SWAPAN GUHA Vs. PRATIMA BAGCHI

JUDGEMENT

(1.) This revisional application is directed against an order No. 23 dated July 24, 2014 passed by the learned Judge, Small Causes Court at Sealdah in Money Suit No. 17 of 2013 by which an application under Order 38 Rule 5 of the Code of Civil Procedure praying for attachment before judgment is rejected.

(2.) The plaintiff/petitioner filed the aforesaid suit in the Civil Judge (Senior Division), Sealdah for recovery of a Sum of Rs. 18,16,730/-together with the interest as per the Interest Act and permanent injunction restraining the defendant/opposite party from transferring, alienating and/or handing over the flats to any person or persons in the multistoried building described in Schedule 'B' thereto. The plaintiff says that the defendant being the proprietors of a partnership firm entered into a development agreement with one Jyoti Prakash Row Chowdhury who is admittedly the owner of the several holdings comprising an area of 9 Cottahs 5 Chittacks together with the two storied old brick building on May 27, 2005. The opposite party engaged a contractor for construction of the said project and incurred substantial amount after taking loan from the different persons. Because of the financial stringency and difficulty in completing the project, the plaintiff/petitioner was approached to finance the project and to provide liquid resources to complete the same.

(3.) By virtue of an agreement dated November 25, 2008, the petitioner alleged that it had agreed to liquidate the liability of the opposite party No. 1 to the tune of Rs. 20,00,000/- from time to time and as per Clause 8 of the said agreement is entitled to receive Rs. 125/- per square feet from the total saleable area of the developer under the development agreement with the original owner. It is further alleged that the opposite party No. 1 issued two cheques of Rs. 10,00,000/- each covering the amount paid to meet out the outstanding liabilities of the different lenders but were dishonored because of insufficient funds. A proceeding under Section 138 of the Negotiable Instrument Act has been initiated which is pending before the Additional Chief Judicial Magistrate at Kakdwip. In Paragraph 11 of the plaint, it is asserted that the total area with the opposite party No. 1 is entitled under the development agreement is 14885.83 sq.ft. and, therefore, as per Clause 8 of the said agreement, the plaintiff is entitled to receive a sum of Rs. 18,60,730/-. Since the opposite party No. 1 have not paid the said amount in terms of the said agreement, the plaintiff further claims an interest on the said amount as per the Interest Act.