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2017 Supreme(Cal) 673
IN THE HIGH COURT OF CALCUTTA
JYOTIRMAY BHATTACHARYA, ASHA ARORA, JJ.
M/s. Vivek Sarda (Huf) & Ors. - Appellants
Versus
Amrapali Highrise Private Limited & Ors. - Respondents
F.M.A.T. No. 1127 of 2016 and CAN No. 10415 of 2016.
Decided on : 24-04-2017
For the Appellants :Mr. Jishnu Saha, Mr. Debnath Ghosh, Mr. Sounak Sengupta, Mr. Rahul Poddar and Mr. Siddhartha Shroff, Advocates.
For the Respondent:Mr. Suddhasatva Banerjee, Mr. Arnab Das, Mr. Budhaditya Mukherjee and Mr. Soumya Ray, Advocates, Mr. Anuj Singh, Ms. Sajukta Rao and Mr. Ishan Saha, Advocates.
The main legal point established is the requirement for an agreement to be sufficiently stamped and registered for enforceability, and the implications of section 53A of the Transfer of Property Act on the protection of possession under an agreement for sale.
Headnote:
Injunction - Specific Performance of Contract - Transfer of Property Act - [Section 53A of the Transfer of Property Act] - [Section 17 of the Registration Act] - [Section 27 of the Indian Stamp Act] - [Section 41 of the Specific Relief Act] - [Section 37 of the Indian Stamp Act] - [Section 17(1)(a) of the Registration Act] - [Section 17(1)(b) of the Registration Act] - [Section 17(2)(vi) of the Registration Act] - [Section 17(2)(vii) of the Registration Act] - [Section 17(2)(xi) of the Registration Act] - The court discussed the principles regarding grant of temporary injunction and ad interim injunction in the suit, the enforceability of the agreement for sale, the requirement of stamping and registration of the agreement, and the protection under section 53A of the Transfer of Property Act. The court emphasized the need for the agreement to be sufficiently stamped and registered, and the implications of section 53A of the Transfer of Property Act on the enforceability of the agreement.
Fact of the Case:
The plaintiffs sought ad interim injunction in a suit for specific performance of contract. The trial judge refused the injunction on the grounds of lack of urgency, absence of specific details in the agreement, and suspicion regarding the nature of the transaction. The defendant claimed that the agreement was a loan agreement, not a sale agreement, and threatened to sell the flats to other buyers.
Finding of the Court:
The court found that a triable issue was raised in the suit regarding the nature of the transaction and the validity of the agreement. It acknowledged the threat by the defendant to sell the flats to other buyers and the potential for multiplicity of proceedings. The court also noted inconsistencies in the agreement and the lack of stamping and registration, but emphasized the defendant's admission of receiving a substantial sum from the plaintiffs.
Issues: The issues included the nature of the transaction, validity of the agreement, urgency for injunction, and the enforceability of the agreement under section 53A of the Transfer of Property Act.
Ratio Decidendi: The court held that the agreement must be sufficiently stamped and registered for enforceability, and considered the implications of section 53A of the Transfer of Property Act on the protection of possession under an agreement for sale.
Final Decision: The court directed the continuation of the interim injunction, subject to the defendant depositing a specified amount in court, and instructed the trial judge to decide the fate of the deposit at the time of hearing the plaintiffs' application for temporary injunction.
Joytirmay Bhattacharya, J.
This first miscellaneous appeal is directed against an order dated 29th September, 2016 passed by the learned Civil Judge (Senior Division), 5th Court at Alipore, South 24-Parganas in Title Suit No. 215 of 2016 at the instance of the plaintiffs/appellants.
2. By the impugned order, the plaintiffs' prayer for ad interim injunction was refused by the learned Trial Judge. Such relief by way of ad interim injunction was prayed for by the plaintiffs in a suit for specific performance of contract.
3. Since by an advocate's letter dated 13th July, 2016, the agreement was terminated by the defendant/respondent No. 1 and the defendant/respondent No. 1 claimed that it is free to sell the flats in question to the actual buyers without any further reference to the plaintiffs, such relief by way of temporary injunction for restraining the defendants from transferring the flats in question during the pendency of the suit was claimed. Relief by way of ad interim injunction was also claimed by the plaintiffs so that the defendants cannot transfer and/or sell and/or create any third party interest in respect of the suit flats till the plaintiffs' application for temporary injunction is finally decided.
4. Learned Trial Judge rejected the plaintiffs' said prayer for ad interim injunction on the following three grounds :-
"1. Neither any whisper made in the plaint as well as injunction petition as to when the plaintiff/petitioner entered into an agreement with the defendant/opposite parties whereby they paid entire consideration money in respect of sell of 6 flats at premises No. 20, Diamond Harbour Road, Kolkata-700 038 nor any scrap of paper or document has been filed by the plaintiff/petitioner to show the existence of such agreement.
2. More curiously enough the agreement dated 24.05.2016 bears the LTI of Moloy Bose one of the developers of defendant No. 1 which is suspicious one either said Moloy Bose is an illiterate person who put his LTI accordingly or for any other reason he put his LTI in stead of signature. No clarification in this regard has been made either in the plaint or in the injunction petition.
3. The apprehension of transferring and/or alienating the suit flats to third parties does not seem to be reasonable to me for the reason no specific person/persons to whom the flats were proposed to be transferred and/or alienated have been disclosed and more so, no specific date/dates to which the defendant/opposite party proposed to alienate the flats have been mentioned.
Apart that I am not satisfied with the urgency in the matter. The presence of defendant/opposite parties are needed to dispose of the injunction petition. The prayer for ad interim injunction stands refused accordingly."
4.1 Let us now consider the legality of the impugned order in the facts of the instant case in the light of the settled principles regarding grant of temporary injunction and/or ad interim injunction in the suit.
5. Let us first of all consider as to whether any triable issue has been raised by the plaintiffs in the instant case.
6. On perusal of the pleadings made out by the plaintiffs in the plaint as well as in the injunction application, it appears that execution of the agreement was not disputed by the parties. Description of the flats agreed to be sold, consideration money to be paid for the said transaction and acceptance of the earnest money from the plaintiffs are all accepted by the defendant No. 1 as it appears from its advocate's letter dated 13th July, 2016 by which the defendant/respondent No. 1 cancelled the said agreement.
7. However, a dispute was sought to be raised in the said advocate's letter as to the exact nature of transaction which the parties had entered into. It is stated in the said advocate's letter that the said agreement, in fact, was not an agreement entered into between the parties for selling the suit flats by the defendant/respondent No. 1 to the plaintiffs. It is alleged that in fact the
