Calcutta High Court
Mono Orion Foods India Private Limited vs Syndicate Realityinfra Private ... on 21 August, 2025
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
IA No. G.A. 2 of 2022
In
C.S. (Com) No. 593 of 2024
(Old No. C.S. 165 of 2021)
MONO ORION FOODS INDIA PRIVATE LIMITED
Versus
SYNDICATE REALITYINFRA PRIVATE LIMITED
Mr. Rudraman Bhattacharyya, Sr. Adv.
Mrs. Suchishmita Ghosh Chatterjee
Ms. Amrita Panja Moulick
Mr. Siddharth Banerjee
Ms. Shivangi Agarwal
Mr. Satyaki Mukherjee
... For the plaintiff.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Dhirendra Nath Sharma, Sr. Adv.
Mr. Naresh Balodia
2
Mr. Samrat Saha
... For the defendant.
Hearing Concluded On : 31.07.2025
Judgment on : 21.08.2025
Krishna Rao, J.:
1. The defendant has filed an application being G.A. No. 2 of 2022 in C.S. (Com) No. 593 of 2024 (Old No. C.S. 165 of 2021) for dismissal of suit for the reasons that:
a. The plaintiff has not applied specific performance of the entirety of the said Development Agreement dated 17th August, 2015.
b. In view of the bar under Section 12 of the Specific Relief Act, 1963 (as amended), specific performance of a part of the contract cannot be directed and the Court shall not direct the specific performance of a part of the contract, as prayed for.
c. Upon perusing the Plaint, it will appear that Plaintiff has applied for only specific performance of clauses 4.1, 7.1, 9.1 and 10.2 of the said Development Agreement. This will also appear from prayer (a) of the Plaint filed in the above suit. The other purported reliefs in the Plaint being prayers (b) to (e) are the other consequential reliefs flowing from prayer (a) of the Plaint.
d. Prayer (a) of the Plaint is contrary to law and the suit as framed is barred by law and thus the suit filed by the plaintiff is liable to be rejected.
2. Mr. Abhrajit Mitra, Learned Senior Advocate representing the defendant submits that the plaint does not state that the plaintiff is not entitled to 3 claim specific performance of the entire contract for any of the reasons contemplated in Sections 12(2), 12(3) or 12(4) of the Specific Relief Act, 1963.
3. Mr. Mitra further submits that the Power of Attorney previously granted to Mahesh Kumar Agarwal is expressly not for development of the subject premises. The Power of Attorney was not an irrevocable. The Power of Attorney which is not expressly made irrevocable in a manner known to law is essentially determinable/ revocable. In support of his submissions, he has relied upon the judgment in the case of Suraj Lamp and Industries (P) Limited (2) Vs. State of Haryana & Anr. reported in (2012) 1 SCC 656 and in the case of Indira Rajguru of United Kingdom, Indian Origin Vs. Balakrishna K. Rajguru of United Kingdom and Australia, Indian Origin and Others reported in 2019 SCC OnLine Bom 235.
4. Mr. Mitra submits that execution of such a Power of Attorney as claimed in the plaint would be hit by Section 14(d) of the Specific Relief Act, 1963 since the defendant would be free to revoke the Power of Attorney at any time. He submits that Court cannot grant specific performance of a contract when the contract is determinable. He submits that no Court would pass a decree that is on the face of it futile. He relied upon the judgment in the case Laxmidas Dayabhai Kabrawala Vs. Nanabhai Chunilal Kabrawala and Others reported in AIR 1964 SC 11, in the case of S.L. Kapoor Vs. Jagmohan and Others reported in AIR 1981 SC 136 and in the case of S.M. 4 Amarchand Sowcar and Ors Vs. Tamil Nadu Electricity Board and Others reported in MANU/ TN/0034/1999.
5. Mr. Mitra submits that the extent of loss which the plaintiff would suffer in case specific performance is not granted has been assessed at paragraph 11 of the plaint. If compensation would give adequate relief, then mandatory injunction/ specific performance cannot be granted. In support of his submissions, he has relied upon the judgment in the case of Sushil Kumar Agarwal Vs. Meenakshi Sadhu & Ors. reported in (2019) 2 SCC 241, in the case of Nidamarti Jaladurga Prasadarayudu Vs. Ladooram Sowcar and Another reported in AIR 1936 Madras 687 and in the case of I.B.P. Co. Ltd. & Ors. etc. Vs. Ramashish Prasad Singh & Ors. reported in AIR 2006 Patna 91.
6. Mr. Mitra submits that for further performance of the Development Agreement dated 17th August, 2015, is a fresh contract being entered into by the plaintiff and the defendant in terms of Clause 5.3 of the Development Agreement. The building plan was sanctioned on 18th November, 2016 and the three years' period has thus expired on 17th November, 2019. Clause 6.4 of the Development Agreement also requires a future contract being entered into by and between the parties for allocation of areas between themselves. Unless the said two contracts as contemplated in Clause 5.3 and 6.4 of the Development Agreement are entered by the parties, the Development Agreement cannot be fully performed. He submits that the agreements regarding allocation of built up area and regarding time extension are required to 5 be brought into existence as per Clauses 6.4 and 5.3 of the Development Agreement. The Court cannot bring about a contract between the parties. He relied upon the judgment in the case of Venkataraman Krishnamurthy & Another Vs. Lodha Crown Buildmart Private Limited reported in (2024) 4 SCC 230. He further submits that the Development Agreement has vital elements which contemplate contracts to be entered into in future in terms of Clauses 5.3 and 6.4 of the Development Agreement is void. There can be no contract to enter into a future contract and an agreement to that effect is void. He relied upon judgment in the case of Kollipora Srimulu Vs. T. Aswatha Narayana reported in AIR 1968 SC 1028, in the case of Von Hatzfeldt-Wildenburg Vs. Alexander reported in (1912) 1 CH 284, in the case of Speech & Software Vs. Neos Interactive reported in (2009) 1 SCC 475 and in the case of King's Motors (Oxford) Ltd. Vs. Lax & Anr. reported in (1970) 1 Weekly LR 426.
7. Mr. Mitra submits that decree for mandatory injunction as claimed by the plaintiff cannot be granted in lieu of the specific performance. He relied upon the judgment in the case of Suresh Kumar through GPA Vs. Anil Kakaria & Ors. reported in AIR 2017 SC 5239.
8. Mr. Rudraman Bhattacharyya, Learned Senior Advocate representing the plaintiff submits that a plaint can be rejected only on grounds referred to in Order VII, Rule 11 of the Code of Civil Procedure, 1908. In respect of Letters Patent a plaint can be dismissed on the grounds mentioned in Order VII, Rule 11(a) or (d) of the Code, where the plaint 6 does not disclose a cause of action, or wherefrom the averments made in the plaint it appears that the suit is barred by law. He submits that only the averments made in the plaint are to be looked into for the purpose of deciding an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908.
9. Mr. Bhattacharyya submits that from none of the averments made in the plaint, it can be shown that the suit is barred by any law. As regard the cause of action of the plaintiff is concerned, the suit is for specific performance of a Development Agreement by executing a Power of Attorney in favour of Meena Agarwal, the Director of the plaintiff. Mr. Bhattacharyya relied upon Appendix -A, Form Nos.47 and 48 of the Civil Procedure Code, 1908 and submits that a suit for specific performance of contract should contain the averments mentioned therein and the present suit is in consonance with the forms given in the CPC and cannot be said that no cause of action is disclosed.
10. Mr. Bhattacharyya submits that it cannot be said that the agreement stood expired by efflux of time in November, 2019. He submits that it is the case of the plaintiff that the work was progressing smoothly until the demise of Mahesh Kumar Agarwal. Time is never the essence of contract in terms of Clauses 3.1, 3.2 read with Clause 5.3. Clause 3.2 provides that the agreement shall remain in force till such time the construction is completed and Clause 5.3 provides that the time may be extended on mutual consent of the parties.
7
11. Mr. Bhattacharyya submits that the suit is not simpliciter suit for construction. It is a suit coupled with an interest in the property and is enforceable. In support of his submission, he has relied upon the judgment in the case of B. Santosh Amma & Anr. Vs. D. Sarala & Anr. reported in (2020) 19 SCC 80 and submits that after amendment to the Specific Relief Act in a suit for specific performance relating to a suit of an immovable property, the Court is now obliged to enforce specific performance of the contract and the relief for specific performance is no longer discretionary.
12. Mr. Bhattacharyya submits that when a development agreement contains a stipulation whereby a developer is allocated any share in the proposed constructed building, the said agreement creates an interest in respect of the property in favour of the developer and is specifically enforceable. He relied upon the judgment in the case of Ashok Kumar Jaiswal & Others vs. Asim Kumar Kar reported in AIR 2014 Cal
92. He submits that the judgment passed by the Calcutta High Court has been affirmed by the Hon'ble Supreme Court in the case of Rameshwar and Others Vs. State of Haryana reported in (2022) 17 SCC 47.
13. Mr. Bhattacharyya submits that nowhere in the plaint, the plaintiff has claimed damages. Even then if the plaintiff claimed damage by way of compensation, the suit would not have been barred by law. He submits that after the amendment to the Specific Relief Act, 1963, Section 21(1) of the Act, provides that in a suit for a specific performance the plaintiff 8 may also claim compensation. He submits that Clause 4.1 provides that it is incumbent on the defendant to execute Power of Attorney in favour of the plaintiff or its nominee or nominees. The plaintiff is a company and a juristic body. The Power of Attorney is a registered document. The Power of Attorney was executed only for the purpose of ministerial works i.e. obtaining sanctions, appointing architects, getting fire licenses etc. It does not require any qualification.
14. Mr. Bhattacharyya submits that from the Development Agreement, the rights of the parties and their livelihoods are fully crystallized. As per Clauses 6.2, 6.3, 6.5 and 7.1 does not contemplate entering into any future agreements.
15. Heard the Learned Counsels for the respective parties, perused the materials on record and the judgments relied by the parties. The defendant being the owner of premises No. 1, Upper Wood Street, Kolkata- 700017 entered into a registered Agreement for Development on 17th August, 2015, with the plaintiff. As per Clause 4.1 of the Development Agreement in order to implement the agreement, the defendant was required to execute a general Power of Attorney in favour of the nominee of the plaintiff. Clause 4.1 of the Development Agreement reads as follows:
"4.1. The Owner shall execute a general Power of Attorney in favour of the Developer or his nominee or nominees for the purpose of giving effect to and/or implementing this agreement. However, this developer shall on the basis of the Power of Attorney will be entitled to deal with 9 and/or enter into and agreement of the developer's allocation of the building to be constructed to prospective buyers/purchasers and to accept the consideration amount from time to time. The owner shall sign and execute a Deed of Conveyance at the time of Registration and as and when asked by the developer."
16. In terms of the said Clause, the defendant executed a registered Power of Attorney on 1st September, 2015, in favour of Mahesh Kumar Agarwal i.e. the nominee of the plaintiff. The development of the premises was being carried out by the plaintiff on the terms and conditions of the Development Agreement and the Power of Attorney executed in favour of its nominee, Mahesh Kumar Agarwal. During progress of the development work of the premises, Mahesh Kumar Agarwal died on 3rd April, 2020. After the demise of Mahesh Kumar Agarwal, the plaintiff followed up with the defendant to execute Power of Attorney in favour of Meena Agarwal, the nominee director of the plaintiff in place of Mahesh Kumar Agarwal but the defendant not come forward to execute fresh Power of Attorney in favour of the nominee of the plaintiff to complete the work.
17. Now the plaintiff has filed the suit praying for the following reliefs:
"(a) A decree for specific performance of the registered development agreement dated August 17, 2015 as pleaded in paragraph 24 above by;
(i) Executing a Power of Attorney in favour of the nominee of the Plaintiff namely Meena Agarwala and cause the same to be registered;10
(ii) The defendant and/or its directors be directed to render necessary assistance in having such Power of Attorney to be executed and also to be registered;
(iii) In the event, the defendant, its men, agents, servants, assigns refuse to execute a Power of Attorney and/or to register the same, an officer of the court be appointed to execute a Power of Attorney in terms of clauses 4.1, 6.6, 7.1 and 10.2 of the said Development Agreement on behalf of the Defendant and present the same for registration and have the same registered for and on behalf of the defendant;
(b) A decree for mandatory injunction directing the Defendant to execute a fresh General Power of Attorney in favour of the nominee of the Plaintiff strictly in terms of Clause 4.1 and 7.1 of the Development Agreement dated August 17, 2015, as pleaded in paragraph 25 above;
(c) A decree for Perpetual Injunction restraining the Defendant, its men, agents, servants and assigns from creating any third party rights in respect of the subject premises or interfering with the right of the Plaintiff or to enter into any agreement with any third party on account of the balance work at the subject premises as pleaded in paragraph 26 above;
(d) A decree for Perpetual Injunction restraining the Defendant, , its men, agents, assigns and servants from dealing with, disposing of, and/or encumbering the Plaintiff's share of allocation as indicated in Annexure "H" thereof;
(e) A decree for Perpetual Injunction restraining the Defendant, , its men, agents, assigns and servants from trying to interfere, dispossess the Plaintiff from the premises no.1, Upper Wood Street, Kolkata - 700 017;
(f) Injunction;
(g) Receiver;
(h) Costs;11
(i) Further and/or other relief or reliefs as this Hon'ble Court may deem fit and just."
18. The first contention raised by the defendant that the prayers (a) and (b) cannot be granted for the reasons that there cannot be a suit for specific performance of only part of a contract due to bar under Section 12(1) of the Specific Relief Act, 1963. Section 12 of the Specific Relief Act, 1963, which reads as follows:
"12. Specific performance of part of contract.--
(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract.
(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either--
(a) forms a considerable part of the whole, though admitting of compensation in money; or
(b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party--
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the 12 consideration for the part which must be left unperformed and a case falling under clause
(b), pays or had paid the consideration for the whole of the contract without any abatement;
and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.
(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part. Explanation.--For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its performance."
19. The plaintiff claims that the plaintiff is entitled to claim for a decree of Specific Performance of Development Agreement dated 17th August, 2015 by the defendant in terms of Clauses 4.1, 7.1, 9.1 and 10.2 which reads as follows:
"4.1. The Owner shall execute a general Power of Attorney in favour of the Developer or his nominee or nominees for the purpose of giving effect to and/or implementing this agreement. However, this developer shall on the basis of Power of Attorney will be entitled to deal with and/or enter into and agreement of the developer's allocation of the building to be constructed to prospective buyers/purchasers and to accept the consideration amount from time to time. The owner shall sign and execute a Deed of Conveyance at the time of Registration and as and when asked by the developer.13
7.1. On execution of the Agreement the Owner shall execute a General Power of Attorney in favour of the Developer's Nominees/Directors for the purpose of obtaining the sanction of the Building Plan and necessary permission approvals and sanctions from different authorities in connection with the construction of the said new buildings and also for pursuing and following up the matter with the Kolkata Municipal Corporation, Urban Land (Ceiling and Regulation) Act, 1976, Fire Department, West Bengal Building (Construction and Transfer) by Promoter Act, Pollution and Environment Contract Authorities, Directorate of Electricity, for obtaining Lift, License, permission for Generator, for obtaining Sewerage Connection, Water, Electricity supply and/or modification and charges of the plan and for obtaining the completion and Occupancy Certificates and other Authorities and for booking and/or entering into agreement for sale or saleable area forming part of the Developers allocation in the said premises keeping the Owners totally indemnified.
9.1. The Owner's hereby undertake that the Developer shall be entitled to construct, erect and complete the new building on the said premises. In accordance with the plan to be sanctioned and the Owners hereby agree not to cause any interference or hindrance in the construct of the said building and/or in the enjoyment of the Developer's allocation PROVIDED the Developer performs and fulfills all the terms and conditions herein contained and on the part of the Developer to be observed and performed.
10.2. It Is understood that from time to time to facilitate the construction of the building by the Developer various deeds, matters and things not herein specified may be required to be done by the Developer and for which the Developer may need the authority of the Owners and various applications and other documents may be required to be signed or made relative to which specific provisions may not have been, mentioned herein, the owner hereby undertakes to do all such acts, deeds, matter and the Owners shall execute any such additional Power of Attorney and/or authorization as may be required by the Developer for the purpose and the Owners also undertake to 14 sign and execute all such additional applications and other documents as the case may be provided that all such acts, deeds, matters and things do not in any way infringe on the rights of the Owners and/or go against the spirit of this agreement. The owners shall handover all the certified copies of. Sale Deed/Conveyance or any document related to the said premises The owner shall also handover all the papers, documents of the pending case referred above to the developer."
20. As per Clause 4.1 of the Development Agreement, the defendant has initially executed Power of Attorney in favour of one Mr. Mahesh Kumar Agarwal. Unfortunately, he died on 3rd April, 2020. The plaintiff is a company and Mahesh Kumar Agarwal was one of the directors of the plaintiff Company. After the death of Mahesh Kumar Agarwal, another director has requested the defendant for execution of Power of Attorney so as to enable the plaintiff to complete the development work of the premises in question. It is the specific case of the plaintiff that without the new Power of Attorney being granted in favour of nominee director of the plaintiff, the plaintiff would not be in a position to apply for necessary permission and sanctions which are required for completion of the work under the Development Agreement.
21. The sanction plan expired on 17th November, 2019. Before expiry of the sanction plan, the plaintiff has requested the defendant for execution of new Power of Attorney in favour of another director of the plaintiff company but the defendant has not come forward to execute new Power of Attorney and before expiry of the date of sanction plan, the plaintiff has filed the present suit. The works depend upon renewal of sanction 15 building plan. Clause 7.1 specifically provides for execution of general Power of Attorney in favour of the developer's nominees/directors for the purpose of obtaining sanction plan of the building and necessary permission, approvals and sanctions from different authorities in connection with the construction of new buildings and also for pursuing and following up the matter with the Kolkata Municipal Corporation and other authorities. As per Clause 9.1 the owner i.e. the defendant undertakes that the plaintiff shall be entitled to construct, erect and complete the new building on the premises in accordance with the plan to be sanctioned and the defendant agreed not to create any interference or hindrance in the construction of the building. Clause 10.2 also provides that from time to time to facilitate the construction of the building by the developer various deeds, matters and things not herein specified may be required to be done by the Developer and for which the Developer may need the authority of the owners and various applications and other documents may be required to be signed or made relative to which specific provisions may not have been mentioned herein, the owner hereby undertakes to do all such acts, deeds and the owners shall execute any such additional Power of Attorney or authorization may require by the developer.
22. Mr. Mitra relied upon in the case of Suraj Lamp & Industries Pvt. Ltd. (2) (supra) wherein the Hon'ble Supreme Court held that:
"20. A Power of Attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The Power of Attorney is creation of an agency whereby the grantor 16 authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."
23. In the present case the plaintiff is not claiming any right, title and interest in an immovable property as a Power of Attorney holder. The only request of the plaintiff to the defendant for providing Power of Attorney to complete the development work. The claim of the plaintiff with respect to Power of Attorney is in terms of clauses of the Development Agreement. It is the specific case of the plaintiff that without power of attorney, the plaintiff will not be in a position to complete the construction work in terms of the Development Agreement. The plaintiff requires certain sanctions from the Kolkata Municipal Corporation and other authorities to complete the construction work. Thus, the judgments relied by the defendant in the case of Suraj Lamp and Industries (P) Limited (2) (supra) and Indira Rajguru of United Kingdom, Indian Origin (supra) are not applicable in the present case.
24. The defendant has raised the issue that no Court can pass a decree that on the face of it Futile. He has relied upon the judgment in the case of Laxmidas Dayabhai Kabrawala (supra), S.L. Kapoor (supra) and S.M. Amarchand Sowcar (supra). The relief of declaration is to be granted only at the discretion of the Court, on being satisfied with the 17 necessity to grant such a relief. In the case in hand whether the plaintiff is necessarily required Power of Attorney or the defendant is liable to execute any Power of Attorney in favour of the nominee of the plaintiff after the death of Mukesh Kumar Agarwal is a matter of trial. The plaintiff has to prove his case during trial. Thus the judgements relied by the defendant are distinguishable from the facts of this case.
25. In the present suit, the plaintiff is not claiming any right of his allocated area in the premises. The plaintiff has only prayed for a decree in terms of Clauses 4.1, 7.1, 9.1 and 10.2. The argument made by the defendant that the Court cannot bring about a contract between the parties is not the question in the present suit. The plaintiff has also not prayed for any decree for entering into any future agreement in terms of Clauses 5.3 and 6.4.
26. Considering the above, this Court did not find that the suit is barred by any law. The application filed by the defendant is misconceive, accordingly, the same is dismissed.
27. Thus G.A. No. 2 of 2022 is dismissed.
(Krishna Rao, J.)