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2002 DIGILAW 466 (CAL)

DOVER PARK BUILDERS PVT. LTD. v. MADHURI JALAN

2002-07-18

KALYAN JYOTI SENGUPTA

body2002
KALYAN JYOTI SENGUPTA, J. ( 1 ) THIS application has been taken out by the defendants for permission of this Court allowing them to take steps for transferring, selling the suites or flats to be constructed in the proposed building in the said premises, along with proportionate share of the land by entering into agreement. The present application was filed in the Learned Court of Initiation, namely, the Court of the Learned Second Assistant district Judge at Alipore and this was not disposed of during pendency of the suit in the above Court. This application was taken out by the original defendant No. 1, along with other defendants and by passage of time, much-water has flown through the ganges. Meanwhile, the defendant No. 1 died, surviving his wife as the heiress and legal representative, who has been brought in the suit and is proceeding with this application. I feel it necessary to narrate short facts of the case and the circumstances in which the present application has been taken out, as put forward by the petitioner. ( 2 ) THE original defendant No. 1, namely, one Mahabir Prasad Jalan since deceased obtained a lease for 99 years on 1st June 1996, of the suit premises from one Murari charan Law being the owner of the said premises. Similar long lease was granted by the said owner in respect of the premises no. 14 Dover Park Road, being the adjoining premises in favour of two brothers of the defendant No. 1, including the plaintiff No. 2. It is the case of the petitioner that the defendant No. 1, thereafter, decided to develop the suit premises by constructing a residential complex and obtained necessary sanction and permission of various authorities, including Calcutta Municipal Corporation (C. M. C.) consisting of basement, ground floor partly 6th and partly 7th floor covering approximately 10536. 50 sq. m. The original defendant No. 1 with the help of various developers, architects and financier started construction of the building and completed up to ground floor level. The present suit was filed by the plaintiff Nos. 2 to 4, claiming decree for specific performance of an oral agreement said to have been entered into by the defendant No. 1 with the plaintiff No. 1 company. The present suit was filed by the plaintiff Nos. 2 to 4, claiming decree for specific performance of an oral agreement said to have been entered into by the defendant No. 1 with the plaintiff No. 1 company. It is alleged that such agreement was for assignment for right, title and interest of the petitioner in respect of the said premises in favour of the plaintiff No. 1 company. After filing of the suit an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure was made praying for temporary injunction, restraining the original defendant No. 1 from transferring, vacating and dealing with the said premises. On final hearing the said application under order XXXIX Rules 1 and 2 of the CPC the learned Trial Judge dismissed the same. Thereafter, the plaintiff preferred an appeal against the said order of dismissal in this hon'ble Court, the appeal was heard and disposed of by the following interim order dated 17th August 1994 :"regard being had to the entire facts and circumstances of the present case we are of the view that since the sanctioned plan stand in the name of Mahabir Prasad Jalan showing him to be the owner of the property, he has rights and competence to go on with the construction of the proposed building at the site strictly in accordance with the sanctioned plan. But then in the fitness of things we should not allow any rights in favour of any third parties to be created during construction or immediately after the completion thereof and would pass a limited order of injunction restraining the defendant respondents from in any manner dealing with, encumbering, transferring and selling the property or part thereof including the suites or flats in the proposed building without the prior permission from the Court below. " ( 3 ) THE plaintiff Nos. 1-4 sought to prefer an appeal against the aforesaid judgment and order of the Division Bench to the hon'ble Supreme Court of India, however, the Special Leave Petition was dismissed by the Hon'ble Supreme Court of India. " ( 3 ) THE plaintiff Nos. 1-4 sought to prefer an appeal against the aforesaid judgment and order of the Division Bench to the hon'ble Supreme Court of India, however, the Special Leave Petition was dismissed by the Hon'ble Supreme Court of India. ( 4 ) BY the judgment and order dated 17th august 1994 the Division Bench of this court was pleased to give direction upon the learned Trial Judge for hearing the suit within a period of three months from the date of passing of the said order with utmost expedition, continuously day to day hearing immediately after pleadings were completed and issues were framed. ( 5 ) IT is the case of the petitioner that in spite of the aforesaid direction because of tile various dilatory tactics being adopted by the plaintiff the suit could not be heard within a period of three months. The original defendant No. 1 being the petitioner herein having found impossibility of the suit being heard out and disposed of at an early date, filed the present application pursuant to the observation and leave granted by the appeal Court. ( 6 ) IT is appropriate to record that this application was kept pending by the petitioner after the suit being transferred, this was heard from time to time by Hon'ble Justice sujit Kumar Sinha (as His Lordship then was) and few orders were passed which do not have any effect of finality. Justice Sinha gave direction upon the C. M. C. with regard to renewal of the sanction plan as by that time validity threof expired. Keeping this application pending, a fresh application for the similar and identical relief was taken out by the defendant No. 1, enclosing fresh material. This application was being heard by me for some times, and as it was detected and, further pointed out to me about the pendency of this application I decided to stop hearing of the subsequent application. ( 7 ) IN any way, there is hardly any change of the facts and circumstances in the passage of time excepting renewal of the sanction plan by the C. M. C. for another period of five years, commencing from 1999 till 2004. ( 8 ) MR. ( 7 ) IN any way, there is hardly any change of the facts and circumstances in the passage of time excepting renewal of the sanction plan by the C. M. C. for another period of five years, commencing from 1999 till 2004. ( 8 ) MR. Ajoy Kumar Chatterjee Learned senior Advocate appearing in support of this application contends that there is no em-bargo under the law to make application for appropriate interlocutory relief, by way of variation and setting aside previous inter-locutory order made under Order XXXIX rule 4 of the CPC. In support of his contention he has relied on the decision of the division Bench of this Court reported in 1981 (85) CWN 393. ( 9 ) HE contends if the order is passed as prayed for on this application by this Court it may tantamount to disposal of the suit itself. Such course of action is not absolutely forbidden in appropriate cases. ( 10 ) THE balance of convenience overwhelmingly lies in favour of passing an,order as prayed for on the application of the defendant in as much as there has been stiff rise in prices of the building materials and wages of the labours. Moreover, the validity period of the sanction plan is going to be extinguished after 4 years and perhaps, no further renewal shall be granted to the plan and in that case if the defendant has to wait for disposal of the suit the fresh sanction to the plan has to be obtained. In accordance with the sanctioned plan the petitioner's predecessor-in-interest had already constructed up to the ground floor level and if the building is not allowed to be constructed and new sanction is required to be obtained then the present plan may not be approved of, and in that case entire investment, which has already been done will be absolutely useless resulting pecuniary loss and damages. On the other hand, if the building is allowed to be constructed as prayed for, then nobody will suffer loss and prejudice and in the event the suit is decreed, eventually the plaintiff will get the right of constructed portion of the premises as well. In support of his submission he has relied on the following decisions AIR 1993 SC 63 (sic) AIR 1993 sc 1293 (sic), AIR 2000 Bom 57 , AIR 1993 cal 39 . ( 11 ) MR. In support of his submission he has relied on the following decisions AIR 1993 SC 63 (sic) AIR 1993 sc 1293 (sic), AIR 2000 Bom 57 , AIR 1993 cal 39 . ( 11 ) MR. Pijus Kanti Dutta Senior Advocate appearing on behalf of the plaintiffs opposing this application submits that the present application should be dismissed, as the defendant has no locus standi to seek for any Interlocutory relief in the plaintiffs suit. He submits further that in the event the prayer made herein is granted, then this amounts to dismissal of the suit altogether. The defendant has not filed suit nor has filed any counter claim. Moreover, If the order of the Appeal Court is construed properly, then it would appear that the defendant is entitled to construct the building at their own costs or their own resources and no third party's right can be created for the purpose of raising and mobilizing funds. The whole idea of the defendant No. 1 is to sell the entire suit premises to the third parties in breach of the prohibitory Order of Injunction granted by this Court. He further submits that while reading any order, harmonious construction should be given by the court. If the relevant portion of the order is read carefully, then it would appear the order of injunction is absolute. ( 12 ) HE contends further that this application was kept pending from 1997 and the defendant No. 2 has been waiting for last five years and there is no reason why the defendant No. 2 will not wait for another six months or so, particularly when the suit is ready for hearing and in fact, the hearing of the suit at one point was started but because of the defendant's obstructive attitude in course of hearing of the suit no progress could be achieved. ( 13 ) HAVING heard the respective contentions of the learned counsel at the first place it would be my endeavour to find out whether, in the plaintiffs suit the defendant can obtain any interlocutory relief or not, in the facts and circumstances of this case. ( 14 ) THE provision of Order XXXIX Rule 4 of the CPC is clear enough to enable any of the parties to apply for discharge, variation or setting aside of any order of injunction. ( 14 ) THE provision of Order XXXIX Rule 4 of the CPC is clear enough to enable any of the parties to apply for discharge, variation or setting aside of any order of injunction. This application may be made by the plaintiff or by the defendant suiting to the need of the parties on the subsequent facts and circumstances of the case. Order XXXIX, Rule 4. Order for injunction may be discharged, varied or set aside. Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order. Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice. Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party. " ( 15 ) THE aforesaid wordings of the Rule 4 clearly manifests my aforesaid observations. The aforesaid provision not only enables the defendant but the plaintiff, who at one point of time obtained interlocutory order of injunction to deal with an appropriate situation but on subsequent development the earlier order of injunction may be varied and/or discharged and/or vacated at the instance of the plaintiff also. There may be situation when order of injunction later on may be found to be ineffective because of subsequent development of situation, in such circumstances initial order of injunction will be required to be varied and/or discharged and/or vacated to suit equitable situation. Similarly on a subsequent development in order to avoid irreparable loss and injury the defendant may apply for discharge, vacating or variation of the initial order of injunction though heard earlier on contest. Similarly on a subsequent development in order to avoid irreparable loss and injury the defendant may apply for discharge, vacating or variation of the initial order of injunction though heard earlier on contest. ( 16 ) THE object of passing interlocutory order is to see that the relief, which might be granted, finally may not be rendered infructuous and that just and lawful or for that matter the interest of both the parties during pendency of the suit may not be jeopardized irretrievably. I find support in favour of these views of mine from the Division bench Judgment of this Court as cited by Mr. Chatterjee reported in 1981 (85) CWN 393. In paragraph 9 of the aforesaid judgment it is observed as follows :"9. The expression "change in circumstances" is referable to alteration in conditions or events which are pertinent to the injunction matter. Thus, when after a temporary injunction is granted, there is a change in the relevant circumstances, it might become necessary to discharge, vary or modify order of temporary injunction. Thus, the Court may take into account the subsequent events. Again, in case, an undue hardship is caused by an order of temporary injunction, the Court has been empowered to exercise its powers under Order 39 Rule 4 of the Code. After all, both permanent and temporary injunctions are equitable and therefore, discretionary reliefs. Therefore, the Court under the second proviso to Rule 4 may discharge, vary or set aside an order of temporary injunction when it is satisfied that the same had caused undue hardship to a party who had made the application "hardship" according to the common parlance, means "harsh or oppressive treatment or injustice". When an order of temporary injunction has caused adverse repercussion which the sama had been passed, the Court, in its discretion, may discharge, vary or modify the said order. " ( 17 ) THE above judgment has been approved by a Division Bench and Full Bench of this Court, reported 1987 (91) CWN (DB) and 2000 (2) CHN 139 (FB ). ( 18 ) THEREFORE, I find some substance in the argument of Mr. Chatterjee and I without any hesitation hold in view of the aforesaid discussion and provision the defendant has right to maintain this application. ( 18 ) THEREFORE, I find some substance in the argument of Mr. Chatterjee and I without any hesitation hold in view of the aforesaid discussion and provision the defendant has right to maintain this application. ( 19 ) THE aforesaid provision un-mistakably shows that variation, discharge and vacating of interlocutory order can only be made by the Court, which has granted such order. Here the order of injunction was granted by the Appeal Court on refusal to grant by the Learned Trial Court, therefore, ordinarily going by the wording of Order xxxix Rule 4 of the Civil Procedure Code the petitioner would have to approach the division Bench of this Court for the Appeal, but for the leave reserved in the Order itself the defendants approached the Learned trial Judge that is now being dealt with by me. ( 20 ) I am unable to accept submission of mr. Dutt, which according to me is apparently absurd that if I vary or modify the order of injunction granted by the Appeal court it would not be deemed to be variation of order of the Appeal Court by me in exercise of my jurisdiction of the Trial Court and I may perhaps be committing judicial indiscipline. The argument of Mr. Dutt would have been much relevant and helpful, had there been no leave reserved for the defendant by the expressed words "without the prior permission from the Court below" ( 21 ) IT is futile to contend that the defendant cannot take out this application, as the Appeal Court did not grant such permission. In my view, permission or no permission when the law enjoined the right to the litigating parties to approach the Court for further interlocutory reliefs one can approach the Court straight way if it causes undue hardship. ( 22 ) NOW in this case whether there exist subsequent facts or development or any other circumstances which will be causing undue hardship to any of the parties or not, for which variation, discharge of the initial order of injunction pursuant to the leave of the Appeal Court is necessary, has to be examined. ( 22 ) NOW in this case whether there exist subsequent facts or development or any other circumstances which will be causing undue hardship to any of the parties or not, for which variation, discharge of the initial order of injunction pursuant to the leave of the Appeal Court is necessary, has to be examined. ( 23 ) AS I understand the case made out in the plaint is that the plaintiff at the highest can get a decree for specific performance for assignment of the leasehold interest together with the right to construct building in accordance with the sanctioned plan granted in the name of the original defendant no. 1. The plan was sanctioned in his favour and it was renewed so, on inheritance the benefit of the sanctioned plan will also devolve upon the heirs and legal representatives. This has been held by the learned Single Judge of this Court in a decision reported in AIR 1993 CAL 39 . ( 24 ) THEREFORE the plaintiff on obtaining a decree will have to construct the building in accordance with same sanctioned plan in terms of the alleged agreement as pleaded by the plaintiff itself. The defendants are also keen to construct the building on the basis of the same sanctioned plan. On asking Mr. Dutt, Senior Advocate, appearing on behalf of the plaintiff in no uncertain terms conceded during course of hearing that his client after obtaining an assignment in the event the suit is decreed, will construct the building in accordance with the same sanctioned plan, and indeed it is his client who was instrumental in obtaining sanction and renewal thereof and thereafter respective flats will be sold out to third parties after construction is completed. He also submits that his client is also prepared to complete construction if the Court permits so. ( 25 ) THEREFORE, in my view the construction of the building can be permitted in respect of the same sanction plan and as a matter of necessity it is required to be done considering balance of convenience as the plan has already been sanctioned and renewed up to 2004 and one cannot say with definite certainty whether further renewal will be granted. In the event further renewal is not allowed then the construction up to the ground floor level will have to be destroyed and in accordance with the new sanctioned plan the lay out has to be done, and sequelly entire cost which has already been incurred will be totally wasted. In such circumstances within the tenure of the renewed period the construction of the building has to be completed. ( 26 ) IN view of the observation of the Appeal court's judgment and order dated 17th august 1994 until and unless the decree is passed the plaintiff cannot have any right or competence to go on with the construction of the alleged building and as a matter fact the Appeal Court did not restrain the original defendants from completing construction but restriction against parting with and/or encumbering the property to the third party has been imposed during construction or after construction without leave of the Court. ( 27 ) UNDER such circumstances it is anxiety of this Court whether such permission should be granted to the present petitioner being the defendant No. 1a. After giving a thoughtful consideration to the respective submission and considering the balance of convenience and inconvenience if the absolute permission is given to the defendant 1a to transfer and alienate any portion of the property during construction or after completion of construction then nothing will remain in the suit and that amounts to dismissal of the suit itself, in as much as by that time third party's interest will be created. Furthermore, actual consideration to be paid by the prospective buyer may not be disclosed to the Court as well as the plaintiffs, in view of the lifting, of the statutory safeguard against transaction at an under valuation as had hitherto been provided under Chapter XX-C of the Income Tax Act 1961. It is submitted by Mr. Chatterjee that any transaction for sale of the flats for the purpose of raising funds will be subject to supervision or control of the Court and after deducting the actual cost the balance amount will be kept deposited with the Court till the disposal of the suit finally and this will safeguard the interest of both the parties. Chatterjee that any transaction for sale of the flats for the purpose of raising funds will be subject to supervision or control of the Court and after deducting the actual cost the balance amount will be kept deposited with the Court till the disposal of the suit finally and this will safeguard the interest of both the parties. ( 28 ) IT appears to me that neither of the parties has any means to invest its own funds for raising construction, the petitioner though prays that the plaintiff would be directed to put in fund for completion of construction alternatively. Such idea, at this stage, cannot work. Therefore, I am of the view, the following course of action would sub serve interest of both the parties. (A) The defendant/petitioner would be at liberty to complete the building in terms of the plan already sanctioned or renewed either on her own cost and/or own risks, or raising fund from third party without creating encumbrance by transferring, alienating respective flats and suites to be built in the suit premises during construction or after completion, but there shall not be any transfer of any portion of the building. (b) In the event the defendant wants to raise fund by transferring and selling the proposed flats to the prospective buyers then whenever any agreement is entered into by the defendant with the third party a copy of such agreement may be given to the plaintiffs advocate-on-record. On receipt of such agreement if the plaintiffs can procure any purchaser at a higher price than that of the offer of the intending purchaser procured by the defendant then the defendant shall sell the flat or flats to those prospective buyers who will come through the plaintiffs. For this purpose the plaintiff would get 30 days time to procure such higher offer, in default the defendant would be at liberty to sell the flat and complete the transaction. (c) Entire consideration money shall have to be received by the defendant, by account payee cheques. (d) The defendant shall keep detailed and true accounts of expenditure on account of the construction, as well as the income from such sale of the flats and monthly statement of account shall be submitted to the plaintiffs' advocate-on-record. (c) Entire consideration money shall have to be received by the defendant, by account payee cheques. (d) The defendant shall keep detailed and true accounts of expenditure on account of the construction, as well as the income from such sale of the flats and monthly statement of account shall be submitted to the plaintiffs' advocate-on-record. (e) The defendant shall not spend any amount excepting on account of the construction costs and shall keep the balance deposited with her Advocate-on-record who shall keep In the Bank Account separately and shall not withdraw any amount therefrom without leave of the Court. ( 29 ) ANY dispute arises as regard the head of expenses of the construction, the parties would be entitled to approach this court. Thus the application is disposed of without any order as to costs. Order accordingly.