Judgment:
ORDER
SHEET GA NO.2697 OF2016With CS NO.130 OF2008EOS NO.8 OF2015IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE RAJIB SAHA Versus MANJUR ALAM MALLICK AND ANR.
BEFORE: The Hon’ble JUSTICE RANJIT KUMAR BAG Date : 23rd December , 2016.
Mr.Sakya Sen, Mrs.Krishna Mullick, Mr.Sunil Dutta, Advocates for plaintiff Mr.Swarnendu Ghosh, Mr.Surya Maity, Advocates for defendants The Court : The plaintiff-petitioner has taken out an application praying for direction to the defendants to deposit the original deed of gift of the property situated at Uluberia in the District of Howrah with the learned Registrar, Original Side on the ground that the said deed of gift was taken back by the defendants from the custody of the learned Registrar, Original Side without any order of the Court.
Mr.Sen, learned counsel for the plaintiff-petitioner contends that the defendant no.2 deposited two original deeds of gift dated March 27, 2009 with the learned Registrar, Original Side, as per direction of the Hon’ble Division Bench in appeal, for furnishing security to the tune of Rs.40 lakh in order to contest the suit.
He further contends that the defendant no.2, being not a party to the suit, was permitted to be impleaded as the defendant in the said suit, so that the said defendant no.2 being the wife of the defendant no.1 can furnish the security to enable the defendant no.1 to contest the suit, in case the defendant no.1 is unable to furnish security for the entire amount of Rs.40 lakh.
Mr.Sen further submits that the defendants had taken away the original deeds of gift from the custody of learned Registrar, Original Side after furnishing a bond without any order from the Court, and, as such, those original deeds of gift are to be returned to the custody of the learned Registrar, Original Side.
By referring to the judgment dated August 14, 2009 passed in APD No.78 of 2009 and a judgment dated March 24, 2010 passed in APOT No.26 of 2010, Mr.Ghosh, learned counsel for the defendants contends that the Hon’ble Division Bench has never given any direction to the defendants to deposit the original deeds of gift with learned Registrar, Original Side as security of Rs.40 lakh for contesting the suit.
According to the learned Counsel for the defendants, filing of the bond or undertaking on behalf of the defendants is enough security in compliance with the direction given by the Appellate Court for contesting the suit.
Having heard the learned counsel representing both parties and on consideration of the order passed by the Appellate Court on August 14, 2009 in APD78of 2009, I find that the defendant no.1 was directed to furnish security in whatsoever form and manner to the tune of Rs.40 lakh before learned Registrar, Original Side and to file security bond before learned Registrar, Original Side within a period of thirty days from the date of judgment for contesting the suit.
It further appears from the said judgment that the defendant no.2, being the wife of the defendant no.1, was also permitted to furnish security in respect of her immovable property if the properties offered by the defendant no.1 falls short of Rs.40 lakh.
The contention made on behalf of the defendants that the original deed of gift need not be deposited with learned Registrar, Original Side in the absence of any specific direction in this regard by the Appellate Court has no merit, because furnishing of security of Rs.40 lakh implies that the defendants must produce original deed of title of the property valued at Rs.40 lakh along with a bond supported by affidavit to the extent that the defendants will not sell or transfer or mortgage or create any encumbrance on the said property till the disposal of the suit.
Since the defendants already produced the original deeds of gift before learned Registrar, Original Side along with the bond at the initial stage of furnishing security for Rs.40 lakh and since the defendants have taken back the original deeds of gift from the custody of learned Registrar, Original Side without any order form the Court or without having any order even from learned Registrar, Original Side in this regard, I am constrained to hold that taking back the original deeds of gift from the custody of learned Registrar, Original Side is not at all justified under the law.
It is the bounden duty of the defendants to return the original deeds of gift to learned Registrar, Original Side as part of furnishing security of Rs.40 lakh along with the bond already furnished by the defendants within a period of one week after the reopening of the Court on expiry of Christmas Vacation.
Mr.Ghosh, learned counsel representing the defendants, fairly submits before the Court that learned Registrar, Original Side did not pass any order authorising the defendants to take back the original deeds of gift from his custody, though learned advocate-on-record for the defendants filed an application before the learned Registrar, Original Side on April 9, 2010 praying for return of the original deeds from the custody of learned Registrar.
I am unable to comprehend how the defendants could take back the original deeds of gift from the custody of learned Registrar without having any order in this regard on the basis of the application filed by the advocate-on-record for the defendants on April 9, 2010.
In the absence of sufficient materials on record, I am unable to form the opinion whether motive can be attributed to the conduct of the concerned officer for handing over the original deeds of gift to the defendants without passing any order in this regard either by learned Registrar or by the Court.
Let a copy of this order be placed before the learned Registrar General with request to initiate one fact finding enquiry to ascertain the responsibility of the officer who handed over the original deeds of gift to the defendants without any order either from the learned Registrar, Original Side or from the Court, and if any responsibility is fixed on any officer for handing over the original deeds of gift to the defendants without any authority of law, the matter may be placed before the Hon’ble Chief Justice for necessary direction to draw up a departmental enquiry against the said officer by framing charge against the said officer.
It is pertinent to point out that the undertaking given by Mr.Ghosh on behalf of the defendants on August 10, 2016 before the Hon’ble Justice I.P.Mukerji will continue till the disposal of the suit.
Accordingly, the defendants are directed to return the original deed of gift to learned Registrar, Original Side within a period of one week after the expiry of Chirstmas Vacation.
G.A.No.2697 of 2016 is accordingly disposed of.
Prayer for stay on behalf of the defendants is refused.
List the matter under the heading “For further order” on January 11, 2017.
(R.K.BAG, J.) sb/