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2012 DIGILAW 380 (CAL)

Anannya Chowdhury v. Gouri Sirkar

2012-04-30

J.N.PATEL, SAMBUDDHA CHAKRABARTI

body2012
Judgment :- J.N. Patel, C.J. Instead of dealing with the application for stay with consent of learned Counsel for the parties we propose to hear out the appeal itself by treating it as on Day’s List. In a suit for partition and administration of the estate of late Manmotha Bhushan Sirkar, the leasehold right of a shop room on the eastern side of the ground floor in present municipal premises No.124/1, Bepin Behari Ganguly Street, (originally known as Boubazar Street), Kolkata-700012 forms one of the assets. During the pendency of the partition suit, a receiver came to be appointed by the Court and the said shop room was under the possession of the receiver. By an order dated April 21,1964 the Court granted a leave to the original plaintiff no.1 to occupy the said shop room upon payment of specified consideration money per month to be paid to the receiver on condition “ not sublet or part with possession of any portion of the said shop room”. Thereafter, on April 9, 1987 the Court directed the Receiver to take actual possession of the jewellery shop room situated at the said premises which was under the occupation of the original plaintiff. By an order dated April 17, 1997 the Court has been pleased to direct the Receiver to forthwith take symbolic possession of the said jewellery shop-cum- showroom and make inventory of the furniture and fixture lying thereat. An order of injunction was also passed restraining the parties from parting with, disposing of, alienating or encumbering any portion of the said shop room until further orders. In July, 1998 the sole Receiver so appointed in the instant suit was discharged of his duties and the present Joint Receivers namely Mr. Ananda Prasad Ghosh and Mr. Prasanta Naskar, both Advocates of this Hon’ble Court, were appointed. In July, 1998 the sole Receiver so appointed in the instant suit was discharged of his duties and the present Joint Receivers namely Mr. Ananda Prasad Ghosh and Mr. Prasanta Naskar, both Advocates of this Hon’ble Court, were appointed. In March, 2010 one Smt Bijoli Basu, the defendant no.5(b) in the instant suit, filed an application being G.A. No.1042 of 2010 complaining, inter alia, that she had noticed a poster put up on the outside wall on the said shop room by one Senco Gold Limited (for short Senco Gold) and she also brought to the notice of the Court that the subject shop room was then being dealt with and/or encumbered in wilful and deliberate contravention of the subsisting orders of injunction passed by the Court and the valuable rights of the estate over and in respect of the said shop room was being surreptitiously and illegally jeopardized. On the said application, the Court by its order dated April 1, 2010 directed the receiver to make inventory of the said shop room upon notice to the concerned parties. Subsequently, by an order dated April 13, 2010 the earlier order dated April 1, 2010 came to be corrected so as to enable the joint receivers to carry out the said order. On April 26, 2010 the Joint Receivers submitted the report and on the basis of the report the Court directed them to take physical possession of the said shop room by putting their padlocks on the three entrances of the said shop room or any other entrance that would have been found thereat. On May 10, 2010 the respondent Senco Gold appeared before the Court and sought vacating of the orders dated April 1, 2010 and April 26, 2010 by claiming that they are purchasers for price of the said shop room pursuant to a deed of conveyance dated November 28, 2007 executed between Senco Gold and Sri Anindya Mukherjee. It was contended that an advertisement was also published on August 1, 2009 in respect of the said purchase. The Court found that in view of the order of injunction passed on April 19, 1987 in respect of the said shop room and other properties of which partition is sought and it was continued on 17th April, 1997. It was contended that an advertisement was also published on August 1, 2009 in respect of the said purchase. The Court found that in view of the order of injunction passed on April 19, 1987 in respect of the said shop room and other properties of which partition is sought and it was continued on 17th April, 1997. In view of the said order of injunction the landlord could not have handed over possession of the said shop room to Senco Gold. It was also brought to the notice of the Court that an ejectment suit was filed by the landlord against the Joint Receivers also stands dismissed and, therefore, the Court found that as the ejectment suit though filed by the landlord has been dismissed it is not known without taking recourse to law how possession could be obtained of the said shop by the landlord. The Learned Judge further held that “as the landlord prima facie was not entitled to possession, Senco Gold coming into possession of the said shop room is also unknown in law”. The Court, therefore, refused to vacate the orders and directions were given for filing affidavit-in-opposition. G.A. No.1042/2010 came up for hearing before the Court on June 30, 2010 which confirmed the earlier orders. Aggrieved by the order dated June 30, 2010 respondent Senco Gold preferred an appeal being APOT No.390 of 2010 challenging the order dated May 10, 2010 passed in G.A. 1042 of 2010 which came to be dismissed as infructuous as the order impugned had merged with the final order dated June 30, 2010 and liberty was given to Senco Gold to prefer fresh appeal against the final order. On July 31, 2010, the appellant/petitioner filed an application being GA No.2544 of 2010 for commission of Anjali Jewellers at and from the shop room in question, on the same terms and conditions as the original plaintiff was allowed to carry on business thereat or on such terms and conditions as to this Court may deem fit and proper and for other reliefs. Respondent Senco Gold filed an application being GA No. 482 of 2011 in the instant suit seeking, inter alia, praying for direction on the Joint Receiver to forthwith hand over the vacant possession of the said shop room to the Senco Gold and alternatively prayed leave to sue the Joint Receivers who were in possession of the said shop room. The Court by order dated June 15, 2011 considered the application of the petitioner as Joint Receivers did not receive any offer pursuant to the advertisement and passed the following order: “The shop-room on the eastern side of the ground floor of premises no.124 and 124/1, B.B. Ganguly Street, Kolkata-700012 measuring approximately 2225 sq.ft. is let out to the plaintiff no.2(c), Anannya Chowdhury, at a monthly rent of Rs. 67,000/-(approximatelty Rs. 30 per sq.ft. per month) payable by the seventh day of the succeeding calendar month to the Joint Receivers or any other person authorized by this Court to receive the amount. The period for which the shop room is let out is twelve years which has been accepted by the plaintiff no.2(c). The amount on account of rent would be increased at the rate of 15% after the conclusion of every period of 36 months till the end of the tenure of twelve years. The plaintiff no.2(c) will be made over possession of the shop-room by the Joint Receivers only upon a nonrefundable premium of Rs. 85 lakh is deposited by her. The possession should not be handed over by the Joint Receivers before the relevant instrument or instruments of payment are encashed. The plaintiff no.2(c) will not be entitled to refund of the deposit of Rs. 85 lakh on any ground whatsoever. The plaintiff no.2(c) will not be authorised to sublet the shop-room. Upon receipt of the premium from the plaintiff no.2 (c), the Joint Receivers will deposit the sum by way of a fixed deposit with the Standard Chartered Bank, 6, Church Lane at the best interest-bearing fixed deposit scheme available. The money will be held free from any lien or encumbrance and no part of the deposit or interest thereon will be used for any purpose except upon previous leave of Court being obtained in such regard. The monthly rents receivable from the plaintiff no.2(c) will be deposited in the other bank account operated by the Joint Receivers. The money will be held free from any lien or encumbrance and no part of the deposit or interest thereon will be used for any purpose except upon previous leave of Court being obtained in such regard. The monthly rents receivable from the plaintiff no.2(c) will be deposited in the other bank account operated by the Joint Receivers. Such amounts will abide by further orders to be made in this partition suit. The Joint Receivers will be entitled to a monthly remuneration of 300 GM each for the moment. Such remuneration will come out of the deposit on account of monthly rent to be made by the plaintiff no.2(c). For the purpose of commercially exploiting the shop-room, the plaintiff no.2(c) will have liberty to carry out the requisite refurbishing of the space subject to strict compliance with the rules as applicable. The Joint Receivers are authorised to break open any padlock at the shop-room prior to making over possession thereof to the plaintiff no.2(c). The sum of Rs. 85 lakh will include the previous sum of Rs. 5 lakh already tendered by the plaintiff no.2(c) to show her bonafides”. The respondent Senco Gold preferred an application seeking leave to appeal from the order dated June 15, 2011. The Division Bench of this Court by order dated September 19, 2011 in APOT No. 450 of 2011, dismissed the application seeking leave to appeal by observing “in our opinion, in the facts of the present case, appropriate remedy of the applicant lies by filing a suit against the Receiver and there is no scope for adjudicating the right of the applicant in this suit when the Court already granted liberty to file a suit against the Receiver”. The appellant/petitioner after having been inducted in the said shop room carried out extensive work by way of renovation and started its business in terms of the order dated June 15, 2011. It is the contention of the appellant that by an indenture of conveyance dated April 8, 2011 the appellant/petitioner has purchased the entire building being premises no.124/1, Bipin Behari Ganguly Street, Kolkata-700012 and have got their names registered in the record of the Kolkata Municipal Corporation. The appellant/petitioner filed another application being G.A. No. 214/2012. It is the contention of the appellant that by an indenture of conveyance dated April 8, 2011 the appellant/petitioner has purchased the entire building being premises no.124/1, Bipin Behari Ganguly Street, Kolkata-700012 and have got their names registered in the record of the Kolkata Municipal Corporation. The appellant/petitioner filed another application being G.A. No. 214/2012. in the instant suit , inter alia, for the following reliefs : “a) The Joint Receivers be directed to take necessary steps for handing over possession of the balance 595 sq.ft. area in the ground floor of premises Nos. 124 and 124/1, B.B. Ganguly Street, Kolkata-700012 to the petitioner in terms of the order dated 15th June, 2011; b) Liberty be granted to the Joint Receivers to cause necessary measurement of the portion handed over to the petitioner and to identify and hand over the balance area measuring 595 sq.ft. to the petitioner; c) The Joint Receivers be given at liberty to engage a civil engineer from the panel of this Hon’ble Court for the purpose of measurement and identification of the balance portion of the said shop room; d) Ad-interim order in terms of prayers above; e) Such further order or orders be passed as this Hon’ble Court may deem fit and proper”. On February 9, 2011 the learned Single Judge called for report with regard to the area handed over to the petitioner. Thereafter, on February 16, 2012 the learned Single Judge having considered the report of the Joint Special Officers directed them to appoint an expert valuer of their choice in terms of the order dated February 9, 2012 and submit a report, the application was made returnable on February 27, 2012. Accordingly, on February 22, 2012, Joint Receivers along with advocates of the parties visited the site for carrying out measurement of the shop room in terms of the order dated February 16, 2012 along with the representative of Mr. P.K. Sanyal Valuer/Chartered Engineer. Accordingly, on February 22, 2012, Joint Receivers along with advocates of the parties visited the site for carrying out measurement of the shop room in terms of the order dated February 16, 2012 along with the representative of Mr. P.K. Sanyal Valuer/Chartered Engineer. While the joint special officers were taking measurement at the backside, three persons namely Shiv Singh, Shailendra Singh and Mitra resisted the proceedings of measurement stating that they are representing Senco Gold Ltd. at the time the Joint Receivers were showing the order passed by the Hon’ble Court on 16th February, 2012, two gentlemen by the name Saibal Biswas and Koushik identified themselves as lawyers of Senco Gold physically resisted Joint Special Officers/Joint Receivers with the help of several musclemen, in discharging their duty and/or to carry out the order of the Hon’ble Court of which the report was made to the Court. On February 27, 2012 the Court passed further orders after going through the report and directed the officer-in-charge, Muchipara Police Station to render all help to the Joint Special Officers to implement the above order and made the application returnable on March 12, 2012. On March 12, 2012 the counsel for the respondent Senco Gold mentioned the matter before the Court and submitted that the measurement be taken by the Valuer/Chartered Engineer in their presence and the report of the Joint Special Officers after taking into account their objection. The Court after considering the submissions of the parties modified its earlier order to the extent that one representative of Senco Gold will be present at the time of taking measurement they will be entitled to make their representations before the Joint Receivers, who will consider the same and include it in the report to be filed by them in this Court. The Court further directed the officer-in-charge, Muchipara police station to ensure that there is no breach of peace whatsoever at the time of taking this measurement and that the orders of the Court are implemented without any disturbance and the matter is returnable on March 12, 2012. This order is the subject matter of challenge in this appeal. Mr. The Court further directed the officer-in-charge, Muchipara police station to ensure that there is no breach of peace whatsoever at the time of taking this measurement and that the orders of the Court are implemented without any disturbance and the matter is returnable on March 12, 2012. This order is the subject matter of challenge in this appeal. Mr. Kapoor, learned senior counsel appearing for the appellant submitted that the learned Single Judge ought not to have permitted or consider the intervention by Senco Gold in the proceedings and having modified the order on the basis of the oral submissions made by the respondents has committed grave error and illegality. It is submitted that the learned Judge failed to consider that Senco Gold was not a party to the suit and had no locus standi to make any submission and/or representation in respect of the said shop room which has been let out to the appellant pursuant to the order of the Hon’ble Court. It is contended that the appellant/petitioner has been allocated the said shop room pursuant to the order of this Hon’ble Court in the suit for partition between the parties therefore the respondent Senco Gold has no right to seek any relief and, cannot be allowed to intervene and/or interfere in the matter at any stage of the proceeding and, therefore, the order impugned deserves to be quashed and set aside and the Court receivers be directed to carry out the measurement of the shop room as directed by the Court without any interference of the respondent Senco Gold. Mr. Bimal Chatterjee, learned advocate appearing for the respondents submitted that if the measurement is restricted to the shop room then they have no objection. However, according to him, in the absence of any evidence on record as to the exact area of the shop premises Joint Receivers cannot be permitted to demarcate and earmark area of 2225 sq. ft. as that of shop room. However, according to him, in the absence of any evidence on record as to the exact area of the shop premises Joint Receivers cannot be permitted to demarcate and earmark area of 2225 sq. ft. as that of shop room. On going through the various orders passed by the learned Single Judge in respect of shop premises and its allocation in favour of the appellant/petitioner it appears that the respondent claims to be the owner of the house alongwith the shop premises, by virtue of a deed of conveyance dated November 20, 2007 executed in their favour by Sri Anindya Mukherjee, the owner of the property having shop room at 124/1, Bepin Behari Ganguly Street, Kolkata 700012. According to respondent, he has an interest in the measurement of the shop premises as he apprehends that under the garb of measurement the appellant may take over possession of the area beyond the shop premises let out to her by the Court. We find from the orders passed by the Court in the proceedings and particularly order dated June 15, 2011 which was sought to be challenged seeking leave to appeal as reproduced above the Court having held that if they got any right, title and interest in the shop premises it is open for them to avail the remedy in accordance with law. Therefore, in our view the respondent Senco Gold have no right to seek any relief in the proceedings for the reason that they are not parties to the proceedings relating to allocation of shop room which is part of asset in a partition suit, in any manner or can be called a necessary party without whom no order can be made effectively or a proper party in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings or have any right to seek any relief relating to the subject matter of the suit between the parties. Therefore, taking into consideration that their intervention came to be rejected by the Court on earlier occasion the learned Single Judge ought not to have allowed them to intervene in the matter without ascertaining their right to claim any relief in the proceedings. Therefore, taking into consideration that their intervention came to be rejected by the Court on earlier occasion the learned Single Judge ought not to have allowed them to intervene in the matter without ascertaining their right to claim any relief in the proceedings. We further hold that the findings of the learned Single Judge in permitting the intervention of the respondent on the premise that “it cannot be disputed that Senco Gold is in possession of other parts of the premises. Assuming that they were liable to be dispossessed from the area claimed by the applicant/applicants in this application, in my opinion, they are entitled to be present at the time of measurement, which would show exactly how much area was handed over to the applicant/applicants and whether the applicant/applicants were delivered 595 sq.ft. less. As they are in occupation of the other portions of the premises, the presence of Senco Gold cannot be resisted”, is totally misplaced in the absence of any document on record to substantiate the same. On the contrary the appellant also claims to have purchased the entire building being premises no.124/1, Bipin Behari Ganguly Street, Kolkata- 700012. In so far as the shop room is concerned it is the case of appellant/petitioner that at the time of handing over possession by the Joint Receivers no physical measurement of the Shop room was made and it is only when measurement was done by engaging an independent engineer it was found to be about 1630 sq.ft. i.e. 595 sq.ft. less. Therefore, now it is for the Court to decide whether the shop room let out to appellant was 2225 sq.ft. or less after the report is received and the respondent Senco Gold has no role to play. The appeal is allowed. The impugned order to the extent permitting the respondent Senco Gold to remain present at the time of measurement is quashed and set aside. As a result the Joint Receivers are directed to proceed with the measurement of the shop room in terms of the order and submit their report on or before May 10, 2012 before the learned Single Judge. With the disposal of the appeal, G.A. No. 677 of 2012 has become infructuous and is dismissed. There shall be no order as to costs.