Decided on October 30,2019

Chief Executive Officer, Kolkata Metropolitan Development Authority Appellant
Pragati 47 Development Limited Respondents


Abhijit Gangopadhyay, Harish Tandon,JJ. - (1.) This appeal is directed against an order dated June 20, 2019 passed by learned Civil Judge (Senior Division), 4th Court, Alipore in Title Suit No. 720 of 2011 by which an application for injunction was allowed directing the parties to maintain status quo over the suit property till the disposal of the suit.
(2.) The facts which emerge from the instant case are that the defendants/appellants being a body corporate constituted under the West Bengal Town and Country (Planning and Development), Act, 1979 is responsible for formulation and execution of plans for the development of Kolkata Metropolitan Area with an intent to cater world class service apartment and allotted the land measuring 70.74 cottahs comprised in plot No. 1- 18A under East Kolkata Area Development Project to the plaintiff at a consideration of Rs. 3,92,61,000/-. The memo dated March 1, 2004 was issued to the plaintiff/ respondent and as per the clauses incorporated therein, the earnest money of Rs. 10,00,000/- was paid and subsequently, the entire consideration as indicated in the said memo was also deposited with the appellants. It is stated by the plaintiff/respondent that in part performance of the said agreement, the possession of the said plot of land was given upon execution of a deed of license dated April 26, 2006. There appears some disputes whether the said deed of license was required to be duly registered or not but the fact remains that it was so executed and the payment was made thereunder. Subsequently, the plaintiff applied for a loan of Rs. 15 crores with the HUDCO, i.e., Housing and Urban Development Corporation Limited and the HUDCO informed the appellants that the loan has been sanctioned for construction of the service apartment and allied facilities on April 20, 2006. It is stated that at all material time, the plaintiff was ready and willing to perform its part of the contract and in fact invested sizeable amounts of money for construction of boundary wall, security rooms and piling work and the aforesaid fact was duly communicated to the appellants on March 1, 2007.
(3.) By a letter dated 21st February, 2011, the appellants rescinded the agreement solely on the ground that the plaintiff/respondent failed and neglected to perform his part of an obligation under the said agreement, more particularly, not completing the work within the stipulated period. In other words, it is a specific stand of the defendants/appellants that the time was an essence of the contract and the moment the plaintiff/respondent signified his intention to commence the construction work on September, 2008, it, ipso facto, leads to inference that he was contemplating to make construction beyond the statutory period. Precisely, the recession of an agreement was founded on specific stand of the appellants that the time was the essence of the contract/agreement and the plaintiff/respondent having failed to complete the project within the stipulated period, the rescission is automatic.;

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