Calcutta High Court
Sukh Shanti Homes (P) Ltd vs Ashok Kumar Jindal And Ors on 1 February, 2024
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-5
ORDER SHEET
IA NO. GA/2/2023
In
CS/15/2023
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SUKH SHANTI HOMES (P) LTD.
VS
ASHOK KUMAR JINDAL AND ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date : 1st February, 2024.
Appearance:
Mr. Rishabh Karnani, Adv.
Mr. Sourath Dutt, Adv.
Mr. Sanjay Baid, Adv.
...for the petitioner
Mr. Arjum Mookerjee, Adv.
...for respondent nos. 2 and 3
Mr. Sudip Deb, Adv.
Mr. Riju Ghosh, Adv.
Ms. Laxmi Agarwal, Adv.
...for defendant nos. 4 & 5
The Court: Before proceeding with this application for summary
judgment under the provisions of Chapter XIIIA of the Original Side Rules of
this Court filed by the plaintiff in a suit for recovery of possession, the factual
background is required to be noted.
It appears that the defendant nos. 1 to 5 obtained a lease from the
erstwhile owner Maya Choudhury under an indenture dated 6th November,
1978. The tenure of the lease is initially for a period of 99 years commencing
from the date of execution of the document with an option for renewal for
another period of 10 years on expiry of the initial term. The lease rental as fixed
under the said lease deed is Rs.2200/- per month. Subsequently, the legal
heirs/heiresses of Maya Choudhury had sold the leased out property to the
plaintiff company. The residual period of the lease was therefore attorned with
the plaintiff. Going by the tenure of the lease, it can be safely concluded to be a
long lease.
It is the case of the defendant nos. 4 and 5 that the five co-lessees being
the defendant nos. 1 to 5 created a partnership firm by the name and style of
Chandar Niwas. This partnership firm, according to the defendant nos. 4 and
5, developed the lease hold property and had let out portions thereof to third
parties after retaining one flat by each of the partners. It is also the case of the
defendant nos. 4 and 5 that the main business of the partnership firm
Chandar Niwas was collection of rent from the portions let out to third parties.
The defendant nos. 4 and 5 further allege that the plaintiff company was
formed with two directors being respectively the wife of defendant nos. 2 and 3.
There has been disputes and differences between the partners of Chandar
Niwas as a consequence whereof an arbitration commenced which resulted in
an award dated 23rd December, 2019. This award has been challenged by the
defendant nos. 4 and 5 and separately by other defendants. The setting aside
application is pending. In connection with the arbitration proceedings, an
application under Section 9 of the Arbitration and Conciliation Act, 1996 was
filed by the defendant no.1 wherein a member of the Bar was appointed as
Receiver. The present Receiver who is also a member of the Bar is collecting the
rent from the portions let out by the partnership firm Chandar Niwas. The
bank account of the partnership firm wherein the rent so collected are
deposited are also operated by the said learned Receiver. The learned Receiver
is also meeting the expenses including the statutory rates and taxes for the
premises out of such collection. The defendant nos. 4 and 5 therefore say that
they are not in a position to pay the lease rent since the Receiver is collecting
the rent from the let out portions as part of the partnership business. It is also
the case of the defendant nos. 4 and 5 that they have filed a suit for declaration
and injunction before the City Civil Court to protect their interest so far as the
portions under their occupation is concerned and an ad interim order
protecting the interest of the defendant nos. 4 and 5 has also been passed.
The plaintiff, however, does not admit any submission made by the
defendant nos. 4 and 5 except those which are borne out from records. The
plaintiff also says that the statutory rates and taxes have not been paid by the
Receiver.
The suit is for recovery of possession on the ground of forfeiture of the
lease due to non-payment of lease rent. The breach leading to the forfeiture on
the ground of non-payment of rent can be remedied in view of the provisions of
Section 114 and 114A of the Transfer of Property Act, 1882. Since the lease is
in excess of 20 years the tenancy law provision also does not apply.
In the facts and circumstances as aforesaid, the presence of the learned
Receiver is necessary before the matter can be proceeded further.
Let the parties give a notice to the learned Receiver informing him that
the matter will appear in the list on 20th February, 2024.
(ARINDAM MUKHERJEE, J.)
R.Bhar/bp.
