[Cites 2, Cited by 0]
Calcutta High Court
Priyabrata Kumar Basak vs Baghbazar Sarbojanin Durgotsab And ... on 9 April, 2026
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
O-73 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
IA NO: GA/1/2025
IN
CS/74/2025
PRIYABRATA KUMAR BASAK
VS
BAGHBAZAR SARBOJANIN DURGOTSAB AND EXHIBITION AND ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 9th April, 2026.
APPEARANCE:
Mr. Purnendu Das, Adv.
Mr. Kinjal Kumar Baral, Adv.
Mrs. Gitika Mallick, Adv.
For plaintiff
Ms. Sormi Dutta, Adv.,
For defendant nos.1 to 4
Mr. Souvick Mitra, Adv.
Ms. Shetpana Ray, Adv.
For defendant Nos. 5 & 6
THE COURT: The defendant nos. 1 to 4 are represented by Ms. Sormi
Dutta, learned advocate. However, no vakalatnama has yet been filed by Ms.
Dutta, learned advocate appearing on behalf of the defendant nos.1 to 4. The
defendant nos.1 to 4 is permitted to enter appearance through Ms. Dutta by
17th April, 2026. Ms. Dutta, however, submits that the portion which was
agreed to be given by the defendant nos.1 to 4 to the defendant nos. 5 and 6 is
ready for being handed over. The defendant nos. 5 and 6 despite being offered
2
to take possession has not done so. The defendant no.1 represented by the
defendant nos. 2, 3 and 4 are ready to make over possession to defendant nos.
5 and 6 at any point of time.
On behalf of the defendant nos. 5 and 6, it is submitted that the
defendant nos. 5 and 6 intend to purchase the property in the developed
premises from the defendant no.1 represented by the defendant nos. 2, 3 and
4. The defendant nos. 5 and 6 refer to a document described as Memorandum
of Agreement dated 15th November, 2017 annexed to their affidavit in
opposition at page 12 thereof to contend that the said defendants have been
given a right to purchase the property and if they express their intention to do
so the defendants have to sell the same to the said defendants. The document
if has to be construed as an agreement for sale as contended by the defendant
no. 5 and 6, the same is an unregistered, insufficiently stamped document.
The plaintiff is admittedly not a party to the said Memorandum of
Agreement.
In clause-3 of the said Memorandum of Agreement under the heading
"Principal Contacts" in internal page-4 of the said agreement following has
been stated:
1.
That the owner will arrange alternative accommodation for the party of
the other part.
2. That the owner will bear all expenses for shifting and pay rent and/or
charges for alternative accommodation but the tenant will pay her rent
as she was paying in the past occasions to the owner herein against
proper rent receipt although the other being tenant are residing this
premises for last 62 years.
3. That after completion of the construction owner will hand over khas
possession to the tenant in a habitable condition within 24 (twenty four)
months, if extra time is require the owner will bear al charges for extra
time.
4. That party of the other part i.e. said tenant shall not make any
obstruction during the period of construction.
5. That in any circumstances the party of the other part intend to
purchase their tenanted portion from the owner and they will bear
requisite Stamp Duty, registration Fees and other legal expenses and
owner undertake to execute all deed/s for transfer of the flat.
7. Such principal contracts may be changed in writing from time to time by
the parties and under any circumstances the tenant shall not paying
development charges.
On a plain reading of the said terms it is abundantly clear that the
defendant nos. 5 and 6 were the tenants under the defendant no.1. Prior
thereto, the defendant no. 5 and 6 were tenants under Pitambar Ghosh,
Nilambar Ghosh and Sanat Ghosh from whom the defendant no. 1 club
purchased the property being premises no. 2/1, Baghbazar Street, P.S.
Shampukur, Kolkata-700003 (hereinafter referred to as "the said property").
The said property as described in the Memorandum of Agreement signed by the
defendant no. 1 represented by defendant nos. 2, 3 and 4 and the defendant
nos. 5 and 6 comprised of two storey having 1000 sqft. and the ground floor
and 900 sqft. at the 1st Floor. The defendant nos. 5 and 6 were tenants in
respect of three (3) rooms, one kitchen with common privy and toilet measuring
about 410 sqft. at the ground floor of the said property (hereinafter referred to
as the demised premises). The defendant nos. 1 to 4 wanted to develop the
said property for which the defendants were requested to shift to an alternative
accommodation during the period of development with an undertaking to put
the defendant nos. 5 and 6 into an area equivalent to their area under
occupation at the developed premises after the construction was complete.
It is also clear from the Memorandum of Agreement that the defendant
nos. 5 and 6 if intends to purchase the tenanted portion in the developed
premises from the defendant no.1 they will bear requisite stamp duty,
registration fees and other legal expenses and the defendant no. 1 described as
owner would execute the deed for the transfer of the flat. There is no
stipulation in the said Memorandum of Agreement wherefrom it will be evident
that the defendant nos. 5 and 6 agreed to purchase and the defendant nos. 1
to 4 agreed to sell the tenanted portion at the developed premises. The portion
in the developed property was also not mentioned as the same could not have
been specified prior to the development. There is also no consideration agreed
upon. It only gives a right to the defendant nos. 5 and 6 to express their
intention to purchase which, if expressed, will be adhered to by the defendant
no.1.
The alternative accommodation provided to the defendants no. 5 and 6 is
the suit property in respect of which the plaintiff and the defendant no. 1
entered into a leave and license agreement. A copy of such leave and license
agreement dated 7th August, 2020 has been disclosed by the defendants no. 5
and 6 in their affidavit in opposition as also by the plaintiff in the application.
Under the said leave and license agreement to which the defendant nos. 5 and
6 are not parties or signatories, the defendant no. 1 agreed to pay the leave and
license fees. There is as such no privity of contract between the plaintiff and
the defendant nos. 5 and 6. At the highest defendant nos. 5 and 6 is
occupying the suit property as a nominee of the defendant nos. 1 to 4.
In the aforesaid facts and circumstances, the submission made by the
defendant nos. 5 and 6 that they will enter into possession of the developed
premises under the defendant no.1 only if the defendant no.1 agrees to sell the
same is unfounded at this stage. Apart from legal hassles of and unregistered
and insufficiently stamped document it is apparent from a conjoint reading of
the clauses set out hereinabove and assuming without admitting that the
contention of the defendant nos. 5 and 6 are correct then also at that it gives
only a right to the defendant nos. 5 and 6 to exercise an option which will
entitle them to enter into a further agreement with the defendant nos. 1 to 4
with proper specification of the property and consideration money which will be
followed by a conveyance or directly by a conveyance. I, however, express no
opinion with regard to the right, if any, available to the defendant no. 5 and 6
against the defendant nos. 1 to 4 save and except that required to adjudicate
this matter as it may prejudice either the defendant nos. 1 to 4 or the
defendant nos. 5 and 6 at a subsequent stage.
The plaintiff in the cross-fire between the defendant nos. 1, 2, 3 and 4
and the defendant nos. 5 and 6 is saddled with unnecessary hardship without
much legal complication for which the plaintiff has been compelled to file the
suit. The plaintiff allowed the defendant nos. 5 and 6 at the request of the
defendant nos. 1 to 4 to occupy a portion of the plaintiff's property as a
licensee being the right conferred to defendant no. 1 by the plaintiff. There is
no privity of contract between the plaintiff and the defendant nos. 5 and 6. The
defendant nos. 5 and 6 never paid any money to the plaintiff on account of
licence fees. The documents disclosed in the affidavit in opposition by the
defendant nos. 5 and 6 also demonstrate that they are paying the defendant
no. 1 and not the plaintiff. The plaintiff did not assure in any manner that the
defendant no.1 would sell the property in the developed premises to the
defendant nos. 5 and 6 as the plaintiff is not a party to the agreement between
the defendant nos. 1 to 4 and the defendant nos. 5 and 6.
Assuming without admitting the defendant nos. 5 and 6 are entitled to
enforce the clause for sale contained in the Memorandum of Agreement dated
15th November, 2017, the same cannot be enforced against the plaintiff. The
plaintiff's presence is also not required in a suit or proceedings that may be
instituted by the defendant nos. 5 and 6 for such purpose as either a necessary
or a proper party.
Although, the plaintiff has prayed for a decree of eviction in the suit but
not in this application but considering the present state of affairs, and in view
of the admission made by the defendant nos. 5 and 6 in their affidavit in
opposition and the defendant nos. 1 to 4 through their advocate as recorded
hereinabove, I find the case to be appropriate to mould the reliefs and direct
the defendant nos. 1 to 4 to make over khas possession of the portion agreed to
be given to the defendant nos. 5 and 6 in the developed premises as per clause-
4(a) under the heading "possession handover after construction" by 20 th April,
2026. A decree for eviction can be passed on admission as held in the
judgments reported in 2010 (4) SCC 753 (Karam Kapahi & Others v. Lal
Chand Public Charitable Trust & Anr.) and 2023 (18) SCC 231 (Bhim Rao
Baswanth Rao Patil v. K. Madan Mohan Rao & Ors.). In the instant case,
the admission became apparent after filing of affidavit by the defendant nos. 5
and 6 and through submission made by the advocate for defendant nos. 1 to 4.
The defendant nos. 1 to 4 are directed to handover khas, vacant possession of
the portion agreed to be given to the defendant nos. 5 and 6 in the developed
premises particulars whereof are provided in the Memorandum of Agreement
dated 15th November, 2017 to the said defendant nos. 5 and 6 by 20 th April,
2026. The defendant nos. 5 and 6 shall accept such possession without
prejudice to their rights and contention and shall quit and vacate the portion
under their occupation in the suit property (owned by the plaintiff) on expiry of
20th April, 2026.
Let this application along with the suit appear in the list on 21 st April,
2026.
(ARINDAM MUKHERJEE, J.)
Sb/
