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2017 Supreme(Cal) 905
IN THE HIGH COURT OF CALCUTTA
Jyotirmay Bhattacharya, Shivakant Prasad, JJ.
Humayan Properties Ltd. - Appellant
Vs.
Arun Roy and Ors. - Respondents
FMAT No. 428 of 2017, CAN 3726 of 2017, F.M.A. 355 of 2017, CAN 515, 3548 & 8791 of 2017
Decided On : 08-09-2017
Advocate Appeared:
For the Appellant : Sabyasachi Bhattacharya, David Mantosh, Lopita Banerjee, Amritalal Chatterjee, Juthi Banerjee
For the Respondents: Puspendu Bikash Sahoo, Syed Nazmul Hossain, Rahul Karmakar, Prasanta Bishal, Sudipta Roy, Syeda Fouzana Hossain
The failure to establish a prima facie case and title can render a suit not maintainable under the Specific Relief Act, and may impact the appointment of a receiver.
Headnote:
Receiver - Restaurant Business - Kolkata Municipal Corporation Act 1980, Section 421 - Specific Relief Act, Section 34
Fact of the Case:
The plaintiff filed a suit for declaration and injunction against the defendant No. 1 and defendant No. 2, alleging that the defendant No. 1 was running a restaurant business in violation of their agreement. The plaintiff sought temporary injunction and appointment of a receiver over the business.
Finding of the Court:
The court found that the plaintiff failed to establish his prima facie case and title over the business, and the suit was not maintainable under Section 34 of the Specific Relief Act. The appointment of a receiver was deemed unjustified.
Issues: The issues revolved around the possession and management of the restaurant business, violation of the agreement, and the plaintiff's entitlement to the business.
Ratio Decidendi: The court held that the plaintiff's failure to prove his prima facie case and title rendered the appointment of a receiver unjustified, and the suit was not maintainable under Section 34 of the Specific Relief Act.
Final Decision: The impugned order was set aside, and the appeals were allowed. The interlocutory applications were disposed of accordingly.
Jyotirmay Bhattacharya, J.
1. Two First Miscellaneous Appeals were filed challenging the common order being No. 31 dated 10th January 2017 passed by the learned 6th Bench City Civil Court at Calcutta in Title Suit No. 335 of 2015. One of such appeals was filed by the defendant No. 1. The said appeal was registered as FMA No. 355 of 2017. The other appeal was filed by Humayan Properties Ltd. with the leave of the Court as a party adversely affected by the order impugned. The said appeal was registered as FMAT 428 of 2017. Since the common order is under challenge in both these First Miscellaneous Appeals, both the appeals were heard analogously and we propose to dispose of both the aforesaid appeals by common judgment and/or order.
2. By the impugned order an advocate, viz., M.S. Khusboo Bhimani was appointed as a receiver over a restaurant business run under the name and style of Food Plaza at the suit premises as the learned Trial Judge was of the view, that appointment of receiver over the said business is necessary for proper management and administration of the running business at the suit premises. The learned receiver was directed to ensure that status quo with regard to the possession of the suit property is maintained. The learned receiver was also directed to ensure that accounts are prepared properly. The learned receiver was also directed to submit accounts in Court every three months. First of such report was directed to be submitted on 15th February, 2017. The receiver was directed to prepare a list of employees with a rider that no other employee can be inducted without proper information to the receiver.
3. The legality and/or propriety of the said order passed by the learned Trial Judge is impugned in both the aforesaid appeals.
4. Let us now consider the merit of these appeals in the facts of the instant case.
5. The plaintiff filed a suit for declaration. In the said suit he has also prayed for injunction both in the mandatory as well as prohibitory form, So, that his business which was being carried on at the suit premises under the name and style of Food Plaza was not disturbed by the defendant No. 1 and the terms of the agreement which was entered into between the defendant No. 1 and the plaintiff on 1st June, 2010 are performed by the defendant No. 1. The Kolkata Municipal Corporation was impleaded as defendant No. 2 in the said suit, as according to the plaintiff, the defendant No. 1 in collusion with the defendant No. 2 obtained a trade licence in the name of one Ratan Mantose being the son of the defendant No. 1 for running the restaurant business under the name and style of Food Plaza from the suit premises. Accordingly, mandatory injunction was also prayed for against the defendant No. 2 for restraining the said defendant from giving effect to the trade licence, if issued, in the meantime in the name of Ratan Mantose in respect of restaurant business under the name of Food Plaza which the plaintiff alone and no one else is entitled to get trade licence in respect of the said business in the suit premises. Permanent injunction was also prayed for restraining the defendant No. 1, their men, agents and servants from transferring, assessing, parting with and/or dealing with the business of the plaintiff Food Plaza to any third person in any manner. A decree for permanent injunction has also been prayed for restraining the defendant No. 1, their men, agents, servants from interfering with the smooth running of the business Food Plaza by the plaintiff in flat No. 20A Lindsay Street, Kolkata-700087 in any manner.
6. After filing the said suit, the plaintiff filed an application for temporary injunction for restraining the defendant No. 1, their men, agents and servants and associates from transferring, assessing, parting with and/or dealing with the business of the plaintiff Food Plaza to any third person in any manner. Temporary injunction was also prayed for restraining the defendant No. 1 from cancel
