2009 Supreme(Cal) 913

IN THE HIGH COURT AT CALCUTTA
Pinaki Chandra Ghose & Sankar Prasad Mitra, JJ.
Express Publication (Madurai) Ltd.
Vs.
India Media Services Pvt. Ltd. & Ors.
APO No. 354 of 2008; G.A. No. 2817 of 2008; APOT No. 325 of 2005; C.S. No. 486 of 2002
Decided on : December 17, 2009

Headnote:

The appeal is directed against an order and judgment dated 30th July, 2008 passed by the Hon'ble First Court dismissing the application filed by the appellant under section 28 of the Specific Relief Act, 1963 (hereinafter referred to as the said 'Act'). In the said application, the appellant prayed for the following orders: (a) Agreements dated 7th September, 2000 and 12th June, 2002 being Schedules 'A' and 'B' to the decree dated 17th March, 2004 be rescinded and/or annulled and the petitioner be discharged from all its obligations thereunder; (b) Declaration that decree dated 17th March, 2004 passed in C.S. No.486 of 2002 (India Media Services Pvt. Ltd. vs. Newsprint Trading & Sales Corporation & Ors.) is inexecutable and not binding upon Express Publication (Madurai) Ltd. the petitioner/defendant No.3 herein; (c) Decree dated 17th March, 2004 be rescinded and set aside; (d) Directions in terms of prayers above; (e) Plaintiff be directed to pay to the petitioner costs of and incidentals to this application;

Fact of the Case:

The appellant purchased newsprint from respondent No.2 and 3. An agreement was entered into on 7th September, 2000 between the appellant and the respondent No.1, respondent No.2 and respondent No.3, whereby it was agreed between the parties that the respondent No.1 will pay the price of the newsprint, being Rs.21.10 crores, to the respondent Nos. 2 and 3 and the respondent Nos. 2 and 3 agreed to withdraw the criminal proceedings filed by them against the appellant and the respondent No.4 pending before the Additional Chief Metropolitan Magistrate, Mazagaon, Mumbai. It was further agreed that the appellant would sale its Hyderabad property for a consideration of Rs.21.10 crores to the respondent No.1 and on such consideration the respondent No.1 agreed to discharge the liability of the appellant by such payment. In the agreement it was further recorded that the possession of 3960 sq. metres of the property was under the control of the trespassers against whom the eviction suit was filed at Hyderabad by the appellant. Pursuant to and in terms of the said agreement dated 9th February, 2001 the Income Tax Clearance Certificate was obtained under section 230A from the authority on the basis of the draft conveyance attached thereto. On 12th June, 2002 second agreement was entered into between the appellant, respondent Nos.1, 2 & 3 whereby the debt due from the appellant was agreed to be assigned by respondent Nos. 2 & 3 in favour of respondent No. 1. Under the said agreement it was necessary for having permission from Reserve Bank of India for payment to the respondent Nos. 2 & 3, being the sellers of the said newsprint and further it was necessary to obtain sanction from State Bank of India for settlement of outstanding invoices by way of set-off. On 10th October, 2002 a suit was instituted by the respondent No.1 for a money decree for Rs.21.10 crores on the ground that the appellant was unable to convey the said property to respondent No.1. Therefore, the agreement had failed. However, no relief was claimed against the respondent Nos.2 & 3. On 10th March, 2004 the said suit was dismissed against the sellers being respondent Nos.2 & 3. On 12th March, 2004 settlement was arrived at between the appellant and the respondent No.1. On 17th March, 2004 at the suggestion of the parties a decree was passed directing the appellant to transfer its Hyderabad property to respondent No.1 and under the decree it was directed that :-

Finding of the Court:

(I) To make the sale deed ready on stamp paper at its own costs and complete all legal formalities within a period of 8 (eight) weeks from date of decree. (II) Express was directed to execute and register the said sale deed with the appropriate registration office at Hyderabad within a fortnight thereafter. (III) Respondent No.1 undertook to pay and bear the registration fees and expenses incidental to the registration.

Issues: Whether the appellant is entitled to get any relief by way of rescission of the contracts and the decree for specific performance made on the basis of those contracts.

Ratio Decidendi: The core question before the Trial Court was whether the appellant was entitled to get any relief by way of rescission of the contracts and the decree for specific performance made on the basis of those contracts. The question resolved itself before the Trial Court into two aspects, Firstly, there is no decision from the Trial Court on such facts. Secondly, the proposition of law laid down in the Tivoli Park decision (supra) has no application in the facts of the present case.

Final Decision: In these circumstances, we affirm the order so passed by the Hon'ble First Court and dismiss the appeal.