Judgment:
The Court : - I had the advantage of hearing the application, GA 2605 of 2008, of Prabir Ghosh( the applicant in short) who was the highest offerer to buy the property in question, namely at 65, Sisir Bhaduri Sarani, Kolkata 700006 for Rs. 10,50,000/-.
Needless to mention, for the proper adjudication of the application on merits, I heard the submissions of all the learned Counsel including Mr. Pradip Dutt, learned Senior Counsel appearing in support of the application of the applicant and the other parties to the application respectively.
After considering the application on merits I was of the opinion that the orders as prayed for in the application should be granted. However, since the parties and their respective learned Counsel including Mr. Dutt appeared from time to time at the hearing, I said that this matter should be settled and the order dated 23 July 2008 passed by me should be recalled and the property in question should be sold and conveyed to the applicant, Prabir Ghosh.
However, on the above basis, the learned Counsel authorised by the parties to this application had the occasion to consider this matter and they were able to come to certain terms on the basis of which the application can be disposed of by consent of the parties to the application. Since the parties and their respective learned Counsel have prepared the terms on consent and the said terms are placed before me for consideration today, the application is disposed of on the basis of the terms agreed upon by the parties and, for the sake of convenience, the said terms are set out below :-
a) The order dated 23 July 2008 passed in G.A. No. 2182 of 2008 (C.S. No. 695 of 1980) is set aside;
b) The deed of sale executed on 4 August 2008, in terms of order dated 23 July 2008 by the Receiver appointed by this Court in favour of Sri Samir Sadhukhan in the year 2008, at the office of the Additional Registrar of Assurances-II, Kolkata is adjudged void and the said deed stands delivered up and cancelled.
c) Since by the order dated 20 December 2007, the offer of Prabir Ghose was accepted as the highest offer, the said Prabir Ghosh had deposited an earnest money of Rs. 6,00,000/- to the Receiver against his said highest offer of Rs. 10,50,000/-. The said offer is now enhanced to Rs. 11,00,000/-.
d) The present petitioner, Prabir Ghosh shall pay the balance consideration of Rs.5,00,000/- out of Rs.11,00,000/- directly to Samir Sandhukhan towards repayment of the consideration paid by him to the Receiver for purchase of the said property. The balance sum of Rs.6,00,000/- to be repaid to Samir Sadhukhan by the Receiver who is still holding the said sum which was paid by Prabir Ghosh with all accrued interest on said amount of Rs. 6,00,000/- which was deposited by present petitioner i.e. Prabir Ghosh in the month of March, 2008 and accepted by the receiver.
e) In addition to the payment of the aforesaid sum of Rs.11,00,000/-, to the present petitioner, Prabir Ghosh shall repay a sum of Rs.66,000/- to Samir Sadhukhan on account of Stamp Duty paid by him for the execution of the conveyance which is now adjudged void and directed to be delivered up and cancelled. Prabir Ghosh shall further pay a sum of Rs.12,100/- to Samir Sadhukhan towards registration fees incurred by him for the above execution of conveyance and shall also reimburse him a further sum of Rs.22,000/- on account of legal expenses incurred by Samir Sandhukhan in connection with the execution and registration of the sale deed dated 4 August 2008 in respect of the said property, at premises No. 65, Maniktala Street (Sisir Bhaduri Sarani), Kolkata- 700005; f) The 5th plaintiff shall pay a sum of Rs.1,20,000/- to Samir Sadhukhan towards and by way of compensation for loss of interest on full consideration amount paid by him which will be accepted by Samir Sadhukhan in full and final settlement of his claim for compensation and the said Rs. 1,20,000/- will be paid as follows :- Rs. 80,000/- will be paid on the date of registration by demand draft and the balance amount of Rs. 40,000/- will be paid within 90 days thereafter by demand draft. In case of default, Samir Sadhukhan will be at liberty to approach this Court;
g) A deed of conveyance in respect of the property, at premises No. 65, Maniktala Street (Sisir Bhaduri Sarani), Kolkata- 700005 shall be executed and registered by the Receiver, Smt Chhabi Bhattacharya in favour of Prabir Ghosh and/or his nominee and/or nominees. Simultaneously upon execution and registration of the deed of sale, Samir Sadhukhan shall deliver, the original deed of sale dated 4 August 2008 to the purchaser, Prabir Ghosh, and/or to his nominee or nominees.
The Registrar of Assurances, Kolkata or his subordinate is accordingly directed to register the conveyance of premises No. 65, Sisir haduri Sarani, Calcutta 700 006 to be executed by Smt Chhabi Bhattacharya, namely the Receiver in favour of Prabir Ghosh and/or his nominee or nominees at a valuation of Rs. 11,00000=00 and cancel the sale deed made by and between Samir Sadhukhan and the Receiver, Smt. Chhabi Bhattacharya dated 4th August 2008 in the office of Additional Registrar of Assurances II, Kolkata in respect of the property situated at premises No. 65, Sisir Bhaduri Sarani, Calcutta 700 006.
For the purpose of execution of such conveyance and registration thereof by the Receiver, all cost, charges and expenses shall be borne by Prabir Ghosh and/or his nominee or nominees, as the case may be.
The said Samir Sadhukhan, the present owner declares that he has not encumbered or has not alienated the property or put the property as a secured asset in favour of any financial institutions including banks and the same is free from all encumbrances. In the event it is found to have been encumbered to any extent on or after 4 August 2008, to the said Samir Sadhukhan shall be entirely liable for the same.
Upon compliance of the above direction by the parties and upon registration of conveyance of the said premises in favour of Prabir Ghosh, the Receiver shall stand discharged. The application, GA 2605 of 2008, is disposed of as above.
There will be no order as to costs. In view of the above order, further adjudication of the suit is not necessary and the suit as such is disposed of on the above basis as well.
All parties are to act on a Xerox signed copy of this order on the usual undertakings.