Calcutta High Court (Appellete Side)
In Re.: India Bulls Housing Finance Ltd vs The District Magistrate & Others on 28 February, 2017
Author: Nishita Mhatre
Bench: Nishita Mhatre
1 02 28.02.2017 rpan Ct. No.01 CAN No.12160 of 2016 In Re.: India Bulls Housing Finance Ltd.
-Applicant and CAN No.368 of 2017 In Re.: Dimension Realtors Pvt. Ltd.
-Applicant in FMA 1511 of 2016 West Bengal Housing Board & Another Vs. The District Magistrate & Others Mr. Prasenjit Basu, Mr. Parikshit Basu ... for the Appellants.
Mr. Bikas Ranjan Bhattacharyya, Mr. Probal Kumar Mukherjee, Mr. Suhrid Sur ... for the Applicant in CAN 12160 of 2016.
Mr. Joy Saha, Mr. Subhojit Saha, Mr. Sourajit Dasgupta ... for the Applicant in CAN 368 of 2017.
The application, being CAN No.12160 of 2016, has been filed by India Bulls Housing Finance Ltd. (for short, IBHF Ltd.) seeking a direction against the Registrar General of this Court to pay an amount of `10,80,10,100/- (Rupees ten crore eighty lakh ten thousand and one hundred), which is deposited with him in accordance with the order passed on 16th November, 2016 by the Division Bench of this Court in FMA 1511 of 2016.
2
The judgment of the learned Single Judge, dated 16th March, 2016, was challenged in the aforesaid appeal which directed the payment of `11,39,00,000/- to IBHF Ltd. by Dimension Realtors Pvt. Ltd. (for brevity, DRPL).
After hearing the parties in FMA 1511 of 2016 and MAT 552 of 2016, the Division Bench observed that it would be open for DRPL, Appellant in MAT 552 of 2016, to approach the Debts Recovery Tribunal within four weeks from the date of the order and in the event such an application was made, the Debts Recovery Tribunal (DRT) was directed to dispose it of in accordance with law without seeking to non suit DRPL on the ground of delay or limitation or any such ground. It was further directed that if the DRPL did not avail of the opportunity to move the Debts Recovery Tribunal (DRT), it would be open for the IBHF Ltd. to apply for a direction to the Court against the Registrar General to pay the money deposited with him.
The application before the Debts Recovery Tribunal was expected to be filed on 14th December, 2016 which is the date of expiry of four weeks from the date of the Division Bench's order. This application was apparently filed on 12th December, 2016. However, there were defects in the same inasmuch as the court fees had not been paid. The pay order which was submitted on 13th December, 2016 was drawn in favour of the Registrar, Debts Recovery Tribunal-I, Kolkata instead of Registrar, Debts Recovery Tribunal-III, Kolkata before which Tribunal the matter was to proceed.
Ultimately, on 20th December, 2016 the Debts Recovery Tribunal-III, Kolkata, passed an order refusing to register the application as there were some defects inasmuch as the court fees had not been paid. A period of fifteen days was granted by the Debts Recovery Tribunal-III, Kolkata to remove these defects. As these defects 3 were not removed, on 11th January, 2017 a further order was passed declining to register the application.
In the meantime, IBHF Ltd. filed the present application, being CAN No.12160 of 2016, on 16th December, 2016 seeking leave to withdraw the amount of `10,80,10,100/- which was deposited with the Registrar General of this Court.
The DRPL filed CAN 368 of 2017 on 11th January, 2017 seeking extension of time to file the proceedings before the Debts Recovery Tribunal-III, Kolkata and for an injunction against the Registrar General from parting with the aforesaid amount.
We have heard the learned Counsel for the parties. From the Application filed by DRPL, it is apparent that it was not deliberate default on its part which led to non- registration of its application before the Debts Recovery Tribunal-III, Kolkata. It was because the demand draft payable for the court fees was drawn in favour of Debts Recovery Tribunal-I, Kolkata instead of Debts Recovery Tribunal-III, Kolkata. This is obviously a clerical mistake and in our opinion, cannot defeat the very purpose of the order passed by the Division Bench of this Court on 16th November, 2016. The Division Bench has observed that considering the fact that a sum of `10,80,10,100/- was paid to the West Bengal Housing Board by the borrower, i.e. DRPL, out of the money which was borrowed from IBHF Ltd., it was proper that the money should be kept with the Registrar General of this Court subject to any order passed by the Debts Recovery Tribunal in a proceeding between the borrower, i.e., DRPL and IBHF Ltd.
Therefore, in our opinion, it would be proper to extend the time as specified in the order dated 16th November, 2016 for DRPL to approach the Debts Recovery Tribunal (DRT) subject to payment of costs of `50,000/- to IBHF Ltd. The aforesaid amount of 4 `10,80,10,100/- shall continue with the Registrar General of this Court as per the order of 16th November, 2016, passed by the Division Bench.
The Debts Recovery Tribunal-III, Kolkata will register and entertain the application preferred by DRPL, being Dy. No.164/2016, subject to payment of costs of `50,000/- to IBHF Ltd. by DRPL within a period of two weeks from today.
However, in the event the costs are not paid by DRPL to IBHF Ltd. within two weeks, IBHF Ltd. will be permitted to withdraw the amount lying deposited with the Registrar General.
Upon registration of the application, the Debts Recovery Tribunal-III, Kolkata shall hear the same on merits and without reference to the orders passed in Dy. No.164/2016 on 20th December, 2016 and 11th January, 2017.
Accordingly, the application, being CAN 12160 of 2016, is dismissed and the application, being CAN 368 of 2017, is allowed.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties, upon compliance of all requisite formalities as expeditiously as possible.
(Nishita Mhatre, A.C.J.) (Tapabrata Chakraborty, J.)