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2009 Supreme(Cal) 754
IN THE HIGH COURT AT CALCUTTA
BHASKAR BHATTACHYA & PRASENJIT MANDAL, JJ.
GTZ (India Private Limited)
Vs.
Power Electronic Engineers & Ors.
F.M.A. No. 453 of 2008 with C.A.N. No. 9511 of 2008
Decided on: September 23, 2009
Advocate Appeared:
Saktinath Mukherjee, Saptansu Basu, Amit Chatterjee, Siddhartha Banerjee For the appellant
Bidyut Kumar Banerjee, Shila Sarkar for the respondents.
A decree for specific performance of sale of land which is subject to the permission of Government or other authority is well maintainable and while granting a decree the Court has the jurisdiction to order the vendor to apply to the authority within a specified period and if the sanction is forthcoming, to convey the same to the purchaser within a certain time.
Headnote:
SPECIFIC PERFORMANCE - INJUNCTION - WEST BENGAL GOVERNMENT LAND (REGULATION OF TRANSFER) ACT, 1993 - STAMP ACT - CIVIL PROCEDURE CODE, ORDER 39, RULES 1 AND 2 - SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT - AGREEMENT FOR SALE OF INDUSTRIAL PLOT SUBJECT TO APPROVAL OF URBAN DEVELOPMENT DEPARTMENT - INSUFFICIENTLY STAMPED PAPER - JURISDICTION OF CIVIL COURT - TEMPORARY INJUNCTION - BALANCE OF CONVENIENCE.
Fact of the Case:
Plaintiff filed a suit for specific performance of contract against the defendants for the sale of an industrial plot. The defendants had taken a sum of Rs. 5,00,000/- as earnest money and advance out of the total consideration of Rs. 54,00,000/-. The agreement was subject to the approval of the Urban Development Department, Government of West Bengal, as per notifications Nos. 1721 and 1722 dated 6th May, 2005. The plaintiff filed an application for temporary injunction restraining the defendants from transferring or alienating or changing the nature and character of the suit property or encumbering the suit property in any way till the disposal of the application for injunction. The Trial Court dismissed the application for injunction on the ground that the agreement was entered into on an insufficiently stamped paper of Rs. 10/- and that the suit was prima facie not maintainable.
Finding of the Court:
The Court held that the Civil Court's jurisdiction was not excluded in respect of the disputes which were required to be decided under the West Bengal Government Land (Regulation of Transfer) Act, 1993, as the dispute in the present case was not such a dispute which was required to be decided by the authorities mentioned in the Act. The Court further held that the learned Trial Judge erred in law in holding that simply because the agreement was executed on the insufficiently stamped paper the Court should reject the prayer of injunction and that the plaintiff had proved a strong prima facie case to have an order of temporary injunction restraining the defendants from making any construction over the suit property.
Issues: 1. Whether the suit for specific performance was prima facie barred in a Civil Court in view of the provisions contained in the West Bengal Government Land (Regulation of Transfer) Act, 1993? 2. Whether the learned Trial Judge was justified in refusing to grant temporary injunction simply because the agreement between the parties was written on insufficiently stamped paper? 3. Whether the plaintiff had proved a strong prima facie case to have an order of temporary injunction restraining the defendants from making any construction over the suit property?
Ratio Decidendi: 1. The Civil Court's jurisdiction has been excluded in respect of the disputes which are required to be decided under the West Bengal Government Land (Regulation of Transfer) Act, 1993, as pointed out in section 14 of the Act. However, the dispute as to specific performance of contract between a lessee and a third party subject to the permission of the lessor is not such a dispute which is required to be decided by the authorities mentioned in the Act. 2. Failure to stamp a document properly does not affect the validity of the transaction embodied therein but merely renders the document inadmissible in evidence. However, the Court before which such document is produced has the right to regularize such defect on realization of the appropriate stamp-duty and the penalty prescribed in the Act. 3. The plaintiff has made out a strong prima facie case to go for trial and it has already expressed its readiness and willingness by giving a bank guarantee to the tune of a sum of Rs.1 crore pursuant to an order of a Division Bench of this Court as a condition of grant of temporary injunction during the pendency of this appeal.
Final Decision: The Court allowed the appeal and set aside the order of the Trial Court dismissing the application for injunction. The Court granted a temporary injunction restraining the defendants from making any construction over the suit property on the same terms and condition imposed by the Division Bench of the Court earlier.
Bhaskar Bhattacharya, J.
1. This first miscellaneous appeal is at the instance of a plaintiff in a suit for specific performance of contract and is directed against Order No. 10 dated 28th April, 2007, passed by the learned Civil Judge, Senior Division, Second Court, Barasat in Title Suit No.2 of 2007 thereby dismissing an application under Order 39 Rules 1 and 2 of Code of Civil Procedure filed by the plaintiff.
2. Being dissatisfied, the plaintiff has come up with the present first miscellaneous appeal.
3. The appellant before us filed in the Trial Court a suit being Title Suit No.2 of 2007 for specific performance of contract against the respondents. In that suit, the Urban Development Department, Government of West Bengal, was made proforma defendant. The case made out by the plaintiff may be summed up thus:
a) The defendant Nos. 1 and 2, as owner of the property described in the schedule of the plaint, entered into an agreement for sale on 30th August, 2005 with the plaintiff which is an industrial plot measuring 5.47918 cottahs for a price of Rs. 54,00,000/- and took a sum of Rs. 5,00,000/- as earnest money and advance out of total consideration of Rs. 54,00,000/-.
b) The defendant Nos. 1 and 2 agreed to transfer the right, title and interest to the plaintiff subject to approval of D.D. Department, Government of West Bengal, as per notification Nos. 1721 and 1722 dated 6th May, 2005. It was further agreed that transaction would be completed within one month after the issue of letter of permission by the U.D. Department, Government of West Bengal.
c) The defendant Nos. 1 and 2 by virtue of a lease agreement dated 30th April, 1988 between the Governor of West Bengal and the defendant Nos. 1 and 2 acquired the said property as a lessee for 999 years for the purpose of setting up an industry for manufacturing rectifier based equipment. On 17th January, 1989 possession of the property was delivered to the defendant Nos. 1 and 2 and from that date, they were in possession.
d) On 14th October, 2004 on behalf of the Government of West Bengal a notice was issued asking why the plot of land should not be resumed for violating clause 296 of the lease agreement.
e) The defendant Nos. 1 and 2, on 14th December, 2004, gave a reply to the said officer and on getting the reply, the Deputy Secretary of the concerned department on 3rd January, 2005 again requested the defendant Nos. 1 and 2 to explain within 30 days as to what steps they had taken for construction of the building on the suit property. On getting the said letter, the defendant Nos. 1 and 2, by their letter dated 28th January, 2005, explained the circumstances of delay for construction and requested the Government to condone their lapses. Subsequently, the two notifications being Nos. 1721 and 1722 dated 6th May. 2005 were issued permitting transfer under certain circumstances.
f) The defendant Nos. 1 and 2 by their letter dated 5th September, 2005 requested the Principal Secretary, Government of West Bengal, U.D. Department for permission to transfer the leasehold right, title and Interest of suit property and also for change of trade.
g) Subsequently, by letter dated 9th September, 2005, the Deputy Secretary of the concerned department issued letter to the defendant Nos. 1 and 2 for construction and necessary action of re-entering into possession of the plot in the event of failure to comply with the direction contained therein. Subsequently, however, the said Deputy Secretary by a letter dated 25th October, 2005 informed the defendant Nos. 1 and 2 that the Government in principle had agreed to transfer the leasehold right of the property to the plaintiff and requested the defendants to furnish information about the transfer.
h) On 6th December, 2005 as per request of the defendant Nos. 1 and 2, the plaintiff wrote a letter to the concerned officer of the Government of West Bengal on the subject of permission for the transfer of the leasehold right in reply to the letter dat
