Atlantis Technology Pvt. Ltd. (A ... vs Directors) I) Rahul Barma- ...
2022 Latest Caselaw 761 Tri

                              1




              HIGH COURT OF TRIPURA
                    AGARTALA
                       RFA 01 of 2020

1.Atlantis Technology Pvt. Ltd. (A Company incorporated
and registered under Indian Companies Act 1956) having its
registered office at North Gate of Raj Bari, Dimsagar, P.S.-
West Agartala, P.O. - Agartala, District -West Tripura
(Represented by its Managing Director Shri Sajal Kumar Paul,
S/o Lt. Sailesh Chandra Paul of North Gate of Rajbari,
Dimsagar, P.S. - West Agartala, District - West Tripura).

2.Atlantis   Paper     Industries    Pvt.   Ltd.   (A   Company
incorporated and registered under Indian Companies Act
1956) having its registered office at North Gate of Raj Bari,
Dimsagar, P.S.- West Agartala, P.O.- Agartala, District West
Tripura (Represented by its Director Shri Sajal Kumar Paul,
S/O Lt. Sailesh Chandra Paul Of North Gate of Raj Bari,
Dimsagar, P.S. - West Agartala, District - West Tripura).
                                            -----Appellant(s)

                            Versus


TSCCF Shristi Infrastructure Development Ltd. (Tripura
State   Co-Operative    Consumer      Federation    and   Shristi
Infrastructure Development Ltd- A Company Incorporated
under Indian Comapnies Act 1956) having its registered
office at Registrar of Co-operative Societies, Government of
Tripura, North Gate, Palace Compound, P.S. - East Agartala,
P.O.- Agartala, District - West Tripura (Represented by its
                                    2




  Directors) i) Rahul Barma- Director, ii)Chandra Shekhar
  Samal - Director, iii) Sunil Bhowmik- Director, iv) Santanu
  Das- Addl Director.
                                                -----Respondent(s)

                              BEFORE

          HON'BLE MR.JUSTICE T.AMARNATH GOUD

        HON'BLE MR. JUSTICE S.G CHATTOPADHYAY

  For the Appellant(s)             : Mr. A. Sengupta, Adv.

  For the Respondent(s)            : Mr. S.M.Chakraborty, Sr.Adv.
                                     Mr. K.Datta, Adv.

  Date of hearing                  : 04.08.2022
  Date of Pronouncement            : 11.08.2022

  Whether fit for reporting        :   YES/NO

                            JUDGMENT

(Per T.Amarnath Goud), J

[1] Heard Mr. A. Sengupta, learned counsel

appearing for the appellant.

                 Heard     Mr.S.M.Chakraborty,          learned   Sr.

Counsel      appearing     along   with   Mr.    K.Datta,    learned

advocate for the respondents.


[2]              This is an appeal under section 96 of the CPC

from     the     judgment    and   decree       dated    01.10.2019

delivered in M.S. 20 of 2014 by the Civil Judge (Senior

Division), Court No.3, West Tripura, Agartala.

[3] By the said judgment, the Civil Judge (Senior

Division), hereinafter referred to as the trial Judge, has

partly decreed the suit of the appellant with costs holding

that the appellant is entitled to get compensation effective

from the scheduled date of the possession i.e. 30 th June,

2012 till the deemed date of possession of the units i.e.

25.09.2013 @ 2% per annum of the unit value.

[4] The appellant instituted the suit for recovery

of money to the extent of Rs.70,14,620/-. To be precise,

the reliefs can be described in the following manner:

(a) a decree directing the respondent to pay an amount of Rs.40,00,000/- (rupees forty lacs) as compensation to the appellants for loss of profit of business of the appellants due to non handing over of unit Nos.336 and 337 in Aitorma Agartala Sentrum building in due time, i.e. mid 2012;

(b) a decree directing the respondent to pay an amount of Rs.30,00,000/- (rupees thirty lac) as compensation to the appellants for not providing the "entrance" of the building from the Eastern side of the building, inadequate lifts and staircases, not providing ramp, for the physically challenged citizens, causing poor footfalls, inconvenience and business losses to the appellants;

(c) a decree directing the respondent to pay interest @12% per annum w.e.f. 01.07.2012 till handing over of the units No.336 &

337 at Aitorma Agartala Sentrum on Rs.12.36 lacs, which was realized by the respondent company from the appellants for providing the said units;

(d) a decree directing the respondent to pay interest @ 12% per annum w.e.f. 02.12.2013 to 01.05.2014 on Rs.70.50 lacs, 21.12.2013 to 01.05.2014 on Rs.23.50 lacs which was disbursed by NEDFI for delay in commencement of Notebook project due to non- execution of the Deed of Conveyance by the respondent company;

(e) a decree not to apply for change and/or change original building plan of Aitorma Agartala Sentrum deviating from the original plan, which was approved by the competent authority before construction of building;

(f) a decree directing the respondent to complete the plastering of walls (on the upper portion) and ceiling of said unit Nos.336 and 337 of Aitorma Agartala Sentrum building within shortest specified period;

(g) a decree directing the respondentto erect panels with 12 mm glass on the frontage of the units within shortest specified period;

(h) a decree directing the respondent to develop and make ready all infrastructural facilities like approach road, parking area, exit road, common area air-conditioning, lift, external painting and fascia etc. electricity connection in order to enable consumers access and comfort in the said Aitorma Agartala Sentrum;

(i) a decree directing respondent to immediately cover the front opening to both the units with framed glass panels with door;

(j) a decree directing the respondent to erect a "ramp" for the physically challenged customers for their entrance in the said mall;

(k) a decree directing the respondent to replace the partition glass panels by 12 mm thickness of glass instead of 8 mm;

(l) a decree directing the respondent to put proper signage on all the common areas of the Shopping Mall and allow the appellants to put their own signage on the outer fascia (eastern side) of the building;

(m) a decree directing the respondent to clear and free all the encumbrances and obstructions from the passage for entry into the Shopping Mall from the front side;

(n) a decree directing the respondent to form the Association or body to run the Shopping Mall immediately;

(o) a decree directing the respondent company to hand over possession of the said two units Nos.336 and 337 immediately to the appellants after completion of works so demanded earlier;

(p) a decree directing the respondent to execute the registered sale deed in favour of the appellants after providing all amenities demanded above;

(q) a decree directing the respondent to provide copies of all statutory licenses to the appellants for safety occupation of the said units for running the business;

(r) a decree to refund the rest excess payment realized by the respondent from the appellants amounting to Rs.14,620/- (rupees fourteen thousand six hundred twenty) only for providing said unit Nos.336 and 337 in Aitorma Agartala Sentrum;

(s) cost of the suit may kindly be awarded to the appellants against the defendants;

[5] The appellant under the capacity of a

purchaser and the respondent under the capacity of a

builder have entered into an agreement for purchase of

shops bearing Unit No.336 & 337 at the second floor in

the upcoming commercial complex of Aitorma Centrum

building at Agartala. In this regard the purchaser paid the

sale consideration for two shops and the said shops were

supposed to be handed over by June, 2012.

[6] The respondent could not complete the

construction in terms of the agreement and has not

handed over the premises and hence the petitioner herein

the appellant preferred suit before the court below and

the court below framed the following issues:

i) Whether the Appellant has got appropriate cause of action in this case?

ii) Whether the Appellant is entitled for decree of declaration that all the defendants are jointly or severally liable to him for the amount of Rs. 16,75,000/-?

iii) Whether the Appellant is entitled to a decree of recovery of the above amount from the defendants by way of attachment of their property etc?

iv) Whether the Appellant is entitled to get a decree of damage or compensation or mesne profits from the defendants?

v) Whether the Appellant is entitled to get an interest

until realization of the total amount due?

vi) Any other relief(s), if the Appellant is entitled to?

[7] After hearing both sides, the court below has

decreed the suit partly on 01.10.2019 as under:

"ORDER

In the result, the suit of the plaintiff is partly decreed on contest with costs.

The plaintiff-company is entitled to get compensation effective from the schedule dated of the possession which is mid part of 2012 i.e. 30th June, 2012, till the deemed date of possession of the units i.e. 25.09.2013 at the rate of two percent per annum of the unit value"

[8] Not being satisfied, the plaintiff preferred the

present appeal seeking prayer to admit the appeal, call for

records, issue notice upon the respondents and after

hearing the parties set aside the Judgment dated

01.10.2019 passed by the Learned Trial Court and pass a

decree as per prayer of the plaint of the plaintiff

appellants.

[9] During the course of argument, the learned

counsel of the appellant contended that the respondent

having received full sale consideration, has not handed

over the two shops (Unit No. 336 & 337) so far. In so far

as the third shop (Unit No.319) is concerned, part

payment has been received and later the agreement for

third shop (Unit No.319) has been cancelled and the

respondent has alienated the shop in favour of some third

parties and by deducting part of advance amount

received, the balance was returned and prayed to allow

the appeal.

[10] Counsel appearing for the respondent

submitted upon instructions through his client who is

present in court that two shops to which full sale

consideration has been received i.e shops No.336 & 337,

is concerned, the shops are made ready and immediately

in a day the possession can be handed over to the

appellant and in so far as the third shop (Unit No.319) is

concerned, in terms of the agreement, since the total sale

consideration was not made in terms of the agreement by

the plaintiff with that shop (Unit No.319), agreement was

cancelled and the same has been alienated to the third

parties and further the amounts which were received by

the respondent from the plaintiff were duly returned by

deducting part of the amount in terms of the agreement.

Further, for the delay caused in handing over the

possession of the two shops the respondent expressed

their consent for paying the interest in terms of the

agreement.

[11] Counsel for the appellant has agreed for

taking possession of the two shops immediately and also

for receiving interest in terms of the agreement for the

delay occurred in handing over the premises.

[12] In view of the above, in terms of clause 13 of

the agreement, the appellant is entitled for 2% per annum

interest. The respondent was to hand over the delivery of

the possession by June, 2012. By communication dated

10.12.2013 which was marked as Exbt.-O, informed the

appellant plaintiff that the infrastructure work would be

completed and the same would be handed over by mid

January, 2014. Thereafter, so far, there is no

communication from the respondent informing the plaintiff

appellant that the premise is ready for occupancy by

completing the infrastructure works.

[13] In view of the submissions made by

Mr.S.M.Chakraborty, senior counsel appearing for the

respondent that the premises is ready for occupancy and

the same will be handed over immediately in a day or

two, this court is inclined to pass orders in favour of the

appellant directing the respondent to deliver the

possession of shops (Unit No.336 & 337) to the appellant

plaintiff on or before 31st of August, 2022.

[14] Interest of 2% per annum shall be calculated

from June, 2012 till July, 2022 and the same shall be paid

by the respondent to the appellant plaintiff within 2

months.

[15] In so far as the Unit No.319 (Shop No.3) is

concerned, this court is not inclined to grant any relief to

the appellant to that extent.

[16] With the above observation, the appeal

stands allowed in part.

                      JUDGE                                      JUDGE




Saikat Sarma