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TMI Blog2004 (1) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be ordered to be executed. The objections to attachment of property filed on behalf of Sangeeta Chowdhury were rejected on technical grounds and were never considered on merits. X X X X Extracts X X X X X X X X Extracts X X X X ..... e objection was found to be defective, however, liberty was given to the counsel to file a proper Vakalatnama within ten days. Strangely the order records in this behalf that "in the event such vakalatnama is filed the objections will be governed by the order which we would hereinafter pass. In default the objection of Tarun Kanti Chowdhury will be deemed to have been dismissed for absence of proper authority of his learned Advocate-on-Record". The order passed by the Court thereafter was the 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 condition precedent for lifting the attachment. Therefore, the Court observed that if the said amount was deposited the attachment would stand vacated. The Court specifically observed that it had not gone into the question of title to the property in view of the offer of Biswajeet Ghosh to deposit a sum of Rs. 4,50,000 (Rupees four lacs fifty thousand only) and the question of title to property remained open. With these observations both sets of objections stood disposed of. 3. From the above order it follows that the objections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 could not have been granted. The Court also observed that payment of entire consideration money to Sangeeta Chowdhury by Raja Mallo in pursuance of the agreement of sale between the two was never established by the plaintiff. Further Raja Mallo being simply an agreement-holder got no title to the property from Sangeeta Chowdhury. This order of dismissal of suit by Biswajeet Ghosh was never challenged by way of appeal and, therefore, had become final. 5. 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 conveyance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the property in question. Thus in either case, the objections filed on behalf of Sangeeta Chowdhury stood rejected without being considered on merits. The subsequent order of the High Court dated 26th July, 1991, again notes the fact of rejection of objections filed on behalf of Sangeeta Chowdhury. The rejection of the objections is reaffirmed. 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. Therefore, the fact remains that the objection of the appellant against attachment of her valuable property were never considered on merits. 7. From a careful consideration of impugned judgment in the light of facts on record, the following points emerge : The fact that Sangeeta Chowdhury had a valid title to the property in the first instance is not in dispute. It is admitted that she had purchased the property vide a Registered Deed of Conveyance dated 28th November, 1969 from one Pritam Singh. Again it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith respect to the property in favour of Biswajeet Ghosh or his nominee. 8. In our considered view the impugned judgment of the High Court is liable to be set aside for the following additional reasons : (1)The High Court has proceeded on the basis that the agreement to sell between Sangeeta Chowdhury and Raja Mallo was for a consideration of Rs. 1 lac only and the amount stood paid to Sangeeta Chowdhury. The High Court has failed to notice the case set up by Sangeeta Chowdhury in this behalf that the consideration under the agreement was Rs. 5 lacs out of which Rs. 1 lac was paid as earnest money. Neither party had produced the original agreement on record. Therefore, the High Court had no basis to accept that the agreement was for a total consideration of Rs. 1 lac only thereby ignoring the stand of Sangeeta Chowdhury altogether. Whether the agreement to sell was for total consideration of Rs. 1 lac or Rs. 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. If the total consideration under the agreement was rupees one lac, she received the entire consideration. If it was rupees five la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property filed by Tarun Kanti Chowdhury on behalf of Sangeeta Chowdhury were rejected on two grounds : first, Tarun Kanti Chowdhury had no authority to file the objections on behalf of Sangeeta Chowdhury; and secondly, there was no proper Power of Attorney executed in favour of the Advocate who filed the objections in court. 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 considered on merits. However, record shows that both the grounds for rejection of the objections were met by Tarun Kanti Chowdhury and therefore the grounds were not available. Tarun Kanti Chowdhury was given opportunity to show the authority in his favour to file the objections which he did as recorded in the order dated 28th August, 1996 of the High Court. Likewise, a fresh Power of Attorney was filed on record within the period of ten days allowed for that purpose by the High Court. Therefore, rejection of the objections of Sangeeta Chowdhury to attachment of property on these two grounds was uncalled for and contrary to record. The High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed judgment has proceeded on wrong assumptions and most important question regarding title to the property was never gone into. Assuming Raja Mallo was an agent of Sanchaita Investments had entered into the agreement to sell with Sangeeta Chowdhury on behalf of the said firm, the title to property could not pass to Sanchaita Investments merely on basis of an agreement to sell. Title to immovable property of such value can pass only on the basis of a registered Deed of Conveyance. What right Sanchaita Investments had to further sell the property? These questions needed to be considered before Deed of Conveyance could be ordered to be executed. The objections to attachment of property filed on behalf of Sangeeta Chowdhury were rejected on technical grounds and were never considered on merits. Keeping all these aspects in view, we are of the opinion that the impugned judgment of the High Court dated 20th September, 1996 cannot be sustained. We accordingly set aside the same and remand the matter back to the High Court for consideration of the objections filed on behalf of Sangeeta Chowdhury on merits. Any observation contained in this judgment shall not influence the High Court in arr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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