- (1.)By the application being G.A. No. 2965 of 2001 the petitioner Manor Floatel Ltd. being defendant in C.S. No. 178 of 1995 has prayed for condonation of delay in making the application for setting aside the ex parte decree dated 22nd November, 1998 passed in C.S. No. 178 of 1995 and setting aside the order dated 17th February, 2001 passed in execution proceeding arising out of the ex parte decree dated 22nd December 1998.
(2.)The case of the petitioner is brief is that on 19th May 1995 the plaintiff L.P. Electronics Pvt. Ltd. filed the said suit, inter alia, praying for the following relief:
(a) A decree for complete possession of the licensed premises fully described in annexure ?A? to the plaint together with all equipments and fixtures mentioned therein; (b) A decree for Rs. 11,97,000/-; (c) (i) Alternatively a decree for Rs. 10,17,000/-; (ii) An enquiry into mesne profits/damages and a decree for such sum as may there upon be found due to the plaintiff; (d) Interim interest and interest on judgment; (e) Attachment (f) Receiver; (g) Injunction; (h) Costs; (i) Further and/or other relief.

(3.)Prior to filing of the said suit by the plaintiff the present petitioner filed a suit being suit No. 272 of 1993 seeking inter alia a decree for specific performance of the agreement dated 12th February, 1993. The subject matters of both the suits are related to Flat No. 2A. Poonam Building, 5/2 Russell Street, Calcutta - 700 071. The petitioner had undertaken a project of setting up a floating hotel on the river Hooghly. The petitioner came to learn that the plaintiff was intending to furnish and let out a complete air conditioned office with all its facilities. The plaintiff represented to the petitioner that it was in possession of Flat No. 2A on the Second floor of Poonam Building and was willing to let out the same as a fully air conditioned office with all its facilities. Pursuant to the discussions between the plaintiff and the petitioner an agreement in writing was entered into by and between the plaintiff and the defendant petitioner on 12th February, 1993. In terms of the said indenture dated 12th February, 1993 the petitioner duly deposited a sum of Rs. 2 lacs with the plaintiff. On or about 1st May, 1993 the plaintiff made over peaceful and exclusive possession of the said office space to the petitioner. After having taken possession of the said office space, the petitioner discovered that the total area of the office space was about 775 sq ft. which was contrary to the specific provision in the said indenture that the plaintiff would offer office space measuring 1,000 sq. ft. Consequently by a letter dated 9th June, 1993 the advocate of the petitioner raised specific objection to the measurement of the office space and called upon the plaintiff to provide telex facility. Subsequently the petitioner was constrained to file suit No. 272 of 1993 and prior to that the petitioner paid the sum of Rs. 2,62,000/- to the plaintiff. Even then the plaintiff failed to provide any of the facilities and space as mentioned in the agreement. Subsequently, the petitioner paid a sum of Rs. 75,000/- to the plaintiff in terms of the order of the Court in Suit No. 272 of 1993.
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