IMPORTANT POINT
Right to institute suit to specifically enforce terms of settlement would not entail an injunction restraining Bank from taking steps as a secured creditor qua security.

Tapabrata Chakraborty, J.—The instant appeal has been preferred challenging an order dated 2nd November, 2016 passed by the learned Single Judge in C.S. No. 217 of 2013 by which the appellant’s interlocutory application being G.A. No.1884 of 2013 filed in connection with the suit was dismissed with costs and the vacating application being G.A.2352 of 2014 filed by the Punjab & Sind Bank (hereinafter referred to as the said bank) was disposed of.

2. Shorn of unnecessary details the facts are that the said bank being the respondent herein was a tenant in respect of premises no.8, Old Court House Street, Kolkata-700001 (hereinafter referred to as the said property) under M/s. Bharat Chamber of Commerce and seeking a declaration of such tenancy, the bank preferred a suit being C.S. No.422 of 1993. In the year 2003, M/s. Bharat Chamber of Commerce preferred an Ejectment Suit No.02 of 2003. During pendency of the same, the appellant purchased the said property by a deed dated 17th February, 2005 and thereafter entered into an agreement with the said bank with conditions to the effect that the said bank would vacate the said property and handover possession to enable the appellant to develop the said property and undertake reconstruction and that upon completion of such reconstruction, the said bank would be relocated. In part performance of the said agreement the parties executed a deed of lease on 11th February, 2011 and the said bank vacated the said property upon availing the shifting charges to the tune of Rs.5 lakhs from the appellant. In the midst thereof the appellant obtained a sanctioned building plan on 11th January, 2007 after paying a sanction fee amounting to Rs.1,46,53,633/-. For such reconstruction works the appellant took a loan from the said bank. Subsequent thereto, the said bank issued a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act) and in the said notice dated 13th June, 2012, the facilities availed by the appellant were stated to have been secured by three properties including the said property at Kolkata. Thereafter a possession notice pertaining to the said property was issued by the said bank on 19th January, 2013 and as such the appellant was constrained to prefer an application under Section 17 of SARFAESI Act. On 26th June, 2013 the appellant filed the suit being C.S. No.217 of 2013 praying for a decree for specific performance of the agreement and the lease deed dated 11th February, 2011. In connection with the said suit the appellant preferred an interlocutory application in which an interim order was passed on 15th July, 2013 to the effect that “let steps be taken for selling premises no.8, Old Court House Street, Kolkata but let not final orders of sale be passed till six weeks from date”. The said interim order was directed to continue until further order by an order dated 2nd December, 2013. The parties exchanged their affidavits in the said interlocutory application and the bank also filed an application for vacating the interim order being G.A. No.2352 of 2014. Upon contested hearing the interlocutory application preferred by the appellant was dismissed.

3. Mr. Mitra, learned senior counsel appearing for the appellant submits that under the terms of settlement arrived at between the parties and the lease deed dated 11th February, 2011, the bank agreed to allow the appellant to develop the said property and to repay the loan from the income that would be derived upon construction of a new building in the said property and upon acceptance of the terms of settlement, the bank, in fact, shifted from the said property and the appellant on its part obtained a sanctioned building plan to construct the new building so that it may relocate the bank in the said property and sell the remaining portion to repay the loan out of the said sale proceeds. Such bonafide inten