Calcutta High Court
Eic Holdings Private Limited vs Himsd Private Limited on 11 September, 2024
OD-22
ORDER SHEET
IA No. GA/1/2023
In CS/75/2023
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
EIC HOLDINGS PRIVATE LIMITED
-VS-
HIMSD PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : September 11, 2024.
Appearance:
Mr. Shounak Mukhopadhyay, Adv.
Mr. Amit Meharia, Adv.
Ms. Paramita Banerjee, Adv.
Mr. Sayan Dey, Adv.
... for the plaintiff
The Court: Mr. Shounak Mukhopadhyay, learned counsel, is
appearing for the plaintiff.
The plaintiff has filed the suit praying for the following reliefs :
a. A decree for eviction of the defendant from the suit
premises being Office Space numbered as 2-E containing
a carpet area of 3346 square feet, more or less, on the
second floor of the building known as "East India House"
at 20B, Abdul Hamid Street, Kolkata - 700069 more fully
described in the Schedule annexed herewith this plaint
and marked with the letter "A" and delivery of vacant and
peaceful possession thereof to the plaintiff;
2
b. Decree for Rs.13,87,358/- on account of outstanding rent
and electricity charges;
c. A decree for Rs.26,800/- on account of mesne profits for
the period between 12th April, 2023 till 17th April, 2023;
d. A decree for further mesne profit @ Rs.6700/- per day
from 18th April, 2023 till recovery of vacant possession of
the said premises;
e. Alternatively, an inquiry be made into an inquiry into
mesne profits payable by the defendant to the plaintiff
and a decree for mesne profit for such sum as may be
found due on such inquiry;
f. Interim interest and interest upon judgment;
g. Costs
h. Attachment;
i. Receiver;
j. Injunction;
k. Further or other reliefs.
In the suit the plaintiff has also filed an application being
GA/1/2023 praying for the following reliefs :
a. Final judgment for eviction of the defendant/respondent
from the suit premises being Office Space numbered as 2-
E containing a carpet area of 3346 square feet, more or
less, on the second floor of the building known as "East
India House" at 20B, Abdul Hamid Street, Kolkata -
700069 more fully described in the Schedule annexed to
the plaint and marked with the letter "A" and delivery of
vacant and peaceful possession thereof to the
plaintiff/petitioner;
b. A decree for the sum of Rs.13,87,358/- on account of
outstanding rent and electricity charges;
c. A decree for mesne profit in the sum of Rs.26,800/- and
further mesne profits at the rate of Rs.6700/- per day
until vacant and peaceful possession of the suit premises
is made over by the defendant/respondent to the
plaintiff/petitioner be passed, alternatively, an enquiry
into mesne profits and a decree for such sum as may be
found due and payable;
d. Costs of and incidental to this application be paid by the
defendant/respondent to the plaintiff/petitioner;
e. Such further order or orders and/or direction or
directions be given as this Hon'ble Court may deem fit
and proper;
The plaintiff has leased out the suit premises to the defendant
on 1st October, 2021 and the defendant has taken possession of the said
premises. It was agreed between the parties that the defendant would
pay monthly rent of the suit premises at the rate of Rs.40/- per sq.ft.
aggregating to Rs.1,33,840/- per month along with taxes applicable
thereon and electricity charges on and from 1st January, 2022. It was
further agreed between the parties that the plaintiff would be entitled to
interest at the rate of 18% per annum on the outstanding rent or other
charges if the defendant fails to pay the rent and the charges within the
prescribed time.
The defendant failed to pay the regular monthly rent and other
charges of the suit premises and accordingly, on 28th October, 2022 the
plaintiff had sent a notice to the defendant calling upon the defendant to
pay the outstanding arrears of rent along with electrical charges
amounting to Rs.8,72,660/-. On receipt of the said notice, the defendant
had sent a reply on 30th October, 2022 requesting the plaintiff to grant
some more time to clear the outstanding dues. On 23rd November, 2022
the plaintiff had again sent a notice calling upon the defendant to clear
all the outstanding dues.
On 4th January, 2023 the defendant has sent a communication
to the plaintiff informing that the defendant will clear the outstanding
dues by 29th March, 2023. In the said letter it was also mentioned in
case the defendant fails to pay the amount as committed by the
defendant by the letter dated 4th January, 2023, the plaintiff can take
appropriate action. In spite of the undertaking provided by the
defendant, the defendant has not paid the said amount and again on 3 rd
March, 2023, the plaintiff had issued a notice calling upon the defendant
to pay an amount of Rs.13,00,781.90p within 15 days from the date of
receipt of the notice. In the said notice the plaintiff has also given the
calculation chart how the said amount is due and payable by the
defendant.
On receipt of the said notice, the defendant neither paid any
amount nor has given any reply. Again on 27th March, 2023 the plaintiff
has sent a notice calling upon the defendant to vacate and deliver the
possession of the suit premises within 15 days from the date of receipt of
the notice and to clear all the charges including the arrears of rent. The
notice was duly served upon the defendant and on 10 th April, 2023 the
defendant through its advocate had sent an e-mail to the plaintiff calling
upon the plaintiff to grant six months time to the defendant to vacate the
premises and to clear all the dues as claimed by the plaintiff. In the said
letter the defendant has admitted that the defendant is in possession of
the premises on and from 1st October, 2021. On 10th April, 2023 again
the defendant through its advocate had sent a notice requesting the
plaintiff to give sufficient time so as to enable the defendant to vacate the
premises and to pay the dues outstanding. Though the defendant has
given an undertaking and assured that the defendant will vacate the
premises but neither the defendant has vacated the premises nor has
paid the arrears of rent and other taxes, electrical charges and the
plaintiff constrained to file the present suit.
The writ of summons was served upon the defendant but none
appears on behalf of the defendant and no written statement is filed.
Counsel for the plaintiff submits that during the pendency of
the suit the defendant has vacated the premises on 22 nd January, 2024
by handing over possession to the plaintiff and now the premises is in
possession of the plaintiff. Now the plaintiff submits that the prayer (a) of
the Master's Summons has now become infructuous as the defendant
has already delivered the possession of the premises. Now the plaintiff
has pressed the prayers (b) and (c) of the application.
After service of notice of the present application, the defendant
entered appearance and has filed their affidavit in opposition but after
filing of the affidavit in opposition, the defendant had not appeared. This
Court has directed the plaintiff to serve a fresh notice upon the
defendant informing the date of hearing and accordingly, the plaintiff had
sent a notice upon the defendant informing the date of hearing and also
filed affidavit of service but in spite of service of notice, none appears on
behalf of the defendant.
In the affidavit in opposition of GA/1/2023 the defendant has
taken the ground that the lease agreement is not sufficiently stamped
and registered but the defendant has admitted with regard to the
possession of the property.
Learned counsel for the plaintiff has not relied upon the
agreement. He submits that the agreement is neither registered nor
properly stamped due to which the plaintiff had sent a notice to the
defendant under Section 106 of the Transfer of Property Act but in spite
of receipt of the notice, the defendant failed to vacate the premises and
as such the cause of action arose for filing the instant suit. In the
affidavit in opposition the defendant has only taken the stand that the
defendant has paid the security amount of Rs.5,35,360/- which is
equivalent to four months' rent and the plaintiff nowhere stated that the
said security amount either will be rendered or adjusted and as such the
defendant has not paid any dues to the plaintiff.
Counsel for the plaintiff during the argument has categorically
admitted that the security deposit of Rs.5,35,360/- is lying with the
plaintiff but the plaintiff is ready and willing to adjust the said amount
from the due amount i.e. arrears of monthly rent as well as taxes and the
electrical charges.
The plaintiff has issued notices upon the defendant under
Section 106 of the Transfer of Property Act on 27 th March, 2023 which
was duly received by the defendant on 29th March, 2023. In the said
notice the plaintiff has given 15 days' time as per law and 15 days' time
was expired on 13th April, 2023. Thus, from 14th April, 2023 the
defendant is in illegal possession of the suit premises as the defendant
has not paid the arrear rents, taxes and electrical charges and has also
not vacated the premises though subsequently, after filing of the suit,
only on 22nd January, 2024 the defendant has vacated the premises and
after vacating the premises, the plaintiff has informed this Court and the
same was duly recorded in the order dated 1 st February, 2024.
Considering the above, this Court finds that only the dispute
the defendant has raised in their reply to the notice is that the security
amount is to be adjusted from the due amount. The plaintiff is ready to
adjust the security amount from the dues pending against the defendant.
Accordingly, the plaintiff is entitled to get an amount of Rs.8,51,997/-
being the arrears of monthly rent from August, 2022 till the month of
March, 2023 including taxes and pending electrical charges after
deduction of Rs.5,35,360/- from the total dues of Rs.13,87,358/-.
The defendant is directed to pay the said amount of
Rs.8,51,997/- to the plaintiff along with interest at the rate of 18% per
annum from the month of March 2023 till the realization of the said
amount.
The plaintiff has also prayed for mesne profit. This Court has
not conducted the trial, the defendant has not entered appearance in the
suit and has not filed the written statement.
This Court is of the view that to ascertain the mesne profit an
enquiry is to be conducted by appointing a Special Referee.
Mr. Rohit Banerjee, Advocate is appointed as Special Referee to
enquire into the mesne profit entitled by the plaintiff with respect of the
suit premises in question with effect from 14th April, 2023 till 22nd
January, 2024.
The remuneration of the Special Referee is fixed at
Rs.3,00,000/- and the plaintiff is directed to pay the said amount at the
initial stage and the plaintiff is entitled to recover the said amount from
the defendant.
The Special Referee is directed to submit the report within a
period of six months.
GA/1/2023 is disposed of.
(KRISHNA RAO, J.)
RS
