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2014 Supreme(Cal) 498
IN THE HIGH COURT AT CALCUTTA
Debangsu Basak, J.
Smt. Shakuntala Pandiya & Ors.
Vs.
Russel Estate Corporation & Ors.
C.S. No. 128 of 1982 G.A. No. 3772 of 2007
Decided on : August 14, 2014
Advocate Appeared:
For the Plaintiff s :Mr. Jishnu Saha, Sr. Advocate Mr. Arindam Mukherjee, Advocate Mr. Ashis Mukherjee, Advocate
For the Defendant No. 1 :Mr. P.K. Das, Sr. Advocate Ms. Nilakshi Dutta, Advocate
A suit for administration of the entire building and a suit filed in a representative character need not have express permission under Order I Rule 8 of the Code of Civil Procedure, 1908.
Headnote:
SPECIFIC PERFORMANCE - SUIT FOR - TRANSPOSITION OF PARTIES - REPRESENTATIVE SUIT - LIMITATION - ABATEMENT - READINESS AND WILLINGNESS TO PERFORM CONTRACT - RELIEF - BUILDING - COMPLETION - ORDER I RULE 8 OF THE CODE OF CIVIL PROCEDURE, 1908 - APPLICABILITY.
Fact of the Case:
Sakhir Chand Dhawan filed a suit for specific performance of the agreement for sale entered into by him with the Defendant No. 1 in respect of two apartments in premises No. 7/1, Russel Street, Kolkata- 700071. Seven persons claiming to be agreement holders in respect of different flats at the said premises applied for transposition and/or addition of party to the suit in the category of plaintiffs. Such application was allowed. Seven additional persons became plaintiffs in the suit filed by Sakhir Chand Dhawan. The transposed plaintiffs sought specific performance of the respective agreements against the Defendant Nos. 1 and 2.
Finding of the Court:
1. The suit was in a representative character for the benefit of all allottees of the flats of the building concerned and that permission to institute and continue with such suit was present. 2. The transposed plaintiffs were entitled to continue with the suit filed by Sakhir Chand Dhawan and were entitled to the reliefs as sought for by them within the scope of ambit of the suit. 3. The suit was not barred by the laws of limitation. 4. The question of abatement did not arise. 5. The transposed plaintiffs were ready and willing to discharge their obligations in terms of the respective agreements.
Issues: 1. Are the transposed plaintiffs entitled to continue with the suit filed by Sakhir Chand Dhawan? 2. Are the claims of the transposed plaintiffs barred by the laws of limitation? 3. Did the suit abate due to death of parties to the suit on their failure to substitute the deceased party? 4. Were and are the transposed plaintiffs ready and willing to perform the respective contracts? 5. Are the transposed plaintiffs entitled to any relief in the suit?
Ratio Decidendi: 1. Where the suit was treated as a suit for administration of the entire building and a suit filed in a representative character, permission under Order I Rule 8 of the Code of Civil Procedure, 1908 need not be express. 2. The orders of the Court in the suit and the conduct of the parties led one to come to the irresistible inference that the suit was in a representative character for the benefit of all allottees of the flats of the building concerned and that permission to institute and continue with such suit was present. 3. The transposed plaintiffs were entitled to continue with the suit filed by Sakhir Chand Dhawan and were entitled to the reliefs as sought for by them within the scope of ambit of the suit. 4. The transposed plaintiffs were parties to the suit on and from December 22, 1982 when notice of the suit was issued to all allottees including the transposed plaintiffs. The transposed plaintiffs were, therefore, parties to suit well within the period of limitation. 5. Since the suit was held to be one of a representative character, the question of abatement did not arise.
Final Decision: The three transposed plaintiffs are entitled to a decree for specific performance of their respective agreements entered into by them with the Defendant Nos. 1 and 2.
DEBANGSU BASAK, J.:-
One Sakhir Chand Dhawan filed the instant suit for specific performance of the agreement for sale entered into by him with the Defendant No. 1 in respect of two apartments in premises No. 7/1, Russel Street, Kolkata- 700071. Apparently Sakhir Chand Dhawan settled with the Defendant No. 1. Seven persons claiming to be agreement holders in respect of different flats at the said premises applied for transposition and/or addition of party to the suit in the category of plaintiffs, as the case of the individual party required such party to do. Such application was allowed. Seven additional persons became plaintiffs in the suit filed by Sakhir Chand Dhawan.
The transposed plaintiffs sought specific performance of the respective agreements against the Defendant Nos. 1 and 2. They claimed that the Defendant Nos. 1 and 2 did not make over possession of the respective flats to which they are entitled to.
The Defendant Nos. 1 and 2 opposed the prayers. They contended that, the scope of the suit filed by Sakhir Chand Dhawan did not permit any other agreement holder to have specific performance of their agreement. They also contended that, the claims of the transposed plaintiffs were barred by the laws of limitation.
When Sakhir Chand Dhawan filed the suit the building was incomplete. In fact, under the agreement between Sakhir Chand Dhawan and the Defendant No. 1 the building at the premises was required to be completed prior to June 30, 1981 and possession of his flats made over to him not later than June 30, 1981. When the suit was instituted by Sakhir Chand Dhawan, the building was not complete. From time to time diverse orders were passed in the suit. Many of such interim orders were appealed against. From some of the orders passed by the Appeal Court special leave petitions were also filed. During the pendency of the suit the building at the said premises was completed pursuant to the orders passed by the Court.
An application was taken out for replacing the personnel of the Receiver appointed in the suit on the ground that, the learned Receiver had expressed her view not to continue as a Receiver. The application and the suit were taken up for hearing together. At the time when such application was moved, I posted the application to be taken up along with the final hearing of the suit. As such the application and the suit were taken up for final hearing.
The suit came up of hearing at the final stage. Three persons representing three plaintiffs adduced evidence on behalf of the three plaintiffs in the suit. Various documents were marked as exhibits.
Mr. Jishnu Saha, learned Senior Advocate for the plaintiffs contended that, his clients were ready and willing to discharge their obligations under the respective agreements. They were entitled to specific performance of their respective agreements. Although leave under Order I Rule 8 of the Code of Civil Procedure, 1908 was not applied for and obtained, the suit for all practical purposes was considered to be a representative suit. The Court passed diverse orders on the basis of consideration that, the suit was a representative suit. The parties including the Defendant Nos. 1 and 2 took benefit of the orders passed from time to time by this Court. In fact, he pointed out that, the Defendant Nos. 1 and 2 applied for extension of time for completion of construction under the sanctioned plan issued by the Kolkata Municipal Corporation. Such permission was granted by this Court by the Order dated June 13, 1989. The Defendant Nos. 1 and 2 took benefit of such order. The Defendant Nos. 1 and 2 had subsequently constructed the building on the basis the extension of time granted by the Court including the Order dated June 13, 1989. The Defendant Nos. 1 and 2 themselves considered the instant suit to be a suit for administration of the entire building lying and situate at the premises No. 7/1, Russel Street, Kolkata- 700071. Having taken such advantage, the Defendant
