Ashish Tibrawalla & Ors vs Atulya Diagnostics Llp & Anr
2021 Latest Caselaw 4778 Cal

13.09.2021
Sl. 2 & 3              (Via Video Conference)
Ct.No. 03
Amalranjan
             IN THE HIGH COURT AT CALCUTTA
              CIVIL APPELLATE JURISDICTION
                     APPELLATE SIDE
                  (COMMERCIAL DIVISION)

                     FMAT 524 of 2021

                  Ashish Tibrawalla & Ors.
                             Vs.
                Atulya Diagnostics LLP & Anr.
                            With
                     CAN No. 1 of 2021

                            With

                     FMAT 443 of 2021

                M/s. Atulya Diagnostics LLP
                            Vs.
                 Ashish Tibrawalla & Ors.
                           With
                     CAN No. 1 of 2021


             Mr. Debnath Ghosh
             Mr. Sushovit Dutt Majumder
             Mr. S. Dasgupta
             Ms. Pubali Sinha Chowdhury
             Mr. Bhavesh Garodia
                                          ...for the appellants
                     in FMAT 443 of 2021..for the respondents

Mr. Debjit Mukherjee Mr. F. Ray Mr. Kaustav Bhattacharya ...for the respondents in FMAT 443 of 2021...for the appellant

Re: FMAT 524 of 2021

We admit the appeal.

As the point involved is very short and the

matter scheduled to be taken up by the learned

court below on 25th September, 2021, we

propose to hear out the appeal itself, dispensing

with all formalities.

This is a typical landlord and tenant

dispute.

The lessors allege breach of covenant of the

subject lease by the lessee. They have

determined the lease and claim vacant

possession of the premises where the lessee runs

a diagnostic centre. It is also alleged by them

that there is a huge amount of arrear

rent/occupation charges aggregating about Rs.

13.5 Lakhs as of now.

The lessee counter alleges breach of

covenant by the lessors, namely, their failure to

keep the premises wind and water proof.

There is an arbitration agreement between

the parties. Contested issues between them

must be decided by the learned court below or

by the arbitral tribunal.

As an interim measure, we direct that the

respondent no. 1 shall pay to the appellants

immediately by 20th September, 2021, Rs. 8

Lakhs as an ad hoc amount and without

prejudice to the rights and contentions of the

parties towards the said claimed arrear

rent/occupation charges.

Furthermore, the respondent no. 1 shall pay

to the appellants occupation charges at the rate

of Rs. 3 Lakhs per month as rent/occupation

charges, (being the rent last paid or payable),

from September 2021 every month and payable

by the 7th of each succeeding month punctually,

without prejudice.

We appoint the advocates on record for the

parties as Joint Special Officers to inspect the

premises, identify the repairs, which need to be

done to prevent seepage of water into the

demised premises including the lift shaft.

Upon such identification by them to be

recorded in minutes and in a report to be filed in

the learned court below, the appellants shall

have the option of effecting the repair. In

default, the repair may be made by the

respondent no. 1.

All questions regarding the responsibility to

repairs, payments and adjustment of payments

shall be decided by the learned court below or by

the arbitral tribunal if and when constituted.

With these directions and observations, the

appeal (FMAT 524 of 2021 along with the

connected application (CAN 1 of 2021) for stay

are disposed of, setting aside the impugned

judgment and order, except the directions

contained therein for posting of the interim

applications for hearing.

FMAT 443 of 2021

M/s. Atulya Diagnostics LLP Vs.

Ashish Tibrawalla & Ors.

With CAN No. 1 of 2021

We admit the appeal.

In view of our order passed today in the

appeal FMAT 524 of 2021 (Ashish Tibrawalla &

Ors. Vs. Atulya Diagnostics LLP & Anr.), we

dispose of the appeal (FMAT 443 of 2021) along

with the connected application (CAN 1 of 2021)

for stay by directing that the respondents shall

not change the status quo regarding possession

of the appellant till further order of the court

below or by the arbitral tribunal, if and when

constituted.

( Aniruddha Roy,J. ) ( I. P. Mukerji,J. )