Calcutta High Court (Appellete Side)
Jugal Kishore Sadani & Ors vs South City Projects on 4 April, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
dIN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Asha Arora
FAMT 862 of 2015
With
(CAN 8217 of 2015)
Jugal Kishore Sadani & Ors.
Vs.
South City Projects
(Kolkata) Limited & Ors.
For the Appellants : Mr. Surajit Nath Mitra. Sr. Adv.
Debabeena Mukherjee. Adv.
For the Respondents : Mr. Abharajit Mitra, Sr. Adv.
Mr. Satadeep Bhattacharya, Adv.
Heard on : 24.3.2017 & 30.3.2017
Judgement on : 4th April, 2017.
Jyotirmay Bhattacharya, J.
This First Miscellaneous Appeal is directed against an order dated 13th May, 2015 passed by the learned Civil Judge (Senior Division) 5th Court at Alipore in Title Suit No. 10 of 2009 at the instance of the plaintiffs/appellants.
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By the impugned order the plaintiffs' application for temporary injunction was rejected on contest without cost. Thus, the ad interim order of injunction, which was passed in favour of the plaintiffs, stood vacated.
The legality of the order dismissing the plaintiffs' application for temporary injunction is under challenge in this appeal.
Let us now consider the merit of the instant appeal in the fact of the present case.
Admittedly, an agreement to lease was entered into between the defendant no.1 and the plaintiffs on 13th July 2007. By the said agreement the defendant no.1 agreed to let out a Unit No. S004 admeasuring 820 sq. ft super built-up area on the Ground Floor of the Shopping Mall, namely South City Shopping Mall for a period of 99 years commencing from January, 2007. The terms and conditions on which the parties agreed upon for granting the said lease in favour the plaintiffs were incorporated in the said agreement as well as in the Standard Terms and Conditions (hereinafter referred to as the said 'STC'). Admittedly, the plaintiffs paid a sum of Rs.33,84,000/-(Thirty three lakh eighty four 3 thousand) out of the total premium of Rs.37,60,000/-(Thirty seven lakh sixty thousand). It is also an admitted fact that pursuant to the said agreement, possession of the said unit was given to the plaintiffs by the defendant No.1. Trouble started when the plaintiffs started carrying out interior decoration work within the said Unit. Supply of electricity was disconnected. Under such circumstances apprehending that the plaintiffs will not be permitted to carry on their business after inauguration of the said Mall and the defendant no.1, may dispossess plaintiffs therefrom and may also transfer, alienate and/or create any third party interest in the said unit, the plaintiffs filed the said suit seeking declaration, injunction and specific performance of the contract.
After filing the said suit, the plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for temporary injunction for restraining the defendant from primarily dealing with the suit shop in any manner and/or from forcibly occupying the same or alienating the same or disturbing with the plaintiffs' possession and occupation therein and/or from creating disturbance in the execution of the work of fit out in the said shop room and/or from disturbing with the ingress and egress of the plaintiffs and their men and person till the 4 disposal of the suit. Ad interim relief in similar form was also prayed for by the plaintiffs in the said application.
The learned Trial Judge by an order being no.3 dated 19th January, 2009 passed ad-interim order of injunction restraining the defendant from causing any disturbance in the possession of the plaintiffs in the said shop room and also from dispossessing the plaintiffs from the suit shop room till 19th February, 2009. The said ad interim injunction was extended from time to time and ultimately the said order stood vacated as a consequence of dismissal of the plaintiffs' application for temporary injunction by the impugned order.
The learned Trial Judge while dismissing the plaintiffs' application for temporary injunction held that the purpose of granting injunction has been fulfilled as the interior decoration of the said suit unit had been completed in pursuance of an interim order passed by the learned Trial Judge.
Being aggrieved by the said order passed by the learned Trial Judge, the instant appeal was filed.
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Let us now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the present case.
On reading the application for temporary injunction, we find that several reliefs were claimed by the plaintiffs by way of interim measure in the said application. One of such reliefs claimed in the said application was for restraining the defendant no.1 from creating any disturbance in the process of carrying out the interior decoration work by the plaintiffs within the said Unit. Though, it is true that this part of the relief which was claimed by the plaintiffs in the said application for injunction has now become infructuous as in terms of an order passed by the learned Trial Judge on an application filed by the plaintiffs under Section 151 of the Civil Procedure Code, the plaintiffs were permitted to complete the interior decoration within the said Unit and, in fact, the plaintiffs did so during the pendency of the plaintiffs' said application for temporary injunction. However, the other disputes between the parties concerning other reliefs which were claimed by the plaintiffs by way of interim measures in the said application still remain unresolved. As such, we are of the view, the learned Trial Judge ought not have disposed of the plaintiffs' said application for temporary injunction without considering the merits of the plaintiffs' claim with regard to the other relifes which they claimed by way of interim measure in the said application for temporary injection. 6
That apart, the main contention of the defendant no.1 was that the plaintiffs are not entitled to get any decree for specific performance of contract in the said suit as they have failed to prove their willingness to comply with the terms of conditions of the agreement. It is complained by the said defendant that the plaintiffs have denied to pay the electricity charges, common area maintenance charges, and proportionate municipal rates and taxes payable by the plaintiffs for the said Unit, though they agreed to pay those charges and/or rates and taxes to the said defendant, right from the date when possession was delivered to the plaintiffs in pursuance of the said agreement.
Mr. Abhrajit Mitra, learned Senior Counsel appearing for the said respondent, has drawn our attention to the Division Bench decisions of this Hon'ble Court in the case of M/s. Ceean International Private Limited versus Ashoke Surana & Anr. reported in AIR 2003 Calcutta 263 and in the case of Savitri Devi Daga & Ors. versus Puranmall Goenka reported in 2005(4) CHN page 115. Relying upon those decisions of this Hon'ble Court, Mr. Mitra submitted that the plaintiffs cannot get a decree for specific performance of contract unless they prove the basic criteria as contained in Section 16C of the Specific Relief Act. He further submitted that interim 7 injunction is always passed in the aid of the final relief and if the Court finds that the final relief cannot be granted in favour of the plaintiffs, the Court will hesitate to pass any interim order of injunction in favour of the plaintiffs in such a suit.
Mr. Mitra further submitted that the agreement contains an arbitration clause for resolving any dispute between the parties concerning the terms of the said agreement. As such, according to Mr. Mitra, in view of Section 8 of the Arbitration and Conciliation Act, 1996, the suit which is filed by the plaintiffs is not maintainable in law. He further drew our attention to an order passed by other Division Bench of this Court on 30th August, 2010 in FMAT 919 of 2010 heard along with COT 46 of 2010 wherein it was observed that though it is true that so long as the dispute between the parties are not referred to either under the provision of Section 8 or Section 11(5) of the Arbitration and Conciliation Act 1996, the suit is maintainable but if any order is passed either under Section 8 or under Section 11 of the said Act and the dispute is referred to arbitrator, then the Civil Court loses its jurisdiction immediately and the learned Tribunal gets jurisdiction automatically.
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Mr. Mitra submitted that in view of such observation made by the other Division Bench of this Court, the dispute is referable to the arbitrator and the disputes which are raised between the parties in the suit can only be decided in such reference. According to him, in view of the arbitration clause contained in the said agreement and also in view of the aforesaid decision of the other Division Bench of this Court, the suit is not maintainable and as such no interim order can be passed in such a suit. He further submitted that it is settled law that even an erroneous order passed by the Court of competent jurisdiction is binding upon the inter parities at different stages of the said suit in view of the provision contained in Section 11 of the Civil Procedure Code. He thus contended that even if the findings made in the said order is erroneous, still then the findings so arrived at in the said order are binding on the parties.
Though we agree with such submission of Mr. Mitra, that even an erroneous order is binding upon the parties to the litigation and even at different stages of the same suit in view of the provision contained in Section 11 of the Code of Civil Procedure but we cannot agree with Mr. Mitra that the Division Bench in fact held in the said decision that the suit is not maintainable because of the arbitration clause contained in the said agreement. We have already indicated above that the Division Bench has 9 said that so long as a reference is not made either under Section 8 of the Arbitration and Conciliation Act, 1996 or under Section 11(5) of the said Act, the suit is maintainable. The Division Bench further held that once such reference will be made either under Section 8 or under Section 11 of the said Act, the Civil Court loses jurisdiction immediately and the learned Tribunal gets jurisdiction automatically. Thus, we hold that the findings which were recorded by the other Division Bench of this Court in the said First Miscellaneous Appeal does not help Mr. Mitra's client in any way on the issue regarding maintainability of the present suit.
That apart we are informed that the defendant No.1 filed written statement in the said suit on 26th June, 2009 i.e., even before the order was passed by the said Division Bench of this Court in the aforesaid First Miscellaneous Appeal. The said defendant also contested the plaintiffs' application for temporary injunction by filing affidavits in connection therewith before the learned Trial Court. Thus, we have no hesitation to hold that the said defendant intends to participate in the trial of the said suit by submitting it to the jurisdiction of the Civil Court and as such the defendant, in our view, has given up its right to get such dispute resolved through the process of arbitration. In these set of facts, we are of the prima facie view that the suit is maintainable.
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It is true that a decree for specific performance of contract cannot be passed in favour of the plaintiffs unless they prove the basic criteria as contained in Section 16C of the Specific Relief Act. Section 16C of the Specific Relief Act specifically provides that the plaintiff not only must aver in the pleadings but also must prove in course of trial of the suit that he was ready and willing and is still ready and willing to perform his part of the obligation under the contract.
Mr. Mitra drew our attention to the various clauses of the said agreement and the standard terms and conditions which was a part of the said agreement to impress upon us that the plaintiffs agreed to pay the electricity charges, common area maintenance charges and the Municipal rates and taxes of the said unit right from the date when possession was delivered to the plaintiffs in pursuance of the said agreement. He also drew our attention to the relevant terms of the said agreement and/or the standard terms and conditions wherein it was agreed upon between the parties that the bills demanding payment from the plaintiffs towards the electricity charges, common area maintenance charges and/or Municipal rates and taxes will be raised by the defendant No.1 on actual cost basis and the plaintiffs will not be permitted to object to the discretion of the said defendant in this regard. Mr. Mitra further submitted that the bills 11 were raised on the basis of actual cost incurred by the said defendant for providing such services to the occupiers of different units of the said Mall. The Municipal rates and taxes are demanded from the occupiers of different units of the said Mall on pro rata basis as per the rate prescribed by the Municipal Authority for different types of occupiers while assessing the valuation of the said premises.
Mr. Mitra, further submitted that the plaintiffs not only failed to pay the balance premium amount within the time as stipulated in the contract but also did not pay either the electricity charges or the common area maintenance charges and/or the Municipal rates and taxes right from the date when possession was delivered to the said plaintiffs. By referring to the pleadings made out by the plaintiffs in their affidavit, Mr. Mitra submitted that even the liability to pay the electricity charges and/or common area maintenance charges and/or the Municipal rates and taxes was denied by the plaintiffs in utter disregard of the terms of the said contract.
As such, the plaintiffs according to Mr. Mitra, is not entitled to get any injunction even in the temporary form during the pendency of the suit. 12
Mr. Surajit Nath Mitra, learned Senior Counsel appearing for the appellant, refuted such submission of Mr. Abhrajit Mitra, learned Senior Counsel of the respondent No.1, by submitting that the suit for specific performance of contract is very much maintainable in the present set of facts and his clients are entitled to get a decree for specific performance of contract in the this suit as his clients were ready and willing and are still ready and willing to perform their part of the obligation under the contract. He submitted that out of the total premium of Rs.37,60,000/- his client has paid a sum of Rs.33,84,000/-. He further submitted that though his clients disputed their liability to pay the electricity charges and/or common area maintenance charges, as such services were not rendered to plaintiffs as per agreement and the bills were also not raised at a uniform rate keeping parity with the charges at which the others are charged towards the common area maintenance charges and the electricity charges and/or the Municipal rates and taxes are also not demanded by keeping parity with the bills raised by the Municipal authority for the plaintiffs' unit.
He thus, submitted that his clients never disputed their liability to pay either common area maintenance charges or electricity charges or the Municipal rates and taxes of the said unit and his clients are still ready 13 and willing to pay such common area maintenance charges, electricity charges and the Municipal rates and taxes, provided such services are rendered to the plaintiffs as per contract and such charges are demanded from the plaintiffs at an uniform rate keeping the parity with the charges at which the other occupiers of the said mall are charged. He pointed out that several other occupiers of the other units of the said Mall are charged at a much lesser rate than the plaintiffs.
Mr. S.N Mitra, learned Senior Counsel further submitted that as on August, 2015, a sum of Rs.19,20,284.06 was outstanding towards common area maintenance charges and/or electricity charges as per the demand made by the defendant No.1. He has drawn our attention to the fact that out of such outstanding dues his clients have already paid a sum of Rs.10,00,000/- to the defendant No.1, in terms of the order passed by this Court on 23rd September, 2015. He also pointed out that a further sum of Rs.8,00,000/- has also been deposited with the learned Registrar General of this Court towards the outstanding dues on account of common area maintenance charges and/or electricity charges as per the order passed by this Court on 14th October, 2015.
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However, undisputedly nothing has been paid by the plaintiffs towards the Municipal rates and taxes of the said unit till today. He contended that even no demand has yet been made by the said defendant on account of Municipal rates and taxes.
We are informed by Mr. Abhrajit Mitra, learned Senior Counsel, that a sum of Rs.8,27,421/- remains due and payable by the plaintiffs on account of Municipal rates and taxes of the said unit for the period from April, 2008 to December, 2015. Though the said fact has been disclosed by the defendant No.1 in its reply filed before this Court, but we are not sure as to whether any demand was at all raised by the defendant No.1 from the plaintiffs on account of such outstanding dues of the plaintiff towards Municipal rates and taxes of the said unit.
Considering the pleadings of the parties and the agreement entered into between the parties including the terms contained in the standard terms and condition, we find that the plaintiffs agreed to pay the common area maintenance charges and the electricity charges. We also find from the said agreement that the plaintiffs also agreed to pay Municipal rates and taxes of the said unit payable from the date when possession was given to them.
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However, the dispute which is raised by the plaintiffs that uniformity has not been maintained by the defendant No.1 in raising such bills towards common area maintenance charges and/or electricity charges and/or the Municipal rates and taxes from the plaintiffs cannot be decided by this Court at this stage as resolution of such dispute cannot be done without trial on evidence. We drew this conclusion by looking at the pleadings of the said defendant that some of the occupiers of the some units are charged at a lesser rate than the plaintiffs as they are not provided with certain common area facilities which are enjoyed by the other occupiers like the plaintiffs.
However, since the plaintiff has already deposited the balance of the premium amount with the learned Registrar General of this Court and has also agreed to deposit the balance of the outstanding dues on account of common area maintenance charges and/or the electricity charges and further since the plaintiff has agreed to deposit a sum of Rs.8,27,421/- towards the Municipal rates and taxes of the said unit for the period from April, 2008 to December, 2015 with the learned Trial Court, this Court is of the view that the interim order of injunction which was prayed by the plaintiffs should be passed in the suit so that the status quo as regards 16 possession of the plaintiffs in the suit property are maintained and the plaintiffs are permitted to carry on their business therefrom without any disturbance and/or obstruction from the side of the plaintiffs and/or his men and agents.
As such, we dispose of this appeal by setting aside the impugned order. We pass an interim order of injunction restraining the defendant No.1 and/or its men and agents from transferring and/or alienating and/or creating any third party interest in respect of the suit unit and/or from disturbing the plaintiffs' possession therein and/or from causing any obstruction in the carrying on business by the plaintiffs from the said shop unit till the disposal of the suit subject to compliance of the following conditions:-
1. The plaintiffs are permitted to withdraw the balance of the premium amount which was deposited by the plaintiffs with the learned Registrar General of this Court in terms of the order passed by this Court together with interest accrued thereon and to deposit the same with the learned Trial Court within seven days from the date of such Withdrawal.17
2. The plaintiffs are also directed to deposit the balance amount of the outstanding dues towards the common area maintenance charges and/or electricity charges with the learned Trial Court within two weeks from date.
3. The plaintiffs are also directed to deposit a sum of Rs.8,27,421/-
on account of the Municipal rates and taxes of the said suit unit for the period from April, 2008 to December, 2015 with the learned Trial Court within two weeks from date.
4. The plaintiffs will also go on depositing the common area maintenance charges and/or the electricity charges and/or Municipal rates and taxes for the current months and/or current periods till the disposal of the suit within two weeks from the date when the defendant No.1 will raise such demand on the plaintiffs. It is made clear that in the event, such deposits are made either on account of the common area maintenance charges or on account of the electricity charges or on account of the Municipal rates and taxes, the defendant No.1 will be permitted to withdraw 3/4th of such deposits from the learned Trial Court. The learned Trial Court is thus, directed to pay 18 3/4th of such deposits to the defendant No.1 and will invest the rest of such deposits in short term fixed deposit with any Nationalized Bank and will keep the said deposit renewed from time to time till the disposal of the suit. The defendant No.1 is also permitted to withdraw the balance premium amount which will be re-deposited by the plaintiffs in the Court below after its withdrawal from the learned Registrar General of this Court in its entirety without interest.
It is made clear that such deposit and/ or payment and/or receipt of part of such deposits, by the parties will be made without prejudice to their rights and contentions in the suit and the fate of such payment and/or deposit and/or receipt thereof either as a whole or in part will ultimately be governed by the result of the suit.
The interim order which is passed hereinabove will continue till disposal of the suit subject to compliance of the aforesaid direction passed by this Court by the plaintiffs/appellants and in default of compliance of any of the conditions as mentioned above the interim order will stand automatically stand discharged.
The appeal is thus disposed of 19 Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J) I agree (Asha Arora, J)