Full Judgment Text
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CASE NO.:
Appeal (civil) 4857 of 1992
PETITIONER:
SACHHIDANANDA BANERJEE (DEAD) THR. LRS.
RESPONDENT:
TILAKRAM GHOSH (DEAD)THR. LRS. & ORS
DATE OF JUDGMENT: 11/05/2005
BENCH:
CJI R.C. LAHOTI, G.P. MATHUR & P.K. BALASUBRAMANYAN
JUDGMENT:
J U D G M E N T
O R D E R
IN
I.A. NO. 6
P.K. BALASUBRAMANYAN, J.
This is an application for a modification of the Judgment of this
Court dated 12.11.1992 and for certain consequential reliefs. By that
order, this Court clarified an earlier order dated 10.10.1988. The dispute
related to a partnership running a theater. Disputes having arisen, a notice
of dissolution was given. It was followed by an arbitration. An award was
passed on 24.09.1953 which was made the rule of court. That was
challenged in appeal in the High Court of Kolkatta. The appeal was
allowed and the award was set aside. A petition for special leave to appeal
was dismissed by this Court on 23.07.1979. Taking advantage of the
award, the group of shareholders referred to as Banerjee Group took
possession of the theater. But in view of the setting aside of the award, not
interfered with by this Court, the partnership stood revived.
It appears that the Banerjee group had entered into an agreement for
sale with one Banishree Pictures. Banishree Pictures filed a suit for
specific performance of the agreement for sale. There was a consent decree
on 22.9.1977 in that suit. The group which came to be known as
Sadhukhan group was acknowledged to have purchased the rights of
Banerjee Group. Joint receivers who had been put in possession of the
theater, pending this dispute were directed to deliver possession to the
Sadhukhan Group. Another set of persons called the Ghosh Group
claiming interest in the partnership, filed a Suit No.649 of 1977 against the
Banerjee Group and the Sadhukhan Group challenging the consent decree.
In that litigation the High Court held on 11.5.1988 that the consent decree
dated 22.9.1977 was not lawful and it was void. A fresh decree for
dissolution of the partnership was passed as on 11.5.1988. The said
decision was challenged in this Court. But on 10.10.1988 the petition for
special leave to appeal was dismissed. This Court noticed the readiness of
the third Group, namely, the Ghosh Group to buy out the 83% outstanding
shares in the partnership, on payment of Rs.14,94,000/- the total value being
assessed at Rs.18,00,000/-. It also affirmed the finding that the Ghosh
Group held 17% in the partnership. By the order dated 12.11.1992 this
Court clarified that the matter will stand remitted to the learned Single
Judge of the High Court and that the scope of the proceedings would be the
adjudication of the inter se dispute between the Banerjee Group and the
Sadhukhan Group. The Ghosh Group thereafter filed IA No.3 for extension
of time for deposit of Rs.14,94,000/-. IA. No.4 was filed inter alia seeking
a direction to the learned Single Judge of the High Court to expedite the
adjudication as directed by this Court in its order dated 12.11.1992 between
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Sadhukhan Group and Banerjee Group. This Court by order dated
18.8.1993 granted an extension of time to Ghosh Group on condition that
interest also be paid on the sum of Rs.14,94,000, originally fixed, making it
in all Rs.16,00,000/- Be it noted that the value of the theater earlier
adjudged at Rs.18,00,000/- was not disturbed. This Court also directed the
Single Judge of the High Court to expedite the adjudication of the dispute
between the Sadhukhan Group and the Banerjee Group.
It is the case of the Sadhukhan Group in the present petition that the
Ghosh Group had not paid the amounts as directed and in that situation, the
order earlier made may be modified and the Sadhukhan Group may be
permitted to purchase the 17% shares of the Ghosh Group by paying 17% of
the sum of Rs.18,00,000/- originally assessed as value. It is submitted in
the petition that the dispute between the Sadhukhan and the Banerjee
Groups had been settled and 83% shares of the Surashree Cinema were
owned by Sadhukhan Group. Since the Ghosh Group remains a defaulter,
it would be just and proper to direct that group to receive the sum of
Rs.3,06,000/- being 17% of the total value of Rs.18,00,000/- and put the
Sadhukhan Group in possession of the theater by issuing appropriate
directions to the trial court and the receiver.
Counsel for the petitioner submitted that since the Ghosh Group did
not take advantage of the original order in its favour and the extension of
time granted by this Court, this was a fit case where the rights of Ghosh
Group should be directed to be conveyed to the Sadhukhan Group on
payment of 17% of the value originally fixed. In the alternative, counsel
submitted that a direction may be issued to the trial court to get the theater
sold through the receiver in an appropriate manner and direct the division of
the proceeds on the basis of the shares that have now become settled. No
one has appeared on behalf of Ghosh Group or the Banerjee Group to raise
any objection. But we find that the valuation of the theater was made quite
sometime back and at this distance of time it would not be just to permit
Sadhukhan Group to pay off the Ghosh Group 17% of the value as then
assessed. It is notorious that values have gone up. In such a situation, we
think that it will be more equitable if we direct the trial court to have a sale
conducted by public auction after due publicity, clarifying that the
respective groups of sharers would also be entitled to participate therein.
After the sale is approved by the court, it will be for the court to
expeditiously direct the disbursement of the amounts to the respective
sharers after settling the accounts of the receiver and the theater until the
same is put in possession of the purchaser.
The application is disposed of with the above directions.