Calcutta High Court
Fehmida Zakeer & Ors vs Aftab Anwar Baker & Ors on 12 September, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 4 of 2019
IA No: GA 5 of 2020
IA No: GA 6 of 2023
In
CS 194 of 2010
Fehmida Zakeer & Ors.
Versus
Aftab Anwar Baker & Ors.
Mr. Utpal Bose, Sr. Adv.
Mr. K.A. Bhadori
Mr. B. Ghosh
Mrs. Sonali Ghosh Basu
... For the plaintiffs/petitioners.
Mr. Rupak Ghosh
Mr. Vivek Basu
Mr. Arindam Paul
... For the defendant nos. 1 & 4.
Mr. Taley Masood Siddique
Mr. Farooque Ali
Mr. Shahrukh Raja
2
Mr. A. Ali
Mr. Faizan Md. Zafar
... For the defendant no. 2.
Mr. Zafirul Islam
Mr. Tanmoy Roy
... For the defendant nos. 6, 7 & 8.
Hearing Concluded On : 16.08.2023
Judgment on : 12.09.2023
Krishna Rao, J.:
1.
The plaintiffs have filed the suit for partition, eviction, rendition of
accounts, sale of the common schedule property and allied prayers.
During the pendency of the suit, the parties have entered into a
settlement on 13th December, 2017 and by an order dated 15th
December, 2017, the settlement arrived between the parties was
accepted and a preliminary decree was passed. In terms of the order
dated 15th December, 2017 and the settlement dated 13th December
2017, on 22nd January 2019, a preliminary decree was drawn.
2. After the preliminary decree was drawn in terms of settlement, the
plaintiffs have filed an application being G.A No. 4 of 2019 (Old G.A No.
803 of 2019) praying for appointment of Commissioner for effecting
final partition in terms of the preliminary decree dated 22nd January,
2019 and drawing up a final decree.
3. By an order dated 28th November, 2019, this Court has passed the
following order:
"This is an application for final decree to be
passed in terms of this preliminary decree dated
15th December, 2017. Under the said preliminary
decree the shares of the respective parties have
been allotted. It is submitted that in the preliminary
decree the allotment as to which property of the
estate will go to which particular party has also
been specified. It is further submitted on behalf of
the plaintiffs that currently there is an arrear of
about Rs. 50 lakhs on account of municipal rates
and taxes payable towards the estate.
Mr. Utpal Bose, learned senior Advocate
appearing on behalf of the plaintiffs submits that
there has been an agreement between the parties
that 50 % of the arrear municipal rates and taxes of
the estate shall be paid by his clients and the
balance 50 % shall be paid by the defendant nos. 1
and 4 represented by Mr. Dhruba Ghosh, learned
Senior Advocate. Mr. Ghosh on instruction does not
deny that an agreement in respect of payment of the
arrear municipal rates and taxes as submitted by
Mr. Bose has been arrived at between the two
groups.
If find that the properties have been allocated
to the parties under the preliminary decree. The only
part left out is vacating the portions under the
occupation of the respective parties and shifting to
the portion allocated to them under the preliminary
decree. If the preliminary decree is enforced, since
the same has not been challenged and there being
specific allocation under the same agony of the
parties will subside and the final decree will be a
matter of course without much expenses being made
towards Commissioner's remuneration and Valuer's
fees which otherwise has to be spent in the event
the final decree has to be passed after completion of
all formalities. Since the two groups have primarily
agreed upon payment of the arrears of municipal
rates and taxes of the estate, let such exercise be
completed within a period of two months from date.
It is expected that either in the meantime or
immediately after payment of the arrears of
municipal rates and taxes the parties should shift to
their respective allocated portions under the
preliminary decree after vacating the portion now
under their occupation. It is made clear that vacating
the portion under occupation of the parties and
shifting to the allocated portion should be done
simultaneously as far as practical to avoid any
multiplicity of proceeding in future. So far as other
aspects of the preliminary decree are concerned, let
this matter appear on 5th February, 2019."
4. Subsequent to the order passed by this Court dated 28th November,
2019, several correspondences were made and exchanged between the
parties but neither the preliminary decree nor the order dated 28th
November, 2019 was complied with.
5. As none of the parties come forward for compliance of the preliminary
decree, the plaintiff has again filed an application being G.A No. 5 of
2020 for appointment of Receiver for the purpose of collecting and
receiving all the rents and incomes from the properties and for
clearance of all the dues of the joint estate in terms the settlement
arrived between the parties.
6. During pendency of the above applications, the defendant no. 2 has
also filed an application for appointment of Receiver.
7. The defendant no. 4 submitted that in terms of the settlement dated
15th December, 2017, the defendant no. 4 has paid partial arears taxes
to the concern authorities including property taxes to the Kolkata
Municipal Corporation. It is further contended that as per the
preliminary decree passed by this Court, the parties to the suit agreed
to share a sum of Rs. 4,00,000/- per month amongst themselves after
defraying the outgoing expenses and depositing Calcutta Municipal
Corporation dues. He submits that the disbursement was continued
only upto three months from 15th December, 2017 to 15th
March, 2018.
8. The defendant no. 4 further contended that as per the arrangement in
terms of settlement, the plaintiffs are entitled to get Rs. 98,500/- per
month which is 24.60% and the defendant no. 2 is entitled to get an
amount of Rs. 78,300/- per month which is 19.57% and the said
amounts are to be duly paid by the defendant no. 4 without any
default. It is further contended that there is no default in transferring
the shares of the other parties.
9. The defendant no. 4 submitted that the petitioner has not complied
with the order passed by this Court dated 28th November, 2019 and
have not made any payment of either the Municipal authorities or other
dues with respect of the suit properties though the defendant no. 4 has
complied with the order in part and paid municipal taxes with respect
of their share of the property of 71 Bentinck Street property.
10. The defendant no. 4 submitted that the following dues are outstanding
with respect of the suit properties:
a. Municipal Taxes - Rs. 4,13,09,662.70/-
b. Income Taxes - Rs. 68,07.367/-
c. Staff Gratuity - Rs. 10,08,600/-
11. The defendant no. 4 has filed statement of account for the year 2018-
2019 and submitted that the defendant has complied with the
settlement arrived between the parties and also complied with the order
passed by this Court dated 28th November, 2019. This Court has
considered the statement of account submitted by the defendant no. 4
but there is no breakup of the amount shown in the said account. This
Court finds that the said statement of account filed by the defendant
no. 4 is not an accurate account.
12. The plaintiff has filed suit for partition of the properties and during the
pendency of the suit, the parties have come to a settlement and in
terms of the settlement, this Court passed preliminary decree. All the
parties to the suit have accepted the settlement and the preliminary
decree passed by this Court. By an order dated 28th November, 2019,
this Court was of the view that parties have agreed upon payment of
arrears of municipal rates and taxes of the estate and directed the
parties to pay the same within two months and also directed that after
payment of such dues parties should shift to their respective portions
as per the preliminary decree after vacating the portion which are
under the occupation of the parties.
13. Now there is allegation and counter allegation between the parties that
the parties are not complying either with the preliminary decree or the
order passed by this Court dated 28th November, 2019.
14. Considering the above facts and circumstances of the case, this Court
finds that a Special Officer/ Commissioner is required to be appointed
to comply with the preliminary decree passed by this Court.
15. Accordingly, Mr. Jishnu Chowdhury, 67F Palm Avenue, Kolkata - 700
019, Mobile No. 9830015791, is appointed as Special Officer/
Commissioner for collecting rents and income from the properties for
clearing all the dues of the joint estate and after clearance of the dues,
to hand over possession of the respective shares of the parties for
effecting partition in terms of the preliminary decree passed by this
Court dated 22nd January, 2019.
16. The remuneration of the Special Officer/Commissioner is fixed at Rs.
4,00,000/- and the remuneration of the Special Officer/ Commissioner
shall be paid by all the parties in equal share.
17. The Special Officer/Commissioner shall complete all the procedure
within four months from the date of receipt of this order and shall
submit report before this Court on 15th January, 2024.
18. G.A No. 4 of 2019, G.A No. 5 of 2020 and G.A No. 6 of 2023 are
accordingly disposed of.
(Krishna Rao, J.)
