Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 417 (CAL)

Vivek Sarda (Huf) v. Amrapali Highrise Private Limited

2017-04-24

ASHA ARORA, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Joytirmay Bhattacharya, J. This first miscellaneous appeal is directed against an order dated 29th September, 2016 passed by the learned Civil Judge (Senior Division), 5th Court at Alipore, South 24-Parganas in Title Suit No. 215 of 2016 at the instance of the plaintiffs/appellants. 2. By the impugned order, the plaintiffs' prayer for ad interim injunction was refused by the learned Trial Judge. Such relief by way of ad interim injunction was prayed for by the plaintiffs in a suit for specific performance of contract. 3. Since by an advocate's letter dated 13th July, 2016, the agreement was terminated by the defendant/respondent No. 1 and the defendant/respondent No. 1 claimed that it is free to sell the flats in question to the actual buyers without any further reference to the plaintiffs, such relief by way of temporary injunction for restraining the defendants from transferring the flats in question during the pendency of the suit was claimed. Relief by way of ad interim injunction was also claimed by the plaintiffs so that the defendants cannot transfer and/or sell and/or create any third party interest in respect of the suit flats till the plaintiffs' application for temporary injunction is finally decided. 4. Learned Trial Judge rejected the plaintiffs' said prayer for ad interim injunction on the following three grounds :- "1. Neither any whisper made in the plaint as well as injunction petition as to when the plaintiff/petitioner entered into an agreement with the defendant/opposite parties whereby they paid entire consideration money in respect of sell of 6 flats at premises No. 20, Diamond Harbour Road, Kolkata-700 038 nor any scrap of paper or document has been filed by the plaintiff/petitioner to show the existence of such agreement. 2. More curiously enough the agreement dated 24.05.2016 bears the LTI of Moloy Bose one of the developers of defendant No. 1 which is suspicious one either said Moloy Bose is an illiterate person who put his LTI accordingly or for any other reason he put his LTI in stead of signature. No clarification in this regard has been made either in the plaint or in the injunction petition. 3. No clarification in this regard has been made either in the plaint or in the injunction petition. 3. The apprehension of transferring and/or alienating the suit flats to third parties does not seem to be reasonable to me for the reason no specific person/persons to whom the flats were proposed to be transferred and/or alienated have been disclosed and more so, no specific date/dates to which the defendant/opposite party proposed to alienate the flats have been mentioned. Apart that I am not satisfied with the urgency in the matter. The presence of defendant/opposite parties are needed to dispose of the injunction petition. The prayer for ad interim injunction stands refused accordingly." 4.1 Let us now consider the legality of the impugned order in the facts of the instant case in the light of the settled principles regarding grant of temporary injunction and/or ad interim injunction in the suit. 5. Let us first of all consider as to whether any triable issue has been raised by the plaintiffs in the instant case. 6. On perusal of the pleadings made out by the plaintiffs in the plaint as well as in the injunction application, it appears that execution of the agreement was not disputed by the parties. Description of the flats agreed to be sold, consideration money to be paid for the said transaction and acceptance of the earnest money from the plaintiffs are all accepted by the defendant No. 1 as it appears from its advocate's letter dated 13th July, 2016 by which the defendant/respondent No. 1 cancelled the said agreement. 7. However, a dispute was sought to be raised in the said advocate's letter as to the exact nature of transaction which the parties had entered into. It is stated in the said advocate's letter that the said agreement, in fact, was not an agreement entered into between the parties for selling the suit flats by the defendant/respondent No. 1 to the plaintiffs. It is alleged that in fact the said agreement was a loan agreement and a sum of rupees forty-eight lakh which was paid to the defendant/respondent No. 1 describing the same as earnest money was in fact the loan amount which was lent and advanced by the plaintiffs to the defendant/respondent No. 1 for completion of the said project. 8. It is alleged that in fact the said agreement was a loan agreement and a sum of rupees forty-eight lakh which was paid to the defendant/respondent No. 1 describing the same as earnest money was in fact the loan amount which was lent and advanced by the plaintiffs to the defendant/respondent No. 1 for completion of the said project. 8. The contents of the said advocate's letter clearly indicates that a triable issue is raised in the said suit. That apart, a threat has been given by the defendant/respondent No. 1 through the said advocate's letter by stating that it is free to sell those flats to the purchasers of its choice with a bold statement that the money which was so advanced and/or lent by the plaintiffs in pursuance of the said agreement were all refunded to (i) Mr. Vivek Sarda and (ii) M/s. Sarda Estates Pvt. Ltd. as per the instructions given by the plaintiffs. It was also alleged in the said advocate's letter that part of such money lent and advanced has also been paid to the plaintiffs' building material suppliers viz., M/s. Prabhat Trading Company and M/s. Shree Padmavati Metaliks (P) Ltd. 9. Though such statements were made in the advocate's letter of the defendant/respondent No. 1 dated 13th July, 2016, but presently no material is placed before us where from we can come to the conclusion that such payments were made by the defendant/respondent No. 1 to those persons and/or companies as per the instructions of the plaintiffs. This leads us to hold that a triable issue has been raised in the plaint. 10. By the said letter, a genuine threat has also been given by the defendant/respondent No. 1 to sell the flats in question to the purchaser of its choice. If during the pendency of the suit, status quo is allowed to be altered and the defendant/respondent No. 1 is allowed to sell those disputed flats to the purchaser of its choice, multiplicity of proceedings will arise. Avoidance of multiplicity of proceedings is another principle for grant of interim injunction. 11. Mr. Banerjee, learned advocate appearing for the defendant/respondent No. 1 tried to impress upon us that the agreement for sale which is sought to be enforced is a very suspicious agreement. Avoidance of multiplicity of proceedings is another principle for grant of interim injunction. 11. Mr. Banerjee, learned advocate appearing for the defendant/respondent No. 1 tried to impress upon us that the agreement for sale which is sought to be enforced is a very suspicious agreement. He has drawn our attention to various clauses of the said agreement to conclude that the transaction which was proposed was not a genuine transaction relating to the sale of the flats in question. 12. We have considered the agreement as a whole. There are inconsistencies in the agreement. Though it was claimed by the plaintiffs that possession of those flats was delivered to the plaintiffs on the date when they signed the said agreement, but it appears from the agreement that even on the date when such agreement was entered into, construction did not commence. As such, on apparent look of the agreement itself, we agree with Mr. Banerjee that the agreement itself is a suspicious document. 13. That apart, it is rightly pointed out by Mr. Banerjee that the agreement which is sought to be enforced is insufficiently stamped. According to him, such an agreement cannot be enforced by the court of law until and unless the agreement is impounded. He has also rightly pointed out that such document can be impounded only when the original document is tendered into evidence. According to him, until the process of impounding is completed, the court, even for the purpose of deciding the interlocutory application, cannot consider the said agreement. We agree with such contention of Mr. Banerjee. 14. Mr. Banerjee has also rightly pointed out that here is the case where the plaintiffs have prayed for relief for protecting their possession under section 53A of the Transfer of Property Act. According to him, when an agreement for sale has been entered into between the parties and in pursuance of the said agreement, possession was delivered and the plaintiffs claim protection under section 53A of the Transfer of Property Act, the Court cannot look into the agreement for sale unless it is registered as per the Registration Act. We also agree with such contention of Mr. Banerjee as we find that the agreement which is sought to be enforced was not only insufficiently stamped, but also was not registered as it was required to be done as per the Registration Act. 15. We also agree with such contention of Mr. Banerjee as we find that the agreement which is sought to be enforced was not only insufficiently stamped, but also was not registered as it was required to be done as per the Registration Act. 15. Considering the overall facts and circumstances of this case, though we agree with Mr. Banerjee that the document which is sought to be enforced, as it stands now, is incapable of being enforced, but fact remains that the defendant/respondent No. 1 itself admitted by its advocate's letter that it received a sum of rupees forty-eight lakh either towards consideration for sale of the said property or by way of loan, lent and advanced for completion of the said project from the plaintiffs. The assertion which was made by the defendant/respondent No. 1 in its advocate's letter that the said sum of rupees forty-eight lakh has been refunded to the person and/or companies as per the instructions of the plaintiffs is yet to be established in the said suit. 16. As such, we feel that the interim order of injunction which we passed after admitting this appeal imposing restriction on the right of the defendants from transferring and/or selling and/or creating any third party interest in respect of the suit flats should be allowed to continue and accordingly we direct for continuation of the said interim order until the said sum of rupees forty-eight lakh is deposited by the defendant/respondent No. 1 in the court below with this rider that the fate of such deposit of rupees forty-eight lakh, if deposited by the defendant/respondent No. 1 in the court below, will ultimately be decided by the learned Trial Judge at the time of disposal of the plaintiffs' application for temporary injunction. 17. Needless to mention here that in case such money is deposited by the defendant/respondent No. 1 in the court below, the injunction restricting the defendant's right to transfer and/or sell and/or creating third party interest in the suit property will stand automatically lifted and the learned Trial Judge will invest such deposited amount in a short-term fixed deposit with any nationalised bank and keep the said deposit renewed from time to time till the disposal of the plaintiffs' application for temporary injunction. 18. 18. Leave is granted to the defendants to file affidavit-in-opposition to the plaintiffs' application for temporary injunction within three weeks from date; reply, if any, be filed by the plaintiffs within a week thereafter. 19. We request the learned Trial Judge to dispose of the plaintiffs' application for temporary injunction on its own merit and according to his own wisdom without being influenced by the interim arrangement which is so made by this Court while disposing of this appeal which is directed against an order refusing to grant ad interim injunction in favour of the plaintiffs. 20. Learned Trial Judge is further requested to dispose of the plaintiffs' application for temporary injunction as early as possible, but preferably within eight weeks after completion of affidavits between the parties. 21. It is made clear that the time limit which is so framed for filing of affidavits by the respective parties should be regarded as peremptorily fixed by this Court and the time limit will not be further extended for any of the parties under any circumstances. 22. Both the appeal and the application filed in connection therewith are, thus, disposed of. 23. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.