Gauhati High Court
Shri Kaushik Barua vs Smti. Pallavi Barua And Anr on 29 November, 2019
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/16
GAHC010112302019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : FAO 30/2019
1:SHRI KAUSHIK BARUA
S/O- LATE PANKAJ DHAR BARUA, R/O- HOUSE NO. 1 (1ST GATE), PADMA
PATH, R.G. BARUA ROAD, GUWAHATI- 781024, KAMRUP(M), ASSAM.
VERSUS
1:SMTI. PALLAVI BARUA AND ANR
W/O- LATE SOUVIK BARUA, R/O- HOUSE NO. 1 (2ND GATE), PADMA PATH,
R.G. BARUA ROAD, GUWAHATI- 781024, KAMRUP(M), ASSAM.
2:M/S. ASSAM HOSPITALS LIMITED
A COMPANY INCORPORATED UNDER THE COMPANIES ACT
1956 HAVING ITS REGISTERED OFFICE AT- LOTUS TOWERS
G.S. ROAD
GUWAHATI- 781005
KAMRUP(M)
ASSAM
REP. BY ITS DIRECTOR- DR. H.K. HARIPRASAD
Advocate for the Petitioner : MR. B D DEKA
Advocate for the Respondent : MR D CHOUDHURY
Linked Case : I.A.(Civil) 1796/2019 1:SHRI KAUSHIK BARUA S/O- LATE PANKAJ DHAR BARUA R/O- HOUSE NO. 1 (1ST GATE) PADMA PATH R.G. BARUA ROAD Page No.# 2/16 GUWAHATI- 781024 KAMRUP(M) ASSAM.
VERSUS 1:SMTI. PALLAVI BARUA AND ANR W/O- LATE SOUVIK BARUA R/O- HOUSE NO. 1 (2ND GATE) PADMA PATH R.G. BARUA ROAD GUWAHATI- 781024 KAMRUP(M) ASSAM.
2:M/S. ASSAM HOSPITALS LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT- LOTUS TOWERS G.S. ROAD GUWAHATI- 781005 KAMRUP(M) ASSAM REP. BY ITS DIRECTOR- DR. H.K. HARIPRASAD.
Advocate for the Petitioner : MR. B D DEKA Advocate for the Respondent : MR. D CHOUDHURY BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM JUDGEMENT AND ORDER (CAV) Date : 29-11-2019
1. Heard Mr. B.D. Deka, learned counsel appearing for the appellant/applicant. I have also heard Mr. A. Sharma, learned counsel representing the respondent no. 1. Mr. T.J. Mahanta, learned senior counsel assisted by Mr. R. Chakraborty, learned counsel has appeared for the respondent no. 2.
2. This appeal, filed under Order XLIII Rule 1(r) of the Civil Procedure Code, is Page No.# 3/16 directed against the order dated 13/05/2019 passed by the learned Civil Judge No.1, Kamrup (M) at Guwahati in Misc. (J) Case No. 343/2019 arising out of Title Suit No. 181/2019, rejecting the prayer made by the appellant for issuance of an order of ad-interim injunction, inter-alia retraining the respondent no 2 from acting in breach of the conditions contained in Lease Deed No 13602/2016.The appellant has also filed a separate application, numbered and registered as IA(C) No. 1796/2019, praying for an order of temporary injunction from this Court.
3. The facts necessary for disposal of the appeal are these :-
a) Late Pankaj Dhar Barua i.e. the predecessor- in- interest of the appellant no.1 was the sole proprietor of two firms viz. M/s. Frontier Engineering and Motor Works and M/s Frontier Engineering. During his life time, Pankaj Dhar Barua had purchased 2 (two) contiguous plots of land covered by Dag Nos 98 and 97 of Patta No. 351 situated in village Dispur under Beltola Mouza in the District of Kamrup, described in Schedules A & B respectively, in the plaint. Schedule- A land was purchased in the name of M/s Frontier Engineering and Motor Works whereas Schedule- B land was purchased in the name of M/s Frontier Engineering. During his lifetime, late Pankaj Dhar Barua had also constructed a 6 (six) storied RCC building over the Schedule- A land and let it out to the respondent no 2 by executing a lease deed on 03/03/2001. As per the stipulations contained in the lease deed dated 03/03/2001, the rent, after the death of Pankaj Dhar Barua, would become payable to his wife and the two sons.
Pankaj Dhar Barua died on 20/07/2006 leaving behind his wife and the two sons as legal heirs. The wife of Pankaj Dhar Barua viz. Smt. Rubi Barua died intestate Page No.# 4/16 on 13/11/2006 leaving behind her two sons i.e. the appellant herein and the deceased husband of the respondent no.1, Souvik Barua as the surviving heirs. Souvik Barua expired on 25/03/2018 leaving behind his wife i.e. the respondent no. 1 .
b) After the death of Rubi Barua, a registered Deed of Relinquishment bearing No. 6767/2006 was executed on 18/11/2006 by and between the appellant and Souvik Barua whereby, the appellant had relinquished his right, title and interest and claims in the business and assets of M/s. Frontier Engineering out of love and affection towards his brother. Thereafter, on 18/11/2006, both the brothers had also sworn affidavits before the learned Judicial Magistrate, Kamrup at Guwahati solemnly affirming and declaring that the appellant had released and relinquished all his right, title and interest and claims in the business and assets of M/s. Frontier Engineering in favour of Souvik Barua i.e. the deceased husband of the respondent no. 1.
c) After the execution of the Deed of Relinquishment dated 18/11/2006, Souvik Barua became the sole proprietor of M/s. Frontier Engineering having right and control over the assets of the firm. On 05/05/2012, Souvik Barua had entered into an agreement with the respondent no. 2, thereby leasing out the eastern part of the building standing over Dag No. 98 in favour of the said respondent. On 11/03/2016, Souvik Barua, as the proprietor of M/s Frontier Engineering, had executed a fresh Lease Deed bearing No.13602 was signed by and between Souvik Barua and the respondent no.2 leasing out the entire building standing over the Schedule land which is presently under occupation of the respondent no.
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2.
d) The lease deed dated 11/03/2016 contains a clause in the form of clause 7.4 which lays down that 50% of the rent received from the respondent no. 2 shall be deposited in the bank account of the appellant and such deposit, for all intents and purposes, shall be deemed as deposit made with the lessor in satisfaction of the obligation of the lessee under the lease deed. Accordingly, in terms of clause 7.4 of the lease deed dated 11/03/2016, the respondent no. 2 had been depositing 50% of the rental dues in the account of the appellant and the said mechanism for payment of rent continued till the month of March, 2019. However, with effect from the month of April, 2019, the respondent no. 2 had stopped depositing 50% of the rent in the account of the appellant.The aforesaid step was allegedly taken by the respondent no. 2 acting on the instruction issued by the respondent no. 1 vide letter dated 25/03/2019.
e) Aggrieved by the decision of the respondent no. 2, the appellant as plaintiff, had instituted Title Suit No. 181/2019 in the court of Civil Judge, Senior Division, No1, Kamrup, inter-alia praying for a decree declaring his right, title and interest as a co-owner over the Schedule A & B plots ; a decree declaring that the recitals and clauses contained in the lease deed no. 13602/2010 and lease deed no. 13603/2010 shall not disentitle the appellant of his legitimate share in the schedule A & B plots of land ; a decree declaring that the plaintiff is entitled to 50% of the rental income generated from schedule A & B plots of land ; for a decree of permanent injunction and for other consequential reliefs. The aforementioned suit is pending disposal before the learned Civil Judge.
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f) The appellant had also instituted Misc. (J) case No.343/2019, arising out of Title Suit No. 181/2019, praying for an order of temporary injunction restraining the respondent no. 2 from acting in breach of the conditions contained in the lease deed dated 11/03/2016. By the impugned order dated 13/05/2019, the learned trial Court had rejected the prayer of the appellant for grant of an order of ad-interim injunction, inter-alia on the ground that the appellant had relinquished his right over the suit property in favour of his brother Souvik Baruah and that as per the balance sheet, the appellant is still receiving rent from the respondent nos. 1 and 2. As such, it was not a case of irreparable loss and injury to the interest of the appellant.
4. By referring to the materials available on record, Mr. Deka, learned counsel for the appellant has argued that by the registered deed executed on 18/11/2006 the appellant had merely given up his claim in the business of the proprietorship firm M/s Frontier Engineering and its assets. Since, the deed dated 18/11/2016 does not have a schedule of the properties, hence, according to the Mr. Deka, it cannot be said that the appellant had given up his claim over the entire ancestral property. According to Mr. Deka, the appellant, is entitled to succeed to the ancestral property left behind by late Pankaj Dhar Baruah and late Rubi Barua and therefore, his client cannot be deprived of a share in the rental income in respect of the buildings standing over the suit land. By referring to section 21 of the Indian Registration Act, 1908, Mr. Deka has argued that any document related to immovable property cannot be accepted for registration unless it contains description of the property. As such, viewed from that angle also, submits Mr. Deka, the registered agreement dated 18/11/2006 cannot be treated as a valid deed of relinquishment of rights of the petitioner over any part of the Page No.# 7/16 ancestral property. In support of his aforesaid argument, Mr. Deka has relied upon the decision rendered in the case of Narasamma Vs. Subbrayadu reported in 1895 (18) LLR (Mad) 364.
5. The learned counsel for the appellant has further argued that the rule of privity of contract is a doctrine applied by the Common Law Codes of England but under the Indian Code, the general proposition of Equity and Justice would always prevail. By submitting that certain exceptions have been carved out for application of rules of privity of Contract, Mr. Deka has argued that such rule cannot have application where there is a beneficiary under a trust created by a contract or when there is a family arrangement. Contending that in the present case, the appellant is a beneficiary under clause 7.4 contained in the agreement dated 11/03/2016 and that the mechanism envisaged by the said clause is the outcome of a family arrangement, Mr. Deka submits that the rule of privity of contract would not have any bearing in the present case. In support of his aforesaid argument, Mr. Deka has relied upon the decision rendered in the case of Debnarayan Dutt Vs. Chulilal Ghose reported in AIR 1914 Cal 129; Khirod Behari Dutt Vs. Man Govinda and others.
6. By relying upon a decision of the Delhi High Court rendered in the case of Utair Aviation Vs. Jagson Airlines Limited, Mr. Deka has argued that by their conduct, the respondents have not only created a legal right in favour of the appellant to receive 50% share in the rent but have also recognized such right by admitting his claim. Mr. Deka has also argued that as per the definition provided in Assam Urban Areas Rent Control Act, 1972, a Land Lord or a Landlady need not be the owner of the property. As such, merely because the lease agreement was signed by the deceased husband of the respondent no.1, the same would not extinguish the title of the appellant over the schedule A & B property.
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7. By referring to the decision rendered in the case of Dalpat Kumar Vs. Prahlad Singh reported in AIR 1993 SC 276, Mr. Deka has argued that the expression "Balance of Convenience" and "Irreparable Loss" are expressions with elasticity so as to meet the requirement of varying situations and, therefore, the Court must apply the aforesaid ingredients by looking into the facts and circumstances of each case.
8. Mr. A. Sarma, learned counsel for the respondent no. 1, on the other hand, has argued that in view of the registered deed of Relinquishment dated 18/11/2006, followed by the affidavit sworn by the appellant, there is no scope for him now to claim any right over the building standing over the schedule A & B land. According to Mr. Sarma, the appellant, having relinquished his right over the aforesaid immovable property in lieu of other family businesses and properties, is making an untenable claim only to cause loss and injury to the widow of his younger brother.
9. By referring to clause 7.4 of the Lease Deed No. 13602/2016 dated 11/03/2016, Mr. Sarma submits that although the appellant did not have any right over the suit property, yet, the arrangement for depositing 50% of rent in his account was made gratuitously, out of a benevolent attitude of late Souvik Barua towards his elder brother and, therefore, the appellant cannot claim 50% share in the rent as a matter of right. Since there is a collateral agreement entered by and between the respondent nos. 1 and 2 for carrying out construction of a hospital building over the suit land and having regard to the fact that there are financial consequence to be faced by the respondent no. 1 if the construction of the building is not completed within the stipulated period, Mr. Sarma submits that his client had objected to 50% of the rent being paid to the appellant since he did not have any right to continue to receive such amount. The learned counsel submits that, having admitted the execution of the Page No.# 9/16 registered deed of relinquishment, the appellant is estopped from raising any claim over the suit property or the business or assets of M/s. Frontier Engineering. In support of his aforesaid argument, Mr. Sarma has relied upon the following decisions :-
(i) Prem Singh & Ors. Vs. Birbal & Ors reported in (2006) 5 SCC 353;
(ii) Ranganayakamma Vs. K.S Prakash reported in (2008) 15 SCC 673;
(iii) Mahadeo Savlaram Vs. Pune Municipal Corp. reported in (1995) 3 SCC 33; &
(iv) Nizam Uddin Vs. Nagar Nigam reported in (2008) 2 AWC 1496.
10. Mr. Sarma has further submitted that there is no privity of contract between the appellant and the respondent no. 2.Therefore, Clause 7.4 cannot be enforced by the appellant by a decree of the Civil Court. By submitting that even the Income Tax for the component of rent paid to the appellant is being borne by the respondent no.1, Mr. Sarma has argued that appellant was none but an incidental beneficiary having no semblance of right under the lease agreement since there is no mutuality or reciprocity of binding nature flowing from the Lease Deed. According to Mr. Sarma, in the absence of any obligation of the respondent qua the appellant under the lease deed, his client had the right to oppose the deposit of 50% of the rent in the account of the appellant. To drive home the aforesaid arguments, Mr. Sarma has referred to the following decisions :-
(i) Thakur Vasonji Moraji Vs,. Musammat Chanda Bibi reported in (1915) SCC PC 20;
(ii) Harnam Singh Vs. Smt. Purbi Devi reported in AIR 2000 HP 108;
(iii) Kedar Das Mohta Vs, Nand Lal Poddar reported in AIR 1971 Pat 253; and
(iv) MC. Chacko Vs. State Bank of Travancore reported in AIR 1969 2 SCC 343.
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11. Mr. Sarma has also prayed for dismissal of the application filed under Order XXXIX Rules 1 & 2 of the CPC by arguing that the claim of the applicant is purely a monetary claim and since he can be adequately compensated at a later stage if he succeeds in the suit, this is not a fit case for granting an order of temporary injunction. Mr. Sarma has also argued that the necessary ingredients for granting an order of temporary injunction is completely absent in this case and hence, the application for temporary injunction is liable to be dismissed.The following decisions have been cited by the learned counsel for the respondent no 1:-
(i) Ganesh Panigrahi vs Jura Sahu reported in AIR 1973 Ori 232; and
(ii) T. Arivandandam Vs. T.S Satyapal reported in AIR 1977 2421.
12. Mr. T.J. Mahanta, learned senior counsel appearing for the respondent no. 2 submits that in addition to paying 50% of the rent to the appellant as per clause 7.4 of the lease deed dated 11/03/2016, his client had also deposited refundable security deposit in equal proportion to both parties. Since there is a dispute between the parties over their share in the ancestral property, hence, in order to avoid any further legal complications, the respondent no. 2 has been depositing the appellant's share in the rent in an escrow account as per direction of this court and shall abide by any further order that may be passed in this case.
13. I have heard the submissions made by the learned counsel for the parties and have also carefully gone through the materials available on record.
14. At the very outset, it needs to be noted herein that by the impugned order dated 13/05/2019, the learned trial court had declined the prayer for issuance of an ad-interim injunction in favour of the appellant. The order dated 13/05/2019 was passed after hearing the counsel for the appellant and the respondent no 1 appearing on the strength of a caveat.
Page No.# 11/16 From a perusal of the order dated 13/05/2019, it is apparent that the learned trial court has rejected the prayer for temporary injunction for intent and purpose. Therefore, although Misc (J) Case No. 343/2019 is still pending disposal before the learned Court below, in view of the request made by the learned counsel for both parties, the application for temporary injunction filed by the appellant is also being taken up for final disposal by this order.
15. As noticed above, the learned counsel appearing for both the parties have advanced elaborate arguments on the core issues touching upon the merit of the Title Suit. However, law is firmly settled that an application for temporary injunction has to be decided on the touch stone of the three golden ingredients viz. prima facie case, balance of convenience and irreparable loss. In the case of Anand Prasad Agarwalla Vs. Tarkeswar Prasad reported in (2001) 5 SCC 568, the Supreme Court has observed that the court should not hold a mini-trial at the stage of grant of an order of temporary injunction. Therefore, it would be impermissible for this court to enter into the merit of the plaintiff's case and record any finding on the merit of the claim while considering the prayer for grant of an order of temporary injunction.
16. The controversy in this proceeding centers around clause 7.4 of the Lease Deed dated 11/03/2016. Therefore, clause 7.4 is reproduced here-in-below :
" 7.4 : On a specific request of the LESSOR, the LESSEE has agreed that Lease Rent payable under this Lease Deed shall be payable in equal ratio (50:50) to the LESSOR and his brother Mr. Kaushik Barua son of Late Mr. Pankaj Dhar Barua, resident of Padma Path, R.G. Barua Road, Guwahati 781024, PAN No. AHWPB1276G. The payment of 50% of the Lease Rent to Mr. Kaushil Barua Page No.# 12/16 shall, for all intents and purposes, be deemed as payment made by the LESSEE to the LESSOR in satisfaction of its obligation under this Lease Deed to pay the Lease Rent to the LESSOR. The LESSEE shall, whilst making payment of the Lease Rent, be entitled to deduct tax at source under the Income Tax Act, 1961 as per prevailing rates and pay the tax so deducted to the concerned tax Government authorities within the prescribed period and issue the necessary tax deduction certificate (s) to the LESSOR and Mr. Kaushik Barua."
17. From the scheme of the Lease Deed dated 11/03/2016 it is apparent that Souvik Barua was the sole "land-lord" of the leased premises and clause 7.4 of the agreement merely lays down the mode of payment of rent by the respondent No 2. The lease deed dated 11/03/2016 neither recognizes the appellant as a "land-lord" nor does the same create any right in his favour of the appellant qua the tenanted premises. Moreover, the appellant is neither a signatory nor a witness to the agreement dated 11/03/2016.
18. According to the appellant, he is a beneficiary under Clause 7.4 of the Lease Deed dated 11/03/2016 and such benefit flows to him under a family arrangement. However, no such agreement of family settlement is available on record. That apart, the respondent no 1 has also contested his claim as such by taking the plea that the appellant has relinquished his right over the suit property by executing the Deed of Relinquishment dated 18/11/2006.
19. It would be significant to note herein that although there is a serious property dispute between the appellant and the respondent no. 1 over their share in the ancestral property, the appellant has not prayed for a decree of partition of the property or for declaration of separate possession. Likewise, although the respondent no. 1 is seeking to Page No.# 13/16 deny the claim of the appellant on the ground that he had relinquished his right over the schedule property by virtue of Deed of Relinquishment dated 18/11/2006 yet, there is no counter claim to that effect in the Title Suit.
20. On a careful examination of the recital in the agreement dated 18/11/2006, it can be seen that the appellant had relinquished his rights over the business and assets of M/s. Frontier Engineering. However, there are materials on record to indicate that Pankaj Dhar Baruah had purchased a part of the suit land in the name of the other firm viz M/s Frontier Engineering & Motor works. It is not the case of the respondent no 1 that the appellant has also relinquished his rights and claims over the business and assets of M/s Frontier Engineering & Motor works. Therefore, from the materials available on record, it is not possible to conclude that appellant had relinquished his claim over the entire Schedule A and B land. If that be so, it must be held that the appellant has a prima facie case to go for trial.
21. What is, however, significant to note herein that the appellant has not produced sufficient materials either to show that balance of convenience lies in favour of his client or that denial of an order of temporary injunction would result into irreparable loss and injury to his interest. On the contrary, from the materials available on record, it is found that the appellant has sufficient financial means to support himself. Therefore, this court is of the opinion that if the order of injunction is refused by this Court, the same would not in any manner lead to irreparable loss and injury to the appellant. The appellant also does not have any objection to the work of construction of the hospital building under taken by the respondent no 1 over the suit land and therefore, it is not a case where an order of Page No.# 14/16 temporary injunction has been sought against respondent no 1 restraining her from alienating of the suit property. The learned counsel for the appellant has also not pressed for any such order from this court during hearing of this case.
22. From the case projected by through the pleadings, it is apparent that the appellant is seeking an order of temporary injunction under Rule 2 of Order XXXIX of the CPC. This court has noted that the appellant had instituted the Title Suit after the respondent no. 2 has stopped depositing 50% of the rent in his account. Rule 2 of Order XXXIX confers jurisdiction upon the civil Court to grant an order of temporary injunction preventing breach of terms of a contract or continuance of such breach. By the very language employed in Rule 2, it is clear that such an order would be preventive in nature and is meant to maintain status quo as obtaining on the date of filing of the suit. However, if breach of the condition of the agreement has already occurred, a preventive order of temporary injunction cannot be passed by the Court. In such cases, the court may have to consider passing an order of temporary injunction in mandatory form, if a case is made out from the materials available on record. But in this case, there is no such prayer for issuance of a mandatory injunction of temporary nature against the respondents.
23. Moreover, it is the admitted position of fact that there is no concluded contract between the appellant and the respondents. In the absence of any contract between the parties, the question of breach of any of its conditions would also not arise in the eye of law. Therefore, I am of the considered opinion that Rule 2 of Order XXXIX CPC would not have any application in the facts and circumstances of this case.
24. In the case of Ranbaxy Laboratories Ltd. Vs. Doon Apartments (P) Ltd. reported in Page No.# 15/16 (1979) ILR 1 Delhi 84, the Delhi High Court has held that under Rule 2 of Order XXXIX, the plaintiff cannot claim, in the garb of preventing defendant from committing breach of contract, that the Court should actually compel the defendants to specifically perform the alleged contract. The appellant has also not prayed for a decree of specific performance of contract against the respondents. Therefore, bearing in mind the salutary principle of law that a relief that cannot be granted finally in the suit cannot be granted as an interim measure, this court is of the view that as an interim injunction, no direction can be issued to the respondents to continue to deposit the 50% share of rent in the appellants account. The matter would, however, be entirely different if the appellant succeeds in obtaining a decree in the pending title suit declaring his right to receive such rent in respect of the tenanted premises.
25. For the reasons stated above, this Court is of the considered opinion that the appellant/applicant has failed to make out a case for issuance of an order of temporary injunction under Order XXXIX Rules 1 and 2 of the CPC as prayed for. Although the learned trail court is not correct in holding that the appellant has been receiving the rent during the pendency of the suit yet, I am in agreement with the observation of the court below that no case of irreparable injury has been made out by the appellant/ plaintiff. Therefore, I hold that the impugned order dated 13/05/2019 does not call for any interference from this court.
26. By the order dated 04/06/2019 passed by this court in IA(c) No 1796 arising out of F.A.O No 30/2019, this court had directed the respondent no 2 to deposit 50% of the rent payable to appellant under clause 7.4 in an "escrow" account until further orders. The learned counsel for the respondent no 2 has confirmed that such deposit is being regularly made by his client by maintaining proper account. Therefore, having regard to the peculiar facts and Page No.# 16/16 circumstances of the case and balancing the equities, it is hereby provided that the order dated 04/06/2019 shall continue to operate untill disposal of the Title Suit No 181 / 2019 pending in the court of Civil Judge No 1, Kamrup at Guwahati. The learned Civil Judge is requested to take necessary steps for disposing of the suit, as expeditiously as possible, preferably with in a period of 4 (four) months from the date of receipt of a certified copy of this order.
27. With the above observations, the appeal and the application for temporary injunction stand disposed of.
Parties to bear their own cost.
JUDGE Sukhamay Comparing Assistant