Amalgamated Fuels Limited vs Pradip Kumar Jain
2023 Latest Caselaw 1829 Cal/2

                 IN THE HIGH COURT AT CALCUTTA
                 (Ordinary Original Civil Jurisdiction)
                             ORIGINAL SIDE


Present:

The Hon'ble Justice Krishna Rao



                            IA No: GA 1 of 2022

                            In CS 173 of 2021


                     Amalgamated Fuels Limited
                                  Versus
                            Pradip Kumar Jain




           Mr. Avinash Kankani
           Mr. Sarosij Dasgupta
           Mr. Suman Majumder
                                     ... For the plaintiff/respondent.

Mr. Rupak Ghosh Mr. Debdut Mukherjee Mr. Aditya Kanodia Mr. Vivek Basu Mrs. Bani Ghosh ... For the defendant/petitioner.

Hearing Concluded On : 05.07.2023

Judgment on           : 03.08.2023



Krishna Rao, J.:

1. The plaintiff has filed Civil Suit No. 173 of 2021 against the defendant

for eviction, recovery of possession and for mesne profit. In the suit, the

defendant has filed the present application being G.A No. 1 of 2022 for

dismissal of the suit or in the alternative, the plaintiff of the suit be

taken off the file.

2. The defendant has filed the present application on the following

grounds:

a. The tenancy of the defendant is governed under the West Bengal Premises Tenancy Act,1997 and the suit is not maintainable before this Court;

b. The plaintiff has shown the value of the suit overvalued in order to invoke the jurisdiction of this Court by assessing the mesne profit @ Rs.200/- per sq.ft. which is absurd and imaginary.

3. Mr. Rupak Ghosh, learned Advocate representing the defendant

submitted that the monthly rent of the suit schedule premises is Rs.

9,923/- per month and the Municipal Taxes payable by the defendant

is Rs. 6,003/- thus the plaintiff cannot file the suit for eviction of the

defendant before this Court.

4. Mr. Ghosh submitted that the plaintiff has assessed the mesne profit at

the rate of Rs. 200/- per sq. ft. per month is absurd and imaginary and

in the event, the assessment is to be believed, the plaintiff is entitled to

Rs. 2,02,000/- per month though the last monthly rent as claimed by

the plaintiff is Rs. 11,411/- per month.

5. Mr. Ghosh submits that the plaintiff has escalated the monthly

compensation for letting out the suit premises to the defendant from

the alleged amount of Rs. 11,411/- per month to Rs. 2,02,000/- which

is an increase by 1670.22%.

6. Mr. Ghosh relied upon the letter dated 20th April, 2019 issued by the

plaintiff to the defendant which the plaintiff has suppressed in the suit

and in the said letter, the plaintiff has informed the defendant that due

to increase of the component of the Kolkata Municipal Corporation Tax,

the plaintiff is compelled to increase the rent and municipal taxes by

15% from April' 2019. He submits that from the said letter, it is

admitted that the monthly rent is Rs. 9,923/- and 15% is to be

increased on Rs. 9,923/-.

7. Mr. Ghosh submits that in the absence of the mandatory statutory

notice under Section 6 of the West Bengal Premises Tenancy Act, 1997,

the suit is not maintainable and in the present suit, the plaintiff had

not issued any notice under the said Act.

8. Mr. Ghosh submitted that there is no Premises No. 87A, Park Street as

described by the plaintiff. He submits that as per Municipal records

only Premises No. 87, Park Street is in existence.

9. Mr. Ghosh relied upon the Judgment reported in 2015 SCC Online

Cal 507 (State Trading Corporation of India Limited & Anr. vs.

Glencore Grain B.V.) and submitted that "It is the duty of the Court in

such a situation, on full consideration of the materials on record to form

an opinion if the suit is vexatious or an abuse of process of the Court in

the sense that it is bogus and irresponsible litigation, and in the event the

answer is in the affirmative, the Court should dismiss the suit in limine".

10. Mr. Ghosh relied upon the unreported judgment passed by the Hon'ble

Division Bench of this Court in APD No. 265 of 2017 in CS No. 354 of

2012 dated 25th June, 2019 (EIH Ltd. -vs- MS.NADIA A VIRJI)

wherein the Hon'ble Court held that "clearly, the rent does not include

the rates and taxes. Section 3 (f) refers to rent and has nothing to do with

municipal rates and taxes. If the rent component is upto Rs. 10,000/- in

respect of any non-residential premises, the tenant at such non-

residential premises enjoys the protection under the said Act. The

expression used in Section 3 (f) is "more than". The quantum indicated in

the relevant sub-clause is "ten thousand rupees". In other words, if the

rent at any premises used for non-residential purpose is more than ten

thousand rupees per month, it would stand excluded from the purview of

the Act."

11. Mr. Ghosh submitted that the order of the Hon'ble Division Bench

carried in SLP being Civil Appeal Nos. 4797-4799 of 2022 (EIH Ltd.

-vs- MS. NADIA A VIRJI) and the Hon'ble Supreme Court had also held

that "the monthly rent due and payable would be Rs. 10,000/- per

month which cannot be said to be more than Rs. 10,000/- as monthly

rent, the High Court has rightly observed and held that the Act of 1997

shall be applicable and therefore the civil suit filed by invoking Section

106 of the TP Act is impliedly barred."

12. Mr. Avinash Kankani, Learned Advocate representing the plaintiff

submitted that the last paid rent by the defendant to the plaintiff is Rs.

11,411/- per month excluding Municipal Tax. He submits that the

defendant is paying the municipal taxes at the rate of Rs. 6,903/- per

month and parking charges at the rate of Rs. 5000/- per month in

addition to the monthly rent.

13. Mr. Kankani submitted that provisions of West Bengal Premises

Tenancy Act, 1997 are not applicable in the present case as the

premises in non-residential and the monthly rent is more that Rs.

10,000/- per month. He submits that it is the specific case of the

plaintiff that the monthly rent of the premises is Rs. 11,411/- per

month excluding the municipal taxes and parking charges.

14. Mr. Kankani submitted that the letter dated 20th April, 2019 cannot be

looked into as the same is not the part of the plaint. He further submits

that in the said documents, it is mentioned that we are compelled to

increase the rent and municipal tax by 15% from April 2019 and

pursuant to the said letter, the rent and the municipal tax were

increased @ 15% which the defendant had duly paid the same to the

plaintiff on a regular basis but the said fact was suppressed by the

defendant in the application.

15. Mr. Kankani submitted that in the bill dated 1st November, 2020, the

note appearing is a cyclostyle format and the same cannot decide the

applicability of an Act if the same is otherwise not applicable.

16. Mr. Kankani submitted that whether the plaintiff is entitled to get

mesne profit @ Rs. 200/- per month per sq. ft. or any other rate is to be

adjudicated and to be decided by this Court and the same cannot be

determined in an application under Order VII, Rule 11 read with

Section 151 of the Code of Civil Procedure, 1908.

17. Mr. Kankani submitted that scope of the application filed under Order

VII, Rule 11 of the Code of Civil Procedure, 1908 is very limited and the

averments made in the plaint have to be taken to be true and correct

and the defence of the defendant cannot be looked into.

18. Mr. Kankani relied upon the judgment reported in (1987) 3 SCC 705

(Smt. Nandita Bose vs. Ratanlal Nahata) and submitted that :

"The question whether the appellant would be entitled to a decree for mesne profits/damages at the rate of Rs 7800 per month or at any other rate after the termination of the tenancy is a matter which has to be decided in the suit. If ultimately it is found that the appellant is not entitled to get mesne profits or damages for the period subsequent to February 1, 1985 and that she is only entitled to receive Rs 1400 per month, the suit in respect of the claim over and above Rs 1400 per month, will have to be dismissed. But the question whether she was entitled to claim mesne profits or damages in respect of the period subsequent to February 1, 1985 could not have been disposed of at a preliminary stage even before the trial had commenced."

19. Mr. Kankani Relied upon the following judgments:

"i. (2021) 9 SCC 99 (Srihari Hanumandas Totala -vs- Hemant Vithal Kamat & Ors.).

ii. (2020) 17 SCC 260 (Shakti Bhog Food Industries Limited -vs- Central Bank of India & Anr.).

iii. (2020) 6 SCC 557 (Nusli Neville Wadia -vs- Ivory Properties & Ors.).

iv. (2019) 15 SCC 46 (Alpana Gupta through Power of Attorney Holder -vs- APG Towers Private Limited & Anr.).

v. (2015) 8 SCC 3331 (P.V. Guru Raj Reddy represented by GPA Laxmi Narayan Reddy & Anr. -vs- P. Neeradha Reddy & Ors.).

vi. 2008 SCC OnLine Cal 73 (Sk. Rafidduin Ahmed -vs- Hazi Abdur Rahim & Ors.).

vii. (2006) 3 SCC 100 (Mayar (H.K.) Ltd. & Ors. -vs- Owners & Parties, Vessel M.V. Fortune Express & Ors.). viii. (2004) 9 SCC 512 (Liverpool & London S.P. & I Association Ltd. -vs- M.V. Sea Success I & Anr.). ix. (2011) SCC OnLine Cal 473 (Steelco Syndicate -vs- Sashi Prasad Goenka).

x. Unreported Judgment passed in case No. GA No. 1462 of 2019 with C.S. No. 3 of 2019 with GA No. 1087 of 2019 (Maharshi Commerce Limited -vs- Rajiv R. Balani & Ors.).

xi. 1996 SCC OnLine Cal 240 (Ratan Lal Nahata -vs- Nandita Bose).

xii. (1987) 3 SCC 705 (Smt. Nandita Bose -vs- Ratanlal Nahata).

xiii. (2018) 6 SCC 744 (Appollo Zipper India Limited -vs- W. Newman and Company Limited)."

20. Heard the learned Counsel for the respective parties, perused the

materials on record and the judgments relied by the parties. The

question in the present application whether the monthly rent is Rs.

9923/- per month as claimed by the defendant or Rs. 11,411/- as

claimed by the plaintiff.

21. The plaintiff has made out a specific case in paragraph 4 of the plaint

with respect of the monthly rent which reads as follows :

"4. The defendant was a monthly tenant under the plaintiff in respect of an area comprising of 1010 sq. ft. (hereinafter referred to as the "suit premises") (more particularly described in the Schedule-X hereinbelow) at the ground floor of premises no. 87A, Park Street, Kolkata - 700016. The last paid monthly rent of the suit premises was Rs. 11,411/- (excluding Corporation Tax) and the defendant has paid the same time November, 2020. A copy of the rent bill issued for the month of November, 2020 in the name of the defendant is annexed hereto and market with the letter "B". The defendant was paying municipal rates and taxes @ Rs. 6,903/- per month and parking charges @ Rs. 5,000/- per month. The defendant is running a shop from the suit premises."

22. On 19th November 2020, the plaintiff had issued notice to the

defendant for determining and terminating the contract. In the said

notice also the plaintiff has mentioned the monthly rent as Rs.

11,411/- per month. In the last paragraph of the said notice, the

plaintiff has categorically mentioned that the notice be treated under

Section 106 of the Transfer of Property Act, 1882. As per the

documents enclosed in the plaint, the said notice was delivered to the

defendant 25th November, 2020. The defendant has not send any reply

to the said notice.

23. The defendant in paragraphs 7 and 8 of the present application made

the following averments which reads as follows:

"7. It is further imperative to state that the rent for the suit premises payable by the defendant was and still is Rs. 9,923/- and the municipal

taxes payable by the defendant was Rs. 6,003/-. By a letter dated April, 2019, the plaintiff informed the defendant that there was a steep increase in the component of municipal taxes payable in respect of the building in which the suit premises is suitable. For such purpose, the plaintiff unilaterally increased municipal taxes by 15%. The plaintiff has willfully and deliberately suppressed the said letter in the instant lis. A copy of the said letter dated April 20, 2019 is annexed hereto and marked as Annexure-B.

8. On receipt of such letter, the defendant immediately visited the plaintiff's office and protested the arbitrary and wrongful increase in the component of rent owing to rise in the component of municipal taxes payable on account of the suit premises, especially since the defendant was also making payment of the municipal taxes to the plaintiff. On hearing such protest, the plaintiff assured the defendant that the rent component was not being increased but as indicated in the aforesaid letter dated April 20, 2019 but instead agreed to whereas the 40% increase in the component of municipal taxes payable by the defendant. Accordingly, the monthly rent for the suit premises remained at Rs. 9,923/- and the municipal tax component was increased from Rs. 6,003/- to Rs. 8,391/-."

24. The defendant has annexed pages 56, 65 and 66 out of which page 56

is the part of the plaint and the said documents are the rent charges

and as per the said documents rent charges mentioned in the said

documents are Rs. 11,411/- for one month. As per the submissions of

the defendant, the monthly rent is Rs. 9,923/- per month and the taxes

payable by the defendant is Rs. 6,003/- per month. In the rent receipt

relied by the plaintiff, the monthly rent is Rs. 11,411/-. If as per the

submissions of the defendant, the monthly rent is consider as Rs.

9,923/- and tax Rs. 6,003/-, the total would be Rs. 15,926/- but the

rent receipt is only of Rs. 11,411/- and thus the submissions made by

the defendant prima facie is not sustainable. The defendant has also

not filed written statement. The issue with regard to the quantum of

monthly rent is to be decided only during trial or when the preliminary

issue is framed on completion of pleading. At this stage, it would not be

proper to decide the said issue on an application under Order VII, Rule

11 of the Code of Civil Procedure, 1908, especially when there is no

definite evidence with regard to the quantum of monthly rent.

25. The judgment relied by the defendant with respect of the unreported

Judgement passed in the case of EIH Limited (Supra) in the said case,

the question was whether the Municipal Tax shall be included within

the expression of rent. But in the present case, the question for

determination is whether the monthly rent is Rs. 9,923/- or Rs.

11,411/- per month, thus the said judgment is distinguishable in the

present facts and circumstances of the case.

26. The judgment relied by the defendant in the case of State Trading

Corporation of India Limited & Anr. (Supra), it is settled law that

the Court has power to reject the plaint under Order VII, Rule 11 of the

Code of Civil Procedure, 1908 but in the present case, there is no

definite evidence with regard to the monthly rent is concern, the same

is to be decided during trial.

27. In the case of Nandita Bose (Supra), the Hon'ble Supreme Court held

that the question whether the appellant would be entitled to a decree

for mesne profit/damages at the rate of Rs. 7800/- per month or at any

other rate after the termination of the tenancy is a matter which has to

be decided in the suit. The Hon'ble Court further held that the High

Court was in error in prejudging the issue relating to the right of the

appellant to claim mesne profit /damages and directing the plaint

should be returned for the presentation to the proper Court.

28. In the present case also the plaintiff is claiming mesne profit at the rate

of Rs. 200/- per sq. ft. per month and the same is to be decided during

the trial and it would not be proper to decide the said issue in an

application under order VII, Rule 11 of the Code of Civil Procedure,

1908.

29. Considering the facts and circumstances mentioned above, this Court

do not find any merit in the application filed by the defendant being G.A

No. 1 of 2022 in C.S. No. 173 of 2021, accordingly, G.A No. 1 of 2022

is thus dismissed.

(Krishna Rao, J.)