Order No. 17

Ld. Advocate for the petitioners Smt. Mahuya Chatterjee and Ms. Bhagyashree Chatterjee is present.

Ld. Advocate for the Decree holder/respondent is present.

Ld. Advocate for the Judgement debtor no.2 is also present.

On consent of both sides, the Misc. Application dated 18/05/2022 filed by the above named petitioners is taken up for further hearing along with its objection dated 10/08/2022 filed by the Decree holder for some clarification.

Perused. Considered. Heard both side in length.

Ld. Advocate for the petitioners submits that petitioner no.1/ Mrs. Mahuya Chatterjee is the wife of Late Goutam Chatterjee and petitioner no.2 is the daughter of Late Goutam Chatterjee.

The Decree holder Mr. Arup Sarkar filed a complaint case being no.CC/186/2012 against Goutam Chatterjee (opposite party no.1) and others.

During pendency of CC/186/2012 the said Goutam Chatterjee one of the partner of M/s. Trimurti Enterprise died on 18/03/2014 but legal heirs of deceased Goutam Chatterjee were not substituted in CC/186/2012. Subsequently, on 24/08/2016, the Commission had been pleased to pass judgement in CC/186/2012 against all opposite parties directing opposite party nos.1 to 3 to refund Rs.1,25,000/- and Rs.5,50,000/- i.e. in total Rs.6,75,000/- (Rupees six lakh and seventy five thousand) only to the complainant with a further direction to pay compensation of Rs.30,000/- (Rupees thirty thousand) only and Rs.10,000/- (Rupees ten thousand) only as litigation cost within 35 days from the date of order i.d. to pay interest @10% p.a. till full realization.

Thereafter,  the Decree holder Arup Sarkar filed Execution Case being no. EA/71/2016 before this Commission for execution of the judgement passed in CC/186/2012.

Being aggrieved, Judgement debtor nos.2 and 3 filed First Appeal being No. A/975/2016 before the Hon’ble SCDRC, West Bengal which was disposed of on 06/09/2019.

Ld. Advocate for the petitioners submits that the petitioners never brought on record either CC/186/2012 or in execution in EA/71/2016.

The predecessor in interest of the petitioners Goutam Chatterjee (since deceased) was one of the partners of M/s. Trimurti Enterprise. Judgement debtor nos.2 and 3 are remaining partners of M/s. Trimurti Enterprise.

In no way the petitioners are connected with M/s. Trimurti Enterprise. Moreover, as the petitioners are not parties in EA/71/2016,  there is no question to issue any warrant of arrest against them. It is prayed that the order of issuing warrant of arrest against petitioners be recalled.

Ld. Advocate for the Decree holder/respondent submits that the Hon’ble SCDRC, West Bengal in FA No. A/975/2016 had been pleased to pass final order on 06/09/2019 against the appellants (opposite party nos.1 to 3 of CC/186/2012 i.e. Goutam Chatterjee, Sudip Ghosh and Debabrata Mitra), as the death certificate of Goutam Chatterjee was not submitted in FA No.A/975/2016.

According to the Decree holder, after getting confirmation regarding the death of said Goutam Chatterjee he filed the amended copy of the execution application in EA/71/2016 pending before this Commission and supplied certified copy of such amended execution application upon Ld. Advocate for the petitioners on 18/07/2022. As the Judgement debtors are not complying the direction of the judgement passed in CC/186/2012 and FA No.A/975/2016, the Commission has rightly issued warrant of arrest against the petitioners. Therefore, the Misc. Application filed by the petitioners is liable to be rejected.

On careful scrutiny of the records of EA/71/2016 and the MA dated 19/05/2022 including its annexures, we find the following:

• CC/186/2012 was filed by the complainant Sri Arup Sarkar in the year 2012.
• Judgement passed in CC/186/2012 against opposite party no.1 Goutam Chatterjee and others on 24/08/2016.
• The photo copy of death certificate of Goutam Chatterjee annexed with the Misc. Application dated 19/05/2022 reveals that Goutam Chatterjee died on 18/03/2014 during pendency of the CC/186/2012.
• Judgement debtor no.2 Debabrata Mitra and the Judgement debtor no.3 Sudip Ghosh filed FA No.A/975/2016 on 05/10/2016
• The Decree holder Sri Arup Sarkar filed EA/71/2016 on 06/12/2016.
• FA No. A/975/2016 disposed of by the Hon’ble SCDRC, West Bengal on 06/09/2019 against Arup Sarkar and others.
• From judgement dated 06/09/2019 passed by the Hon’ble SCDRC, West Bengal, it appears that both the appellants / Judgement debtor nos.2 and 3 disclosed that Judgement debtor Goutam Chatterjee died but as death certificate was not submitted, no effective order in this regard was passed by the Hon’ble SCDRC, West Bengal. It further reveals that respondent no.1 Sri Arup Sarkar contested in FA No. A/975/2016.
• On 15/12/2019 the Decree holder filed Misc. Application which was registered under order 22 Rule 4 of CPC,1908 which was registered as MA/101/2019 on the prayer of substitution of the names of the legal heirs namely Mahuya Chatterjee and Bhagyashree Chatterjee of deceased Goutam Chatterjee / Judgement debtor no.1.

The said MA/101/2019 under order 22 Rule 4 of the CPC,1908 was heard by the Commission on 23/12/2019 and following order was passed.

“The complainant is present.

Ld. Advocate for o.p. appears by filing power.

MA case is thus disposed of.

Let a copy of this order be affix with the Execution Case No,71/2016.

Fix 03/02/2020 for compliance of the order.”

It appears that the above mentioned order passed in MA/101/2019 has been reiterated in EA/71/2016 in verbatim.

• On 03/02/2020 the Commission had been pleased to pass an order in EA/71/2016 directing Judgement debtor no.1 and Judgement debtor no.2 for payment of the rest amount on 02/03/2020 along with other directions.
• We find that there is no speaking order passed by the Commission either in MA/101/2019 or EA/71/2016 substituting the names of Smt. Mahuya Chatterjee and Ms. Bhagyashree Chatterjee in place of deceased Judgement debtor no.1 Goutam Chatterjee.                                                    

The direction of the Commission to pay the rest amount by the Judgement debtor nos.1 and 2 passed vide order no.8 dated 03/02/2020 suggests that the names of the petitioners have not been substituted in place of Judgement debtor no.1 Goutam Chatterjee vide order dated 23/12/2019 passed in MA/101/2019.

It is very surprising to note that without any order of substitution or any order of direction by the Commission to file any amended execution application, the Decree holder suomoto has filed an amended execution application on 03/02/2020 in EA/71/2016 mentioning the names of Smt. Mahuya Chatterjee and Ms. Bhagyashree Chatterjee as Judgement debtor nos.1(a) and 1(b). We find that there is no mention of amended copy of execution application in order no.8 dated 03.02.2020.

It further appears that thereafter on the basis of this amended application filed by the decree holder surreptitiously on 03.02.2020.  The erstwhile Commission vide order no.9 dated 02.03.2020 issued non bailable warrant of arrest against Smt. Mahuya Chatterjee and Ms. Bhagyashree Chatterjee.

Having considered the discussion made above, it is crystal clear that Smt.                                     Mahuya Chatterjee and Ms. Bhagyashree Chatterjee are not party to this execution case and the non bailable warrant of arrests have been issued against them inadvertently by the erstwhile Commission.

From the written objection filed by the Decree holder / respondent we find that the Decree holder is completely silent as to whether any order of substitution of the name of the petitioners in place of Goutam Chatterjee          ( since deceased) has been passed by the Commission.

On the other hand the Decree holder/respondent only stated that he has filed amended application in the execution case. 

From such averment it is crystal clear that the Decree holder/respondent also  aware of that the petitioners name were not substituted in EA/71/2016 and he surreptitiously filed an amended copy of execution application mentioning name of the petitioners as Judgement debtor nos. 1(a) and 1(b) without any order of the Commission.

Having considered the discussion made above.

We are of the opinion that the Misc. Application dated 19.05.2022 filed by the petitioners have merit and liable to be allowed.

Hence, it is

O R D E R E D

that the Misc. Application be and the same is allowed on contest.

Recall warrant of arrest, if any of both the petitioners at once without any delay.

Office to comply.