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High Court Of Calcutta
Dipak Kumar Sen
DR.ASHIS RANJAN DAS - Appellant
Versus
RAJENDRA NATH MULLICK - Respondent
Suit 558 Of 1981
Decided On : 04/20/1982
{'KEYWORD': 'INTERLOCUTORY INJUNCTION - SPECIFIC PERFORMANCE - RIGHT TO APPLY FOR INTERLOCUTORY RELIEF - CAUSE OF ACTION', 'SUBJECT': 'SPECIFIC PERFORMANCE OF CONTRACT - INTERLOCUTORY RELIEF - JURISDICTION OF COURT', 'ACT SECTION LIST': []}
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement for a lease of a portion of premises, mandatory injunction to execute and register the lease, and in the alternative, a decree for damages. The defendant denied the existence of a concluded contract and claimed that the plaintiff was not entitled to specific performance. The plaintiff was in possession of the plot and had constructed fencing and a gate, and was utilizing it for parking cars upon payment of fees.
Finding of the Court:
The court held that the defendant was entitled to apply for interlocutory relief in the plaintiff's suit, as the defendant's claim to relief arose out of the plaintiff's cause of action and was incidental to it. The court found that the plaintiff, being in possession of the property, was enjoying the fruits of the property by collecting parking fees, while the defendant was totally deprived of the use of the land.
Issues: Whether the defendant was entitled to apply for interlocutory relief in the plaintiff's suit.
Ratio Decidendi: The court relied on the principles laid down in Suganda Sai v. Sulu Bai and Carter v. Fey, holding that a defendant is entitled to apply for an interlocutory injunction against the plaintiff without filing a counter-claim or issuing a writ in a cross-action, where the relief sought by the defendant arises out of the plaintiff's cause of action or is incidental to it.
Final Decision: The court allowed the defendant's application and granted an injunction restraining the plaintiff from making any further construction in the plot till the disposal of the suit. The court also held that the defendant would be at liberty to apply for further interim orders in the event he made a counter-claim in the suit.
( 1 ) DR. Ashis Ranjan Das, the plaintiff, instituted this suit on the 24th July, 1981 against Rajendra Nath Mullick the sole defendant, claiming, inter alia, (a) a decree for specific performance of an agreement between the parties for a lease of a portion of premises No. 2 Auckland Place, Calcutta, to be executed by the defendant in favour of the plaintiff, (b) mandatory injunction directing the defendant to execute and register in favour of the plaintiff a lease in the form set out in Annexure B to the plaint or in such other form as may bs prescribed, (c) in default, the Registrar, Original Side of ihis Court be directed to execute and register such lease in favour of the plaintiff, (d) in the alternative, a decree for Rupees 29,000/- and a further decree for Rupees 1,00,000/- or (e) alternatively, an enquiry into the compensation and a decree for the sum as may be ascertained on such enquiry and other reliefs.
( 2 ) THE plaintiff's cause of action is materially as follows:--The defendant is the owner of the said premises No. 2 Auckland Fiance, Calcutta, which includes a plot of land measuring about 4 cottahs 5 chattacks and 7 sq. ft.
( 3 ) THE plaintiff and the defendant arrived at an agreement on or about the 30th Aug. , 1978 for grant of a building lease of the said plot of land by the defendant to the plaintiff for a period of 50 years from execution with option to the plaintiff of renewal thereof for further 20 years at a rent of Rs. 900/-per month payable according to the English calendar for the first two years and thereafter at the rate of Rs. 1,500/- per month for the next ten years with provision for further increase thereafter as also a premium of Rs. 50,000/- to be paid by the plaintiff to the defendant at or before the execution of the lease.
( 4 ) IT was also agreed that the plaintiff would construct a four storeyed building on the said plot and would make over possession of a fiat in the second floor thereof fos the use and occupation of the defendant. It is alltged that the said agreement was entered into between the parties orally and is implied from their course of dealings thereafter.
( 5 ) ON the same day, that is the 30th Aug. , 1978, subsequent to the said agreement the plaintiff it is alleged paid Rs. 29,000/-in part payment rf the said premium to the defendant who accepted the same.
( 6 ) AT the material time there was a motor garage in the said plot owned by one Gonzales. The plaintiff alleges that the defendant persuaded Gcnzales to vacate the said plot whereafter the possession thereof was delivered to the plaintiff on or about the 8th Sept. , 1978.
( 7 ) ON or about the 29th May 1981, a draft lease was sent to the Advocate of the defendant for approval and return, but the defendant thereafter avoided the execution of the lease on diverse pretexts,
( 8 ) THE case of the defendant is that there has been no concluded contract between the parties and that the plaintiff is not entitled to specific performance.
( 9 ) THE defendant alleges that in or about 1978 the parties had negotiations for grant of a building lease by the defendant to the plaintiff of the said plot on inter alia the following terms and conditions:-- (a) The plaintiff could construct a 4 storeyed building on the said plot within 4 years from the date of the contract and the entire second floor containing 2 self-contained flats would be given to the defendant; (b) The lease would be for 50 years certain with an option for renewal for a further period of 20 years; (c) The monthly rent to be agreed upon would be subject to an increase at the rate of 15% every 10th year for certain term and 20% afier every 10 years for an option period; (d) A premium would be paid by the plaintiff to the defendant.
( 10 ) A draft of the proposed terms and conditions of the lease was made over by the defendant to the plaintiff in June or July 1978.
( 11 ) IT was tentatively agreed that the premium payable by the plaintiff to
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