Girish Chandra Gupta,J. - (1.) - The appeal is directed against a judgement and order dated 18th November, 2015 by which the learned Trial Court directed the defendant to execute a deed of conveyance in favour of the plaintiff within a period of two weeks upon payment of the balance consideration amounting to a sum of Rs.14,65,840/- and in default to refund the entire consideration money. This was an order passed in an application for judgement upon admission. The suit was filed claiming a decree for a sum of Rs.2,25,05,383/- together with interest pendente lite and further interest at the rate of 18% per annum, costs and other reliefs. The case of the plaintiff briefly stated is as follows:- The State of West Bengal granted a lease to Weighmatic India Private Limited hereinafter referred to as the lessee. The lessee entrusted the construction work with the defendant. After the construction was completed, permission was granted by the lessor to the lessee to demise a portion of the building by way of sub-lease in favour of the defendant. The defendant in its turn by a Letter of Allotment dated 19th September, 2013 allotted to the plaintiff Office Unit Nos.5 and 6 on the 8th Floor at Martin Burn Business Park, Plot No.BP-3, Salt Lake, Sector-V, measuring 2091 sq. ft. and 1466 sq. ft. respectively at a total consideration of a sum of Rs.2,09,65,845/-. Subsequent thereto sometime in June, 2014 the agreed consideration was enhanced to a sum of Rs.2,22,31,691/-. The plaintiff paid a sum of Rs.1,95,00,000/- in three instalments. The first instalment of a sum of Rs.15 lacs was paid on 19th September, 2013. The second instalment of a sum of Rs.80 lacs was paid on 23rd October, 2013 and the third instalment of a sum of Rs.1 crore was paid on 24th February, 2014. On or about 21st April, 2014, a draft agreement for sub-lease was submitted by the defendant to the plaintiff from which it transpired that (a) there was no sub-lease in favour of the defendant; (b) there was no demarcation of the area in respect whereof the defendant could exercise its right; (c) the area allotted to the plaintiff could only be used for the purpose of IT Park; and (d) the defendant had already mortgaged the area intended to be conveyed to the plaintiff with the Federal Bank Ltd. The defendant also insisted upon payment on account of fees for obtaining permission of the State of west Bengal for transfer of the area allotted to the plaintiff including costs, charges and expenses for obtaining such permission. The plaintiff in the circumstances contended that the defendant had no transferrable right or title in respect of the two office units purportedly allotted to the former. The defendant was, as such liable to refund the sum of Rs.1,95,00,000/- together with interest at the rate of 18% per annum.
(2.) The defendant filed a written statement alleging, inter alia that the State of West Bengal by its letter dated 9th June, 2011 granted permission to the lessee to create a sub-lease of 243831 sq. ft. of the demarcated portion together with proportionate share in the plot of land and on that basis the defendant was entitled to transfer the same to third parties. The case of the defendant, in that regard is as follows:- "The defendant can induct any third party in the said allocated and demarcated portion by way of sub-lease deed wherein the Weighmatic India Private Limited would be the sub-lessor, the said third party would be the sub-lessee and the defendant would be the developer. Permission with regard thereto has already been obtained by the said sub-lessor from the necessary department. Further permission was required to be obtained from the Government of West Bengal, Urban Development Department against payment of prescribed fee for transfer of the said office space to the plaintiffs. "
(3.) From the aforesaid narration of the case of the respective parties the following facts appear to have been admitted by the defendant:- (A) by the letter dated 9th June, 2011 permission was granted to the lessee "to sub-lease 243831 sq. ft. (57.7%) of built up space out of a total of 422584 sq. ft. of built up space "...... subject to execution of a Deed of Assignment of Lease in conformity with terms and conditions of the original Lease Deed. " (B) The area allotted to the plaintiff can only be used for the purpose of IT Park which was never disclosed to the plaintiff. (C) The Deed of Assignment of lease has not been executed in favour of the defendant which is or may be the reason why further permission of the State is required. (D) The defendant has created a mortgage in respect of a portion of the building, including the office space allotted to the plaintiff, in favour of the Federal Bank Ltd. (E) The defendant insisted upon payment of permission fee and other expenses besides the agreed consideration money.;