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2017 DIGILAW 930 (GAU)

Orion India (P. ) Ltd. v. Mukul Sharma

2017-07-17

PRASANTA KUMAR DEKA

body2017
JUDGMENT : 1. Heard Mr. D.K. Mishra, learned senior counsel assisted by Mr. B. Prasad, learned counsel appearing on behalf of the petitioner. Also heard Mr. P. Sharma, learned counsel appearing on behalf of the respondent. 2. The present petitioner is the defendant in Title Suit No. 195/1998 filed by the plaintiff-respondent. The plaintiff-respondent filed Title Suit No. 195/1998 in the Court of Civil Judge No. 1, Guwahati against the present defendant-petitioner for specific performance of the contract entered by them vide agreement dated 25.8.1992 (Ext. 1). In the said suit following were the reliefs prayed for by the plaintiff-respondent: “It is, therefore, prayed that your honour may be pleased to pass a decree for: (i) Specific performance of the contract of sub-clause Nos. (i), (ii) and (iii) of clause No. 1 of agreement bearing Deed No. 5581 dated 25.2.1992 by directing the defendant to allot the balance built up area of 4623.55 sq. ft. on the ground floor and first floor and remaining balance area in other floors to the plaintiff in the north block building known as “Orion Tower” as described in the schedule below. (iii) directing defendant to deliver possession and execute necessary deeds to effectuate allotment as per the claim made by the plaintiff. (iv) Rs. 3,00,000 towards principal amount and Rs. 1,50,000 towards interest @ 12% per annum from July 1994 to till 22.9.1998. (v) Further interest on the aforesaid amount of Rs. 4,50,000 @ 12% p.a. from the date of filing of the suit till realization. (vi) Rs. 20,00,000 towards compensation for loss of income due to non-fulfillment of the agreement. (vii) Permanent injunction restraining the defendant, its directors, representatives and employees, etc., from raising further construction on the land as described in the schedule below and from selling or renting out any apartments, roofs, floors, etc., till fulfillment of sub-clause Nos. (i), (ii) and (iii) of clause No. 1 of the agreement. (viii) Cost of the suit. (ix) Any other relief or reliefs to which the plaintiff is found entitled under the law and equity.” 3. The trial court vide judgment and decree dated 26.9.2005 partially decreed the suit. The said judgment and decree of the trial court was challenged by the defendant-petitioner in RFA No. 38/2006 in the High Court. (viii) Cost of the suit. (ix) Any other relief or reliefs to which the plaintiff is found entitled under the law and equity.” 3. The trial court vide judgment and decree dated 26.9.2005 partially decreed the suit. The said judgment and decree of the trial court was challenged by the defendant-petitioner in RFA No. 38/2006 in the High Court. The said First Appellate Court vide judgment and decree dated 1.9.2015 set aside the judgment and decree passed by the trial court and remanded the same to the trial court to decide an issue framed by it and pass the judgment afresh. In the said First Appeal, this court held that the plaintiff-respondent is entitled to get 12,172 square feet built up area including the common area as per agreement dated 25.8.1992. It was further held that the plaintiff-respondent was not entitled for the specific performance of clause 1(i), (ii), (iii) of the agreement dated 25.8.1992. After holding as such, this court as First Appellate Court remanded the matter to the trial court to decide as to what extent of total built up area including common area was handed over to the plaintiff-respondent and how much balance built up area including common area is to be handed over to the plaintiff-respondent on the 8th floor of the building. 4. The plaintiff-respondent filed an appeal before the hon'ble Apex Court against the aforesaid judgment and order passed in first appeal. The hon'ble Apex Court vide judgment dated 10.5.2016 interfered with the judgment and decree of this court only with regard to the finding of the built up area. The hon'ble Apex Court on the basis of Exts. 3 and 4 (letters written by the defendant-petitioner dated 9.3.1998 and 16.3.1998 to the plaintiff-respondent) held that the defendant-petitioner cannot resile after accepting the definition of the built up area as mentioned in the said Exts. 3 and 4. The hon'ble Apex Court thereafter remanded the matter to the trial court to make the calculation of entitlement by plaintiff-respondent in terms of the judgment passed by the said hon'ble Apex Court. 5. The plaintiff-respondent vide Petition No. 3547 dated 21.7.2016 filed an application before the trial court to appoint a commission to ascertain and recalculate the complete “built up area” of the “Orion tower” in pursuant to the order dated 10.5.2016 in SLP(C) No. 32544 of 2015 passed by the hon'ble Supreme Court. 5. The plaintiff-respondent vide Petition No. 3547 dated 21.7.2016 filed an application before the trial court to appoint a commission to ascertain and recalculate the complete “built up area” of the “Orion tower” in pursuant to the order dated 10.5.2016 in SLP(C) No. 32544 of 2015 passed by the hon'ble Supreme Court. It is pertinent to mention here that in the said petition, the plaintiff-respondent sought for some other reliefs like verification of the undertakings filed by the tenants under the petitioner/defendant as per direction dated 29.11.2001 in Civil Appeal No. 8172/2001 passed by the hon'ble Supreme Court. Against the said petition, the present defendant-petitioner raised its objection and suggested the trial court to calculate the built up areas as follows: “17. The defendant submits that the ‘built up areas’ can be calculated by this hon'ble Court on the basis of the above facts and circumstances, and determined as below: (i) To calculate the ‘built up area’ to be allotted to the plaintiff, based on the definition of ‘built up area’ given by the hon'ble Supreme Court that the ‘built up area’ does not include common areas such as lift well, stairs, lobby, corridor, duct, etc., by using the Dag. Nos. GB A/891/03A, GBA/891/04A and GBA/891/05A by M/s. Gautam Baruwa & Associates (Ext. 2). (ii) To consider the ‘built up area’ already handed over to the plaintiff, vide Ext. 1 at Annexure E on the First Mezzanine and Third Floors of the building, constructed as per the drawing prepared by M/s. Gautam Baruwa & Associates and approved by the Guwahati Metropolitan Development Authority. (iii) To calculate from the above, the balance ‘built up area’ to be handed over to the plaintiff on the 8th Floor of the building. 18. In view of what has been stated above, this hon'ble Court may kindly peruse the judgment and order dated 1.9.2015 passed by the hon'ble High Court in RFA No. 38/06 and the judgment and order dated 10.5.2016 passed by the hon'ble Supreme Court in the Civil Appeal No. 4997/16 and may be pleased to pass necessary orders as per the mandate of the said judgments.” 6. The learned trial court vide its order dated 14.9.2016 passed in Title Suit No. 195/1998 allowed the said Petition No. 3547 dated 21.07.2016 in the following manner: “Under the above circumstances considering the prayer made through Petition No. 3547/2016 praying for appointing of commissioner in order to calculate/measure the built up area, already handed over to the plaintiff and the position mentioned through the objection that commission shall be appointed only for the purpose indicated in the judgment and order dated 1.9.2015 passed by the hon'ble High Court and also for compliance of the judgment dated 10.5.2016 passed by the hon'ble Supreme Court and no other ground can be urged for appointment of the commission, this court is with the opinion that in order to dispose the suit after calculating of the built up area as per direction of the hon'ble Supreme Court, appointing of commissioner to calculate the built up area (excluding common area such as corridor, etc.) already handed over to the plaintiff will positively help proper adjudication of the matter in the line of the direction of the hon'ble Supreme Court. Both the learned advocate on behalf of the both sides suggested the people having proper experience in this line such as Chief Engineer, GMDA or Chief Engineer, GMC may be directed to cause measurement of the built up area. Under the above circumstances at this stage it is directed that the Chief Engineer, Guwahati Metropolitan Development Authority will cause measurement of the built up area handed over to the plaintiff by engaging any technical person not below the rank of Assistant Engineer and to forward a report within the next fixed date of this case. The Chief Engineer Guwahati Metropolitan Development Authority is to forward the report touching the following point: (a) What area has been handed over to the plaintiff in the schedule property excluding all common space. Fixing 1.11.2016 for forwarding report and further order.” 7. Thereafter the present defendant-petitioner filed an application under section 151, CPC for modification/alteration/addition of direction dated 14.9.2016 for calculation of built up area to be given to the plaintiff-respondent. Fixing 1.11.2016 for forwarding report and further order.” 7. Thereafter the present defendant-petitioner filed an application under section 151, CPC for modification/alteration/addition of direction dated 14.9.2016 for calculation of built up area to be given to the plaintiff-respondent. In the said petition, the defendant-petitioner sought for the following: “Prayer (a) An order modifying the order dated 14.9.2016 passed by this hon'ble Court to the extent of issuing the following two further directions: (i) Direction to the Chief Engineer of GMDA to also calculate the ‘built-up’ area (as laid down by the hon'ble Supreme Court) to which the non-applicant (plaintiff) is entitled to as per clause 1 of the written agreement dated 25.8.1992 between the parties, and (i) Direction permitting the parties to this litigation to be present at the time of measurements and calculations of ‘built-up’ area (as laid down by the hon'ble Supreme Court) to be made by the expert(s). And (iii) Such further or other order or orders as deemed fit by this hon'ble Court in the interest of justice. AND FOR THIS THE APPLICANT (DEFENDANT) AS IN DUTY BOUND SHALL EVR PRAY.” 8. The aforesaid petition which was registered as Petition No. 5271/2016 was disposed of vide order dated 15.3.2017 passed in MC No. 666/2016 arising out of Title Suit No. 195/1998 holding as follows: “I have perused the direction of the hon'ble Supreme Court and found that the hon'ble Supreme Court has set aside the judgment of the hon'ble High Court with regard to finding of the built up area and directed this court to make calculations. I have considered the prayer in relation with this petition and found the followings: (i) That the authority has forwarded report and at this stage, in presence of other materials on record, in opinion of court there is no necessity to re-measure the premises to calculate the built up area, particularly as per the written agreement. (ii) The hon'ble Supreme Court directed this court only to make calculation in terms of the judgment and to dispose the suit expeditiously and after the report forwarded by the GMDA and in presence of the various Exts., this court is with the opinion that if the prayer is allowed, which is not necessary, will only cause delay. Considering all aspects, this court is not inclined to allow the prayer which accordingly is rejected. This miscellaneous case is disposed of.” 9. Considering all aspects, this court is not inclined to allow the prayer which accordingly is rejected. This miscellaneous case is disposed of.” 9. Being aggrieved, the petitioner/defendant has preferred this revision petition challenging the said order dated 15.3.2017 passed in MC No. 666/2016. 10. Mr. Mishra, the learned senior counsel submits that there is clear finding by the High Court that the entitlement of the plaintiff-respondent calculated as 12,172 square feet includes common area. The said finding has not been interfered by the hon'ble Supreme Court. Therefore, it is necessary to calculate the entitlement of the plaintiff to the “built up area” excluding common area in terms of the judgment of the hon'ble Apex Court and only after that it would be relevant to find out how much “built-up area” without common area had already been handed over to the plaintiff-respondent and what would be the balance “built up area” to be handed over to the plaintiff-respondent. 11. Mr. Mishra further submits that the agreement, i.e., Ext. 1 was executed in the year 1992 and after five years of the said execution of Ext. 1, vide Ext. H (i.e., the letter dated 15.9.1997 written by the plaintiff-respondent to defendant-petitioner admitting inclusion of common area in total entitlement of 12,127 square feet) understood that the built up area include common area. Subsequently, the plaintiff-respondent disputed the said position, and the present defendant-petitioner accepted and agreed to the meaning that “built up area” does not include common area (vide Exts. 3 and 4). The hon'ble Apex Court clearly held that the “built up area” would mean what is understood as per Exts. 3 and 4 inasmuch as the defendant-petitioner accepted the said definition as raised by the plaintiff-respondent. Under such circumstances, the “built up area” so entitled for by the plaintiff-respondent is supposed to be changed, inasmuch as, on the earlier occasion the plaintiff-respondent understood the meaning of “built up area” to include common area but subsequently the same was changed to which the defendant-petitioner accepted such change in the meaning of the “built up area”. So it is quite natural that as per the said definition as held by the hon'ble Apex Court, the total entitlement would automatically be changed inasmuch as the said entitlement would be exclusive of the common area. So Mr. So it is quite natural that as per the said definition as held by the hon'ble Apex Court, the total entitlement would automatically be changed inasmuch as the said entitlement would be exclusive of the common area. So Mr. Mishra submits that the said proposition was urged before the trial court by filing the said application under section 151 of the CPC, which the court below ought to have accepted and also a writ ought to have been issued to the commission to calculate the entitlement by the plaintiff-respondent as a whole, the area, exclusively, without including any common area. Having not done so, from the order impugned in this revision petition it is apparent that the court below keeping constant the total entitlement of “built up area” as per Ext. 1, is going to subtract the common area already accepted by the plaintiff-respondent vide Ext. H and direct the defendant-petitioner to allot the total entitlement of 12,127 square feet excluding the common area. Hence, apprehending such action which is beyond the jurisdiction of the court below, the petitioner has filed the petition for proper direction from this court. 12. Mr. Sharma, appearing on behalf of the respondent submits that the present application under article 227 is not at all maintainable. He submits that the order dated 14.9.2016 on the basis of which the trial court was satisfied to issue the commission, remained unchallenged and the same has attained its finality. On the other hand, the defendant-petitioner in the guise of an application under section 151, CPC has, in fact sought for review of the order dated 14.9.2016 which was dismissed by the trial court. Under such circumstances, there is no point in exercising the jurisdiction under article 227 by this court. It is further submitted that while disposing of the said application under section 151, CPC vide order dated 15.3.2017, the learned court below has expressed its satisfaction and came to the finding that at the stage of the suit, and with other materials on record, there is no neoessity to re-measure the premises to calculate the “built up area” entitled by the plaintiff-respondent other than the one stipulated in the written agreement. Once the court below has applied its discretion, this court cannot enforce any other discretion by this court to act in a manner other than the one, opted by the trial court invoking jurisdiction under article 227 of the Constitution of India. There is no perversity, no failure of jurisdiction on the part of the court below while passing the impugned order. So, Mr. Sharma submits that there is no necessity for any interference by this court so far the impugned order is concerned. 13. Mr. Sharma further submits that the entitlement of the plaintiff-respondent under no circumstances could be changed, as the hon'ble Apex Court has never gave its finding to that effect nor the High Court while deciding the first appeal also changed the said entitlement. As such, he submits that there is no force in the submission of Mr. Mishra that if the common area is to be excluded from the entitlement of the plaintiff, then the area without such common area is to be re-calculated and the entitlement by the plaintiff is also to be re-calculated. Finally, Mr. Sharma submits that the revision petition is liable to be dismissed. 14. Mr. Mishra, in response to the submission that the jurisdiction under article 227 cannot be invoked, submits that it can safely be concluded that while a court has misdirected in its understanding and heading towards an act and/or action not permitted by the jurisdiction it is confined, then this court under article 227 can correct such mis-direction. In support of his submission, Mr. Mishra relies paras 38(4) and (6) of Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 as follows: “38. (4) Supervisory jurisdiction under article 22 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving not any lengthy or complicated argument or a long-drawn process of reasoning. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving not any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.” 15. Mr. Mishra also relies para 27 of Sameer Singh v. Abdul Rab, (2015) 1 SCC 379 as follows: “27. Whether the executing court, in the obtaining circumstances, has correctly expressed the view that it has become functus officio or not and thereby it has jurisdiction or not, fundamentally pertains to rectification of a jurisdictional error. It is so as there has been no adjudication. If a subordinate court exercises its jurisdiction not vested in it by law or fails to exercise the jurisdiction so vested, the said order under section 115 of the Code is revisable as has been held in Joy Chand Lal Babu v. Kamalaksha Chaudhury (9). The same principle has been reiterated in Keshardeo Chamria v. Radha Kissan Chamria (10) and Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi (11). Needless to emphasise, the said principle is well-settled. After the amendment of section 115, CPC w.e.f. 1.7.2002, the said power is exercised under article 22 of the Constitution as per the principle laid down in Surya Dev Rai (supra). Had the executing court apart from expressing the view that it had become functus officio had adjudicated the issues on merits, the question would have been different, for in that event there would have been an adjudication.” Thus, reiterating his submission, Mr. Mishra submits that there is a strong apprehension on the part of the petitioner that the learned trial court is all set to act in violation of the terms of the judgment passed by the hon'ble Supreme Court and as such this court should interfere. 16. Mr. Sharma objecting to the submission of Mr. Mishra, submits that this court cannot invoke the power of superintendence under article 227 of the Constitution of India, merely, on the drop of a hat, and in support of his submission relies Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 . 17. Considered the submissions of the learned counsel. Sharma objecting to the submission of Mr. Mishra, submits that this court cannot invoke the power of superintendence under article 227 of the Constitution of India, merely, on the drop of a hat, and in support of his submission relies Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 . 17. Considered the submissions of the learned counsel. From the submissions, one thing is clear that the dispute between the parties as of now, is restricted with regard to the entitlement of the plaintiff-respondent so far 12,172 square feet is concerned, excluding the common area. On one hand, the plaintiff-respondent submits that he is entitled as per the terms made and accepted by the defendant-petitioner of Ext. 1, Agreement which comes to 12,172 square feet built up area, but excluding the common area. On the other hand, the defendant-petitioner submits that as there is a change in the understanding of the term “built up area” as such the said entitlement of 12,172 square feet would change, inasmuch as, admittedly the plaintiff-respondent vide Ext. H specifically admitted that the said entitlement of 12,172 square feet includes common area. Now owing to the change in the situation the entitlement of the plaintiff-respondent would accordingly be the one after subtracting the common area included therein the total entitlement of 12,172 square feet of built up area. 18. This court, is exercising the jurisdiction under article 227 examining as to the correctness of the order impugned in this petition, i.e., the order dated 15.3.2017 as per the jurisdiction conferred on it. This court is not sitting as the Appellate Court examining the findings of the court below as per the claim of the parties to the suit. The hon'ble Apex Court has remanded the matter by setting aside the judgment of the High Court with regard to the finding on the “built up area” and restoring the one passed by the trial court. This indicates that the trial court is to decide the entitlement as per the definition of “built up area” as held by the hon'ble Apex Court. In such a situation, the opinion of this court is that the trial court while passing the impugned order dated 15.3.2017 was satisfied with the materials on record and decided to adjudicate the dispute between the parties as per the guideline laid down by the hon'ble Apex Court. In such a situation, the opinion of this court is that the trial court while passing the impugned order dated 15.3.2017 was satisfied with the materials on record and decided to adjudicate the dispute between the parties as per the guideline laid down by the hon'ble Apex Court. The said discretion, in the opinion of this court ought not to be interfered, inasmuch as, if the defendant-petitioner find itself aggrieved by any of the findings given by the trial court, that can be raised in the higher forum as prescribed by law, which is always open to the petitioner. 19. In the opinion of this court, the passing of the said impugned order cannot be termed to be failure on the part of the trial court to exercise the jurisdiction so circumscribed by the hon'ble Apex Court. It cannot be held that the trial court has exceeded its jurisdiction, inasmuch as, the trial court has not yet given its finding with regard to the entitlement of the plaintiff-respondent. The trial court had two options before it — (i) to go ahead within the measurement already carried out by the commissioner as per order dated 14.9.2016, or (ii) to consider the modification put forward by the defendant-petitioner through the petition filed under section 151, CPC. The trial court opted for the former option discarding the suggestion for modification of order dated 14.9.2016 with a reasoning, that there are materials on record to arrive at a finding as per the direction of the hon'ble Apex Court. Such option preferred by the trial court, as referred in the impugned order dated 15.3.2017 cannot be considered to be a gross/patent error for interference by this court under article 227 of the Constitution of India, if considered in the light of the ratio laid down in Surya Devi Rai's case (supra). The submission of Mr. Mishra, that this court should invoke article 227 of the Constitution of India on the basis of the apprehension that the trial court is going to exceed its jurisdiction by declaring the entitlement of the plaintiff-respondent in a manner which ought not to have been exercised by the trial court has not yet happened in reality. The submission of Mr. Mishra, that this court should invoke article 227 of the Constitution of India on the basis of the apprehension that the trial court is going to exceed its jurisdiction by declaring the entitlement of the plaintiff-respondent in a manner which ought not to have been exercised by the trial court has not yet happened in reality. The defendant-petitioner has its proper forum to agitate, in the event of such wrong exercise of jurisdiction even after a finding is given by the trial court as per the discretion so opted by it. So there is no merit in this petition and this court refrains from interfering with the impugned order invoking jurisdiction under article 227 of the Constitution of India. 20. Accordingly, this court dismiss this petition. 21. Interim order passed earlier stands vacated.