MAGMA LEASING LIMITED Vs. AJOY KUMAR SEN

JUDGEMENT

(1.) This appeal is from an order dated 19.12.2001 passed by a learned Judge on an Execution Application filed by the appellant for appointment of a Receiver in respect of premises No. 40, Gariahat Road (South), Calcutta and 11 Girish Ghosh Road, Calcutta. A further direction was prayed for taking possession of the premises and to make an inventory of all immoveable and assets lying thereat and with a further direction on the Receiver to sell the said premises either by public auction or by private treaty and out of the sale proceeds the Receiver was also to be directed to pay the sum to the decree-holder in protanto satisfaction of the decree after meeting the costs, charges and expenses.

(2.) The learned Judge by the order under appeal refused to pass any order on the said application (G.A. 3227 of 2001) being Execution Application No. 1 of 1998, inter alia, on the ground that in respect of the property in question namely 40, Gariahat Road (South), Calcutta (hereinafter referred to as the 'said property') there is a mortgage prior to the award by the arbitrator and that the said mortgage was put into execution before 1997.

(3.) The material facts of the case out of which the present dispute arises are as follows: On or about 19th May, 1993, there was a hire-purchase agreement between the appellant and the respondent for purchase of a Honda Car. The appellant paid a sum of Rupees 6 lakhs which the respondent agree to pay along with interest. Accordingly, post-dated cheques were given to the appellant by the respondent towards payment. Thereafter on or about 2nd December, 1993, the respondent purchased the said premises with a building standing thereon and the purchase was made in the name of one Tirupati Developers Pvt. Ltd. (hereinafter referred to as the 'said Company') and in the said company the only other share-holder was respondent's wife. As the cheques issued by the respondent were dishonoured and despite repeated requests payments were not made the appellant filed a suit and also obtained an order for appointment of Receiver and the Receiver was directed by an order dated 26.9.96 passed by the learned single Judge to take possession of the said car and keep the same in a secure godown to be provided by the appellant at its own cost.