Calcutta High Court (Appellete Side)
Shree Krishna Apartment Private ... vs U.K. Developers Private Limited on 13 June, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE C.O. No. 352 of 2011 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Shree Krishna Apartment Private Limited.
Versus U.K. Developers Private Limited.
For the petitioner: Mr. Anindya Kr. Mitra, Sr. Adv.
Mr. S.N. Mukherjee, Mr. Biswaroop Bhattacharya, Mr. Arjun Roy Mukherjee, Miss Reshmi Ghosh.
For the opposite party: Mr. Saktinath Mukherjee, Sr. Adv.
Mr. Prabal Mukherjee, Mr. Bhaskar Mukherjee.
Heard On: 18.05.2011.
Judgement On: June 13, 2011.
Prasenjit Mandal, J.: This application is at the instance of the plaintiff and is directed against the judgment dated January 15, 2011 passed by the learned Additional District Judge, Second Court, Alipore in Misc. Appeal No.495 of 2010 thereby dismissing the said misc. appeal arising out of the Title Suit No.2517 of 2010 filed by the plaintiff before the learned Civil Judge (Junior Division), 1st Court, Alipore.
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The short fact necessary for the purpose of disposal of this application is that the plaintiff / petitioner herein filed a suit being Title Suit No.2517 of 2010 before the learned Civil Judge (Junior Division), 1st Court, Alipore for declaration, injunction and other reliefs. The plaintiff filed an application for temporary injunction and prayed for ad interim order of injunction. The learned Trial Judge rejected the prayer for ad interim injunction at the initial stage and issued a show-cause notice upon the opposite party. Being aggrieved, the plaintiff preferred the misc. appeal being Misc. Appeal No.495 of 2010 and that misc. appeal was dismissed on contest by the impugned order. Being aggrieved, this application has been preferred.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned counsel for the parties and on going through the materials on record, I find that admittedly, the plaintiff became the owner of the land in suit measuring 35 cottahs 3 chhitaks and 15 square feet along with various sheds and structures standing thereon at premises no.187, Netaji Subhas Chandra Bose Road, P.S. Jadavpur by purchase. Admittedly, an agreement was held between the parties (i.e. between the owner and the developer) on July 28, 1996 for construction of a multi- storied building on the said land in suit and the defendant was entrusted to make construction of the building accordingly. 3 Admittedly, the defendant invested huge money at the time of purchase of the property by the plaintiff, eviction of the tenants and unauthorised occupants therefrom and also at the subsequent stage for the making construction etc. Amongst other clauses, there were terms to the effect that upon construction, the plaintiff would get 30 per cent of the construction and the defendant would be at liberty to dispose of 70 per cent of the construction.
Ultimately, it was settled that the plaintiff would get 7 flats and 7 garages out of the property constructed by the defendant and till the allocation in favour of the plaintiff is not made, the developer would hold the same as trustee of the plaintiff and that it would not part with, alienate, encumber or in any way deal with or dispose of the same. Another term is to the effect that the developer is entitled to adjust the sum, out of its allocation in the new building, at the agreed rate of Rs.600/- per square foot of the super built area although, the sale of the flat was being made to the others at the rate of more than Rs.3,000/- per square foot.
When the dispute cropped up between the parties, this Bench, in exercising of its revisional jurisdiction against the interim order, has observed that as per terms of contract between the parties, the Lower Appellate Court is quite justified in passing the order of status quo. This Bench has also observed that as per 4 times of settlement between the parties, until the developer delivers the possession of seven flats and seven garages to the plaintiff, the developer shall possess the building as a trustee of the owner. Till such period, the developer will not be able to execute and register any deed in favour of the intending purchasers. Thereafter, the learned Lower Appellate Court has dismissed the said misc. appeal on contest holding that the plaintiff / petitioner herein could not make out a prima facie case in support of the prayer for an order of ad interim injunction and that the learned Trial Judge did not err in refusing the said prayer for ad interim injunction. Accordingly, she has dismissed the misc. case.
It is also pertinent to mention that as per terms of the agreement, the defendant is entitled to deduct his claim of money advanced by him, by way of adjustment against the flat to be allotted to the plaintiff treating the value of the flat to the extent of Rs.600/- per square foot only as per value in 1996. As per materials on record, such value appears to be less and it is the specific contention of the plaintiff that in 1996, the price was Rs.1,000/- per square foot and adjustment, if any, is to be made at the rate of Rs.3,100/- per square foot as surrender value instead of Rs.600/- per square foot. Although, the current market price is Rs.3,500/- per square foot.
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Several meetings were held for settlement of the dispute. In the meeting dated February 19, 2006, it was held that the defendant would hand over the possession of six flats and six garages to the plaintiff. Subsequently, as per correspondences between the parties, the defendant agreed to deliver the possession of seven flats and seven garages to the plaintiff.
It is the specific contention of the plaintiff that the defendant had transferred two flats in favour of the third party without handing over the possession of those seven flats and seven garages to the plaintiff at first in terms of the agreement dated July 28, 1996 and subsequent agreement and correspondences.
As per materials on record, the plaintiff executed the power of attorney in favour of the defendant to construct the building and not to sell the flats. Under the circumstances, the plaintiff has been compelled to file the suit for the reliefs already stated. These facts clearly indicate that the plaintiff has shown prima facie case to go for trial to resolve the dispute between the parties. The observations of the Appellate Court that the plaintiff has failed to show prima facie, I hold, cannot be accepted.
The plaintiff has shown urgency in passing the interim order by stating the fact that the defendant had already transferred two flats out of the construction on the said land in suit to a third party. As per agreement, the defendant cannot do so without the 6 consent of the plaintiff. In this way, if the other flats are transferred, the plaintiff would be left with nothing to do in the situation because of the flats may be sold without the consent of the plaintiff and in that case, the amount payable by the plaintiff to the developer is likely to be adjusted against the flats and garages which were assessed at the rate of Rs.600/- per square foot as per agreement, although, the market price of the said flat is at least more than Rs.3,000/- per square foot, at present. Therefore, adjustment of the money paid by the developer on behalf of the plaintiff under various heads against the surrender of flat will not be an adequate remedy to the plaintiff against damages that it is likely to suffer if further transfer takes place. Therefore, I am of the view that the plaintiff has shown urgency in passing the interim order.
During the argument, Mr. Mitra, Learned Senior Advocate appearing for the petitioner has referred to the following decisions:-
(i) Dorab Cawasji Warden v. Coomi Sorab Warden & ors.
reported in AIR 1990 SC 867 particularly the paragraph nos.27 and 28 and thus, he has submitted that the developer cannot be allowed to gain an undue advantage in a hurried and clandestine manner defeating the appellant's attempt to go to Court for appropriate relief.
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(ii) Gangubai Bablya Chaudhary & ors. v. Sitaram Bhalchandra Sukhtankar & ors. reported in AIR 1983 SC 742 particularly the paragraph no.6 and thus, Mr. Mitra has stated that the Court may have to examine whether the party seeking the assistance of the Court was at any time in lawful possession of the property and if it was established, one would prima facie ask the other side contesting the suit to show how the plaintiff was dispossessed. In the instant case, the plaintiff is the owner of the property and on the basis of power of attorney executed by the plaintiff, the developer was given in possession of the same upon an agreement. In such a case the Court could grant interim injunction.
(iii) Kalidas Sadhu v. Sushil Kumar Agarwal reported in 2005(2) CHN 511 particularly paragraph nos.16 and 17 and thus, Mr. Mitra has submitted that if no injunction is granted and the defendant is permitted to transfer the property to a third party without securing the claim of the plaintiff, it may cause irreparable loss and injury to the plaintiff inasmuch 8 as he may not be in a position to recover the amount, if he succeeds in the long run. This decision appears to be appropriate in the instant situation. On the other hand, Mr. Mukherjee, learned Senior Advocate appearing on behalf of the opposite party has referred to the following decisions in support of the defence stand:-
(i) Khimji Vidhu v. Premier High School reported in 1999(9) SCC 264 particularly the paragraph no.9 and thus, he has submitted that the jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of the fact which falls in the domain of an Appellate Court only.
(ii) Essen Deinki v. Rajiv Kumar reported in 2002(8) SCC 400 particularly paragraph no.2. By referring the said decision Mr. Mukherjee has submitted that the exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It is so exercised in normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, to name a few. 9
Thus, the revisional jurisdiction does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the Courts below. The finding of fact being within the domain of the inferior tribunal, except where it is a perverse reading thereof or not passed on any material whatsoever resulting in manifest injustice, interference under the Article is not called for.
(iii) Dipali Dey (Baxi) v. Mira Das reported in (2009)11 SCC 495 particularly the paragraph nos.2 to 5 and thus, he submits that the High Court in exercise of its power under Article 227 ought not to have interfered with concurrent orders of the Courts below. He has submitted that since both the Courts below have rejected the prayer of the plaintiff, this Court in exercising revisional jurisdiction should not interfere with the concurrent findings.
(iv) Kishore Kumar Khaitan & anr. v. Praveen Kumar Singh reported in 2006(3) SCC 312 particularly the paragraph no.12 and thus, he submits that the jurisdiction to grant an interim, mandatory injunction could be exercised on entering a clear finding that on the day 10 the order for maintaining the status quo is passed, the plaintiff was in possession and a day after the interim order was passed, he was, in fact, dispossessed.
(v) Radha Gobinda Jew & ors. v. Kewala Devi Jaiswal & ors.
reported in AIR 1974 Calcutta 283 particularly the paragraph nos.34, 35 and 36 and thus, he has submitted that when the appellants are out of possession of the properties and they did not ask for recovery of possession in the plaint, the suit does not appear to be maintainable under Section 34 of the Specific Relief Act. This decision is based on the decision reported in AIR 1942 CAL 245.
Mr. Mukherjee has also referred to Section 34 of the Specific Relief Act and thus, he has submitted by referring the prayer of the plaint that since a pure suit for declaration has been sought for, though, the plaintiff is out of possession of the suit property, the suit is not maintainable. For that reason, no injunction could be granted in favour of the plaintiff.
Mr. Mukherjee has next referred to the provision of Section 42 of Specific Relief Act and thus, he has submitted that when there are two covenants, one affirmative and another negative and 11 the two covenants are quite separable, if the affirmative covenant cannot be enforced, the negative covenant might be enforced. In referring the said Section Mr. Mukherjee has also referred to the case of Lumley v. Wagner reported in 42 E.R. 687 and thus, he submits that the negative covenant may be enforced when the positive covenant is incapable of being performed and it is separable.
In the instant case, having gone through the entire materials on record, the decisions referred to by the parties and as per observations made above I find that no doubt the plaintiff got the property by purchase and he got possession over the property. At the time of purchase, the developer provided finance for purchase and also at subsequent stages for eviction of the tenants and unauthorized occupants etc. and lastly for construction. As per agreement between the parties, the developer is to deliver possession of seven flats and seven garages first to the plaintiff and thereafter, he would be at liberty to sell the rest portion of the constructed premises to third parties and both the parties are to sign on such sale deeds. Therefore, after completion of the construction, the developer is bound to deliver the possession of those premises in favour of the plaintiff.
If the plaintiff is required to file suit for recovery of possession of those seven flats and garages by paying adequate 12 Court-fees at the market price thereon, it will be extremely hardship for the owner to recover possession. But if the relief sought for is granted, I think the developer will be bound to deliver the possession of the seven flats and seven garages in favour of the plaintiff as per agreement and subsequent correspondences between them first and then the developer would be at liberty to dispose of the premises of its share.
Moreover, if the situation demands, there is a scope for amendment of the plaint incorporating the relief of recovery of possession. For the purpose of consideration of the interim order of injunction, the primary condition as to prima facie case to go for trial and an urgency, which are the essential ingredients for consideration of ad interim injunction, have been fulfilled by the plaintiff. The Court is not required to go into the question of maintainability of the suit for the time being.
So far as the decisions referred to by Mr. Mukherjee, I find that he cited the decisions as to the jurisdiction and power of the Revisional Court. In the instant case, both the Courts below have refused to grant ad interim injunction but for the reasons discussed above, I am of the view that the plaintiff has established the prima facie case to go for trial and the urgency in passing ad interim order of injunction. Therefore, I am of the view that both the Courts below have committed errors of law in disposing of the matter of interim injunction. In such a 13 situation, I am of the view that this Court is not powerless to grant an appropriate relief to the plaintiff although, both the Courts below have failed to consider the essential ingredients in granting ad interim injunction. If injunction is not granted, the plaintiff may suffer injustice for the reasons discussed above. Therefore, I am of the view that the decisions cited by Mr. Mukherjee will not be appropriate to reject the prayer of the plaintiff for ad interim injunction.
In that view of the matter, I am of the opinion that the learned Lower Appellate Court has committed errors of law in disposing of the misc. appeal and in such a situation, this Court is within its jurisdiction to take appropriate measures to prevent the plaintiff from suffering manifest injustice. The impugned order cannot be sustained. It must be set aside. The point for decision in this revisional application is thus answered.
Accordingly, the revisional application is allowed. The impugned order is hereby set aside. The defendant / opposite party is restrained from transferring, selling out, alienating, encumbering, dealing with and handing over flats and garages and shop rooms or in any portion of the said newly constructed building as described in the schedule premises in favour of third party, before handing over the possession and/or allocation to the plaintiff by the defendant till the disposal of the application for temporary injunction.
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It is hereby recorded that the above findings have been made on the basis of the plaint case and the application for temporary injunction supported by affidavits and annexures and that I have not considered any defence stand as there is no scope to consider such defence stand at the time of grant of an ad interim injunction.
Accordingly, at the time of disposal of the application for temporary injunction, the learned Trial Judge shall not be swayed away by my observations made herein above. He shall dispose of the application as well as the suit on the basis of materials placed by the parties before him in accordance with law.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)