Calcutta High Court
Woodland Manufacturer Ltd vs Sankar Prosad Garga & Ors on 15 May, 2025
OIPD-17
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
IA NO. GA/13/2020
In
CS/324/1987
WOODLAND MANUFACTURER LTD.
VS
SANKAR PROSAD GARGA & ORS.
Before:
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 15th May 2025
Appearanc
Mr. Rudradeb
Chowdhury,Adv.
Mr. Tapan Si, Adv.
...for the petitioner.
Mr. Sarosij Dasgupta, Adv.
Mr. Javed K. Sanwarwala, Adv.
...for the defendant no.2
Mr. Soumya Kanti Chatterjee, Adv.
...for M/s. MBC Constructions
Mr. Shiv Mangal Singh, Adv.
...for Indian Bank
The Court: This is an application for appointment of Partition Commissioner
filed by the plaintiff to get the suit premises fully described in Schedule 'A' to the
application and delineated in the map or plan annexed and marked with the letter 'B'
partitioned by metes and bounds in terms of preliminary decree dated 12th
September 2014 as modified by the judgment dated 14th February 2020 passed by
the Hon'ble Appeal Court.
The facts of the case in brief is that the plaintiff filed suit against Sakti Prasad
Garga and Sankar Prasad Garga in respect of sale of the said defendant's undivided
one-fourth share in lot no - 2 of the suit premises and for partition of the said lot
being suit No - 501 of 1976. Similarly plaintiff also filed suit No - 324 of 1987 against
Sakti Prasad Garga, Sankar Prasad Garga and Kalyani Garga as defendants and
Bhupal Prosad Garga and Hara Prasad Garga as proforma defendants for partition of
lot 1 and 3 of the suit Premises. The plaintiff also filed suit No-43 of 1989 against
Sakti Prasad Garga, Sankar Prasad Garga and Kalyani Garga for specific
performance of the said agreement recorded in the letter dated 11th June 1973 in
respect of sale of undivided one-fourth share of Sakti Prasad Garga and Sankar
Prasad Garga and undivided one-fourth share of Kalyani Garga in lot nos 1 and 3 of
the suit premises.
On the other hand suit No-228 of 1984 and suit No. 684 of 1986 were filed by
Sakti Prasad Garga and Sankar Prasad Garga against the plaintiff for cancellation of
conveyances dated 25th July 1978 and 26th July 1978 and 25th April 1981
respectively.
The aforesaid five several suits and the aforesaid application for pre-emption
were disposed of by a combined judgment dated September 12, 2014, passed by His
Lordship the Hon'ble Justice Debangsu Basak whereby His Lordship was pleased to
dismiss Suit No-501 of 1976 Suit No. 228 of 1984, suit No-684 of 1986, and suit No-
43 of 1989 and allow the application filed by Sankar Prasad Garga under Section 4 of
the Partition Act 1893 by directing as follows:
"... Since I have allowed the application of Shakti and Shankar under Section 4
of the partition Act, 1893, I need to issue consequential directions to give effect to it.
The plaintiff in suit being C.S. No. 324 of 1987 will transfer and convey all its
right, title and interest over in respect of the suit property to Shankar at and for a
consideration to be determined as directed herein. Shankar will apply to the
Registrar of Assurance, Kolkata for the market value of suit premises as on the date
of making of the application under Section 4 of the Partition Act, 1893. Such
application will be made before the Registrar of Assurance within seven days hereof.
Within a fortnight from date of receipt of communication of the market value of the
suit property on the date of an application under Section 4 of the Partition Act, 1893,
from the Registrar of Assurance, Kolkata. Shankar through his Advocate on Record
will communicate such decision of the Registrar of Assurance Kolkata to the
Advocate for the plaintiff in C.S. No. 324 of 1987.
Such computation of the market price of the Registrar of Assurance, Kolkata
will be treated as the consideration for purchase of right, title and interest of the
plaintiff of C.S. No. 324 of 1987 by Shankar in respect of the suit property.
Simultaneously with the communication of the decision of Registrar of Assurance,
Kolkata through his Advocate on Record, will forward the conveyance required to be
executed by Woodland for transfer of its rights, title and interest in respect of the
property to Shankar.
Within seven days from the date of receipt of such communication, Woodland
will execute the conveyance and present the same before the Registering Authority for
registration. Shankar will make over the consideration to Woodland by a demand
draft or instrument of like nature simultaneously with Woodland presenting the
conveyance for registration."
Five appeals from the decrees of the Learned Trial Judge was preferred being
APD Nos 234, 235, 236, 237 and 238 of 2016 by the plaintiff. The Division Bench
comprising of Hon'ble Justice I. P. Mukerjee and Hon'ble Justice Md. Nizamuddin
was pleased to dispose of the appeals by observing and directing as follows:
"I would hold that Woodland was entitled was entitled to enjoy the benefit of
this money from the date of receipt of the consideration till date. This is reasonably
assessed at 10% per annum simple interest. In those circumstances, it would be just
and proper and subserve the interest of justice if Shankar pays to Woodland the
consideration of Rs. 9, 44, 69,457/- on the valuation made by the Registrar together
with 10% simple interest thereon for the period commencing from 1st January, 2010
till the date of this preliminary decree and thereafter, further 10% simple interest per
annum from this date till payment which has to be tendered on 20th March, 2020.
Woodland will convey their right, title and interest in the said property to Shankar,
on 20th March, 2020. On default by Woodland, the Registrar, High Court, Original
Side shall execute the conveyance by 30th April, 2020. On the default of Shankar this
suit would be placed before the Learned single judge for passing of a preliminary
decree of partition. I pass a preliminary decree, accordingly.
Furthermore,
A) The sale deed shall be registered on the same day as the payment of
consideration. Woodland shall not raise any dispute with regard to the draft
conveyance submitted by Shankar.
B) Shankar will continue to be in possession of the property, until further
orders.
C) If there is default on the part of Shankar in making the payment of the
consideration by 20th March, 2020 Woodland shall apply before the court
below to pass another preliminary decree for partition. No further enquiry is
to be made by the court below except with regard to the payment of
consideration within the stipulated time. If it funds that the consideration
has not been paid a preliminary decree for partition assuming the share of
the parties to be admitted, shall be passed by it.
D) If this eventuality happens the court will proceed further to pass a final
decree of partition.
E) It is made clear that under no circumstances, the time to pay the
consideration is to be extended and that the above directions are
peremptory. The impugned judgment and decree dated 12th September,
2014 is modified to the above extent, treating it as the first preliminary
decree.
F) The appeal (APD 238 of 2016) is disposed of accordingly. No order as to
costs."
The defendant defaulted in making the payment in terms of the direction
passed by the Hon'ble Appeal Court and preferred a special Leave Petition before the
Hon'ble Supreme Court which was dismissed. The defendant thereafter filed a
petition for review before the Hon'ble Apex Court but the same was also dismissed.
It is the contention of the plaintiff/petitioner that in terms of the decrees
passed by this Court in Suit No. 501, of 1976, Suit No. 228 of 1984, suit No. 684 of
1986 and Suit No, 43 of 1989, and the deemed decree passed an the application
being G.A. No. 2330 of 2009 filed in Suit No. 324 of 1987 as modified by the
judgment and decree passed by the Hon'ble Appeal Court the plaintiff owns an
undivided one-half shares in lot nos 1 and 3 of the suit premises an on undivided
three-fourth share in lot 2 thereof. The defendant No. 1 owns an undivided one-half
share in lot Nos 1 and 3 of the suit premises and an undivided one-fourth share in
lot 2 thereof.
Although Affidavit in opposition was filed to this application but it was not
argued and pressed by the defendant.
Heard Learned Advocate for the plaintiff and Learned Advocate for the
Defendant no-1. Perused the petition filed and materials on record.
Upon hearing the Learned Advocates and upon considering the Judgment of
Hon'ble Justice Debangsu Basak dated September 12, 2014 passed in C.S. 501, of
1976, C.S. No. 228 of 1984, C.S. No. 684 of 1986. C.S. 324 of 1987, and C.S. 43 of
1989 and the judgment of the Hon'ble Division Bench passed in APD 234 of 2016,
with APD 235 of 2016, APD-236 of 2016 APD-237 of 2016, and APD 238 of 2016,
this Court is of the view that the plaintiff is entitled to the reliefs as prayed for. As
proforma defendant no-2 died and his heir is already on record let his name be
deleted from cause title.
Let there be an order in terms of prayer a) b) and c) of the notice of motion
dated September 2020.
Plaintiff do get a preliminary decree declaring his ownership to an undivided
one - half share in lot nos. 1 and 3 and an undivided three-fourth share in lot 2 of
premises No-78 Rafi Ahmed Kidwai Road (formerly Nos 78 and 78/1 Rafi (Ahmed
Kidwai Road) Kolkata - 700,013, more fully described in schedule A and the
defendant no-1 do get a declaration of ownership of one-half an undivided one-fourth
share in lot-2.
Mr. Khagendra Nath Jana Advocate Mobile No. 9874238117 is appointed as
partition Commissioner to cause partition of the suit property by metes and bounds
in terms of the preliminary Decree and submit report by 2/07/2025.
Learned Partition Commissioner shall be entitled to an initial remuneration of
1500 G.M.S to be shared by the parties in accordance with their shares. Costs
incurred by the Learned Commissioner to cause partition shall also be shared by the
parties according to their shares.
Fix 02/07/2025 for report of the Commissioner.
(BISWAROOP CHOWDHURY, J.)
A.Bhar (P.A.).
