Full Judgment
ORDER
SHEET CA No.483 of 2013 CA No.512 of 2013 CP No.91 of 1973 IN THE HIGH COURT AT CALCUTTA Original Jurisdiction ORIGINAL SIDE IN THE MATTER OF : NATOBAR DUTTA PROPERTIES P.
LTD.(IN LIQN.) AND AMIT KUMAR DUTTA VS OFFICIAL LIQUIDATOR, HIGH COURT, CALCUTTA BEFORE: The Hon'ble JUSTICE PATHERYA Date : 21st February, 2014.
Appearance: Mr.Arindam Moitra, Adv..for petitioneRs.Mr.Mohit Gupta, Adv.Mr.S.Ghosh, Adv.with Mr.S.Ray, Adv.…for Shib Sankar Dey.
Mr.Dhruba Ghosh, Adv., Mr.Debasish Ghosh, Adv.…for Mr.Amit Kumar Dutta.
Ms.Smita Das De, Adv..for Official Liquidator.
The Court :-By this application the petitioner seeks a direction on the Official Liquidator to remove persons from the second floor of premises No.14 A, Amritalal Bose Street, Kolkata-700005.
The said reliefs have been sought on the basis of the order dated 20th February, 2013.
The said property at 14 A and 14 B, Amritalal Bose Street, Kolkata700005 belonged to the company (in liquidation) and the Official Liquiator was directed to take possession of the said properties on 4th January, 2013 when the persons who are the occupants and also members of the Dutta family were present in Court pursuant to the notice issued.
Both Tapan Kumar Dey and Shib Sankar Dey were present as also Ratna Debi Shaw.
It was noted by the Court in their presence that the occupants would pay occupation charges by way of rent or otherwise to the Official Liquidator without any equity being created in their peaceful possession and in default thereto serious consequences would entail.
Prior to the said order for the months of January and February, 2013, Shib Sankar Dey and Tapan Kumar Dey had paid occupation charges to the Official Liquidator which, according to the Official Liquidator, was only for one month.
The order of 4th January, 2013 was considered while disposing of the appeal by order dated 20th February, 2013 and while construing the said order of 4th January, 2013, it was observed that it was not the intention of the Appeal Court on an earlier occasion to permit any one to enjoy possession for eternity.
Therefore, the Official Liquidator was directed to take possession of the assets and remove illegal occupants and encroachment.
The Official Liquidator had revoked the license and therefore, all the occupants were bound to vacate the premises in their respective occupations to obviate difficulties.
The Official Liquidator was directed to give notice to all the occupants and an amount would be fixed for the portion in occupation of the occupants which would be informed to them so that the deposit could be made within the time specified in the said order.
Only those occupants who would deposit sums would be allowed to continue and the rest would be removed with police help, if necessary.
On sale the occupants would be obliged to hand over vacant possession to the Official Liquidator on refund of the amount deposited by him.
Liberty was also given to the occupants who could not deposit the amount to seek extension of time.
The case of the occupants who were not able to deposit the amount was left to the discretion of the Trial Court on a case to case basis.
With these directions, the appeal of 2012 was disposed of.
Thereafter, the matter came before the Trial Court and premises no.14 A, Amritalal Bose Street, Kolkata-700005 was sold to one Amit Kumar Dutta.
The presence of Ms.Supriti Dutta and Ratna Debi Shaw was recognized in the order dated 19th April, 2013.
While confirming the sale, liberty was also given to the purchaser to proceed in eviction against the said occupants.
In fact, in case the purchaser defaulted in making payment, the Official Liquidator was directed to dispossess him from the property.
Therefore, it was not the intention of the Court only to restrict dispossession in respect of the Deys, Shaws or Dutta, but dispossession was extended to mean all occupants including the purchaser.
These orders have been accepted by the parties and no appeal therefrom has been filed.
Counsel on behalf of the Deys, who are in occupation of the second floor of 14 A, Amritalal Bose Street, Kolkata-700005, seeks to contend that by treating Shaw and Ms.Supriti Dutta as occupants, they also ought to have been treated as such occupants but Dey did not appear before the Trial Court.
An application was filed on behalf of Tapan Kumar Dey, who was an occupant of 14 B, Amritalal Bose Street, Kolkata-700005 and the said application was disposed of by order dated 4th September, 2013.
The Court was not inclined to permit the applicant, Tapan Kumar Dey therein to remain in premises No.14 B, Amritalal Bose Street, Kolkata-700005 but two weeks’ time was granted in view of the ensuing examination of Tapan Kumar Dey’s daughter.
In fact, there was a specific direction that in the event the applicant did not vacate the said premises by 22nd September, 2013, the Official Liquidator would take possession if necessary with police help without notice to the applicant, Tapan Kumar Dey.
It is pertinent to note that Tapan Kumar Dey is the brother of Shib Sankar Dey.
While Tapan Kumar Dey was in occupation of 14 B, Amritalal Bose Street, Kolkata-700005 and Shib Sankar Dey is in occupation of the second floor of 14 A, Amritalal Bose Street, Kolkata-700005.
Shib Sankar Dey never applied to Court nor was any prayer made for appropriate directions, which by the order dated 20th February, 2013 he was entitled to do.
This application has been filed by the successful purchaser and it is to oppose the prayers that Shib Sankar Dey has contested the said proceedings without taking any recouRs.to the liberty granted to him in the orders passed.
As mentioned in the order dated 20th February, 2013, it was a duty cast on the Official Liquidator to remove illegal occupants.
Liberty was also given to the occupants to deposit sum and continue in possession but Shib Sankar Dey did not do so.
The question of refund would arise if sums were deposited after the order dated 20th February, 2013 and not prior thereto.
Even assuming that the said sum needs to be returned the Official Liquidator will take steps to refund the said sum forthwith to Shib Sankar Dey as directed by the order dated 20th February, 2013.
Shib Sankar Dey was under an obligation to hand over vacant possession to the Official Liquidator, simultaneously, on refund of sum in the event the same was not done, it was open to the Official Liquidator to act as per the direction contained in the order dated 20th February, 2013.
In view of the aforesaid, as the applicant here is the purchaser whose sale has not been set aside, the Official Liqudator is directed to hand over possession of the second floor of 14 A, Amritalal Bose Street, Kolkata-700005 to the applicant, who is the successful purchaser.
In respect of the third floor of the said premises no relief is sought at present.
It was one room given to one Murari Mohan Banerjee.
The partition wall sought to be constructed between 14 A and 14 B, Amritalal Bose Street, Kolkata-700005 is also deferred as the Court is desirous that the purchaser of 14 A, Amritalal Bose Street, Kolkata-700005 do also purchase 14 B, Amritalal Bose Street, Kolkata-700005 which not only will enure to the benefit of the purchaser but also will get price which it will not fetc.if sold to a third party.
The petitioner, will however, be entitled to seek relief in respect of the room on the third floor at a later stage.
After passing of this order Shib Sankar Dey, who is present in Court through Counsel seeks, three months’ accommodation to vacate the portion of the said premises which is in his occupation.
Accordingly, three months’ time is granted to Shib Sankar Dey and Tapan Kumar Dey in case he is residing at 14 A, Amritalal Bose Street, Kolkata-700005 which they must be doing as it is on the plea of Tapan Kumar Dey’s daughter’s examination time to vacate is sought.
In view of the aforesaid, this application is disposed of.
All parties to act on a signed photocopy of this order on the usual undertakings.
(PATHERYA, J.) nm