Amal Kumar Ghosh & Ors vs Basanta Kumar Almal

2. The first respondent herein filed a suit for specific performance against the appellants herein. That suit was dismissed by a learned single Judge of the High Court in the year 1981. The first respondent filed an appeal against the dismissal of the suit before the Division Bench of the 2 High Court. During the pendency of the appeal, the parties (first respondent and appellants) arrived at a settlement and in terms of the said settlement, the suit was decreed on 5.8.1986. Under the terms of settlement, the appellants agreed to sell 90 Kottahs of land to the first respondent or his nominees at a price of Rs.10,000/- per Kottah. Clauses 3, 6 and 7 of the 'Terms of Settlement' which are relevant, are extracted below:

"3. Immediately after the filing of these terms of settlement, the plaintiff shall pay to the defendants a sum of Rs.3,00,000/- (Rupees Three Lacs only) in part payment of the consideration and the balance sum of Rs.6,00,000/- (Rupees Six Lacs only) shall be paid of the time of completion of the conveyance and if several deeds of conveyance are executed for the parts of portions of the said premises then and in that event the said amount of consideration shall be apportioned and such amount as apportioned shall be paid of the time of execution of each deed of conveyance after taking into account the advance payment of Rs.3,00,000/- (Rupees Three Lacs only) paid by the plaintiff.

4. In pursuance of the said three letters, the Receiver paid Rs.300,000/- to the appellants at the rate of Rs.1,00,000/- each. The Receiver issued a certificate dated 2.1.1987 to the appellants wherein he confirmed receipt of the instructions of the appellant as follows: 4

6. On 6.12.1998, the appellants wrote to the Receiver requesting for a 'Statement of Account' and also information as to whether the Receiver had incurred any expenses in respect of statutory liabilities etc. on their behalf. This brought forthwith a reply dated 28.12.1998 from the Receiver informing the appellants that as on that date, as Receiver, he was holding a sum of Rs.5,29,717/- in fixed deposit towards the balance. Thereafter, the appellants wrote to the Receiver on 8.1.1999 requesting for payment of the amount. The Receiver replied on 21.1.1999 that he will release the amount to the appellants on their obtaining a 'no objection certificate' from Parks Services Pvt. Ltd. The appellants did not furnish 'no objection certificate' from Park Services Pvt. Ltd., but again wrote a letter dated 24.3.2005 5 calling upon the Receiver to pay the amount that was held by him as Receiver.

7. Simultaneously with the execution of the Deed or Conveyance in accordance with these terms of settlement as hereinafter mentioned the plaintiff shall make over to the defendants or to the Receiver as the case may be the balance consideration money less any amount which may be paid or deducted by the plaintiff on account of municipal taxes and other outgoings in respect of the said property in accordance with these Terms of Settlement. In that event, the balance consideration is made over to the Receiver the same shall be made over by the Receiver to the defendants and upon such payment the Receiver shall stand discharged and filing of the account by the Receiver shall be dispensed with."

15. Having regard to the facts and circumstances, and the aforesaid submissions, we allow this appeal and issue the following directions:

with the Calcutta High Court within one month from today. The question of liability of first respondent to pay interest on the said amount from 23.8.2002 to date of such deposit, shall be decided by the High Court. The amount to be deposited by the first respondent shall be kept in fixed deposit until the disposal of the appeal.

(iii) The High Court will examine afresh the entire issue as to whether the Receiver had discharged his functions properly and complied with the directions. If it is found that he has not complied with the same, appropriate action may be initiated. The High Court however will take note of the fact that the Receiver had at no time converted the funds to his personal use, but had maintained it separately.

(iv) The High Court will also decide as to who is entitled to the amount and pass appropriate orders. If the appellants are found to be entitled to the amount, then it is needless to say they will be entitled to it with interest upto the date of payment.

April 28, 2010.