Calcutta High Court
Woodland Manufacturer Ltd vs Sakti Prasad Garga & Ors on 19 February, 2021
OD 2
ORDER SHEET
IA NO.GA/15/2021
In
CS/324/1987
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
WOODLAND MANUFACTURER LTD.
VERSUS
SAKTI PRASAD GARGA & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date: 19th February, 2021.
(Via Video Conference)
Appearance:
Mr. Rudra Deb Chowdhury, Adv.
Mr. Tapan Sil, Adv.
Mr. Sarosij Dasgupta, Adv.
The Court: The plaintiff seeks various orders as against the defendants on the
basis of the judgment dated September 12, 2014 passed in CS/324/1987 resulting in
the decree passed therein.
Learned advocate appearing for the plaintiff submits that, an appeal was preferred
against the judgment dated September 12, 2014 resulting in the decree. Such appeal
was disposed of by an order dated February 20, 2020 by directing the decree to be
treated as a preliminary decree.
Learned advocate appearing for the plaintiff submits that, there subsists a
preliminary decree dated September 12, 2014 restraining the defendant no.2 from
selling, alienating, encumbering, disposing of parting with possession or transferring his
share in respect of the suit premises in any manner whatsoever for a period of 25 years
from date of the decree dated September 12, 2014. He submits that the defendant no.2
is in violation of such decree of restraint executed a Deed of Gift dated March 28, 2017
in favour of his son. The defendant is a Receiver. As a Receiver, he was not permitted to
execute such Deed of Gift. As an owner, he acted in violation of the decree dated
September 12, 2014 in doing so. He submits that, since the Deed of Gift dated March
28, 2017 is in violation of decree dated September 12, 2014, such Deed of Gift be set
aside. He submits that, the son of the defendant no.2 on the basis of such Deed of Gift
dated March 28, 2017 created third party rights over and in respect of the suit property
by executing the various deeds and documents. All such deeds and documents also be
set aside since, they emanate out of the Deed of Gift dated March 28, 2017. He submits
that the defendant no.2 dealt with the suit property in violation of the decree dated
September 12, 2014. The defendant no.2 and his son created further third party rights
and inducted various persons into the property. The defendant no.2 altered the status
of occupants of the property from 2008.
Learned advocate appearing for the plaintiff refers to the report of the Special
Officer appointed by the Court. He submits that such report demonstrates that there
are various other occupants at the suit premises. He submits that the plaintiff is taking
steps with regard to the persons now found to be in occupation of the suit premises.
The defendant no.2 is represented.
Learned advocate appearing for the defendant no.2 does not object to the Deed of
Gift dated March 28, 2017 being set aside. He submits that, all documents entered into
by the son of the defendant no.2 on the basis of the Deed of Gift dated March 28, 2017
be also set aside. He submits that the creation of mortgage in favour of the bank be also
set aside.
By an order dated January 22, 2021, an order in terms of prayers (a) and (k) was
granted. Prayer (a) relates to notice being served upon the occupants of the premises.
The application was taken up for consideration on January 29, 2021 thereafter.
On the allegation of the plaintiff that the defendant no.2 was changing the occupiers at
the premises, a Special Officer was appointed in terms of prayer (g) of the petition.
The learned Special Officer submits his report in Court which be taken on record.
He circulates the report amongst the parties in Court.
The report demonstrates that there are various occupants at the suit premises.
According to the plaintiff, there is a change of the number of occupants and the
persons in occupation of the suit premises from 2009 when the inventory was made by
the then Special Officer.
The plaintiff is at liberty to take appropriate steps on the basis of the report of the
Special Officer filed in Court today.
So far as the Deed of Gift dated March 28, 2017 is concerned, the same is in
violation of the decree dated September 12, 2014 restraining the defendant no.2 from
creating any third party rights in respect of the suit property. Such Deed of Gift cannot
survive. There will be, therefore, an order in terms of prayer (b) of the petition.
The son of the defendant no.2 entered into and executed various other documents
subsequent to the Deed of Gift dated March 28, 2017. The son of the defendant no.2
traced his right, title and interest to do so through the Deed of Gift dated March 28,
2017. Consequently, such documents and deeds are also required to be set aside.
There will be, therefore, orders in terms of prayers (c), (d) and (f) of the petition. Prayer
(e) relates to the equitable mortgage which the son of the defendant no.2 allegedly
created in favour of the Allahabad Bank, Dunlop Bridge Branch as security.
Allahabad Bank stands merged with Indian Bank. The merged entity was served
by the plaintiff in terms of the order dated January 22, 2021.
The affidavit of service filed be taken on record.
None appears for the Indian Bank.
However, for the ends of justice, one more opportunity is afforded to Indian Bank
to contest the proceedings. Indian Bank, Dunlop Bridge Branch is put on notice that, in
the event they remain unrepresented on the next date, equitable mortgage that the
Indian Bank may claim in respect of the suit property will be declared null and void.
The remuneration of the Receiver remains outstanding. An affidavit from the
defendant no.2 was called for by the order dated January 29, 2021.
Learned advocate appearing for the defendant no.2 seeks extension of time to file
such affidavit.
The defendant no.2 is granted one more opportunity to file affidavit disclosing the
amounts of collections lying with him in respect of the suit property. Let such affidavit
be filed within one week from date. Needless to say that the defendant no.2 will disclose
the accounts in respect of his dealings, as the Receiver with regard to the suit property
in question, in such affidavit.
In the fitness of things, it would be appropriate to direct the plaintiff to issue
further notice upon the persons named in prayer (a) of the application. The plaintiff will
also serve a copy of this order upon the person named in prayer (a) of the application.
The persons named in prayer (a) are put on notice that in the event, they remain
unrepresented on the next date, appropriate orders for eviction of such person from the
suit property will be passed, if need be.
List the application ten days hence.
(DEBANGSU BASAK, J.)
B.Pal
