State Of West Bengal vs Union Of India
2022 Latest Caselaw 1645 Cal/2

                                       1

                  IN THE HIGH COURT AT CALCUTTA

                    CIVIL APPELLATE JURISDICTION

                             ORIGINAL SIDE

Present:-
The Hon'ble Justice Subrata Talukdar.
            -And-
The Hon'ble Justice Krishna Rao.



                            IA NO.GA/37/2022

                                      IN

                             WPO/3794/1994

                          STATE OF WEST BENGAL

                                     -VS-

                             UNION OF INDIA

                            IA NO.GA/35/2021

                                      IN

                             WPO/3794/1994

                          STATE OF WEST BENGAL

                                     -VS-

                             UNION OF INDIA

For the Appellants              :     Mr. A.Hossain
                                      Ms. S. Chowdhury
                                      Mr. Ovik Sengupta

For the Special Officer             : Mr. Sakya Sen
                                      Mr. Suvodeep Sen
                                      Ms. S. Dutta


Hearing concluded on                : 27.04.2022
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Judgment on                         : 20/05/2022



Subrata Talukdar, J:- The aforementioned application being GA 35 of

2021 has been filed by one Mahendra Lallubhai Mehta (hereinafter referred

to as the applicant or the said applicant) in connection with the tenanted

property being room No. 14A comprising in all 207 square feet on the first

floor of Elaichiwadi building situated at Elaichiwada Compound, M.G. Road,

Ghatkopar (West), Mumbai-400086 (hereinafter referred to as the said

property).


      The said Property is in the custody of a Special Officer appointed by

the Hon'ble High Court at Calcutta to manage the affairs of one Sanchayani

Savings and Investment (I) Ltd. (for short referred to as SSIL).


      SSIL was engaged in the fraudulent business of obtaining deposits

from investors by promising them returns at a high rate of interest. In the

course of its business SSIL entered into a Leave and Licence agreement

dated 22nd December 1993 with one Dr. Subodh Chandra Ladhawala, being

the monthly tenant in respect of the said property. By virtue of the said

Leave and Licence Agreement, SSIL was permitted to use the said property.


      WPO 3794 of 1994 was filed in the year 1994 by the State of West

Bengal impleading the Union of India and several others as party

respondents and, in the nature of a Public Interest Litigation (PIL). The said

PIL was filed in respect of several chit fund companies including SSIL, which

was impleaded as the Respondent No.12. The State of West Bengal as the

petitioner, inter alia, prayed for appointment of a Special Officer for the

purpose of taking over charge and possession of all assets, movable and

immovable including the bank accounts of the said Chit Fund Companies,

its Directors, their relatives and family members, including those connected

with the respondent no. 12/ SSIL.

By Order dated 21st March 1995 the Hon'ble High Court at Calcutta

injuncted several companies, including the respondent No. 12/SSIL, from

dealing with and/or disposing of and/or encumbering and/or alienating in

any manner whatsoever their assets and properties, both movable and

immovable, including the assets and properties of the respondent

No.12/SSIL. The Order of the Hon'ble High Court was affirmed by the

Hon'ble Apex Court on the 12th of December, 1996.

Thereafter the Hon'ble High Court by further orders dated 6th and

10th of August 1999 appointed a Special Officer for SSIL namely, one N.C.

Banerjee and Company, Chartered Accountants. The order of appointment

of the Special Officer was affirmed by the Hon'ble Supreme Court vide its

Order dated 28th April 2003. Since their appointment, the Special Officer is

in possession of the said property representing the company in

liquidation/SSIL.

It is submitted by Mr. Hossain, Learned Counsel appearing in support

of GA 35 of 2021, that in the year 2000 the owners of the said property filed

eviction suit No. 85 of 2000 before the Learned Small Causes Court at

Mumbai. It is submitted that the applicant is now the owner of the said

property. It is further submitted that some time in the month of March

2002, the Special Officer for SSIL with the help of the local Police, sealed the

said property claiming the said property to be one of the assets of SSIL. In

the interregnum the original tenant, Dr. Subodh Chandra Ladhawala filed IA

No. 30 of 2005 before the Hon'ble Supreme Court claiming for release of the

said property in favour of the tenant. During the pendency of IA 30 of 2005

the owners of the property by virtue of a Deed of Conveyance dated 26 June

2009 transferred the said property in favour of the applicant.

Mr. Hussain further submits that on 30th June 2010 the said tenant,

Dr. Subodh Chandra Ladhawala expired leaving behind his widow and three

married daughters. The widow and three married daughters were

substituted in place and stead of the deceased tenant in the pending judicial

proceedings. It is submitted that by virtue of a Terms of settlement entered

into by and between the applicant and the widow of the late tenant, Dr.

Ladhawala, the applicant has entered into the shoes of the original tenant.

Learned Counsel points out that since the applicant has no legal debt

qua the Company/SSIL, the Company/SSIL be now directed to disclaim the

property and surrender the licence in favour of the applicant. Specific

reference is drawn by Learned Counsel to the Consent Terms agreed by and

between the legal heirs (LRs) of the late tenant and the applicant.

Mr. Hossain submits that subsequently with the death of the widow

of Dr. Ladhawala on 3rd December 2018, her three married daughters filed

separate affidavits stating that they do not claim any right, title and interest

in relation to the said property, ownership of which completely rests with

applicant.

Therefore, since the applicant and the Company/SSIL have no legal

relationship between themselves, SSIL be directed by this Court to disclaim

and hand over peaceful possession of the said property in favour of the

applicant.

Per Contra, Mr. Sakya Sen, Learned Counsel appearing for the Special

Officer, submits that the disclaimer in respect of the said property cannot be

automatic and is dependant upon the full and final discharge of liability

incurred towards loan taken by the original tenant/Dr. Ladhawala from the

Company/SSIL. Relying on several orders connected to the said property,

Mr. Sen argues that only notional/symbolic possession was handed over by

the LRs in favour of the applicant. It has been carefully recorded in the

Consent Terms entered by and between the late widow of the original tenant

and the applicant as follows:-

"The above suit was filed by Trustees of Mithibai Narandas Kanji and Puribai Purshottam Chandriani Charitable Trust. At that time, the Plaintiff 1 to 5 were the Trustees. The said trust by Deed of Conveyance dated 26th June, 2009 transferred and assigned the suit property in favor of Plaintiff No.6. Thus the Plaintiff No. 1 to 5 are no more the owners of suit premises and not concerned with said suit premises.

Plaintiff No.6 & Defendant agrees that they have already entered into Memorandum of Agreed Terms whereby the Plaintiff No.6 has agreed to compensate the Defendant for getting alternate accommodation in new of the suit premises. The Defendant shall handover the possession of the Suit premises to the Plaintiff No.6 and surrender her terancy rights. The plaintiff No.6 & /Defendant have signed Agreement dated 16th June, 2017 accordingly there was further understanding between the parties and

Supplementary Agreement dated 23rd March, 2018 is entered into between the Plaintiff No.6 & Defendant. Both Parties have also acted in part performance of Agreement dated 16th June, 2017.

Both Parties agreed that aforesaid two Agreements are binding on them and they will act according to the terms and conditions as stated therein.

In view of what is stated above the Plaintiff withdrawn the suit as settled out of Court Mumbai Date: 23/03/2018"

It is submitted that the handing over of possession to the

applicant on the basis of the Consent Terms was only notional and

contingent upon payment of Rs. 21,72,981.76/- to the Special Officer

in discharge of the obligations of Dr. Ladhawala, the late original

tenant, in respect of two loans and a security drawn by the original

tenant from the Company/SSIL.

In support of his submissions, Mr. Sen relies on the following:-

Minutes of the Proceedings before the Enquiry Authority, In

the Matter of SSIL dated 05.05.2011 in IA No. 30 in CA No.

5168/2000:-

"Thus taking note of circumstances, as a whole and the concession in interest in respect of one of the loans granted to Dr. Ladhawala and based on this agreement, it would be proper to direct the LRs of Dr. Ladhawala to pay the sum of Rs. 21,72,981.76/- to the Special Officer in discharge of the obligations of Dr.

Ladhawala in respect of two loans and the security relating to this transaction.

This application can, therefore, be disposed of by directing the LRs of the applicant to pay the Special Officer a sum of Rs. 21,72,981.76/- in full settlement of the claims between Dr. Ladhawala and the company relating to this transaction and ordering the Special Officer to put the LRs of Dr. Ladhawala in possession of the premises. For issuing appropriate directions the Special officer will place this application and this order before the Supreme Court."

Order dated 12/05/2011 of the Hon'ble Apex Court in

Contempt Petition © No. 389/2004 in CA 5168/2000:-

"Perused the order dated 5.5.2011 in regard to I.A. 30 filed by the legal representatives of the applicant Licensor (Late Dr. S.C. Ladhawala). After considering the matter, the Enquiring Authority has suggested that on payment of 21,72,981.76/- by the applicants to the Special Officer in full and final settlement of the claims between the company and the Late Dr. Subodh Chandra Ladhawala relating the Special Officer shall put the LRs of Late Dr. Ladhawala in possession of the premises. The said order is accepted and the application is allowed accordingly. If the Criminal Investigation Department (CID), Bombay has put any seal on the property, the same shall be removed on such payment and confirmation by the Special Officer."

Having heard the parties and considering the materials placed,

this Court is satisfied that the Special Officer has made out of a case

for claiming the liquidation of the outstanding liability of the original

tenant qua the tenanted property.

Accordingly, the applicant in GA 35/2021 is entitled to an Order

in terms of Prayer (c) thereof on condition that the applicant makes a

deposit of Rs. 21,72,981.76/- (Rupees Twenty-One Lakhs, Seventy-

Two Thousand Nine Hundred Eighty One and Seventy-Six paise only)

in favour the Special Officer by a Banker' Cheque/Pay Order and,

upon such deposit, the Special Officer shall disclaim and hand over

vacant possession of the said tenanted property being Room No. 14-A,

the entire first floor of Elaichiwada Building situated at Elaichiwada

Compound, M.G. Road, Ghat Kopar (West), Mumbai-400086, to the

applicant within a week of the making of such deposit with the Special

Officer.

IA No. GA/35/2021 stands accordingly disposed of.

All parties shall act in terms of the copy of the order downloaded

from the official website of this Court.

Urgent Xerox certified photocopies of this judgment, if applied

for, be given to the parties upon compliance of the requisite

formalities.

I Agree.

  (Krishna Rao, J.)                           (Subrata Talukdar, J.)