Calcutta High Court
Alwaye Properties & Finance Limited vs Forum Projects P. Ltd on 24 September, 2013
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
ORDER SHEET
APOT NO.474 OF 2013
GA NO.2911 OF 2013
CS NO.137 OF 2010
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
ALWAYE PROPERTIES & FINANCE LIMITED
Versus
FORUM PROJECTS P. LTD
(SUNSUM PROPERTIES PVT. LTD. ) & ANR.
BEFORE:
The Hon'ble JUSTICE ASHIM KUMAR BANERJEE
The Hon'ble JUSTICE DR.MRINAL KANTI CHAUDHURI
Date : 24th September, 2013.
Mr.Anirban Ray, Advocate
Mr.Chayan Gupta, Advocate
Mr.S.K. Kundu, Advocate for the
appellant.
Mr.Dhruba Ghosh, Advocate
Mr.Aniruddha Mitra, Advocate
Mr.Ashok Kumar Basu, Advocate
Mr.Ajay Gaggar, Advocate for the
respondent.
The Court : By putting great emphasis and with all his eloquence Mr.Anirban Ray, learned Counsel appearing for the appellant, could bring home his points to the notice of the Court. Yet, the Court is unable to appreciate, possibly it is the Court's shortcoming. To the Court, the appeal is absolutely frivolous.
The parties are fighting a civil litigation, inter alia, on arrears of Corporation taxes. Earlier, there was a winding-up proceeding that was relegated to a civil suit. Now, the suit has come up for hearing. The learned single Judge by judgment and order dated June 19, 2013 appointed a Special Referee "to determine the said issue after hearing 2 the parties". The said issue was spelt out in the earlier sentence where His Lordship recorded, "there is a dispute with regard to payment of Corporation rates and taxes". Parties had no grievance. They submitted to the jurisdiction of the Special Referee. The Special Referee faced a difficulty while proceeding. She mentioned the matter before His Lordship on September 12, 2013 when His Lordship extended the time to submit the report. While doing so, His Lordship made a clarification. The order is quoted below :-
"There is no ambiguity in the order dated 19th June, 2013. The Special Referee was directed to consider all the documents and papers in order to decide the quantum of the Corporation rates and taxes in accordance with the agreement and the provisions of the Kolkata Municipal Corporation Act. The plaintiff has communicated this order almost after two months for reasons, which remain unexplained and not satisfactory. The time to file the report by the Special Referee is extended till 7th of November, 2013. The suit shall appear in the list on 12th November, 2013".
The appellant is aggrieved by the clarification. Mr.Ray would contend, he had no quarrel with the order dated June 19, 2013 as the learned Judge asked the Special Officer to determine the issue of payment of Corporation rates and taxes. However, she was not asked to decide on the quantum which His Lordship directed, in the guise of 3 clarification, by the judgment and order impugned. He further clarifies, the first one would include liability and quantum whereas the second one has relieved the Special Referee of the responsibility to fix the liability.
Mr.Ray would draw our attention to Section 75 of the Code of Civil Procedure, 1908 that would empower the civil court to issue commission under certain circumstance. We are unable to appreciate, how this would be relevant herein when the learned Judge appointed a Special Referee to decide the quantum of arrear Corporation taxes.
Mr.Ray would rely upon a decision of this Court in the case of J.C. Das Vs. Cachar Native Joint Stock Company Ltd. & Ors., reported in AIR 1926 Cal.1349. Paragraph 2 being relied upon is quoted below :-
"The claim against the auditor at whose instance this Rule was obtained was for a specific sum of some Rs.69,000, and before all this was established a reference was made by the Subordinate Judge to a Commissioner directing certain accounts to be taken preliminary to the hearing of the suit. The order in the form in which it had been made by the District Judge was admittedly too wide and an application with regard thereto was made before Mr. Justice Chakravarti and myself some time in November last. The actual question that now arises before us was not, so far as I recollect, raised at that time, the application being confined to the form and 4 extent of the order which had been made. It has now been brought to our notice that the order made by the Subordinate Judge involves the taking of certain accounts before any liability has been established against the present petitioner. We think that this, on the face of it, is not warranted by the nature of the suit notwithstanding the provisions of Order 26, Rule 11 to which we have been referred. We think the proper course for the Subordinate Judge is to try the suit in order to determine whether the petitioner is liable at all to the Company for the defalcation which has been alleged and we accordingly make the Rule absolute and we direct that the proceedings before the Commissioner shall be stayed and that the suit shall proceed in order that the liability of the various defendants to the Company may be determined if such liability in fact exists".
We categorically asked Mr.Ray whether he had any grievance against the order of June 19, 2013. He would say, the said order merged in the subsequent order. We are unable to agree with him. By the first order the learned Judge categorically observed, the Special Officer was to go into the accounts with regard to arrears that was perhaps not clear to the parties giving rise to a dispute before the Special Referee. His Lordship made it clear by the subsequent order. Questions as to who would be liable and to what extent, are left to be decided by the learned 5 Judge at the final hearing of the suit. The Special Referee cannot do so. The Special Referee is to take accounts to find out the extent of liability. We do not find any scope to interfere with the order.
The maintainability of the appeal is also in dispute. By the said order His Lordship merely extended the time to submit the report. His Lordship clarified the earlier order that was not appealed from. His Lordship fixed the suit on a subsequent date. No finality has arrived by the judgment and order impugned.
The appeal and application are dismissed, after treating the same as on day's list, without, however, any order as to costs.
(ASHIM KUMAR BANERJEE, J.) (DR.MRINAL KANTI CHAUDHURI, J.) sd/