Calcutta High Court
Pvt. Ltd. And Ors vs Orient Beverages Limited And Ors on 5 April, 2022
OD-7
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
IA No.GA/1/2022
In
GA/17/2022
CS/144/2016
In
APOT/25/2022
SQUARE FOUR ASSETS MANAGEMENT AND RECONSTRUCTION COMPANY
PVT. LTD. AND ORS.
Vs
ORIENT BEVERAGES LIMITED AND ORS.
BEFORE :
THE HON'BLE JUSTICE HARISH TANDON
And
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
Date : 5th April, 2022
Appearance:
Mr. Jayanta Kumar Mitra, Sr. Adv.
Mr. Joy Saha, Sr. Adv.
Mr. Ratnanko Banerji, Sr. Adv.
Ms. Sristi Barman Roy, Adv.
Mr. Zeeshan Haque, Adv.
Mr. Subranil Dey, Adv.
Ms. Sudipta Paul, Adv.
...for the appellants/petitioners.
Mr. Arnab Chakraborty, Adv.
Ms. Pragya Bhowmick, Adv.
...for the respondent no.8.
Mr. Kaushik Banerjee, Adv.
Ms. Rashmita Sen, Adv.
...for the respondent/defendant no.1.
The Court : The appeal is admitted and by consent of parties is taken up
for final disposal.
The instant appeal has been preferred against an order dated 8th
February, 2022 by which the application filed by the respondent no.8 for an
order to hand over possession of the portion of the building in their occupation
to the plaintiffs was allowed.
The suit for recovery of possession as well as the mesne profit was filed
by the appellants primarily on the ground that after the expiration of the
period, provided in the lease deed, by efflux of time, the original lessee has
surrendered but the sub-lessees who remained in occupation continued to
occupy and, therefore, the decree for recovery of possession is required to be
passed against them. Amidst pendency of the said suit, the respondent no.8
volunteered to hand over the possession of the portion in their occupation by
taking out an application which was eventually allowed by the impugned order.
The primary relief claimed in the said suit pertains to the recovery of possession
and if the sub-lessees volunteer to hand over the possession, we do not find any
infirmity and/or illegality in the order in allowing such prayer.
However, we find that the plea was taken by the appellants before the
Single Bench that the said respondent no.8 having in wrongful occupation is
liable to pay the mesne profit and the reference was made to the reports of the
Special Referee filed before the Single Bench. The said report was filed to
ascertain the occupational charges prevalent at the relevant point of time and
on the basis thereof the appellants contend that the respondent no.8 should
not be allowed to walk merrily from the portion in their occupation unless the
quantum so ascertained is paid. In course of the hearing, it transpired that an
application for a judgment on admission under Order 12 Rule 6 of the Code of
Civil Procedure is pending as no final order has been passed thereupon. The
foundation of the said application for judgment on admission can be founded
on the resolution taken in a joint meeting.
Since the matter is still pending adjudication before the Single Bench, we
do not find that an order of such nature can be passed on equitable
consideration. Furthermore, the Single Bench has protected the rights of the
appellants as well as the respondent no.8 while directing the said respondent to
hand over the possession and, therefore, no prejudice shall be caused to the
appellants with regard to the legitimate claim if there be any on account of
mesne profit. However, we have been invited to the fact that pursuant to the
impugned order, the respondent no.8 has offered to hand over the possession of
the portion in their occupation. It is submitted on behalf of the respondent
no.8 that they have withdrawn the security guards placed therein but the
appellants have not responded to such letter as yet. The primary concern of
the appellants is to recover the possession of the demised premises from the
sub-lessees after the surrender by the original lessee, more particularly upon
an expiration of the period provided in the lease deed by efflux of time.
We do not find any justification in not accepting the possession of the
portion in the occupation of the respondent no.8 by the appellants. We, thus,
feel that the appellants must take the possession of the portion in their
occupation of the respondent no.8 immediately. So far as the claim on the
mesne profit or loss suffered for the wrongful possession of the portion of the
respondent no.8 is concerned, the matter is pending before the Single Bench
and we expect that the same would be decided in near future without any
further delay.
With these observations, the appeal and the applications are disposed of.
For abundant caution, we hereby make it clear that any observation made
hereinabove shall not have any persuasive effect in pending applications or in
the suit as it is restricted to an application filed by the respondent no.8 before
the Single Bench which had been eventually allowed.
(HARISH TANDON, J.)
(RABINDRANATH SAMANTA, J.)
s.pal
