Sayandip Dhar vs Himesh Chandra & Ors

Mr. Saptangsu Basu, learned senior Advocate appears on behalf of the appellant.

This appeal is directed against the order no.2 dated 19th July, 2021 passed by the Learned 4th Civil Judge (Senior Division) at Alipore in Title Suit No.604 of 2021. The learned Trial Court by the impugned order had refused to grant the prayer for injunction primarily on the ground that the appellant / plaintiff cannot seek for an injunction based on an unregistered agreement. On hearing the learned senior counsel appearing for the appellant, we find that the subject property is a flat which is promoted by the third respondent / defendant and the first and the second defendants had been allotted the subject flat as they intended to purchase the same. The first and second defendant in turn entered into an agreement with the appellant /plaintiff for sale of the said property and it appears that consideration has passed on to the respondent nos.1 and 2.

The appellant's case before the Trial Court as well as before us is that the agreement between the respondent nos.1 and 2 and the third respondent provides for transfer of allotment in terms of the general terms and conditions for the apartments in "URBANA" being Annexure "E" to the application for stay.

Clause 9 states that the company may allow the transfer of the Allotments, but not before 12 (twelve) months from the date of the Allotment Letter, upon payment of such amount and observance of such rules as may be framed by the company, therefore, from time to time provided, however, that the Company will not allow the transfer of the Allotment without payment to the Company the sums mentioned in Clause 10. Such transfer shall be subject to all the terms and conditions of the Apartments GTC, the Allotment letter, the Leases and the transferee of the allotment agreeing to abide by and complying with all of these.

Learned senior counsel of the appellant has drawn our attention to the email sent by the first respondent to the third respondent dated 24th March, 2021 enclosing the signed agreement for sale cum transfer entered into between the appellant and the respondent nos.1 and 2 and requested the third respondent to do the needful.

In such circumstances, the larger issue would be as to whether merely because the suit has been filed based upon an unregistered agreement whether the Court could have denied the grant of interim relief more particularly when the learned Trial Court has specifically recorded in its order that the appellant / plaintiff has been put in possession of the flat under an agreement dated 18th February, 2021.

Thus, we have satisfied that the appellant has made out a prima facie case for entertaining the appeal and accordingly, the appeal is admitted and the status quo with regard to the possession be maintained until further orders.

The appellant is directed to put in the requisites for effecting service of notice of this appeal on the respondents by registered post with acknowledgement due.

Let such requisites, that is, postal cost with correct postal address of the respondent and written up notice form, be put in by one week from date.

If the requisites, as aforesaid, are put in, the office is directed to issue notice of appeal on the respondent immediately.

In default, put up for "Final Orders".