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CASE NO.: Appeal (civil)  4857 of 1992

PETITIONER: SACHHIDANANDA BANERJEE  (DEAD) THR. LRS.

RESPONDENT: TILAKRAM GHOSH (DEAD)THR. LRS. & ORS

DATE OF JUDGMENT: 11/05/2005

BENCH: CJI R.C. LAHOTI, G.P. MATHUR & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T

O R D E R  

IN I.A. NO. 6  

P.K. BALASUBRAMANYAN, J.

                This is an application for a modification of the Judgment of this  Court dated 12.11.1992 and for certain consequential reliefs.     By that  order, this Court clarified an earlier order dated 10.10.1988.   The dispute  related to a partnership running a theater.   Disputes having arisen, a notice  of dissolution was given.   It was followed by an arbitration.   An award was  passed on 24.09.1953 which was made the rule of court.   That was  challenged in appeal in the High Court of Kolkatta.   The appeal was  allowed and the award was set aside.   A petition for special leave to appeal  was dismissed by this Court on 23.07.1979.   Taking advantage of the  award, the group of shareholders referred to as Banerjee Group took  possession of the theater.   But in view of the setting aside of the award, not  interfered with by this Court, the partnership stood revived.    

       It appears that the Banerjee group had entered into an agreement for  sale with one Banishree Pictures.   Banishree Pictures filed a suit for  specific performance of the agreement for sale.  There was a consent decree  on 22.9.1977 in that suit.   The group which came to be known as  Sadhukhan group was acknowledged to have purchased the rights of  Banerjee Group.   Joint receivers who had been put in possession of the  theater, pending this dispute were directed to deliver possession to the  Sadhukhan Group.   Another set of persons called the Ghosh Group  claiming interest in the partnership, filed a Suit No.649 of 1977 against the  Banerjee Group and the Sadhukhan Group challenging the consent decree.   In that litigation the High Court held on 11.5.1988 that the consent decree  dated 22.9.1977 was not lawful and it was void.   A fresh decree for  dissolution of the partnership was passed as on 11.5.1988.  The said  decision was challenged in this Court.   But on 10.10.1988 the petition for  special leave to appeal was dismissed.  This Court noticed the readiness of  the third Group, namely, the Ghosh Group to buy out the 83% outstanding  shares in the partnership, on payment of Rs.14,94,000/- the total value being  assessed at Rs.18,00,000/-.  It also affirmed the finding that the Ghosh  Group held 17% in the partnership.   By the order dated  12.11.1992 this  Court clarified that the matter will stand remitted to the learned Single  Judge of the High Court and that the scope of the proceedings would be the  adjudication of the inter se dispute between the Banerjee Group and the  Sadhukhan Group.  The Ghosh Group thereafter filed IA No.3 for extension  of time for deposit of Rs.14,94,000/-.    IA. No.4 was filed inter alia seeking  a direction to the learned Single  Judge of the High Court to expedite the  adjudication as directed by this Court in its order dated 12.11.1992 between

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Sadhukhan Group and Banerjee Group.   This Court by order dated  18.8.1993 granted an extension of time to Ghosh Group on condition that  interest also be paid on the sum of Rs.14,94,000, originally fixed, making it  in all Rs.16,00,000/-   Be it noted that the value of the theater earlier  adjudged at Rs.18,00,000/- was not disturbed.   This Court also directed the  Single Judge of the High Court to expedite the adjudication of the dispute  between the Sadhukhan Group and the Banerjee Group.

       It is the case of the Sadhukhan Group in the present petition that the  Ghosh Group had not paid the amounts as directed and in that situation, the  order earlier made may be modified and the Sadhukhan Group may be  permitted to purchase the 17% shares of the Ghosh Group by paying 17% of  the sum of Rs.18,00,000/- originally assessed as value.   It is submitted in  the petition that the dispute between the Sadhukhan and the Banerjee  Groups had been settled and 83% shares of the Surashree  Cinema were  owned by Sadhukhan Group.   Since the Ghosh Group remains a defaulter,  it would be just and proper to direct that group to receive the sum of  Rs.3,06,000/- being 17% of the total value of Rs.18,00,000/- and put the  Sadhukhan Group in possession of the theater by issuing appropriate  directions to the trial court and the receiver.

       Counsel for the petitioner submitted that since the Ghosh Group did  not take advantage of the original order in its favour and the extension of  time granted by this Court, this was a fit case where the rights of Ghosh  Group should be directed to be conveyed to the Sadhukhan Group on  payment of 17% of the value originally fixed.   In the alternative, counsel  submitted that a direction may be issued to the trial court to get the theater  sold through the receiver in an appropriate manner and direct the division of  the proceeds on the basis of the shares that have now become settled.   No  one has appeared on behalf of Ghosh Group or the Banerjee Group to raise  any objection.   But we find that the valuation of the theater was made quite  sometime back and at this distance of time it would not be just to permit  Sadhukhan Group to pay off the Ghosh Group 17% of the value as then  assessed.  It is notorious that values have gone up.  In such a situation, we  think that it will be more equitable if we direct the trial court to have a sale  conducted by public auction after due publicity, clarifying that the  respective groups of sharers would also be entitled to participate therein.    After the sale is approved by the court, it will be for the court to  expeditiously direct the disbursement of the amounts to the respective  sharers after settling the accounts of the receiver and the theater until the  same is put in possession of the purchaser.

       The application is disposed of with the above directions.