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2016 DIGILAW 379 (CAL)

Gautam Kumar Pincha v. Asha Devi Bajaj

2016-04-27

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. Feeling aggrieved and dissatisfied with the Order bearing No. 16 dated 8th May, 2015 passed by the learned Civil Judge, (Senior Division), Second Court at Barasat in Title Suit No. 235 of 2013, the present petitioner/defendant has filed this application under Article 227 of the Constitution of India. 2. According to the petitioner, the learned Trial Judge failed to construe the provision under Order VII Rule 11 of the Civil Procedure Code in its proper perspectives. It has been specifically stated in the petition that the learned Trial Judge failed to appreciate that the suit was filed praying for specific performance of an unregistered agreement for assignment of a flat at the first floor of the building with the proportionate land. It is also contended therein that the suit is hopelessly barred by the law of limitation as the said specific performance of an unregistered document was executed on 26th September, 1992. Amongst others, the present petitioner also vehemently challenged that the plaintiffs’ such suit is not maintainable on the ground that it was leased out property and the said land was given under a lease deed by the State Government and there are prohibitory clauses. In terms of the agreement vide Clause 2 (7) Clause 2(8), Clause 2(11) and Clause 2 (12) of the lease deed there is absolute prohibition in regard to partition, sub-let, assignment etc. without the consent of the State of West Bengal. He also contended that if an agreement is opposed to public policy then in terms of Section 23 of the Indian Contract Act the same is liable to be rejected. 3. In the application under Order VII Rule 11 of the Civil Procedure Code the present petitioner/defendant has mentioned those grounds and prayed for rejection of the plaint which was turned down by the learned Court below vide its impugned order. 4. As against this, the opposite party/plaintiff contended that the learned Court below has taken enough pain and has considered every nitty-gritty of the legal aspects, and, thereafter, he has come to the conclusion, which does not warrant any interference. 5. In the interest of effective adjudication, factual aspect needs to be looked into. The plaintiffs/opposite parties case in a capsulated form is such that one Bhabatosh Chatterjee got the property by way of an indenture of lease dated 29.01.1977 from the Government of West Bengal. 5. In the interest of effective adjudication, factual aspect needs to be looked into. The plaintiffs/opposite parties case in a capsulated form is such that one Bhabatosh Chatterjee got the property by way of an indenture of lease dated 29.01.1977 from the Government of West Bengal. On getting such property from the defendant No. 3 (Principal Secretary, Urban Development Department, Government of West Bengal) made construction of a three-storied building after obtaining the sanction plan. After raising of such construction the defendant No. 1 intended to assign the ‘A’ schedule property and as the plaintiff’s mother-in-law namely Gita Devi Bajaj intended to get the same, the said defendant No. 1 executed the assignment/indenture on 29.06.1992 on receipt of the consideration amounting to Rs.5,30,000/- in full and the said Gita Devi Bajaj executed a deed of declaration dated 04.12.2007 and the plaintiff also executed a deed of declaration as necessary party therein and the defendant No. 1 had duly confirmed the said deed of declaration and as per terms of the said deed of declaration cancelled all the documents made by him with Smt. Gita Devi Bajaj (since deceased) for assignment of the first floor and total consideration amount was 7,30,000/-. One of which 2,00,000/- was received from Gita Devi Bajaj. 6. It is also stated in the plaint that since it would take some time for execution and registration of the deed of assignment in favour of the plaintiff, the defendant No. 1 agreed to grant tenancy right to the plaintiff and delivered the vacant possession of the said flat to the plaintiff under a tenancy agreement and the plaintiff agreed to pay Rs.4,00,000/- only out of the said consideration amount of Rs.7,30,000/- to the defendant No. 1 by way of security deposit of the tenancy and also a sum of Rs.48,000/- as one year’s rent and balance consideration amount of Rs.2,82,000/- to the defendant No. 1. Thereafter, he agreed to execute and register proper deed of assignment in favour of the plaintiff after obtaining permission from the Government of West Bengal and when granted and after obtaining the Income Tax Clearance Certificate, if necessary. 7. Terms and conditions of such assignment agreement was such that the defendant No. 1 agreed to transfer assign the entire first floor to the plaintiff at a price of Rs.7,30,000/- free from all encumbrances for residential purpose only. 7. Terms and conditions of such assignment agreement was such that the defendant No. 1 agreed to transfer assign the entire first floor to the plaintiff at a price of Rs.7,30,000/- free from all encumbrances for residential purpose only. With the execution of the agreement the defendant No. 1 would deliver vacant possession of such flat to the plaintiff and the defendant No. 1 would also grant and execute the tenancy agreement as well as supplementary agreement for tenancy so long as the deed of assignment be not executed and registered in favour of the plaintiff. It was also stipulated in the said agreement that the plaintiff would have the right to nominate any person/persons to have the assignment of the said flat and in that event the defendant No. 1 would execute and register the deed of assignment in favour of the nominee. It was specifically stipulated therein that the defendant No. 1 would take all diligent steps for transfer of the assignment of the said flat in favour of the plaintiff and execute and register all necessary deed of assignment or transfer within two months and that the defendant No. 1 would not directly or indirectly create any encumbrance, charges, liens, attachments, claims or demands in respect of the said flat without a written consent of the plaintiff. 8. Ventilating these facts the present opposite party/plaintiff has filed a Title Suit No. 235 of 2013 before the Civil Judge, (Senior Division), 2nd Court at Barasat for a decree :- (1) Specific performance of agreement for assignment be passed against the defendant Nos. 1 and 2; (2) Directing the defendant Nos. 1 and 2 to execute and register appropriate deed of conveyance in favour of the plaintiff under Order 21 Rule 34; (3) Permanent injunction; 9. Summons being issued upon the defendants, the present petitioner filed an application under Order VII Rule 11 of the Civil Procedure Code for rejection of the plaint which has been turned down by the learned Court below. In the said application the present petitioner/defendant has ventilated that by virtue of a deed of assignment dated 26.11.2012, wherein the governor of the State of West Bengal was a conforming party, the original lessee has transferred his lease hold right title and interest of the plot No. 4, Block-B.D. Sector 1,Salt Lake in favour of the petitioner. In the said application the present petitioner/defendant has ventilated that by virtue of a deed of assignment dated 26.11.2012, wherein the governor of the State of West Bengal was a conforming party, the original lessee has transferred his lease hold right title and interest of the plot No. 4, Block-B.D. Sector 1,Salt Lake in favour of the petitioner. Such transfer was effected upon obtaining required permission and upon paying requisite fees to the State of West Bengal. The suit was filed for specific performance of an unregistered agreement for assignment of a flat at the first floor of the building with proportionate land, which was subsequently cancelled by a further deed and as a result question of specific performance of such agreement for assignment of a flat with proportionate land does not arise. 10. It is also specifically averred in the said application that the suit is hopelessly barred by limitation also, as the suit was for specific performance of an unregistered agreement for assignment of a flat dated 26.09.1992. The plaint filed was barred in terms of West Bengal Government Land (Regulation of Transfer) Act 1993. In the application under Order VII Rule 11 of the Civil Procedure Code the present petitioner/defendant has categorically stated that the conditions incorporated in Clause 2(7), Clause 2(8) and Clause 2(11), have to be complied with. 11. Learned Senior Advocate Mr. Sakti Nath Mukherjee, appearing on behalf of the petitioner and Mr. Jawaharlal De, appearing on behalf of the plaintiff/opposite party argued at length. This Court has the occasion to hear the erudite submission of both sides. After going through the plaint, application under Order VII Rule 11 of the Civil Procedure Code the revisional application under Article 227 of the Constitution of India and upon hearing the respective submissions of the parties it seems to me that this Court is called upon to answer on the following controversies :- (1) If the Clause 2(7), Clause 2(8), Clause 2(11) and Clause 2(12) of the lease deed have to be followed strictly? (2) If the real cause of action has been set out in the plaint and a clear right to sue has been prima facie established? (3) Whether provision of Sections 2 and 3 of the Government Grants Act has overriding effect over all other laws including the Transfer of Property Act. Point No.1 12. (2) If the real cause of action has been set out in the plaint and a clear right to sue has been prima facie established? (3) Whether provision of Sections 2 and 3 of the Government Grants Act has overriding effect over all other laws including the Transfer of Property Act. Point No.1 12. In course of argument learned Senior Counsel appearing on behalf of the opposite party/plaintiff relied upon the following decisions namely 2007 (10) SCC 595 in (Vishwa Nath Sharma –Vs.- Shyam Shanker Goela & Anr.), 1970 (3) SCC 140 (R.C. Chandiok & Anr.-Vs.- Chunilal Sabarwal & Ors.) practically in the former decision, the case law of R.C. Chandiok & Anr.-Vs.- Chunilal Sabarwal & Ors. was considered. It appears that the property belongs to Delhi Development Authority and it was leased out on a stipulation that before parting with permission of D.D.A. has to be obtained. But without adhering to that permission an agreement was executed and for non-giving effect to that agreement a suit for specific performance of contract was filed. Question of permission from D.D.A. was highlighted and while disposing of the same, Hon’ble Apex Court came to the conclusion that if D.D.A. refused to accord permission in that case a suit for damages can be filed and the permission from the land and development officer is not a condition precedent for the grant of a decree for specific performance of a contract. Referring the finding of the Hon’ble Apex Court, learned Counsel appearing on behalf of the opposite party contended that compliance of Clause 2(7), Clause 2(8), Clause 2(11) and Clause 2(12) of the lease agreement of this case are not mandatory. 13. Learned Counsel appearing on behalf of the petitioner vehemently challenged the submission of his adversary and referred to a decision reported in 2009 (4) CHN 415 in connection with GTZ (India Private Limited –Vs.- Power Electronics Engineers & Ors.). It appears to me that the judgment of Vishwa Nath Sharma –Vs.- Shyam Shanker Goela & Anr. and R.C. Chandiok & Anr.-Vs.- Chunilal Sabarwal & Ors. were also considered and thereafter our Hon’ble Division Bench came to the conclusion that before parting with the property, the lessee should apply for a permission before the authority concerned and the Government agreed to transfer the land. and R.C. Chandiok & Anr.-Vs.- Chunilal Sabarwal & Ors. were also considered and thereafter our Hon’ble Division Bench came to the conclusion that before parting with the property, the lessee should apply for a permission before the authority concerned and the Government agreed to transfer the land. Referring this judgment of our Division Bench, learned Counsel appearing on behalf of the petitioner contended that the decision of Vishwa Nath Sharma –Vs.- Shyam Shanker Goela & Anr., cannot be applied on the ground that in this instant case no permission was sought for and naturally question of granting the same does not arise. He also contended that status of Delhi Development Authority cannot be equated with the status of the Government. 14. On perusal of the decisions relied upon by the parties it seems to me on, the basis of the factual aspect of this case, the decision reported in Vishwa Nath Sharma –Vs.- Shyam Shanker Goela & Anr. is not applicable here. 15. Learned Counsel appearing on behalf of the opposite party relied on the decision reported in 2012 (4) SCC 148 (In Raheja Universal Limited Vs.- N.R.C. Limited & Ors.) I have gone through the judgment of the Hon’ble Apex Court very meticulously. In that case the most important question of law was the ambit and scope of Section 22 of the Sick Industrial Companies Act, 1985 and its overriding effect on the provision of Transfer of Property Act 1882, with a particular reference to Section 53A and Section 54 of Transfer of Property Act. Considering the scope of Section 14 along with Section 54 of Transfer of Property Act, Hon’ble Apex Court held that a mere contract for sale of an immovable property does not create any interest in the immovable property and it, therefore, follows that the rule of perpetuity cannot be applied to a covenant of pre-emption even that there is no time limit within which option has to be exercised. In that case the dispute was if Section 22 of SICA 1985 has its overriding application over the provisions of Transfer of Property Act 1882 particularly in respect of Sections i.e. 53A and Section 54 of the Transfer of Property Act. In that case the dispute was if Section 22 of SICA 1985 has its overriding application over the provisions of Transfer of Property Act 1882 particularly in respect of Sections i.e. 53A and Section 54 of the Transfer of Property Act. The principle of law of that emerges from the discussion in the body of judgment that the scheme for rehabilitation and restructuring of a Sick Industrial Company undertaken by a specialized organization like BIFR suit as far as legally permissible, remain restriction free and the events should take place as pre-ordained, during consideration and successful implementation of the formulated scheme. Hon’ble Apex Court held that wide jurisdiction is vested in BIFR to issue directives, declarations and prohibitory orders within the rationalized scope and limitations prescribed under the relevant sections. 16. Since main argument was whether stipulation of Clause 2(7), Clause 2(8), Clause 2(11) and Clause 2(12) are mandatory in nature or not, I should quote the relevant clauses:- Clause 7. “The lessee shall not sub-divide or sub-let the demised land or the building to be constructed without the consent in writing of the Government first had and obtained and the Government shall have the right and be entitled to refuse its consent at its absolute discretion.” Clause 8. “The lessee shall not assign or transfer the demised land or any part of the demised land and/or the structure erected thereon without the previous permission of the Government in writing……….” Clause 11. “Subject to the provisions in Clause 2(8) hereof and lessee shall not have the right to mortgage or charge the lease hold interest in the land and/or the building to be erected thereon without the previous consent in writing of the Government.” Clause 12. “If the lessee dies after having made a bequest of the lease hold premises of the building thereon, if any, in favour of more than one person or die intestate having more than one heir, then in such case the persons to whom the lease hold premises with the building thereon be so bequeathed or the heirs of the deceased lessee, as the case may be, she hold the said property jointly without have any right to have a partition of the same by metes and bounds or they shall nominate one person amongst their number in whom the same shall vest.” 17. On a conjoint reading of the aforesaid clauses it seems to me there is a thin line of difference between the Clause 2(7) and Clause 2(8). The spirit of Clause 2(7) is such that the lessee shall not sub-divide or sub-let the demised land or the building to be constructed without consent in writing of the Government first had and obtained and the Government shall have the right and be entitled to refuse its consent at its absolute discretion. Therefore, for the purpose of sub-letting the demised land or the building to be constructed Government’s consent in writing is essential. In Clause 2(8) “The lessee shall not assign or transfer the demised land and/or the structure erected thereon without the previous permission of the Government in writing. (Emphasis supplied by me.). In Clause 2(7) consent of the Government in writing is essential. The legislature in its wisdom has incorporated the following words in Clause 2(8) “without previous permission of the Government in writing.” It denotes that in case of Clause 2(8) it is mandatory in nature. In Clause 2(7) the words ‘without the previous permission’ was not incorporated and thereby Clause 2(7) is directory in nature whereas stipulation of Clause 2(8) is mandatory in nature. In the case in hand before assigning or transferring the demised land there is no compliance of Clause 2(8). Therefore, in case of sub-letting or sub-divide the condition imposed is less stringent than in Clause 2(8). The Clause 2(11) is not an independent clause it is inter dependent of Clause 2(12). Therefore, compliance of Clause 2(11) is also mandatory. Before parting with lessee should apply for permission before the authority concerned i.e. Government and has to obtain previous permission in writing. Therefore, the Point No. 1 is decided in favour of the petitioner. Point No. 2 18. Learned Counsel appearing on behalf of the petitioner contended that the present opposite party, in their plaint, did not disclose the real cause of action and never stated about their clear right to sue. He contended that the plaint in essence speaks of implementation of an unregistered agreement of 1992. Not only that the plaint itself discloses that the present defendant No. 1, had cancelled all the documents made by him with Gita Devi Bajaj (since deceased) by way of a deed of declaration. Therefore, unregistered document has been cancelled. He contended that the plaint in essence speaks of implementation of an unregistered agreement of 1992. Not only that the plaint itself discloses that the present defendant No. 1, had cancelled all the documents made by him with Gita Devi Bajaj (since deceased) by way of a deed of declaration. Therefore, unregistered document has been cancelled. According to him, there is no clear right to sue. He also contended that in the plaint para 1, the plaintiff/opposite party mentioned that the defendant No. 1 got the property by way of an indenture of lease dated 29.01.1977 but very cleverly never mentioned that lease was granted by the State of West Bengal upon certain stipulations. According to him, it is an instance of clever drafting. By way of throwing dust in eyes of the Court, the plaintiff/opposite party wanted to get a favourable order. In support of his such contention he has relied on a decision reported in 2008 (1) CHN 98 in connection with (Bijoynagar Tea Company –Vs.- Nursing Dasgupta), AIR 1998 Supreme Court Cases 634 (ITC –Vs.- Debt Recovery Tribunal). On a close scrutiny of the said decisions along with the decisions relied on by the Hon’ble Apex Court while dealing with that case, I find that the plaint should not be read formally but a meaningful reading of the same is the urgent desideratum. Not only that Hon’ble Apex Court held in the decision reported in AIR 1998 SCC Page 634 that the moot question is if a real cause of action has been set out in the plaint or something illusory has been stated to avoid the mischief of Order 7 Rule 11 of the Civil Procedure Code has been set out in the plaint or something purely clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. Learned Counsel appearing on behalf of the opposite party did not challenge the legal position set at rest by the Hon’ble Apex Court. He, however, contended the plaint should not every nitty-gritty of the plaintiffs case and absence of one does not mean that the whole plaint is liable to be rejected. 19. On perusal of the plaint it seems to me that it is a clever drafting and an instance of an artful advocacy. He, however, contended the plaint should not every nitty-gritty of the plaintiffs case and absence of one does not mean that the whole plaint is liable to be rejected. 19. On perusal of the plaint it seems to me that it is a clever drafting and an instance of an artful advocacy. Non-mentioning of the conditions of clauses of the lease deed incorporated by Government of West Bengal, on the basis of which he also claimed his relief goes to suggest that he wanted to suppress something, lest the truth emerges. So in my humble view, this Point No. 2 should be decided in favour of the petitioner. Point No. 3 20. Now I am to consider if provision of Sections 2 and 3 of Government Grants Act has overriding effect on all other related laws. Learned Counsel appearing on behalf of the petitioner contended that the leased out land i.e. suit land belongs to the State of West Bengal represented by Principal Secretary, Urban Development Department, Government of West Bengal. It is not disputed by the plaintiff and so he has made the state as a party. He argued that if the land belongs to the state and if the state transfers any land on certain conditions in that event the conditions are supreme and it has overriding effect. 21. Challenging his such contention learned Counsel appearing on behalf of the opposite party argued that the terms of the said conditions are not absolute and it cannot override the provision of Transfer of Property Act. He relied on the decision reported in 1994 (1) CHN 16 in connection with Tarachand Dalmia –Vs.- State of West Bengal & Ors. and a decision reported in AIR 1988 Delhi 184 in connection with Sunil Basudeva & Ors. –Vs.- Delhi Development Authority. According to him, Sections 2 and 3 of the Government Grants Act are not supreme. In the case reported in AIR 1988 Delhi 184, the Hon’ble Delhi High Court held that D.D.A. has no right to recover transfer levy, while granting consent for sale or transfer of property of land under lease. I have gone through the said decision and it seems to me that the Hon’ble Delhi High Court held that D.D.A. cannot recover transfers levy while granting consent for sale or transfer of property. I have gone through the said decision and it seems to me that the Hon’ble Delhi High Court held that D.D.A. cannot recover transfers levy while granting consent for sale or transfer of property. The D.D.A. has charged the amount of transfer levy, which was rejected by Delhi High Court. The principles laid down by the Hon’ble Delhi High Court shall not help the opposite party on the basis of the present factual aspects. Here the permission from the Government was sought for and a permission was given subject to payment of transfer levy. On the contrary, in the said judgment it was decided the terms of the lease are supreme and in the absence of provision, the D.D.A. cannot recover transfer levy while granting consent. 22. Learned Counsel appearing on behalf of the opposite party heavily relied on the decision reported in 1994 (1) CHN 16. While deciding the said case Co-ordinate Bench of this High Court held at para 5 “under Section 3 of the Act, all prohibitions, restrictions, conditions and limitations, contained in such grant shall be valid and take effect notwithstanding any law or enactment of the legislature. Accordingly, if the Government had intended to impose restriction or assignment of a lease, a clause to that effect could have been included in the deed itself.” In para 11, the said Coordinate Bench held “Before parting with this judgment, one more significant factor should also be considered. It has now been brought on record that subsequent to the execution of the lease deeds by the State Government, in favour of the original lessees in the year 1974, the State Government has altered the standard format of the lease deeds. Previously, the standard format was the one that was executed by the original lessees with the State Government and in the said format, as noted earlier there is no clause restraining assignment of the leasehold interest without previous permission of the Government in writing. However, from the standard format which is now being used by the State Government, it appears that the intending leases contain the clause preventing assignment and/or transfer of lease-hold interest without previous permission of the Government in writing. However, from the standard format which is now being used by the State Government, it appears that the intending leases contain the clause preventing assignment and/or transfer of lease-hold interest without previous permission of the Government in writing. Taking into consideration of the aforesaid insertion of a clause in the present lease deeds, it is evident that the State Government also felt it necessary to make such changes and/or alterations in the clauses of the present lease deeds because of the aforesaid defects arising out of the lease deeds executed by them in the year 1974.” Therefore, that judgment also cannot be a sheet anchor for the opposite party. On the contrary, learned Counsel appearing on behalf of the petitioner has referred to a decision reported in 1997 (3) SCC 466 in connection with Hazee S.V.M. –Vs.- Government of Tamil Nadu. In the said case, the Hon’ble Apex Court held it is true that the word “grant” has been used in the act in its etymological sense, and, therefore, it should get its widest import. In Black’s Law of Dictionary, the word “grant” is shown to have the meaning one to bestow to confer someone other than the person or entity which makes the grant or to give or present as a right of privilege. On a conjoint reading of Sections 2 and 3 of the Government Grants Act is that the terms of any grants or terms of any transfer of land made by a Government would stand insulated from the tentacles and every nitty-gritty of any statutory law. Terms given under Section 3 is beyond the reach of any restrictive provision under any enactment, even if such principles are inconsistent with the principles of justice and equity. This practically confers the Government an unfeterred discretion to enforce any condition. The terms of the Government grants overlaps upon the right, privileges and obligations of any grantee. 23. Therefore, after hearing the rival submissions of both parties, this point is also decided in favour of the present petitioner/defendant. 24. On the basis of the discussion made above, I am of the view that there is enough merit in the application under Order 7 Rule 11 of the Civil Procedure Code. The impugned order passed by the learned Court below is hereby set aside. Accordingly, plaint is rejected. 25. The civil revisional application stands allowed but without any cost. 26. On the basis of the discussion made above, I am of the view that there is enough merit in the application under Order 7 Rule 11 of the Civil Procedure Code. The impugned order passed by the learned Court below is hereby set aside. Accordingly, plaint is rejected. 25. The civil revisional application stands allowed but without any cost. 26. Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law. 27. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Later After passing of the Judgement, learned Counsel appearing on behalf of the opposite parties contended that the above order should be stayed because they want to file SLP before the Hon’ble Apex Court. Considering the circumstances, the prayer is allowed, but operation of the order be stayed for one month only.