Calcutta High Court (Appellete Side)
Sangeeta Sarkar vs N.K. Construction & Anr on 24 August, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Shivakant Prasad
F.M.A. 882 of 2017
(CAN 3943 of 2017)
Sangeeta Sarkar
-versus-
N.K. Construction & Anr.
For the Appellant : Mr. Mahananda Roy
For the Respondents : Mr. Sujoy Sarkar,
Mr. Monojit Chatterjee.
Heard On : 24th August, 2017.
Judgement On : 24th August, 2017.
Jyotirmay Bhattacharya, J.
This first miscellaneous appeal is directed against an order being No. 20 dated 18th January, 2017 passed by the Learned Civil Judge, Senior Division, 1st Court at Baruipur, South 24-Parganas, in Title Suit No. 240 of 2015 at the instance of the plaintiff/Appellant. By the impugned order, the plaintiff's application for temporary injunction was rejected by the learned Trial Judge.
The legality and/or propriety of the said order passed by the learned Trial Judge is under challenge in this appeal at the instance of the plaintiff.
The instant appeal was admitted for hearing on 18th May, 2017. After the appeal was admitted, we passed an interim order in the appeal directing the parties to maintain status quo as on that date with regard to alienation and/or transfer and/or creation of any third party interest in respect of the suit flat till the end of July, 2017 or until further order whichever is earlier. The said interim order was subsequently extended for a further period of four weeks.
Today when the said application was again taken up for hearing for extending the said interim order, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit. We are informed by the learned counsel appearing for the appellant that all relevant papers which are necessary for disposal of the appeal, are annexed to the injunction application. As such, we have decided to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this appeal.
Let us now consider the merit of the instant appeal in the facts of the instant case.
Admittedly, a development agreement was entered into between the defendant nos. 1 and 2 as developer and one Smt. Mridula Bose as owner to develop the landed property of the said owner at Sonarpur. In the development agreement executed between them on 2nd December, 2013, the respective allocations of the owner and the developer were specified. A general power of attorney was also executed by the owner in favour of the developer authorising him to raise a multi-storied (G+4) building on the said land after obtaining a sanctioned plan from the concerned authority.
Admittedly, Sri Bharat Chandra Mondal, the respondent no.2, representing the respondent no.1, viz. the developer company entered into an agreement with the present plaintiff on 5th December, 2013 acknowledging the service which the present plaintiff rendered for enabling the developer to negotiate the transaction with the owner of the said property. The developer agreed in the said agreement that the developer will pay a sum of Rs.3,00,000/- (Rupees three lacs only) and in addition thereto 750 sq.ft., super built up flat on the third floor of the said building together with a garage measuring about 9ft. x 14ft. on the ground floor of the said building to the plaintiff, in acknowledgement of the services he rendered for negotiating the said transaction with the owner and also for the other services which the plaintiff rendered to the said developer for completing the said project.
It is also an admitted fact that in terms of the said agreement, the developer has paid a sum of Rs.3,00,000/- to the plaintiff. However, the developer has not given the possession of 750 sq.ft. flat on the third floor together with a garage on the ground floor of the said building to the plaintiff in terms of the said agreement.
As such, the plaintiff has filed the instant suit for specific performance of contract. He has also prayed for injunction for restraining the defendant nos. 1 and 2, viz. the developer from transferring and/or alienating and/or creating any third party interest in the suit property and/or parting with possession thereof with any stranger as he was apprehending that the developer will sell the said flat and the garage to stranger purchaser.
After filing the said suit, the plaintiff filed an application under Order 39 Rule 1 & 2 of the Code of Civil Procedure praying for temporary injunction for restraining the defendant (developer) from transferring, alienating and/or creating any third party interest in the suit flat and/or parting with possession thereof till the disposal of the suit.
The learned Trial Judge rejected the plaintiff's said application for temporary injunction ex parte. The legality of the said order is under challenge before us.
Let us now consider as to how far the learned Trial Judge was justified in rejecting the plaintiff's prayer for interim injunction in the facts of the instant case.
We have already narrated above the background of this litigation under which the instant application for temporary injunction was prayed for by the plaintiff. As such, for avoiding any further repetition, we do not mention the facts of the instant case once again.
There are three tests for grant of temporary injunction, those are :
i) existence of a prima-facie case,
ii) balance of convenience and inconvenience,
iii) irreparable loss and injury.
Let us now consider as to whether the plaintiff has succeeded in proving prima- facie case in the facts of the instant case.
Prima-facie case does not mean a full proof case. Prima-facie case means a case which has been made out by the plaintiff wherefrom the Court is satisfied that a triable issue is raised by the plaintiff in the suit.
Let us now consider in this background as to whether the plaintiff has succeeded in making out a triable issue in the facts of the instant case.
On perusal of the pleadings of the parties we find that execution of the development in agreement between the developer and the owner of the property is not disputed by the parties. Even the execution of the agreement between the developer and the present plaintiff being a broker, is also not disputed by the parties.
The defendants, however, in their affidavit filed before the learned Trial Court contended that they could not construct the building due to some unavoidable circumstances within the stipulated period and as such the owner of the said property, namely, Mridula Bose, revoked the general power of attorney and cancelled the agreement by executing a deed on 4th July, 2014 which was registered in Book No. IV CD Vol (3), Page 2903 to 2911 being No. 01766 for the year 2014. It is contended by the defendant/respondent (developer) that because of revocation of the power of attorney, the developer could not raise any construction over the suit property and as such he was unable to give possession of the suit flat to the plaintiff.
The stand which was taken by the defendant/respondent (developer) in their written objection filed before the Trial Court, cannot be accepted as justifiable reason for not handing over the possession of the suit flat to the plaintiff as we find that even after revocation and/or cancellation of the power of attorney on 4th July, 2014; the developer alongwith the owner of the said property entered into agreement for sale on 9th April, 2015 for transferring one flat on the second floor of the said building to the proposed purchaser, namely Nantu Kumar Singha, for a consideration of Rs.99,76,500/- (Rupees Ninety-nine Lacs Seventy-six Thousand and Five Hundred) only.
Since the developer along with the owner entered into the said agreement for sale on 9th April, 2015; for jointly transferring their flat to their proposed purchaser, i.e. even after cancellation and/or revocation of the power of attorney by the owner, we are unable to accept the explanation which was given by the developer for not giving possession of the flat to the plaintiff herein. We are of the view that revocation of the power of attorney is an eyewash. Such revocation was not acted upon. The claim of the defendant that the construction could not be made by them as the power of attorney was revoked, cannot be believed as we find that they jointly agreed to sell a second floor flat to their purchaser even after the revocation of power of attorney was made. We, thus, hold that the plaintiff has been able to make out a strong prima-face case for going for trial in the instant application.
Let us now consider the principle of balance of convenience and inconvenience.
If the defendant/respondent (developer) succeeds in trans-ferring the suit flat to any stranger purchaser during the pendency of the suit, the Court may not be able to grant the ultimate relief in favour of the plaintiff even though the plaintiff ultimately succeeds in establishing his claim in the said suit.
Thus, we feel that the balance of convenience and inconvenience, if considered, that will go in favour of the plaintiff for grant of injunction.
We also hold that if the defendant/respondent (developer) succeeds in transferring the suit property, the plaintiff will suffer irreparable loss and injury, as practically he will be non-suited.
As such, we hold that all the three tests for grant of injunction are satisfied in the instant case.
Accordingly, we dispose of the appeal by passing an order of injunction restraining the defendant/respondent (developer) from transferring, alienating and/or creating any third party interest in respect of the suit flat and/or parting with possession thereof in favour of any stranger purchaser till the disposal of the suit.
The application for injunction is, thus, allowed.
The learned Trial Judge is requested to dispose of the suit as expeditiously as possible without granting any unnecessary adjournment to any of the parties.
The instant appeal and the application, filed in connection therewith, are thus disposed of.
(Jyotirmay Bhattacharya, J.) (Shivakant Prasad, J.) ac 1 8