- (1.) This is a suit for declaration and perpetual injunction. Plaint was admitted on 24th February, 2011 after obtaining leave of this Hon'ble Court under Clause 12 of the Letters Patent. At the interlocutory stage defendants entered appearance and contested the interlocutory applications but no one entered appearance in this suit. The suit was fixed for hearing ex parte. Subsequently, an application being G.A. No.116 of 2017 was filed for recalling of the order of ex parte hearing but the same was dismissed for default by the Hon'ble Justice Shivakant Prasad as no one appeared before His Lordship even at the second call. When the suit was listed for hearing on 13th September, 2017 it was recorded by this Hon'ble Court that the evidence on behalf of the plaintiff had already been recorded but no one appeared to contest the suit. In such circumstances, by an order dated 13th September, 2017 Court passed an order that the matter would be heard as 'undefended suit'. Accordingly, the matter has been heard as 'undefended suit'. In brief, the plaint case is as follows :- 1) The plaintiff is the 'Karta' of Kushal Chand Dugar (HUF) (hereinafter referred to as the 'said HUF'). 2) The plaintiff is the owner and/or otherwise entitled to Eastern portion of Dugar Building measuring approximately 9000 sq. ft. situated at Mirza Ismail road, Jaipur, Rajasthan (hereinafter to be called as the 'said property'). 3) The defendant no.1 is a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at 10, Sukhlal Johri Lane, Kolkata ? 700007. 4) Defendant no.2 is the Director of the defendant no.1. 5) The defendant no.3 is occupying space in part of the said property owned by the plaintiff at Jaipur in the name of his various trading and/or business names. The plaintiff has instituted proceedings for recovery of possession of the different spaces in possession of the defendant no.3 before the Rent Tribunal at Jaipur. 6) The defendant no.4 is the son-in-law of the defendant no.3 and the brother of defendant no.2. 7) The plaintiff never visited Kolkata prior to 13th February, 2011 and never agreed to sell, transfer and/or assign the said property to any one or any portion thereof to any one, nor has he entered into any negotiation with anyone for such purposes. 8) Plaintiff came to learn that the defendant no.1 filed an application being A.P. No.646 of 2010 (Zohra Commercial Private Limited ? Vs. ? Kushal Chand Dugar) in the High Court at Calcutta wherein the said defendant no.1 claimed that the plaintiff has originally agreed to sell an area of 9,600 sq. ft. fully tenanted out of the building known as Dugar building situated at Mirza Ismail Road, Rajasthan to the defendant no.1 for a sum of Rs.1,11,00,000/- (Rupees One Crore Eleven Lakh) only, and plaintiff has allegedly been paid a sum of Rs.11,00,000/- (Rupees Eleven Lakh) only, in cash towards part consideration in respect of the said transaction (alleged agreement). 9) The plaintiff came down to Kolkata at the defendant no.1's office at 10, Sukhlal Zohri Lane, Kolkata ? 700007 to execute an alleged agreement dated 28th November, 2009. 10) A draft copy of the purported Deed of Conveyance was made over to the plaintiff at the time of execution of the agreement. 11) The defendant no.1 has allegedly sent letters dated 17th May, 2010 and 26th August, 2010 to the plaintiff in furtherance of the alleged agreement dated 28th November, 2009. 12) Since the plaintiff had no occasion to enter into any such agreement and the allegations made against the plaintiff are all false and concocted, plaintiff has filed the present suit with the following prayers : a) "Declaration that the purported agreement dated November 28, 2009 is non-est illegal, null and void not bind on the plaintiff; b) Declaration that the notices dated May 17, 2010 and August 26, 2010 is illegal, null and void and not binding on the plaintiff; c) Declaration that the novice dated February 12, 2011 is illegal, null and void and not binding on the plaintiff; d) Delivery up and cancellation of the purported agreement dated November 28, 2009 being Annexure "A"; e) Delivery up and cancellation of the notices dated May 17, 2010 and August 26, 2010 being Annexure "B" and the same be adjudged null and void; f) Delivery up and cancellation of the notice dated February 12, 2011 being Annexure "D" and the same be adjudged null and void; g) Declaration that there is no arbitration agreement between the defendant No.1 and the plaintiff for adjudication of any disputes and differences; h) Decree for declaration that the defendant No.1 is not entitled to proceed in arbitration against the plaintiff; i) Decree of perpetual injunction restraining the defendant No.1 its servants, agents and assigns from proceeding any further with the arbitration on the basis of the notice dated February 12, 2011; j) Decree of perpetual injunction restraining the defendant No.1 its servants, agents and assigns from taking any step or further steps on the basis of the notice dated February 12, 2011; k) Decree of perpetual injunctions restraining the defendant no.1 its servants, agents and assigns from taking any steps or any further steps on the basis of the alleged agreement dated November 28, 2009; l) Attachment; m) Injunction; n) Receiver; o) Costs; p) Further and/or other reliefs."
(2.) In order to prove the plaint case the plaintiff has deposed in the box. The only issue involved in this suit is whether the purported agreement dated 28th November, 2009 is non-est and all actions subsequent thereto are illegal, null and void and not binding upon the plaintiff. In order to prove its case the plaintiff in the box has proved the following documents and those were marked respectively as Exhibits. Ext. A (collectively) ? certified copies of plaints with English translations (four plaints). Ext. B ? photocopy of petition being A.P. No.646 of 2010. Ext. C ? Police Complaint dt. 12.02.2011 with English translation. Ext. D ? Letters of Kushal Chand Dugar. Ext. E ? Letter dt. 12.02.2011 of Zohra Commercial Pvt. Ltd. Ext. F ? Fee receipt dt. 02.02.2011 issued by Stamp and Registration Department, Office of the Sub-Registrar, Jaipur, II. Ext. G (collectively) ? certified true copies of Form 32 dt. 01.10.2010, 27.01.2011, 30.03.2011, 14.03.2011 (five copies). Ext. H ? certified copy of First Information Report dt. 07.12.2013 with translation copy. Ext. I ? Letter dt. 07.12.2016 of Kushal Chand Dugar. Ext. J ? Letter dt. 20.12.2016 issued by S.P.I.O. and Addl. Police Commissioner, Jaipur (South) with other enclosures and English translation. Ext. K ? Certified copy of petition being A.P. No.646 of 2010. Ext. L ? Letter dt. 22.10.2016 of Kushal Chand Dugar, under RTI. Ext. M ? Letter issued by Treasury Officer, Diamond Harbour Treasury South 24-Parganas dt. 25.10.2016. k
(3.) In answer to question no.24 the witness deposed that he was only acquainted with the defendant no.3, Shyam Sundar Soni who is a tenant on plaintiff's property. On 7th February, 2011, few persons visited his office at Dugar Building. One of them was Sri Nilendu Bhattacharyya, Advocate, Kolkata High Court. He deposed that he had been appointed as Receiver by the Hon'ble High Court in an arbitration petition being A.P. 646 of 2010 filed by one Zohra Commercial Pvt. Ltd. against the plaintiff in this Court. The second person was one Ram Gopal Soni who claimed to be the Director of Zohra Commercial Pvt. Ltd. and the other two persons were Mr. Anurag Bagaria, Advocate and Amitabha Roy, both Advocates and they were representing Zohra Commercial Pvt. Ltd. They served upon the plaintiff a copy of the petition being A.P. 646 of 2010 which contains an agreement. According to the witness, the said agreement was false and it was false to show that they had purchased the plaintiff's property. They made an agreement to purchase the plaintiff's property for a sum of Rs.1.11 Crore and they had said that the agreement was made in Kolkata. The plaintiff never visited Kolkata prior to the said Receiver visited the plaintiff. In the false agreement Zohra Commercial Pvt. Ltd. claimed to be the purchaser and it was signed by Mr. Ram Gopal Soni who claimed to be the Director. The attesting witnesses as shown in the said agreement were Mr. Mahendra Kumar Soni and another was Tarun Kumar Chaklan. The plaintiff neither knew Ram Gopal Soni, nor Mahendra Kumar Soni, nor Tarun Kumar Chaklan. He heard the name of Zohra Commercial for the first time on that day. The plaintiff deposed that the Receiver who was appointed in A.P. 646 of 2010 visited Jaipur to make an inventory and the plaintiff gave him all the information but strongly objected about the agreement to sell.;