Calcutta High Court
Mukul Agarwal & Ors vs Sunil Agarwal & Ors on 12 April, 2023
OD-3
ORDER SHEET
IA No.GA 1 of 2023
IN
CS 62 of 2023
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
MUKUL AGARWAL & ORS.
VS
SUNIL AGARWAL & ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 12th April, 2023.
Mr. S. N. Mookherjee, Sr. Adv. Mr. Ratnanko Banerjee, Sr. Adv., Mr. Reetobroto
Mitra, Mr. Sankarsan Sarkar, Mr. Aditya Kanodia, Advocates for plaintiffs.
Mr. Sagar Bandopadhyay, Mr. Lalit Baid, Ms. Aparna Ghoshal, Mr.
Tamoghna Saha, Advocates for defendant nos.1, 2 and 3.
The Court : Affidavit of service filed in Court today is taken on record.
The plaintiffs have taken out this application inter alia for injunction
restraining the defendant/respondent nos.1, 2 and 3 and each one of them,
their men, servants, agents and/or assigns from disturbing and/or
interfering the peaceful possession and enjoyment of the exclusive areas
mentioned in Schedule B to the plaint by the petitioners. The plaintiffs say
that the defendant nos.5 to 20 are the owners of the land comprised in
premises no.5A/1C, Lord Sinha Road, Kolkata-700 071 (hereinafter referred
to as 'the said premises'). The plaintiffs say that respondent nos.5 to 20
entered into a development agreement with the respondent no.4 for
constructing a multistoreyed building thereat. The plaintiff nos.1, 2 and 3
are the only partners/shareholders of the respondent nos.4 to 20. The
defendant no.4 has completed the construction of the building at the said
premises and a substantial portion thereof has been sold. The defendants
no.1 to 3 are purchasers of their respective units. The plaintiffs have
purchased for valuable consideration the residential flat/apartment bearing
nos.14, 15 and 16 under three separate registered Deeds of Conveyance
being the entire portion of the 14th, 15th and 16th floor of the building, the
particulars whereof are given in the second schedule of each of the said
three Deeds. In all the three Deeds, the third schedule therein describes the
common area and installation. In the third schedule specific common areas
and installations are identified and meant for and dedicated for exclusive
use and enjoyment by the owners/occupiers of the units on the 14th to 16th
floors of the building i.e. the plaintiffs. The particulars of such exclusive
common areas are provided in Annexure 'C' to each of the said Deeds.
Annexure 'C' speaks of the middle entrance gate no.2 and the western side
passenger lift to be the exclusive common areas and installations meant for
the upper-floors that is for exclusive use and enjoyment of the
owners/occupiers of flats/apartments/units on the 14th to 16th floors,
presently the plaintiffs. With regard to the portions mentioned in the second
schedule, the third schedule as also to those in Annexure 'C' there is no
dispute as to the ownership, exclusive use and enjoyment of the identified
common areas and installation by the plaintiffs. However, in the prayer,
injunction has been sought for in respect of schedule B to the plaint which
contains a demarcated portion of the roof over the 16th floor. The plaintiffs
refer to the deeds and say that in serial no. 3 under Clause III it is provided
as - "THE ALLOTTEE DOTH HEREBY COVENANT WITH THE PROMOTER
AND THE LAND OWNERS as follows . . . . . . . . ." This clause according to
the plaintiffs speaks about a divided and demarcated portion of the top roof
of the building on the western side including the parapet walls thereof and
the internal staircase connecting the 16th floor with the said divided and
demarcated portion of the top floor of the building on its western side is for
the exclusive use by the allottee of the apartment/flat on the 16th floor of
the said building i.e. one of the plaintiffs. This exclusive right, however, does
not figure either in the third schedule or in Annexure 'C' to curve out a clear
and exclusive right in favour of the plaintiffs in exclusion of other flat/unit
owners to convince this Court even prima facie at the ad interim stage to
give a protection to the plaintiffs in respect thereof. It is also not clear at
this stage whether the staircase if any leading from the ground floor upto
the western side of the roof over the 16th floor, if any is for exclusive use by
the plaintiffs as owners of the 14th, 15th and 16th floor from the 14th floor
upto the roof over the 16th floor. The sale deed for the 16th floor also gives an
impression of an inbuilt staircase from the 16th floor to the western side
roof. In absence of any clear picture no restraint order at this stage is also
warranted. The judgment reported in 41 E.R 1143 [Tulk Vs Moxhay] cited by
the plaintiffs also does not come to the aid of the plaintiffs for the reasons
aforesaid, though there is no dispute as to the proposition laid down
therein.
In the aforesaid facts and circumstances, after hearing the plaintiffs,
the defendant nos. 1, 2 and 3 and considering the materials on record, the
defendant nos.1, 2 and 3 and each one of them, their men, servants, agents
and/or assigns are restrained from disturbing and/or interfering the
peaceful possession of their respective flats as described in the second
schedule of their sale deeds and use and enjoyment of the exclusive areas
as mentioned in the third schedule of the sale deeds held by the plaintiffs
read with Annexure 'C' thereto until 30th June, 2023 or until further orders
whichever is earlier.
The prayer for injunction in respect of the demarcated portion of the
roof over the 16th floor, the staircase and other portions of the schedule B
not covered by this order will be further examined after filing of affidavits.
Let affidavit-in-opposition be filed by 11th May, 2023; reply thereto, if
any, be filed by 5th June, 2023 with an advance copy to the defendants.
Let this matter appear in the monthly list of June, 2023.
(ARINDAM MUKHERJEE, J.)
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