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Suit for declaration and permanent injunction

 

IN THE LEARNED 7TH COURT OF CIVIL JUDGE ( Sr. Divn.)

AT ALIPORE, SOUTH 24 PARGANAS.

 

TITLE SUIT No-                       of 2009.

MANTULAL CHAKRABORTY,

Son of Sri Gobinda lal Chakraborty,

residing at 12/12, IshanGhosh Road,

Police Station Thakurpukur,

Kolkata – 700 008,

 District 24 Parganas South.

                                      ……PLAINTIFF.

           -VERSUS-

1.   M/s. Roy & Roy Buildco Construction, a partnership firm, having its registered office at 35/1, K.K. Roychowdhury Road,

Police Station – Thakurpukur,

Kolkata – 700 008,

District South 24 Parganas.

2.   Sri Pijush Roy, Partner of M/s. Roy & Roy Buildco Construction,

Son of Sri Biraj Mohan Roy,

SB-11, Paschim Barisha Housing Estate,

Police Station – Thakurpukur,

Kolkata – 700 063.

District South 24 Parganas.

3.   Sri Sudip Roy, Partner of M/s. Roy & Roy Buildco Construction,

Son of Late Sunil Roy,

35/1, K.K. Roy Chowdhury Road, Barisha,

Police Station – Thakurpukur,

Kolkata – 700 008.

District South 24 Parganas.

 

 ..…..DEFENDANTS

 

 

SUIT FOR DECLARATION THAT THE  DEVELOPMENT AGREEMENT DATED 10TH DAY OF JULY 2013 IS VOID  AND CELLATION OF THE GENERAL POWER OF ATTORNEY DATED 10TH DAY OF JULY 2013   AND PERMANENT INJUNCTION VALUED AT Rs. 41,11,500/-

 

  1. That one Gobinda Lal Chakraborty the father of the Plaintiff was the sole and absolute owner of  All that Piece and Parcel of 6 Cottahas be the same little more or less together with 2 storied building standing thereon, situated and lying at Mouza : Purba Barisha, Pargana : Khaspur, J.L. no. 23, R.S. no. 43, Touzi no. 236, under Khatian no. 1465, appertaining to Dag no. 812, being known and numbered as Municipal Premises no. 12, Ishan Ghosh Road, having Mailing address as 12/12, Ishan Ghosh Road, Police Station Thakurpukur, Kolkata – 700 008, under Ward no. 122 of the Kolkata Municipal Corporation, District South 24 Parganas morefully described in the Schedule hereunder by virtue of a registered Deed of Partition dated 18th day of September 1968 which duly recorded in the Office of the District Sub Registrar of Alipore at Behala under Book No- I, Volume No- 67, Pages 243 to 248 Being Deed No- 4718 for the year 1968.
  2.  The said Gobinda Lal Chakraborty the father of the Plaintiff gifted the aforesaid property morefully described in the schedule hereunder written.
  3. The Plaintiff become the absolute Owner of the aforesaid property morefully described in the Schedule hereunder written by virtue of the aforesaid Deed of Gift and duly seized and possessed of the said property free from all encumbrances and interruption from any corner whatsoever.
  4. The Plaintiff decided to develop the Schedule Property through a Developer to overcome the residential problem of the Plaintiff and his family members.
  5. The Defendant No- 1 is a unregistered partnership firm carrying on its business under the name and style of M/s. Roy & Roy Buildco Construction, represented its partners the Defendant No- 1 and 2 who jointly contacted with the Plaintiff for development of the said property at its own cost and expenses morefully described in the Schedule hereunder.
  6. The Plaintiff states that before entering into the development agreement several discussions were held in between the parties and the Defendant No- 1 and 2 assured that the Defendants will pay a sum of Rs. 14,75,000 to the Plaintiff in three installment i.e. (1) Rs. 55,000/- to be paid within 7 days from the date of execution of the Development Agreement, (2) Rs. 5,00,000/- to be paid within 7 days from the date getting sanctioned Building Plan which is to be submitted to the Kolkata Municipal Corporation within 30 days from the date of execution of the Agreement  and (3) the Balance sum of Rs. 9,20,000/- to be paid within 7 days from the date of 3rd Floor Roof Casting which is to be made within twelve months,  in addition to the aforesaid amount the Defendants will deliver Three Flats each measuring about 600 ( Six Hundred) Sq. Ft. Carpet Area more or less together with common area and facilities on the said premises to which the Building is to be constructed within 24 months from the date of execution of the said Development agreement.
  7. The Plaintiff states that after prolong discussion in between the parties the Plaintiff agreed to entrust the Defendants to develop the schedule property.
  8. The defendants prepared a Development agreement alongwith General Power of Attorney and called upon the Plaintiff to go the Registration Office to execute and register the said Development Agreement and the General Power of Attorney without giving any draft copy of the said Development agreement and the General Power of Attorney before execution and registration.
  9. The Plaintiff states that on the assurance of the Defendants the Plaintiff went to the Registration Office at Behala on 10th day of July 2013 when the Development Agreement and the General Power of Attorney were executed by the Plaintiff and the same had been registered in the said Office but no copy of the said Development Agreement and the General Power of Attorney had been given to the Plaintiff on that date for verification of the said Development Agreement and the General Power of Attorney.
  10. The Plaintiff states that after two months the Defendant delivered a photocopy of the registered Development Agreement and the General Power of Attorney wherefrom the Plaintiff came to understand and astonished that so many clauses were written in the said Development Agreement and General Power of Attorney but no averments made in the said Development Agreement in terms of the discussion held in between the parties and the said Development Agreement was recorded in the Office of the Additional District Sub Registrar of Behala in Book No- I, CD Volume No- 20, Pages from 3845 to 3881  being No- 06207 for the year 2013 and General Power of Attorney recorded in Book No- I, CD Volume No- 20, Pages from 3935 to 3963 being No- 06208 for the year 2013.
  11. The Plaintiff states that in the said Development agreement there was some clauses that 1. The commencement of the Agreement shall be deemed to have commenced with effect from the date of execution of the said Agreement 2. The owner shall give quite, peaceful and unencumbered possession of the said property to the Developer simultaneously with the execution of the Development Agreement 3. The owner shall be held and responsible to vacate the said property within 7 days from the date of getting notice from the part of the Developer otherwise the owner shall be liable to pay damages and 4. The Developer shall complete the construction of the new Building within 24 months positively form the date of getting peaceful vacant khas possession of the property from the owner and/or from the date of getting Plan sanction from the Kolkata Municipal Corporation whichever is later, the time of completion of the Building shall be strictly observed.
  12. The Plaintiff states that from the mere reading of the General Power of Attorney it appears that this said Power of Attorney is involved with interest and is credited for valuable consideration and to be effected under the Contract Act and also under the Registration Act. This Power will irrevocable and subsist so long the Development agreement shall not be cancelled or rescinded as per law upon violation of breach of contract on the part of the Attorney. This Power of Attorney being collateral documents of the Development Agreement and whatsoever acts, deed and things concerning the said property to be done by the Attorney shall be deemed to be done on behalf of the Owner and the said Attorney be bound by such acts, deeds and things so done and that will also remain operative until and unless the contract is rescinded upon violation or the lawful breach of contract on the part of the Developer/Attorney hereinafter referred to as the Defendants.
  13. The Plaintiff further states that as the said Development Agreement is void under the Indian Contract Act so the General Power of Attorney can not subsist which was executed in relation to the said Development Agreement.
  14. The Plaintiff further states that the Defendants violated and/or failed and neglected to act in terms of the aforesaid Development Agreement dated 10th day of July 2013 for which the Plaintiff through his Advocate issued a notice dated 27th day of February 2015 terminating the said Development Agreement dated 10th day of July 2013 recorded  in the Office of the Additional District Sub Registrar of Behala in Book No- I, CD Volume No- 20, Pages from 3845 to 3881  being No- 06207 for the year 2013 enclosing an Account Payee Cheque of Rs. 55,000/-  (Rupees Fifty Five Thousand) only drawn on HDFC Bank in favour of the Defendant No- 1 bearing Cheque No- 177386 dated 27-02-2015 refunding the amount which was paid by the Defendants in several installment after expiry of 7 days from the date of execution of the Development Agreement. The said notices have been duly served by Speed Post with Acknowledgment Due Card and the Defendants duly received and acknowledged the said notices.
  15. The Plaintiff further states that on 7th day of March 2015 the Plaintiff issued another notice through his Advocate by Speed post with Acknowledgement Due Card canceling the General Power of Attorney dated 10th day of July 2013 recorded  in the Office of the Additional District Sub Registrar of Behala in Book No- I, CD Volume No- 20, Pages from 3935 to 3963 being No- 06208 for the year 2013 and the Defendants duly received and acknowledged the said notices.
  16. The Plaintiff further states that on 19th day of March 2015 the Plaintiff issued another notice through his Advocate in a Bengali circulated News Paper “EKDEEN” informing the public not to deal with and/or carry out any transaction with the Defendant on the strength of the said Development Agreement dated 10th day of July 2013 and the General Power of Attorney dated 10th day of July 2013 from the date of publication of the said notice in the news paper.
  17.  The Plaintiff althrough has been in possession of the suit property and the Defendant never issued any notice for vacating the suit property nor paid the amount in terms of the Development Agreement nor took any initiative for survey the suit property and for making soil testing and preparation of proposed building nor submitted the Building Plan to the Kolkata Municipal Corporation  for sanction till date.
  18. The Plaintiff states that since from the date of execution and registration of above Development Agreement and General Power of Attorney,  the Defendants herein violated the terms and failed and neglected to perform the terms Development Agreement  and ultimately become non-interested to complete the transaction in terms of the said Development Agreement and rather they jointly gave go-by to the said Development Agreement and as such they did not pursue to complete the transaction. Thus the above agreement was not only abandoned by the Defendants herein but also the same became null and void under the Indian Contract Act, 1872 because some clauses of the said Development Agreement are not certain and/or capable of being made certain and/or some clauses of the said Development Agreement are contradictory to each other object of the Clauses.
  19. The plaintiff further states that the plaintiff is the owner of the suit property and is in possession of the suit property and the defendants have no right, title, interest and/or possession on the suit property and have no right to develop the suit property by virtue of the said Development Agreement and General Power of Attorney.
  20. The Plaintiff further states that as the said Development Agreement has been terminated and/or void so the General Power of Attorney has no force in the eye of law.
  21. The Plaintiff further states that recently the Defendants and its men and agents are illegally trying to take forceful possession and illegally trying to dispossess the Plaintiffs on the strength of the said Development Agreement and the General Power of Attorney executed by the Plaintiff  by violating the terms of the Development Agreement and even receiving the notice issued by the Plaintiff to the Defendants.
  22. By the aforesaid illegal acts of the defendants, cloud has been casted  to the right, title, interest and/or possession of the plaintiff in respect of the suit property which should be removed by appropriate order of the court.
  23. The plaintiffs submits  that the defendants have no right of  developing the schedule property as the said Development Agreement is void and/or the said Development Agreement has been terminated.
  24.  Accordingly the plaintiff claims for Declaration that the Development Agreement dated 10th day of July 2013 recorded  in the Office of the Additional District Sub Registrar of Behala in Book No- I, CD Volume No- 20, Pages from 3845 to 3881  being No- 06207 for the year 2013  is null and void and for cancellation of the General Power of Attorney dated 10th  day of July 2013 recorded  in the Office of the Additional District Sub Registrar of Behala in Book No- I, CD Volume No- 20, Pages from 3935 to 3963 being No- 06208 for the year 2013.
  25. The plaintiff further claims for permanent injunction restraining the defendants and its men and agents from taking any forceful possession in the schedule property illegally and/or from dispossessing the Plaintiffs from the schedule property on the strength of the said Development Agreement and the General Power of Attorney executed by the Plaintiff  illegally and/or by violating the terms of the Development Agreement.
  26.  The cause of action arose on  10th day of July 2013 when the Development Agreement and the General Power of Attorney were executed and registered  and on 27-02-2015 when the Plaintiff issued notice of termination along with the refunding cheque and on 07-03-2015 when the Plaintiff further issued notice for cancellation of General Power of Attorney  and on 19-03-2015 when the Plaintiff issued notice in the Bengali News Paper and thereafter on each subsequent dates and all such cause of action is continuing since then from day to day at at Mouza : Purba Barisha, Pargana : Khaspur, J.L. no. 23, R.S. no. 43, Touzi no. 236, under Khatian no. 1465, appertaining to Dag no. 812, being known and numbered as Municipal Premises no. 12, Ishan Ghosh Road, having Mailing address as 12/12, Ishan Ghosh Road, Police Station Thakurpukur, Kolkata – 700 008, under Ward no. 122 of the Kolkata Municipal Corporation, District South 24 Parganas which is within the jurisdiction of the learned court.
  27. For the purpose of jurisdiction and the Court Fees the suit is valued at Rs. 41,11,100/-for declaration and Rs. 400/- .injunction and the ad-velorem Court fees is paid herewith.

The plaintiff accordingly prays for the following reliefs:

a.           Declaration that the that the Development Agreement dated 10th day of July 2013 recorded  in the Office of the Additional District Sub Registrar of Behala in Book No- I, CD Volume No- 20, Pages from 3845 to 3881  being No- 06207 for the year 2013  is null and void.

b.           Cancellation of the General Power of Attorney dated 10th  day of July 2013 recorded  in the Office of the Additional District Sub Registrar of Behala in Book No- I, CD Volume No- 20, Pages from 3935 to 3963 being No- 06208 for the year 2013.

c.           Permanent injunction restraining the defendants and its men and agents from taking any forceful possession in the schedule property illegally and/or from dispossessing the Plaintiffs from the schedule property on the strength of the said Development Agreement and the General Power of Attorney. And/or from interfering  with the possession of the plaintiff in respect of the suit property as described in the schedule below.

d.          Receiver over the suit property.

e.           Cost and other charges of the suit.

f.            Such other relief or reliefs as the learned court may deem fit and proper.

 

 

 

 SCHEDULE PROPERTY ABOVE  REFERRED TO

 

All that Piece and Parcel of 6 Cottahas be the same little more or less together with 2 storied building standing thereon, situated and lying at Mouza : Purba Barisha, Pargana : Khaspur, J.L. no. 23, R.S. no. 43, Touzi no. 236, under Khatian no. 1465, appertaining to Dag no. 812, being known and numbered as Municipal Premises no. 12, Ishan Ghosh Road, having Mailing address as 12/12, Ishan Ghosh Road, Police Station Thakurpukur, Kolkata – 700 008, under Ward no. 122 of the Kolkata Municipal Corporation, District South 24 ParganasAnd butted and bounded as follows:

ON THE NORTH :-    8 Feet Wide Common Passage.

ON THE SOUTH  :-  Land of Nani Gopal Chakraborty.

ON THE EAST      :-  4 Feet Wide Common Passage.

ON THE WEST      :-  16 Feet 6 inches K.M.C. Road.

 

 

 

 

 

V E R I F I C A T I O N

I  MANTULAL CHAKRABORTY the plaintiff do hereby declare that I verify for and say that the statement made in paragraphs No: 1 to 22 are true to the best of my knowledge and paragraphs No: 23 to 27 and the rest are my humble submission before this Learned Court.

 

I signed the verification on this …….

day of                       2015 at the Court Premises.

 

 

 

 

 

A F F I D A V I T

 

I   MANTULAL CHAKRABORTY, Son of Sri Gobinda lal Chakraborty, aged about________ years by faith _ Hindu, Ocupation______________residing at 12/12, Ishan Ghosh Road, Police Station Thakurpukur, Kolkata – 700 008, District 24 Parganas South.do hereby affirm and say as follows : 

That I am the plaintiff  and do hereby affirm and say that the statement made in paragraphs No: 1 to 22 are true to the best of my knowledge and paragraph No:23 to 27  and the rest are my humble submission before this Learned Court.

Prepared in my office

 

Ashok Kumar Singh, Advocate,                                            Deponent

High Court, Calcutta,                                                 Identified by me

Kolkata-700 001.                                                                 

 Advocate

 

 

 

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