Calcutta High Court
Hotel Mahakal Pvt. Ltd. & Ors vs West Bengal Financial Corporation & Ors on 12 March, 2009
Author: Surinder Singh Nijjar
Bench: Surinder Singh Nijjar
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APO No. 382 of 1997
GA No. 235 of 2007
WP No.1610 of 1997
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
HOTEL MAHAKAL PVT. LTD. & ORS. Appellant
Versus
WEST BENGAL FINANCIAL CORPORATION & ORS. Respondents
For Appellant : Mr. Kalyan Bandopadhyay, Sr. Advocate Mr. D. Basu Mallick, Advocate For Respondents: Mr. A.K. Dhandhania, Mr. A.K. Sur, Advocates BEFORE:
The Hon'ble CHIEF JUSTICE SURINDER SINGH NIJJAR The Hon'ble JUSTICE BISWANATH SOMADDER Date : 12th March, 2009.
The Court : We have heard learned Counsel for the parties at length and we have also perused the pleadings. Initially, the applicant/petitioner had filed a writ petition being W.P. No.1610 of 1997 challenging the action of the respondent West Bengal Financial Corporation (hereinafter referred to as WBFC) under Section 29 of the State Financial Corporation Act, 1951. The applicant/writ petitioner had taken financial assistance from the West Bengal Financial Corporation for setting up an industrial project. However, since the writ petitioner/applicant was unable 2 to maintain the repayment schedule, the WBFC initiated proceedings under Section 29 of the Act. The aforesaid issuance of notice and the consequential sale was challenged by the writ petitioner. In the writ petition, the appellant had also made a prayer for interim relief for not giving effect to the notice of sale. Pursuant to the aforesaid application no relief was granted to the appellant/writ petitioner. Consequently, the applicant filed APOT No.492 of 1997. On 28th August, 1997 the Appeal Court directed status quo with regard to the possession to be maintained subject to the writ petitioner/applicant depositing a sum of Rs.22 Lac within 10 days. Pursuant to the aforesaid order, Rs.22 Lac was deposited by the applicant/petitioner. Thereafter the application was taken up for final hearing on 30th September, 1997 when the Appeal Court was pleased to pass an order as follows :
"We propose to allow the appellants to withdraw the amount which has been deposited in compliance with the interim order passed by the earlier Division Bench on 28.8.97."
However, at the same time, the appeal filed by the applicant was disposed of in terms of the order dated 28th August, 1997. Aggrieved against the aforesaid order the applicant/petitioner moved the Supreme Court by way of a Special Leave Petition, which was also disposed of by directing the trial Court to dispose of the case on merits as early as possible, preferably within three 3 months. This order was passed by the Supreme Court on December 1, 1997. Thereafter, according to Mr. Dhandhania, further proceedings continued between the parties although the order passed by the trial Court on 30th September, 1997 had neither been set aside nor modified. The appeal filed against the judgment of the Single Judge, we are informed, was dismissed for default on 8th August, 2007. In the meantime, the applicant had moved the present petition for refund of the amount in terms of the directions issued by the Appeal Court on 30th September, 1997.
From the above, it becomes apparent that till now the order dated 30th September, 1997 has neither been set aside nor modified by any superior court. Therefore, there appears to be no justification as to why the respondents should not refund the amount to the applicant in accordance with the orders passed by the Division Bench on 30th September, 1997. We may, however, point out at this stage that Mr. Dhandhania submits that in view of the laches on the part of the applicant in not seeking withdrawal of the amount, the amount ought not to be permitted to be withdrawn at this stage. It is also pointed out that the amount due to the WBFC is over Rs.1 Crore. Necessary application has been made before the District Court at Darjeeling under Section 31 of the Act. In such circumstances, the WBFC would be entitled to claim attachment of the moneys in these aforesaid proceedings. 4
We have considered the submissions made by Mr. Dhandhania. At this stage, this Court is bound by the directions issued by the Division Bench on 30th September, 1997. The present proceedings are not in the nature of an appeal or an application seeking modification of the order passed by the earlier Division Bench on 30th September, 1997. The application is merely for the implementation of the order dated 30th September, 1997. In that view of the matter, we are left with no option but to direct the WBFC to refund the amount to the applicant/petitioner in accordance with the orders passed by the Division Bench on 30th September, 1997. Let the amount be refunded to the applicant/appellant within a period of three months from today.
The application is disposed of.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SURINDER SINGH NIJJAR, CJ.) (BISWANATH SOMADDER, J.) SN.
Asst.Registrar(CR) 5