Calcutta High Court (Appellete Side)
Smt. Shanti Dey @ Santi Dey vs Sri Suvodeep Saha on 2 January, 2018
Author: Patherya
Bench: Patherya
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sandip
F.M.A.T. 1196 of 2016
Ct. 08 With
02.01.18 C.A.N. 10852 of 2016
Smt. Shanti Dey @ Santi Dey
Vs.
Sri Suvodeep Saha
Mr. Sukanta Chakraborty,
Mr. Anindya Halder ... for the appellant.
This appeal has been filed from the order dated 16th August, 2016. By
the said order the application filed under Section 9 of the 1996 Act filed by the
appellant was dismissed and the interim order passed was vacated. The
application filed under Section 9 of the 1996 Act was filed in April, 2014 and
since the interim order was passed it was continued. It is only by virtue of the
order dated 16th August, 2016 that this interim measure and the order of
injunction passed was vacated. Section 11 of the 1996 Act was filed on 24th
March, 2016 and is pending.
The only reason for vacating the order of temporary injunction by the
Court below is that in case the injunction is granted or continued commercial
transaction will be seriously hampered and the project will be interrupted which
will escalate the project cost. Another reason for having passing the order dated
16th August, 2016, as the court below relied on the balance of convenience and
inconvenience and according to the Court below the appellant would be
adequately compensated by an order of damage or loss and this can be measured
by money. This reason cannot be sustained prima facie at the moment as the
partnership firm was constituted by two persons namely the deceased husband of
the appellant and Mr. Suvodeep Saha. An arbitration clause was incorporated in
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the partnership agreement, and all that the widow was seeking to do was to
ensure the assets of the partnership firm without being frittered away and on
being satisfied with the submission of the appellant the Court below passed the
order of injunction. In vacating the order of temporary injunction the Court below
allowed the surviving partner to take decisions unilaterally which will enure to
his benefit especially when the business of the partnership firm is to develop the
real-estate and/or properties. This will be against the interest of the appellant.
Inspite of service of notice received by the respondent as will appear
from the affidavit of service the order dated 16th August, 2016 be stayed as an interim measure for a period of six weeks. In the meantime as all documents before the court below has been annexed, except the written objection filed by the respondent, let the said written objection be also included in the paper book and the appeal be heard within a week from the filing of such paper book as mentioned above.
It is in view of the facts before us that the respondent is restrained from transferring any portion of the properties, as it appears before the Schedules annexed to the application filed under Section 9 of the 1996 Act. The said Schedules have been set out hereinbelow for ready reference :
"SCHEDULE "A" PART-1 ALL THAT piece or parcel of land measuring about 3 (three) cottah more or less situated at Mouza - Krishnapur, J.L. No. - 17, Re.Sa. No. - 180, Touzi No. - 228, and 229 comprising to C.S. Khatian No. - 524, R.S. Khatian No.
- 360, C.S. Dag No. - 5025, R.S. Dag No. - 3034, being plot No. - AG-49, Municipal Holding No. - RGM/137/111, Block - D which is butted and bounded by :-
On the North : R.S. Dag No. - 3034 & 6ft. wide road On the South : 16ft. wide road On the East : 8ft. wide road 3 On the West : Part of R.S. Dag No. - 3034 SCHEDULE "A" PART - II ALL THAT piece of percel of Land measuring about 2 (two) cottah 41 Sq. ft. more or less situated at Mouza - Krishnapur, J.L. No. - 17, Re.Sa. No.
- 180, Touzi No. - 228, and 229 comprising to C.S. Khatian No. - 524, R.S. Khatian No. - 360, C.S. Dag No. - 5025, R.S. Dag No. - 3034, being plot No. -
49/1 Municipal Holding No. - RGM/25/1635 under police Station Rajarhat- Gopalpur Municipality which is butted and bounded by :-
On the North : 6ft. wide road On the South : land of Sandhya Sen On the East : 8ft. wide road On the West : land of Anil Kumar Das SCHEDULE "B"
ALL THAT piece of percel of land masuring about 3 (three) cottah 12 (twelve) chittak more or less situated at Mouza - Krishnapur, J.L. No. - 17, Re.Sa. No. - 180, Touzi No. - 228, and 229 comprising to R.S. Khatian No. - 49, C.S. Dag No. - 3707, R.S. Dag No. - 2289, under Police Station Baguiati, District North 24 Parganas within the local limits of Rajarhat Gopalpur Municipality, which is butted and bounded by :-
On the North : C.S. Dag No. - 3706 & 10 ft. wide road On the South : C.S. Dag No. - 3708 On the East : C.S. Dag No. - 3702 & 7ft. wide road On the West : C.S. Dag No. - 3702 & 10ft. wide road"
In respect of the said Schedules set out hereinabove the respondent is restrained not only from transferring any portion of the Schedule properties except without leave of this Court so also from operating any bank account in the 4 name of the partnership firm except in the usual course of business. The respondent has taken the risk to not appear before us in spite of being served as will appear from the Track Report and the affidavit of service filed. Therefore, this application need not be pursued and CAN 10852 of 2016 is disposed of.
The appeal for hearing be listed after five weeks. Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertakings.
(Patherya, J.) (Rajasekhar Mantha, J.) 5 6