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2008 DIGILAW 1017 (CAL)

Dipendra Lal Shaw v. Gaurav Virendra Sanghvi

2008-11-21

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
JUDGMENT: BHATTACHARYA, J. (1.) This First Miscellaneous Appeal is at the instance of the defendant No. 1 in a suit for declaration, injunction and recovery of damages and is directed against Order No. 23 dated 16th March, 2006 passed by the learned Civil Judge, Senior Division, 4th Court, Alipore, District - 24 Parganas (South), in Title Suit No. 19 of 2004, thereby allowing an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiffs for restraining the defendants from disposing of or encumbering the movable and immovable properties mentioned in schedule C of the plaint till the disposal of the suit. (2.) Being dissatisfied, the defendant No. 1 has come up with the present appeal. (3.) The respondent Nos. 1 and 2 as plaintiffs filed in the 4th Court of Civil Judge, Senior Division, Alipore, a suit being Title Suit No. 19 of 2004 thereby praying for the following relief:- a) "A preliminary decree for Rs. 20,00,000/-(Rupees Twenty lacs) only against the defendants for damaging the house property at premises No. 2, Dr. Rajendra Road described in Schedule A; b) Order appointing an Engineer Commissioner-cum-Valuer for ascertaining the extent of damages and the estimated cost for repairing the house property at premises No. 2, Dr. Rajendra Road, for making it safe and secure. 20,00,000/-(Rupees Twenty lacs) only against the defendants for damaging the house property at premises No. 2, Dr. Rajendra Road described in Schedule A; b) Order appointing an Engineer Commissioner-cum-Valuer for ascertaining the extent of damages and the estimated cost for repairing the house property at premises No. 2, Dr. Rajendra Road, for making it safe and secure. After ascertainment of cost, a Final Decree for damages on ascertained amount be passed on payment of additional Court Fees, if necessary ; c) Decree for declaration that the stock-in-trade of the foreign liquor shop in the trade name of M/s. M. L. Shaw and Company, run by the defendants at premises No. 15, Ashutosh Mukherjee Road, P.S. Bhowanipore, Kolkata -700 020 and the ancestral house of the defendants at premises No. 83, Dharmatola Street (Lenin Sarani), P.S. - Taltola, Kolkata -700 013 as first charge towards satisfaction of the amount to be decreed in the suit ; d) Decree for permanent injunction restraining the defendants, their men and agents from selling out their stock-in-trade and the house property described in Schedule C until the decretal amount is satisfied ; e) All costs of the suit ; f) Any other relief or reliefs to which the plaintiffs are entitled to in law and in equity." (4.) The case made out by the plaintiffs may be summed up thus :- a) One Smt. Mrinalini Devi was the absolute owner of the suit property being No. 2,Or. Rajendra Road. The said Smt. Mrinalini Devi executed a deed of family settlement/trust thereby providing that after her death, her son, namely, Ramananda Mukherjee, would be the sole trustee. On the death of Mrinalini Devi on 21st January, 1991, the said Ramananda Mukherjee became trustee in respect of the house property mentioned above. bj The said Ramananda Mukherjee as trustee sold away to the plaintiffs the entire house property at 2, Dr. Rajendra Road comprising land measuring 2 cottah a little or more with a more than 100 years old dilapidated two-storied building by executing and registering conveyance on 19th May, 1997. The said property is described in schedule A of the plaint. c) The defendants are the tenants-in-common in respect of the entire two-storied building at premises No. 2, Dr. Rajendra Road save and except a 100 sq. feet road-side-shop-room. The tenancy of the defendants is specifically described in schedule B of the plaint. The said property is described in schedule A of the plaint. c) The defendants are the tenants-in-common in respect of the entire two-storied building at premises No. 2, Dr. Rajendra Road save and except a 100 sq. feet road-side-shop-room. The tenancy of the defendants is specifically described in schedule B of the plaint. d) As the defendants did not use the tenanted part as prudent persons and did not cause necessary repair or take precautionary measure to save the house, for non-repairing of the tenanted part for a considerable period, the old building was lying in a dangerous condition for which the Kolkata Municipal Corporation issued a notice in the year 1987, calling upon the owner and occupier of the house to demolish a part of the building and to secure rest part of it by undertaking suggested extensive repair works. e) The defendants did not pay heed to such notice and when the landlady intended to cause repair pursuant to the notice issued by the Kolkata Municipal Corporation, the defendant No.1 resisted the masons and labours to enter into the house to take precautionary measure to protect the house. As a result whereof, the most parts of the house had collapsed and it was lying in a dangerous condition and at any point of time the entire building may fall down. f) The plaintiffs on numerous occasions requested the defendant No.1 to undertake necessary repair work or else to allow masons and labours of the plaintiffs to make it secured but the defendant No.1 neither undertook the repair work nor did he allow the plaintiffs to cause the same. g) In the year 1999 the Kolkata Municipal Corporation further issued a notice under Section 411 of the Kolkata Municipal Corporation Act asking the owner and/or occupier to make the building safe and secure by undertaking demolition and part repairing. The defendant No. 1 and his men and agents did not allow the plaintiffs men to cause the building safe by demolition and repair. h) In the process, the defendants had caused damage to the entire building and allowed to be damaged further. It is difficult to ascertain the actual amount of damage done to the property in money value but the plaintiffs through a Civil Engineer have ascertained that for causing the repair of the house and to make it useable, it will cost not less than Rs. It is difficult to ascertain the actual amount of damage done to the property in money value but the plaintiffs through a Civil Engineer have ascertained that for causing the repair of the house and to make it useable, it will cost not less than Rs. 20 lakh. i) The plaintiffs are, therefore, entitled to recover the said amount from the defendants if necessary by way of sale in public auction their properties after getting declaration of those properties as charge and to get an order of injunction restraining them from selling and encumbering those properties. j) The defendants have their foreign liquor business in a part of premises No. 15, Ashutosh Mukherjee Road and also the ancestral house at 83, Dharmatola Street. Those should be declared as first charge towards recovery of the amount to be decreed so that on getting decree the plaintiffs could recover the decretal amount by public auction on stock-in-trade of the business and the ancestral property mentioned in schedule "C" to the plaint. (5.) After filing of the said suit, on the selfsame allegations made in the plaint, the plaintiffs came up with an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure thereby praying for temporary injunction restraining the defendants from disposing of and/or encumbering their movable and immovable property mentioned in C schedule property on the allegation that the defendants may frustrate the decree by selling stock- in-trade of the business and the residential house. According to the plaintiffs, if the defendants are able to dispose of their properties described in schedule C of the plaint, the plaintiffs would face immense difficulties in realising the decretal amount. (6.) On such application being moved, the learned Trial Judge issued notice upon the defendants to show-cause why the prayer of the plaintiffs should not be granted and passed an ad-interim order of injunction restraining the defendants from transferring or removing the stock and immovable property mentioned in C schedule property till the disposal of the application. (6.) On such application being moved, the learned Trial Judge issued notice upon the defendants to show-cause why the prayer of the plaintiffs should not be granted and passed an ad-interim order of injunction restraining the defendants from transferring or removing the stock and immovable property mentioned in C schedule property till the disposal of the application. (7.) In the past, the defendant No. 1 came up with an appeal against such ad-interim order of injunction before this Court being F.M.A.T. No. 3603 of 2004 and a Division Bench of this Court disposed of such appeal by modifying the order impugned by limiting the ad-interim injunction to only the immovable property described in schedule C with further direction upon the appellant to maintain the account of the stock and sale of the movables in respect of C schedule property with further direction to submit the said account to the learned Trial Judge along with the answer to the "show-cause" to the application for injunction. The learned Trial Judge was directed to dispose of the injunction application within a specified period. (8.) It appears from record that the appellants did not file any written objection to the application for injunction and consequently, the learned Trial Judge by the order impugned herein disposed of the injunction application by making the earlier interim order granted by the said Court absolute till the disposal of the suit. (9.) Being dissatisfied, the defendant No. 1 has come up with the present appeal. (10.) Mr. Chatterjee, the learned senior Advocate appearing on behalf of the appellant, strenuously contended before us that the learned Trial Judge in making the interim order absolute did not record any finding as regards the prima facie case of the plaintiff and at the same time, also did not record any reason as to whether the balance of convenience and inconvenience was in favour of granting injunction or whether in the absence of any injunction, the plaintiffs would suffer irreparable loss and injury. Mr. Chatterjee submits that the learned trial Judge mechanically made the ad-interim injunction absolute simply because no written objection was given by his client. (11.) According to Mr. Mr. Chatterjee submits that the learned trial Judge mechanically made the ad-interim injunction absolute simply because no written objection was given by his client. (11.) According to Mr. Chatterjee, all the allegations made in the plaint and in the application form injunction coupled with the documents filed by the plaintiffs failed to make out any prima facie case to have an order of injunction in favour of the plaintiffs in respect of C schedule property which is the joint property of the defendants and over which the plaintiffs at this stage cannot have any claim. Mr. Chatterjee contends that his clients are tenants in respect of A schedule property and the plaintiff has not filed any suit of eviction on the ground of improper use of the said property. According to Mr. Chatterjee, the claim of Rs. 20 lakh by way of damages is a ridiculous claim as would appear from the fact that the plaintiffs themselves purchased the property at the price of Rs. 1,60,000/- only in the year 1997. Mr. Chatterjee further points out that the Deed of Purchase of the plaintiffs which is annexed to the application for injunction will demonstrate that the suit property was then more than 100 years old and in dilapidated condition and that for want of necessary fund, the previous owner, the vendor of the plaintiffs, could not undertake any repair or maintenance for a long time. Mr. Chatterjee further contends that no document has been produced before the learned Trial Judge indicating that at any point of time, the plaintiffs or their predecessor, ever requested the appellant to repair the suit property. Mr. Chatterjee further contends that according to the provision of the Transfer of Property Act, in the absence of any specific agreement to the contrary, it was the responsibility of the landlord to repair the property. (12.) Mr. Chatterjee, therefore, contends that it was a preposterous innovation on the part of the plaintiffs to claim damages to the extent.of Rs. 20 lakh. Mr. Chatterjee further contends that even if any money decree is passed that cannot be the first charge over the property of the defendants as the plaintiffs are never the secured creditors. Mr. Chatterjee, therefore, prays for setting aside the order impugned. (13.) Mr. Mukherjee, the learned Advocate appearing on behalf of the plaintiff-respondents, on the other hand, has opposed the aforesaid contentions advanced by Mr. Mr. Chatterjee, therefore, prays for setting aside the order impugned. (13.) Mr. Mukherjee, the learned Advocate appearing on behalf of the plaintiff-respondents, on the other hand, has opposed the aforesaid contentions advanced by Mr. Chatterjee and has contended that the appellant having failed to give any opposition to the application for injunction, the averments made in the application for injunction remained uncontroverted and, therefore, the learned Trial Judge was quite justified in making the ad-interim order of injunction granted earlier absolute. Mr. Mukherjee further contends that the appellant did not care to comply with the direction given by this Court in the previous First Miscellaneous Appeal by not filing any written objection to the injunction application. Mr. Mukherjee, therefore, submits that in the case before us the learned Trial Judge rightly granted the injunction as prayed for by his client. (14.) After hearing the learned Counsel for the parties and after going through the materials on record we find that the suit was for recovery of damages which were tentatively fixed at Rs. 20 lakh and in the suit the plaintiffs claimed for declaration that the immovable property of the defendants and their business mentioned in C schedule should be declared to be the first charge towards satisfaction of the decretal amount and in this way, the personal property of defendants were made part of suit property although at the time of institution of the suit, the plaintiff had no right over those properties. (15.) In our view, the suit being essentially a suit for recovery of money, there was no scope of grant of any injunction in respect of C schedule property which cannot be said to be the subject-matter of suit. So long any money decree is not passed in the suit and a decree declaring first charge over those properties is not granted, the plaintiffs have no claim over those properties. (16.) The question that arises for consideration in this appeal is whether in such a suit, the plaintiff by invoking Order 39 Rules 1 and 2 of the Code can get an order of injunction restraining the defendants from transferring their own property over which the plaintiffs have no cause of action whatsoever at that stage. (16.) The question that arises for consideration in this appeal is whether in such a suit, the plaintiff by invoking Order 39 Rules 1 and 2 of the Code can get an order of injunction restraining the defendants from transferring their own property over which the plaintiffs have no cause of action whatsoever at that stage. (17.) As pointed out by a Division Bench of this Court in the case of Fertiliser Corporation of India Ltd. v. Indian Explosive Ltd. reported in (2006)1 Cal HN 659, in a suit for recovery of money, the property of the defendant over which the plaintiffs have no right cannot be the subject-mattar of the suit within the meaning of Order 39 Rule 1 of the Code merely because the plaintiffs have prayed for permanent injunction as a consequential relief in the event of passing a money decree. It was further pointed out that by getting simple money decree, the plaintiffs cannot become a secured creditor unless the dues were really secured in accordance with law. Moreover, a Court cannot restrain a defendant from transferring his property unless it is established that defendant intends or otherwise threatens to transfer his property with a view to defrauding his creditor as provided in Order 39 Rule 1(b) of the Code. (18.) Even no such averments having been made in the plaint or in the application for temporary injunction, we are of the view that the nature of injunction prayed for in the application for temporary injunction does not come within the purview of Order 39 of the Code of Civil Procedure. (19.) Moreover, we have found that the suit property was purchased at the price of Rs. 1,60,000/- with specific admission of the vendor, the original owner and the landlord of the defendants, in the sale deed itself relied upon by the plaintiffs in the application for temporary injunction that for want of money, the vendor could not repair the property and there was no allegation that the existing tenants, the defendants herein, did not permit the vendor to repair the property. The plaintiffs after purchasing the "more than 100 years old dilapidated house" described as such in the deed, at a price of Rs. 1,60,000/- fully occupied by the tenants cannot claim Rs.20 lakh as damages from the tenants on the allegation that it was for their fault that the property became dilapidated. The plaintiffs after purchasing the "more than 100 years old dilapidated house" described as such in the deed, at a price of Rs. 1,60,000/- fully occupied by the tenants cannot claim Rs.20 lakh as damages from the tenants on the allegation that it was for their fault that the property became dilapidated. Such allegation has been found to be false even from the documents produced by the plaintiffs themselves in the trial Court. Moreover, in the plaint, it is simply stated that an engineer and valuer had assessed that in order to make the said house in habitable condition a sum of Rs. 20 lakh is to be spent and on that basis, the plaintiffs claim Rs. 20 lakh as damages from the existing tenants. In our opinion, it is strange to suggest that a person purchasing a more than 100 years old dilapidated house with tenants from a person who admittedly could not repair the said building for want of money at a price of Rs. 1.6 lakh will be entitled to claim Rs. 20 lakh from the tenants on the allegations that he did not permit the landlord to effect repair although no such allegation was made by the previous landlord and even, the plaintiffs could not produce any documents showing that they ever requested the tenants to permit them to repair. The learned Trial Judge, as it appears from record, totally overlooked such aspects. (20.) Therefore, even the plaintiffs have failed to prove any prima facie case to have any order of injunction in this type of a suit claiming a huge sum of Rs. 20 lakh as damages against the defendants as it is apparent from the documents filed by the plaintiffs that the previous landlord could not repair the said property for want of money and that is the cause of the condition of the house. (21.) In such a state of affairs, no injunction should be granted restraining the tenant defendants from selling his own property or running his own business over which the plaintiff has no claim. The balance of convenience and inconvenience is also in favour of refusing the prayer of injunction. (21.) In such a state of affairs, no injunction should be granted restraining the tenant defendants from selling his own property or running his own business over which the plaintiff has no claim. The balance of convenience and inconvenience is also in favour of refusing the prayer of injunction. On such a fanciful claim, if we restrain the defendants from running their own business of selling foreign liquor or transferring the joint property at Lenin Sarani, over which an agreement of sale has already been effected, the sufferance on the part of the appellant will be much more, if the suit is ultimately dismissed, than the loss suffered by the plaintiffs if we do not grant any injunction and the suit is decreed in the long run. (22.) We, therefore, find that the learned Trial Judge mechanically made the interim order earlier granted absolute simply because no written objection was given by the defendants. The learned Trial Judge ought to have gone through the papers filed by the plaintiffs themselves which show that the case made out in the plaint and application for injunction was inconsistent with the documents filed by them. It is not the law that merely because somebody has filed a money suit against a defendant, without proving any thing more, he will get an order of injunction against the defendant by restraining him from transferring his property or running his business till the disposal of the suit so that the plaintiff does not face any difficulty in realising the decretal amount in the event of success in the suit. (23.) We accordingly set aside the order impugned and hold that the plaintiffs have failed to make out any prima facie case to have an injunction prayed for and accordingly, we allow this appeal. No costs. (24.) We are told that the plaintiffs have already filed an application for attachment before judgment and against refusal of the ad interim order, they have filed an application under Article 227 of the Constitution of India which is pending. We make it clear that we have not taken note of such proceedings in this appeal nor have we considered the merit of such application.