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Milon Roy Chowdhury v/s Ashis Kumar Saha & Others


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- B. ROY CHOWDHURY & CO PVT LTD [Strike Off] CIN = U51909WB1988PTC044053

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    C.A.N. No. 2813 of 2018 In F.M.A.T. No. 429 of 2018

    Decided On, 31 August 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DIPANKAR DATTA & THE HONOURABLE MR. JUSTICE SHAMPA SARKAR

    For the Applicant: S.P. Roy Chowdhury, Hiranmoy Bhattacharya, Tanmoy Mukherjee, Advocates. For the Respondents: R1, Probal Kr. Mukherjee, Pradeep Kumar, Srinibash Mishra, Advocates.



Judgment Text

Shampa Sarkar, J.

1. This appeal has been filed by the added defendant no. 6 in Title Suit No. 60 of 2014 (hereinafter referred to as the said suit) being aggrieved by and dissatisfied with the judgment and order dated April 25, 2018 passed by the learned Civil Judge (Senior Division), 2nd Court at Howrah in the said suit.

2. By the judgment and order impugned, an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure filed by the plaintiff/respondent no. 1 was allowed on contest with a direction upon the plaintiffs and the defendants to maintain status quo with regard to the schedule property as mentioned in the application for injunction till disposal of the suit. The schedule properties as mentioned in the applications are set out hereinbelow:

SCHEDULE – ‘A’ (1)

All that the piece and parcel of undivided 2 Katha 6 Chittak Bastu land with 100 sft of structure standing thereon situated within Dag No. 3996, C.S.Dag No. 3485/3532, Khatian No. 564, J.L.NC 16, Mouza – Barrackpur, Holding No. 27/57 B.K.Paul/Temple Road, P.S. Belur the then P.S. Bally, District – Howrah, as mentioned in the registered Agreement for Sale being No. 7308/2013, registered in Book No.I, C.D.Volume No. 15, pages from 5643 to 5658 registered before the A.D.S.R., Howrah.

SCHEDULE – ‘A’ (2)

All that the piece and parcel of undivided 15 Chittaks Bastu land with 100 Sft of structure standing thereon situated within Dag No. 3996, C.S. Dag No. 3485/3532, Khatian No. 1350, J.L. No. 16, Mouza – Barrackpur, Holding No. 27/57, B.K.Paul Temple Road, P.S. Belur, the then P.S. Bally, District-Howrah, as mentioned in registered agreement for Sale being No. 7407/2013, registered in Book No.I, C.D.Volume No. 15, pages from 7767 to 7783, registered before the A.D.S.R., Howrah.

3. The respondent no.1, as the plaintiff, along with one Bijan Basu instituted the said suit for declaration, specific performance of contract and for permanent injunction in respect of Schedule ‘A’ (1) and ‘A’ (2) properties as mentioned hereinabove against the defendant no. 1 to 5/proforma respondents herein. The appellant was added as the defendant no. 6 in the said suit, by an order dated December 23, 2014.

4. The respondent no. 1 along with the said Bijan Basu filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, inter alia, praying for a temporary injunction restraining the defendant no. 5 therein from changing the nature and character of the schedule property and from alienating or transferring the same in favour of any third party. Before the addition of the appellant as the defendant no. 6, by an order dated May 26, 2014 an ad-interim order of injunction was passed restraining only the defendant no. 5 (vendor of the appellant) from changing the nature of the character of the suit property.

5. During the pendency of the application for injunction, the said Bijan Basu, who was originally plaintiff no. 2 in the said suit, filed an application for striking out his name from the cause title of the said suit.

6. By an order dated March 25, 2015, the learned Judge in the court below allowed the application filed by the plaintiff no. 2, thereby expunging his name as the plaintiff no. 2 from the cause title of the said suit as a result of which, the respondent no. 1 became the sole plaintiff in the said suit.

7. It is thereafter that the impugned judgment and order was passed by the learned Judge, the correctness of which is questioned is this appeal. An application for stay of operation of the order impugned in this appeal has been filed.

8. At the stage of admission of the appeal under Order 41 Rule 11 of the Code of Civil Procedure, we decided to take up the appeal for final hearing on consent of the parties.

9. The plaintiff’s case is that he and the said Bijan Basu had entered into a contract for sale by two separate agreements, one on September 11, 2013 with one Jayanti Bala (since deceased) in respect of the ‘A’ (1) schedule property and the other on September 11, 2013 with Jayanti Bala Chatterjee, Dilip Chatterjee and Anjan Chatterjee in respect of the ‘A’ (2) schedule property. It was alleged that Jayanti Bala Chatterjee and others refused to execute the sale deed and finally returned the two cheques of Rs. 50000/- after the death of the said Jayanti Bala. Thereafter the plaintiffs on several occasions requested the defendant no. 1 and 2 to execute and register the deed, but the same was not heeded to and subsequently the plaintiffs came to know that Kishan Kumar Bidasaria, the defendant no. 5 had purchased the entire property situated at 27/57, B.K. Paul Temple Road. That the plaintiffs came to know that by a deed of gift, late Jayanti Bala transferred 2 cottahs 11 chittaks 28 sq ft of the property at 27/57 B.K. Paul Temple Road in favour of the defendant no. 1 and by another deed of gift, the defendant no. 2 and 3 transferred 7 chittaks 84 sq ft at 27/57 B.K. Paul Temple Road in favour of the defendant no.1. Ultimately the entire property was sold in favour of the defendant no.5. The plaintiffs came to know that late Bipro Ranjan Chatterjee, the original owner of the entire property at 27/57 B. K. Paul Temple Road, at the time of his death, left behind his wife Jayanti Bala Chatterjee, two sons and two daughters, which were suppressed by Jayanti Bala Chatterjee (proposed vendor) and she died on January 11, 2014 leaving behind her the defendants/respondents 1 to 4 as her legal heirs who were, according to the plaintiffs, under obligation to execute the deeds in favour of the plaintiffs. The plaintiffs were always ready and willing to perform their part of their contract.

10. The plaintiffs prayed for specific performance of the contract for sale of the schedule properties and for a further direction upon the defendant no. 5 to register the sale deed in their favour in respect of ‘A’ (1) and ‘A’ (2) schedule properties by declaring the deed of sale subsequently executed in respect of the defendant no. 5 as illegal and inoperative.

11. The plaintiffs, filing the application for injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, alleged that the defendant no. 5 had visited the suit property with some unknown persons and brokers for the purpose of selling out the same and unless the defendant no. 5 was restrained from alienating and/or transferring the suit property as also from changing the nature and character of the same, the plaintiffs would suffer irreparable loss and injury.

12. The appellant, after being added as the defendant no. 6 in the said suit, filed a written objection to the application for injunction and denied the allegations made therein. He denied the factum of existence of an agreement for sale in respect of ‘A’ (1) and ‘A’ (2) schedule properties as claimed by the plaintiffs. According to the appellant, he had possessed the said suit property on and from the dates of purchase, that is, August 17, 2014 and August 24, 2014 and has been continuously possessing the same without any interruption, after his purchase by two separate deeds of sale from the defendant no. 5. The appellant prayed for dismissal of the application for injunction.

13. However, the said application for injunction succeeded before the learned Judge, as noticed above.

14. Controverting the application for stay of operation of the order impugned, the plaintiff/respondent no. 1 filed an affidavit-in-opposition before us. He stated that for violation of an ad-interim order of injunction passed by the learned Judge earlier, an application was pending in the court below giving rise to Miscellaneous Case No. 18 of 2018. It was further stated that the appellant had already constructed a two storied building, thereby violating the ad-interim order of injunction dated May 26, 2014. Also, it was stated that the appellant had transferred some of the newly constructed flats to other persons, thereby creating third party interests and would further encumber the suit property, causing irreparable lose and injury to the plaintiff/respondent no.1.

15. On behalf of the appellant, it was submited by Mr. S.P. Roy Chowdhury, learned senior advocate, that ‘A’ (1) and ‘A’ (2) schedule properties consisted of 2 cottahs 21 chittaks of land and once the plaintiff no. 2, namely, Bijan Basu withdrew from the suit by getting his name struck off from the cause title of the plaint, the plaintiff/respondent no. 1, at best, could have a claim over 1 cottah and 10 chittaks of land in case of his success in the said suit. He further submitted that the court below erred in passing an order of status quo in respect of the entire 9 cottahs of the property situated on 27/57 B.K. Paul Temple Road. According to him, the learned Judge passed the order of status quo without considering the balance of convenience and inconvenience which was in favour of the appellant, as, the appellant had already invested a lot of money and had developed the property and constructed a building thereon and had sold flats to buyers and was in the process of selling the other flats. The order of status quo, according to him, would create serious inconvenience to the respondent no. 1. It was also submitted that the learned judge ought to have taken into consideration the measurement of the suit property vis-a-vis, the plaintiff’s share therein before passing an order of status quo over the entire 9 cottahs. Reliance was placed on the decisions, namely Bepin Krishna Sur and ORS. VS. Gautam Kumar Sur and ORS reported in 85 CWN page 393, Dalpat Kumar and others vs. Prahlad Singh and others reported in AIR 1993 Supreme Court 276, and Purna Chandra Das vs. Warren Industrial Ltd. and another, reported in 95 C.W.N 1002.

16. It was argued by Mr. Prabal Mukherjee, learned senior advocate appearing on behalf of the plaintiff/respondent no. 1 that the suit property had already been sold twice before and if the order of status quo would not have been passed, the respondent no.1 would create more third party interests, which would frustrate the claim of the plaintiff and also lead to multiplicity of proceedings. According to him, the provisions of Order 39 Rules 1 and 2 of the Code of Civil Procedure clearly demonstrate that notwithstanding the rule of lis pendens under section 52 of Transfer of Property Act, there can be an occasion for the grant of injunction restraining pendent lite transfers in a fit and proper case. It was contended by him that the case in hand was a fit case in which an order of status quo in respect of the suit property was required to be passed. He relied on the decisions in Sm. Muktakesi Dawn and others vs. Haripada Mazumdar and another reported in AIR 1988 CAL. 25 and Sujan Maity vs. Raj Kumar Koley and others reported in AIR 2017 CAL. 63.

17. We have heard the rival contentions of the parties. We had asked the appellant to produce some official document to show the approximate market value of the suit property. He has produced an assessment slip issued by the Government of West Bengal, Directorate of Registration and Stamp Revenue which reflects the market value of the suit property, over which the dispute revolves, as approximately Rs. 21,54,028/-. The said assessment slip has been taken on record. The plaintiff has also filed an assessment slip issued by the Government of West Bengal, Directorate of Registration and Stamp Revenue showing the market value of a flat situated on 27/57, B. K. Paul Temple Road, measuring 1000 sq ft to be 32,10,000/- The said slip has also been taken on record.

18. It is settled law that breach of contract must ordinarily sound in damages. The grant of specific performance being discretionary, the same may be refused if the ends of justice do not so warrant. It is equally well settled that no interim relief can be granted unless it is in aid of final/substantive relief claimed in the suit. Now, if at the interim stage it is doubtful as to whether the court would be in a position to grant the final relief in terms, as claimed, grant of an interim order which is not in aid of the final relief would be beyond the court’s jurisdiction. This aspect of the matter has to be borne in mind while proceeding to decide this appeal.

19. By the order impugned, the learned Judge while deciding the application for injunction ordered status quo to be maintained in respect of the entire property measuring 9 cottah, more or less, although the plaintiff/respondent no. 1, even if he were to succeed in his claim, would be entitled to 1 cottah, more or less. It is here that the learned judge failed to decide with reasons how the factors of balance of convenience and irreparable loss and injury were in his favour, which are the pre-conditions for grant of an order of injunction.

20. In Bepin Krishna Sur (supra) it has been held that when an order of injunction may cause undue hardship to a party or has caused adverse repercussion which was disproportionate to the need for which the same had been passed, the court in its discretion may discharge, vary or modify the said order. In our view, when the plaintiff no. 2 had withdrawn from the suit, the claim of the respondent no. 1 as the sole plaintiff was limited to 1 cottah and 10 chittaks of land and the order of status quo over the entire 9 cottah of land was disproportionate to the need for which the same had been passed. The order would cause undue hardship to the appellant. It also appears that the learned Judge proceeded on the basis, as if, both the plaintiffs were pursuing the suit, although the plaintiff no. 2 had already withdrawn from the suit before the disposal of the application for temporary injunction.

21. In Dalpat Kumar (supra), it has been held that the court has to exercise sound judicial discretion in granting an injunction in the suit. Paragraph 5 of the said judgment is quoted below:

'Paragraph 5: Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is ‘a prima facie case’ in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in 'irreparable injury' to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that 'the balance of granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subjectmatter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.'

22. The decisions relied upon by Mr. Prabal Mukherjee were rendered on the facts of those cases, which are distinguishable and hence have no application in the facts of the instant case.

23. We accept the submission of Mr. S. P. Roychowdhory, that, the order of status quo over the entire 9 cottahs of the suit property was harsh and disproportionate to the relief claimed. The court in such cases is normally governed by the consideration as to the comparative mischief and inconvenience to the parties which may arise from granting or withholding the injunction and in doing so, the court should take care so as to frame its order in such a way that it does not deprive either party of the benefit it was entitled to, if in the event it turned out that the party in whose favour the order was made was in the wrong. If it appears upon balancing the convenience and inconvenience that greater damage would arise to the defendant by granting an injunction in the event it turned out afterwards that the same was wrongly granted, in such a case, injunction should not be granted. The court below failed to consider the balance of convenience and inconvenience on the basis of the above principle. Further, it can not be lost sight of that the burden lies upon the plaintiff, as the person who is applying for the injunction, of showing that his inconvenience exceeded that of the defendant’s. The plaintiff in the instant case ought to have made out a case of comparative inconvenience, entitling him to an interference by the court. While adjudicating balance of convenience and inconvenience, the court should also take into consideration, the means it has of putting the party who would be ultimately successful, in the position he would have stood if his legal rights had not been interfered with.

24. Reference may be made to chapter III of 'Kerr on Injunction' Sixth Edition, wherein it has been discussed as follows:

'The court may often by imposing terms on one party, as the condition of either granting or withholding the injunction, secure the other party from damage in the event of his proving ultimately to have the legal right. It the Court feels that it can by imposi

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ng terms on the defendant secure the plaintiff, in the event of the legal right being determined in his favour against damage from what may be done by the defendant in the meantime, and the defendant is willing to accede to the terms required by the Court; an injunction will not issue.' 25. The balance of convenience in our view is in favour of the appellant, considering the amount of investment in the project comprising over 9 cottahs, in contrast to the plaintiff’s claim involving only 1 cottah and 10 chittaks of the property. Thus, we hold that the plaintiff/respondent no. 1 could have been protected appropriately by the learned Judge, without granting the order of status quo in respect of the entire 27/57 B. K. Paul Temple Road. 26. The order impugned dated April 25, 2018 passed by the learned Judge on the application for temporary injunction is hereby set aside. However, we think it fit that the respondent no. 1, during the pendency of the suit, should be protected to the extent of his claim. We, after taking into consideration the assessment slips produced by both the parties, direct the appellant to deposit Rs. 25,00,000/- in the trial court, within a fortnight without prejudice to the rights and contentions of the parties to the suit. The said amount shall be invested by the learned Judge to his satisfaction on such terms and conditions which the learned Judge would deem fit and proper, which shall abide by the result of the said suit. We further request the learned judge to dispose of the suit expeditiously. 27. The appeal and the application are disposed of. There shall be no order as to costs. 28. Needless to mention, the observations made in this judgement are only for the purpose of decision on this appeal and the trial court shall be free to draw its own conclusions based in the evidence on record while deciding the suit finally. 29. Urgent Photostat certified copy of this judgment, if applied for be given to the parties on priority basis.
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02-02-2018 Dr. Kunal Saha & Another Versus Principal Secretary, Department of Health And Family Welfare, Government of West Bengal & Others High Court of Judicature at Calcutta
10-01-2018 Chittaranjan Saha & Others Versus Arun Kumar Das High Court of Judicature at Calcutta
08-01-2018 Tapati Saha & Others Versus Sukumar Dutta & Another High Court of Judicature at Calcutta
04-01-2018 Joydeb Saha Versus Mihirlal Mukherjee High Court of Judicature at Calcutta
02-01-2018 Shanti Dey @ Santi Dey Versus Sri Suvodeep Saha High Court of Judicature at Calcutta