Calcutta High Court (Appellete Side)
Jeebandeep Diagnostic Centre (P) Ltd. & ... vs The West Bengal Financial Corporation & ... on 16 November, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
1
16.11.2016
AJ. 6,
W.P. 20050(W) of 2016
Jeebandeep Diagnostic Centre (P) Ltd. & Anr.
-Vs-
The West Bengal Financial Corporation & Ors.
with
W.P. 6949(W) of 2016
Tarak Nath Mallick & Anr.
-Vs-
The West Bengal Financial Corporation & Ors.
Mr. Soumya Majumder,
Mr. Purnasish Roy.
.......for the petitioner
[in WP 20050(W)/16]
& respondent no.4
[in WP 6949(W) of 2016].
Mr. Soumak Bera.
......for the petitioners [in WP 6949(W)/16] & respondent no.4 [in WP 20050(W)/16].
Mr. Sanjay Bhattacharya.
........for the respondent no.1 [WBFC] in both the Writ Petitions.
By an order dated 10th November, 2016, this Bench directed that W.P. 20050(W) of 2016 shall be heard together with W.P. 6949(W) of 2016. In pursuance of such order, both the writ petitions have been listed for consideration and heard in the presence of learned advocates for the parties.
W.P. 6949(W) of 2016 is at the instance of one Tarak Nath Mallick (hereafter Mr. Mallick). In such writ petition, the private respondent is Jeebandeep Diagonostic Centre (P) Ltd. (hereafter Jeevandeep). In W.P. 20050(W) of 2016, the status of Mr. Mallick and Jeebandeep are reverse. The common official respondent in both the writ petitions is the West Bengal Financial Corporation (hereafter the 'WBFC').
Pursuant to a leave and licence agreement dated 27th April, 2011 executed by and between Mr. Mallick and Jeebandeep, the latter was put in 2 possession of a certain premises at Library Road, Post Office Medinipore, District Paschim Medinipur for starting a business of diagnostic centre. Jeebandeep, after being put in possession, had been running the diagnostic centre with equipments purchased upon obtaining loan from the WBFC. However, in due course of time, Jeebandeep defaulted in repayment of its dues to the WBFC. Recovery proceedings were initiated in terms of the provisions of the State Financial Corporation Act, 1951. Possession of the premises in question was taken by the WBFC. Since Jibandeep allegedly discontinued paying licence fees to Mr. Mallick, he approached the WBFC with a request to dispose of the equipments of Jeebandeep by sale or otherwise and to hand over vacant possession of the premises in question in his favour. Since the request was not accepted by the WBFC, W.P. 6949(W) of 2016 was presented before this Court on 11th April, 2016.
Upon hearing learned advocates representing Mr. Mallick and the WBFC, several orders were passed in pursuance whereof the equipments were removed and sold. It is recorded that for the purpose of removal of a machine, a particular wall had to be broken and it is not disputed by Mr. Bera, learned advocate for Mr. Mallick that the original position has since been restored. By an order dated 30th June, 2016, hearing of the writ petition of Mr. Mallick was adjourned for 'reporting developments, if any'. Mr. Bera now submits that since the equipments of Jeebandeep have been removed and sold by the WBFC and Jeebandeep has not been in possession of the equipments since 20th January, 2014, the WBFC may be directed to restore possession of the premises in question in favour of Mr. Mallick.
The relief claimed by Jeebandeep in its writ petition is that the WBFC may be commanded to hand over possession of the premises in favour of Jeebandeep.
Mr. Majumder, learned advocate for Jeebandeep, has contended that despite the WBFC having removed the machines belonging to Jeebandeep and sold the same, possession of the premises in question ought to be restored in favour of 3 Jeebandeep and not in favour of Mr. Mallick. According to him, the WBFC had lien on the equipments, not the premises, and Jeebandeep cannot be evicted therefrom except in accordance with law, meaning thereby a decree of a competent civil court.
This Bench, having heard learned advocates for the parties, is of the considered view that the WBFC indeed had a lien on the equipments which were procured by Jeebandeep with finance advanced by the former. With the removal and/or disposal of such equipments towards recovery of money owed by Jeebandeep to the WBFC, the latter cannot legally hold on to possession of the premises in question.
The issue that falls for an answer at this stage is, who between Mr. Mallick and Jeebandeep is entitled to restoration of possession of the premises in question.
In the further considered opinion of this Bench, the submission of Mr. Majumder appears to be sound. Notwithstanding alleged default committed by Jeebandeep in paying due licence fees and expiry of the agreement that was executed by and between Mr. Mallick and Jeebandedp, the former cannot seek any order from the writ court for being put in possession of the premises in question. The remedy of Mr. Mallick lies in instituting a civil suit for recovery of possession of the premises in question.
Jeebandeep having been dispossessed by the WBFC for the purpose of removal and sale of the equipments and such purpose having been achieved, possession of the premises in question must be restored in favour of Jeebandeep. Let such possession be restored by 30 days from the date of receipt of a copy of this order.
Liberty is reserved in favour of Mr. Mallick to institute a civil suit for recovery of possession, in accordance with law, if so advised.
The writ petitions stand disposed of.
4There shall be no order for costs.
Photocopy of this order, duly countersigned by Assistant Court Officer, shall be retained with the records of W.P. 20050(W) of 2016.
Urgent photostat certified copy of this Order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
( Dipankar Datta, J. )