Kaiser Begum vs E. D. Enterprises Pvt. Ltd. & Anr
2023 Latest Caselaw 828 Cal/2

                                                                         1

                           IN THE HIGH COURT AT CALCUTTA

                            CIVIL APPELLATE JURISDICTION

                                     ORIGINAL SIDE

                                  (Commercial Division)

Present:

THE HON'BLE JUSTICE HARISH TANDON
         &
THE HON'BLE JUSTICE PRASENJIT BISWAS



                                    APDT 10 of 2022
                                         with
                                     CS 105 of 2021
                                     IA GA 1 of 2022

                                     Kaiser Begum

                                          Vs.
                           E. D. Enterprises Pvt. Ltd. & Anr.

Appearance:

For the Appellant             :   Mr. Sakya Sen, Adv.
                                  Mr. Arik Banerjee, Adv.
                                  Mr. Arijit Roy, Adv.
                                  Mr. Partha Pratim Mukhopadhyay, Adv.
For the Respondent No. 1      :    Mr. Ratnanko Banerji, Sr. Adv.

Mr. Debdut Mukherjee, Adv.

Mr. Meghajit Mukherjee, Adv.

Mr. K. Kejriwal, Adv.

Ms. Shivanji Thard, Adv.

Ms. Vidhya Upadhyay, Adv.

Judgment On                   :    30.03.2023


Harish Tandon, J.:

The judgment on admission is passed by the Single Bench on

28.7.2022 in CS No. 105 of 2021 directing the delivery of khas possession of the

scheduled premises being the subject matter of the suit and for Rs. 10,11,500/-

towards occupational charges in respect of the said suit premises.

Admittedly, the respondent is the owner of a demarcated portion of the

ground floor and the mezzanine floor admeasuring approximately 374 sq. ft.

super built up area situated at premises no. 42A, Shakespeare Sarani, Kolkata -

700020. The defendant/appellant was inducted as a tenant for commercial

purposes at a rent of Rs. 1,40,000/- per month which was subsequently,

enhanced to Rs. 1,61,000/- inclusive of the rent and the amenities charges. The

lease agreement was entered into by and between the parties wherefrom it

appears that a sum of Rs. 7 lakhs was deposited as security deposit. Pursuant to

the said agreement and understanding between the parties, the appellant was put

into possession by the respondents for using the said premises for commercial

purposes and the rent in respect thereof was being paid from time to time until

the default was committed on and from December, 2019. Since the appellant

defaulted in payment of the rent and the amenities charges attached to the said

suit premises the demand was made by the respondent but despite discharging

his contractual and statutory obligation in payment of the rent and amenities

charges for use and enjoyment of the suit premises, the appellant filed the Title

Suit no. 571 of 2020 before the City Civil Court at Calcutta for declaration that

there are a bona fide tenant and the tenancy right is still subsisting in respect of

the suit premises at a monthly rent of Rs. 1,40,000/- per month payable

according to an English Calendar and a decree of perpetual injunction restraining

the respondents herein from interfering and/or disturbing the peaceful

possession, use and enjoyment of the suit premises and/or from disrupting the

water and electric connection and other facilities and amenities attached to the

said tenancy.

Indubitably, an application of injunction was taken out and an ad-

interim order of injunction was passed against the respondent not to disturb

and/or interfere with the possession of the appellant and also from disconnecting

the water and electric connection and other amenities attached to the tenancy.

Subsequently, by a notice dated September 24, 2022 the respondent determined

the said tenancy under Section 106 of the Transfer of Property Act and the same

was sent to the appellant by speed-post with acknowledgement due which was

duly received by the appellant.

On the conspectus of the aforesaid undisputed facts, the respondent

filed a suit for recovery of possession upon expiration of the period enshrined in

Section 106 of the Transfer of Property Act and recovery of the arrear

rents/occupational charges in terms of the agreement. A plea of demur was

taken as the said suit is filed in ordinary original civil jurisdiction of this Court

and since the transaction between the parties is of commercial nature, it is a

commercial dispute and, therefore, the ordinary original civil jurisdiction of the

High Court is denuded of power in view of the promulgation of the Commercial

Courts Act, 2015. The aforesaid objection was sustained and the plaint was

returned to be presented before the Commercial Division of this Court which in

fact, was filed and gave rise to a registration of CS 105 of 2021. After the service

of summons the appellant entered appearance and sought for extension of time to

file written statement which we are informed that the same was allowed.

In the meantime, an application under Order 12 Rule 6 of the Code of

Civil Procedure has been taken out by the respondent for judgment on admission.

It is contended by the respondent that the jural and contractual relationship of

landlord and tenant between the parties and the notice under Section 106 of the

Transfer of Property Act duly served upon the appellant having not disputed,

therefore, it would be a mere formal exercise if the suit is decided after full-

fledged trial as it would invite the same result. According to the respondent, the

moment the tenancy is governed by the provision of the Transfer of Property Act

and the notice under Section 106 of the Transfer of Property Act is valid and the

service thereof has not been denied, it is a clear admission on the part of the

appellant to pass a judgment on admission in favour of the respondents.

The said application is resisted by the respondent in the affidavit-in-

opposition directed to be filed, which in fact was filed, primarily on the ground

that there is no breach of terms and conditions of the said agreement and the

said suit has been filed to harass the appellant as the respondent intended to

create a third-party in respect thereof. It is further stated therein that the said

agreement postulates a notice of 45 days in the event any breach has occurred so

that the appellant may remedy the same and having not done so the foundation

for termination of an agreement is illegal and invalid. It is further stated that the

said agreement provides for service of notice at the registered office of the

appellant and not at the suit premises and, therefore, the same is invalid. A plea

of the pandemic was also taken which impedes the progress of the business and

ultimately compelled the appellant to close down the said shop and it was decided

that no rent would be payable from the month of January, 2020 to October,

2020. There are other defence which were taken in relation to the withdrawal of

the amenities, dishonor of the cheque issued by the appellant in favour of the

respondent which was kept as a security but in our opinion, those are not

relevant for the purpose of ascertaining whether there is a clear admission made

by the appellant inviting the judgment on admission to be passed.

The Trial Court discarded all the contentions of the appellant and held

that there is a clear admission at the behest of the appellant inviting the

judgment to be passed for recovery of possession and also for arrear occupational

charges upon adjusting a sum of Rs 7 lakhs which has been recovered by the

respondent.

Both the counsels have relied upon several judgments on the nuances

of Order 12 Rule 6 of the Code of Civil Procedure in order to convince the court

that the judgment impugned in the instant appeal needs interference or it does

not invite any interference. All the judgments which have been relied upon by the

respective parties, which will be dealt separately hereinafter, voiced in unison

that the provision contained under Order 12 Rule 6 of the Code of Civil Procedure

can only be activated on an admission which is unconditional, unequivocal, clear

and positive and does not require more than one possibilities. Even the judgment

relied upon by Mr. Sen in case of Hari Steel & General Industries Ltd. & Anr.

Vs. Daljit Singh & Ors., reported in (2019) 20 SCC 425 are suggestive of the

aforesaid principles of law in the following:

"28. In the aforesaid judgment, while considering the scope of Order

12 Rule 6 CPC, post amendment by amending Act, 1976 this Court has

held as under :

21. There is yet another provision under which it is possible for the

court to pronounce judgment on admission. This is contained in Rule 6

of Order 12 which provides as under:

'6. Judgment on admissions.- (1) where admissions of fact have been

made either in the pleading or otherwise, whether orally or in

writing, the court may at any stage of the suit, either on the

application of any party or of its own motion and without waiting

for the determination of any other question between the parties,

make such order or give such judgment as it may think fit, having

regard to such admissions.

(2) whenever a judgment is pronounced under sub-rule (1) a decree

shall be drawn up in accordance with the judgment and the decree

shall bear the date on which the judgment was pronounced.'

22. This rule was substituted in place of the old rule by the Code of

Civil Procedure (Amendment) Act, 1976. The Objects and Reasons for

this amendment are given below:

'Under Rule 6, where a claim is admitted, the court has jurisdiction

to enter a judgment for the plaintiff and to pass a decree on the

admitted claim. The object of the rule is to enable a party to obtain

a speedy judgment at least to the extent of the relief to which,

according to the admission of the defendant, the plaintiff is

entitled. The rule is wide enough to cover oral admissions. The

rule is being amended to clarify that oral admissions are also

covered by the rule.'

23. Under this rule, the court can, at an interlocutory stage of the

proceedings, pass a judgment on the basis of admissions made by the

defendant. But before the court can act upon the admission, it has to

be shown that the admission is unequivocal, clear and positive. This

rule empowers the court to pass judgment and decree in respect of

admitted claims pending adjudication of the disputed claims in the

suit."

However, Mr. Sen is relying on the said judgment inviting our attention

to the observations made in paragraph 29 thereof to the effect that mere

admission of entering into the agreement/contract itself cannot be considered in

isolation more particularly, without adverting to the further objections taken in

the pleading. After the meticulous reading of the aforesaid report, we find that

the Apex Court declined to pass a judgment on admission and the aforesaid

findings was returned solely on the ground that the defence was taken that

several pages of the agreement in question have been fabricated and

manufactured to suit the purpose of the plaintiff therein. It is no doubt true

when the authenticity and the genuinity of the agreement is in question and the

serious allegation has made that certain pages have been tampered, fabricated

and/or manufactured which were not in existence when the parties entered into

an agreement, it would not be proper to pass a judgment on admission without

deciding the aforesaid objections having vital impact unless an opportunity is

given to the defendant to prove the same by cogent evidence at the time of trial.

It admits no ambiguity in our mind that mere existence of an agreement does not

ipso facto render the judgment to be passed on admission, more particularly,

when the authenticity and the genuinity of the said agreement is seriously

questioned by the contesting litigant. The agreement should not be considered in

isolation to the other evidences on a serious questions having raised thereupon

and, therefore, it cannot be regarded as a clear, explicit and unequivocal

admission.

The case of S. M. Asif vs.Virender Kumar Bajaj, reported in AIR

2015 SC 3678 relied upon by Mr. Sen does not appear to have any manner of

application in the present facts. In the said report, the Apex Court set aside the

judgment on admission passed under Order 12 Rule 6 of the Code in a suit for

eviction filed by the landlord against the tenant despite the admitted relationship

of the landlord and tenant and the period of lease agreement. The tenant therein

took a plea that during the currency of the jural relationship of landlord and

tenant, an agreement for sale of the tenanted property was entered into and a

substantial amount of money was advanced to the landlord and in fact, a suit for

specific performance of the contract filed by the tenant is pending. In the

backdrop of the aforesaid facts, the Apex Court held "when such issue arising

between the parties ought to be decided, mere admission of relationship of

landlord and tenant cannot be said to be an unequivocal admission to decree the

suit under Order 12 Rule 6 of the Code of Civil Procedure".

It takes us to the another judgment of the Supreme Court rendered in

case of Karan Kapoor vs. Madhuri Kumar, reported in 2022 SCC Online SC

791 where the Apex Court interfered with the judgment on admission passed

against the tenant in a suit for eviction as the facts emanates therefrom, are

similar and identical to the facts involved in S. M. Asif (supra) in the following:

"23. Be that as it may, the arguments advanced by both the sides,

in our view can be appreciated by the Trial Court by affording

opportunity to them to lead evidence. As per the leadings, there may be

admission to the extent of execution of the Lease Agreement, rate of

rent and monthly payment but simultaneously the defense taken by the

Defendant is also based on ATS-I, II and III. In view of the contents of

those agreements and terms specified therein, the defense as taken by

the Appellant/Defendant is plausible or not is a matter of trial which

may be appreciated by the Court after granting opportunity to lead

evidence by the respective parties. There may be admission with

respect to tenancy as per lease agreements but the defense as taken is

also required to be looked into by the Court and there is need to decide

justiciability of defense by the full-fledged trial. In our view, for the

purpose of Order XII Rule 6, the said admission is not clear and

categorical, so as to exercise a discretion by the Court without dealing

with the defense as taken by Defendant. As we are conscious that any

observation made by this Court may affect the merit of either side,

therefore, we are not recording any finding either on the issue of

tenancy or with respect to the defense as taken by the Defendant. We

are only inclined to say whether the judgment and decree passed in

exercise of the power under order XII Rule 6 of CPC is based on clear

and categorical admission. In our view, the facts of the case in hand

and the judgment in S.M. Asif (supra) are altogether similar, therefore,

the ratio of the said judgment rightly applies to the present case.

Consequently, the judgment and decree passed by the Trial Court, as

confirmed by the High Court, only on admission of fact without

considering the defense in exercise of power under Order XII Rule 6 of

CPC is hereby set-aside. The matter is remitted back to the Trial Court

to decide the suit as expeditiously as possible affording due

opportunity to the parties to record evidence that shall be appreciated

by the Court on merit."

The Jeevan Diesels & Electricals Ltd. vs. Jasbir Singh Chadha

(HUF) & Anr., reported in (2010) 6 SCC 601 relied by Mr. Sen appearing for the

appellant is a case where the judgment on admission was passed in deducing an

admission which was conspicuously absent in the pleading filed in the Court.

The parties thereto confined their submission on the pleadings filed in the said

case and did not advert to an admission "otherwise" appearing in Order 12 Rule 6

of the Code of Civil Procedure. It was observed that there is no admission in the

written statement of the pleading filed by the defendant in the said proceeding on

the termination of the tenancy and therefore, it cannot be regarded as a clear

admission in these words:

"11. In Uttam Singh Duggal & Co. Ltd. v. United Bank of India the

provision of Order 12 Rule 6 came up for consideration before this

Court. This Court on a detailed consideration of the provisions of Order

12 Rule 6 made it clear 'wherever there is a clear admission of facts in

the face of which it is impossible for the party making such admission

to succeed' the principle will apply. In the instant case it cannot be

said that there is a clear admission of the case of the respondent-

plaintiffs about termination of tenancy by the appellant in its written

statement or in its reply to the application of the respondent-plaintiffs

under Order 12 Rule 6.

12. It may be noted here that in this case parties have confined

their case of admission to their pleading only. The learned counsel for

the respondent-plaintiffs fairly stated before this Court that he is not

invoking the case of admission 'otherwise than on pleading'. That

being the position this Court finds that in the pleadings of the

appellant there is no clear admission of the case of respondent-

plaintiffs."

Lastly, Mr. Sen heavily relies upon a judgment of the Supreme Court in

case of Himani Alloys Ltd. vs. Tata Steel Ltd., reported in (2011) 15 SCC

273 for the proposition that the provisions contained in Order 12 Rule 6 of the

Code is an enabling provision which is neither mandatory nor peremptory. It is

held that it is a discretion of the judge to pass a judgment on admission provided

it satisfies the conscience that the defendant has made a clear and unequivocal

admission entitling the plaintiff to get the relief either in entirety or in part.

All the aforesaid judgments relied upon by Mr. Sen echoed the

principles behind the incorporation of the Order 12 Rule 6 of the Code of Civil

Procedure that the admission should be clear, explicit, positive, unequivocal and

unconditional. Such admission must be such, which does not invite any

interpretation except the clear admission on facts entitling the plaintiff to get the

judgment on admission on whole or on part of the claim. The provision contained

in Order 12 Rule 6 of the Code is an enabling provision and cannot be regarded

as mandatory or peremptory that the court has no other option but to pass a

judgment on admission. It is a discretion of the judge either to declare judgment

on admission or relegate the parties to trial to prove the facts. The intention

sublime the incorporation of Order 12 Rule 6 is to avoid unnecessary delay in

passing a decree and in other words, augments the speedy judgment and/or the

reliefs which the plaintiff is otherwise entitled to without undergoing the rigorous

provision of the evidence Act and/or a mode of proving thereunder. The

admission is the best piece of evidence provided it is clear, positive and

unconditional. The language employed under Order 12 Rule 6 is suggestive to

the fact that it is not restricted to the pleading only as the word "otherwise"

subsequently, incorporated by way of an amendment would be rendered

meaningless. The admission which stairs on the face of the defendant, he has to

face the consequences thereof and the Court should not unnecessarily invest time

in dealing with the cases and inviting the parties to lead evidence on an admitted

facts.

The case of eviction of a tenant by the landlord, in particular, has to be

dealt with great caution, more particularly, in the perspective of the nature of the

tenancy and the protection having afforded under the Rent Restriction Act. The

foremost duty cast upon the court is to first find out whether the tenancy is

governed by a protection given under the State Rent Restriction Act, and if the

answer is in positive, no judgment on admission should be passed because of the

embargo having created therein. The case of the eviction of a lessee under the

Transfer of Property Act stands on a different footing than of the State Rent

Restriction Act, where certain protections have been given to the tenant against

the eviction, what is not required in case of eviction under the Transfer of

Property Act. The existence of the jural relationship of a landlord and tenant and

the termination of the tenancy either by efflux of time or by notice served upon

the tenant under Section 106 of the Transfer of Property Act, are sine qua non for

passing the decree under the Transfer of Property Act. Obviously, the aforesaid

two instances should be admitted by the lessee in the pleading or otherwise as

held by the Supreme Court in Payal Vision Ltd. Vs. Radhika Choudhary

(2012) 11 SCC 405 in these words:

"7. In a suit for recovery of possession from a tenant whose tenancy

is not protected under the provisions of the Rent Control Act, all that is

required to be established by the plaintiff landlord is the existence of

the jural relationship of landlord and tenant between the parties and

the termination of the tenancy either by lapse of time or by notice

served by the landlord under Section 106 of the Transfer of Property

Act. So long as these two aspects are not in dispute the court can pass

a decree in terms of Order 12 Rule 6 CPC, which reads as under:

'6. Judgment on admissions.- (1) where admissions of fact have been

made either in the pleading or otherwise, whether orally or in writing,

the court may at any stage of the suit, either on the application of any

party or of its own motion and without waiting for the determination of

any other question between the parties, make such order or give such

judgment as it may think fit, having regard to such admissions.

(2) whenever a judgment is pronounced under sub-rule (1) a decree

shall be drawn up in accordance with the judgment and the decree

shall bear the date on which the judgment was pronounced.'

8. The above sufficiently empowers the court trying the suit to

deliver judgment based on admissions whenever such admissions are

sufficient for the grant of the relief prayed for. Whether or not there

was an unequivocal and clear admission on either of the two aspects to

which we have referred above and which are relevant to a suit for

possession against a tenant is, therefore, the only question that falls

for determination in this case and in every other case where the

plaintiff seeks to invoke the powers of the court under Order 12 Rule 6

CPC and prays for passing of the decree on the basis of admission.

Having said that we must add that whether or not there is a clear

admission upon the two aspects noted above is a matter to be seen in

the fact situation prevailing in each case. Admission made on the

basis of pleadings in a given case cannot obviously be taken as an

admission in a different fact situation. That precisely is the view

taken by this Court in Jeevan Diesels & Electricals Ltd. relied upon by

the High Court where this Court has observed:

'10. .... Whether or not there is a clear, unambiguous admission by

one party of the case of the other party is essentially a question of fact

and the decision of this question depends on the facts of the case. The

question, namely, whether there is a clear admission or not cannot be

decided on the basis of a judicial precedent. Therefore, even though

the principles in Karm Kapahi may be unexceptionable they cannot be

applied in the instant case in view of totally different fact situation.' "

The Division Bench of the Delhi High Court in case of Surjit Sachdev

vs. Kazakhstan Investment Services Pvt. Ltd. & Ors. reported in (1997) 66

DLT 54 (DB) has succinctly expounded two ingredients for judgment on

admission in a suit for eviction of a tenant i.e., the existence of relationship of

lessor and lessee or entry in possession of the suit property by defendant and

determination of such relation in any of the incidences envisaged under Section

111 of the Transfer of Property Act, in the following:

"17. The question now is that whether there is any admission or not

so as to entitle the plaintiff to have a decree for possession. The

factors which deserve to be taken into consideration in order to enable

the Court to pass a decree in plaintiff's favour as regards possession in

such like suit. are: (a) existence of relationship of lessor and lessee or

entry in possession of the suit property by defendant as a tenant; and

(b) determination of such relation in any of the contingency, as

envisaged in Section 111 of the Transfer of Property Act. One of the

modes stated therein is by efflux of time limited by the lease. Only on

unequivocal admission of the above two factors will entitle the plaintiff

to a decree on admission. Admission need not be made expressly in the

pleadings. Even on constructive admissions Court can proceed to pass

a decreed in plaintiff's favour."

At the risk of the repetition in order to bring more clarity on the

proportion of law concerning the provision under Order 12 Rule 6 of the Code of

Civil Procedure, it is evidently clear that unless the admission of the tenant is

such, we does not invite any other interpretation than the acceptance of the

aforesaid two ingredients, it is imperative to pass a judgment on admission. Any

other interpretation of the aforesaid provision would stultify the legislative intent

behind its incorporation where the primary object is to avoid the wastage of time

of the Court and the rigor of proving those facts under the Evidence Act. It is

intended to secure the speedy reliefs to achieve the quick disposal of the

litigation. Though it is a discretion of the judge to pass a judgment on admission

yet, if the circumstances and the facts involved in the given case invite such

exercise of discretion, the court must exercise judicially.

On the backdrop of the aforesaid legal proposition, it is examined

whether the appellant has made a clear, unconditional and positive admission

warranting the judgment to be passed on admission. Admittedly, the jural and

contractual relationship of the landlord and tenant is accepted by the appellant.

It is categorically admitted that the appellant no.1 was inducted as a monthly

tenant by the respondent in respect of the shop room on the ground floor and

mezzanine floor of Express Tower situate at 42A, Shakespeare Sarani, Kolkata-

700017. On the basis of an agreement for lease executed in the month of

January, 2016, it is also admitted that initially the agreed amount of rent was Rs.

1,40,000/- which was subsequently enhanced to Rs. 1,61,000/-. The appellant

further accepted the factum of giving a sum of Rs. 7 lakhs as a security deposit at

the time of execution of the lease agreement and the amenities agreement and

carried on her business peacefully for a pretty long time. So far as the notice

under Section 106 of the Transfer of Property Act, 1882 is concerned, a plea has

been taken that in terms of the clauses in the lease agreement the same is

required to be served at the registered office of the appellant but the same was

served at the suit premises. Such being an admitted fact, the only question

which involves is whether it satisfies the conditions required for passing a

judgment on admission as enunciated in Payel Vision Ltd. (supra). The Apex

Court has categorically held as quoted above that the moment the existence of

jural or contractual relationship of landlord and tenant between the parties and

the service of the notice under Section 106 of the Transfer of Property Act are

admitted, it invites no other consequences but to pass a judgment on admission.

Both the ingredients are found to exist in the pleading filed in the suit and

therefore, we do not find any impediment on the part of the Single Bench to pass

a judgment on admission, even if the plea is taken that the period of notice fell

short of being contrary to the terms of the lease agreement. It is undeniable that

the suit was filed after the expiry of the aforesaid period. Merely because the

notice contains shorter time to what agreed upon, the moment the suit is filed

after the expiry of the said period it cannot invalid such notice. The period

enshrined in the notice determining the tenancy is to inform the tenant that the

landlord requires recovery of the possession and contemplates to initiate a

proceeding before the Court of Law. In the event, the tenant fails to act on the

requisition made therein, the validity of the notice cannot be effaced nor eroded if

the suit is filed after the expiry of the period as agreed upon. Apart from the

same, there is inconsistency in the stand of the appellant in the pleading

concerning the notice; at one place it is submitted that since the lease agreement

reserving a period for more than one year requires registration and sufficient

stamp to be put thereupon, on the other hand, it relies upon its terms and

conditions embodied therein. The relationship of landlord and tenant is created

upon induction of a tenant into a tenanted premises and payment of rent to the

landlord. The tenant cannot deny the title of the landlord in view of the estoppels

created under Section 116 of the Evidence Act. There is no denial on service of

notice upon the appellant and once the same is admitted the tenant cannot

wriggle out of such admission.

It is further manifest from the instant case that the said tenancy is not

protected under the West Bengal Premises Tenancy Act, 1997 because of the

exemption provisions contained in the said act and admittedly governed by the

provision of the Transfer of Property Act. There is no protection against the

eviction as envisaged in the West Bengal Premises Tenancy Act, 1997 available to

the appellant. Section 111 of the Transfer of Property Act postulates that the

lease determines on an expiry of the period given in a notice under Section 106 of

the Transfer of Property Act and no protection in this regard has been given in

any of the provisions contained in the said act.

From whatever angle this Court looks that we do not find any illegality

and/or infirmity in the impugned judgment.

The appeal is thus dismissed.

No order as to costs.

Urgent Photostat certified copies of this judgment, if applied for, be made

available to the parties subject to compliance with requisite formalities.

  I agree.                                                   (Harish Tandon, J.)



(Prasenjit Biswas, J.)




  LATER:

After the judgment is delivered, learned advocate for the appellant prays

for stay of operation of this order.

After considering the submissions and the prayer, we do not find that it

is a fit case where we should accede to the prayer of the appellant. Hence, the

prayer is refused.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)