Calcutta High Court
Middleton Trucking Services Llp And Anr vs Rohit Shroff And Anr on 5 November, 2024
OCD-4
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
CS-COM/269/2024
[OLD NO CS/100/2021]
IA NO: GA/1/2021, GA/4/2022
GA-COM/5/2024
MIDDLETON TRUCKING SERVICES LLP AND ANR.
VS
ROHIT SHROFF AND ANR.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : 5th November, 2024.
Appearance :
Mr. Anirban Ray, Adv.
Mr. Soumabho Ghose, Adv.
Mr. Soumalya Ganguli, Adv.
Ms. Tiana Bhattacharyya, Adv.
...for the plaintiff.
Mr. Siddhartha Lahiri, Adv.
Ms. Swati Chowdhury, Adv.
Mr. Ishaan Saha, Adv.
...For the defendant No.1
The Court: Mr. Anirban Ray, learned Counsel, is appearing for the
plaintiff.
Mr. Siddhartha Lahiri, learned Counsel, is appearing for the
defendant No.1.
The plaintiffs have filed the present application being GA-
COM/5/2024 praying for injunction directing the defendants to forthwith
remove all its men and agents from the premises and to ensure that the
position as it stood as on April 27, 2021 is not changed in any manner
whatsoever till the disposal of the suit and he has also prayed for several
directions upon the Police authorities.
By an order dated 20th September, 2024, this Court has directed
the Superintendent of Police, Hooghly Rural to depute a competent Officer to
inspect the premises in question and to see whether the order passed by
this Court dated 27th April, 2021 is complied with or not and if it is not
complied with, to take appropriate steps against the persons who have
violated the order and to submit the report before this Court on 24th
September, 2024.
In compliance of the order dated 20th September, 2024, the
Inspector of Police, Officer-in-Charge, Haripal Police Station, Hooghly has
submitted the report wherein it reveals that on 16th September, 2024 at
01:25 hrs the Police Officer-in-Charge of Haripal P.S. received a written
complaint from one Santosh Singh to the effect that as per order passed by
this Court, the plaintiff was in possession of the property but on 15 th
September, 2024 at about 14:20 hrs, the one persons, namely, Rohit Shroff
violated the Court Order of the Court by entering into the suit premises
along with the 15-20 persons which was in possession of the plaintiff and
accordingly on receipt of the said complaint the police has initiated FIR and
started investigation.
It is further submitted that during the investigation the Police has
visited the premises and found that several articles such as Trucks, JCB,
Barrels containing fuel, Old Tyres, Scraps, tables, chairs etc. are found
within the said premises and an inventory of said articles have been made
by the police in presence of the witnesses.
The report further reveals that as per the investigation of the case
the police came to know that Rohit Shroff along with his employees have
taken possession of the premises.
Counsel for the plaintiffs submit that at the time of passing of the
injunction order dated 27th April, 2021, this Court has categorically
recorded that the plaintiffs are in possession of the immovable property
belonging to the defendants by virtue of the lease granted is undisputed.
Counsel for the plaintiffs submit that on 27th April, 2021,
admittedly the plaintiffs are in possession of the property. He submits that it
is also admitted from the affidavit in opposition as well as police report, the
defendants have taken possession of the premises in question and as such
the plaintiffs prays for anti status quo order by directing the police authority
to put the plaintiffs in possession of the premises as on 27th April, 2021.
In support of the submission, the plaintiffs have relied upon the
judgment reported in AIR 1986 Cal 220 and submitted that restoring
things to their former condition is the only remedy. The Court can pass
appropriate order by exercising the inherent power by putting the plaintiffs
in possession of the suit premises.
The plaintiffs have also relied upon the judgment reported in 1961
SCC Online SC 17 and submitted that power to issue an injunction is
restricted by Section 94 and Order 39 and it is not open to the Civil Court
which is not the Chartered High Court to exercise that power ignoring the
restrictions imposed thereby. He submitted that this Court is the Chartered
High Court and as such this Court has the power to pass an order by
ignoring the restriction imposing under Section 94 and Order 39 of the Code
of Civil Procedure.
Counsel for the plaintiffs have relied upon the judgment reported
in (2008) 4 Supreme Court Cases 791 and submitted that if the Court
found that the order of injunction is violated, the Court has the jurisdiction
to restore the parties back to the same position.
Counsel for the plaintiffs have relied upon the judgment reported
in (1990) 2 Supreme Court Cases 117 and submitted that interlocutory
mandatory injunction are granted generally to preserve or restore the status
quo of the last non-contested status which preceded the pending
controversy until the final hearing when full relief may be granted or to
compel the undoing of those acts that have been illegally done or the
restoration of that which was wrongfully taken from the plaintiff.
Counsel for the plaintiffs submits that in the present case on 27 th
April, 2021 this Court has come to the finding that the plaintiffs are in
possession of the immovable property belonging to the defendants and
accordingly this Court has passed interim order but on 13 th September,
2024 the defendants have forcefully taken the possession of the suit
property and as such possession of the plaintiff is to be restored in its
original position in terms of the order 27th April, 2021.
Per contra, learned counsel appearing for the defendants submits
that there is no interim order with regard to possession of the property
passed in favour of the plaintiffs. Counsel for the defendants submits
though this Court has recorded that the plaintiffs are in possession of the
immovable property but while passing the order this Court has only
restrained the defendants from creating any third party rights over and in
respect of the immovable property concerned without obtaining prior leave of
the Court. He submits that there is no order with regard to the possession
and status quo over the property and as such the application filed by the
plaintiff is not maintainable.
Counsel for the defendants submits that the suit filed by the
plaintiff is not for the specific performance of contract and not for the land.
He submits that the land is situated beyond the jurisdiction of this Court.
Counsel for the defendants has further submitted that the plaintiffs have
not filed the suit for recovery of money.
Counsel for the defendants has relied upon the document being
annexure B page 43 of the affidavit-in-opposition and submitted that an
amount of Rs.68,42,000/- was due and payable by the defendants to the
plaintiffs but the plaintiffs have not paid the rent with respect of the suit
property to the defendants and as such the total due is payable by the
plaintiffs to the defendant being the rent of the suit property is
Rs.80,40,450/- and thus an amount of Rs.11,98,450/- is recoverable from
the plaintiffs. He submits that the defendants are not liable to pay any
amount to the plaintiffs.
Counsel for the defendants further submits that there is no order
of status quo with regard to the possession of the property and as such this
Court cannot pass any order of anti status quo by putting the plaintiffs'
possession over the property. He submits that on 13th September, 2024 the
defendants have received the information with regard to some agitation in
the suit property and when the defendants reached the suit property, they
found that the labourers of the plaintiffs are agitating on the ground of non-
payment of salary of the labourers by the plaintiffs. Accordingly, the
labourers have left the suit property and the suit property was kept
abandoned and thus to keep the property safe and intact, the defendants
have taken possession of the property and kept a security guard over the
suit property for security purpose to safeguard the property in question.
Learned counsel for the defendants submits that no order can be
passed in the present application and as such the application is required to
be dismissed.
Heard the learned counsel for the respective parties.
Perused the materials on record and the judgments relied on by
the plaintiffs.
By an order dated 27th April, 2021, this Court has passed the
following order:
"The fact that, the plaintiffs are in possession of the immovable
property belonging to the defendants by virtue of lease granted is
undisputed. It is the claim of the defendant no.1 that there are
outstandings on account of lease rentals. The fact that, the
plaintiffs paid sum in excess of Rs.46 lakhs on account of dues of
the defendants to the West Bengal Financial Corporation is also
admitted. The amount is yet to be repaid by the defendants.
Apparently, there are disputes and differences between the
defendants. The defendants are partners of a partnership firm.
In such circumstances, at this stage it would be appropriate to
restrain defendants from creating any third party rights over and
in respect of the immovable property concerned without obtaining
prior leave of the Court.
Let affidavit-in-opposition be filed within three weeks from date;
reply thereto, if any, two weeks thereafter. List the application as
an 'Adjourned Motion" six weeks hence subject to any direction of
the High Court with regard to listing of matters."
Though the Court has recorded the findings that the plaintiffs are
in possession of the immovable property belonging to the defendants by
virtue of lease granted is undisputed but while passing the order of
injunction this Court has only restrained the defendants from creating any
third party rights over and in respect of the immovable property concerned
without obtaining prior leave of the Court. The contention of the plaintiffs
that this Court has recorded the findings that the plaintiffs are in
possession of the immovable property belonging to the defendants by virtue
of the lease granted is undisputed and now the defendants have taken
possession of the property in question and as such, the order of anti status
quo is to be passed by restoring the possession of the plaintiffs over the suit
property.
This Court finds that though the Court has recorded with regard to
the possession of the plaintiffs over the property but considering the whole
aspect of the matter, this Court has only restrained the defendants from
creating any third party rights over the property without leave of the Court.
This Court has not passed any order directing the defendants not to disturb
the possession of the plaintiffs over the property or to maintain status quo of
the suit property. It is the specific case of the defendants that the landed
property was abandoned and as such only to safeguard the property, the
defendants have taken possession of the property and kept a security guard
for the purpose of safeguard of the property in question.
The defendants during their submission have submitted that they
are not going to create any third party interest over the property. He further
submits that it is not the case of the plaintiffs that the defendants have
created any third party interest over the property. Counsel for the
defendants further submits that he has no objection if an order of status
quo is passed with regard to possession of the property as on 17 th
September, 2024.
This Court finds that the judgments relied by the plaintiffs are
distinguishable from the facts and circumstances of the present case. In the
present case there is no order of injunction with regard to the possession of
the property. If there was interim order with regard to the possession of the
property and the defendants have forcefully taken the possession of the
property during the existence of status quo order then the judgments relied
by the plaintiffs could have been applied.
Considering the above, this Court finds that this application does
not have any merit, accordingly, the same is dismissed.
It is submitted that GA/1/2021 is pending for disposal. Let the
same be listed on 19th November, 2024.
(KRISHNA RAO, J.)
S.De/sp3
