Calcutta High Court (Appellete Side)
Satyabrata Datta & Ors vs Tushar Kanti Bhowmic & Anr on 3 August, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
F.M.A.T. 684 of 2016
(CAN 6641 of 2016)
Satyabrata Datta & Ors.
-Versus-
Tushar Kanti Bhowmic & Anr.
For the Plaintiffs/Appellants : Mr. Sabyasachi Bhattacharya,
Mr. Pradyot Kumar Nandi.
For the Respondent No.1 : Mr. S.P. Roy Chowdhury,
Mr. Debjit Mukherjee, Ms. Susmita Chatterjee.
Heard on: 2nd August, 2016 and 3rd August, 2016. Judgement on: 3rd August, 2016. Jyotirmay Bhattacharya, J. :-
Leave is granted to the learned advocate-on-record of the appellants to correct the memorandum of appeal in terms of the report of the Stamp Reporter.
This appeal will be heard.
Records need not be called for.
Since the defendant/respondent no.1 has already entered appearance in this appeal through his learned advocate Mr. Debjit Mukherjee, service of notice of appeal upon the said respondent no.1 is dispensed with.
Mr. Bhattacharya, learned senior counsel appearing for the plaintiffs/appellants submits that since no injunction is sought for by the plaintiffs/appellants against the proforma defendant/respondent no.2, service of notice of appeal upon the proforma defendant/respondent no.2 may be dispensed with. On such prayer being made by Mr. Bhattacharya, we dispense with the requirement of service of notice of appeal upon the respondent no.2. The appeal thus be treated ready as regards service.
Immediately after the appeal was admitted by us, we while were considering the appellants' application for interim injunction pending disposal of the appeal, 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 parties that all papers necessary for disposal of the appeal are annexed to the application for injunction and as such, we have decided to dispose of the appeal itself 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 present case. In a suit for declaration, recovery of possession and injunction filed by the plaintiffs against the defendants, the plaintiffs filed an application for temporary injunction for restraining the defendant no.1, his men, agents, subordinates etc. from transferring, selling, disposing of, alienating or in any way encumbering the Flat No. A-1 on the first floor having a covered area of 936.58 sq.ft. at the premises No.16, Ramkrishna Lane, Police Station-Garfa, Kolkata-700031 which is more fully described in the Schedule "B" of the said plaint. Ad interim order of injunction in similar terms was also prayed for by the plaintiffs/appellants in the said application.
By the impugned order, the plaintiffs' prayer for ad interim order of injunction was rejected by the learned Trial Judge by holding inter alia that the plaintiffs in substance prayed for an order of attachment in the said application for injunction. According to the learned Trial Judge such relief for attachment cannot be granted in an application for injunction. The learned Trial Judge is of the view that an order of attachment can only be granted in a suit for damages and not in such suit.
Let us now consider as to how far the learned Trial Judge was justified in refusing to grant ad interim order of injunction in the facts of the present case.
Here is the case where we find that admittedly the plaintiffs and the proforma defendant are the owners of the premises No.16, Ramkrishna Lane, Police Station-Garfa, Kolkata-700031. They entered into a development agreement with the defendant no.1 for constructing a multi- storied building (G+4) on the said premises. The said agreement was entered into on 23rd October, 2011. It was provided therein that after completion of the construction of the said multi-storied building, the owners will jointly be entitled to 46% covered area of flats, proportionate stair case area in the form of four completed self contained flats described in the owner's allocation with a non-refundable sum of Rs.23,00,000/- (Rupees twenty three lakh) only and three covered car parking spaces and one open car parking space on the ground floor together with proportionate share in land of the proposed new residential building. It was also agreed upon between the parties in the said agreement that the developer will be entitled to 54% of the covered area of flats proportionate stair case area in the form of eight completed flats in different floors and nine car parking spaces on the ground floor together with undivided proportionate share in land attributable thereto. Various other terms and conditions were agreed upon between the parties. Since those are not relevant for our present purpose, we are not mentioning those terms and conditions herein.
On the next following day i.e. on 24th October, 2011, a supplementary agreement was entered into between the parties. The basic terms of the agreement were not altered in the supplementary agreement. However, area of the owners' allocation in the proposed building and identification of the flats which would be given to the owners in the proposed construction were mentioned in the said supplementary agreement. It was provided therein that the total sanctioned covered area of the flats proposed to be constructed was 9827 sq.ft. out of which 4520 sq.ft. being equivalent to 46% will be given to the owners within their allocation. It was agreed upon that four flats covering a total area of 3440 sq.ft. in different floors will be given to the owners. In addition thereto, the developer shall pay to the owners (excluding Smt. Patralekha Banerjee) a non- refundable sum of Rs.23,00,000/- (Rupees twenty three lakh only) being the price of the shortfall area measuring (4520-3440) = 1080 sq.ft. approximately at the rate of Rs.2200/- per sq.ft.
Thus, it is apparent from the supplementary agreement that the developers wanted to compensate the said shortfall within the owners' allocation by payment of rupees twenty three lakh to the owners. Ultimately a registered agreement was entered into between the parties on 6th December, 2012. It was provided in the said agreement that the said agreement is final and conclusive and shall not be altered without written consent of the other parties. The basic terms and conditions agreed upon between the parties as mentioned in the earlier two agreements with regard to the allocation of the respective shares of the parties in the proposed construction remained unchanged. Thus it was ultimately agreed upon that the owners will get 46% covered area of flats, proportionate stair case area in the form of four completed self contained flats described in the owner's allocation. It was also provided therein that in addition to the covered area of 46% in the proposed construction, the owners will also get a non-refundable sum of Rs.23,00,000/- (Rupees twenty three lakh only) and three covered car parking spaces and one open car parking space on the ground floor together with proportionate share in land of the proposed new residential building within the owners' allocation. It was also provided therein that the developer will get 54% of the covered area, proportionate stair case area in the form of eight completed flats in different floors and nine car parking spaces on the ground floor together with undivided proportionate share in land attributable thereto.
The major change which we find in the ultimate agreement i.e. the registered agreement that a sum of rupees twenty three lakh which was agreed to be paid by the developer to the owners was not by way of compensation in terms of money for the shortfall in the covered area within the owners' allocation though it was mentioned in the supplementary agreement that the said payment will be made to compensate the shortfall within the owners' allocation.
Admittedly the construction of the multistoried building has been completed. Four flats i.e. Flat No. A-3 (south-west) on the 3rd floor, Flat No. A-4 (south-west) on the 4th floor, Flat No. B-2 (south-east) on the 2nd floor and Flat No. B-3(south- east) on the 3rd floor have been given to Sri Satyabrata Datta, Smt. Patralekha Banerjee, Sri Sibabrata Dutta and Sri Subrata Datta respectively. Three covered car parking spaces and one open car parking space on the ground floor have also been given to the plaintiffs and the proforma defendant as per the registered agreement. In the registered agreement, it was provided that the developers shall first hand over possession of the owners' allocation in writing before delivery of physical possession to the buyers of the developer's portion. In terms of the said agreement, those flats and the car parking space were given to the owners.
However, after completion of construction of the said multi-storied building it appeared on actual measurement taken by the parties that though as per the agreement, the developer agreed to construct 9827 sq.ft. but in fact, the developer constructed 10087 sq.ft. in the said multi- storied building. Taking into account the exact area of construction, the developer, as per the said registered agreement, was required to hand over 4640 sq.ft. which is equivalent to 46% of the owners' allocation in the flats allocated to the owners within their allocation. On joint survey, it appeared that only 3481 sq.ft. covered area in four flats was given to the owners. Thus, there was shortfall of 1159 sq.ft. in the owners' allocation. The shortfall of 1159 sq.ft. within the owners' allocation admittedly could not be given by the developer to the owners thereof. The defendant no.1 being the developer has already sold seven flats within his allocation to different purchasers. One flat within the developer's allocation being flat No. A-1 on the first floor having a covered area of 936.58 sq.ft. still remains unsold.
Since the defendant no.1 was trying to sell the said property without giving the shortfall in the covered area to the owners as per the said agreement, the plaintiffs filed the aforesaid suit praying for declaration that the plaintiffs along with proforma defendant no.2 are entitled to get constructed covered area of 4868.80 sq.ft. being 46% of the total constructed covered area of 10584.35 sq.ft., three covered car parking spaces, one open car parking space at the said premises. A decree for recovery of possession of a constructed covered area of 1242.80 sq.ft. at the said premises was also sought for from the defendant no.1. Decree for recovery of a sum of Rs. 18,451/- being the outstanding of the total non-refundable of sum of Rs. 23,00,000/- was also prayed for against the defendant no.1 in terms of the registered agreement. Permanent injunction was sought for against the defendant no.1, his men, agents and sub-ordinates from transferring, selling, disposing of, alienating or in any way encumbering the Flat No. A-1 on the first floor having a covered area of 936.58 sq.ft. at the said premises in the said suit.
In such a suit, the plaintiffs filed the said application praying for temporary injunction. Their prayer for ad interim order of injunction in similar terms was rejected by the learned Trial Judge as the learned Trial Judge was of the view that the relief which the plaintiffs have in fact, sought for in the said application for injunction, is by way of attachment before judgement which according to the learned Trial Judge cannot be granted in an application for injunction.
We cannot approve the said findings of the learned Trial Judge in view of the settled principle of law that the Court can in appropriate cases grant appropriate relief by moulding the reliefs claimed by any of the parties.
Be that as it may, we are considering the legality of the order passed by the learned Trial Judge at the stage of ad interim injunction proceeding. At this stage, the Court can only consider the pleadings of the plaintiffs made out in the plaint as well as in the injunction application to find out as to whether the basic tests for grant of injunction are satisfied in the instant case or not.
If on consideration of the pleadings of the plaintiffs made out in the plaint as well as in the injunction application, the Court finds that a prima facie case has been made out by the plaintiffs, the balance of convenience and inconvenience is also in favour of grant of injunction and the irreparable loss and injury which may be caused to the plaintiffs, cannot be compensated by money value, the Court will grant ad interim injunction in favour of the plaintiffs.
Keeping the aforesaid well settled principle of law in mind, we have considered the pleadings of the plaintiffs made out in the plaint as well as in the injunction application. We have already mentioned hereinabove about the three agreements entered into between the parties from time to time for development of the plaintiffs' property by the developer viz. the defendant no.1. The last of such agreement is a registered agreement. It was mentioned in the said agreement that the said agreement is the final agreement and the terms of the said agreement is binding upon the parties conclusively and the terms thereof cannot be altered and/or varied without the consent of other consenting parties. The ultimate agreement provides that the developer will construct a multi storied building (G+4) and will not hand over 46% covered area of flats, proportionate stair case area in the form of four completed self contained flats with a non- refundable sum of Rs. 23,00,000/- and three covered car parking spaces and one open car parking space on the ground floor together with proportionate share in land of the proposed new residential building which falls within the owners' allocation as per the said agreement. The said agreement provides that the defendant no.1 being the developer will first hand over possession of the owners' allocation in writing before delivery of physical possession to the buyers of the developer's portion. After the construction of the said residential building was completed, the parties took join measurement of the total constructed area. On such joint measurement being taken, it appeared that the defendant no.1 being the developer constructed a total area of 10087 sq.ft. covered area. Taking into consideration of the extent of the construction of the total covered area of 10087 sq.ft., the defendant no.1 being the developer was required to hand over 4640 sq.ft. of covered area to the owners being equivalent to 46% of the covered area within the owners' allocation as per the said agreement. On joint inspection taken by the parties it also appeared that only 3481 sq.ft. of covered area was handed over to the owners of the said premises. Thus, there was shortfall of 1159 sq.ft. within the owners' allocation. The extent of total construction made by the defendant no.1 being the developer in the said building and the extent of covered area given to the owners of the said premises by the defendant no.1 and the extent of shortfall i.e. 1159 sq.ft. within the owners' allocation are all admitted by the defendant no.1 in its letter dated 31st October, 2015 being annexure 'K' to this injunction application. Though some explanations have been given by the said defendant in the said letter as to how he proposed to compensate the said shortfall but how far such proposal of adjustment being beyond the agreed terms of the contract, is acceptable, may be an issue in the suit, but at this stage we cannot ignore the right of the plaintiffs to go for trial by considering the proposal of adjustment of the said defendant which is beyond the agreed terms of the contract.
Thus, we find that the defendant no.1 being the developer has admittedly not given possession of 1159 sq.ft. of covered area to the owners of the said premises as per the agreement. We have already mentioned above that the agreement provides that the defendant no.1 being the developer cannot sell his flats within his allocation before handing over possession of the owners' allocation to the owners. The defendant no.1 being the developer has already sold seven flats out of his allocation. Only one flat within the developer's allocation still remains unsold. The covered area of the said flat is 936.58 sq.ft. which is even less than the shortfall which still remains undelivered to the owners of the said premises within their allocation.
Considering the facts as stated above, we are of the view that the plaintiffs have made out a strong prima facie case for going to trial as we find that the defendant no.1 being the developer has not given the total constructed covered area to the owners as per the said agreement. If the flat within the developer's allocation which still remains unsold, is permitted to be sold by the developer to the stranger purchaser during pendency of this injunction application then hardly there will be any chance of performance of the contract by the defendant no.1 so far as the shortfall within the owners' allocation which still remains undelivered to the owners is concerned. The balance of convenience and inconvenience is also in favour of the plaintiffs for grant of injunction as in the event the defendant no.1 succeeds in transferring the said flat to a stranger purchaser, the plaintiffs will not be able to recover the shortfall within their allocation in the said building.
In our view, the loss which the plaintiffs may suffer for not granting ad interim injunction, cannot be compensated in terms of the money value.
As such, we are of the view that this is a fit case where the ad interim order of injunction should have been granted by the learned Trial Judge.
We thus, set aside the impugned order and pass an interim injunction restraining the defendant no.1 from transferring, selling, disposing of, alienating and/or in any way encumbering the Flat No. A-1 on the first floor having a covered area of 936.68 sq.ft. at the premises No. 16, Ramakrishna Lane, Police Station-Garfa, Kolkata-700031 more particularly mentioned in schedule 'B' of the plaintiffs' application for temporary injunction till the disposal of the plaintiffs' application for temporary injunction.
Leave is granted to the defendant no.1 to file objection to the plaintiffs' application for temporary injunction in the Court below by 10th August, 2016, counter objection if any, be filed by the plaintiffs by 16th August, 2016.
Since 16th August, 2016 is fixed for hearing of the plaintiffs' application for temporary injunction, we request the learned Trial Judge to hear out the plaintiffs' application for temporary injunction on the said date without granting any unnecessary adjournment to any of the parties. In the event however, disposal of the plaintiffs' application for temporary injunction is not possible by the learned Trial Judge on the same date, the learned Trial Judge will make all endeavour to dispose of the same within two weeks thereafter.
The plaintiffs are also directed to serve advance copy of their counter objection upon the defendant no.1 and/or his learned advocate on record in the court below at least two days before the date of hearing of the plaintiffs' application for temporary injunction.
It is also made clear that the defendant no.1 is also required to serve advance copy of his objection upon the plaintiffs and/or their learned advocate in the court below positively by 10th August, 2016.
It is also made clear that while disposing of the plaintiffs' application for temporary injunction, the learned Trial Judge is free to decide the plaintiffs' application for temporary injunction on its own merit without being influenced by any of the observations made hereinabove which we have made only for the purpose of disposal of the plaintiffs' prayer for ad interim injunction.
Both the appeal and the application are thus, disposed of.
Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) dp