Calcutta High Court
Mono Orion Foods India Private Limited vs Syndicate Realityinfra Private ... on 21 August, 2025
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
IA No. G.A. 2 of 2022
In
C.S. (Com) No. 593 of 2024
(Old No. C.S. 165 of 2021)
MONO ORION FOODS INDIA PRIVATE LIMITED
Versus
SYNDICATE REALITYINFRA PRIVATE LIMITED
Mr. Rudraman Bhattacharyya, Sr. Adv.
Mrs. Suchishmita Ghosh Chatterjee
Ms. Amrita Panja Moulick
Mr. Siddharth Banerjee
Ms. Shivangi Agarwal
Mr. Satyaki Mukherjee
... For the plaintiff.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Dhirendra Nath Sharma, Sr. Adv.
Mr. Naresh Balodia
2
Mr. Samrat Saha
... For the defendant.
Hearing Concluded On : 31.07.2025
Judgment on : 21.08.2025
Krishna Rao, J.:
1. The defendant has filed an application being G.A. No. 2 of 2022 in C.S.
(Com) No. 593 of 2024 (Old No. C.S. 165 of 2021) for dismissal of suit
for the reasons that:
a. The plaintiff has not applied specific
performance of the entirety of the said
Development Agreement dated 17th August,
2015.
b. In view of the bar under Section 12 of the
Specific Relief Act, 1963 (as amended),
specific performance of a part of the contract
cannot be directed and the Court shall not
direct the specific performance of a part of the
contract, as prayed for.
c. Upon perusing the Plaint, it will appear that
Plaintiff has applied for only specific
performance of clauses 4.1, 7.1, 9.1 and 10.2
of the said Development Agreement. This will
also appear from prayer (a) of the Plaint filed
in the above suit. The other purported reliefs in
the Plaint being prayers (b) to (e) are the other
consequential reliefs flowing from prayer (a) of
the Plaint.
d. Prayer (a) of the Plaint is contrary to law and
the suit as framed is barred by law and thus
the suit filed by the plaintiff is liable to be
rejected.
2. Mr. Abhrajit Mitra, Learned Senior Advocate representing the defendant
submits that the plaint does not state that the plaintiff is not entitled to
claim specific performance of the entire contract for any of the reasons
contemplated in Sections 12(2), 12(3) or 12(4) of the Specific Relief Act,
1963.
3. Mr. Mitra further submits that the Power of Attorney previously granted
to Mahesh Kumar Agarwal is expressly not for development of the
subject premises. The Power of Attorney was not an irrevocable. The
Power of Attorney which is not expressly made irrevocable in a manner
known to law is essentially determinable/ revocable. In support of his
submissions, he has relied upon the judgment in the case of Suraj
Lamp and Industries (P) Limited (2) Vs. State of Haryana & Anr.
reported in (2012) 1 SCC 656 and in the case of Indira Rajguru of
United Kingdom, Indian Origin Vs. Balakrishna K. Rajguru of
United Kingdom and Australia, Indian Origin and Others reported
in 2019 SCC OnLine Bom 235.
4. Mr. Mitra submits that execution of such a Power of Attorney as
claimed in the plaint would be hit by Section 14(d) of the Specific Relief
Act, 1963 since the defendant would be free to revoke the Power of
Attorney at any time. He submits that Court cannot grant specific
performance of a contract when the contract is determinable. He
submits that no Court would pass a decree that is on the face of it
futile. He relied upon the judgment in the case Laxmidas Dayabhai
Kabrawala Vs. Nanabhai Chunilal Kabrawala and Others reported
in AIR 1964 SC 11, in the case of S.L. Kapoor Vs. Jagmohan and
Others reported in AIR 1981 SC 136 and in the case of S.M.
Amarchand Sowcar and Ors Vs. Tamil Nadu Electricity Board and
Others reported in MANU/ TN/0034/1999.
5. Mr. Mitra submits that the extent of loss which the plaintiff would
suffer in case specific performance is not granted has been assessed at
paragraph 11 of the plaint. If compensation would give adequate relief,
then mandatory injunction/ specific performance cannot be granted. In
support of his submissions, he has relied upon the judgment in the
case of Sushil Kumar Agarwal Vs. Meenakshi Sadhu & Ors.
reported in (2019) 2 SCC 241, in the case of Nidamarti Jaladurga
Prasadarayudu Vs. Ladooram Sowcar and Another reported in AIR
1936 Madras 687 and in the case of I.B.P. Co. Ltd. & Ors. etc. Vs.
Ramashish Prasad Singh & Ors. reported in AIR 2006 Patna 91.
6. Mr. Mitra submits that for further performance of the Development
Agreement dated 17th August, 2015, is a fresh contract being entered
into by the plaintiff and the defendant in terms of Clause 5.3 of the
Development Agreement. The building plan was sanctioned on 18th
November, 2016 and the three years' period has thus expired on 17th
November, 2019. Clause 6.4 of the Development Agreement also
requires a future contract being entered into by and between the
parties for allocation of areas between themselves. Unless the said two
contracts as contemplated in Clause 5.3 and 6.4 of the Development
Agreement are entered by the parties, the Development Agreement
cannot be fully performed. He submits that the agreements regarding
allocation of built up area and regarding time extension are required to
be brought into existence as per Clauses 6.4 and 5.3 of the
Development Agreement. The Court cannot bring about a contract
between the parties. He relied upon the judgment in the case of
Venkataraman Krishnamurthy & Another Vs. Lodha Crown
Buildmart Private Limited reported in (2024) 4 SCC 230. He further
submits that the Development Agreement has vital elements which
contemplate contracts to be entered into in future in terms of Clauses
5.3 and 6.4 of the Development Agreement is void. There can be no
contract to enter into a future contract and an agreement to that effect
is void. He relied upon judgment in the case of Kollipora Srimulu Vs.
T. Aswatha Narayana reported in AIR 1968 SC 1028, in the case of
Von Hatzfeldt-Wildenburg Vs. Alexander reported in (1912) 1 CH
284, in the case of Speech & Software Vs. Neos Interactive reported
in (2009) 1 SCC 475 and in the case of King's Motors (Oxford) Ltd.
Vs. Lax & Anr. reported in (1970) 1 Weekly LR 426.
7. Mr. Mitra submits that decree for mandatory injunction as claimed by
the plaintiff cannot be granted in lieu of the specific performance. He
relied upon the judgment in the case of Suresh Kumar through GPA
Vs. Anil Kakaria & Ors. reported in AIR 2017 SC 5239.
8. Mr. Rudraman Bhattacharyya, Learned Senior Advocate representing
the plaintiff submits that a plaint can be rejected only on grounds
referred to in Order VII, Rule 11 of the Code of Civil Procedure, 1908. In
respect of Letters Patent a plaint can be dismissed on the grounds
mentioned in Order VII, Rule 11(a) or (d) of the Code, where the plaint
does not disclose a cause of action, or wherefrom the averments made
in the plaint it appears that the suit is barred by law. He submits that
only the averments made in the plaint are to be looked into for the
purpose of deciding an application under Order VII, Rule 11 of the Code
of Civil Procedure, 1908.
9. Mr. Bhattacharyya submits that from none of the averments made in
the plaint, it can be shown that the suit is barred by any law. As regard
the cause of action of the plaintiff is concerned, the suit is for specific
performance of a Development Agreement by executing a Power of
Attorney in favour of Meena Agarwal, the Director of the plaintiff. Mr.
Bhattacharyya relied upon Appendix -A, Form Nos.47 and 48 of the
Civil Procedure Code, 1908 and submits that a suit for specific
performance of contract should contain the averments mentioned
therein and the present suit is in consonance with the forms given in
the CPC and cannot be said that no cause of action is disclosed.
10. Mr. Bhattacharyya submits that it cannot be said that the agreement
stood expired by efflux of time in November, 2019. He submits that it is
the case of the plaintiff that the work was progressing smoothly until
the demise of Mahesh Kumar Agarwal. Time is never the essence of
contract in terms of Clauses 3.1, 3.2 read with Clause 5.3. Clause 3.2
provides that the agreement shall remain in force till such time the
construction is completed and Clause 5.3 provides that the time may
be extended on mutual consent of the parties.
11. Mr. Bhattacharyya submits that the suit is not simpliciter suit for
construction. It is a suit coupled with an interest in the property and is
enforceable. In support of his submission, he has relied upon the
judgment in the case of B. Santosh Amma & Anr. Vs. D. Sarala &
Anr. reported in (2020) 19 SCC 80 and submits that after amendment
to the Specific Relief Act in a suit for specific performance relating to a
suit of an immovable property, the Court is now obliged to enforce
specific performance of the contract and the relief for specific
performance is no longer discretionary.
12. Mr. Bhattacharyya submits that when a development agreement
contains a stipulation whereby a developer is allocated any share in the
proposed constructed building, the said agreement creates an interest
in respect of the property in favour of the developer and is specifically
enforceable. He relied upon the judgment in the case of Ashok Kumar
Jaiswal & Others vs. Asim Kumar Kar reported in AIR 2014 Cal
92. He submits that the judgment passed by the Calcutta High Court
has been affirmed by the Hon'ble Supreme Court in the case of
Rameshwar and Others Vs. State of Haryana reported in (2022) 17
SCC 47.
13. Mr. Bhattacharyya submits that nowhere in the plaint, the plaintiff has
claimed damages. Even then if the plaintiff claimed damage by way of
compensation, the suit would not have been barred by law. He submits
that after the amendment to the Specific Relief Act, 1963, Section 21(1)
of the Act, provides that in a suit for a specific performance the plaintiff
may also claim compensation. He submits that Clause 4.1 provides
that it is incumbent on the defendant to execute Power of Attorney in
favour of the plaintiff or its nominee or nominees. The plaintiff is a
company and a juristic body. The Power of Attorney is a registered
document. The Power of Attorney was executed only for the purpose of
ministerial works i.e. obtaining sanctions, appointing architects, getting
fire licenses etc. It does not require any qualification.
14. Mr. Bhattacharyya submits that from the Development Agreement, the
rights of the parties and their livelihoods are fully crystallized. As per
Clauses 6.2, 6.3, 6.5 and 7.1 does not contemplate entering into any
future agreements.
15. Heard the Learned Counsels for the respective parties, perused the
materials on record and the judgments relied by the parties. The
defendant being the owner of premises No. 1, Upper Wood Street,
Kolkata- 700017 entered into a registered Agreement for Development
on 17th August, 2015, with the plaintiff. As per Clause 4.1 of the
Development Agreement in order to implement the agreement, the
defendant was required to execute a general Power of Attorney in favour
of the nominee of the plaintiff. Clause 4.1 of the Development
Agreement reads as follows:
"4.1. The Owner shall execute a general
Power of Attorney in favour of the Developer or his
nominee or nominees for the purpose of giving
effect to and/or implementing this agreement.
However, this developer shall on the basis of the
Power of Attorney will be entitled to deal with
and/or enter into and agreement of the developer's
allocation of the building to be constructed to
prospective buyers/purchasers and to accept the
consideration amount from time to time. The owner
shall sign and execute a Deed of Conveyance at the
time of Registration and as and when asked by the
developer."
16. In terms of the said Clause, the defendant executed a registered Power
of Attorney on 1st September, 2015, in favour of Mahesh Kumar
Agarwal i.e. the nominee of the plaintiff. The development of the
premises was being carried out by the plaintiff on the terms and
conditions of the Development Agreement and the Power of Attorney
executed in favour of its nominee, Mahesh Kumar Agarwal. During
progress of the development work of the premises, Mahesh Kumar
Agarwal died on 3rd April, 2020. After the demise of Mahesh Kumar
Agarwal, the plaintiff followed up with the defendant to execute Power
of Attorney in favour of Meena Agarwal, the nominee director of the
plaintiff in place of Mahesh Kumar Agarwal but the defendant not come
forward to execute fresh Power of Attorney in favour of the nominee of
the plaintiff to complete the work.
17. Now the plaintiff has filed the suit praying for the following reliefs:
"(a) A decree for specific performance of the
registered development agreement dated August
17, 2015 as pleaded in paragraph 24 above by;
(i) Executing a Power of Attorney in favour of
the nominee of the Plaintiff namely Meena
Agarwala and cause the same to be
registered;
(ii) The defendant and/or its directors be
directed to render necessary assistance in
having such Power of Attorney to be
executed and also to be registered;
(iii) In the event, the defendant, its men, agents,
servants, assigns refuse to execute a Power
of Attorney and/or to register the same, an
officer of the court be appointed to execute a
Power of Attorney in terms of clauses 4.1,
6.6, 7.1 and 10.2 of the said Development
Agreement on behalf of the Defendant and
present the same for registration and have
the same registered for and on behalf of the
defendant;
(b) A decree for mandatory injunction directing the
Defendant to execute a fresh General Power of
Attorney in favour of the nominee of the Plaintiff
strictly in terms of Clause 4.1 and 7.1 of the
Development Agreement dated August 17, 2015, as
pleaded in paragraph 25 above;
(c) A decree for Perpetual Injunction restraining the
Defendant, its men, agents, servants and assigns
from creating any third party rights in respect of
the subject premises or interfering with the right of
the Plaintiff or to enter into any agreement with any
third party on account of the balance work at the
subject premises as pleaded in paragraph 26
above;
(d) A decree for Perpetual Injunction restraining the
Defendant, , its men, agents, assigns and servants
from dealing with, disposing of, and/or
encumbering the Plaintiff's share of allocation as
indicated in Annexure "H" thereof;
(e) A decree for Perpetual Injunction restraining the
Defendant, , its men, agents, assigns and servants
from trying to interfere, dispossess the Plaintiff
from the premises no.1, Upper Wood Street,
Kolkata - 700 017;
(f) Injunction;
(g) Receiver;
(h) Costs;
(i) Further and/or other relief or reliefs as this
Hon'ble Court may deem fit and just."
18. The first contention raised by the defendant that the prayers (a) and (b)
cannot be granted for the reasons that there cannot be a suit for
specific performance of only part of a contract due to bar under Section
12(1) of the Specific Relief Act, 1963. Section 12 of the Specific Relief
Act, 1963, which reads as follows:
"12. Specific performance of part of
contract.--
(1) Except as otherwise hereinafter provided in this
section the court shall not direct the specific
performance of a part of a contract.
(2) Where a party to a contract is unable to perform
the whole of his part of it, but the part which must
be left unperformed by only a small proportion to
the whole in value and admits of compensation in
money, the court may, at the suit of either party,
direct the specific performance of so much of the
contract as can be performed, and award
compensation in money for the deficiency.
(3) Where a party to a contract is unable to perform
the whole of his part of it, and the part which must
be left unperformed either--
(a) forms a considerable part of the whole, though
admitting of compensation in money; or
(b) does not admit of compensation in money,
he is not entitled to obtain a decree for specific
performance; but the court may, at the suit of other
party, direct the party in default to perform
specifically so much of his part of the contract as he
can perform, if the other party--
(i) in a case falling under clause (a), pays or
has paid the agreed consideration for the
whole of the contract reduced by the
consideration for the part which must be left
unperformed and a case falling under clause
(b), pays or had paid the consideration for the
whole of the contract without any abatement;
and
(ii) in either case, relinquishes all claims to the
performance of the remaining part of the
contract and all right to compensation, either
for the deficiency or for the loss or damage
sustained by him through the default of the
defendant.
(4) When a part of a contract which, taken by itself,
can and ought to be specifically performed, stands
on a separate and independent footing from
another part of the same contract which cannot or
ought not to be specifically performed, the court
may direct specific performance of the former part.
Explanation.--For the purposes of this section, a
party to a contract shall be deemed to be unable to
perform the whole of his part of it if a portion of its
subject matter existing at the date of the contract
has ceased to exist at the time of its performance."
19. The plaintiff claims that the plaintiff is entitled to claim for a decree of
Specific Performance of Development Agreement dated 17th August,
2015 by the defendant in terms of Clauses 4.1, 7.1, 9.1 and 10.2 which
reads as follows:
"4.1. The Owner shall execute a general
Power of Attorney in favour of the Developer or his
nominee or nominees for the purpose of giving
effect to and/or implementing this agreement.
However, this developer shall on the basis of Power
of Attorney will be entitled to deal with and/or
enter into and agreement of the developer's
allocation of the building to be constructed to
prospective buyers/purchasers and to accept the
consideration amount from time to time. The owner
shall sign and execute a Deed of Conveyance at the
time of Registration and as and when asked by the
developer.
7.1. On execution of the Agreement the Owner
shall execute a General Power of Attorney in favour
of the Developer's Nominees/Directors for the
purpose of obtaining the sanction of the Building
Plan and necessary permission approvals and
sanctions from different authorities in connection
with the construction of the said new buildings and
also for pursuing and following up the matter with
the Kolkata Municipal Corporation, Urban Land
(Ceiling and Regulation) Act, 1976, Fire
Department, West Bengal Building (Construction
and Transfer) by Promoter Act, Pollution and
Environment Contract Authorities, Directorate of
Electricity, for obtaining Lift, License, permission for
Generator, for obtaining Sewerage Connection,
Water, Electricity supply and/or modification and
charges of the plan and for obtaining the
completion and Occupancy Certificates and other
Authorities and for booking and/or entering into
agreement for sale or saleable area forming part of
the Developers allocation in the said premises
keeping the Owners totally indemnified.
9.1. The Owner's hereby undertake that the
Developer shall be entitled to construct, erect and
complete the new building on the said premises. In
accordance with the plan to be sanctioned and the
Owners hereby agree not to cause any interference
or hindrance in the construct of the said building
and/or in the enjoyment of the Developer's
allocation PROVIDED the Developer performs and
fulfills all the terms and conditions herein
contained and on the part of the Developer to be
observed and performed.
10.2. It Is understood that from time to time to
facilitate the construction of the building by the
Developer various deeds, matters and things not
herein specified may be required to be done by the
Developer and for which the Developer may need
the authority of the Owners and various
applications and other documents may be required
to be signed or made relative to which specific
provisions may not have been, mentioned herein,
the owner hereby undertakes to do all such acts,
deeds, matter and the Owners shall execute any
such additional Power of Attorney and/or
authorization as may be required by the Developer
for the purpose and the Owners also undertake to
sign and execute all such additional applications
and other documents as the case may be provided
that all such acts, deeds, matters and things do not
in any way infringe on the rights of the Owners
and/or go against the spirit of this agreement. The
owners shall handover all the certified copies of.
Sale Deed/Conveyance or any document related to
the said premises The owner shall also handover
all the papers, documents of the pending case
referred above to the developer."
20. As per Clause 4.1 of the Development Agreement, the defendant has
initially executed Power of Attorney in favour of one Mr. Mahesh Kumar
Agarwal. Unfortunately, he died on 3rd April, 2020. The plaintiff is a
company and Mahesh Kumar Agarwal was one of the directors of the
plaintiff Company. After the death of Mahesh Kumar Agarwal, another
director has requested the defendant for execution of Power of Attorney
so as to enable the plaintiff to complete the development work of the
premises in question. It is the specific case of the plaintiff that without
the new Power of Attorney being granted in favour of nominee director
of the plaintiff, the plaintiff would not be in a position to apply for
necessary permission and sanctions which are required for completion
of the work under the Development Agreement.
21. The sanction plan expired on 17th November, 2019. Before expiry of the
sanction plan, the plaintiff has requested the defendant for execution of
new Power of Attorney in favour of another director of the plaintiff
company but the defendant has not come forward to execute new Power
of Attorney and before expiry of the date of sanction plan, the plaintiff
has filed the present suit. The works depend upon renewal of sanction
building plan. Clause 7.1 specifically provides for execution of general
Power of Attorney in favour of the developer's nominees/directors for
the purpose of obtaining sanction plan of the building and necessary
permission, approvals and sanctions from different authorities in
connection with the construction of new buildings and also for
pursuing and following up the matter with the Kolkata Municipal
Corporation and other authorities. As per Clause 9.1 the owner i.e. the
defendant undertakes that the plaintiff shall be entitled to construct,
erect and complete the new building on the premises in accordance
with the plan to be sanctioned and the defendant agreed not to create
any interference or hindrance in the construction of the building.
Clause 10.2 also provides that from time to time to facilitate the
construction of the building by the developer various deeds, matters
and things not herein specified may be required to be done by the
Developer and for which the Developer may need the authority of the
owners and various applications and other documents may be required
to be signed or made relative to which specific provisions may not have
been mentioned herein, the owner hereby undertakes to do all such
acts, deeds and the owners shall execute any such additional Power of
Attorney or authorization may require by the developer.
22. Mr. Mitra relied upon in the case of Suraj Lamp & Industries Pvt.
Ltd. (2) (supra) wherein the Hon'ble Supreme Court held that:
"20. A Power of Attorney is not an instrument
of transfer in regard to any right, title or interest in
an immovable property. The Power of Attorney is
creation of an agency whereby the grantor
authorises the grantee to do the acts specified
therein, on behalf of grantor, which when executed
will be binding on the grantor as if done by him
(see Section 1-A and Section 2 of the Powers of
Attorney Act, 1882). It is revocable or terminable at
any time unless it is made irrevocable in a manner
known to law. Even an irrevocable attorney does
not have the effect of transferring title to the
grantee."
23. In the present case the plaintiff is not claiming any right, title and
interest in an immovable property as a Power of Attorney holder. The
only request of the plaintiff to the defendant for providing Power of
Attorney to complete the development work. The claim of the plaintiff
with respect to Power of Attorney is in terms of clauses of the
Development Agreement. It is the specific case of the plaintiff that
without power of attorney, the plaintiff will not be in a position to
complete the construction work in terms of the Development
Agreement. The plaintiff requires certain sanctions from the Kolkata
Municipal Corporation and other authorities to complete the
construction work. Thus, the judgments relied by the defendant in the
case of Suraj Lamp and Industries (P) Limited (2) (supra) and Indira
Rajguru of United Kingdom, Indian Origin (supra) are not applicable
in the present case.
24. The defendant has raised the issue that no Court can pass a decree
that on the face of it Futile. He has relied upon the judgment in the
case of Laxmidas Dayabhai Kabrawala (supra), S.L. Kapoor (supra)
and S.M. Amarchand Sowcar (supra). The relief of declaration is to be
granted only at the discretion of the Court, on being satisfied with the
necessity to grant such a relief. In the case in hand whether the
plaintiff is necessarily required Power of Attorney or the defendant is
liable to execute any Power of Attorney in favour of the nominee of the
plaintiff after the death of Mukesh Kumar Agarwal is a matter of trial.
The plaintiff has to prove his case during trial. Thus the judgements
relied by the defendant are distinguishable from the facts of this case.
25. In the present suit, the plaintiff is not claiming any right of his
allocated area in the premises. The plaintiff has only prayed for a
decree in terms of Clauses 4.1, 7.1, 9.1 and 10.2. The argument made
by the defendant that the Court cannot bring about a contract between
the parties is not the question in the present suit. The plaintiff has also
not prayed for any decree for entering into any future agreement in
terms of Clauses 5.3 and 6.4.
26. Considering the above, this Court did not find that the suit is barred by
any law. The application filed by the defendant is misconceive,
accordingly, the same is dismissed.
27. Thus G.A. No. 2 of 2022 is dismissed.
(Krishna Rao, J.)
