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Bata India Limited v/s Chetki Properties & Others

    C.O. No. 3849 of 2019
    Decided On, 25 February 2020
    At, High Court of Judicature at Calcutta
    By, THE HONOURABLE MS.JUSTICE SHAMPA SARKAR
    For the Petitioner: S. Sen, A.K. Bose, Advocates. For the Opposite Parties: Manju agarwal, Anju Manot, Bajrang Manot, Advocates.


Judgment Text

1. The revisional application arises out of an order dated September 30, 2019 passed by the learned Judge, Commercial Court at Alipore in Title Suit No.17 of 2019. By the order impugned, the learned Judge rejected the application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure filed by the defendant/petitioner. The opposite party No.1 who carries on business as a promoter and developer of multistoried building complexes, instituted the suit in respect of a portion of ground floor of the building at the premises known as Kohli Mansion, 54, Sayed Amir Ali Avenue, Ballygung, Kolkata-700019.

2. The petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure and prayed for rejection of the plaint on the following grounds:-

(a) The plaint did not disclose any cause of action against the defendants.

(b) The entire cause of action in the suit was against one Jagjit Singh Kohli who was the owner of the property and land lord of the petitioner but was not impleaded as a party in the suit.

(c) The opposite party No.1 was not the land lord or owner of the area let out to the petitioner/company, and as such the suit for eviction of a trespasser was not maintainable at the instance of the developer/promoter.

(d) The remedy of the opposite party No.1 was in filing a suit for redemption and foreclosure of mortgage as the entire cause of action as stated in the plaint, arose out of alleged failure of Jagjit Singh Kohli to repay the amount given by the opposite party No.1 to Kohli to buy out the shares of his brother in the suit property.

That Kohli created an equitable mortgage in respect of the property. As such, on failure to pay the money, the opposite party No.1 was entitled to pray for foreclosure of the mortgage which was created by Kohli, by deposit of the title deeds of the said property.

(e) That plaint further proceeded on the basis that the area in respect of which the petitioner was inducted as a tenant was originally allotted to the opposite party No.1, as developer's share, subsequently the ground floor was allotted as the owner's share subject to payment of some amount by Kohli, which Kohli failed to pay and as such the petitioner being the tenant of Kohli was a trespasser and in unlawful occupation of the property as Kohli did not have any right to own and possess the said portion, that is, the suit property, not having paid the consideration amount.

3. The learned Judge upon consideration of the plaint as a whole observed that the case of the plaintiff was that Kohli took possession of his allocated portion without making payment of Rs.3.25 crores and Rs.21.66 lakhs to be paid to the plaintiff/opposite party No.1, there being an equitable mortgage in respect of the said property. Kohli was not entitled to enter into and take possession of the said premises. That Kohli illegally and unauthorizedly converted four covered car parking space on the ground floor into a show room and constructed a large show room comprising of an area of approximately about 2600 Square Ft. and inducted the petitioner as a tenant of the said property without paying Rs.21.66 lakhs as consideration payable under an agreement.

4. The learned Court upon consideration of the averments in the plaint came to the conclusion that the right title and interest of the opposite party No.1 and Kohli over the suit property were based on agreements between opposite party No.1 and Kohli dated August 14, 2007, supplementary agreement dated December 7, 2009 and an addendum agreement dated April 2, 2013. According to the learned Judge these were questions of facts subject to proof. Whether there was an equitable mortgage and whether Jagjit Singh Kohli had lawful right of possession over the suit property and could let out the suit property to the petitioner were issues to be decided on evidence and the questions involved in the suit was to be determined upon consideration of facts and evidence of the parties and the plaint could not be rejected.

5. The learned Court further held that only because Jagjit Singh Kohli was not a party to the suit, that could not be a ground for rejection of the plaint. The learned Judge held that when the question of possession of Kohli and conversion of the suit property from a garage to a commercial area with a show room were the subject matters of the suit, without trial on evidence the questions could not be determined and the plaint was not liable to be rejected.

6. Mr. S. Sen, learned advocate appearing on the behalf of the petitioner submitted that the plaint did not disclose any cause of action against the petitioner. The other defendants who were employees of the petitioner. According to Mr. Sen, a meaningful reading of the plaint would show that the entire allegation in the plaint was against non-payment of Rs.3.25 crores advanced by the opposite party No.1 to Kohli, for purchase of the shares of the other co-sharers.

7. In respect of the premises in which the suit property was situated. An equitable mortgage in respect of the entire premises by deposition of photo copies of the title deeds was created by Kohli and also due to non-payment of the money advanced as also Rs.21.66 lakhs which Kohli had agreed to pay to the plaintiff/opposite party No.1 on account of allocation of the ground floor garages, Kohli could not have taken possession.

According to Mr. Sen, the cause of action being entirely against Kohli, the opposite party No.1 had the right to maintain a suit for foreclosure of mortgage and also a money suit in respect of the Rs.21.66 Lakhs. It was further submitted that until and unless the opposite party No.1 got the decree for foreclosure of the mortgage of the entire premises including the suit property, the opposite party No.1 did not become owner of the premises and could not file a suit for eviction and for recovery of possession against the petitioner, inasmuch as, the opposite party No.1 was neither the land lord nor the owner of the suit premises nor were the four garages which were converted to the commercial area within the area allocated to the opposite party No.1 under the addendum to the development agreement. Rather, the said area was under the owner's share, which Kohli was allotted upon payment of an amount of Rs.21.66 lakhs. Even if non-payment of the said amount was alleged, such non-payment could not give rise to a cause of action against the tenant of Kohli in respect of the show room. The owner of the property inducted the petitioner as a tenant in the area allotted to him and the developer who was aggrieved by non-payment of certain amounts by the owner/landlord could not seek to evict the petitioner. He submitted that a suit for foreclosure of the equitable mortgage created by Kohli was already pending. According to Mr. Sen, the instant suit was harrassive, barred by law and did not disclose a cause of action against the petitioner and should be nipped in the bud.

8. Ms. Agarwal, learned advocate appearing on behalf of the opposite party No.1/plaintiff submitted that non-joinder of Kohli could not be a ground for rejection of the plaint. That a plain reading of the plaint disclosed the cause of action against the petitioner. The petitioner was a trespasser as he was inducted by Kohli, who did not have any right to take possession of the property without repaying the loan advanced by the plaintiff amounting to Rs.3.25 crores with interest at the rate of 18% per annum and also without repaying Rs.21.66 lakhs which was the consideration money payable for the covered garages allotted to Kohli and which were converted to show rooms, let out to the petitioner. She submitted that as Kohli trespassed into the property without paying the money to the opposite party No.1, as per the agreements, the tenant of the Kohli was also a trespasser. The opposite party No.1 as the developer had a right of possession over the property and thus was entitled to file a suit against the tenant of the owner. The rights of the opposite party No.1/plaintiff arose out of several agreements which were required to be adjudicated upon and without trial on evidence, the rights of the respective parties could not be proved and as such the plaint having disclosed such a cause of action was not liable to be rejected. Ms. Agarwal further submitted that a suit for foreclosure of mortgage was filed against Kohli which was pending before the learned Civil Judge, Senior Divison, 2nd Court at Alipore being Title Suit No.50 of 2016. An arbitration proceeding with regard to non-payment of Rs.21.66 lakhs (consideration amount for the ground floor including covered garages) was also pending. This suit disclosed a separate cause of action, that is, eviction of the petitioner, who was inducted by Kohli as a tenant, which Kohli could not have done without repaying the amount advanced by the plaintiff/opposite party No.1 as also without payment of the amount agreed to be paid for subsequent allocation of the ground floor.

9. Heard the parties.

10. The relevant portions of the plaint are quoted below in order to appreciate the cause of action out of which the said suit had arisen.

"1) The plaintiff carries on business, inter alia, as a promoter and developer of multi-storied building complexes. The plaintiff has a wide reputation and goodwill in the market and has built and constructed several housing and commercial projects.

2) The defendant No.1 is a incorporated company in India and is engaged in the manufacture and sale of shoes in India. The said defendant has various showrooms across the country including one at 54, Syed Amir Ali Avenue, Kolkata-700019.

3) That the defendants No.6 to 11 are officers of the Defendant No.1 and have been instrumental into wrongfully and illegally entering into an arrangement with Kohli and in trespassing into the suit property. Defendants No.6 to 11 are proper parties and their presence is necessary for adjudication in the suit.

4) One Jagjit Singh Kohli (hereinafter referred to as "Kohli") sometime in the year 2007 approached the plaintiff and represented, inter alia, that he is one of the co-owner and has undivided share in a plot of land measuring 11 cottahs, 12 Chittaks and 40 Sq.Ft. (hereinafter referred to as "the said premises") more or less with an existing mansonry building thereon having its postal address as 54, Syed Amir Ali Avenue, Kolkata-700019.

5)...................

6) The plaintiff agreed to the proposal of the said Kohli and accordingly, an agreement dated August 14, 2007 was executed by and between the said kohli as the owner, the plaintiff as the developer and one Shyamlal Agarwal and M/s. Kohli Trading Company Private Limited as the confirming parties thereto. By virtue of the said agreement, the plaintiff was entrusted with the work of development of the said premise by erection and construction of a multi-storied building thereat on the terms and conditions, as contained in the said agreement. The agreement entitled the plaintiff to enter upon the said premises, take possession and continue to be in possession of the same, cause of demolition of the existing structure thereat and construct and multi- storied building at its place. The agreement was signed and executed at the office of the plaintiff within the aforesaid jurisdiction. A copy of the development agreement dated August 14, 2007 is annexed hereto and marked with letter "A".

7) In terms of the said agreement and in order to facilitate purchase of the undivided half-share from the co-sharers of the said Kohli, the plaintiff advanced to the said Kohli and/or his nominee/nominees a sum Rs.3.25 crores by way of refundable security deposit on 14th August, 2007.

8) Upon receipt of the said sum of Rs.3.25 crores from the plaintiff, the said Kohli purchased the undivided half share of the said premises from his family members by a registered Deed of Sale dated 18the August, 2007

9) After execution and registration of the Deed of Sale, the said Kohli became the sole and absolute owner of the entirety of the said premises.

10) On or about August 2007, subsequent to the advance, the said Kohli deposited with the plaintiff at its registered office at 10/1D, Lalbazar Street, Kolkata-700001, the original Title Deeds with an intent to create a security on the said premises to which the same relates, for payment of the refundable security deposit of the plaintiff. Such security/equitable mortgage of the said premises, by deposit of Title Deeds, was created at the office of the plaintiff at 10/1D, Lalbazar Street, Kolkata-700001. A copy of the document of August 2007 enclosing the title deeds is annexed hereto and marked with the letter "B".

11) Subsequently, the plaintiff and the said Kohli entered into a Supplementary Agreement on December 7, 2009 and formalized the respective allocations in the proposed building. It was further agreed that an attempt shall be made to seek revision of the sanction for construction of additional floors and also for conversion of four covered car parking spaces at the ground floor into commercial spaces. A copy of the said Supplementary Agreement dated December 7, 2009 is annexed hereto and marked with the letter "C".

12)........................

13) Subsequent to the grant o f the sanctioned revised plan, the parties, inter alia, agreed to amend their respective allocations, as agreed earlier on December 7, 2009. By an addendum dated April 2, 2013, it was agreed that in terms of the revised sanction plan the entirety of the fourth floor would be allocated to the plaintiff/developer and the commercial spaces, available after the revised sanction plan, including four covered car parking spaces, would be allocated to the said Kohli in lieu of the said entire fourth floor. The said addendum was executed at the registered office of the plaintiff. A copy of the said addendum dated April 2, 2013 is annexed hereto and marked with letter "D".

14) All along, the plaintiff was of the bona fide view and impression that the said Kohli would make payment of Rs.3.25 crores and Rs.21.66 lacs on or before taking over actual phisacal possession of its allocation. Several meetings were held between the said Kohli and the plaintiff in this connection. At those meetings the said Kohli assured the plaintiff that payment would be made. In fact, the said Kohli also visited the plaintiff's office in connection with such negotiations at which the said Kohli assured payment of the aforesaid sums.

15) The plaintiff states that the said Kohli has wrongfully and illegally converted the four vcovered car parking spaces and has included the same in the commercial space and has let out the covered car parking spaces along with the originally allotted commercial space was to the defendant. The purported conversion is illegal and wrongful. The plaintiff has made appropriate complaints before the Municipal Authorities and prayed for demolition of the unauthorized construction.

16) In the premises notices have been issued by the plaintiff to the defendant calling upon it to remove itself from the ground floor of the said building and to abstain from making any payment in respect of the said Kohli.

17) The plaintiff states that the said Kohli, in terms of the revised sanction plan, has failed and neglected to make payment of the proportionate share towards the cost and expenses for conversion a;nd for construction of the front portion of the ground floor to commercial space of sixth floor.

18) Apart from refund of the security deposit, the plaintiff is entitled to several other claims including directions upon the said Kohli to specially perform the said agreement.

19) For adjudication of claim, arising out of the development agreement, the plaintiff has initiated arbitration proceedings. For interim measures of protection, a proceeding under Section 9 of the Arbitration and Conciliation Act, 1996 was initiated before this Learned Court being Misc. Case No.367 of 2015. On 9th October, 2015 the Learned District Judge at Alipore was pleased to partly allow the application under Section 9 of the said Act.

20) All along the plaintiff was of the bonafide view and impression that Kohli would make payment of Rs.3.25 crores and Rs.21.66 lacs on or before taking over actual physical possession of its allocation. However Kohli illegally, wrongfully and unauthorizedly took possession of the property including the four covered car parking spaces.

21) ...............

22) ...............

23) ................

24) The plaintiff is not aware of the terms and conditions under which Bata India Limited have been illegally and unauthorisedly inducted into and have been allowed to occupy the ground floor of the said building and to illegally intrude and trespass into the portion earmarked as covered car parking space and convert and same into a part of its showroom/shop room. The four covered car parking spaces earmarked in the sanctioned Building Plan No.2010080178 dated March 15, 2011 do not entirely fall within the owner's allocation and the plaintiff has a subsisting right, title and interest in the four covered car parking spaces and in the showroom.

25) ..................

26) The plaintiff states that Mr. Kohli has failed and neglected to make payment of the refundable security deposit together with interest accrued thereon, which was a condition for receiving possession of the owner's allocation. The owners allocation inter alia includes the unauthorized converted four car parking space wrongly and illegally let out to the defendant, Bata India Ltd.

27)The plaintiff states that in terms of the agreement between the plaintiff and Kohli, the plaintiff as a mortgage is entitled to remaining is possession of the entirely of the owner's allocation including the suit property.

28) In these circumstances, the plaintiff has issued a notice upon the defendant for having been in unauthorized occupation and called upon the defendant to quit, clear and handover possession of the suit property to the plaintiff. Such notices dated May 2, 2015, July 29, 2005 and September 2, 2015 were issued and duly served upon the defendant. The defendant despite receipt of such notices failed and neglected to vacate and handover possession or in any way respondent or refute the statement contained therein.

29) In such compelled circumstances, the plaintiff issued a legal notice through Advocates on December 5, 2015 calling upon the defendant to quit, vacate and deliver peaceful and khas possession of the suit property to the plaintiff in the manner as prescribed in the said notice. The said notice was sent by speed post with acknowledgment due and was duly received by the defendant. A copy of the said notice dated December 5, 2015 is annexed hereto and marked with the letter "E".

30) ..................

31) The plaintiff is accordingly entitled to a decree for recovery of possession against the defendant.

32) The plaintiff is also entitled to a decree for permanent injunction restraining the defendant and its men and agents in any way dealing with, encumbering, changing the nature and character and from in any way utilizing any part or portion of the suit property.

33) The defendant has been in wrongful and illegal possession of the suit property from 26.08.2015. The defendant is liable to pay mesne profits for being in wrongful and illegal possession. The plaintiff has reasonably assessed the mesne profits at Rs.10,000/- per diem.

34) In the alternative, the plaintiff prays for an enquiry into the nesne profits payable by the defendant to the plaintiff and further prays for decree for such sum that may found due and payable by the defendant to the plaintiff.

35) The cause of action has arisen on January 7, 2016 when despite receipt of the notice dated December 5, 2015 and expiry of notice period of 30 days, the defendant failed and neglected to handover peaceful and vacant possession of the suit property to the plaintiff. The suit property is situated at 54, Syed Amir Ali Avenue, Kolkata-700019, P.S. Karaya, within the jurisdiction of this Learned Court."

11. The reliefs claimed by the plaintiffs which are as follows:-

"a) A decree for recover of possession against the defendant in respect of the suit property;

b) A decree for mesne profits @ Rs.10,000/- per diem from 07.01.2016 till recovery of possession;

c) Alternatively an enquiry into mense profits payable by the defendant to the plaintiff in respect of the suit property and a decree be passes for such sum;

d) Decree for permanent injunction restraining the defendant and its men and agents in any way dealing with, encumbering, changing the nature and character and from in any way utilizing any part or portion of the suit property;

e) Attachment;

f) Injunction;

g) Receiver;

h) Costs;

i) Such further or other relief."

12. The aforesaid factual and legal position being admitted and accepted in the plaint, the basis for institution of the suit by the opposite party No.1 against the petitioner is the failure of Kohli to act in terms of the agreements by not repaying the sum of Rs.3.25 crores as also Rs.21.66 lakhs which according to the opposite party No.1, the land lord of the petitioner was bound to pay in terms of the agreements, upon having created an equitable mortgage in respect of the property and also as a consideration for allotment of the ground floor originally allotted to the opposite party No.1, but later agreed to be allotted in favour of the said Kohli, respectively. The developer has filed the suit for recovery of the possession of the suit property, in respect of which the petitioner was inducted as a tenant by the owner of the property. The ownership of Kohli is not disputed, allocation of the ground floor to Kohli is not disputed, and induction of the petitioner No.1 as a tenant by Kohli is also not disputed. Thus, the petitioner who is neither the owner nor the landlord, cannot file a suit for recovery of possession upon eviction of the tenant of the owner of the property alleging the tenant to be a trespasser. The allegation in the plaint in a nutshell is that the opposite party No.1 had the right to continue in possession of the property in question, till Kohli repaid the entire 3.25 crores and that alternatively opposite party No.1 had the right to redeem the equitable mortgage created in respect of the entire building in which the suit property was situated.

The further allegation is that Kohli did not acquire any right and title over the ground floor property, that is, the suit property as he failed to pay the consideration of Rs.21.66 lakhs, in lieu of such allocation of the ground floor of the premises which was originally allotted to the developer. Thus, according to the averments in the plaint, Kohli was a trespasser and consequently the tenant of Kohli was also a trespasser and was liable to be evicted at the instance of the developer who has a right over the property.

13. In the present case, the plaint fails to establish a cause of action against the petitioner. In the absence of such a right or even a claim against the petitioner, the plaint is liable to be rejected. The suit is manifestly vexatious, meritless and groundless as it does not disclose a clear right to sue the petitioner. A mere contemplated or a possibility that a right may be infringed on account of non-payment of the alleged dues by Kohli which are subject matters of the suit for foreclosure of mortgage as also an arbitration proceeding, are not sufficient to hold that the plaint disclosed a cause of action against the petitioner. Until and unless the opposite party No.1 gets a decree of foreclosure of mortgage in respect of the premises in which the suit property is situated, the plaintiff does not acquire any enforceable right to sue the petitioner for eviction.

14. The Trial Court proceeded on a misconception that the question whether the opposite party No.1 had a cause of action against the petitioner would have to be determined upon considering the agreements between the opposite party No.1 and Kohli and such consideration would only be effective upon recording of evidence and trial. This approach of the learned Court below was erroneous, inasmuch as, a meaningful reading of the plaint would clearly indicate that the cause of action as disclosed was against Kohli and all claims were against Kohli. The opposite party No.1 has not disclosed a right to sue the petitioner and the learned Court below should have exercised its jurisdiction under Order VII Rule 11 of the Code of Civil Procedure. Even if clever drafting had created an illusion of a cause of action, such a suit should be nipped at the bud, in order to prevent misuse and abuse of law and the legal process. Reliance is placed on the decisions of T. Arivandandam vs. T.V. Satyapal & Another reported in (1977) 4 SCC 467, Colonel Shrawan Kumar Jaipuriyar vs. Krishna Nandan Singh in Civil Appeal No.6760 of 2019.

15. In T. Arivandandam (supra) the Hon'ble Apex Court held as follows:-

"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and must be triggered against them. In this case, the learned Judge to h

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is cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: "It is dangerous to be too good." 6. The trial court in this case will remind itself of Section 35-A CPC and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned." 16. In this case, even if the opposite party No.1 proved the allegations of non-payment of the money advanced and also non-payment of the consideration money for the ground floor by Kohli, still the developer would not have a clear right to sue the petitioner and claim recovery of possession of the tenanted portion until he got a decree in his favour in the suit for foreclosure of mortgage and necessary orders were passed in execution of such decree. 17. Reference is made to the decision of the Apex Court in the matter of Popat and Kotecha Property vs. State Bank of India Staff Association reported in (2005) 7 SCC 510. The relevant paragraphs are quoted below:- "19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. 20. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised." 18. The order dated September 30, 2019 is set aside. The plaint is rejected 19. This revisional application is allowed. 20. There will be, however, no order as to costs. Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
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