Calcutta High Court

Bahubali Estates Limited vs Sewnarayan Khubchand And Ors on 10 November, 2025

Author: Aniruddha Roy

Bench: Aniruddha Roy

                    In the High Court at Calcutta
                        Commercial Division
                           Original Side
       Judgment (2)


PRESENT :
THE HON'BLE JUSTICE ANIRUDDHA ROY


                                        IA NO. GA-COM/3/2024
                                         In CS-COM/708/2024

                                    BAHUBALI ESTATES LIMITED
                                               Vs
                                 SEWNARAYAN KHUBCHAND AND ORS



For the plaintiff                : Mr. Sakya Sen, Sr. Adv.
                                   Mr. Suddhasatva Banerjee, Adv.
                                   Mr. Biswajit Ghosh, Adv.
                                   Mr. Avirup Chatterjee,
                                   Mr. Rishov Das, Adv.

For the defendants               : Mr. Rajarshi Dutta, Adv.
                                   Mr. Avijit Dey, Adv.
                                   Mr. Sarbesh Chaudhury, Adv.



Heard on            : November 10, 2025

Judgment on         : November 10, 2025



ANIRUDDHA ROY, J :

FACTS:

1. Mr. Sakya Sen, learned Senior Advocate appears for the

plaintiff/petitioner.

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.

2. Mr. Rajarshi Dutta, learned Advocate appears for the

defendants/respondents.

3. The plaintiff/petitioner is allegedly the lessor of the suit premises

and the defendants/respondents are lessee/partners of lessee.

4. Reliefs claimed in the plaint are quoted below:

"a) Decree for recovery of vacant and peaceful possession of the suit property being land measuring 2 Cotthas 8 Chittacks and 13 Square Feet being part of Premises No. 9C Lord Sinha Road, Kolkata 700071, morefully described in Schedule "A" hereto, along with structures standing thereon;

b) Decree for Rs.1,40,85,549/- in terms of paragraph 15 herein above;

c) Decree for Rs.31,58,129/- towards mesne profit at Rs.500/- per square feet per month on and from 29 th August, 2023 to 12th December, 2023, and further mesne profit at the said rate on and from 13th December, 2023, till handing over possession;

d) An Enquiry into mesne profit that may be received by the plaintiff,

e) Interest on judgment @ 12% per annum until realisation,

f) Receiver;

g) Injunction;

h) Costs;

i) Further and/or other reliefs".

5. The plaint was filed on or about June 19, 2024 and the plaint

was presented on or about July 10, 2024. The instant injunction

application was affirmed on or about September 30, 2024.

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.

6. The principal plea pleaded by the plaintiff/petitioner in the

injunction application praying for interlocutory reliefs are quoted

below:

"22. The plaintiff/petitioner states that the defendants have inspite of receipt of the notice of termination of the lease had been continuing with illegal possession of the scheduled property.

23. The plaintiff had recently on or about in the second week of September, 2024, noticed that the defendants have stacked huge quantity of building materials at the scheduled property, and upon enquiry had come to learn that the defendant intends to make further construction at the scheduled property.

24. The plaintiff upon enquiry has ascertained that the defendant has not obtained any permission from the Kolkata Municipal Corporation enabling it to make any construction at the suit property, however and despite the aforesaid the defendant is purporting to make certain construction work inside the building, and are also in the process of making further construction at the suit property, with a view to change the nature and character of the schedule property.

25. The plaintiff/petitioner, had also come to learn from the caretakers employed at the suit property, that the defendants have engaged real estate brokers who are regularly visiting the said property with various third parties and causing inspection of various portions of the same with a view to create further sub tenancies and third party interest in the portions under their illegal occupation.

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.

The defendant at present has no manner of right to enjoy and occupy the suit property but are continuing in illegal occupation of the same and taking advantage thereof is not entitled to deal with, transfer, alienate and/or encumber any portion of the suit property. Such illegal attempts on the part of the defendants unless restrained will give rise to creation of third party interest in the property resulting in multiplicity of proceedings, accordingly it is necessary expedient and in the interest of justice that an order of injunction be passed restraining the defendants their men, agents and servants from dealing with transferring, alienating encumbering and/or creating any third party interest in respect of the said property in any manner whatsoever. It is also necessary that a Special Officer be appointed to make inventory of the subject premises to ascertain the actual occupants in possession of various portions thereof an as well as the occupation charges paid by each of them and to collect the same from the individual occupants."

7. On the basis of the said averments, the petitioner prays for an

order of injunction, inter alia, restraining the defendants from

raising any construction over the suit premises and/or from

changing the nature and character of it. A further prayer has also

been made restraining the defendants from alienating,

encumbering and/or creating any third party interest in respect

of the suit premises.

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.

8. Pursuant to the direction made by the Co-ordinate Bench, parties

have filed and exchanged their respective affidavits.

9. The defence which is relevant, taken by the defendants is quoted

below from the affidavit in opposition

"37. With reference to paragraphs 22 to 24 of the said application, save what are matters of record, allegations to the contrary are denied. The alleged termination of the notice is bad in law. The defendants have already replied to such alleged termination notice. It is incorrect to allege that the defendants are continuing with possession of the schedule property, illegally, as alleged or at all. It is denied that the defendants have staged huge quantity of building materials at the schedule property, as alleged or at all, such allegations are imaginary and illusory. Inasmuch as the defendants have not staged any material at the schedule property, the question of the plaintiff noticing any such material allegedly staged at the schedule property did not or could not arise. The allegation is vague and the same shall be demonstrated in course of hearing of the said application. It is denied that any alleged enquiry was made by the plaintiff or that upon such alleged enquiry, the plaintiff could have come to learn about any alleged intention of the defendants to make further construction at the schedule property, as alleged or at all. Inasmuch as the defendants are not proceeding with any alleged construction at the suit property, the question of the defendants obtaining any permission from Kolkata Municipal Corporation or any other authority enabling the defendants to make such

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.

construction at the suit property, no construction or addition has been made by the defendant after the construction of the building in the year 1982 and there is no deviation existing in the said building contrary to the building sanction plan, hence such wild allegation of construction did not or could not arise. Therefore, the question of the plaintiff making any enquiry or ascertaining anything as alleged in the paragraphs under reference did not or could not arise. It is denied that the defendant is purporting to make construction work inside the building or that the defendants are in the process of making construction at the suit property or that the defendants are trying to change the nature or character of the suit property, as alleged or at all."

10. Upon the application being moved on the first day on November 4,

2024 none appeared on behalf of the defendants. The Co-ordinate

Bench passed an order restraining the defendants from raising

any construction over the suit property or changing nature and

character of the suit property and also restrained the defendants

from creating any third party interest over the suit property for a

limited period till November 29, 2024. Parties informed to this

Court today, the said interim order was extended from time to

time and still is in existence.

SUBMISSIONS:

11. Mr. Sakya Sen, learned Senior Advocate appearing for the

petitioner referring to the prayers from the plaint submits that the

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.

specific case of the plaintiff is that lease agreement stands

terminated by the plaintiff. Consequently, eviction of the

defendants has been sought for. He submits that since the

defendants have no valid right or interest on the suit premises,

neither the defendants can stay there for a moment nor can

change the nature and character of the suit property neither can

create any third party right or interest thereupon. Hence, the

injunction was passed, which is just and proper.

12. Mr. Sarbesh Chaudhury, learned Advocate led by Mr. Rajarshi

Dutta, learned Advocate appearing for the respondents, at the

threshold refers to Clause IV(a) of the Lease Agreement dated

June 17, 1982 at page 59 to the petition and submits that under

the said Lease Agreement whereunder the respondents had been

put in possession and granted right and interest over the property

consequently permits the defendants that the defendants shall be

entitled from time to time to build, rebuild and erect one or more

buildings in the demised premises or any portion thereof and

make all addition, alternation and renovation to the existing

aforesaid building to be rebuilt from time to time with or without

demolition of the existing and/or future building/buildings from

time to time in accordance with law. The defendants shall have

the right without consent of the plaintiff to sub-let or sub-demise,

mortgage, charge over and transfer the said suit premises.

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.

13. Learned Counsel Mr. Chaudhury submits that these are the

absolute rights created in favour of the defendants under the said

agreement and the defendants have exercised their rights under

the agreement.

14. Mr. Sarbesh Chaudhury then refers to the averments made in the

plaint and the injunction application, as referred to above and

submits that allegations are bold and without particulars, on

which no order of injunction should have been passed. More so,

the order of injunction was passed exparte against the

defendants. The averments made in the plaint/petition are not

supported by any materials.

DECISION:

15. After considering rival contention of the parties and upon perusal

of materials on record, it appears to this Court that, admittedly,

the plaint has been filed with the plea that the Lease Agreement

allegedly stands terminated and as a consequence, eviction of the

defendants has been sought for. The challenge thrown by the

defendants towards such contention in the suit, as written

statement has already been filed, has to be tested in a properly

constituted trial of the suit. Whether the termination is at all valid

or lawful, this Court while adjudicating this interlocutory

application shall not proceed to hold a mini trial on that. The

Court must restrict itself on the basis of the averments made and

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.

the documents disclosed by the parties in the injunction

application. The averments made by the defendants in paragraph

37 to the affidavit-in-opposition, quoted above, shows that the

defendants specifically contended that it had been put into

possession in the property in 1982 in terms of the Lease

Agreement. Inasmuch as, the defendants are not proceeding for

any alleged construction at the suit property, thus, the question

of defendants obtaining any permission from Kolkata Municipal

Corporation or any other authority does not arise. No

construction or addition has been made by the defendants after

the construction of the building in the year 1982 and there is no

deviation in the existing building contrary to any sanction plan.

16. In view of the above, this Court is of the firm and considered view

that, since the plaintiff has contended that the Lease Agreement

has allegedly been terminated and the said contention is under

trial and the defendants contended that since after 1982 no

construction has been made by the defendants, even if, an order

of injunction is passed to a limited extent, same shall not

prejudice any alleged rights of the defendants, if any. In the

aforesaid circumstances, the suit property and its status is also

required to be protected till the trial ends.

17. Considering the balance of convenience and inconvenience and

the prima facie case, this Court modifies the order of injunction

dated November 4, 2024 extended from time to time to the

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.

extent that parties shall maintain an order of status quo with

regard to the nature and character of the suit premises as on the

date of filing of the instant injunction application i.e. September

30, 2024. However, defendants and/or their men, agents,

servants, assigns shall also not create any third party right, title

or interest in respect of the suit premises without leave of the

Court.

18. It is also made clear that this Court has not expressed any

opinion on the merit of the respective contentions of the parties in

the suit and this order shall have no effect or bearing on the

underlying rights of the parties to the suit, at the time of final

disposal of the suit.

19. With the above observations and directions, this application being

GA-COM/3/2024 stands disposed of without any order as to

costs.

(ANIRUDDHA ROY, J.)

Sbghosh

IA NO. GA-COM/3/2024 In CS-COM/708/2024 A.R., J.