Maya Debnath vs Uttam Sarkar & Anr
2023 Latest Caselaw 320 Cal

S/L 7
11.01.2023

Court No.652 SD CO 2086 of 2021

Maya Debnath Vs.

Uttam Sarkar & Anr.

Mr. Asis Chandra Bagchi Mr. Soumyadeep Biswas ... for the Petitioner.

Mr. Kartick Kr. Bhattacharyya Mr. Subhas Chandra Datta Ms. Soumashree Dutta ... for the Opposite Parties.

Being aggrieved and dissatisfied with the Order no.10

dated 23.02.2021 passed by the learned Civil Judge (Junior

Division), Tehatta, Nadia in Pre-emption Case No.7 of 2019,

present revisional application has been preferred.

By the impugned order, the learned court below

allowed the petitioners/opposite parties to deposit the

consideration amount along with compensation amount in a

pre-emption case filed by the opposite party/preemptor at a

subsequent stage of proceeding.

The petitioner submits that the petitioners/opposite

parties filed the aforesaid Pre-emption Case No.7 of 2019

and along with the said petition, disputed the actual

consideration money passed during transfer and accordingly

filed a petition for exempting the petitioner for filing

consideration money mentioned in their deed, till

assessment of actual valuation by the court.

The opposite parties/petitioners herein appeared in

the said case and filed written objection to the statements so

contained by the petitioner and denied all material

allegations. Learned court below upon consideration of

preemptors' aforesaid petition along with the objection filed

by the opposite parties/petitioners herein passed the

impugned order on February 23, 2021 by allowing the

opposite party herein/petitioners to deposit the

consideration amount along with compensation amount in

connection with such prayer for preemption.

Learned counsel appearing on behalf of the petitioner

submits that the court below failed to appreciate that the

petitioners/opposite parties herein are duty bound to deposit

the entire consideration price mentioned in the deed along

with 10% compensation amount at the time of filing of the

application, failing which prayer for pre-emption is liable to

be rejcted.

He further submits that in view of the latest judgment

passed by the Supreme Court in Barasat Eye Hospital &

Ors. vs. Kaustabh Mondal reported in (2019) 9 SCC 767 and

also another judgment of Abdul Matin Mallick vs. Subrata

Bhattacharjee reported in (2022) 7 SCC 147 it is now well

settled that the pre-requisite to even endeavour to exercise

the weak right of pre-emption is the deposit of the amount of

sale consideration and the 10% levy on that consideration, as

otherwise, section 8(1) of the said Act will not be triggered

off.

He further submits that there cannot be any extension

of time granted to the petitioners/opposite parties to

exercise the right under Section 8 of the West Bengal Land

Reforms Act and the learned court below has erred in

rejecting the petition while allowing the opposite parties to

deposit the amount even after expiry of the period as per

provisions of law.

Learned counsel appearing on behalf of the opposite

parties submits that the law laid down by the Apex Court in

Barasat Eye Hospital & Ors. (supra) and subsequent

judgment do not have any application in the present context.

The said judgment of Barasat Eye Hospital & Ors. (supra)

and all subsequent judgments came after filing of the present

case. Moreover, learned Trial Court was justified in

observing that during the Covid-19 period the normal

functioning of the Court was suspended and the Apex Court

by its judgment in reference to the extension of time was

pleased to observe that the period from 15.3.2020 till

28.02.2022 shall stand excluded for the purposes of

limitation as may be prescribed under any general or special

laws in respect of all judicial or quasi-judicial proceedings.

He further submits that when the prayer of the

petitioners/opposite parties for exempting him to deposit

the consideration amount was rejected by the court, in view

of law laid down by Apex Court in the said judgment, he at

once deposited the entire consideration money along with

compensation amount on 02.3.2021 which is reflected in the

order of the trail court.

I have carefully considered the submissions made by

both the parties.

On perusal of the order sheet, it appears that on

29.7.2019 the preemptor/opposite parties herein filed

preemption case along with a petition supported by affidavit

praying for assessing actual value of the suit property and by

another petition supported by affidavit prayed for passing

order exempting the petitioners from depositing the

consideration money, till the assessment of the actual

valuation of the suit property, by the learned court below.

It further appears from the order no.2 dated

04.9.2019 that relying upon judgment of this court reported

in 2016 (3) ICC 270 and the valuation certificate submitted

by the preemptor from government office, wherefrom it

appeared that the consideration money in government

record is less than the consideration money mentioned in the

deed, the court below by the said order dated 04.9.2019, was

pleased to observe that the said pre-emption proceeding will

continue till the consideration money is fixed by the court

below and kept the said two petitioners pending. The

judgment of Barasat Eye Hospital & Ors. (supra) was

passed on 17.10.2019. Subsequently, when Barasat Eye

Hospital & others (supra) judgment and subsequent

judgments were passed, the said two applications filed by the

petitioner/pre-emptor were taken up for consideration by

the court below and before the court below at the time of

hearing the judgment of Barasat Eye Hospital & Ors.

(supra) was also referred. Learned court below after

considering the deliberation made by both the parties was

pleased to observe as follows:-

"6. Thus from the above it is crystal clear that the petitioner has to deposit the consideration money and compensation therein in regard to the deed value in order to proceed with the case and it is also clear that there is no scope of assessment of actual valuation of suit property at the stage unless it is found out after trial that the suit valuation is less and that the petitioner has deposited excess amount.

7. Considering the above deliberation and the observation made in Barasat Eye Hospital Thr. Its Rep. Verses Kaustabh Mondal on 17th October, 2019 by the Hon'ble Supreme Court of India, both the petitions of the petitioner for exemption to deposit the consideration money alongwith compensation of the case property value and for assessing the actual valuation of the suit property is hereby considered and rejected.

8. It is also evident from the above ruling that the proceeding will not lie at all if the consideration amount is not deposited within one year of cause of action and in this instant proceeding the cause of action arose from 02.7.2019 whereby the limitation period was over on 02.7.2020.

9. Having said that, this court is also not oblivious to the facts that almost the entire year of 2020 or at least the majority of that year was clouded by lock down and restrictions due to the menace of Covid-19 and computing those periods to be within the period of limitation will be harsh and unjustified upon the petitioner and will not subserve the ends of justice.

10. Considering the above this court is of the opinion that an opportunity is to be given to the petitioner to contest this instant case. thus, the petitioner is directed to deposit the consideration amount alongwith compensation amount at once and in default the instant proceeding will be dismissed.

To 03-03-2021 for depositing consideration money"

The opposite parties/preemptors in compliance with

the aforesaid order on 02.3.2021 i.e. one day before the

schedule date fixed by court deposited said amount before

the court below.

In view of the aforesaid facts and circumstances, it

appears to me that the court below was quite justified in

allowing the petitioner to deposit the consideration amount

along with the compensation amount by 03.3.2021 after

rejecting the petitioners' prayer and the petitioners at once

complied the court's order in view of the latest changed

position of law prevailing in the country.

Though ignorance of law is of no excuse either on the

part of court or on the part of litigant but considering the

peculiarities of the case and that court below, initially

allowed the proceeding to be continued till consideration

money is fixed by the court in terms of law prevailing at that

point of time and that afterwards a considerable period of

time court could not function properly and that pre-emptor

immediate after court's direction to deposit the amount in

term of latest position of law, has duly complied order in it's

letter and spirit, it appears to me that though the law is now

well-settled in view of the Barasat Eye Hospital & Ors.

(supra) which was passed on 17.10.2019 on this point but

since this case was filed prior to the aforesaid case and since

the trial court at the time of filing of the application relying

upon other judgment was pleased to order that the

proceeding will continue till consideration money fixed by

this court, the petitioner/pre-emptors must not be made

sufferer or victim of the circumstances, which appears to be

not intentional nor has been caused to make delay in

disposal. In view of above I find that the law laid down in the

Barasat Eye Hospital & Ors. (supra) and subsequent

judgments do not squarely applicable in the present context.

As such, I do not find subsatance in the present revisional

application.

Accordingly, CO 2086 of 2021 is dismissed.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)