Jyotsna Mullick & Ors vs Kamalesh Mallick & Ors.

This application is opposed by the respondent No. 2. It is submitted on behalf of the respondent No. 2 that it is an ancestral property and without exploring the possibility of an amicable partition of the suit premises, the decision to sell the property either in favour of M/s. Sakar Projects Private Limited or through advertisement is premature.

The above submission is not acceptable at this stage in view of the order passed by Justice I. P. Mukerji on 26th February 2014 in which His Lordship has recorded that the 2nd defendant has got no locus to challenge the application which was under consideration being GA No. 310 of 2014 where a prayer was made for implementation of the order dated 24th September 2013 and for direction upon the Commissioner of Partition / Receiver to be armed with certain additional powers so that the order can be effectively implemented. Justice Mukerji has recorded that since the 2nd defendant did not prefer any appeal from the order dated 24th September 2013 by which the report of the Commissioner of Partition was accepted and opportunity was given to put up the property for sale, it is no more open for the 2nd defendant at this stage to raise any such objection. On similar ground, this court is also not inclined to accept the objection raised by the respondent No. 2.

The defendant No. 1 was appointed as the sole Receiver to administer the properties in question. Mr. Sondwip Mukherjee, advocate, was appointed to supervise the functioning of the sole Receiver and Commissioner of Partition. The Commissioner of Partition was empowered to enter into necessary development agreement with the developer, signing the same, executing necessary power of attorney and so on. The defendant No. 1 / Receiver-cum-Commissioner of Partition proposed a development agreement with Sakar Projects Private Limited. In the report filed by the Supervising Receiver on 19th July 2018, the Supervising Receiver gave the following opinion:-

"(a) The question of valuing and partitioning the properties does not and cannot arise, particularly in view of the fact that there is practically no fund with the defendant no. 1 / Commissioner of Partition-cum-Receiver relating to the concerned Estate;

(b) It is possible to develop the properties mentioned in paragraph 7(b) hereof and/or in the proposed development agreement;

(c) No objection has been raised by any party on any ground whatsoever to the proposed development agreement or the implementation thereof;

(d) Once the proposed development agreement gets the blessings of this Hon'ble Court, there will be some money flowing into the coffers of the Estate;

(e) Subsequent to the development of the properties mentioned in the proposed development agreement and subject of course to the sanctioning by this Hon'ble

Court, the residential property may be partitioned after obtaining requisite permission."

The report also, inter alia, records that the defendant No. 2 has not raised any objection to any of the terms and/or clauses of the proposed development agreement which was intended to be executed in favour of Sakar Projects Private Limited.

In view of the aforesaid, the Supervising Receiver shall cause necessary publication to be made once in the English daily "The Statesman" and once in the Bengali daily "Bartaman" inviting offers for joint development of the suit premises within one week from date. The intending bidders shall be allowed to inspect the property before submitting their offer in a sealed envelope. The offers shall be submitted within three weeks from the date of publication. No offer, however, shall be considered as valid unless such offer is accompanied by a demand draft of Rs. 30 lakh to be drawn in favour of the Supervising Receiver. The offer of Sakar Projects Private Limited is kept pending and to be considered along with the offer/s, if any, received by the adjourned date.

The matter shall appear under the heading 'For Orders' on 6th February 2019 when the Supervising Receiver shall place the offers for consideration.