- (1.) In 1979 the Superintendence Company of India Limited filed a suit being suit No. 343 of 1979 as against Western Building Corporation inter-alia claiming, the defendant being the developer of the Everest building failed to adhere to the agreement for sale as also complete the construction and maintain the building. Simultaneously on filing of the suit the Superintendence filed an application for interim protection. One Mohit Mahalanobis a retired Army Officer was appointed as Administrator of the Everest building at premises No. 44C Jaharlal Nehuru Road Calcutta vide order dated August 25, 1980. From time to time this Court passed diverse orders extending the scope of work by the Administrator. Administrator initially started his office on the corridor as claimed by him. Subsequently getting a vacant and unfinished flat without any proper title Mohit took possession of flat No. 21B and started his office after doing the finishing work that was left. It was also alleged; he let out a portion of it. It was however, not clear what he would do with the issues and profits that he could make out of such letting out. It further transpired, the said flat was an unauthorized one having no sanction from the Municipal Corporation.
(2.) In or about 1995 one Suprabha Basu, Himadri Narayan Basu and Soumendra Narayan Basu filed a suit against Mohit by making Western Building Corporation and Manikrai Sujani Bharat as proforma defendant. The plaintiffs claimed, they were the heirs of one Jatindra Narayan Basu. Jatindra was carrying on business under the name and style of M/s Basu Mitra and Company as a building contractor. They would claim, flat No. 21B was the property of Jatindra that they inherited after his death. Hence, Mohit had no business to forcibly take possession. The plaintiffs claimed recovery of possession and mesne profit. The paragraphs that would be relevant for our consideration being paragraph 27, 36, 41 and the prayers being prayer (a), (b), (c) and (d) that are quoted below: 27. "The plaintiffs state that the defendant No.1 being the Administrator appointed by this Hon'ble Court acted totally beyond the jurisdiction and power vested in him by this Hon'ble Court by his order of appointment dated 25th August, 1980. 36. Under the circumstances the plaintiff No.2 contacted such of the other flat owners in the said premises who informed the plaintiff NO.2 that the defendant No.1 has alleged before this Hon'ble Court in an affidavit affirmed by him that the said flat was sold to the said contractors being the contractors who constructed the said premises against their outstanding bills and upon enquiry the contractors failed to produce the relevant necessary agreement for sale or any other evidence in respect thereof and in view of the matter the defendant No.1 kept the said flat and established his office in the said flat. The plaintiff No.2, however, could not ascertain the particulars of the said affidavit so affirmed by the defendant No.1. 41. The plaintiffs state that inspite of the efforts, the plaintiffs could not ascertain the actual date on which the defendant No.1 took possession of the said flat. In any event, the plaintiffs state that from the correspondence exchanged between the plaintiffs and the defendant No.1, it would be evident that the defendant No.1 took wrongful and illegal possession of the said flat sometimes after 14th May, 1983. Without prejudice to the aforesaid and on the contrary strongly relying thereon, the plaintiffs further state that the defendant No.1 entered into possession of the said flat as the Administrator appointed over the said premises. Under the circumstances, the possession of said flat by the defendant No.1 is possession of the same by this Hon'ble Court for the benefit of the real owners of the said flat in the still further alternative, the plaintiffs state that the defendant No.1 being the Administrator appointed by this Hon'ble Court has taken possession of the said flat as the trustee for the benefit and for protection of the interest of the owners of the said flat. a) Decree directing defendant No. 1 to deliver back peaceful and vacant possession of the said flat described in Annexure 'A' hereto to the plaintiff; b) Decree directing the defendant No. 1 to submit a true and faithful account of the incomes earned by the defendant No. 1 by utilizing the said flat and/or portion thereof and a decree in favour of the plaintiffs and against the defendant No. 1 for the amount which would be found to have been earned by the defendant no. 1 by utilizing the said flat and /or portion thereof. c) In the alternative, enquiry be held to ascertain the amounts earned b the defendant no. 1 by utilizing the said flat and/or portion thereof and a decree be passed against the defendant No. 1 and in favour of the plaintiffs for the amounts which may be found due and payable by the defendant No. 1 to the plaintiffs on such enquiry; d) Perpetual injunction restraining the defendant No. 1, his servants, agents and assigns from in any way dealing with and/or transferring and / or alternating and / or encumbering and /or creating any third party interest over and/or in respect of the said flat No. 46C, Jawaharlal Nehru Road, Calcutta;"
(3.) Mohit contested the suit however, we do not get the Written Statement for our perusal. We however, find at page-195-222 of the paper book, Mohit filed a Notes on Argument before the Special Referee wherein he would indicate his stand, particularly at page- 201-205, he would assert, he did not have any personal liability. We find, neither the plaintiff made any definite assertion as against Mohit in his personal capacity nor Mohit ever claimed so. We would be discussing in detail on this aspect little later.;