing which, the petitioner reserved the right to proceed for arbitration. By the said notice, the petitioner, as the lender, also selected the seat to be within Kolkata jurisdiction. The letter was duly received by the respondent. On April 10, 2025, the petitioner invoked arbitration and chose Kolkata as the place of arbitration. The petitioner referred three names of learned advocates to the respondents, as a choice for appointment as an arbitrator.

7. Considering the fact that there was a loan extended by the predecessorin-interest of the petitioner and that in view of the merger, the petitioner is the entity which has chosen to be bound by the arbitration agreement, the application is allowed. The jurisdiction clause provides for an option to the lender to choose the place of arbitration. The lender has chosen the place for arbitration as Kolkata. Such information was also provided to the respondents by two notices.

8. The objections available to the respondents including the issue of limitation, the calculation made by the petitioner and whether the petitioner can seek arbitration on the basis of the agreement to which the petitioner is not a signatory, shall be decided by the learned arbitrator. Issues of non-joinder, mis-joinder etc. are within the domain of the learned Arbitrator.

9. Accordingly, the Court appoints Mr. Shayak Mitra, learned Advocate, (Mob. No. 8902005746) as the Arbitrator, to arbitrate upon the disputes between the parties. This appointment is subject to compliance of Section 12 of the Arbitration and Conciliation Act, 1996. The learned Arbitrator shall fix his own remuneration as per the Schedule of the Act. 10.

The application is, accordingly, disposed of. (SHAMPA SARKAR, J.) B.Pal