Calcutta High Court
Prakash Ply Centre Private Limited vs Minoo H. Hiramanik And Others on 11 September, 2013
Author: Asim Kumar Mondal
Bench: Subhro Kamal Mukherjee, Asim Kumar Mondal
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Before:
The Hon'ble Justice Subhro Kamal Mukherjee
And
The Hon'ble Justice Asim Kumar Mondal
GA No. 1439 of 2012
With
APOT No. 299 of 2012
ACR No. 4 of 2005
Prakash Ply Centre Private Limited
...Appellant.
Versus
Minoo H. Hiramanik and others
...Respondents.
For the appellant: Mr. Anindya Kumar Mitra,
Mr. Dipankar Halder,
Mr. Sk. Moinuddin.
For the respondent No. 1: Mr.P.C. Sen,
Mr. Samit Talukdar,
Mr. Rajdeep Biswas,
Mr. Rudraman Bhattacharya,
Mr. Swatarup Banerjee,
Mr. Ranajit Roy.
For the respondent Nos. 2 to 6: Ms. Manju Bhuteria,
Mr. Ravi Asopa,
Mr. Syed E. Huda,
Ms. Shreya Chaudhary.
For Calcutta Zoroastrian
Community's Religious and Charity Trust: Mr. Sabyasachi Chaudhury,
Mr. Manju Bhuteria,
Mr. Ravi Asopi.
Judgment On: September 11, 2013.
Justice Asim Kumar Mondal: The appellant, Prakash Ply Centre (Private)
Limited, has preferred the present appeal being aggrieved and dissatisfied
with the judgement and order dated September 14, 2011 passed by Hon'ble
Single Judge in G.A. No.2722 of 2011 arising out of ACR No 4 of 2005.
The Hon'ble Single Judge by the order impugned granted an ad-
interim order of injunction restraining the purchaser from creating any third
party interest in the property-in-dispute during the pendency of the
application. However, the question of maintainability of the application was
kept open. The parties were directed to exchange their affidavits.
The premises No.10 Bow Street, Kolkata, exclusively and absolutely
belonged to the trust of Zoroastrian Communities' religious and charitable
fund. The Kolkata Municipal Corporation directed the demolition of
premises No.10 Bow Street Kolkata. In view of the said direction one
petition being ACR No.4 of 2005 was filed before this Court for sale of the
said premises under Section 7 of the Charitable and Religious Trust Act,
1920. This Court directed newspaper publications in a Bengali newspaper
and an English daily newspaper seeking objection, if any, from the Parsee
community regarding sale of the property. As per order of this Court a
valuer was appointed to value the said property. As there was no objection
from the Parsee Community regarding sale of the property, another
advertisement was directed inviting offers to purchase the said property.
Prakash Ply Centre (Private) Limited placed an offer. The sale was
confirmed in favour of Prakash Ply Centre (Private) Limited in a court
auction. In pursuant to the order of this Court, the trustee conveyed the
property to Prakash Ply Centre (Private) Limited for a consideration of
Rs.1,60,52,400/- (Rupees one crore sixty lakh fifty two thousand four
hundred) only, which was accepted by this Court as fair reasonable.
The said property was, thereafter, conveyed by executing a registered
deed of conveyance in favour of the appellant. The appellant with a purpose
to construct a multi-storied building on the said property duly applied for
building sanction plan and had obtained the same from Kolkata Municipal
Corporation. The appellant started construction upon said property for
commercial purpose in the year 2008.
The Applicant in the application being G.A. No.2722 of 2011 arising
out of ACR No.4 of 2005 has prayed for recall of order dated 31st January,
2006 passed in ACR No.4 of 2005 conforming the sale of the premises in
question and for cancellation of the deed of conveyance. The said applicant,
inter alia, prayed for enquiry into the management and injunction
restraining appellant, Prakash Ply Centre (Private) Limited, from alienating,
encumbering, transfering and/or disposing of the premises No.10, Bow
Street, Kolkata.
The Hon'ble Single Judge in the said application passed the order
impugned, which is under challenge in the present appeal.
In view of above facts and circumstances, the prime question to be
considered in the present appeal is whether the Hon'ble Single Judge,
erroneously, exercised discretion in passing order impugned by restraining
the purchaser for creating any third party interest in respect of the property.
Mr. Anindya Kumar Mitra, learned senior advocate, advanced his
argument in support of the present appeal, that in the year 2005 an
application was moved under Section 7 of the Charitable and Religious Trust
Act, 1920, by the respondents No. 2 to 6 in ACR No.4 of 2005, praying for
leave to the trustees of the Calcutta Zoroastrian Community's Religious and
Charity Fund to sell the premises No.10, Bow Street, Kolkata, for the
purpose of fulfilling the objects of the society under the provisions of Section
7 of the Charitable and Religious Trust Act, 1920. This Court granted the
said prayer. The property in question was sold by auction as per the
direction of the Court after observing all necessary formalities. The present
appellant purchased the property in question for a valuable consideration,
mutated his name and obtained the sanctioned plan for developing the said
property. It is, further, submitted that the applicant/respondent No.1 in
G.A. No.2722 of 2011, approached the Court for recalling the order dated
January 31, 2006 conforming the sale of the premises in question and, also,
for cancellation of the deed of convenience executed in favour of the present
appellant after a delay of more than five years.
Mr. Mitra, further, submitted that a four storied building has, already,
come up as per sanctioned plan on the suit premises. The construction
work was going on since 2008 and by this time some portions/office spaces
have, already, been let out/sold out to different persons on consideration.
The property in question is, now, fully developed. The trust office is almost
adjacent to the property and it is not believable that the applicant or any
person among the trustees was not aware of the development of the
property. The respondent No.1 had full knowledge regarding the sale
process in Court and, thereafter, execution of register deed of conveyance in
2006. The appellant is bona fide purchaser and he is stranger and not
related to the management and administration of the trust. The trust
property was duly valued by the valuer, Dr. Ashok Nain, who had opined
that the value of property would be around Rs.16, 00,000/- (Rupees sixteen
lakh) only per cottah.
Mr. P.C. Sen, learned senior advocate appeared on behalf of
respondent No.1 and, in reply, submits that his client is a beneficiary of the
Zoroastrian Community's Religious and Charity Fund, a trust for the benefit
of poor and needy Zoroastrians living in Kolkata. The respondent no. 1 came
to know about the mismanagement of the trust properties and specially in
respect of premises No.10, Bow Street, Kolkata, from a report published in
the Times of India, Kolkata edition, on August 26, 2011. The respondent no.
1, thereafter, contracted Times of India Office in Kolkata to enquire into the
matter and came to know that the trustees have disposed of the property at
10, Bow Street, Kolkata, pursuant to a conspiracy by the trustees, the
valuer and the intended purchaser, Prakash Ply Centre (Private) Limited.
Mr. Sen, further, submits that the trustees filed the petition under Section 7
of the Charitable and Religious Trust Act, 1920, seeking permission for sale
of the premises No.10, Bow street, Kolkata, on the ground that the building
was very old and its condition had deteriorated and a demolition order was
passed by the Kolkata Municipal Corporation vide its letter dated November
22, 2001. The said petition was filed after almost a gap of 4 (four) years. No
explanation was given for such delay and for immediate necessity to sell the
properties.
Mr. Sen, also, pointed out that in the title deed dated September 2,
1967, the property has been described as two-storied built house with the
land measuring about 9 cottah. No valuation has been done in respect of
the said dilapidated structure, which included old bricks, tick wood doors,
windows, steel joist etc. Admittedly, share capital of the purchaser, that is,
Prakash Ply Centre (Private) Limited was Rs. 25,00,000/- (Rupees twenty
five lakh) only. No explanation has been given by the buyer as to how the
said company obtained the consideration money as accepted in the auction
for purchasing the said trust property.
Mr. Sen submits, relying upon the judgment of the Supreme Court of
India in the case of Ramesh B. Desai and others versus Bipin Vadilal
Mehta and others reported in Supreme Court Cases (2006) 5 Supreme
Court Cases 638, that a plea of limitation cannot be decided as an abstract
principle of law divorced from facts as in every case the starting point of
limitation has to be ascertained, which is entirely a question of fact. A plea
of limitation is a mixed question of law and fact. In the instant case, the
respondent No.1 came to know about the purported sale of the trust
properties only on August 26, 2011 when a report was published in the
Times of India, Kolkata edition, regarding mismanagement of the trust
properties.
We have considered the statements made in the pleadings and we are
of the opinion that the allegations, in our view, make out a case for ad
interim injunction. Having given our anxious consideration we are satisfied
that the plaintiff has made out a prima facie case to go to trial and to get at
least an interim order of injunction during the pendency of the application
for injunction. Any creation of third party interest in the properties would
lead to multiplicity of proceedings.
The Hon'ble Single Judge, in our view, rightly exercised His Lordship's
discretion in passing an ad interim order of injunction.
We, therefore, request the Hon'ble Single Judge to expedite the
hearing of the injunction matter as far as possible, but restrain the parties
from creating any third party interest in relation to the properties-in-dispute
during the pendency of the application for injunction.
By way of abundant caution, we clarify that we have not finally gone
into the merits of the claims and the counter-claims of the parties involved
in the application for injunction. The Hon'ble Single Judge would decide the
application being wholly uninfluenced by any observation made by us as to
the merits as is well known that the findings arrived at in dealing with the
prayer for ad interim injunction, pending the disposal of the application for
injunction, even if they relate to any material question involved in the
application for injunction cannot take the place of findings in the final
decision of the Hon'ble Single Judge in connection with the application for
injunction.
Thus, the appeal is dismissed without, however, any order as to costs.
(Asim Kumar Mondal, J.)
Subhro Kamal Mukherjee, J.
I agree.
(Subhro Kamal Mukherjee, J.)