Calcutta High Court

M/S. Rana Chairs vs Director General (Town Planning) on 5 February, 2024

          IN THE HIGH COURT AT CALCUTTA
    ORDINARY ORIGINAL CIVIL JURISDICTION
                      ORIGINAL SIDE

                  EC/5/2017
               IA NO: GA/4/2023
               M/S. RANA CHAIRS
                       VS
  DIRECTOR GENERAL (TOWN PLANNING), K.M.C. AND
                      ORS

                              &

                  EC/55/2017
              M/S. RANA CHAIRS
                      VS
DIRECTOR GENERAL (TOWN PLANNING) K.M.C.AND ORS




Before:     The Hon'ble Justice Apurba Sinha Ray



For Decree-Holder       : Mr. Rupak Ghosh, Adv.
                          Mr. Chanchal Kumar Dutt, Adv.
                          Ms. Krishna Mullick, Adv.


For judgment-debtor     : Mr. Dhruba Ghosh, Sr. Adv.
                          Mr. Arijit Dey, Adv.
                          Mr. Altamas Alim, Adv.


For Orders on           : 05.02.2024
                                    2




Apurba Sinha Ray, J. :-



1.    The matter relates to execution of a transferred decree from

Hon'ble High Court at Delhi.




2.    The instant application has been filed from the side of the KMC

under Section 47 Code of Civil Procedure, 1908 contending that the

decree passed was in fact a nullity since the KMC was not made a

party to the proceeding. It is further contended that as per Section 587

of the Kolkata Municipal Corporation Act, 1980 (the Act, 1980 in short

hereinafter) no suit is maintainable against any municipal authority or

any officer or employee of the Corporation in respect of anything done

lawfully and in good faith with due care and attention under the Act,

1980 or the rules and regulation made thereunder.




3.    The learned counsel appearing for the KMC Mr. Dhruba Ghosh

has also contended that Section 586 of the Act, 1980 provides that no

suit shall be instituted in any court against any municipal authority or

qany officer or employee of the corporation without serving necessary

notice in writing to the concerned office of the KMC.
                                       3




4.    It appears that though the decree-holder instituted the relevant

suit against three of its officers, neither the KMC was made a party to

the proceeding nor any notice was served upon the KMC under Section

586 of the Act, 1980. As, the decree has been passed without

impleading the necessary party like KMC and without serving notice to

the office of the corporation, the decree was passed without

jurisdiction and therefore it is a nullity.




5.    The learned counsel on behalf of the decree-holder Mr. Rupak

Ghosh has submitted that the decree was appealed against and such

appeal was filed by the KMC before the Hon'ble Division Bench in High

Court, Delhi and all these points were taken up during the hearing of

the appeal but such pleas of the KMC were rejected on the ground that

it would not cause any prejudice to the KMC and such technicalities

on the point of law were not accepted by the Division Bench. The

matter was again taken to the Hon'ble Supreme Court and the Hon'ble

Supreme Court dismissed the special leave application. The learned

counsel has further submitted that the KMC has already paid the

decreetal amount and this execution proceeding is pending for interest

accrued upon the decreetal amount and most interestingly 25 lakhs

against such outstanding dues have been paid by the KMC. The

instant proceeding under Section 47 CPC has been brought to
                                      4




frustrate the decree passed against the KMC and also to drag the

proceeding as long as the KMC can. Learned counsel has further

contended that the plea of constructive res judicata squarely

applicable in this case.


6.    In reply the learned counsel appearing for the judgment-debtor

has submitted that the definition of decree as found in Section 2(2) of

Code of Civil Procedure shows that it means the formal expression of

an adjudication which conclusively determines the rights of the parties

with regard to or any of the matters in controversy in the suit.

According to him as the KMC was not made a party it could not agitate

the relevant issues before the Court at Delhi. Interestingly, the KMC

was made parties in the instant execution proceeding in the year 2022.

As the requirements of Section 586 and 587 of KMC Act were not

complied with, the decree passed by the Court at Delhi and confirmed

by the Division Bench of the High Court at Delhi is in fact a nullity and

as such the instant execution proceeding cannot be proceeded with.




7.    The learned counsel for the judgment-debtor/petitioner has

submitted an unreported decision of the Hon'ble Supreme Court

passed in Civil Appeal No. 9695 of 2013 in support of his contention

that the plea of constructive res judicata is not applicable in this case.
                                    5




Decisions with Reasons




8.    It is settled law that executing court cannot go beyond the

decree passed except when there is a jurisdictional error or when the

decree is a nullity. In this case resistance to the execution of the

impugned decree was made from the KMC on the grounds that as the

KMC being the appropriate authority, no suit can be instituted against

its officers without making the KMC a party to such suit or proceeding

and further that no notice as per requirements of Section 586 of the

KMC Act, 1980 (Act 1980 in short) was ever served upon the office of

the KMC and therefore the decree is a nullity.




9.    Section 586 and 587 of the Act, 1980 may be quoted as

hereunder:-


                          586. Notice, limitation and tender of amends
                          in suits against the Corporation, etc.

                          (1) No suit shall be instituted in any court
                          having jurisdiction against any municipal
                          authority or any officer or employee of the
                          Corporation or any person acting under the
                          direction of any municipal authority or any
                          officer or employee of the Corporation in
                          respect of any act done, or purporting to be
                          done under this Act or the rules or the
                          regulations made thereunder, until the
                          expiration of one month next after a notice in
          6




writing has been delivered or left at the office
of such authority or at the office or the
residence of such office or employee or
person, stating-

(a) the cause of action,

(b) the name and residence of the intending
plaintiff, and

(c) the relief which such plaintiff claims.

(2) Every such suit shall be commenced
within four months next after accrual of the
cause of action, and the plaint therein shall
contain a statement that a notice has been
delivered or left as required by sub-section
(1).

(3) If the municipal authority, at the office of
which, or the officer or the employee of the
Corporation or the person acting under the
direction of any municipal authority or any
officer or employee of the Corporation, at the
office or the residence of whom, a notice has
been delivered or left under sub- section (1),
satisfies the court having jurisdiction that the
relief claimed was tendered to the plaintiff
before the institution of the suit, the suit shall
be dismissed.

(4) Nothing in the foregoing sub-sections shall
apply to any suit instituted under section 38
of the Specific Relief Act, 1963 (47 of 1963).

587.     Indemnity.   No    suits  shall    be
maintainable     against     any    municipal
authority or any officer or employee of the
Corporation or any person acting under the
direction of any municipal authority or any
officer or employee of the Corporation or of a
Magistrate in respect of anything done
lawfully and in good faith and with due care
                                       7




                             and attention under this Act or the rules or
                             the regulations made thereunder."



10.     It appears that in a Civil Suit (original suit) being Suit No. 1090

of 2013 the Hon'ble High Court at Delhi decreed the suit exparte in

terms of the prayers (a) and (b) of the plaint and was further pleased to

impose a litigation cost of Rs.1 lakh against the defendants therein.

Subsequently, an application under Order 9 Rule 13 CPC was filed

before the Hon'ble High Court at Delhi and by decision dated 5th

October, 2018 the learned Single judge of the Hon'ble High Court at

Delhi    was   dismissed    such   application.   The   said   decree   was

sent/transferred to this court for execution. However, the record

further shows that an appeal was preferred before the Hon'ble Division

Bench by the KMC and by order dated 14.03.2019 the exparte decree

was set aside as per settlement reached between the parties on the

following terms:-


                             "The parties have agreed as under:

                             (i) The impugned order dated 17.09.2015 is
                             set aside.

                             (ii) The plaint shall be returned to enable the
                             respondent/plaintiff to file the same in the
                             appropriate court of jurisdiction.

                             (iii) The Bank account which has been
                             attached in the sum of Rs.52,15,317/- will
                             be converted into a Fixed Deposit Receipt
                             (FDR) in the name of the respondent No. 1
                                   8




                         and deposited with the Registrar General of
                         the Calcutta High Court. The FDR will be
                         made within four weeks.

                         (iv) In case the plaintiff/respondent No. 1
                         succeeds, the amount accrued together with
                         interest shall be released in favour of the
                         respondent No. 1 together with whatever
                         claim he may have further as per the decree,
                         if so passed.

                         7. Counsel for the parties submit that they
                         would not take unnecessary adjournments or
                         delay the matter to enable the appropriate
                         court to decide the matter expeditiously.

                         8. With the above agreed terms, the appeal is
                         disposed of."


11.   But as the KMC did not comply with the terms and conditions of

the consent order, recalling application was filed before the Hon'ble

Division Bench and accordingly, the said order dated 14.03.2019 was

recalled by an order dated August 22, 2019. However in the relevant

appeal before the Hon'ble Division Bench in the High Court at Delhi,

the KMC has taken the plea that the KMC was not made party and

notice as per requirement under Section 586 of the Act, 1980 was not

served upon and therefore the decree passed was a nullity. The

Hon'ble Division Bench has been pleased to observe in paras 27, 28,

29, 30 and 32 of the relevant judgment as hereunder:-


                         "27. Section 586 of the Kolkata Municipal
                         Corporation Act, 1980 reads as under:-
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586. Notice, limitation and tender of amends
in suits against the Corporation, etc.- (1) No
suit shall be instituted in any court having
jurisdiction against any municipal authority
or any officer or employee of the Corporation
or any person acting under the direction of
any municipal authority or any officer or
employee of the Corporation in respect of any
act done, or purporting to be done under this
Act or the rules or the regulations made
thereunder, until the expiration of one month
next after a notice in writing has been
delivered or left at the office of such authority
or at the office or the residence of such office
or employee or person, stating-

(a) the cause of action,

(b) the name and residence of the intending
plaintiff, and

(c) the relief which such plaintiff claims.

(2) Every such suit shall be commenced
within four months next after accrual of the
cause of action, and the plaint therein shall
contain a statement that a notice has been
delivered or left as required by sub-section
(1).

(3) If the municipal authority, at the office of
which, or the officer or the employee of the
Corporation or the person acting under the
direction of any municipal authority or any
officer or employee of the Corporation, at the
office or the residence of whom, a notice has
been delivered or left under sub-section (1),
satisfies the court having jurisdiction that the
relief claimed was tendered to the plaintiff
before the institution of the suit, the suit shall
be dismissed.
          10




4) Nothing in the foregoing sub-section shall
apply to any suit instituted under section 38
of the Specific Relief Act, 1963 (47 of 1963)

28. It is apparent from bare reading of
section 586 that no suit shall be instituted in
any court until expiration of one month next
after a notice in writing has been delivered or
left at the office of such authority or at the
office or the residence of such officer or
employee or person. The respondent no. 1 in
plaint and PW1 in affidavit Ex. PW1/1
mentioned that the respondent no. 1 sent a
legal notice dated 05.09.2012 Ex. PW1/W to
the officers of the appellant no. 1 who were
arrayed as defendants in original suit which
was not replied on behalf of the appellants.
The suit was filed in year of 2013. The
issuance and service of legal notice dated
05.09.2012 Ex.PW1/W is not disputed on
behalf of the appellants. There may be
irregularity in notice Ex. PW1/W but it is
established that the respondent no. 1 has
complied with requirement of section 586 of
the Act. The suit was not bad for want of
notice under section 586 of the Act.

29. The learned Senior Counsel for the
appellants argued that the appellant no. 1
was not impleaded as necessary party as
per section 4(2) of the Kolkata Municipal
Corporation Act, 1980. Section 4(2) of the Act
reads as under:-

4. The Corporation.- (1) x x x x x x

(2) The Corporation shall be a body corporate
with perpetual succession and a common
seal, and may by its name sue and be sued.

(3) x x x x x x x

30. It is correct that the respondent no. 1 in
plaint did not implead the appellant no. 1 as
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one of the necessary parties as per section
4(2) of the Act. The respondent no. 1 initially
impleaded the respondent no. 2/defendant
no. 1/Director General (Town Planning)/, the
defendant no. 2/N. B. Basu, the defendant
no. 3/P.K.Dass and the defendant no.
4/Sankar Gosh who were officers of the
appellant no. 1 as necessary parties. The
respondent no. 1 vide statement dated
28.04.2014 made before the Joint Registrar
preferred to delete the defendants no. 3 and
4 from array of the parties. The respondent
no. 1 was required to sue the appellant no. 1
in its own name as per section 4(2) of the Act
but the respondent no. 1 impleaded those
officers of the appellant no. 1 who were
directly responsible, for management of
affairs of the respondent no. 1. The non-
impleading of the appellant no. 1 as
necessary party may be an irregularity but it
is not an illegality fatal to the case of the
respondent no. 1 as no prejudice caused to
the appellant no. 1.

..................

32. The learned Single Judge in judgment and decree dated 17.09.2015 held that there is nothing on record which could suggest that the prayers sought in the plaint could not be granted as the receipt of chairs was not rebutted and request for installation of the chairs at Sarat Sadan, Behala was acknowledgement of the acceptable and good quality of the chairs; the letter dated 17.04.2013 was an afterthought and an endeavour to escape the acknowledged liability to pay the sale consideration. We are of the opinion that the learned Single Judge has considered all relevant issues before passing the judgment and decree dated 17.09.2015 which does not call for any interference."

12. It further appears that the KMC has moved before the Hon'ble

Supreme Court by a special leave application but the Hon'ble Supreme

Court dismissed the said special leave application.

13. As the KMC's pleas for not impleading it as a necessary party

does not find favour in the Hon'ble Division Bench, this Court being an

executing court cannot act as an appellate forum over the Division

Bench of the Hon'ble High Court at Delhi. The KMC was not able to set

aside such observation of the Division Bench in the special leave

application filed by it and therefore such plea being adjudicated,

cannot be taken up in this execution proceeding once again.

14. In the case of Alka Gupta Vs. Narender Kumar Gupta (2010)

10 SCC 141 the principles of res judicata and constructive res