Calcutta High Court
Sudera Realty Pvt Ltd vs Indian Oil Corporation Ltd on 8 September, 2023
OD - 15
ODER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
CS/77/1995
IA NO: GA/9/2019(Old No:GA/643/2019),
GA/10/2019,
GA/11/2019,
GA/12/2023
SUDERA REALTY PVT LTD
VS
INDIAN OIL CORPORATION LTD.
BEFORE:
The Hon'ble JUSTICE SUGATO MAJUMDAR
Date: 8th September, 2023
Appearance:
Mr. Jishnu Saha,Sr. Adv.
Mr. U.S. Menon, Adv.
Ms. Sulagna Mukherjee,Adv.
Mr. Abhirup Chakraborty,Adv.
...for the Plaintiff.
Mr. Tilok Kr. Bose, Sr. Adv.
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Amit Meharia,Adv.
Mr. Kanishk Kejriwal,Adv.
Ms. Madhurima Haldar,Adv.
Ms. Paramita Banerjee,Adv.
Ms. V. Meharia, Adv.
Ms. Amrita Das,Adv.
...for the Defendant.
The Court: Number of applications are pending for adjudications. G.A. 9 of
2019 was filed by the Plaintiff praying for the final decree for a sum of Rs.
43,80,08,628/- being mesne-profit as determined by the Special Referee; interest
@ 9% per annum from 01.03.2019 till realization; direction to the Defendant to
secure the sum of Rs. 43,80,08,628/- or such sum as may be directed along with
incidental prayers.
G.A. 10 of 2019 is filed by the Defendant as an exception to the Report of the
Special Referee praying that Report of the Special Referee dated 08.01.2019 filed in
the instant suit computing mesne-profit, be set aside and should not be taken into
consideration; stay of the effect of the or further effect of the said Report dated
08.01.2019
; fresh enquiry be directed to be held to determine the true rate of
mesne-profit along with other prayers.
G.A. 11 of 2019 is filed by the Plaintiff with prayers for order directing the
Defendant to pay a sum of Rs. 11,56,03,456/- calculated at a rate of Rs. 15/- per
square feet per month with interest @ 9% per annum till 28.02.2019 to the Plaintiff
pending disposal of G.A. 9 of 2019 on the basis of admission made in Para.9 of the
Affidavit-in-Opposition filed in G.A. 9 of 2019; order directing such payment of Rs.
11,56,03,456/- to be treated as a condition precedent for consideration of Affidavit-
in-Opposition filed in G.A. 9 of 2019 along with other prayers.
G.A. 12 of 2013 is filed on behalf of the Defendant praying for -
i) Contents of the application including the submissions and documents
annexed be treated as part of G.A. 10 of 2019 and all connected applications
in the suit;
ii) Order directing the Plaintiff to produce all the documents as stated in Para
4 (iii) of the application at the time of hearing of G.A. 10 of 2019 and all
connected applications in CS 77 of 1995 along with incidental prayers.
On 19.12.2022, this Court was considering G.A. 11 of 2019 along with G.A. 9
of 2019 and G.A. 10 of 2019. Pursuant to the prayers made in G.A. 11 of 2019, this
Court directed the Defendant to deposit an amount calculated at a rate of Rs. 10/-
per square feet as mentioned in the Affidavit-in-Opposition to G.A. 9 of 2019. It
was further directed to deposit the amount with the Learned Registrar, Original
Side within twenty days with further direction that the Learned Registrar shall
invest the amount in a fixed deposit scheme.
The Plaintiff, being aggrieved by the said order dated 19.12.2022 preferred an
appeal being A.P.O.T. No. 04 of 2023. The Appellate Court, in terms of the Order
dated 22.02.2023 disposed of the appeal observing that this Court can decide the
limited issue of judgment on admission and further that there is no legal bar in
allowing part of the claim based on admission; the disputed part can be decided
later on.
In view of the observation of the Appellate Court, the limited scope for
hearing G.A. 11 of 2019 is allowing or considering allowing a part of claim on
admission. The other pending applications are to be disposed of on their own merit.
The parties therein exchanged further affidavits in support of their respective
pleas.
In Affidavit-in-Opposition, to G.A. 11 of 2019, the plea taken by the
Defendant is that the Plaintiff has failed to make out a case for judgment on
admission; the Plaintiff misconstrued the statement made in the concerned
Affidavit-in-Opposition; the same could not be read, understood and interpreted in
isolation; the said statement cannot be regarded as "admission' within the meaning
of Section 17 of the Indian Evidence Act, 1872.
Written notes of argument were filed by the Plaintiff. The Learned Senior
Counsel Mr. Saha, appearing for the Plaintiff argued with reference to different
decisions that statements made in pleading of the parties clearly amount to
admissions. In this case clear and unequivocal statement of the Defendant on oath
that mesne-profit should be at best be Rs.10/- to Rs.15/- per square feet, as
contained in Para 9 of the G.A. 9 of 2019 is admission within the meaning of Section
17 of the Indian Evidence Act, 1872. Therefore, according to Mr. Saha, in
consonance with the Order passed by the Appellate Court, the instant application
should be allowed.
Per contra, the Learned Senior Counsel Mr. Ghosh led by the other Learned
Senior Counsel Mr. Bose, appearing for the Defendant vehemently denied that any
admission was made in the concerned Affidavit-in-Opposition to G.A. 9 of 2019.
The Defendant filed written notes of argument, as did the Plaintiff. It is contended
in the written notes of argument that the concerned statement sought to be relied
upon the Plaintiff is not any admission at all. There occurred a typographical error
and omission in the said sentence for which a word "Plaintiff" was dropped.
According to the written notes of argument, it should be read that the Plaintiff with
all documentary evidences and with the established procedure/method of
calculating the rent proved that the ground rent/occupational charges of the subject
premises can be at best Rs.10/- to Rs.15/- per square feet per month.
Mr. Bose further argued that one of the witnesses of the Plaintiff himself
deposed before the Learned Special Referee that rate of rent of the premises was Rs.
10/- per square feet per month in the year 2007-2008. Making back calculations,
rate of rent ten years back therefrom should be Rs. 5/- per square feet per month.
This admission of the Plaintiff's witness should be taken into consideration and this
should be treated as admission by the Plaintiff's witness himself. Any calculation of
mesne-profit should be based on this. Referring to the following decisions Mr. Bose
submitted that unless there is clear and unambiguous statements with intention to
be bound by it, there cannot be any admission; an admission cannot be inferred or
in other words there cannot be any inferential admission. Uttam Singh Duggal
& Co. Ltd. vs. United Bank of India & Ors. [(2000) 7 SCC 120], Himani
Alloys Ltd. vs. Tata Steel Ltd. [(2011) 15 SCC 273], Amit Kumar Chopra
vs. Narain Cold Storage & Allied Industries Pvt. Ltd. & Ors. [2014 SCC
OnLine Del 972] were relied upon.
I have heard rival submissions.
It is in the argument of the Defendant that there occurred typographical
error in the concerned statement and the word "Plaintiff" was dropped from the
said sentence. Defendant made no attempt to amend the concerned Affidavit-in-
Opposition at any point of time. Therefore, it cannot be heard to say that omission
of the word Plaintiff is a typographical error. The word "Plaintiff" cannot be
imported into and read in the sentence itself. It will be read as it stands.
The Defendant has challenged the Report of the Special Referee in G.A. 10 of
2019. It is in the prayer of the Defendant that the said Report of the Special Referee
dated 08.01.2019 should not be given any effect or further effect to. When the
Report is in challenge and there is a prayer to set aside the said Report, acceptance
or relying on any part of it may prejudice the interest of the Defendant or may
tantamount to prejudging the effect of the Report. Therefore, what one witness
stated before the Special Referee, as mentioned in the Report, cannot be taken into
consideration at present, while G.A. 10 of 2019, challenging the Report is still
pending. Moreover, the statement of witness made before a Special Referee cannot
be accepted as admission ignoring admission made on oath in any pleading.
It is evident from the record that this Court, in the Order dated 19.12.2022
recorded the submission of the Learned Counsel for the Defendant that there is no
admission since the Report of the Special Referee is under challenge. It was also
observed in the said Order that when it is mentioned in the written objection of G.A.
9 of 2019 in Para. 9 that rent/occupational charges of the subject premises can be at
best Rs. 10 - 15/- per square feet per month, certainly that cannot be brushed aside.
The Defendant did not prefer any appeal against the said Order. It is the Plaintiff
who preferred the appeal. The Appellate Court, after hearing the submissions made
by both the parties passed the Order dated 22.02.2023 directing to consider passing
judgments on admission.
On perusal of the pleading of the parties and on hearing respective
submissions and also considering long pendency of the litigation this Court is of
opinion that pending consideration of Report of the Special Referee and in
consonance to the Order of the Appellate Court dated 22.02.2023, G.A. 11 of 2019
should be allowed.
Accordingly prayer (a) of the Notice of Motion of G.A. 11 of 2019 is allowed.
The amount already deposited by the Defendant with the Learned Registrar,
Original Side, shall be withdrawn by the Plaintiff, and realise the same to the
satisfaction of order passed herein pursuant to the prayer (a) abovementioned. The
Defendant shall pay the balance amount to the Plaintiff within a period of one
month.
The Learned Registrar, Original Side, shall do the needful in this regard.
A copy of this Order may be sent to the Learned Registrar, Original Side.
G.A. 11 of 2019 stands disposed of.
Fix on 05.10.2023 for hearing the pending applications.
(SUGATO MAJUMDAR, J.)
