Calcutta High Court
Padmavati Tradelink Ltd vs M.A. Leasing And Construction Pvt. Ltd. ... on 4 December, 2020
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IA No.GA/1/2020
In CS/121/2020
PADMAVATI TRADELINK LTD.
Versus
M.A. LEASING AND CONSTRUCTION PVT. LTD. AND ANR.
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 04th December, 2020.
(Via Video Conference)
Appearance :
Mr. Tilak Bose, Sr. Adv.
Mr. Debnath Ghosh, Adv.
Mr. P. K. Sarawgi, Adv.
... for the petitioner.
Mr. S. Sarkar, Adv.
... for defendant no.2.
Mr. Mainak Bose, Adv.
... for respondent no.1.
The Court: The Petitioner prays for appointment of a Special Officer to assess the extent of blockage in the common area being the open terrace of the third floor of a building located at N. S. Road, Kolkata which constitutes a part of the common area stipulated by the parties in a deed of conveyance of 2018 by which a portion of the third floor was sold by the petitioner to the respondent no.1.
2
The petitioner has filed this suit against the defendant no.1 for a declaration that the petitioner / plaintiff is the absolute owner of the open terrace in the third floor of the building measuring 14,166 sq. ft. together with the roof and upper built up area of the third floor. The petitioner has also prayed for a declaration that the petitioner and its representatives including the lessee has a right of free ingress and egress to the use of the open terrace together with the control room of the Chiller plant located at the corner of the open terrace.
The defendant no.2 is a bank in whose favour the petitioner executed a lease of the ground, mezzanine and first floor of the said building by way of a conveyance in 2017. The petitioner has not claimed any relief against the defendant no.2 in this suit.
Mr. Tilak Bose, learned Senior Counsel appearing for the petitioner places a map / lay out plan of the open terrace of the third floor to submit that the control room together with the Chiller plant is part of the common area comprising of the open terrace on the third floor of the building. The immediate cause of the dispute and the connected prayer has arisen by reason of the first respondent putting a padlock in a collapsable gate which has blocked the entrance to the Chiller plant together with the control room. Counsel claims that the open space / common area remains with the petitioner as the owner and the lessee (defendant no.2) is entitled to the enjoyment and full use of the open terrace particularly the Chiller plant and the control room. It is 3 submitted that the defendant no.2 / bank continues to use the premises for its banking business. Counsel further submits that the conveyance of 2018 by which a portion of the third floor was sold to the first respondent contains a clause indicating that easementary rights in favour of the petitioner and the lessee/respondent no.2.
Mr. Mainak Bose, learned Counsel appearing for the first respondent starts by contending that the petitioner has not been able to establish a prima facie case for appointment of a Special Officer to assess the extent of the rights of the parties in relation to the open terrace in the third floor. The main plank of the submissions made on behalf of the respondent no.1 is that the third floor in its entirety together with the open terrace was sold to the respondent no.1 in 2018. It is further submitted that the petitioner is disentitled to any interim relief since a previous arrangement of 2017 entered into between the petitioner and the respondent no.1 has been suppressed in the application. According to Counsel, the dispute relates to the petitioner refusing to pay rent on account of usage of the common area including the Chiller plant and control room which were sold to the respondent no.1 by the petitioner in 2018. Counsel has placed a part of the said agreement for sale which provides that an area of 12,292 sq. ft. together with the rooms surrounding or pertinent thereto and marked in orange was sold to the respondent no.1 as part of Lot A. Counsel submits that the transaction 4 involved a total area comprising of Lot A and Lot B. A third floor plan has been placed to show the area sold to the respondent no.1 in 2018.
Upon hearing learned Counsel appearing for the parties, it is evident from the pleadings and plans placed by Counsel that the dispute with regard to use of the common area including the Chiller plant and the control room relates to ownership of the said area by either of the parties. In order to ascertain whether the petitioner has been able to establish a right to use of the common space, it is important to see the relevant portion of the agreement executed between the petitioner and the respondent no.1 in 2018. Lot A comprised of 12,292 sq. ft. and Lot B comprised of 4,097 sq. ft. Both the Lots taken together would come to about 389 sq. ft. It would appear from the deed plan of the third floor at the said premises that the entire built up area of the third floor is 18,934 sq. ft. It is clear therefore that if 389 sq. ft. was sold to the respondent no.1 in 2018, the petitioner remains the owner of balance area which is in excess of 500 sq. ft. The petitioner's case of easementary rights in favour of all the parties would appear from the third schedule of the 2018 agreement which clearly mentions as part of clause 5 "Others" -
"such other common parts, areas equipment's, installations fittings..................". This is further clarified in Clause 1 of the fourth schedule which provides that "The right in common with the purchasers and / or other person or persons entitled to the other part or parts of the building................ and use of common part or parts of the building 5 including its installations staircases open spaces in ground floor covered spaces electrical installations............." The purchasers in this case is the petitioner and the other person or persons are presumably the 1st respondent and the 2nd respondent (in whose favour the petitioner leased some parts of the building in 2017).
The facts would make it clear that, prima facie, the respondent no. 1 has not been able to establish its right over the entire third floor including the open terrace comprising of the chiller plant, control room and other installations. The title of the parties to the disputed space would not be decided if a Special Officer is appointed as prayed for to assess the extent and nature of the open space which is in dispute.
In view of the reasons as stated above, this Court finds no impediment in appointing a Special Officer for measuring the area of the open terrace in the third floor of the building and ascertaining the location of the chiller plant, control room and other installations located in the open terrace. The Special Officer will also ascertain whether free ingress and egress to the installations forming part of the open terrace has been blocked by the respondent no. 1.
Mr. Ashim Ghoshal of the Bar Library Club is appointed Special Officer to do the needful and file a report within three weeks from date.
The Special Officer will be paid Rs.50,000/- as initial remuneration which may be enhanced with the leave of Court. The Special Officer will 6 be entitled to secretarial assistance, costs of which will be borne by the petitioner.
The remuneration of the Special Officer shall be borne by the petitioner.
Since it has been found that the petitioner remains the owner of the balance area which was not sold to the first respondent in 2018, the respondent no. 1 should be restrained from taking any steps to shut out the petitioner or the lessee from use of the open space, particularly the chiller plant and the control room till the title to such space is decided in the suit. The action of the first respondent in putting a padlock in the collapsible gate is contrary to the clause concerning the use of the common space in the agreement of 2018. The respondent no. 1 is accordingly restrained from creating any obstruction to the passage way or the petitioner's use of the open terrace in the third floor. Similar relief is directed in relation to the respondent no.2 / lessee.
Affidavit-in-opposition is to be filed within a fortnight; reply within fortnight thereafter.
List this matter after four weeks.
(MOUSHUMI BHATTACHARYA, J.) mg/RS