Bhaskar Bhattacharya, J. - (1.) This first miscellaneous appeal is at the instance of the defendant No. 1 in a suit for declaration, specific performance of contract and recovery of damages and is directed against the Order No. 9 dated September 23, 2005 passed by the Civil Judge, Senior Division, 4th Court at Alipore at Title Suit No. 56 of 2005 thereby disposing of an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by directing the parties to maintain status quo in respect of any transfer, sale, alienation, encumbrance, letting out and/or creating any third party's interest in the developer's allocation of the construction over the suit property in terms of the registered agreement dated 5th October, 1989 between the defendant Nos. 1 and 2 till the disposal of the suit.
(2.) The respondent No.1 herein filed a suit being Title Suit No.56 of 2005 in the 4th Court at Civil Judge, Senior Division, Alipore against the appellant and respondent No.2 thereby claiming the following relief: "(a) A decree for declaration against the defendants that the plaintiff has the right to construct building on the suit property according to the sanctioned plan being plan No. 141 dated 27/2/1995. (b) A decree for permanent injunction against the defendants from interfering with the right of the plaintiff in raising the building on the suit property according to the sanctioned plan No. 141 dated 27/2/1995. (c) A decree for permanent injunction restraining the defendants from assigning the Development Agreement dated 5-10-1989 for the suit property to any person other than the plaintiff. (d) A decree for permanent injunction restraining the defendants not to alter or change the present position by raising any further construction on the suit property. (e) A decree for specific performance of contract directing the defendants to assign the actionable claim namely, the development agreement dated 5-10-1989 according to the undated and unsigned Memorandum of Understanding drawn up according to the consent and concurrence and agreement between the plaintiff and defendants, on receipt of balance consideration money amounting to Rs.36,89,746/-. (f) In case of failure of the defendants to execute the deed of assignment on receipt of the balance consideration money, i.e. Rs.36,89,746/- the plaintiff may be granted liberty to get the deed executed by the learned Court in their favour on deposit of the said balance amount. (g) Confirmation of possession of the suit property. (h) Alternatively, a recovery of damages amounting to Rs.3,00,00,000/- for loss caused to the plaintiff including the money paid by the plaintiff in the aid of contract with interest on decree and declaration of charge on the suit property. (i) Receiver. (j) Temporary and ad-interim injunction. (k) Other legal and equitable reliefs."
(3.) The case made out by the respondent No. 1 may be summed up thus: (i) The subject matter of the suit is all that piece and parcel of land measuring more or less 9 cottahs 1 chittack and 44 square feet together with three storied brick built old building being municipal premises No. 55. Ramesh Mitra Road, Kolkata- 700 025. The said property is owned by defendant No.2. (ii) The defendant No.2 in order to develop his property by demolishing the existing old structure started negotiation with others for raising a multi-storied building and ultimately, the defendant No.1 agreed with the defendant No.2 to develop the said property and accordingly, they entered into a formal agreement dated 5th October, 1989 which was registered before the Registrar of Assurance. Kolkata, on the self same date. (iii) According to the terms of such agreement, the owner's allocation should mean more or less 3000 sq. ft. of saleable space in the first floor of the building comprising of four self-contained apartments each having 750 sq. ft. with an undivided proportionate share in the land and the developer's allocation should be the rest of the properties and/or saleable space in the said building other than the owner's allocation as aforesaid. (iv) In the said agreement, it was further provided that the owner and the developer would be entitled to transfer and otherwise deal with their respective allocation in such manner as they might at their absolute discretion deem fit and proper provided, however, that in case the owner disposes of the owner's allocation or any part thereof, the same should be done so by the owner upon notice in writing to the developer. The developer would have the full right to transfer and assign its rights under the agreement. (v) Pursuant to the aforesaid terms of the agreement, the defendant No. 1 submitted a building plan before the Kolkala Municipal Corporation for construction of a ground floor plus three-storied building and the Corporation sanctioned the said plan on 27th February, 1995 and the total sanctioned area of the suit property was approximately 15544 sq. ft. (vi) After obtaining the sanctioned plan, the defendant No. 1 realised that he was unable to generate sufficient funds for raising construction of the four storied brick built building according to the sanctioned plan and due to such financial stringency, the defendant No. 1 contacted the plaintiff and approached it for giving financial aid for construction of the said building. (vii) The plaintiff, after going through the documents, being satisfied, placed their proposal to the defendant No. 1 for assigning the rights of the developer under the said agreement and ultimately, the defendant No. 1 agreed to assign his rights in favour of plaintiff or its nominee in terms of the agreement dated 5th October, 1989 on consideration that the plaintiff would have to pay certain sums against the area to be constructed on the first, second, third and fourth floor of the building. (viii) According to the terms of understanding between the plaintiff and the defendant No. 1, the latter agreed to assign the development agreement in favour of the former on the sanctioned area of 17500 sq. ft. car parking area and the plainliff also agreed to pay the consideration money to the defendanl No. 1 at the rate of Rs.841/- per sq. ft. (ix) Pursuant to such agreement, the plaintiff on different dates paid to the defendant No.1 a total amount of Rs. 36,50,000/- and further paid a sum of Rs.3,75,695/- towards the sanctioned fees for Kolkata Municipal Corporation. Subsequently, a memorandum of understanding was prepared and the defendant No.1 was asked to sign it but he refused; on the contrary, the plaintiff got positive information that the project was being done by a third party at the instance of the defendant No 1. Hence the suit.;