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High Court Of Calcutta
D. K. SETH, JYOTESH BANERJEE
BHASKAR ADITYA - Appellant
Versus
MINATI MAJUMDAR - Respondent
F. M. A. T. 3995 Of 2001
Decided On : 10/10/2002
RECEIVER - APPOINTMENT - SUIT FOR PARTITION - DEVELOPER ENTERED INTO AN AGREEMENT FOR DEVELOPMENT WITH THE DEFENDANTS - DEFENDANTS CLAIMED TO BE EXCLUSIVE OWNERS - PLAINTIFFS FILED SUIT FOR PARTITION AND INJUNCTION - INTERIM ORDER OF MAINTAINING STATUS QUO PASSED - APPLICATION FOR VACATING INTERIM ORDER FILED - APPLICATION FOR APPOINTMENT OF RECEIVER FILED - APPLICATION FOR INTERVENTION FILED - APPLICATION FOR APPOINTMENT OF RECEIVER REJECTED - APPEAL FILED - HELD, THE DEVELOPER HAD ACQUIRED AN INTEREST IN THE PROPERTY AFTER THE DEVELOPMENT SCHEME WAS UNDERTAKEN. THE DEVELOPER, THOUGH A STRANGER, HAS ACQUIRED INTEREST IN THE PROPERTY AND DOES NOT REMAIN A STRANGER TO THE PROPERTY. THE DEVELOPMENT AGREEMENT IS A KIND OF ASSIGNMENT OF INTEREST IN THE PROPERTY SOMEWHAT SIMILAR TO AN AGREEMENT FOR SALE. THE INTENDING BUYERS HAVE ALSO ACQUIRED INTEREST IN THE PROPERTY. THE DEFENDANTS ARE ESTOPPED FROM RAISING ANY OBJECTION TO THE DEVELOPMENT. THE DISPUTE IS WITH REGARD TO THE ENTITLEMENT TO THE BENEFIT DERIVED FROM THE DEVELOPMENT. THE PARTIES ARE ESTOPPED FROM RAISING ANY OBJECTION TO THE DEVELOPMENT. THE PLAINTIFFS AND THE DEFENDANTS NO. 4 TO 12 CANNOT CLAIM ANY INTEREST IN THE PORTION COMPRISING OF 29 COTTAHS COVERED BY THE SAID THREE AGREEMENTS BETWEEN THE DEVELOPER AND THE DEFENDANTS NO. 1, 2 AND 3, SINCE THEY ARE NOT PARTIES TO IT. THE INTEREST OF THE PLAINTIFFS AND THE DEFENDANTS NO. 4 TO 12 CAN BE PROTECTED, FULFILLED AND SATISFIED FROM THE REMAINING PORTION OF THE LAND. THE DEVELOPER CANNOT BE PREVENTED FROM CONTINUING WITH THE DEVELOPMENT SCHEME IN RESPECT OF THE ENTIRE PROPERTY. SUCH DEVELOPMENT WILL ENURE TO THE BENEFIT OF THE PARTIES. THE COURT FEELS THAT IT IS JUST AND CONVENIENT THAT A RECEIVER SHOULD BE APPOINTED IN ORDER TO PROTECT THE INTEREST OF THE PARTIES TO THE PARTITION SUIT, PARTICULARLY, THE INTEREST OF THE PLAINTIFFS AND THE DEFENDANTS NO. 4 TO 12, WHO PRIMA FACIE HAVE INTEREST IN THE PROPERTY. THE DEVELOPER IS APPOINTED AS RECEIVER.
Fact of the Case:
The defendants No. 1, 2 and 3 representing themselves as the owners of the suit property had entered into an agreement for development with the defendant No. 13, on 9th November, 1994 and had executed a Power of Attorney. In the said agreement, the developer was empowered to apply for amalgamation of the two properties and obtain sanction of plan on the amalgamated property. Pursuant to the Power of Attorney granted, the defendant No. 13 (developer) succeeded in obtaining amalgamation of the two plots and had obtained sanction of the plan for construction on the amalgamated plot. Pursuant to such agreement, the developer had floated a scheme for development and invited intending buyers for purchase of flats according to the scheme of the development since specified in the brochure. Some of the blocks have already constructed. The members of the two groups of intervenors had entered into agreements for purchase of the respective developed flats. Some of them had already got possession of such flats. Some are yet to get possession. There are some buyers the construction in respect of whose flats have not yet started. Subsequently, three separate agreements, all dated 15th of April, 1998, were executed by and between the developer and the defendants No. 1, 2 and 3 comprising of an area of 29 cottahs of land out of the suit property specified in the respective agreements comprising of Block G, C and E as specified in the sanctioned plan.
Finding of the Court:
The developer, though a stranger, has acquired interest in the property and does not remain a stranger to the property. The development agreement is a kind of assignment of interest in the property somewhat similar to an agreement for sale. The intending buyers have also acquired interest in the property. The defendants are estopped from raising any objection to the development. The dispute is with regard to the entitlement to the benefit derived from the development. The parties are estopped from raising any objection to the development. The plaintiffs and the defendants No. 4 to 12 cannot claim any interest in the portion comprising of 29 cottahs covered by the said three agreements between the developer and the defendants No. 1, 2 and 3, since they are not parties to it. The interest of the plaintiffs and the defendants No. 4 to 12 can be protected, fulfilled and satisfied from the remaining portion of the land. The developer cannot be prevented from continuing with the development scheme in respect of the entire property. Such development will enure to the benefit of the parties. The court feels that it is just and convenient that a receiver should be appointed in order to protect the interest of the parties to the partition suit, particularly, the interest of the plaintiffs and the defendants No. 4 to 12, who prima facie have interest in the property.
Issues: None
Ratio Decidendi: In a suit for partition it is immaterial whether the application is made by the co-owners or by a stranger. If the question is brought before the Court, it is for the Court to consider whether it is just and convenient to appoint a receiver. The appointment of receiver is conceived for the purpose of management of a property and saving it from being wasted or dissipated, protecting the interest of the respective parties. If it is necessary for the purpose of protecting the interest of the respective parties, if there are materials before the Court to come to the conclusion that it is just and convenient, the Court has every right to appoint a receiver.
Final Decision: The appeal is allowed. The defendant No. 13, Sri Bhaskar Aditya, is hereby appointed receiver in respect of the suit property.
( 1 ) THIS Miscellaneous appeal arises out of an order No. 24 dated 11th October, 2001 passed by the learned Assistant District Judge, 2nd Court at Barasat, North 24-Parganas in Title Suit No. 66 of 2000, rejecting the application for appointment of receiver under Order 40 Rule 1 of the Code of Civil Procedure (CPC) on contest.
( 2 ) THIS suit has been filed by the plaintiffs (Respondents No. 1 to 5) for partition and injunction as against the defendants No. 1 to 12 (Respondents No. 6 to 17) alleged to be the co-sharers and the defendant No. 13 (Appellant), the developer. The developer had entered into an agreement for development in respect of the property with the defendants No. 1, 2 and 3 (Respondents No. 6, 7, 8 ). These defendants are claiming to be the exclusive owners of the suit property. In the suit on the prayer of the plaintiffs, the learned trial Court upon an application for injunction passed an order of maintaining status quo in respect of the nature and character and possession of the property. The defendant No. 13, appellant, and the defendants No. 1, 2 and 3 had filed application for vacating the interim order under Order 39 Rule 4 CPC. These applications are pending. At this stage, the defendant No. 13 filed an application under Order 40 Rule 1 CPC, for appointment of receiver. By an order No. 19 dated 14th August, 2001, the learned trial Court rejected the said application on the ground of subsistence of the interim order of status quo. Against the said order, an appeal being F. M. A. T. No. 2809 of 2001 was preferred. This Court by an order dated 7th September, 2001 disposed of the said appeal and directed re-hearing of the application under Order 40 Rule 1 CPC on merit. Thereafter, the matter was again heard out by the learned trial Court. By order No. 24 dated 11th October, 2001, the application for receiver was rejected. It is this order against which the present appeal has been filed. In the meantime, the defendant No. 13 had applied under section 9 of the Arbitration and Conciliation Act before this Court. In the said proceeding being A. P. No. 207 of 2000 (G. A. No. 2813 of 2000) some clarification was made with regard to the interpretation of the order of status quo permitting the defendant No. 13 to carry on the construction. This, however, was reversed on appeal. Thus, the order of status quo is still continuing. THE learned trial Court had rejected the application for appointment of receiver principally on the ground that the developer is not a co-sharer in the suit property and no relief has been sought for against him. As such stranger, the defendant No. 13 is not entitled to any relief in the suit for partition. His remedy is available in the specific performance of the contract. Appointment of receiver would complicate the issues. AN application for intervention was filed on behalf of a group of buyers, who had entered into an agreement for purchase with the developer and had already been given possession of the flats constructed on the suit property. However, no conveyance has been executed in their favour. This group of purchasers is represented by Mrs. Chameli Majumdar and Mr. Saktinath Mukherjee. This application for intervention has since been allowed by this Court by an order dated 16th September, 2002. Mr. Chandranath Mukherjee, appears on behalf of another group of buyers, who had also applied for intervention. He was allowed to make his submission at the time of hearing. This application for intervention is decided along with the appeal. IN connection with the appeal, an application for appointment of receiver has since been made. This application was appearing in the List. In connection with these applications, Mr. Saktinath Mukherjee sought to intervene, which was allowed. There was already an order by this Court passed on 6th February, 2002, for hearing of the appeal along with this application. By consent of the parties, the application for appointment of receiver
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