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2023 DIGILAW 1480 (CAL)

Fehmida Zakeer v. Aftab Anwar Baker

2023-09-12

KRISHNA RAO

body2023
JUDGMENT : Krishna Rao, J. 1. The plaintiffs have filed the suit for partition, eviction, rendition of accounts, sale of the common schedule property and allied prayers. During the pendency of the suit, the parties have entered into a settlement on 13th December, 2017 and by an order dated 15th December, 2017, the settlement arrived between the parties was accepted and a preliminary decree was passed. In terms of the order dated 15th December, 2017 and the settlement dated 13th December 2017, on 22nd January 2019, a preliminary decree was drawn. 2. After the preliminary decree was drawn in terms of settlement, the plaintiffs have filed an application being G.A No. 4 of 2019 (Old G.A No. 803 of 2019) praying for appointment of Commissioner for effecting final partition in terms of the preliminary decree dated 22nd January, 2019 and drawing up a final decree. 3. By an order dated 28th November, 2019, this Court has passed the following order: “This is an application for final decree to be passed in terms of this preliminary decree dated 15th December, 2017. Under the said preliminary decree the shares of the respective parties have been allotted. It is submitted that in the preliminary decree the allotment as to which property of the estate will go to which particular party has also been specified. It is further submitted on behalf of the plaintiffs that currently there is an arrear of about Rs. 50 lakhs on account of municipal rates and taxes payable towards the estate. Mr. Utpal Bose, learned senior Advocate appearing on behalf of the plaintiffs submits that there has been an agreement between the parties that 50 % of the arrear municipal rates and taxes of the estate shall be paid by his clients and the balance 50 % shall be paid by the defendant nos. 1 and 4 represented by Mr. Dhruba Ghosh, learned Senior Advocate. Mr. Ghosh on instruction does not deny that an agreement in respect of payment of the arrear municipal rates and taxes as submitted by Mr. Bose has been arrived at between the two groups. If find that the properties have been allocated to the parties under the preliminary decree. The only part left out is vacating the portions under the occupation of the respective parties and shifting to the portion allocated to them under the preliminary decree. Bose has been arrived at between the two groups. If find that the properties have been allocated to the parties under the preliminary decree. The only part left out is vacating the portions under the occupation of the respective parties and shifting to the portion allocated to them under the preliminary decree. If the preliminary decree is enforced, since the same has not been challenged and there being specific allocation under the same agony of the parties will subside and the final decree will be a matter of course without much expenses being made towards Commissioner's remuneration and Valuer's fees which otherwise has to be spent in the event the final decree has to be passed after completion of all formalities. Since the two groups have primarily agreed upon payment of the arrears of municipal rates and taxes of the estate, let such exercise be completed within a period of two months from date. It is expected that either in the meantime or immediately after payment of the arrears of municipal rates and taxes the parties should shift to their respective allocated portions under the preliminary decree after vacating the portion now under their occupation. It is made clear that vacating the portion under occupation of the parties and shifting to the allocated portion should be done simultaneously as far as practical to avoid any multiplicity of proceeding in future. So far as other aspects of the preliminary decree are concerned, let this matter appear on 5th February, 2019.” 4. Subsequent to the order passed by this Court dated 28th November, 2019, several correspondences were made and exchanged between the parties but neither the preliminary decree nor the order dated 28th November, 2019 was complied with. 5. As none of the parties come forward for compliance of the preliminary decree, the plaintiff has again filed an application being G.A No. 5 of 2020 for appointment of Receiver for the purpose of collecting and receiving all the rents and incomes from the properties and for clearance of all the dues of the joint estate in terms the settlement arrived between the parties. 6. During pendency of the above applications, the defendant no. 2 has also filed an application for appointment of Receiver. 7. The defendant no. 4 submitted that in terms of the settlement dated 15th December, 2017, the defendant no. 6. During pendency of the above applications, the defendant no. 2 has also filed an application for appointment of Receiver. 7. The defendant no. 4 submitted that in terms of the settlement dated 15th December, 2017, the defendant no. 4 has paid partial arears taxes to the concern authorities including property taxes to the Kolkata Municipal Corporation. It is further contended that as per the preliminary decree passed by this Court, the parties to the suit agreed to share a sum of Rs. 4,00,000/- per month amongst themselves after defraying the outgoing expenses and depositing Calcutta Municipal Corporation dues. He submits that the disbursement was continued only up to three months from 15th December, 2017 to 15th March, 2018. 8. The defendant no. 4 further contended that as per the arrangement in terms of settlement, the plaintiffs are entitled to get Rs. 98,500/- per month which is 24.60% and the defendant no. 2 is entitled to get an amount of Rs. 78,300/- per month which is 19.57% and the said amounts are to be duly paid by the defendant no. 4 without any default. It is further contended that there is no default in transferring the shares of the other parties. 9. The defendant no. 4 submitted that the petitioner has not complied with the order passed by this Court dated 28th November, 2019 and have not made any payment of either the Municipal authorities or other dues with respect of the suit properties though the defendant no. 4 has complied with the order in part and paid municipal taxes with respect of their share of the property of 71 Bentinck Street property. 10. The defendant no. 4 submitted that the following dues are outstanding with respect of the suit properties: (a) Municipal Taxes Rs. 4,13,09,662.70/- (b) Income Taxes Rs. 68,07.367/- (c) Staff Gratuity Rs. 10,08,600/- 11. The defendant no. 4 has filed statement of account for the year 2018- 2019 and submitted that the defendant has complied with the settlement arrived between the parties and also complied with the order passed by this Court dated 28th November, 2019. This Court has considered the statement of account submitted by the defendant no. 4 but there is no breakup of the amount shown in the said account. This Court finds that the said statement of account filed by the defendant no. 4 is not an accurate account. 12. This Court has considered the statement of account submitted by the defendant no. 4 but there is no breakup of the amount shown in the said account. This Court finds that the said statement of account filed by the defendant no. 4 is not an accurate account. 12. The plaintiff has filed suit for partition of the properties and during the pendency of the suit, the parties have come to a settlement and in terms of the settlement, this Court passed preliminary decree. All the parties to the suit have accepted the settlement and the preliminary decree passed by this Court. By an order dated 28th November, 2019, this Court was of the view that parties have agreed upon payment of arrears of municipal rates and taxes of the estate and directed the parties to pay the same within two months and also directed that after payment of such dues parties should shift to their respective portions as per the preliminary decree after vacating the portion which are under the occupation of the parties. 13. Now there is allegation and counter allegation between the parties that the parties are not complying either with the preliminary decree or the order passed by this Court dated 28th November, 2019. 14. Considering the above facts and circumstances of the case, this Court finds that a Special Officer/ Commissioner is required to be appointed to comply with the preliminary decree passed by this Court. 15. Accordingly, Mr. Jishnu Chowdhury, 67F Palm Avenue, Kolkata-700019, Mobile No. 9830015791, is appointed as Special Officer/Commissioner for collecting rents and income from the properties for clearing all the dues of the joint estate and after clearance of the dues, to hand over possession of the respective shares of the parties for effecting partition in terms of the preliminary decree passed by this Court dated 22nd January, 2019. 16. The remuneration of the Special Officer/Commissioner is fixed at Rs. 4,00,000/- and the remuneration of the Special Officer/ Commissioner shall be paid by all the parties in equal share. 17. The Special Officer/Commissioner shall complete all the procedure within four months from the date of receipt of this order and shall submit report before this Court on 15th January, 2024. 18. G.A No. 4 of 2019, G.A No. 5 of 2020 and G.A No. 6 of 2023 are accordingly disposed of.