VIDYA SAGAR SARIN Vs. NATIONAL INSURANCE COMPANY LTD

JUDGEMENT

(1.) This First appeal is directed against the judgment and decree dated 31.08.2006 passed by the learned Civil Judge (Senior Division) No.3, Kamrup at Guwahati in Title Suit No.268 of 1993, thereby dismissing the suit of the plaintiff Smt. Prem Sarin.

(2.) Prior to institution of the aforesaid suit in question, the defendant of the present suit had instituted Title Suit No. 36 of 1989 in the Court of learned Civil judge at Kamrup for specific performance of contract of an agreement to get lease of the present suit property. In that suit the defendant of the present suit was the plaintiff and the plaintiff of the present suit was the defendant No.1. The plaintiff of Title Suit No. 36 of 1989 pleaded that the defendant No.1 of that suit had taken loan of Rs.5,00,000/- from it and executed an agreement in the month of February 1986 containing a number of clauses. It is stipulated therein that the loan was required for the purpose of construction of the second floor of the building and that the said construction would be completed within a period of 6 (six) months from the date of payment of the first installment and thereafter, the plaintiff of Title Suit No. 36 of 1989 would be given the same on lease for 5 (five) years at a rental of Rs.2.50 per sq. ft. Pursuant to the agreement, the plaintiff of Title Suit No.36 of 1989 granted loan of Rs.5,00,000/- to the defendant No.1 to construct the second floor and on turn the property was mortgaged with the plaintiff. But even after construction of the second floor the same was not let out to the plaintiff for which they had to hire a different house at a rental of Rs.3.30 per square feet from December 1987. Thus, the plaintiff was making payment in excess and so notice was issued to the defendant No.1 through advocate demanding Rs.6,42,319.12. As the notice did not yield any result, Title Suit No.36 of 1989 was filed by National Insurance Company Limited praying for a decree of specific performance to the effect that the defendant No.1 of that suit would lease its second floor to the plaintiff Insurance Company as per the terms of the aforesaid agreement and hand over possession thereof.

(3.) While the said suit was in progress, the defendant No.1 of Title Suit No.36 of 1989 filed the present suit, namely, Title Suit No.268 of 1993 stating that pursuant to the loan agreement referred to in the previous suit, the second floor construction was over in the year 1986 itself and thereupon, before October 1986, the husband of the plaintiff Prem Sarin informed Regional Manager of the defendant of the present suit about completion of the work and thereupon, the Regional Manager accompanied by one D. Sengupta visited the suit premises on 04.10.1986. They were satisfied about the completion of the building and floor area was roughly measured to be 6144 sq. ft. excluding the staircase and the landing. Thereupon, on 21.10.1986 the plaintiff Prem Sarin informed Regional Manager of the defendant Insurance Company that since the house was completed, the last installment of the loan should be released. In the meantime last installment was also released and as a stopgape arrangement the plaintiff permitted the defendant Insurance Company to occupy about 3000 sq. ft. in the ground floor of the same building till the possession of the second floor was given. Accordingly, the defendant fixed a signboard in the second floor and allegedly locked the door of the second floor upon taking possession thereon from the plaintiff but no formal agreement of lease was executed. Under such circumstances, a draft agreement was handed over to the defendant by the plaintiff on 16.12.1986 and obtained receipt, but even thereafter apart from holding 2/3 sittings nothing happened substantially and the defendant neither executed a lease agreement nor did they make payment of the rent to the plaintiff. Under such circumstances, suit was filed praying for recovery of Khass possession of the second floor of the building by evicting the defendant and also for realization of arrear rent to the tune of Rs.2,46,525/-. In the plaint of this subsequent suit, the plaintiff herself made mention about the pendency of the previous suit i.e. Title Suit No.36 of 1989 in the same court and substantially between the set of parties with regard to the same suit premises.