Reply To: Sk. Abdul Odud Ali vs Emanulla Khan And Others(16/07/2021)

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Smt. Kamala Rani Roy & Ors vs Sri Sambhu Sen & Ors

DATE: 18 December, 2020

In our view, when the inquiry is being made by the Munsif, whether in respect of the stated consideration, or in respect of any additional amounts which may be payable, the pre-requisite of deposit of the amount of the stated consideration under Section 8(1) of the said Act would be required to be fulfilled. The phraseology “the remainder, if any, being refunded to the applicant” would have to be understood in that context. The word “remainder” is in reference to any amount which, on inquiry about the stated consideration, may be found to have been deposited in excess, but it cannot be left at the own whim of the applicant to deposit any amount, which is deemed proper, but the full amount has to be deposited, and if found in excess on inquiry, be refunded to the applicant.

  1. We are, thus, firmly of the view that the pre-requisite to even endeavour to exercise this weak right is the deposit of the amount of sale consideration and the 10% levy on that consideration, as otherwise, Section 8(1) of the said Act will not be triggered off, apart from making even the beginning of Section 9(1) of the said Act otiose.

  2. The last question which arises is whether the respondent can now be granted time to deposit the balance amount. When the direction was so passed, in pursuance of the order of the appellate court, the respondent still assailed the same. The requirement of exercising the right within the stipulated time, in respect of the very provision has been held to be sacrosanct, i.e., that there can be no extension of time granted even by recourse to Section 5 of the Limitation Act.” (25) Mr. Dasgupta argues that the entire judgment rendered in Barasat Eye Hospital case proceeds on the basis that right of pre-emption is a weak right when the application for pre-emption has been made on the ground of vicinage. Placing reliance upon the last line of paragraph 23 of the said judgment, he submits that the judgment itself has made a distinction between a co- sharer and a contiguous owner for the purpose of pre-emption application. Therefore, Barasat Eye Hospital case is not applicable where the pre-emptor is a co-sharer. (26) Though I find the argument advanced by Mr. Dasgupta to be very attractive, I am unable to persuade myself to accept such contention. It does not appear that the Supreme Court has expressly made any such distinction between a co-sharer and a contiguous owner for the purpose of deposit to be made under Section 8 of the Act. It is not permissible to construe otherwise by way of making any logical deduction from any observations made in the said judgment.