Calcutta High Court
Abdul Rashid vs Bidhan De Sarkar & Anr on 28 July, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-9
IA No.GA/1/2025
CS/58/2025
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
ABDUL RASHID
-VERSUS-
BIDHAN DE SARKAR & ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date : 28th July, 2025.
Appearance:
Mr. Sankarsan Sarkar, Adv.
Mr. Souradeep Banerjee, Adv.
Mr. Samriddho Sen, Adv.
Ms. Sanjana Sinha, Adv.
...for the plaintiff.
Mr. Suparna Mukherjee, Sr. Adv.
Mr. Ratul Das, Adv.
Mr. Sarbajit Mukherjee, Adv.
Mr. Shivam Pathak, Adv.
Mr. Kamran Hussain, Adv.
...for the defendant.
The Court: In a suit for specific performance of two development
agreements both dated 25th October, 2025 by which the plaintiff/petitioner
agreed to develop two different immovable properties respectively situate
and lying at premises No.42C, Serpentine Lane, P.O. Entally, P.S.
Muchipara, Kolkata- 700 014 measuring about 4 cottahs 4 chittacks and 15
sq.ft. and at premises No.42D, Serpentine Lane, P.O. Entally, P.S.
Muchipara, Kolkata- 700 014 measuring about 1 cottah 3 chittacks and 15
sq.ft. (hereinafter collectively referred to as the 'said properties'), this
application, inter alia, for injunction has been made.
The matter appears to have a chequered history. The suit was
initially filed in 2023 in the commercial division of this Court and was
number as CS/213/2023. In the said suit, on the allegation that the
development agreements have been terminated on 1st September, 2020, the
plaintiff had filed an interlocutory application being GA/1/2023. The ad
interim order of injunction was refused on the ground that the
plaintiff/petitioner was protected under the provisions of Sections 52 and
53A of the Transfer of Property Act, 1882 (hereinafter referred to as 'said
Act') as the plaintiff/petitioner had specifically averred to be in possession of
the said properties. The plaint was thereafter returned back for being
presented in the ordinary original civil division as the same did not arise out
of a commercial dispute as specified under Section 2(1)(c)(xi) of the
Commercial Courts Act, 2015. The parties were also sent to mediation. The
mediation did not materialize as a consequence whereof the present suit has
been filed being CS/58/2025.
In this application the plaintiff seeks an order of injunction on the
ground that a fresh termination notice has been issued on 21st April, 2025.
The plaintiff says that protection under Section 52 of the 1882 Act is not an
absolute protection available to the plaintiff. During the pendency of the
suit, if the defendants transfer the said properties to any third party, then
the said third party may put forth a defence of being a bona fide purchaser
for value without notice to eliminate the protection under Section 52 of the
1882 Act available to the plaintiff/petitioner. The petitioner, in this context,
relies upon the judgment reported in AIR 1988 Cal 25 (Sm. Muktakesi Dawn
& Ors. vs. Haripada Mazumdar & Anr.) and a recent Supreme Court
reported in 2024 SCC Online SC 3538 (Ramakant Ambala Choksi & Ors. vs.
Harish Ambala Choksi & Ors.). The plaintiff also relies upon the judgment
reported in 2011 SCC Online Cal 9 (Amrita Bazar Patrika Pvt. Ltd. vs. Kanak
Projects Limited & Anr.) as also on 2022 SCC Online Cal 3840 (Sourav
Sarkar vs. Hirak Ranjan Sarkar & Anr.) in support of an ad interim order of
injunction to be passed in his favour.
On behalf of the defendants it is submitted that the plaintiff
despite having undertaken to develop the said properties has done nothing
for over the years. By referring to the date of the development agreement i.e.
25th October, 2017, the defendants say that previously an ad interim order
of injunction prayed by the plaintiff was refused. No new case or change in
circumstances has been shown by the plaintiff to seek ad interim order of
injunction. In the previous round of the litigation the termination notice
was dated 1st September, 2020. Here the plaintiff alleges that the
termination notice is dated 21st April, 2025. There has been no change in
circumstances in between 2020 and 2025 when two termination notices
have been issued. The plaintiff has not been able to make out any prima
facie case or the balance of convenience and inconvenience to be in his
favour to obtain an ad interim order of injunction. The defendants,
therefore, say that the matter should be heard on affidavits and no ad
interim order of injunction should be granted at this stage.
After hearing the parties and considering the materials on record,
as also the judgments cited by the plaintiff, it is apparent that the plaintiff
has once again pleaded in the plaint as also in this application that the
plaintiff is in possession of the said properties though the same is disputed
by the defendants. Be that as it may, at this stage the Court has to proceed
on the basis of the statements made in the plaint unless a contrary state of
affairs is shown by the defendants. If the plaintiff is in possession of the
said properties, then the plaintiff's interest remains protected under Section
53A of the 1882 Act, even if Section 52 of the said Act does not provide an
absolute protection to the plaintiff when one equates the development
agreements as an agreement coupled with interest as calculated by the
plaintiff/petitioner. This is the departure on factual aspect between the
cases considered in Ramakant Ambala Choksi & Ors. (supra), Sm.
Muktakesi Dawn (supra), Sourav Sarkar (supra) and Amrita Bazar Patrika
Pvt. Ltd. (supra).
The classical view in respect of a development agreement is that it
is an agreement for exchange wherein in exchange of the investment on
labour and mentioned as also other expenses made by the developer, the
developer is paid by giving a right in the developed property termed as
"developer's allocation". In recent days, a development agreement is often
considered to be an agreement coupled with interest. This has also brought
a departure from the earlier view that a developer is only entitled to damages
because the materials purchased by him on being affixed to the building in
the process of developing the property and making construction thereat
becomes the property of the owner of the land as in our country, the owner
of the land remains the owner of the property whether it is developed by a
developer or constructed through a contractor. This is more so while the
conveyance in respect of the developer's allocation is done by the owners of
the property. This may happen by treating the developer as a conforming
party where the owner directly executes the conveyance or by virtue of any
power of attorney given to the developer, the developer executes conveyance
on behalf of the owner. Due to change in view in case of development
agreement which is coupled with interest injunction is also available.
The rights of the developer vis-à-vis the owner, therefore, is
required to be prima facie adjudicated in this case prior to granting an order
of injunction. In a supplemental proceedings, like the instant case as under
Section 94 of the Code of Civil Procedure, 1908, the Court is empowered to
pass an order which is just and convenient for ends of justice which
includes injunction, appointment of receiver, attachment before judgment or
even security. In the instant case, the injunction sought for by the plaintiff
is governed by the provisions of the Specific Relief Act, 1963 the procedure
whereof is laid down under the provisions of Order 39 Rules 1 and 2 of the
Code of Civil Procedure. The plaintiff is, therefore, required to make out a
prima facie case, establish that balance of convenience and inconvenience is
in favour of the plaintiff. One further germane issue is considered for grant
of an order of injunction i.e., multiplicity of judicial proceedings. In the
instant case, in view of the ratio laid down in the judgments cited by the
plaintiff, the plaintiff is substantially correct that Section 52 of the 1882 Act
does not grant an absolute protection to the plaintiff but the factual
difference as discussed hereinabove, the plaintiff has himself averred to be
in possession of the property. If the development agreement along with
power of attorney as contended by the plaintiff is considered to be a right
coupled with interest then, in a suit for specific performance where the
plaintiff has stated to be in possession, the interest of the plaintiff is fully
secured under the provisions of Sections 52 and 53A of the Act at this stage.
Even if there is a subsequent interest created by the defendant in respect of
the said properties owing to the provisions of Section 52 read with Section
53A of the Act of 1882, such transferee or person claiming under the
defendant cannot dislodge the plaintiff or his claim.
In the facts and circumstances as aforesaid, I do not find any
reason to injunct the defendant at this stage but is of the view that the
status of the said properties are required to be ascertained in view of the fact
that the plaintiff claims to be in possession which is disputed by the
defendants. Mr. Sourath Kumar Dutt, learned Advocate and a member of
the Bar Library Club is appointed as Special Officer to visit the said
properties being respectively Nos.42C and 42D, Serpentine Lane, P.O.
Entally, P.S. Muchipara, Kolkata- 700 014 and ascertain as to who is in
possession of the property in question and the present status of such
properties including construction, if any standing thereat. The learned
Special Officer shall also ascertain as to whether there are any occupants
other than the plaintiff and the defendants at the said properties and the
rights claimed by such occupants. The learned Special Officer shall be paid
Rs.17,000/- at the first instance which is to be borne by the plaintiff.
Let this matter appear on 7th August, 2025.
On the returnable date, the learned Special Officer shall file his
report with respect to the directions given in this order. It will be open to
the learned Special Officer to take necessary assistance of the parties and
also police help, if necessary.
(ARINDAM MUKHERJEE, J.)
A/s.
