IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction

Appellate Side

Present:

The Hon’ble Justice Debangsu Basak

And

The Hon’ble Justice Prasenjit Biswas

F.M.A. 2386 of 2016

Dr. Debojit Dey

Vs.

Tata Housing Development Company Ltd.

For Appellant : Mr. Gopal Ch. Ghosh, Sr. Adv.

Mr. Sunandana Saha. Adv.

For the Private Respondent : Mr. Soumabho Ghosh, Adv.

Mr. Biswajit Kumar, Adv.

Mr. Aayush Lakhotia, Adv.

Hearing Concluded on : August 21, 2025 Judgment on : August 27, 2025

DEBANGSU BASAK, J.:-

1. Appellant has assailed the judgment and order dated October 3, 2015 passed by the learned District Judge, Barasat,

North 24 Parganas, in Misc. (Arbitration) Case No. 185 of 2014.

2. By the impugned judgment and order, learned District Judge has dismissed an application under Section 34 of the Arbitration and Conciliation Act, 1996, filed by the appellant

subha

karmakar Digitaly signed by subha karmakar Date: 2025.08.27

assailing the award dated August 14, 2014 passed by the learned arbitrator, Mr. Paritosh Kumar Pal.

3. Learned Senior Advocate appearing for the appellant has contended that, the appellant pursuant to an advertisement dated May 8, 2009 applied for a flat in a project executed by the respondent. He has contended that, a residential apartment being Flat No. 16D on the 16th floor of Tower A was confirmed by the respondent. Respondent had issued a letter of allotment dated June 19, 2010 with regard thereto. Parties had initially agreed that the consideration for the flat would be Rs. 33,44,875/-.

4. Learned Senior Advocate appearing for the appellant has contended that, the parties entered into an agreement for sale which was subsequently modified on March 31, 2011. The consideration had been modified to Rs. 32,44,875/-. Subsequently, by a supplementary agreement, the schedule of payment had been modified.

5. Learned Senior Advocate appearing for the appellant has contended that, the respondent gave permission to the appellant to mortgage the flat to HDFC on October 10, 2010 which the appellant had done.

6. Learned Senior Advocate appearing for the appellant has contended that, the appellant is a cancer surgeon by profession. Due to the pressing professional commitments, there had been delay in payment of the 8th instalment on the part of the appellant. The appellant had been to the site office of the respondent and prayed for extension of deadline by two weeks. Appellants had deposited a sum of Rs. 50,000/- by cheque on October 22, 2011 and Rs. 75,500/- by a cheque dated October 29, 2011. The respondent had encashed such cheques on October 25, 2011 and November 1, 2011 respectively.

7. Learned Senior Advocate appearing for the appellant has contended that, appellant obtained loan from HDFC Bank for purchasing the flat in question. Appellant had made over a cheque for Rs. 5,68,512/- dated November 2, 2011, on November 1, 2011. However, such cheque was not accepted by the respondent. He has referred to various electronic mails issued by the appellant to the respondent in this regard.

8. Learned Senior Advocate appearing for the appellant has submitted that, the appellant came to learn from HDFC that, the respondent cancelled the allotment of the flat on November 29, 2011.

9. Learned Senior Advocate appearing for the appellant has contended that, the respondent had issued a notice dated October 14, 2011. The appellant had paid all instalments. Appellants had obtained an order of injunction under Section 9 of the Act of 1996 on February 9, 2012 restraining the respondent from dealing with the flat in question. He has pointed out that, the respondent created third party rights in respect of the flat in question on February 15, 2012 which is a violation of an order of Court. Therefore, the purported sale in respect of the flat concerned is bad in law.

10. Learned Senior Advocate appearing for the appellant has contended that, it is alleged as against the appellant that the appellant allegedly did not act under Clause 9 of the agreement. He has referred to