- (1.) TWO applications being GA no. 2238 of 2007 and 2239 of 2007 are assigned to me. One application being GA no. 2238 of 2007 is filed by one Santosh Kr. Agarwal, added defendant no 2 in the original suit being C.S No. 486 of 1991 seeking for following reliefs : (a) Leave, if necessary, to make the instant application; (b) An order of injunction be passed restraining the owners of the said tea estate from executing a conveyance in favour of AGR Plantations (P) Ltd; (c) An order of injunction be passed restraining each of the parties from alienating, encumbering and/or alienating the said tea estate in any manner whosoever; (d) A fit and proper person be appointed as Receiver to visit the said estate and make any inventory of the movabe assets, including tea leaves plant and machinery lying thereat and also file a report before this Honble Court after seeing and noting the persons in possession in the said tea estate; (e) An order be passed directing the parties to hand over possession and management of the said tea estate to the petitioner; (f) The time for making payment under the decree be extended and the petitioner be given liberty to deposit the sum of Rs. 52 lakhs so that conveyance can be executed in his favour and pending the same the petitioner be put into immediate management and possession of the said tea estate on such terms the Honble Court may deem fit and proper; (g) Ad-interim orders in terms of prayers above; (h) Suitable order as to cost of and the incidental instant application be passed (i) Such other order or orders be made and/or directions be given as would afford complete relief to your petitioner. Other application being GA 2239 of 2007 is filed by one Prabir Roy Chowdhury being the defendant no. 1 in the original suit for following reliefs : (a) Decree dated 5th April 2000 passed in CS NO. 486 of 1991 be set aside; (b) Decree dated 5th April, 2000 passed in CS No. 486 of 1991 be declared null and void and in executable; (c) The Original Agreement for sale dated 12th March, 1998 and the terms of settlement on the basis whereof the said decree was passed be rescinded and the added defendant be directed to pay all rents, issues and profits accrued in respect of the said tea estate from the date on which possession of the said tea estate was taken by the added defendant AGR Plantations Pvt. Ltd, until restoration of possession on 20th June, 2007 (d) Direction upon the added defendants to render true and faithful accounts of al dealings and transactions in respect of the said Tea Estate from the date of the terms of settlement till 20th June 2007 including accounts of all profits earned, liabilities outstanding and monies due to the tea estate and direction be made for payment of such sum as may be found due and payable after the accounts are taken; (e) Stay of all further proceeding in connection with T.S No. 362 of 2007 for execution of the decree dated 5th April 2000 till disposal of the present petition; (f) Injunction restraining the added defendants from taking any step or further step on the basis of the said decree dated 5th April 2000; (g) Ad interim order in terms of prayers above; (h) Such further and/or other order or orders be passed and/or direction or direction be given as this Honble Court may deem fit and proper.
(2.) SINCE the adjudication made in anyone of the aforesaid application shall have bearing upon the other. I decide to take up both the applications simultaneously. The backdrop of the case is that one Bhupatish Roy Chowdhury was the owner of a tea estate known as Toonbarrie Tea Estate. The said owner entered into an agreement on 12.3.1988 with one Khemchand Dhingra, the plaintiff no. 1 in CS no. 486 of 1991 for sale of the said tea estate at a consideration of Rs. 55 lakh. The said agreement contains various terms and conditions to be performed by either of the parties to the agreement which includes clause 4, the makeover of the peaceful possession of the tea garden to the said Khemchand Dhingra upon payment of certain sum. Admittedly, the possession of the said tea estate was handed over by the said Bupatish Roy Chowdhury, the original defendant to the said Kemchand Dhingra, the plaintiff no 1 in the said suit. The said original defendant also executed irrevocable power of attorney in favour of the said plaintiff no. 1 authorizing and empowering him to run, manage and carry on the business of the said tea estate. One of the other terms and conditions of the said agreement dated 12th March, 1986 was that the said original defendant shall obtain the necessary permission from the office of the Deputy Commissioner of Jalpaiguri for transfer of the said tea estate in favour of the said plaintiff no. 1, the original nominee. However, the time to complete the sale was fixed within 1st January, 1989. Subsequently the plaintiff no. 1 by letter dated 1st April, 1990 entered into the plaintiff no. 2 Toonbarrie Tea Co. Pvt. Ltd. as is nominee to complete the purchase of the said tea estate. Plaintiff no. 1 entered into an agreement with plaintiff no. 2 on 25th May 1990 by which the said plaintiff no. 2 was allowed to enjoy the benefit of the earnest money and the part payment made by the plaintiff no 1. In terms of the aid agreement dated 25.5.1990 the possession was made over to the plaintiff no. 2 by the plaintiff no. 1 which he obtained in terms of an agreement dated 12th March, 1988 from the original defendant. The act of nomination was accepted by the original defendant on having received certain payments from the plaintiff no. 2 in terms of the original agreement dated 12th March 1988.
(3.) SINCE the plaintiff did not perform his part of an obligation the said Khemchand Dhingra as plaintiff no. 1 along with the said Toonbarrie Tea Estate as plaintiff no. 2 filed a suit being C.S 486 of 1991 in the Original Side of this court for a decree for specific performance of the said agreement dated 12th March 1988 with following payers : (a) Specific performance of the Agreement for sale dated 12th March 1988; (b) Decree directing the defendant to execute and register the Deed of Conveyance in respect of the said Toonbarrie Tea estate in favour of the plaintiff no. 2 in accordance with the draft Deed of Conveyance already furnished to the defendant or in such other form as to this Honble Court seem fit and proper within such time to this Honble Court may deem fit and proper and upon payment of the balance consideration sum of Rs. 24,40,000/- by the plaintiff no. 2 herein; (c) In the event of the defendant failing to execute and/or register the Deed of Conveyance in respect of the said Toonbarrie Tea Estate in terms of prayer (b) above, then an in such event the Registrar, Original Side of this Honble Court be directed to execute such conveyance within such time as to this Honble court may deem fit and proper and upon the plaintiffs depositing the balance consideration of Rs. 24,40,000/-; (d) Declaration that the defendant is not entitled in any manner to sell transfer or convey or otherwise deal with or dispose of the said Tea Estate except in favour of the plaintiff no. 2 as per the said Agreement dated 12th March 1988; (e) Permanent injunction restraining the defendant from in any manner selling transferring or otherwise dealing with or disposing of the said Tea Estate in favour of any person or party exceeding the plaintiff no. 2 as per the said Agreement dated 12th March 1988; (f) Declaration that the pretended letters being Annexures E,F and G are void as against the plaintiffs and/or the same are voidable at the instance of the plaintiffs and that he plaintiffs have duly evaded the same; (g) Delivery up and cancellation of the said pretended letters being Annexure E, F and G hereto; (h) Injunction; (i) Receiver; (j) Atachment; (k) Costs; (l) Further or other reliefs. During the course of the proceeding of the said suit the defendant no. 2 and 3 namely Santosh Kr. Agarwal and M/s. AGR Plantations Pvt. Ltd. took out an application for addition as party defendant in the said suit which was eventually allowed and they were added as defendant no. 2 and 3 in the said suit. According to the said added defendant the said Bhupatish Roy Chowdhury executed an agreement dated 30.4.91 and appointed Santosh Kr. Agarwal, the added defendant no. 2 as the managing agent of the said tea estate which was previously runned by the plaintiff no 1 in terms of an earlier agreement dated 12.3.88. It was specific case of the added defendant no. 2 namely Santosh Kr. Agarwal that the plaintiff no. 1 put him into possession of the said tea estate. Ultimately, the said suit ended in compromise on the strength of a terms of settlement which apart from other postulates that the original defendant namely Bhupatish Roy Chowdhury shall effect the sale in favour of the added defendant no. 3 namely M/s. AGR Plantations Pvt. Ltd. being the nominee of the added defendant no 2 namely Santosh Kr. Agarwal on payment of a consideration price of Rs. 63 lakhs. It is further recorded therein that out of the said consideration money a sum of Rs. 1 lakh has already been paid to the said Bhupatis Roychowdhury by M/s. AGR Plantations Pvt. Ltd. vide bankers cheque dated 11th March 2000 and a sum of Rs. 6 lakh shall be paid on the date of order passed in the said suit and a further sum of Rs. 4 lakh shall be paid within 60 days from the date of order of compromise and the balance sum of Rs. 52 laks shall be paid simultaneously with the execution and the registration of the deed of conveyance. The bank liabilities was agreed to be borne by the said added defendant. Along with the said terms of settlement an approved draft copy of the deed of conveyance duly countersigned by the advocates appearing for the respective parties was annexed wherefrom it is evident that the said Bhupatish Roy Chowdhury was arrayed as vendor and M/s. AGR Plantations Pvt. Ltd. As purchaser and Santosh Kr. Agarwal has confirming a party.;