w w w . L a w y e r S e r v i c e s . i n



India Media Services Pvt. Ltd. v/s Visveshwaran Suresh Kumar & Others

    MAT. No. 2108 of 2017 & CAN. No. 11767 of 2017

    Decided On, 24 September 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE CHIEF JUSTICE MR. JYOTIRMAY BHATTACHARYA & THE HONOURABLE MR. JUSTICE ARIJIT BANERJEE

    For the Appearing Parties: Saptangsu Basu, Sr. Advocate, Srijib Chakraborty, P. Sancheti, Arindam Banerjee, Sandip Agarwal, Ishaan Saha, Tanay Agarwal, Soumitra Mukherjee, Advocates.



Judgment Text

Arijit Banerjee, J.

1. By consent of the parties the appeal and the stay application are taken up together for hearing and disposal.

2. This appeal is directed against a judgment and order dated 24 November, 2017 passed by a Learned Single Judge in WP No. 23428 (W) of 2017 (Visveshwaran Suresh Kumar & Anr.-vs.-The State of West Bengal & Ors.)

3. The brief facts of the case are that the appellant company became entitled to purchase a property situate in Hyderabad in a Court proceeding. A Nomination Agreement was executed between the appellant company and the writ petitioner/respondent no. 2 company (in short ‘SBPL’) wherein the appellant nominated SBPL to receive conveyance of the said property in its name. Disputes and differences arose between the appellant and SBPL which were referred to arbitration in pursuance of the arbitration clause contained in the Nomination Agreement. Before the Arbitral Tribunal a point was taken by the appellant that the Nomination Agreement was insufficiently stamped and as such was liable to be impounded under the provisions of the Indian Stamp Act, 1899. The said agreement was, in fact, impounded by the learned Arbitrator and sent to the Collector of Stamp Revenue, Kolkata for valuation of the stamp duty payable thereon and also penalty. The Collector assessed the stamp duty including penalty, in the sum of approximately Rs. 11.26 crores applying Art. 23 of Schedule 1A to the Indian Stamp Act.

4. SBPL and its Chief Executive Officer filed a writ petition being WP No. 23308 (W) of 2017 in this court challenging such assessment of stamp duty by the Collector. The writ petition was affirmed on 1 September, 2017.

5. On 4 September, 2017 SBPL and its Vice President filed another writ petition being the writ petition on which the order impugned herein was passed. On 5 September, 2017 SBPL sought leave of the Ld. Single Judge to withdraw WP No. 23308(W) of 2017 (hereinafter referred to as the ‘first writ petition’). The first writ petition was dismissed as withdrawn.

6. The appellant herein filed an application for addition of party before the Ld. Single Judge and got itself impleaded as a party respondent in WP No. 23428 (W) of 2017 (hereinafter referred to as ‘the second writ petition’).

7. Before the Ld. Single Judge at the final hearing of the second writ petition, the appellant herein attacked the maintainability of the said writ petition. It was submitted that the first writ petition was withdrawn without obtaining leave to file afresh on the self-same cause of action. Hence, the second writ petition was hit by the provision of O. XXIII R. 1 of the CPC, 1908 and was not maintainable. It was further submitted that SBPL was guilty of suppression of material facts inasmuch as in the second writ petition it was not stated that there was an earlier writ petition which was withdrawn without any leave being granted to file a second writ petition on the self-same cause of action.

8. The Ld. Judge held that the O. XXIII R. 1 of the CPC did not apply to the facts of this case. The second writ petition was already on record when the first writ petition was withdrawn. The Ld. Single Judge referred to the Apex Court decisions in the cases of Vimlesh Kumari Kulshrestha-vs.-Sambhajirao & Anr., (2008) 5 SCC 58 and Veerandra Kumar Goutam & Ors.-vs.-Karuna Nidhan Upadhyay & Ors., (2016) 14 SCC 18 which were cited by the Learned Counsel for the writ petitioners. The Ld. Judge held that the second writ petition was maintainable. On merits, the Ld. Judge held that the Collector’s order dated 30 August, 2017 assessing the stamp duty in respect of the said agreement at Rs. 11,26,39,488/- was an unreasoned order. The basis on which the market value of the property in question had been arrived at was not discussed in the assessment order. An order affecting the rights of parties is required to be informed with reasons. Accordingly, the learned Judge set aside the impugned assessment order and remanded the matter back to the Collector for a decision afresh. It is this order which is under challenge in the present appeal.

9. We have heard learned Counsel for the parties. The learned Counsel made submissions similar to what had been made before the Ld. Single Judge and we do not reiterate the same here. As regards the maintainability of the second writ petition on which the impugned order was passed, we are in complete agreement with the Ld. Single Judge. O. XXIII R. 1 of the CPC has no manner of application to the facts of the present case because that provision would debar a person from filing a second writ petition after withdrawing a previous writ petition without leave to file afresh on the self-same cause of action. However, if on the date of withdrawal of the first writ petition, a second writ petition on the self-same cause of action is already in the records of the Court, O. XXIII R. 1 would not apply. The two Apex Court decisions referred to by the Ld. Single Judge are clear authority for this proposition. As regards the merits also, we do not see any reason to interfere with the order of the Ld. Single Judge. Indeed, an order of a public Authority or a statutory Authority which has adverse civil consequences for a party must be supported by reasons. Reasons are the life blood of an order. The reasons show how the mind of the Authority worked and on what basis the order has been passed. An order cannot be based on mere ipse dixit or opinion of an Authority. Admittedly, the order impugned before the Ld. Single Judge was devoid of reasons. Accordingly, the Ld. Judge rightly quashed the order and remanded the matter back to the Collector.

10. As regards the point of suppression of material facts, even if the factum of the first writ petition was not mentioned in the second writ petition, we do not feel that it was such a suppression that would call for dismissal of the second writ petition on the ground of suppression alone. It is a matter of record that the first writ petition was affirmed on 1 September, 2017 and was filed presumably on that date itself. In its wisdom SBPL decided to file a second writ petition. The second writ petition was filed on 4 September, 2017. The first writ petition was withdrawn on 5 September, 2017. The factum of withdrawal of the first writ petition could not have been mentioned in the second writ petition because the withdrawal took place after filing of the second writ petition. In any event, we do not find any oblique motive on the part of SBPL to deliberately suppress the factum of the first writ petition in the second writ petition. In our opinion, such omission on the part of SBPL was not to gain any undue or unfair advantage by suppressing a fact before the Court.

11. There is, yet, another reason as to why we propose to dismiss this appeal. Pursuant to the order of the Ld. Single Judge the Collector held fresh hearing where both the appellant and SBPL participated. Thereafter, a fresh assessment order was passed which was challenged by filing an application being CAN 3632 2018 in connection with WP 4475(W) of 2018 which writ petition was filed by SBPL praying for, inter alia, a declaration that the said Nomination Agreement is duly stamped and a further declaration that the said agreement is not covered under the provisions contained in Art. 23 of Schedule 1A to the Indian Stamp Act. The fresh assessment order was passed by the Collector after WP No. 4475 (W) of 2018 was filed and hence it was challenged by filing CAN 3632 of 2018 in the said writ applic

Please Login To View The Full Judgment!

ation. The said writ application and CAN 3632 of 2018 were disposed of by a judgment and order dated 25 June, 2018 passed by the Ld. Single Judge wherefrom SBPL has preferred an appeal being MAT 593 of 2018. Hearing of the said appeal has been concluded by us and judgment shall be delivered shortly. Thus, the order of the Ld. Single Judge impugned in this appeal worked itself out and stood implemented. The appellant company participated in such implementation. Accordingly, this appeal has become infructuous. 12. For the reasons aforestated, this appeal fails and is dismissed. There will, however, be no order as to costs. 13. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. Jyotirmay Bhattacharya, C.J. I agree.
O R