Bhaskar Bhattacharya, J. - (1.) This first miscellaneous appeal is at the instance of the plaintiffs in a suit for specific performance of contract and injunction and is directed against Order No. 2 dated 20th September, 2005 passed by the Civil Judge (Senior Division), 4th Court, Alipore in Title Suit No. 69 of 2005 thereby refusing to grant an ad interim order of injunction in favour of the plaintiffs although the learned Trial Judge issued a notice to show-cause why the prayer of the plaintiffs for temporary injunction should not be granted.
(2.) The appellants herein filed the aforesaid suit being Title Suit No. 69 of 2005 in the 4th Court of learned Civil Judge (Senior Division), Alipore, thereby praying for the following relief: "a) Specific performance of the agreement made between the plaintiffs and the defendants as mentioned in paragraph 5 above; b) Alternatively, specific performance of the agreement between the plaintiffs and the defendants recorded in Annexure 'A' hereto; c) A decree directing the defendants and each of them to specifically perform and/or comply their part of the agreement mentioned in paragraph 5 hereinabove; d) Alternatively, a decree directing the defendant and each of them to perform and/or comply their part of the agreement as recorded in Annexure 'A' hereof; e) If default is committed by the defendants or any of them in complying with their obligations in terms of the agreement mentioned in the plaint, the Registrar of this learned Court be directed to sign, execute and register such paper document and/or deed as may be necessary or expedient for the purpose of specifically performing the said agreement; f) Permanent injunction restraining the defendants and each of them from dealing and/or disposing of the said suit property in any manner whatsoever; g) Receiver; h) Costs of, and incidental to, the suit be paid by the defendants; i) Such further order/orders as Your Honour may deem fit and proper."
(3.) The case made out by the plaintiffs may be summarised thus: (a) The plaintiffs are engaged in construction and development of building projects. In the year 1990, the defendants, the owners of the suit property approached the plaintiffs to develop a part of the premises being 236B, Acharya Jagadish Chandra Bose Road, Kolkata containing an area of 27 cottahs as described in the schedule of the plaint. At that point of time, the property was partly under the occupation of one Balmer Lawrie and Company Ltd. and partly of one Associated Metal Works and the adjacent premises being 236A, Acharya Jagadish Chandra Bose Road, Kolkata were under the monthly tenancy of one Hindustan Petroleum Corporation Ltd. (b) At that point of time, the appellants agreed to develop the suit property on the following terms: (i) The plaintiffs would make arrangement for having the suit property vacated by the tenants and occupants through negotiation. (ii) The plaintiffs would take all the responsibilities and the obligations to negotiation with the tenants and the occupants of suit property and the compensation to be paid and/or the alternative accommodation to be provided by the plaintiffs would be adjusted from the area to be allocated to the defendants upon development of the suit property. (iii) The plaintiffs would make an advance of Rs.50,00,000/- as an interest free security deposit to the defendants within six months from the date the Balmer Lawrie and Company would vacate the property and the plaintiffs would at their own costs and expenses obtain the necessary permissions and sanction of the building plan from the appropriate authority. (iv) Out of the construction area of the new building, 58 per cent of such area together with the proportionate share in the land, common areas, roof and car parking space would be allotted to the defendants absolutely and the balance 42 per cent would be available for the plaintiffs. (v) The said agreement was duly accepted and recognised by the defendants through their various letters and in the month of August, 1995, the defendants had in part performance of the agreement made over possession of one flat and the out-houses of the suit property to the plaintiffs and the same had been apparently shown as tenancy in favour of the plaintiff No. 2. In part performance of the said agreement, the defendant No.1 had granted a registered Power-of-Attorney dated 1st August, 1990 in favour of plaintiff No.1. She had also granted a separate Power-of-Attorney on the same day, which was irrevocable. (vi) Pursuant to the said agreement defendant No. 2 had also granted another Power-of-Attorney dated 15th January, 1995 in favour of the plaintiffs, which was also irrevocable. (vii) Thereafter an agreement recording the aforesaid terms and conditions of development of the suit property was drafted and the same was approved by the defendants sometime in the year 1997. But, in spite of repeated requests and demands, the defendants have failed, neglected and refused to sign the said agreement till date. The plaintiffs had also paid a sum of Rs. 30,00,000.00 to defendant No. 1 as part security payable by the plaintiffs under the said agreement. (viii) Pursuant to the said agreement, the plaintiffs had also taken step for negotiation with Balmer Lawrie and Company and concluded a deal to have the two flats occupied by it vacated on the terms and conditions mutually agreed upon. The plaintiffs had finalised other flat vacated by Associated Metal Works and other tenant at a consideration and paid an advance sum. The plaintiffs had also got Soil Test Certificate from Urban Land Ceiling Clearance and Fire Service Clearance at their own cost and also appointed Architect for the proposed building. (ix) Ultimately in the year 2002, it was further agreed between the parties that the defendants would have the option either to sell and/or transfer to the plaintiffs the suit property on FAR basis at the rate of Rs. 1,300.00 per sq. ft. inclusive of sanction fees or go ahead with the joint development thereof. But ultimately, the defendants backed out from the said agreement and revoked the Power-of-Attorney. Hence the suit.;