TaxTMI 
TaxTMI 
2014 (12) TMI 1390
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.... Essentially, the suit is in the nature of an administration suit in respect of the said premises. In the said suit the petitioners have filed the present application. Contention of the petitioners: 2. Along with the said two flat Nos. 9A and 9B the petitioners acquired two car parking spaces at the said premises. They have also taken on rent one car parking space from one M/s. M.C. Sarkar & Sons being the owner of flat no 4 at the said premises. The petitioners as also some other flat owners were originally allotted car parking space in the basement of the building but the same is inaccessible because of inherent defects in the structure of the building. As such, those who owned car parking space in the basement have been parking their vehicle on the ground floor open area along the driveway. 3. In the above suit by an order dated 24th August, 1991 Joint Administrators were appointed over the said premises. Since then, the said premises have continued to be under Joint Administrators although the personnel of such Joint Administrators have changed from time to time. 4. The common passage on the ground floor which is used for car parking and for ingress and egress of ve....
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....ile Joint Administrators have walled up the basement. As a result, the basement is not usable for the purpose of parking cars. Naturally, the applicants who are entitled under the agreement entered into between the appellants and the promoters to park their cars in the basement were allowed to park their cars on the driveway. The Fire Department out of their concern for the safety and security of the residents of the multistoried building have issued, inter alia, the following decision:- 4. The entrance into the building through the Loudon St. shall always be kept open and unlocked condition to facilitate immediate evacua of the huge numbers of persons occupying the building, in the event of fire and emergency. In order to comply with the aforesaid direction of the Fire Department, the Joint. Administrators requested the appellants to remove their cars from that portion of the driveway which opens on the Loudon St. side. If the appellants do not park their cars where they have been parking for a pretty long time, pursuant to orders of Court, then they have no other space for the purpose of parking cars, whereas they are entitled under the agreement entered into be....
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.... 10. The basement of the said building is earmarked as a car parking space. Since 24th August, 1981 the basement was under lock and key of the Joint Administrators. 11. Recently the petitioners have noticed that the lock of one of the entrances to the basement has been broken and a security guard has been posted at a portion of the basement and some scaffoldings have been erected ostensibly for the purpose of some repairing work. The security guard and the men engaged in repairing works refused to answer the petitioner's query as to for whom they were working. 12. The petitioners brought the aforesaid to the notice of the Joint Administrators who advised the petitioners to obtain appropriate orders from this Court. Hence the present application. 13. The petitioners apprehend that the basement has been opened and repairing works are being done thereat illegally for the purpose of putting the basement into improper use. The basement cannot be used until and unless proper maintenance as directed by the order dated 11th August, 2006 is carried out. The basement was meant for car parking only and cannot be put to any other use. There is a partition wall impeding cars being....
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....o this Court's order dated 24th August, 1981 and submitted that pursuant to the said order the Joint Administrators were appointed over the entirety of the subject building. As such, no addition or alteration in any portion of the building including the basement could be carried out without the leave of the Court. The Ld. Counsel also referred to the report of the Joint Administrators dated 18th April, 2013. It would appear from the said report that the padlocks of the rolling shutter of the closed gates have been broken and private security guards have been posted thereat. The ramp leading to the basement has been converted into staircase. Several cubicles have been constructed in the car parking area with arrangement of electrical fittings therein. The partition wall dividing the basement in two portions, constructed earlier, has been reinforced. The nature and character of the basement has completely been changed on one side of the partition so as to cater to needs other than car parking. At many places in that particular side of the basement printed handbills have been pasted mentioning that the property belongs to Angad Merchants Pvt. Ltd. The Joint Administrators closed t....
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....Ld. Advocate then submitted that by the order dated 11th August, 2006, the Division Bench ordered remodelling of the basement. This was in the interest of the flat owners. He submitted that if any particular party is inconvenienced by reason of such remodelling, even then the Division Bench order must be complied with. The smaller interest of any such party must give way to the larger interest of the several flat owners. In this connection he placed reliance on the decision of this Court in the case of Preeti Singha Ray-vs.-Calcutta Tramways Co. reported in AIR 1986 Cal. 305 para 14. 20. The next submission of Ld. Counsel for the petitioners was that the contention of Angad Merchants that deeds of assignment in favour of the petitioners cannot be looked into and should be impounded since these were unstamped and unregistered documents, is unacceptable. The question of impounding arises at the trial of the suit. At the interlocutory stage the documents can be looked into. In this connection, he relied on a decision of this Court in the case of Abheya Realtors Pvt. Ltd.-vs.-SSIPL Retail Ltd. reported in 2010 (2) CHN 203 paras 18 to 21. Contention of Angad Merchants:- 21. App....
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....erfering with the possession of the administrators. In this connection he relied on a decision of the Bombay High Court in the case of ICICI Ltd.-vs.-Alpine Industries Ltd. reported in AIR 1999 Bombay 304 wherein the Bombay High Court observed that the mere appointment of receiver by itself does not vest the property in him. Possession has to be taken. 26. Referring to the deeds of assignment in favour of the petitioners, Mr. Mitra submitted that even if these two documents are construed as agreements for sale, they require stamping under Section 40 of the Stamp Act read with Articles 5 and 11 of Schedule 1 thereto. The documents being unstamped, they must be impounded. In this connection he relied on a decision of the Supreme Court in the case of Government of Andhra Pradesh-vs.-P. Laxmi Devi reported in 2008 4 SCC 720. In paragraph 16 of the said judgment the Apex Court has observed that when a document is produced before a person who is authorized to receive evidence and a person who is in charge of a public office before whom any instrument chargeable with duty is produced, it is the duty of such person before whom the said instrument is produced to impound the document if i....
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....e nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act.) Section 54 of the TP Act stipulates that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter. (29) Finally Mr. Mitra submitted by relying on paragraph 26 of the decision in the case of Shyamali Das-vs.-Illa Chowdhury reported in AIR 2007 SC 215 that a disputant is entitled to an interim order, provided he is a party thereto. If for one reason or the other, he cannot be impleaded as a party to the proceeding, the court would have no jurisdiction to pass any interim order in his favour. Petitioners in reply:- 30. Referring to the order dated 24th August, 1981 whereby the Joint Administrators were appointed over the subject building, Mr. Banerjee, Ld. Counsel submitted that the Administrators have been in charge of the building since their date of appointment and it is incorrect for Angad Merchants to contend that the Administrators never took possession of the portion of the basement in respect whereof Angad Merchants claims to be a registered sub-l....
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....e or satisfaction shall be recorded in any such suit under rule 3 of that order, unless the court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. Explanation.-For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be." 33. There is nothing on record to show that notice of the suit has been given to all persons interested therein either by personal service or by public advertisement. Would that mean that a party who is similarly interested in the suit as....
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....ng the same as retail shop which is impermissible even under the Calcutta Municipal Corporation Rules. On the other hand, Angad Merchants has contended that the petitioners have no locus standi to maintain the application inasmuch as the deeds of assignment relied upon by them are unregistered and unstamped documents which confer no proprietary right, title or interest on the petitioners in respect of the two flats occupied by them. They claim to be registered sub-lessees of the disputed portion of the basement of the subject building and state that the petitioners are not allottees of car parking space in the portion of the basement which is in their occupation and for that reason also the petitioners lack locus standi to maintain the application. However, according to me, these are disputed questions of fact which cannot be decided on evidence and can only be decided at a regular trial. 37. However, what is not disputed is that an order dated 11th August, 2006 passed by a Division Bench of this Court in an appeal preferred by the petitioners is in existence. By the said order the Division Bench directed the Joint Administrators to take immediate steps for repair and/or remodel....