Calcutta High Court
Abdul Rashid vs Bidhan De Sarkar And Anr on 18 October, 2023
OCD-10
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
IA NO. GA 1 OF 2023
IN
CS 213 OF 2023
IN THE MATTER OF:
ABDUL RASHID
AND
BIDHAN DE SARKAR AND ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date : 18th October, 2023.
Appearance:
Mr. Aritra Basu, Adv.
Mr. Souradeep Banerjee, Adv.
Mr. S.K. Banerjee, Adv.
For plaintiff
Mr. Shakil Md. Akther, Adv.
Mr. Neeraj Panday, Adv.
Mr. Prasenjit De, Adv.
For defendants
The Court : Affidavit of service filed in Court today is taken on record.
The plaintiff is seeking for specific performance of two development
agreements both dated 25th October, 2017, which have been allegedly terminated
on 1st September, 2020.
The plaintiff says that even after the termination, the plaintiff has done
certain acts in connection with the development agreements, which has been
permitted to be done by the defendants. The plaintiff says that he is in
possession of the properties sought to be developed under the said two
agreements being respectively premises no. 42C and 42D, Serpentine Lane,
Police Station - Muchipara, Kolkata - 700014 (hereinafter referred to as the said
properties).
The plaintiff says that he has already invested huge sum of money for the
purpose of development and the termination was illegal. In any event by
subsequent acts, the defendants have waived the termination. The parties went
for pre-institution mediation, which has also failed. The plaintiff, therefore, seeks
an order of injunction restraining the defendants and each one of them from
dealing with, alienating, encumbering or dispossessing the plaintiff.
On behalf of the defendants, it is submitted that very valuable properties
were given to the plaintiff for developing the same. The plaintiff has virtually done
nothing over the years and is trying to hold on the defendants' property. The
defendants also say that the suit being a suit for specific performance of two
development agreements is not also maintainable in view of the ratio laid down in
the judgment reported in (2019) 2 SCC 241 (Sushil Kumar Agarwal Vs. Meenakshi
Sadhu And Others).
The defendants also dispute the plaintiff's allegation that the plaintiff is in
possession of the property.
Considering the fact that the termination has taken place as far back as on
1st September, 2020 and that the pre-institution mediation was applied for after
a considerable period from the termination and going by the nature of the
agreement between the parties, I am not inclined to pass any ad interim order in
favour of the plaintiff at this stage. In the event the plaintiff is in possession of
the property then the plaintiff cannot be dispossessed therefrom without due
process of law. The principles analogous to the provisions of Section 52 of the
Transfer of Property Act, 1882 and those analogous to Section 53A will also come
in aid of the plaintiff if the right under the development agreement in favour of
the plaintiff is a right coupled with interest as claimed by the plaintiff.
Let affidavits be filed.
Affidavit-in-opposition be filed by 24th November, 2023; reply, if any, be
filed by 1st December, 2023.
Let this matter appear in the monthly list of December 2023.
(ARINDAM MUKHERJEE, J.)
sb/
