Asesh Sanyal & Ors vs Ram Gopal Murarka & Anr

This appeal is directed against an order dated 28th August, 2019 passed by the learned Judge, Commercial Court at Asansol in connection with an application under Section 9 of the Arbitration and Conciliation Act, 1996.

The learned Trial Judge refused to pass any ad-interim order of injunction and directed the matter to appear on 24th September, 2019 within which time the respondents were to give reply to their show cause. The learned Trial Judge appears to have refused to pass an ad-interim order of injunction in respect of undivided 2/7th share of the entire property on the ground that such prayer is not possible without making all other legal heirs party to the proceeding.

There are two agreements pleaded by the appellant. The appellant stated that there was one oral agreement which had preceded an agreement in writing which apparently contains the signature of the opposite parties. Admittedly, the other co-sharers of the property have not signed the agreement for sale. The agreement for sale contains the signature of Ramgopal Murarka and Om Prakash Murarka only. The agreement refers that the second parties had agreed to transfer and bequeath the property as described in the Schedule to the first party upon payment of remaining consideration money at the rate of Rs.2.50 lakhs per cottah. In so far as the said agreement is considered, there cannot be any doubt at this stage that Ramgopal and Om Prakash had agreed to execute the said agreement and in so far as their interest in the property is concerned, they were willing to transfer in favour of the appellant upon payment of consideration money of Rs.2.50 lakhs per cottah. However, the said amount is not to be paid to the individual co-sharer but the co-sharers as a whole. Unless the said document signed by the parties, title to the property would not fully pass onto the appellant.

However, to the extent of the shares that the respondent Nos.2 and 3 have in the property, in our view, subject to depositing a sum of Rs.70 lakhs with the Commercial Court, Asansol within a period of one week from date, the appellant shall be entitled to an order of injunction in respect of the shares of the respondents. However, for a period of one week from date, there shall be an order of injunction restraining the respondent Nos.2 and 3 from alienating and/or encumbering and/or transferring their shares in the property. In the event, the said amount of Rs.70 lakhs is deposited in terms of this order within a week from date, the said order of injunction shall continue and shall abide by the result of the injunction application filed by the appellant and now pending before the learned Judge, Commercial Court, Asansol.

We request the learned Trial Judge to dispose of the application as expeditiously as possible in accordance with law uninfluenced by any observation made by us in this order.

The appeal and the application are disposed of.

This order is passed subject to the undertaking given by the advocate-on-record of the appellant that the deficit court-fees shall be paid in course of the day.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.