B. Bhattacharya, J. - (1.) This First Miscellaneous Appeal is at the instance of a plaintiff in a suit for specific performance of contract and is directed against Order No. 10 dated 28th April, 2007, passed by the learned Civil Judge, Senior Division, Second Court, Barasat in Title Suit No. 2 of 2007 thereby dismissing an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiff. Being dissatisfied, the plaintiff has come up with the present first miscellaneous appeal.
(2.) The appellant before us filed in the Trial Court a suit being Title Suit No. 2 of 2007 for specific performance of contract against the respondents. In that suit, the Urban Development Department, Government of West Bengal, was made proforma defendant. The case made out by the plaintiff may be summed up thus : a) The defendant Nos. 1 and 2, as owner of the property described in the schedule of the plaint, entered into an agreement for sale on 30th August, 2005 with the plaintiff which is an industrial plot measuring 5.47918 cottahs for a price of Rs. 54,00,000/- and took a sum of Rs. 5,00,000/- as earnest money and advance out of total consideration of Rs. 54,00,000/-. b) The defendant Nos. 1 and 2 agreed to transfer the right, title and interest to the plaintiff subject to approval of U.D. Department, Government of West Bengal, as per notification Nos. 1721 and 1722 dated 6th May, 2005. It was further agreed that transaction would be completed within one month after the issue of letter of permission by the U.D. Department, Government of West Bengal. c) The defendant Nos. 1 and 2 by virtue of a Lease Agreement dated 30th April, 1988 between the Governor of West Bengal and the defendant Nos. 1 and 2 acquired the said property as a lessee for 999 years for the purpose of setting up an industry for manufacturing rectifier based equipment. On 17th January, 1989 possession of the property was delivered to the defendant Nos. 1 and 2 and from that date, they were in possession. d) On 14th October, 2004 on behalf of the Government of West Bengal a notice was issued asking why the plot of land should not be resumed for violating Clause 296 of the Lease Agreement. e) The defendant Nos. 1 and 2, on 14th December, 2004, gave a reply to the said officer and on getting the reply, the Deputy Secretary of the concerned Department on 3rd January, 2005 again requested the defendant Nos. 1 and 2 to explain within 30 days as to what steps they had taken for construction of the building on the suit property. On getting the said letter, the defendant Nos. 1 and 2, by their letter dated 28th January, 2005, explained the circumstances of delay for construction and requested the Government to condone their lapses. Subsequently, the two notifications being Nos. 1721 and 1722 dated 6th May, 2005 were issued permitting transfer under certain circumstances. f) The defendant Nos. 1 and 2 by their letter dated 5th September, 2005 requested the Principal Secretary, Government of West Bengal, U.D. Department for permission to transfer the leasehold right, title and interest of suit property and also for change of trade. g) Subsequently, by letter dated 9th September, 2005, the Deputy Secretary of the concerned Department issued latter to the defendant Nos. 1 and 2 for construction and necessary action of re -entering into possession of the plot in the event of failure to comply with the direction contained therein. Subsequently, however, the said Deputy Secretary by a letter dated 25th October, 2005 informed the defendant Nos. 1 and 2 that the Government in principle had agreed to transfer the leasehold right of the property to the plaintiff and requested the defendants to furnish information about the transfer. h) On 6th December, 2005 as per request of the defendant Nos. 1 and 2, the plaintiff wrote a letter to the concerned officer of the Government of West Bengal on the subject of permission for the transfer of the leasehold right in reply to the letter dated 25th October, 2005 addressed to the defendants. i) The plaintiff, subsequently, requested the defendants to expedite the matter and for obtaining permission for transfer of the suit property to the plaintiff but the defendant Nos. 1 and 2 expressed their unwillingness to transfer the property in terms of the agreement. Hence the suit for specific performance of contract.
(3.) On the basis of selfsame allegations made in the plaint, the plaintiff came up with an application for temporary injunction restraining the defendant Nos. 1 and 2 from transferring or alienating or changing the nature and character of the suit property or encumbering the suit property in anyway till the disposal of the application for injunction.;