CRP 131/2017. Gauhati High Court
| Case Number | CRP 131/2017 |
| Judgement Date | July 17, 2019 |
| Court | Gauhati High Court |
IN THE GAUHATI HIGH CoURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
CRP 131 of 2017
ORION INDIA (PVT.) LTD.
A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT, 1956 WITH ITS REGISTERED OFFICE AT 205, 2ND FLOOR, ORION TOWER, G S ROAD, GUWAHATI-781005, REPRESENTED BY ITS MANAGING DIRECTOR, DR BIMAL PHUKAN
- Appellant/ Claimant
Versus-
SRI MUKUL SHARMA
S/O- LATE KHARGESWAR SARMA,
R/O- CHOWKDINGHEE WEST, DIBRUGARH, ASSAM
AT PRESENT RESIDING AT GS ROAD, GUWAHATI- 781005
- Respondent/ Opposite party
BEfoRE
HoN’BLE MR. JUSTICE PRASANTA KUMAR DEKA
Advocate for the appellant Mr. D K Misha, senior counsel
Mr. B Prasad
Advocate for the respondent Mr. P Sharma, B D Deka. Date of hearing & Judgment: 17th July, 2017
JUDGMENT AND oRDER
(oRAL)
Heard Mr. D K Misha, learned senior counsel assisted by Mr. B Prasad, learned counsel appearing on behalf of the petitioner. Also heard Mr. P Sharma, learned counsel appearing on behalf of the respondent.
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The present petitioner is the defendant in Title Suit No.195/ 1998 filed by the
plaintiff/ respondent. The plaintiff/ respondent filed Title Suit No.195/ 1998 in the court of Civil Judge No.1, Guwahati against the present defendant/ petitioner for specific performance of the contract entered by them vide agreement dated 25.08.1992 (exhibit-1). I n the said suit following were the reliefs prayed for by the plaintiff/ respondent:
CRP 131 of 2017
“It is, therefore, prayed that your honour may be pleased to pass a decree for:
i. Specific performance of the contract of Sub-Clause No. i, ii and iii of Clause No.1 of agreement bearing deed no.5581 dt. 25.2.92 by directing the defendant to allot the balance built up area of 4623.55 Sq.Ft. on the ground floor and first floor and remaining balance area in other floors to the plaintiff in the north block building known as “Orion Tower” as described in the schedule below.
iii. directing defendant to deliver possession and execute necessary deeds to effectuate allotment as per the claim made by the plaintiff.
iv. Rs.3,00,000/ - towards principal amount and Rs.1,50,000.00 towards interest @ 12% per annum from July, 1994 to till 22.09.98.
v. Further interest on the aforesaid amount of Rs.4,50,000.00 @ 12% P.A. from the date of filing of the suit till realization.
vi. Rs.20,00,000/ - towards compensation for loss of income due to non-fulfillment of the agreement.
vii. Permanent injunction restraining the defendant, its Directors, representatives and employees etc. from raising further construction on the land as described in the schedule below and from selling or renting out any apartments, roofs, floors etc. till fulfillment of sub-clauses no.I, ii and iii of Clause No.1 of the agreement
viii. Cost of the suit.
ix. Any other relief or reliefs to which the plaintiff is found entitled under the Law and Equity.”
3 . The trial court vide judgment and decree dated 26.09.2005 partially decreed the suit.
The said judgment and decree of the trial court was challenged by the defendant/ petitioner in RFA 38/ 2006 in the High Court. The said First Appellate Court vide judgment and decree dated 01.09.2015 set aside the judgment and decree passed by the trial court and remanded the same to the trial court to decide an issue framed by it and pass the judgment afresh. I n the said First Appeal, this Court held that the plaintiff/ respondent is entitled to get 12,172 square feet built up area including the common area as per agreement dated 25.08.1992. I t was further held that the plaintiff/ respondent was not entitled for the specific performance of Clause 1(i), (ii), (iii) of the agreement dated 25.08.1992. After holding as such, this Court as First Appellate Court remanded the matter to the trial court to decide as to what extent of total built up area including common area was handed over to the plaintiff/ respondent and how much balance built up area including common area is to be handed over to the plaintiff/ respondent on the 8th floor of the building.
CRP 131 of 2017
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The plaintiff/ respondent filed an appeal before the Hon’ble Apex Court against the
aforesaid judgment and order passed in first appeal. The Hon’ble Apex Court vide judgment dated 10.05.2016 interfered with the judgment and decree of this Court only with regard to the finding of the built up area. The Hon’ble Apex Court on the basis of exhibit-3 and 4 (letters written by the defendant/ petitioner dated 09.03.1998 and 16.03.1998 to the plaintiff/ respondent) held that the defendant/ petitioner cannot resile after accepting the definition of the built up area as mentioned in the said exhibits-3 and 4. The Hon’ble Apex Court thereafter remanded the matter to the trial court to make the calculation of entitlement by plaintiff/ respondent in terms of the judgment passed by the said Hon’ble Apex Court.
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The plaintiff/ respondent vide petition No.3547 dated 21.07.2016 filed an application
before the trial court to appoint a commission to ascertain and recalculate the complete “built up area” of the “Orion tower” in pursuant to the order dated 10.05.2016 in SLP(C) No.32544 of 2015 passed by the Hon’ble Supreme Court. I t is pertinent to mention here that in the said petition, the plaintiff/ respondent sought for some other reliefs like verification of the undertakings filed by the tenants under the petitioner/ defendant as per direction dated
29.11.2001 in Civil Appeal No.8172/ 2001 passed by the Hon’ble Supreme Court. Against the said...
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