SUN BIOTECHNOLOGY LTD. Vs. BIHAR STATE

JUDGEMENT

(1.) IN terms of a contract in writing dated 14th September, 2000, the petitioner agreed to purchase and the Respondent -Bihar State Financial Corporation agreed to sell to the petitioner three sets of properties described in Schedules I, II & III to the contract for a consolidated amount mentioned in the agreement. The contract authorises the petitioner to pay the agreed consideration by way of instalments mentioned in the contract together with interest as mentioned in the contract. After the contract was entered into and certain payments were made, those properties were handed over to the petitioner. After such handing over was made, the petitioner found that the Respondent - Corporation has not handed over a part of the properties mentioned in Schedule I to the contract, since it is incapable to deal with the same. Properties mentioned in Schedule I to the Agreement are landed properties. The particulars thereof have been fully described in the said Schedule. The total area of such landed properties comes to little more than 77 acres. There is no dispute that the Respondent -Corporation agreed to sell the properties mentioned in the said agreement which it obtained by exercise of its rights as mortgagee. In other words, a constituent of the Respondent - Corporation had mortgaged those properties in its favour and in exercise of right of such mortgagee, the Respondent -Corporation agreed to sell the same to the petitioner. The petitioner contended that the Respondent -Corporation is incapable of proposing even to sell at least 14.41 acres of such land inasmuch as those were acquired by the State under the Land Acquisition Act much prior to the said agreement. In addition to that, it is the contention of the petitioner that the original mortgagor did not have interest at least in 16.45 acres of land proposed to be sold by the Respondent -Corporation to the petitioner. The petitioner is seeking to contend that the Land Acquisition Department has ac - knowledged that 14.41 acres of such land had been acquired much prior to the date of entering into the said agreement for sale. It is the further contention of the petitioner that much prior to 1958 and at least after expiry of 12 years from 1958 the original mortgagor lost all interest in 16.45 acres of iand. A mortgagee, no doubt can deal with the interest of the mortgagor, but if the mortgagor does not have interest in the land, the mortgagee cannot deal with such interest inasmuch as he cannot claim better interest than the mortgagor.

(2.) THERE is prima facie evidence of the fact that at least 14.41. acres of land proposed to be sold was acquired by the State Government much prior to the date of entering into the aforementioned agreement. The respondent corporation has almost accepted that land slightly over 5 acres was acquired. It would not be appropriate on my part at this stage to make any comment in relation to 16.45 acres of land in respect whereof it is the contention of the petitioner that the mortgagor did not have any interest in the said land as on the date the mortgagee exercised his power under the mortgage inasmuch as that is not established even for prima facie view on any documentary evidence emanating from an undisputed source although the petitioner is seeking to rely upon the records of rights emanating from the Government records.

(3.) IT is true that when there is prima facie evidence of the fact that a part of the property proposed to be sold has been acquired, it was improper on the part of an instrumentality of the State, as that of the Respondent -Corporation, to claim for the instalments in its totality together with interest, for it is incapable of delivering that acquired land to the petitioner. However, there appears to be no acceptable standard at least upto this stage to apportion the price. As aforesaid, the price of the items was one. There is no dispute that items mentioned in Scheduled II & III have not been handed over to the petitioner. It is also not the contention that none of the items mentioned in Schedule I has been handed over to the petitioner. It is the contention that some of the items mentioned in Schedule I have not been, as the same could not be, handed over to the petitioner. In such a situation, assuming that 14.41 acres or 16.45 acres or 30.86 acres of land, being the subject matter of Schedule I, cannot be handed over to the petitioner, at this stage before taking evidence, apportionment of the price for inability to hand over such land would be an impossibility inasmuch as the consideration was a composite consideration for all items mentioned in all the Schedules. In such circumstances, I think the thai court as well as the appellate court have correctly held that it is not the appropriate stage to issue an order of injunction, as was prayed for.