In the Court
of the Learned 1st Executive Magistrate, Alipore, South 24 Parganas
M.P. Case No.
_________of 2025
In
the matter of ;
An application under Section 163(2) of the Bharatiya
Nagarik Suraksha Sanhita’ 2023; (Section 144(2) of the Code of Criminal
Procedure’ 1973);
AND
In the matter of ;
M/s. W. Evans & Company Private Limited, CIN : U51909WB1939PTC009631, a Company incorporated under the Company Act 1956,
having it’s Registered Office at Room No. 37/1, Stephen House, 2nd
Floor, 56 E, Hemanta Basu Sarai, Kolkata – 700001, Email : wevans1939@gmail.com represented by its authorised signatory/ representative
Mr. Radheshyam Mishra, Son of Late Damodar Mishra, residing at Premises being
no. 13, N.S.C. Bose Road, Kolkata – 700040, District – South 24 Parganas.
________Petitioner
Police Station : Regent Park
-
Versus –
(1) Sri Kailash Chand Dujari, residing at Premises being
no. 101, Southern Avenue, Sarat Bose Road, Kolkata – 700029.
(2) Sri Sanjay Kumar Verma, residing at Premises being no.
49/5H/144, K.M. Sarani, South Port, Kolkata – 700023.
(3) M/s. Parul Projects Limited, having its Office at
Premises being no. 55, Ezra Street, 2nd Floor, Kolkata – 700001.
(4) M/s. Parul Agrocon Private Limited, having its Office
at Premises being no. 55, Ezra Street, 2nd Floor, Kolkata – 700001.
(5) M/s. Amrit Projects Limited, having its Office at
Amrit Dham, Nityananda Nagar, Bakultala, Howrah – 711109.
(6) M/s. Parul Homefin Private Limited, having its Office
at Premises being no. 62, Lake Place, Kolkata – 700029.
_______Opposite
Parties
The humble petition of the above named petitioner,
most respectfully;
Showeth as
under;
1.
That the
Petitioner Company M/s. W. Evans & Company Private Limited, CIN : U51909WB1939PTC009631, a Company incorporated under the Company Act 1956,
having it’s Registered Office at Room No. 37/1, Stephen House, 2nd
Floor, 56 E, Hemanta Basu Sarai, Kolkata – 700001, carrying its business in wholesale [Includes specialized wholesale not covered in any one of the
previous categories and wholesale in a variety of goods without any particular
specialization.], represented by its
authorised signatory/ representative Mr. Radheshyam Mishra, Son of Late Damodar
Mishra, residing at Premises being no. 13, N.S.C. Bose Road, Kolkata – 700040,
District – South 24 Parganas. The Petitioner is carrying its business complying
its’ all statutory formalities as prescribed under the Law. The Petitioner
Company incorporated on 15-03-1939, and since then continuing with good repute
and goodwill for the prolong period of 86 years one month 28 days, till this
day.
2.
That
the Petitioner is a sole and absolute owner in respect of a plot of land
admeasuring 1092.66 square meter, a little more or less, equivalent to 16 Cottahs,
lying and situated at premises being no. 115B, Netaji Subhas Chandra Bose Road,
Kolkata - 700040 [hereinafter referred to as the 'said Land'].
3.
That
a development agreement dated June 10, 2003 was executed by and between the Petitioner and the O.P. no. 3, 4, 5,
& 6, and by virtue of which the Opposite Parties were entrusted with the work of developing all that land measuring about 820.83
sq.mtr. [the
'said premises'] being
a portion of the said
land. The
said
development agreement, inter alia, specifies that the developer would
complete construction of the proposed building on the said land within 48 months from the date of receipt of the sanction plan in respect of the construction or within such extended time as may be mutually agreed upon by the owner and the developer. In terms of the said Development Agreement it was being obligation of the
Opposite Parties to take all
necessary requisite steps for obtaining the sanction plan for the proposed building. The Development Agreement also stated that the owners' allocation and the developers' allocation
would be 40% and 60% of the total
constructed area in the proposed
building exclusive of the
common areas.
4.
That on
June 10, 2003 itself, an agreement for sale was executed by and between the Opposite Parties, and the Petitioner, where under the
Opposite Parties were to purchase the balance portion of the said land
admeasuring 271.83 sq.mtr., be the same a little more or less, in consideration of providing to the
Petitioner’s ownership right
along with possession of
7600 sq.ft. covered built-up area in the proposed building which was to be constructed by the Opposite Parties over the said premises. The monetary value
of the constructed area being
the covered built up space measuring the said 7600 sq.ft. area was agreed to be Rs. 30 lakh and the same was also deemed to be the consideration for the sale of the said 271.83 sq.mtr of land.
5.
That considerable
delay
was caused by the Opposite Parties, in
obtaining the sanctioned building
plan from the Kolkata Municipal Corporation and therefore in making construction of the building. Such sanctioned building plan was obtained only on 2010 by
the Opposite Parties, who are well aware of the fact that the inordinate delay in undertaking the work of construction was attributable solely to the developers, viz. the opposite parties. The Petitioner suffered severe losses on account thereof. As such, in the year 2006, the Opposite Parties approached the petitioner with a request seeking extension
of the
time period for completion of the building. Though the development agreement dated June 10, 2003 stipulated
that the work of
construction
was to be finished within 48 months from the date of obtaining sanctioned building plan, having no alternative the parties
arrived at the following
two-fold points of agreement:- (i)
A deed of indenture would be executed by and between the Opposite Parties and
the Petitioner,
whereby the portion of the said land
admeasuring 271.83 sq.mtr. (which formed the subject matter of the agreement of sale dated June 10, 2003) would be conveyed by the
Petitioner in favour of
the Opposite Parties, for a consideration of Rs.5 lakh, and (ii) In lieu of the
remaining sum of Rs.25 lakhs out of the sum of Rs.30 lakh (which was agreed to
be the monetary value of the 7600 sq.ft. of the constructed area in the proposed
building) and an extension of time for obtaining the sanctioned building plan and completion of the building on the said premises being
granted by the
Petitioner, the
owners and developers' allocations in the constructed area in the proposed
building would stand modified and would now be 80% and 20%, respectively.
6.
That
the aforesaid
agreement by and between
the
parties will
appear
from and evidenced
by the subsequent
course
of conduct of the parties
including the
agreement or indenture referred to hereinafter and the correspondence issued in this regard by the Petitioner.
7.
That
accordingly, a
supplemental agreement dated January 27, 2006 was executed by and between the
Petitioner and the Opposite Parties
being (iv) performance
of
the aforesaid second point of agreement between the parties. Subsequently, in terms of the first point of agreement between the
parties
as noted
above, on February 13, 2006 an Indenture was also
executed by and between the
Petitioner
and the
Opposite Parties, conveying
unto and in favour of the Opposite Parties 4 cottahs equivalent to 271.83 sq.mtr being a portion of the said land against a sum of Rs.5 lakh. The said deed of indenture was registered with the Office of the Additional District Sub-Registrar, Alipore and
recorded in Book No.I, Volume No.92 from pages
290-314 being No.01202 for the year 2006.
8.
That
by a letter
dated June 8, 2016, the Opposite Parties,
inter alia, informed the
Petitioner that a G+4 building at premises no.115B, Netaji Subhas Chandra Bose Road, Kolkata 700040 was ready in all respect and that
the possession thereof could be handed over to the Petitioner. The following demarcations/allocations were
agreed by and between
the
parties:
|
Floor |
Flat No. |
Area |
Allocation/allotment |
|
First Floor |
101 |
875 sft |
Owners |
|
102 |
772 sft |
Developer |
|
|
103 |
783 sft |
Owners |
|
|
104 |
821 sft |
Owners |
|
|
Second Floor |
201 |
875 sft |
Owners |
|
302 |
894 sft |
Owners |
|
|
203 |
932 sft |
Developer |
|
|
204 |
821 sft |
Owners |
|
|
Third Floor |
301 |
875 sft |
Owners |
|
302 |
894 sft |
Owners |
|
|
303 |
932 sft |
Developer |
|
|
304 |
821 sft |
Owners |
|
|
Fourth Floor |
401 |
875 sft |
Owners |
|
402 |
894 sft |
Owners |
|
|
403 |
932 sft |
Owners |
|
|
404 |
821 sft |
Owners |
The aforesaid
demarcations/allocations were
arrived at on the basis of the Development Agreement read with the Supplemental Agreement.
9.
That contrary
to
the assertions made by the Opposite
Parties, in the letter dated June 8, 2016, it was apparent that
the developers, viz. the Opposite Parties herein, failed to complete the building in
all respect. The building clearly was not complete in terms of the
specifications provided in the development agreement and hence was not left less the said
building in an
abandoned condition. Being exposed to the habitable from any
angle. In fact, on and from the
beginning of 2017, the
opposite parties, the
vagaries
of nature
in an
incomplete condition, several parts of the building suffered substantial damage. At one point of time the said building had also become
a
safe to secure the said premises or the
building standing thereon by deploying any haven for antisocial elements of the area
and the opposite parties did not even bother security guard.
10.
That
in order to mitigate the loss already caused to the building and to prevent further damage, the
Petitioner had no alternative but to repair and maintain the said building and in the process incurred
an expenditure to the
tune of Rs.29,20,233/- within a period of 13 months from March, 2019 to April, 2020. By a letter dated
September 09, 2019 it
was communicated
to
the opposite parties, that the petitioner had caused a valuation to be done by a competent valuer with regard to repair and rehabilitation work required to be
undertaken in respect of the
G+4 storied
building
at the
said premises. The valuer estimated that a total sum of Rs.1,30,00,000/- was required to be expended in order to make the said building habitable. The said report prepared by Construct
Engineers, a firm of engineers who are into architectural planning and construction, took
into account both the repair
works for
damaged
portion of the
building as also unfinished works
not done as per the development
agreement between
the parties. In spite of repeated requests, the opposite parties failed to fulfill the obligations under the
development agreement
and thus were
in
fundamental breach
of the essential
terms
thereof. The petitioner terminated the said agreement on February 25, 2020.
11.
That the
petitioner also
noticed that heaps of broken furniture along with other junk and garbage had been kept indiscriminately in
the various units of the said building including the units falling in the owners' allocation. By several letters issued from time to time, the opposite
parties being the developers were requested to remove the same from the said building, but the opposite parties took
no step to comply with
such request made by the petitioner. The aforesaid abandoned materials were blocking up substantial space within the owner's allocation and were rendering the
same unusable. Under such circumstances in or about September, 2019 the petitioner was
compelled to
undertake the task of removing these
abandoned materials from the units falling within the owner's allocation. The Opposite Parties were kept duly informed of such removal and the
opposite parties showed
no interest in retrieving the materials or taking
possession of the same. The petitioner has thereafter taken physical possession of the owner's allocation mentioned in paragraph no. 8 of this petition. Presently the petitioner is in possession, control and
occupation of
the units falling
within the owner's
allocation.
12.
That at one point of time it appeared to the petitioner that the opposite parties
were no longer interested
in
completing the balance work or taking possession of the developers' allocation in the said building. However, all of a sudden, sometime in July, 2021 the instance. The some officers
were purportedly acting as per complaints apparently officers of the Regent Park Police Station sought to intervene in the
matter at the
opposite parties made by the
opposite parties. It is at the instance of the
police that the
petitioner
had no other
alternative but to agree to the posting of a security guard in addition to the petitioner’s
security guard. The
petitioner
had
objected to
such proposition.
It
was then proposed that the disputes between the
parties would be attempted
to be resolved through the exercise of arbitration. The petitioner was agreeable to the same and also forwarded a draft arbitration agreement
to the developers. No constructive response has
been received thereto from the opposite parties, yet.
13.
It
is pertinent to mention herein that in the interregnum two notices dated June 11, 2019 and August 27, 2019 were issued by one Mr Syed Omar Tauhid, Advocate, at the instance of the
developers, inter alia, contending that the
Supplemental Agreement was allegedly based on unconscionable bargain and that the developers were compelled to
sign the Supplemental Agreement
although
the purported
intention
of the parties
had all
along been that
only
in the event of extension for completion being
granted by the petitioner, that
the developers would
be
compelled to provide 40% ratio
more than the ratio mentioned in the development agreement to our client. However, since the developers were sure that no extension would be required for
completion of the new building, the developers signed the Supplemental Agreement with a
further understanding to keep the same with Sandersons &
Morgans, Solicitors & Advocates as a contingent contract. The said contention made on behalf of the developers is
completely false and baseless and the same would be evident from Clause 4 of the Supplemental Agreement which reads as follows: “4. At the request of the Developer, the
Owner has agreed to permit the
Developers extended period for completion of the New Building and also agreed to
provide
certain
additional facilities and in consideration thereof, the owners and the Developers have
mutually agreed that in modification of the Principal Agreement the owner will be entitled to 80% of the constructed area and the Developers will be entitled to retain the remaining portion of the
constructed area and to
give effect to the aforesaid arrangement the Parties hereto have agreed to execute a proper Supplemental Agreement, being these presents, by way of modification of the
Principal Agreement." The Petitioner has duly
replied to the aforesaid notices.
14.
So
far as
share of the
allocation
between
the
owners and the developers is concerned, in terms of the Supplemental Agreement the
petitioner is entitled to 80% of the constructed area being 11,053.60 sq.ft. and the developers were entitled to 20% of the
constructed area being
2763.40 sq.ft. therein. Even if the developers' contention with regard to invalidity of the
Supplemental Agreement dated January 27, 2006 is assumed to be correct (though not making any admission in that regard) then too the petitioner is entitled to 11,860 sq.ft. of the constructed area if the development agreement is read with the deed of sale dated June 10, 2003 and the indenture dated February 13, 2006. To clarify, it may be stated that in
the deed of sale dated June 10, 2003 executed between the
petitioner and the opposite parties, the petitioner agreed to sell 4 cottahs
of land to the Developers in
lieu of 7600 sq.ft. constructed area in the new building, the monetary value of which was agreed to
be Rs.30 lakh. The indenture I was subsequently executed where under
the self-same 4 cottahs of
land was purchased
by
the
developers from
the owners for a consideration of Rs.5 lakh. Upon simple mathematical calculation it can be ascertained that the
balance consideration
money of Rs.25 lakh can be attributed to 6333 sq.ft. of constructed area in the new building. As such, in terms of the development agreement read with the sale agreement the
petitioner is entitled to the following: (a) Based on 40% entitlement as per the development agreement the petitioner is
entitled to 5527 sq.ft.
built-up
area; and (b)
The balance
consideration of
Rs.25
lakh can be attributed to 6333 sq.ft. area in the new building; Therefore,
the total
area
which the petitioner
is entitled to is 11860
sq.ft; As a gesture of
concession
and goodwill, the petitioner agreed to settle at 11,053 sq.ft. in terms of the Supplemental
Agreement instead of 11860
sq.ft. as demonstrated above.
15.
Presently, the said building at premises no.115B, N.S.C. Bose Road, Kolkata - 700040 stand in a dilapidated
condition and is sustaining
damage on a
day to day basis being exposed to the vagaries of nature in an unfinished stage. In such view of the matter the petitioner
proposes the following in order to cause resolution of disputes between the parties:-
a)
The
Opposite Parties being the Developers may complete the unfinished work of the building in totality in terms of the
Development Agreement read with the Supplementary Agreement and also pay to the petitioner a sum of Rs. 29,20,233 being the amount expended on behalf of
the Opposite Parties by the
petitioner
in getting the building partly repaired along with interest @
12% per annum.
b)
The
Petitioner is agreeable to part with possession of the 13 units falling within the
owner's allocation
in favour of the
Opposite Parties, as
mentioned paragraph no. 8
hereof,
against a sum of
Rs.6,50,00,000/-
@
Rs.
50,00,000 for each unit along with further amount of Rs.2 crores for loss and damage sustained by the
Petitioner.
16.
That
since none of the
proposals were accepted
by the Opposite Parties, the
Petitioner
by letter dated
21.11.2022 and
24.05.2023
issued
notice
under Section 20 of the Specific
Relief Act, 1963
(Substituted
Performance).
17.
That the petitioner has
engaged contractors to finish uncompleted work that has remained unfinished since many years and this has caused enormous damage to the building and
while getting
the work done
the
petitioner’s contractors
are facing difficulty due to unwanted material are lying dumped on the
ground floor. Though it is the opposite parties obligation
to finish
the pending works, the
petitioner has
decided to get the work done on their own under for habitable conditions at the
premises.
18.
That
the Opposite Parties have no right, title, & interest in the schedule
property. The Opposite Parties all along tried to disturbed the peaceful
possession of the schedule property of the petitioner by placing building
materials garbage and several obstructions, so far.
19.
That
the Opposite Parties do not have any entitlement over the schedule property by
way any stretch of imagination. The Opposite Parties are engaged in continuous
disturbance, and thereby the Opposite Parties are trying to grab the property
of the Petitioner with the help of their anti-social men, associates and agents.
20.
That
such a real cause raising much disturbance in the vicinity, and highly affected
the peace & tranquility at the locale.
21.
That
the Petitioner lodged its complaint /information to the concerned Police
Station at Regent Park Police Station by its’ Letter dated 03-04-2025, and
subsequently by a letter dated 09-04-2025, given by the Learned advocate, which
has duly been acknowledged as received under the seal and signature of the
Regent Park Police Station; But did not take any recourses in removing the
abandoned goods and materials in facilitating to finish uncompleted work that has remained unfinished since many years and this has caused enormous damage to the building and
while getting
the work done
the
petitioner’s contractors
are facing difficulty due to unwanted material are lying dumped on the
ground floor.
22.
That
pertinently, due to non-performance and willful breach of contractual
obligations by the Opposite Parties, the petitioner’s premises remains in an
unfinished and dilapidated conditions, with substantial unwanted materials
obstructing the premises.
23.
That
despite filling multiple complaints at the Regent Park Police Station and
serving notices including the notice dated 01-03-2024, requesting removal of
substantial unwanted materials which causes obstructing the premises of the
petitioner. The Opposite Parties have willfully neglected compliance. The
inaction of the Police has further exacerbated the petitioner’s situation of
hardship in rendering the petitioner unable to proceed with repairs and
renovation work at the petitioner’s premises.
24.
That
it is pertinent to states that the said unwarranted materials dumped on the
premises of the petitioner are obstructing ongoing repair and necessary
construction efforts by the petitioner. The petitioner has engaged contractors
to finish the work but the obstructions raised by the opposite parties causing
severe delays, financial losses and risk to the public safety. Therefore
immediate preventive action is require to protect the life & property at
the vicinity.
25.
That
the Opposite Parties are not a persons of good moral character, acquiring their
nature of dangerous, which much disturbing in society more particularly at the
locale. The Opposite Parties are habitual persons in dealing unlawful
continuous disturbance at the locale. The people in the vicinity are much aware
about the illegal activities & unlawful deeds of the Opposite Parties.
26.
That
the cause of action arose on 03-04-2025, when the Opposite Parties repeated
forcibly adopting unlawful recourses to grab the schedule property of your
petitioner, which is well within the premises under the Police Station- Regent
Park, which lies in the jurisdiction of this Learned Court.
27.
That
your Petitioner beg to state that finding no other alternative the petitioner
lodge this facts with the concern police station at Regent Park, with a request
for the appropriate legal recourses against the opposite parties and its
associates to prevail law and order at the locality.
28.
That
the Police did not take any effective steps in terms of the facts and in the
Law, nor cause any enquiry thereof. The opposite parties acquired indulgence of
such inaction of the police authority concern of the Regent Park Police Station,
and therefore the Opposite Parties, with their men, and agents, trying
themselves, time and again to cause enormous disturbance at the schedule
property of your petitioner.
29.
That
in given facts and circumstances, your petitioner is in much disturbance at the
schedule premises at the behest and instances of the opposite parties, who
deliberately and willfully cause the disturbance on their visit at the schedule
premises of the petitioner.
30.
That
the Opposite parties are creating and sustaining breach of peace at the
schedule premises by their unwanted, unauthorized, illegal purported and
perverted activities at the schedule premises, with the help of their men,
agents and anti-social associates thereof.
31.
That
the Opposite Parties are of dangerous in nature and much pretended to cause
disturbance and harassment to your petitioner.
32.
That
your Petitioner beg to state that the situation is very tensed and there is
every possibilities of serious breach of peace due to continuous illegal
intervention on the schedule property of the petitioner, thereof.
33.
That
the petitioner state and submit that the Opposite Parties are deliberately,
willfully, causes such acts and illegal deeds, breaching peace at the premises
of your petitioner, continuously, day by day, and did not stop such illegal
activities, even after reporting to the Police.
34.
That
your petitioner being frightened on seeing vulgar activities of the opposite
parties and their members as they are desperate and danger in nature, at any
moment a serious breach of peace may occur at the scheduled property, if the
opposite parties and their members are not restrained from their illegal and
unlawful activities.
35.
That
the situation is aggravated and tension mounted on your petitioner, have a
reasonable apprehension that a serious breach may take place any moment.
36.
That
the opposite parties are commonly intended to commit the breach of peace under
the locality and in a view to establish their wrongful demands and to harass
and hackle the petitioner in every manner.
37.
That
under such circumstances, it is most humbly prayed that this Learned Court may
be pleased to issue necessary orders/directions under Section 163(2) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 restraining the Opposite Parties from
causing any obstruction to the petitioner’s ongoing repair and completion work
and from unlawfully entering, interfering with, or disturbing the petitioner’s
peaceful possession and enjoyment of the said premises, and/or taking any
coercive steps or threatening the petitioner's contractors or workers in the
course of such work; and to pass such further order(s) as this Learned Court
may deem fit and proper in the interest of justice.
38.
That
thus the Petitioner is compelled to resort the legal proceeding before this Ld.
Court.
39.
That
this application is made bonafide and in the interest of administration of
justice.
In the circumstances, it is therefore
prayed that your Honour would graciously be pleased to drawn up proceeding
under section 163(2) of the Bharatiya Nagarik Suraksha Sanhita’
2023; (Section 144(2) of the Code of Criminal Procedure’ 1973), and further
be pleased to direct the Officer-in-Charge of Police of the Regent Park Police Station to restrain the Opposite Parties
and their men and agents and associates,
to enter upon the schedule property of the petitioner, and to stop their
illegal and unlawful activities on the
schedule property of the petitioner in completion of the construction work
at the building premises and the removal of substantial garbage and unwanted abounded
materials at the petitioner’s schedule premises i.e. as described in the
schedule, herein, and to ensure that no breach of peace occurs at the said
premises and to provide adequate police protection to the petitioner, if
necessary, and to submit report, and / or
to pass such other necessary order or orders as your Honour may deem fit and
proper for the end of justice.
And
for this act of kindness, your Petitioner, as in duty bound shall ever pray.
SCHEDULE OF PROPERTY
ALL
THAT piece and parcel of Land containing an area of 820.83 Sq. Mtrs. Together with
the newly constructed building structures, thereon lying and situated at K.M.C.
Premises no. 115B, Netaji Subhas Chandra Bose Road, Kolkata – 700040, under the
Police Station Regent Park, Ward no. 097 of the Kolkata Municipal Corporation, District
South 24 Parganas. The property is butted and bounded in the following;
ON THE NORTH
: 115/B/1,
N.S.C. Bose Rd;
ON THE EAST
: 40’
Wide K.M.C. Road;
ON THE SOUTH
: 115A,
N.S.C. Bose Road;
ON THE WEST
: Back
Portion of the Apartment;
V E R I F I C
A T I O N
I,
Radheshyam Mishra, Son of Late Damodar Mishra, being the representative
of the Petitioner, in the present proceeding, I am Conversant and acquainted
with the material facts, therefore, I do hereby declare that the statements
made in Paragraphs 1 to _____ above are true to my knowledge and belief, and I
sign and verify this application, as on _________________2025, at Alipore,
South 24 Parganas.
Signature
Identified by me,
Advocate.
AFFIDAVIT
I,
Radheshyam Mishra, Son of Late Damodar Mishra, aged about
______years, by faith Hindu, by Occupation Service, residing at Premises being
no. 13, N.S.C. Bose Road, Kolkata – 700040, District – South 24 Parganas,do hereby solemnly affirm and
says as follows;
1. I am the duly authorized
representative of the Petitioner in the present proceeding. I am conversant and
acquainted with the material facts. I am Competent to swear this affidavit.
2. That the
statement made in the paragraph no. 1 to ____, are true to my knowledge and
belief and the rests are my submissions before the Learned Court.
That
the above statements are true to the best of my knowledge and belief.
DEPONENT
Identified by me,
Advocate
Prepared
in my Chamber,
Advocate
Date
:_______________2025
Place
:Alipore, South 24 Parganas
N O T A R Y
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