BHASKAR ADITYA Vs. MINATI MAJUMDAR

JUDGEMENT

(1.) This Miscellaneous appeal arises out of an order No. 24 dated 11th October, 2001 passed by the learned Assistant District Judge, 2nd Court at Barasat, North 24-Parganas in Title Suit No. 66 of 2000, rejecting the application for appointment of receiver under Order 40 Rule 1 of the Code of Civil Procedure (CPC) on contest.

(2.) This suit has been filed by the plaintiffs (Respondents No. 1 to 5) for partition and injunction as against the defendants No. 1 to 12 (Respondents No. 6 to 17) alleged to be the co-sharers and the defendant No. 13 (Appellant), the developer. The developer had entered into an agreement for development in respect of the property with the defendants No. 1, 2 and 3 (Respondents No. 6, 7, 8). These defendants are claiming to be the exclusive owners of the suit property. In the suit on the prayer of the plaintiffs, the learned trial Court upon an application for injunction passed an order of maintaining status quo in respect of the nature and character and possession of the property. The defendant No. 13, appellant, and the defendants No. 1, 2 and 3 had filed application for vacating the interim order under Order 39 Rule 4 CPC. These applications are pending. At this stage, the defendant No. 13 filed an application under Order 40 Rule 1 CPC, for appointment of receiver. By an order No. 19 dated 14th August, 2001, the learned trial Court rejected the said application on the ground of subsistence of the interim order of status quo. Against the said order, an appeal being F.M.A.T. No. 2809 of 2001 was preferred. This Court by an order dated 7th September, 2001 disposed of the said appeal and directed re-hearing of the application under Order 40 Rule 1 CPC on merit. Thereafter, the matter was again heard out by the learned trial Court. By order No. 24 dated 11th October, 2001, the application for receiver was rejected. It is this order against which the present appeal has been filed. In the meantime, the defendant No. 13 had applied under section 9 of the Arbitration and Conciliation Act before this Court. In the said proceeding being A.P. No. 207 of 2000 (G.A. No. 2813 of 2000) some clarification was made with regard to the interpretation of the order of status quo permitting the defendant No. 13 to carry on the construction. This, however, was reversed on appeal. Thus, the order of status quo is still continuing.

(3.) Now we may briefly refer to the facts of this case. The defendants No. 1, 2 and 3 representing themselves as the owners of the suit property had entered into an agreement for development with the defendant No. 13, on 9th November, 1994 and had executed a Power of Attorney. In the said agreement, the developer was empowered to apply for amalgamation of the two properties and obtain sanction of plan on the amalgamated property. Pursuant to the Power of Attorney granted, the defendant No. 13 (developer) succeeded in obtaining amalgamation of the two plots and had obtained sanction of the plan for construction on the amalgamated plot. Pursuant to such agreement, the developer had floated a scheme for development and invited intending buyers for purchase of flats according to the scheme of the development since specified in the brochure. Some of the blocks have already constructed. The members of the two groups of intervenors had entered into agreements for purchase of the respective developed flats. Some of them had already got possession of such flats. Some are yet to get possession. There are some buyers the construction in respect of whose flats have not yet started. Subsequently, three separate agreements, all dated 15th of April, 1998, were executed by and between the developer and the defendants No. 1, 2 and 3 comprising of an area of 29 cottahs of land out of the suit property specified in the respective agreements comprising of Block G, C and E as specified in the sanctioned plan. In view of the interim order of status quo, no construction could be undertaken by the developer. The interest of the buyers who had entered into an agreement for purchasing flats are suffering because of this stalemate created on account of the interim order passed in and the suit between the co-sharers.