Calcutta High Court (Appellete Side)
M/S. Welcome Construction vs Starcon & Ors on 20 September, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
FAT 398 of 2016
(CAN 8350 of 2016)
M/s. Welcome Construction
-versus-
Starcon & Ors.
For Appellant : Mr. Gopal Chandra Ghosh,
Mr. Debayan Sinha,
Ms. Anyesha Das.
For the Respondent : Mr. Soumik Ganguly,
Nos. 2 & 3. Mr. Sanat Kumar Das,
Mr. Bratin Kumar Dey.
Heard On : 20th September, 2016.
Judgement On : 20th September, 2016.
Jyotirmay Bhattacharya, J.
This First Appeal is directed against an order passed by the learned Trial Judge rejecting the plaintiff's suit for specific performance of contract by holding that a suit for specific performance of contract cannot be enforced at the instance of the developer in view of the provision contained in Section 14(3)(c) of the Specific Relief Act. Hence, the plaintiff/appellant has filed the instant appeal challenging the legality and/or propriety of the said judgement and/or order passed by the learned Trial Judge.
In connection with this appeal, the present application has been taken out by the plaintiff/appellant seeking injunction for restraining the respondents from disturbing his possession in the suit property.
An interim order was passed by this Court in the said application on 2nd September, 2016 whereby status-quo as regards possession of the parties as well as with the enjoyment of electricity connection by the appellant was directed to be maintained till 15th September, 2016 or until further order whichever is earlier. When the said application was taken up for hearing today, we are requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this appeal.
The respondent nos. 2 & 3 are represented by Mr. Ganguly, learned advocate. Other respondents are not represented before us. However, since the plaint of the plaintiff/appellant was rejected at the instance of the respondent nos. 2 & 3 and further since those respondents are represented before us by Mr. Ganguly, we dispense with the requirement of service of notice of appeal upon the other respondents on the joint prayer made by the learned counsel appearing for the parties. We, thus, treat this appeal ready for hearing.
Since the fate of this appeal is depending only on a question of law, we have decided to hear this appeal on the basis of the materials placed before us and by dispensing with the requirement of filing of paper books in this appeal. We also do not find any necessity of the lower court's record for disposal of the appeal.
Let us now consider the merit of the appeal in the facts of the instant case.
The present suit was filed by a developer for enforcement of the development agreement executed between the parties. The defendant nos. 2 & 3 appeared in the said suit and filed an application under Order 7 Rule 11 of the Code of Civil Procedure praying for rejection of the plaint on the ground that the suit is barred under the provision of Section 14(3)(c) of the Specific Relief Act. The learned Trial Court was pleased to allow the said application under Order 7 Rule 11 of the Code of Civil Procedure filed by the respondent nos. 2 & 3 and rejected the plaint filed by the plaintiff/appellant by holding that the suit for specific performance of contract cannot be enforced by suit at the instance of the developer, as such suit is hit by the provision contained in Section 14(3)(c) of the Specific Relief Act. While coming to the said conclusion, the learned Trial Judge relied upon a Division Bench decision of this Hon'ble Court which supported the conclusion of the learned Trial Judge.
As a matter of fact, a Division Bench of this Hon'ble Court in the case of Vipin Bhimani & Anr. - vs - Sunanda Das & Anr., reported in AIR 2006 Cal 209 held that a suit for specific performance of contract at the instance of the developer is hit by the provision of Section 14(3)(c) of the Specific Relief Act. The other Division Bench of this Court could not agree with the said views expressed by the said Division Bench in the case of Vipin Bhimani (supra) and a reference was sought for deciding the said issue by Larger Bench. The issue as to whether a suit for specific performance of contract at the instance of a developer is maintainable or not was referred to the Full Bench of this Court. The Full Bench of this Court did not approve the view of the Division Bench of this Court, expressed in Vipin Bhmani's case, reported in AIR 2006 Calcutta 209. The Full Bench held that the suit for specific performance of contract at the instance of the developer is maintainable and such suit is not barred under the provision of Section 14(3)(c) of the Specific Relief Act.
In view of the decision of the Full Bench of this Court in the case of Ashok Kumar Jaiswal -vs- Ashim Kumar Kar, reported in AIR 2014 Calcutta 92, we are of the view that the impugned order cannot be retained on record. The impugned order is, thus, set aside.
We hold that the present suit is not hit by the provision contained in Section 14(3)(c) of the Specific Relief Act. The suit is otherwise maintainable. Hence, we request the learned Trial Judge to dispose of the suit on merit in accordance with law as early as possible, but preferably within a year without granting any unnecessary adjournment to any of the parties.
The appeal is, thus, disposed of.
Since the appeal is disposed of, no further order need be passed on the stay application. The stay application is also deemed to be disposed of.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) ac