IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION COMMERCIAL APPELLATE DIVISION APPELLATE SIDE Before:

The Hon’ble Justice Arijit Banerjee And The Hon’ble Justice Om Narayan Rai FAT 3 of 2024 With I.A. No. CAN 2 of 2025 Everstrong Sales Pvt. Ltd.

Vs.

Binod Kumar Mahipal & Ors.

For the Appellant : Mr. Abhrajit Mitra, Sr. Adv Mr. Shoham Sanyal, Adv.

Mr. K.N. Jana, Adv.

For the Respondent No. 41 : Mr. Mainak Bose, Sr. Adv.

Mr. Rishabh Karnani, Adv.

Mr. Sourath Dutt, Adv.

Mr. Sanjay Kr. Baid, Adv.

Hearing Concluded on : 06.05.2025 Judgment on : 30.06.2025 Om Narayan Rai, J.:-

1. The instant appeal assails an order dated August 11, 2023 passed by the learned Judge, Commercial Court at Rajarhat in Title Suit No. 20 of 2021 (C.C) whereby an application for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereafter “the Code”) filed by the defendant no. 41 (respondent no. 41 herein) has been allowed.

2. Since we are examining an order whereby an application for rejection of plaint has been allowed, the case run in the plaint only needs to be noticed together with the documents appended thereto. Briefly summed up the plaint case is as follows:

a. The defendant nos. 1 to 32 being in need of funds for the purpose of their business jointly approached the plaintiff for financial assistance to the tune of Rs.7,00,00,000/- (Rupees Seven Crore). The said defendants offered to secure repayment of the loan requested for by them by mortgaging their respective undivided shares in land measuring 394.77 decimals in Baranagar (hereafter “the suit property”).

b. It was specifically agreed between the plaintiff and the defendant nos.

1 to 32 that the said loan sought for by the said defendants would be utilized only for business purposes and that no part thereof would be transferred to any of their heirs or legal representatives. It was further represented to the plaintiff that the defendant nos. 2 to 36 had in two divisions (one consisting of the defendant nos. 2 to 25 and the other comprising the defendant nos. 26 to 32) executed two several powers of attorney in favour of the defendant no.1 to look after and administer their shares in the said suit property as also to negotiate terms regarding mortgage of their share in the suit property.

c. It was on such understanding plaintiff had lent and advanced a sum of Rs.7,00,00,000/- (Rupees Seven Crore) to the defendant nos. 1 to 32 in tranches, which was to be repaid with interest within a period of 24 months.

d. As agreed, repayment of the said loan was secured by mortgage of immovable property executed by the defendant nos. 1 to 32 to the extent of the said defendants’ undivided/unpartitioned 78.05% share in the suit property. The defendant nos. 33 to 41 are the other co- owners and co-sharers in respect of the suit property together with the defendant nos. 1 to 32.

e. The said loan that was advanced by the plaintiff to the defendant nos.

1 to 32 was a commercial loan for business purposes and the property that was mortgaged to secure repayment of the said loan was also used exclusively in trade and commerce. The borrowers being the defendant nos. 1 to 32 failed to repay the borrowed sum wherefore the appellant/plaintiff instituted the aforesaid suit for recovery of a sum of Rs.13,20,46,829/- with interest against the defendant nos. 1 to 32.

3. Based on the above-noted case run in the plaint, the plaintiff has claimed the following reliefs in the suit:

“a. A preliminary decree in Form 5A of Appendix „D‟ of the Code of Civil Procedure declaring the amount due to the plaintiff on the mortgage to be Rs.13,20,46,829/- as on 31st August 2021 and directing the defendant nos. 1 to 32 to make payment of the aforesaid sum together with pendent lite interest and interest on judgment at the contractual rate of 13.5 percent per annum;

b. In default of the defendant nos. 1 to 32 making such payment, decree for sale of the undivided 78.05% share of the defendants in the property more fully descr