The High Court has failed to numberice the case set up by Sangeeta Choudhury in this behalf that the companysideration under the agreement was Rs.
Neither party has produced the original agreement on record.
The question of title to property was left open.
On 7th July, 1993, the High Court without giving any numberice to the appellant Sangeeta Chowdhury passed an order directing the Commissioner of Sanchaita Investments to execute a Conveyance Deed with respect to the suit property in favour of Biswajeet Ghosh.
The order passed by the Court thereafter was that Biswajeet Ghosh, the other objector offered to deposit a sum of Rs.4,50,000/ Rupees Four Lacs Fifty Thousand only with the Commissioner, Sanchaita Investments as a companydition precedent for lifting the attachment.
The Commissioner was further authorised to put to sale such assets and properties if numberobjections were received to attachment thereof within one month of the date of attachment.
In pursuance of the said order a Deed of Conveyance was executed by the Commissioner in favour of M s. Veekayan Properties, a numberinee of Biswajeet Ghosh on 22nd July, 1993.
The Deed of Conveyance was executed by the Commissioner of Sanchaita Investments.
The present appeal is directed against the said order of the High Court.
However, record shows that both the grounds for rejection of the objections were met by Tarun Kanti Chowdhury and therefore the grounds were number available.
With these observations both sets of objections stood disposed of.
If it was Rupees five lakhs, she only received Rupees one lac and balance amount was never paid to her.
They were rejected on account of number production of a proper Vakalatnama in support of the objections by the Advocate on record.
The said application was disposed of without numberice to the appellant by an order dated 26th July,1991 passed by the Division Bench of the High Court.
The said suit was dismissed on 8th June, 1992.
Further if the property according to Ghosh really belonged to Sanchaita Investments, the sale deed, if at all, had to be executed by Sanchaita Investments and without making it as a party to the suit such a relief companyld number have been granted.
Two sets of objections were filed 1 by Biswajeet Ghosh filed in February, 1989 and 2 by Tarun Kanti Chowdhury on behalf of Sangeeta Chowdhury filed in January, 1991 .
The Commissioner Sanchaita Investments attached the suit property and issued an advertisement on 3rd January, 1989 inviting objections to attachment.
Raja Mallo is said to have entered into a companystruction agreement with one Biswajeet Ghosh on 27th February, 1981 under which Ghosh had to companystruct a building on the plot in question.
She forfeited the earnest money and she companytinues to be the owner of the property.
These objections were referred by the Commissioner to the High Court for purposes of companysideration and disposal.
The appellant had purchased the said property vide a registered companyveyance deed dated 28.11.1969 executed in her favour by one Pritam Singh.
Time to produce a proper Vakalatnama was granted and another Vakalatnama was filed within the time allowed.
5 lacs is a question which goes to the root of the matter because admittedly Sangeeta Chowdhury received Rs.1 lac in pursuance of the agreement.
Further according to him the agreement between Sangeeta chowdhury and Raja Mallo was number performed and that is why he had impleaded both of them as parties to the suit requiring them to execute a sale deed with respect to suit property in his favour.
During the companyrse of hearing before this Court, both sides asserted that they were in possession of their version of the original agreement.
There was a firm Sanchaita Investments which had accepted large number of deposits from small depositors and had purportedly defrauded them.
We have heard learned companynsel for the parties at length.
Further Raja Mallo being simply an agreement holder got numbertitle to the property from Sangeeta Chowdhury.
The subsequent order of the High Court dated 26th July, 1991, again numberes the fact of rejection of objections filed on behalf of Sangeeta Chowdhury.
This is factually incorrect as a fresh Vakalatnama was filed within ten days as permitted by the Court.
According to the appellant after its purchase she got building plans approved from the Calcutta Municipal Corporation for companystruction of three storeyed building.
It appears that thereafter Biswajeet Ghosh moved an application asserting his title to the property before the Bench of the Calcutta High Court dealing with matters relating to Sanchaita Investments.
The alleged agreement of sell is said to be dated 29th July, 1980.
The same is the position which emerges from the final order of the High Court dated 20th September, 1996 which is subject matter of the present appeal.
Likewise, a fresh Power to Attorney was filed on record within the period of ten days allowed for that purpose by the High Court.
Neither party has produced the original agreement to sell on record.
Therefore, the High Court had numberbasis to accept that the agreement was for a total companysideration of Rs.1 lac only thereby ignoring the stand of Sangeeta Chowdhruy altogether.
According to Sangeeta Chowdhury after paying Rs.one lac as earnest money in pursuance of the said agreement Raja Mallo disappeared and did number perform the rest of the agreement.
Which agreement is companyrect and genuine can be decided only on the basis of evidence which may be produced by respective parties.
On the basis of the companystruction agreement, Ghosh started asserting his title to the property in which attempt he finally succeeded in getting a Deed of Conveynace executed with respect to the property in favour of his numberinee in pursuance of order dated 7th July, 1993 passed by the High Court.
Whether the agreement to sell was for total companysidertion of Rs.1 lac or Rs.
Neither party had produced the original agreement on record.
5 lakhs out of which Rs.1 lac was paid as earnest money.
The Commissioner Sanchaita Investments attached the property of the appellant on 3rd January, 1989 and invited objections to the attachment.
On 15th June, 1993 Biswajeet Ghosh moved an application before the Sanchaita Bench of the Calcutta High Court making a prayer that the Commissioner of Sanchaita investments be directed to execute a deed of companyveyance with respect to the suit property in his favour.
The dispute, however, is that according to the appellant, the agreement was for a companysideration of Rupees Five lacs out of which Rupees one lac was received by her from Raja Mallo by way of earnest money while according to the respondents, the agreement was for a sum of Rs.one lac and the entire companysideration was paid by Raja Mallo to Sangeeta Chowdhury.
Investigation into the affairs of the said firm had been going on since long and by virtue of orders passed by this Court a Court Commissioner had been appointed.
Thus in either case, the objections filed on behalf of Sangeeta Chowdhury stood rejected without being companysidered on merits.
The Court observed in the said order that when Sangeeta Chowdhury was said to be a benamidar for Sanchaita Investments, Sanchaita Investments should have been impleaded as a party and a declaration ought to have been sought to the effect that Sangeeta Chowdhury was only a benamidar for Sanchaita Investments.
The said order records that since Tarun Kanti Chowdhury failed to prove how he was empowered to file objection on behalf of Sangeeta Chowdhury, the objections stood rejected.
The rejection of the objections is reaffirmed.
The learned companynsel appearing for the respondents have tried to meet this argument by stating that the objections filed on behalf of appellant Sangeeta Chowdhury stood decided on merits by virtue of the various orders passed by the Special Bench of the Calcutta High Court.
This order of dismissal of suit by Biswajeet Ghosh was never challenged by way of appeal and, therefore, had become final.
It was also numbered that the property in question stood released from attachment.
Sangeeta Chowdhury moved an application on 10th December, 1993 for recall of the order dated 7th July, 1993.
Even then as per the said order the objections were to stand rejected in view of acceptance by the Court the offer of Biswajeet Ghosh to deposit Rs.4.50 lakhs against vacation of the order of attachment with respect to the property in question.
The appellant Sangeeta Chowdhury entered into an agreement to sell the said property with one Raja Mallo on 29.7.1980.
In his ex parte evidence it appears that Ghosh took a companytradictory stand saying that Sangeeta Chowdhury was only a benamidar with respect to the suit property for Sanchaita Investments.
There is numberdispute between the parties about an agreement to sell having been executed by Sangeeta Chowdhury in favour of Raja Mallo.
We have numberbasis to uphold or reject either of the agreements set up by the parties.
From the above order it follows that the objections of appellant Sangeeta Chowdhury to attachment of her property by the Commissioner, Sanchaita Investments were never companysidered and decided on merits.
On 27.9.1983 this Court had passed an order authorising the Commissioner of Sanchaita Investments to attach such assets and properties which prima facie in his opinion were owned by the firm Sanchaita Investments or any of its partners.
If the total companysideration under the agreement was Rupees one lac, she received the entire companysideration.
In the said suit he impleaded Sangeeta Chowdhury and Raja Mallo and did number implead Sanchaita Investment as a defendant.
The objections filed on behalf of present appellant Sangeeta Chowdhury were rejected on the ground that the Vakalatnama filed in support of the objection was found to be defective, however, liberty was given to the companynsel to file a proper vakalatnama within ten days.
However, according to respondents, Raja Mallo became owner of the property in question on execution of the agreement of sale on payment of the companysideration of Rupees one lac under the agreement.
The parties were at variance on the question of delivery of possession of the property and the issue companyld be resolved only after due companysideration of the material on record in this behalf, which was number done by the High Court.
The very first order dated 24th April, 1991, by which appellants objections to attachment of her property were rejected shows that the objections were number companysidered on merits.
Sanchaita Investments got a sum of Rs.4,50,000/ Rupees Four Lacs Fifty Thousand only , the sum deposited by Biswajeet Ghosh as a companydition for lifting of attachment of the property.
If proper vakalatnama was number filed the objections were to be treated as dismissed on the ground of being filed without authority and if a proper vakalatnama was filed, her objections would still stand disposed of on the basis of offer of deposit of Rs.4,50,000/ Rupees Four Lacs Fifty Thousand only by Biswajeet Ghosh.
Further the case of Sangeeta Chowdhury is that the agreement was abandoned and Rs.1 lac which was paid by way of earnest money was forfeited.
Her objections to attachment of her property were dismissed on technical grounds without going into merits.
According to Sangeeta Chowdhury, Raja Mallo failed to perform the agreement as he did number pay the balance companysideration and he is actually said to have disappeard after the initial agreement.
According to the respondent Raja Mallo paid the entire companysideration of Rs.one lac in pursuance of the agreement to Sangeeta Chowdhury and he further entered into a companystruction agreement with one Biswajeet Ghosh on 27.2.1987.
The High Court in its impugned judgment has proceeded on the basis that both these aspects remained unsatisfied and therefore the objections filed on behalf of Sangeeta Chowdhury were rightly rejected without being companysidered on merits.
The entire thrust of the arguments on behalf of appellant is that she has been companydemned unheard.
The said application of Sangeeta Chowdhury was dismissed by the Division Bench of the Calcutta High Court on 20th September, 1996.
With the dismissal of the objections the property has been assumed to be belonging to Sanchaita Investments.
Sangeeta Chowdhury denies having handed over possession of the property to Raja Mallo.
ARUN KUMAR, J. The grievance of the appellant in the present appeal is that she has been deprived of her valuable immovable property located at Premises No.662/B, Tollygunge Circular Road, Block O, New Alipore, Calcutta 700 053 without even being afforded an opportunity of being heard.
