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2009 DIGILAW 709 (CAL)

Debaprasad Ghosh v. Gobinda Chandra Ghosh

2009-09-04

Jyotirmay Bhattacharya

body2009
JUDGMENT: 1. IN a partition suit, the suit property was put into auction sale, as the suit property cannot be conveniently partitioned amongst the parties according to their share. 2. THE highest bid of Rs. 6,00,000/- which was given jointly by Gobinda Chandra Ghosh and ashok Ghosh being the plaintiff and defendant no. 13 in the said suit, was accepted by the learned Trial Judge and those Gobinda Chandra Ghosh and Ashok Ghosh were jointly declared as the highest bidders in the said auction. The said bid money was deposited by those highest bidders in court on 23rd February, 2005. One of the defendants namely Debaprasad Ghosh felt aggrieved against the said auction, as according to him the value of the suit property is much more than the bid money offered by those two bidders. Incidentally it may be mentioned that though the said debaprasad Ghosh was present at the time when the auction was held but he did not participate in the auction. Be that as it may the said Debaprasad Ghosh filed the instant revisional application challenging the said auction and in fact, he made an offer before this Court expressing his intention to purchase the suit property at a price of Rs. 14,50,000/ -. The declared highest bidders in the auction sale namely Gobinda Chandra Ghosh and Ashok Ghosh expressed their inability to offer any higher price for the suit property. 3. ACCORDINGLY, this Court disposed of this revisional application by declaring the revisionist petitioner as the highest bidder. This Court, thus, directed the said revisionist petitioner to deposit the said sum of rs. 14,50,000/- before the learned Trial Judge within three weeks from the date of the said order positively. The revisionist petitioner was also directed to deposit an additional amount being equivalent to the simple interest @ 10% per annum on the deposited sum of Rs. 6,00,000/-, in Court to the credit of the erstwhile highest bidders within three weeks from the date of the order with a further rider that in the event such deposits are made by the revisionist petitioner then the learned trial Judge will permit the erstwhile highest bidders to withdraw the said sum of Rs. 6,00,000/-together with the interest which will be deposited by the revisionist petitioner in terms of the aforesaid order immediately after completion of the sale of the suit property in favour of the revisionist petitioner. 6,00,000/-together with the interest which will be deposited by the revisionist petitioner in terms of the aforesaid order immediately after completion of the sale of the suit property in favour of the revisionist petitioner. It was made clear that the sale will be completed upon the deposit of the aforesaid amount in favour of the revisionist petitioner and the sale proceeds will be distributed amongst the co-sharers according to their share declared in the preliminary decree within two weeks from the date of delivery of possession of the suit property to the revisionist petitioner. 4. THE said revisional application was disposed of accordingly. This Court is informed that the entire money i. e. the sum of Rs. 6,00,000/- together with the interest was deposited by the revisionist petitioner before the learned Trial Judge in compliance of the order passed by this Court. But, still then, the sale of the suit property in favour of the revisionist petitioner could not be completed as another defendant in the said suit namely batakrishna Ghosh filed the present application for recall of the order passed by this Court on 6th may, 2008. The only ground which has been made out by the said applicant in this application for recall is that since no notice regarding this revisional application was served upon him, he was not aware about the aforesaid revisional application and as such, he could not appear before this Court when the said order was passed. It was further contended by him that immediately after coming to know about the aforesaid order, the applicant filed the instant application for recall of the said order as he wanted to purchase the suit property by offering more price than the price offered by the revisionist petitioner. Heard Mr. Jiban Ratan Chatterjee, learned Senior Counsel appearing for the petitioner and mr. Roy Chowdhury, learned Senior Counsel appearing for the revisionist petitioner. Considered the materials on record including the order impugned. Since the applicant sought for recall of the earlier order on the solitary ground of nonservice of notice, this Court does not think it necessary to consider any other submission of Mr. Chatterjee excepting those which relate to non-service of notice of the revisional application upon his client and as a result of which he was allegedly deprived of his right of hearing before this court at this time of disposal of this revisional application. 5. Chatterjee excepting those which relate to non-service of notice of the revisional application upon his client and as a result of which he was allegedly deprived of his right of hearing before this court at this time of disposal of this revisional application. 5. THE revisionist petitioner contested the said application of the applicant by filing affidavitin-opposition and a supplementary affidavit thereto. In the said affidavit it was categorically stated that though he was not directed by this Court to serve notice of this revisional application upon all the opposite parties but, still then, by way of abandoned auction notices were sent for affecting service upon all the opposite parties intimating them about the revisional application, by a registered Post with Acknowledgement Due. It was further stated therein that notice of the said revisional application was duly served upon the applicant herein which was accepted by the said opposite party. The concerned registration slip and the returned Acknowledgement Card showing service of notice upon the applicant on 30th April, 2005 were annexed to the supplementary affidavit filed by the revisionist petitioner herein. 6. MR. Roy Chowdhury, learned Senior Counsel submits that a party who in spite of service of notice of this revisional application, did not come forward to participate in the hearing of the said revisional application cannot subsequently come before this Court for recall of the order passed on the said application. Mr. Roy Chowdhury further contended that since the prayer for recall of the order is founded on untrue statement regarding non-service of notice, the instant application should be dismissed with costs. On perusal of the said affidavit as well as the supplementary affidavit, this Court finds that the notice of this revisional application was served upon the opposite party on 30th April, 2005. The applicant has not filed any reply to the said affidavit denying and/or disputing such contention of the revisionist petitioner regarding service of notice of this revisional application upon the said applicant. Accordingly, this Court holds that the foundation of this application is based on absolutely untrue statement regarding non-service of notice upon the said applicant. Though the above discussion is sufficient for dismissal of this application, but, still then, this Court feels it necessary to discuss the conduct of the applicant in connection with the auction sale. Accordingly, this Court holds that the foundation of this application is based on absolutely untrue statement regarding non-service of notice upon the said applicant. Though the above discussion is sufficient for dismissal of this application, but, still then, this Court feels it necessary to discuss the conduct of the applicant in connection with the auction sale. Even though the applicant stated in his application that he wants to purchase the suit property at a higher price than the offer made by the revisionist petitioner but, still then, he has not quoted any particular price which he wanted to offer for the said sale. Even the valuation of the suit property has not been quoted by him. The applicant has also not stated in the application that the valuation of the suit property is much more than the price which was offered by the revisionist petitioner for purchase of the suit property. 7. THAT apart, it is not the case of the applicant that he was not aware of the auction sale proceeding which was conducted before the learned Trial Judge. It was also not the case of the applicant that he did not know that the Gobinda Chandra Ghosh and Ashok Ghosh were jointly declared as the highest bidders for sale of the suit property. It was also not stated by him that he did not know the price which the said bidders offered for purchase of the suit property. Incidentally it may be mentioned that the erstwhile highest bidders offered only Rs. 6,00,000/- for purchase of the suit property. At that time he was not vocal. He never claimed that the price offered by them was inappropriate, as the suit property was much more valuable. He also did not offer any price higher than the price offered by those bidders at the relevant time. Under such circumstances, this Court is of the view that the applicant is not a bona fide party intending to purchase the suit property. He must have been set up by the erstwhile bidders to frustrate the sale in favour of the revisionist petitioner. Under such circumstances, this Court is of the view that the applicant is not a bona fide party intending to purchase the suit property. He must have been set up by the erstwhile bidders to frustrate the sale in favour of the revisionist petitioner. Thus, this Court holds that the entire sale proceeding cannot be reopened at the instance of such an applicant who in my view will be otherwise benefited by the sale of the suit property to the revisionist petitioner as in case of sale of the suit property at the price which was offered by the revisionist petitioner which is much higher than the price offered by the erstwhile highest bidders, the other co-sharers including the applicant will be benefited as the applicant will get much more value of his share in terms of the order passed by this Court on 6th May, 2008. Accordingly, this court does not find any merit in this application. The application, thus, stands rejected. Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.