Calcutta High Court
Bmw Industries Limited vs Bank Of India & Anr on 24 November, 2008
Author: Patherya
Bench: Patherya
GA No. 3733 of 2008
CS No.241 of 2008
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
BMW INDUSTRIES LIMITED Plaintiff/Petitioner/Applicant
Versus
BANK OF INDIA & ANR. Defendant/Respondent
For Plaintiff/Petitioner : Mr.Abhrajit Mitra with Mr.Jishnu Chowdhury BEFORE:
The Hon'ble JUSTICE PATHERYA Date : 24th November, 2008.
The Court : In a suit for cancellation of notice dated 17th November, 2008 and for perpetual injunction restraining the defendant no.1 from invoking the bank guarantee furnished in August, 2008 this interim application for interim reliefs has been filed.
The case of the petitioner is that the defendant no.2 is a sick company under the Sick Industrial Companies (Special Provisions) Act, 1985. Pursuant to orders passed by the Board for Industrial and Financial Reconstruction (BIFR) an advertisement was effected for sale of block no.3, third floor, ABC White House, Park Street, Kolkata along with the four covered parking slots in the basement. The petitioner was the successful bidder for a sum of Rs.9.50 crores. The said sum was to be paid by instalments. A bank guarantee was given for the purchase price minus 2% earnest money deposited. Subsequently the petitioner came to know that the respondent no.2 was not the owner or a tenant in respect of the said premises sold, in fact it was a lessee and such lease had expired and proceedings initiated. Although it was represented to the petitioner that a compromise had been reached it has now come to light that only a compromise petition has been filed before the City Civil Court, Calcutta. The petitioner is ready and willing to honour its commitment by making payments provided it is assured of title in the said premises. The 2 petitioner on 19th November, 2008 received a letter dated 17th November, 2008 whereby it has been asked to repay the balance sum. In default whereof the transaction will stand cancelled and sums paid forfeited. Hence the instant application has been filed and orders sought.
No notice of this application has been served on the respondents as the petitioner apprehends that on receipt of notice steps will be taken to invoke the bank guarantee and encash the same as such bank guarantee is lying with the respondent no.2.
Having considered the facts of the case and the respondent no.2 having no title or right in the said property sold, as an eviction proceedings has been initiated against the respondent no.2 it will be impossible for the petitioner to get title or possession in respect of the said premises. Possession, if any, may be only a paper possession and nothing more. As no compromise has been reached between the landlord and the respondent no.2 and only a compromise petition filed, the respondent no.2 is restrained from invoking the bank guarantee furnished and forfeiting the sums paid till 4th December, 2008.
Matter to appear in the list on 1st December, 2008. The respondents will be at liberty to seek variation and/or vacating of the order passed this day.
The petitioner is directed to communicate this order and effect service on the respondents.
All parties concerned are to act on a xerox signed copy of this order on the usual undertakings.
( PATHERYA, J. ) pa