Calcutta High Court
Bahubali Estates Limited vs Sewnarayan Khubchand And Ors on 13 January, 2025
OCD-5
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
IA No. GA-COM/2/2024
In CS-COM/708/2024
BAHUBALI ESTATES LIMITED
-VS-
SEWNARAYAN KHUBCHAND AND ORS
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : January 13, 2025.
Appearance :
Mr. Sakya Sen, Sr. Adv.
Mr. Biswajib Ghosh, Adv.
Mr. Avirup Chatterjee, Adv.
Mr. Rishov Das, Adv.
...for the plaintiff
Mr. Rajarshi Dutta, Adv.
Mr. Avijit Dey, Adv.
...for the defendants
The Court: Mr. Sakya Sen, learned Senior Advocate, is appearing
for the plaintiff.
Mr. Rajarshi Dutta, learned Advocate, is appearing for the
defendants.
The plaintiff has filed the present application being GA-
COM/2/2024 praying for leave to disclose and rely upon additional
documents as mentioned in paragraph 9 of the present application.
Counsel for the plaintiff submits that initially the plaintiff had
initiated a case before the learned City Civil Court being Title Suit No.
1076 of 1998 against the defendant no.1 but the learned Trial Court has
dismissed the suit filed by the plaintiff. Accordingly, the plaintiff has filed
an appeal against the judgment and decree passed by the learned City
Civil Court and in that appeal it was held that the plaintiff is the owner of
the property in question and thus a new cause of action arose after the
order passed by the Appellate Court and, accordingly, the plaintiff has filed
the present suit against the defendants for recovery of possession and
mesne profit.
Counsel for the plaintiff submits that at the time of filing of the
suit, the documents as mentioned in paragraph 9 (a) to (k) were not in
possession of the plaintiff and as such the plaintiff could not file the said
documents at the time of filing of the suit.
Counsel for the plaintiff submits that the plaintiff has requested
the erstwhile management to hand over the documents evidencing the
execution of the deed of conveyance by the defendants but the same was
not made over to the plaintiff. After filing of the suit, the representative of
the plaintiff has approached the erstwhile advocate who has conducted the
suit before the City Civil Court and from the said learned advocate, the
plaintiff could manage to get the said documents and, accordingly, the
plaintiff has filed the present application.
Counsel for the plaintiff further submits that the suit was
admitted on 10th July, 2024 by the learned Master of this Court and
immediately when the plaintiff got the documents from the erstwhile
advocate of the erstwhile management of plaintiff company, has filed the
present application on 18th September, 2024 without any delay. He
submits that the documents which the plaintiff intends to bring on record
are very much necessary for adjudication of the present suit.
Counsel for the plaintiff further submits that the defendants have
not filed affidavit-in-opposition in spite of opportunity granted by this
Court and, thus, it presumes that the defendants have admitted the
contents made by the plaintiff in the application.
Per contra, learned counsel appearing for the defendants raised
objection and submitted that the contention made by the plaintiff is not
correct. He submits that initially the plaintiff had filed the suit against the
present defendants before the Learned City Civil Court for eviction and the
plaintiff had knowledge with regard to the said documents but the plaintiff
had not disclosed the said documents. Counsel for the defendants further
submits that in paragraph 9 of the present application, the plaintiff has
stated that the documents have been obtained by the plaintiff from the
advocate who had defended the erstwhile management of the plaintiff
which shows that the documents were in the hands of the plaintiff and as
such it cannot be said that only after filing of the suit, the plaintiff has got
the said documents.
Counsel for the defendants further submits that in the pleadings
of the plaint, the plaintiff has nowhere explained about any fact with
regard to the said documents and as such only by bringing the said
documents on record the plaintiff intends to bring a new case.
Heard the learned counsel for the plaintiff and perused the
materials on record.
The plaintiff has filed the present application praying for leave to
disclose the following documents:
"9. a) Lease Deed, in favour of Chander Alo Saha, being
No. 6900 dated 16th June, 1984, in connection with area
measuring 190 sq. ft, on the ground floor, being Show Room
No. 1.
b) Lease Deed in favour of Shyam Lal Agarwal, Mangtu
Ram Agarwal, Rama Devi Agarwal, being Bo. 90001 dated
5th July, 1985, in connection with area measuring 257 square
feet, on the ground Floor being Show Room No. 2.
c) Lease Deed in favour of Rishi Kumar Agarwal, being
Deed No. 10256 dated 26th August, 1989, in connection with
1/3rd Portion of the Basement measuring 438 square feet.
d) Lease deed in favour of Munni Devi Agarwal, being
Deed No. 10257 dated 26th August, 1989, in connection with
1/3rd portion of the basement, measuring 438 square feet.
e) Lease deed in favour Lalit Agarwal and Anil Agarwal,
being deed no 12748 dated 26th August, 1989, in connection
with 1/3rd portion of the basement measuring 438 square
feet.
f) Agreement for sale in favour of Jasoda Devi Vyas and
Raj Kumar Vyas, being deed no. 11088 dated 6th September,
1984, in connection with entre 1st Floor, measuring 1550
square feet together with undivided proportionate leasehold
interest in the demised land for the residue unexpired term of
the lease.
g) Deed of Sale in favour of Vyas Finance and Leasing
Co. Pvt. Ltd, in presence of confirming party Jasoda Devi
Vyas and Raj Kumar Vyas, being deed no. 15767 dated 29 th
December, 1984, in connection with entire 1st Floor,
measuring 1550 square feet together with undivided
proportionate leasehold interest in the demised land for the
residue unexpired term of the lease.
h) Deed of Sale in favour of Taggas Industrial
Development Ltd, being Deed No. 11227 dated 3rd September,
1986, for the entire second floor, along with undivided 1/5 th
Share of land.
i) Deed of sale in favour of Taggas Industrial
Development Ltd, being Deed No. 11228 dated 3rd September,
1986, for the entire third floor, along with 1/5th undivided
share in the leasehold land.
j) Deed of Sale in favour of Somnath Enclave Pvt. Ltd,
being Deed No. 586 of 22nd January, 2004, with respect to
the entire 1st Floor, subject to tenancy along with
proportionate share of land.
k) Certificate dated 30th July, 2024, issued by Kushal
Abhijit & Associates Chartered Accountant."
The only point which the defendants have raised by opposing the
present application is that the plaintiff had knowledge with regard to the
said documents which the plaintiff now intends to bring on record. The
defendants have relied upon the earlier suit filed by the plaintiff against
the present defendants and submitted that the said suit was filed in the
year 1988 and the documents which the plaintiff intends to bring on
record are of 1985 onwards and thus, it cannot be said that the plaintiff
had no knowledge with regard to the said documents. The defendants have
also pointed out with regard to paragraph 9 wherein the plaintiff has taken
stand that the plaintiff has obtained the documents from the advocate of
the erstwhile management of the plaintiff company who had proceeded
with the earlier suit.
This Court finds that the plaintiff in paragraph 7 has
categorically mentioned that initially the erstwhile management was taking
care of the plaintiff company but now, the present management of the
plaintiff has taken over the plaintiff company and the plaintiff company
has requested the erstwhile management of the company for handing over
the documents but the documents were not handed over. After filing of
the suit, the plaintiff has managed to get the said documents from the
erstwhile advocate who had represented the erstwhile management of the
company. It is the specific case of the plaintiff that these documents have
been obtained by the plaintiff after filing of the suit. This Court also finds
that the suit was filed in the month of July, 2024 and the application was
filed in the month of September, 2024.
Counsel for the plaintiff further submits that the plaintiff has
filed the present application before issuance of writ of summons and as
such, if this Court allows the application, the defendants will not suffer
any irreparable loss and injury as the defendants will get an opportunity to
deal with the documents on which the plaintiff intends to rely upon.
Considering the above, this Court finds that it is a specific case
of the plaintiff that the documents which the plaintiff intends to bring on
record were not in the hands of the plaintiff and the plaintiff got the
documents only after filing of the present application and taking into
consideration of the said statement which was not denied by the
defendants by filing any affidavit-in-opposition in spite of giving an
opportunity to the defendants to file an affidavit, the application filed by
the plaintiff is allowed.
In view of the above, the plaintiff is allowed to disclose the
documents as mentioned in paragraph 9(a) to (k).
GA-COM/2/2024 is disposed of.
(KRISHNA RAO, J.)
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