Calcutta High Court
Smt. Sushila Devi Jajodia And Ors. vs Smt. Sita Devi Saraf And Ors. on 23 May, 2003
Equivalent citations: (2004)1CALLT311(HC)
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
JUDGMENT Pinaki Chandra Ghose, J.
1. This is an application filed by the petitioner, inter alia, for the following orders:--
(a) Leave be granted to the petitioners to serve notice of this application also on Smt. Rachna Maskara and Sri Amit Bhuwalka.
(b) Interim order of injunction passed in the aforesaid suit on 27th July, 1959 be set aside and/or vacated.
(c) Maharaja of Burdwan and his legal heirs and representatives be directed to execute the conveyance in respect of Tiretta Bazar Property being premises No. 22 (also known as 22B), Rabindra Sarani, Kolkata in favour of Ramawatar Saraf (HUF), Sanjay Saraf (HUF), Rishi Kumar Acharya, Jugal Kishore Jajodia (HUF), Mannalal Jajodia (HUF), Keshardeo Jajodia (HUF) and Sanwarmal Jajodia (HUF) within a period of 3 months from the date of passing of the order herein;
(d) In default, the Registrar, High Court, Calcutta be directed to execute necessary conveyance as stated in prayer (c) above;
(e) M/s. Orr. Dignam & Company, Solicitors & Advocate for the Maharaja of Burdwan of 29, Netaji Subhas Road, Calcutta, be directed to pay and/or refund the amount of Rs. 2,50,000/- and Rs. 3,00,000/- lying deposited with them in terms of the Hon'ble Court's order dated 17th December, 1962 together with interest thereon to the Maharaja of Burdwan and/or his legal heirs and representatives towards the full and final payment of the purchase price of the said property.
(f) Registrar of Assurances, Calcutta be directed to register a conveyance in relation to Tiretta Bazar Property being premises No. 22 (also known as 22B), Rabindra Sarani, Calcutta on the basis of the valuation as fixed by the Hon'ble Court on 17th December, 1962.
(g) The suit be dismissed as against he defendant Nos. 2(b) to 2(i);
(h) The death of the defendant Nos. 1(a), (iv) and 2(a) be recorded;
(i) A decree be passed in the instant suit in terms of prayers above.
2. Facts of the case briefly are stated hereinafter:--
On 14th February, 1948 Maharaja of Burdwan granted lease in respect of premises No. 12, Lower Chitpur Road, Calcutta (hereinafter referred to as the said property) known as Tiretta Bazar property for a term of 56 years with an option for 33 years in favour of Sri Ganesh Properties (P) Limited. The initial period would expire on February 14, 2014.
3. On October 22, 1952 the Maharaja of Burdwan by an agreement agreed to sell the said Tiretta Bazar Property to one Sri Muralidhar Saraf, the predecessor-in-interest of the Saraf Group and by the same agreement, the premises No. 57, Clive Street was agreed to be sold by the said Maharaja to one Anandilal Poddar. A suit was filed by Sri Muralidhar Saraf and Anandilal Poddar against the said Maharaja for specific performance of the said agreement in or about 1953 (being the suit No. 2972 of 1953).
4. On January 13, 1953 an agreement was entered into between Jugal Kishore Jajodia and Mannalal Jajodia on the one hand and Muralidhar Saraf on the other hand for purchase and/or permanent lease of the said Tiretta Bazar Property upon payment of Rs. 5,50,000/- and the proportionate annual rent and/or charge payable under the agreement dated October 22, 1952.
5. It was further agreed between Jajodias and Sarafs that they will have 50% share and whatever the amount was invested will carry interest at the rate of 9% and they shall bear the profit and loss in the said transaction 50%.
6. On May 5, 1959 the suit was filed by the Saraf and Poddar and the said suit being Suit No. 2972 of 1953 was decreed by consent of the parties. The said decree recorded that the said Tiretta Bazar Property should be sold at a price of Rs. 5,50,000/- in favour of Muralidhar Saraf or his nominee and the amounts should be paid simultaneously with the execution of the conveyance.
7. On 29th July, 1959 the present suit was filed by the Jajodias and in the said suit an interim order of injunction was passed restraining the Maharaja of Burdwan from executing any conveyance in terms of the said decree of May 5, 1959 passed in the said Suit No. 1972 of 1953.
8. In 1961 a company petition was filed being C.P. No. 32 of 1961 under Sections 397 and 398 of the Companies Act in relation to administration and management of the said Ganesh Properties (P) Limited by Acharya Group of Shareholders of the said company. On 17th December, 1962 an interim order already passed in the suit was confirmed and the Jajodia was directed to deposit Rs. 5,50,000/- with Messrs Orr Dignam & Co., advocates for Maharaja of Burdwan and were directed to invest the said sum of Rs. 5,50,000/- in two fixed deposit accounts.
9. The company petition which was filed in respect of Ganesh Properties (P) Limited was disposed of on 17th September, 1976 by the Hon'ble Appeal Court in A.P.O. No. 382 of 1976. On 16th July, 1985 the present suit was dismissed. On an application the same was restored and again on 21st April, 1986 the said suit was dismissed. On 4th June. 1986 the said order was recalled and the present suit revived.
10. On 27th January, 1997 the Hon'ble Appeal Court passed an order in the said application by consent of the parties. Thereafter, on 9th April, 1999 parties were agreed upon before the Hon'ble Appeal Court and the order passed earlier was modified and the order dated 27th January, 1997 was modified and thereafter this application has been filed for a direction on the Maharaja of Burdwan and his legal heirs and representatives in respect of the Tiretta Bazar Properties,
11. Learned counsel appearing on behalf of the plaintiff/petitioners in this suit submitted that before the execution of the conveyance in terms of the said decree dated 5th May, 1959, the present suit was filed by the Jajodias and an interim order was obtained which was subsequently confirmed and the amount was directed to be invested in short-term fixed deposit account and the said amount has been held by Messers Orr Dignam & Co., advocates in the bank. The disputes between the shareholders in relation to the affairs and management of Sri Ganesh Properties (P) Limited has already been settled including the disputes in the instant suit. It is further submitted that unless the interim order of injunction passed in this suit is vacated and the other consequential orders as prayed for in the petition be made, disputes between the parties cannot be settled, plaintiffs duly served the notice on the executors to the Will of the Maharaja of Burdwan, the heirs and legal representatives of the Maharaja but also advertised the instant petition in newspapers. Excepting Mr. Saday Chand Mohitab no one else has filed any Affidavit-in-opposition.
12. According to the learned counsel appearing on behalf of the petitioners, question of the decree dated 5th May, 1959 has not yet been time barred inasmuch as the order which was passed on 17th December, 1962 is still in force. Since 27th July, 1959 when the interim order was passed the decree dated 5th May, 1959 became inexecutable and the benefit of Section 15 of the Limitation Act is still available. It cannot be said, according to him, that the Sarafs could have nominated the Jajodias as it was the relevant time admittedly the Jajodias and Sarafs were at loggerheads which had resulted in proceedings being filed under Sections 397 and 398 of the Companies Act, 1956.
13. He further contended that the deeree dated 5th May, 1959 is binding on the Maharaja of Burdwan and also his heirs and legal representatives. Therefore, they are bound by the said decree. There cannot be any dispute to that effect. There was no scope for executing the decree dated May 5, 1959. The order of injunction restrained Murlidhar Saraf and his legal heirs and legal representatives from nominating any one excepting the Jajodias. The Saraf group has not nominated the Jojodia Group for purchase of the subject property in its entirety. The settlement requires the property to be conveyed to the three groups--Achayas. Sarafs and Jajodias in agreed proportions. The Saraf Group has now agreed to sale of the property by Maharaja or his successors-in-interest partially in favour of Jajodias, partially in favour of Acharyas and retaining the balance in favour of the Saraf Group. Consequently there was no scope for exclusive nomination of the Jajodias earlier as was permissible under the interim order dated 17th December, 1962.
14. According to him, it cannot be held that there is no interim order of injunction in view of the fact when the suit was restored, the interim order revived and is still subsisting. He further drew my attention to paragraph 2 of the affidavit filed by Saday Chand Mohatab and submitted that in the affidavit he has admitted that he has no right to the premises. The executors and grand-children have not come forward to oppose the prayers inspite of advertisement and inspite of service. Accordingly, he submitted that in any event the terms of settlement, treating as an agreement, can also be implemented particularly as the entire consideration has been paid and deposited in fixed deposit.
15. Mr. Kar appearing on behalf of the respondent No. 3(a) submitted that the decree directs that the transaction would be completed and the deed of conveyance would be signed and registered against each payment within 31st May, 1959 and no payment having been made within 31st May, 1959. the decree is not executable by the plaintiff in the said suit or by their nominee. He further contended that an amount was deposited admittedly pursuant to an order of the Court in the year 1962 and not within the time granted by the decree. Therefore, the decree-holder nor any assignees are entitled to get benefit out of the said decree. He further submitted that the agreement which was entered into between Jajodias on the one hand and Sarafs on the other hand, cannot bind the Maharaja of Burdwan or his heirs since they were not a party to the said agreement. The present suit was filed by the Jajodia against Sarafs for specific performance of the agreement dated January 13, 1953.
16. According to Mr. Kar, on 27th July, 1959 order was passed on the interlocutory application of the plaintiff in the present suit. According to him, registration of conveyance and the payment were directed to be completely within 31st May, 1959 in terms of the decree dated 5th May, 1959. Therefore, if any, nomination would have to be done prior to May 31, 1959. The plaintiffs in this suit have no right to apply for execution of the conveyance on the basis of any nomination subsequently made and there was no order of injunction prior of 27 July, 1959. Furthermore, the said order dated 27th July, 1959 did not injunct Murlidhar Saraf from nominating any person in whose favour conveyance was to be executed. According to him, if time is the essence of the contract, in that event the performance has to be made within the time and not otherwise. Accordingly, he submitted that payment not having been made in terms of Clause 8 of the decree within the time mentioned, after 40 years the decree cannot be said to be alive. He further relied upon a judgment [Caltex (India) Ltd. v. Bhagwan Devi Marodia].
17. He further contended that the injunction order did not prevent the present defendant No. 3 from executing any conveyance in favour of the petitioner. According to him, injunction order was passed restraining the respondent No. 3 who was the predecessor-in-interest being the Maharaja of Burdwan. He also contended that there was impediment to execute the conveyance in favour of the petitioners at the instance of the respondent. Nos. 1 and 2. Accordingly, he submitted that the order of injunction does not help the petitioner in the present application who are heirs of the original petitioner from being nominated by the respondent Nos. 1 and 2. He further contended that at the time of the dismissal of the suit the injunction order automatically vacated unless the order of injunction is restored specifically that will not continue. He further relied upon a judgment (Nancy John Lyndon v. Prabhati Lal Chowdhury) in support of his such contention.
18. After hearing the parties it appears to me that the following questions have to be decided in this application that whether after the revival of the suit the interim order already passed in the interlocutory application will be revived on the setting aside of the dismissal of the suit in question and if so whether the injunction order is still subsisting and the petitioner can get benefit out of the same. After considering the decisions cited before me on behalf of the parties, it appears to me that the said question was decided by the Full Bench decision of the Madras High Court reported in AIR 1935 Mad 365 (Tavvala Veeraswami v. Pulim Ramanna and Ors.). It was held that on the restoration of the suit, all ancillary orders are restored without any further orders. When an order dismissing a suit for default is set aside on an application for that purpose, the suit remains as it was on the date it was dismissed, and all proceedings taken up to that date must be deemed to be in force when the dismissal is set aside. All interlocutory orders will be revived on the setting aside on the dismissal and similarly any order passed at the interlocutory stage which was subsisting as on the date of the dismissal, will also be revived. Therefore, there cannot be any doubt at this stage to hold that by virtue of the injunction order which was passed by the Court the petitioners were restrained from taking any step in respect of the transfer of the property in question. Therefore, in my opinion, the decree dated 5th May, 1959 has not yet been lime-barred in view of the order passed on 17th December, 1962 which is still In force and the petitioners are also bound to get the benefit under, Section 15 of the Limitation Act. There also cannot be any dispute that the decree dated 5th May, 1959 is binding on the Maharaja of Burdwan and his heirs and legal representatives. Therefore, there cannot be any bar at this stage to hold that the order passed in this suit on 27lh July. 1959 which was still subsisting, can be vacated by this Court and order can be passed directing the Maharaja of Burdwan and His heirs and legal representatives to execute the conveyance in accordance with the said deed In respect of Tiretta Bazar Property being the premises No. 22 (also known as 22B). Rabindra Sarani. Kolkata in favour of the petitioners and M/s. Orr. Dignam & Company is hereby directed to hand over the said amount of Rs. 2,50,000/- and Rs. 3,00,000/-, the amounts so deposited with them in terms of the order dated 17th December, 1962 with accrued interest thereon to Maharaja of Burdwan and/or his heirs and legal representatives towards the full and final payment of the price of the said property.
For the reasons stated hereinabove, there will be order in terms of prayers (b), (c), (d), (e), (g) and (h).