Calcutta High Court
Bangani Leafin Private Limited vs Sovana Sinha Roy & Others on 17 March, 2011
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
GA No. 2285 of 2010
GA No. 3959 of 2007
CS No. 312 of 2007
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
BANGANI LEAFIN PRIVATE LIMITED
-Versus-
SOVANA SINHA ROY & OTHERS
For the Plaintiff: Mr Hirak Kumar Mitra, Sr Adv.,
Mr Tarun Goswami, Adv.,
Ms Pooja Das Chowdhury, Adv.,
Ms Trina Banerjee, Adv.,
Ms Falguni Jana, Adv.
For the Defendant Nos. 1 to 4: Mr Subhankar Nag, Adv.,
Mr Subhankar Chakroborty, Adv.
For the Defendant No. 5: Mr Promit Kr. Ray, Adv.,
Mr Debdutta Basu, Adv.,
Mr Rajib Mullick, Adv.
For Jayanta Ranjan Das: Mr Dhruba Ghosh, Adv.
ALP No. 8 of 2008
BANGANI LEAFIN PRIVATE LIMITED
-Versus-
SOVANA SINHA ROY & OTHERS
For the Petitioner: Mr Hirak Kumar Mitra, Sr Adv.,
Mr Tarun Goswami, Adv.,
Ms Pooja Das Chowdhury, Adv.,
Ms Trina Banerjee, Adv.,
Ms Falguni Jana, Adv.
2
For the Respondents: Mr Subhankar Nag, Adv.,
Mr Subhankar Chakroborty, Adv. Mr Dhruba Ghosh, Adv. Mr Promit Kr. Ray, Adv., Mr Debdutta Basu, Adv., Mr Rajib Mullick, Adv., Mr Tapas Sarkar (In person).
Hearing concluded on: March 14, 2011.
BEFORE The Hon'ble Justice SANJIB BANERJEE Date: March 17, 2011.
SANJIB BANERJEE, J. : -
The two sets of matters are connected and have been taken up together. In CS No. 312 of 2007 the plaintiff company seeks a declaration that an agreement dated August 4, 2003 and two powers of attorney executed by the defendant shebaits on January 19, 2005 and February 11, 2005 are valid and subsisting and a declaration that a letter of cancellation of September 7, 2007 is void. The ancillary injunctions sought are to compel the defendants to discharge their obligations under the agreement of August 4, 2003 and the supplemental agreement of November 24, 2003; mandatory injunction commanding the defendants to withdraw the letter of termination; and, injunction restraining the defendants from interfering with the plaintiff's share in the newly constructed building at 49, Kali Krishna Tagore Street, Calcutta - 700007.
ALP No. 8 of 2008 has been brought by the plaintiff in CS No. 312 of 2007 seeking transfer to this Court of four other suits connected with the same transaction. The petitioner in the application under clause 13 of the Letters Patent suggests that it would be embarrassing for the connected actions to be 3 allowed to proceed elsewhere as that may result in a conflict of decisions and unnecessary other complications.
The case made out in the plaint relating to CS No. 312 of 2007 is that the sixth defendant deity was the owner of three adjoining premises at Kali Krishna Tagore Street measuring about four cottah and the other defendants are the shebaits of the deity. Though there appear to be a defendant No. 1A and another defendant No. 5A whose names have been included in hand in the cause title, but the body of the plaint has no reference to such defendants. Since the plaintiff says that an application has been made for extension of time to serve the writ of summons which has not yet appeared before Court, such aspect as to the anomalies in the plaint is disregarded at the moment with liberty to the contesting defendants to urge such ground at a future date.
The plaint claims that the defendant Nos. 2 to 5 along with other shebaits (another pointer that there were other shebaits who had not been impleaded) approached the plaintiff for the purpose of developing the property. According to the plaint, an agreement was entered into on August 4, 2003 between the parties for the development of the property by the plaintiff. Paragraph 5 of the plaint claims that the defendants executed powers of attorney for carrying out the terms and conditions of the agreement of August 4, 2003. Such powers of attorney, said to be registered, are claimed to have been executed on January 19, 2005 and February 7, 2005. The plaintiff claims to have applied to the corporation for amalgamation of the premises and the three premises are now known as 49, Kali Krishna Tagore Street. The plaint says that the plaintiff has incurred considerable expenditure for engaging an architect to prepare a building plan; for negotiating with the old tenants and relocating them; and, by way of payment of a sum of Rs.20 lakh to the shebaits in addition to rent of Rs.2.59 lakh and a further sum of Rs.2.75 lakh on account of arrears rates and taxes. The plaintiff claims to have removed the old structure and completed eighty per cent of the construction of the new building. According to the plaint, the shebaits are 4 entitled to the fourth floor of the new building and possession of such floor has been made over to the shebaits early in 2006. The plaint speaks of an expenditure in excess of Rs.2 crore having been incurred by the plaintiff for discharging its obligation under the agreement of August 4, 2003. Paragraph 14 of the plaint refers to a letter dated September 7, 2007 issued by advocate representing the defendant nos. 1 to 5 (again, the defendant nos. 1A and 5A are not specifically mentioned) which sought to "cancel the agreement dated August 4, 2003 and November 24, 2003 and powers of attorney dated January 19, 2005 and February 11, 2005 on false and fabricated grounds." Earlier, at paragraph 4A of the plaint, the plaintiff has referred to a supplemental agreement of November 24, 2003. The plaintiff says that some of the shebaits were not signatories to the agreement of August 4, 2003 and, by the supplemental agreement, such shebaits adopted the agreement of August 4, 2003 and agreed to be bound thereby.
GA No. 3959 of 2007 is the plaintiff's application in aid of the reliefs claimed in the suit. GA No. 2285 of 2010 is the fifth defendant's application for the appointment of a receiver to identify the occupants at the premises, to collect the premium allegedly deposited by the illegal occupants thereat and for submission of accounts from the date of the induction of the alleged illegal occupants at the building at 49, Kali Krishna Tagore Street. In GA No. 3959 of 2007 an initial order was made in the presence of defendant Nos. 1 to 5 on March 11, 2008 which restrained the defendants from creating any third party rights in respect of the property and any portion thereof; and, restrained the plaintiff from creating any right in favour of any person over the constructed area at the said premises.
On receiving the fifth defendant's application, GA No. 2285 of 2010, no interim order was made but it was observed that the pendency of such application would not stand in the way of other applications of similar import pending in the City Civil Court from being disposed of.5
There are several facets to these interlocutory applications, not the least of them being the lack of sanctity of registration of documents and the disquieting ethical standards in the profession. These have been slightly over-dramatised interlocutory proceedings. The prima facie view here is based not only on the cold writings in papers but also on the oral testimony of one of the key figures in the suit. The matter was, probably at the Court's behest, somewhat blown out of proportion for, in the end, nothing turned out to be exceptionally unusual. It has now come to pass that the execution of registered documents can be questioned on the ground that they were not signed in the registry or on the ground that the lawyer identifying an executant could not have vouched that the person was indeed who he claimed to be. The other mundane side issues that have cropped up relate to a real estate developer grabbing a debutter property and the shebaits looking the other way only to later claim a larger pound of flesh by citing injustice to the deity.
The two applications in the suit were taken up for hearing on January 14, 2011 when it was found necessary that the state of the building which is the subject matter of the suit was required to be assessed. This was because of the fifth defendant claiming that he had not been allotted any space on the fourth floor of the new building. A Special Officer was appointed on January 14, 2011 to report on the condition of the construction and as to whether the fifth defendant was in occupation of any part of the fourth floor. On the same day, the plaintiff produced the original registered power of attorney apparently executed by the fifth defendant on November 24, 2003 (the same day as the supplemental agreement) in favour of one or more of his brothers. On behalf of the fifth defendant the factum and execution of the document was denied and the fifth defendant's signatures on the last page of the document and the reverse of the first page thereof were disowned. The document was required to be kept with the Registrar.6
On January 14, 2011 the Court's notice was drawn to a letter dated April 7, 2008 addressed by the fifth defendant to advocate who had apparently witnessed the power of attorney of November 24, 2003 said to have been executed by the fifth defendant. A copy of such letter appears as annexure "H" (page 181) of the fifth defendant's application. The fifth defendant has alleged in such letter that advocate Jayanta Ranjan Das had falsely identified the signature of the fifth defendant. Mr Das responded by his letter of April 23, 2008 claiming that "no signature had ever been put by me on any document and before any authority whatsoever." The fifth defendant thereafter issued a letter dated May 21, 2008 to Mr Das to which there was a response of June 20, 2008, copies whereof were forwarded to some of the other parties to this suit and to Mr Subrata Basu, advocate. Mr Das alleged in his letter of June 20, 2008 that at the time of the execution of the power of attorney dated November 24, 2003 he practised as a junior of Mr Basu. He suggested that he may have signed the document on the instruction of Mr Basu who had drafted the document. Mr Das claimed that Mr Basu misused his position as senior and got Mr Das to complete the identification. Mr Basu retorted, in his letter of July 7, 2008 to Mr Das, that Mr Das had identified the fifth defendant at the office of the sub-registrar in Alipore though Mr Basu said that Mr Basu was not present at the relevant time.
Upon noticing such facts on January 14, 2011, a written response of Mr Basu was sought. Both Mr Basu and Mr Das were subsequently required to be present in Court to be examined on the question. Mr Basu, Mr Das and the fifth defendant have made their statements from the box and have been cross- examined.
The Special Officer's report of January 21, 2011 refers to a "G+5" building where the construction was more or less complete except some interior work on the second floor. The Special Officer was taken to an area measuring approximately 350 sq. ft on the fourth floor that was identified by the defendant Nos. 1 to 4 to have been earmarked for the fifth defendant. The Special Officer 7 found the first defendant in such designated area. The first defendant is the mother of the defendant Nos. 1A to 5 and the mother-in-law of the defendant No. 5A. The first defendant claimed to be in possession of the area but the Special Officer observed that there were no personal belongings of the first defendant in the room apart from a metal tumbler. The commendable report of the Special Officer, which contains only her observations without any unnecessary comment, records that she saw a heap of empty cigarette packets in a loft in the room that suggested that the room may have been occupied by a smoker. The bathroom appeared to have been regularly used and the adjoining kitchen had a sack of unused incense sticks, bags of clothes and a stove. The first defendant led the Special Officer into her prayer room and opened the lock to such room for the Special Officer's inspection. The Special Officer noticed a bed and a mattress in such room but the first defendant informed the Special Officer that she found it too cold to stay in the prayer room in winter. After the Special Officer's inspection was completed, the fifth defendant arrived and he represented to the Special Officer that whatever his mother had said was true and he was in need of a separate room. There is no challenge to the report of the Special Officer by the fifth defendant.
The object of the exercise to examine the fifth defendant and Mr Basu and Mr Das, advocates, was to ascertain the veracity of the alleged power of attorney of November 24, 2003 said to have been executed by the fifth defendant in favour of one or more of his brothers. The direction to examine the three was by an order dated January 21, 2011 upon noticing the contents of a letter dated January 20, 2011 issued by Mr Basu to advocate representing the plaintiff.
Though the issue on which the three were to be examined was confined to the existence and execution of the alleged power of attorney of November 24, 2003, the fifth defendant adduced evidence on the entire transaction and his allegation that he was neither a party to the development agreement nor had accepted the same. Since such evidence is on record, the assessment of the rival 8 claims at the interlocutory stage is partly based on the fifth defendant's testimony.
In his affidavit-in-opposition to the plaintiff's application, the fifth defendant has denied signing any agreement in respect of any of the properties belonging to the deity. He claims that the plaintiff "must have forged and fabricated my signature falsely to exploit an advantage and to put the Deity to a position of positive disadvantage." He says that there was no legal necessity to alienate or transfer the property. He has denied having approached the plaintiff for developing the property and has denied being a party to the development agreement whether directly or indirectly. He has pontificated on the duties of shebaits to the deity and of their lack of authority to alienate any part of the debutter estate.
It is necessary at this stage to notice the evidence of Mr Basu and Mr Das on the execution of the power of attorney. Mr Basu admits that he had prepared the draft power of attorney for the fifth defendant at the request of the other defendant brothers of the fifth defendant. He claims to have handed over the draft to the other brothers and advised them to purchase stamp paper of appropriate value in the name of the fifth defendant. He says that he took no part in the registration of the power of attorney. He acknowledges that his residential address had been shown to be the address of the donor in the power of attorney but suggests that it had been done by Mr Das. He suspects that his residential address, which falls within the jurisdiction of the office of the sub-registrar in Alipore, may have been used for the purpose of registering the power of attorney in such office. He accepts having signed on the last page of the document but denies having taken any part in the registration. He has not given a clear answer to whether he had ever met the fifth defendant. He has denied a suggestion made on behalf of Mr Das that Mr Das was involved in the matter of the execution of the document only at Mr Basu's behest. Mr Basu has claimed to know one Narendra Kumar Rathi who is associated with the plaintiff. On behalf of Mr Das, 9 Mr Basu has been confronted with a copy of a document appearing at page 58 of the plaintiff's affidavit-in-opposition in GA No. 2285 of 2010. The original of such document appears as the last page of the supplemental agreement of November 24, 2003 produced on behalf of the plaintiff. Mr Basu has denied having identified two witnesses whose names appear on the page. When further confronted on behalf of Mr Das that the page carried a notarial attestation, Mr Basu has said that anything could be done before a Notary. What comes through from his deposition is that Mr Basu had a professional relationship with the plaintiff and with the defendant Nos. 1 to 4, who support the plaintiff. Notwithstanding his denial, Mr Basu appears to have instructed Mr Das to play a part in the execution of the power of attorney. Mr Basu did not avail of the opportunity to cross-examine Mr Das.
Mr Das has altogether disowned his role in the registration of the alleged power of attorney of November 24, 2003. Even though suggestions were made on his behalf to Mr Basu that Mr Das's role in the execution of the document was on Mr Basu's instruction, a completely contradictory stand was taken by Mr Das in suggesting to the fifth defendant that the alleged power of attorney was executed in the usual course of business. That would completely demolish Mr Das's stand that he had no more role in the execution of the document than as instructed by Mr Basu and that Mr Das did not go to the registry for the registration of the alleged power of attorney. However, a final stand has been taken by Mr Das undertaking by way of an affidavit filed in Court wherein he has assured that he would not sign any document which requires him to identify a person or the signature of a person without first ascertaining and being satisfied of the identity of such person. Despite the assertion on behalf of the plaintiff that in Mr Das's suggestion to the fifth defendant that the document had been executed in the usual course it was implicit that he accepted that the registration of document was in order, it would not be fair to discard the rest of the testimony on the basis of a solitary misguided suggestion.10
It is the fifth defendant's oral evidence that now needs to be seen. Such testimony has to be viewed in the context of some undeniable facts. It is evident that one or more buildings stood at the site where the new building has come up; that most of the tenants at the old buildings are no longer there; that the three premises have been amalgamated into one and there are bills that the fifth defendant has received at the address bearing the new corporation holding number; that the old buildings were partly or fully demolished; and, that a six- storied building has sprouted thereat with the shebaits having been given possession of the fourth floor thereof and the fifth defendant also having unimpeded access thereto.
The fifth defendant has unreservedly indicated his Calcutta address as 49, Kali Krishna Tagore Street and in his examination-in-chief he has said that he had a small room in the new building where he kept some goods but he did not have any room to live in. He admits that the signature at the bottom of the first page of the alleged power of attorney was his but insists that the three signatures on the reverse of such page were not his. He owns up his signature on the ninth page of the document and suggests that Narendra Kumar Rathi had asked him to sign such page on Rathi's representation that it would facilitate his obtaining a loan. He denies that there was any writing on such page when he had appended his signature thereto. He accepts that the finger-prints on such page were his and says that at the relevant time his photograph was not affixed but he had put his finger-prints on Rathi's representation that it was necessary in connection with his obtaining the loan.
The fifth defendant's examination-in-chief proceeded way beyond the limited purpose for which he had been required to climb the box. He has said that his elder brothers had represented to him that a sum of Rs.7.5 lakh would be required to develop the premises and create some additional space on the ground floor and that his contribution had to be Rs.1.5 lakh. He has admitted to having signed a blank document at his brothers' prodding. He says he was aware 11 that the old building was to be repaired by "adding one or two floors on the said house and by decreasing the width of the wall 30 inch which were there previously." Though he asserts that he had not executed any power of attorney in favour of the fourth defendant brother but he accepts having signed a blank paper. As to his photograph on the document, he says that Rathi had taken three photographs and copies of his identity card in connection with the loan that Rathi had promised to arrange for him. He says that he signed the last page of the document, without most of the writings therein, intending it to be some form security for his loan. He has volunteered that he had obtained a loan of Rs.2 lakh that Rathi had arranged for him. He says that he had signed the document that now appears as the third page of the supplemental agreement of November 24, 2003 but claims that it was a stand-alone document wherein he acknowledged having received Rs.2 lakh but the other writing on that page did not appear at the time that he signed the same. He claims to have obtained the loan for repairing the house and for freeing other unspecified landed properties from the illegal occupants thereat. He maintains that he utilised a part of the money for the purpose of his business of manufacture and sale of incense sticks. He denies having known or met Mr Basu or Mr Das prior to seeing them in Court. In course of his cross-examination on behalf of the plaintiff, the fifth defendant was, to be charitable to him, incoherent at times and introduced the names of a number of persons who had not been referred to by him in his affidavit or examination. He has admitted that he is in possession of three rooms in the new building and had given two rooms on rent to tenants. He has acknowledged that he receives the rents in respect of the two rooms exclusively and issues receipts therefor. He has later corrected himself to say that he utilised the rent "for my own purpose and for the purpose of puja etc." He has repeated that he was aware in 2003 that two or three stories were to be added to the building that originally existed at the premises. He admits that he is a registered consumer of CESC Ltd in respect of a part of the fourth floor of the building at 49, Kali Krishna Tagore Street. He claims to have obtained a loan of approximately Rs.4 lakh that Rathi had 12 arranged for him but says he has neither repaid any part of it nor paid any interest thereon.
The fifth defendant's evidence does not inspire any confidence. He is clearly in possession of a part of the fourth floor of the new building and the observations of the Special Officer in course of her visit reveal that the first defendant mother of the fifth defendant did not have her belongings in the room that she claimed to be living in and empty cigarette packets and a bag of incense sticks - the professed business of the fifth defendant - were found thereat. There is considerable doubt as to the execution of the power of attorney of November 24, 2003 by the fifth defendant but even if it be assumed that there was no such document, it cannot detract from the fifth defendant's acquiescence in the transaction as appears from his evidence and his contemporaneous conduct. It is not the fifth defendant's case that he suddenly arrived at Kali Krishna Tagore Street one morning to find that the old building had vanished and a high-rise had sprung up. The fifth defendant's explanation in connection with his admitted receipt of payment from Rathi, who is associated with the plaintiff, is unconvincing. He claims to have obtained a loan of Rs.4 lakh without having furnished any security other than his signature on a piece of paper. One can imagine the length of the line if people start queuing up for loans being doled out without any security, with no provision for interest and no commitment for repayment to boot.
What comes through from the fifth defendant's deposition is that he received a payment which corresponds to about a fifth of the amount that the plaintiff claims to have paid the shebaits, that he was aware of the new construction and that he is in possession of or has unimpeded access to the fourth floor of the new building where he has obtained an electricity connection in his name.13
The second part of the fifth defendant's contention appears to be that never mind his conduct, the deity has been wronged. Quite apart from the fact that his concern for the deity is discredited by his unabashed admission of his exclusively receiving rent from two tenants at the new building, he has not been able to belittle the plaintiff's contention that the transaction was warranted by legal necessity. The old buildings of the debutter estate were dilapidated, the corporation dues had mounted to Rs.2.75 lakh and at least four brothers of the fifth defendant vouch for the transaction. A sister of the defendant brothers has not been impleaded but was required by Court to be served notice. She has used an affidavit wherein she has admitted that she was aware of the "renovation" and of several floors being added to the old building. The plaintiff has relied on a declaration furnished by such daughter of the first defendant on December 2, 2004 which records that she had no objection to the development of the property.
The plaintiff has referred to a judgment reported at LR (1866) 1 HL 129 (Ramsden v. Lee Dyson) for the proposition that if the real owner abstains from objecting to construction on his land he cannot be heard to complain when the building is complete. The plaintiff submits that it was open to anyone objecting to the interlocutory prayers sought by the plaintiff to rebut the plaintiff's assertion as to legal necessity by demonstrating that the debutter estate did not owe any money to the corporation. The plaintiff has relied on a judgment reported at AIR 1968 SC 1413 (Gopal Krishnaji Ketkar v. Mohamed Haji Latif) for the proposition that if a person is expected to have certain records but does not produce the best evidence, an adverse inference may be drawn from such conduct.
In the context of the claim in the suit and the fifth defendant not having filed any counter claim, the prayers made in GA No. 2285 of 2010 appear to be misconceived. GA No. 2285 of 2010 is dismissed without any order as to costs.
GA No. 3959 of 2007 is disposed of by modifying the order dated March 11, 2008 by restraining the defendants from dealing with or disposing of or 14 alienating or encumbering any part of the new building at 49, Kali Krishna Tagore Street in any manner whatsoever. The plaintiff will be free to complete the unfinished construction of the building and its interiors strictly in accordance with the sanctioned plan and the existing building rules. Since the fifth defendant has altogether denied having instructed any person to issue the letter dated September 7, 2007 and the other defendants do not oppose the plaintiff's prayer in such regard, the defendants are restrained from acting in derogation of the rights conferred in favour of the plaintiff under the agreements of August 4, 2003 and November 24, 2003.
The primary focus in course of these interlocutory applications has been on whether the fifth defendant was a party to the development agreement. The plaintiff has attempted to connect the fifth defendant with the transaction by virtue of the alleged power of attorney of November 24, 2003. Yet, such alleged power of attorney finds no mention in the plaint where two other powers of attorney are referred to. It is the more fortuitous circumstance of the fifth defendant's oral testimony that has gone against such defendant. Since it is possible that the ultimate claim of the plaintiff may fail, notwithstanding the prima facie view taken here, and since the plaintiff's unfettered right to deal with the space available at the new building other than the fourth floor cannot be conclusively accepted at this stage, the plaintiff is required to deposit a sum of Rs.20 lakh with the Registrar, Original Side, within a fortnight from date to be entitled to the benefit of this order. On the plaintiff's failure to make such deposit within the time permitted, GA No. 3959 of 2007 will stand dismissed with costs assessed at 200 GM in favour of the fifth defendant. In the event of the deposit being made within time permitted, the Registrar, Original Side, will invest the same by way of a fixed deposit in a nationalised bank and keep the same renewed pending further orders. If the deposit is made there will be no order as to costs on GA No. 3959 of 2007.15
As Mr Basu claims to have retired from the profession, nothing more is said of him. Mr Das is reminded of the obligation that he owes as an officer of Court and urged to act in accordance with the spirit of the affidavit of undertaking furnished in Court.
In ALP No. 8 of 2008 the plaintiff has sought the transfer of four suits that had been filed before the City Civil Court in respect of the matters which form an integral part of the suit in this Court. Of these four suits, the one filed by the plaintiff herein has since been withdrawn. Two of the three other suits are by the two tenants said to have been inducted at the new building by the fifth defendant herein; and the other suit is by the fifth defendant herein, in the name of the deity, challenging the development agreement and related matters.
The disputes in the suit in this Court and the three other suits now pending in the City Court appear to be inextricably connected. The fifth defendant herein has consented not only to the transfer of his suit but also to the transfer of the two other suits. One of the tenants has appeared in person and has opposed the transfer. The other tenant is not represented despite service.
In the fitness of things and considering that the matters in issue in the High Court suit and those in issue or likely to be in issue in the surviving City Court suits are similar, ALP No. 8 of 2008 is allowed by directing TS No. 542 of 2008, TS No. 1255 of 2008 and TS No. 2616 of 2008 to be transferred from the City Civil Court to this Court for the High Court suit and the transferred suits to be taken up and decided analogously. There will be no order as to costs.
The original documents tendered by the parties may be taken back by the respective parties subject to true copies thereof duly attested by concerned advocates being left behind. An officer attached to this Court will return the documents against appropriate receipts which should be retained in the file containing the plaint.16
Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.)