Debasis Roy vs Anil Paul Chowdhury and others

Jyotirmay Bhattacharya, J.—This first miscellaneous appeal is directed against an order being No. 6 dated 15th January, 2016 passed by the Learned Civil Judge (Senior Division), Barasat, North 24-Parganas in Title Suit No. 1361 of 2015 by which the plaintiff''s application for temporary injunction was rejected by the learned Trial Judge. Hence, the plaintiff has come before this Court with this first miscellaneous appeal challenging the legality and/or propriety of the said order passed by the learned Trial Judge.

The appeal is admitted for hearing.

Lower court records need not be called for as all the necessary papers are annexed to the stay application.

The learned counsel appearing for the respective parties jointly submit that since all the relevant papers necessary for disposal of the appeal are annexed to the stay application, the appeal may be heard without filing any paper book. Hence, requirement of filing paper book in this appeal is dispensed with.

Since all the parties who contested the proceeding before the learned Trial Judge are now represented before us, service of notice of appeal upon the respondents is dispensed with. The appeal thus be treated ready as regards service.

Immediately after the appeal is admitted for hearing, we are requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit. As such, we have taken up the appeal itself for hearing.

Heard the learned counsel appearing for the parties on the merit of this appeal and considered the materials on record including the impugned order.

Let us now consider as to whether the learned Trial Judge committed any illegality in passing the impugned order in the facts of the present case.

Here is the case where we find that the plaintiff filed a suit for specific performance of contract and for injunction. The plaintiff claims that the defendant no.1 and the defendant nos. 3 to 9 are the owners of the suit property. The defendant no.2 is the son of the defendant no.1. The defendant no.2 is the power of attorney holder of the defendant nos.3 to 9. The defendant no.1 did not execute any power of attorney in favour of the defendant no.2. He claimed that a ''Sammati Patra'', i.e. letter of consent was executed by Anil Paul Chaudhury, the defendant No.1 on 18th January, 2013 whereby he permitted the plaintiff to fill up and/or develop low land lying in various plots mentioned in the said document with an assurance that if the plaintiff pay the entire consideration money for sale of the property as mentioned in Clause 4 of the said document within three months from the date of execution of the said document, then the defendant No.1 will execute deed of conveyance for transferring the suit property in favour of the plaintiff. It was also provided therein that if the plaintiff is unable to pay the entire consideration money within three months from the date of execution of the said document, then the defendant No.1 will transfer and/or convey only portion of the said property proportionate to the consideration money which will be paid by the plaintiff to the defendant No.1 and rest of the land will be sold by the defendant No.1 to the other purchasers and the plaintiff will have no objection to such transfer.

It was further alleged by the plaintiff that in pursuance of such ''Sammati Patra'', consent letter, the plaintiff has paid a sum of Rs.1,27,99,300/- (Rupees one crore twenty seven lakhs ninety nine thousand three hundred) only to the defendant No.1. Detail of such payment is mentioned of the plaint. Since the defendant No1 started selling the suit property to diverse purchasers, the plaintiff has filed the present suit for specific performance of contract and for injunction for restraining the defendants from transferring the suit property in favour of any stranger, purchaser and/or from dispossessing the plaintiff therefrom.

After filing the said suit, the plaintiff filed an application for temporary injunction praying for interim order restraining the defendant Nos. 1 to 9 from transferring the suit property in favour of any stranger, purchaser and/or from dispossessing the plaintiff from the suit property during the pendency of the suit.

The case made out by the plaintiff in the plaint was reiterated in the injunction application.

The defendant Nos.1 to 9 contested the plaintiff''s said application for temporary injunction by filing a written objection denying the materials allegations made out by the plaintiff in the said application for temporary injunction.

The learned Trial Judge rejected the plaintiff''s application for temporary injunction by disbelieving the money receipts dated 2nd October, 2012 and 14th October, 2012 which were allegedly granted by the defendant No.1 in connection with the disputed transaction.

The learned Trial Judge also expressed his doubt as to executibility of the consent letter which according to the learned Trial Judge cannot be termed as an agreement for sale. The learned Trial Judge also held that the ''consent letter'' was executed by the defendant No.1 alone for himself and not on behalf of the remaining defendant Nos.3 to 9. The learned Trial Judge also held that the defendant Nos. 3 to 9 never authorised the defendant No.1 to deal with the suit property as their constituted attorney. As such doubt was expressed as to the executibility of the said consent letter against the Defendant Nos. 3 to 9. Defendant Nos. 3 to 9 appointed the defendant No.2 as their constituted attorney to deal with the suit property but the defendant No.2 did not join himself in the said consent letter to acknowledge his consent for authorising the plaintiff to fill up the low lying land and/or to sell the suit property to the plaintiff.

With these findings, the learned Trial Judge rejected the plaintiff''s application for temporary injunction as the learned Trial Judge was of the view that the balance of convenience and inconvenience does not appear to be in favour of the plaintiff and the plaintiff has failed to make out a prima facie case for grant of temporary injunction in his favour.

The legality of the said judgement is under our scrutiny in this appeal.

We have examined the ''Sammati Patra'', letter of consent. The said document was executed by the defendant No.1 alone. On reading the said document, as a whole, we do not find any mention in the said document that the said document was executed by the defendant No.1 for himself as well as on behalf of the defendant Nos. 3 to 9. There is nothing on record to show that the defendant Nos. 3 to 9 ever authorised the defendant No.1 to deal with the property as their constituted attorney. As such, even assuming that there was any deal between the defendant No.1 and the plaintiff, such deal in any event cannot bind the defendant Nos. 3 to 9.

As such, we have still doubt as to whether such a document can be termed as an agreement for sale and even if we accept this document as an agreement for sale, still then we hold that such document cannot be enforced against the defendant Nos. 3 to 9.

In this regard, we have also examined the money receipts which were annexed to the injunction application. In one of the money receipts which is appearing at page 103, we find that the defendant No.1 admitted therein about the receipt of a sum of Rs.41 lakhs out of Rs. 42 lakhs from the plaintiff on 2nd October, 2012 as advance for sale of only one plot of land being Dag No. 2199. The said defendant no.1 also acknowledged the receipt of a further sum of Rs. 1 lakh from the plaintiff on 14th October, 2012. Though these two payments were all accepted by the defendant no.1 relating to transaction in respect of only one plot i.e. plot no. 2199, before execution of the ''Sammati Patra'' i.e. letter of consent dated 18th January, 2013 but no reference was given about the receipt of the said sum of Rs.42,00,000/- (Rupees forty two lakhs) by the defendant No.1 from the plaintiff in the said letter of consent.

The defendants also in their written objection admitted the receipt of sum of Rs. 41 lakhs from the plaintiff. The defendant however, claimed that the said sum of Rs. 41 lakhs was received by the defendant no. 1 from the plaintiff and on receipt of the said sum of Rs.41,00,000/- various plots of land appertaining to plot no. 2199 were transferred to various purchasers, procured by the plaintiff.

The defence which was so taken by the defendants, is much more reliable than the plaintiff''s claim made out in the plaint as we find that those payments were all made prior to the execution of the ''Sammati Patra'', i.e. letter of consent but no reference about the receipt of such payment relating to the transaction proposed to be made in the said ''Sammati Patra'', was made in this said document. Had the said sum of Rs. 41 lakhs been received by the defendant no.1 in relation to the proposed transaction under the said ''Sammati Patra'' dated 18th January, 2013, then reference of such payment of the said 41 lakhs would certainly have been mentioned in the said document dated 18th January, 2013.

The other document i.e. the money receipt appearing at page 109 of the injunction application is also doubtful as we find that though various sum of money was paid on different dates prior to the execution of the said ''Sammati Patra'' but no mention about the payment of the said sum of rupees was mentioned in the said ''Sammati Patra''.

On bare perusal of the said document, it appears to us that normal flow of writing was not followed in the said document, which also creates some suspicion about the genuinity of the said document.

Be that at it may, in these set facts, we are unable to hold that the plaintiff succeeded in making out a prima facie case for grant of injunction in favour of the plaintiff. Though the plaintiff claimed that they were put into possession of the suit property on the basis of the said ''Sammati Patra'' but neither the said ''Sammati Patra'' nor any other document produced by the plaintiff shows that the physical possession was ever delivered to the plaintiff.

As such, we decline to give any interim protection regarding the possession of the plaintiff in respect of the suit property.

We do not find any merit in this appeal. However, we feel that since the litigation has already started between the parties concerning, the sale of the suit property and the suit is required to be tried on evidence, we feel that justice will be sub-served, if henceforth whenever any sale and/or transaction will be made by the defendant no.1 in respect of the suit property, the vendor viz. the defendant No.1 mentions about the pendency of this litigation between the parties in all deed of conveyance and/or transaction deed to be executed by him in favour of his purchaser with a rider that the fate of such transaction will be ultimately governed by the result of the suit. Accordingly we direct that whenever the suit property or any potion thereof will be sold by the defendant No.1, he will have to mention about the pendency of this suit in every transaction deed and the fate of the sale will ultimately depend upon the result of the suit.

With these observations, the appeal is disposed of.

Re: Application under Order 41 Rules 27 CPC.

The original document which could not be submitted before the learned Trial Judge, has been produced before us in course of hearing of this application and we have taken note of the original document. As such the application for additional evidence is virtually allowed by this Court.

The said application is also disposed of.

It is made clear that the observations which are made by this Court herein above, are made only for disposal in this appeal.

As such, the Learned Trial Judge is absolutely free to decide the issues involved in this suit independently and dispose of the same according to its own wisdom without being influenced by any of the observations made herein above.

Let it be recorded herein that all the original documents were returned to the learned Advocate of the appellant after the judgment was delivered in Court.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.