Calcutta High Court
Camac Agency Private Limited vs Husna Bano Alias Husn Banu & Ors on 19 December, 2024
OD- 11
IN THE HIGH COURT AT CALCUTTA
(ORDINARY ORIGINAL CIVIL JURISDICTION)
ORIGINAL SIDE
G.A. No. 1 of 2024
With
G.A. No. 2 of 2024
In
C.S. No. 204 of 2024
CAMAC AGENCY PRIVATE LIMITED
-VS-
HUSNA BANO ALIAS HUSN BANU & ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Hearing Concluded On : 11.12.2024
Order On : 19.12.2024
Appearance:
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Sarvapriya Mukherjee, Adv.
Mr. Arif Ali, Adv.
Mr. Arnab Sardar, Adv.
... for the plaintiff.
Mr. Krishnaraj Thaker, Sr. Adv.
Mr. Yash Vardhan Deora, Adv.
... for the defendant no. 1.
Mr. Anindya Kr. Mitra, Sr. Adv.
Mr. Soumya Roy Chowdhury, Adv.
2
Mr. Ishaan Saha, Adv.
Mr. Manoj Sharma, Adv.
Mr. Tanay Agarwal, Adv.
Mr. Deepak Kripalini, Adv.
Ms. Yamini Sharma, Adv.
...for the defendant nos. 2 and 3.
ORDER
1. The plaintiff has filed the present application being G.A. No. 1 of 2024 in C.S. No. 204 of 2024 praying for grant of interim order. By an order dated 1st October, 2024, this Court passed an ad-interim order restraining the defendants, their men, agents, assigns, from taking any steps or further steps or in any manner dealing with or disposing of the suit said property or any portion thereof till 27th November, 2024. The interim order extended from time to time.
2. The defendant no.1 has filed an application being G.A. No. 2 of 2024 in C.S. No. 204 of 2024 praying for vacating ad-interim order dated 1st October, 2024. The defendant nos. 2 and 3 have not filed any application for vacating interim order but have argued the matter on merit raising objection for extension of interim order.
3. The plaintiff has relied upon Clauses 8, 10 and 22 of the Deed of Lease dated 29th November, 1989 entered between the father of the defendant no.1 and the plaintiff. The plaintiff says that as per the said clauses, the plaintiff shall have the first right to purchase the demised premises i.e. right of pre-emption.
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4. Mr. Abhrajit Mitra, Learned Senior Counsel representing the plaintiff submits that on 9th April, 2001, the defendant no.1 through her constituted attorney offered to sell the property to the plaintiff "as is where is basis". He submits that in the said offer, the defendant no.1 has not mentioned about the price of the property. He submits that the offer made to the plaintiff was for sale of the entire property and not for the demised premises. He submits that in reply to the said notice, the plaintiff informed that the plaintiff is eager to exercise its right to acquire the property "as is where is basis" but no sale of the property of the defendant no.1 took place immediately thereafter.
5. The plaintiff has published a notice on 11th September, 2007 informing general public not to enter into any such negotiation without informing the plaintiff and entering into such negotiation shall be at their own risk and cost.
6. Mr. Mitra submits that violating Clauses 8, 10 and 22 of the Deed of Lease, the defendant no.1 has registered a conveyance deed with respect to the said property including the plaintiff's demised premises in favour of the defendant nos. 2 and 3 without offering to the plaintiff in terms of Clauses 8, 10 and 22.
7. Mr. Anindya Kr. Mitra, Learned Senior Advocate representing the defendant nos. 2 and 3 submits that the plaintiff has not even pleaded in the petition that any of the three clauses of the deed of lease required consent of the lessee for transferring the said property by way of sale. 4 He submits that Clause 22 provides that the lessor shall not transfer any portion of the said property or any part thereof by way of super lease, lease out or letting out to any other persons without first having obtained written consent of the lessee. He submits that it is the case of outright sale and not by way of any super lease, lease or letting out.
8. Mr. Mitra submits that plaintiff is bound by its own pleadings and no claim contrary to the pleading can be entertained by this Court and if entertained, that will be a matter of lack of jurisdiction. He submits that according to the own pleadings of the plaintiff, the plaintiff's alleged right to purchase is confined to the demised premises but no prayer is made in the petition or plaint for purchase or restraining transfer of the demised premises. He submits that all the prayers in the plaint are for restraining transfer of property by sale of the entire property.
9. Mr. Mitra submits that the plaintiff has obtained an ad-interim order on the basis of Clause 22 but the said clause does not provide that in case of sale the said property by the lessor, without the consent of the plaintiff, the plaintiff would have the right to purchase the said property. He submits that the remedy for breach of Clause 22 is not mentioned in Clause 22, but is provided in Clause 17 of the Deed of Lease.
10. Mr. Mitra submits that none of the clauses confers on the plaintiff, being a lessee of a portion of the said property, the right of pre-emption 5 in case of sale or right to purchase of the said property in case of sale or any consent of the plaintiff would be required for sale of the said property. He submits that Clause 8 is applicable only in the event of construction being made on the adjacent lawn or if the lessor wants to transfer the same by letting out or leasing or by way of sale. He submits that Clause 10 is confined to transfer of demised premises i.e. leasehold right without offering the same to the lessee. He submits that this is not the case of assignment or transfer of the deed of lease dated 29th November, 1989 by the defendant no.1.
11. Mr. Mitra submits that the holder of the genuine right of pre-emption has to exercise the option of pre-emption immediately upon knowledge of sale. He submits that from the certified copy of the Deed of Conveyance annexed by the plaintiff appears that certified copy was obtained on 6th September, 2024 and the present application was affirmed on 25th September, 2024 but the plaintiff has not disclosed any documents to show that the plaintiff has exercised his right of pre- emption immediately after the knowledge of sale.
12. Mr. Mitra submits that the injunction to enforce a negative covenant can be obtained provided that the plaintiff has performed all its obligations under the agreement. He submits that the plaintiff has not paid any rent as payable under Clause 1 of the Deed of Lease since 1994.
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13. Mr. Mitra submits that the plaintiff had earlier filed a suit before the Learned City Civil Court at Calcutta being T.S. No. 745 of 1999 in which the plaintiff has made specific prayer for declaration that the defendant nos. 1 to 4 in the said suit in which the defendant no.1 and her father were the party have no right to transfer or let out any portion of the said premises without the plaintiff's written consent and also prayed for restraining the defendants from alienating or transferring or letting out any portion of the premises including the garage to anyone else except the plaintiff. The said suit is dismissed for default thus the prayer made in the present suit is barred by law under Order IX, Rule 8 read Order IX, Rule 9 of the CPC.
14. Mr. Krishnaraj Thaker, Learned Senior Advocate representing the defendant no.1 submits that by a letter dated 9th April, 2001, the defendant no.1 offered to the plaintiff for selling of the property but the plaintiff failed to exercise any right of pre-emption by offering a price for acquiring the said property within 72 hours of receipt of the letter dated 9th April, 2001.
15. Mr. Thaker submits that as per own averments in the plaint and the application, the plaintiff has not been conferred with any right of pre- emption in respect of or in case of sale of the said property and the schedule annexed to the plaint which is marked as "C". He submits that from the plaint and application, it is abundantly clear that the plaintiff has no right of pre-emption in respect of the said property as described in paragraph 5 of the plaint read with Annexure "C". 7
16. Mr. Thaker submits that as per Clause 22, there is no intention to first offer to sell the property to the plaintiff. He submits that in paragraph 4 of the application, the plaintiff stated that the plaintiff has acquired a right of pre-emption by virtue of registered Deed of Lease dated 29th November, 1989 in respect of the demised premises thus, the plaintiff cannot claim relief in respect of the said property as mentioned in Annexure "C".
17. Mr. Thaker submits that the registered deed of lease does not confer any right, title and interest in favour of the plaintiff with respect to the said property. He submits that the plaintiff has supressed the materials facts in the plaint and in the application that the plaintiff has committed breach of the lease deed by not paying the monthly rent and had encroached upon the adjacent portion of the said property which is not covered by the deed of lease.
18. Mr. Thaker submits that the lease was granted to the plaintiff with respect to the demised portion of the said property which was being used for the purpose of office premises and now the plaintiff had converted into a bar-cum-restaurant.
19. Heard the Learned Counsel for the respective parties, perused the materials on records and the judgments relied upon by the parties. The plaintiff has filed the suit praying for declaration of Sale Deed dated 28th June, 2024 is illegal, null and void, mandatory injunction and perpetual injunction. At the time of filing of the suit, the plaintiff has 8 also filed an application for grant of interim relief and as per prayer made by the plaintiff, this Court granted ad-interim injunction. The plaintiff has relied upon Clauses 8, 10 and 22 of the Deed of Lease dated 29th November, 1989 and claiming right of pre-emption and negative covenants but the defendants have acted in violation and breach of the rights of the plaintiff contained in the Lease Deed. Clauses 8, 10 and 22 of the Deed of Lease reads as follows:
"8. THAT the adjacent lawn which is about 7 cottahs 6 chittacks being the same a little more or less shall absolutely belong to the lessor hereof and the Lessee shall have no right and/or claim to raise any objection and/or cause to create any obstruction in respect of any future construction on the said lawn. But in the event of any such construction on the said adjacent lawn the Lessees should be informed and/or offered if the Lessor wants to transfer the same by way letting it out or Leasing or by way of sale.
10. THAT the Lessor hereby undertakes not to transfer the said demised property or any portion thereof without first offering the same to the Lessee otherwise by way of gift or inheritance to his legal heirs.
22. THAT during the continuation of this lease agreement the Lessor hereto of the One Part shall not transfer the said property or any portion thereof by way of super Lease, Lease out an/or letting out to any other person or persons, institution or institutions, company or companies and/or body of individuals without first had and obtained written consent from the Lessee hereof to that respect."
20. As per the Deed of Lease, the total property of the defendant no.1 i.e. partly two storied and partly three brick built house messuage land hereditament drains paths waterways sewerages situated at Premises 9 No. 1, Victoria Terrace, Calcutta -700 017 which is referred as "The Said Property".
21. The entire ground floor of the said property excluding the said lawn, motor garage and flat in occupation of Security Services of India but including the open space situated in front of the porch and the adjoining open space facing Camac Street and Victoria Terrace leased out to the plaintiff which described in Annexure "A" of the deed of lease is the "Demised Premises".
22. In Clause 8 of the Deed of Lease, it is mentioned that "In the event of any such construction on the said adjacent lawn the Lessee should be informed and/ or offered if the Lessor wants to transfer the same by way of letting it out or leasing or by way of sale". Clause 10 provides that the Lessor undertakes not to transfer the said demised property or any portion thereof without first offering the same to the lessee otherwise by way of gift or inheritance to his legal heirs. Clause 22 provides that during the continuation of lease agreement the lessor shall not transfer the said property or portion thereof by way of super lease, lease out and /or letting out to any other person or persons, institution or institutions, company or companies and/ or body of individuals without first had and obtained written consent from the lessee.
23. By a letter dated 9th April, 2001, the defendant no.1 has informed the plaintiff that the defendant no.1 has decided to dispose of the said 10 property at the present market value and /or the interested person who will give the highest offer. The defendant no.1 offered the plaintiff to purchase the said property and to offer the price to the defendant no.1. In the said letter, it was also clarified that if the price given by the plaintiff is the highest price in that event, the defendant no.1 shall register the property in the name of the plaintiff. It was also clarified that the transaction should be 'As is where is basis'. In the letter, time of 72 hours was provided to the plaintiff with the clarification that if no reply is received within the said period it will be presumed that the plaintiff is not interested to purchase the said property.
24. The plaintiff has sent a reply on 19th April, 2001 to the letter dated 9th April, 2001 stating that the same was received by the plaintiff on 16th April, 2001 and in the said reply, the plaintiff has made altogether 14 queries from the defendant no.1. In reply, the plaintiff has not stated anything whether the plaintiff is interested/ ready or willing to purchase. The plaintiff has also not offered any price to the defendant no.1. No correspondences were made between the plaintiff and defendant no.1 thereafter. On 11th September, 2007, the plaintiff has published a notice in the News Paper informing the General Public that there sub-sits a registered lease by and between the plaintiff and the defendant no.1 with respect to the said property and not to enter into any such negotiation with the defendant no.1 and if anybody doing so, the same will be at their own risk and costs.
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25. The plaintiff has relied upon the judgement in the case of McDermott International Inc. Vs. Burn Standard Co. Ltd. and Ors. reported in (2006) 11 SCC 181 and submitted that it is a trite that correspondences exchanged by the parties are required to be taken into consideration for the purpose of a contract. The plaintiff has relied upon the judgment in the case of Dharmaji Shankar Shinde and Ors. vs. Rajaram Shripad Joshi (Dead) Through L.Rs. reported in (2019) 8 SCC 401 and submitted that the question in each case is the determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances. If the words are plain and unambiguous then in the light of the evidence of the surrounding circumstances, they must be given their true legal effect. If there is any ambiguity in the language employed, the intention is to be ascertained from the contents of the deeds and the language of the deed is to be taken into consideration to ascertain the intention of the parties. The plaintiff also relied upon the judgment in the case of D.D. Sharma Vs. Union of India reported in (2004) 5 SCC 325 and submitted that it is also trite that correspondences exchanged by the parties are required to be taken into consideration for the purpose of construction of a contract. Interpretation of a contract is a matter for the arbitrator to determine, even if it gives rise to determination of a question of law. 12
26. The defendant no.1 relied upon the judgment in the case of Bishan Singh & Others Vs. Khazan Singh and Another reported in 1958 SCC OnLine SC 88 wherein the Hon'ble Supreme Court held that:
"7. Before attempting to give a satisfactory answer to the question raised, it would be convenient at the outset to notice and define the material incidents of the right of pre-emption. A concise but lucid statement of the law is given by Plowden, J. in 136 P.R. 1894, at page 511, thus:
"A preferential right to acquire land, belonging to another person upon the occasion of a transfer by the latter, does not appear to me to be either a right to or a right in that land. It is jus ad rem alienum acquirendum and not a jus in re aliena.... A right to the offer of a thing about to be sold is not identical with a right to the thing itself, and that is the primary right of the pre-emptor. The secondary right is to follow the thing sold, when sold without the proper offer to the pre- emptor, and to acquire it, if he thinks fit, in spite of the sale, made in disregard of his preferential right."
The aforesaid passage indicates that a pre-
emptor has two rights : (1) inherent or primary right i.e. a right for the offer of a thing about to be sold and (2) secondary or remedial right to follow the thing sold.
27. The defendant no.1 relied upon the judgment in the case of U.N. Krishnamurthy (Since Deceased) Through Legal Representatives Vs. A.M. Krishnamurthy reported in (2023) 11 SCC 775 wherein the Hon'ble Supreme Court held that:
"20. It is well settled that, in a suit for specific performance of an agreement, it is for the plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a 13 certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the plaintiff to show that he was in a position to pay the balance money. The plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. In this case, the appellant-original defendant have all along contended that the plaintiff respondent neither offered to pay nor was in a position to pay the balance consideration of Rs 15,00,000.
21. The primary question for determination is whether the respondent-plaintiff has proved his readiness and willingness to perform his part of the contract or not?
24. To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financier for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money."
28. The defendant no.1 in support of his case relied upon the judgment in the case of Ramakrishnappa Vs. K.M. Anjinappa and Ors. reported in ILR 2016 Karnataka 1727 wherein the Hon'ble Karnataka High Court held that:
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"18. Decree dated 20.04.1993 passed in O.S. No. 25/1989 (Ex. P1) clearly recognized the absolute right of defendant No. 1 over the suit property. By the said decree, the first defendant was directed to notify the plaintiff, prior to the sale of suit property. By the service of notice vide Ex. P2, there is compliance of the said decree, by defendant No. 1. The plaintiff has not notified the first defendant, the consideration amount which he is prepared to pay for the sale of the suit property. The reply notice dated 29.07.1993 (Ex. P3) is silent. Though the property was sold on 24.08.1993 (Ex. D7) for Rs. 55,000/-, the plaintiff has maintained all along that the market value of the suit property as Rs. 16,000/- to Rs. 18,000/- only. He has categorically admitted that he is not ready and willing to pay and purchase the property for Rs.
55,000/-. Thus, it is clear that the plaintiff is not at all ready to purchase the suit property by paying the market value. Though the plaintiff notified his desire to purchase, the same is nothing but a pretension to cause harm to defendant No. 1, in view of his failure to get the main relief sought in O.S. No. 25/1989. The acts of omission and commission of the plaintiff amounts to forfeiture of his right of pre-emption.
19. The right sought to be enforced by plaintiff i.e., right of pre-emption is a weak right, as is clear from the ratio of the law laid in the aforesaid decisions by the Apex Court. In the matter of enforcement of such right, there is no equity in favour of the plaintiff and the Court need not go out of the way by exercising discretion to help the pre- emptor. Even if the plaintiff had the right of pre- emption by virtue of decree passed in O.S. No. 25/1989 (Ex. P1), the present suit having partaken the character of a suit for specific performance, the plaintiff is obliged in law, to plead and prove all the ingredients of such a suit. From the admissions of the plaintiff/PW 1, noticed supra, it is clear that he is not ready and willing to pay the market value of Rs. 55,000/- and purchase the suit property."
29. The defendant no.1 relied upon the judgment in the case of Raghunath (Dead) Through Legal Representatives Vs. Radha Mohan (Dead) 15 Through Legal Representative and Others report in (2021) 12 SCC 501 wherein the Hon'ble Supreme Court held that:
"1. The singular question this Court had framed for consideration in this appeal was whether the limitation shall commence from the first sale deed after coming into force of the Rajasthan Pre-emption Act, 1966 or from any other subsequent sale on the basis of Article 97 of the Limitation Act, 1963. This question arises in this proceeding in a situation where the original plaintiff sought to enforce such right after three sale transactions had taken place in the past involving the subject immovable property in the Years 1945, 1946 and 1966. The last transaction was effected on 5th November that year, after the 1966 Act had become operational. The factum of the plaintiff's entitlement otherwise claim right of pre-emption in terms of Section 6 of the 1966 Act is not in dispute in this proceeding. In the suit out of which this appeal arises, the plaintiff's suit for pre-emption over a transaction effected on 21-1-1974 was resisted on the ground of being barred by limitation.
2. In order to determine the aforesaid question of law framed by this Court in terms of the order dated 5-1-2016, it is necessary to discuss the nature of the right of pre-emption. In this behalf, we had discussed the right of pre-emption in a recent judgment in Barasat Eye Hospital v. Kaustabh Mondal . The said judgment, authored by one of us (Sanjay Kishan Kaul, J.), in its initial paragraph itself discusses this aspect and it would suffice to quote the same :
"1. The right of pre-emption holds its origination to the advent of the Mohammedan rule, based on customs which came to be accepted in various courts largely located in the north of India. This law is stated to be largely absent in the south of India on account of the fact that it never formed a part of Hindu Law in respect of property. However, this law came to be incorporated in various statutes, both, prior to the Constitution of India (for short "the Constitution") coming into force, and 16 even post that. The constitutional validity of such laws of pre-emption came to be debated before the Constitution Bench of this Court, in Bhau Ram. There are different views expressed by the members of the Constitution Bench of five Judges, and also dependent on the various State legislations in this regard. Even though there were views expressed that this right of pre-emption is opposed to the principles of justice, equity and good conscience, it was felt that the reasonableness of these statutes has to be appreciated in the context of a society where there were certain privileged classes holding land and, thus, there may have been utility in allowing persons to prevent a stranger from acquiring property in an area which has been populated by a particular fraternity or class of people.
This aspect was sought to be balanced with the constitutional scheme, prohibiting discrimination against citizens on the grounds of only religion, race, caste, sex, place of birth or any of them, under Article 15 of the Constitution, and the guarantees given to every citizen to acquire, hold and dispose of property, subject only to the test of reasonable restriction and the interest of general public."
3. The judicial approach adopted towards this right of pre-emption was thereafter discussed in the said judgment in the following terms :
"10. In order to appreciate the aforesaid provisions relating to the right of pre-emption, it would be appropriate to refer to an extremely lucid judgment of this Court by Justice K. Subba Rao (as he then was), setting forth the contours of the right of pre-emption in Bishan Singh v. Khazan Singh, in a four- Judge Bench judgment. The Bench proceeded to discuss the view of different courts on this right of pre-emption, as found in the following:
(a) Plowden, J. in Dhani Nath v. Budhu ,
(b) Mahmood, J. in Gobind Dayal v. Inayatullah , ILR at p. 809, 17
(c) Mool Chand v. Ganga Jal, ILR at p. 273.
11. In view of the aforesaid elucidation, it was opined that the pre-emptor has two rights : first, the inherent or primary right i.e. right for the offer of a thing about to be sold; and second, the secondary or remedial right to follow the thing sold. The secondary right of pre-emption is simply a right of substitution, in place of an original vendee and the pre-emptor is bound to show not only that his right is as good as that of that vendee, but that it is superior to that of the vendee. Such superior right has to subsist at the time when the pre-emptor exercises his right. The position is thereafter summarised in the following terms : (Bishan Singh case, AIR p. 841, para 11) '11. ... (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-
emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i.e. the pre- emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place.
(6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.' "
30. Clause 8 of the deed of lease provides that in the event of any such construction on the said adjacent lawn the lessee should be informed and offered if the lessor wants to transfer the same by way of letting it out or leasing or by way of sale. In the year 2001, the defendant no.1 has offered to the plaintiff and the consideration was mentioned at the present market value or the interested person who will give highest 18 offer. The plaintiff has not suggested any purchase price or informed whether the plaintiff is ready and willing to purchase the property instead, the plaintiff has put several queries to the defendant no.1.
The right of pre-emption is not one which is looked upon with the great favour by the Courts, presumably for the reasons that it is in the derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for the parties to transfer to avoid and defeat the claim for pre-emption by all legitimate means. The right of pre-emption is not only a weak right, but it is claim which is generally looked upon by the Courts with certain amount of distaste as it interferes with the freedom of the owner to sell his property to the person of his choice.
The plaintiff in one hand has not offered purchase price to the defendant no.1 and other hand the plaintiff has published a public notice dated 11th September, 2007 informing the General Public not to enter into any negotiation but in the said notice also the plaintiff has not mentioned about the pre-emption right.
31. Clause 10 of the deed of lease talks about "demised property" and not "said property". In the suit, the plaintiff has prayed for declaration of sale deed dated 28th June, 2024 as illegal, null and void which consists of said property. In prayers "c", "d", and "e" of the plaint, the plaintiff has prayed for mandatory injunction and perpetual injunction of the property Annexure "C" which is the "said property" and not "demised property".19
32. During hearing of the injunction application, the defendant no.1 has brought to the notice of this Court that in the year 1999, the plaintiff has filed a suit against the defendant being T.S. No. 745 of 1999 before the Learned Court of V Judge, City Civil Court at Calcutta for declaration and permanent injunction and in the said suit, the plaintiff obtained interim order but subsequently the suit is dismissed for default and the plaintiff has suppressed the said fact in the present case.
33. The defendant nos. 2 and 3 contents that the previous suit filed by the plaintiff is dismissed for default with respect to the same suit property and now the plaintiff has filed the present suit for the similar relief, thus the suit filed by the plaintiff is barred under Order IX Rule 8 read with Order IX Rule 9 of the C.P.C. This Court at this stage has not gone into the said fact as the defendant nos. 2 and 3 have also filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 thus the said issue can be decided in the said application.
34. The plaintiff has claimed relief on the basis of negative covenant clause in the deed of lease on the pretext that under Clause 22, the said property should not be sold without the consent of the plaintiff. It is settled law that injunction to enforce a negative covenant can be obtained but the plaintiff has to be performed its obligations under the agreement. It is the case of the defendants that the plaintiff has not paid monthly rent since 1994. The plaintiff has disclosed two documents to show that the plaintiff had sent money orders to the 20 defendant no.1 in the month of August and September, 2024 but the same was returned to the plaintiff with the endorsement "addressee left" without instructions. It is found from record that the plaintiff has sent money orders just before filing of the case and also in the address knowing that the defendant no.1 is not residing in the said address. Though in the plaint and in the application, the plaintiff has mentioned the address of the defendant no.1 of London, United Kingdom. The plaintiff has not complied with the covenant No.1 of the deed of lease by paying the monthly rent within 10th day of each and every month.
35. At the time of hearing of the suit, the defendant nos. 2 and 3 have also handed over the copy of the notice dated 23rd November, 2024 issued by the defendant nos. 2 and 3 to the plaintiff calling upon the plaintiff to vacate and deliver up vacant possession of the leased portion to the defendant nos. 2 and 3 upon expiry of the month of December, 2024 failing which the defendant nos. 2 and 3 will take necessary legal action against the plaintiff for eviction from the said leased premises and for recovery of arrears, mesne profits, damages.
36. The defendant no.1 has offered to the plaintiff for sale in the year 2001 but the plaintiff has not offered any purchased price to the defendant no.1 and the plaintiff has also initiated suit against the defendant no.1 in the year 1999 which is subsequently dismissed for default but the said fact is suppressed in the present suit as well as in the application. The plaintiff has also not paid monthly rent but only for the purpose of filing of the suit in the month of August and September, 2024, the 21 plaintiff has sent money orders to the defendant no.1 at the local address knowing that the defendant no.1 is not residing in the said address and while filing the suit, the plaintiff has mentioned the correct address in the plaint and in the application. The deed of lease is only with respect to the demised premises but the plaintiff has prayed for pre-emption and negative covenant for the said property which is not the intention of the party in the deed of lease. With respect to the "demised premises" admittedly, the plaintiff is in possession of the premises in question and the defendant nos. 2 and 3 have issued notice to the plaintiff for vacating and delivering up the possession of the premises and in the said notice, it is categorically mentioned that if the plaintiff will not vacate and will not deliver the possession, the defendant nos. 2 and 3 will take appropriates steps in accordance with law thus this Court did not find any prima facie case and balance of convenience in favour of the plaintiff with respect to the said property as mentioned in Annexure "C" of the suit.
37. In view of the above, the ad-interim order dated 1st October, 2024 which is extended from time to time is hereby vacated.
38. The defendants are directed to file affidavit-in-opposition to G.A. No. 1 of 2024 within two weeks after winter vacation, reply, if any, thereto be filed within a week thereafter.
39. G.A. No. 2 of 2024 is allowed. List the matter on 31st January, 2025.
(KRISHNA RAO, J) p.d/-