Allowed

Sk Jahiruddin v. Smt Dipti Dutta and Ors.

Calcutta HC2 May 2022FMA/440/2022

Case brief

AI extract

What is this about?

Allowed the appeal and granted interim injunction despite the unregistered status of the Agreement for Sale, relying on Section 49(c) of the Registration Act and Chapter II of the Specific Relief Act, directing deposit of consideration and impounding the document for stamp duty assessment.

What did the court decide?

Injunction restraining creating third party interests granted upon deposit of Rs.1.5 crores in Fixed Deposit; document to be impounded for stamp duty assessment.

Sk Jahiruddin Vs Smt Dipti Dutta and Ors. — Specific Performance | Calcutta HC (2022)

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10 02.5.2022 Sc Ct. no.8

FMA 440 OF 2022

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Sk. Jahiruddin

Vs.

Smt. Dipti Dutta & Ors.

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Mr. Debjit Mukherjee Ms. Susmita Chatterjee Ms. Dipanwita Ganguy Mr. Kaustov Bhattacharya.

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…. For the Plaintiff / Appellant

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The appeal is arising out of an order dated 14^th March, 2022 passed by the learned Civil Judge (Senior Division), Arambagh in connection with an application filed under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure refusing to pass an ad interim order of injunction.

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The ground for refusal was that the Agreement for Sale is an unregistered document and is required to be registered under Section 17(1)(g) of the Registration Act.

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The plaintiff/appellant filed a suit for specific performance of the injunction. The plaintiff/appellant contends that the defendants/respondents entered into an agreement for sale of the suit property with the present plaintiff/appellant on 14^th August, 2020 on a consideration amount of Rs.1.6 crores out of which Rs.10 lakh was paid to the defendants/respondents and it was mutually agreed that the balance consideration amount

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shall be paid within six months from the date of agreement for sale. However, the said amount could not be paid to Mr. Pranab Kr. Dutta (since deceased) as he died on 19^th November, 2020 and it is alleged that the present defendants/respondents requested the plaintiff/appellant to wait for almost a year and after the annual rites of the deceased performed by the defendants/respondents the money can be disbursed to the defendants/respondents.

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It is further alleged that in January, 2021 the present defendants/respondents forwarded the Death Certificate and other relevant documents of the deceased along with Voter Card and Aadhar Card of the deceased to the plaintiff/appellant. On 1^st December, 2021, the plaintiff/appellant claimed to have requested the defendants/respondents to accept Rs.1.5 crores and to execute the Deed, but the defendants/respondents refused the same. The legal notices dated 19^th January, 2022 and 14^th February, 2022 also remained unanswered. The plaintiff/appellant apprehends that the defendants/respondents are trying to create third party interest in the property. It was on such facts, the plaintiff/appellant approached the learned trial court with a prayer for injunction.

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The ground for refusal of the injunction is the Agreement for Sale was unregistered. The learned trial Judge has overlooked Section 49(c) and proviso to the

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said Section which clearly says that unregistered document affecting immovable property may be received as evidence of contract in a suit for specific performance under Chapter II of the Specific Relief Act. However the Agreement for Sale is inadequately stamped and we have been informed that an application has been filed by the plaintiff/appellant for impounding of the said document.

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The plaintiff/appellant upon depositing Rs.1.5 crores before the trial court within ten days from date, shall be entitled to an order of injunction restraining the defendants/respondents from creating any third party interest for a period of eight weeks or until the injunction application is decided by the learned trial court on merits, whichever is later.

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The trial court is directed to impound the said document and send it to the Collector for assessment of stamp duty and penalty, if any, subject to the right of the revisional and other remedies available to the plaintiff/appellant under the Stamp Act.

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The plaintiff/appellant shall serve a copy of the plaint and injunction application along with a copy of this order upon the defendants/respondents within a week from date. Written objection to the injunction application may be filed within two weeks from date of service of a copy of the plaint, injunction application and a copy of this order.

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We make it clear that in the event the said amount of Rs.1.5 crores is not deposited then this order of injunction, passed today, shall automatically stand vacated without reference to this Court.

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Upon depositing the said amount, the trial court shall invest the said sum to the suitable Fixed Deposit account yielding highest return till the disposal of the suit.

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The appeal stands disposed of. There shall be no order as to costs.

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Photostat certified copy of this order, if applied for, be furnished on usual undertaking.

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(Sugato Majumdar, J.)

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(Soumen Sen, J.)

Sk Jahiruddin v. Smt Dipti Dutta and Ors.

Case brief

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Sk Jahiruddin v. Smt Dipti Dutta and Ors.

Case brief

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What did the court decide?

What the court decided

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