Calcutta High Court
Shew Kumar Gupta vs Prithiraj Gupta on 12 June, 2017
Author: Soumen Sen
Bench: Soumen Sen
GA No.1663 of 2016
GA No.1978 of 2016
CS No.127 of 1996
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SHEW KUMAR GUPTA
-Versus-
PRITHIRAJ GUPTA
Appearance:
Mr. Sakya Sen, Adv.
Mr. Chanchal Kumar Dutt, Adv.
Ms. Krishna Mullick, Adv.
...for the plaintiff.
Mr. Nirmalya Dasgupta, Adv.
...for the defendant No.1.
Mr. Tapan Sil, Adv.
Mr. Satrajit Chatterjee, Adv.
...for the defendant No.2.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 12th June, 2017.
The Court : The defendant no.1 has expressed his inability to comply with the order dated 17th November, 2016. It is submitted that he has no fund out of which he can deposit his share of cost as directed by the order dated 17th November, 2017. In view of failure to deposit the costs, the Commissioner also could not proceed with the advertisements to be published in terms of the aforesaid order. The defendant No.1 says that he is negotiating with a prospective purchaser for sale of the property. In fact, the said applicant also wants to have the said property sold to the highest bidder. This was precisely the reason for 2 sale of the said property by the order dated 17th November, 2016. It is submitted that the preliminary decree does not provide for payment of owelty money and accordingly the Court should not give any direction for payment of owelty money to the plaintiff and the second defendant. On 4th July, 2016 it appears that the first defendant has accepted adjustment of payment by way of owelty money. In fact, the preliminary decree would not contain payment of owelty money as only during the course of implementation of the preliminary decree the situation towards adjustment of a share by payment of owelty money could arise. The first defendant has accepted that he is unable to pay the owelty money but he would sought time to make arrangement for funds. This was recorded in the order dated 4th July, 2016. Even in the subsequent application being G.A.No.1978 of 2016 the first defendant has agreed for sale of the Duff Lane property to the highest bidder. Instead of the petitioner taking steps for sale in a partition proceedings, the Commissioner ordinarily should be entrusted to sell the property and distribute the sale proceeds.
Since the first defendant is unable to tender the owelty money or put in the costs towards his share for advertisements, the plaintiff shall put in the first defendant's share of costs with the Commissioner of partition in order to enable the Commissioner to implement the order dated 17th November, 2016. The first defendant shall reimburse such costs along with the owelty money after the sale is concluded.
3
G.A.No.1978 of 2016 stands disposed of. However, there shall be no order as to costs. The first defendant shall be entitled to bring offer and place the same before the Commissioner for consideration. The commissioner shall file a report on the adjourned date.
G.A.No.1663 of 2016 is adjourned for six weeks.
(SOUMEN SEN, J.) A/s.