The petitioner/award-holder in this execution proceeding seeks appointment of a Receiver over the Housing Properties of the respondent no.11 and
other consequential orders. The respondent no.11/award-debtor is a Director of Kalim Projects Pvt. Ltd. and Arzoo Estates Pvt. Ltd. and owns,
according to the petitioner, several properties which are presently being developed by the respondent no.11.
According to learned counsel appearing for the petitioner, urgent orders are called for since the respondent no.11 (who was respondent no.12 in the
arbitration) has failed to comply with the orders passed by the court from 2019 onwards and has also dealt with the properties which were the subject-
matter of an order of injunction passed by a learned Single Judge on 17th January, 2019. The ground of urgency also arises from the fact that the
respondent no.11 has resigned from several of the LLPs through which the said respondent was carrying on real estate projects. Counsel seeks to
draw a connection between one Kzar Developers LLP of which the respondent no.11 is a Director and at least two ongoing projects, namely La Casa
Greens and Solitaire 20 through the balance-sheet of Kzar. Counsel submits that assets have been sold for a sum of Rs.14.07 crores even when the
order of injunction dated 17th January, 2019 was subsisting. It has also been contended that the respondent no.11 has not disclosed in the affidavit-of-
assets the extent of profits or shares realized against his interest in Kzar Developers LLP.
The prayer for interim relief has been opposed by learned counsel appearing for the respondent no.11 on the ground that none of the projects
mentioned in the relevant document belong to the respondent no.11 and further that the properties in question being developed are of Kzar Developers
LLP. It is further contended that the entities mentioned as being connected to the respondent no.11 are all separate juristic entities, particularly Kzar
who was not a party to the arbitration agreement and hence not bound by the award. Counsel relies on the provisions of The Limited Liability
Partnership Act, 2008 and on Rajesh Baid vs. Mohammad Ibrahim; AIR 2016 Cal 344 and also on Bacha F. Guzdar, Bombay vs. Commissioner of
Income Tax, Bombay; AIR 1955 SC 74 to urge that the LLP not being a party to the proceeding cannot be restrained by virtue of any ad interim order
of injunction. Counsel also seeks to point out certain inconsistencies in the operative part of the award pertaining to the direction on the respondent
no.11. It is also submitted that the Directors of the petitioner are also the Directors of the respondent nos. 2 to 9 along with the respondent no.10 and
that the petitioner is now targeting the respondent no.11 in a collusive manner.
Upon hearing learned counsel appearing for the award-holder and the respondent no.11/award-debtor, it is established that the respondent no.11 has
not applied for setting aside of the award dated 4th March 2018 by which he was directed to pay Rs. 15.50 crores + Rs.4 crores to the petitioner who
was the claimant no.3 in the arbitration. It is also an admitted fact that the respondent no.11 was aware of the order passed by a learned Single Judge
on 17th January 2019 in terms of prayers (a) and (b) of Column 10 of the Tabular Statement, i.e. restraining the award-debtor from dealing with,
encumbering or transferring any of the movable or immovable assets or properties and from dealing with or disposing of the building at 5/1, Munshi
Premchand Sarani, Hastings, Kolkata. The respondent no.11 was present before the Court thereafter on 1st February 2019 and on 18th April 2019
when the award debtor were directed to make full disclosure of their assets with supporting documents in the affidavit of assets within a certain time-
frame. The aforesaid orders, particularly the injunction dated 17th January 2019, are subsisting and have not been challenged till date.
The other relevant point is the established connection between the respondent no.11 and Kzar Developers LLP. Kzar is the developer of La Casa
Greens and Solitaire 20 Projects which would be evident from a Registration Certificate of the project issued by the West Bengal Housing Industry
Regulatory Authority (WBHIRA). Further, the Company Master Data reflects the name of the respondent no.11 and one Anisa Kalim as the two
partners of Kzar Developers. The balance-sheet of Kzar Developers for the year ending 31st March, 2020 reflects sale of assets by Kzar after the
order of injunction passed on 17th January, 2019 for a sum of Rs.14,07,53,801.23/-. The respondent no.11 has also signed on the balance-sheet as one
of the designated partners of Kzar Developers LLP. The aforesaid documents hence show a clear connection between the respondent no.11 and
Kzar Developers, particularly in respect of the Solitaire 20 and La Casa Greens Projects over which the petitioner claims appointment of a Receiver.
The conduct of the respondent no.11 is a cause for concern, particularly since the said respondent has not denied its liability to make payment of the
principal sum (Rs.19.50 crores) awarded to the petitioner under the award. The stand of the respondent no.11 in denying the order of injunction in its
letter dated 17th July, 2020 is also a factor which should be taken into account in the background of the said respondent’s refusal to pay the
awarded sums to the petitioner as also its actions in bypassing the order of injunction dated 17th January, 2019. Further, the Director Master Data
shows that the respondent no.11 has resigned from several LLPs carrying on real estate business in 2018 and 2019 after the award dated 4th March,
2018.
The argument that none of the properties mentioned in the “list of projects by Kalim Groups†belong to the respondent no.11 or that the LLPs
being separate juristic entities, cannot be bound by the award, cannot be accepted in view of the undisputed connection between the respondent
no.11/award-debtor and Kzar Developers LLP. The petitioner has not proceeded against Kzar Developers as a separate entity or as an award-debtor
but seeks to make good the award by reason of the respondent no.11’s interest as a partner in Kzar. Neither Rajesh Baid nor Bacha F. Guzdar
assists the respondent no.11 since the petitioner is not seeking any orders against the LLPs or disputing that they are separate juristic entities or even
treating the LLPs as award-debtors. The petitioner only seeks to restrain the respondent no.11 from enjoying any financial benefits from the two
Housing Projects in which the respondent no.11 has a close and definitive link. On the other hand, Rahul S. Shah vs. Jitendra Kumar Gandhi; 2021
SCC Online 341, which has laid down guidelines for the courts in suits and execution proceedings and allows appointment of a Court Receiver to
monitor the status of the property as custodia legis for proper adjudication of the matter is relevant to this case. Section 60 of The Code of Civil
Procedure also provides for attachment of properties in execution of a decree. Order XXI Rule 30 of The Code of Civil Procedure, 1908 â€
“Mode of Execution†â€" provides for execution of a decree for the payment of money by attachment and sale of the property of the judgment-
debtor
The argument of an alleged inconsistency in the Award must also be rejected in the absence of any application being made by the respondent no.11
for setting aside the said Award under Section 34 of The Arbitration and Conciliation Act, 1996. Even otherwise, there is no ambiguity in the operative
portion of the Award which makes the respondent no.11 jointly and severally liable for the principal amount of Rs.19.50 crores along with interest for
the periods indicated in the said award. The commonality of Directors between the petitioner and the respondent nos.2 to 9 and respondent no.1
cannot absolve the respondent no.11 from his obligations towards the petitioner. The fact that the respondent no.11 has acted contrary to the injunction
granted by the court on 17th January, 2019 is reason enough for ad interim orders at this stage.
There shall, accordingly, be an order in terms of prayer (a) of the Master’s Summons.
Mr. Ayan Datta of the Bar Library Club is appointed as Receiver over La Casa Greens and KGC Solitaire-20 Housing Projects as stated above in
paragraph 16 of the application and shall take possession of the books and accounts related to the two projects. The remuneration of the Receiver,
fixed at Rs.70,000/-, shall be borne by the petitioner together with the travel and incidental expenses of the Receiver. A Chartered Accountant of the
petitioner’s choice shall also be appointed to audit the accounts of the said two projects for filing a report before this court within four weeks from
date. The remuneration of the Chartered Accountant shall also be borne by the petitioner.
The respondent no.11 shall be at liberty to file its affidavit-in-opposition within three weeks; reply within two weeks thereafter.
List this matter in the third week of November 2021.
The other respondents shall also be at liberty to file their affidavit-in-opposition within the aforesaid timeframe.
