Calcutta High Court
Amitava Chatterjee vs West Bengal Financial Corporation & Ors on 29 April, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
GA No. 2970 of 2010
WP No. 502 of 2009
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
AMITAVA CHATTERJEE
Versus
WEST BENGAL FINANCIAL CORPORATION & ORS.
BEFORE:
The Hon'ble JUSTICE DIPANKAR DATTA
Date : 29th April, 2011.
Mr. Bimal Kr. Chatterjee, Sr. Adv.
Mr. Mrinal Kanti Chatterjee, Adv.
Ms. Samali Mukhopadhyay, Adv.
...for the writ petitioner
Mr. A.K. Dhandhania, Adv.
Mr. Gourab Basu, Adv.
...for WBFC
The Court : G.A. No. 2970 of 2010 is an application filed
by the West Bengal Financial Corporation and its officers, who were
respondents in W.P. No. 502 of 2009, for review of the order dated 3rd
August, 2010. By that order, the said writ petition was allowed by granting order in terms of prayer (a) thereof. Prayer (a) of the petition is set out hereinbelow :
"a) A writ of and/or a writ in the nature of Mandamus commanding the respondents and each of them, their men, agents and subordinates to forthwith execute and register the conveyance in favour of the petitioner in respect of the land measuring about 1.79½ acres situate and lying being R.S. Plot Nos 419 and 420, 2 R.S. Khatian No. 47, J.L. No. 104, Mouza Tiakati, P.S. English Bazar, District Malda, at the factory site of M/s. Alo Rerolling Mill (Pvt) Ltd."
It appears from the order dated 3rd August, 2010 that the Corporation and its officers despite being granted several opportunities to file affidavit-in-opposition to the writ petition had failed to do so. Lastly, on 6th April, 2010, time was granted to file affidavit-in-opposition within two weeks subject to payment of costs of 60 Gms. to the petitioner. It is further recorded that on the date the writ petition was finally disposed of, Mr. Basu, learned advocate representing the Corporation and its officers submitted that the file in question could not be traced and hence instructions could not be provided to draw the counter-affidavit. He had also prayed for further time which was refused and the writ petition was allowed on application of the doctrine of non traverse. It was also noted by the Court that in terms of a previous order of this Court dated 8th March, 2000, the writ petitioner had made payment in full for which he was entitled to order as prayed for.
In this review application, the applicants have urged that the relevant file could be traced after the writ petition was disposed of and from the documents that are now available, it is clear that there was no agreement between the writ petitioner and the Corporation in respect of sale of 1.79½ acres of land. Mr. Dhandhania, learned advocate for the applicants by referring to the agreement for sale between the writ petitioner and the Corporation dated 10th August, 1998, being annexure 'H' to the 3 review application, contends that the parties had agreed to sale of only 0.79½ acres of land and, therefore, the writ petitioner was not entitled in law to claim rights in respect of 1.79½ acres of land.
Mr. Chatterjee, learned senior advocate appearing for the writ petitioner at the outset submits that the review application is not maintainable inasmuch as no ground for review of the order dated 3rd August, 2010 has been made out.
Mr. Chatterjee also argues that the agreement between the Corporation and the writ petitioner was in respect of sale of fixed assets of Alo Re-rolling Mill, which comprised of the assets of Uttar Banga Plastics and M/s. Mayabharati Stone Works. While the landed property of Uttar Banga Plastics was to the extent of 0.79½ acres, M/s. Mayabharati Stone Works was the owner of 1 acre of land, which was taken over by the Corporation on the default of the concerned loanee and therefore, in all, the landed property of Alo Re-rolling Mill being 1.79½ acres, the Corporation with full knowledge thereof had agreed to sell the same and its other assets in favour of the writ petitioner. However, it was inadvertently not noticed by the writ petitioner that the agreement for sale had been executed only in respect of 0.79½ acres. He submits that the action of the Corporation, being a statutory authority is absolutely unfair, unjust and oppressive and its plea ought not to be entertained by this Court. 4
I have heard the parties and perused the materials on record. As has been noticed above, the order dated 3rd August, 2010 was passed at a point of time when the Corporation and its officers could not trace the relevant file and as such were unable to bring on record relevant facts relating to the sale transaction in question. Now the file has been traced and materials which hithertobefore were unavailable have been placed for consideration of the Court, urging it to come to a correct conclusion in respect of the agreement between the parties. The agreement for sale entered into by and between the Corporation and the writ petitioner, which is decisive, clearly mentions in the schedule that the agreement was in respect of sale of 0.79½ acres of land. The terms are binding on both the parties. That being the position, the writ petitioner could not have asked for execution of a Deed of Conveyance in respect of 1.79½ acres of land. That apart, whether there has been a mistake of fact having the effect of vitiating the contract between the parties is also to be looked into.
In my opinion, the Corporation and its officers have made out sufficient cause for review of the order dated 3rd August, 2010. The said order, accordingly, stands recalled on review. The writ petition is restored to its original file and number.
The review application being G.A. No. 2970 of 2010 stands allowed. However, the Corporation and its officers shall bear costs of 5 proceedings assessed at Rs. 10,000/-, to be paid to the writ petitioner within a fortnight from date.
Needless to observe, the writ petition shall be decided without being influenced by any of the findings recorded hereinabove.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(DIPANKAR DATTA, J.) TR/