Calcutta High Court
B. C. Sen & Co. Ltd vs Dagcon (India) Pvt. Ltd on 8 April, 2014
Author: I. P. Mukerji
Bench: I. P. Mukerji
ORDER SHEET
GA No.840 of 2014
With
CS No.95 of 2014
GA No.843 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
B. C. SEN & CO. LTD.
Versus
DAGCON (INDIA) PVT. LTD.
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI
Date : 8th April, 2014.
Appearance:
Mr. Abhrajit Mitra, Adv.
Mr. D. Mondal, Adv.
Mr. Jishnu Chowdhury, Adv.
Mr. Sarvopriya Mukherjee, Adv.
Mr. S. Chatterjee, Adv.
Mr. B. Kumar, Adv.
Mr. S. Ghosh, Adv.
Mr. Surojit Nath Mitra Sr. Adv.
Mr. Anirban Roy, Adv.
Mr. Arun Nath Bhattacharyya, Adv.
Mr. Sankarsan Sarkar, Adv.
Mr. Sujit Kr. Singh, Adv.
The Court: This is a dispute between the parties arising out of an agreement for sale of an immovable property. The plaintiff is the intending purchaser from the defendant of the first and part of the ground floor of premises no.143A, Rashbehari Avenue, Kolkata. The super built up area covered by the first floor is 4000 sq. ft. It is 415 sq. ft. on the ground floor. In addition to this, six mechanical car parking spaces were also proposed to be sold. The proposed building would be of eight floors, in addition to the ground floor.
The suit is for specific performance of this agreement by execution of conveyance. The property is admittedly outside the jurisdiction of this court. In the plaint there is no claim for possession.
The agreement was of 15th December, 2009, modified by a supplemental agreement dated 1st June, 2012. The aggregate consideration payable by the 2 plaintiff was Rs.6.62 crores, payable in fifteen instalments. Admittedly payments up to the 13th instalment have been made by them to the defendant. The total amount paid is Rs.4,96,50,000/-.
Breach of this agreement is alleged by both the parties. What is most important is that neither party has terminated the agreement and it is still afoot.
The substantial dispute, initially, was with regard to the strong room. This dispute arose before entering into the supplemental agreement of 1st June, 2012. It appears that there was no provision in the original agreement for this strong room. But, it seems that the plaintiff insisted that this strong room be built for the purposes of its jewellery business which was proposed to be carried out from the premises.
Mr. S.N. Mitra learned Senior Advocate drew my attention to various correspondences between the parties, and the architect etc. from which it transpires that a substantial structural change was warranted for building this strong room with RCC pillars. There was no sanction for this alteration by the Kolkata Municipal Corporation. Reference in this connection may be made to the e-mail of the architect dated 9th November, 2011 at page 21 of the petition. From the letters of the plaintiff dated 27th January, 2012 and 6th February 2012 at pages 23 and 26 of the petition, it appears that ultimately this strong room was constructed according to the specification of the plaintiff.
Furthermore, the plaintiff took possession of the said part of the property on 21st January, 2012. It is said on behalf of the plaintiff that they took possession for the purpose of doing interior designing. But, I prima facie hold that the plaintiff took actual physical possession because the plaintiff has claimed execution of conveyance only and not possession. If possession was not obtained and not claimed in the plaint, the suit would be clearly barred under Order 2 Rule 2 of the Code of Civil Procedure, in my opinion.
Thereafter, on 1st June, 2012 a supplemental agreement was entered into between the parties, stipulating, inter alia, the obligations of the parties for completion of the work.3
The time for completion of the work was stated to be six months from the time the strong room was completed. It appears from the letter of the defendant dated 12th October 2012, to which there is no contradiction that the strong room was completed on 6th October 2012.
Mr. Abhrajit Mitra, learned counsel for the plaintiff argues that the defendant had six months' time to complete the construction. Therefore, the defendant ought to have completed construction by April, 2013.
It appears from the third schedule to the original agreement that the entire payment was to be made in 15 installments. It is an admitted position that the plaintiff made payment till the thirteenth installment which was paid over June and July, 2012.
Mr. S. N. Mitra, also contends that the fourteenth installment was payable upon the plaintiff obtaining possession. Since the plaintiff is in possession, this installment ought to have been paid, but remains unpaid.
To this Mr. Abhrajit Mitra for the plaintiff submitted that the thirteenth installment was paid before completion of sanitary pumping and common portion of the building as requiring under the said schedule to the agreement.
According to Mr. Abhrajit Mitra, the plaintiff has performed all its obligations under the agreement and that the defendant is in breach.
To this learned counsel for the defendant alleges counter-breach, by showing me a letter dated 17th April 2013 written by the plaintiff. This letter is not part of the records but it is taken on record by the court. He suggests that this letter shows that the plaintiff had outstanding obligations like obtaining sanction to drawings for revised plumbing work, fire sprinkler, smoke detector etc. under the West Bengal Fire and Emergency Act, 1950. Mr. Abhrajit Mitra submits that a Receiver or Special Officer be appointed with a direction to complete the building and to hand over possession of the said part of the building to the plaintiff.
I am of the prima facie opinion that although the agreement is described as a sale agreement, it is more or less like a development agreement with mutual 4 obligations of the parties. The original agreement is of 15th December 2009, modified by the supplemental agreement of 1st June 2012.
Out of a total consideration of Rs. 6.62 crores the plaintiff has already paid about Rs. 5 crores, to be more precise Rs. 4,96,50,000/-.
Possession is with the plaintiff.
The time for performance of the agreement is long over. It was over in April, 2013.
The agreement is still afoot, not terminated by any party. Breach of the agreement is alleged by both the parties.
At this stage, this Court can neither decree specific performance nor award damages to any party.
But some sort of a workable order should be passed till a decree is passed in this suit.
During hearing of this application there was some progress in settlement of the disputes by the parties themselves. But so far, the settlement has not come through. But I have a feeling that a settlement may be reached quite soon.
To show its readiness and willingness the plaintiff will deposit the balance consideration (Rs. 6.62 crores - Rs. 4,96,50,000/-) with the Advocate/Advocates- on-Record for the plaintiff by 30th April 2014. He or they will invest the said sum in the name of the plaintiff in a term deposit earning the highest rate of interest with the State Bank of India, Calcutta High Court Special Branch and intimate the details to the Advocate-on-Record for the defendant.
Mr. Lokenath Chatterjee Advocate is appointed as the Receiver to be in symbolic possession of the area agreed to be conveyed to the plaintiff, without disturbing the physical possession of the plaintiff. He will also be in symbolic possession of the common areas of the building without in any way disturbing the possession of the defendant or interfering with construction work. The Receiver immediately make a visit to the property and file a report in this Court as to what work is completed and what needs to be performed to make the transaction complete as regards the plaintiff. He will make periodic visits upon notice to the parties. If any work is done in the common areas or relating to 5 common facilities, by the defendant, subsequent to this order, he will note the same and file an additional report. He will be paid an initial remuneration of 900 Gms by the plaintiff.
The defendant will immediately restore the electricity connection which the plaintiff was enjoying before 14th March 2014. I take into account Mr. S. N. Mitra's submission that there is overloading and that is why the connection was disconnected. He submitted that a transformer requires to be installed. The defendant will be at liberty to make such representation to CESC Limited. It is for CESC to take the decision whether the plaintiff's connection is to be disconnected or not, but the defendant will restore the status quo ante regarding electricity within 48 hours from date.
Nothing remains of this application. All the relevant papers are before the Court. No affidavits are invited. Both the applications are disposed of with the above order.
The defendant will be at liberty to complete the work and thereafter make a suitable application in this Court to withdraw without prejudice Rs.1 crore, which Mr. Mitra stated during hearing of this applicatin was needed to complete the outstanding work.
This order has not dealt with the entire claims and counter-claims of the parties.
Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I. P. MUKERJI, J.) S. Pal/R. Bose ARs(CR)