Calcutta High Court (Appellete Side)
Austin Distributors (P) Ltd vs Sri Sri Iswar Ganesh Chandra Jiu & Ors on 3 December, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
03.12.19
S.A 98 of 2011
+
CAN 5033 of 2014
Austin Distributors (P) Ltd.
Vs.
Sri Sri Iswar Ganesh Chandra Jiu & Ors.
For the appellant: Mr. Aniruddha Chatterjee, Adv.,
Mr. Supratim Laha, Adv.
For the respondents: Mr. Surajit Nath Mitra, Sr. Adv.,
Mr. Aniruddha Roy, Adv., Mrs. Arundhuti Mukherjee, Adv., Mr. Suman Dutta, Adv., Mr. Sankarsan Sarkar, Adv.
1. Today is fixed for consideration of supplementary affidavits filed on behalf of the plaintiffs/respondents /opposite parties on 6th August, 2018 and 2nd July, 2019 and affidavit-in-opposition filed by the appellant to the first supplementary affidavit dated 6th July, 2018.
2. Before dealing with the respective contention of the parties as canvassed in the above mentioned supplementary affidavits as well as in affidavit-in- opposition, it is necessary to mention at the outset that the appellant had suffered a decree in a suit for eviction on the grounds of default in payment of rent and building and rebuilding in a suit for eviction. The judgment and 2 decree of the said suit for eviction was affirmed by the First Appellate Court.
3. S.A 98 of 2011 is the second appeal against the judgment and decree of affirmation passed by the learned lower appellate court which was admitted on formulation of certain substantial questions of law vide order dated 29th April, 2011.
4. After admission of the appeal by the Division Bench of this Court an application being CAN 2548 of 2011 filed by the appellant was taken up for hearing and an interim order of stay was passed which is quoted below:-
"There shall be stay of all further proceedings in ejectment execution case No.9 of 2009 pending before the learned Civil Judge (Junior Division), Additional Court at Sealdah, South 24 parganas during the pendency of this application for stay.
However, we clarify that the pendency of this appeal shall not prevent the learned trial judge from proceeding with the mesne profits proceedings, but he shall not pass the final order without the leave of this court."
5. The above mentioned application for stay came up for final hearing before a Coordinate Bench of this Court on 12th April, 2012. This court disposed of the said application for stay by extending the stay order of stay of all further proceedings in Ejectment Case No.9 of 2009 3 pending before the learned Civil Judge (Junior Division), Additional Court at Sealdah, South 24 Parganas, till the disposal of the appeal or until further orders, whichever is earlier, subject to the following conditions:-
"1) The appellant shall deposit the arrear occupation charges for the period February 2011 till March 2012 before the aforesaid learned Execution Court @ Rs.4,00,000/- per month by 12 equal monthly instalments. Such deposits shall be made within the last date of each month till the entire arrear is liquidated and the first of such deposits shall be made by 31st May, 2012.
2) The appellant shall deposit the current occupation charges @ Rs.4,00,000/- per month before the aforesaid learned Executing Court concerned by the seventh of each month succeeding the month for which it becomes due and the 1st of such deposits shall be made by the appellants, as aforesaid by 7th May, 2012 for the month of April, 2012 and thereafter the appellant shall go on making such deposits by the seventh of each month succeeding the month for which it becomes due, as aforesaid, till the disposal of the appeal or until further orders whichever is earlier.
3) The appellant shall deposit the decretal costs, if any, before the aforesaid learned Executing Court concerned within four weeks from this date.
4) The appellant shall prepare the requisite number of paper books out of Court and file the same in the 4 Department concerned within four weeks from the date of receipt of notice of arrival of the lower Courts records."
6. The appellant preferred Special Leave Petition (Civil) No.14865 of 2012 against the above mentioned order passed by a Coordinate Bench of this Court on 12th April, 2012. The said SLP (C) No.14865 of 2012 was admitted by the Hon'ble Supreme Court and it was registered as Civil Appeal No.7560 of 2012. The Hon'ble Supreme Court disposed of the said Civil Appeal by passing the following order:-
"Having heard learned counsel for the parties at some length, we are of the view that the order passed by the High Court does not require any interference by us except to the extent that instead of depositing Rs.4,00,000/- p.m. before the Executing Court, the tenant-petitioner in SLP (C) No.14865 of 2012 shall deposit compensation @ Rs.2,00,000/- p.m. for the period commencing from 01.02.2011 till the final disposal of the appeal by the High Court and furnish bank guarantee for the balance amount of Rs.2,00,000/- to the satisfaction of the Registrar General of the High Court.
The deposit of arrears and bank guarantee for the period commencing from 01.02.2011 upto 30.10.2012 shall be made and furnished within three months from today. Current deposit @ Rs.2,00,000/- p.m. shall be made by the 15th of every succeeding calendar month. The Bank 5 guarantee for the balance amount of Rs.2,00,000/- for the current period may be provided on a six monthly basis. The Registrar General of the High Court shall invest the amount so deposited in a term deposit in a National Bank to ensure for the benefit of the successful party subject to the final orders that the High Court may pass in the matter.
The appeal are disposed of with the above modification. The High Court is requested to expedite the disposal of the appeal."
7. Subsequently on the basis of another application being IA No.3 in Civil Appeal No.7560, the Hon'ble Supreme Court was pleased to extend the time to make deposits and furnish bank guarantees subject to the condition that in case the needful is not done in terms of the order mentioned above within the time granted, the interim order granted by the High Court staying the execution of the eviction decree against the petition company shall stand vacated automatically.
8. All these facts are borne out of the record being annexure supplementary affidavit filed on behalf of the respondents on 6th August, 2018.
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9. From the affidavit-in-opposition filed by the appellant to the supplementary affidavit filed by the respondents, it is ascertained that even during the period when the appeal stood dismissed for default, the appellant went on depositing bank guarantees in favour of the learned Registrar General, High Court at Calcutta who deposited the same in short term fixed deposit as per order passed by the Hon'ble Supreme Court. From annexure A to the said affidavit-in-opposition it is found that the last bank guarantee was deposited on 21st December, 2017. Therefore the next bank guarantee fell due after six months of the date of depositing the last bank guarantee. Thus, the appellant was under obligation to deposit bank guarantee sometimes in the month of June, 2018. On 18th May, 2018, the Assistant General Manager, United Bank of India, Royal Exchange Branch issued a letter to the director of the appellant company requiring, inter alia, bank details of the beneficiary like bank name and IFSC code to process the bank guarantee in CBS system and to enable the beneficiary to get the information regarding the issuance of bank guarantee through his bank. Therefore, the appellant was requested to provide IFSC code of the Registrar General of the High Court at Calcutta for issuance of bank guarantee in his favour. The appellant company immediately issued letters dated 18th May, 2018 and 24th August, 2018, but the IFSC code was not provided by the Registrar General of the 7 High Court at Calcutta to facilitate the appellant to deposit bank guarantee in favour of him in compliance of the order of the Hon'ble Supreme Court. Though no communication was made from the end of the Registrar General, High Court at Calcutta, it appears from a letter address to the Branch Manager, United Bank of India, Royal Exchange Branch dated 12th September, 2018 that the learned Registrar General, High Court at Calcutta was unable to provide IFSC code of t he bank as he is not the beneficiary in respect of the said bank guarantees. The United Bank of India by a letter dated 15th November, 2018 sent a letter to the learned Advocate for the appellant stating, inter alia, that issuance of bank guarantee without IFSC code of the beneficiary violates bank guidelines and directions of the Ministry of Finance, Government of India. So, the bank expressed inability to issue bank guarantee in favour of the Registrar General, High Court at Calcutta.
10. Mr. Aniruddha Chatterjee, learned Advocate for the appellant submits that second appeal was dismissed for default on 25th April, 2014. The appellant immediately within the period of limitation filed an application being CAN 5033 of 2014 for recalling of the said order and readmission of the appeal. However, the said application was allowed only on 20th November, 2019. During the period when the appeal was dismissed for default and not 8 restored and readmitted for hearing, the appellant went on depositing bank guarantee in the name of the learned Registrar General, High Court at Calcutta in compliance of the order of the Hon'ble Supreme Court. This specific act on the part of the appellant shows it's bona fide. Even when the appeal was not in file, regular payment was made both in respect of current and arrear occupational charges as per direction of the Hon'ble Supreme Court. Now the appeal being restored and the appellant having been complied with the conditions imposed by the Hon'ble Supreme Court for continuation of the order of stay of all further proceedings in Ejectment Case No.9 of 2009 pending before the learned Civil Judge (Junior Division) Additional Court at Sealdah till the disposal of the instant appeal be reimposed.
11. By referring to a decision of this Court in the case of Baidyanath Mukherjee vs. State of West Bengal reported in 1982(2) CLJ 134, it is submitted by Mr. Chatterjee that there is no bar nor is this court bereft of jurisdiction in issuing of fresh interim order. If the court finds that such an interim order is imperative and necessary in aid of doing or rendering justice for the redress which has been asked for. I have carefully gone through the above mentioned report. The above observation of the Hon'ble High Court which is relied upon by Mr. Chatterjee was made while deciding a question 9 whether an interim order dies its natural death or not in view of the provisions of Article 226(3) of the Constitution. It is submitted by Mr. Chatterjee that on restoration of the appeal and in view of the fact that the appellant along with has complied with the conditions for granting stay, the interim order of stay should be reimposed.
12. Mr. Surajitnath Mitra, learned Senior Counsel on behalf of the respondent submits that Order XLI Rule 5 of the Code of Civil Procedure contains the power of the appellate court on grant of stay of execution of decree appealed against for sufficient cause to be recorded in the order. Sub-rule 3(b) of Rule (5) of Order XLI provides that no order for stay of execution shall be made under Rule (5) unless the court making it is satisfied that the application has been made without unreasonable delay. In the instant proceeding the appellant has not filed any fresh application for stay after the appeal was readmitted for execution of the decree. Without such specific application under Order 41 Rule 5(3)(b) of the Code of Civil Procedure, no order can be passed granting stay of execution of the decree appealed against.
13. Mr. Mitra next draws my attention to the second supplementary affidavit filed on behalf of the respondents and submits that in Civil Appeal No.7560 of 2016 the appellants preferred an intervening application seeking direction upon the Registrar General, High Court at 10 Calcutta to forthwith provide the appellants/petitioners with its IFSC Code to enable the United Bank of India to issue a bank guarantee in favour of the Registrar General, High Court at Calcutta and also for declaration that the appellants/petitioners are not in violation of the order dated 15th October, 2012. The said application was dismissed by the Hon'ble Supreme Court holding, inter alia, that it was "misconceived one".
14. According to Mr. Mitra, learned Senior Counsel on behalf of the respondents in view of the above order passed by the Hon'ble Supreme Court on 7th May, 2019, this Court cannot pass any order with regard to stay of execution proceeding of the impugned decree. It is further submitted that this Court also cannot treat the bank guarantees deposited by the appellant in favour of the respondent as in due compliance of the order passed by the Hon'ble Supreme Court. This Court also cannot extend time directing the appellant/petitioner to deposit bank guarantee after a lapse of the stipulated period of time fixed by the Hon'ble Supreme Court. Therefore, the prayer made on behalf of the appellant cannot be entertained. In order to substantiate his argument on the point of requirement of an application for stay to be filed by the appellant after the appeal is readmitted, Mr. Mitra relies upon a decision of the Hon'ble Supreme Court in 11 Samarias Trading Company Pvt. Ltd vs. S. Samual and Ors reported in (1984) 4 SCC 666.
15. In Vareed Jacob vs. Sosamma Geenvarghese and Ors reported in AIR 2004 SC 3992 the question as to whether on restoration of a suit which was dismissed for default of interim orders prevalent before such dismissal revives or not, came up for consideration. Majority decision of Vareed Jacob is that when the suit is restored, all interlocutory orders and their operation during the period between the dismissal of the suit for default and restoration stand revived. Paragraph 19 and 20 of the said report are relevant for our purpose:-
"19. In the case of Nandipati Ram Reddi v. Nandipati Padma Reddy (supra), it has been held by the Division Bench of the Andhra Pradesh High Court that when the suit is restored, all interlocutory orders and their operation during the period between the dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated, when the Court dismissed the suit for default. Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes the operation of interlocutory orders passed during the period between the dismissal of the suit and the restoration.
In the case of Nancy John Lyndon v. Prabhati Lal Chowdhury reported in MANU/SC/0539/1987: 1987(4) 12 SCC 78, it has been held that in view of Order 21, Rule 57, Code of Civil Procedure. It is clear that with the dismissal of the tide (title?) execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. We repeat that this judgment was under Order 21, Rule 57 whose scheme is similar to Order 21, Rule 57 whose scheme is similar to Order 38, Rule 11 and Rule 11-A, Code of Civil Procedure and therefore, we cannot put all interlocutory orders on the same basis."
16. Of course minority view of the said judgment differs from the majority view, but this Court must follow the majority ratio of the Hon'ble Supreme Court in Varred Jacob (supra) that speaks of revival of interim order upon restoration of the suit.
17. Following the majority ratio, this Court in Aparna Ghosh vs. Chitra Hore reported in 2015 (1) CHN Cal 221 has followed the same principle.
18. In view of the established legal position, this Court has no hesitation to hold that with restoration of the instant appeal, the order of stay which was passed by this Court vide order dated 12th April, 2012 and subsequently modified by the order of the Hon'ble Supreme Court on 15th October, 2012 in Civil Appeal No.7560 of 2012 is revived. Now comes the question as to whether under peculiar facts and circumstances, this Court can extend 13 time for depositing bank guarantee in the name of the Registrar General, High Court Calcutta after fulfilling the requirement of the United Bank of India, Royal Exchange Branch. The United Bank of India, Royal Exchange Branch informed the appellant/petitioner that as per the government guideline issued by the Finance Department, Government of India, IFSC Code is absolutely necessary for keeping a bank guarantee in fixed deposit. The learned Registrar General refused to supply the IFSC Code of the Bank where he keeps the said bank guarantees in fixed deposit on the ground that the Registrar General is not the beneficiary in respect of the said bank guarantees.
19. On careful perusal of the order of stay dated 12th April, 2012 and the order of the Hon'ble Supreme Court dated 15th October, 2012 it is ascertained that the appellant was directed to submit bank guarantee on half yearly basis in the name of the Registrar General, High Court Calcutta towards arrear occupation charges. The Registrar General, High Court Calcutta was directed to keep the said amount in a nationalised bank in small term fixed deposit. The purport of the order clearly suggests that the Registrar General is maintaining the fixed deposits in question as a trustee of the respondent- beneficiary. Therefore, the Registrar General can always supply the IFSC Code of the bank where the fixed deposits are being maintained because of the failure to comply with 14 the guidelines issued by the Ministry of Finance, the appellant in spite of tendering the money cannot get the bank guarantee executed by the bank for want of IFSC Code of the Bank Account maintained in the name of the Registrar General, High Court Calcutta. In my considered view this is an instance of putting a bona fide litigant complying with the solemn orders of the High Court and the Hon'ble Supreme Court in great trouble.
20. For the reasons stated above, interim order of stay which was enforced before dismissal of the appeal be revived.
21. The Registrar General, High Court Calcutta is directed to supply the IFSC Code to the learned Advocate for the appellant within seven days from the date of this order so that the appellant can get the bank guarantees executed in his name with the bank in compliance of the order of stay of execution of the impugned decree.
(Bibek Chaudhuri, J.)