[Cites 3, Cited by 0]
Calcutta High Court
Dr. Narinder Kohli vs Jagnnath Marothia And Ors on 5 February, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
OD-3 2026:CHC-OS:44-DB
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/260/2025
DR. NARINDER KOHLI
-VERSUS-
JAGNNATH MAROTHIA AND ORS.
Present :
The Hon'ble Justice Debangsu Basak
-And-
The Hon'ble Justice Md. Shabbar Rashidi
For the Appellant : Mr. Malay Kr. Ghosh, Sr. Adv.
Ms. Suchismita Ghosh, Adv.
Mr. Vivek Basu, Adv.
Mr. Pramod Kr. Bagaria, Adv.
Ms. Himika Saraf, Adv.
For the Respondent : Mr. Rupak Ghosh, Adv.
Mr. Nikunj Berlia, Adv.
Mr. Varun Kothari, Adv.
Ms. Urvashi Jain, Adv.
HEARD ON : 05.02.2026
DELIVERED ON : 05.02.2026
DEBANGSU BASAK, J.:-
1. Affidavit of service filed in Court, is taken on record.
2. Appeal is at the behest of the defendant no.3 in a suit for specific
performance and damages.
2026:CHC-OS:44-DB
3. Four issues were framed in such suit. A fifth additional issue was
subsequently framed about the bar under Section 31 of the Foreign
Exchange Regulation Act, 1973.
4. The fifth issue was answered by the impugned judgment and order dated
July 22, 2025 by holding that the suit is not barred under Section 31 of
the Act of 1973.
5. Learned senior advocate appearing for the appellant submits that, of the
four issues initially framed and decided by the impugned judgment and
order, a portion of the second issue, initially framed would stand
affected. He submits, drawing the attention of the Court to the various
portions of the impugned judgment and order that, the finding recorded
would tantamount to res judicata, even at the interlocutory stage, if the
impugned judgment and order is allowed to stand in the manner and
form as it stands today. In particular, he draws the attention of the
Court to the second portion of the second issue initially framed which
relates to the Act of 1973 and the enforceability of the agreement in the
context of the Income Tax Act, 1961 and the Act of 1973.
6. Learned advocate appearing for the plaintiff submits that, the suit is
pending since 1990 and should be heard and decided expeditiously.
According to him, the decision rendered on the fifth issue does not affect
any of the issues which are presently pending trial. In any event, the
plaintiff is entitled to refund of the money that was advanced for the
purchase, if not anything else. He hastens to add, the plaintiff is not
giving up any of its claim in the suit.
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7. As noted above, in a suit for specific performance and alternative
damages, four issues were initially framed.
8. The four issues framed on December 14, 1992 are as follows:
i) Was the plaintiff ready and willing to perform the agreement dated 2nd
January, 1989 ?
ii) Is the said agreement encorceable due to non-compliance of the provisions
of the Income Tax Act, 1961 and the Foreign Exchange Regulation Act,
1973 as alleged in paragraphs 14(A) to 14(D) of the written statement ?
iii) Is the plaintiff entitled to any damage as alleged in paragraph 17 and 18
of the plaint ?
iv) To what relief, in any, is the plaintiff entitled ?
9. One additional issue was framed on January 4, 2023 which is as follows:
v) Is the suit barred by Section 31 of the Foreign Exchange Regulation Act,
1973 ?
10. The additional issue framed on January 4, 2023 was taken up for
consideration and decided by the impugned judgment and order. The
additional issue was decided as against the appellant herein and in
favour of the plaintiff.
11. There is some substance in the contention of the appellant before us
that, the second portion of the second issue and the additional issue
framed on January 4, 2023 may overlap to some extent. Therefore, the
appellant may face difficulty on the issue of res judicata.
12. The suit is yet to be finally decided. Four issues which were framed on
December 14, 1992 are yet to be finally pronounced upon by the learned
trial judge. In the impugned judgment and order dated July 22, 2025,
learned single Judge took trouble of limiting himself to the additional
2026:CHC-OS:44-DB
issue framed on January 4, 2023. Learned trial Judge noted that there
are other issues which were initially framed on December 14, 1992 and
such issues are required to be decided at the appropriate stage.
13. In such circumstances, it would be appropriate to clarify that, the
decision rendered on the additional issue framed on January 4, 2023, by
the impugned judgment and order, is limited to such issue. It is clarified
that, the decision rendered on the additional issue framed on January 4,
2023 will not prejudice any of the parties, in relation to the other four
issues framed on December 14, 1992. The issue of legality, validity,
sufficiency, enforceability and the effect of the agreement dated January
2, 1989 is kept open to be decided at the trial without being impeded in
any manner and form by the impugned judgment and order.
14. It is further clarified that, the impugned judgment and order relates to
bar under Section 31 of the Act of 1973. The other issue as to whether
the agreement dated January 2, 1989 is not non-compliant with any
other provision of the Act of 1979, are kept open to be decided in terms of
the issue no (ii) as framed on December 14, 1992.
15. APOT/260/2025 and connected application, if any, are disposed of
without any order as to costs.
(DEBANGSU BASAK, J.)
16. I agree.
(MD. SHABBAR RASHIDI, J.)
A/s.
