Calcutta High Court
Indian Oil Corporation Limited vs Sudera Realty Private Limited on 4 December, 2023
Author: I. P. Mukerji
Bench: I. P. Mukerji
IA No. GA 1 of 2023
APOT No. 382 of 2023
with
CS No. 77 of 1995
IN THE HIGH COURT AT CALCUTTA
In appeal from its
ORDINARY ORIGINAL CIVIL JURISDICTION
CIVIL APPELLATE JURISDICTION
Indian Oil Corporation Limited
Versus
Sudera Realty Private Limited
Before:
The Hon'ble Justice I. P. MUKERJI
And
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 4th December 2023
Appearance:
Mr. Tilok Kr. Bose, Sr. Advocate
Ms. Vineet Meheria, Advocate
Mr. Kanishk Kejriwal, Advocate
Ms. Paramita Banerjee, Advocate
Ms. Amrita Das, Advocate
Ms. Sonali Das, Advocate
for the appellant
Mr. Jishnu Saha, Sr. Advocate
Ms. Sulagna Banerjee, Advocate
Mr. U. S. Menon, Advocate
Mr. Abhirup Chakraborty, Advocate
for the respondent
The Court: The question involved in this appeal is whether the
appellant/defendant admitted that the respondent/plaintiff was
entitled to mesne profits at the rate of Rs.15/- per sq.ft. per month for
occupation of the subject premises by the appellant till 31st May 1994.
The basis of this admission is the affidavit-in-opposition of the
appellant in the application (GA 9 of 2019) wherein in paragraph 9 it
has stated as follows:
"9. It is also submitted that the defendant has
adduced evidence in the Special Referee
proceeding wherein detailed calculation was
submitted before the Learned Special Referee
with documents. However, the same has not
been considered. The defendant with all
documentary evidences and with the established
procedure/method of calculating the rent proved
that the ground rent/occupational charges of he
subject premises can be at best Rs.10-Rs.15 per
square ft per month."
Now on the basis of the said averments the following
averments were made in paragraph 16 of the application (GA 11 of
2019).
"16. In any event, while taking several grounds as an
exception to the report of the Special Referee, the
defendant has stated in paragraph 9 of its
affidavit in opposition that "the ground
rent/occupational charges of the subject
premises can be at best Rs.10-Rs.15 per square
ft per month". The petitioner respectfully
submits that such statement of the defendant
may be deemed to be an admission that the
defendant on the basis of its own admission is
liable to pay at least Rs.15/- per sq.ft. per month
as occupational charges to the petitioner. The
petitioner further submits that on the basis of
such admission made by it, an order be passed
directing the defendant to pay a sum of
Rs.3,42,15,413/- calculated at the rate of
Rs.15/- per square ft per month to the
petitioner, together with interest at the rate of
9% per annum amounts to Rs.8,13,88,044/-
calculated till 28th February, 2019 aggregating to
Rs.11,56,03,456/-. In this connection, a
statement showing amount of deemed admission
of defendant and the interest payable thereon is
annexed hereto and marked with the Letter "G".
The petitioner as such submits that pending
disposal of G.A. No.9 of 2019 the defendant be
directed to pay the said sum to the petitioner as
a condition precedent to consider its affidavit in
opposition, which is essentially in the nature of
an exception to the report of the Special Referee,
being taken on record and considered by this
Hon'ble Court. In any event the petitioner states
that no steps have been taken by the defendant
to approach the Hon'ble Supreme Court
although the statutory period for filing Special
Leave Petition from the judgment and order
dated 14th December, 2018 of the Hon'ble
Division Bench has long expired. It is as such
evident that such statement has been made by
the respondent only to delay the passing of the
final judgment and decree by this Hon'ble
Court."
The prayer made in that application is as follows:
"(a) An order directing the defendant to pay
a sum of Rs.11,56,03,456/- calculated at the
rate of Rs.15/- per square ft per month with
interest at the rate of 9% per annum till 28th
February,2019 to the petitioner pending disposal
of G.A. No.9 of 2019 on the basis of its admission
made in paragraph 9 of its affidavit in opposition
filed in G.A. No. 9 of 2019;"
Mr. Tilok Kr. Bose, learned advocate for the appellant has,
first of all, assailed the admission on the ground that there was a
mistake in the averments and that instead of the defendant it was to
be read as assertion of the plaintiff that the mesne profits should be
between Rs.10/- and Rs.15/- per sq. ft. per month. He submitted that
at any rate even if the admission was taken to be between Rs.10 and
Rs.15 per sq.ft. per month, the learned judge had no basis to award
mesne profit at the rate of Rs.15/- per sq.ft. He said that an admission
had to be clear and unequivocal. This admission was not to be taken
as unequivocal. Further he said that the learned judge advanced no
reasons to support his judgment for mesne profit at the rate of Rs.15/-
per sq.ft. per month with interest. He added that there was no
agreement with regard to interest.
On the other hand, Mr. Jishnu Saha, learned senior advocate
submitted that on a proper inference being made by the learned judge
considering the pleadings and conduct of the parties the
ascertainment of mesne profit on admission at the rate of Rs. 15/-
sq.ft. per month was very legitimate. The Supreme Court, according to
him, by various decisions had approved the grant of interest on mesne
profits. The grant of interest at the rate of 9% was very fair, according
to learned counsel.
Considering all these reasons we are minded to hear out the
appeal as expeditiously as possible.
During the pendency of this appeal, before the learned trial
court the appellant had furnished security of Rs.2,28,16,950/- at the
rate of Rs.10/- per sq.ft. This amount was kept in a interest bearing
deposit. After judgment upon admission this amount with interest was
allowed to be withdrawn by the respondent.
As a condition precedent to hearing out this appeal and the
respondent not executing the decree, the appellant has to furnish
security under Order XLI Rule 5 of the Civil Procedure Code.
We direct the appellant to calculate the security amount at
Rs.2,28,16,950/- together with 9% simple interest on the said sum for
the deposit period (upto the date of withdrawal of the term deposit by
the respondent). The sum with interest withdrawn is to be deducted.
Thereafter 9% simple interest on the balance till date is to be added.
The appellant shall deposit the above sum with the Registrar,
Original Side by 4th January, 2024. Before making the deposit the
calculation shall be furnished to the advocate-on-record for the
respondent who shall have to concur with the amount. If there is any
disagreement between the parties the Registrar, Original Side shall
start a reference and hear the parties. The amount to be determined by
the Registrar by 19th January, 2024 shall be final.
The Registrar, Original Side shall invest the said sum in a
short term fixed deposit earning the highest rate of interest with the
State Bank of India, Kolkata High SPB Branch, upon intimation to the
parties.
Advocate-on-record for the appellant is directed to file an
informal paper book before this court by 12th January 2024, serving a
copy thereof upon the advocate-on-record for the respondent atleast
seven days before the date of hearing of the appeal.
List the appal for hearing on 24th January 2024.
Pendency of this appal shall not in any manner interfere with
the progress of the application before the learned single judge for
determination of mesne profits, except that if the court proposes to
grant mesne profit at a rate lower than the admitted amount, the
decision shall be kept pending till disposal of the appeal.
The stay application (IA No. GA 1 of 2023) is disposed of.
(I. P. MUKERJI, J.)
(BISWAROOP CHOWDHURY , J.)
R. Bose
