Calcutta High Court (Appellete Side)
West Bengal Housing Board & Anr vs The District Magistrate on 16 November, 2016
Author: Arindam Sinha
Bench: Arindam Sinha
1
/11/2016 FMA 1511 of 2016
Biplab.
West Bengal Housing Board & Anr.
-vs-
The District Magistrate, 24 Parganas (S) & Ors.
Mr. Jayanta Kumar Mitra
Mr. Prasenjit Basu
Mr. Parikshit Basu
... for the appellants
(West Bengal Housing Board & Anr.)
Mr. Joy Saha
Mr. Subhojit Saha
... for the appellant
(in MAT 552 of 2016)
Mr. S.N. Mukherjee
Mr. Probal Mukherjee
Mr. Suhrid Sur
... for the respondent nos. 2 & 3.
Mr. Tapan Kumar Mukherjee Mr. Rabindra Narayan Dutta ... for the State.
The subject matter of challenge in the appeal is a Judgment and order dated 16th March, 2016 by which the learned Trial Court directed payment of Rs.11,39,000,00/- to India Bulls Housing Financial Service Ltd.
The facts and circumstances of the case briefly stated are as follows:
On 30th August, 2007, an agreement was entered into between the appellant West Bengal Housing Board acting through its agent Bengal Peerless Housing Development Company Limited as the seller and Dimension Realtors Pvt. Ltd. as the buyer by which 47,840 Sq.ft. area in the Axis Mall was agreed to be sold at a sum of Rs.16,50,48,000/-. The buyers paid a sum of Rs.1.65 crores by way of an earnest money. The buyer borrowed a sum of Rs. 11 crores from India Bulls Housing Financial Service Limited, out of which a sum of Rs.10,80,10,100/- was paid to the appellant. The balance payment was not made 2 by the buyer. The transaction did not as such materialize. The sale was not completed.
India Bulls Housing Financial Service Limited, started proceedings under SARFAESI Act, 2002. An order was passed by the District Magistrate, North 24 Parganas, on 29th May, 2015 requesting the Superintendent of Police North 24 Parganas, Barasat, to provide police assistance to the secured creditor i.e, India Bulls Housing Financial Service Limited, to take over possession of the secured assets. The appellant naturally was apprehensive of losing its property, the bargain in respect whereof had already failed. Therefore, the appellant presented the writ petition, which was registered as W.P. 16008(W) of 2015.
The borrower also presented a writ petition which was registered as W.P.12424(W) of 2015. The learned Trial Court disposed of the writ petition filed by the borrower by a Judgment and order dated 23rd September, 2015 by holding as follows:
" This petition under Article 226 of the Constitution is not entertained on the ground that there is an efficacious alternative remedy available to the petitioners under Section 17 of the said Act of 2002.WP No. 12424 (W) of 2015 is dismissed on such ground without going into the merits thereof. Since the first petitioner had invoked this extraordinary jurisdiction on its reading of the legal position on the basis of at least one judgment, the first petitioner will be entitled to claim before the appropriate tribunal that the period spent by the first petitioner in this court be excluded under Section 14 of the Limitation Act, 1963. However, it is made clear that it would be entirely for the relevant tribunal to consider the propriety of such claim and make a decision thereon."
The borrower did not however avail himself of the opportunity of challenging the aforesaid order passed by the District Magistrate before the Debt Recovery Tribunal because the writ petition filed by the appellant was then 3 pending. The order passed by the learned Single Judge disposing of the writ petition filed by the West Bengal Housing Board is under challenge before us.
India Bulls Housing Financial Service Limited, is represented by Mr. Mukherjee, learned senior advocate, before us. He contended that part of the money advanced by his client to the borrower was paid to the appellant before us on the security of the agreement for sale entered into between the borrower and the appellant before us. He submitted that the claims and contention of his client against the Housing Board is passed on that security.
Mr. Saha, learned advocate, appearing for the borrower submitted that the claim put forward by Mr.Mukherjee's client is altogether bad. The amount borrowed was Rs. 11 crores whereas Rs. 13 crores have already been paid. According to him, no further amount is payable to Mr. Mukherjee's client.
In reply, Mr. Muhherjee, submitted that the borrower in his balance sheet has already admitted a liability in a sum of Rs.10.20 crores approximately. He contended that it did not lie in the mouth of Mr. Saha's client to agitate that no money is due or payable by the borrower to India Bulls Housing Financial Service Limited.
We are not concerned nor are we called upon to decide whether any money is payable by Mr. Saha's client to India Bulls Housing Financial Service Limited. That question can only be decided by the appropriate forum which in this case is Debt Recovery Tribunal.
In so far as the appellant before us is concerned, they are neither borrowers nor guarantors. The money which they received was on account of the borrower. Therefore, liability if any lies with the borrower. Considering that a sum of Rs. 10,80,10,100/- was paid to the appellant by the borrower from out of the money which was borrowed from India Bulls Housing Financial Service 4 Limited, it is only proper that the said money is kept with the Registrar General of this Court, subject to any order, which may be passed by the Debt Recovery Tribunal in a proceeding between the borrower and Mr. Mukherjee's client. Once this money is deposited by the appellant with the Registrar General, there shall be no further claim by India Bulls Housing Financial Service Limited against the appellant before us. It appears that a sum of Rs.11,39,000.00/- has already been deposited by the appellant with the Registrar General. The latter is directed to retain a sum of Rs. 10,80,10,100/- and to refund the balance sum to the appellant. The money to be retained by the Registrar General shall be kept in a short term fixed deposit subject to any order which may be passed by the Debt Recovery Tribunal.
It is clarified that India Bulls Housing Financial Service Limited, no longer has any right against the appellant before us. However, a lis between the appellant and the borrower may already be there or may be instituted in future as regards which we express no opinion.
Considering that we have left the matter to be decided by the Debt Recovery Tribunal, it will be open to Mr. Saha's client to approach the Debt Recovery Tribunal within four weeks from date. In the event an appropriate application is made before the Debt Recovery Tribunal within four weeks the matter shall be considered and disposed of in accordance with law without seeking to non-suit Mr. Saha's client on the ground of delay or limitation or any such ground. The Debt Recovery Tribunal is expected to give some precedence to this matter considering that the money is lying unproductive or at any rate underproductive for a very long time. In case Mr. Saha's client does not avail itself of the opportunity to move the Debt Recovery Tribunal it will be open to Mr. Mukherjee's client to apply for a direction upon Registrar General of this Court, to pay the money to him, upon notice to Mr. Saha's client after the period of four weeks. The District Magistrate shall not take any steps.
5The appeal is, thus, disposed of. Parties shall however bear their own costs.
(Girish Chandra Gupta, Chief Justice) (Arindam Sinha, J.) 6