Page No.# 1/ vs M/S Sai Construction
2021 Latest Caselaw 3299 Gua

                                                                    Page No.# 1/10

GAHC010149322021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : CRP(IO)/94/2021

            SWAPNA ACHARJEE AND ANR
            W/O. LT. TARA PRASAD ACHARJEE, R/O. H.NO.58, BORTHAKUR MILL
            ROAD, ULUBARI, DIST. KAMRUP (M), ASSAM.

            2: SIDDHARTHA ACHARJEE
             S/O. LT. TARA PRASAD ACHARJEE
             R/O. H.NO.58
             BORTHAKUR MILL ROAD
             ULUBARI
             DIST. KAMRUP (M)
            ASSAM

            VERSUS

            M/S SAI CONSTRUCTION
            BEING REP. BY THE PROPRIETOR SRI GAUTAM BASU, S/O. LT. SUNIL
            KUMAR BASU, R/O. BORTHAKUR MILL ROAD, H.NO.71, NEAR MATRI
            MANDIR, ULUBARI, GUWAHATI-781007, ASSAM.



Advocate for the Petitioner   : MR. S P CHOUDHURY

Advocate for the Respondent : MR J C GAUR




             Linked Case : I.A.(Civil)/1640/2021

            SWAPNA ACHARJEE AND ANR
            W/O. LT. TARA PRASAD ACHARJEE
            R/O. H.NO.58
                                                                                  Page No.# 2/10

         BORTHAKUR MILL ROAD
         ULUBARI
         DIST. KAMRUP (M)
         ASSAM.

         2: SIDDHARTHA ACHARJEE
         S/O. LT. TARA PRASAD ACHARJEE
          R/O. H.NO.58
          BORTHAKUR MILL ROAD
          ULUBARI
          DIST. KAMRUP (M)
         ASSAM.
         VERSUS

         M/S SAI CONSTRUCTION
         BEING REP. BY THE PROPRIETOR SRI GAUTAM BASU
         S/O. LT. SUNIL KUMAR BASU
         R/O. BORTHAKUR MILL ROAD
         H.NO.71
         NEAR MATRI MANDIR
         ULUBARI
         GUWAHATI-781007
         ASSAM.


         ------------
         Advocate for : MR. S P CHOUDHURY
         Advocate for : MR J C GAUR appearing for M/S SAI CONSTRUCTION



                                  BEFORE
                   HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

06-12-2021 Heard Mr. S.P. Choudhury, the learned counsel appearing for the petitioners and Mr. J.C. Gaur, the learned counsel appearing on behalf of the respondent.

This application under Article 227 of the Constitution of India has been filed challenging the order dated 13.09.2021 passed in Title Suit No. 218/2020 whereby the said suit was stayed till the disposal of Title Suit No. 202/2021.

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The brief facts of the instant case is that the petitioners and respondent had entered into an Agreement to Develop & Sell dated 27.11.2015 vide the registered Deed No. 13997 on 01.12.2015. On the very date, a General Power of Attorney was executed and registered by the petitioners herein in favour of the respondents. Thereafter, the constructions were carried out as per the arrangement agreed upon by and between the parties.

Subsequent thereto, there were certain disputes for which the petitioners herein executed a deed of Revocation of the Registered General Power of Attorney and the said deed was registered on 12.07.2021 as Deed No. 2395/2021.

Consequently, the respondent herein as plaintiff instituted a Title Suit before the Court of the Civil Judge No. 1, Kamrup (M) at Guwahati which was registered as Title Suit No. 202/2021. In the said suit, the respondent herein sought for the following reliefs which for the sake of convenience are quoted here in below:-

"1. a decree for declaration of the plaintiff's rights, title and interest to the effect that agreement executed between the plaintiff and defendants for development and sale which had been registered as Deed No. 13997 on 01.12.2015 and the relevant General Power of Attorney (irrevocable) executed by defendants in favour of plaintiff which had been registered as Deed No. 4674 dated 01.12.2015 in the office of the Sr. Sub Registrar, Guwahati are still subsisting and valid;

2. a decree for declaration of the plaintiff's rights, title and interest to the effect that the plaintiff is entitle to complete the construction of RCC building and to deal with his share of building as per stipulations made in agreement to develop & sell executed by defendants and plaintiff which had been registered as Deed No. 13997 on 01.12.2015 and the relevant General Power of Attorney (irrevocable) executed by defendants in favour of plaintiff which had been registered as Deed No. 4674 dated 01.12.2015 in the office of the Sr. Sub Registrar, Guwahati;

3. a decree for declaration of the plaintiffs rights, title and Page No.# 4/10

interest to the effect that the pleader's notice dated 06.07.2021 given by Sri Sabyasachi Paul Choudhury, advocate of defendants as to revocation or cancellation of general power of attorney given in favour of plaintiff is baseless, illegal, inoperative and not binding on plaintiff;

4. a decree for declaration of the plaintiffs rights, title and interest to the effect that the deed of revocation of registered power of attorney executed by defendants and registered as deed No. 2395 of 2021 on 12.07.2021 at the office of Sr. Sub Registrar, Guwahati revoking the general power of attorney executed by defendants in favour of plaintiff is without authority of law, inoperative, illegal and void abinitio.

5. a permanent injunction may kindly be granted in favour of plaintiff, restraining the defendants, their relatives, men, servants, agents, attorneys or any other person claiming under them from entering into the scheduled land to disturb the construction activities carried on by plaintiff in completion of construction of building thereon in any manner and staying the operation of the deed of revocation of registered power of attorney executed and registered by defendants as Deed No. 2395 of 2021 on 12.07.2021 at the office of Sr. Sub Registrar, Guwahati;

6. An ad-interim injunction be granted;

7. Costs of the suit be decreed and

8. Any other relief or reliefs to which the plaintiff is entitled under law and equity may also be decreed."

It has been brought to my notice that the petitioners herein were the defendants in the said suit and have filed their written statement.

In the meanwhile, the petitioners had also filed another suit against the respondents herein for declaration of their right, title and interest over the Schedule land; for declaration that the registered Deed of Agreement for development of the Schedule land vide Deed No. 13997 dated 01.12.2015 is non operative and not binding upon the plaintiffs and for issuance of a precept to the Sub-Registrar Office, Kamrup for cancellation and impounding the said Registrar Deed of Agreement and for permanent injunction. The said suit was Page No.# 5/10

registered and numbered as T.S. No. 218/2020. The reliefs so sought for in the said suit, being relevant are quoted herein below:-

"1. For declaring the plaintiffs right, title and interest over the entire Scheduled land'

2. For declaring that the plaintiffs are entitled to retain the suit Sheduled land on declaration of their right, title and interest;

3. For declaring that the registered Deed of agreement for development of the Scheduled land vide Deed No. 13997 dated 01.12.2015 being non operative and not binding upon the plaintiffs;

4. For permanent injunction restraining the defendants or their men, agent etc. from entering in to the vacant suit Schedule land and from disturbing the plaintiffs possessing the suit Schedule land in view of revocation of registered power of attorney vide Deed No. 2395 dated 12.07.2021.

5. For issuance of precept of to the Sub-Registrar office, Kamrup(M) at Guwahati for cancellation and impounding of the registered Deed of Agreement being Deed No. 13997 dated 01.12.2015;

6. For the cost of the suit may be decreed."

From a perusal of both the plaints, it transpires that the petitioners have entered into an agreement with the respondent for construction of a Multi Stored Building and for that purpose have executed a Registered Deed of agreement for development of the schedule land bearing Deed No. 13997 dated-01.12.2015. Along with the said Registered Deed of Agreement for Development, a General Power of Attorney was also executed and registered on the very same date. Thereby, the petitioner had empowered the respondent to carry out constructions and do the needful as is required under the Registered Deed of agreement for development.

Subsequent thereto, disputes arose between the parties for which the General Power of Attorney dated 01.12.2015 was revoked by the Registered Deed of Revocation bearing Deed No. 2395 dated 12.07.2021.

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In view of the said disputes which arose and the revocation of the General Power of Attorney, the respondents filed the Title Suit No. 202/2021. Thereupon the petitioners, who had already filed their written statement in Title Suit No.202/2021, also filed a separate suit for declaration that the Registered Deed of Agreement for development of land is inoperative and not binding upon the plaintiffs; for issuance of a precept; for cancellation; for declaration of their right, title and interest in respect to the Schedule land and for permanent injunction.

From the facts narrated in the plaints in both the suits and a conjoint reading thereof, shows that both the suits are intrinsically connected in other words in Title Suit No. 202/2021, the respondents herein have made a claim in respect to the said Registered Deed of agreement to be subsisting and operative whereas, in Title Suit or 218/2021, the petitioners herein as plaintiffs have sought for declaration that the said Registered Deed of agreement is inoperative and not binding upon the plaintiffs.

Now coming back to the facts of the instant case, that after filing of the suit by the petitioners i.e. Title Suit No.218/2021, the respondent herein filed an application under Section 10 of the Code of Civil Procedure for stay of Title Suit No. 218/2021 pending disposal of Title Suit No. 202/2021.The Trial Court vide order dated 13.09.2021 allowed the said application by staying the Title Suit No. 218/2021 pending disposal of Title Suit No. 202/2021 and it is against the said order that this proceedings have been instituted.

I have heard the learned counsel for the parties at length and I have also perused the plaints along with the materials on record. It is already observed herein above, both the suits are intrinsically connected while Title Suit No. 202/2021 can be said to be the claim by the respondents, Title Suit No. 218/2021 would be the counter claim of the petitioners and the subject matter of both the suits are one and the same.

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However, it may also be relevant herein to mention that delay in disposal of Title Suit No. 218/2021 or for that matter staying Title Suit No. 218/2021 pending disposal of Title Suit No. 202/2021 would affect the rights of the plaintiff in Title Suit No. 218/2021 in as much as if the suit being T.S. No. 202/2021 is dismissed, the petitioner herein would have to take further steps to get the reliefs as claimed in T.S. No. 218/2021.

In this regard, it would be relevant to take note of the judgment of the Hon'ble Supreme Court in the case of Chitivalasa Jute Mills vs. JaypeeRewa Cementreported in (2004) 3SCC 85 and more particularly, to paragraph nos. 10,11 & 12 which is quoted herein below:-

"10. Willard India rightly raised a plea under Section 10 of the CPC and it ought to have been allowed. However, the Court at Rewa erroneously proceeded on an assumption that there was no identity or parties. The error could have been corrected in revision by the High Court but unfortunately, the revision was barred by time and the High Court was not inclined to condone the delay in preferring the revision. Merely because the plea under Section 10 of the CPC has been rejected, this Court is not denuded of the exercise of its power to transfer the suit if the ends of justice call for the exercise of such power.

11. The transfer petition is allowed. The suit at Rewa is directed to be transferred for hearing and decision in accordance with law to Visakhapatnam before the same Court which is seized of the hearing in the suit filed by Willard India, i.e., the Court of First Additional Subordinate Judge at Visakhapatnam.

12. The two suits ought not to be tried separately. Once the suit at Rewa has reached the Court at Visakhapatnam, the two suits shall be consolidated for the purpose of trial and decision. The Trial Court may frame consolidated issues. The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 of the CPC. Unless specifically prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar Page No.# 8/10

documentary and oral evidence twice over in the two suits at two different trials. The evidence having been recorded, common arguments need be addressed followed by one common judgment. However, as the suits are two, the Court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits. This is how the Trial Court at Visakhapatnam shall proceed consequent upon this order of transfer of suit from Rewa to the Court at Visakhapatnam."

Again in another case, i.e. the State Bank of IndiavsRanjan Chemicals Limited and Anr. reported in (2007) 1SCC 97 , the Supreme Court had explained the concept of joint trial and in what manner, it is required to be dealt with and in that regard, paragraph no. 10, 11,12 is quoted herein below:-

"10. A joint trial can be ordered by the court if it appears to it that some common question of law or fact arises in both proceedings or that the right to relief claimed in them are in respect of or arise out of the same transaction or series of transactions or that for some other reason it is desirable to make an order for joint trial. Where the plaintiff in one action is the same person as the defendant in another action, if one action can be ordered to stand as a counter claim in the consolidated action, a joint trial can be ordered. An order for joint trial is considered to be useful in that, it will save the expenses of two attendants by counsel and witnesses and the trial judge will be enable to try the two actions at the same time an take common evidence in respect of both the claims. If therefore, 'the claim made by the Company can be tried as a counterclaim by the Debt Recovery Tribunal, the Court can order joint trial on the basis of the above consideration. It does not appear to be necessary that all the questions or issues that arise should be common to both actions before a joint trial can be ordered. It will be sufficient if some of the issues are common and some of the evidence to be let in is also common' especially when the two actions arise out of the same transaction or series of transactions.

11. A joint trial is ordered when a court finds that the ordering of such a trial, would avoid separate overlapping evidence being taken in the causes put in suit and it will be more convenient to try them together in the interests of the parties and in the interests of an effective trial of the causes. This power inheres in the Court as an inherent power. It is not possible to accept the argument that every time the court transfers a suit to another court or orders a joint trial, it has to have the consent of the parties. A Court has the power in an appropriate cased to transfer a suit for being tried with another if the circumstances warranted and justified Page No.# 9/10

it. In the light of our conclusion that the claim of the Company in the suit could be considered to be a claim for set off and a counterclaim within the meaning of Section 19 of the Act, the only question is whether in the interests of justice, convenience of parties and avoidance of multiplicity of proceedings, the suit should be transferred to the Debt Recovery Tribunals for being tried jointly with the application filed by the Bank as a cross suit. Obviously, the proceedings before the Debt Recovery Tribunal could not be transferred to the Civil Court since that is a proceeding before a Tribunal specially constituted by the Act and the same has to be tried only in the manner provided by that Act and by the Tribunal created by that Act. Therefore, the only other alternative would be to transfer the suit to the Tribunal in case that is found warranted or justified.

12. It is clear that in both proceedings what are involved are, the nature of the loan transaction and the cash credit facility extended, the relationship that has spring out of the transactions, the right and obligations arising out of them, there breach if any, who is responsible for the breach and its extent. The same basic evidence will have to be taken in both the proceedings. The accounts of the bank will have to be scrutinized not only to ascertain the sum, if any, due to the bank but also to ascertain as to when an in what manner the case credit facility was permitted to be availed of by the Company. Of course, evidence will have to be taken on whether there was any violation of conditions or laches on the part of the bank in fulfilling its obligations causing damage to the Company. At least a part of the evidence will be common. Duplication of evidence could be avoided if the two actions are tried together. If a decree is granted to the bank on a basis of its accounts, and the damages, if any, is decreed in favour of the Company, a set off could be directed and an ultimate order or decree passed in favour of the bank or the Company. In such a situation, we are of the view that this is a fit case where the two actions should be ordered to be tried together."

In view of the law laid down by the Hon'ble Supreme Court in the aforementioned judgments and taking into consideration, that if both the suits can be analogously tried and it would result in less burden upon the parties to the suit, I am of the opinion that it would be in the interest of justice that both the suits may be directed to be analogously tried.

In that view of the matter, I, in exercise of my powers under Section 151 of the Code of Civil Procedure, direct that the Title Suit No. 218 /2021 pending in the Court of the Civil Judge No. 2 Kamrup (M) Guwahati be transferred to the Court of the Civil Judge No. 1, Kamrup (M) wherein Title Suit No. 202/2021 is Page No.# 10/10

pending.

In that regard, the Office of the District Judge, Kamrup (M) at Guwahati shall take appropriate steps within a period of 20 days from the date of this order to ensure that the said suit i.e. the records of Title Suit No 218/2021, be remitted to the Court of Civil Judge No. 1 at Kamrup (M) at Guwahati. Thereupon the Court of the Civil Judge No. 1, Kamrup(M) at Guwahati shall try both the suits analogously in the manner as stipulated in the paragraphs quoted herein above of the judgment of the Supreme Court.

Both the parties are directed to appear before the Court of the Civil Judge No.1, Kamrup(M) at Guwahati on 10.01.2021 and produce a copy of this order which shall enable the Court below to take appropriate steps in accordance with law.

With the above observations, the instant petition stands disposed of. The impugned order dated 13.09.2021 is interfered with.

In view of the disposal of the instant petition, the petitioner herein is at liberty to file appropriate applications before the Trial Court in terms with the prayer made in the Interlocutory Application.

JUDGE

Comparing Assistant