Jaspal Singh Chandhok vs Sri Gobin Chand Seal
2024 Latest Caselaw 1620 Cal/2

Calcutta High Court

Jaspal Singh Chandhok vs Sri Gobin Chand Seal on 3 May, 2024

           IN THE HIGH COURT AT CALCUTTA
     ORDINARY ORIGINAL CIVIL JURISDICTION
                         ORIGINAL SIDE


                   EC No. 364 of 2021
                JASPAL SINGH CHANDHOK.
                           VS.
                 SRI GOBIN CHAND SEAL


Before:      The Hon'ble Justice Apurba Sinha Ray



For Decree-Holder            : Mr. Swatarup Banerjee, Adv.
                               Ms. Somali Mukhopadhyay, Adv.



For Judgment-Debtor          : Mr. Anirban Kar, Adv.
                               Mr. Munshi Ashiq Elahi, Adv.
                               Mr. Parimal Bhattacharya, Adv.
                               Ms. Snigdha Das, Adv.

CAV On                       : 20.02.2024

Judgment On                  : 03.05.2024



Apurba Sinha Ray, J. :-


1.     The instant execution proceeding is being resisted from the side

of   the   judgment-debtor   contending   that   the   instant   execution
                                    2




proceeding is not maintainable. The original suit being CS No. 922 of

1986 was decreed on consent and according to the judgment-debtor,

he has surrendered his tenancy in respect of shop room no. 1A and

thereafter was inducted as a tenant in respect of a different shop room

being shop room no. 1A/1 on the ground floor of premise no. 30,

Ganesh Chandra Avenue, Kolkata - 700013 and as such there was a

fresh induction of the judgment-debtor by the terms of settlement

concluded before the Learned Court.



2.    The judgment-debtor has further submitted that the decree

dated 23.06.2014 stood satisfied upon the induction of the judgment-

debtor as per terms of settlement and the incident of such subsequent

tenancy would be governed by the provisions of West Bengal Premises

Tenancy Act, 1997 irrespective of contrary contention in the terms of

settlement.



3.    He has further submitted that when there is a fresh induction

the relation between the tenancy should be governed by the West

Bengal Premises Tenancy Act, 1997 and the tenant cannot be evicted

without due process of law. In this regard he has referred to a decision

reported in (1980) 1 SCC 185 (Biswabani Pvt. Ltd vs. Santosh

Kumar Dutta & Ors.). As the decree-holder refused to receive the rent
                                    3




the judgment-debtor has been depositing the rent with the Rent

Controller.



4.    The decree-holder, on the other hand, has submitted that the

decree which is being executed was not a decree for eviction. According

to him for non-compliance of certain terms of consent decree, the

eviction of judgment-debtor was sought for. Initially, there was a suit

for possession and in such suit a consent decree was passed which

contends, inter alia, that if the judgment-debtor makes default in

payment of rent he can be evicted from the suit premises by executing

such consent decree without adopting any other process of law. As the

judgment-debtor had defaulted in payment of rent the instant

execution proceeding was brought. The judgment-debtor did not

challenge the decree nor the decree has been declared by any court of

law as null and void. The receiver was appointed in this proceeding on

03.07.2023. The learned counsel for the decree-holder has also drawn

the attention of this court to the order dated 27.01.2016 passed by His

Lordship Hon'ble Justice Harish Tandon. The judgment-debtor never

challenged the decree and therefore the same attained its finality.



5.    The learned counsel for the decree-holder, Mr. Banerjee, has

further pointed out that the judgment-debtor took the defence that the
                                     4




plaintiff have refused to receive the rents. By referring to several pages

of the affidavit-in-opposition, the learned counsel has drawn the

attention of this court to the fact that though Gobin Chand Seal was

the proprietor, rent was sent through cheques by one Subhashis

Nandi. Neither he is the proprietor of judgment-debtor nor there is any

intimation about the change of ownership of the said firm. The decree-

holder is certainly bound to accept rent from an authorized person but

acceptance of such rent from an unauthorized person would

unnecessarily complicate the matter and therefore the decree-holder

rightly refused to accept the same. Though the said Subhashis Nandi

singed the relevant affidavit there is no authorization of Subhashis

Nandi from the side of the judgment-debtor firm and, therefore, the

provisions of West Bengal Premises Tenancy Act, 1997 would not

apply in such a situation.



6.    There is no application or affidavit for agitating the question of

maintainability of the instant execution proceeding. Neither a petition

for setting aside the relevant decree nor a petition under Section 47 of

the Code of Civil Procedure, 1908 was filed on behalf of the judgment-

debtor. The point of maintainability has been taken only on the basis

of affidavit-in-opposition. The Executing Court cannot go into the core

of the decree.
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7.    It is also brought to the notice of this court that once the

judgment-debtor filed an execution case on the basis of decree but

when the decree-holder files the execution proceeding on the basis of

self-same decree, he is resisting such execution proceeding on the

ground that it is not maintainable.



8.    According to him, in fact there is no fresh tenancy and it is a

continuation of old tenancy although the extent of tenancy has been

reduced. As per Section 2(g) of West Bengal Premises Tenancy Act,

1997 the judgment-debtor will not be a tenant since the decree of

eviction was passed, and he is not a tenant. He will not come within

the scope of the definition of 'tenant' under the West Bengal Premises

Tenancy Act, 1997 and, therefore, the entire proceeding before the

Rent Controller is null and void. Not a single document authorizing

Subhashis Nandi as agent, is produced before this court. The learned

counsel after drawing the attention of the relevant terms of the consent

decree has vociferously argued that there is no need to go to the

ordinary court for eviction.



9.     In reply, the learned counsel for the judgment-debtor Mr.

Anirban Kar, has submitted that agent has certain power to act on

behalf of his principal. In this regard, the learned counsel has referred
                                    6




to (2016) 3 SCC 296 (Kasthuri Radhakrishnan & Ors. Vs. M.

Chinniyan & Anr.) and (2012) 1 SCC 656 (Suraj Lamp & Industries

Pvt. Ltd. through Director Vs. State of Haryana & Anr.).



10.   The learned counsel has also placed reliance on 2002 (2)

Mh.L.J. 924 Krishna Kashinath Patil Vs. S. Mohandas Kamath) in

support of his contention that when a consent decree creates a new

tenancy, old tenancy has become redundant or discontinued. When a

compromise takes place in the course of execution of a decree for

eviction, the compromise may extinguish the decree and create a fresh

lease or the compromise may provide a mere mode for the discharge of

the decree.



11.   The learned counsel appearing for the decree-holder has

distinguished the said case laws by contending that the case law

reported in Biswabani Pvt. Ltd (supra) is not applicable. In the

present case in our hand the judgment-debtor did not challenge the

decree on nullity or lacking of inherent jurisdiction. In our case the

decree spells out what would happen in case of default. The judgment-

debtor is only in permissive possession during the terms of the decree.

The learned counsel has also distinguished the case law of Suraj

Lamp & Industries Pvt. Ltd. through Director (supra) by contending
                                   7




that in the present case, there is no authorization of Subhashis Nandi

at all. No power of attorney has been filed on behalf of the judgment-

debtor to show that Subhashis Nandi was actually authorized to remit

the rents on behalf of the judgment- debtor. Similar attack was made

to distinguish the case law reported at Kasthuri Radhakrishnan &

Ors. (supra).



12.   The learned counsel, Mr. Banerjee, on the other hand, has

submitted two case laws reported at (1974) 1 SCC 242 (Nagindas

Ramdas Vs. Dalpatram Ichharam alias Brijram & Ors.) and (1982) 1

SCC 633 (Smt. Kalloo & Ors. Vs. Dhakadevi & Ors.) in support of

his contention that Executing Court cannot go beyond the decree

excepting where the decree has been challenged as a nullity. He has

further submitted what actually the tenure of consent decree depends

on the intention of the parties to compromise and such intention has

to be gathered from the terms of compromise and surrounding

circumstances including the order recorded by the court on the basis

of compromise.



13.   The learned counsel of the decree-holder has also relied upon

the case law reported in 2023 SCC OnLine SC 1378 (Mumtaz Yarud

Dowla Wakf Vs. Badam Balakrsihna Hotel Pvt. Ltd. & Ors.) to
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buttress his view that the judgment-debtor should not be allowed to

approbate and reprobate. As the judgment-debtor himself launched an

execution proceeding on the basis of consent decree as aforesaid he

cannot resist the present proceeding.



14.   The learned counsel has also pointed out that the Learned

Receiver has already taken the symbolic possession of the suit

premises. Neither the said order was challenged nor the said order was

set aside in any other proceeding. Tabular statement prayer (a) has

already been granted and now the court should allow the prayer (b)

and (c) of the tabular statement.



15.   The learned counsel, Mr. Kar, appearing on behalf of the

judgment-debtor has submitted that the case law reported at Smt.

Kalloo & Ors. (supra) helps the judgment-debtor and not the decree-

holder. There is no new induction in that case. It was in the execution

proceeding a compromise petition was filed but that is not the case in

our matter. The consent decree was passed in the suit for possession

on consent. The effect of compromise decree is up to the date of

induction. Moreover, the case law reported in Nagindas Ramdas

(supra) is also not applicable since judgment-debtor's case is that

compromise decree has already been satisfied as soon as induction is
                                    9




complete. As the rents have been deposited there is no question of

default and, further, there is no question of eviction. As per Section

21(5) of West Bengal Premises Tenancy Act, 1997 only the existing

tenant can deposit the rent and as per Section 22(3) of West Bengal

Premises Tenancy Act, 1997 there was a valid legal tender. The case

law of Mumtaz Yarud Dowla Wakf (surpa), according to the learned

counsel of the judgment-debtor, is not applicable since in our case the

court was not asked to go beyond the decree. The question is whether

there is a new induction or continuation. Moreover, as there was a

problem regarding demarcation of tenancy, the judgment-debtor filed

one execution case. However, upto the stage of induction the

Executing Court can pass order in an execution proceeding but post

induction, it has no jurisdiction. Therefore, as there is no default of

rent and further as there was induction of fresh tenancy, the instant

execution proceeding is not maintainable.



16.   The learned counsel of the decree-holder on the other hand has

contended that no plea of new tenancy was taken in the affidavit-in-

opposition. The judgment-debtor did not act according to the decree,

the affidavit of judgment-debtor does not show that any plea of sub-

tenancy, new tenancy, fresh tenancy was taken. There is no scope of

application of Section 2(g) of the Act 1997 as decree has already been
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passed. The learned counsel has also contended that Hon'ble Justice

Ravi Krishan Kapur's orders reached its finality. There is no date of

induction or new tenancy as alleged.



Court's view



17.   Each case is to be judged on its own merits. The factual matrix

of this case is unique and materially different from the case laws cited

by the parties.



17.1. The dispute regarding the executability of the instant execution

proceeding revolves round the terms of settlement between the parties

which culminated into a consent decree. It is true that the judgment-

debtor did not whisper in its affidavit-in-opposition regarding creation

of new tenancy or surrender of old tenancy. But it appears that the

consent decree contains certain terms like 'surrender of tenancy',

'induction of monthly tenant' etc. Let us examine the terms of the

consent decree and intention of the parties underlying the said

decree:-

                             "1. The tenancy of the defendant as per
                             the agreement dated 7th May, 1971 in
                             respect of one shop room being No. 1A, on
                             the ground floor at premises no. 30,
                             Ganesh      Chandra    Avenue,   Kolkata
                             measuring about 1014 sqft build up area
       11




is hereby surrendered by the defendant to
the plaintiff/landlord.

2. Simultaneously with such surrender of
the said tenancy to the plaintiff as stated
above, the plaintiff/landlord shall and
induct the defendant as the monthly
tenant in respect of all that shop room
being no. 1A/1, measuring about 507
sq.ft. (being the fifty percent of the room
no. 1A) and the wooden mezzanine floor in
the shop room on the ground floor of
premises no. 30, Ganesh Chandra Avenue
Police station Bowbazar, Kolkata - 700
013, morefully and particularly shown and
delineated in red colour in the plan and/or
sketch annexed hereto. The said shop
room being no. 1A/1, shall also contain a
toilet and two western side doors having
inside opening of the said shop room being
no. 1A/1 shall be use by the defendant,
his men, agent and employees for ingress
and egress only but not for any customers
or for brining in or taking out any heavy
materials through the said doors and
passage. It is further clarified by that the
western side passage of the building shall
not be encroached upon the keeping any
materials or otherwise.

....................

4. It is agreed by the parties that the monthly rent for the said premises shall be Rs. 2,000/- (Rupees Two Thousand) payable according to the English Calendar month by the defendant to the plaintiff/landlord.

....................

8. A wall will be constructed on the southern side of the porch to make the

said porch an enclosure for the use and enjoyment of the landlord.

9. The name, style and status of the tenancy shall remain as G.C. Seal and company, as proprietorship firm of the defendant Gobin Chand Seal as usual and the same will be continued for a period of 10 years (Ten Years) without any alternation and/or amendment. It is agreed and made clear that the said tenancy will not be terminated prior to the stipulated period of ten years provided the terms and conditions as stipulated herein and also the grounds as provided in W.B. Premises Tenancy Act, 1997 are complied with strictly by tenant/defendant. It is agreed that at the expiry of ten years from the date of these terms of settlement, the defendant shall hand over peaceful vacant possession of the demise premises to the plaintiff and/or his successors in interest and or default thereof or in case of any other default by the defendant the plaintiff and/his successor in interest will be entitled to execute the decree to be drawn up herein and seek recovery of vacant possession without filing any fresh proceeding.

10. For the purpose of implementation of the instant terms of settlement of the plaintiff and the defendant will co-operate with each other in all respect.

11. The allegations and counter allegations made between the parties if any be and are hereby withdrawn.

12. Each party will pay and bear its own cost of the suit.

13. Liberty to apply."

18. The terms of the above consent decree are confusing,

ambiguous, contradictory and unclear. On one hand surrender of

tenancy of the year 1971 has been mentioned and simultaneously, a

further induction of the judgment-debtor in a monthly tenancy is said

to have been done by such terms of settlement, and, on the other

hand, the plaintiff has been given authority to execute the said decree

without filing any fresh proceeding in case of default made by the

defendant/tenant. It is further found that in case of default made by

the plaintiff, there is no specific provision that the defendant can

execute the said decree. Inspite of absence of such condition, it

appears from the record that the judgment-debtor has once taken

steps for implementation of the decree by filing an application for

execution.

19. From the said decree, it is found that area of the tenanted

premises as well as number of the tenanted premises are not those of

the previous tenanted portion. It has been clearly mentioned in the

said terms that after such surrender of the tenancy, the defendant

shall be inducted as a monthly tenant simultaneously in respect of

shop room being no. 1A/1 measuring about 507 sq.ft. According to the

decree-holder, actually the area of tenanted premises has been

reduced from 1014 sq.ft. to 507 sq.ft. and a new number has been

allotted to such area. According to him, it is the old tenancy which has

been allowed to be continued in a reduced area. But the use of words

such as 'surrender of tenancy', 'induction of the defendant' etc. do not

support such contention of the learned counsel of the decree-holder.

The term 'surrender of tenancy' denotes a voluntary agreement,

written or oral, between the landlord and tenant that the tenancy has

come to an end. On the other hand, the term 'induction of tenancy', in

the context hereinabove discussed, implies 'introduction to a monthly

tenancy' or 'initiation of a monthly tenancy'.

19.1. From the record it appears that the use of words such as

'surrender of tenancy' or 'induction of monthly tenant' in the terms of

settlement is not accidental or slip of pen. Such words were used

consciously and cannot be said to have been used inattentively. There

was intention of the parties that old tenancy of 1971 was required to

be surrendered. This intention is clear from the execution case filed by

the decree-holder being EC No. 84 of 2015. The order dated 9th April,

2015 passed by the Hon'ble Justice Soumen Sen, recorded the

submission of the learned counsel of the decree-holder which is

required to be quoted herein below:-

"This is an application filed by the plaintiff/decree holder for enforcement of a consent decree passed on 23rd June, 2014.

Mr. Dhruba Ghosh, learned counsel appearing on behalf of the decree holder submits that by reason of failure on the part of the defendant to surrender the portion in his occupation, the wall to be constructed in terms of Clause 2 of the Terms of Settlement could not be constructed. This however is disputed by the defendant."

19.2. From the above paragraph, it is transpired that the learned

counsel of the decree-holder has categorically submitted that the

defendant/ judgment-debtor had failed to surrender the portion in his

occupation and for that reason the relevant wall could not be

constructed. Therefore, there should not be any iota of doubt that

surrender of old tenancy was done by virtue of the said agreement and

simultaneously the judgment-debtor was inducted as a monthly

tenant in respect of 507 sq.ft. of the premises as discussed above.

However, the contention of the learned counsel of the decree-holder

that no date of alleged surrender has been mentioned by the

judgment-debtor, does not seem to be correct. If we peruse the opening

words of the said consent decree we shall find that it has been

mentioned therein that tenancy of the defendant as per agreement

dated 7th May, 1971 in respect of one shop room measuring about

1014 sq.ft. built up area is hereby surrendered by the defendant to

the plaintiff/landlord. This goes to show that such surrender of

tenancy was done on the date of execution of the consent decree.

20. It is true that in Para 9 of the said consent decree it has been

mentioned that the name, style and status of the tenancy shall remain

as G.C. Seal and Company as proprietorship firm of the defendant

Gobin Chand Seal and the same will be continued for a period of 10

years without any alteration and/or amendment. But in my view the

same is referred to only in respect of the tenanted premises measuring

about 507 sq.ft and nothing more than that. Para 9 of the said consent

decree has referred only to the tenancy which came into being after

surrender of the old tenancy as mentioned in Paras 1 and 2 of the

consent decree. It is agreed between the parties by virtue of clause 9

that the name and style and status of tenancy in respect of the

tenanted portion measuring 507 sq.ft. shall remain as G.C. Seal and

the same will be continued for a period of 10 years without any

change. This does not clearly show that it refers to the old tenancy or

the original tenanted portion.

21. In fact there is no clear cut decree of eviction passed by the

learned Trial Court. The decree stipulates that in case of default made

by the defendant the plaintiff shall be entitled to execute the decree to

be drawn up and to seek recovery of vacant possession of the premises

without filing any fresh proceeding. Needleless to mention that a

contract or terms of settlement which restrain(s) the parties from

brining legal proceedings is void. The principle of law has been clearly

laid down in Section 28 of Indian Contract Act, 1872. For the sake of

convenience Section 28 of the Act, 1872 is reproduced herein below:-

"28. Agreements in restraint of legal proceedings, void.-- Every agreement,--

(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or

(b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to the extent."

22. From the provisions of above section it has been laid down that

any agreement by which any party is restricted from enforcing his

right by legal proceedings in ordinary tribunal or which extinguishes

the right of any party to enforce the same through legal process etc. is

void to that extent.

23. In the instant proceeding it appears that the plaintiff has kept

the right reserved for himself for eviction of the defendant without

taking any eviction proceeding under the relevant laws in case there is

any default on the part of the defendant in carrying out the conditions

as mentioned in consent decree. This is clear violation of the provision

of section 28 of the Indian Contract Act, 1872 or in other words the

said terms of the agreement have come into a direct conflict with the

settled principle of law. If the defendant is debarred from contesting in

ordinary tribunal by stipulating that his eviction process shall be

carried out without following the provisions of West Bengal Premises

Tenancy Act, 1997, or any other appropriate tenancy law, such an

agreement is violative of Section 28 of the Act, 1872. Therefore, as the

said agreement is violative of the provisions of the enactment of 1872, I

find that the prayer for eviction through this execution process without

availing the procedure laid down for eviction of tenant under tenancy

laws cannot be implemented, particularly when there are sufficient

materials to show that the old tenancy of the year 1971 came to end

and the judgment-debtor was inducted in another monthly tenancy

simultaneously with such surrender. The condition for proceeding with

the execution process without availing the prescribed provisions for

eviction of tenants under the tenancy laws is nothing but a nullity,

and therefore the proposed execution of the eviction decree against the

judgment-debtor cannot be proceeded with as the said relevant term is

nothing but a void one.

24. It is true that the learned counsel has pointed out that the

judgment-debtor had defaulted in payment of rent and as such his

eviction has been sought for in terms of the consent decree. On the

other hand the judgment-debtor has submitted that payment of rent

was tendered but the lessor refused to accept the same on the ground

that the rent was tendered by the unauthorized agent of the judgment-

debtor. The decree-holder, on the other hand, contends that there is

no intimation that one Subhashis Nandi was the authorized agent of

G.C. Seal proprietor firm of the judgment-debtor and therefore he did

not receive the payment of rent since it might complicate the issue.

24.1. There may be thousands valid reasons for refusal to accept the

rent on the part of the decree-holder but it is very much apparent that

attempts were made from the side of the judgment-debtor to pay the

monthly rent by sending cheques. May be the same were sent by an

agent of the judgment-debtor firm who was not authorized in strict

sense, but the judgment-debtor had tried to remit the monthly rent by

post to the decree-holder. At least, it can be said at this stage that the

judgment-debtor had no malafide intention to make any default in

payment of rent otherwise, it could not have sent such monthly rents

through one Subhashis Nandi. Whether or not complication will arise

for payment of rent through Subhashis Nandi is a different issue but

the judgment-debtor has been able to show that it had no mala fide

intention to make default in payment of rent. As the payment of rent

was tendered from the side of the judgment-debtor firm and was

deposited with the Rent Controller, this court cannot treat the

judgment-debtor as a defaulter in making payment of rents. Although,

such payment of rent can be assailed as not a valid, legal tender of

rent but so far as intention of the judgment-debtor is concerned, this

court can overlook such irregularity in the factual circumstances of

the case. Moreover, the question whether a tenant is a defaulter or not

or the question whether the tenant is entitled to protection from

eviction after rent being deposited with Rent Controller, can be decided

by availing the detailed procedures laid down in Act of 1997. The

Executing Court may consider the genuineness of the parties in the

matters of payment of rent on the basis of prima facie materials

brought on record, and nothing more than that.

24.2. Last but not the least, Section 47 of the Code of Civil Procedure,

1908 does not mandate filing of any separate application to agitate the

relevant issue under the said section.

25. In view of the above discussion, I find that the instant execution

case is not maintainable. The Learned Receiver/ Special Officer is

directed to hand over the symbolic possession of the premises in

question to the judgment-debtor within 7 days from the date of this

order. The instant execution case being not maintainable is disposed

of accordingly. No costs.

26. On completion of the process of handing over of symbolic

possession to the judgment-debtor, the Learned Receiver shall be

discharged.

27. Urgent Photostat certified copies of this Judgment, if applied for,

be supplied to the parties on compliance of all necessary formalities.

(APURBA SINHA RAY, J.)