Calcutta High Court
Dilip Kumar Khandelwal vs Essjay Ericsson Pvt. Ltd on 4 October, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 13 of 2021
&
IA No: GA 14 of 2021
In CS 372 of 2014
Dilip Kumar Khandelwal
Versus
Essjay Ericsson Pvt. Ltd.
Mr. Jishnu Chowdhury
Mr. Ratul Das
Ms. Pritha Basu
Mr. Debartha Chakraborty
Mr. Saptarshi Kar
... For the plaintiff.
Mr. Sabyasachi Chowdhury
Mr. Satadeep Bhattacharyya
Mr. Uttam Sharma
Ms. Vrinda Kedia
... For the defendant.
Hearing Concluded On : 08.09.2023
Judgment on : 04.10.2023
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Krishna Rao, J.:
1. The plaintiff has filed an application being G.A No. 13 of
2021 praying for acceptance of the report of Special Referee
and to pass final decree. The defendant has filed an
application being G.A No. 14 of 2021 challenging the report
of the Special Referee and prayed for setting aside the report.
2. The plaintiff has filed the suit against the defendant for
eviction and for mesne profit. The plaintiff had initially filed
an application being G.A No. 288 of 2015 in C.S No. 372 of
2014 under Chapter XIIIA of the Original Side Rules. The
application filed by the plaintiff was disposed of by an order
dated 16th June, 2015 by allowing prayers (a) and (b) of the
Master's Summons and a Special Referee was appointed to
ascertain the mesne profit. The defendant has preferred an
appeal, being APDT No. 29 of 2015, which was dismissed by
an order dated 15th October, 2015, which was again
challenged by the defendant before the Hon'ble Supreme
Court but the defendant was unsuccessful. After the order
passed by the Hon'ble Supreme Court, the defendant had
vacated the premises on 24th May, 2017 and thus the period
3
for determination of mesne profit with respect of the suit
premises was from 24th September, 2014 to 24th May, 2017.
3. The Learned Special Referee has submitted his report on 20th
April, 2021 by awarding the mesne profits in favour of the
plaintiff with respect of the suit premises at the rate of Rs.
51.50/- per square feet per month for the entirety of the
period under consideration as well as interest on mesne
profit at the rate of 6% per annum till realization.
4. The plaintiff has accepted the report and prayed for passing
final decree.The defendant has challenged the report of the
Special Referee.
5. Mr. Sabyasachi Choudhury, learned Advocate representing
the defendant submitted that in paragraph 13 of G.A No. 13
of 2021, the calculation made by the plaintiff is not correct.
He submits that as per the schedule of property the total
area is 14,300 sq.ft but the plaintiff has made calculation of
16,240 sq.ft.
6. Mr. Choudhury submitted that as per the report of the valuer
the physical measurement of the area is less than the area
4
mentioned in the schedule of property. As per schedule
property the area is 14,300 sq.ft. but as per physical
measurement, the area of the property is 11,122 sq.ft.
7. Mr. Choudhury submitted that the Learned Special Referee
has accepted most of the contentions of the defendant and
had adopted the methodology of the defendant valuer who
was examined as RW1 before the Special Referee but taken
the valuation of the land on the basis of the valuation for the
year 2018 which is beyond the period of reference.
8. Mr. Choudhury submitted that the circle rate of Rs.
10,76,00,000/- as on 25th April, 2018 was not of the suit
property, but of a vacant piece of land with identical land
area on the road side, which was relied by the valuer of the
defendant to show that there would not be any appreciable
difference even if the highest circle rate is taken for a vacant
plot of land in 2018.
9. Mr. Choudhury submitted that the Special Referee in
substituting the circle rate of 2018 to determine the mesne
profit of a period ranging from 2014 to 2017, has erroneously
directed himself to embark upon the incorrect appreciation of
5
fact though the best evidence was available with him for the
said period.
10. Mr. Jishnu Chowdhury, Learned Advocate representing the
plaintiff by supporting the report submitted by the Special
Referee, submitted that the valuer of the defendant (RW1)
had disclosed the circle rate dated 25th April, 2018 and as
per circle rate the market value of the property is assessed at
Rs. 10,76,42,298/- which works out to be Rs. 62.29 lakhs
per cottah. The circle rate of April' 2018 could be profitably
used in arriving at the market rent during the subject period
between 2014 to 2017 as the RW1 deposed that there has
been no major price escalation in the real estate market.
11. Mr. Chowdhury submitted that description of the suit
premises situated at 5/1, Commissariat Road, Kolkata -
700022 has been correctly mentioned and the same has been
amended by an order dated November 27, 2015. He has
submitted that the valuer has not considered the entirety of
the land and shed lying there at. He submits that the
defendant has not raised objection during the adjudication of
the suit relating to the description of the premises or absence
of any structure thereon. He submits that the disputes raised
6
by the defendant regarding measurement of the premises has
been duly considered by the Special Referee.
12. Mr. Chowdhury submitted that the application of the plaintiff
under Chapter XIIIA of the Original Side Rules of this Court
was disposed of by passing a decree in terms of the schedule
property mentioned in the plaint and thus the Learned
Special Referee has rightly considered the mesne profit on
the basis of the schedule of property mentioned in the plaint.
13. Mr. Chowdhury admitted the calculation made by the
plaintiff in paragraph 13 of G.A 13 of 2021 and submitted
that it should be considered as 14,300 sq.ft. instead of
16,240 sq.ft.
14. Mr. Chowdhury submitted that the market value disclosed in
the deeds are not the only evidence. The Learned Referee has
considered the market value of 2014 and the market value of
2018 as per circle rate and by considering the evidence of the
valuer of the defendant (RW1) has stated that there was no
price rise between the year 2014 and 2018.
15. Considered the submissions made by the respective parties,
perused the report and the pleadings. The defendant has
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raised the first issue that the calculation made by the
plaintiff in paragraph 13 of G.A No. 13 of 2021 is not correct
and the area should be 14,300 sq. ft. and not 16,240 sq.ft.
Mr. Jishnu Chowdhury, Learned Advocate representing the
plaintiff has admitted and submitted that it is to be
calculated as 14,300 sq. ft. and not 16,240 sq. ft.. Mr.
Chowdhury has submitted a revised calculation sheet which
reads as follows :
ACCEPTED AND REVISED CALCULATION SHEET
Particulars Amount
S
.
N
O
1. Awarded amount of mesne Rs. 2,35,6, 400/-
profits of Rs.7,36,450/- per
month for the total area of
14,300 sq. ft. calculated @
Rs. 51.50p per sq. ft. per
month calculated from
September 24, 2014 to May
24, 2014.
2. Interest on mesne profits on Rs.78,24,425/-
the amount accruing due and
payable month after month
and every month at the rate
of 6% per annum calculated
upto August 21, 2021.
TOTAL Rs. 3,13,90,825/-
16. Now the issue with regard to the difference in area and
description of the land found on accrual measurement
compared to the description and area of the property
mentioned in the schedule of plaint.
SCHEDULE "A" of the property mentioned in the plaint
reads as follows :
"All That piece and parcel of revenue free land admeasuring an
area of 17 (Seventeen) Cottahs, 4 (Four) Chittacks and 20 (twenty) sq.ft.
more or less situate and lying at and being Premises No.5,
Commissariat Road, Hastings, in the Southern Division, under the
jurisdiction of Hastings Police Station, within the Municipal limits of
Kolkata Municipal Corporation in its Ward No. 75, Kolkata - 700022
together with 65 year old Residential Building and outhouse and sheds
constructed thereon in the following manner:-
Portion Pucca (sq.ft) Asbestos Flooring
Shed (sq.ft)
Ground Floor 4500 6000 Mosaic
-
First Floor - 3500 Mosaic
Second Floor - 300 (two rooms Mosaic
having an
area of 150
sq.ft. each)
The Land is butted and bounded as follows:-
On the North: By Commissariat Road, Kolkata;
On the South: By Premises No. 4/2B, Leonard Road, Kolkata;
On the East: By Premises No. 5/1, Commissariat Road, Kolkata and
On the West: By Bakery Road, Kolkata;"
Valuer of the defendant (RW1) has given the details of the
property as follows:
B. DETAILS OF THE PROPERTY
1. Land Area Total land area: 17 Cottah 4 Chiitak 20 sq. ft.,
i.e.17.28 Cottah, as per deeds;
Deed No.I-05502 : 4.319 Cottah (1/4 share)
Deed No.I-05503 : 2.879 Cottah (1/6 share)
Deed No.I-05504 : 4.319 Cottah (1/4 share)
Deed No.I-05505 : 2.879 (1/6 share)
13.56 Cottah, area of land, as per
measurement (as far as demarcation shown to
me)
The defendant has raised the issue with regard to the area of
the schedule property before the Special Referee but the Special
Referee has not decided the issue and held that :
"In this reference, I have no authority or
jurisdiction to go beyond the decree already passed by
this Hon'ble Court. The Schedule being Annexure 'A' to
the affidavit filed in support of the Master's Summons
which describes the suit premises has been set out by
me hereinabove because some murmurs were raised by
the defendant with regard to the correctness of the
extent and area of the suit premises and by both parties
with regard to the description, age and area of some of
the structures mentioned therein. I make it clear that I
have refrained from entering into such disputes and
vexed questions since the scope of my jurisdiction and
authority is only to make an enquiry into mesne profits
of the suit premises more fully described in Annexure 'A'
to the affidavit filed in support of the Master Summons."
As per Schedule A property and as per the lease deeds the
area of the premises is 17.28 cottah but as per the demarcation
by the valuer of the defendant the area of suit property is 13.56
cottah. At the time of cross examination of the valuer of the
defendant (RW1),has given answer to Question Nos. 21, 75, 85
and 86 which are as follows :
"21. Please come to page 8 of the affidavit (B)(1). You
have mentioned that 13.56 Cottahs of land is
comprised in the suit premises and have you also
mentioned that the total land area is 17 cottahs 4
chittacks 20 square feet. Why the difference?/ The
way the measurement has been shown and the way
the boundary wall exists, the suit premises
measures 13.56 cottahs and not 17 cottahs 4
chittacks 20 square feet. I was also shown some
land and few sheds which were outside the
boundary wall and I was told that this is a part of
the suit premises. However, the premises number
was different and this was outside the boundary
wall of the property. Mr. Pradeep Guha of the
defendant told me that this was not a part of the
suit premises. The shed was locked and I could not
inspect the same.
75. Did you enter every room of the house? // May be,
we did not enter into one or two rooms which may
have been locked. Other than, we covered the
entirety of the house.
85. Can you give an approximate idea of the length and
width of the godown? // [Witness seeks leave to
consult his report filed by him. Such leave is
granted] Since, it was not a part of my work area,
the details were not included in my report.
86. Would your answer be the same for that second
building which you did not include in your report?
// Yes."
As per the answer of RW1, he has not included the second
building in his report and he has not entered into one or two
rooms which were locked.
By an order dated 16th June, 2015, this Court had disposed
of G.A No. 288 of 2015 by passing the following order:
"Under such circumstances, there shall be an
order in terms of prayers (a) and (b) of the Master's
Summons. Mr. Samrat Sen, Senior Advocate, a member
of the Bar Library Club is appointed as Special Referee
in terms of prayer (b). The Special Referee shall be
entitled to a remuneration of 600 GMs for each sitting.
The Special Referee shall conclude the proceeding
within six months from the date of entering the
reference. The other claims are relegated to trial.
Accordingly, G.A. 288 of 2015 stands disposed of."
Prayer (a) and (b) of the Master's Summons reads as follows:
"(a) Final judgment and decree for Khas, peaceful and
vacant possession of the said premises situated at
5, Commissariat Road, Kolkata - 700022 more fully
described in Annexure 'A' of the Affidavit in support
of the Master's Summons;
(b) A Special Referee or Commissioner be appointed for
making an inquiry into mesne profit from the date of
institution of the suit until delivery of possession of
the suit premises more fully described in Annexure
'A' of the affidavit in support of the Master's
Summons and decree for such sum as may be
determined by such enquiry."
In prayers (a) and (b) of the Master's Summons it is
categorically mentioned "more fully described in Annexure "A"
of the Affidavit in support of the master's summons". At the
time of hearing, the defendant has not raised any objection
with respect of Annexure "A" of the Master's Summons
though the defendant has challenged the order dated 16th
June, 2015 before the Hon'ble Supreme Court but the order
dated 16th June, 2015 was upheld.
In view of the above, I am of the view that the contention
raised by the defendant with regard to the measurement of
area of the schedule property is not sustainable, accordingly
the same is rejected.
17. Now the issue with regard to the method adopted by the
Special Referee while deciding the mesne profit.
The valuer of the defendant (RW1) has submitted his
report in two parts. In part I(B), Sl. Nos. 12 and 13, the
Valuer has mentioned the value of the property as follows :
12. Rate Proposed In The Valuation Rs.52,00,000/- per cottah,
fair market value as on
07/05/2014;
Rs.65,00,000/- per cottah,
fair market, value as on
date.
13. Circle Rates As Per The Latest Govt. Rs.52,09,539/- per cottah,
Gazette, If Available circle rate as on
07/05/2014 (considering
negligible value of structure);
Rs. 62,29,300/- per cottah,
circle rate as on
03/02/2018
In Part-II the valuer has shown the fair market valuation and
determination of fair market rent as on 7th May, 2014 as follows :
PART-II
VALUATION
1. Fair Market Valuation and Determination of Fair Market Rent as
on 07/05/2014
The market price of similar type of land in the locality, in May 2014, can be
considered to vary from Rs.45,00,000/- to Rs.65,00,000/- per cottah.
However, I consider the value of the aforesaid land @ Rs.52,00,000/- per
Cottah due to irregular shape of the plot, as well as slum in the close vicinity.
Hence, the fair market value and fair market rent of the aforesaid property
as on 07/05/2014 can be considered follows:
Scenario A (Considering land & building areas as per deeds):
Item Area Replacement Cost Depreciation Valuation
Rs/unit Rs. % Rs. Rs.
Land 17.28 52,00,00/- 8,98,56,000/- 0% 0/- 8,98,56,000/-
Cottah
Ground 4,500 1,900/- 85,50,000/- 80% 68,40,000/- 17,10,000/-
floor sq. ft.
(pucca)
Ground 6,000 900/- 54,00,000/- 90% 48,60,000/- 5,40,000/-
floor sq. ft.
(ASB
shed)
1st 3,500 1,400/- 49,00,000/- 80% 39,20,000/- 9,80,000/-
Floor sq. ft.
2nd 300 1,300/- 3,90,000/- 80% 3,12,000/- 78,000/-
floor sq. ft.
MARKET VALUE (A) 10,90,96,000/- 1,59,32,000/- 9,31,64,000/-
Rental yield (B): 8.00%
Annual Fair market rent (C=AxB): 74,53,120/-
Monthly fair market rent (D=C/12): 6,21,093/-
Rent per unit (Rs./sq. ft./month) 43.43
In Part-II (ii) the valuer has shown the fair valuation and
determination of fair market rent as on the date of report as
follows :
"II. Fair Market Valuation and Determination of Fair Market Rent
as on Date of Report:
The market price of similar type of land in the locality, as on date, can be
considered to vary from Rs.55,00,000/- to Rs.70,00,000/- per Cottah.
However, I consider the value of the aforesaid land @ Rs.60,00,000/- per
Cottah due to irregular shape of the plot, as well as slum in the close
vicinity. Replacement cost if bechmarked to rated for construction of
similar units published by CPWD in the relevant year or its whereabouts,
with necessary adjustments. Hence, the fair market value and fair
market rent of the aforesaid property as on date can be considered as
follows:
Scenario A (Consider land & building areas as per deeds):
Item Area Replacement Cost Depreciation Valuation
Rs/unit Rs. % Rs. Rs.
Land 17.28 60,00,00 10,36,80,000 0% 0/- 10,36,80,000
Cotta /- /- /-
h
Groun 4,500 2,000/- 90,00,000/- 85% 76,50,000/- 13,50,000/-
d floor sq. ft.
(pucca
)
Groun 6,000 950/- 57,00,000/- 90% 51,30,000/- 5,70,000/-
d floor sq. ft.
(ASB
shed)*
1st 3,500 1,450/- 50,75,000/- 85% 43,13,750/- 7,61,250/-
floor sq. ft.
2nd 300 1,350/- 4,05,000/- 85% 3,44,250/- 60,750/-
floor sq. ft.
MARKET VALUE (A) 12,38,60,000 1,74,38,000 10,64,22,000
/- /- /-
Rental yield (B) : 7.00%
Annual Fair market rent (C=AxB): 74,49,540/-
Monthly fair market rent (D=C/12): 6,20,795/-
Rent per unit (Rs./sq. ft./month) 43.41
The Special Referee has submitted his report by considering
the mesne profit of the schedule property as follows:
If we make the aforesaid adjustment, the fair rent for the suit premises
as of May, 2014 would be as follows :-
Item Area Replacement Depreciation Value
Cost
Rs./ unit % Rs. Rs.
Rs.
Land 17.28 62,00,000.00 0% 10,71,36,000/-
cottah 10,71,36,000/- 0/-
Ground 4,500 1,900/- 80% 17,10,000/-
Floor sq.ft. 85,50,000/- 68,40,000/-
(pucca)
Ground 6,000 900/- 90% 5,40,000/-
floor(ASB sq. ft. 54,00,000/- 48,60,000/-
shed)
1st floor 3,500 1,400/- 80% 9,80,000/-
sq. ft. 49,00,000/- 39,20,000/-
2nd floor 300 1,300/- 80% 78,000/-
sq. ft. 3,90,000/- 3,12,000/-
Market Value (A) = 1,59,32,000/- 11,04,44,000/-
Rs. 12,63,76,000/-
Rental yield (B) :
8.00%
Annual fair market 88,35,520/-
rent (C=AXB)
:
Monthly fair market 7,36,293/-
rent (D=C/12)
:
Rent per unit (Rs. / 51.489- 51.50
Sq.ft./ month) (approx.)
RW1 has submitted his report with regard to fair market
valuation and determination of fair market rent as on the date of
report by considering the value of schedule premises at Rs.
60,00,000/- per cottah. The valuer has considered the said value
by taking into consideration of irregular shape of the plot, as well
as slum in the close vicinity.
The Special Referee has not accepted the reasons for which
the RW1 has considered the value of the property at Rs.
60,00,000/-. The reasons for not accepting the value of the RW1
is recorded in paragraphs 75 and 76 of the report of Special
Referee which reads as follows :
"75. The assertion made by RW1 that the value
of the suit premises would stand depressed
because of its irregular shape and the
presence of slum in the close vicinity is not
something which impresses me. In his Cross-
examination he clarifies 'mere vicinity' to
mean within the radius of 2-3km (Cross: Q-
51). The same is a substantial distance. No
clarity is provided by RW1 as to how close
the purported slum is to the suit premises.
Nor does RW1 provide any clarification as to
how the shape of the suit premises affected
the value of the suit premises.
76. The only other question that remains is as to
what effect the other structures in the suit
premises would have on the fair rent if the
same were taken into account. In his Cross-
examination (Q-59), RW1 says that the
increase in the rental value '.... will be very
small'. This is not probed any further by the
plaintiff. Nor does the plaintiff assert in real
or material terms as to what difference the
same would make to the end result noted
above."
The Special Referee has considered the answer to the
question Nos. 51 and 59 of the RW1 but the Special Referee
has not considered the further answers to the questions put
to RW1 during his cross examination. During cross
examination of RW1, the learned Counsel for the plaintiff has
put certain question with regard to the surroundings and
nearby buildings. In question No. 116, the RW1 has made
volunteers statement which reads as follows :
"I suggest to you that the numerous buildings that
I have referred to in my previous questions are
not recent developments but were present on the
date of valuation. (in this regard reference is
made to question Nos. 90, 93, 94, 96, 107, 109,
110, 111) // I disagree.
Witness volunteers: // The buildings as referred
to in question 93 to 94 were not constructed at the
relevant time and what would transpire thereafter
was not my concern at the time of making
valuation. The valuation of the building on
opposite side of road may vary, for example, on
the Northern Side of Tollygunge Circular Road is
New Alipore which is of far higher valuation than
the property on the Southern Side of the road
which is in Behala"
18. During the 6th siting held on 18th April, 2017, the Counsel for
the defendant had raised certain issues which are as follows:
"(c) Similarly the three storied
building/structure on the centre of the
above referred two buildings i.e. far end of
the main gate, has also been constructed
by the respondent after obtaining lease
hold right with respect to the subject
premises.
(d) The fact that the construction of new
buildings/structures have been carried out
by the respondent after execution of the
lease in its favour is an admitted position.
(f) There is a large slum area on the South
Eastern side of the subject premises.
(g) The respondent is relying upon certain
photographs of the subject premises so as
to assist the Learned Special Referee to
conduct his enquiry."
19. As per the Minutes of the Meeting, the Special Referee has
recorded the submissions of the parties to obviate any
controversy at any future stage of the proceedings regarding
the stands of the party with regard to the present state of the
suit premises. On the same day, the Special Referee has
visited the suit premises and recorded the same in the
Minutes of Meeting but has not recorded whether the
contentions raised by the Counsel for the defendant was
correct or not. The Special Referee has recorded that "It is not
disputed that the building that one encounters on the right
hand side was the original building and that the buildings on
the lefthand side as well as the building at the far end (which
connects the other two buildings) are later structure."
The Special Referee has visited the suit premises but had
not recorded any finding with regard to the large slum area
on the eastern side of the suit premises in the Minutes of the
Meeting as raised by the counsel for the defendant. In
question No. 39, the Counsel for the plaintiff has specifically
put the question to RW1 with regard to the slums in the
vicinity and the RW1 has stated that there is slum area in
the vicinity. In question No. 48, RW1 has further stated that
"I was told that other two structures including the shed were
constructed by the defendant. They were not constructed by
the landlord."
20. The period for consideration in relation to determination of
mesne profit was from 24th September, 2014 to May 24, 2017
but the Special Referee has considered valuation of the land
at Rs. 62,00,000/- per cottah on the basis of the circle rate of
2018 i.e. beyond the reference period.
Mesne Profit is defined under Section 2(12) of the Code
of Civil Procedure, 1908 which reads as follows:
"2(12) "mesne profits" of property means
those profits which the person in wrongful
possession of such property actually received or
might with ordinary diligence have received
therefrom, together with interest on such profits,
but shall not include profits due to improvements
made by the person in wrongful possession;"
21. The Special Referee in his report come to the finding that the
assertion made by RW1 that the value of the suit premises
would stand depressed because of its irregular shape and the
presence of slum in the close vicinity is not something
impresses him. The Special Referee has not considered that
before his visit at the site, the Counsel for the defendant has
raised the issue of slum area near to the suit premises but
the Special Referee has not taken note of the same during his
visit and has not considered the contention made by the
Counsel for the defendant about the slum area in the vicinity
of the suit property. The Special Referee has considered the
valuation for the year' 2018 though the reference period was
up to May' 2017. The Special Referee has also not considered
that two structures including the shed were constructed by
the defendant.
22. In view of the above, the report submitted by the Special
Referee is set aside and remanded the matter back to the
Special Referee for consideration a fresh and to submit a
fresh report within two months after receipt of the copy of
this order.
23. G.A No. 13 of 2021 is dismissed and G.A. No. 14 of 2021
is allowed.
(Krishna Rao, J.)
