Hiralal Dutta v. Amal Roy — 1997 DIGILAW 431 (CAL)

JUDGMENT U.C. Banerjee, J. This appeal is directed against an order refusing an application of one of the auction purchasers in Court and bidding in Court on 7th February, 1994. 2. The contextual fact depicts that certain properties were put up for sale and the learned Trial Judge was holding the sale in Court as regards the premises Nos. 56 and 58, Chetla Road. 3. The order of the learned Trial Judge dated 7th February, 1994 reads as follows:- "As far as the premises situate at 56 and 58 Chetla are concerned, apart from the recorded offer of Amal Roy. Hiralal Dutta has also made an offer, according to the Special Officer of Rs. 3,50,000/-. It is confirmed by the Special Officer that Hiralal Dutta has deposited a sum of Rs. 35,000/- by way of earnest money with the Special Officer. In view of the higher offer of Hiralal Dutta, Amal Roy has raised his offer from Rs. 3,30,000/-. The bidding took place in open Court. Ultimately, the highest bid was given by Amal Roy for Rs. 7,25,000/-. Hiralal Dutta stopped his bid at Rs. 7,20,000/-. The parties represented by Mr. Roy Chowdhury, Mr. Ghose, Mr. Mitter, Mr. Pinaki Ghose and Mr. J.C. Ghose has no objection to the sale in respect of this premises being confirmed in favour of Amal Roy at Rs. 7,25,000/-. Accordingly, the sale in respect of the premises situate at 56 and 58, Chetla Road is confirmed in favour of Amal Roy for a total sum of Rs. 7,25,000/-. It appears that Amal Roy has deposited a sum of Rs. 33,000/- on account of 10% earnest money on the basis of his original offer. Amal Roy is directed to deposit the balance 10% Earnest Money with the Special Officer in course of tomorrow either in cash or by Pay Order or by Banker's cheque. After Amal Roy deposits the balance 10% earnest money, as directed the Joint Receivers will execute the Conveyance in his favour within a period of four weeks from the date of payment of the balance purchase money by Amal Roy for which purpose he is granted one week's time from date. After Amal Roy deposits the balance 10% earnest money, as directed the Joint Receivers will execute the Conveyance in his favour within a period of four weeks from the date of payment of the balance purchase money by Amal Roy for which purpose he is granted one week's time from date. In the event Amal Roy defaults in either making payment of the balance 10% Earnest money or the balance purchase money or any portion thereof, as directed, the earnest money already deposited by him will stand forfeited and the same will be effected to Hiralal Dutta for Rs. 7,20,000/-. As far as the earnest money deposited by Hiralal Dutta which is lying with the Special Officer is concerned, the Special Officer will deposit the same in a short term Fixed Deposit. In the event the Conveyance is executed in favour of Amal Roy, the Special Officer will refund the same earnest money to Hiralal Dutta together with all accrued interest thereon within 24 hours thereafter. The payment of balance purchase money, to be made by Amal Roy, shall be like that of balance earnest money, either in cash or by Pay Order or by Banker's Cheque in favour of the Joint Receivers." 4. The order itself records that after deposit of the balance 10% earnest money, the balance purchase price was to be deposited by Shri Amal Roy within a period of one week from that date. Subsequently, however, it has been brought to the notice of the learned Judge that the same have been incorrectly recorded and that instead of six weeks, it has gone down as one week, and the learned Trial Judge also corrected the error accordingly on 23.2.1994. 5. The records depict that the factum of correction without any notice to the Appellant here was brought to the notice of the learned Trial Judge and the learned Judge directed a formal application to be moved and in terms therewith, an application was duly filed and the same came up for hearing before the learned Trial Judge on 19th June, 1995. 6. 6. In order to obviate any controversy, we deem it expedient to record the observations of the learned Trial Judge as recorded in the order dated June 19, 1995 : "I am also of the view that when the matter was mentioned on February 23, 1994 this Court must have been satisfied that it was indeed a mere correction which was why the Court corrected the earlier order instead of directing counsel for Amal Roy to file an appropriate application for extension of time. On February 23, 1994, when the correction was made, the Special Officer who represents the interest of the parties and the Joint Receivers who are parties to the proceedings did not make any contrary submission that it was not a case of correction but a case of extension of time. The notice given to the Special Officers in fact mentions the premises below the name of the Advocate for Amal Roy. It has been stated in the notice that the matter would be mentioned 'for correction'. This would be sufficient compliance with the directive published by this Court. As already stated that it was a mistake which has been affirmed by Counsel, viz., Mr. Animesh Kanti Ghosal and not denied by the parties who were then present particularly the Special Officer, who represent the interest of the parties. The fact that the original recording had been wrongly done is also borne out by the conduct of the parties. The petitioner himself has said that a valuable right accrued to him on 15.2.1994 by which date the period as originally recorded for putting in the balance purchase price expired. Given the fact that the right was such a valuable one, the subsequent inaction of the petitioner is inexplicable. Admittedly he was present when the order dated 7.2.94 was passed. He did not meet any legal adviser to tell him that he had a right to purchase the premises on and from 15.2.94 provided Amal Roy had not made payment. He made no enquiry either from the Special Officer or from the Joint Receivers. His explanation that the lawyer advised him that the Special Officer would intimate the details of deposit is unacceptable because there was no such duty cast upon the Special Officer to intimate the parties regarding the deposits or the payment of the balance purchase price. He made no enquiry either from the Special Officer or from the Joint Receivers. His explanation that the lawyer advised him that the Special Officer would intimate the details of deposit is unacceptable because there was no such duty cast upon the Special Officer to intimate the parties regarding the deposits or the payment of the balance purchase price. Furthermore, the balance purchase price had been directed to be paid to the Joint Receivers. Even after coming to know of the correction on March 8, 1994, the petitioner again has put up his lawyer as a shield for the purpose of explaining his inaction in moving this Court for recalling the order dated February 23, 1994. That he did not take the advice of his lawyer to wait until the appeal of the shop owners was disposed of, is apparent from the fact that this application was filed two weeks before the appeal was dismissed. The advice of the lawyer, to say the least, was wrong to such an extent that the Court must disbelieve that any lawyer can indeed advise his client in the manner alleged by the petitioner. The pendency of the appeal of the shop owners had nothing to do with the extension of time for Amal Roy to put in the balance purchase price. In terms of the order dated 7.2.94 in default of payment of the balance earnest money or the balance purchase money, the Special Officer was directed to forthwith forfeit the earnest money deposited by Amal Roy. This the Special Officer has not done. This would also indicate that the Special Officer also understood the time to be six weeks from 7.2.1994. The Joint Receivers also accepted the balance amount without protest. The petitioner has not produced any material, nor referred to nor relied on even a single document or letter written either to the Special Officer or the Joint Receivers between the period February 15, 1994 till the date of filing of this application, although he was according to his averments, legally advised from 15.2.1994." This appeal however pertains to the order as above. 7. Mr. 7. Mr. Mullick, appearing in support of the appeal submitted that as a matter of fact, the procedure adopted, as recorded by the learned Trial Judge, is contrary to the procedure actually being followed by the learned Trial Judge and thus, therefore, there is in fact a departure from the procedure in the facts and circumstances of the matter under consideration. 8. Mr. Mullick further contended that six weeks time, as has been corrected by the learned Trial Judge, cannot be the basis of any order; neither such a period of time can be allowed, since the tenor of the entire order dated 7th February, 1994 records either one week or four weeks and not six weeks. In the words of the learned Trial Judge "this Court must have been satisfied that it was indeed a mere correction which was why the Court corrected the earlier order instead of directing Counsel for Amal Roy to file an appropriate application for extension of time", go to show how the matter was treated by the learned Trial Judge as a mere correction and sitting in the Appellate Court, we do not think it expedient enough to interfere or intervene in the matter of correction of an order passed by the learned Trial Judge. The procedure, as has been adopted by the learned Trial Judge, if there is any departure, without, however, recording our concurrence to the submission of Mr. Mullick, is a procedure which stands to be adopted by the learned Trial Judge herself and as such, we are not in a position to make any comment thereon. In any event, the learned Trial Judge herself recorded that there were appearances of the Special Officers and Joint Receivers. We deem it expedient to record that that would imply compliance with the requirements of the special procedure, if there be any of adaptation of such a procedure. Admittedly the Joint Receivers are the parties to the suit and the present appellant is the son-in-law of one of the parties in the suit. No communication were had from Mr. Mullick's client immediately after the expiry of the one week period. In the normal course of events and as is expected, if one is interested in a particular issue or a matter, one would be keeping a vigil as to whether the order of the Court stands complied with or not. No communication were had from Mr. Mullick's client immediately after the expiry of the one week period. In the normal course of events and as is expected, if one is interested in a particular issue or a matter, one would be keeping a vigil as to whether the order of the Court stands complied with or not. In the contextual fact, there should have been some communication from Mr. Mullick's client to the Joint Receivers, who had received the earnest money from the auction purchasers. 9. Be that as it may, the learned Trial Judge, in correcting the error, has exercised her own discretion and we do not think it either fair or proper on our part to intervene or interfere with the discretionary power, since the discretion used by the learned Trial Judge cannot be termed to be so perverse so as to warrant Appellate Court's intervention. Even assuming it is an extension of time and assuming that the learned Trial Judge has extended the time, though it is not so, the Appellate Court ought not to intervene or interfere with such an exercise of discretion in the matter of extension of time. 10. In that view of the matter, we are unable to record our concurrence with the submission of Mr. Mullick. 11. The appeal, therefore, fails and is dismissed. 12. Interim order, if any stands vacated. 13. There shall be no order as to costs. B. Bhattacharya, J.: I agree. Appeal dismissed.