DOVER PARK BUILDERS PRIVATE LIMITED Vs. MADHURI JALAN

JUDGEMENT

(1.) This application has been taken out by the defendants for permission of this Court allowing them to take steps for transferring, selling the suites or flats to be constructed in the proposed building in the said premises, along with proportionate share of the land by entering into agreement. The present application was filed in the Learned Court of Initiation, namely, the Court of the Learned Second Assistant District Judge at Alipore and this was not disposed of during pendency of the suit in the above Court. This application was taken out by the original defendant No. 1, along with other defendants and by passage of time, much-water has flown through the Ganges. Meanwhile, the defendant No. 1 died, surviving his wife as the heiress and legal representative, who has been brought in the suit and is proceeding with this application. I feel it necessary to narrate short facts of the case and the circumstances in which the present application has been taken out, as put forward by the petitioner.

(2.) The original defendant No. 1, namely, one Mahabir Prasad Jalan since deceased obtained a lease for 99 years on 1st June 1996, of the suit premises from one Murari Charan Law being the owner of the said premises. Similar long lease was granted by the said owner in respect of the premises No. 14 Dover Park Road, being the adjoining premises in favour of two brothers of the defendant No. 1, including the plaintiff No. 2. It is the case of the petitioner that the defendant No. 1, thereafter, decided to develop the suit premises by constructing a residential complex and obtained necessary sanction and permission of various authorities, including Calcutta Municipal Corporation (C.M.C.) consisting of basement, ground floor partly 6th and partly 7th floor covering approximately 10536.50 sq.m. The original defendant No. 1 with the help of various developers, architects and financier started construction of the building and completed up to ground floor level. The present suit was filed by the plaintiff Nos. 2 to 4, claiming decree for specific performance of an oral agreement said to have been entered into by the defendant No. 1 with the plaintiff No. 1 company. It is alleged that such agreement was for assignment for right, title and interest of the petitioner in respect of the said premises in favour of the plaintiff No. 1 company. After filing of the suit an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure was made praying for temporary injunction, restraining the original defendant No. 1 from transferring, vacating and dealing with the said premises. On final hearing the said application under Order XXXIX Rules 1 and 2 of the CPC the Learned Trial Judge dismissed the same. Thereafter, the plaintiff preferred an appeal against the said order of dismissal in this Hon'ble Court, the appeal was heard and disposed of by the following interim order dated 17th August 1994 :

(3.) The plaintiff Nos. 1-4 sought to prefer an appeal against the aforesaid judgment and order of the Division Bench to the Hon'ble Supreme Court of India, however, the Special Leave Petition was dismissed by the Hon'ble Supreme Court of India.