Calcutta High Court
Francis Klein And Co. Pvt. Ltd. vs Standard Chartered Bank on 5 December, 2007
JUDGMENT Prabuddha Sankar Banerjee, J.
1. This relates to an application filed by the plaintiff for addition of party. The plaintiff brought the suit claiming relief which are as follows:
a) Mandatory injunction directing the defendants to restore the said tenanted premises in the same condition together with the lift services thereto as it was prior to 4th July 1999 and fit for the purpose for which the same was let out to the plaintiff and make over the same to the plaintiff within such time as to this Hon'ble Court may deem fit and proper.
Or In the alternative, such person or persons be appointed who in place of the defendants would restore the said tenanted premises in the same condition as it was prior to 4th July 1999 together with the lift services thereto and fit for the purpose for which the same was let out to the plaintiff at the cost of the defendants and make over the same to the plaintiff within such time as to this Hon'ble Court may deem fit and proper.
b) Mandatory injunction directing the defendants as alternative and adequate accommodation to the plaintiff at premises No. 4, Netaji Subhas Road, Calcutta till full restoration of the said tenanted premises is made for the plaintiff in terms of prayer (a) above;
c) Decree for I. Rs. 44,05,000/- on account of loss of assets;
II. Rs. 16,00,000/- on account of loss of stock and stores;
III. Rs. 20,00,000/- on account of additional statutory liability;
IV. Rs. 78,00,000/- calculated @Rs. 15,000/- per diem till the filing of the suit and further claimed Rs. 15,000/- per diem till the said tenanted premises is made over to the plaintiff in tenantable condition as stated in paragraph 20 above or in the alternative an enquiry into such loss and damages suffered by the plaintiff and a decree for such sums as may be found due upon such enquiry;
d) Receiver;
e) Injunction;
f) Attachment;
g) Costs;
h) Further and/or other reliefs.
2. It is the case of the plaintiff that the plaintiff is a tenant in premises situated at 1, India Exchange Place, Kolkata-700 001 under the respondent No. 1 with respect to entire third floor of the said premises measuring an approximate area of 6500 sq. ft. The said building was damaged due to fire on July 4, 1999. In spite of demand by the plaintiff, the respondent No. 1 failed to restore the said premises in its usual form to the plaintiff. The plaintiff filed application for injunction and for appointment of Receiver but no substantial order was passed by the Hon'ble Single Judge. Against the order appeal was preferred and by order dated February 5, 2003 the Division Bench restrained the respondents from encumbering, transferring, alienating and/or parting with 6500 sq. ft. of area in the 3rd floor of the said premises being the subject matter of the suit.
3. It is the further case of the plaintiff that the respondent No. 1 transferred/assigned their interest in favour of the respondent No. 2 who was made a party. Subsequently, it transpired that the respondents have started accepting huge amount for sale and transfer of the constructed building that was proposed to be constructed at the site which would include 6500 sq. ft. in the third floor and which was tenanted to the plaintiff. It is the further case of the plaintiff that the respondent No. 2 along with Riki Estates Pvt. Ltd., Global Technocrats were the joint Developers with respect to the building in question. By filing the instant application, the plaintiff prayed for addition of party of Riki Estates Pvt. Ltd. as a defendant.
4. The said application is opposed by the defendant No. 2 by filing affidavit-inopposition. As per order of the Court notice was given to Riki Estates Pvt. Ltd. who appeared and filed their affidavit-in-opposition.
5. The defendant No. 2 took the specific plea that Riki Estates Pvt. Ltd. is not a necessary party and as such there is no need to add the said Riki Estates Pvt. Ltd. as a party defendant.
6. The Riki Estates Pvt. Ltd. also took the same plea in their affidavit-in- opposition. They also took the specific plea that they only constructed the building in question but has no possession over the property in question. Accordingly, it also took the plea that there is no need to make them as a party defendant.
7. Mr. Utpal Bose, learned Counsel for the petitioner at the time of his argument contended that it is a fit case where the Court should pass appropriate order making the Riki Estates Pvt. Ltd. as a party defendant as the said concern has constructed the building in question. He drew attention of the Court to page 54 of the application and on the basis of the same Mr. Bose admitted that Riki Estates Pvt. Ltd. along with Megacity Vinimoy Pvt. Ltd. are the developers with respect to 1, India Exchange Place, Kolkata-700 001 being the subject matter of the suit.
8. It was further contended on behalf of the plaintiff that as Riki Estates Pvt. Ltd. has constructed the building in question including the tenanted portion which is the subject matter of the suit, the said concern has become a necessary party. It was the further contention of Mr. Bose that unless the said concern is made a party in this proceeding, any decree which may be passed in future will not be binding upon the said concern and the Decree may become infructuous. As such he contended that it is a fit case where Riki Estates Pvt. Ltd. has become a necessary party and accordingly, the application should be allowed.
9. The said pleas were strongly opposed by Mr. S. Talukdar, learned Counsel for the respondent No. 2. He took the specific plea that Riki Estates Pvt. Ltd. has not acquired any right, title or interest over the building in question specially with respect to third floor which is the subject matter of the suit. Mr. Talukdar further contended that after the order was passed by the Division Bench in connection with G. A. No. 2012 of 2002, APOT No. 331 of 2002 it has become clear that there was clear direction upon the respondent No. 1 restraining the respondent No. 1 i.e. Bank from encumbering or in any way parting with or alienating tenanted occupied portion of the petitioner/appellant (i.e. present plaintiff) in the said premises to the extent of 6500 sq. ft. which was admittedly the area under the occupation of the appellant/plaintiff as a tenant until further order. On the basis of the same Mr. Talukdar contends that the right title and interest of the respondent No. 1 was assigned to the respondent No. 2 and as such the respondent No. 2 is duty bound to comply with the said order. Mr. Talukdar drew the attention of the Court to the averment made in the affidavit-in- opposition and on the basis of the same he contended that the respondent No. 2 had no intention to transfer, alienate etc. the disputed portion in the third floor to any other person. Mr. Talukdar further drew the attention of the Court to the affidavit-in-opposition filed on behalf of Riki Estates Pvt. Ltd. and on the basis of the same Mr. Talukdar contended that the said concern only constructed the house in question in collaboration with the respondent No. 2 and in fact, the said Riki Estates Pvt. Ltd. is not in possession of any portion in the building. It was the further contention of Mr. Talukdar that Riki Estates Pvt. Ltd. did not acquire any right, title or interest over the property in question and as such he is neither a necessary party nor a proper party. Accordingly, Mr. Talukdar prayed for dismissal of the application.
10. Mr. Samir Mukherjee, learned Counsel for the Riki Estates Pvt. Ltd. drew attention of the Court to the affidavit-in-opposition and on the basis of the same he contended that Riki Estates Pvt. Ltd. has constructed the building at premises No. 1, India Exchange Place along with the respondent No. 2 and the newly constructed third floor of the four storied building is under the exclusive control and possession of the respondent No. 2. He further pointed it out that as per paragraph 6 of the affidavit-in-opposition Riki Estates Pvt. Ltd. has not sold, transferred, alienated or encumbered any portion of the third floor of the newly constructed building in favour of any third party and also not accepted any booking money.
11. Accordingly, learned Counsel for Riki Estates Pvt. Ltd. also prayed for dismissal of the application.
12. Mr. Utpal Bose, however, contended that neither the respondent No. 2 nor Riki Estates Pvt. Ltd. disclosed any document which will go to show that Riki Estates Pvt. Ltd. has not acquired any right, title interest in the property in question.
13. On the basis of materials on record, it is crystal clear that Riki Estates Pvt. Ltd. did not acquire any right, title or interest over the property in question. Riki Estates Pvt. Ltd. only constructed the building in question along with the respondent No. 2.
14. It is clear from the order passed by the Division Bench that the respondent No. 1 was restrained from transferring, alienating or encumbering the property in question to any third party and the respondent No. 2 being the assignee of the respondent No. 1 is bound to comply with the direction made in the order passed by the Division Bench.
15. In this connection, I am to state that Mr. Utpal Bose, learned Counsel for the defendant relied upon the case in between Narayan Chandra Gorai and Ors. v. Matri Bhander Pvt. Ltd. and Anr. and Amit Kumar Shah and Anr. v. Farida Khatun and Anr. .
16. In the case in between Narayan Chandra Gorai and Ors. v. Matri Bhander Pvt. Ltd. and Anr. the Hon'ble Single Judge gave guidelines where prayer for addition of party is to be allowed.
17. On perusal of the same, it is clear that the main consideration is whether or not presence of such a person is necessary to enable the Court to effectually and completely adjudicate upon and settle the question involved in the suit.
18. In the instant case I am of clear opinion that the said condition is not attracted and as such the said case law will not help Mr. Boses client.
19. In the case in between Amit Kumar Shah and Anr. v. Farida Khatun and Anr. , the Apex Court came to the conclusion that a transferee pendentilite can be added as a proper party if his interest in the subject matter of the suit is substantial and just periphery.
20. In the instant case the said principle is not attracted and as such the said case law will not help Mr. Boses client.
21. As the interest of Riki Estates Pvt. Ltd. has not been established, I am of clear opinion that there is no need to make the said concern as a party defendant as the said concern is neither a necessary party nor a proper party. Accordingly, the instant G.A application is dismissed but without any cost.
22. Urgent certified copy of this order be given within 10 days from the date of this order to the parties on proper application.