Calcutta High Court
Amrita Bazar Patrika Pvt. Ltd vs Kanak Projects Limited & Anr on 5 January, 2011
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
APO No. 222 of 2010
GA No. 504 of 2010
CS No. 37 of 1998
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
AMRITA BAZAR PATRIKA PVT. LTD. Appellant
Versus
KANAK PROJECTS LIMITED & ANR. Respondents
For Appellant : Mr. Ratnanko Banerji, Mr. Anirban Roy, Advocates For Respondents: Mr. Ranjan Deb, Sr. Advocate, Mr. Surojit Nath Mitra, Sr. Advocate, Mr. Asish Chakraborty, Advocate BEFORE:
The Hon'ble JUSTICE BHATTACHARYA The Hon'ble JUSTICE DR. SAMBUDDHA CHAKRABARTI Date : 5th January, 2011.
The Court : This appeal is at the instance of the defendants in a suit for specific performance of agreement for grant of lease of 8000 sq.ft. floor area on the 4th floor of Premises No.41A, Acharya Jagadish Chandra Bose Road, Calcutta and is directed against order dated 27th November, 2009, passed by the Learned 2 trial Judge, by which His Lordship granted an order of injunction restraining the defendant no.1 from transferring or alienating the suit property to the third party till the disposal of the suit.
Being dissatisfied, the defendant no.1 has come up with the present appeal.
There is no dispute that the appellant before us and the plaintiff-respondent no.1 entered into an agreement for lease of 8000 sq.ft. of floor area on the 4th floor of the premises mentioned above and pursuant to such agreement a sum of Rs.77 Lac was accepted by the appellant.
On the allegation that the defendant was not ready and willing to perform their part of the contract, the plaintiff filed a suit for specific performance of the aforesaid agreement thereby alleging that the plaintiff was at all material times ready and willing to perform its part of the contract.
The Learned single Judge on the basis of materials on record decided to pass an interim order restraining the defendant no.1 from transferring or alienating the suit property.
Mr. Banerji, learned Advocate appearing on behalf of the appellant, by referring to the agreement for lease tried to convince us that there being a provision for return of money with interest, this is not a fit case for grant of temporary injunction as the plaintiff has failed to prove a prima facie case for getting a decree for specific performance of the contract. In 3 other words, Mr. Banerji contends that in this case the Learned single Judge should have dismissed the prayer for interim order on the ground that the remedy of the plaintiff lay by seeking appropriate remedy of damages.
After going through the materials on record, we find that although there was a clause in the agreement that the lease would be executed after taking leave from the United Bank of India with whom the property was mortgaged by the appellant, the said United Bank of India has not come forward to oppose the prayer of the plaintiff though the bank is a party to the proceeding. Moreover, after taking into consideration the fact that it is a suit for specific performance of the agreement for lease of 99 years where the defendant no.1 has already received a sum of Rs.77 Lac, we are of the view that the Learned single Judge was not justified in finding prima facie case and consequently granting temporary injunction as prayed for by the plaintiff. In a suit of this nature, once written agreement for lease has been established and at the same time it has also been acknowledged that a sum of Rs.77 Lac has been accepted by the defendant no.1 from the plaintiff, the grant of injunction restraining the defendant no.1 from transferring or alienating the property during the pendency of the suit is almost a matter of course.
The present appeal being one against grant of discretionary order of injunction, we are of the view that this is not a fit 4 case for setting aside the just order of discretion passed by the Learned single Judge and in the fact of the present case, any reasonable individual having regard to Section 3 of the Evidence Act would consider it a fit case for grant of injunction.
We thus find no merit in this appeal and the same is dismissed. In the facts and circumstances, there will be however no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(BHATTACHARYA, J.) (DR. SAMBUDDHA CHAKRABARTI, J.) SN.
Asst.Registrar(CR)