Full Judgment Text
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CASE NO.:
Appeal (civil) .3328 of 1997
PETITIONER:
Sangeeta Chowdhury
RESPONDENT:
Commissioner, Sanchaita Investments & Ors.
DATE OF JUDGMENT: 06/01/2004
BENCH:
BRIJESH KUMAR & ARUN KUMAR
JUDGMENT:
JUDGMENT
ARUN KUMAR, J.
The grievance of the appellant in the present appeal is that she
has been deprived of her valuable immovable property located at
Premises No.662/B, Tollygunge Circular Road, Block ’O’, New
Alipore, Calcutta - 700 053 without even being afforded an
opportunity of being heard. The appellant had purchased the said
property vide a registered conveyance deed dated 28.11.1969
executed in her favour by one Pritam Singh. According to the
appellant after its purchase she got building plans approved from the
Calcutta Municipal Corporation for construction of three-storeyed
building. The appellant Sangeeta Chowdhury entered into an
agreement to sell the said property with one Raja Mallo on
29.7.1980. There is no dispute between the parties about an
agreement to sell having been executed by Sangeeta Chowdhury in
favour of Raja Mallo. The dispute, however, is that according to the
appellant, the agreement was for a consideration of Rupees Five lacs
out of which Rupees one lac was received by her from Raja Mallo by
way of earnest money while according to the respondents, the
agreement was for a sum of Rs.one lac and the entire consideration
was paid by Raja Mallo to Sangeeta Chowdhury. Neither party has
produced the original agreement on record. According to Sangeeta
Chowdhury after paying Rs.one lac as earnest money in pursuance
of the said agreement Raja Mallo disappeared and did not perform
the rest of the agreement. She forfeited the earnest money and she
continues to be the owner of the property. According to the
respondent Raja Mallo paid the entire consideration of Rs.one lac in
pursuance of the agreement to Sangeeta Chowdhury and he further
entered into a construction agreement with one Biswajeet Ghosh on
27.2.1987.
There was a firm Sanchaita Investments which had accepted
large number of deposits from small depositors and had purportedly
defrauded them. Investigation into the affairs of the said firm had
been going on since long and by virtue of orders passed by this Court
a Court Commissioner had been appointed. On 27.9.1983 this Court
had passed an order authorising the Commissioner of Sanchaita
Investments to attach such assets and properties which prima facie in
his opinion were owned by the firm Sanchaita Investments or any of
its partners. The Commissioner was further authorised to put to sale
such assets and properties if no objections were received to
attachment thereof within one month of the date of attachment. The
Commissioner Sanchaita Investments attached the property of the
appellant on 3rd January, 1989 and invited objections to the
attachment. Two sets of objections were filed (1) by Biswajeet
Ghosh (filed in February, 1989) and
(2) by Tarun Kanti Chowdhury on behalf of Sangeeta Chowdhury
(filed in January, 1991).
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These objections were referred by the Commissioner to the High
Court for purposes of consideration and disposal. The High court
vide its order dated 24.4.1991 disposed of the two sets of objections.
The objections filed on behalf of present appellant Sangeeta
Chowdhury were rejected on the ground that the Vakalatnama filed in
support of the objection was found to be defective, however, liberty
was given to the counsel to file a proper vakalatnama within ten days.
Strangely the order records in this behalf that "in the event such
vakalatnama is filed the objections will be governed by the order
which we would hereinafter pass. In default the objection of Tarun
Kanti Chowdhury will be deemed to have been dismissed for absence
of proper authority of his learned Advocate-on-Record". The order
passed by the Court thereafter was that Biswajeet Ghosh, the other
objector offered to deposit a sum of Rs.4,50,000/-(Rupees Four Lacs
Fifty Thousand only) with the Commissioner, Sanchaita Investments
as a condition precedent for lifting the attachment. Therefore, the
Court observed that if the said amount was deposited the attachment
would stand vacated. The Cout specifically observed that it had not
gone into the question of title to the property in view of the offer of
Biswajeet Ghosh to deposit a sum o Rs.4,50,000/-(Rupees Four Lacs
Fifty Thousand only) and the question of title to property remained
open. With these observations both sets of objections stood
disposed of.
From the above order it follows that the objections of appellant
Sangeeta Chowdhury to attachment of her property by the
Commissioner, Sanchaita Investments were never considered and
decided on merits. If proper vakalatnama was not filed the objections
were to be treated as dismissed on the ground of being filed without
authority and if a proper vakalatnama was filed, her objections would
still stand disposed of on the basis of offer of deposit of Rs.4,50,000/-
(Rupees Four Lacs Fifty Thousand only) by Biswajeet Ghosh. The
question of title to property was left open. Sanchaita Investments got
a sum of Rs.4,50,000/-(Rupees Four Lacs Fifty Thousand only), the
sum deposited by Biswajeet Ghosh as a condition for lifting of
attachment of the property. It appears that thereafter Biswajeet
Ghosh moved an application asserting his title to the property before
the Bench of the Calcutta High Court dealing with matters relating to
Sanchaita Investments. The said application was disposed of without
notice to the appellant by an order dated 26th July,1991 passed by
the Division Bench of the High Court. The said order records that
since Tarun Kanti Chowdhury failed to prove how he was empowered
to file objection on behalf of Sangeeta Chowdhury, the objections
stood rejected. This is factually incorrect as a fresh Vakalatnama
was filed within ten days as permitted by the Court. It was also noted
that the property in question stood released from attachment.
Biswajeet Ghosh was free to assert his legal right and title to the
property. The Bench made it specifically clear that it had not
adjudicated upon the question of title to the property and that matter
was left to be decided.
Biswajeet Ghosh thereafter filed a suit for specific performance
of the agreement which he had with Raja Mallo with respect to the
suit property. In the said suit he impleaded Sangeeta Chowdhury
and Raja Mallo and did not implead Sanchaita Investment as a
defendant. In his ex-parte evidence it appears that Ghosh took a
contradictory stand saying that Sangeeta Chowdhury was only a
benamidar with respect to the suit property for Sanchaita
Investments. Further according to him the agreement between
Sangeeta chowdhury and Raja Mallo was not performed and that is
why he had impleaded both of them as parties to the suit requiring
them to execute a sale deed with respect to suit property in his
favour. The said suit was dismissed on 8th June, 1992. The Court
observed in the said order that when Sangeeta Chowdhury was said
to be a benamidar for Sanchaita Investments, Sanchaita Investments
should have been impleaded as a party and a declaration ought to
have been sought to the effect that Sangeeta Chowdhury was only a
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benamidar for Sanchaita Investments. Further if the property
according to Ghosh really belonged to Sanchaita Investments, the
sale deed, if at all, had to be executed by Sanchaita Investments and
without making it as a party to the suit such a relief could not have
been granted. The Court also observed that payment of entire
consideration money to Sangeeta Chowdhury by Raja Mallo in
pursuance of the agreement of sale between the two was never
established by the plaintiff. Further Raja Mallo being simply an
agreement-holder got no title to the property from Sangeeta
Chowdhury. This order of dismissal of suit by Biswajeet Ghosh was
never challenged by way of appeal and, therefore, had become final.
On 15th June, 1993 Biswajeet Ghosh moved an application
before the Sanchaita Bench of the Calcutta High Court making a
prayer that the Commissioner of Sanchaita investments be directed
to execute a deed of conveyance with respect to the suit property in
his favour. On 7th July, 1993, the High Court without giving any
notice to the appellant Sangeeta Chowdhury passed an order
directing the Commissioner of Sanchaita Investments to execute a
Conveyance Deed with respect to the suit property in favour of
Biswajeet Ghosh. In pursuance of the said order a Deed of
Conveyance was executed by the Commissioner in favour of
M/s. Veekayan Properties, a nominee of Biswajeet Ghosh on 22nd
July, 1993. Sangeeta Chowdhury moved an application on 10th
December, 1993 for recall of the order dated 7th July, 1993. The said
application of Sangeeta Chowdhury was dismissed by the Division
Bench of the Calcutta High Court on 20th September, 1996. The
present appeal is directed against the said order of the High Court.
We have heard learned counsel for the parties at length. The
entire thrust of the arguments on behalf of appellant is that she has
been condemned unheard. Her objections to attachment of her
property were dismissed on technical grounds without going into
merits. With the dismissal of the objections the property has been
assumed to be belonging to Sanchaita Investments. Although the
matter has been before the High Court on several occasions, the
question of title to the property was never gone into inspite the High
Court observing on various occasions that the question of title of the
property will be considered independently. The learned counsel
appearing for the respondents have tried to meet this argument by
stating that the objections filed on behalf of appellant Sangeeta
Chowdhury stood decided on merits by virtue of the various orders
passed by the Special Bench of the Calcutta High Court. In support
of this argument, we have been taken through various orders.
Unfortunately, we are unable to find from these orders that the
objections filed on behalf of Sangeeta Chowdhury were ever
considered on merits by the High Court at any stage. The very first
order dated 24th April, 1991, by which appellant’s objections to
attachment of her property were rejected shows that the objections
were not considered on merits. They were rejected on account of
non production of a proper Vakalatnama in support of the objections
by the Advocate-on-record. Time to produce a proper Vakalatnama
was granted and another Vakalatnama was filed within the time
allowed. Even then as per the said order the objections were to
stand rejected in view of acceptance by the Court the offer of
Biswajeet Ghosh to deposit Rs.4.50 lakhs against vacation of the
order of attachment with respect to the property in question. Thus in
either case, the objections filed on behalf of Sangeeta Chowdhury
stood rejected without being considered on merits. The subsequent
order of the High Court dated 26th July, 1991, again notes the fact of
rejection of objections filed on behalf of Sangeeta Chowdhury. The
rejection of the objections is reaffirmed. The same is the position
which emerges from the final order of the High Court dated 20th
September, 1996 which is subject-matter of the present appeal.
Therefore, the fact remains that the objection of the appellant against
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attachment of her valuable property were never considered on merits.
From a careful consideration of impugned judgment in the light
of facts on record, the following points emerge:
The fact that Sangeeta Chowdhury had a valid title to the
property in the first instance is not in dispute. It is admitted that she
had purchased the property vide a Registered Deed of Conveyance
dated 28th November, 1969 from one Pritam Singh. Again it is not in
dispute that she entered into an agreement to sell with respect to the
said property with one Raja Mallo. According to appellant-Sangeeta
Chowdhury the consideration under the agreement to sell was
Rupees Five Lakhs out of which she was received Rupees one lac as
earnest money from Raja Mallo whereas according to respondents
the consideration under the agreement was Rupees one lac and the
entire amount was paid by Raja Mallo to Sangeeta Chowdhury and
she gave possession of the property to Raja Mallo. Sangeeta
Chowdhury denies having handed over possession of the property to
Raja Mallo. Neither party has produced the original agreement to sell
on record. During the course of hearing before this Court, both sides
asserted that they were in possession of their version of the original
agreement. Which agreement is correct and genuine can be decided
only on the basis of evidence which may be produced by respective
parties. We have no basis to uphold or reject either of the
agreements set up by the parties. According to Sangeeta
Chowdhury, Raja Mallo failed to perform the agreement as he did not
pay the balance consideration and he is actually said to have
disappeard after the initial agreement. However, according to
respondents, Raja Mallo became owner of the property in question
on execution of the agreement of sale on payment of the
consideration of Rupees one lac under the agreement. The alleged
agreement of sell is said to be dated 29th July, 1980. Raja Mallo is
said to have entered into a construction agreement with one
Biswajeet Ghosh on 27th February, 1981 under which Ghosh had to
construct a building on the plot in question. On the basis of the
construction agreement, Ghosh started asserting his title to the
property in which attempt he finally succeeded in getting a Deed of
Conveynace executed with respect to the property in favour of his
nominee in pursuance of order dated 7th July, 1993 passed by the
High Court. The Deed of Conveyance was executed by the
Commissioner of Sanchaita Investments. Thus without deciding as to
how and in what manner the title to the property in question travelled
to Sanchaita Investments, the Deed of Conveynace was allowed to
be executed. No attempt was ever made by the High Court to
ascertain as to whether Sanchaita Investments had any title to the
property before it could be called upon to execute a Conveyance
Deed with respect to the property in favour of Biswajeet Ghosh or his
nominee.
In our considered view the impugned judgment of the High
Court is liable to be set aside for the following additional reasons :
(1) The High Court has proceeded on the basis that the
agreement to sell between Sangeeta Choudhury and Raja
Mallo was for a consideration of Rs.1 lac only and the
amount stood paid to Sangeeta Choudhury. The High Court
has failed to notice the case set up by Sangeeta Choudhury
in this behalf that the consideration under the agreement
was Rs. 5 lakhs out of which Rs.1 lac was paid as earnest
money. Neither party had produced the original agreement
on record. Therefore, the High Court had no basis to accept
that the agreement was for a total consideration of Rs.1 lac
only thereby ignoring the stand of Sangeeta Chowdhruy
altogether. Whether the agreement to sell was for total
considertion of Rs.1 lac or Rs. 5 lacs is a question which
goes to the root of the matter because admittedly Sangeeta
Chowdhury received Rs.1 lac in pursuance of the
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agreement. If the total consideration under the agreement
was Rupees one lac, she received the entire consideration.
If it was Rupees five lakhs, she only received Rupees one
lac and balance amount was never paid to her. Further the
case of Sangeeta Chowdhury is that the agreement was
abandoned and Rs.1 lac which was paid by way of earnest
money was forfeited. In our view the High Court could not
ignore the stand of Sangeeta Chowdhury. It had to consider
the stand of both parties and thereafter form a view about
the correctness of either party’s stand.
(2) Similarly, the High Court was wrong in accepting that
Sangeeta Chowdhury had delivered possession of the
property to Raja Mallo in pursuance of the agreement to sell.
The parties were at variance on the question of delivery of
possession of the property and the issue could be resolved
only after due consideration of the material on record in this
behalf, which was not done by the High Court.
(3) The Commissioner Sanchaita Investments attached the suit
property and issued an advertisement on 3rd January, 1989
inviting objections to attachment. The order of this court
dated 27th September, 1983 which authorized the
Commissioner to attach properties which in his prima facie
opinion were in the ownership of the firm Sanchaita
Investments, does not leave the matter to mere ipsi dixit of
the Commissioner. The fact that the Commissioner had to
form a prima facie opinion before attaching the property
shows that the Commissioner had to have some basis
before he could attach a property. In the present case, the
learned counsel appearing for the respondents have not
been able to point out to us anything to show that the
Commissioner formed a prima facie opinion in this behalf.
The High Court made no effort to find out whether there was
any prima facie satisfaction on the part of the Commissioner,
Sanchaita Investments before ordering attachment of the
property in question. The question of attachment of the
property goes to the root of the matter. If the attachment
was without any basis all subsequent acts qua the property
fall through. The casual approach of the High Court in this
behalf is evidenced by the following observations contained
in the impugned judgment:
" Now in this case, we have seen that the property was
attached by the Commissioner of Sanchaita
Investments, obviously prima facie holding that it
belonged to Sanchaita Investments."
Thus on the basis of "obviously", the real question has been
side tracked.
4. The objections to attachment of the property filed by Tarun
Kanti Chowdhury on behalf of Sangeeta Chowdhury were
rejected on two grounds: first, Tarun Kanti Chowdhury had
no authority to file the objections on behalf of Sangeeta
Chowdhury; and secondly, there was no proper Power of
Attorney executed in favour of the Advocate who filed the
objections in court. The High Court in its impugned
judgment has proceeded on the basis that both these
aspects remained unsatisfied and therefore the objections
filed on behalf of Sangeeta Chowdhury were rightly
rejected without being considered on merits. However,
record shows that both the grounds for rejection of the
objections were met by Tarun Kanti Chowdhury and
therefore the grounds were not available. Tarun Kanti
Chowdhury was given opportunity to show the authority in
his favour to file the objections which he did as recorded in
the order dated 28th August, 1996 of the High Court.
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Likewise, a fresh Power to Attorney was filed on record
within the period of ten days allowed for that purpose by
the High Court. Therefore, rejection of the objections of
Sangeeta Chowdhury to attachment of property on these
two grounds was uncalled for and contrary to record. The
High Court in its impugned order has proceeded on a
totally incorrect basis that Tarun Kanti Chowdhury failed
to meet these two grounds and therefore the objections
were rightly rejected.
The High Court had been observing in its various
orders that the question of title to the property was to be
independently gone into but the same was side tracked in
the above manner.
5. The impugned order shows that the Special Bench of the
High Court was looking after the affairs of Sanchaita
Investments and was really concerned with securing
money in order to meet the demands of the depositors.
Therefore, the Bench was impressed by the fact that
Biswajeet Ghosh had offered to deposit Rs.4.5 lacs with
the commission, Sanchaita Investments which really led
the Bench to give the property to Biswajeet Ghosh or his
nominee by way of a Conveynace Deed without
considering the basic question as to whether Sanchaita
Investments had title to the property before it could pass
the title to a third party. If Sanchaita Investments had no
title to the property how could Biswajeet Ghosh or his
nominee could get a good title to the property?
6. The High court failed to appreciate the weight of reasoning
contained in the order dated 8th June, 1992 passed by the
learned Assistant District Judge while dismissing the title
suit filed by Biswajeet Ghosh to claim title to the property.
Biswajeet Ghosh had filed a suit in January, 1992 seeking
specific performance of the agreement in his favour in
which he impleaded Sangeeta Chowdhury and Raja Mallo
as defendants. The suit was dismissed and the order of
dismissal became final because it was not carried further
by way of appeal. One of the reasons for dismissal of the
suit by the High Court is the contradictory stand of
Biswajeet Ghosh with respect to facts leading to his claim
to title to the property. In his ex parte evidence in the said
suit he had stated that Sanchaita Investments was the real
owner of the property and Sangeeta Chowdhury was a
mere benamidar. Another instance of contradictory stand
of Biswajeet Ghosh in this connection emerges from the
objections filed by him against attachment of property by
the Commissioner, Sanchaita Investments. There he
stated that Sanchaita Investments had nothing to do with
the property and the property could not be attached by the
Commissioner.
The above aspects show that the High Court in its impugned
judgment has proceeded on wrong assumptions and most
important question regarding title to the property was never gone
into. Assuming Raja Mallo was an agent of Sanchaita Investments
had entered into the agreement to sell with Sangeeta Chowdhury
on behalf of the said firm, the title to property could not pass to
Sanchaita Investments merely on basis of an agreement to sell.
Title to immovable property of such value can pass only on the
basis of a registered Deed of Conveyance. What right Sanchaita
Investments had to further sell the property? These questions
needed to be considered before Deed of Conveyance could be
ordered to be executed. The objections to attachment of property
filed on behalf of Sangeeta Chowdhury were rejected on technical
grounds and were never considered on merits. Keeping all these
aspects in view, we are of the opinion that the impugned judgment
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of the High Court dated 20th September, 1996 cannot be
sustained. We accordingly set aside the same and remand the
matter back to the High Court for consideration of the objections
filed on behalf of Sangeeta Chowdhury on merits. Any
observation contained in this judgment shall not influence the High
Court in arriving at its own independent conclusion.
This appeal is allowed leaving the parties to bear their
respective costs.