w w w . L a w y e r S e r v i c e s . i n



Gopi Das Mimani & Others v/s Vandana Real Estates (P) Ltd.

    A.P.O. Nos. 445, 261 of 2004 & G.A. Nos. 931, 855 of 2013 & Arising from C.S. No. 406 of 1998

    Decided On, 18 April 2013

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE ASHIM KUMAR BANERJEE & THE HONOURABLE JUSTICE ASHOKE KUMAR DASADHIKARI

    For the Appellants: Ahin Chowdhury, Ajay Krishna Chatterjee, Sudhis Dasgupta, Samit Talukdar, Senior Advocates, Arunabha Sarkar, Aniruddha Roy, Utpal Bose, . Debajyoti Dutta, Ms. V. Bhatia, Advocates. For the Respondents: Pratap Chatterjee, Surajit Nath Mitra, Senior Advocates, Jaydeep Kar, Raj Ratna Sen, Kaushik Mandal, Promit Roy, S. Sarkar, Aditya Kanodia, Abhrajit Mitra, Prasanta Naskar, Amitesh Banerjee, A shim Kr. K undu, Advocates.



Judgment Text

Ashim Kumar Banerjee. J,

History :

Dawn family was the owner of a vast plot of land mainly used for business purpose. The land had temporary structure spread over 168 cuttahs approximately. It was mainly used for weekly cloth market commonly known as Monglahat as the market would function on every Tuesday. By two registered Deed of Lease executed in 1939 one Kanailal Mimani and Surajmal Mimani got possession of the entire land for 50 years. The lease expired by efflux of time in 1989. There had been change of ownership in between the members of the Dawn family. Mimanis would claim, they started negotiation with the owners in 1987 for outright sale of the property in their favour. However, such negotiation was verbal. They claimed, a sum of Rs.5 lacs was paid to Dawns in a joint meeting held at the office of their Advocate. On May 3, 1987 it was subsequently agreed, the Dawns would sell and Mimanis would purchase the land at the rate of Rs.1 lac per cuttah. Since a sum of Rs.5 lacs was paid as earnest money Mimanis were obliged to pay the balance amount of Rs.163 lacs on sale being concluded in their favour.

Before the negotiation could materialize as contended by Mimanis or the lease would expire by efflux of time in 1989, the State of West Bengal requisitioned the said land under West Bengal Acquisition and Requisition Act, 1948. During pendency of the said litigation, the lease expired by efflux of time. The litigation reached the Apex Court level when the State of West Bengal lost. Before the Supreme Court the question arose, whom to hand over possession. Was it Mimanis from whom the possession was taken or the Dawns being the owners as the lease had expired by efflux of time? The Apex Court held in favour of Dawns.

Litigation started again when Mimanis filed a suit for specific performance before the Subordinate Court at Howrah inter alia asking for specific performance on the strength of the purported oral agreement. The matter ultimately came up before the Division Bench when the Division Bench observed, Mimanis did not have any right, however, to test their bona fide, the Division Bench asked them to deposit the entire consideration. The Apex Court did not interfere with such direction of the Division Bench. Mimanis thus deposited Rs.163 lacs in Court. Dawns would claim, the litigation between Mimani and Dawns would draw a close when parties settled their dispute inter se. The Terms of Settlement was duly executed by and between the parties. However, there had been a dispute inter se amongst the Mimani group that prevented the ultimate settlement.

Be that as it may, the suit for specific performance is still awaiting final decision before the Civil Court at Howrah. Dawns were said to have executed two agreements for sale; one with Vandana Real Estate Pvt. Ltd. claiming to be the holder of the development agreement dated June 6, 1996 and the other by M/s. Basundhara Towers Pvt. Ltd. dated February 4, 1998. Hence, there were three rival claims. Mimani’s oral agreement of 1987, the Vandana’s Development agreement dated June 6, 1996 and Basundhara’s agreement dated February 4, 1998. Altogether four title suits were filed.

(i) Title Suit No. 1991 of 1997 in Howrah Court by Mimanis.

(ii) Title Suit No. 40 of 2001 re-numbered as Title Suit No. 105 of 2001 in Howrah Court by Mimani.

(iii) Civil Suit No. 406 of 1998 filed in this Court by Vandana.

(iv) Title Suit No. 90 of 2004 pending in Howrah Court by Basundhara.

The first suit was abandoned by Mimanis as appears from the judgment and order dated December 21, 1995 delivered by one of us (Ashim Kumar Banerjee, J.) while deciding a civil revisional application at the instance of Basundhara. The third suit was settled between Vandana and Dawns. It was not clear whether this second suit by Mimani was pending or not. The fourth suit was stayed under Section 8 of the Arbitration and Conciliation Act that stood finality when the matter was referred to arbitration.

The present set of appeals would relate to Civil Suit No. 406 of 1998 challenging the settlement between Dawns and Vandana, at the instance of Mimanis in A.P.O. No. 445 of 2004 and Basundhara in A.P.O. No. 261 of 2012. Pursuant to the settlement, Dawns executed Deed of Conveyance in favour of Vandana and another company Monglahat Construction and Builders Pvt. Ltd. having 50% share of the property by each of the purchasers. Mimanis filed an application dated August 30, 2004 inter alia challenging the compromise decree praying for being adjudged null and void as also the consequential relief for cancellation of the conveyances executed on July 28, 2004 and August 5, 2004 in favour of Monglahat Builders and Construction Ltd. and Gajanand Agency Service Pvt. Ltd. They would contend, one Ramkishan Mimani misused his power that was entrusted to him by the family to conduct the litigation on behalf of the family. Ramkishan Mimani surreptitiously compromised the litigation with Dawns, hence, they revoked the power of attorney given in favour of Ramkishan Mimani. It would now transpire that at the instance of Vandana, Dawn family executed the conveyance in favour of the two companies being Monglahat and Gajanand giving them 50% ownership of the property to each of them.

Basundhara Towers also filed application making identical prayer inter alia for cancellation or recall of the decree and consequential relief. Significant to note, the application was made by one Santi Ranjan Dey claiming to be the Director of the Basundhara who was said to have been entrusted by Dawns to look after the property after it had been handed over by the State of West Bengal.

The learned Single Judge heard the application and disposed of the same by judgment and order dated October 15, 2004 appearing at pages 194-209 of the paper book (A.P.O. 445). In case of Basundhara another learned Judge dismissed the application by judgment and order dated August 31, 2004 appearing at pages 238-248 of the paper book (A.P.O. 261). Both the learned Judges independently examined the issue and incidentally came to the same final conclusion.

Analysis Of The Judgment :

Judgment and order dated August 31, 2004 :

(i) Basundhara entered into agreement with Dawns on February 4, 1998 for development of the properties. They duly deposited Rs.75 lacs as security deposit to be refunded after owner’s allocation of one lac sq. feet of the constructed area in the new building was handed over. Basundhara claimed to have paid a sum of Rs.1,19,50,000/- to Pranab Chandra Dawn. The development agreement dated February 4, 1998 was modified on July 27, 2001. Dawns put Basundhara in physical possession when the appeal by the Babsayee Samity was pending before the Apex Court.

(ii) Dawns surreptitiously entered into agreement with Vandana. There had been suppression of fact as alleged by Basundhara in their petition.

(iii) The locus of Santi Ranjan Dey was in dispute. Santi Ranjan Dey claimed to be the constituted attorney of Pranab Chandra Dawn that stood automatically null and void on the death of Pranab.

(iv) Santi Ranjan was very much aware of the existence of the suit in which the decree was passed. He was acting as the constituted attorney of the Pranab Chandra. Santi Ranjan did not take any step in the suit. Hence, question of suppression of fact or fraud, did not arise.

(v) Pranab made an application for extension of time to file written statement. Santi Ranjan sent such application as constituted attorney. After the death of Pranab, Santi Ranjan had no right to represent Dawns and in any event legal heirs of Pranab did not entrust him any further. There was neither any suppression of fact nor any exercise of fraud.

(vi) There was sufficient alternative remedy under Order XXI Rule 97 and 99 of the Code of Civil Procedure.

(vii) The application was dismissed having no merit. Judgment and order dated October 15, 2004 in the application of Mimanis :

(i) Mimanis obtained order for maintenance of status quo on August 8, 2001. On October 1, 2001, the said application was dismissed on contest. Appeal was preferred. The Division Bench permitted deposit that was not interfered with by the Apex Court. The Apex Court directed suit to be disposed of within six months.

(ii) Respondent contended, the application for addition of party was not maintainable as Mimanis were not parties to the suit in which decree was passed.

(iii) There was no question of violation of any order of Court. The agreement between Dawns and Vandana was executed much prior to the orders of the Division Bench and Supreme Court.

(iv) The issue of fraud was negated by the other learned Judge vide judgment and order dated August 31, 2004. Learned Judge also observed, there was no question of fraud. The parties did not make out a case of collusion. They would contend, compromise was fraudulently obtained in violation of the order of Court. The applicants however did not take any step for such alleged violation. For the said reason alone, the petition was not maintainable. The Terms of Settlement would record, possession was given much prior to the order, violation of which was complained of. However, there were rival claims, thus could not be decided on affidavit evidence.

(v) The suit was for specific performance. The decree should be treated as a preliminary decree and would require happening of eventualities being payment of money, execution of the conveyance. Petitioner not being a party could not pray for setting aside of the decree.

CONTENTIONS :

Mr. Ahin Chowdhury, learned senior counsel being assisted by Mr. Ajay Krishna Chatterjee, learned senior counsel arguing for Mimanis in A.P.O. No. 445 of 2004 would contend, Order XXIII Rule 3A would debar filing of a suit challenging a compromise decree. Since the decree was fraudulently obtained touching the right of invervener, seeking to prevent fraud the appellant, although being not a party to the suit, was entitled to ask for setting aside. He would refer to two Apex Court decisions in the case of Ram Chandra Singh Vs. Savitri Devi and Others reported in 2003 Volume-8 Supreme Court Cases Page-319 and in the case of Horil Vs. Keshav and Another reported in 2012 Volume- 5 Supreme Court Cases Page-525 and a Division Bench decision of this Court decision of this Court reported in Morium Bibi & Ors. Vs. Musst. Showkatara Begum & Ors. Reported in 1995 Volume-1 Calcutta Law Journal page-80. Mr. Chowdhury would draw our attention to the settlement to demonstrate the fraud committed upon Court as it would violate the Division Bench order appearing at page-155 and the Apex Court order appearing at page- 169 of the paper book. He would contend, once the fraud and suppression of fact were alleged and the decree would offend the Division Bench order so merged in the order of the Apex Court such consent decree obtained by fraud was liable to be set aside. So were the deed of conveyances executed by the Dawns in favour of Monglahat and Gajanand.

Mr. Samit Talukdar, learned senior counsel appearing for Basundhara Tower Pvt. Ltd. would also attack the Terms of Settlement and the compromise decree. According to him, Pranab died on May 19, 2002. The deposit of Rs.1.195 crores by Basundhara was a relevant factor that the learned Judge ignored. He would contend, the suit filed before this Court being Civil Suit No. 406 of 1998 was not maintainable at all before this Court as the decree, even if passed in the said suit, could not deal with the possession of the property, admittedly situated outside the territorial jurisdiction of this Court. He would contend, Basundhara was in possession after the State handed over the land to Dawns and Dawns in turn handed over the same to Santi Ranjan Dey the Director of Basundhara. Neither Monglahat nor Gajanand could be put to possession. He would refer to various orders obtained by Babsayee Samity to demonstrate, Basundhara was in possession. To support his possession, Mr. Talukdar relied on the Land Acquisition Notice served upon him, so were the notices of demolition of the structure and the Summons issued in a criminal case.

On the issue of fraud and suppression of fact, he would adopt the submissions made by Mr. Chowdhury on behalf of Mimanis and prayed for setting aside of the compromise decree and cancellation of the conveyance. He would also refer to two Apex Court decisions in the case of Ram Chandra Singh (supra) and Horil(supra).

Mr. Jaydeep Kar, learned counsel appearing for Monglahat would contend, he got 50% ownership as per the compromise decree. He would draw our attention to Sections 15 and 19 of the Specific Relief Act to say, in the suit for specific performance a stranger could not be made a party. To support his contentions, he relied on two Apex Court decisions in the case of Kasturi Vs. Iyyamperumal and Others reported in 2005 Volume-6 Supreme Court Cases-733 and in the case of Bharat Karsondas Thakkar Vs. Kiran Construction Company and Others reported in 2008 Volume-13 Supreme Court Cases Page-658. Mr. Kar would further contend, Mimani was a lessee under the Dawns. Lease expired by efflux of time. The issues stood resolved by Dawns with Mimanis that was recorded in a Terms of Settlement. However, such Terms of Settlement could not be filed in view of family dispute inter se between Mimanis. Commenting on the appeal of Basundhara, Mr. Kar would contend, the so-called agreement was dated February 4, 1998 whereas the suit was filed on September 16, 2004, hence, laws of limitation barred the suit. At the instance of Basundhara, the issues were sent to Arbitral Tribunal that stood finality before the Apex Court. Uptill date Basundhara did not refer the dispute to arbitration. They rather abandoned the proceeding.

Appearing for Gajanand, Mr. Promit Roy, learned counsel would contend, Gajanand was 50% owner of the property derived through Deed of Conveyance duly executed by Dawns in terms of the consent decree. He would adopt the submissions made by Mr. Kar in respect of Basundhara and Mimanis. Commenting on the litigation of Babsayee Samity, Mr. Roy would contend, those suits were collusive in nature for a desperate attempt to support the possession of Basundhara. He would contend, Mimanis already obtained order for withdrawal of the money that they deposited in terms of the order of the Division Bench. On a query made by this Court, Mr. Roy would contend, one Mr. Prakash Kumar Damani, the then Director of Gajanand instructed him.

Mr. Abhrajit Mitra, learned counsel appearing for the present Board of Management of Gajanand also adopted the submissions made by Mr. Kar. He would dispute the authority of Mr. Roy to represent Gajanand as according to him, Damani was no more a Director of the Company.

Mr. Ahin Chowdhury, learned senior counsel while giving reply would reiterate, when fraud was alleged and the fraud was said to have been committed in Civil Suit No. 406 before this Court this Court in Civil Suit No. 406 would be the appropriate forum for redressal of the wrong, otherwise he would be remediless. Distinguishing the cases cited by Mr. Kar, Mr. Chowdhury would contend, those decisions were not rendered considering Rule 3A of Order XXIII.

Mr. Sudhis Dasgupta, learned senior counsel, appearing for Basundhara while giving reply would contend, Order XXI Rule 97 was not the proper remedy. He would rather support the proposition that was advanced by Mr. Chowdhury. Mr. Dasgupta would rely upon the Apex Court decision in the case of Razia Begum Vs. Sahebzadi Anwar Begum and Others reported in All India Reporter 1958 Volume-45 Supreme Court Page-886.

OUR VIEW :

If someone has a lawful right to claim redressal, he cannot be remediless. In any Civil Suit that would relate to vindication of personal right, the result would only bind the parties to the suit and not an outsider. The logic is obvious. When a suit is brought the defendant is notified. The adjudication is made on the basis of the plaint case and the defendant’s version in the written statement.

Such adjudication cannot in any way directly or indirectly affect a third party interest when such third party had an interest independent of the parties to the suit.

In a suit for specific performance, the parties would vindicate their personal right. Plaintiff would press for performance of a private agreement entered into by him with the defendant. Once such right is adjudicated and a decree is passed that decree would bind only the defendant or any person claiming under him. If a third party has an independent right, such right in no stretch of imagination cannot be touched by the decree passed in such suit.

The present suit being Civil Suit No. 406 was filed by Vandana for specific performance of a contract entered into by Dawns intending to sell the property to Vandana. Vandana and Dawns settled the suit by which Vandana agreed to have the conveyance in favour of Mongla Hat and Gajanand Agency in equal shares. Accordingly, conveyance was executed. Such sale in favour of Gajanand Agency and/or Monglahat would have no baring on any relationship or privity of contract that the Mimanis had with Dawns.

Mimanis would contend, there was violation of the Court order. If an order of Court is violated the parties would have remedy in law by approaching the Court that passed the order inter alia asking for issuance of a rule of contempt. Mimanis did not avail such remedy. Civil Suit No. 406 did not take care of the alleged agreement of Mimanis with Dawns. The compromise decree between Dawns and Vandana would have no baring on the so-called agreement of Mimanis with Dawns.

The learned Judge very rightly declined to recall the decree. Even if we permit the decree to be recalled and restore the suit, it would have no effect on the Mimanis’ so-called agreement.

We fail to appreciate, when the plaintiff and the defendant agreed to resolve their personal controversy how the Court could still insist the suit to be heard on contest. It would be a ridiculous proposition. Mr. Chowdhury would contend, he did not ask for addition. He prayed for intervention. How his intervention would help the Court, is not clear to us. His suit is still pending and awaiting its disposal. If he wants to make any grievance against Dawns he should make it in his suit and that may be the right forum for him.

Similarly, in case of Basundhara, the compromise decree did not mention about possession as the suit before this Court was not competent to deal with the possession part having the properties admittedly situated outside the territorial jurisdiction of this Court. Basundhara would contend, they were still in possession. We do not know how the compromise decree could help the new purchasers to recover possession if they so want. Even if they make an attempt to do so Basundhara would immediately take recourse to Order XXI Rule 94 to 101 of the Code of Civil Procedure by resisting such attempt that would be lawful. In such event, the Executing Court would have to deal with the grievance of Basundhara. In this regard, we may refer to two Apex Court decisions cited at the bar being the case of Kasturi (supra) and Bharat Karsondas Thakkar (supra). In a case of like nature, two Benches of the Apex Court dealt with the issue. In the case of Kasturi (supra) the Apex Court was of the view, a third party could not be a necessary party in a suit for specific performance and Order I Rule 10 of the Code of Civil Procedure could not have any role to play. Their Lordships considered Section 19 of the Specific Relief Act in this regard and observed, the suit for specific performance could only be made between the parties mentioned in Sub- sections (a) to (e) of Section 19. Any other person not listed therein would have no locus to intervene. Mr. Chowdhury contended, since the wrong was c

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ommitted while obtaining the decree in a fraudulent manner, he would have right of intervention. The Apex Court considered identical submission and observed, they would be at liberty either to obstruct execution of the order to disturb their possession by taking recourse to the relevant provisions of Code of Civil Procedure if they are available to them, or file an independent suit for declaration of title and possession. The Apex Court further observed, 'if the decree is passed in favour of the appellant and send it for execution the stranger to the contract being the respondent have to be sued for taking possession if they are in possession of the decretal property'. The other decision in the case of Bharat Karsondas Thakkar (supra) another Bench of the Apex Court considered the issue of the like nature and similarly observed and held, 'The scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession. A third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character'. These two decisions would squarely support the judgment and orders impugned. In the litigation at the instance of Mimanis, Mimanis deposited Rs.163 lacs as and by way of performance of their obligation under the contract. It was a unilateral Act on the part of Mimanis. Their suit is still to be finally disposed of after having their oral agreement established in Court. In any event, Mimanis not being a party to the agreement for sale could not be a party to the suit. Being a non-party to the suit they were not entitled to ask for setting aside of the decree or challenge implementation of the same. With regard to Basundhara, their suit is still awaiting disposal. They would claim to be in possession. Their possession was not disturbed by the compromise decree. In any event, being a non-party to the agreement they also could not be made a party to the present suit and the decree could not be recalled at their instance. The judgment and order passed by the learned Judge in case of Basundhara would also deserve no interference. The appeals fail and are hereby dismissed without any order as to costs.
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