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2002 DIGILAW 42 (GAU)

Tufanialonga Tea Company Ltd. , Kolkata and others v. State of Tripura and others

2002-01-18

A.K.PATNAIK, H.K.K.SINGH

body2002
Judgement A. K. PATNAIK, J. :- The petitioner No. 1-Company and the petitioner No. 2-Company in CM Application No. 6/2001 are owners of Tufanialonga Tea Estate and Laxmilonga Tea Estate located at Teberia, Tripura West. On 13-11-1986, Tripura Tea Companies (Taking Over of Management of Certain Tea Units) Ordinance, 1986, was promulgated by the Government of Tripura and the management of the said two Tea Estates besides other Tea Estates was taken over under the said Ordinance for a period of 5 years. The Ordinance was substituted by an Act. A certificate proceeding was initiated against the petitioner Nos. 1 and 2 for non-payment of land revenue and the Tea Estates of the petitioner Nos. 1 and 2 were sold on 4-6-1987 at a token price of Re.1/- and the sale was confirmed on 27-7-1987. The two petitioner Companies challenged the Ordinance and the Act and the sales of the Tea Estates in the certificate proceeding in Civil Rule No. 67/94. by Judgment dated 9-4-1999, a Division Bench of this court while upholding the validity of the Ordinance and the Act set aside the sale of the two Tea Estates to the Government and remitted the matter back to the Revenue Court for taking fresh steps in accordance with the Tripura Land Revenue and Land Reforms Act, 1960 and the Tripura Land Revenue and Land Reforms Rules, 1961 for recovery of the arrear land revenue. In the said Judgment some directions were given to the State Government to determine the amount payable to the petitioner Nos. 1 and 2 under S. 5 of the Act for the period from 13-1-1986 to 4-6-1987 during which period the management of the two Tea Estates vested in the Government and also to determine the compensation payable to the petitioner Nos. 1 and 2 for the period from 4-6-1987 onwards till the date of the Judgment. The Court also directed that pending such determination of amount and compensation by the State Government, the petitioner companies will be paid a sum of Rs.10,00,000/- for each of the two Tea Estates within a period of two months from the date of the said judgment. The Court also directed that if any amount or compensation is not paid within the time stipulated in the said Judgment, the petitioner companies will be entitled to 18% interest per annum on the amounts due to them. The Court also directed that if any amount or compensation is not paid within the time stipulated in the said Judgment, the petitioner companies will be entitled to 18% interest per annum on the amounts due to them. Liberty also given to apply to the Court in case of any difficulty arising out of implementation of the aforesaid directions. Despite the said direction no amounts have been paid by the State Government to the petitioner companies and hence the two petitioner companies have filed this miscellaneous application for further directions. 2. Mr. G. Chakravorty, learned counsel appearing for the petitioner companies submitted that since a submission was made on behalf of the petitioner companies at the time of hearing of the main writ petition that no amount whatsoever has been paid by the Government to the petitioner Nos. 1 and 2 for taking over of the management of the two Tea Estates although S. 5 of the Tripura Tea Companies (Taking Over of Management of Certain Tea Units) Act provided for such payment, the Court directed the State Government to pay a sum of Rs.10,00,000/- for each of the two Tea Estates within a period of two months pending determination of the amount and compensation by the State Government and yet the State Government did not make payment of the said amount of Rs.10,00,000/- for each of the two Tea Estates. In the circumstances, the two petitioner companies have prayed for a direction for payment of the said sum of Rs.10,00,000/- with interest at the rate of 18% per annum as fixed by the court in the Judgment dated 9-4-1999 in CR No. 67/94. He vehemently argued that the management of the two Tea Estates of the petitioner Nos. 1 and 2 - Companies has been taken over by the State Government with effect from 13-11-1986 and till now no amount whatsoever has been paid by the State Government to the two petitioner companies and the Court should forthwith direct payment of Rs.10,00,000/- with interest at the rate of 18% per annum to the two petitioner companies which is lying in deposit in favour of the Registrar, Gauhati High Court, Agartala Bench. 3. Mr. 3. Mr. BR Bhattacharjee, learned Advocate General, Tripura, however, submitted that the Government did not pay the said amount of Rs.10,00,000/- to the two petitioner companies for their respective Tea Estates on account of orders passed by the Presiding Officer, Debt Recovery Tribunal, Kolkata, on 8-7-1999 restraining the two petitioner companies by an order of injunction from receiving any payment in respect of the two Tea Estates. He further submitted that in any case as per the Judgment of this Court dated 9-4-1999, the sum of Rs.10,00,000/- was to be paid to each of the two petitioner companies and not to their constituted attorney and hence the said constituted attorney has no locus standi to file this application. He further argued that before the Court passes any order for payment of amount of Rs.10,00,000/- with interest to the petitioner companies, the Court must consider the possibility of recovery of amount paid to the two petitioner companies in case the amount and compensation found payable to the petitioner companies fall short of the said amount of Rs.10,00,000/- with interest. 4. Mr. D.R. Chowdhury, learned counsel appearing for the United Bank of India, on the other hand, submitted that the United Bank of India had given loans to the two petitioner companies and since the two petitioner companies failed to pay their dues to the United Bank of India, suits were filed originally in the Calcutta High Court and thereafter transferred to Debt Recovery Tribunal, Kolkata, and the Debt Recovery Tribunal, Kolkata, has passed a decree for Rs.18,68,622.84 against the Petitioner No.1 -Company on 17-9-1999 and for Rs.31,54,607.67 against the petitioner No. 2-Company on 24-11-1999 in Transfer Application Nos. 24/97 and 23/97 respectively. He further submitted that on 3-4-2001, the Recovery Officer of the Debt Recovery Tribunal, Kolkata, West Bengal had passed orders directing the Government of Tripura not to make any payment to the debtor and instead to make payment to the certificate holder, namely the United Bank of India and has appointed the Senior Manager, United Bank of India, Agartala Branch, as receiver to receive the amount from the Government of Tripura in due course. Mr. Chowdhury further submitted that under the provisions of Ss. Mr. Chowdhury further submitted that under the provisions of Ss. 25 and 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, sufficient powers are vested in the Recovery Officer to recover any amount of debt specified in the certificate by any of the modes indicated therein. He referred to paragraph-29 of the Judgment dated 9-4-1999 of this Court in CR No. 67/94 to show that this Court had clearly held that the United Bank of India may move the Debt Recovery Tribunal, Kolkata, for appropriate orders in the suit for recovery of dues of the United Bank of India from the petitioner companies. According to him, therefore, the amount of Rs.10,00,000/- for each of the two Tea Estates inclusive of interest thereon lying in deposit in this Court should be paid to the United Bank of India and not to the petitioner companies. 5. In reply to the aforesaid submission of Mr. D.R. Chowdhury, Mr. Chakravorty, learned counsel for the petitioner companies, submitted that the amount of Rs.10,00,000/- including interest thereon which was directed by this court to be paid by the State Government to the two petitioner companies and which at present is lying in the custody of the Court was meant for subsistence and maintenance of the petitioner companies and were not attachable under Ss. 25 and 28 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. He referred to S. 60 of the Civil Procedure Code, 1908, and contended that the amount was also exempted from attachment for execution of a decree of Civil Court and cited the decision of the Calcutta High Court in Giribala Debi v. Nirmalabala Debi, AIR 1935 Calcutta 578,in support of his contention. Mr. Chakravorty further submitted that the decrees sought to be executed are ex parte decrees obtained behind the back of the petitioner companies. 6. Mr. Chakravorty further submitted that the decrees sought to be executed are ex parte decrees obtained behind the back of the petitioner companies. 6. The directions given by this Court in the Judgment dated 9-4-1999 in CR No. 67/94 for determination of amount and compensation and for payment of Rs.10,00,000/- to each of the two Tea Estates within a period of 2 months pending determination of amount and compensation by the State Government were to the following effect : "We further direct that the State Government will within six months from today specify the rate payable every year to the petitioner companies under S. 5 of the impugned Act and pay the amount determined on the basis of such rate specified by the State Government to the petitioner companies for the period from 13-11-1986 to 4-6-1987. We also direct that the State Government will within six months from today also determine the compensation that will be payable to the petitioner companies for the period from 4-6-1987 onwards till the date of this judgment in accordance with this judgment and pay the same to the petitioner companies within six months from today. Since the petitioner companies have not been paid any amount as yet, we direct that pending determination of the amount and compensation by the State Government, the petitioner companies will be paid Rs.10 Lakhs for each of the tea estates within two months from today and the aforesaid amount of Rs.20 Lakhs (Rs. 10 Lakhs Rs. 10 Lakhs) will be adjusted towards the amount and compensation to be paid by the State Government. We make it clear that the two tea estates may not be restored to the petitioner companies until they satisfy the State Government that the two tea units will be run either by the petitioner companies or through a scheme negotiated with the Tripura Tea Development Corporation Limited or some other organization on mutually acceptable terms and conditions and the compensation at rates determined by the State Government will be paid to the petitioner companies till possession is restored to the petitioner companies onces every six months. In case any amount or compensation is not paid within the time stipulated in this judgment, the petitioner companies will be entitled to interest at the rate of 18% per annum on the amount or compensation that is over due. In case any amount or compensation is not paid within the time stipulated in this judgment, the petitioner companies will be entitled to interest at the rate of 18% per annum on the amount or compensation that is over due. Liberty is also given to the parties to apply to this Court in case of any difficulty arising out of the implementation of aforesaid directions or any difficulty with regard to the determination of the amount or compensation" It would be clear from the aforesaid directions of this Court under Article 226 of the Constitution that the Court directed the State Government to pay Rs.10,00,000/- to each of the two Tea Estates within a period of 2 months pending determination of the amount and compensation by the State Government since the petitioner companies had not been paid any amount till the date of delivery of the Judgment on 9-4-1999 although the management of the two Tea Estates had been taken over by the State Government since 13-11-1986. The said directions also made it clear that the said sum of Rs.10,00,000/- to be paid by the State Government to the petitioner companies will be adjusted towards the amount and compensation to be determined by the State Government. In course of hearing of these applications we were informed that the State Government filed SLP against the aforesaid Judgment dated 9-4-1999 in CR No. 67/94 before the Supreme Court but the same was dismissed. The aforesaid direction to the State Government to pay an amount of Rs.10,00,000/- to each of the two Tea Estates and the further direction that if the amount is not paid as stipulated in the said judgment, the petitioner companies would be entitled to interest of 18% per annum on the amount and compensation that are over due to them, therefore, have become final and these directions to the State Government to pay the amount of Rs.10,00,000/- to each of the two Tea Estates of the two petitioner companies could not be frustrated by the State Government, the Debts Recovery Tribunal, Kolkata and the Recovery Officer, Debt Recovery Tribunal, Kolkata. 7. 7. Article 226 of the Constitution confers on the High Court the power to issue to any person or authority, including any Government within the territory within which it exercises its jurisdiction, direction, order or writ for the enforcement of the rights conferred by the Part III of the Constitution and for any other purpose. Article 227 of the Constitution further provides that every High Court shall have superintendence over all Courts and Tribunals through out the territories in relation to which it exercises jurisdiction. Even Parliament while enacting the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, has recognized the wide powers of the High Court under Articles 226 and 227 of the Constitution and has provided in S. 18 of the said Act that no court other than the authority under the Act shall have the jurisdiction, power or authority in relation to matters specified in S. 17 of the said Act except the Supreme Court, and a High Court in exercising of jurisdiction under Articles 226 and 227 of the cConstitution. Thus the jurisdiction of the High Court under Articles 226 and 227 of the Constitution in relation to the matters in respect of which the Tribunals under the Act have powers, jurisdiction and authority has been retained. If it was to be held that the Tribunals and the Recovery Officers under the Act would have the powers to pass orders which would run contrary to the directions, orders or writs of the High court then the entire Constitutional scheme under Articles 226 and 227 of the Constitution would be rendered topsy turvy. Thus we are unable to accept the submission made by Mr. chowdhury, learned counsel for the United Bank of India, that the Debts Recovery Tribunal, Kolkata, and the Recovery Officer, Debts Recovery Tribunal, Kolkata, had the power under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, to issue orders which would run contrary to the directions of this Court to the State Government to pay the said sum of Rs.10,00,000/- for each of the two Tea Estates within a period of two months and pay interest thereon at the rate of 18% per annum if the said amount is not paid within 2 months. 8. Paragraph 29 of the Judgment dated 9-4-1999 of this Court in CR No. 67/94 on which reliance has been placed by Mr. 8. Paragraph 29 of the Judgment dated 9-4-1999 of this Court in CR No. 67/94 on which reliance has been placed by Mr. Chowdhury is quoted hereinbelow : "We are unable to accept the submission of Mr. Das, learned counsel for the United Bank of India that the amounts payable by the State Government to the petitioner companies should be paid to the United Bank of India and not to the petitioner companies because a suit has been filed by the United Bank of India against the two petitioner companies for recovery of the dues of the Bank and is presently pending before the Debt Recovery Tribunal. The United Bank of India may move the said Tribunal for appropriate orders in the said suit and this Court in the present proceeding cannot direct the State Government to pay the amount due to the petitioner to the United Bank of India." It appears that the aforesaid paragraph-29 of the Judgment dated 9-4-1999 of this Court has already been relied on by the Debts Recovery Tribunal, Kolkata, in its order dated 8-7-1999 restraining the two petitioner companies by interim order of injunction receiving any payment from the State Government of Tripura. But paragraph-29 of the Judgment dated 9-4-1999 in CR No. 67/94 cannot be read in isolation and must be read along with whole of the said judgment. In paragraph-29 of the judgment quoted above, the Court did not accept the submission of the learned counsel for the United Bank of India that the amount payable by the State Government to the petitioner companies should be paid to the United Bank of India and instead observed that the United Bank of India may move the Debts Recovery Tribunal, Kolkata, for appropriate orders in the suit. But in paragraph 31 of the judgment, the Court issued specific directions that pending determination of amount and compensation by the State Government, the petitioner companies will be paid Rs.10,00,000/- for each of the two Tea Estates within a period of two months and the said amount of Rs.20,00,000/- will be adjusted towards the amount and compensation to be determined by the State Government and this specific directions for payment of interim amount and compensation was given because the petitioner companies had not been paid any amount from the date the two Tea Estates were taken over by the State Government on 13-11-1986 till delivery of the Judgment on 9-4-1999. Thus the said amount of Rs.10,00,000/- to be paid to each of the petitioner companies by the State Government for which there was clear specific direction from this Court in the said judgment together with interest at the rate of 18% per annum had to be paid to the two petitioner companies by the State Government and there was no scope whatsoever for the Debts Recovery Tribunal, Kolkata, to pass an order restraining the two petitioner companies from receiving the said amount of Rs.10,00,000/- with interest thereon for the Recovery Officer of the said Tribunal to pass orders directing the State Government to pay the amount of Rs.10,00,000/- with interest thereon to the Senior Manager, United Bank of India, Agartala Branch. 9. At any rate nothing prevented the United Bank of India to move this Court for appropriate orders as liberty had been given to the parties by the said Judgment dated 9-4-1999 to approach this court in case any difficulty arises out of the implementation of the directions given in the Judgment but no such application was moved by the United Bank of India. Nevertheless, we have considered the pleadings and on behalf of the United Bank of India in CM Application No. 6 of 2001 and CM Application No. 149 of 2001 and we find from the Judgment dated 17-4-1999 in Transfer Application No. 24/97 of the Debts Recovery Tribunal, Kolkata, and the Judgment dated 24-11-1999 of the Debts Recovery Tribunal, Kolkata, in Transfer application No. 23/97 that against the debt of Rs.18,68,622.84 and Rs.31,54,604.00 sufficient properties and assets have been hypothecated and mortgaged as securities in favour of the United Bank of India which include vast areas of land of both the tea gardens. Moreover, amount of Rs. 10,00,000/- for each of the two Tea Estates directed to be paid by the court to the two petitioner companies is only an interim amount to be paid to the petitioner companies pending determination of the amounts and compensation by the State Government for a period of more than 15 years from 13-11-1986 during which the State Government and its agents have retained the management of the two Tea Estates. As and when the amounts and compensation are determined for more than 15 years, the Recovery Officer, Debt Recovery Tribunal, Kolkata, may consider as to whether the said amounts are to be paid to the two petitioner companies or to the United Bank of India if applications are made by any of the parties. On the other hand, the petitioner companies have been deprived of the possession of the two Tea Esates for more than 15 years and they have not been paid any amount whatsoever by the State Government. In these circumstances, we are of the considered opinion that the amount of Rs.10,00,000/- for each of the two Tea Estates and the interest accrued thereon deposited by the State Government in this Court should be paid to the two petitioner companies in terms of directions in the Judgment of this Court dated 9-4-1999 in CR No. 67/94. 10. In the result, we direct that the aforesaid amount of Rs.20,00,000/- with interest thereon lying in deposit will be paid by the Registrar, Gauhati High Court, Agartala Bench, to the two petitioner companies in equal proportion by Accounts payee cheques in favour of the two petitioner companies within 30 days from today. The other prayers in CM Application No.6/2001 shall be considered as and when the matter is heard again. Order accordingly