Poddar Projects Limited & Anr vs Economic Transport Organization ...
2023 Latest Caselaw 385 Cal/2

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


Present:

The Hon'ble Justice Krishna Rao



                         IA No: GA 6 of 2019

                      (Old No: GA 2770 of 2019)

                          In CS 142 of 2013



                   Poddar Projects Limited & Anr.

                                Versus

                Economic Transport Organization Ltd.



           Mr. Debnath Ghosh
           Mr. Avinash Kankani
           Mr. Suman Majumder
                                          ... for the plaintiffs.

           Mr. Mainak Bose
           Mr. Anurag Bagaria
           Mr. Ratul Das
           Mr. A. Agarwalla
           Ms. D. Mukherjee
           Ms. P. Gargain
                                         ... for the defendant.



Heard on              : 10.01.2023, 17.01.2023, 20.01.2023 & 31.01.2023

Judgment on           : 09.02.2023
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Krishna Rao, J.:


      The plaintiffs have filed the instant application for a direction to draw

and complete the decree for eviction against the defendant as per the claim

made by the plaintiff.


      The plaintiffs have filed the suit against the defendant praying for

following reliefs :


      "a)    Decree of eviction and peaceful possession of the tenanted
             premises more fully described in Annexure "A" hereof;

      b)     Decree for mesne profits of Rs. 50/- per sq.ft. per day from 21st
             October, 2012 till the date of institution of the suit as pleaded in
             paragraph 24 above;

      c)     Decree for further mesne profits @ Rs. 50/- per sq. ft. per day
             from the date of institution of the suit till recovery of possession
             as pleaded in paragraph 24 above;

      d)     Receiver;
      e)     Injunction;

      f)     Costs;

      g)     Further and other reliefs."



      After filing of the suit, the plaintiffs have filed an application being

G.A. No. 2883 of 2013 under Chapter XIIIA of the Original Side Rule of this

Court seeking summary eviction of the defendant upon expiry of the notice

period. The application filed by the plaintiffs was duly contested by the

defendant and this court had disposed of G.A. No. 2883 of 2013 by an order

dt. 28th February, 2017 by passing the following order :


            "The defendant is in possession of a very valuable property in the
      commercial hub of the city and is paying an mesne occupational charge
      at   1/- per sft. per month which is extremely low compared to the
      occupational charges that the property is expected to earn. Since
                                        3


      establishment of separate tenancies at the trial would make the notice
      under Section 106 of the Transfer of Property Act invalid, on the basis of
      the discussions made above, the defendant is entitled to conditional
      leave to defend. I, therefore, grant the defendant conditional leave to
      defend. The defendant upon payment of occupational charges @             4
      lakh per month on and from March 2017 till the disposal of the suit
      shall be entitled to defend the suit. The occupational charge for the
      month of March 2017 shall be paid by 10th March 2017 and the future
      monthly occupational charges shall be paid by 10th day of each
      succeeding month. Upon payment of the occupational charges for the
      month of March 2017, the defendant shall be entitled to file written
      statement within a period of four weeks from that date. In default of
      making payment of the monthly occupational charge for the month of
      March 2017 or any of the future monthly occupational charges, the
      decree for khas possession shall automatically follow and for which
      there would be no need to apply afresh.

            GA No. 2883 of 2013 and GA No. 2905 of 2013 accordingly stand
      disposed of."



      Being aggrieved with the order dt. 28th February, 2017, the defendant

had preferred an appeal being APD No. 86 of 2017 and in the said appeal,

the plaintiffs have preferred a cross objection against the said order. The

appellate court had disposed of the appeal and cross objection by judgment

dt. 22nd August, 2017. In the said appeal the appellate court held that the

cross objection preferred by the plaintiffs is not maintainable and the allow

the appeal preferred by the defendant by passing the following Judgment :


             "In conclusion, we find and hold that there is a good defence of
      the appellant/defendant for contesting the suit in trial and to use such
      defence, the appellant/defendant need not be burdened to pay a
      lumpsum of Rs. 4,00,000/- at monthly intervals. The impugned
      judgement is required to be modified and we do modify it upon granting
      unconditional leave in favour of appellant/ defendant to defend the
      suit. Accordingly, the appeal is allowed and cross-objection is
      dismissed as not maintainable in the light of our observations made in
      this judgement."

      The plaintiffs being aggrieved with the Judgment dt. 22nd August,

2017 had preferred a Special Leave Petition and the Hon'ble Supreme Court
                                       4


had disposed of the said SLP on 18th October, 2019 by passing the following

order :


             "Having heard learned counsel for the parties and having
      perused the records, we are of the view that ends of justice would be
      met if the respondents are directed to pay Rs. 2,00,000/- (Rupees two

lakhs) per month as use and occupational charges/rent for the premises with effect from 01.03.2017. We order accordingly. Payments made would abide by the final outcome of the suit."

After the order passed by the Hon'ble Supreme Court, the counsel for

the plaintiffs had mentioned the matter before this Court and upon

mentioning the matter was taken up for hearing on 19th November, 2019

and by considering the order passed by the Hon'ble Supreme Court this

Court has passed the following order :

"On enquiry it appears that the suit is not ready for hearing and only the plaint and written statement has been filed. The plaintiffs in the circumstances are directed to take necessary steps to make the suit ready by filing affidavit of documents within seven days from date. The defendant is directed to file their affidavit of documents also within such time. The documents be disclosed by the parties within seven days thereafter. Parties should take inspection of documents within seven days thereafter. The admission and denial of documents be completed within seven days thereafter. Parties are at liberty to mention the suit once these procedures are complete."

Mr. Debnath Ghosh, Learned counsel representing the plaintiffs

submits that Hon'ble Supreme Court had directed the defendant to pay Rs.

2,00,000/ (Rupees Two Lakhs) per month as use and occupational

charges/rent for the premises with effect from 1st March, 2017 but the

defendant has not paid any amount as directed by the Hon'ble Supreme

Court and thus the plaintiffs are entitle to get decree for eviction of the

defendant from the suit premises.

Mr. Ghosh submits that initially this Court has passed an order dt.

28.02.2017 by granting conditional leave to the defendant to defend the suit

upon payment of occupational charges of Rs. 4,00,000/- per month on and

from March, 2017 though the said order was modify by the Hon'ble Division

Bench in an appeal by granting unconditional leave but the Hon'ble

Supreme Court had reduced the quantum of amount from Rs. 4,00,000/- to

Rs. 2,00,000/- which implied that Hon'ble Supreme Court has granted

conditional leave but the defendant had not complied with the order and

thus plaintiffs are entitle to get a decree in terms of their prayer.

Mr. Ghosh has relied upon Chapter XIIIA (B), Rule 6 and Rule 9 of the

Original Side Rules of this Court as well as Order 37 of the Code of Civil

Procedure, 1908. In support of his contention, Mr. Ghosh relied upon the

judgment of Kiranmayi Dasi -versus- J. Chatterji reported in (1945) SCC

Online Cal 114 and IDBI Trusteeship Services Limited -versus- Hubtown

Limited reported in (2017) 1 SCC 568.

Per Contra, Mr. Mainak Bose, Learned Senior Advocate, representing

the defendant submits that the application filed by the plaintiffs is not

maintainable under law as there is no order in favour of the plaintiffs for

eviction of the defendant and thus how the decree can be drawn as per the

prayer made by the plaintiffs in the instant application.

Mr. Bose submits that after the order passed by the Hon'ble Supreme

Court the plaintiffs have mentioned the matter before this Court and this

Court vide order dt. 19th November, 2019 directed the parties to make the

suit ready by filing affidavit of documents, inspection and admission and

denial of the documents and liberty was given to the parties to mention the

suit once procedure are completed but inspite of completing the procedure,

the plaintiffs have filed the instant application.

Mr. Bose submits that order passed by this Court wherein conditional

leave was granted to the defendant to defend the suit was set aside by the

Hon'ble Appellate Court and there is no order of conditional leave to defend

the suit.

Mr. Bose submits that the Hon'ble Supreme Court while disposing of

the SLP preferred by the plaintiffs held that numbers of issues and

contentions have been raised by the appellants and the respondent which

the Hon'ble Supreme Court has not decided as a civil suit is still pending.

Mr. Bose has further submits that the Hon'ble Supreme Court had only

directed the defendant to pay Rs. 2,00,000/- per month as occupational

charges/ rent for the premises with effect from 1.03.2017 and the said

payments made would abide by the final outcome of the suit and thus if the

defendant has not paid the said amount, this court will take into

consideration at the time of deciding the suit on merit.

Mr. Bose submits that Order 37 of the Code of Civil Procedure is not

applicable in the instant suit. Mr. Bose has drawn the attention of this

Court to the Clause (B) of Chapter XIIIA of the Original Side Rules of this

Court and submits that clause (B) is for the recovery of immovable property

with or without a claim or mesne profits by the landlord against the tenant

whose term has expired or has been duly determined by notice to quit or

has become liable to forfeiture for non-payment of rent or against persons

claiming under such tenant but under Order 37 of the Code of Civil

Procedure the Courts and classes of the suits to which the Order is to apply

is mentioned. In the said Order classes of the suits are described in Clause

(2) which reads as follows :

"(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits, namely : -

(a) suits upon bills of exchange, hundies and promissory notes;

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest arising,-

(i) on a written contract; or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.]

[(iv) suit for recover of receivables instituted by any assignee of a receivable.]"

Heard the learned counsels for the respective parties, perused the

materials on record and the Judgment relied by the Counsel for the plaintiff.

The issue in the instant application whether the order passed by the

Hon'ble Supreme Court by directing the defendant to pay Rs. 2,00,000/-

(Rupees Two Lakhs) per month as use and occupational charges/rent for

the premises with effect from 01.03.2017 is a conditional one or not?

Chapter XIIIA (B), Rule 6, 7 and 9 of the Original Side Rule of this

Court reads as follows :

"(B). for the recovery of immoveable property with or without a claim for rent or mesne profits by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant.

6. Judgment unless good defence.- Upon such application the Judge may, unless the defendant by affidavit or otherwise as the Judge may direct shall satisfy him he has a good defence to the claim on its merits or disclose such facts as may be deemed sufficient to entitle him to defend, make an order refusing leave to defend and forthwith pronounce judgment, in favour of the plaintiff.

7. Where one defendant has good defence but other not.- If it appears to the Judge that any defendant has a good defence to or ought to be permitted to defend the claim and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend and the plaintiff shall be entitled to judgment against the latter; and may issue execution upon a decree to be drawn up pursuant to such judgment without prejudice to his right to proceed with his claim against the former.

9. Leave to defend. - Leave to defend may be given unconditionally or subject to such terms as to giving security, or time, or mode of trial or otherwise as the Judge may think fit."

In the order passed by this Court in GA No. 2883 of 2013 dt.

28.02.2017 leave was granted to the defendant to defend the suit upon

payment of Rs. 4,00,000/- per month as occupational charges for the month

of March, 2017 and further succeeding months. In the order, it was also

made clear that in case of default, decree for khas possession shall

automatically follow and for which there would be no need to apply a fresh.

The order passed by this Court was modified by the Hon'ble Appellate Court

and granted unconditional leave to the defendant to defend the suit. The

Hon'ble Supreme Court directed the defendant to pay Rs. 2,00,000/- per

month as occupational charges/rent for the premises with effect from

1.03.2017 and the payment made would abide by the final outcome of the

suit.

In the judgment of Kiranmayi Dasi (Supra) this Court held that :

"From the above authorities the following propositions may be laid down with regard to an application under O. XIV:--

(a) If the defendant satisfied the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence yet shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim, the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend, but in such the Court may in its discretion impose condition as to the time or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine, there ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.

(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then, although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may allow the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on condition and thereby show mercy to the defendant by enabling him to try to prove a defence."

In the order dt. 28.02.2017, this Court held that defendant appears to

have raised some defence which although is a weak and may or may not

succeed at the trial, be given an opportunity to fight out the rest of the

battle. The said defence falls short of moonshine but little probable and

granted conditional leave to defence.

The Division Bench while deciding the appeal held that :

"The respondents/plaintiffs intended to use two letters of 1969 as vital pieces of evidence in support of the plaint case, which documents have been challenged by the appellant/defendant upon affirming an affidavit with contention that the same are forged and fabricated. Such a defence also cannot be treated as weak/flimsy/evasive defence for which a stringent condition should be imposed upon the appellant/defendant to place such a defence for trial. From the affidavits of the parties it can be said at this stage that there was/is a relationship of landlord and tenant between the respondents / plaintiffs and appellant / defendant in respect of tenancy/tenancies authorizing appellant/defendant's occupation of 9725 square feet suit property/properties at a contractual monthly rent of Rs. 12,278/-. There is no claim of the respondents/plaintiffs that before the alleged determination of tenancy, any step was taken by respondents/plaintiffs to enhance the rent. As such, when obviously it cannot be said that appellant/defendant has no defence, it is not proper for the Court to fix an exorbitant under Chapter XIIIA to take his defence in the suit."

The Hon'ble Supreme Court while deciding the SLP filed by the

plaintiff held that a number of issues and contentions have been raised by

the plaintiff and the defendant which the Hon'ble Supreme Court do not

proposes to discuss and decide, as a civil suit is still pending and has not

been decided and the payment made would abide by the final outcome of the

suit.

As per Rule 9 of Chapter XIIIA of the Original Side Rule of this Court,

leave to defend may be given unconditionally or subject to such terms as to

giving security, or time, or mode of trial or otherwise as this court may think

fit.

In the case of Kiranmayi Dasi (Supra), this Court held that if there is

no defence or the defence is illusory or sham or practically moonshine then,

although ordinarily the plaintiff is entitle to leave to sign Judgment, the

court may allow the defence to proceed if the amount claimed is paid into

Court or otherwise secured and give leave to the defendant on condition and

thereby show mercy to the defendant by enabling him to try to prove a

defence.

In the instant case, this Court while granting conditional leave to the

defendant opined that the defence raised by the defendant is weak and may

not succeed but the Hon'ble Division Bench held that there is good defence

of the defendant for contesting the suit in trial. The Hon'ble Supreme Court

for the ends of justice directed the defendant to pay Rs. 2,00,000/- per

month as use and occupational charges with effect from 01.03.2017.

In paragraphs 7 and 8 of the of the affidavit in opposition of the

instant application, the defendant has taken a specific defence that the

petitioners are the landlords in respect of 9,725 sq. ft. in the ground floor of

the property and there are two separate tenancies and each tenancy is

governed by West Bengal Premises Tenancy Act, 1997 and the monthly rent

is less then Rs. 10,000/- and the notice to quit purportedly issued under

Section 106 of the Transfer of Property Act,1882 is bad in law.

Initial order passed by this Court dt. 28.02.2017, it was specifically

stated that "In default of making payment of the monthly occupational

charges, for the month of March 2017 or any of the future monthly

occupational charges, the decree for khas possession shall automatically

follow and for which there would be no need to apply afresh." But the

Hon'ble Supreme Court while disposing of the SLP preferred by the plaintiff

has only directed the defendant to pay Rs. 2,00,000/- per month with effect

from 01.03.2017 and has not imposed any penalty made conditions. In the

order passed by the Hon'ble Supreme Court it was also clarified that the

payment made would abide by the final outcome of the suit.

In view of the above, this Court is of the view that the order passed by

the Hon'ble Supreme Court is not a conditional leave to defend the suit. The

Hon'ble Supreme Court has passed the order for the ends of justice, if, the

defendant has chosen not to deposit the said amount, the same would be an

additional ground for the plaintiff during the trial of the suit.

G.A. 6 of 2019 is thus dismissed.

(Krishna Rao, J.)