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1996(1) Supreme 452
SUPREME COURT OF INDIA
G.N. Ray and S.B. Majmudar, JJ.
Amiya Prosad Sanyal & Anr. -Appellants
versus
Bank of Commerce Ltd. (in liquidation) and others -Respondents
Civil Appeal Nos. 1438-39 of 1996
Decided on 3-1-1996
Held : After giving our careful consi-deration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that the decree holder Bank did not claim any mortgage right in respect of the said nine properties. A simple money decree was obtained by the Bank in 1954. Initially, the attempt was made to sale certain shares which had been hypothecated with the Bank for realisation of the decretal amount but such shares were issued by defunct companies and therefore they had no marketable title. It was only after a long lapse namely after thirty two years from the date of decree an attempt was made by the Official Liquidator in 1986 to sale the nineteen properties which were owned by the Judgment debtor after ascertaining the title to such properties. On the prayer of the Official Liquidator that the decretal amount would be satisfied by the sale of the said properties belonging to the Judgment debtor, the Court appointed a Receiver on May 20, 1970, in respect of the nineteen properties which were owned by the Judgment debtor. It, however, appears that between 6th and 8th May, 1970, the said properties had been sold by the heirs and legal representatives of the deceased judgment debtor. On the dates of sale of the said nine properties, there was no legal bar for the said heirs of the judgment debtor to execute sale deeds in respect of the said properties. Such properties had not been attached on the cates between 6th and 8th May, 1970. The receiver was appointed only on May 20, 1970. The Division Bench has also clearly come to the finding that no notice about the proposed auction sale had been served on the legal representatives of the deceased judgment debtor between 6th May and 8th May, 1970. As a matter of fact initially a notice was issued in the name of the deceased judgment debtor. There is also no material warranting a finding that the respondent Nos. 2 to 13 were aware about the steps taken to effect the sale of the immovable properties of the judment debtor in execution of the money decree on the dates when the nine properties had been sold. (Para 17)
Held further : The Division Bench has also not found as a fact that there had been any collusion between the purchasers of the said nine properties and the heirs and legal representatives of the deceased judgment debtor. In the aforesaid circumstances, auction sale of the said nine properties in execution of the said decree cannot be held valid. The Division Bench of the High Court has also indicated that although the said nine properties had been sold between May 6 and 8, 1970, the Official Liquidator had not taken any step to get the sale transactions set aside in any appropriate proceedings. In the aforesaid facts and circumstances of the case, we do not find any reason to interfere with the impugned decision of the High Court. The appeals therefore fail and are dismissed with no order as to costs. (Para 18)
JUDGMENT
G.N. Ray, J.-Leave granted. Heard learned counsel for the parties.
2. These appeals are directed against the order dated May 17, 1991 and June 18, 1991 passed by a Division Bench of the Calcutta High Court in Appeal No. 436 of 1986 (Samarendra Nath Dass and Ors. v. Bank of Commerce Limited (in liquidation) and Appeal No. 437 of 1986 (Smt. Anjali Paul and Ors. v. Bank of Commerce Limited (in liquidation). By the first order dated May 17, 1991 both the said appeals were allowed whereby certain properties numbering nine out of nineteen properties earlier sold to the appellants pursuant to the Court s sale in execution proceedings are excluded from such sale on the finding that the said nine properties belonged to the respondent Nos. 2 to 13. By the subsequent order dated June 18, 1991 passed in the said two appeals leave was granted by the Division Bench to the Official Liquidator to take steps for setting aside the auction sale by the Court and confirmed in favour of the appellants in respect of the remaining properties and to reauction the said properties.
3. In or about 1949, the Bank of Commerce Limited (now in liquidation) had filed a suit against one Bagala Prosad Sanyal being Suit No. 1794 of 1949 to recover a sum of Rs. 1,51,939.86 being the amount due for monies lent and advanced on an overdraft account. The said Bank of Commerce Limited having gone in liquidation. It is being represented by the Official Liquidator.
4. On May 20, 1954, the said Suit was decreed in favour of the Bank for a sum of Rs. 1,67,378.36 with interest @ 6% per annum from the date of decree until realisation together with costs. The Official Receiver of the Calcutta High Court was appointed Receiver over certain shares of certain companies which were hypothecated by the judgment debtor Bagala Prosad with the said Bank and it was directed that the said shares would be sold in the event that the decretal dues were not paid. The Receiver was also directed to hand over the sale proceeds of such sale of shares to the Bank with liberty to the Bank to appropriate the sale proceeds in protanto satisfaction of its claim under the said decree. The said shares were nowever of defunct companies and as such were not marketable. No amount therefore could be realised by sale of the said shares. The decree holder was not aware about the fact that there were immovable properties owned by the judgment debtor. The Official Liquidator caused enquiries pursuant to the orders passed by the Court and it was revealed that the judgment debtor owned nineteen several properties. After ascertaining the title of the judgment debtor in respect of the said nineteen properties, the Official Liquidator proceeded against the immovable properties belonging to the judgment debtor Bagala Prosad in execution of the said decree and an application was taken out by the Official Liquidator for appointment of a Receiver over the said immovable properties and for the sale of the same. It may be noted here that the judgment debtor Bagala Prosad had died in the meantime and steps were taken to serve the notice of sale of the immovable properties on the heirs and legal representatives of the said Bagala Prosad. A notice under Order 21 Rule 22 of the Code of Civil Procedure was issued by the Master of the Calcutta High Court for the purpose of sale of the immovable properties requiring the judgment debtor to show cause why the said decree should not be executed by selling the said properties.
5. In the said execution proceedings, an order was passed on May 20, 1970 whereby the Official Receiver of the Calcutta High Court was appointed as Receiver over the right, title, and interest of the said heirs and legal representatives of the deceased judgment debtor in respect of nineteen properties with power to sale the same. Pursuant to the said order dated May 20, 1979 a notice was also published in October, 1986 in three leading newspapers of Calcutta for the sale of the said properties. The prop
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