KABARI PVT LIMITED Vs. SHIVNATH SHROFF

JUDGEMENT

(1.) Leave granted. Heard learned counsel for the parties.

(2.) The appeals arising out of Special Leave Petitions (Civil) Nos. 6912 and 6914 which have been preferred against the order of the Division Bench of the Calcutta High Court passed on the Review Application for recalling the order dismissing Appeal No. 619 of 1992 arising out of Suit No. 531 of 1981 constituted in the ordinary original civil jurisdiction of Calcutta High Court. The appeals arising out of Special Leave Petitions (Civil) Nos. 6254 and 6913 of 1994 are directed against the order passed by the Division Bench of the Calcutta High Court on the Review Application for setting aside the order passed in Appeal No. 410 of 1992 arising out of an order refusing to grant extension of time to effect amendment of plaint in Suit No. 531 of 1981 and two appeals being Appeals Nos. 619 and 410 of 1982 arising out of Suit No. 531 of 1981 are to be noted as hereunder.

(3.) There was an agreement on September 21, 1978, for sale of Property No. 8A, Burdwan Road, Calcutta, for a consideration of Rs. 2 lacs between the plaintiff and the defendants. The agreement was signed in the Office of Solicitors of the defendants vendors, namely. M/s. Khaitan and Co. The plaintiff No. 1 was already in possession of the said property. Pursuant to such agreement, the plaintiffs had paid earnest money by cheque on August 28, 1978. On January 15, 1979, a further sum of Rupees 15,000/ was paid by the plaintiff No. 1 by cheque. The Draft Deed of Conveyance was duly approved by the Solicitors of the vendors. The vendors made an application on June 23, 1980 for permission sole in favour of the plaintiffs before the authorities under the Urban Land and Ceiling Act. On July 1, 1981, the Solicitors of the vendors, namely, M/s. Khaitan and Co. informed the Solicitors of the plaintiffs that the permission to sale had been refused by the authorities under the Urban Land and Ceiling Act. The vendors, however, transferred the said premises No. 8A, Burdwan Road, in favour of M/s. Kabari Pvt. Ltd. after obtaining permission from the Urban Land and Ceiling authority. The plaintiffs namely, Shivanth Sharoff filed the suit for specific performance of the agreement in the ordinary original civil jurisdiction of the Calcutta High Court being Suit No. 531 of 1981. In the said suit, an application for interim injunction restraining the defendants, namely, the vendors from dealing with or disposing of the said premises was made and an ad interim order was passed on such application for interim induction in favour of the plaintiff. In July 20, 1981, the interlocutory application appeared as new motion when the defendant (vendors) appeared and submitted before the Court that the said premises No. 8A, Burdwan Road, had already been transferred to a third party, namely, M/s Kabari Pvt. Ltd. It was also contended by the defendants that the agreement of sale dated September 21, 1978 in favour of the plaintiffs ceased to exist due to refusal to sell the said property by the authorities under the Urban Land and Ceiling Act. The defendants (vendors) also stated that by four separate deeds of conveyance all dated July 8, 1981 the said premises had been conveyed in favour of the said M/s. Kabari Pvt. Ltd. On March 8, 1981, the plaintiffs made an application in the said Suit No. 531 of 1981 for amendment of the plaint seeking to implead M/s. Kabari Pvt. Ltd. and also to effect other amendments in the body and prayer of the plaint. On June 1, 1992, M/s. Kabari Pvt. Ltd. affirmed and affidavit and filed the same in Court. On July 9, 1982, the Court after hearing the parties including M/s. Kabari Pvt. Ltd. allowed the application for amendment of plaint and the added respondent, namely, the said M/s. Kabari Pvt. Ltd. was restrained from alienating or encumbering the disputed premises. On July 14, 1982 fresh writ of summons was directed to be issued for service on the added respondent, namely, M/s. Kabari Pvt. Ltd. It is the case of the plaintiff that the plaintiffs by their letter requested their Solicitors M/s. T. Banerjee and Co. to comply with the orders passed by the Court for affecting service upon the added respondent. It is the further case of the plaintiff that on July 28, 1982, the plaintiffs also requested M/s. T. Banerjee and Co. to carry out the amendment and to serve the writ of summons. It may be stated here that after purchasing the suit property M/s. Kabari Pvt. Ltd. filed a suit for eviction of the plaintiffs from the suit premises before the learned Subordinate Judge. Alipore, By an order dated September 22, 1982, the said suit was transferred to the High Court for disposal and the same is pending before the High Court.