Calcutta High Court (Appellete Side)
Kalyan Shaw & Anr vs Rajkumar Chakraborty on 29 March, 2016
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26.
29.03.2016
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In the High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side
S.A. 59 of 2015
With
C.A.N. 2105 of 2016
Kalyan Shaw & Anr.
Vs.
Rajkumar Chakraborty
Mr. Sabyasachi Bhattacharya,
Ms. Sohini Chakraborty
.....for the petitioners-appellants
Mr. Siva Prasad Ghosh,
Ms. Kajal Chattopadhyay
......for the respondent-opposite party
In Re.: C.A.N. 2105 of 2016 This is an application at the instance of the appellants in the second appeal. The appeal has been filed against the judgment and decree passed by the learned first appellate Court thereby affirming the judgment and decree for eviction passed by the learned trial Court against the appellants.
The appellants filed an application, being C.A.N. 2550 of 2015, praying for stay of the Ejectment Execution Case No. 5 of 2009 pending before the Court of the learned Civil Judge (Junior Division), Additional Court at Sealdah, District-South 24-Paargans. 2 By an order dated August 31, 2015, the said application was disposed of by this Court with a direction that subject to deposit of arrear occupation charges amounting to Rs.2,40,000/- by way of six monthly instalments of Rs.40,000/- each and deposit current occupation charges at the rate of Rs.20,000/- by the appellants with the learned Registrar General of this Court, the said execution proceedings shall remain stayed till the disposal of the second appeal. By the said order this Court directed the appellants to deposit the first monthly instalment of arrear occupation charges for Rs.40,000/- with the learned Registrar General of this Court within September 10, 2015 and thereafter, the balance instalments of arrear occupation charges together with the current monthly occupation charges for the month of September, 2015 onwards shall be deposited by the appellants within the 10th day of each succeeding month. In the said order it was made clear that in the event of any default on the part of the appellants to deposit any of the instalments of the arrear occupation charges or the current monthly occupation charges within the time mentioned above, the stay of the execution proceedings shall stand automatically vacated without any further reference to this Court.
On March 01, 2016, the learned Registrar General of this Court laid a report before this Court to the effect that one of the cheques of 3 Rs.40,000/- drawn on IDBI Bank issued by the appellants was dishonoured on presumption.
In the above background of facts, the appellants-petitioners have filed this application praying for leave to deposit a fresh cheque of Rs.40,000/- on account of fourth instalment of the arrear occupation charges with the learned Registrar General of this Court. In the application, the petitioners have also prayed for condonation of delay in filing the present application as also for re-imposition of the interim order.
Mr. Bhattacharya, learned senior counsel appearing for the petitioners placed the averments made in the application and submitted that the appellants had no intention of not complying with the conditions imposed by the said order dated August 31, 2015 and they deposited the first three instalments of arrear occupation charges amounting to Rs. 2,00,000/- (Rupees Two lakhs only) and the current monthly occupation charges of Rs. 20,000/- from September, 2015 within the time mentioned in the said order. Mr. Bhattacharyya urged that it was by way of a bona fide mistake on the part of the appellants-petitioners, the said cheque, bearing No. 109399 dated December 10, 2015 drawn at IDBI Bank, Kakurgachi Branch, issued by the appellants-petitioners was dishonoured on presentation for encashment and that the appellants-petitioners are ready to deposit a fresh cheque of Rs. 4 40,000/- with the Registrar General. According to him, in the present case, since the mistake committed by the appellants is a bonafide mistake, this Court would allow them to deposit a fresh cheque of Rs. 40,000/- with the learned Registrar General and re- impose the interim order of stay of the execution proceeding. Mr. Ghosh, learned counsel appearing for the respondent- landlord, however, submitted that with the dishonour of the said cheque, bearing No. 109399 dated December 10, 2015, the interim order dated August 31, 2015 passed by this Court stood automatically vacated. He, however, submitted that in view of the default committed by the petitioners, the respondent is now entitled to execute the decree for eviction.
Having considered the facts and circumstances of the case, it appears that the cheque, bearing No. 109399 dated December 10, 2015, issued by the appellants-petitioners in terms of the order dated August 31, 2015 was not dishonoured on any technical ground, but the said cheque was dishonoured on the ground of "insufficient fund". The appellants-petitioners could not dispute the fact that the ground on which the said cheque was dishonoured by their banker was correct. Depositing a cheque with the learned Registrar General of this Court to comply with a condition imposed by this Court, for obtaining stay of the execution proceedings, without keeping the cheque amount in their account is a serious 5 matter and I am unable to accept the contention made on behalf of the appellants that their acts in this case was only a bona fide mistake. However, in the interest of justice and in view of the eloquent submission of Mr. Bhattacharya, leave is granted to the appellants to deposit a fresh cheque of Rs.40,000/- with the learned Registrar General of this Court, subject to payment of costs assessed at Rs. 30,000/- to be paid by the appellants to the respondent by demand draft/banker's cheque issued in the name of the respondent, through his advocate within April 07, 2016. After payment of the said amount costs to the respondent, the appellants- petitioners shall be entitled to deposit of Rs.40,000/- (Rupees Forty Thousand only) with the learned Registrar General of this Court by demand draft/banker's cheque within April 12, 2016. Subject to payment of the above costs by the appellants to the respondent and encashment of the demand draft/banker's cheque of Rs.40,000/- issued in the name of the learned Registrar General of this Court the interim order dated August 31, 2015 shall stand re-imposed.
Henceforth, the appellants shall deposit the monthly occupation charges with the learned Registrar General of this Court only by demand draft.
The order dated August 31, 2015 passed by this Court in CAN 2550 of 2015 stands modified to the above extent only. 6 However, let this application appear in the list under the heading "For Orders" on April 22, 2016 to ascertain whether the appellants have complied with the above directions and for final disposal of this application.
The learned Registrar General of this Court shall file a report with regard to the encashment of the demand draft/banker's cheque to be deposited by the appellants, on the next date of hearing.
Urgent certified website copy of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.
(Ashis Kumar Chakraborty, J.)