P.S. Datta, J. - (1.) The opposite party No. 1 i.e. the Unit Construction Company Private Ltd. instituted Title Suit No. 1917 of 2008 against Ircon Employees' Co -operative Housing Society Ltd., the petitioner herein and one Pace Consultants Private Ltd. praying for following reliefs: a. Decree for Rs.20,77,946/ - as pleaded in paragraph 28 above. b. Decree for Rs.2,82,44,080/ - as pleaded in paragraph 29 above; c. Decree for determination of the extent of the work carried out by the plaintiff at site for which no payment has been made by the defendant and decree for such sums be passed as may be found due and payable by the defendant to the plaintiff after determination of the extent of the work carried out by the plaintiff, and in the alternative, decree for return to the plaintiff of all building materials, fittings etc. installed by the plaintiff at site for which no payment has been made by the defendants; d. Perpetual injunction restraining the defendants or its men and agents from alienating and/or altering and/or dealing and/or changing the nature and character in any manner and/or creating any third party interest of the suit property; e. Receiver; f. Injunction; g. Cost; h. Such further or other order.
(2.) The case of the plaintiff was that the plaintiff was awarded a contract for construction of three numbers of G + 11 storied block at Action Area, 1 A, New Town, Rajarhat, District 24 - Parganas (North) by the present petitioner -defendant No. 1 by an agreement dated 19th of January 2004. The opposite party No. 2 is an engineer appointed by the petitioner (defendant No. 1) to supervise the construction. Since there was no escalation clause in the agreement the plaintiff -opposite party found it impossible to carry out the construction to the end and requested the defendant No. 1 for alteration of the terms of the subsisting contract. Then followed a revised letter of acceptance dated 2nd of July, 2004 issued by the defendant No. 1 providing therein for increase in the cost of steel. The plaintiff -opposite party executed two separate bank guarantees. The engineer -defendant No. 2 provided the plaintiff with structural drawings. The plaintiff carried out construction on the basis of the drawings for the ground floor, first floor and the 2nd floor of the building. The defendants did not obtain sanction and/or permission for construction of the remaining floors from HIDCO, the sanctioning authority. The plaintiff continued incurring huge expenditure for maintaining the site, manpower, machinery etc. Since the work was held up for reasons attributable to the defendant Nos. 1 and 2 the cost of construction substantially increased. The plaintiff continued to incur recurring expenditure for maintaining the work at the site. The defendant No. 1 (petitioner) in (sic) around January 2007 requested the plaintiff to continue with the work on revised terms. Plaintiff agreed to do so subject to the two defendant discharging their obligations under the contract. By the time plaintiff completed the structure upto the level of second floor. So far as the balance work i.e. internal and external plastering upto second floor level is concerned the same was not technically possible till such time the total structure was completed. By a letter dated 5th of February, 2007 the defendant -petition forwarded a revised offer for completion of the work at a cost of Rs. 330 lacs. The plaintiff submitted the revised Bill of Quantities (BOQ) which was accepted by the defendants. Thus, contract on the terms recorded in the defendant No. 1's letter dated 5th February, 2007 read with the BOQ as approved and accepted by the defendant by letter dated 28th February, 2007 came into existence, but the plaintiff could not proceed with the work on the grounds, namely, that there was no approval from HIDCO, that outstanding bills remained unpaid, and structural drawings for the remaining portion of the building were not issued. Meanwhile, again the price of the impute materials increased and the revised price in terms of the letter dated 5th February, 2007 became illusory. On 24th October, 2007 plaintiff submitted its revised offer. No permission from HIDCO was also available. However a meeting was held between the parties on 29th December, 2007 when the plaintiffs were persuaded to accept the offer for Rs. 3.80 crores but no agreement could be reached. On 15th January 2008 the defendant forwarded a copy of the approval of HIDCO. By a letter dated 22nd January, 2008 the defendant No. 1 expressed its desire to have the revised offer approved by the Board of Directors. It was not possible for the plaintiff to do the work at Rs. 3.80 crores. The revised offer submitted by the plaintiff on 18th of March, 2008 was not accepted by the defendant No. 1. According to the plaintiff no valid or subsisting contract could be reached by and between the parties and the agreement as recorded in the letter dated 5th February, 2007 was rendered nugatory and null and void. Thus, according to the plaintiff, the agreement for construction dated 5th of February, 2007 is a void contract as it is an agreement to do an act impossible in itself. Thus, the plaintiff states that there was no question of termination of contract by defendant No. 1 as there was no valid or subsisting contract between the parties and in the circumstance, the plaintiff instituted the suit for the aforesaid reliefs.
(3.) Along with the presentation of the plaint the plaintiff -opposite party No. 1 filed an application under Order 39 Rule 1 and 2 read with Sec. 151 of the CPC praying for restraining the opposite parties from dealing with or disposing of or alienating or creating any third party interest in respect of the suit property or from changing the nature and character of the suit property situated at Action Area, 1A New Town, Rajarhat.;