- (1.) These two applications are at the instance of the two applicants against the Order No.323 dated March 18, 2006 passed by the learned Civil Judge (Senior Division), 9 th Court, Alipore in Title Execution Case No.15 of 1982 thereby rejecting two applications filed by the two applicants.
(2.) The C.O. No.1692 of 2006 has been filed by Mr. Amarnath Shroff against the order of rejection of the prayer for leave to sue against the judgment debtors and the learned Receiver appointed by the learned Executing Court in Title Execution Case No.15 of 1982 and the C.O. No.2354 of 2006 has been filed against the order of rejection of the prayer for assignment of a decree in favour of the applicant, M/s. Devine Mercantiles Pvt. Ltd.
(3.) Instead of narrating the entire facts leading to the filing of the two applications, it will be convenient to state the facts not in dispute first and then to state other facts. The following facts are in dispute:- a) The plaintiff-Bank / decree-holder / opposite party no.1 herein instituted a suit being Title Suit No.1942 of 1976 for recovery of money advanced under the heading 'Credit Facility' to M/s. Sur & Company against the defendants / judgment debtors / opposite parties herein. b) The suit was decreed in final form on compromise in July 1981. The plaintiff-Bank got a decree for recovery of Rs.8,60,696.86 with interest @ 16% per annuam from the date of institution of the suit along with other reliefs. c) The plaintiff-Bank filed a title execution case being Title Execution Case No.15 of 1982 for realisation of the decretal dues against the judgment debtors / opposite parties herein. d) The judgment debtors took several adjournments to make payments, but, ultimately did not make any payment and as such, the Executing Court was about to sell the premises no.47, Cristopher Road, Kolkata-700046 by auction (one of the four mortgaged premises of the judgment debtors on consent). e) A Receiver was appointed by the learned Executing Court over the mortgaged properties of the judgment debtors. f) Mr. Amarnath Shroff (applicant of the C.O.1692 of 2006) entered into a Memorandum of Understanding (henceforth in short "MoU") dated September 6, 2004 with some of the judgment debtors to the effect, inter alia, that the mortgaged premises no.s 41, 43, 45 & 47, Cristopher Road, Kolkata-700046 would be sold to Mr. Amarnath Shroff for consideration of Rs.5.8 crores and that out of the sale proceeds Rs.45 lakhs would be paid to the decree-holder for liquidation. Mr. Shroff also undertook the responsibility to make payment to the Ex-workers and also to pay their terminal benefits to the tune of Rs.25 lakhs and 10 lakhs. The parties to the agreement agreed to co-operate with Mr. Shroff by signing papers which might be lawfully required for the abovementioned purpose. g) M/s. Devine Mercantiles Pvt. Ltd. (applicant of the C.O. No.2354 of 2006) of which Mr. Amarnath Shroff is a Director wrote a letter dated January 1, 2005 to the decree-holder praying for assignment of the decree in its favour upon payment of the decretal dues. h) Mr. Amarnath Shroff filed an application dated March 7, 2005 before the learned Executing Court, Alipore praying for, inter alia, to allow him to file a suit for specific performance of agreement dated September 6, 2004. i) M/s. Devine Mercantiles Pvt. Ltd. also filed an application praying for assignment of the decree in its favour and discharge of the Receiver in March 2005. j) By the letter dated March 18, 2005, the plaintiff-bank / decree-holder expressed its willingness to assign the decree in favour of M/s. Devine Mercantiles Pvt. Ltd. and to deliver the title deeds of the property to the company on payment of entire dues. k) Upon hearing both the sides and on consideration of the applications and their objections and the reply, the learned Executing Court rejected both the applications filed by the Mr. Amarnath Shroff and M/s. Devine Mercantiles Pvt. Ltd. by the impugned order dated March 18, 2006. Being aggrieved, the two applicants have preferred the two revisional applications. l) Shree Ganga Construction Company Ltd. (of which Mr. Amarnath is a Director) deposited a sum of Rs.61 lakhs as fixed deposit with the plaintiff-Bank to show bona fide attitude of purchasing the premises in suit in 2005. m) On February 14, 2007, a sum of Rs.70 lakhs was deposited with the Allahabad Bank by way of a fixed deposit in the name of Christopher Housing Developers Pvt. Ltd., and n) On August 25, 2010, an affidavit was filed by Ranjit Sur and Sanjit Sur thereby denying that any MoU had been executed between them and Mr. Shroff and further stating that Allahabad Bank had no claim against the Surs as the matter had been fully and finally settled between the parties.;