Rajasthan Fertilizer And ... vs M/S. Bengal Industrial ...
2023 Latest Caselaw 1572 Cal/2

                       IN THE HIGH COURT AT CALCUTTA
                    ORDINARY ORIGINAL CIVIL JURISDICTION
                               ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar


                           IA NO.GA/2/2022
                              CS/26/2021
       RAJASTHAN FERTILIZER AND CHEMICAL CORPORATION LIMITED
                                  VS
                M/S. BENGAL INDUSTRIAL CORPORATION

                          IA NO.GA/3/2022
                             CS/26/2021
      RAJASTHAN FERTILIZER AND CHEMICAL CORPORATION LIMITED
                                 VS
               M/S. BENGAL INDUSTRIAL CORPORATION

                          IA NO.GA/5/2022
                             CS/26/2021
      RAJASTHAN FERTILIZER AND CHEMICAL CORPORATION LIMITED
                                 VS
               M/S. BENGAL INDUSTRIAL CORPORATION

For the Plaintiff         :    Mr. Sabyasachi Chowdhury, Sr. Adv.,
                               Ms. Urmila Chakraborty, Adv.,
                               Mr. Amit Meharia, Adv.,
                               Ms. Paramita Banerjee, Adv.,
                               Ms. Subika Paul, Adv.,
                               Ms. Amrita Das, Adv.


For the Defendant         :    Mr. Soumya Ray, Adv.,
                               Ms. Anwesha Saha, Adv.,
                               Mr. Suman Banerjee, Adv.

Hearing concluded on      :    05.07.2023


Judgment on               :    14.07.2023
                                                                           Page |2


Sugato Majumdar, J.:

       Three applications were taken up for analogous hearing and are disposed

of hereby by this common judgment.


       GA 02 of 2022 is filed by the Plaintiff with prayers of direction upon the

Respondent to deposit an amount of Rs. 37,81,478/- being the outstanding rent

along with occupational charges, interest till January 31, 2022; direction upon the

Respondent to make payment of occupational charges on and from February

2022, in default receiver be appointed and be directed to take physical possession

of the suit property; leave to the Petitioner to accept such payment without

prejudice to the rights and contentions in the present proceeding; appointment of

Receiver/Special Officer to inspect the suit premises, make inventory and to take

symbolic possession of the suit premises along with other prayers. This

application is filed by the Plaintiff of the suit.

GA 03 of 2022 is also filed by the Plaintiff praying for final judgment and

decree for eviction and recovery of vacant, peaceful and khas possession of the

suit property situated on the 1st floor, 19, R. N. Mukherjee Road, Kolkata -

700001; decree for an aggregate sum on account of outstanding rent from the

month of February 2020 till July 2020 amounting to Rs.7,50,000/- with interest

at a rate of 24 per cent per annum; decree for mesne profit assessed at a rate of

Rs.15,000/- per diem on and from 1st August, 2020 till recovery of the possession;

alternatively enquiry into quantum of mense profit along with other prayers.

GA 05 of 2022 is filed by the Defendant of the suit praying for rejection of

the plaint; return of the plaint for filing the same in the appropriate forum and

revocation of the leave granted under Clause 12 of the Letters Patent.

Page |3

The parties herein filed their respective affidavit in all the applications, as

abovementioned.

Since GA 05 of 2022 is concerned with rejection of plaint revoking the

leave granted under Clause 12 of the Letters Patent, and if allowed would make

the other two applications redundant and infructuous. Therefore, this application

should be considered and adjudicated upon a-priori.

The sum and substance of the plaint is that, the Plaintiff is a company

registered under the provisions of Companies Act, 2013. The Defendant is a

partnership firm represented by its partners Projay Singha Roy, Milan Mondal

and Sanjay Debnath. The Plaintiff and the Defendant executed a lease dated 14th

September 2018, whereby an office block measuring about 2400 sq.ft. was let out

to the Defendant on payment of monthly rent of Rs.1,25,000/- along with G.S.T.

Rent was to be paid on or before the 10th day of each month according to English

calendar months. If rent is not paid within the due date, the Defendant would be

liable to pay interest at a rate of 18 per cent per annum on all the arrears, without

prejudice to take other legal actions. Till the month of December 2019, the

Defendant regularly paid rent but thereafter, the Defendant defaulted in payment

of rent. All on a sudden, the Defendant tendered rent for the month of January

2020 in the month of June 2020 but remained defaulter in payment of rent from

the month of February 2020 till the month of July 2020. The Plaintiff

determined the tenancy of the Defendant in terms of a notice dated 15th July 2020

through his Learned Advocate. The Plaintiff also claimed occupational charges at

a rate of Rs.15,000/- per diem in case of default of the Defendant to hand over the

possession of the premises. Since the Defendant did not hand over vacant Page |4

possession to the Plaintiff, the later was constrained to institute the instant suit

praying for decree of recovery of possession along with the other prayers.

The Defendant appeared in the suit and contested the same by filing

written statement. The Defendant, in the written statement, admitted the tenancy

and payment of rent of Rs.1,25,000/- inclusive of municipal taxes. It is averred

that the Defendant also deposited a sum of Rs.3,75,000/- as security deposit. It

was represented to the Defendant by the Plaintiff that the office space would be

renovated and handed over to the Defendant in ready to use condition. But the

Plaintiff did not carry out requisite repairing and renovation works for which the

Defendant had to undertake expenses to the tune of Rs.18,00,000/-. The

Defendant also came to learn that the owner of the property is one Hanuman

Estate Limited and not the Plaintiff, contrary to the representation. The Plaintiff

handed over the premises in a damaged condition which was further deteriorated

by cyclonic storm causing substantial loss to the Defendant. It is also averred that

instead of 2400 sq. ft. area, actual area handed over was 1980.64 sq. ft. which is

evident from the letter of the Defendant dated 30th March 2020. In June 2020,

the Defendant tendered proportionate amount of rent of Rs.1,00,000/- for the

month of June 2020. Therefore, it is not correct to state that the Defendant

defaulted in payment of rent, as averred. The plaintiff tried to dispossess the

Defendant from the suit property. The Defendant was constrained to institute a

suit in the City Civil Court praying for declaration of tenancy of the Defendant.

The Plaintiff also instituted another suit, restraining the Defendant from carrying

out interior work. According to the defendant, the instant suit is filed suppressing

material facts. According to the Defendant, the instant suit should be dismissed.

Page |5

In this conspectus of facts, the Defendant filed the application for rejection

of plaint and return of the same revoking the leave granted under Clause 12 of the

Letters Patent.

The Defendant, in paragraph 18 of the Petition averred that this Court has

no jurisdiction to entertain the suit for reasons -

a) The suit suffers from suppression of fact and is harassing in nature.

b) The Plaintiff cannot maintain a claim for alleged unpaid rent before this

Court on the basis of an inadequately and unregistered instrument of

lease.

c) Leave under Clause 12 was obtained by suppression of material facts.

d) The suit suffers from non-joinder of parties.

e) The suit is otherwise bad-in-law.

The instant application combines within itself three different prayers

namely one for return of plaint, another for rejection of plaint and also for

dismissal of suit on the ground of lack of jurisdiction. A ground mentioned, as

stated above challenging the jurisdiction of the Court pertains to merit of the suit.

Neither of the grounds are related to jurisdiction of the Court. If proved or

disproved these factual issues can affect the merit of the suit. Although pleaded

that the suit is otherwise bad-in-law, there is no specific pleading in this regard.

Therefore, challenges to the jurisdiction of the Court on the ground stated in the

application are not tenable.

Return of plaint and rejection of plaint are two different procedural

formalities. While returning the plaint, the Court will consider the jurisdictional Page |6

issue and shall return the plaint to a Court in which the suit should be instituted.

A court is not to examine the merit of the plaint or its maintainability while

considering a prayer of return of plaint. On the contrary, while considering an

application for rejection of plaint, a court is to peruse and apply its mind to the

plaint. There lies differences. Exhalation and inhalation cannot be made together.

Combination of two prayers in the same petition is, therefore, contradictory.

There is no specific pleading that the suit should be instituted in other

forum. Admittedly the property in question is situated within jurisdiction of this

Court. There is no specific averment where or in which court the suit should be

instituted. Therefore, the prayer of return of plaint is also not tenable.

The instant petition, neither discloses any ground to attract operation of

Order VII Rule 10 of the Code of Civil Procedure, 1908 nor that of Order VII Rule

11 of the Code of Civil Procedure, 1908. The application is misconceived and

stands dismissed on merit.

GA 3 of 2022

GA 3 of 2022 is filed for passing the final judgment and decree of eviction

under Chapter 13A of the Original Side Rules of the High Court, Calcutta.

The case made out in the application is that writ of summons was duly

served upon the Defendant on 10/12/2021 by personal service and on 15/12/2021

by postal service. Defendant entered into appearance in the suit on 21st March,

2022. Defendant neither filed any written statement till that date nor had taken

out any application before the Master of this Court for extension of time to file

written statement till that date. The suit premises is situated at 19, R. N.

Page |7

Mukherjee Road, P.S.-Hare Street, Kolkata - 700001 within jurisdiction of this

Court. Notice under Section 106 of the Transfer of Property Act, 1882 was duly

served upon the Defendant. Admittedly tenancy is not governed by West Bengal

Premises Tenancy Act, 1997. In view of this factual matrix the Defendant has no

defense to raise accordingly, final judgment and decree is prayed for.

Affidavit-in-Opposition is filed on behalf of the Defendant. It is stated

therein that copy of the application under Chapter XIIIA of the Rules of the High

Court at Calcutta (Original Side) 1914 was received by the Defendant on 5th April,

2022. It is plea of the Defendant that the application is false, frivolous and mala

fide. Written statement had already been filed the Defendant and the later has

strong grounds to defend the suit. It is further contention that an application

under Chapter XIIIA can be maintained in a suit for recovery of immovable

property against a tenant if and only if it can be demonstrated that the tenancy

created in favour of the tenant had expired by efflux of time or that the tenancy

had been duly determined by a notice to quit. An application is also maintainable

where a tenant becomes liable to forfeiture for non-payment of rent. None of the

grounds exist in the instant case. It is further pleaded that notice to quit was

served by electronic mail on 15th July, 2020. This is neither proper nor statutory

mode of service of notice under Section 106 of the Transfer of Property Act, 1882.

As such, according to the Defendant, the suit itself is not maintainable. Another

contention of the Defendant is that since the deed of lease is an unregistered one

the same is not an admissible document; since the purported instrument forming

the foundation of the instant application is not admissible as evidence no right

can be created on it. The next contention is that the Defendant agreed to pay the

rate of rent of Rs. 1,25,000/- per month to the Plaintiff on a bona fide belief that Page |8

the Defendant would hand over possession of an office space admeasuring about

2400 square feet the partners of the Defendant. It was also represented that the

Defendants shall never face any convenience in carrying on or continuing the

business of the suit property. But the things were not so. According to the

Defendant the Plaintiff is not entitled to relief under Chapter XIIIA. The

Defendant has a good defense, therefore. In nutshell, according to the Defendant,

the application filed under Chapter XIIIA of the Original Side Rules of the High

Court, Calcutta should be rejected.

Mr. Banerjee, at the time of argument, submitted that the instant

application is barred by limitation prescribed in Rule 3 of the Original Side Rules

in as much as it is filed beyond a period of ten days after filing of the written

statement. According to him, on this score only the application should be

dismissed.

On the other hand, it is the contention of Mr. Chowdhury that the

application was filed after appearance of the Defendant but before filing of the

written statement. Therefore, the time frame of ten days is not applicable in this

case, as contemplated in Rule 3.

From the record it appears that the writ of summons was received on 17th

January, 2022 and written statement was filed on 18th April, 2022. The instant

application is filed on 8th April, 2022 prior to filing of the written statement.

Time frame of ten days is applicable under the Proviso of Rule 3 which provides

for filing of an application under Rule 1 (B) Chapter XIIIA after filing of the

written statement. In this case the application was filed prior to filing of the

written statement. Argument of Mr. Banerjee, therefore, cannot be accepted.

Page |9

Next it is argued by Mr. Banerjee that notice determining tenancy is served

by electronic mail which is not a kind of service contemplated in the statute.

Section 106 of the Transfer of Property Act, 1882 does not contemplate service of

notice by electronic mail. Therefore, the notice is bad. This being the fact, tenancy

has not been duly determined, to bring the case within ambit of Rule 1(B) of

Chapter XIIIA.

Mr. Chowdhury, in reply, submitted that there is no statutory bar in

serving notice by electronic mail. Mr. Chowdhury refers to the solemn Order

passed by the Hon'ble Supreme Court of India in suo motu Writ Petition (C)

no. 3 of 2020 in the matter of In Re Cognizance For Extension of Limitation, on

10/07/2020. At the time of countrywide pandemic it was directed:

"Service of notice, summons and exchange of pleadings/documents, is

a requirement of virtually every legal proceeding. Service of notices,

summons and pleadings etc. have not been possible during the period

of lockdown because this involves visits to post offices, courier

companies or physical delivery of notices, summons and pleadings.

We, therefore, consider it appropriate to direct that such

services of all the above may be affected by e-mail, FAX,

commonly used instant messaging services, such as

WhatsApp, Telegram, Signal etc. However, if a party intends

to effect service by means of said instant messaging services,

we direct that in addition thereto, the party must also

effectservice of the same document/documents by e-mail,

simultaneously on the same date."

P a g e | 10

The question of service of notice in the instant case should be considered in

view of specific circumstances prevailing therein and the order passed by the

Supreme Court of India as aforesaid. Although Mr. Banerjee argued that such the

order is not applicable to notice to quit, there is neither such clarification nor the

words are couched with exemption of service of notice by electronic mail. The

order was of general nature covering all the situations prevailing therein and at

that time. There is no dispute that notice to quit was not served. It is rather

admitted that notice to quit was served. What is challenged is only the mode of

service. There is no dispute also regarding the tenancy. Tenancy is admitted in

the written statement as well as in the Affidavit-in-Opposition. It is also admitted

that notice to quit was served upon the Defendant. The only issue raise is that the

service is not proper and in terms of statutory provisions. As stated above, service

of notice cannot be said to be bad in view of the order passed by the Supreme

Court of India as mentioned above. Therefore, it is a case where a tenancy has

duly been determined.

Mr. Banerjee also argued that unregistered lease deed has no evidentiary

value. The claim cannot be based on this. Therefore, the application should be

rejected on this score only.

It is no longer res judicata that an unregistered lease deed can be looked

into for a collateral purpose. Section 49 of the Registration Act, 1908 provides

that unregistered deed can be looked into "as evidence of any collateral

transaction not required to be effected by registered instrument." The reality

is that they are existed a jural relations between parties on payment of rent a

dispute related to area handed over or appropriateness of frame in view of lesser

area handed over to the Defendant does not extinguish or set at naught they P a g e | 11

admitted in tenancy. Non-registration of the deed may affect the valid of the

document but they admitted the jural relationship. Three Judges Bench of the

Supreme Court of India observed in Antony Vs. K.C. Ittoop & Sons And

Others (2000) 6 Supreme Court Cases 394 observed:

"16. Taking a different view would be contrary to the reality when

parties clearly intended to create a lease though the document

which they executed had not gone into the processes off

registration. That lacuna had affected the validity of the

document, but what had happened between the parties in respect

of the property became a reality. Non-registration of the

document had caused only two consequences. One is that no lease

exceeding one year was created. Second is that the instrument

became useless so far as creation of the lease is concerned.

Nonetheless the presumption that a lease not exceeding one year

stood created by conduct of parties remains unrebutted."

Subsequently, K.B. Saha And Sons Private Limited Vs. Development

Consultant Limited [(2008) 8 Supreme Court Cases 564] as well as

other decisions also reiterated the principal with reference to the proviso to

Section 49 of the Registration Act, 1908 that an unregistered document can also

be admitted in evidence for a collateral fact or purpose. Non-registration of deed

of lease in the instant case cannot affect an otherwise admitted jural relationship

between the parties.

Next question is whether the Defendant has set out a case of good defence

as contemplated in Rule 6 of the Chapter 13A. The written statement as well as P a g e | 12

the Affidavit-in-Opposition admits tenancy, payment of rent and even service of

notice to quit. The dispute relates to the mode of service which is answered

positively in favour of the Plaintiff as aforesaid. It is not pleaded that the tenancy

was guided or governed under the West Bengal Premises Tenancy Act, 1997 or

any other Act. Defendant's strong dispute relates to financial loss for handing

over incomplete and lesser area of tenancy deviating from stipulations. That can

be considered at the time of enquiry of mesne profit. But the tenancy is not

disputed. Non-registration of the lease deed creating tenancy herein has no effect

on the admitted jural relationship between the parties as discussed above. In

view of the factual matrix I do not think that the Defendant has a good defense to

resist eviction. Institution of a prior suit on a different cause of action that arose

on 17th June, 2020 restraining the present Plaintiff from carrying out materials

alteration in the demise premises, is not a bar to institute the present suit for

altogether different cause of action.

On perusal of the materials on record and pleading of the parties I find that

the Plaintiff has made out and good case for passing final judgment and decree as

prayed for.

Accordingly, GA 3 of 2002 stands allowed. Plaintiff get a decree of eviction

and recovery of vacant and khas possession of the premises at first floor 19, R. N.

Mukhrejee Road, P.S.-Hare Street, Kolkata - 700001. The Defendant shall hand

over the premises in a vacant possession and possession of the premises within

one month from the date of passing of this decree in case of failure, of which the

Plaintiff shall be at liberty to put the decree in execution.

Let the decree be drawn up.

P a g e | 13

GA 3 of 2022 is accordingly disposed of. GA 2 of 2022 is also disposed of

accordingly.

Fix on 18th August, 2023 for hearing and enquiry into mesne profit.

(Sugato Majumdar, J.)