Harish Tandon, J. - (1.) The present application has been filed taking advantage of the observations made by the Division Bench in the judgment and order dated 18th February, 2013 passed in APO No. 387 and 388 of 2011. Before proceeding to record the observations recorded in the said order by the Division Bench and affirmed by the Supreme Court it would be apposite to narrate the salient facts involved in the instant case.
(2.) Admittedly, one Bhupatish Roy Chowdhury was the owner of the tea estate known as Toonbarrie Tea Estate and entered into an agreement with Khem Chand Dhingra for sale at a consideration of Rs. 55 lacs. Apart from the various terms and conditions embodied in the said agreement Clause 4 thereof provides that the said owner would hand over the physical possession of the tea garden to the said intending purchaser upon payment of the stipulated sum. It is not in dispute that the said owner handed over the possession of the tea garden to Mr. Dhingra and also executed an irrevocable power of attorney in his favour authorizing and empowering him to run, manage and carry on the business of the said tea garden. It was further stipulated therein that Mr. Dhingra would obtain a necessary permission from the office of the Deputy Commissioner of Jalpaiguri for effecting such transfer and entire transaction shall be completed on or before 1st January, 1989. The time was thereafter extended and it was further agreed that the sale would be effected in favour of the nominee of Mr. Dhingra with the Toonbarrie Tea Company Pvt. Ltd. and the payment already made would be treated to have been made in terms of the original agreement dated 12th March, 1988. Alleging that the said owner failed and neglected to perform his part of obligation under the said agreement a suit being C.S. 486 of 1991 was filed by Mr. Dhingra as well as the said nominee company in the original side of this Court for specific performance of the said agreement. While the said suit was pending an application for addition of parties was taken out by one Santosh Kumar Agarwal and M/s AGR Plantations Pvt. Ltd. which was eventually allowed and they were added as the defendant nos. 2 and 3 in the said suit.
(3.) Subsequently, the said suit was compromised and the terms of settlement formed part of the said compromise decree. The salient feature of the said terms of settlement was that the original owner shall effect the sale of the tea estate in favour of the AGR Plantations Pvt. Ltd. for a consideration price of Rs. 63 lacs out of which a sum of Rs. 1 lac was paid on or before the execution of the said terms of settlement and a further sum of Rs. 6 lacs shall be paid on the date of an order that may be passed in the said suit and a further sum of Rs. 4 lacs to be paid within 16 days from the date of the order accepting the terms of settlement and forming the part of the decree. The remaining sum was agreed to be paid simultaneously with the execution and registration of the deed of conveyance. Apart from the same, the bank dues of the original owner in relation to the tea garden shall be paid by the said nominee and also the other liabilities including the provident fund dues. The sale shall be completed by executing and registering the appropriate conveyance within ninety days from the date thereof or within such further period if the same is extended by mutual agreement of the parties. The said settlement further provides that the original owner would arrange to obtain the necessary clearance under Section 230A(1) of the Income Tax and also from the Deputy Collector, Jalpaiguri and the said Santosh Kumar Agarwal shall render all his help and assistance as may be required for such purposes.;