MA KREENG CONSTRUCTION PVT. LTD Vs. DIPAK SAHA

JUDGEMENT

(1.) Parties entered into an agreement for sale dated May 25, 2006 by which the appellants agreed to sell and the respondents agreed to purchase an office space in premises no.118, Raja Dinendra Street, Calcutta. As per the agreement, the respondents paid Rs.68 lakhs. The appellants would, however, deny receipt of the entire sum. According to them, only a sum of Rs.17 lakhs was paid by cheque whereas the balance sum of Rs.51 lakhs alleged to have been paid in cash was not received. There was no contemporaneous demand, neither the respondents got possession of the office space nor the Conveyance was executed. Fact would remain, the self-same office premises was leased out to Bajaj Alliance Life Insurance Company Ltd. Bajaj duly fixed their hoarding and they were in possession since then. The respondents never objected. According to the respondents, in 2009 the parties entered into an agreement for refund of the said sum of Rs.68 lakhs and in fact, a sum of Rs.10 lakhs was paid by cheque. The balance sum was to be paid by post dated cheques handed over to the respondents, simultaneously with the execution of the agreement for refund.

(2.) The appellants would, however, contend, the respondents being accompanied by hooligans and/or anti-socials raided their office and coerced to sign the so-called agreement to refund and post dated cheques. They immediately made a complaint to the police station followed by reminder and ultimately an application under Section 156(3) of the Criminal Procedure Code was made before the learned Magistrate. The learned Magistrate declined to ask the police to intervene, as according to him, the dispute was civil in nature. He, however, directed hearing of the said application upon notice to the other side. The appellants approached one of us (Banerjee, J.) in an application for Criminal Revision where the Criminal Revisional Court observed, the observation of the learned Magistrate was prima facie in nature and must not influence the ultimate finding. Learned Magistrate, upon hearing, ultimately directed registration of FIR. The respondents became aggrieved. They filed a revisional application before this Court for quashing of the FIR. Learned Single Judge declined. The criminal proceeding is thus pending and awaiting final decision.

(3.) The respondents filed the above suit inter alia by making a money claim on the strength of the agreement to refund. Needless to say, the post dated cheques were not honoured by the bank. The respondents not only claimed refund of Rs.68 lakhs being the principal sum but also compensation of Rs.42 lakhs as per the so-called agreement to refund. A sum of Rs.1.1 crore was claimed together with interest at the rate of 21% per annum. The respondents also made an application for summary judgment. Learned Single Judge vide judgment and order dated April 4, 2011 allowed the application in part and asked the appellants to put in Rs.68 lakhs together with interest at the rate of 12% per annum on and from May 25, 2006 till the date of deposit as a condition precedent to defend the suit. Being aggrieved, both parties preferred the respective appeals. The appellants were aggrieved as His Lordship did not grant unconditional leave. The respondents were aggrieved as His Lordship did not pass a decree for the entire sum.