Calcutta High Court
Cad Cam Management Services Pvt Ltd vs Sri Sri Iswar Jagannath Jew And Ors on 5 October, 2024
OD-2
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
IA NO: GA/1/2024
IN CS/201/2024
CAD CAM MANAGEMENT SERVICES PVT LTD.
VS
SRI SRI ISWAR JAGANNATH JEW AND ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : October 5, 2024.
Appearance:
Mr. Sankarshan Sarkar, Adv.
Ms. Sanjana Sinha, Adv.
...For the Plaintiff The Court: Mr. Sankarsan Sarkar, learned Counsel, is appearing for the plaintiff.
The plaintiff has filed the present application praying for ad interim application.
The plaintiff is engaged in the business of real estate and has earned substantial goodwill. The plaintiff has also successfully completed numerous projects in or around Kolkata.
The defendant Nos.1 to 3 are the deities and the defendant Nos.4 to 7 bare shebaits of the next friend of the said deities.
The defendant Nos.1 to 3 are the owner of the premises No.4, Baikunto Sen Lane, presently known as 35, Kali Krishna Tagore Street, Kolkata -700007.
Initially, the deities have entered into an agreement with the proforma defendant No.8 for development of the premises in question with the building.2
In the year 2004, shebaits had instituted an application before the learned City Civil Court at Kolkata being Misc. Case No.2355 of 2004 under Section 34 of the Indian Trust Act, 1992 praying for permission to transfer or enter into a development agreement with respect of the said suit property.
On 16th August, 2014, the defendant Nos. 1 to 7 had enter into an agreement for sale with the plaintiff where in the defendant No.8 was the confirming party with respect of the suit property.
As per the said agreement, the total sale consideration was fixed at Rs.1,08,00,000/- In the said agreement it was also agreed that the proforma defendant No.8, who is the confirming party, who had initially entered into a development agreement with the defendant Nos.1 to 7, invested an amount of Rs.52,50,000/- as well as Rs.5,78,000/- which shall be returned to the proforma defendant No.8. The plaintiff being the purchaser has paid an advanced sale consideration amount of Rs.97,20,000/- by way of earnest money which include the amount advanced by confirming party to the defendant Nos.1 to 7. It was further agreed that the balance amount of Rs.10,80,000/- shall be paid by the plaintiff to the defendant at the time of execution of the sale deed.
The suit filed by the Shebaits before the learned City Civil Court was disposed of with observation that Shebaits do not require any permission from the Court to transfer the debutter property for the overall benefits of the debutter/deities or for its legal entities.
The plaintiff has paid the advance sale consideration of Rs.97,20,000/- and the plaintiff has also made necessary arrangement for vacating some of the tenants from the suit premises. Now the plaintiff came to know that instead of coming forward by the defendants for execution of 3 the sale deed in terms of the agreement for sale, the defendants are trying to sell or alienate the said property in favour of the third party. Accordingly, the plaintiff has filed the present suit praying for ad interim injunction.
Heard learned counsel for the plaintiff. Perused the materials on record.
This Court finds that the defendant nos. 1 to 7 have entered into several agreements from time to time for the purpose of development of the property in question. Subsequently, the defendant nos.1 to 7 had entered into agreement with the proforma defendant for development of the suit schedule property and the proforma defendant had paid an amount of Rs.52,50,000/- and an amount of Rs.5,78,000/- to the defendant nos. 1 to
7. Subsequently, the defendant nos.1 to 7 decided to dispose of the said property and accordingly, they have entered into an agreement for sale with the plaintiff in which the proforma defendant was also a confirming party. In the said agreement the total sale consideration was Rs.1,08,00,000/- out of which the plaintiff has paid Rs.97,20,000/- being the earnest money including the advance paid by the proforma defendant no.8. In spite of receipt of an amount of Rs.97,20,000/-, the defendants failed to execute the sale deed and now the defendants intend to alienate the said property in favour of third party.
Counsel for the plaintiff has relied upon the judgment in the case of Babul Saha v. Sanat Kumar Mallick and Others reported in 2012 SCC OnLine Cal 10413 wherein the co-ordinate Bench of this Court has held that in a specific performance of an agreement for sale of immovable property, if the vendor is allowed to encumber, sale and transfer to a third party, the purpose of institution of the said suit would be rendered 4 nugatory. The Hon'ble Judge has further held that once an agreement is admitted and it has been, prima facie, proved that the opposite parties are contemplating to sell, transfer and encumber the property to a third party, the balance of convenience lies in favour of granting the injunction as non- granting would cause irreparable loss and injury.
Counsel for the plaintiff further relied upon the judgement in the case of Sourav Sarkar v. Hirak Ranjan Sarkar and Another reported in 2022 SCC OnLine Cal 3840 wherein the Division Bench of this Court held that if the Court ultimately comes out with a finding that the specific performance is required to be enforced and if third party is allowed to be created in the suit property, then mischief, hardship and inconvenience of the plaintiff would be greater than the injuries which the plaintiff may suffer.
Counsel for the plaintiff further relied upon the judgment in the case of Amrita Bazar Patrika Pvt. Ltd. v. Kanak Projects Limited and Anr reported in 2011 SCC OnLine Cal 9 wherein the Division Bench of this Court has held that in a suit of this nature, once written agreement for lease has been established and at the same time it has also been acknowledged that a sum of Rs.77,00,000/- has been accepted by the defendant from the plaintiff, the grant of injunction restraining the defendant from transferring or alienating the property during the pendency of the suit is almost a matter of course.
Considering the materials on record and the judgments relied by the plaintiff, this court finds that in the present case also the total sale consideration was Rs.1,08,00,000/- out of which the plaintiff has paid an amount of Rs.97,20,000/- and as per the agreement, the balance amount of 5 Rs.10,80,000/- shall be paid at the time of execution of the sale deed after the permission is obtained from the Hon'ble Court. This Court also finds that the suit filed by the defendant nos.1 to 7 has been disposed of by the learned City Civil Court wherein it is held that no permission is required and as such there is no impediment for the defendants to execute the sale deed in favour of the plaintiff in terms of the agreement for sale, instead the defendants are trying to alienate the property or enter into agreement with the third party.
Accordingly, the defendant nos. 1 to 7, their men, agents, servants are restrained from selling or encumbering and/or transferring or alienating or creating any third party interest with respect of the suit property till 27th November, 2024.
The plaintiff is directed to send the copy of the plaint, injunction application and the documents immediately to the defendants and to file affidavit of service on the returnable date.
List the matter on 27th November, 2024.
(KRISHNA RAO, J.) S.De/RS