Smt. Sumita Dutta vs The Bengal Freemasons Trust ...
2021 Latest Caselaw 911 Cal

04.02.2021

srm

C.O. No. 572 of 2020

Smt. Sumita Dutta Vs.

The Bengal Freemasons Trust Association

Mr. Debojyoti Basu, Mr. Subhankar Chakraborty, Mr. Saptarshi Datta, Ms. Shreemoyee Ghosh ...for the Petitioner.

Mr. R.L. Mitra, Ms. Priyanka Dhar ...for the Opposite Party.

This revisional application has been filed by the

claimant/award-debtor being aggrieved by an order dated

February 10, 2020 passed by the learned Chief Judge, City

Civil Court at Calcutta in Misc. Case No.2046 of 2018. Misc.

Case No.2046 of 2018 is an application under Section 47 of the

Code of Civil Procedure and arises out of Title Execution Case

No.12 of 2018. The petitioner was the claimant.

According to the petitioner, disputes and differences

arose in relation to the Memorandum of Understanding

(MOU) entered into between the parties which had taken

effect from July 1, 2005. The petitioner was engaged as an

operating agent to run a property of the opposite party, which

belongs to a trust being Premises No.19, Park Street, Kolkata-

16, comprising of a lawn and a Hall, namely, Freemasons Hall.

The premises were let out for the purpose of functions and the

donations were collected from such persons mainly member of

the trust, who held their functions in the premises. The

petitioner was entrusted with the entire work of carrying out

the operations of the premises and collection of donations,

supervising and management of the private functions in terms

of the MOU. As the opposite party failed to renew the licence

as an operating agent, the petitioner raised a dispute and the

matter was referred to arbitration. The arbitral tribunal passed

the award on April 19, 2012, thereby, turning down the claim

of the petitioner for renewal of the licence and/or for treating

the claimant as a permanent licensee. The tribunal disbelieved

the story of construction of a permanent structure by the

claimant/petitioner. By the selfsame award, the counterclaim

of the opposite party was allowed and the opposite party got a

decree of eviction, mesne profits, interests, costs, etc. The

award was challenged vide Misc. Case No.1051 of 2012. The

learned Chief Judge, City Civil Court at Calcutta dismissed the

Misc. Case No.1051 of 2012. The said order was challenged by

filing F.M.A. No.542 of 2017. This Court dismissed the appeal.

The order of this Court was challenged up to the Hon'ble Apex

Court and the Special Leave Petition was dismissed.

With this chequered history, the opposite party put the

award dated April 19, 2012 into execution by filing Title

Execution Case No.12 of 2018. The petitioner filed an

application under Section 47 of the Code of Civil Procedure

challenging the executability of the decree on the ground that

the decree was void ab initio as the arbitral tribunal did not

have the jurisdiction to pass an eviction decree. Evidence was

going on in the Misc. Case. During recording of evidence, the

petitioner filed an application for production of certain

documents, which were required for execution, discharge and

satisfaction of the decree. According to the petitioner, when

the question as to the identity of a representative of a party

was raised in an execution proceeding, the documents, on the

basis of which such party was authorised to act as a

representative of the opposite party should be directed to be

produced for the proper adjudication of the Misc. Case and

also to enable the petitioner to cross-examine the witnesses

properly. From the application filed by the petitioner before

the learned Court below, it appears that the petitioner

approached the learned Court for direction upon the opposite

party to transmit, all resolutions and/or minutes of the trust

starting from the year 2001 till the initiation of litigation. The

petitioner also prayed for a direction upon the opposite party

to produce all books of accounts, ledgers, income tax returns,

returns filed with Registrar of Companies, service tax register

and the receipts since 2001. Such prayer of the petitioner was

rejected. The petitioner approached this Court under Article

227 of the Constitution of India, aggrieved by the said order.

Records reveal that the MOU was effective from July 1,

2005. The petitioner was engaged as an operating agent to

operate, supervise and collect donations from the functions

held by the members of the trust. The petitioner claimed to be

a licensee. The petitioner herself initiated a proceeding under

the Arbitration and Conciliation Act on the strength of Clause

8 of the MOU. Thus, feigning ignorance of the MOU with

regard to the signatories of the MOU and the persons who

were authorised to enter into the MOU with the petitioner is

nothing but a ploy to drag the proceedings. The husband of

the petitioner, as the constituted attorney of the petitioner,

signed the MOU. The petitioner also cross-examined her own

husband in the proceeding. Thus, it cannot be accepted that

the petitioner and her husband were unaware of the

signatories to the MOU and if such argument of the petitioner

is accepted then the very claim of the petitioner to be a licensee

on the basis thereof is unfounded. The moot question in the

arbitration proceeding was whether the petitioner was entitled

to renewal of licence to operate on the basis of the MOU or on

the basis of her claim of having acquired the status of a

permanent licensee by constructing permanent structures on

the property. The defence of the opposite party in the

proceeding was that by virtue of the termination of the licence

due to efflux of time, the petitioner could not continue to run

the premises as an operating agent and must hand over vacant

possession of the opposite party to the trustees of the property.

Thus, I do not find any reason as to why all books of

accounts, ledgers, income tax returns, service tax registers and

other documents, as prayed for since 2001, would be relevant

for the adjudication of the Misc. Case. Misc. Case 2046 of 2018

is only for adjudication of the executability, discharge and

satisfaction of the decree. There is no question of any

controversy with regard to the identity of any person herein

because the petitioner cannot deny the MOU, which is the

basis of her claim in the arbitration proceeding. Whether there

was a Board Resolution allowing the opposite party to enter

into the MOU with the petitioner is beyond the scope of the

executing Court, inasmuch, the MOU was considered in

details all through the litigation up to the Hon'ble Apex Court.

The decision of Jai Narain Ram Lundia vs. Kedar Nath

Khetan & Ors. reported in AIR 1956 SC 359 does not help the

petitioner, inasmuch, in the dispute leading to the filing of this

revisional application, neither the identify of the award holder

nor that of the award debtor was ever in question. There was

also no question as to whether the award debtor was in a

position to perform her part of the award. There is also no

dispute with regard to the identity of the property. Thus, I do

not find any relevance of the judgment.

The judgment in Century Textiles Industries Limited vs.

Deepak Jain & Anr. reported in (2009) 5 SCC 634 also does not

help the petitioner, inasmuch as, one Mr. Deepak Jain/Mr. D.K.

Jain against whom the decree was sought to be enforced,

denied to be the same D.K. Jain, owner of M/s. Surya Trading

Company, the judgment debtor therein and the Hon'ble Apex

Court held that the identity of this person could be decided in

the execution for discharge and satisfaction of the decree. I do

not find from the Misc. Case that there are contentions on

these lines made by the claimant. The claimant has asked for

production of some documents since 2001 with regard to the

accounts, and financial aspects in the functioning of the trust.

The accounts, ledgers, income tax returns, service tax register,

etc. of the trust have no relevance and the claimant as an

operating agent does not have any business to have them. This

Court finds that the ploy of the claimant to delay the execution

proceeding is apparent from the conduct. The claimant is

already enjoying a stay of the execution on the basis of an

order of this Court and is, thus, dragging the proceeding.

This revisional application is, thus, dismissed.

The learned Executing Court is directed to dispose of

the execution case expeditiously preferably within a period of

three months from the next date fixed.

This Court has not gone into the merits of the

executability of the decree and the learned Court below shall

proceed independently while disposing of the Misc. Case and

execution proceeding, without being influenced by any

observation made hereinabove.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied

for, be given to the parties on priority basis.

(Shampa Sarkar, J.)