M/S. Ashroy Construction & Ors vs Sri Pankaj Mitra & Ors
2021 Latest Caselaw 5666 Cal

   19.
15.11.2021

S.D.

C.O. 4172 of 2019 With CAN 1 of 2020 CAN 2 of 2020 (Not found) CAN 3 of 2020 (Not found)

M/s. Ashroy Construction & Ors.

Vs.

Sri Pankaj Mitra & Ors.

Mrs. Shohini Chakraborty Ms. Prajaaini Das ...For the Petitioners.

Mr. Rahul Karmarkar Mr. Saptarshi Datta ..For the Opposite Party.

In this revisional application, the petitioner has

assailed the order dated September 24, 2019 passed in

title Suit No. 11 of 2019 (SL 72 of 2019) by the Civil Judge,

Sixth Court (Second Division) at Alipore, South 24

Parganas.

Heard the learned Advocate for the parties.

It is contended on behalf of the petitioners that the

learned Judge has passed the impugned order rejecting

the application for grant of judgment in terms of the

admission made by the defendants as per the provision

of Order 12 Rule 6 of Civil procedure Code. Accordingly,

the petitioners have sought for setting aside the order as

bad in law and in fact.

The background leading to this revisional

application is that some times in February 2018, the

plaintiffs/opposite parties filed a Suit for Specific

Performance of Contract under Section 12 of the Specific

Relief Act, 1973 and for other reliefs wherein the

plaintiffs/opposite parties sought for decree for Specific

Performance of Contract enforcing the obligations of the

defendants contained in the registered Development

Agreement dated 17.4.2014 regarding allocating the

shares of the plaintiffs by specifying the

flats/units/spaces/parking spaces they are entitled to in

terms of the Development Agreement, and also to hand

over possession of the allocated and specified

flats/units/spaces/parking spaces to the plaintiffs in terms

of the said Development Agreement dated 17.4.2014

before creating any further third party rights in respect of

the said property.

The defendant/petitioner no. 1 having entered

appearance in the suit filed written statement to contest

the suit denying all materials particulars made in the

plaint contending inter alia that plaintiffs have no cause

of action for the suit and the defendants/petitioners no.1

to 3 filed an application under Order 12 Rule 6 of the

Civil Procedure Code on 10.4.2019 praying for judgment

on admission on the plaintiffs in respect of 30%

constructed areas and to direct the plaintiffs to return a

sum of Rs.6,00,000/- to defendant/petitioner no. 1.

Mrs. Shohini Chakraborty, learned Advocate for

the petitioners has brought my attention to the averment

in paragraph 6 of the application pointing out that the

defendant nos. 1 to 3 have jointly admitted that the

plaintiffs are entitled to 30% of constructed area consisted

of flat in each floor and 30% of car parking spaces in the

ground floor in the building. Admittedly, the direction

has been sought for by the petitioners/defendant nos. 1 to

3 for handing over possession of 30% allocation of the

constructed area consisted of flat and car parking spaces

in favour of the plaintiffs in terms of the development

agreement dated 17.4.2014 and so also as per the sanction

of the building plan no. 2015130034 dated 7.5.2015 and

subsequent modification thereto and further the

petitioners have shown their readiness and willingness to

provide 30% allocated constructed areas aforesaid

provided the plaintiffs return a sum of Rs.6,00,000/- only

to the defendant nos. 1 to 3 which they had received by

virtue of development agreement dated 17.4.2014.

Development agreement dated 17.4.2014 has been

pressed in service before this Court which does not

contain any provision for return of the said amount or

the fact that while entering into development agreement,

the said sum of Rs.6,00,000/- was paid to the plaintiffs

holding them liable to repay the same to the

defendants/petitioner nos. 1 to 3.

On behalf of the plaintiffs/opposite parties, it is

pointed out that the petitioners have sold the best part of

the flats according to their choice to the intending buyers

and the plaintiffs/opposite parties cannot be treated as

beggars as if a beggar cannot be a chooser. My attention

is invited to Clause 8.1 under Article VII relating to

dealings of spaces of the building to contend that the

plaintiffs have the first preference to choose the flats and

car parking spaces as per development agreement which

provides as under:-

"8.1. The Developer shall on completion of the building/s hand over possession of the Owners' allocation before handing over possession of the flats/floor/car parking space/spaces to the intending purchaser/purchasers in the proposed new building to be selected by the Developer."

Having regard to the said clause, it appears that

prima facie, the opposite parties/plaintiffs are entitled to

be offered their possession before the developer

defendants/petitioners hand over possession of the

flats/units/spaces/parking spaces to the intending

purchaser/purchasers in the proposed new building. The

attention is also adverted to clause 5.4. of Article V,

which provides thus:-

"5.4 After submitting the final plan to the Kolkata Municipal Corporation, in respect of the said premises, the Owner and the Development shall execute a Supplementary Agreement in respect of their allocation if any specifying the flats/floors/car parking space/spaces and other terms if any and the Supplementary Agreement will be registered in respect of the allocation of the Owner and the Development, if required."

Thus, it is contended by learned Advocate for the

opposite parties that all these factual aspects are required

to be dealt with on evidence by the Trial Court and the

order impugned has been rightly passed by the learned

Trial Court urging to affirm the order impugned.

This Court having perused the order impugned

and having regard to the rival contention hold that the

Trial Court has rightly rejected the application under

Order 12 Rule 6 of CPC as the admission made by the

defendants is not unequivocal and unconditional and the

terms and conditions of the agreement were not fully

complied by the defendants

It emerges from the materials placed on record that

alleged admission made by the defendants/petitioners is

not in clear crystal term and is not unambiguous to

warrant a judgment on admission. Therefore, I do not

find any ground to set aside the order impugned.

Accordingly, the revisional application, being C.O.

4172 of 2019 is dismissed, however, without any order as

to costs.

All connected applications stand disposed of.

Let a copy of this order be communicated to the

learned Trial Court with the direction to expedite the suit

as expeditiously as possible.

All parties are to act on server copy downloaded

from the official website of the Court.

(Shivakant Prasad, J.)