Calcutta High Court
Rukmini Properties Pvt.Ltd vs Mira Ghosh & Ors on 29 July, 2013
Author: Patherya
Bench: Patherya
ORDER SHEET
GA No. 1928 of 2013
Originating Summons Suit No. 3 of 2011
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
RUKMINI PROPERTIES PVT.LTD.
Versus
MIRA GHOSH & ORS.
BEFORE:
The Hon'ble JUSTICE PATHERYA
Date : 29th July, 2013.
Mr. Abhrajit Mitra,
Mr. Soumabha Ghosh,
Mr. Awani Kumar Roy,
Mr. Jishnu Chowdhury, Advs.
...for the petitioner
Mr. Moinak Bose,
Ms. H. Chakraborty,
Mr. Rajesh Upadhyay, Advs.
...for Haider Khan
The Court : This application has been filed for disposing of
O.S. 3 of 2011 on determination of issues. The questions called for
determination in originating summons suit no. 3 of 2011 is as follows :
"a) Whether in the circumstances as aforesaid the
respondent No. 1 can be presumed to have died ?
b) Whether in the circumstances as aforesaid, the respondent No. 1 can be presumed to have died intestate and without any next of kin in respect of the Municipal Premises No. 108, G.S. Sarani, Kolkata - 700 055 (previously known as Premises No. 43, Shyamnagar Road, Kolkata - 700 055) ?
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c) Whether in the circumstances as aforesaid, the petitioner can seek to redeem the mortgage created in respect of the Municipal Premises No. 108, G.S. Sarani, Kolkata - 700 055 (previously known as Premises No. 43, Shyamnagar Road, Kolkata - 700 055) by paying to the respondent No. 2 the sum of Rs. 12,000/- with interest thereon calculated @ 6% per annum on and from 25th April, 1961 ?
d) Whether such redemption of the mortgage created by the deed of 25th April, 1961 shall amount to a valid discharge of the mortgage deed and shall vest in the petitioner all rights that the respondent No. 1 had over and in respect of such mortgage including any right of foreclosure or sale of the mortgaged property ?
e) Direction upon the respondent No. 2 to release/discharge the mortgage of the Municipal Premises No. 108, G.S. Sarani, Kolkata - 700 055 (previously known as Premises No. 43, Shyamnagar Road, Kolkata - 700 055) by relinquishing all right whatsoever of the respondents over and in respect of the said premises upon accepting payment of a sum of Rs. 12,000/- and interest thereon @ 6% per annum on and from 25th April, 1961."
A publication was effected on 13th April, 2010 calling upon the legal heirs and representatives of one Mira Ghosh wife of Sudhir Kumar Ghosh and any persons interested with her estate to contact the advocate-on-record of the petitioner. In spite of such publication, none has appeared either before this Court or got in touch with the advocate-on- record of the petitioner. Therefore, question no. 6(a) is answered in the affirmative.
The applicants in G.A. 1314 of 2013 and G.A. 2002 of 2013 had informed the Court that the mortgagee had left behind her 3 daughter as sole legal representative. Accordingly, an attempt was made to serve notice on Mrs. Krishna Sen, the sole legal heir and representative of 32, Hazra Road, Calcutta. This day it has been informed by the plaintiff in the originating summons suit that courier service has returned with the endorsement "refused" while by speed post service has returned with "door locked and intimation served". Hand service was also returned. As this tantamounts to good service and none has appeared to represent Mrs. Mira Ghosh, question no. 6(b) is answered in the affirmative.
This therefore would entitle the plaintiff to redeem the mortgage created in terms of the mortgage, in respect whereof moneys have been deposited pursuant to order dated 10th May, 2013. Accordingly, question nos. 6(c) and 6(d) are answered in the affirmative.
In view of the aforesaid, the respondent no. 2 is directed to discharge the mortgage in respect of 108, G.S. Sarani, Kolkata - 700 055. The moneys covered by the mortgage has been deposited pursuant to order dated 10th May, 2013 with the Registrar, Original Side, High Court, Calcutta and persons entitled to such sums will be entitled to seek release of such sums in accordance with law.
This order is passed subject to the decision that may be taken by the Barasat Court in T.S. No. 179 of 2009. 4
It is made clear that the Barasat Court will be entitled to pass orders being uninfluenced in any way by the order passed this day.
In view of the aforesaid, originating summons suit no. 3 of 2011 is disposed of so also G.A. 1928 of 2013.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings.
(PATHERYA, J.) TR/