Indira Banerjee

1. THIS application filed by the defendant, is inter alia for revocation of the leave granted under Clause 12 of the Letters Patent, 1865 to institute the suit being C.S.No.241 of 2006 in this Court and for, dismissal of the said suit on the ground of lack of territorial jurisdiction and also on the ground of the suit being barred by Order II Rule 2 of the Code of Civil Procedure, 1908.

2. THE defendant is a member of Arabindo Housing Co-operative Society Ltd. and holds a flat at the ground floor of Premises No.2, Iron Side Road, Kolkata -700 019, outside the jurisdiction of this Court.

3. ACCORDING to the plaintiff, an agreement was executed 6n 16th December, 2002, whereby the defendant agreed to transfer the said flat to the plaintiff, along with 10 shares held by him in the said Arabindo Housing Co-operative Society Ltd. for a consideration of Rs.1.65 crores.

4. THE said agreement, inter alia, contained the following terms and conditions:

"2. THE said price will be paid by the Transferee to the Transferor as follow, that is to say a sum of Rs.2,50,000/- will be paid on the execution of this agreement, as earnest money and the balance will be paid against transfer of the said shares and delivery of possession of the said Flat by the Transferor to the Transferee. 4. THE said price will be paid by the Transferee to the Transferor within 15 days after required permission to transfer the shares and the rights of occupation and possession of the fiat, garage and Driver's quarter shall be granted by the Committee of the Society and delivery of vacant possession of the said flat by the Transferor to the Transferee.

5. THE Transferor shall obtain the consent permission/no objection of the Managing Committee of the said Society to the transfer of the fiat, garage and Driver's quarter and also the 10 shares held by the transferor in the said Society to the Transferee, before completion of the transfer. THE Transferor shall execute a deed of conveyance in favour of the Transferee to complete her title but at the cost of the Transferee. 7. On obtaining such consent of the said Managing Committee of the Society, the Transferor shall deliver vacant possession of the said fiat, garage and Driver's quarter to the Transferee against payment of the balance amount of Rs.162.50 Lacs (Rupees One Crore Sixty two Lacs and Fifty Thousand only) by the Transferee to the Transferor and shall also transfer the said shares and execute share transfer form for the said 10 shares bearing Nos.0023 and 0040 to 0048 held in the Society and represented by Share Certificate No.23 and 26 dated 26.12.1967 and 4.3.1976. 9. On the delivery of vacant possession of the said flat, garage and Driver's quarter and transfer of shares and conveyance being granted, the Transferee will be the absolute owner thereof with all rights of occupation thereto as member of the said Society and thereafter the Transferor will have no right, title and interest therein. 12. THE Transferor has represented to the Transferee that (i) as Member of the said Society and holding the said shares, he is the absolute owner of the said flat, garage and, Driver's quarter and no other person has any interest therein, (ii) that there is no encumbrance on the said flat, garage and Driver's quarter (iii) that he has been in exclusive and peaceful possession and occupation of the said flat, garage and Driver's quarter, since it was acquired by him, (iv) that when the Transferor acquired the said flat, garage and Driver's quarter, he was satisfied that the title to the said flat was clear and marketable and is even now clear and marketable, (v) that on taking possession of the said flat, garage and Driver's quarter, the Transferee will be entitled to occupy the same without any claim or interruption from the Transferor or anybody claiming under him, (vi) that he will indemnify and keep indemnified the Transferee against any claim made for any period prior to the completion of sale