Calcutta High Court (Appellete Side)
Smt. Jharna Banerjee vs M/S Bose Construction on 19 February, 2019
1 S/L. 70.
February 19, 2019.
MNS.
C. O. No. 521 of 2019 Smt. Jharna Banerjee Vs M/s Bose Construction Ms. Kabita Mukherjee, Mr. Manas Dasgupta, Ms. Madhubanti Chakraborty ...for the petitioner.
Mr. Abhirup Chakraborty ...for the opposite party.
Both sides are represented through their learned counsel in court today. The present challenge has been preferred against an order, whereby the appellate court granted and order of status quo in respect of the suit property, upon setting aside an order of the trial court, whereby injunction as regards possession, as prayed for by the opposite party, was refused.
Both sides agree to an agreement having been executed on October 29, 2006 between the parties, whereby the plaintiff/developer/opposite party was to develop the suit property belonging to the defendant/petitioner. Subsequently, a suit was filed by the plaintiff/developer/opposite party seeking declaration that the defendant/petitioner had no right to dispossess the plaintiff from the suit property, for declaration that the defendant has no right to cause any obstruction and interference to develop the suit property by the plaintiff in terms of the development agreement dated October 29, 2006 and for permanent injunction in aid of the aforesaid reliefs.
2
In such suit, the plaintiff/developer/opposite party prayed for temporary injunction restraining the defendant/petitioner from dispossessing the plaintiff from the suit property.
Learned counsel for the petitioner argues that the trial court was justified in refusing injunction, not only since the suit itself might not be maintainable in view of the plaintiff having sought a negative declaration, also because the development agreement executed in the year 2006 had itself spent its force.
Learned counsel for the petitioner further argues that, by virtue of Clause- 9.3 of the said development agreement, if the developer failed to complete the construction due to any reason within five years from the date of the agreement, then the agreement would be null and void and in that event the money paid to the owner by the developer would be forfeited.
It is also argued that the developer failed to make construction over the suit property during the said five years and as such, the agreement lost its force after the expiry of five years in the year 2011. Thereafter, the petitioner has entered into a subsequent development agreement with a third party, who has already started taking steps in terms of the said agreement. The plaintiff/developer/opposite party has not challenged the cancellation of the agreement of 2006 by the petitioner and as such, in any event, the suit is not maintainable in its present form.
It is further submitted on behalf of the petitioner that the plaintiff/developer/opposite party did not establish its possession in respect of the suit property, nor was any explanation given during the relevant period as to why the developer failed to undertake construction in terms of the agreement dated October 29, 2006. 3
It is also submitted on behalf of the petitioner that the opposite party, in its suit, has cited a frivolous ground as to a dispute between the defendant/petitioner and her daughter-in-law for having failed to undertake the construction within the stipulated period. However, no communication was made by the developer at any point of time to indicate such cause of the developer being prevented from completing such construction work.
Even though a purported letter was produced by the developer to show that the petitioner had handed over possession of the suit premises in favour of the developer, such purported letter was only of the year 2011, after the agreement of 2006 had already spent its force. Moreover, the veracity and execution of the said letter is also being challenged by the petitioner.
As regards certain subsequent rent receipts apparently produced by the opposite party, the petitioner argues that those could at best give rise to a money claim in favour of the opposite party, subject to adjudication in a regular suit. However, such receipts, although not admitted by the petitioner, do not help the opposite party in any manner to get injunction as prayed in the court below.
A dispute inter se between the petitioner and her daughter-in-law could not have any bearing on the developer having failed to comply with the mandate of Clause- 9.3 of the 2006 agreement and as such, the appellate court acted without jurisdiction in granting a blanket status quo, even beyond the prayer of the opposite party, thereby setting aside the order of the trial court.
Learned counsel for the plaintiff/developer/opposite party, on the other hand, places reliance upon certain rent receipts issued by the petitioner in favour of the opposite party. It appears from such rent receipts that the amount of money paid by the opposite 4 party to the petitioner was by way of rent/shifting charges in terms of the development agreement dated October 29, 2006.
Learned counsel for the opposite party argues that the possession of the petitioner's portion of the premises-in-question was handed over in favour of the opposite party, which is evident from the said rent receipts, as well as the letter dated April 20, 2011, by which such possession was handed over to the opposite party by the petitioner.
It is further argued on behalf of the opposite party/developer that Clause 10.1 of the agreement of 2006 succeeded Clause- 9.3 of the same in chronological order. It was specifically stipulated in Clause- 9.3 that the same would be applicable notwithstanding anything which was contained thereinabove, thereby indicating that Clause- 10.1, which found place after Clause- 9.3, would be irrespective and independent of the rigour contemplated in Clause- 9.3. The non obstante nature of Clause- 9.3 would only regulate the provisions of the agreement appearing before the said clause and the provision as to force majure as contemplated in Clause- 10.1 would have to be factored in to understand the true import of Clause- 9.3.
Clause- 10.1 provided that the developer would complete the ownership's allocation within the stipulated period subject to the circumstances, which may be beyond the control of the developer. It is argued that since there was a specific status quo order in respect of the possession over the suit property as mentioned in the schedule of the plaint in a litigation between the defendant/petitioner and her daughter-in-law, possession of the said portion could not be handed over by the petitioner in favour of the opposite party, which prevented the opposite party from undertaking construction in terms of the development agreement.
5
It is argued that since the opposite party was in possession of the suit premises and such possession was rightly protected by the appellate court.
A perusal of the relevant clauses of the agreement of 2006 shows that the interpretation advanced by the opposite party is more acceptable, in so far as it pertains to the provisions of Clause - 9.3 thereof being subject to those of Clause- 10.1.
The effect of Clause- 9.3 being that the agreement would be rendered null and void notwithstanding anything contained in the agreement prior to Clause- 9.3 if the developer failed to comply with the construction due to any reason, apparently even reasons beyond the control of the developer; however, Clause- 10.1 moderates the strict rigour of Clause- 9.3 by introducing circumstances beyond the control of the developer in mellowing down the strictness of Clause- 9.3.
By virtue of operation of Clause- 10.1, the developer could cite any reason beyond its control to wriggle out of the rigour of Clause- 9.3 and avoid the agreement becoming null and void.
In the present case, the plaintiff/developer/opposite party made out a sufficient prima facie case to go for trial as regards the status quo order between the petitioner and her daughter-in-law in a litigation between them being a deterrent to the opposite party getting complete control over the suit property, thus, preventing the opposite party from undertaking construction in terms of the development agreement of 2006.
Moreover, the series of rent receipts/shifting charge receipts produced by the developer, unless rebutted,, create a prima facie presumption of possession, at least in respect of the petitioner's occupied portion of the suit premises having been handed over in favour of the opposite party.
6
In such view of the matter, particularly since the said receipts refer back to the development agreement dated October 29, 2006, it could not be said that the said agreement had spent its force, since the conduct of the petitioner herself in granting those receipts revalidates the tenure of the agreement prima facie.
As such, in view of the opposite party having made out a prima facie case, that is, a triable question as regards possession and prima facie right to continue in terms of the development agreement in respect of the suit property, the appellate court was justified in granting status quo.
In the present case, the balance of convenience and inconvenience is obviously in favour of grant of injunction since, in the event the developer is ousted from the suit property, serious implications might result to the rights of the developer. Urgency and irreparable injury are implicit in the materials on record, since the petitioner herself admitted that the petitioner has entered into an agreement for development with third parties, thereby putting the rights of the opposite party in jeopardy.
However, the appellate court went slightly astray in directing both sides to maintain status quo in a blanket form in respect of the suit property till disposal of the suit. What ought to have been done in the circumstances is that the petitioner ought to have been restrained by an order of injunction from disturbing the possession of the opposite party in respect of the suit property. An order of status quo in a blanket form would be beyond the prayer of the opposite party in the injunction application.
Accordingly, C. O. No. 521 of 2019 is disposed of on contest, thereby modifying the impugned order dated December 13, 2018 passed by the Additional District Judge, Thirteenth Court at Alipore, District- South 24- Parganas in Miscellaneous Appeal No. 258 7 of 2018 to the effect that the petitioner will be restrained from disturbing the possession of the opposite party in respect of the suit premises till disposal of the suit.
The portion of the impugned order, whereby both parties were directed to maintain an order of status quo in respect of the suit property, is hereby set aside.
However, in view of the advanced age of the petitioner, the trial court is requested to expedite the hearing of the suit and to dispose it of as early as the business of the said court permits.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.)