D.K.Seth, J. - (1.) This Miscellaneous appeal arises out of an order No. 24 dated 11th October, 2001 passed by the learned Assistant District Judge, 2nd Court at Barasat, North 24-Parganas in Title Suit No. 66 of 2000, rejecting the application for appointment of receiver under Order 40 Rule 1 of the Code of Civil Procedure (CPC) on contest.
(2.) This suit has been filed by the plaintiffs (Respondents No. 1 to 5) for partition and injunction as against the defendants No. 1 to 12 (Respondents No. 6 to 17) alleged to be the co-sharers and the defendant No. 13 (Appellant), the developer. The developer had entered into an agreement for development in respect of the property with the defendants No. 1, 2 and 3 (Respondents No. 6, 7, 8). These defendants are claiming to be the exclusive owners of the suit property. In the suit on the prayer of the plaintiffs, the learned trial Court upon an application for injunction passed an order of maintaining status quo in respect of the nature and character and possession of the property. The defendant No. 13, appellant, and the defendants No. 1, 2 and 3 had filed application for vacating the interim order under Order 39 Rule 4 CPC. These applications are pending. At this stage, the defendant No. 13 filed an application under Order 40 Rule 1 CPC, for appointment of receiver. By an order No. 19 dated 14th August, 2001, the learned trial Court rejected the said application on the ground of subsistence of the interim order of status quo. Against the said order, an appeal being F.M.A.T. No. 2809 of 2001 was preferred. This Court by an order dated 7th September, 2001 disposed of the said appeal and directed re-hearing of the application under Order 40 Rule 1 CPC on merit. Thereafter, the matter was again heard out by the learned trial Court. By order No. 24 dated 11th October, 2001, the application for receiver was rejected. It is this order against which the present appeal has been filed. In the meantime, the defendant No. 13 had applied under section 9 of the Arbitration and Conciliation Act before this Court. In the said proceeding being A.P. No. 207 of 2000 (G.A. No. 2813 of 2000) some clarification was made with regard to the interpretation of the order of status quo permitting the defendant No. 13 to carry on the construction. This, however, was reversed on appeal. Thus, the order of status quo is still continuing. The learned trial Court had rejected the application for appointment of receiver principally on the ground that the developer is not a co-sharer in the suit property and no relief has been sought for against him. As such stranger, the defendant No. 13 is not entitled to any relief in the suit for partition. His remedy is available in the specific performance of the contract. Appointment of receiver would complicate the issues. An application for intervention was filed on behalf of a group of buyers, who had entered into an agreement for purchase with the developer and had already been given possession of the flats constructed on the suit property. However, no conveyance has been executed in their favour. This group of purchasers is represented by Mrs. Chameli Majumdar and Mr. Saktinath Mukherjee. This application for intervention has since been allowed by this Court by an order dated 16th September, 2002. Mr. Chandranath Mukherjee, appears on behalf of another group of buyers, who had also applied for intervention. He was allowed to make his submission at the time of hearing. This application for intervention is decided along with the appeal. In connection with the appeal, an application for appointment of receiver has since been made. This application was appearing in the List. In connection with these applications, Mr. Saktinath Mukherjee sought to intervene, which was allowed. There was already an order by this Court passed on 6th February, 2002, for hearing of the appeal along with this application. By consent of the parties, the application for appointment of receiver and the appeal are taken up for hearing together, treating the same as on day's list for hearing, though, appearing for orders. The learned counsel representing the respective parties had address the Court on the merit of the appeal. In course of hearing, the application for intervention moved by Mr. Chandranath Mukherjee is allowed.
(3.) Now we may briefly refer to the facts of this case. The defendants No. 1, 2 and 3 representing themselves as the owners of the suit property had entered into an agreement for development with the defendant No. 13, on 9th November, 1994 and had executed a Power of Attorney. In the said agreement, the developer was empowered to apply for amalgamation of the two properties and obtain sanction of plan on the amalgamated property. Pursuant to the Power of Attorney granted, the defendant No. 13 (developer) succeeded in obtaining amalgamation of the two plots and had obtained sanction of the plan for construction on the amalgamated plot. Pursuant to such agreement, the developer had floated a scheme for development and invited intending buyers for purchase of flats according to the scheme of the development since specified in the brochure. Some of the blocks have already constructed. The members of the two groups of intervenors had entered into agreements for purchase of the respective developed flats. Some of them had already got possession of such flats. Some are yet to get possession. There are some buyers the construction in respect of whose flats have not yet started. Subsequently, three separate agreements, all dated 15th of April, 1998, were executed by and between the developer and the defendants No. 1, 2 and 3 comprising of an area of 29 cottahs of land out of the suit property specified in the respective agreements comprising of Block G, C and E as specified in the sanctioned plan. In view of the interim order of status quo, no construction could be undertaken by the developer. The interest of the buyers who had entered into an agreement for purchasing flats are suffering because of this stalemate created on account of the interim order passed in and the suit between the co-sharers. The defendants No. 1, 2 and 3 had been claiming absolute title to the entire property. They are denying that the plaintiffs had any title or interest or are co-sharers in the suit property. But the fact remains that the defendants No. 1 to 8 have filed their joint written objection to the application for receiver.;