Calcutta High Court
Ashis Biswas vs Punjab National Bank on 9 May, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 1 of 2019
(Old No. GA 2846 of 2019)
In
CS 234 of 2019
Ashis Biswas
Versus
Punjab National Bank
Mr. Gopal Pahari
Ms. Mandeep Kaur
Ms. Piyali Kulavi
... For the plaintiff.
Mr. Samrat Sen, Sr. Adv.
Mr. Abhishek Banerjee
Ms. Parna Roy Chowdhury (Banerjee)
Mr. Sourath Dutt
Ms. Ankana Ray
... For the defendant/Bank.
Hearing Concluded On : 29.04.2024
Judgment on : 09.05.2024
2
Krishna Rao, J.:
1. The plaintiff has filed the present application being G.A. No. 1 of 2019
(Old No. GA 2846 of 2019) in C.S. No. 234 of 2019 praying for judgment
and decree upon admission.
2. The plaintiff has initiated the suit against the defendant praying for
following decree:
a) A decree for Rs. 29,63,946/- against the
defendant as pleaded in paragraph 25 above;
b) Interim interest and interest on Judgment
@18% p.a. till realization;
c) Judgment upon admission;
d) Receiver;
e) Injunction;
f) Attachment upon the Judgment;
g) Costs;
h) Such further and/or other reliefs."
3. The father of the plaintiff, Parimal Biswas, since deceased was the sole
and absolute owner of the building situated at premises No.4A, Ekdalia
Place, Kolkata - 700019. The father of the plaintiff during his life time
had executed a Will and Testament on 20th May, 2003, appointing the
plaintiff and his younger brother as joint executors of his last Will and
Testament. The plaintiff has obtained probate of the said last Will and
became the sole and absolute owner of the entire Ground Floor together
with 50% share of the garage and the entire First Floor together with
common staircases, common entrance, pump room and the common
terrace together with common shares in three rooms and one dining
room on the terrace, together with one room on the back portion of the
building at the premises No.4A, Ekdalia Place, Kolkata - 700019.
4. The defendant became a tenant of the entire ground floor measuring
about 2375 Sq. Ft. and the entire mezzanine Floor and the First Floor of
the building measuring about 1455 Sq. Ft. together with a room to be
used as ATM room on the eastern side of premises together with one
generation room measuring about 162 Sq. Ft. in the Ground Floor (West
Side) of the building by virtue of a Lease Agreement under the father of
the plaintiff, which came to an end on 31st March, 2014.
5. By a letter dated 17th June, 2015, the defendant had offered to take on lease
the total area of 3505 Sq. Ft. (Ground Floor area about 2300 Sq. Ft. and
subsequent additional space includes Mezzanine Floor to stair case from
First Floor and entire area of First Floor area about 1205 Sq. Ft.). The terms
and conditions agreed between the parties are mentioned hereinbelow:
(i) The defendant agreed to pay rent @Rs.40 per
Sq. Ft. for an area of 3505 Sq. Ft. in the
Ground Floor and Mezzanine Floor to staircase
from First Floor and entire area of First Floor.
(ii) Monthly rent of Rs.1,40,200/- was agreed
between the parties, inclusive of all rates and
taxes, service charges and other outgoings
with effect from 1st April, 2014 but exclusive of
commercial surcharge, KMC tax and 50% of
future incremental portion of KMC Tax on
occupied portion of Defendant.
(iii) The defendant has further agreed to pay 50%
of the future incremental portion of KMC Tax
over (existing assessment).
(iv) The defendant would also bear commercial
surcharge, KMC Water Tax, as will be
applicable proportionately for the occupied
portion.
(v) The review of the rent to be made after 3
years from 1st April, 2014 subject to
enhancement of rent, if any, not exceeding
15% over the prevailing rent.
(vi) The rent for the ATM will be Rs.5,000/- per
month w.e.f. June, 2015.
6. The defendant by a letter dated 5th October, 2015, had decided to
surrender the First Floor of the building and relocate its branch on the
ground floor under the revised terms and conditions which was duly
accepted by the plaintiff on 6th October, 2015 and on 7th October, 2015,
the defendant duly performed its reciprocal promise under the contract
and paid a sum of Rs. 5,00,000/- towards arears of rent.
7. By a letter dated 31st July, 2017, the defendant requested the plaintiff
to take possession of the First Floor of the building and it also
contemplates that the defendant will not be in a position to pay the rent
to the plaintiff for the said First Floor with effect from 1st May, 2017.
8. The Deed of Lease was formally entered into and executed by the parties
herein on 21st December, 2017 in respect of the entire Ground floor
including generator place excluding ATM rooms and staircase on
mezzanine floor to the First Floor at the premises being No. 4A, Ekdalia
Place, Kolkata - 700019 and the said lease was for a period of 10 years
and commenced from 1st April, 2014, with the option to continue for
further 5 years under the same terms and conditions subject to revision
of rent.
9. The defendant by a letter dated 22nd December, 2017, handed over the
physical possession of an area of 1205 Sq.Ft. consists of mezzanine
floor to staircase from the first floor and the entire area of first floor of
the said premises to the plaintiff.
10. The defendant by a letter dated 17th January, 2018, forwarded a
calculation sheet of an arear of rent to the plaintiff and in the said
letter, it was mentioned that the defendant has already paid the lump
sum of Rs.13,00,000/- to the plaintiff. In reply to the said letter, the
plaintiff by a letter dated 24th January, 2018, requested the defendant
to pay the arears of rent in respect of 1205 sq.ft. from 1st April, 2014 to
31st March, 2017 at the rate of Rs.40/- per sq.ft. and for the period
from 1st April, 2017 to 22nd December, 2017 at the rate of Rs.46/- per
Sq.ft. The plaintiff further demanded that the arears of rent at Rs.46/-
per sq.ft. in respect of 2300 sq.ft be further paid. The plaintiff further
demanded that the defendant is required to pay 50% of the Corporation
Tax which has already paid by the plaintiff to the Municipal
Corporation.
11. The defendant by a letter dated 14th March, 2018, informed the plaintiff
that the total arrears of rent for the period between 1st April, 2014 to
31st December, 2017 was Rs.35,41,698/- out of which an amount of
Rs.13,00,000/- was already paid to the plaintiff in three instalments
and the balance amount of Rs.22,41,698/- was payable to the plaintiff
as arrears of rent.
12. The plaintiff by disputing the calculation of arrears of rent forwarded by
the defendant and informed that defendant that a sum of
Rs.66,78,010/- was due as arrears of rent on 21st December, 2017, out
of which a sum of Rs.13,00,000/- was only paid and a further sum of
Rs.55,87,010/- is payable by the defendant. Thereafter, the defendant
has further paid a sum of Rs.15,71,445/- as arrears of rent of 45
months from the period from May, 2014 to January, 2018 at the rate of
Rs.34,921/- per month including TDS. On 3rd January, 2018, the
respondent has paid an amount of Rs.1,00,395/- at new rate i.e. at the
rate of Rs.46/- per month which includes the rent of ATM also.
13. The defendant has further paid an amount of Rs.15,00,000/- to the
plaintiff on 14th March, 2018, leaving the balance amount of Rs.
23,06,565/- as arrears of rent as on 21st December, 2017.
14. Mr. Gopal Pahari, Learned Advocate representing the plaintiff submits
that the defendant by a letter dated 16th August, 2018, admitted the
claim of the plaintiff. He submits that the respondent has admitted that
the arrears of rent from 1st April, 2014 to 31st December, 2017, is due
which according to the defendant comes to Rs. 35,41,698/-.
"The said calculation is erroneous. The total
arrear rent as on 21 December 2017 comes to
Rs.66,78,010/- which particularly described in
paragraph 24 hereinabove. According to the
Respondent a sum of Rs. 13,00,000/- (On 7th
October 2015 Rs 5,00,000/-, on 15th February
2016 Rs.5,00,000/- and on 26th September 2017
Rs.3,00,000/-) and on 14th March 2018 a sum of
Rs. 15,00,000/- have been paid on account of
arrear rent. It has already been stated that a
further sum of Rs.55,87,010/- was till payable by
the Respondent to the Petitioner in this regard. The
Respondent had thereafter further paid a sum of
Rs.15,71,445/- for the rent of 45 months for the
period from May 2014 to January 2018 @
Rs.34,921 Per Month including TDS. On 3rd
January 2018 the Respondent has paid the rent
amounting to Rs.1,00,395/- at new rate i.e. @
Rs.46/- Per Month which includes the rent for ATM
also. This rent includes with said Rs. 15,71,445/-.
In these circumstance as on 14th March 2018 a
sum of Rs.23,06,565/- admittedly became due and
payable by the Respondent. Respondent is also
liable to pay interest at the rate of 18% per
annum from 15th March 2018 to till 15th October
2019 which comes to Rs.6,57,381/-. Therefore, all
together the Petitioner is entitled to Rs.29,63,946/-
and admittedly the Respondent is liable to pay the
said sum of Rs.29,63,946/- to the Petitioner."
15. Mr. Pahari has relied upon the judgment reported in (2000) 7 SCC 120
(Uttam Singh Duggal and Co. Ltd. vs. United Bank of India and
Others) and submitted that where a claim is admitted, the Court has
jurisdiction to enter a judgment for the plaintiff and to pass a decree on
admitted claim. He submits that object of the Rule is to enable the 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.
16. Mr. Pahari has relied upon the judgment reported in 2016 SCC OnLine
Cal 10447 (Star Vincom Private Ltd. vs. K.L. Commercial (P) Ltd.)
and submitted that the provisions of Order 12, Rule 6 of the Code of
Civil Procedure, 1908, can be activated, if an admission is made to a
claim of the plaintiff.
17. Mr. Samrat Sen, Learned Senior Advocate representing the defendant
submits that there is no unconditional and clear admission by the
defendant with respect to the claim of the plaintiff as required under
Order XII, Rule 6 of the Code of Civil Procedure, 1908.
18. Mr. Sen submitted that as per the case made out by the plaintiff, the
earlier tenancy came to an end on 31st March, 2017. The question
whether any 'rent' can be said to be payable after the tenancy has
ceased to exist is a question which can be adjudicated only upon trial in
the suit after evidence is adduced. He submits the rent ceases to be
payable upon the tenancy coming to an end.
19. Mr. Sen submitted that in case of occupational charges or mesne profit,
the same can only be done after trial, during which the plaintiff would
be obliged to lead cogent evidence in respect of fair rent at the rate of
Rs.40/per Sq.ft. with respect to the First Floor.
20. Mr. Sen submitted that the letter dated 17th June, 2015, is only a
proposal and the same is not a concluded contract between the parties.
He submits that in the said letter, it is categorically sated that if the
plaintiff approves the said draft lease agreement, the office of the
defendant bank will submit to the Head Office for approval for effecting
the lease agreement.
21. Mr. Sen submitted that the suit involves non-payment of rent in respect
of an immovable property and the said property is situated outside the
local limits of this Court. He submits that the reliefs sought for in the
present suit is whether or not the defendant had retained or given up
physical possession of 1205 Sq.Ft forming a part of the property and
from which date. He submits that an interest in rent or profits of the
immovable property and the right to the proceeds thereof is itself
immovable property and the said issue involves adjudication relating to
the nature and extent of physical possession of immovable property
outside the jurisdiction of this Court.
22. Mr. Sen submitted that the portion of the rent claimed by the plaintiff is
barred by limitation. He submits that the plaintiff is claiming the
arrears of rent from the month of April, 2014 and the plaintiff has filed
the suit in the year 2019 and thus the part of the claim of the plaintiff is
barred by limitation.
23. Heard the Learned Counsel for the respective parties, perused the
materials on record and the judgment relied by the defendant. The
plaintiff relied upon the letter dated 17th June, 2015, issued by the
defendant bank to the plaintiff which reads as follows:
"UNITED BANK OF INDIA
CALCUTTA (S) REGION
From: To:
Chief Manager (Admn. & P&D) Sri Asis Biswas (Landlord)
Calcutta (S) R.O. 4A, Ekdalia Place
Kolkata - 700019.
RO/CAL(S)/Ekdalia Br. Premises/1299/2015 Dt.17.06.2015
Re: Renewal of Tenancy/Lease Agreement & enhancement
of rent of our Ekdalia Branch Premises.
We feel please that you have accepted our new offer of Lease
Agreement @40/- per sft. at Premises No.4A, Ekdalia Place, Kolkata
duly sent by the Manager, Ekdalia Branch. In this regard, we are
furnishing below enhancement of rent proposal with terms &
conditions of the fresh/new agreement for your perusal and
acceptance.
1) Name of the :: SRI ASHIS BISWAS
Landlord
2) Location of :: 4A, Ekdalia Place, Kolkata-
Premises 700 019
3) Floor Space :: (i) Initial space 230 sft. more
or less in Gr. Fl.
(ii) Subsequent additional
space 1250 sft. more or less
on mezzanine floor.
(iii) Proposed 2300 + 1250 =
3505 sft.
4) Rent : @Rs.40/- per sft. for an area of 3505 sft. In the ground
floor and mezzanine floor (to be enhanced from @Rs.9.25/- per sft.
for an overall area of 3505 sft. w.e.f. 01.04.2014) as per mutual
negotiation per month amounting to Rs.1,40,200/- (Rupees One Lac
Forty Thousand Two Hundred Only) inclusive of all rates and taxes,
service charges and other outgoings w.e.f. 01.04.2014 (exclusive of
commercial surcharge, KMC Tax and 50% of the future incremental
portion of KMC Tax on Bank's occupied portion.
5) K.M.C. & Commercial Charge : The Bank would separately bear
50% of the future incremental portion of K.M.C. Tax (over existing
assessment) and bank would also bear commercial surcharge and
KMC water tax as will be applicable proportionately for the occupied
portion on the basis of actual paid-up to be produced before the
Bank as documentary evidence for obtaining such reimbursement of
KMC Tax, Commercial Surcharge and Water Tax.
6) Tenancy : Lease/Tenancy? For 10 (Ten) years, w.e.f.
01.04.2014 with option on the part of the Bank to continue the
lease/Tenancy for a further period of 10 (Ten) year with mutual
negotiation on the same term and condition subject to review of rent
as stated therein below and also with further option to the bank to
relinquish the tenancy at any time on giving 3 (Three) months notice
to the lessor.
7) Review of the Rent : Review of rent to be made after 3 (Three)
years from 01.04.2014 subject to enhancement of rent, if any, not
exceeding 15% (Fifteen Percent) over the prevailing rent.
8) Rent of ATM : Rent of ATM will be Rs.5,000,/- (Rupees Five
Thousand) p.m. w.e.f. June, 2015.
We would request you to please approve the above Draft Lease
Agreement and send the same to this office for our onward
submission to H.O. for necessary approval for effecting the Lease
Agreement at the earliest.
CHIEF MANAGER (Admn./P&D)."
By the aforesaid letter, the defendant bank has sent a new
proposal and requested the plaintiff to approve the draft Lease
Agreement and to send the same to the defendant for approval from
the Head Office but after the said letter, there is no document on
record to say that the proposal of the defendant bank was approved
and returned to the bank and the Head Office of the bank has
approved the same. On the other hand, the defendant by a letter
dated 5th October, 2015, informed to the plaintiff that the bank has
decided to surrender the 1st floor and relocate the branch in the
ground floor itself. The plaintiff by a letter dated 6th October, 2015,
accepted the proposal subject to release of Rs.5,00,000/- of arrears of
rent by 7th October, 2015, the defendant had released the said
amount on 7th October, 2015. By a letter dated 22nd December, 2017,
the defendant bank surrendered an area of 1205 sq.ft. out of total
area 3505 sq.ft. and retained an area of 2300 sq.ft. for the purpose of
Ekdalia Branch premises.
24. On 21st December, 2017, a new Lease Deed entered between the parties
with respect to 2300 sq.ft. covering the portion of the entire ground floor
including generator space. In the lease deed, rent is fixed Rs.40/- per
square feet in addition to Rs.5000/- for the ATM. Subsequent to
execution of the lease deed, the several correspondences were made
between the plaintiff and the defendant with regard to calculation of the
arrears of rent but no conclusive decision was arrived between the
parties.
25. In the written notes of argument both the parties have enclosed the
letter dated 22nd July, 2022, issued by the defendant bank wherein the
defendant has made the calculation of the arrears of rent which reads
as follows:
Date: 22.07.2022
To,
Ms. Aruna Ghosh
Advocate High Court, Calcutta
Hasting Chamber, 7C. K.S. Roy Road, 1st Floor
Room No.1
Kolkata - 700001
Reg: Reply in court case C.S. No. 234 of 2019 Between Ashish Biswas
(Land Lord of Ekdalia Branch) V/S Punjab National Bank.
With reference to captioned subject we are in receipt of letter from
advocate of plaintiff in compliance with the order dated 07.07.2022
passed by Hon'ble Justice Ravi Krishan Kapur furnishing total rental
arrear due and payable by the bank.
Pursuant to further direction of the court as informed by you to submit
the calculation sheet for the rent and arrear paid by bank. We in reply
to the letter dt.07.07.2022 submit as under:
SL. Remarks Amount
No.
1 Total Rent Paid from 01.04.2014 to Rs.33,12,000/-
31.03.2017 @40 per sq. ft. per month on
total area of 2300 sq. ft.
2 Total Rent Paid from 01.04.2014 to 21-12- Rs.9,18,071/-
207 @46 per sq. ft. per month on total
area of 2300 sq. ft.
3 Rent paid from 01.04.2014 to 07.10.2015 Rs.2,33,618/-
@Rs.10.63 for area 1205 as per letter dt
06.10.2015 by plaintiff
4 Rent paid from 01.04.2014 to 31.03.2017 Rs.1,80,000/-
@Rs.5,000/- per month for ATM
5 Rent Paid from 01.04.2017 to 31.12.2017 Rs.51,750/-
@Rs.5750/- per month for ATM
Sum Total Rs.46,95,439/-
As per Plaintiff reply bank paid Rs.5,00,000/- towards release of 1st
floor i.e.1205 sq.ft.
Rs.5,00,000/- paid on 07.10.2015.
Bank released property area 1205 sq.ft. on 07.10.2015 so the total
rent Payable Rs.46,95,439/- (Rs.33,12,000+Rs.9,18,071+
Rs.2,33,618+Rs.1,80,000 + Rs.51,750)
Plaintiff admitted Payment of Rs.43,71,445/-
Thus Total Rent Paid by bank Rs.46,95,439/- Minus Rs.43,71,445/- =
Rs.323994/-
50% Stamp duty payable by plaintiff for registration of lease
agreement was paid by bank amounting Rs.2,13,554/-
Payable if any Total Rs.1,10,440/- (Rs.3,23,994/- Minus
Rs.2,13,554/-)
Bank also paid Rs.1,73,974/- on 30.08.2018.
Thus recovery of excess rent paid by bank to be refunded by plaintiff
Rs.63,534/- (Rs.1,73,974/- Minus Rs.1,10,440/-)
Further TDS Paid Rs.3,54,170/-
Yours
Faithfully.
As per the said calculation, the contention of the bank is that an
amount of Rs.63,534/- is recoverable from the plaintiff. The plaintiff
had disputed the said calculation submitted by the defendant.
26. The defendant has also raised several issues that i.e. limitation and
jurisdiction and the same are the triable issues which could not be
decided in the present application. In the case of Balraj Taneja and
Another -vs- Sunil Madan and Another reported in (1999) 8 SCC 396
and submitted that under Order XII, Rule 6 of the Code of Civil
Procedure, 1908, 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. In the
case of Himani Alloys Limited -vs- Tata Steel Ltd. reported in (2011)
15 SCC 273 and submitted that a judgement can be given on an
"admission" contained in the minutes of a meeting but the admission
should be categorical. It should be a conscious and deliberate act of the
party making it, showing an intention to be bound by it. in the case of
S.M. Asif -vs- Virendra Kumar Bajaj reported in (2015) 9 SCC 287
and submitted that the power under Order XII, Rule 6 of the Code of
Civil Procedure, 1908, is discretionary and cannot be claimed as a
matter of right. Judgmental admission is not a matter of right and
rather is a matter of discretion of the court. If the defendant has raised
objections which go to the root of the case, it would not be appropriate
to exercise the discretion of under Order XII, Rule 6 of the CPC, 1908.
27. The plaintiff has relied upon the judgement in the case of Uttam Singh
Duggal (Supra) but the said case is distinguishable from the facts and
circumstances of the present case as in the present case there is no un
conditional or clear admission made by the defendant.
28. The plaintiff has claimed the arrears of rent from 1st April, 2014 till 21st
December, 2017 and the plaintiff has filed the suit in the year 2019.
The defendant has raised the point of limitation as well as jurisdiction
and the same issues are to be decided during the trial only. Considering
the above facts and circumstance, this Court finds that there is no
unequivocal and clear admission made by the defendant and thus no
judgment on admission can be passed.
29. In view of the above, G.A. No. 1 of 2019 is dismissed.
(Krishna Rao, J.)
