Jmc Garments And Anr vs State Of West Bengal And Ors
2022 Latest Caselaw 4006 Cal

July 6, 2022
Sl. No.21
Court No.1
PA - RB
                                          MAT 729 of 2021
                                         IA No. CAN/1/2021

                                     JMC Garments and Anr.
                                                vs.
                                  State of West Bengal and Ors.


                 Mr.   Abhrajit Mitra,
                 Mr.   Shayan Gupta,
                 Mr.   Nigam Ashish Chakroborty,
                 Mr.   Agniva Banerjee, Advocates
                                            ... for the appellants

                 Ms. Sutapa Sanyal,
                 Ms. Susnita Saha, Advocates
                                         ... for the State
                 Mr. Probal Kr. Mukherjee,
                 Mr. Sailesh Mishra, Advocates
                                        ... for the respondent nos. 3 & 4

By this intra-court appeal, writ petitioner has

challenged the order of the learned Single Judge dated 7th

of July, 2021 whereby WPA 7921 of 2021 has been

dismissed on the ground of constructive res judicata.

Appellant had filed the writ petition before the

learned Single Judge with a prayer to cancel/rescind the

deed of conveyance dated 6th of March, 2019 and also to

recall the sale notice appended to the deed of conveyance.

Case of the appellant in the writ petition is that the

appellant had availed financial assistance from the bank

and had committed default in making repayment,

therefore, the account of the appellant was declared as

NPA by the respondent bank. Further case of the

appellant is that he had mortgaged the property

comprising of one storey structure having the carpet area

MAT 729 of 2021

of 4682 sq.ft. Thereafter, the appellant had constructed

three more floors thereon and in the proceedings under

the Securitization and Reconstruction of Financial Assets

and Enforcement of Security Interest Act, 2002 (for short,

'SARFAESI Act, 2002) the property in question was sold

disclosing only the structure on the ground floor and the

sale certificate was also issued in respect of the land with

ground floor construction but while executing the

conveyance deed dated 6th of march, 2019, the sale

certificate was manipulated and the sale deed was

executed in respect of G+3 storeyed building which was

never mortgaged.

Learned Single Judge has dismissed the petition on

the ground that appellant had filed I.A. No. 1512 of 2019

in S.A. No. 243 of 2018 before the Debts Recovery

Tribunal (DRT) for the same relief, which was dismissed,

therefore, on the basis of the constructive res judicata,

such an issue cannot be allowed to be raised in the

petition.

Submission of learned counsel for the appellant is

that I.A. No. 1512 of 2019 was not decided by DRT on

merit, therefore, principles of res judicata or constructive

res judicata will not be attracted. He further submits that

in the order under Section 14 of the SARFAESI Act, 2002,

in the sale notice and even in the sale certificate, what

was sold was 4682 sq. ft. of land with single storeyed

structure, therefore, sale deed for 18828 sq. ft. with G+3

MAT 729 of 2021

structure could not be executed by manipulating the sale

certificate.

Learned counsel for the respondent bank has

opposed the petition by submitting that the learned

Single Judge has rightly attracted the principles of res

judicata and that the prayer made in the writ petition for

cancellation of sale deed cannot be granted in exercise of

writ jurisdiction and that the appellant had deposited the

title deed and after valuation of the entire structure, it

was sold.

Having heard the learned counsel for the parties and

on perusal of the record, it is noticed that the learned

Single Judge had dismissed the petition only on the

ground of constructive res judicata without entering into

the merits of the matter.

The record further reflects that the tenant of the

premises had filed S.A. No. 243 of 2018 before the Debts

Recovery Tribunal-3, Kolkata with a prayer to direct the

bank not to disturb peaceful enjoyment of tenancy and to

stay further SARFAESI proceedings. In the Second

Appeal, appellant had filed interlocutory application being

I.A. No. 1512 of 2019 with a prayer to

cancel/quash/rescind the sale deed dated 25th of

September, 2018 on the ground that the sale deed was

registered on the basis of manipulated/interpolated sale

certificate. Same plea which has been raised in the

present writ petition was raised in the I.A. but the said

MAT 729 of 2021

I.A. has not been decided by the DRT on merit. A perusal

of the judgment dated 24th of February, 2021 passed by

the DRT-III, Kolkata in S.A. 243 of 2018 reveals that the

Tribunal had examined the claim of the tenant on merit

and had found that bona fide of the tenant was highly

doubtful and accordingly, had dismissed the S.A. and in

one line, without entering into the merits of the pending

I.A.s, had dismissed the I.A.s by observing as under:

"12. In the light of the ratio of the judgment delivered by the Hon'ble Apex Court, instant S.A. is dismissed along with pending I.A.s, if so any. No costs."

Thus, even the I.A. No. of the appellant was not

taken note of nor the plea raised by the appellant in I.A.

No. 1512 of 2019 has been noted, considered or

adjudicated by the Tribunal, hence, the principle of res

judicata will not be attracted in the present case.

Hon'ble Supreme Court in the matter of Erach

Boman Khavar vs. Tukaram Shridhar Bhat and

Another reported in (2013) 15 SCC 655, after taking

note of the earlier judgments on the point, has held as

under:

"39. From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation."

MAT 729 of 2021

Hence, we are unable to uphold the order of the

learned Single Judge, whereby, writ petition has been

dismissed on the ground of constructive res judicata. So

far as the other issues raised before this Court on the

merits of the controversy are concerned, we are of the

opinion that the same are required to be examined by the

learned Single Judge at the first instance so that there

may not be any loss of forum to the parties.

Thus, we allow the appeal and set aside the order of

the learned Single Judge and restore the matter back

before the learned Single Judge for adjudication of the

petition on merit, in accordance with law.

[Prakash Shrivastava, C.J.]

[Rajarshi Bharadwaj, J.]