Judgment:
1 ORDER
SHEET GA No.3490 of 2011 With CS No.159 of 2010 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE In the matter of: NAVIN CHANDRA OJHA Versus CALCUTTA SAFE DEPOSIT Co.LTD.& ORS.BEFORE: The Hon'ble JUSTICE I.P.MUKERJ.Date :
22. d February, 2012.
Appearance: Mr.Dhruba Ghosh, Adv.Mr.S.Basu, Adv..for the defendant no.5.
Mr.Aniruddha Mitra, Adv.Mr.Imran Tarafdar, Adv..for the defendant no.1.
Mr.Joy Saha, Adv..for the defendant No.2.
Miss Debamitra Adhikari, Adv.Mr.Mohit Gupta, Adv.Mr.Sarvopriya Mukherjee, Adv.Miss Priyanka Khana, Adv..
for the defendant no.3.
Mr.Sandip Kumar De, Adv.Mr.Anupam Das, Adv..for the K.M.C.The Court: This is an application by the fifth defendant, Shri Ram Ojha.
It is moved by Mr.Dhruba Ghosh learned Advocate.
He is supported by the second and fourth defendants, Shri Promod Rai Ojha and Smt.Maya Devi Ojha, represented by Mr.Joy Saha learned Advocate.
They are opposed by the plaintiff no.1 and the third defendant represented by Mr.Mitra, Mr.Gupta and Miss.
Adhikari.
These persons form an interim Board for the management of the defendant company, Calcutta Safe Deposit Co.LTD.The application before this Court is confined to one issue only.
There is due and owing by the company to the Kolkata Municipal Corporation a sum of Rs.1.68 crores on account of Municipal Tax.
If this or a significant part of it is not paid immediately, the Kolkata Municipal Corporation will proceed to recover the tax.
This is absolutely true considering the statements made by the Municipal Corporation in paragraph 3(f) of their affidavit in opposition.
Now, the defendant carries on the business of letting out lockers to people, by charging them locker rent and also taking a reasonable security deposit.
Further to orders of the Division Bench of this Court, more particularly the order dated 2nd September, 1993 this security deposit is kept in a term deposit with the bank by the said Board of Management.
The Board of Management has paid Rs.15 lakhs towards the above debt to the municipality, not out of the term deposit.
The applicant along with the parties supporting him submitted before this Court that this term deposit be encashed and the dues of Kolkata Municipal Corporation be paid.
The exact amount in deposit is not known.
A sum of Rs.30 lakhs was deposited long ago.
The exact sum in deposit now, upon accumulation of interest is to be ascertained.
This proposal is seriously contested by some of the parties as stated above.
They say that this sum does not constitute the fund of the company.
This is the fund of the locker hireRs.The defendant company is a mere trustee.
Furthermore, the orders of the Division Bench of our Court, do not permit such an exercise.
My views are as follows.
If the dues of the Kolkata Municipal Corporation or a significant part of it are not paid immediately they will levy distress against the property of the company.
would be sold.
There is a serious likelihood that the property I think it is the paramount duty of the interim board of management to save the company and its properties by whatever legitimate means possible.
Otherwise they would be failing in their duties.
I do not see the security deposit as a fund belonging to the locker hireRs.held as a trustee by the company.
The only obligation of the defendant company is to refund the security deposit when it is refundable.
While the money is with them, they are at liberty to use the money whenever required and return it to the locker hirers when the refund is due.
Nothing has been shown to me to suggest otherwise.
Moreover, I have been shown the security deposit made by the locker hireRs.There are numerous locker hireRs.each depositing small amounts as refundable security deposit like Rs.1500/- , Rs.2500/-, not exceeding Rs.7000/in any case.
This data is available from a notice handed up to me in Court by Mr.Gupta, showing the revised rent and security deposit to be made effective.
Furthermore, I do not find anything from the orders of the Appeal Court, which would prevent me from passing orders to save the properties of the company from being sold in distress proceedings levied by the Kolkata Municipal Corporation.
In those circumstances, I pass the following orders : [a].I direct the interim board of management of the defendant company or if all the members do not cooperate, the second, fourth and fifth defendants to encash the above term deposit ; [b].Out of the funds they will make a payment of Rs.20 lacs to the Kolkata Municipal Corporation within three weeks from date, which the latter will accept in part payment of the property tax dues of the defendant company ; [c].The interim board or the above defendants will be at liberty to avail of any tax waiver scheme or any other concession of the Kolkata Municipal Corporation ; [d].After receiving the above payment, for a period of one year the Kolkata Municipal Corporation will not take any coercive step against the defendant company without the leave of this Court.
This is to enable the interim board to pay off the balance amount of dues after availing of the waiver scheme, if any.
[e].Unconditional stay of any distress recovery proceedings for a period of three weeks to enable the interim board or the above members of the board to make payment to the Kolkata Municipal Corporation, in terms of this order.
If there is default, the Kolkata Municipal Corporation can straightaway proceed with recovery proceedings.
[f].The balance fund will be reinvested by the interim board in a term deposit with the same bank earning the highest rate of interest.
[g].The interim board will appropriate 25% of the current and future locker rent paid by each locker hirer towards the security deposit and will continue to do so unless and until the security deposit of the hirer, which is allowed to be utilised in terms of this order, is made up.
Thereafter, the locker rent may be appropriated as rent.
[h].The interim board of management or the above membeRs.as the case may be, will file a report in this Court showing compliance with this order with copies to all parties.
The report will also reflect the accounts that should be prepared by virtue of this order.
This application is, accordingly, disposed of.
Learned Counsel for the plaintiff prays for stay of operation of this order.
Such prayer is considered and granted for a week from date.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(I.
sp/pkd.P.MUKERJI, J.)