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TMI Blog2024 (8) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. Manju Agarwal with the condition that she shall be entitled to use, enjoy and deal with the said premises as owner thereof without any hindrance/objection from any of the parties including deed of partition. All expenses incurred in the above process shall be exclusively borne by Smt. Manju Agarwal. From the condition no. 10 it further appears that neither the plaintiff nor the other defendants shall claim any right, title and interest over the said property in any manner whatsoever and Smt. Manju Agarwal shall be entitled to use, enjoy and/or deal with the same as owner thereof and in the manner as she likes. Therefore, from the above conditions it is revealed that by virtue of the said consent decree the plaintiff, the defendant no. 2 i.e. the decree holder and defendant no. 4 had relinquished their right in connection with the property as mentioned hereinabove and they had given absolute right to Smt. Manju Agarwal to use, enjoy and deal with the said office premises admeasuring 1314 sq.ft as owner thereof without any hindrance and objection, and further she has been given authority to deal with the said property as owner thereof and in the manner as she likes. The relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned it appears that evidence is required to prove such factual aspects particularly, the factum of surrender or the quantum of surrender value and so on in respect of the property at the third and fourth floor of P-161, VIP Road, Scheme VII M, Kolkata 700054. Without going through the evidence this court cannot allow the relevant prayers of the decree holder at this stage. Moreover, during the pendency of the execution proceeding admittedly some obligations of the consent decree as imposed upon the judgement-debtors have been complied with, and as the court is not apprised of specifically which portions of the obligations have been complied with by the judgement-debtors, from the side of the decree holder, the other prayers of the GA also cannot be allowed. - HON BLE JUSTICE APURBA SINHA RAY For the Petitioners : Mr. Jitendra Patnaik, Adv. Mr. Nirmalya Dasgupta, Adv. Ms. Dikcha Jajodia, Adv. For the judgement-debtors: Mr. Partha Ganguly, Adv. Mr. Atreya Chakraborty, Adv. Ms. Nandini Sharma, Adv. JUDGEMENT PER APURBA SINHA RAY, J. :- 1. The Execution Case no. 431 of 2022 was initiated to implement a consent decree passed on 18.05.2018 in connection with C.S. No. 201 of 2015. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an undertaking with respect to the property tax liability or any other liability due and payable on account of the Park Street office held in the name of Nav Technology Private Limited. (d) In the alternative, the deed of conveyance dated 30th December, 2022 for sale and transfer of Park Street office space be declared as null and void and the same be cancelled. (e) For direction upon the Judgement Debtor No. 2 to handover the duly signed share certificates of Nav Technology Private Limited to the Decree Holders. (f) The Judgment Debtors shall pay to the Decree Holder No. 2 the entire surrender value received by the Judgment Debtors on surrender of the tenancy right in the third and fourth floor of P-161, VIP Road, Scheme VII M, Kolkata 700054 which the Judgment Debtors have been entitle only for their use and occupation and not for transfer or release or surrender or handover of the same to any third party which the Judgment Debtors have done in gross violation of terms of settlement. 4. The learned counsel of the decree holder refers to the decisions reported at (1993) 2 SCC 185 (Salil Dutta Vs. T.M. And M.C. Private Ltd.) in support of his contention that there is no such abso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order in accordance with the procedure laid down under order XXI of the Code of Civil Procedure, 1908. 10. The learned counsel of the respondent has also relied upon an unreported judgement of Hon ble Supreme Court (Civil Appeal No. 7800 of 2014) S. Bhaskaran Vs. Sebastian (Dead) by LRs. Ors. in furthering his contention. 11. In reply, Mr. Dasgupta has submitted that the deed of transfer contains that transfer was being done in pursuance of the order of the High Court. A comparative study of decree and recital of the deed will show that the contents of the relevant paras are same. According to him, when the respondents accept the contents of the deed made pursuant to the order of the Hon ble Court s decree, they are under a duty to accept the tax liability in view of Section 50-C of the Income Tax Act, 1961. 12. By referring to paragraphs 8 of the Himalayan Coop. Group Housing Societies case (supra), the learned counsel argues that the case law is not applicable in the present case. 13. The respondent no. 1 should not be, according to him, relied upon since there is no affidavit filed by her that she did not give any instruction to her lawyer. Rather, the record shows that the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l (HUF) the defendant no. 1, the property having an office space admeasuring approximately 1314 square feet of 113, Park Street is hereby transferred/allotted to the defendant no. 3 Smt. Manju Agarwal shall be entitled to use, enjoy and deal with the said premises as owner thereof without any hindrance/objection from any of the parties including Deed of Partition. All expenses incurred in the above process shall be exclusively borne by Smt. Manju Agarwal. 10. The plaintiff and the defendant no. 3, 4 and 5 shall not claim any right, title and/or interest over the said property in any manner whatsoever. The defendant no. 3 shall be entitled to use, enjoy and/or deal with the same as owner thereof and in the manner as she likes. 11. All cases by and between the family members whether civil or criminal in nature shall be withdrawn and/or shall be jointly applied for quashing in Hon ble High Court /competent court as the case may be. 12. The residence at P1/161, V.I.P. Road, Scheme-VII M, Kolkata 700 054 being 3rd and 4th floor thereof shall continue to be used and occupied by the plaintiff, defendant no. 3, 4 and 5 and the defendant no. 2 shall not disturb the peaceful enjoyment thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter on December 1, 2023. BEFORE: The Hon'ble JUSTICE APURBA SINHA RAY Date : 1st DECEMBER, 2023. Mr. Nirmalya Dasgupta, Adv. Mr. Jitendra Patnaik, Adv. For petitioner/decree-holder Mr. Sukrit Mukherjee, Adv. For judgement-debtor THE COURT: Learned Counsel for the judgment-debtor has submitted that as per terms of the decree his client Smt. Manju Agarwal is entitled to sell the Park Street Property and accordingly, she has done it. However, learned Counsel for the judgment-debtor has further submitted that he shall perform all requisite share transferring of the company Nav Technology Pvt. Ltd. within three weeks from date and further his client will take the tax responsibility for transferring the property at Park Street. Learned Counsel for the decree-holder is also present and has submitted that his client should be protected from the tax responsibility of the transaction relating to property at Park Street. Learned Counsel for the decree-holder has handed over the requisite list of outstanding obligations on the part of the judgment-debtor in writing, to the learned Counsel of the judgment-debtor. List the matter on 22nd December, 2023. BEFORE: The Hon'ble JUSTICE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March, 2024. In the meantime the judgment-debtor is to submit an affidavit as per earlier orders and also to hand over share transfer deeds. BEFORE: The Hon'ble JUSTICE APURBA SINHA RAY Date : 12th MARCH, 2024. Mr. Nirmalya Dasgupta, Adv. Mr. Jitendra Patnaik, Adv. For the decree-holder Mr. Partha Ganguly, Adv. For the judgement-debtor no. 2 The Court:- Learned counsel for the judgment debtor has submitted that he will hand over the share transfer deed within two days to the learned counsel of the decree-holder. Learned counsel for the judgment debtor has further submitted that his client is not willing to submit any affidavit contending that the tax responsibility for the property at Park Street which was sold by the judgment debtor lies upon her. Learned counsel for the judgment debtor has also submitted that such an undertaking would be beyond the decree passed by the learned Trial Court. Learned counsel for the decree-holder has submitted that his client will be instructed to file an appropriate application before this Court. List this matter on 2nd April, 2024. 16. The learned counsel of the decree holder argues that as the learned counsel of the judgement debtors has unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such condition in the decree for shouldering the tax responsibility of any proposed sale of the relevant property, the executing court cannot direct the respondent no. 1 to discharge the tax responsibility in connection with the transaction which was referred to by the learned counsel of the decree holder. 19. After going through the said order dated 01.12.2023 it appears that the judgement-debtors have harped on the point that what they did, they did in accordance with the terms of agreement and further, the sale of the property at Park Street at the instance of judgement debtor no. 1 in favour of judgement debtor no. 2 is in accordance with terms of consent decree. If we go through the said terms of consent decree dated 18.05.2018 we shall find that in condition no. 9 it has been mentioned that the property having an office space admeasuring approximately 1314 sq.ft. of 113 Park Street is transferred/allotted to the judgement-debtor no. 2 Smt. Manju Agarwal with the condition that she shall be entitled to use, enjoy and deal with the said premises as owner thereof without any hindrance/objection from any of the parties including deed of partition. All expenses incurred in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the company, it is expected that most of the terms should have been performed simultaneously, otherwise, several other issues are bound to creep in. Clause 7 of the decree stipulates that all the defendants including added defendant and the plaintiff are under a duty to execute a deed of transfer regarding office space as indicated above to Manju Agarwal, but the execution of such deed without the knowledge of other parties shows that the intention of the parties underlying the consent decree has not been given due respect and weightage. 23. It is true that at different times the judgement-debtors have taken different stands through their learned counsel. It is further found that in spite of undertaking on behalf of the judgement-debtors the concerned learned advocate was unable to respect such undertaking and by allowing another advocate of the judgement-debtors to contradict their earlier stand is very much intriguing, particularly when the vakalatnama of the earlier advocate still exists in the record. It is also true that there is no affidavit from the side of the judgement-debtors that they did not give such instruction to their lawyer to inform the court that the concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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