BAISAKHI BHATTACHARJEE Vs. SHAYAMAL BOSE AND OTHERS

JUDGEMENT

(1.) This appeal arises out of an order refusing grant of injunction by an Order No. 8 dated 17th Jan., 1997 passed in Title Suit No. 135 of 1996 by the learned Assistant District Judge, 10th Court, Alipore.

(2.) The facts of the case, briefly put, are that the plaintiff had sought for specific performance of an agreement dated 22nd May, 1995, entered into between the plaintiff and the defendants, for construction of a 3-storeyed building by the plaintiff on a piece of land belonging to the defendants. Pursuant to the said agreement, the plaintiff obtained sanction of the plan from the Calcutta Municipal Corporation on 16th Feb., 1996. On 18th March, 1996, the plaintiff had applied for registration as Promotor under the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993, which came into force on. 8th Aug., 1995. On 10th April, 1996, the plaintiff undertook to file the registered agreement for grant of registration under Sec. 3 of the said Act. Subsequently, on 2nd May, 1996, the plaintiff sought to withdraw her application for registration. Thereafter, on 9th Sept., 1996, the plaintiff sought to cancel her letter dated 2nd May, 1996, and revive the application dated 18th March, 1996 for registration as Promoter. The defendants had cancelled the agreement on 14th Sept., 1996, through a letter addressed by the defendants' lawyer on the allegation that the plaintiff had failed to perform its part of the contract and that they were ready and willing to perform their part. The plaintiff filed a suit being Title Suit No. 136 of 1996 on 3rd Dec., 1996, before the learned trial Court, for specific performance of the unregistered agreement and for injunction. On 6th Dec., 1996, the plaintiff filed an application for temporary injunction restraining the defendants from making any construction. By an order dated 27th Jan., 1997, after hearing the objection raised by the defendants, the learned trial Court had rejected the prayer for injunction. It is this order out of which the present appeal arises. Submission on behalf of the appellant :

(3.) The learned Counsel for the plaintiff/appellant submits that the agreement is a valid agreement between the parties. He had led us through different clauses of the said agreement and points out that it contains a negative covenant restraining the defendants from terminating and/or cancelling the agreement, apart from covenants permitting the plaintiff to make a construction in terms of the agreements. According to him, the agreement was entered into on a date prior to coming into force of the 1993 Act. However, the learned Counsel, in his usual fairness, did not contend that the 1993 Act has no manner of application in the present case. On the other hand, he points out that prior to entering into the agreement, it was not necessary to get herself registered as a Promoter, since the 1993 Act was then not in force. As soon it become effective, she had applied for registration. According to her, on a misconception created on her enquiry from the department of the authorised officer to the extent that the present case was outside the scope of the 1993 Act, she had purported to withdraw her application for registration. But as soon she realised that the 1993 Act is applicable, she had sought to cancel the letter by which the application for registration was sought to be withdrawn by her and sought to revive her application for registration viz.: on 9th Sept., 1996. The Counsel points out that the purported cancellation of the agreement was attempted to be made by the defendants through their lawyer by a letter dated 14th Sept., 1996. Therefore, at the point of time when the agreement was sought to be cancelled, the application for registration was pending. As such in terms of the covenant contained in the agreement, the agreement could not be cancelled when the plaintiff had already performed her part by obtaining the sanctioned plan and was ready and willing to perform her part of the contract. He points out further that in terms of the agreement, the possession of the land was handed over to the plaintiff for the purpose of construction. From the said agreement, he points out that the plaintiff was entitled to retain the ground floor and garage and other portions of the building to be constructed, which, according to him, is an agreement for sale in respect of that part of the building in favour of the plaintiff.