Rafi Ahamed Mollah vs The State Of West Bengal & Ors
2022 Latest Caselaw 1724 Cal

03.   01.04.2022
      Ct. No.06
      Tanmoy


                                      M.A.T. 128 of 2022

                                     Rafi Ahamed Mollah
                                           -Versus-
                               The State of West Bengal & Ors.
                                             With
                                   IA No: C.A.N. 1 of 2022



                   Mr. Md. Salahuddin, Adv.,
                   Mr. Md. Ahsanuzzaman, Adv.,
                   Mr. Md. Raziuddin, Adv.

                                     ...for the appellant.

                   Mr. Raja Saha, Adv.,
                   Ms. Tanusri Chanda, Adv.,

                                     ...for the State.

                   Mr. Malay Kr. Roy, Adv.

                                     ...for the respondent nos. 4 to 6.

Mr. Bharat Chandra Simai, Adv.

...for the respondent no.9.

By consent of the parties, the appeal and the

connected application are taken up together for

hearing.

This appeal is preferred against a judgment and

order dated February 3, 2022 whereby W.P.A. 624 of

2022 was disposed of.

The writ petitioner/appellant had approached the

learned Single Judge, challenging a sale notice issued

by the Rampurhat Co-operative Agriculture and Rural

Development Bank Limited for sale of 16.5 decimals of

land which was owned by the respondent no.9 in the

writ petition. The story is that the writ petitioner and

the respondent no.9 built a hotel on a property which

was co-owned by the petitioner and the respondent

no.9. The petitioner is the owner of 20.5 decimals of

land and the respondent no.9 was the owner of 16.5

decimals of land. The respondent no.9 had borrowed

money from the Bank. The respondent no.9 defaulted

in repayment of such loan. Accordingly, the Bank took

steps for recovery of its dues by sale of the portion of

the aforesaid property belonging to the respondent no.9

which had been mortgaged in favour of the Bank as

security for the loan advanced by the Bank to the

respondent no.9.

Before the learned Single Judge the writ petitioner

contended that he and the respondent no.9 were joint

owners of land in question. Although the writ petitioner

has obtained a preliminary decree in a suit for partition

filed by him against the respondent no.9 in the

appropriate Civil Court, no physical demarcation by

metes and bounds between the portion owned by the

writ petitioner and the portion owned by the

respondent no.9 has taken place. The Bank should

have notified the writ petitioner of the proposed sale.

The writ petitioner is a person interested in the

property and was not aware of the sale notice.

The learned Judge held that the writ petitioner

was aware of the mortgage in favour of the Bank as

would appear from the plaint filed by the writ petitioner

in the partition suit. The Bank had been added as a

party in the partition suit. The preliminary decree

specifically permitted the Bank to recover the loan in

accordance with law and the mortgage of 16.5 decimals

in the Eastern side of the land concerned was noted by

the learned Civil Judge. It was recorded that the writ

petitioner's share in respect of the 20.5 decimals of

land had been protected by the Civil Court in the

partition suit. The Bank also submitted before the Civil

Court that 20.5 decimals of land on the Western side

belonging to the writ petitioner is not affected by the

sale notice at all. It was finally brought to the notice of

the learned Single Judge that the sale had been

completed and certificate of sale had been issued by the

Bank on January 27, 2022 in favour of the purchaser.

The learned Judge also recorded that neither the

writ petitioner, nor the respondent no.9 took steps for

setting aside the sale notice within the statutory period.

It was observed that sitting in judicial review, the

learned Judge did not find any illegality on the part of

the Bank in the procedure adopted for recovery of the

loan, particularly when the Civil Court in the partition

suit had specifically allowed the Bank to recover the

loan in accordance with law by enforcing the mortgage.

The learned Judge granted liberty to the writ petitioner

to take steps for challenging the sale, if permitted by

law.

We had, on an earlier occasion, added the

purchaser as a respondent in this appeal and had

directed the appellant to effect service on the added

respondent. This we had done to try and see if the sale

of the mortgaged portion of the property could be

effected in favour of the appellant provided the

appellant was willing to match the price paid by the

purchaser. This exercise could not be done in the

absence of the purchaser and hence, we had added him

as a party. However, in spite of service, the purchaser

has not appeared before us. We do not think that we

can force the purchaser to appear in this proceeding

before us, nor will that be proper.

We see no infirmity in the approach of the learned

Single Judge and in the order impugned. The appellant

will be at liberty to challenge the sale on any ground

available to him in law including infraction of any

statutory rule. We are not inclined to interfere with the

order under appeal.

The appeal being M.A.T. 128 of 2022 and the

connected application being IA No: C.A.N. 1 of 2022 are

accordingly disposed of.

Interim order, if any, stands vacated.

Let urgent photostat certified copies of this order,

if applied for, be supplied to the parties upon

compliance with all necessary formalities.

(Kausik Chanda, J.) (Arijit Banerjee, J.)