Jmc Garments & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 3637 Cal

07/07/2021
 Item No. 8
 Court No.8.
  S. DE
                            Through Video Conference

                                W.P.A. 7921 of 2021

                                JMC Garments & Ors.
                                       Versus
                           The State of West Bengal & Ors.




                     Mr. Chayan Gupta,
                     Ms. Agniva Banerjee,
                                       ...for the petitioners.
                     Mr. Sailesh Mishra.
                                 ...for the respondent nos. 3 & 4.

A deed of conveyance registered by a secured

creditor under the provisions of the Securitization Act

2002 is under challenge in the present writ petition.

Learned advocate appearing for the petitioners

relies upon a notice of sale. He refers to the

description of the property in the notice of sale. He

also refers to the sale certificate and the schedule

disclosed in the deed of conveyance. He submits that

there are huge discrepancies between the sale notice

and the schedule of the deed of conveyance registered

in favour of the purchaser. He also submits that the

deed of conveyance is, therefore, bad in law and

should be declared null and void.

Learned advocate appearing for the bank

submits that, a proceeding under Section 17 of the Act

of 2002 being S.A. No.243 of 2018 was initiated by one

of the persons aggrieved by the steps taken by the

secured creditor under the Act of 2002. In such S.A.

No.243 of 2018 the writ petitioners herein were party

respondents.The writ petitioners filed an interlocutory

application being I.A. No. 1512 of 2019 in S.A. No. 243

of 2018. He refers to paragraph 10 of the application

being I.A. No.1512 of 2019 filed by the writ petitioners

in such appeal. He submits that, the issue of

mis-description of the immovable property concerned

in the deed of conveyance was raised by the writ

petitioners in such application. He refers to the

judgment and order dated February 24, 2021 passed

in S.A. No.243 of 2018. He submits that, the appeal

under Section 17 of the Act of 2002 being S.A. No.243

of 2018 along with the interim application made

therein was dismissed by the Debts Recovery Tribunal.

In such circumstances, he submits that the issue

sought to be raised by the petitioners herein having

attained finality between the petitioners and the

secured creditor should not be allowed to be raised by

the writ petitioners.

In the facts of the present case, the secured

creditor initiated proceedings under the Act of 2002 in

respect of an immovable property. There is a sale

notice issued by the secured creditor. The sale notice

describes the immovable property in a particular

manner. There is a sale certificate issued by the

secured creditor in respect of the self-same immovable

property which describes the immovable property in

the same manner as that of the sale notice. There is

also a deed of conveyance executed by the secured

creditor in favour of the purchaser. In the deed of

conveyance however, there is a deviation from the sale

notice and the sale certificate. The issue of deviation

from the sale notice and the sale certificate was taken

by the writ petitioners herein in paragraph 10 of I.A.

No.1512 of 2019 filed in S.A. No.243 of 2018. S.A. No.

243 of 2018 is a proceeding under Section 17 of the

Act of 2002 at the behest of a person who claimed to

be aggrieved by the steps taken by the secured creditor

under the Act of 2002. S.A. No. 243 of 2018 along

with the interim application made by the writ

petitioners therein being I.A. No.1512 of 2019 was

dismissed on February 24, 2021.

I find from the materials made available to Court

that, the issue as to the so called mis-description of

the immovable property in the deed of conveyance was

raised by the writ petitioners in I.A. No.1512 of 2019

in S.A. No.243 of 2018 and finally decided. The issue

sought to be now raised by the writ petitioners

assuming that, the same was not raised before the

Debts Recovery Tribunal was capable in being raised

in such a proceeding. On the basis of the constructive

res judicata, such issue should not be allowed to be

raised by the writ petitioners herein.

In such circumstances, I find the writ petition

not to be maintainable.

W.P.A. 7921 of 2021 is dismissed without any

order as to costs.

Urgent certified Website copy of this order, if

applied, be supplied to the parties, upon compliance of

all requisite formalities.

[Debangsu Basak, J.]