Bowreah Jute Mills Private Limited Vs. Hooghly Mills Company Limited and Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/109077
CourtKolkata High Court
Decided OnDec-20-2016
JudgeShivakant Prasad
AppellantBowreah Jute Mills Private Limited
RespondentHooghly Mills Company Limited and Ors.
Excerpt:
1 order sheet in the high court at calcutta ordinary original civil jurisdiction original side ga no.862 of 2014 cs no.168 of 2009 bowreah jute mills private limited versus hooghly mills company limited & ors.before: the hon’ble justice shivakant prasad date : 20th december, 2016 mr.dhruba ghosh, sr.advocate mr.sanjoy bose, advocate ms.pritha bhowmick, advocate mr.aniruddha sinha, advocate …….for plaintiff. mr.sourabh mazumdar, advocate ms.vineeta meharia, advocate ...…for defendant no.1. mr.ravi kapur, advocate mr.p.k. jhunjhunwala, advocate mr.s.rudra, advocate ...…for defendant no.4. the court: plaintiff had prayed for a decree for specific performance of the agreement dated january 12, 2009 by directing the defendant no.1 to execute and register a deed of conveyance in favour of the plaintiff with further direction upon the defendant no.2 and/or the defendant no.4 to act in terms of the agreement dated 24th march, 1988 and to execute a deed of conveyance thereof; and also prayed for a decree for rs.1,48,89,798.06 together with interest thereon @ 18% pa till the date of payment as on 31st may, 2009 as against the defendant no.4. declaration that the plaintiff is entitled to uninterrupted supply of electricity at the said jute mill till such time the plaintiff obtains independent supply from the defendant no.3. perpetual injunction do issue restraining the defendant no.4 from disconnecting the electric supply to the plaintiff’s jute mill; thus, it appears that the plaintiff sought for a decree for a specific performance of agreement dated january 12, 2009 by directing the defendant no.1 to execute and register the deed of conveyance in favour of the plaintiff or its nominee or nominees and also direction to issue upon the defendant no.2 and/or the defendant no.4 to act in terms of the agreement dated 24th march, 1988 and execute the conveyance thereof and in alternative plaintiff sought for a decree that on the failure of the defendant no.1 to execute the deed of conveyance in terms of the agreement dated january 12, 2009, the registrar, original side or a special officer to be appointed be directed to execute and register such deed of conveyance in favour of the plaintiff. a decree for rs.1,48,89,798.06 as on 31st may, 2009 as against the defendant no.4 and interest thereon calculated @ 18% pa till the date of payment and also sought for a declaration that the plaintiff is entitled to uninterrupted supply of electricity at the said jute mill till such time the plaintiff obtains independent supply from the defendant no.3 and for a perpetual injunction restraining the defendant no.4 from disconnecting the electric supply to the plaintiff’s jute mill. mr.dhruba ghosh, learned advocate for the plaintiff submitted that the suit has been filed against two sets of defendants praying for separate reliefs; firstly, against the defendant nos.1 and 2 and or defendant no.4 for a specific performance of two several agreements for sale of lands on which bowreah jute mills previously known as “north mill” is situated and, further a money decree in the sum of rs.1,48,89,798.06 paise has been claimed against the defendant no.4 by way of refund of electricity charges wrongfully realised from the plaintiff by the said defendant no.4. a prayer was also made against defendant no.4 for a declaration that the plaintiff was entitled to uninterrupted supply of electricity for the said jute mill till such time the plaintiff of plaint obtains supply from the defendant no.3 and for a perpetual injunction restraining the defendant no.4 from disconnecting the electric supply to the plaintiff’s jute mill (north mill) since the supply of electricity was rooted through a meter installed at the nearby jute mill, new mill, which in terms of a demerger order dated 31st may, 1993 passed on the application of the defendant no.2 and the defendant no.4, came to be owned by the latter. it is submitted that by an order dated 15th july, 2009 the hon’ble appeal court by an interim order restrained the defendant no.4 from disconnecting of electricity to the north mill of the plaintiff for a limited period of a month without taking into consideration the merits and demerits of the claims put forward by the parties against each other, either in this proceedings or in the civil suit. plaintiff applied to cesc ltd.defendant no.3 for a separate connection of electricity to its mill, namely north mill, and has now received a separate electricity connection with a new meter. so, decree in terms of prayer (e) and (f) are no longer required, ergo, amendment has been sought for to delete the prayers (e) and (f) from the plaint. in support of application for amendment mr.ghosh has relied on a decision in case of haridas aildas thadani and others versus godrej rustom kermani reported in (1984) 1 supreme court cases 668 wherein it has been held that the court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. reference is also made to a decision in case of rameshkumar agarwal versus rajmala exports private limited and others reported in (2012) 5 supreme court cases 337 wherein it has been held that amendment seeking to introduce facts/evidence in support of contention already pleaded, is permissible. in the cited decision the suit was filed for specific performance of agreement of sale of immovable property, pleading that entire consideration under the agreement had been paid. amendment application filed immediately after filing of suit and before commencement of trial seeking to explain the same by giving details of how payment was made. this decision is undoubtedly distinguishable from the instant facts of the case. now let me see whether injustice would be caused to the defendant no.4 by way of amendment. admittedly, the plaintiff prayer is for a decree for specific performance of the two agreements dated 24th march, 1988 and 12th january, 2009, the firs.agreement was made between the defendant no.2 and the defendant no.1, while the agreement dated 12th january, 2009 was made between the defendant no.1 and the plaintiff. true it is, in none of the said agreements, for which specific performance has been sought, the defendant no.4 is a party but inadvertently, in prayer (b) of the plaint, a direction has been sought upon the defendant no.4 in the alternative, to act in terms of the agreement dated 24th march, 1988 and to execute the conveyance thereof etc., amendment has been made to delete the defendant no.4 from prayer (b).mr.ghosh also submitted that in cours.of hearing of the application for judgment upon admission being ga no.2039 of 2013 the defendant no.1 and 2 have confirmed the admission but the defendant no.4 is wrongfully purporting to deny and dispute that only new mill was transferred to them before the hon’ble justice soumen sen. in this context, mr.ravi kapur, learned advocate for the defendant no.4 gloster limited has submitted that an application being ga no.1451 of 2013 on 10th may, 2013 was filed for framing preliminary issues but by an order dated 21st june, 2013, the issue suggested by defendant no.4 as preliminary issues were directed to be taken up at the trial of the suit and the suit was fixed for settlement of the issues on 8th july, 2013 and for examination of the plaintiff’s witness but at the time of hearing on 11th july, 2013, the plaintiff filed ga no.2039 of 2013 praying for a decree by way of judgment upon admission by defendant no.1 and 2 who are hand in glove with the plaintiff. mr.kapur further submitted that legal title in the north mill is vested in the defendant no.4 whereas the plaintiff is claiming a right over the said north mill by virtue of a purported agreement dated 12th january, 2009 made between the defendant no.1, the hooghly mills company limited and the plaintiff, which agreement is not sufficiently stamped and is an unregistered document which is inadmissible in evidence and is liable to be impounded. now, the plaintiff in an at
Judgment:

1 ORDER

SHEET IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL SIDE GA No.862 of 2014 CS No.168 of 2009 Bowreah Jute Mills Private Limited Versus Hooghly Mills Company Limited & ORS.BEFORE: The Hon’ble Justice Shivakant Prasad Date : 20th December, 2016 Mr.Dhruba Ghosh, Sr.Advocate Mr.Sanjoy Bose, Advocate Ms.Pritha Bhowmick, Advocate Mr.Aniruddha Sinha, Advocate …….for plaintiff.

Mr.Sourabh Mazumdar, Advocate Ms.Vineeta Meharia, Advocate ...…for defendant No.1.

Mr.Ravi Kapur, Advocate Mr.P.K.

Jhunjhunwala, Advocate Mr.S.Rudra, Advocate ...…for defendant No.4.

The Court: Plaintiff had prayed for a decree for specific performance of the agreement dated January 12, 2009 by directing the defendant No.1 to execute and register a deed of conveyance in favour of the plaintiff with further direction upon the defendant No.2 and/or the defendant No.4 to act in terms of the agreement dated 24th March, 1988 and to execute a deed of conveyance thereof; and also prayed for a decree for Rs.1,48,89,798.06 together with interest thereon @ 18% PA till the date of payment as on 31st May, 2009 as against the defendant No.4.

Declaration that the plaintiff is entitled to uninterrupted supply of electricity at the said jute mill till such time the plaintiff obtains independent supply from the defendant no.3.

Perpetual injunction do issue restraining the defendant No.4 from disconnecting the electric supply to the plaintiff’s jute mill; Thus, it appears that the plaintiff sought for a decree for a specific performance of agreement dated January 12, 2009 by directing the defendant No.1 to execute and register the deed of conveyance in favour of the plaintiff or its nominee or nominees and also Direction to issue upon the defendant No.2 and/or the defendant No.4 to act in terms of the agreement dated 24th March, 1988 and execute the conveyance thereof and in alternative plaintiff sought for a decree that on the failure of the defendant No.1 to execute the deed of conveyance in terms of the agreement dated January 12, 2009, the Registrar, Original Side or a Special Officer to be appointed be directed to execute and register such deed of conveyance in favour of the plaintiff.

A decree for Rs.1,48,89,798.06 as on 31st May, 2009 as against the defendant No.4 and interest thereon calculated @ 18% PA till the date of payment and also sought for a declaration that the plaintiff is entitled to uninterrupted supply of electricity at the said jute mill till such time the plaintiff obtains independent supply from the defendant no.3 and for a perpetual injunction restraining the defendant No.4 from disconnecting the electric supply to the plaintiff’s jute mill.

Mr.Dhruba Ghosh, learned Advocate for the plaintiff submitted that the suit has been filed against two sets of defendants praying for separate reliefs; firstly, against the defendant Nos.1 and 2 and or defendant No.4 for a specific performance of two several agreements for sale of lands on which Bowreah Jute Mills previously known as “North Mill” is situated and, further a money decree in the sum of Rs.1,48,89,798.06 paise has been claimed against the defendant No.4 by way of refund of electricity charges wrongfully realised from the plaintiff by the said defendant No.4.

A prayer was also made against defendant No.4 for a declaration that the plaintiff was entitled to uninterrupted supply of electricity for the said jute mill till such time the plaintiff of plaint obtains supply from the defendant No.3 and for a perpetual injunction restraining the defendant No.4 from disconnecting the electric supply to the plaintiff’s jute mill (North Mill) since the supply of electricity was rooted through a meter installed at the nearby jute mill, New Mill, which in terms of a demerger order dated 31st May, 1993 passed on the application of the defendant No.2 and the defendant No.4, came to be owned by the latter.

It is submitted that by an order dated 15th July, 2009 the Hon’ble Appeal Court by an interim order restrained the defendant No.4 from disconnecting of electricity to the North Mill of the plaintiff for a limited period of a month without taking into consideration the merits and demerits of the claims put forward by the parties against each other, either in this proceedings or in the civil suit.

Plaintiff applied to CESC LTD.defendant No.3 for a separate connection of electricity to its Mill, namely North Mill, and has now received a separate electricity connection with a new meter.

So, decree in terms of prayer (e) and (f) are no longer required, ergo, amendment has been sought for to delete the prayers (e) and (f) from the plaint.

In support of application for amendment Mr.Ghosh has relied on a decision in case of Haridas Aildas Thadani and others versus Godrej Rustom Kermani reported in (1984) 1 Supreme Court Cases 668 wherein it has been held that the court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side.

Reference is also made to a decision in case of Rameshkumar Agarwal versus Rajmala Exports Private Limited and others reported in (2012) 5 Supreme Court Cases 337 wherein it has been held that amendment seeking to introduce facts/evidence in support of contention already pleaded, is permissible.

In the cited decision the suit was filed for specific performance of agreement of sale of immovable property, pleading that entire consideration under the agreement had been paid.

Amendment application filed immediately after filing of suit and before commencement of trial seeking to explain the same by giving details of how payment was made.

This decision is undoubtedly distinguishable from the instant facts of the case.

Now let me see whether injustice would be caused to the defendant No.4 by way of amendment.

Admittedly, the plaintiff prayer is for a decree for specific performance of the two agreements dated 24th March, 1988 and 12th January, 2009, the fiRs.agreement was made between the defendant No.2 and the defendant No.1, while the agreement dated 12th January, 2009 was made between the defendant No.1 and the plaintiff.

True it is, in none of the said agreements, for which specific performance has been sought, the defendant No.4 is a party but inadvertently, in prayer (b) of the plaint, a direction has been sought upon the defendant No.4 in the alternative, to act in terms of the agreement dated 24th March, 1988 and to execute the conveyance thereof etc., amendment has been made to delete the defendant No.4 from prayer (b).Mr.Ghosh also submitted that in couRs.of hearing of the application for judgment upon admission being GA No.2039 of 2013 the defendant No.1 and 2 have confirmed the admission but the defendant No.4 is wrongfully purporting to deny and dispute that only New Mill was transferred to them before the Hon’ble Justice Soumen Sen.

In this context, Mr.Ravi Kapur, learned Advocate for the defendant No.4 Gloster Limited has submitted that an application being GA No.1451 of 2013 on 10th May, 2013 was filed for framing preliminary issues but by an order dated 21st June, 2013, the issue suggested by defendant No.4 as preliminary issues were directed to be taken up at the trial of the suit and the suit was fixed for settlement of the issues on 8th July, 2013 and for examination of the plaintiff’s witness but at the time of hearing on 11th July, 2013, the plaintiff filed GA No.2039 of 2013 praying for a decree by way of judgment upon admission by defendant No.1 and 2 who are hand in glove with the plaintiff.

Mr.Kapur further submitted that legal title in the North Mill is vested in the defendant No.4 whereas the plaintiff is claiming a right over the said North Mill by virtue of a purported agreement dated 12th January, 2009 made between the defendant No.1, the Hooghly Mills Company Limited and the plaintiff, which agreement is not sufficiently stamped and is an unregistered document which is inadmissible in evidence and is liable to be impounded.

Now, the plaintiff in an at