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2013 DIGILAW 542 (CAL)

Ramesh Kumar Hansaria v. Union of India

2013-08-03

DIPANKAR DATTA

body2013
ORDER The petitioner claims to be the absolute owner of a flat bearing No. K/2 (hereafter the said flat) on the first floor of a building named Ananda Nivas (hereafter the said building) measuring super built up area of 403 sq. ft. at premises No. DE/3, D.B. Nagar, Baguihati, Kolkata-700 059. According to him, he purchased the said flat for valuable consideration under A Deed of Conveyance dated 16-02-2010 (hereafter the said deed), executed by Sri Nabunkur Roy Chowdhury, Smt. Subha Roy Chowdhury and Smt. Shila Das, the vendors and duly registered in the office of the Additional District Sub-Registrar, Bidhannagar in Book No. 1, C.D. Volume No. 3, pages 1784 to 1803, being No. 01411 for the year 2010. 2. It is claimed in the writ petition that the petitioner had been in possession of the said flat years before the said deed was executed. To establish the same, the petitioner has annexed several documents, viz. the owner of the flat had confirmed by his letter dated 17-6-2004 handing over of possession of two sets of keys to the padlocks attached to the entrance door of the said flat to the petitioner and delivery of peaceful vacant possession thereof to him, obtaining of gas connection from the Hindustan Petroleum Corporation Limited by the petitioner in the said flat in 2004 itself, and payment of maintenance charges in respect of the said flat by the petitioner to the Ananda Nivas Welfare Association (hereafter the Association). 3. It is further claimed that the respondents 4 and 5, Axis Bank Limited and its authorized officer respectively, without putting the petitioner on notice have committed wrongful and unconstitutional act by taking physical possession of the said flat by affixing a purported possession notice on the door thereof as well as a poster conveying that the same is under the possession of the respondent No. 4 in exercise of the power conferred by Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with Rules 8 and 9 of the Security Interest (Enforcement) Rules, 2002. Such act, according to the petitioner, has invaded and/or impaired his right to enjoy the said flat and in the process he has suffered immense prejudice, mental agony and avoidable social stigma. 4. Such act, according to the petitioner, has invaded and/or impaired his right to enjoy the said flat and in the process he has suffered immense prejudice, mental agony and avoidable social stigma. 4. Immediately after the petitioner was informed by a resident of the said building on 13-10-2012 that possession had been taken over by the respondent No. 5, he rushed to his office and after long waiting could learn that a mortgage in respect of the said flat was created in favour of the respondent No. 4 by one Ram Sundar Banerjee and one Smt. Nupur Sundar Banerjee (hereafter the Banerjees wherever referred to jointly) to secure the loan granted to them by such respondent and that the Banerjees having failed to repay their dues, possession of the said flat had been taken over after maintaining formalities as required by the Act and the Rules. The petitioner was surprised upon hearing the same since he did not have any jural or contractual relation with the respondent No. 4, and he had never received any notice issued under the Act or the Rules before possession of the said flat was taken over. 5. By a notice dated 16-10-2012, the petitioner through his learned advocate called upon the respondents 4 and 5 to recall, rescind and withdraw the illegal acts/actions and measures upon removing the purported possession notice affixed on the door of the said flat and to confirm in writing that the respondent No. 4 had or has no charge or claim on the said flat. However, the same proved abortive. 6. In course of making enquiries in the office of the respondent No. 5, the petitioner came to learn that the Banerjees created a purported mortgage in favour of the respondent No. 4 by depositing only an IGR and not the original title deed and that too in respect of a flat bearing No. 1 on the first floor of the said building admeasuring an area of 475 sq. ft. super built up and not in respect of the said flat of which the petitioner is the absolute owner. 7. ft. super built up and not in respect of the said flat of which the petitioner is the absolute owner. 7. Personal contact established by the petitioner with said Ram Sundar Banerjee resulted in having access to copy of a publication made by the respondent No. 4 in the vernacular daily Aajkal in its issue dated 26-9-2012 wherein the secured asset was described as flat No. 1 on the first floor (south back portion) of premises No. 545, Nazrul Islam Sarani, P.O. Raghunathpur, of the building measuring super built up area of about 475 sq. ft. in Mouza Raghunathpur, P.S. Rajarhat, being holding No. 21/2285, Ward No. 21, within the jurisdiction of Rajarhat Gopalpur Municipality in the District of North 24 Parganas. 8. It has been vehemently argued by Mr. Viswanathan, learned advocate representing the petitioner that the secured asset and the said flat are different properties and, therefore, the respondents 4 and 5 could not have taken possession of the latter in purported exercise of powers conferred by the Act and the Rules. It was further contended by him that since neither the petitioner obtained any loan from the respondents 4 and 5 nor was the said flat mortgaged with them to secure any other loan obtained by anyone else, the respondents 4 and 5 ought to be directed to unlock the said flat and re-deliver possession thereof to the petitioner. 9. In support of his submission, Mr. 9. In support of his submission, Mr. Vaswanathan relied on the following authorities : a. 2011 (1) CHN (Cal) 10 : ( AIR 2011 Cal 57 ) Debasree Das v. State of West Bengal; b. AIR 2005 SC 3202 , Binny Ltd. v. V. Sadasivan; c. AIR 1969 SC 1306 , Praga Tools Corporation v. C. V. Imanual; d. AIR 1989 SC 1607 , Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust v. V. R. Rudani; e. 2009 (3) CHN 465 , Suresh Chandra Biswas v. State Bank of India; f. 2011 (2) CHN (Cal) 788 : (2010 CLC 414 (Cal)) Hindusthan National Glass and Industries Ltd. v. Reserve Bank of India; g. 2004 (2) CLJ (SC) 1 : ( AIR 2004 SC 2271 ) Gayatri De v. Mousumi Co-operative Housing Society Ltd.; h. 2005 (2) DRTC 442 (Ori) Indumati Pattanaik v. Chief Manager and Authorised Officer, Bank of India; and i. 2011 (1) DRTC 68 (Mad) Chemstar Chemical and Intermediaries (P) Ltd. v. Commercial Tax Officer. and prayed that relief as claimed in the writ petition may be granted. 10. Mr. Banerjee, learned advocate representing the respondents 4 and 5 contended that the writ petition throws up disputed questions of fact and, therefore, the writ court must stay at a distance. According to him, the petitioner has approached the Debts Recovery Tribunal-III with an application under Section 17 of the Act and must pursue his remedy before such tribunal. 11. On merits, it was contended that the said deed was registered sometime in February, 2010 and that is when the title of the said flat passed on to the petitioner. Possession of the flat, if at all, during the time prior to passing of title is illegal having regard to the terms of the said deed. In this connection, my attention was invited to page 29 of the writ petition, being part of the said deed, where it is recited that the vendors (Sri Nabunkur Roy Chowdhury, Smt. Subha Roy Chowdhury and Smt. Shila Das) were lawfully and absolutely seized and possessed of the said flat. In this connection, my attention was invited to page 29 of the writ petition, being part of the said deed, where it is recited that the vendors (Sri Nabunkur Roy Chowdhury, Smt. Subha Roy Chowdhury and Smt. Shila Das) were lawfully and absolutely seized and possessed of the said flat. He also invited my attention to page 44 of the writ petition to show that while one Bibhas Chandra Das claimed to be the owner of the said flat and confirmed handing over of possession of the same together with the keys to the padlocks, page 45 depicted the one Shila Das was the owner of the said flat. There being a cloud as to who the actual owner of the said flat was and who was in possession as on date the said deed was executed, Mr. Banerjee contended that it is too far-fetched a claim that the petitioner became the absolute owner of the flat since 2004 and was in possession thereof. According to him, the petitioner cannot claim equity on the basis of a seriously disputed claim. 12. The decisions cited by Mr. Viswanathan, according to Mr. Banerjee, are not applicable in the facts and circumstances of the present case and he prayed that the writ petition be dismissed. 13. Considering the rival claims and since dispute in respect of a factual aspect had arisen, by my order dated 18-1-2013 I had requested the Secretary of the Association to file an affidavit within two weeks stating therein (i) the number of flats on the first floor of premises No. 545, Nazrul Islam Sarani, P. S. Raghunathpur, (ii) whether the flats are numbered figuratively or alphabeticaly, (iii) whether there has been existence of flat No. 1 on the first floor of the said building at any previous point of time, (iv) whether the petitioner had been in possession of the said flat since 2004 or not, and (v) further as to whether said Ram Sundar Banerjee had been in possession of any of the flats on the first floor or not. The Secretary was further requested to indicate in his affidavit the number of the flat, if at all the same was possessed by Ram Sundar Banerjee as well as its location. 14. The Secretary was further requested to indicate in his affidavit the number of the flat, if at all the same was possessed by Ram Sundar Banerjee as well as its location. 14. In compliance with such order, the Secretary of the Association filed an affidavit which was taken on record and made available to the parties for advancing further submission. 15. Paragraphs 6 to 13 of the affidavit filed by the Secretary being relevant are set out hereinbelow : 6. That the said association is not an association of apartment owners as per the provisions of the West Bengal Apartment Ownership Act, 1972 and none of the owners of various flats/shops in our building have submitted their purchase deeds in our association and hence our association does not have any data about the actual ownership of any particular flat. 7. As per the available information there are six flats in the 1st floor of Ananda Nivas. However, it needs to be mentioned here that the flat of Dr. Prasanta Ranjan Bhattacharya and Shampa Bhattacharya consists of two adjacent flats merged and converted into one flat. 8. That the flats in our building are numbered alphabetically and the same is mentioned only in the Deed of Conveyance, but in case of most of the flats, the flat numbers are not displayed on the entrance of the flats or at any other place. Our welfare association also does not have any evidence or data about the exact number of any particular flat. 9. That on the basis of the data made available to me, I do not know about the existence of any flat bearing number 1 on the 1st floor of the apartment. 10. That in October, 2012, Mr. Ramesh Kumar Hansaria approached the said association and submitted a photostat copy of a possession letter issued to him on 17-6-2004 wherefrom it is evident that the flat claimed by him to have been in his possession, mentions his flat number as K/2. He also offered to pay the arrear maintenance charges from the year 2004 till the current period. On his request, the said maintenance charges from the year 2004 to November, 2012 was received by the said association in October, 2012. 11. He also offered to pay the arrear maintenance charges from the year 2004 till the current period. On his request, the said maintenance charges from the year 2004 to November, 2012 was received by the said association in October, 2012. 11. That I reside in the second floor of the apartment and the flat presently in dispute, which is located in one side of the 1st floor does not always come to my notice, however during my tenure as the Secretary, I have found the flat in question mostly under lock and key. 12. That during my tenure as Secretary, no maintenance charges has been paid by any person called Ram Sundar Banerjee to the said association. 13. As none of the flat owners have submitted their flat purchase deeds with the said association, I do not have any data to confirm or deny whether Ram Sundar Banerjee possessed or owned any flat in our apartment. 16. The contents of the affidavit do not appear to be of sufficient worth to assist the Court in arriving at a clear finding in respect of the factual dispute. Whether or not the said flat and the secured asset are one and the same property cannot be concluded on the basis of the materials on record and evidence is required to be led to arrive at a proper finding in this behalf. Obviously, the writ Court is not the proper forum for resolution of such a factual dispute. 17. I have considered the authorities cited by Mr. Viswanathan. There can be no dispute with regard to the propositions of law laid down by the Supreme Court and an Honble Division Bench of this Court in the cited authorities but the same do not fit in with the facts of the present case. The Supreme Court in Praga Tools Corporation ( AIR 1969 SC 1306 ) (supra), V. R. Rudani (AIR 1989 S 1607) (supra) and Binny Ltd. ( AIR 2005 SC 3202 ) (supra) while commenting on the expanse of the jurisdiction of the writ court to issue Mandamus did not go so far as to hold that a disputed question of fact, which cannot effectively be decided on affidavit evidence, should be decided by the writ Court notwithstanding availability of a statutory remedy to the aggrieved party which is otherwise competent to decide such question. Gayatri De ( AIR 2004 SC 2271 ) (supra) did not involve any disputed question of fact and the Supreme Court examined the propriety and/or correctness of an order passed by a Special Officer appointed by this Court declining to grant relief to the appellant. In Debasree Das ( AIR 2011 Cal 57 ) (supra), an Honble Division Bench of this Court interfered with the action of the secured creditor because no valid mortgage in respect of the flat in question was found to have been created and that right under Section 13 of the Act was exercised on the basis of an agreement with two persons who never acquired any title to the said flat from its lawful owner. Suresh Chandra Biswas (supra) is also distinguishable because while calling for affidavits by my order dated 21-12-2012, I had kept the point of maintainability of the writ petition open. The decision in Hindustan National Glass Corporation (2010 CLC 414 (Cal)) (supra) has since been set aside by the Supreme Court and, therefore, cannot operate as a binding precedent. The decisions of the Orissa and Madras High Courts also do not lend any assistance to the petitioner in view of the decision reported in (2010) 8 SCC 110 : ( AIR 2010 SC 3413 ) United Bank of India v. Satyawati Tondon. I am, therefore, inclined to accept the submission of Mr. Banerjee that the cited authorities are of no assistance for the petitioner. 18. The Act provides a remedy to the petitioner and it also appears that he had taken steps to file an application under Section 17 thereof, which is yet to be registered for reasons not too clear. However, it appears that the office of the Debts Recovery Tribunal- III has granted a receipt upon receiving an application from the petitioners advocate on record being Annexure XI to the writ petition. If indeed an application has been filed on behalf of the petitioner in terms of the provisions of Section 17(1) of the Act and the application is otherwise in order, there is no reason as to why the same shall not be registered. Accordingly, I direct the respondent No. 2 (Registrar of the tribunal) to register the application immediately but not later than 7 (seven) days from date of receipt of a copy of this order. Accordingly, I direct the respondent No. 2 (Registrar of the tribunal) to register the application immediately but not later than 7 (seven) days from date of receipt of a copy of this order. Should the application of the petitioner under Section 17 be found to be in order, the same shall be placed before the Presiding Officer of the tribunal and sincere endeavour shall be made to decide such application as early as possible, subject to the convenience of the Presiding Officer. In the event for any genuine reason the petitioners application cannot be registered, his learned advocate on record shall be duly informed of the reasons in writing to enable the petitioner to take further action in accordance with law for curing the defect(s). If the defect is incurable, the petitioner shall be at liberty to file a fresh application within 10 days of receipt of intimation in this behalf from the respondent No. 2 and in such eventuality limitation shall not stand as a bar to entertain the application on merits. 19. The writ petition stands disposed of, without costs, leaving all questions open. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date. Order accordingly.