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United Commercial Bank Vs. Sanatan Bastushilpa Pratisthan Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 324 of 1980
Judge
Reported inAIR1981Cal146
ActsCode of Civil Procedure (CPC) , 1908 - Section 16 - Order 2, Rule 2 - Order 8, Rule 11; ;Code of Civil Procedure (CPC) , 1859 - Sections 5 and 6; ;Code of Civil Procedure (CPC) , 1877 - Sections 6 and 16; ;Specific Relief Act, 1963 - Section 22(1) and 22(2)
AppellantUnited Commercial Bank
RespondentSanatan Bastushilpa Pratisthan Pvt. Ltd.
Appellant AdvocateSankar Ghosh and ;Sudipta Roy, Advs.
Respondent AdvocateSomnath Chatterjee and ;Aninda Mitra, Advs.
Cases ReferredOm Prakash v. Anar Singh
Excerpt:
- .....could obtain a decree in the suit, execution being continuation of the suit, which would make the suit a suit for land.12. it was lastly contended that even if this court did not accept the contention that claim for specific performance as made in prayer (a) of the plaint involved question of possession and was therefore a suit for land within the meaning of clause 12 of the letters patent, prayer (d) of the plaint undoubtedly involved such question, and that part of the claim was clearly a suit for land. as, leave under clause 12 of the letters patent could be revoked with regard to a particular cause of action such leave should therefore be revoked with regard to prayer (d) of the plaint 13. mr. somnath chatterjee, learned counsel for the plaintiff-respondent urged on the other hand.....
Judgment:
ORDER

C.K. Banerji, J.

1. This is an application by the defendant Sanatan Bastushilpa Pratisthan for revocation of leave under Clause 12 of theLetters Patent, stay of the suit and all proceedings therein and for revocation of the leave under Order II, Rule 2 of the Code of Civil Procedure.

2. The defendant is the owner of premises No. 121/1, Netaji Subhas Ch. Eose Road, Tollygunge, and has constructed a multistoried building therein named 'Regent Towers' consisting of ground floor and nine upper floors comprising of seventy two flats. By an agreement dated October 10, 1979 the plaintiff agreed to buy and the defendant agreed to sell six two-bed-roomed fiats and six three-bed-roomed flats having distinctive numbers situate on various floors of the said building at or for a total price of Rs. 13,45,200/-, on the terms and conditions contained in the said agreement which was executed at 10, Brabourne Road, Calcutta within the jurisdiction of this Court.

3. Pursuant to and in terms of the said agreement on or about October 11, 1979 the defendant furnished a bank guarantee for Rs. 10,76,160/- and the plaintiff thereupon paid to the defendant on December 11, 1979 the said sum of Rs. 10,76,160/- being eighty per cent of the total agreed price, and the defendant delivered up possession of the said twelve flats and made over twelve sets of keys in respect thereof to the plaintiff. There were certain disputes between the parties with regard to the claim of the defendant for an additional amount of Rs. 1,38,000/-. Sometime in March, 1980 the defendant put additional padlocks to each of the said flats over the locks put by the plaintiff or its officers and cut off the electric connection to the said flats. By a letter dated 14/18th March, 1980 the defendant contended that the said agreement stood cancelled on the expiry of four months stipulated in the said agreement which was, however, not accepted by the plaintiff. Thereupon this suit was instituted by the plaintiff against the defendant. The relevant prayers in the plaint with which we are concerned in this application are:--

(a) Decree for specific performance of the said agreement for sale dated October 10, 1979.

(d) Perpetual injunction do issue restraining the defendant and their servants and agents and assigns from denying or disputing its obligations under and from acting in any manner contrary to or inconsistent with the said agreement dated October 10, 1979.

(e) The letter dated March 14/18, 1980 issued by the defendant to the plaintiff be declared invalid and the same be directed to be delivered up and be cancelled.

4. Prayers (b) and (c) are usual prayers in such suit for specific performance, for execution and registration of the document.

5. Mr. Sankar Ghosh, learned counsel for the defendant petitioner urged that prayer (d) of the plaint involved possession of an immovable property situate outside the jurisdiction of this Court and he referred to paragraphs 13, 14 and 23 of the plaint. In paragraph 13 of the plaint the plaintiff has alleged that the defendant has put additional padlocks on the said fiats on the top of the locks already put by the plaintiff OF its officers and had cut off electric connection to the said flats. In paragraph 14 of the plaint it is alleged that the defendant wrongfully put the said padlocks with a view to pressurise the plaintiff to yield to the illegal and wrongful demands of the defendant and in paragraph 23 of the plaint the plaintiff has claimed an injunction restraining the defendant from denying or disputing their obligations under or acting in any manner contrary to or inconsistent with the said agreement by keeping the said padlocks on the said flats or otherwise. Mr. Ghosh urged that prayer (d) of the plaint flowed from possessory right claimed by the plaintiff and is based on interference with the possession of the plaintiff by the defendant. The plaintiff has also pleaded that the defendant has cancelled the said agreement. The case of the plaintiff is that it obtained possession of the said flats from the defendant and prayer (d) flows not only from the said agreement but also from possession of the said flats given by the defendant to the plaintiff. The plaintiff has pleaded possession and such possession has been endangered by cancellation of the agreement by the defendant and also by putting padlocks preventing the right of possession of the plaintiff and this is an issue which has to be tried in the suit arising from the pleadings in the plaint. By prayer (d) the plaintiff is seeking to exercise its possessory right and is asking restoration or recovery of possession through perpetual injunction from Court. In Sudamdih Coal Co. Ltd. v. Empire Coal Co. Ltd. reported in AIR 1916 Cal 557 where a Division Bench of this Court held that the expression 'suit for land' was used in Clause 12 of the Letters Patent because there was its equivalent in Section 6 of the Codes of Civil Procedure, 1859 and 1877 which covered suits for the recovery of immovable property, (with or without rent or profits), for partition of immovable property, for foreclosure or redemption of mortgage of immovable property, for determination of any otherright to or interest in immovable property and suits for compensation for wrong to immovable properly.

6. In Debendra Nath Chowdhuri v. Southern Bank Ltd. reported in : AIR1960Cal626 , where a Division Bench of this Court held that the plaintiff in a suit for specific performance need not ask for leave under Order II, Rule 2 of the Code of Civil Procedure because subsequent to the execution of the conveyance a further suit for possession could be filed on the strength of such title and in a suit for specific performance where the only relief claimed was a decree for execution of a document of transfer and nothing else it was not a suit for land, but it was a suit for enforcing a contract where the Court was required to act only in personal and the cause of action for such specific performance was not the cause of action for the recovery of land as such or recovery of possession of land as such.

7. In Om Prakash v. Anar Singh reported in : AIR1973All555 a single Judge of the Allahabad High Court relying on Section 16(d) of the Code of Civil Procedure 1908 which provides that suits are to be instituted where subject-matter is situate, subject to the pecuniary and other limitations prescribed by any law in respect of a suit for determination of any right or interest in immovable property held that relief of injunction to restrain the defendant from interfering with the plaintiff's right to hold or to enjoy the property could be granted by the Court only after determining that the plaintiff had such a right and thus a suit for injunction in respect of an immovable property had to be instituted in the Court in whose territorial jurisdiction the property lay.

8. Mr. Ghosh next urged that by prayer (a) of the plaint the plaintiff was seeking enforcement of a term in the agreement for sale as to possession. Therefore the suit was not a suit for specific performance simpliciter. To decide this issue, that the plaintiff was in possession of the said flats had to be gone into and thus the suit was a suit for land. Under Clause 4 of the said agreement possession of the said flats were to be given to the plaintiff within a certain time upon payment of certain amount by the plaintiff to the defendant. Thus specific performance of the said agreement included delivery of possession of the said flats to plaintiff and determination of the right of possession of the plaintiff of the said flats prior to completion of the sale in terms of Clause 4 of the said agreement. The Court has to go into anddecide in the suit the right of the plaintiff to possession and to retain such possession, which was a question involved in prayer (a) of the plaint.

9. Mr. Ghosh submitted that a suit forspecific performance simpliciter only by execution and registration of conveyance in respect of land situate outside the jurisdictionof this Court and where possession was notdirectly or indirectly asked for, was not asuit for land. But in this suit the plaintiffclaims possession and for removal of theobstruction to its possession in addition tospecific performance and thus it is a suit forland.

10. In support of his above contention Mr. Ghosh relied on three Single Bench decisions of this Court: (1) A decision of S. R. Das, J. (as his Lordship then was) in Khatun Bibi v. Sm. Lilabati Dassi reported in AIR 1949 Cal 128 also reported in (1945) 49 Cal WN 80; (2) A decision of Malick J. in Shib K. Banerjee v. Rasul Bux reported in : AIR1959Cal302 and (3) a decision of Masud J. in Ajit Kumar Bose v. Snehalata Biswas reported in (1968) 72 Cal WN 1.

11. Mr. Ghosh urged that under Clauses (a) and (b) to Sub-section (1) of Section 22 of the Specific Relief Act, 1963 read with the proviso to sub-section (2) of the said section, if the plaintiff has not claimed possession or any other relief which he is entitled to claim in a suit for specific performance, the Court shall at any stage of the proceeding allow him to amend the plaint for including the claim for such relief. Thus even if the contention of the plaintiff that it has not claimed possession in the plaint be correct, it could claim such relief even at the execution stage if it could obtain a decree in the suit, execution being continuation of the suit, which would make the suit a suit for land.

12. It was lastly contended that even if this Court did not accept the contention that claim for specific performance as made in prayer (a) of the plaint involved question of possession and was therefore a suit for land within the meaning of Clause 12 of the Letters Patent, prayer (d) of the plaint undoubtedly involved such question, and that part of the claim was clearly a suit for land. As, leave under Clause 12 of the Letters Patent could be revoked with regard to a particular cause of action such leave should therefore be revoked with regard to prayer (d) of the plaint

13. Mr. Somnath Chatterjee, learned counsel for the plaintiff-respondent urged on the other hand that this application had to be decided on the averments, made in theplaint and the allegations made in the plaint should be deemed to be admitted for the purposes of this application. Mr. Chatterjee urged that right to possession and other ancillary matters would flow from the purchase of the said flats by the plaintiff and not before. The plaintiff has pleaded in paragraph 6 of the plaint that on December 11, 1979 the defendant delivered up possession of the said flats and made over the keys thereof to the plaintiff and the plaintiff is in possession of the said flats. Mr. Chatterjee submitted that there is no and cannot be any dispute that possession of the said Hats was made over to the plaintiff by the defendant and he referred to annexures to the affidavit in opposition to this application affirmed by Ram Khelawan Tewari affirmed on the 5th May, 1980, being: (i) a letter dated 11th December, 1979 written by the defendant to the plaintiff confirming delivery of the said flats and keys thereof to the plaintiff; (ii) the receipt granted by the plaintiff on the 4th December, 1979 while taking possession of the said flats and the keys thereof; (iii) a letter dated 11th December, 1979 from the plaintiff to the defendant confirming receipt of the keys of the said fiats; (iv) a letter dated 12th December, 1979 written by the defendant to the plaintiff again confirming delivery of possession of the said fiats and keys thereof and asking for payment of the balance twenty per cent of the purchase price and a sum of Rs. 1,38,000/- on account of alleged additional expenditure and (v) a letter dated 26th December, 1979 again confirming making over of physical possession of the said flats including the keys thereof and again claiming the said sum of Rupees 1,38,000/- for alleged additional cost.

14. Mr. Chatterjee urged that possession of the said flats given by the defendant to the plaintiff has not been retaken by the defendant nor possession has been given up by the plaintiff. The positive case of the plaintiff is that it is still in possession of the said flats, and the defendant is acting contrary to the said agreement by not executing the conveyance, by demanding more money and by putting extra padlocks on the said flats to pressurise the plaintiff to accede to the said illegal demands of the defendant. By prayer (d) the plaintiff has claimed injunction restraining the defendant from acting contrary to or committing breach of the said agreement. There is no question of right to possession, or possessory right being involved in the said prayer. Prayers (a), (b) and (c) of the plaint are reliefs for specific performance of the said agreement simpliciter. No question of possession or possessory right is involved therein. Even if any difficulty is felt by the Court at the hearing of the suit in granting prayer (d) of the plaint the Court may deal with the same at the hearing and the plaintiff is entitled to give up such claim at the hearing but leave under Clause 12 of the Letters Patent cannot be revoked on that ground. There cannot be any revocation of the leave under Clause 12 of the Letters Patent prayer wise of the plaint or piecemeal. In the instant case there is no question of simultaneous possession inasmuch as in terms of the said agreement possession was to be delivered and has in fact been delivered by the defendant to the plaintiff long before the execution of the conveyance. In the plaint or in any of the prayers therein the plaintiff has not asked for possession. If the plaint discloses a cause of action although particular prayers thereof might not be maintainable, the Court cannot reject that part of the plaint before the hearing of the suit. In support of his contention Mr. Chatterjee cited a decision of a Single Bench of this Court in Manicklal Memani v. Shiva Jute Bailing Ltd. reported in (1948) 52 Cal WN 389 where S. R. Das, J. (as his Lordship then was) observed that under Order VIII, Rule 11 of the Code of Civil Procedure the Court had no authority to reject a part of the plaint and even if some of the prayers thereof might not be maintainable the plaint could not be rejected or taken off the file if it disclosed a cause of action for other reliefs claimed in the plaint, Mr. Chatterjee urged that in the plaint the plaintiff has joined more than one cause of action and what is in reality being urged by the defendant-petitioner is a point of demurrer that one or some of the reliefs claimed could not be granted in the suit. Mr. Chatterjee submitted that in a suit where there was a joinder of causes of action, a plea of demurrer could not be taken unless by such plea the plaintiff was wholly non-suited. In support of his contention Mr. Chatterjee cited a decision of a Single Bench of this Court in Ajit K. Saha v. Nagendra N. Saha, reported in : AIR1960Cal484 , where P. C. Mallick, J. observed that in a case where there was a joinder of causes of action a decree was bound to be passed in respect of one or more of the causes of action, a plea by way of demurrer could not be taken, such a plea could only be taken when by reason of such plea the plaintiff was wholly non-suited.

15. Here the leave under Clause 12 of the Letters Patent was granted on the basis ofthe pleadings as to cause of action having arisen within, the jurisdiction of this Court as pleaded in paras 2 and 5 of the plaint. In para 2 it has been pleaded that the said agreement for sale was executed at No. 10, Brabourne Road, Calcutta within the jurisdiction of this Court and in para 5 it has been pleaded that pursuant to the bank guarantee having been furnished by the defendant in terms of the said agreement the plaintiff paid to the defendant the amount of bank guarantee in Calcutta within the said jurisdiction. The said pleadings relate to the said agreement and jurisdiction with regard to specific performance of the said agreement has been sought to be invoked by the plaintiff by the said pleadings. The plaintiff has further pleaded in para 6 of the plaint that possession of the said fiats and the keys thereof were made over by the defendant to the plaintiff and the plaintiff is in possession of the said flats. If subsequent thereto the defendant has put up padlocks on the said fiats such action on the part of the defendant, in my view, does not come within the purview of specific performance of the said agreement. The claim made by the plaintiff in the suit with regard thereto is a separate and distinct cause of action. The other prayer in the plaint for cancellation and delivery up of the fetter dated 14/18th March, 1980 issued by the defendant seeking to cancel the said agreement is also a distinct and separate cause of action. Thus in the suit, the plaintiff has joined several causes of action (I) for specific performance of the said agreement (2) a perpetual injunction restraining the defendant their servants and agents and assigns from denying or disputing its obligation under and from acting in any manner contrary to or inconsistent with the said agreement and (3) cancellation and delivery up of the letter dated 14/18th March, 1980.

16. Whether the suit could be converted into a suit for recovery of possession at a later stage under the provision of Section 22(1) (a) and (b) of the Specific Relief Act, 1963 read with the proviso to Sub-section (2) of the said section in execution proceedings, in my view, could not be a consideration at this stage. It proceeds on too much speculation, and surmise. Firstly, it has to be assumed that a decree for specific performance would be passed in the suit in favour of the plaintiff and secondly if the plaintiff succeeds in obtaining such a decree it might seek to amend the plaint in the execution proceedings to include a claim for possession. In an application for revocation of leave underClause 12 of the Letters Patent the Court has to proceed on the basis of the plaint as filed not on the basis of what might happen in future. If possession has not been claimed by the plaintiff in the plaint as filed, leave under Clause 12 of the Letters Patent could not be revoked on the ground that in future the suit might or might not be converted into a suit for land.

17. I am unable to accept the contention of Mr. Ghosh that prayer (a) of the plaint claiming decree for specific performance of the said agreement involves possession of the said flats. Under the said agreement as well as on the pleadings, possession had to be and had been delivered by the defendant to the plaintiff long before the execution of the conveyance and the plaintiff claims to be in possession of the said flats. The claim for specific performance of the said agreement as made in prayer (a) of the plaint, in my opinion, is a claim for specific performance simpliciter. Prayers (b) and (c) are the usual prayers in such suit. All that the plaintiff is claiming, by the said prayer is execution and registration of the conveyance upon payment by the plaintiff of the balance of the purchase price as provided in the said agreement. No question of possession is involved in the said claim.

18. So far as prayer (d) is concerned the same as couched does not involve any question of possession of the said flats. The prayer is merely restraining the defendant, its servants, agents and assigns from committing any breach of the said agreement. Whether such prayer is maintainable or not is to be decided at the trial.

19. The prayer for cancellation of the letter dated 14/18th March, 1980 also docs not involve any question of possession. Thus the suit so far as the specific performance of the said agreement is concerned is maintainable in and entertainable by this Court and the decisions cited by Mr. Ghosh, in my opinion, support such conclusion. As already noted in the suit the plaintiff has joined several distinct and separate causes of action and even if it might transpire at the trial of the suit that the reliefs claimed in respect of some of the causes of action were not maintainable, the leave under Clause 12 of the Letters Patent could not be revoked on that ground. The defendant in this application has in reality taken a point of demurrer in asking for revocation of the leave under Clause 12 of the Letters Patent, if not with regard to the whole suit, at least with regard to some of the prayers in the suit

20. As I have already held, that the claim for specific performance of the said agreement being maintainable in and entertainable by this Court, the plaintiff could not therefore be non-suited in this suit. Respectfully following the decisions in Manicklal Memani v. Shiva Jute Bailing Ltd. (1948-52 Cal WN 389) (supra) and Ajit K. Saha v. Nagendra N. Saha : AIR1960Cal484 (supra) I hold that part of the plaint herein could not therefore be rejected by revoking the leave under Clause 12 of the Letters Patent in respect of such part only. In Sm. Khatun Bibi v. Lilabati Dassi (AIR 1949 Cal 128), S. R. Das, J. (as his Lordship then was) noted the historical back ground of the Civil Procedure Code from 1859 to 1908 vis-a-vis the Letters Patent of this Court and in particular Clause 12 thereof. His Lordship noted the change made in the Civil Procedure Code from Section 5 of the 1859 Code to Section 16 of the Codes of 1877, 1882 and 1908 and the purposes of such change and observed at p. 137 of the report:

'To read all these changes into Clause 12, Letters Patent is to ignore the historical background and the express provision that the new section (Section 16 of the Code of Civil Procedure, 1908) should not apply to this Court. The jurisdiction of the Supreme Court in suits 'concerning' land was not confined to the city of Calcutta whereas the jurisdiction of Motusil Courts in suits 'respecting' or 'relating to' land was circumscribed by their territorial limits. This distinction, in my view, makes it impossible to apply the same method of construction and giving the same meaning to the expression 'suit for land' appearing in Section 5 of the Code of 1859 and that appearing in Clause 12 or to read the amended Section 16 of the Code of 1877 or 1882 or 1908 into Clause 12, Letters Patent. In my humble opinion, the historical method of construction errs in not taking into consideration the basic historical difference in the jursdiction of the Supreme Court and the Mofussil Courts and goes counter to the express provision making Section 16 inapplicable to this Court. There was nothing to prevent the Legislature to make it applicable to this Court.'

21. I respectfully agree with the above observations. In that view of the matter the two decisions one of this Court in Sudamidh Coal Co. Ltd. v. Empire Coal Co. Ltd. (ATR 1916 Cal 557) (supra) and the other of the Allahabad High Court in Om Prakash v. Anar Singh : AIR1973All555 (supra) would have no application to this Case.

22. For all the above reasons there will be no order on this application. Costs cost in the suit.


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