Shampa Sarkar, J. - (1.) The revisional application arises out of an order dated September 30, 2019 passed by the learned Judge, Commercial Court at Alipore in Title Suit No.17 of 2019. By the order impugned, the learned Judge rejected the application under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure filed by the defendant/petitioner. The opposite party No.1 who carries on business as a promoter and developer of multistoried building complexes, instituted the suit in respect of a portion of ground floor of the building at the premises known as Kohli Mansion, 54, Sayed Amir Ali Avenue, Ballygung, Kolkata-700019.
(2.) The petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure and prayed for rejection of the plaint on the following grounds:- (a) The plaint did not disclose any cause of action against the defendants. (b) The entire cause of action in the suit was against one Jagjit Singh Kohli who was the owner of the property and land lord of the petitioner but was not impleaded as a party in the suit. (c) The opposite party No.1 was not the land lord or owner of the area let out to the petitioner/company, and as such the suit for eviction of a trespasser was not maintainable at the instance of the developer/promoter. (d) The remedy of the opposite party No.1 was in filing a suit for redemption and foreclosure of mortgage as the entire cause of action as stated in the plaint, arose out of alleged failure of Jagjit Singh Kohli to repay the amount given by the opposite party No.1 to Kohli to buy out the shares of his brother in the suit property. That Kohli created an equitable mortgage in respect of the property. As such, on failure to pay the money, the opposite party No.1 was entitled to pray for foreclosure of the mortgage which was created by Kohli, by deposit of the title deeds of the said property. (e) That plaint further proceeded on the basis that the area in respect of which the petitioner was inducted as a tenant was originally allotted to the opposite party No.1, as developer's share, subsequently the ground floor was allotted as the owner's share subject to payment of some amount by Kohli, which Kohli failed to pay and as such the petitioner being the tenant of Kohli was a trespasser and in unlawful occupation of the property as Kohli did not have any right to own and possess the said portion, that is, the suit property, not having paid the consideration amount.
(3.) The learned Judge upon consideration of the plaint as a whole observed that the case of the plaintiff was that Kohli took possession of his allocated portion without making payment of Rs.3.25 crores and Rs.21.66 lakhs to be paid to the plaintiff/opposite party No.1, there being an equitable mortgage in respect of the said property. Kohli was not entitled to enter into and take possession of the said premises. That Kohli illegally and unauthorizedly converted four covered car parking space on the ground floor into a show room and constructed a large show room comprising of an area of approximately about 2600 Square Ft. and inducted the petitioner as a tenant of the said property without paying Rs.21.66 lakhs as consideration payable under an agreement.;