Calcutta High Court (Appellete Side)
Refulgent Buildcon Llp vs K.N. Wire Private Limited And Others on 28 July, 2026
Author: Supratim Bhattacharya
Bench: Sabyasachi Bhattacharyya, Supratim Bhattacharya
2026:CHC-AS:1125-DB
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
The Hon'ble Mr. Justice Sabyasachi Bhattacharyya
And
The Hon'ble Mr. Justice Supratim Bhattacharya
F.M.A.T. No.488 of 2025
+
CAN 1 of 2025
REFULGENT BUILDCON LLP
-Versus-
K.N. Wire Private Limited and Others
For the appellant : Mr. Siddhartha Banerjee,
Mr. Shounak Mukhopadhyay,
Ms. Soni Ojha,
Mr. Pranit Biswas, ... Advs.
For the respondent nos.1 to 3 : Mr. Jaydip Kar, Sr. Adv.,
Mr. Srijib Chakraborty,
Mr. Aditya Mondal, … Advs.
For the respondent no.5 : Mr. Sauvik Nandy, Sr. Adv.,
Mr. Dyutimoy Paul, … Adv.
Heard on : 16.02.2026, 17.03.2026,
24.06.2026, 09.07.2026 & 15.07.2026
Reserved on : 15.07.2026
Judgment on : 28.07.2026
Sabyasachi Bhattacharyya, J.:-
1. The appellant has filed a suit for declaration that the plaintiff/appellant has
sole right to hold, possess, enjoy and deal with the suit property, for
perpetual injunction restraining the defendants and/or their men and
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agents and representatives from illegally trespassing into the suit property
and from unlawfully obstructing the entry or access of the plaintiff and/or
wrongfully interfering with its lawful possession/occupation of the suit
property in any manner whatsoever.
2. In the said suit, an application has been filed by the plaintiff for injunction
in tune with the plaint prayers. By the impugned order dated December 1,
2025, the learned Trial Judge, observing that the plaintiff has been able to
make out a prima facie case and considering the urgency of the matter,
directed both parties to maintain status quo in respect of the nature,
character and possession of the suit property for a limited period.
3. The said order has been assailed by the plaintiff/appellant, urging that
instead of blanket status quo, which would not serve the purpose of the
plaintiff, the learned Trial Judge ought to have specifically granted
injunction as prayed for in the application.
4. Learned counsel for the appellant contends that upon the
borrower/respondent no. 1 having defaulted in repaying the loan taken by it
from the Reliance Estate Reconstruction Company Limited, the latter
conducted an e-auction. The appellant, being the successful bidder therein,
purchased the property in such e-auction sale. The e-auction notice was
issued on July 10, 2025, fixing August 19, 2025 as the date of auction.
Pursuant thereto, a sale certificate was issued on August 20, 2025 in favour
of the appellant and a registered sale certificate deed was executed on the
very next date, that is, on August 21, 2025. On September 10, 2025, the
property was mutated in the name of the appellant.
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5. Subsequently, an order was passed under Section 14 of the Securitization
and Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (hereinafter referred to as “the SARFAESI Act“) and symbolic
possession of the suit property (secured asset) was given to the appellant.
Since the property had been sealed pursuant to a distraint order passed by
the Kolkata Municipal Corporation (KMC), the appellant repaid the dues of
the KMC and the possession was physically handed over to the appellant.
6. It is argued that, in the above manner, the appellant is in “settled
possession” of the property. Thus, the ownership, coupled with settled
possession, entitles the appellant to protect its possession and right of
ingress and egress to the property.
7. In order to explain the concept of “settled possession”, learned counsel for
the appellant cites Rame Gowda (Dead) by lrs vs. M. Varadappa Naidu (dead)
by lrs. and another, reported at (2004) 1 SCC 769.
8. It is submittted that in IA No. 6153 of 2006, an interlocutory application
filed in connection with TSA No.98 of 2026, a proceeding initiated by the
respondent no. 1 under Section 17 of the SARFAESI Act before the Kolkata
Debts Recovery Tribunal – II, it has been admitted by the respondent no. 1
that statutory notice of demand under Section 13(2) of the SARFAESI Act
was issued to the said borrower first on October 18, 2016. During the
subsistence of such notice, purported indentures of lease were executed by
respondent no. 1/borrower in the year 2019 in favour of respondent no. 5.
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9. It is argued that Section 13(13) of the SARFAESI Act debars such transfer of
the property in favour of the third parties after issuance of notice under
10. It is further contended by the appellant that the lease deed executed in
favour of the respondent no. 5 cannot be sustained under Section 55(6) of
the Transfer of property Act, 1882 (hereinafter referred to as “the TP Act“)
since the mandate under Section 65A(2), Clauses (c) and (e) of the said Act
were not complied with.
11. Furthermore, there was a tripartite agreement between the borrower,
secured creditor and the Kotak Mahindra Bank, another secured creditor, in
terms of which the borrower could not transfer the property. The said clause
was violated by the instruments of lease.
12. It is argued that the borrower lost its rights to redeem the mortgage after the
property was put up for auction sale. Hence, the borrower does not have the
locus standi to stand in the way of enjoyment of the suit property by the
appellant, the auction purchaser.
13. In support of such contention, learned counsel cites CELIR LLP vs. Bafna
Motors (Mumbai) Private Limited and Others, reported at (2024) 2 SCC 1.
14. As to the respondent’s argument that the KMC could not have lawfully made
over the possession of the suit property to the appellant, it is argued that
the respondents never resorted to any legal action against the KMC before
any forum. Moreover, the appellant, being the lawful owner and having
redeemed the dues of the KMC, was entitled to physical possession being
handed over to it by the KMC.
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15. Learned counsel next addresses the objection of the respondents that
Appendix-V of the Security Interest (Enforcement) Rules, 2002 (hereinafter
referred to as “the 2002 Rules”), read with Rule 9(6) thereof, was not
complied with, since the necessary ingredients given in the format
thereunder was not duly fulfilled while drawing up the sale certificate in
favour of the appellant. The appellant argues that strict adherence to the
said proforma is not mandatory in law.
16. Learned counsel appearing for the appellant next cites ITC Limited vs. Blue
Coast Hotels Limited and Others, reported at (2018) 15 SCC 99, for the
proposition that even after the sale of a secured asset to an auction
purchaser, the secured creditor can take resort to Section 14 of the
SARFAESI Act for taking physical possession of the secured asset from the
borrower. Thus, it is not necessary to indicate in the sale certificate that
physical possession of the property sold has been made over to the
purchaser.
17. Learned counsel for the appellant next refers to Bajarang Shyamsunder
Agarwal vs. Central Bank of India and Another, reported at (2019) 9 SCC 94,
cited by the respondents, and distinguishes the same to the effect that even
the Hon’ble Supreme Court observed therein that a lease by a mortgagor
must adhere to the provisions of Section 65A of the TP Act.
18. Distinguishing Kewal Chand Mimani (D) by lrs. vs. S.K.Sen and Others,
reported at (2001) 6 SCC 512, also relied on by the respondents, learned
counsel for the appellant argues that as per the said report, one must at
least have some semblance of a right qua the concerned property which
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should continue till an order is passed by the court. The respondents, it is
submitted, had ceased to have any semblance of interest in the suit property
at the time of institution of the present suit.
19. Thus, it is argued that the learned Trial Judge ought to have granted
injunction as prayed for in the injunction application instead of granting a
blanket order of status quo.
20. In reply, learned senior counsel appearing for the respondent nos.1 to 3
(borrowers) argues that the letter written by the appellant/complainant to
the police on October 30, 2025, annexed to the stay petition, shows that the
plaintiff/appellant admitted that it only got “symbolic possession”, which
clearly establishes that the plaintiff did not get vacant possession pursuant
to the sale, nor did the secured creditor/financial institution certify the sale
to be free from encumbrances, as required by law. The mandatory
requirements in terms of the Appendix-V, read with Rule 9(6), of the 2002
Rules were, thus, not complied with.
21. It is next argued that the KMC, as per the plaint, attached the suit property
for realization of its dues from the then owner/borrower. Thus, the
possession was unlawfully handed over by the KMC to the appellant de hors
the procedure prescribed in Section 14 of the SARFAESI Act. It is argued
that the legality of such possession is thus vitiated.
22. Learned senior counsel contends that in Bajarang Shyamsunder Agarwal
(supra)1, the Hon’ble Supreme Court held that existing leasehold rights are
protected till the time the bank determines the lease by resorting to Section
1
Bajarang Shyamsunder Agarwal vs. Central Bank of India and Another reported at
(2019) 9 SCC 94
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111 of the TP Act and evicts the lessee through lawful process, except where
a registered sale/tenancy is created after service of notice under Section
13(2) of the SARFAESI Act. As per the plaint case, the demand notice under
Section 13(2) was issued by the financial institution on October 16, 2024,
that is, subsequent to the lease deeds. Consequently, the lease would be
governed not by the SARFAESI Act but by Section 65A, read with Sections
107 and 111, of the TP Act. In the absence of any termination of the lease of
respondent no. 1, it is contended that no lawful possession could be handed
over to the appellant.
23. The sale certificate and the corresponding deed in favour of the appellant, it
is submitted, are under challenge under Section 17 of the SARFAESI Act
before the Debts Recovery Tribunal. Thus, it would be premature to hold
that the appellant has obtained clear title and/or possession in the suit
property as yet.
24. Learned senior counsel appearing for the respondent no.5, which claims to
be a lessee under respondent no.1, argues that the de-sealing of the suit
property by the KMC, to constitute handing over of physical possession,
required the KMC to have been in actual physical possession of the suit
property, to have legal authority to deliver such possession to a third party
and the delivery to have effectively displaced the actual physical occupant of
the property.
25. The Kolkata Municipal Corporation act, 1980 (for short, “the KMC Act“) does
not empower the KMC to physically dispossess an occupant or deliver
possession to a third party. A conjoint reading of Sections 195 and 225 of
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the KMC Act, it is argued, makes it clear that the mechanism of recovery
from the occupier is not physical dispossession but recovery through
interception and redirection of the rent payable by the occupier to the
owner. The occupier’s physical possession is never disturbed. The
expression “rent” used in Section 225 of the KMC Act indicates that the said
provision contemplates continuance of possession on the original occupant
and cannot be elevated to mean dispossession or eviction. The rent stream
is merely redirected from the owner to the KMC under the said provisions.
26. Sealing of the suit property by KMC, it is submitted, was a coercive measure
directed against the owner (respondent no.1) to compel payment of property
tax and not taking actual physical possession from the occupant. Thus, the
process prescribed under the SARFAESI Act and/or recovery of possession
through a Civil Court was never resorted to, vitiating the legality of the
alleged possession of the appellant.
27. The lease deeds of respondent no. 5, it is argued, were executed between the
years 2016 and 2019 and the mortgage in favour of the secured
creditor/financial institution was created in 2008. The notice under Section
13(2) of the SARFAESI Act being issued only subsequently on October 16,
2024, the lawful lessee/respondent no. 5 was required to be evicted in due
process in law before handing over possession to the auction
purchaser/appellant. Thus, valid possession could not have been handed
over to the appellant.
28. Lastly, learned counsel argues that at the ad interim stage, the Appellate
Court would not entertain any additional document which were not on
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record before the Trial Court, except the plaint and the injunction
application. In support of such contention, learned counsel cites the
unreported judgment in Kanta & Others. Vs. Soma Devi (D) through LR and
Others (Civil Appeal No. 8451 of 2011).
29. The three cardinal questions which arise for adjudication in the present
appeal are as follows:
(i) Whether the appellant is in legally valid possession of the suit
premises;
(ii) Whether the respondents have locus standi to dispute the appellant’s
right, title and interest;
(iii) Scope of considering additional documents in an appeal against an ad
interim injunction.
30. The said issues are decided as follows:
(i) Whether the appellant is in legally valid possession of the suit
premises
31. For a comprehensive adjudication of the lis, certain dates are required to be
looked into, which are as follows:
Dates Events
March 2008 Respondent no.1/borrower took a
loan and mortgaged the suit property
April 11, 2019 Three registered lease deeds
May 16, 2019 executed by respondent nos.1 to
3/borrowers in favour of the
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respondent no.5/lessee for 30 years
with a renewal clause.
October 11, 2019 Alleged sub-lease by respondent no.5
to a third party.
September 29, 2024 KMC issued distress warrant against
the borrower/respondent no.1 for
non-payment of its dues.
October 16, 2024 Section 13(2), SARFAESI Act notice
issued to the borrower.
January 28, 2025 Section 13(4) notice issued for taking
symbolic possession.
July 10, 2025 e-auction notice published, fixing
August 19, 2025 as date of auction.
August 20, 2025 Sale Certificate issued in favour of
appellant.
August 21, 2025 Registered Sale Certificate Deed
executed in favour of the appellant.
September 10, 2025 Appellant's name mutated in respect
of the suit property.
September 22, 2025 KMC allegedly handed over the suit
property to the appellant upon the
latter paying dues of the KMC.
December 1, 2025 Present suit and the impugned order
passed.
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March 6, 2026 Section 17, SARFAESI Act
application filed by respondent no.1
seeking cancellation of the Sale
Certificate and registered sale deed
in favour of appellant and seeking
recovery of possession.
32. The sale certificate dated August 20, 2025 and the corresponding registered
deed dated August 21, 2025, executed in favour of the appellant, were
produced in the Trial Court, thus leaving no manner of doubt as to the valid
title acquired by the appellant in respect of the suit property by dint of such
e-auction sale.
33. In Rame Gowda (Dead) by LRs (supra)2, the Hon’ble Supreme Court observed
that so far as the Indian Law is concerned, the person in peaceful
possession is entitled to retain his possession and in order to protect such
possession, he may even use reasonable force to keep out a trespasser. A
rightful owner who has been wrongfully dispossessed of land may retake
possession if he can do so peacefully and without the use of unreasonable
force. In the absence of proof of better title, possession or prior peaceful
settled possession is itself evidence of title. The Hon’ble Supreme Court
further observed that it is the settled possession or effective possession of a
person without title which would entitle him to protect his possession even
as against the true owner.
2
Rame Gowda (Dead) by lrs vs. M. Varadappa Naidu (dead) by lrs. and another
reported at (2004) 1 SCC 769
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34. Although cited by the appellant, the said judgment is not directly germane
in the present case, since the claim of the appellant is on the basis of title
acquired through an auction sale, and the appellant has not “retaken”
possession but has obtained possession from the KMC.
35. However, the title of the appellant to the suit property at the juncture when
possession was given to it by the KMC, by dint of the auction sale, cannot be
denied.
36. In ITC Limited (supra)3, the Hon’ble Supreme Court observed that there is
nothing in the provisions of the SARFAESI Act (with particular reference to
Section 14 thereof), that renders taking over of symbolic possession illegal.
This was held to be a well-known device in law. While deciding the issue as
to whether the creditor could maintain an application for possession under
Section 14 of the Act even though it had taken over only symbolic
possession before the sale of the property to the auction-purchaser, it was
held to depend on whether it remain a secured creditor after having done so.
Upon taking into consideration the relevant provisions of law, it was
observed that what is sold at a court sale is the right, title and interest of
the judgment-debtor, the extent of which is a mixed question of fact and
law. If the creditor did not have actual possession of the secured asset but
only symbolic possession, the transfer of the secured asset could not be
construed to be a complete transfer and the creditor retained the right to
take actual possession of the secured assets.
3
ITC Limited vs. Blue Coast Hotels Limited and Others reported at (2018) 15 SCC 99
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37. In the present case, an order was passed under Section 14 of the SARFAESI
Act, pursuant to which symbolic possession of the property was taken.
Thus, it cannot be said that possession was taken de hors the provisions of
the law.
38. The sealing of the suit property by the KMC to recover dues from the
borrower/erstwhile owner was in terms of the relevant provisions of the
KMC Act. Section 195 thereof stipulates that on the failure to recover any
sum due on account of the property tax, the Municipal Commissioner shall,
notwithstanding anything contained in the West Bengal Premises Tenancy,
Act, 1956 or any other law for the time being in force, recover from every
occupier of such land or building, by attachment of the rent payable by such
occupier, a portion of the total sum due which bears, as nearly as may be,
the same proportion to that sum as the rent annually payable by such
occupier bears to the total amount of rent annually payable in respect of the
whole of such land or building.
39. Section 220 of the said Act provides that it shall be lawful for any officer or
other employee of the KMC to whom a warrant issued under the Chapter is
addressed to distrain, wherever, it may be found in any place in Kolkata,
any movable property belonging to the person liable following the conditions
stipulated therein. Section 225 makes the occupiers liable to make payment
towards satisfaction of the property tax. Section 221A provides for
attachment and sale of property.
40. In the present case, however, we need not go into whether the KMC had the
right to recover possession from the borrower. The distraint order of the
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KMC or the sealing of the property due to non-payment of KMC dues by the
erstwhile owner/respondent no.1 has not been challenged before any forum,
not has such fact been disputed by the respondent no.1. Thus, the sealing
of the property was, for all practical purposes, an encumbrance on the
property.
41. Upon acquiring title through the auction sale, the appellant became the
owner of the suit property. In such capacity, the appellant repaid the debts
of the KMC and had the property de-sealed, thereby liberating the suit
property from such encumbrance.
42. On the other hand, the borrower/respondent no.1 had already lost its title,
which vested in the appellant as on the date of such removal of
encumbrance by repayment of the KMC debts. Having already been granted
symbolic possession under Section 14 of the SARFAESI Act, the appellant
took physical possession in its own right as owner merely upon removing
the encumbrance. On such date, it was the appellant, as owner, which was
entitled to possession whereas the respondent no.1/borrower, being no
longer the title-holder, had no such right.
43. Thus, the possession of the property was taken within the ambit of the
SARFAESI Act itself. Initially symbolic, such possession was converted into
actual physical possession as a follow-up of such symbolic possession. In
the process, the appellant merely removed the encumbrance on the said
property by repaying the KMC dues. The modality in which physical
possession was taken by the appellant is within the trappings of the
SARFAESI Act itself, whereas the de-sealing of the property merely
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tantamounted to removal of the encumbrance under the KMC Act. Thus, it
cannot be said that the obtaining of physical possession by the appellant
was vitiated in any manner.
44. The respondents have raised an issue as to the Sale Certificate not being in
terms of Appendix-V under Rule 9(6) of the 2002 Rules. However, as held in
ITC Limited (supra)4, the physical possession can very well be taken even
after auction sale. Hence, Appendix-V and Rule 9(6) have to be construed in
proper perspective. The law does not provide that the format given in
Appendix-V, which is merely a proforma for guidance, has to be mandatorily
followed while drafting a sale certificate.
45. Since physical possession can be taken even after the sale certificate being
issued, the certificate need not necessarily contain an averment as to the
property being free from encumbrances on that date and/or physical
possession being handed over. Thus, such objection, though apparently
attractive, is without any legal basis.
46. In Kanta (supra)5, it was held by the Hon’ble Supreme Court that the
plaintiff, for the relief of perpetual injunction, along with prima facie case,
balance of convenience and irreparable loss, must also prove the actual
possession of the suit schedule on the date of filing of the suit. Such
condition has been fulfilled by the appellant, which is evident from the
materials and averments of the plaint and the injunction application as well
as the documents filed in support thereof.
4
ITC Limited vs. Blue Coast Hotels Limited and Others reported at (2018) 15 SCC 99
5
Kanta & Others. Vs. Soma Devi (D) through LR and Others (Civil Appeal No. 8451 of
2011)
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47. Hence, this issue is decided in favour of the appellant, by holding that the
appellant is in legally valid possession of the suit property from prior to the
institution of its suit.
(ii) Whether the respondents have locus standi to dispute the
appellant’s right, title and interest
48. In CELIR LLP (supra)6, the Hon’ble Supreme Court held that as per the
amended provisions of Section 13(8) of the SARFAESI Act, the right of the
borrower to redeem the secured asset stands extinguished thereunder on
the very date of publication of the notice for public auction under Rule 9(1)
of the 2002 Rules. The right of redemption available to the borrower under
the present statutory regime was held to be drastically curtailed, being
available only till the date of publication of the notice under Rule 9(1) and
not till the completion of the sale or transfer of the secured asset in favour of
the auction purchaser.
49. In the present case, the appellant is on a much better footing, since the sale
has already been concluded in its favour by issuance of a sale certificate,
execution of a registered sale deed and mutation of its name on the strength
of the same. The borrower lost its rights much prior to the filing of the suit.
Thus, the respondents had lost locus standi to question the title or
possession of the appellant in any manner even before institution of the
suit.
6
CELIR LLP vs. Bafna Motors (Mumbai) Private Limited and Others reported at (2024)
2 SCC 1
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50. As per P. Elaiyappan v. Natrajan & Ors. [SLP (C) Nos. 1989-1990/2024], cited
by the appellant, once title is with the plaintiff, and he establishes his
possession over the suit property on the date of institution of the suit, he
cannot be denied injunction, particularly against a person with no title,
merely because such possession was obtained by private negotiation or
other means. The said principle, laid down by the Hon’ble Supreme Court,
is squarely applicable in the present case, denuding the respondent no.1 of
any right to contest the title or possession of the appellant, which is in
possession as the rightful owner of the suit property.
51. Insofar as the respondent no.5 is concerned, its claim is based on lease
deeds executed in or around the year 2019.
52. The scope of adjudication in an appeal against an ex parte ad interim
inunction is limited, similar to that of the trial court passing such order, to a
consideration of the averments made in the plaint and the injunction
application and the documents relied on therein or filed therewith.
53. Going by the plaint and temporary injunction application filed in the trial
court, the claim of the respondent no.5 is not based on any title, by dint of
any lease deed or otherwise. Its role is merely that of one of the entities
disturbing the peaceful possession and ingress and egress of the
plaintiff/appellant in respect of the suit property. Thus, seen from the said
perspective, the claim of respondent no. 5 of leasehold rights by virtue of
lease deeds executed by the respondent no. 1/borrower cannot be taken
note of.
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54. However, in Paragraph No.9 of the plaint, the appellant refers to the
defendant/respondent nos.1 to 4 making unsuccessful attempt to challenge
the demand and possession notices under Section 13(2) and 13(4) before the
competent forum. In view of such averment, the court acquires jurisdiction
to look into such challenge before the “competent forum” for the purpose of
deciding the ex parte ad interim prayer of injunction. Such challenge is the
application under Section 17 of the SARFAESI Act taken out by the
borrowers and IA No.6153 of 2026, which is an interlocutory application
filed in connection therewith. Even otherwise, since the said application is
also relied on by the respondents, there cannot be any reason why the
averments made therein cannot be taken note of.
55. In terms of the admissions made in the said applications, there were four
demand notices under Section 13(2) of the SARFAESI Act issued by the
secured creditor/financial institution against the borrowers. The first notice
was issued on October 18, 2016, to which an objection was submitted by
respondent no.1 on December 14, 2016. A possession notice under Section
13(4) was issued on January 3, 2017 pursuant thereto.
56. As per the allegations in the said IA, another notice under Section 13(2) was
issued on October 21, 2021, followed by a similar notice dated January 18,
2022 and, lastly, the notice dated October 16, 2024, which has been
referred to in the plaint.
57. The alleged lease deeds were executed in favour of the respondent no.5 by
the respondent no.1/borrower in the interregnum between the first notice
under Section 13(2) dated October 18, 2016 and the second dated October
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21, 2021. Thus, on the dates when the lease deeds were executed, the first
notice under Section 13(2) was still in force. Accordingly, the rigours of
Section 13(13) of the SARFAESI Act were squarely applicable, which debars
any borrower, after receipt of notice under Section 13(2), from transferring
by way of sale, lease or otherwise (other than in ordinary course of business)
any of the secured assets referred to in the notice without prior written
consent of the secured creditor. It is nobody’s case that granting leases or
dealing with real estate comes within the ordinary course of business of
respondent no.1/borrower, nor that any prior written consent was obtained
for grant of such lease from the secured creditor. Accordingly, the lease
deeds were squarely vitiated by Section 13(13) of the SARFAESI Act and, as
such, did not operate to transfer any valid right, title or interest in favour of
the respondent no.5.
58. Again, Section 65A(1) of the TP Act provides that subject to the provisions of
sub-section (2) thereof, a mortagagor, while lawfully in possession of the
mortgaged property, shall have power to make leases thereof which shall be
binding on the mortagagee. Sub-section (2)(c) of Section 65A, however,
provides that no such lease shall contain a covenant for renewal. Clause (e)
of Section 65A(2) provides that in the case of lease of buildings, whether
leased with or without the land on which they stand, the duration of the
lease shall in no case exceed three years.
59. Admittedly, the lease purportedly granted in favour of the respondent no.5
contained a renewal clause and the tenure of the lease was 30 years. Thus,
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both Clauses (c) and (e) of Section 65A(2) were squarely violated, vitiating
the lease deed on such count as well.
60. Hence, no valid title could pass in favour of respondent no.5 by dint of the
lease deeds executed in its favour by the borrower/respondent no.1. Hence,
the respondent no.5 also does not have locus standi to dispute the title
and/or possession of the appellant on the strength of such unlawful lease
deed.
61. In Bajarang Shyamsunder Agarwal (supra)7, compliance of Section 65A was
read into the lease which can be given by a mortgagor.
62. As rightly contended by the appellant, as per the ratio laid down in Kewal
Chand Mimani (D) by lrs. (supra)8, there has to be a semblance of a right in
favour of the lessee for the lessee to assert its rights. It was held therein
that once the possessor’s right is transferred or shifted from the lessee and
the lease deed stood terminated during the temporary interregnum when the
lessee was deprived of its possession, the question of putting back the lessee
on to the possession, if the expiry of the lease was in accordance with the
provisions of law, does not and cannot arise.
63. In the present case, apart from the respondent no.5 having acquired no
right in the suit property due to the legal fetters discussed above, in view of
its lessor, the borrower, itself having lost its title in the property, the right
claimed by the respondent no.5 through respondent no.1 also did not
subsist.
7
Bajarang Shyamsunder Agarwal vs. Central Bank of India and Another reported at
(2019) 9 SCC 94
8
Kewal Chand Mimani (D) by lrs. vs. S.K.Sen and Others reported at (2001) 6 SCC
512
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64. The lease, being granted post-Section 13(2) notice, the lessee is even
otherwise not entitled to protection under the law as against the subsequent
purchaser.
65. Again, the possession of the property was acquired by the appellant on a
date when neither respondent nos.1 to 3 nor respondent no.5 were in
occupation of the property. In such view of the matter, none of the
respondents have locus standi to resist the title or possession of the
property.
(iii) Scope of considering additional documents in an appeal against
an ad interim injunction
66. The respondent no.5 contends that at the ad interim stage, the appellate
court cannot entertain any additional document.
67. As per the above discussion, even relying on the plaint averments and the
documents relied on therein and filed in support of the injunction
application, this Court comes to the conclusion that the appellant made out
a clear case of title and actual physical possession to obtain injunction.
68. Thus, this issue is rendered redundant.
CONCLUSION
69. The learned Trial Judge, despite having arrived at the finding that the
appellant has made out a prima facie case and that the other tests of grant
of injunction, including urgency, are fulfilled, merely granted status quo,
operative against the appellant as well, wholly without any reason.
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2026:CHC-AS:1125-DB
70. In fact, the appellant is justified in arguing that mere status quo regarding
possession would not suffice, since the respondents, even within the ambit
of the status quo, still remain free to disturb the access of the appellant to
and from the suit property.
71. Thus, the impugned order is required to be modified to that extent.
72. Accordingly, F.M.A.T. No.488 of 2025 is allowed on contest, thereby
modifying the impugned order dated December 1, 2025 passed by the
learned Civil Judge (Senior Division) at Sealdah, District – South 24
Parganas, Title Suit No.276 of 2025 to the effect that the respondents
and/or their men, agents and representatives shall remain restrained by an
order of injunction from illegally trespassing into the suit property and/or
from unlawfully obstructing the entry or access of the plaintiff/appellant
thereto and/or from wrongfully interfering with the lawful
possession/occupation of the plaintiff/appellant in respect of the suit
property in any manner whatsoever till disposal of the temporary injunction
application by the trial court.
73. The respondents are directed to file their respective written objections, if not
already filed, to the temporary injunction application in the trial court
within three weeks from date.
74. It is expected that the learned Trial Judge shall decide the temporary
injunction application as expeditiously as possible, preferably within eight
weeks from the date of communication of this order to the trial court,
subject to the filing of the written objections by the defendants/respondents
within the aforementioned period.
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75. It is further clarified that the above observations are tentative in nature and
shall not unduly influence the learned Trial Judge while deciding the
temporary injunction application or the suit.
76. CAN 1 of 2025 is also disposed of consequentially.
77. There will be no order as to costs.
78. Urgent certified copies of this judgment, if applied for, be supplied to the
parties upon compliance of all formalities.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Supratim Bhattacharya, J.)
Later
After the above judgment is passed, learned counsel for the
respondent nos. 1 to 3 seeks a stay of operation of the same.
However, since the nature of the judgment is prohibitory, such prayer
is refused.
(Supratim Bhattacharya, J.) (Sabyasachi Bhattacharyya, J.)
