NISHKA PROPERTIES PVT LTD Vs. AKBAR ALI KHAN

JUDGEMENT

(1.) This is an appeal against the judgement and order dated January 5, 2010 passed by the learned Civil Judge (Senior Division), Seventh Court at Alipore, District : 24 Parganas (South), in Title Suit No. 994 of 2007. By the order impugned the learned judge, inter alia, allowed in part an application for injunction, filed under Order 39, rules 1 and 2 read with Section 151 of the Code of Civil Procedure, by the plaintiffs by directing both the parties to maintain status quo in respect of possession of the suit properties till the disposal of the said suit. The learned judge, however, found that the plaintiffs had failed to show, prima facie, that they had invested money in purchasing the suit properties and, therefore, the plaintiffs could not get any relief as prayed for. The learned judge was conscious that in order to get an order of injunction all the three ingredients had to be proved and the plaintiffs had failed to prove the first and the main ingredient. Still, the learned judge passed an order of injunction in the nature of maintenance of status quo by both the parties as the learned judge thought that the suit properties were to be preserved and protected till the disposal of the suit. The plaintiffs instituted this suit, inter alia, for declaration of title, injunction and recovery of money. The said suit has been registered as Title Suit No. 994 of 2007 in the said Court. The plaintiffs allege in the plaint that the plaintiff no. 1 is a member of the Indian Police Service. He is holding the post of the Deputy Inspector General of Police, Home Guards, West Bengal, with his headquarter at Kolkata. He hails from a village in the district of Ghazipore in the State of Utter Pradesh. His wife, also, comes of a respectable family. The local people of that area repose blind trust and faith in them. Many people from that area and other places sought their help for procuring of lands near new satellite township at Rajarhat. Between January 2004 and August 2004 those persons gave to the plaintiff no. 2 Rs.1,03,00,000/- (Rupees one crore three lakh) only for procuring lands near Rajarhat. The plaintiffs contacted the defendant no. 7, Abdur Rahaman Gazi, a land-broker operating in the said area, to purchase lands. The defendant no. 4, Mustak Hossain, is a family friend of the plaintiffs. He was on frequent visiting terms with plaintiffs. He acquired full knowledge of all the said transactions including the particulars of the defendant no. 7. The defendant no. 4 fraudulently got those lands purchased and registered in the names of his three companies by the money advanced in trust and good faith by the plaintiffs to the defendant no.

(2.) The defendant no. 7 received Rs.1,02,50,000/ (Rupees one crore two lakh fifty thousand) only between February 2004 and September 2004 from the plaintiffs. The defendant no. 7 was supposed to purchase the lands in the names of persons, who had given money to the plaintiffs, but the defendant no. 7, in conspiracy, collusion and connivance with the defendant no. 4 and others, procured the lands in the names of his three companies. Therefore, the plaintiffs are the real owners of the suit properties and the defendant nos. 1, 2 and 3 must execute deeds conveying the lands in favour of these plaintiffs. The defendant nos. 4 and 7 purchased lands for Rs.69,70,425/- (Rupees sixty nine lakh seventy thousand four hundred twenty five) only. They are holding the balance amount of Rs.32,79,575/- (Rupees thirty two lakh seventy nine thousand five hundred seventy five) only in trust for the plaintiffs and, therefore, they are, also, liable to refund the said amount with interest to the plaintiffs. The appellants are the defendant nos. 1 to 6 in the trial court. The said defendants are contesting the suit by filing a written statement. In the said written statement they state that the defendant nos. 1, 2 and 3-companies are under the management of Pataka Industries Private Limited. The shareholders and the directors of those three companies are the defendant nos. 4, 5 and 6. The defendant no. 4 is the managing director of the said company. In the early part of 1990 the defendant no. 4 came to know the plaintiff no. 1 at New Delhi. Thereafter, they developed intimacy and became family friends. Pataka Group of Industries intended to set up Pataka Foodpark and a model residential school near Kolkata airport. The defendants, therefore, were searching for 150 bighas of lands. The defendant no. 4 with his employees visited Rajarhat area for the purpose of procuring lands. At Rajarhat they came in contract with the defendant no. 7, who is a land-broker of that area. The defendant no. 7, in his turn, informed the defendant no. 4 that he acted as the broker for Robin Gold Trading Company Limited and its representative, the plaintiff no. 1, for purchasing huge lands for their proposed school. The defendant no. 4 contacted the plaintiff no. as they were family friends and intimated the plaintiff no. 1 his desire to acquire 150 bighas of lands at Hatisala Mouza, Rajarjat. The defendant no. 4 enquired about the integrity and efficiency of the defendant no. 7. The plaintiff no. 1 assured about the honesty and efficiency of the defendant no. 7. The plaintiff no. 1, however, expressed his willingness to monitor-cum-supervise the entire process of purchase of lands by these defendants including monetary transactions. The plaintiff no. 1, therefore, acted as co-ordinator on behalf of these defendants through the defendant no. 7. Sometime in January 2004 several meetings were held in the office of the Pataka Group of Industries. The said plaintiff no. 1 and the said defendant no. 7, also, attended the meetings. The defendant no. 7 was appointed as the authorised land-broker for acquiring 150 bighas of lands at Hatisala Mouza on behalf of these defendants. It was, also, settled in the said meeting that these defendants would provide cash fund to the plaintiff no. 1 for purchasing lands. The plaintiff no. 1, in his turn, would make payments to the land-broker for the purpose of making payments to the vendors and for expenses for execution and registration of the sale deeds. The defendant nos.1 and 3 had purchased about 76 bighas (2526.26 decimals) of lands by 110 registered sale deeds executed by the owners of the lands. These defendants are in khas possession of the lands purchased by them. These defendants entrusted the plaintiff with ready fund of Rs.1,60,00,000/- (Rupees one 5 crore sixty lakh) only towards the cost of acquisition of 150 bighas of lands after withdrawing money from the banks. After purchasing the said 76 bighas of lands, the plaintiff no. 1 proposed to the defendant no. 4 that the defendant no. 4 should form a partnership firm with the plaintiff no. 1 for land speculation and ask the defendant no. 4 not to retain the lands purchased by these defendants, but to dispose of those lands at a higher price. The defendant no. 4 did not accept such proposal of the plaintiff no. 1. As these defendants did not agree to the proposal of the plaintiff no. 1, to exert pressures on these defendants, the plaintiff no. 1 withheld 72 original registration slips. Sometime in September 2004 the said land-broker divulged that he was not getting necessary funds from the plaintiff no. 1. The land-broker informed these defendants that he had received from the plaintiff no. 1 Rs.1,02,50,000/-(Rupees one crore two lakh fifty thousand) only in twenty seven instalments between February 25, 2004 and September 1, 2004, but he had not received his remuneration from the plaintiff no. 1. The defendant no. 4 contacted the plaintiff no. 1 and demanded for accounts from him. He, also, requested the plaintiff no. 1 to refund the excess fund and to return the original registration slips. The plaintiff no. 1 instead of refunding Rs.57,50,000/- (Rupees fifty seven lakh fifty thousand) only started to threaten the defendant no. 4 and the said land-broker with dire consequences. The defendant no. 4 lodged a complaint with the government. The matter was referred to the Vigilance Commission and an enquiry has been conducted. These defendants assert that these defendants, apart from the said 76 bighas of lands, also, acquired, between October 2004 and December 2007, about 836 decimals of lands by 27 deeds through the said land-broker, the defendant no. 7, without any involvement of the plaintiff no. 1. The plaintiffs filed an application for injunction under Order 39, rules 1 and 2 of the Code of Civil Procedure before the trial court, inter alia, seeking to restrain the defendant nos. 1 to 7 from 6 encumbering, selling, transferring or alienating the suit properties in any manner whatsoever and, also, from effecting change of nature and character thereof till the disposal of the said suit. As we have already indicated herein above, the learned judge granted an order of temporary injunction in the nature of maintenance of status quo by both the parties as the learned judge thought that the suit properties were to be preserved and protected till the disposal of the suit.

(3.) However, the learned judge held that the plaintiffs had failed to show, prima facie, that they had invested money in purchasing the suit properties. Mr. Saktinath Mukherjee, learned senior advocate, appearing in support of this appeal, submits that the plaintiffs failed to make out any case for temporary order of injunction. Mr. Mukherjee draws our attention to the findings of the learned trial judge that the plaintiffs had failed to show, prima facie, that they had invested money in procuring the suit properties. Mr. Milan Chandra Bhattacharya, learned advocate, appearing on behalf of the plaintiffs/respondents, argues that the properties are in possession of the defendants. If these defendants are permitted to transfer those lands, there would be multiplicity of proceedings because of involvement of third parties. Mr. Bhattacharya submits that the plaintiffs had invested huge funds in procuring those lands, but the plaintiffs were defrauded by the defendant nos. 1 to 7. These defendants have failed to disclose the source of their funds, but the plaintiffs in the plaint disclosed the names of persons, who had funded the plaintiffs for purchasing the lands. Mr. Bhattacharya draws our attention to the statement of the land-broker, defendant no. 7, before the Vigilance Commissioner that the land-broker used to go to the residence of the plaintiff no. 1 to collect the money before the registration of the sale deeds pertaining to those lands. Mr. Bhattacharya, therefore, submits that when it has been established that the plaintiff no. 1 actually paid the money to the land-broker, the learned judge was not right in holding that the plaintiffs have failed to make out a prima facie case. Mr. Bhattacharya finally submits that the order impugned requires no interference.