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2002 Supreme(Cal) 372
HIGH COURT OF CALCUTTA
Dilip Kumar Seth & Joytosh Banerjee, JJ.
Baisakhi Bhattacharjee
Vs.
Shayamal Bose & Ors.
Appeal from original order No. 1219 of 1997
Decided on : June 13, 2002
Probal Kumar Mukherjee for the petitioner;
Bhabani Prasad Mukherjee, Nibir Krishna Roy for the respondent.
Headnote:
INJUNCTION - BUILDING AGREEMENT - WEST BENGAL BUILDING (REGULATION OF PROMOTION OF CONSTRUCTION AND TRANSFER BY PROMOTERS) ACT, 1993 - SPECIFIC RELIEF ACT, 1963 - TRANSFER OF PROPERTY ACT, 1882 - CONSTRUCTION OF BUILDING - NEGATIVE COVENANT - READINESS AND WILLINGNESS - SECTION 53A OF TP ACT - SECTION 14 SUB-SECTION (3) CLAUSE (C) OF SR ACT - SECTION 16(C) SR ACT - SECTION 2 CLAUSE (G) OF 1993 ACT - SECTION 3 OF 1993 ACT - Prima facie case, finding of the court and final decision discussed.
Fact of the Case:
Plaintiff sought specific performance of an agreement dated 22nd May, 1995, entered into between the plaintiff and the defendants, for construction of a 3-storeyed building by the plaintiff on a piece of land belonging to the defendants. Plaintiff had obtained sanction of the plan from the Calcutta Municipal Corporation on 16th February, 1996. On 18th March, 1996, the plaintiff had applied for registration as Promoter under the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. On 10th April, 1996, the plaintiff undertook to file the registered agreement for grant of registration under section 3 of the said Act. Subsequently, on 2nd May, 1996, the plaintiff sought to withdraw her application for registration. Thereafter, on 9th September, 1996, the plaintiff sought to cancel her letter dated 2nd May, 1996 and revive the application dated 18th March, 1996 for registration as Promoter. The defendants had cancelled the agreement on 14th September, 1996, through a letter addressed by the defendants' lawyer on the allegation that the plaintiff had failed to perform its part of the contract and that they were ready and willing to perform their part. The plaintiff filed a suit being Title Suit No. 136 of 1996 on 3rd December, 1996, before the learned Trial Court, for specific performance of the unregistered agreement and for injunction. On 6th December, 1996, the plaintiff filed an application for temporary injunction restraining the defendants from making any construction. By an order dated 27th January, 1997, after hearing the objection raised by the defendants, the learned Trial Court had rejected the prayer for injunction. It is this order out of which the present appeal arises.
Finding of the Court:
1. The agreement is an agreement for development and not an agreement for sale. 2. The plaintiff has not been able to make out a prima facie case in her favour. 3. The plaintiff was not ready and willing to perform her part of the contract. 4. The balance of convenience and inconvenience is in favour of the defendants. 5. The appeal is dismissed and the interim order is vacated.
Issues: 1. Whether the agreement is an agreement for sale or an agreement for development? 2. Whether the plaintiff has been able to make out a prima facie case in her favour? 3. Whether the plaintiff was ready and willing to perform her part of the contract? 4. Whether the balance of convenience and inconvenience is in favour of the plaintiff or the defendants?
Ratio Decidendi: 1. An agreement for development is an agreement by which a person undertakes to construct a building on a piece of land belonging to another person, and to sell the constructed building to the other person. 2. An agreement for sale is an agreement by which one person agrees to sell a property to another person, and the other person agrees to buy the property. 3. In order to make out a prima facie case for injunction, the plaintiff must show that he has a good arguable case, that he will suffer irreparable injury if the injunction is not granted, and that the balance of convenience and inconvenience is in his favour. 4. Readiness and willingness to perform a contract means that the party is prepared and able to perform the contract according to its terms. 5. The balance of convenience and inconvenience is a factor that the court considers when deciding whether to grant an injunction. The court will consider the harm that will be caused to the plaintiff if the injunction is not granted, and the harm that will be caused to the defendant if the injunction is granted.
Final Decision: The appeal is dismissed and the interim order is vacated.
D. K. Seth, J.: This appeal arises out of an order refusing grant of injunction by an Order No.8 dt. 17th January, 1997 passed in Title Suit No. 135 of 1996 by the learned Assistant District Judge, 10th Court, Alipore.
1.2. The facts of the case, briefly put, are that the plaintiff had sought for specific performance of an agreement dated 22nd May, 1995, entered into between the plaintiff and the defendants, for construction of a 3-storeyed building by the plaintiff on a piece of land belonging to the defendants. Pursuant to the said agreement, the plaintiff obtained sanction of the plan from the Calcutta Municipal Corporation on 16th February, 1996. On 18th March, 1996, the plaintiff had applied for registration as Promoter under the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993, which came into force on 8th August, 1995. On 10th April, 1996, the plaintiff undertook to file the registered agreement for grant of registration under section 3 of the said Act. Subsequently, on 2nd May, 1996, the plaintiff sought to withdraw her application for registration. Thereafter, on 9th September, 1996, the plaintiff sought to cancel her letter dated 2nd May, 1996 and revive the application dated 18th March, 1996 for registration as Promoter. The defendants had cancelled the agreement on 14th September, 1996, through a letter addressed by the defendants' lawyer on the allegation that the plaintiff had failed to perform its part of the contract and that they were ready and willing to perform their part. The plaintiff filed a suit being Title Suit No. 136 of 1996 on 3rd December, 1996, before the learned Trial Court, for specific performance of the unregistered agreement and for injunction. On 6th December, 1996, the plaintiff filed an application for temporary injunction restraining the defendants from making any construction. By an order dated 27th January, 1997, after hearing the objection raised by the defendants, the learned Trial Court had rejected the prayer for injunction. It is this order out of which the present appeal arises.
Submission on behalf of the appellant:
2. The learned Counsel for the plaintiff/appellant submits that the agreement is a valid agreement between the parties. He had led us through different clauses of the said agreement and points out that it contains a negative covenant restraining the defendants from terminating and/or cancelling the agreement, apart from covenants permitting the plaintiff to make a construction in terms of the agreements. According to him, the agreement was entered into on a date prior to coming into force of the 1993 Act. However, the learned Counsel, in his usual fairness, did not contend that the 1993 Act has no manner of application in the present case. On the other hand, he points out that prior to entering into the agreement, it was not necessary to get herself registered as a Promoter, since the 1993 Act was then not in force. As soon it become effective, she had applied for registration. According to her, on a misconception created on her enquiry from the department of the authorized officer to the extent that the present case was outside the scope of the 1993 Act, she had purported to withdraw her application for registration. But as soon she realized that the 1993 Act is applicable, she had sought to cancel the letter by which the application for registration was sought to be withdrawn by her and sought to revive her application for registration viz. on 9th September, 1996. The Counsel points out that the purported cancellation of the agreement was attempted to be made by the defendants through their lawyer by a letter dated 14th September 1996. Therefore, at the point of time when the agreement was sought to be cancelled, the application for registration was pending. As such in terms of the covenant contained in the agreement, the agreement could not be cancelled when the plaintiff had already performed her part by obtainin
