OD-151 GA No.557 of 2013 CS No.389 of 2012 GA No.1324 of 2013 GA No.1556 of 2013 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE MUKESH HIROO Versus RANITA MITRA BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date : 8th September, 2016.
Appearance: Mr.Dhruba Ghosh, Sr.Adv.Mr.Sarathi Dasgupta, Adv.Mr.D.N.Chunder, Adv.Ms.Lopita Banerjee, Adv.The Court : The parties agree to the form of the order which is proposed to be made.
The suit pertains to a flat at Middleton Street.
GA No.557 of 2013 is the plaintiff’s principal interlocutory application in the suit.
GA No.1324 of 2013 is the defendant’s application for modification of one of the initial ordeRs.GA No.1556 of 2013 is the plaintiff’s application for modification of another order.
GA No.1556 of 2013 was disposed of by an order dated May 15, 2013.
However, the order dated May 15, 2013 was set aside by an appellate order of August 14, 2013 and the petition was restored to the file of the interlocutory court.
The flat in question is in a building controlled by a cooperative society.
Owners of the flats are all members of the cooperative society.
The defendant’s father was a member of such society and the parties agreed sometime between 2006 and 2008 that the flat would be conveyed to the plaintiff at a consideration of Rs.50 lakh.
There are three documents which have been executed between the parties, one of them being of February 7, 2007 which acknowledged that a sum of Rs.40 lakh had been paid by the plaintiff to the defendant.
Since the conveyance could not be executed nor any registration of such conveyance attempted without the plaintiff becoming a member of the relevant cooperative society, it appears to have been agreed between the parties that the defendant would fiRs.apply for the membership standing in the name of her deceased father to be transferred to her name before the membership was transferred to the plaintiff’s name.
It further appears that there was a dispute between the defendant and the relevant cooperative society in such regard which culminated in the defendant complaining to the registrar of cooperative societies under the appropriate statute applicable in the State.
The registrar has passed an award requiring the membership to be transferred in favour of the defendant; but even in the absence of the plaintiff herein, the registrar has recorded in the award that the agreement between the parties herein for the transfer of the flat in favour of the plaintiff was bad.
As far as this suit is concerned, an initial order of status quo was passed on the plaintiff’s representation that the plaintiff was in possession of the flat in question.
When the defendant appeared in this Court and contested the plaintiff’s claim to possession, a special officer was appointed for the purpose of ascertaining the position.
The plaintiff claims to have been put in possession of the flat some time in 2009 and the plaintiff says that the plaintiff had attempted to undertake initial repair works to make the flat habitable, but the plaintiff is unable to indicate why the plaintiff did not take steps to use the flat or reside thereat.
What may have happened is that the other residents at the premises may have objected to the plaintiff as an outsider, as a consequence whereof the plaintiff may have kept the flat under the plaintiff’s lock.
It is equally possible that the plaintiff may never have been put in possession of the flat in question as the defendant had lodged a complaint that the plaintiff had forcibly taken possession of the flat.
At present, the special officer continues to be in physical possession of the flat with no one residing thereat.
The special officer apparently takes care to ensure that the flat is cleaned once a month at expenses borne by the parties.
Clause 5 of the memorandum of February 7, 2007 contemplates the membership of the cooperative society to be transferred in favour of the plaintiff.
Such clause also provides for the refund of the sum of Rs.40 lakh paid in advance by the plaintiff together with “bank interest” in the event the membership cannot be transferred in favour of the plaintiff.
The defendant claims to have forwarded a cheque for Rs.40 lakh by way of refund which the plaintiff, quite naturally, has not encashed.
The situation today is that the parties are not in possession of the flat and neither of them can enjoy the same.
It would be inequitable for the plaintiff who has paid Rs.40 lakh to be denied the possession that he seeks while the defendant continues to enjoy the money that was paid in or about the year 2007.
All the three applications, GA No.557 of 2013, GA No.1324 of 2013 and GA No.1556 of 2013, are disposed of by requiring the special officer to continue to retain possession of the flat in question till the completion of the trial of the suit and subject to the decree that may be made therein.
The special officer will be paid a monthly remuneration of 600 GM to be shared by the parties in equal measure.
The special officer will also be paid the actual expenses for cleaning the flat once a month, during which time it will be open for representatives of the parties to be present.
The defendant will deposit the sum of Rs.40 lakh together with interest thereon at the conservative rate of 9 per cent per annum from February 1, 2007 to August 31, 2016 which is less than the “bank interest” provided for in clause 5 of the memorandum dated February 7, 2007.
Such amount will be deposited by the defendant in a fixed deposit with a nationalised bank in the name of the defendant within four weeks from date.
A copy of the fixed deposit receipt will be forwarded to advocate for the plaintiff within five weeks from date, failing which the plaintiff will be entitled to apply for further ordeRs.The deposit will be maintained by the defendant without exercising any facility in respect thereof or the same being furnished as security or collateral in any manner whatsoever.
Since there is some confusion as to whether the written statement has been filed, the defendant is permitted time till November 4, 2016 to file the written statement, if it has not been filed already.
Documents should be discovered by November 30, 2016 and inspection completed forthwith thereupon so that the suit is made ready in all respects for it to be placed before the appropriate Bench in the new year.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SANJIB BANERJEE, J.) bp.