Calcutta High Court (Appellete Side)
Amitava Shit vs Bablu Kundu on 29 November, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Present: The Hon'ble Mr. Justice Tarun Kumar Gupta C. O No.835 of 2011 Amitava Shit Versus Bablu Kundu For the petitioner : Mr. P. P. Roy Mr. Soumik Ganguly For the O. P. : Mr. Hiranmoy Bhattacharyya Judgement on: 29th November, 2013 Tarun Kumar Gupta, J.:-
The pre-emptee has filed this application under Article 227 of the Constitution of India challenging order No.12 dated 24th of January, 2011 passed by learned Civil Judge (Junior Division), 1st Court at Bankura in Misc. Case No.15 of 2009.
The O. P. filed said pre-emption case under Section 8 of the West Bengal Land Reforms Act, 1955 (hereafter to be referred as the Act of 1955) praying for pre-emption. The sale of the suit property in favour of the present petitioner pre-emptee by his vendors through a sale deed dated 7th July, 2009 was the subject matter of said pre-emption case. As per recitals of said kobala dated 7th July, 2009 the consideration amount was Rs.12 lakhs. However, the O. P. pre-emptor filed said pre-emption case by depositing only Rs.1, 10,000/- alleging that actual consideration passed between the parties was Rs.1 lakhs and that remaining Rs.10,000/-
was the 10 per cent thereof in terms of Section 8 of the Act of 1955.
The pre-emptee filed one application under Section 9(1) of the Act of 1955 alleging that actual consideration money passed in said sale was Rs.12 lakhs as disclosed in the deed and that he had also to pay a sum of Rs.2, 27,706/- towards stamp duty and that the pre-emptor should have filed Rs.14,27,706/- together with 10 per cent thereof totaling Rs.15,47,706/- for getting an order of pre-emption. It was further claimed in said application that the pre-emptor should be asked to file the balance amount namely 14,37,706/- in the court before proceeding with the pre-emption case. The O. P. pre-emptor filed a written objection thereof. After contested hearing learned trial court rejected said application under Section 9 (1) of the Act of 1955 by the order impugned dated 24th of January, 2011. Hence is this revisional application.
Mr. Partha Pratim Roy appearing for the petitioner pre-emptee submits that there is no specific provision either in Section 8 or in Section 9 of the Act of 1955 that the pre-emptor had any right to deposit an amount other than the amount shown as the consideration money in the deed of transfer together with a further sum of 10 per cent of that amount or any enquiry to be undertaken by the court at the instance of the pre-emptor for ascertaining the actual amount of consideration money. According to him, the pre-emptee had the right to prove consideration money paid for the transfer and other sums, if any, paid by him in connection with said transfer and that munsif may conduct such enquiry as he considers necessary as to ascertain the total amount involved in the transfer and to direct the pre-emptor to deposit the balance amount, if any, plus 10 per cent thereof. He, however, admits that on the strength of some case laws now the pre-emptor can raise a dispute as to the actual amount of consideration money passed in the transaction and that on raising said dispute the court has to make an enquiry to ascertain the same and to direct for further deposit, if any, in terms of said enquiry. But according to Mr. Roy said further deposit should have been made before proceeding with the main case praying for pre-emption to avoid filing of frivolous and test cases by the pre-emptor causing unnecessary harassment to a purchaser who purchased the property by paying consideration money. Accordingly Mr. Roy submits that the order impugned rejecting the application under Section 9(1) of the Act of 1955 wherein petitioner pre-emptee prayed for directing the pre-emptor to deposit the balance amount after necessary enquiry before proceeding with the main case under Section 8 of the Act of 1955 is not sustainable in law. In support of his contention he refers a case law reported in 2013 (2) CHN (CAL) 453 (Susanta Jadav vs. Rupchand Dhar).
Mr. Hiranmoy Bhattacharyya appearing for O. P. pre-emptor, on the other hand, submits that in order to frustrate the right of pre- emptionas granted under Section 8 of the Act of 1955 it was a usual practice to show an inflated consideration money in the deed of transfer. According to him, if an eligible pre-emptor is required to deposit even the inflated consideration money as shown in the deed of transfer together with 10 per cent thereof then in many cases an eligible pre- emptor will not be able to exercise his right even though he was otherwise eligible for exercising said right. According to Mr. Bhattacharyya, this dispute was set at rest by the Division Bench judgment of this court as reported in 98 CWN 758 (Sahid Ali vs. Sk. Abdul Kasem) wherein it was held that a pre-emptor has also right to raise a dispute as to the actual amount of consideration money passed in the transaction and that on raising said plea the court should permit the pre-emptor to proceed with the case by depositing the amount admitted by him to be the consideration money together with 10 per cent and to deposit further sum, if any, if it is found due in the enquiry as envisaged under Section 9 of the Act of 1955. According to Mr. Bhattacharyya said Division Bench judgment was relied on in subsequent judgments also. In this connection he refers a case law reported in 1998 CWN 534 (Angur Bala Maity vs. Kalobala Roy and another.
He next submits that learned trial court rightly held that the enquiry as to the actual amount of consideration money passed between the parties of the transaction should be ascertained along with the hearing of the case and that there is no need to make a separate enquiry on that score staying the pre-emption case. Accordingly he prays for rejection of this revisional application.
The issue as to whether the pre-emptor has a right to raise a dispute as to the actual amount of consideration money passed in the transaction in question and whether he can be permitted to proceed with the pre- emption case by depositing the amount admitted by him to be the consideration money together with 10 per cent thereof is no longer res integra. It was held in the Division Bench judgment of Sahid Ali (supra) that non-deposit of consideration money mentioned in the impugned deed along with application for pre-emption was not vital and that in view of said dispute raised at the instance of the pre-emptor the court has to make an enquiry and to direct for deposit of balance amount, if any, before passing the order of pre-emption, if any. Even in the case of Susanta Jadav (supra) as referred by Mr. Roy said proposition of law as laid down in the Division Bench judgment of Sahid Ali (supra) was not disputed.
The only point in issue in this case is whether the enquiry for ascertaining the actual amount of money to be deposited by the pre- emptor should be held keeping the main pre-emption proceeding in abeyance or the enquiry should proceed simultaneously with the case of pre-emption.
Admittedly said enquiry for ascertaining the actual amount of consideration passed in the transaction and the actual amount to be deposited by the pre-emptor for claiming pre-emption is a matter requiring detailed enquiry. Evidence is also required to be taken and marshalled on that score. If main case of pre-emption under Section 8 of the Act of 1955 is stayed for making said enquiry then it will cause unnecessary delay in disposal of the pre-emption case. This will also lead to multiplicity of stages in the same case. Both for the purpose of enquiry for ascertaining the actual amount to be deposited by the pre- emptor for claiming pre-emption and for ascertaining the right of pre- emption, if any, evidence is required to be led by the parties. If said enquiry and the case of pre-emption are taken up together then the period of litigation and the stages of litigation can be shortened to a great extent thereby relieving the overburdened courts.
Now the question is whether this procedure will encourage persons having no right whatsoever to file a case of pre-emption by depositing imaginary small amount as consideration money for harassing the pre-emptee, a bona fide purchaser for value. There is no doubt that some test cases as well as bogus cases may be filed if the courts adopt the procedure as suggested above. But a court of law has powers inherent to it even without referring to Section 151 of the Code of Civil Procedure to do justice. If at the conclusion of the trial it is found that the pre-emptor had no basis of right for claiming pre-emption or that abnormally short deposit was made then the court has a right to award exemplary cost against the pre-emptor. If required, the same may be recovered from the money already deposited by the pre-emptor in the court at the time of filing of the case.
Accordingly, I am of the opinion that the order impugned does not call for any interference.
This revisional application is hereby dismissed on contest but without costs.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)