Calcutta High Court (Appellete Side)
Alw Estates Private Limited vs M/S Rajlaxmi Invetment And ... on 7 April, 2021
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present:
The Hon'ble Justice Biswajit Basu.
C.O. 3855 of 2019
ALW ESTATES PRIVATE LIMITED
vs.
M/S RAJLAXMI INVETMENT AND TRADING COMPANY PRIVATE LIMITED
and
ELECTRIC CONSTRUCTION & EQUIPMENT COMPANY LIMITED
WITH
C.O. 3928 of 2019
M/S RAJLAXMI INVETMENT AND TRADING COMPANY PRIVATE LIMITED
vs.
ALW ESTATES PRIVATE LIMITED
and
ELECTRIC CONSTRUCTION & EQUIPMENT COMPANY LIMITED
For the petitioner: Mr. Shakti Nath Mukherjee, Sr. Adv.,
Mr. Arindam Banerjee,
Ms. Arpita Banerjee,
Mr. Animesh Paul.
For the opposite parties: Mr. Utpal Bose, Sr. Adv.,
Mr. Raja Basu Chowdhury,
Mr. S.N. Dutta,
Mr. Baskar Mukherjee,
Ms. Debjani Ghosh,
Ms. Nafisa Yasmin.
Heard on : 19.03.2021
Judgment on : 07.04.2021
Biswajit Basu, J.
1. These two revisional applications under Article 227 of the Constitution of
India are taken up together for analogous hearing and disposal since both the
revisional applications are directed against the Order No. 39 dated September 21,
2019 passed by the learned Civil Judge (Senior Division) at Sealdah in misc. Case
No. 05 of 2017 arising out of Title Execution Case No. 01 of 2011.
2. ALW Estates Private Limited (hereinafter referred to as the 'ALW' in short) is
the petitioner of C.O. 3855 of 2019 whereas M/s. Rajlaxmi Investment and Trading
Company Private Limited (hereinafter referred to as the 'Rajlaxmi' in short) is the
petitioner of C.O. 3928 of 2019.
3. The undisputed facts of this case relevant to deal with the issues involved in
the present revisional application are thus, Rajlaxmi by a deed of lease dated
February 01, 1956 inducted Electronic Construction and Equipment Company
Limited (hereinafter referred to as the 'ECE' in short), the opposite party no. 2 in
both the revisional applications, as lessee for a period of forty years in respect of
more or less 20 Bighas 4 Cottahs and 9 Chittaks of land with different structures
standing thereon at Premises No. 9, Kaliprasanna Singha Road, Kolkata- 700002
(hereinafter referred to as the 'leasehold property' in short). Rajlaxmi after expiry of
the said period of lease filed a suit for eviction against ECE in the Court of learned
Civil Judge (Senior Division) at Sealdah being Title Suit No. 12 of 1997.
4. The Rajlaxmi during the pendency of the said suit for eviction, by an
agreement dated July 01, 2006 agreed to grant lease to ALW after disposal of the
said suit for eviction for a period of twenty one years in respect of an area of
60,000 sq. ft. out of the entire leasehold property on the terms and conditions
enumerated in the said agreement. In the said agreement, possession of eighteen
business associates of ALW over the area of 60,000 sq. ft. was acknowledged and
names of the said business associates of ALW were recorded under a schedule
appended to the said agreement.
5. The said suit for eviction was decreed on December 18, 2010. ECE, although
preferred Title Appeal No. 56 of 2010 against the said decree, but ultimately
withdrew it. The said decree was put into execution in Title Execution Case No. 01
of 2011. In the said execution case, ALW has filed an application under Order XXI
Rules 99 to 101 read with Section 151 of the Code of Civil Procedure for
determination of the question of its status as lessee under Rajlaxmi on the basis of
the aforesaid agreement dated July 01, 2006 in respect of the said 60,000 sq.ft of
area which is more fully described under the schedule appended to the said
application (hereinafter referred to as the 'subject property' in short). The said
application has been registered before the executing Court as the misc. Case No.
05 of 2017 out of which the present revisional applications arise.
6. The prayers of ALW for stay of all further proceedings of the execution case
till the disposal of the said misc. case and for recall of an order granting Police help
to Rajlaxmi for execution of the said decree of eviction were refused by the
executing Court. ALW challenged the said orders in two separate revisional
applications being C.O. 3840 of 2018 and C.O. 3836 of 2018.
7. The said revisional applications were allowed by the judgment and order dated
June 19, 2019 by granting stay of all further proceedings of the execution case till
the disposal of the said misc. Case with a direction upon the executing Court to
assess the appropriate occupation charges as condition for such stay upon hearing
both sides and, if necessary, permitting them to produce documentary and other
evidences. The parties did not adduce any oral evidence, however, after the matter
was remanded back to the executing Court, Rajlaxmi, on August 08, 2019 filed an
application for fixation of said occupation charges @ Rs. 17.33 per sq. ft. per
month on the basis of a report regarding market value and rental value of the
subject property prepared by one Talbot and Company.
8. The executing Court by the order impugned has assessed the said occupation
charges @ Rs. 5 per sq. ft. per month. The executing Court while fixing the
occupation charges at the said rate, took into its consideration the clause of the
said agreement dated July 01, 2006 whereby Rajlaxmi and ALW agreed that the
lease rent of the subject property would be @ Rs. 3 per sq. ft. per month but
enhanced the said rate to Rs. 5 per sq. ft. per month on the ground that the said
agreement was executed long back. The executing Court discarded the report of
the said Talbot and Company on the ground that it is a private report and the
author of the report has not been examined. The occupation charge so assessed
was directed to be paid from December 18, 2010 i.e. the date of the said decree of
eviction.
9. Mr. Shakti Nath Mukherjee, learned senior counsel appearing on behalf of
the ALW submits that in the misc. Case, ALW is seeking determination of its right
to occupy the subject property as lessee under Rajlaxmi on the basis of the
independent agreement dated July 01, 2006, as such, pending determination of
the said question, Rajlaxmi cannot take possession of the subject property in
execution of the said decree of eviction. Mr. Mukherjee, to buttress his such
argument, refers to the decisions of the Hon'ble Supreme Court in the case of
ANWARBI VS. PRAMOD D.A. JOSHI & OTHERS reported in (2000) 10 SCC 405
and in the case of BRAHMDEO CHAUDHARY VS. RISHIKESH PRASAD JAISWAL
& ANOTHER reported in (1997) 3 SCC 694 and also the unreported judgment of
the learned Single Judge of this Court dated November 16, 2018 passed in C.O.
3436 of 2018 (SRI AMITAVA MITTER & ORS. VS. M/S. NEELAM & ORS.)
10. Mr. Mukherjee then submits that the executing Court was directed to
"assess appropriate occupation charges", according to him, the word 'appropriate'
in the context of the present case should be interpreted to include an investigation
as to whether ALW is at all liable to pay any occupation charges. He takes the aid
of 'WEBSTER NEW DICTIONARY AND THESAURUS (CONCISE EDITION)',
'WORLD BOOK DICTIONARY' and the decision of the Hon'ble Supreme Court in
the case of COLLECTOR OF CENTRAL EXCISE, VADODRA VS. DHIREN
CHEMICAL INDUSTRIES reported in (2002) 2 SCC 127 to elucidate the meaning
of the word 'appropriate'. Mr. Mukherjee relies on the decision of the Privy Council
in the case of FATEH SINGH AND ORS. VS. JAGNNATH BAKHSH SINGH AND
ANOTHER reported in AIR 1925 PC 55 and the decision of this Court in the case
of ABDUL HAMID SARDAR VS BIJOY CHAND MAHATAP & OTHERS reported in
AIR 1932 (CAL) 108 to contend that the direction for determination of
"appropriate occupation charges" cannot obliterate the requirement of the
aforesaid investigation as no direction and/or liberty granted by the Court in
favour of a party to a proceeding can create a right contrary to law. Mr. Mukherjee
concludes that the executing Court by proceeding to determine the quantum of the
occupation charges sans such investigation has committed a jurisdictional error.
11. Mr. Mukherjee, on the issue of quantum of the occupation charges submits
that Rajlaxmi in the year 2015 has inducted some other lessees in respect of
different portion of the leasehold property @ Rs. 1.52 per sq. ft. per month, as
such, the said occupation charges, if at all payable by ALW, cannot be more than
the said rate. He alternatively submits that the rate of lease rent was fixed by the
terms of the said agreement dated July 01, 2006 at Rs. 3 per sq. ft. per month with
an enhancement of 10% every 3 years. He submits that the rate so agreed upon by
the parties cannot be altered by the Court and in support of his such contention,
he relies on the decision of the Hon'ble Supreme Court in the case of RAM KUMAR
DAS VS. JAGADISH CHANDRA DEB DHABAL DEB & OTHERS reported in AIR
1952 (SC) 23.
12. Mr. Mukherjee on the point from which date the said occupation charges is
payable contends that so long ECE is not dispossessed from the leasehold property
in execution of the decree of eviction, ALW being sub-lessee cannot be touched,
and in support of his such contention, he relies on the decision of the Division
Bench of this Court in the case of IN RE: GANESH TRADING CO. PVT. LTD.
reported in AIR 1985 (CAL) 37. According to him, since Rajlaxmi has not yet
obtained the possession of the leasehold property from ECE in execution of the
said decree of eviction and since Rajlaxmi has not yet executed the deed of lease in
terms of the agreement dated July 01, 2006, the period for payment of such
occupation charges by ALW, if at all, cannot commence. Further argument of Mr.
Mukherjee on this point is that ALW, in terms of the direction of the Division
Bench passed in an appeal being SMAT 02 of 2018 preferred by ALW, deposited a
sum of Rs. 2 crores as the condition for stay of the execution case but since
Rajlaxmi did not withdraw the said amount, the same was withdrawn by ALW
itself in terms of the order dated August 24, 2018 passed by the Hon'ble Supreme
Court in the Special Leave Petition arising out of the said appeal. Therefore,
according to him, liability of payment of occupation charges, if any, cannot be fixed
upon ALW till August 24, 2018, such liability, at best, can commence on and from
June 19, 2019 when the earlier two revisional applications i.e. C.O. 3840 of 2018
and C.O. 3836 of 2018 were allowed and the executing Court was directed to
"assess appropriate occupation charges".
13. Mr. Utpal Bose, learned senior counsel appearing on behalf of the Rajlaxmi
submits that in view of the specific direction to determine the "appropriate
occupation charges" as the condition for grant of stay of the execution case, there
is no scope for investigation as to whether ALW has any liability at all to pay such
charges to protect its possession over the subject property during the pendency of
the said misc. Case. He submits that the questions to be determined in the present
revisional applications are limited to what should be the proper quantum of the
said occupation charges and from which date such charges is payable.
14. Mr. Bose, to justify the prayer of Rajlaxmi for fixation of the said occupation
charges at the rate more than the rate fixed by the executing Court firstly refers to
an order passed in C.O. 3565 of 2012 arising out of the appeal filed by ECE
against the decree of eviction whereby the occupation charges was fixed @ Rs. 20
lakhs per month, subsequently reduced to Rs. 19 lakhs per month as the
condition for grant of stay of the execution case and contends that if the said two
rates are taken into account, the occupation charges cannot be less than Rs. 8.33
per sq. ft. per month. He further submits that Talbot and Company is a reputed
valuer; the executing Court is not justified in discarding the said report merely
because it was prepared at the instance of decree-holder, if the said report is taken
into account, the rate of said occupation charges should be Rs. 17.33 per sq. ft.
per month.
15. On the issue from which date the said occupation charges is payable, Mr.
Bose submits that ALW is claiming to be in possession of the subject property on
and from the date of execution of the agreement dated July 1, 2006 and
admittedly, no payment in terms of the said agreement has been made since
August 2007 therefore, according to him, ALW is liable to pay the said occupation
charges from August 2007, not from the date of the said decree of eviction as
directed by the executing Court.
Heard learned counsel for the parties, perused the materials-on-record.
16. The obstructionist of a decree when invites the executing Court to determine
the question of his right, title and interest over the decretal property or any part of
it under Order XXI Rule 101 of the Code, on an application under Rule 97 or Rule
99 thereof, such question is required to be determined before dispossession of the
said obstructionist from the decretal property or from any part of it in execution of
the said decree, this is the proposition of law enunciated by the Hon'ble Supreme
Court in the case reported in (2000) 10 SCC 405 (supra). It is not the natural
corollary of the said proposition of law that pending determination of the said
question, the obstructionist, to protect his possession over the said property, is not
required to comply any reasonable term to compensate the decree-holder for loss
occasioned by delay in execution of decree by grant of stay order. "An applicant for
order of stay must do equity for seeking equity" (see ATMA RAM PROPERTIES (P)
LTD. VS. FEDERAL MOTORS (P) LTD. reported in (2005) 1 SCC 705). The
unreported decision of the learned Single Judge of this Court in the case of SRI
AMITAVA MITTER & ORS. VS. M/S. NEELAM & ORS (supra) is not laying down
the general proposition of law that such obstructionist is not required to comply
any condition for stay of execution of the decree pending adjudication of his right,
title and interest over the decretal property.
The question whether the said terms and/or conditions for stay of the decree
under execution should be, at all, imposed upon such obstructionist or not is to be
determined on the basis of the facts and circumstances of the each case.
17. The decision of the Hon'ble Supreme Court in the case reported in (1997) 3
SCC 694 (supra) is no pointer in deciding the issues involved in the present
revisional applications, inasmuch as in the said decision it has been held that it is
an erroneous view that the stranger to the decree has no locus standi to get
adjudication of his claim prior to the actual delivery of possession to the decree-
holder in the execution proceeding.
18. The executing Court was directed to "assess appropriate occupation charges
as condition for such stay". The said direction restricts the investigation of the
executing Court only to ascertain the befitting occupation charges on the basis of
relevant factors. Therefore, in view of the said specific direction, there is no scope
to interpret the word "appropriate" in a manner to bring the question of liability of
ALW to pay occupation charges as the condition for stay within the sweep of the
said investigation, as suggested by Mr. Mukherjee.
19. ALW in the misc Case No. 05 of 2017 is seeking determination of a question
regarding his status over the subject property on the basis of the agreement dated
July 01, 2006 and in terms thereof, ALW is liable to pay lease rent. Hence, ALW
cannot evade its liability to make payment to Rajlaxmi to protect its possession
over the subject property pending determination of the question raised by it in the
said misc. Case and in view thereof, the direction passed in the earlier revisional
applications to assess appropriate occupation charges was well within the power of
the learned Single Judge, consequently, the decisions of the Privy Council reported
in AIR 1925 (PC) 55 (supra) and the decision of the Division Bench of this Court
reported in AIR 1932 (CAL) 108 (supra) cited by Mr. Mukherjee are misplaced.
20. The claim of ALW is based wholly on the agreement dated July 01, 2006 in
which Rajlaxmi was the party of the first part and ALW was the party of the second
part. The clauses of the said agreement governing the rate of lease rent and
increase thereof are quoted below for ready reference:-
"3. The Party of the Second part has agreed to pay @
Rs.3/= per sq. ft. on account of 60,000/- sq. ft. occupied
by his business associated in the said premises No. 9, Kali
Prasanna Singhee Road, Kolkata - 700 002, for a term of
21 years lease to safe guard his own interest as is where
is basis:
4(a). That pending the said title suit No. 12/1997 and
disposal of the same, the party of the first part will accept
the party of the second part as intending lessee under it,
subject to the disposal of the said suit and measurement of
the actual area under the possession of the business
associates of party of the second part and ad hoc basis
pending measurement of the occupied sq. ft. as
represented by the party of the second part thereby paying
a monthly ad hoc lease amount/fees of Rupees 1,80,00
(Rupees one lakh eighty thousand) only per month to be
paid in advance for each month it is due within the 7th day
of every month.
4(f). An increase of 10% every 3 years will be made on the
existing lease amount as per law on the prevailing lease
amount as mentioned in clause 4(a) herein due to be paid
by the party of the second part."
21. In view of the aforesaid clauses in the said agreement, regarding rate of
lease rent and increase thereof, particularly when the said agreement has not yet
been impeached by either of the parties to the present lis, no other document is
relevant to determine the appropriate occupation charges, be it any order/orders
passed in any earlier proceedings in connection with the leasehold property or any
document whereby new lessees have been inducted in the said property or any
independent valuation report in respect of the subject property.
22. The executing Court, therefore, has rightly relied on the said agreement in
assessing the amount of occupation charges but fixing the said charges @ Rs. 5
per sq. ft. per month is amounting to varying the contract between the parties as it
is rightly pointed by Mr. Mukherjee relying on the decision of the Hon'ble Supreme
Court reported in AIR 1952 SC 23 (supra) wherein at paragraph 15 has held that
"it is one thing to say that in the absence of a valid agreement, the rights of the
parties would be regulated by law in the same manner as if no agreement existed at
all; it is quite another thing to substitute a new agreement for the parties which is
palpably contradicted by the admitted facts of the case."
23. The next question falls for consideration is from which date such occupation
charges is payable. ALW has prayed for stay of the execution case levied to execute
the decree of eviction against ECE. Therefore, the date of the said decree is the
only relevant consideration to answer the aforesaid question. The executing Court,
therefore, has rightly fixed the liability of payment of occupation charges on and
from December 18, 2010 i.e. the date of the said decree of eviction. Pre-decree
default in payment in terms of the said agreement cannot be considered in the
present case as it is beyond the scope of the connected execution case, as such, I
am unable to convince myself to accept the argument of Mr. Bose on this score.
24. The Division Bench of this Court in the case reported in AIR 1985 (CAL) 37
(supra) has considered the questions "as to whether the order for eviction as
passed against the lessee by itself determines the lessee's title to realise rent from
the sub-lessee and whether such an order even before its execution can constitute
eviction by title paramount." The issues under consideration in the present
revisional applications are completely different; as such, the said decision has no
manner of application in the present case.
25. Summing up the discussions made above, the rate of occupation charges
and enhancement thereof are fixed at the rate agreed upon by the parties in the
said agreement dated July 01, 2006, according to the said agreement, the present
monthly occupation charges of the subject property is Rs. 2,63,538 (Two lakhs
sixty three thousand five hundred thirty eight rupees only) calculated @ Rs. 4.39
per sq. ft. per month. The arrear occupation charges on and from December 18,
2010 till April 2021 calculated on the basis of the terms of the said agreement is
Rs. 2,65,95,390 (Two Crores sixty five lakhs ninety five thousand three hundred
ninety rupees only), the detailed calculation of the said arrear occupation charges
is as under:-
CALCULATION CHART OF ARREAR OCCUPATIONAL CHARGES
Period Rate in rupees Amount Period Total amount
Per sq. ft per month payable per month in months
Dec 2010 3.3 Rs. 1,98,000/- 18m14d 198000 X 18=
to Rs. 11,69,418/-
June 2012
July 2012 3.63 Rs. 2,17,800/- 36 217800 X 36=
to Rs. 78,40,800/-
June 2015
July 2015 3.993 Rs. 2,39,580/- 36 239580 X 36=
to Rs. 86,24,880/-
June 2018
July 2018 4.3923 Rs. 2,63,538/- 34 263538 X 34=
to Rs. 89,60,292/-
April 2021
Total arrear occupation charges Rs. 2,65,95,390/-
26. The ALW is required to pay the abovementioned arrear occupation charges to
Rajlaxmi by four equal monthly instalments along with current monthly
occupation charges. First of such instalments is payable within May 07, 2021 and
thereafter the current monthly occupation charges along with the rest of the
instalments of the arrear occupation charges are required to be paid within 7th of
each succeeding months.
27. The execution case has been levied to execute the decree in respect of the
entire leasehold property, the claim of ALW since is in respect of only a part of the
decretal property, there is no justification to put the entire execution case on halt
pending determination of the said question raised by ALW in misc. Case No. 05 of
2017. Therefore, the execution case so far as it relates to the property described
under the schedule to the said misc. Case shall remain unconditionally stayed till
the end of the month of May, 2021 and in the event the payments are made as
directed above, the said stay shall continue till the disposal of the misc. Case. No.
05 of 2017, in default of any of the aforementioned payments, the stay hereby
granted shall automatically stand vacated and the decree shall be executable at
once in its entirety.
C.O. 3855 of 2019 and C.O. 3928 of 2019 are disposed of by modifying the
order impugned to the extent indicated above without any order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be supplied to
the parties upon compliance with all requisite formalities.
(BISWAJIT BASU, J.)
