Calcutta High Court
Jagannath Business Service Pvt. Ltd. & ... vs Ideal Real Estate Pvt. Ltd. & Ors on 2 September, 2009
APO No.72 of 2008
With
WP No.25 of 2008
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
In the matter of:
Jagannath Business Service Pvt. Ltd. & Anr.
Versus
Ideal Real Estate Pvt. Ltd. & Ors.
Before:
The Hon'ble Justice Banerjee
And
The Hon'ble Justice Kalidas Mukherjee
Date: 02.09.2009
Appearance:
Mr. Joy Saha Adv., Arindam Maitra Adv., Miss
Sutapa Sanyal Adv., for the appellants.
Mr. Sanjoy Bose, Mr. Pushan Kar Adv., for the
respondent no.1
Mr. Ashoke Kr. Dhandhania Adv., Mr. Amiya Kr.
Sur. Adv., for the West Bengal Financial Corporation.
The Court:- The appellants participated in a public auction held at the instance of West Bengal Infrastructure Development Corporation (WBIDC). The appellants paid 25% of the bid price after becoming successful in such auction and was put into possession on the expectation that they would clear off the balance amount. The dispute arose with regard to possession. The appellants contended that they should be given possession of the entire property, which they could not take in view of encroachments. The WBIDC insisted that the appellants must clear off the balance part. The WBIDC re-entered into possession dispossessing the appellants. The appellants filed 2 the writ petition being WP No.6567(W) of 2005 wherein the learned Single Judge put him back into possession. The appellants went to the Civil Court and filed a civil suit being title suit no.79 of 2004 and obtained order of status quo, which according to Mr. Saha appearing for the appellants, is still continuing. According to Mr. Saha, the suit is awaiting its disposal.
When the order of status quo was continuing West Bengal Financial Corporation came in picture. They issued a notice under Section 29 of the State Financial Corporation Act intending to re enter into possession as the appellants failed to discharge their liability towards WBFC. The notice under Section 29 was challenged by the appellants by filing a writ petition, being WP No.13606(W) of 2005. The learned Single Judge dismissed the said writ petition. The appellants filed an appeal, which was also dismissed. The Apex Court dismissed the Special Leave Petition filed by the appellants on February 8, 2008. Hence, the WBFC entered into possession after being armed with the Court order. They put up the property for sale again and sold it to the Ideal Real Estate Pvt. Ltd. the respondent no.1 above named.
Ideal Real Estate subsequently filed a writ petition being WP No.25 of 2008, as against WBFC, interalia, complaining that they were not completing the sale. The matter was ultimately 3 resolved. WBFC handed over possession to Ideal Real Estate and conveyance has been executed in their favour.
The appellants filed the present appeal on March 6, 2008 as against the order of the Learned Single Judge refusing to add them party to the writ petition filed by Ideal. The Learned Single Judge passed a judgement and order dated March 4, 2008 appearing at pages 112-122 of the paper book. On perusal of the judgement and order passed on March 4, 2008 we find that the learned Single Judge made certain observations as against the appellants and ultimately held that they did not have any right over the property in question which could give them opportunity to pray for addition of party in the writ petition filed by Ideal. The Learned Judge also observed that in view of dismissal of the Special Leave Petition the finding of this Court that the applicants having defaulted, their offer had obviously been withdrawn and there was nothing wrong in WBFC exercising their right under Section 29.
Being aggrieved by the said judgement and order, the appellants approached us in this appeal.
The writ petition being WP No.25 of 2008 was disposed of by the learned Single Judge on March 7, 2008 where His Lordship recorded that grievance raised in the writ petition had since been redressed nothing survived for a decision in the writ petition and as such the same stood disposed of. The appellants 4 preferred an appeal being APO No.128 of 2008. The Division Bench dismissed the said appeal on July 13, 2009. In this backdrop Mr. Saha appearing for the appellant strenuously contends, the present appeal should be disposed of by protecting the interest of the appellants. We have considered the rival contention made at the bar. We have considered the circumstances referred to above. We have carefully perused the judgement and order under appeal. We fully agree with Mr. Saha when he says that the observation made by His Lordship in the judgement and order impugned touches rights of the appellants. We however, feel that such right of the appellants need be protected if they are so entitled to in law. Judgement and order impugned herein, ultimately refused the prayer for addition in a writ petition which stood finally disposed of by a subsequent order. Hence, technically the order of rejection spent up its force as soon as the writ petition was finally disposed of, rather former has marged into the latter and appeal taken from the final order is also dismissed.
We are in doubt whether the appellants have any further right to be protected. Their civil suit is pending before the Court below. The appellant would be at liberty to pursue their remedy, if any, before the Court below. We only observe that 5 the observations made by the learned Judge in the order impugned was nothing but an appreciation of the earlier proceedings and the orders passed therein and nothing further.
The appeal is disposed accordingly without any order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Banerjee, J.) (Kalidas Mukherjee, J.) SP/