Venkatesh Foundation Pvt. Ltd vs Jalan Carbons And Chemicals Pvt. ...
2021 Latest Caselaw 4156 Cal

                       In the High Court at Calcutta
                        Civil Revisional Jurisdiction
                               Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                           C.O. No. 1009 of 2021

                       Venkatesh Foundation Pvt. Ltd.
                                    Vs.
              Jalan Carbons and Chemicals Pvt. Ltd. and others




For the petitioner                    :      Mr. Aniruddha Chatterjee,
                                             Mr. Rahul Karmakar,
                                             Mr. Soumabho Ghose,
                                             Mr. Pushan Kar,
                                             Mr. Sagnik Majumdar,
                                             Ms. Dikshita Chomal

For the opposite parties              :      Mr. Arindam Banerjee,
                                             Mr. Suddhasatva Banerjee,
                                             Ms. Arpita Saha,
                                             Ms. Rituparna Chatterjee,
                                             Mr. Amit Mukherjee

Hearing concluded on                  :      02.08.2021

Judgment on                           :      09.08.2021


Sabyasachi Bhattacharyya, J:-



1.

The opposite party no. 1 instituted Title Suit No. 5426 of 2016 against

the petitioner (defendant no. 1) and opposite party nos. 2 to 6, the

other defendants, for specific performance directing the sixth

defendant to execute a lease deed in respect of 5th and 6th floor of the

Lake Mall situated at Premises No. 104, Ras Bihari Avenue, Kolkata-

700 029, in terms of and in accordance with the purported agreement

between the parties, and for ancillary reliefs.

2. The first defendant/petitioner took out an application for rejection of

the plaint of the said suit under Order VII Rule 11 of the Code of Civil

Procedure. Such application having been dismissed by the impugned

order, the present revisional application has been preferred.

3. Learned counsel for the petitioner argues that the plaint is ex facie

barred by limitation in terms of Article 54, read with Section 3 of the

Limitation Act, 1963. It is argued that the plaintiff itself alleged that,

pursuant to the purported agreement, the petitioner had paid certain

amounts of money during the years 2006 and 2007. However, as per

the plaint allegations, the petitioner did not take any steps to execute

any lease deed in terms of the purported agreement. Only on August

14, 2013, the Chief Minister of West Bengal inaugurated the Lake

Mall, with regard to which the agreement was entered into. It is

mentioned in the plaint that the plaintiff had, by numerous

representations, including those made in the years 2011, 2012 and

2013, called upon the defendant no. 1 to have the process of grant of

lease and delivery of possession to the plaintiff expedited. By placing

reliance on electronic mails and letters, starting from September 7,

2012 onwards till January 15, 2016, learned counsel alleges that the

plaintiff merely sought to prolong the starting point of limitation,

whereas the limitation had started to run when the petitioner failed to

execute, even as per the plaint case, the lease deed-in-question after

April 20, 2007 when the last tranche of payment was made by the

plaintiff/opposite party no. 1.

4. At best, it is argued, the cause of action for the suit for specific

performance arose in the year 2011, when the first representation was

given as per the allegations at page 11 of the plaint, by the plaintiff.

However, the suit was filed only in the year 2016 and is palpably

barred by limitation.

5. Learned counsel appearing for the plaintiff/opposite party no. 1, on

the other hand, contends that, in part performance of the agreement,

the plaintiff had made over the aggregate sum of Rs. 1.21 crore in four

instalments, the last being on April 20, 2007. It has specifically been

alleged that the Lake Mall was inaugurated on August 14, 2013. Prior

to and after such inauguration, the plaintiff had given representations

to the opposite party no. 1.

6. The defendant no. 1/petitioner, as per the plaint case, never refused

to perform its part of the agreement. Rather, in paragraph no. 12, the

plaintiff/opposite party no. 1 specifically pleaded that, in spite of

receipt of the said written requests, the defendant no. 1 did not

respond thereto in writing and, upon enquiries, the functionaries of

the defendant no. 1/petitioner orally held out that there were certain

formalities underway between the defendant no. 6, that is, the Kolkata

Municipal Corporation and the defendant no. 1 relating to the Lake

Mall Project, which formalities were likely to be completed within a

reasonable time. It was further pleaded in paragraph no. 12 of the

plaint that, immediately upon completion of such formalities, the

defendant assured that it would arrange for expeditious grant of lease

of the suit premises by the defendant no. 6 to the plaintiff/opposite

party no. 1. The plaintiff believed such representation to be true and

correct in view of the defendant no. 1 being a reputed group of

entrepreneurs in West Bengal.

7. In continuation, the opposite party no. 1 pleaded in paragraph no. 13

of the plaint that the men and agents of defendant no. 1/petitioner

held out that, since the aforementioned formalities of defendant no. 6

was completed, the petitioner would get in touch with the plaintiff via

electronic mail and have the said transaction finalised.

8. Thereafter, only in the third week of May, 2016, the plaintiff learnt for

the first time that a hoarding/advertisement displayed on the external

wall of the suit property, convened the name of defendant no. 5.

Thereafter, as per paragraph no. 14 of the plaint, the plaintiff made

necessary enquiries and came to know that defendant nos. 1 and 2

were purporting to enable the defendant no. 5 to open a multiplex at

the suit property and was in the process of closing negotiations for

making over possession of the suit premises to the defendant no. 5 to

start infrastructural work relating thereto.

9. Hence, as per the averment made in paragraph no. 30 of the plaint,

the cause of action of the instant suit arose only in the third week of

May, 2016, when the advertisement, indicating the implied refusal of

the defendant no.1/petitioner to honour the agreement entered into

between the parties, was first noticed by the plaintiff.

10. In reply, the petitioner reiterates the arguments initially advanced and

further submits that the suit was not maintainable in the absence of a

specific written agreement. As per the provisions of the Stamp Act,

and the Registration Act, such agreements as alleged by the plaintiff

are to be stamped duly and registered, for the court to take cognizance

of such documents. Hence, in the absence of any written agreement,

it cannot be said that there was a concluded contract between the

parties, which was valid in the eye of law.

11. Upon hearing learned counsel for the parties, this Court is of the

opinion that the provisions of neither the Transfer of Property Act nor

the Indian Stamp Act and/or the Registration Act provide anywhere

that all agreements have to be compulsorily stamped and/or

registered. Only in cases where there is existence of a written

agreement above a certain denomination, such document is required

to be registered and stamped. However, the law nowhere provides that

an oral agreement cannot be entered into and/or enforced by way of a

suit for specific performance.

12. In the present case, the argument of the petitioner, that the alleged

oral agreement between the parties was invalid in the eye of law

merely since the same was not reduced to writing and/or adequately

stamped/registered, is not tenable in the eye of law. There is no

mandate cast by any statute that all documents have to be reduced to

writing. There is ample scope, at least on the face of the plaint,

subject to proof in the suit, to assume prima facie that an oral

agreement was entered into between the parties and is legally

enforceable.

13. As far as the question of limitation is concerned, Article 54 of the

Limitation Act categorically provides that the starting point of

limitation for a suit for specific performance of a contract is the date

fixed for the performance, or, if no such date is fixed, when the

plaintiff has noticed that performance is refused.

14. It is well-settled that the sole consideration of the court while deciding

an application under Order VII Rule 11 (d) of the Code of Civil

Procedure is, whether on a plain reading of the plaint and the

documents annexed or referred thereto, the suit is barred by any law.

15. In the present case, on a plain reading of the plaint, it is crystal-clear

that the plaintiff has categorically made out a case that it had to wait

till inauguration on August 14, 2013 and became first aware of the

refusal by the defendant no. 1 to honour the agreement between the

parties when the plaintiff came across a hoarding/advertisement

displayed on the external wall of the suit property in the third week of

May, 2016, announcing the name of the defendant no. 5.

16. As such, the suit, on a plain and meaningful reading of the plaint, was

filed well within the period of limitation which, in the present case,

would be three years from the date on which the plaintiff allegedly had

first noticed that the performance of the purported oral agreement was

refused by the defendants.

17. For the purpose of deciding a demurrer application, the court has to

take the pleadings of the plaint to be sacrosanct. If such an approach

is adopted in the present case, it cannot be said that the suit was ex

facie barred by limitation.

18. The cited judgment does not help the petitioner's cause, since the

same was rendered in the context of the Arbitration and Conciliation

Act, 1996, in particular, Section 11 of the same. The question which

fell for consideration before the Supreme Court was the scope of the

court taking up an application under Section 11 of the Arbitration and

Conciliation Act, 1996, to go into the enquiry as to whether the

arbitration clause is valid and whether the agreement containing such

clause, if compulsorily stampable, was duly stamped or not.

19. The said ratio does not have any application to the present case, since

there cannot arise any question of payment of any stamp duty being a

pre-condition of the court taking cognizance of the alleged agreement,

since the agreement was not in writing but allegedly entered orally, as

gathered from other circumstances, including the conduct of the

parties.

20. Hence, the trial court acted well within its jurisdiction in rejecting the

application of the defendant no.1/petitioner under Order VII Rule 11

of the Code of Civil Procedure.

21. Accordingly, C.O. No. 1009 of 2021 is dismissed, affirming the order

impugned therein, dismissing the application of the revisionist

petitioner for rejection of the plaint of Title Suit No. 52 of 2019.

22. There will be no order as to costs.

23. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite

formalities.

( Sabyasachi Bhattacharyya, J. )

LATER

On the prayer of learned counsel for the petitioner, all issues raised in

the suit are kept open for being decided on merits at the final hearing of the

suit.

It is made clear that the observations made herein shall not influence

the trial court in any manner while deciding the suit.

Let this order be deemed to be a part of the judgment delivered earlier

today.

( Sabyasachi Bhattacharyya, J. )