Nishan Developers & Properties Ltd. Vs. Commissioner Sanchaita Investments
EmailAppeal: Civil Misc. Petition No. 23325 of 1988.
IN
Special Leave Petition (C) No. 4372 of 1988
(With CMP No. 22210 of 1988)
IN
Special Leave Petition (C) No. 4372 of 1988
(With CMP No. 22210 of 1988)
Petitioner: Nishan Developers & Properties Ltd.
Respondent: Commissioner Sanchaita Investments
Apeal: Civil Misc. Petition No. 23325 of 1988.
IN
Special Leave Petition (C) No. 4372 of 1988
(With CMP No. 22210 of 1988)
IN
Special Leave Petition (C) No. 4372 of 1988
(With CMP No. 22210 of 1988)
Judges: RANGANATH MISRA & M.N.VENKATACHALIAH, JJ.
Date of Judgment: Sep 28, 1988
Appearances:
Mr. K.R. Nambiar, Mr. A.K. Srivastava, Mr.H.K. Puri, Mr. S.K. Bhattacharya, Mr. C.V.. Rappal, Advocates for the parties.
Head Note:
PRACTICE AND PROCEDURE
Settlement – Scheme evolved by the Court – Protection of interest of small depositors – Order of the Court recalled – Application for acceptance of settlement to be considered by the nominated Bench of Calcutta High Court.
JUDGEMENT:
O R D E R
1. On 4.8.1988, this Court on the application made by Nishan Developers Properties Private Limited (hereafter ‘Nishan’ for short) and Sanchaita Commissioner and upon hearing Mr. Gobind Mukhoty for the small depositors made the following order:-
“Heard learned counsel for the petitioner/proposed purchaser. Mr. Gobind Mukhoty is for the small depositors and Mr. H.K. Puri appears for the Commissioner. We have also perused the terms contained in Schedule-A which are the terms of the settlement. We are of the view that the arrangement is in the interest of the depositors and would benefit his State. According the proposal is accepted and the Commissioner is permitted to sell the property strictly in accordance with the terms contained in Schedule-A. We are told that an amount of Rs.2,62,500/- is paid and the balance of Rs.7,87,500/- is undertaken to be paid within six months from the date of settlement. On failure of payment as stipulated the arrangement shall be withdrawn and the money already deposited shall stand forfeited.”
2. The present application is by two small depositors and they have asked for recalling the order on the allegations that :
(i) there were pre-existing directions of the nominated Bench of the Calcutta High Court asking the Commissioner to put the property to public auction;
(ii) there was a pre-existing offer of Rs.20 lakhs for the property from one Narayan Karmakar;
(iii) by the time the matter was placed before this Court on 4th of August, 1988, there was also an application before the nominated Bench fixed for the same day wherein an application for injunction against the alienation which by the impugned order has been sanctioned had been prayed for; and
(iv) the effect of the order of the nominated Bench of the Calcutta High Court in regard to the Kaikhali property had not been properly indicated in the application made to this Court.
3. This Court evolved a scheme in the Sanchaita matter with a view to protecting the interest of the small depositors. The scheme contemplated the appointment of a Commissioner, an advisory Committee and a nominated Bench of the Calcutta High Court. Wide powers were vested in the Commissioner with a view to gathering the assets of Sanchaita and converting the same into liquid money to pay up the small depositors to the whole extent of their dues, if possible.
4. After Special Leave Petition 4372 of 1982 was dismissed possibly the petition for compromise could even have been moved before the nominated Bench itself. When the application registered as CMP No. 22210 of 1988 was placed before this Court, we were not aware of the fact that an offer for Rs.20 lakhs for the property in question had already been made to the Commissioner; nor were we told that there had been pre-existing directions of the nominated Bench that the property could be sold by public auction. We accepted the representation contained in paragraph 8 of Schedule-A of the compromise petition to the following effect:-
“It is ordered and declared by the Hon’ble Special Division Bench of the Calcutta High Court that appellant company is the absolute owner of the properties in question situated and lying at Mouza Mondalgathi, J.L.No. 6 R.S. Dag Nos. 247, 478, 479, 480, 248, 471, Khatian (C.S.) No. 279, 280, 247, 235, 171 measuring 2.64 acre of land on V.I.P. Road Police Station Rajarhat in the District of 24-Parganas (North) under Sub- Registry Office, Bidnannagar.”
When the order is now placed, we do not find any categorical declaration as was mentioned in the paragraph.
5. At the time the application was placed for consideration before us Mr. Puri appearing for the Commissioner and Mr. Mukhoty appearing for the small depositors gave us the impression that the arrangement envisaged in the petition was in the best interest of the depositors and we acted upon the submissions made at the Bar and accorded approval to the settlement.
6. In the background of what has transpired now, we think it would not be appropriate to entertain the application for sanction of the compromise directly in this Court. It is in the fitness of things that the application for acceptance of the settlement should be considered by the nominated Bench of the Calcutta High Court and it should dispose of the same after hearing parties in the backdrop of facts and in accordance with law. There has been no dispute before us nor can there be any that all such steps as are necessary should be taken to protect the interests of the depositors and give effect to the scheme evolved by this Court.
7. Counsel appearing for Narayan Karamakar has given an undertaking before us that his client and his associates are prepared to offer Rs.20 lakhs to buy the land with whatever interest Sanchaita has therein and to prove the bonafide of the offer he has deposited with the Registry of this Court a bank draft for a sum of Rs.5 lakhs. The draft shall be sent by insured-post to the Commissioner for being credited to his account to be held as earnest money until final orders are made by the High Court.
8. In the circumstances indicated above, we recall our order of 4th August, 1988; and direct that the application forming the subject-matter of CMP No. 22210 of 1988 shall be transmitted by the Registry to the Calcutta High Court with the direction that the same shall be placed before the nominated Bench for consideration as to whether the same should be accepted. In case the Court holds that the application is not to be accepted and the property is to be put to auction, the up-set price for the property shall be fixed at Rs.20 lakhs that being the offer of Narayan Karamakar. His counsel has represented to us that in case the offer of Rs.20 lakhs is ultimately accepted by the High Court, the balance of Rs.15 lakhs shall be paid to the Commissioner within a week and on his failure to do so, the sum of Rs.5 lakhs can even be forfeited. We have not expressed any view as the matter is to be dealt with by the nominated Bench.
9. The High Court is requested to dispose of this matter as early as possible.
1. On 4.8.1988, this Court on the application made by Nishan Developers Properties Private Limited (hereafter ‘Nishan’ for short) and Sanchaita Commissioner and upon hearing Mr. Gobind Mukhoty for the small depositors made the following order:-
“Heard learned counsel for the petitioner/proposed purchaser. Mr. Gobind Mukhoty is for the small depositors and Mr. H.K. Puri appears for the Commissioner. We have also perused the terms contained in Schedule-A which are the terms of the settlement. We are of the view that the arrangement is in the interest of the depositors and would benefit his State. According the proposal is accepted and the Commissioner is permitted to sell the property strictly in accordance with the terms contained in Schedule-A. We are told that an amount of Rs.2,62,500/- is paid and the balance of Rs.7,87,500/- is undertaken to be paid within six months from the date of settlement. On failure of payment as stipulated the arrangement shall be withdrawn and the money already deposited shall stand forfeited.”
2. The present application is by two small depositors and they have asked for recalling the order on the allegations that :
(i) there were pre-existing directions of the nominated Bench of the Calcutta High Court asking the Commissioner to put the property to public auction;
(ii) there was a pre-existing offer of Rs.20 lakhs for the property from one Narayan Karmakar;
(iii) by the time the matter was placed before this Court on 4th of August, 1988, there was also an application before the nominated Bench fixed for the same day wherein an application for injunction against the alienation which by the impugned order has been sanctioned had been prayed for; and
(iv) the effect of the order of the nominated Bench of the Calcutta High Court in regard to the Kaikhali property had not been properly indicated in the application made to this Court.
3. This Court evolved a scheme in the Sanchaita matter with a view to protecting the interest of the small depositors. The scheme contemplated the appointment of a Commissioner, an advisory Committee and a nominated Bench of the Calcutta High Court. Wide powers were vested in the Commissioner with a view to gathering the assets of Sanchaita and converting the same into liquid money to pay up the small depositors to the whole extent of their dues, if possible.
4. After Special Leave Petition 4372 of 1982 was dismissed possibly the petition for compromise could even have been moved before the nominated Bench itself. When the application registered as CMP No. 22210 of 1988 was placed before this Court, we were not aware of the fact that an offer for Rs.20 lakhs for the property in question had already been made to the Commissioner; nor were we told that there had been pre-existing directions of the nominated Bench that the property could be sold by public auction. We accepted the representation contained in paragraph 8 of Schedule-A of the compromise petition to the following effect:-
“It is ordered and declared by the Hon’ble Special Division Bench of the Calcutta High Court that appellant company is the absolute owner of the properties in question situated and lying at Mouza Mondalgathi, J.L.No. 6 R.S. Dag Nos. 247, 478, 479, 480, 248, 471, Khatian (C.S.) No. 279, 280, 247, 235, 171 measuring 2.64 acre of land on V.I.P. Road Police Station Rajarhat in the District of 24-Parganas (North) under Sub- Registry Office, Bidnannagar.”
When the order is now placed, we do not find any categorical declaration as was mentioned in the paragraph.
5. At the time the application was placed for consideration before us Mr. Puri appearing for the Commissioner and Mr. Mukhoty appearing for the small depositors gave us the impression that the arrangement envisaged in the petition was in the best interest of the depositors and we acted upon the submissions made at the Bar and accorded approval to the settlement.
6. In the background of what has transpired now, we think it would not be appropriate to entertain the application for sanction of the compromise directly in this Court. It is in the fitness of things that the application for acceptance of the settlement should be considered by the nominated Bench of the Calcutta High Court and it should dispose of the same after hearing parties in the backdrop of facts and in accordance with law. There has been no dispute before us nor can there be any that all such steps as are necessary should be taken to protect the interests of the depositors and give effect to the scheme evolved by this Court.
7. Counsel appearing for Narayan Karamakar has given an undertaking before us that his client and his associates are prepared to offer Rs.20 lakhs to buy the land with whatever interest Sanchaita has therein and to prove the bonafide of the offer he has deposited with the Registry of this Court a bank draft for a sum of Rs.5 lakhs. The draft shall be sent by insured-post to the Commissioner for being credited to his account to be held as earnest money until final orders are made by the High Court.
8. In the circumstances indicated above, we recall our order of 4th August, 1988; and direct that the application forming the subject-matter of CMP No. 22210 of 1988 shall be transmitted by the Registry to the Calcutta High Court with the direction that the same shall be placed before the nominated Bench for consideration as to whether the same should be accepted. In case the Court holds that the application is not to be accepted and the property is to be put to auction, the up-set price for the property shall be fixed at Rs.20 lakhs that being the offer of Narayan Karamakar. His counsel has represented to us that in case the offer of Rs.20 lakhs is ultimately accepted by the High Court, the balance of Rs.15 lakhs shall be paid to the Commissioner within a week and on his failure to do so, the sum of Rs.5 lakhs can even be forfeited. We have not expressed any view as the matter is to be dealt with by the nominated Bench.
9. The High Court is requested to dispose of this matter as early as possible.
