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IN THE HIGH COURT OF CALCUTTA
SOUMEN SEN, J.
Kanti Devi Bhutoria & Ors. – Appellants
Vs.
Srila Dutta & Anr. – Respondents
C.S. No.451 of 1989 with C.S. 348 of 1991
Decided On : 16-10-2015
Suit No. 451/1989 (recovery of possession) and C.S. No. 348/1991 (specific performance of an oral agreement) were taken up together and disposed of by a common judgment and order. The learned Counsels for the parties consented to the hearing of both the suits together since there was no disagreement amongst the parties that the decree in one suit would non-suit the plaintiff in the other suit. In the first suit, the original plaintiff (now represented by the legal heirs) sought recovery of possession of the 3rd floor flat at premises no. 11, Hungerford Street, Kolkata, from the original defendant no. 1 and his associates who, according to the plaintiffs, were engaged as contractors to construct 3 additional floors on the said premises but wrongfully and forcefully occupied the said flat following disputes over execution of the work. In the second suit, the original defendant no. 1 sought specific performance of an oral agreement to sell the third floor flat. The defendants in the first suit had filed a written statement in 1991, almost after a lapse of two years, wherein, while admitting that there was an oral agreement between the parties by which they were engaged as contractors/builders to construct 3 additional floors over the pre-existing two storeyed building at the said premises, it was on terms materially different from those pleaded by the plaintiff. In particular, it was pleaded that as a term of the said agreement, the defendant no. 1 would be entitled to retain the 3rd floor, once constructed, measuring about 7000 sq.ft. along with two garages and one servants’ quarter on the ground floor at a total cost of Rs. 10.50 lacs. In their version of the oral agreement, allegedly made in January, 1986, the rates per sq. ft. at which the said defendants would be paid for such work of construction, were also different from those pleaded by the plaintiff in his plaint. The court held that the plaintiff was entitled to a decree in terms of prayer (a) and (b). In the event the defendants make over possession of the schedule property to the plaintiff within six weeks from date the plaintiff shall not be entitled to mesne profits. In default Mr. Sabyasachi Chowdhury, Advocate, is appointed as Commissioner to compute mesne profits from the date of filing of the suit till delivery of actual physical possession. There shall be a decree for a sum of Rs. 11.25 lakhs in favour of the plaintiffs in C.S. No. 348 of 1991. The said sum shall carry interest at the rate of 16% per annum from April, 1988 till payment.
Fact of the Case:
The plaintiff filed a suit for recovery of possession of the 3rd floor flat at premises no. 11, Hungerford Street, Kolkata, from the original defendant no. 1 and his associates who, according to the plaintiffs, were engaged as contractors to construct 3 additional floors on the said premises but wrongfully and forcefully occupied the said flat following disputes over execution of the work. In the second suit, the original defendant no. 1 sought specific performance of an oral agreement to sell the third floor flat.
Finding of the Court:
The court held that the plaintiff was entitled to a decree in terms of prayer (a) and (b). In the event the defendants make over possession of the schedule property to the plaintiff within six weeks from date the plaintiff shall not be entitled to mesne profits. In default Mr. Sabyasachi Chowdhury, Advocate, is appointed as Commissioner to compute mesne profits from the date of filing of the suit till delivery of actual physical possession. There shall be a decree for a sum of Rs. 11.25 lakhs in favour of the plaintiffs in C.S. No. 348 of 1991. The said sum shall carry interest at the rate of 16% per annum from April, 1988 till payment.
Issues: 1. Was there any agreement between the plaintiff and the defendant No.2 as pleaded in Paragraph 7 of the plaint? 2. If so, did the defendant commit any breach of the said agreement? 3. Is the plaintiff entitled to a declaration that he is the owner of the third floor and the two garages, open land and covered space on the ground floor of the said premises? 4. Is the plaintiff entitled to recovery of possession of those areas? 5. Is the plaintiff entitled to damages? 6. To what other relief or reliefs is the plaintiff entitled? 1. Is the plaintiff entitled to specific performance of the agreement mentioned in Paragraph 7 of the plaint in respect of 7000 square feet on the third floor and two garages and servant’s quarter on the ground floor of premises No.11, Hungerford Street, Calcutta? 2. Is the plaintiff, in addition to specific performance, entitled to damages for Rs.9,00,000/- or for any other sum as pleaded in paragraph 21 of the plaint? 3. Is the claim of the plaintiff barred by the laws of limitation? 4. To what relief or reliefs the plaintiff is entitled to?
Ratio Decidendi: The court held that the plaintiff was entitled to a decree in terms of prayer (a) and (b). In the event the defendants make over possession of the schedule property to the plaintiff within six weeks from date the plaintiff shall not be entitled to mesne profits. In default Mr. Sabyasachi Chowdhury, Advocate, is appointed as Commissioner to compute mesne profits from the date of filing of the suit till delivery of actual physical possession. There shall be a decree for a sum of Rs. 11.25 lakhs in favour of the plaintiffs in C.S. No. 348 of 1991. The said sum shall carry interest at the rate of 16% per annum from April, 1988 till payment.
Final Decision: The court held that the plaintiff was entitled to a decree in terms of prayer (a) and (b). In the event the defendants make over possession of the schedule property to the plaintiff within six weeks from date the plaintiff shall not be entitled to mesne profits. In default Mr. Sabyasachi Chowdhury, Advocate, is appointed as Commissioner to compute mesne profits from the date of filing of the suit till delivery of actual physical possession. There shall be a decree for a sum of Rs. 11.25 lakhs in favour of the plaintiffs in C.S. No. 348 of 1991. The said sum shall carry interest at the rate of 16% per annum from April, 1988 till payment.
Soumen Sen, J.
The suit filed by the original plaintiff for recovery of possession and the suit filed by the original defendant for specific performance of an oral agreement are taken up together and disposed of by this common judgment and order.
The learned Counsels for the parties have consented of the hearing of both the suits together since there is no disagreement amongst the parties that the decree in one suit would non-suit the plaintiff in the other suit.
These two suits (namely, Suit No.451/1989 and C.S. No.348/1991) are taken up analogously for consideration in view of the fact that in the event Smt. Kanta Devi Bhutoria & Ors. are able to establish their claim in C.S. No.348 of 1991 for specific performance of an oral agreement to sell third floor flat, the plaintiffs, namely, Smt. Gopa Sinha & Ors. in Suit No.451 of 1989 would not be entitled to recovery of possession in respect of the self-same flat which according to the said plaintiffs (Smt. Kanta Devi Bhutoria & Ors.) are in wrongful and illegal occupation.
For convenience and brevity Suit No.451 of 1989 is referred to as the first suit and C.S.348 of 1991 is referred to as second suit.
The first suit was filed by the original plaintiff for recovery of the 3rd floor flat at Premises No.11, Hungerford Street, Kolkata, from the original defendant no.1 and his associates who according to the plaintiffs were engaged as contractors to construct 3 additional floors on the said premises in terms of an oral agreement between the parties in December 1985 but wrongfully and forcefully occupied the said flat following disputes over execution of the work.
In course of construction, it is alleged that there were some discussions between the parties for sale of the 3rd floor flat on completion of construction but negotiation did not mature into any agreement. The defendants said in defence that they occupied the said flat in terms of an oral agreement on terms different from those referred to in the plaint of the first suit.
One Sukdeb Sinha, the original plaintiff, was owner of a two storeyed building at 11, Hungerford Street, Kolkata. On or about November 25, 1983, Kolkata Municipal Corporation sanctioned plan for three additional floors of which 2nd and 3rd floors were meant for commercial purposes and 4th floor was meant for residential use.
In December 1985, Arun Kumar Bhutoria, the original defendant No.1, approached the plaintiff representing himself as a renowned builder with a proposal to undertake the work of construction of the proposed building. He also suggested that he would after the revised sanction of plan would change the user of the 2nd and 3rd floors from commercial purpose to residential purpose, which he suggested was more profitable. The plaintiff relying upon the said representation and believing it to be true, entered into an oral agreement in January 1986 with the defendant no.1, permitting him to construct the said building on condition that he would be reimbursed from the sale proceeds of 2nd and 3rd floors when construction would be completed; as regards 4th floor, it was agreed that the plaintiff would pay the actual costs from his own resources. It was also agreed that construction would commence from February, 1986 and would be completed by August 23, 1986. The time schedule for various phases of construction were set out in a Memorandum dated July 4, 1986.
The said defendant commenced the work of construction soon after the said verbal agreement but by July 1986 stopped the work midway without completing the same for no apparent reason.
Following further negotiations, the defendant resumed work in November, 1987 with a promise to complete soon as recorded in the Memorandum dated July 4, 1986. However, apart from structure i.e. column, beam, roof, no further progress was made. The said defendant stopped work once again and left the
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