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2017 DIGILAW 394 (GAU)

RANTU DAS v. RAJESH KUMAR GUPTA

2017-03-29

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. Devashis Baruah, the learned counsel for the applicant/Appellant and Mr. Satyajit Sharma, the learned counsel for the Opp. Party/Respondent, who has appeared as Caveator. 2. By filing this application under the provisions of Order XLI Rule 5 of the Code of Civil Procedure, the applicant has prayed for the stay of the impugned order dated 13.12.2016 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati, in Misc. (J) Case No. 168/16 arising out of T.S. No. 1/2012. 3. The case of the parties in brief is that one M/s. Manjula Business Consortium, Guwahati, which was the proprietorship concern of Mrs. Manjula H. Kalita (defendant No.1), entered into an agreement with the Opp. Party herein for selling a total of 8 (eight) numbers of shops and toilet space of different measurements aggregating an total area of 1,950 square feet (excluding wall thickness) in the ground floor of a building under the name of Dolly Enclave. The sale consideration was fixed at Rs.2,100/- per square feet and the Opp. Party herein had paid an advance of Rs.8,00,000/-, the balance being payable in accordance with the final measurement at the time of delivery of thereof to the Opp. Party. The said premises is morefully described in Schedule-A (1) of the said above referred agreement. The said agreement was registered before the Sub-Registry at Guwahati as Registered Deed No. 12798 dated 21.11.2006. 4. The said M/s. Manjula Business Consortium failed to deliver the agreed premises to the Opp. Party herein in violation the terms of their agreement, for which the Opp. Party instituted T.S. No.1/2012 against the said builder and others. The Opp. Party projected that he had came to know that the Applicant herein had purchased the land and structures vide Registered Deed No. 12730 dated 03.10.2008 and, as such, the Applicant was impleaded as Defendant No.2 in the said suit by order dated 20.11.2013 passed by the Court of learned Civil Judge No.3, Guwahati. The suit proceeded ex parte against the Applicant herein. In the said suit, the Applicant herein filed an application for ad-interim injunction under the provisions of Order XXXIX Rules 1 and 2 read with section 151 of the Code of Civil Procedure, which was registered and numbered as Misc. (J) Case No. 168/2016. In the said application, the Opp. The suit proceeded ex parte against the Applicant herein. In the said suit, the Applicant herein filed an application for ad-interim injunction under the provisions of Order XXXIX Rules 1 and 2 read with section 151 of the Code of Civil Procedure, which was registered and numbered as Misc. (J) Case No. 168/2016. In the said application, the Opp. Party prayed for issuance of ad-interim injunction restraining the applicant herein from alienating the suit property and delivery of the same to any person in any other manner. The applicant contested the said case. The learned Trial Court initially granted ex parte ad-interim injunction, but the same was not extended as the Opp. Party herein did not make any prayer for extension of such order. Ultimately, by the order dated 13.12.2016, which is impugned in the connected appeal, the learned Trial Court restrained the applicant herein, his heirs, agents, etc. from alienating the suit shop premises measuring 1,950 square feet as described in the Agreement of the Opp. Party herein and in the Schedule to the injunction application in any manner and from delivering possession of the same to any person till the disposal of the suit and the said Misc. (J) Case No. 168/2016 was disposed of. 5. The learned counsel for the applicant has strongly argued in support of prayed for staying the operation of the said impugned order dated 13.12.2016. He projected that although previously the Guwahati Metropolitan Development Authority (hereinafter referred to as ‘GMDA’ for short) had accorded NOC vide No. GMDA/BP/2256/2005/107 dated 07.03.2006, inter-alia, permitting construction of 85.55m2 shop, 30.24m2 office, and 430.73m2 parking in the ground floor of the building, but after the new Building Byelaws came into force in December, 2006, the authorities of GMDA issued a revised plan bearing No. GMDA/BP/3166/29122008/45 dated 05.03.2009, inter-alia, permitting construction of 90.40m2 shop, 456.60m2 parking in the ground floor of the building. Hence, there has been either a frustration of contract or the said agreement is now impossible to be performed as 8 shops of the measurement as agreed to under the agreement cannot be built without violation of building byelaws and therefore, those 8 shops do not exist any longer, for which except for the existing 4 (four) shops, the rest 4 shops cannot be delivered to the respondent. The learned Counsel for the applicant submits that now only 4 shops are permissible under the revised “No objection for Construction”, and upon instructions, the learned counsel for the applicant submits that the applicant is ready and prepared to give an undertaking that these 4 shops would subject to the outcome of the suit and no third party right whatsoever would be created in respect of the said proposed 4 shops in the ground floor of the building under the name and style of Dolly Enclave. It is submitted that it is mandatory for every builder to sell space in the building together with parking space, but in the present case in hand, except for the 4 (four) shops under the revised drawing, the remaining portion of 1,950 square feet space covered by the agreement is now earmarked as a parking space, for which except for the space for 4 shops, other areas cannot be sold to the Opp. Party. However, the applicant is suffering greater comparative loss and injury because without the parking space, the Applicant is unable to sale, transfer and handover the remaining constructed areas including flats in the building. 6. The learned counsel for the applicant has strenuously argued on the point of lack of prima facie case for trial by raising the issue of maintainability of the suit. Amongst others, he has argued that there is absence of pleading about readiness and willingness of the Opp. Party to pay balance sale consideration to the applicant, which is a pre-condition under section 16(c) of the Specific Relief Act, 1963. He has further argued that default of non-performance of the agreement occurred in the month of June, 2007 and, as such, the suit filed on 23.12.2011 was hopelessly barred by limitation, which is again an issue which goes to the root of the maintainability of the suit and demonstrates the lack of any prima facie case for trial. He has also argued that the learned trial court has totally misconstrued his argument on prima facie case for trial by confusing it to be an argument on maintainability of the suit and submits that the argument on maintainability was only to project the lack of any prima facie case for trial. In order to supplement his argument, the learned counsel for the applicant has relied on the following case citations – (i) Dalpat Kumar & anr. In order to supplement his argument, the learned counsel for the applicant has relied on the following case citations – (i) Dalpat Kumar & anr. V. Prahlad Singh, (1992) 1 SCC 719 , (ii) Best Sellers Retail (India) Private Limited V. Aditya Birla Nuvo Limited & ors., (2012) 6 SCC 792 , (iii) Padamkumari & ors. Dasayyan & ors., (2015) 8 SCC 695 . 7. The learned counsel for the applicant has filed a set of following documents in the connected appeal viz., (i) Agreement for Sale dated 21.11.2006, (ii) Tripartite Agreement bearing Deed No. 11769 dated 09.09.2008, (iii) Copy of approved plan (original) for Dolly Enclave in the name of M/s. Manjua Business Consortium, (iv) Copy of approved plan (revised) for Dolly Enclave in the name of the applicant, (v) photographs of the site, (vi) Certificate in terms of section 35-B of the Evidence Act. The learned counsel for the Applicant has also submitted the original drawings and two NOCs referred above for the perusal of this court. 8. The learned counsel for the Opp. Party has opposed the said prayer for staying the judgment and order impugned in the connected appeal, inter-alia, on the ground that the entire transaction under the Tripartite Agreement bearing Deed No. 11769 dated 09.09.2008, by which the applicant has purchased the land and building is a sham transaction. He submits that as per the said agreement dated 09.09.2008, the total sale consideration of the entire land and building with constructed area, excluding parking area was 2848.39m2 (equivalent to 30,648.67 square feet) was Rs.65,00,000/- (Rupees Sixty five lakh only), whereas, by the Agreement for Sale dated 21.11.2006, the Opp. Party had agreed to pay sale consideration of Rs.41,65,000/- (Rupees Forty one lakh sixty five thousand only) for only 1,950 square (equivalent to 181.22 square feet) commercial space. He further argues that there is prima facie case for trial because the Agreement for Sale of the suit property in favour of the Opp. Party was executed and registered prior on point of time on 21.11.2006 and therefore, the Applicant, who had acquired right over the land and building including the suit property vide Tripartite Agreement bearing Regd. Deed No. 11769 dated 09.09.2008, is not only deemed to be aware of the said registered agreement, but is also bound by the said agreement dated 21.11.2006. Deed No. 11769 dated 09.09.2008, is not only deemed to be aware of the said registered agreement, but is also bound by the said agreement dated 21.11.2006. It is submitted that readiness and willingness as against the applicant cannot be inferred from reading few lines here and there in the plaint, but is to be seen from the conjoint reading of entire plaint. It is submitted that in the present case in hand, there is a specific statement in the plaint that the applicant was approached for honouring the agreement, which contains within itself the readiness and willingness of the Opp. Party to perform his part of the contract, without which the applicant cannot honour the agreement. Moreover, it is strongly submitted that if the impugned order is stayed, it would create third party rights and will lead to multiplicity of suits and proceedings. As regards the curtailment of shops as per the revised plan, the learned counsel for the Opp. Party has submitted that the applicant after taking over the project on 09.09.2008, obtained the revised plan in his own name as is evident from the original document produced today. Thus, it must be presumed that the applicant had applied for such modification, without which the GMDA cannot modify an already approved construction plan and drawing and, as such, it is also required to be presumed that the curtailment of shops is engineered by the applicant to create a ground to wriggle out from the otherwise lawfully enforceable agreement dated 21.11.2006. Hence, it is argued that not only the Opp. Party had a prima facie case for trial but the balance of convenience was also in favour of grant of injunction. The learned counsel for the Opp. Party submits that the Opp. Party would suffer irreparable greater continued loss and injury as he has paid part sale consideration in the year 2006 and is eagerly awaiting delivery of his commercial shops for last 11 years. 9. In the opinion of this court, in case of Dalpat Kumar & anr. V. Prahlad Singh, (supra), it was a case of fourth round of litigation between the parties on the same subject matter. The suit of the appellant for specific performance was decreed and sale deed executed through court. 9. In the opinion of this court, in case of Dalpat Kumar & anr. V. Prahlad Singh, (supra), it was a case of fourth round of litigation between the parties on the same subject matter. The suit of the appellant for specific performance was decreed and sale deed executed through court. Thereafter, the wife of first respondent filed a suit and also sought for injunction against dispossession and, as such, the learned trial court had refused injunction, which was upheld by the Hon'ble Apex Court on the ground that if the suit is decreed, the plaintiff can claim compensation for the use of premises from date of dispossession to the date of restitution. Thus, the facts involved in the said case are distinguishable with the facts of the present case. In the case of Best Sellers Retail (supra), the Hon'ble Apex Court had held that the party will suffer irreparable loss and injury, but it would be entitled to damages if alternative remedy prayed for in the suit is granted and on that consideration, it was held that refusal of injunction cannot be said to be irreparable. The issue involved in the said case is that the tenant had entered into an agreement to sell the products of plaintiff. During the tenure of that agreement, differences arose between them. The landlord exited the partnership of the defendant firm and terminated the tenancy. Under such circumstances, the plaintiff filed the suit with prayer for injunction to restrain the defendants from leasing, sub-leasing, alienating or encumbering the suit premises. Under such facts the decision was rendered by the Hon'ble Supreme Court, by setting aside injunction. However, in the present case in hand, the facts are clearly distinguishable. In the case of Padamkumari (supra), the plaintiff, who had agreed to purchase the suit property had approached the court for specific performance of contract, but he was found to have defaulted in making payment within the agreed time, which was held to have disentitled the plaintiff to specific performance of contract. However, in the present case in hand, the readiness and willingness to make payment is apparent from the pleadings against the original builder and there is a statement that during the suit, after the Opp. Party came to know about the transfer he approached the present applicant with request to honour the said agreement. However, in the present case in hand, the readiness and willingness to make payment is apparent from the pleadings against the original builder and there is a statement that during the suit, after the Opp. Party came to know about the transfer he approached the present applicant with request to honour the said agreement. At this stage, this court is not inclined to adjudicate the sufficiency of such statement while considering the prayer for stay of impugned order granting injunction, as it is a matter to be decided at the time of trial. 10. This court is of the view that because it is the specifically argued case of the applicant that he cannot hand over the agreed space for 8 (eight) shops as presently there are 4 (four) shops as per the revised drawing and plan and rest four shop space are converted into parking space and that without handing over parking space to the purchasers or transferees of other space in the building, such other space cannot be sold and/or handed over, it is evident that the applicant would be parting with the right, title, interest and possession of a part of the suit premises and thereby create third party interest thereon, which is very likely to lead to multiplicity of suits or proceedings. What is most noticed is that the applicant has nowhere stated in his pleadings or in the present application that any sale deed has been executed by the land owner by which he has acquired any title over the land and proposed building. Thus, if third party rights are allowed to be created in any part of the suit property by permitting alienation, in the absence of any title, there is bound to be multiplicity of suits and proceedings. Moreover, it is every likelihood that the proposed transferee might take a view that this court has permitted such alienation of suit property by the applicant herein, which may further complicate the issues. The argument of the learned counsel for the Opp. Party that the applicant appears to have invited the revised building plan upon himself in order to frustrate the agreement with the Opp. Party as because the GMDA would not have issued the revised drawing and plan in the name of the applicant without any application in this regard, has sufficient persuasive force. Party that the applicant appears to have invited the revised building plan upon himself in order to frustrate the agreement with the Opp. Party as because the GMDA would not have issued the revised drawing and plan in the name of the applicant without any application in this regard, has sufficient persuasive force. Moreover, in none of the three cases cited by the learned counsel for the applicant, the Hon'ble Apex Court has permitted frustration of a contract of specific performance of contract or nullifying an agreement. There cannot be a straight jacket formula that party can be permitted to commit breach of an agreement and then order a compensation because under sub-section (1) of section 38 of the Specific Relief Act, 1963 a perpetual injunction can be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. In the further opinion of this court, by staying the impugned order, the same would amount to granting the full relief in the appeal. The fallout which is apprehended by this court in the event the impugned order is stayed would be that third party interest will be created in respect of the suit property and it may also lead in the nullifying of the lawful agreement dated 21.11.2006 and permitting creation of a new and irreversible state of affairs as shop space would give way for third party ownership rights over parking space. 11. Viewed as above, this court does not find any perversity in the order passed by the learned trial court and, as such, this court is not inclined to stay the order dated 13.12.2016, impugned herein. 12. Hence, for the foregoing reasons as indicated above, this is a fit case wherein this court is inclined to refuse to stay the operation of the impugned order dated 13.12.2016 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati, in Misc. (J) Case No. 168/16 arising out of T.S. No. 1/2012 and this application stands dismissed. 13. It is made clear that the learned court below shall not be influenced by any observations made herein at the time of trial of the TS No. 1/2012, which is only confined to refusing stay the operation of the order impugned herein. 14. (J) Case No. 168/16 arising out of T.S. No. 1/2012 and this application stands dismissed. 13. It is made clear that the learned court below shall not be influenced by any observations made herein at the time of trial of the TS No. 1/2012, which is only confined to refusing stay the operation of the order impugned herein. 14. The Court Master may now return the two original GMDA approved plans and two original No objection for Construction issued by GMDA to the learned counsel for the applicant.