HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

PRESENT:

THE HON’BLE JUSTICE SABYASACHI BHATTACHARYYA

AND

THE HON’BLE JUSTICE SANDIP KUMAR DE

FMA 916 OF 2025

With

CAN 2 of 2020

With

CAN 3 of 2021

With

CAN 4 of 2026

Alok Niwas Private Limited

Vs

Debasish Pal and Ors.

For the appellant: Mr. Indranil Ray, Sr. Adv.,

Mr. Sanjoy Mukherjee, Adv.,

Mr. Suvradal Chowdhury, Adv.

For the respondent nos. 1 & 2.: Mr. Kushal Chatterjee, Adv,

Mr. Tauhid Khan, Adv,

Mr. Atanu Haldar, Adv.

Last heard on: 27.08.2026

Judgement on: 03.09.2026

2

SANDIP KUMAR DE, J.:

1. The present appeal has been filed against the judgment and order dated

October 3, 2019 passed by the learned Civil Judge (Senior Division),

1

st

Court at Howrah in connection with an application under Order 39

Rules 1 and 2 read with Section 151 of the Code of Civil Procedure in

Title Suit No.187 of 2019. By the order impugned the learned trial court

had rejected the application for temporary injunction filed by the

plaintiff.

2. The plaint case is that the plaintiff purchased several plots to construct

and set up an industrial park situate at the scheduled properties

mentioned in Part 1 of the schedule of the plaint. For such purpose, the

plaintiff purchased several plots of land from defendant Nos.6 to 26

(“the Pal family” for short). The plaintiff entered into an oral agreement

with the defendant No.1, the respondent No.1 herein, to the effect that

the defendant No.1 shall convey the total area of 3.8680 acres of land,

both demarcated as well as undivided in favour of the plaintiff for an

agreed consideration of Rs.6,88,22,217/-. Out of the said area, the

partitioned area of 151.46 decimals of land held by defendant No.1

exclusively, shall be conveyed subject of reciprocal obligations. In that

case, the plaintiff would convey to the defendant No.1 65.640 decimals

of land in several plots within Mouza Bipannapara, JL No.27, P.S

Domjur, District Howrah upon payment of consideration of Rs. 1.24

crore. Upon such transfer of 65.640 decimals of land, the

defendant No.1 would convey and transfer 6.540 decimals of land in

several plots both in Mouza Mohiary totaling 53.99 decimals

3

demarcated along with undivided 1/2

nd

share in different areas at Mouza

Bipannapara and Mouza Mohiary totaling 11.65 decimals for

consideration of Rs.1.46 crores. Upon such mutual transfer of land, the

defendant No.1 would then convey and transfer all partitioned and

demarcated land held by the defendant No.1 in several plots described

in paragraph No.4(c) (iii) of the plaint in favour of the plaintiff at an

agreed consideration of Rs.3,36,88,554/-. It was further agreed between

the plaintiff and defendant No.1 and that upon conveying the said area

of 65.64 decimals of land the plaintiff would facilitate development of

the said land and would also provide electricity and drainage

installations. It was also agreed that while conveying 65.64 decimals of

land, the plaintiff would also permit usage of company passage of the

defendant No.1 to enable him to ingress and egress to and from the said

65.640 decimals of land. On the basis of the said oral agreement, the

defendant No.1 executed five several deeds of conveyances in favour of

the plaintiff company totaling to 2.2543 acres of land consisting of both

his undivided share as well as his exclusive area including his

proportionate right in the common passage. Meanwhile, defendant

Nos.6 to 32 also executed several conveyances on various dates in

respect of both divided and undivided portion of the property including

the undivided share of common passage in favour of the plaintiff. The

plaintiff also discharged his reciprocal obligations by executing and

registering a deed of conveyance for 65.640 decimals of land in favour

of defendant No.1 on 1

st

November, 2015.

3. The further plaint case is that despite the plaintiff discharging its

reciprocal obligation, the defendant No.1 delayed discharging his

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reciprocal obligation in terms of the said agreement as also execution of

registration of the conveyance in respect of 151.46 decimals of land on

several pretexts. The plaintiff called upon the defendant No.1 to transfer

the said plot of land as agreed upon to be transferred in favour of the

plaintiff by a letter dated 23

rd

September,2016 and subsequently, by

reminders dated 15

th

February,2017 and 2

nd

November,2017. The plaint

case further states that the plaintiff has started construction of setting up

the industrial park upon obtaining permission from various authorities

and due to non-performance of his part of the agreement by the

defendant No.1 the plaintiff is suffering as the project of setting up the

industrial park is not being completed. The plaintiff prayed for a decree

for specific performance for transfer of suit property with a direction

upon the defendant No.1 to register and execute the sale deed in favour

of the plaint upon acceptance of the agreed consideration of

Rs.3,36,88,544/- within time limit to be specified by the learned trial

court, in the alternative for a prayer of decree for damages of Rs.127

crore, enquiry in terms of order 20 Rule 12 of the Civil Procedure Code,

decree for permanent injunction restraining defendant No.1 from

changing the nature and character of the suit property till disposal of the

suit and restraining them from restricting free ingress and egress of the

plaintiff from the common entrance and National Highway 6 to the suit

property as also to the plots of land owned by the plaintiff along with

the ancillary reliefs.

4. The plaintiff/appellant also filed an application under Order 39 Rules 1

and 2 read with Section 151 of the Code of Civil Procedure before the

learned trial court praying for an order of injunction restraining the

5

defendant Nos.1 and 2 and their men, agents or servants from changing

the nature and character of the suit property making any construction

thereon and restricting free ingress and egress of the plaintiff from the

common entrance of National Highway 6 of the suit property as also the

plots of land owned by the plaintiff, restraining the defendant Nos.1and

2 and their men, agents and servants from creating any nuisance on the

common passage regarding the suit property and the plots of all lands to

the plaintiff and from parking vehicles on such passage and not creating

any obstruction in any manner whatsoever on the common passage

leading to the suit property and all the plots of land of the plaintiff,

restraining the defendant Nos.1 and 2 from alienating, transferring,

encumbering and/or creating any third party right in respect of the suit

property and ad-interim prayers in terms thereof.

5. Defendant No.1 filed written objection against the application for

temporary injunction filed by the plaintiff. In the written objection, the

defendant No.1 denied the material allegations made by the plaintiff in

the said application. The defendant No.1 flatly denied that there was any

agreement dated 7

th

May,2013 by and between the plaintiff and the

defendant No.1 and the defendant No.1 further stated that he never

responded to the letters referred to by the plaintiff. According to

defendant No.1, the said letters were unilaterally written by the plaintiff.

The defendant No.1 clearly denied that he either agreed to sale the suit

property or entered into any oral agreement with the plaintiff regarding

the arrangements as mentioned in the plaint. The defendant No.2 filed a

separate written objection and the plaintiff filed rejoinder to both the

written objections before the learned trial court. Upon hearing, the

6

Learned Trial Court rejected the temporary injunction application on

contest. Hence, the instant appeal.

6. Learned senior counsel appearing for the plaintiff/appellant referred to

the arrangements and/or reciprocal obligations allegedly entered into by

the plaintiff and the defendant No.1. By virtue of the oral agreement

dated 7

th

May,2013 and narrating the complaint and on consideration of

the fact regarding the setting up of the industrial park by the plaintiff, it

was submitted that the schedule of the plaint very well included the plot

numbers as well as the easement and quasi easement rights together

with all rights, liberties, privileges along with right to free ingress and

egress. It was submitted that the plaintiff, at all material times, has been

ready and willing to perform the obligation and/or reciprocal obligation

being part of the oral agreement dated 7

th

May,2013 entered into

between the plaintiff and defendant No.1. It was further submitted that

the plaintiff filed the suit when no commercial construction was there in

the plots of land. Referring to Annexure B of the list of documents

annexed to the plaint being the sketch map, the learned senior counsel

pointed out that save and except a portion of land being the subject

matter of the present suit, the rest of the entire area has been purchased

by the plaintiff and the construction work for setting up the industrial

part is continuing. The learned senior counsel for the plaintiff/appellant

further referred to the deed of conveyance dated 5

th

November,2015

executed between the defendant No.1 and the plaintiff wherein it was

recorded in the recital of the said deed that the entire common passage

originating from the public road ending with the vendor’s land, i.e., the

land belonging to the defendant No.1 shall be developed at the cost of

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the second party i.e., the plaintiff. The first party is not under any

obligation to pay any charges or fees for such development and/or

improvement of common road meant for usage of both the parties. The

first party purchaser will cooperate with the second party in all respect

and at the time of development of land belonging to the plaintiff

personally or through the authorized representatives or agents. The

learned senior counsel further referred to the condition recorded in the

said deed to the effect that the purchaser above named i.e., the plaintiff,

declared and confirmed that the vendor i.e., the defendant No.1 has sold

“the said plot of land” in favour of the purchaser. By this deed the

vendor herein shall have the first option to purchase at the highest

market price and/or acquire the same. Referring to the said condition,

the learned senior counsel submitted that the conditions mentioned in

the said deed of conveyance clearly show that there was an oral

agreement entered into by and between the plaintiff and the

defendant No.1. The learned senior counsel then referred to the letter

23

rd

September,2016 being Annexure F to the plaint. The said letter was

written by the plaintiff to the defendant No.1 by which it was recorded

that the defendant No.1 had agreed to sale his other property situated at

Mouza Bippanapara, JL No.27 and Mouza Mohiary, JL No. 28 P.S

Domjur, District Howrah to the plaintiff. The said letter further recorded

that in part performance of the agreement, the defendant No.1

transferred and conveyed in favour of the plaintiff, land measuring

about 170.907 decimals being undivided 1/7

th

share in the joint property

as stated in the said letter. Thereafter, on 1

st

November, 2015, the

defendant No.1 transferred and conveyed a part or portion of the

divided and demarcated portion of land together with 1/7

th

undivided

8

share in the common passage alone together measuring about 65.640

decimals at Mauja Mohari, JL No.28 and 8.11 decimals in Mauja

Bipannapara, JL No. 27 leaving a balance of 156.229 decimals. It was

observed by the defendant No.1 that the remaining portions of land

measuring 150.229 decimals shall be transferred and conveyed as soon

as the sale and transfer of land by other co-owners who has also agreed

to sale their rest undivided share in the said land as well as their divided

and demarcated plots together with each of their undivided share that

the common passage is completed. In the said letter it was requested

that the defendant may consider that the plaintiff has acquired right, title

and interest of co-owner in order to complete the process and further

considering the situation that the plaintiff has already invested a large

sum of money, the defendant was requested to transfer remaining

150.229 Decimals of plot of land in favour of the plaintiff.

Subsequently, the reminders dated 15

th

February,2017 and

2

nd

November, 2017 were also sent to the defendant No.1 by the

plaintiff.

7. Learned senior counsel for the plaintiff/appellant further referred to the

development agreement dated 12

th

July,2016 between the plaintiff and

the defendant No.4 i.e., the developer who developed the industrial

park. Referring to Article 10 Clause 9.1 of the said development

agreement, the learned senior counsel argued that the entire project

is scheduled to be completed in phases.

8. Learned senior counsel for the plaintiff/appellant further referred to the

application for injunction. The learned senior counsel referred to

9

paragraph 29 of the application for temporary injunction wherein the

performance of bhumi puja on the suit property of defendant Nos.1and

2 for the purpose of starting construction in the property has been

shown as the cause of urgency. The learned senior counsel further

referred to the prayers of the application for injunction and submitted

that at that time there was no construction in the suit property.

9. The learned senior counsel for the plaintiff/appellant then referred to the

written objection to the application for injunction by the

defendant No.11. Referring to paragraphs 9, 11 and the written

objection and the letter addressed to Block Land and Land Reforms

Officer,Domjur,Howrah jointly by the plaintiff and the defendant No.1

on 15

th

November,2017, the learned senior counsel for the

plaintiff/appellant argued that the oral agreement or the acceptance of

terms and conditions thereof have not been denied by the

defendant No.1 and as it appears from the conduct of the

defendant No.1, the specific response to the letters written to the

defendant No.1 by the plaintiff seeking specific performance of the oral

agreement was not required.

10. Learned senior counsel for the plaintiff/appellant next referred to

the judgment and order impugned in the present appeal and submitted

that the recording of the learned trial judge that the plaintiff is willing to

purchase a piece of land measuring 151.46 decimals which is referred to

as suit property is not correct factually because easementary rights

which were very much part of the schedule of the plaint, was not

included such recording. It would further appear from the recording of

10

the trial judge that the common passage referred to in the schedule and

shown in Annexure B is not the suit property but the reference to the

boundary of the suit property only is factually wrong and as such, the

learned trial judge committed a material irregularity. Therefore, the

recording of the learned trial judge with regard to the common

passage not being part and parcel of the suit property is absolutely

wrong which led to the decision under challenge. Referring to the

findings of the learned trial judge with regard to the applicability of

Section 10 of the Indian Contract Act, 1872 with regard to the oral

agreement, the understanding of the provision as well as the ratio laid

down in the cited decision reported in the case of Aloka Bose Vs.

Parmatma Devi & Ors. (2009) 2 SCC 582 by the plaintiff, the learned

trial judge fell in error as he misconstrued both the statutory provision

as well as the ratio laid down in the cited decision in the context of the

present case. The learned senior counsel further submitted that the

learned trial judge fell in further error because there was no whisper

with regard payment of stamp duty in respect of the oral agreement and

payment of stamp duty in case of oral agreement is patently

absurd. Therefore, the finding of the learned trial judge with regard to

the prima facie case is palpably misconceived and perverse.

11. Learned senior counsel submitted that the Learned Trial Judge further

fell in error in recording that the learned trial judge could not find any

documentary evidence in relation to the oral agreement. The learned

senior counsel for the plaintiff/appellant further submitted that only the

absence of date of oral agreement in the letter dated

23

rd

September,2016 and subsequent reminders thereof

11

cannot brush aside the existence of oral agreement which is otherwise

clear from the conduct of the parties. He further submitted that the

question raised with regard to the inclusion of defendant No.1 in the

same drive at the instance of the proforma defendant No.5 was not

argued by the parties at all. He further submitted that the learned trial

judge recorded that in the letter dated 23

rd

September,2016 it was

mentioned the oral agreement was referred to but the date, place and

occasion of such agreement was disbelieved by the learned trial judge.

Therefore, the parties agreed and contracted on the basis of oral

agreement was not considered by the learned trial court.

12. With regard to the written objection of defendant No.2, i.e., the

developer, the learned senior counsel for the plaintiff/appellant referred

to the written objection of defendant No.2 and submitted that the

construction made by the defendant No.2 upon getting physical

possession of the property from defendant No.1 and upon execution of

the unregistered development agreement on 1

st

December,2015 between

the defendant nos.1 and 2 are versions of the defendant No.2 which has

no bearing in respect of the conduct of the plaintiff and the

defendant No.1 in connection with the oral agreement. He further

referred to the order dated 7

th

April,2026 passed by this Hon’ble Court

in the present appeal by which this Court restrained the

defendants/respondent Nos.1and 2 and their men and agents by an order

of injunction from making any construction on the common passage as

described in paragraph No.3 of the plaint leading to the suit

property from that date till disposal of the injunction application filed in

the present appeal. He further submitted that this Court was satisfied

12

that there was prima facie case made out by the plaintiff/appellant in the

present case.

13. As such, the learned senior counsel for the plaintiff appellant prayed for

setting aside of the judgment and order impugned and further prayed for

allowing the appeal by restraining the defendant Nos.1 and 2 from

creating any further disturbances in the suit property till the disposal of

the suit.

14. Per contra, the learned counsel for the Defendant/respondent No.1

submitted that while seeking injunction, a case has to be strongly based

on existence of facts and not on presumptions. Referring to paragraph 4

of the plaint, the learned counsel for the defendant/respondent No.1

submitted that the purchase of plot of land from Pal family took place

on or about 25

th

February,2013 whereas the oral agreement has

purportedly and/or allegedly being entered into on May 7,2013. The

learned counsel for the defendant/respondent No.1 submitted that the

case of oral agreement has been made out in such a manner that the

same is brought within the contours of deeds or instruments executed

between the parties. He further submitted that the question of

concessional price as recorded in the recitals of the deed came up

because the defendant No.1 was the middleman in respect of the

execution of the deeds of conveyance amongst the parties. He further

referred to the deed of conveyance dated November 1,2015 executed by

the defendant No.1 as vendor in favour of the plaintiff as the purchaser

and submitted that there is no reference to the oral agreement as being

stated in the plaint. He further referred to the valuation made in respect

13

of the said deed and submitted that market value of the property had

been almost the same as accessed by the Directorate of Registration and

Stamp Revenue and the amount mentioned in the memo of

consideration. As such, there is no question of any concessional price as

sought to be made in the plaint case.

15. Learned Counsel appearing for Defendant No.1/Respondent No.1

submitted that in case of oral agreement, strongest possible case with

regard to the existence of oral agreement is required to be made out. In

this regard the Learned counsel places reliance on paragraph 4 of the

plaint and submitted that oral agreement is dependent on reciprocal

obligations. However, no such indication appears from the deeds of

conveyances referred to in the plaint forming the case of oral agreement.

The Learned Counsel placed the Deed of Conveyances dated November

1,2015 by which the defendant/respondent No.1 purchased the piece and

parcel of land measuring about 65.64 decimals in different Dag numbers

within Mouza Bipannapara JL No.27. The Learned Counsel further

placed the memo of consideration of the said deed of conveyances and

pointing out the consideration amount of Rs1.24 crore, he submitted that

the said price was not concessional price. He further submitted that the

price written in the memo of consideration is Rs.1.24 crore and the

government valuation is Rs.1,24,88,667/- . Thus, difference is not much

and the transaction took place on the basis of market value only. He

further pointed out the recital of the deed of conveyances wherein it is

recorded “that in the premises aforesaid and in pursuance of the said

agreement and in consideration of a sum of Rs.1,24,00,000/- only duly

paid to the vendor by the purchaser on this date of execution of this

14

deed”. It was submitted that the term “said agreement” is not oral

agreement and there has to be an agreement in writing before that deed is

executed. The learned counsel for the defendant/respondent No.1 then

placed another deed dated November 1, 2015, i.e., on the same date

where the defendant/respondent No.1 as vendor transferred the piece and

parcel of land at Mouza Mohiary, both demarcated and undemarcated,

measuring about 65.64 decimals for a consideration of Rupees 1.46

crores. Referring to the said deed of conveyance, the learned Counsel

submitted that the transaction took place on the basis of an independent

proposal upon verification of the market value. There is no oral

agreement connected to the said deed of conveyance and there is no

concessional price and the transaction took place on the basis of agreed

price based on market value.

16. Referring to the deed of conveyance dated 25

th

April 2014, wherein the

defendant /respondent No.1 being the vendor transferred in favour of the

plaintiff /appellant the piece and parcel of land measuring about 62.787

decimals in Mouza Bipannapara for a valuable consideration

of Rs.75,97,200/- , the learned Counsel referred to the recital of the said

deed wherein it was recorded that due to urgency of money the vendor

has agreed to sell the said property.Basis the same, the learned counsel

for the defendant/respondent No.1 argued that the said transaction took

place due to want of money and the same was not in pursuance of an

oral agreement.

17. The learned counsel next referred to the letters and communications from

the record. Placing reliance on letter dated 23

rd

September 2016 written

15

by the plaintiff/ appellant to the defendant/respondent No.1, the Learned

Counsel for defendant/Respondent No.1 argued that the said letter was

written after 3 years from the date of purported oral agreement. In terms

of the purported oral agreement, the reciprocal obligations ended after

two years from the date of the said oral agreement and the letter dated

23

rd

September 2016 was communicated after a period of more than one

year from the date of cessation of reciprocal obligations under the

purported oral agreement. He further argued that in the plaint, there was

no reference to the deed dated 25

th

April 2014, although the same found

place in the later dated 23

rd

September 2016. He further argued that

although in the letter, a reference to altered position or altered agreement

has been mentioned but there is no prayer in the plaint with regard to

such altered position or altered agreement. He submitted that from the

contents and purport of the said letter, it appears that it was merely a

desire of the plaintiff/ appellant to purchase 150.229 decimals of land

with another 65.64 decimals of land aggregating to total 215.869

Decimals of land as was expressed in the said letter dated 23

rd

September

2016, but there was nor oral agreement between the parties to that effect.

The learned counsel for the defendant/respondent No.1 further argued

that non-reply to the said letter did not amount to acceptance or existence

of any concluded contract. Non-denial would not amount to agreeing to

the terms or contracting between the parties. He further submitted that

the contents of the said letter dated 23

rd

September,2016 does not contain

any reference to a deed or oral agreement but contains only a vague

reference to commitment. He further submitted that reminders to the said

letter dated 15

th

February 2017 and 2

nd

November 2017 also did not have

any reference to any oral agreement.

16

18. The Learned Counsel for the defendant/respondent No.1 then referred to

the agreement dated 12

th

July,2016 entered by and between the

plaintiff/appellant and the developers. Referring to clause 4.2 under the

heading “Parties and Object of this Agreement” of the said agreement

dated 12

th

July,2016, the Learned Counsel submitted that in the language

of the clause with regard to inclusion of lands in the industrial park, use

of the word ‘may’ clearly shows that the plaintiff/appellant was not sure

about acquisition and/or purchase of further land in respect of setting up

the industrial park and it was only intention of the plaintiff/ appellant

which would be derived from the said clause. Referring to clause 9.1

under the heading ‘construction and completion’ of the said agreement,

the Learned counsel further submitted that the clause clearly shows that

the setting up of the industrial park would be on the basis of phasewise

acquisition and/or purchase of land and such acquisition and/or purchase

would be independent deals based on considerations. Such acquisition

shows that there was no mention of any oral agreement.

19. The Learned Counsel for the defendant/ respondent No.1 then referred to

the letter dated 15

th

November,2017 jointly written by the plaintiff

/appellant and the defendant/respondent No.1 addressed to the Block

Land and Land Reforms Officer, Domjur Block, District Howrah by

which the parties made a clarification with regard to the mutation of

various plots of land. Referring to the contents of the said letter, the

learned counsel argued that both the parties sat together for the purpose

of mutation only and there was no other purpose mentioned in the said

17

letter with regard the said sitting. It further appears that the said sitting

took place in 2017 only.

20. The Learned counsel for defendant/respondent No.1 then referred to the

map wherefrom it would appear that the plot belongs to respondent

/defendant no.1 and gate also belongs to him. It is a matter of greed of

the plaintiff /appellant to grab the land and indulge the defendant

/respondent no.1 in litigation in order to bring him to the terms of the

plaintiff/ appellant.

21. With regard to the common passage, the learned counsel for defendant/

respondent No.1 next argued that it would be evident from the prayer (a)

of the injunction application that the suit property belongs to

defendant/respondent No.1 and he is in possession of the same. So, such

a prayer to have and/or secure access to defendant/ respondent No.1’s

property cannot be granted as prayer by the plaintiff/appellant. Such

prayer was nothing but a relief at the interim stage sought to be obtained

in circuitous manner which really amounts to final relief. He further

submitted that the passage is a common passage leading to the

construction gate and both the parties park their vehicles in the common

passage. There is nothing to show from the pleadings that the

defendant/respondent No.1 is creating nuisance by parking his

vehicles.

21. Referring to paragraph 14 of the plaint, the learned Counsel for the

defendant/respondent No.1 next submitted that statement regarding the

agreement between the parties on 3

rd

August 2017 to the effect that the

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defendant would complete the full performance of the contract within a

period of two years, is a unilateral statement made in the plaint and that

is nothing more than intention of the parties,but there was no oral

agreement to that effect. He further submitted that although such

purported agreement has been mentioned in the plaint, there was no

reference to that agreement dated 3

rd

August 2017 in the reminder letter

dated 2

nd

November 2017. He further submitted that as there was no

agreement, the statement with regard to reciprocal obligations as made in

paragraph 16 of the plaint does not and cannot arise.

22. He further submitted although there is a statement with regard to

novation of the contract and/or a new contract dated 3

rd

August 2017 in

paragraph 27 of the plaint, such case has not been pleaded anywhere in

the plaint.

23. With regard to the cause of action of the plaint, the learned counsel for

the defendant/respondent No.1 submitted that paragraph 29 of the plaint

discloses the cause of action wherein it has been mentioned that on

23

rd

September,2016 the defendant No.1 refused to convey the suit

property in favour of the plaintiff as per the purported oral agreement

and subsequently changed agreement dated 3

rd

August 2017. Such

statement is ex-facie absurd because if the defendant /respondent No.1

has refused to transfer the land in favour of the plaintiff on

23

rd

September,2016, there would not have been any question of

reminders subsequent thereto as mentioned in the said paragraph 29 of

the plaint. He further submitted that none of the letters dated

23

rd

September 2016, 15

th

February 2017 and 2

nd

November,2017 record

19

any refusal on the part of the defendant/respondent No.1. Therefore, the

statement of the plaint and content of the letters are different. In the

circumstances, the presumption of non- response as sought to be raised

by the plaintiff’s appellant is immaterial.

24. The learned counsel for the defendant/respondent No.1 then submitted

that the industrial park sought to be set up by the plaintiff/appellant is a

commercial project. In a commercial venture, waiting for a period of

about three years to seek relief is fatal and such delay defeats equity

since the execution of the deeds of conveyances took place in November

2015 and the plaintiff/ appellant waited till April 2019 to file the

suit.There is nothing to show from record that between such period, the

plaintiff/appellant approached the defendant No.1 with regard to the

subject matter.

25. The defendant /respondent No.1 then referred to the prayers of the plaint,

esp., prayer (b) of the plaint and submitted that such prayer has been

made with regard to specific performance for transfer of suit property

and such specific performance is based on the oral agreement according

to the plaintiff but the said prayer does not have any reference to the oral

agreement. Lastly, he submitted that no mutuality between the parties

could be shown from the deed of conveyance as sought to be argued by

the plaintiff/ appellant.

26. The learned counsel for the defendant/ respondent No.1 submitted that

the matter is with regard to a commercial project and as such, the suit

ought to have been filed in Commercial Court and the ordinary civil

20

court could not have entertained the suit having lack of inherent

jurisdiction.

27. In support of his submission, learned counsel for the defendant/

respondent No.1 placed reliance on a decision of the Hon’ble Supreme

Court of India in the case of Brij Mohan & Ors. Vs. Sugar Begum &

Ors.(1990)4 SCC 147. Referring to para 2 of the said report, it was

pointed out that the said case was with regard to oral contract and further

referring to paragraph 16 of the said report, it was pointed out that in that

case, although it was found that there was a meeting between parties but

that does not establish that there was a concluded contract between the

parties on that day because admittedly defendant No.1 was not present at

that point of time. Referring to paragraph 20 of the said report, it was

submitted that in case where the plaintiff is seeking decree of specific

performance of contract of sale of immovable property on the basis of

oral agreement alone, heavy burden lies on the plaintiff to prove that

there was consensus ad idem between the parties for a concluded oral

agreement for sale of immovable property. Whether there was such

concluded oral agreement would be a question of fact to determine in the

facts and circumstances of each individual case. It has to be established

by the plaintiff that vital and fundamental terms of sale of immovable

property were concluded between the parties. A written agreement, if

any, to be executed subsequently would be a fundamental agreement

incorporating such terms which had already been settled and concluded

in the oral agreement.

21

28. The learned counsel for the defendant/ respondent No.1 then relied upon

a decision of the Hon’ble Supreme Court of India in the case of Shivaji

Yallappa Patil Vs.Ranajeet Appasaheb Patil & Ors. (2018)16 SCC

725.Relying on paragraph 16 of the said report, the learned counsel for

defendant /respondent No.1 argued that since the plaintiff pleaded part

performance of the contract, such pleading attracts section 53A of the

Transfer of Property Act,1882 and in case of suit for specific

performance of contract based on part performance, the essential

ingredients and sine qua non for making out a claim under section 53A

of the Transfer of Property Act,1882 have been recorded in the said

paragraph of the said report. From the conditions sine qua non for

claiming part performance, the conditions laid down in the said report

have not been specified by the plaintiff/appellant.Although the plaintiff

pleaded part performance in the plaint, the conditions including the

written agreement as laid down in the said decision as sine qua non is

absent.

29. The learned counsel for the defendant/respondent No.1 then placed

reliance on a decision of the Hon’ble Supreme Court in the case of

Ambalal Sarabhai Enterprises Ltd. Vs.KS Infraspace LLP Ltd.& Anr.

(2020)5 SCC 410 and relying on paragraphs 5,7,15,17 and 21 of the said

report, the learned counsel argued that in commercial dealings with high

stake matters, delay is vital which took place in the instant case also. To

seek a temporary injunction in a suit for specific performance a strong

prima facie case on the basis of undisputed facts are required to be made

out which is also absent in the instant case. There was no mutuality

between the parties much less that they were ad idem as in the present

22

case and the existence of concluded contract between the parties is a

matter of trial, in the instant case, is required to be borne into at the time

of trial. In the cited decision, there were correspondences which formed

the contract whereas in the case at hand, only a letter recording reference

to oral agreement without any acceptance has been pleaded as document

towards oral agreement.

30. The learned counsel for the defendant/respondent No.1 then relied upon

a division bench decision of this court reported in the case of Ramen Roy

Vs.Samriddhi Real Estate Pvt. Ltd. & Ors. 2026 SCC Online Cal 7528

And relying on paragraph 53 of the said report, the learned counsel for

the defendant/ respondent No.1 argued that in case of commercial

matters, the ordinary civil court lack jurisdiction with regard to subject

matter and due to inherent lack of jurisdiction, the ordinary civil court

cannot take up the matter. In the instant case, the matter being

commercial in nature, the learned court being the ordinary civil court

could not have entertained the suit at all.

31. In reply, the learned senior counsel for the plaintiff/appellant referred to

para 29 of the injunction application and submitted that performance of

Bhumi Puja was shown as the cause of action and/or urgency to move

the application for injunction. Referring to the map appearing at page 89

of the IA/CAN 3 of 2021, the learned senior counsel submitted that it

would appear from the said map, that the plot of land belonging to the

defendant No.1 is landlocked. Only due to the transfer of land

measuring about 65.64 decimals in favour of defendant No.1 by the

plaintiff and in exchange, purchase of plot of same size of defendant

23

No.1 by the plaintiff, the land presently belonging to the defendant No.1

measuring about 151.96 decimals wherein the defendant No.1 has been

setting up a garment haat, would get access to the said plot. The

execution of the deeds on the same day shows mutuality between the

parties. From the said map,he further pointed out that ingress and egress

to and from NH 6 through a wide road and then leading to smaller road

on the left hand side gives access to the landlocked piece of land

belonging to defendant No.1 is the subject matter of suit and it is not the

narrow road only, as sought to be pointed out by the

defendant/respondent No.1. Referring to page 63 of IA/CAN 3 of 2021,

the learned senior counsel for the plaintiff/ appellant pointed out that the

deeds were executed as a matter of exchange so that the defendant No.1

can have access to his 151.96 decimals of landlocked plot wherein he has

been constructing the haat although construction of such hut is not on

record. However, at this juncture, it was pointed out that in the affidavit-

of-opposition to IA/CAN 3 of 2021, the defendant/respondent No.1 has

pleaded that construction of the haat is complete and the same is in

operation.

32. Referring to the deeds both dated 1

st

November 2015, the learned senior

counsel for the plaintiff /appellant then submitted that in the deed where

the defendant no.1 is vendor it is recorded that on the basis of ‘agreed

terms’ the deed has been executed whereas in the deed where the

plaintiff is vendor it is recorded that it is on the basis of “highest

available market price”. The learned senior counsel for the

plaintiff/appellant submitted that it is pertinent to note that in both the

24

deeds, the size of land had been the the same and the exchange of land

was made on the same date.

33. Referring to paragraphs 4(iv),(v) and (vi) of the plaint, the learned senior

counsel submitted that it was “agreed between the parties” as pleaded in

the plaint. He further referred to paragraph 14 of the plaint where it was

also mentioned that the parties ‘agreed’ with regard to completion of full

performance of the contract. He further submitted that for the plot of

land measuring about 65.64 decimals of land, another suit is pending

between the parties and an appeal arising out of injunction matter is also

pending. He further submitted that there was no novation of contract as

sought to be pleaded by defendant/respondent No.1 but all the deeds

were to be executed together as per the agreed terms.It is further

submitted that the development agreement was executed with a third

party and there was no requirement of mentioning of any oral agreement

and it was kept open.

34. Distinguishing the judgments as cited by the learned counsel for the

defendant/respondent No.1, the learned counsel for the plaintiff/appellant

submitted that in Brij Mohan(Supra), the facts and circumstances of the

case was different as the matter was decided after a complete trial which

is not the case at hand as the matter arises out of the order passed at the

stage of grant of injunction. With regard to Shivaji Yallappa

Patil(Supra), the condition laid down by the Hon’ble Supreme Court

included element of possession which is absent in the present case, and

as such, Section 53A of 1882 Act cannot come into play in the instant

case. With regard to Ambalal Sarabhai(Supra), he submitted that the case

25

is factually different from the present one and exchange of emails were

considered to be the contract which is not the case at present. The said

case was also decided after a complete trial which is not the case at

present. With regard to Ramen Roy(Supra), the learned senior counsel

for the plaintiff /appellant submitted that the present suit is not a

commercial suit and it is with regard to specific performance for

purchase of ‘Sali’ land. The deeds do not refer to any industrial park. It

is also not related to any development agreement and the suit is for

decree of specific performance simpliciter. Therefore,the ratio of the said

decision is not applicable in the present case.

35. In the circumstances, the learned senior counsel for the

plaintiff/appellant prayed for setting aside of the judgment and order in

impugned and prayed for allowing the appeal by passing appropriate

order granting ingress and egress to and from the said property by the

plaintiff/appellant. The learned counsel for the defendant/respondent

No.1 submitted that the order impugned passed by the Learned Trial

Judge was justified and he prayed for dismissal of the instant appeal.

36. Heard the learned counsel for the respective parties at length and

considered the materials on record. The preliminary question comes to

fore for decision is that whether the suit was a commercial suit or not. In

case it is found that the suit is not a commercial suit, then comes the next

question as to whether the Learned Trial Judge was justified in refusing

injunction in favour of the plaintiff/appellant as prayed for.

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37. In this context, it is profitable to refer to Section 2(c) of the Commercial

Court Act,2015. The said statutory provision defined “commercial

dispute” which are as follows:

“(c) “commercial dispute” means a dispute arising out of—

(i) ordinary transactions of merchants, bankers, financiers and traders

such as those relating to mercantile documents, including enforcement

and interpretation of such documents;

(ii) export or import of merchandise or services;

(iii) issues relating to admiralty and maritime law;

(iv) transactions relating to aircraft, aircraft engines, aircraft equipment

and helicopters, including sales, leasing and financing of the same;

(v) carriage of goods;

(vi) construction and infrastructure contracts, including tenders;

(vii) agreements relating to immovable property used exclusively in trade

or commerce;

(viii) franchising agreements;

(ix) distribution and licensing agreements;

(x) management and consultancy agreements;

(xi) joint venture agreements;

(xii) shareholders agreements;

(xiii) subscription and investment agreements pertaining to the services

industry including outsourcing services and financial services;

(xiv) mercantile agency and mercantile usage;

27

(xv) partnership agreements;

(xvi) technology development agreements;

(xvii) intellectual property rights relating to registered and unregistered

trademarks, copyright, patent, design, domain names, geographical

indications and semiconductor integrated circuits;

(xviii) agreements for sale of goods or provision of services;

(xix) exploitation of oil and gas reserves or other natural resources

including electromagnetic spectrum;

(xx) insurance and re-insurance;

(xxi) contracts of agency relating to any of the above; and

(xxii) such other commercial disputes as may be notified by the Central

Government.

Explanation.—A commercial dispute shall not cease to be a

commercial dispute merely because—

(a) it also involves action for recovery of immovable property or for

realisation of monies out of immovable property given as security or

involves any other relief pertaining to immovable property;

(b) one of the contracting parties is the State or any of its agencies or

instrumentalities, or a private body carrying out public functions;”

The prayers of the plaint read as follows:

(a) Leave under Order II Rule 2 of the Code of Civil Procedure,

1908;

28

(b) Decree for specific performance for transfer of the suit

property as described in the Schedule hereunder with a direction

to the defendant No.1 to execute and register the sale deed in

favour of the plaintiff on accepting the agreed consideration being

a sum of Rs.3,36,88,544/-;

(c ) A Decree directing the defendant No.1 to execute and register

the sale deed in respect of the suit property within a time as to this

Learned Court may deem fit and proper, failing which the sale

deed be executed and registered according to the provisions of

Order XXIX Rule 34(5) and Rule 6(a) of the Code of Civil

Procedure, 1908;

(d) Alternatively, a decree for damages for Rs.127 crores as

pleaded in paragraph 20 hereof;

(e ) In the further alternative, an enquiry be caused in terms of

Order XX Rule 12 of the Code of Civil Procedure, 1908 to

ascertain the actual amount of damages sustained by the plaintiff

and a decree be passed accordingly;

(f) A decree for permanent injunction restraining the defendant

No.1 from changing the nature and character of the suit property

till the disposal of the instant suit;

29

(g) A Decree of permanent injunction restraining the defendant

No.1 and 2 and/or their men, agents or servants from changing

the nature and character of the suit property, making any

construction thereon and restricting free ingress and egress of the

plaintiff from the common entrance on National Highway-6 to the

suit property as also the plots of land owned by the plaintiff;

(h) A Decree of permanent injunction restraining the defendant

No.1 and 2 and/or their men, agents or servants from creating any

nuisance on the common passage leading to the suit property and

the plots of land of the plaintiff and from parking vehicles on such

passage and creating any obstruction in any manner whatsoever

on the common passage leading to the suit property and the plots

of land of the plaintiff;

(i) A decree for permanent injunction restraining the defendant

nos.1 and 2 from alienating, transferring, encumbering and/or

creating third party rights in respect of the suit property;

(j) Receiver;

(k) Injunction;

(l)(1) Attachment;

(m) Costs;

30

(n) Further and other reliefs;

On a conjoint reading of the aforesaid provision and the

prayers of the plaint, it appears that the plaint and the injunction

application do not fulfil any of the conditions laid down in the

aforesaid definitions contained in Section 2(c)of the Commercial

Courts Act,2015. On a careful reading of the plaint and the

injunction application, it further appears that the plaint contains

prayers relating to decree for specific performance to transfer the

suit property described in the schedule alongwith ancillary reliefs.

The case of the plaintiff further disclosed that the development

agreement has been entered by and between the plaintiff with a

third party, a developer, to develop the property purchased by the

plaintiff and the same is not related to the defendant No.1. Thus, at

the relevant juncture, the subject property of the agreement in

question was not used exclusively in trade or commerce.

Therefore, the suit is not a commercial suit and a suit for specific

performance to transfer the suit property.

38. As such, the present suit is very well maintainable in the ordinary Civil

Court and not before the Commercial Court. As such, the ratio decidendi

of Ramen Roy(Supra) would not be applicable in the facts of the present

case.

39. Since the suit is not a commercial suit and is maintainable in ordinary

civil court, now the second question is required to be gone into whether

the Learned Trial Judge was justified in refusing to grant injunction ion

favour of the plaintiff.

31

40. On a careful reading of the judgment and order impugned dated October

3,2019 passed by the Learned Trial Judge it appears that the Learned

Trial Judge recorded that it is undisputed that the plaintiff is willing to

purchase the suit property and further, the defendant had orally agreed to

sell the said property. Learned Trial Judge further recorded that the suit

property is in possession of the defendant No.1. However, Learned Trial

Judge further recorded that the common passage is not the suit property.

Learned Trial Judge recorded the finding that he did not find any

payment of stamp duty. The Learned Trial Judge further recorded that he

did not find any documentary evidence regarding existence of oral

agreement. The Learned Trial Judge further recorded that he found no

date or place of oral agreement in the letter dated September 23,2016.

The Learned Trial Judge raised question as to why the developer did not

include the defendant No.1 in the development agreement. The Learned

Trial Judge further found that since the plaintiff has prayed for

alternative relief of compensation or damages of Rs.127 Crore, the

plaintiff is not entitled to get an order of injunction as prayed for.

Therefore, the Learned Trial Judge held that none of the three conditions

for grant of injunction, viz., (i)Prima facie case; (ii) Balance of

convenience; and(iii) irreparable loss and injury are in favour of the

plaintiff are in favour of the plaintiff and rejected the payer for

temporary injunction on contest.

41. It is apparent from the text of the judgment and order impugned that the

Learned Trial Judge found that the case of the plaintiff is that the

plaintiff is willing to purchase the suit property and further, the

32

defendant had orally agreed to sell the said property. In such a case, the

plaintiff had very well made out a prima facie case to go for trial and was

very well entitled to an order of injunction. From the conduct of the

parties, as evident from the deeds of conveyances executed between

them, it is clear that the parties were at consensus ad idem regarding the

transfer of plots of land by way of exchange.

42. The findings of the Learned Trial Judge regarding the common passage

being outside the suit property is contrary to the material on record in as

much as the same is, as being evident from the plaint and the schedule

appended to it, within the schedule of property in suit.

43. Further, the finding of the Learned Trial Judge regarding applicability of

the Stamp Act in case of oral agreement is patently absurd and beyond

comprehension of a person of ordinary prudence. We fail to understand

how an oral agreement could be stamped and in what manner. It was also

nobody’s case that the developer should include the defendant No.1 in

the development agreement. The existence of the oral agreement has

been disbelieved merely because there is no date and place mentioned

regarding the same in the letter dated September 23,2016 although such

question requires trial on evidence. The deeds of conveyances

constituted a triable issue for the purpose of grant of injunction and there

was no contemporaneous objection to the letters of the plaintiff by the

defendant No.1.The Learned Trial Judge could not appreciate the real

meaning and purpose of Section 10 of the Indian Contract Act,1872 and

the judgment of Aloka Bose(Supra) in its true perspective. Oral

agreement is not barred under Section 10 of the Indian Contract

33

Act,1872 and the suit for specific performance in respect of oral

agreement is not barred. Existence of oral agreement is apparent from

the conduct of the parties as has been found by the Learned Trial Judge

himself in the judgment and order impugned.

44. Lastly, the finding of the Learned Trial Judge regarding the alternative

prayer for damages for refusing the prayer for temporary injunction is

misdirected, perverse and contrary to law. An alternative prayer cannot

be a bar to seek temporary injunction.

45. We respectfully agree with the ratio decidendi of the decisions cited

before us. However, the decision in Brij Mohan(Supra) was delivered

after a complete trial and such is not the case here as it was at the stage

of temporary injunction. Therefore, the said decision is distinguishable in

the fact situation. In the decision of Shivaji Yallappa Patil(Supra), the

conditions sine qua non for part performance included the element of

possession which is not the case here and as such, the same differs on

facts. The case of Ambala Sarabhai if factually different as in the said

cited decision, exchange of emails were considered as concluded

contract and the same is not the case at hand. Lastly, the case of Ramen

Roy(Supra) would not be applicable in the present case as the present

case is maintainable before the ordinary civil court and it is not a

commercial suit, as we have already held in the earlier paragraphs of this

judgment.

46. We find that by order dated April 7,2026, a coordinate Bench presided

over by one of us (Sabyasachi Bhattacharyya,J.) considered the matter is

34

detail and admitted the appeal. By the said order, the respondents No.1

and 2 and/or their men and agents were restrained by an order of

injunction from making any construction on the common passage as

described in paragraph 3 of the plaint leading to the subject property

from tat date till the disposal of the present appeal. The respondents No.1

and 2 and/or their men and agents were also restrained from creating any

hindrance to the ingress and egress of the plaintiff/appellant in respect of

the suit property over the common passage till disposal of the injunction

application.

47. In the circumstances and in the light of the discussions made above, the

appeal being FMA 916 of 2019 is allowed on contest, thereby setting

aside the judgment and order impugned dated October 3,2019 passed by

Learned Civil Judge (Senior Division)1

st

Court, Howrah. The

Defendants/respondents No.1 and 2 are hereby restrained from changing

the nature and character of the suit property and making any further

construction thereon and from alienating, transferring, encumbering

and/or creating any third party interest in the suit property and from

restricting free ingress and egress through the common passage from

National Highway 6 to the suit property as also the plots of land owned

by the plaintiff and from creating any nuisance and /or obstruction and

/or parking vehicles on the common passage leading to the suit property

till the disposal of the suit.

48. The interim order granted on April 7,2026 is confirmed and modified to

the extent as indicated above.

35

49. Since the suit is of 2019, we request the learned Trial Court to hear and

dispose of the suit expeditiously, preferably within a period of one year

from the date of this judgment without granting unnecessary

adjournment to any of the parties.

50. CAN 2 of 2020, CAN 3 of 2021 and CAN 4 of 2026 are, accordingly,

disposed of.

51. No order as to costs.

52. Urgent Photostat certified copy of this order/judgment if applied for, be

supplied to the parties upon compliance with all requisite formalities.

I Agree. (SANDIP KUMAR DE, J.)

(SABYASACHI BHATTACHARYYA, J.)