Calcutta High Court
Poddar Projects Limited & Anr vs Economic Transport Organisation ... on 10 January, 2025
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
OD-1 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APO 80 of 2023
IN
CS 142 of 2013
PODDAR PROJECTS LIMITED & ANR.
VS.
ECONOMIC TRANSPORT ORGANISATION LIMITED
BEFORE:
The Hon'ble JUSTICE JOYMALYA BAGCHI
AND
The Hon'ble JUSTICE GAURANG KANTH
Date: 10th January, 2025.
Mr. Debnath Ghosh, Sr. Advocate,
Mr. Avinash Kankani, Advocate,
Mrs. Arunima Lala Sengupta, Advocate,
Mr. Suman Majumder, Advocate,
. . . . for the appellants.
Mr. Mainak Bose, Sr. Advocate,
Mr. Anurag Bagaria, Advocate,
Mr. Amitabh Ray, Advocate,
. . . for the respondent.
Joymalya Bagchi, J.:-
1. Appellants/plaintiffs are the landlords of 9725 sq. ft. on the
ground floor of premises no. 18, Rabindra Sarani, Kolkata - 700 001,
(hereinafter referred to as the demised premises). The respondent/defendant
is a monthly tenant at a monthly rent of Rs.12,278/-. Initially the
respondent/defendant was a tenant under the first appellant and one 'M/s.
Poddar Udyog Limited'. Pursuant to a scheme of arrangement sanctioned by
this Court vide order dated 7th April, 1998, an undivided share of tenancy
comprising of 3055 sq. ft. was transferred in favour of the second appellant
thereby the appellants became the joint landlords of tenancy. Though the
tenancy was for a single premise, on the request of the
respondent/defendant separate rent receipts were issued in favour of the
respondent/defendant.
2. On 3rd October, 2012 the appellants served a notice upon the
respondent/defendant terminating the monthly lease and called upon the
respondent/defendant to quit, vacate and hand over peaceful possession of
the demised premises under Section 106 of the Transfer of Property Act. The
notice was duly received by the respondent/defendant but the latter did not
vacate the said premises.
3. On 23rd April, 2013 a suit was filed before this Hon'ble Court inter alia
praying for a decree of eviction of the respondent/defendant from the
tenanted premises and for mesne profits. In the said suit, an application
under Chapter XXXA of the Original Side Rules being GA 2883 of 2013 was
filed for summary decree of eviction. After hearing the parties, the Hon'ble
Single Judge, inter alia, held that:-
"The defence of the respondent/defendant was feeble, but there could
be a small ray of hope flickering at the end of the tunnel."
4. Holding as aforesaid, the Hon'ble Single Judge granted conditional
leave to defend to the respondent/defendant under the following terms:-
"I, therefore, grant the defendant conditional leave to defend. The
defendant upon payment of occupational charges @ ₹ 4 lakh per month
on and from March 2017 till the disposal of the suit shall be entitled to
defend the suit. The occupational charge for the month of March 2017
shall be paid by 10th March 2017 and the future monthly occupational
charges shall be paid by 10th day of each succeeding month. Upon
payment of the occupational charges for the month of March 2017, the
defendant shall be entitled to file written statement within a period of
four weeks from that date. In default of making payment of the monthly
occupational charge for the month of March 2017 or any of the future
monthly occupational charges, the decree for khas possession shall
automatically follow and for which there would be no need to apply
afresh."
5. Respondent/defendant carried the matter in appeal and the Hon'ble
Division Bench modified the order of Hon'ble Single Judge and granted
unconditional leave in favour of the respondent/defendant to defend the
suit.
6. The appellants challenged the order before the Hon'ble Apex Court.
Hon'ble Supreme Court after hearing the parties, disposed of the Special
Leave Petition as follows:-
"7. Having heard learned counsel for the parties and having persued
the records, we are of the view that ends of justice would be met if the
respondents are directed to pay Rs.2,00,000/- (Rupees two lakhs) per
months as use and occupational charges/rent for the premises with
effect from 01.03.2017. We order accordingly. Payments made would
abide by the final outcome of the suit.
8. Learned Single Judge before whom the Civil Suit is still pending is
requested to dispose of the Civil Suit expeditiously."
7. Admittedly, the respondent/defendant has not paid occupational
charges at the rate of Rs. 2 lakh per month in terms of the order of the
Hon'ble Supreme Court. In this backdrop, appellants took out GA No. 6 of
2019, inter alia, praying for drawing up a decree for eviction.
8. By the impugned judgment and order Hon'ble Single Judge held that
the direction passed by the Hon'ble Supreme Court is not a conditional
leave to defend the suit and the failure of the respondent to deposit the
occupational charges as directed may be taken as an additional ground
during the trial of the suit.
9. Chapter 13A of the Original Side Rules, inter alia, provides the
procedure in which the Judge shall deal with a prayer for summary decree.
If the Judge is of the view that the defendant has no defence or the defence
is illusory or sham, he shall refuse the prayer of the defendant for leave to
defend and forthwith pronounce judgment in favour of the plaintiff. In the
alternative, if the Judge is of the view that the defendant has made out a
good defence or has raised a triable issue, he shall be granted unconditional
leave to defend. Even in cases where the defence is practically moonshine,
this Court in Kiranmayi Dasi vs. J. Chatterji1 held as follows:-
"8. *** *** ***
(a) *** *** ***
(b) *** *** ***
(c) *** *** ***
(d) *** *** ***
(e) If the defendant has no defence or the defence is illusory or sham
or practically moonshine then, although ordinarily the plaintiff is
entitled to leave to sign judgment, the Court may allow the defence to
proceed if the amount claimed is paid into Court or otherwise secured
and give leave to the defendant on condition and thereby show mercy
to the defendant by enabling him to try to prove a defence."
10. Respondent/defendant admits the tenancy as well as the receipt of
notice to quit under Section 106 of the Transfer of Property Act. The sole
defence raised by him is that there are two tenancies and not a composite
one. Hon'ble Single Judge referred to the nature of the demised premises
1945 SCC OnLine Cal 114
which is a single godown, manner of its creation and the circumstances in
which the separate rent receipts were issued at the request of the
respondent/defendant to come to the conclusion that the tenancy is a
composite one and the defence of the respondent was extremely feeble.
Notwithstanding such finding, Hon'ble Judge was of the view the last hope
of the tenant ought not to be extinguished and extended the concession of
leave to defend on payment of occupational charges at the rate of Rs.4 lakh
per month on and from March, 2017 till disposal of the suit.
11. In appeal, the Hon'ble Division Bench referring to a judgment (W.
Newman & Company Limited vs. Apollo Zipper India Limited & Anr. 2) held
the defence was not illusory or moonshine and granted unconditional leave
to defend. It may be apposite to note the said judgment has since been over
overruled.3
12. Hon'ble Supreme Court modified the aforesaid order and directed that
for ends of justice, the respondent-tenant shall pay Rs.2 lakh per month as
use and occupational changes w.e.f. 01.03.2017. The payment shall abide
by the final outcome of the suit.
13. Mr. Ghosh contends as terms of conditional leave to appeal had not
been complied with, a decree for eviction ought to be automatically passed.
Per contra, Mr. Bose would argue the order passed by the Division Bench
granting unconditional leave had been disturbed. Hon'ble Apex Court
merely added an additional requirement, namely, deposit of occupational
charges at the rate of Rs.2 lakh per month. Non-compliance of this direction
cannot lead to an automatic decree for eviction.
2017 SCC OnLine Cal 7242
Apollo Zipper India Ltd. vs. W. Newman & Co. Ltd., (2018) 6 SCC 744
14. The issue raised before us calls for interpretation of the directions of
the Hon'ble Supreme Court in the order dated 18th October, 2019. By the
said order, the Hon'ble Supreme Court had called upon the respondent-
tenant to deposit a sum of Rs.2 lakh per month as occupational charges for
the premises w.e.f. 01.03.2017. It was further directed that payments shall
abide by the final outcome of the suit. Directions were also given for
expeditious disposal of the suit. These directions should be read in isolation.
As rightly argued by Mr. Ghosh the directions must be appreciated in the
backdrop of the facts of the case particularly the nature of proceeding from
which the appeal before the Hon'ble Apex Court had arisen.4
15. Appellants had taken out an application under Chapter 13A for a
summary decree. Hon'ble Single Judge holding the defendant's case is a
feeble one granted conditional leave to defend subject to payment of
occupational charges at the rate of Rs.4 lakhs per month w.e.f. 01.03.2017.
Hon'ble Division Bench of this Court modified the order and permitted
unconditional leave to defend. This order came to be challenged before the
Hon'ble Supreme Court and the Court directed the defendant to deposit
Rs.2 lakh per month as occupational charges instead of Rs.4 lakh per
month as directed by the Hon'ble Single Judge.
16. The direction for deposit of Rs.2 lakhs per month as occupational
charges cannot be construed independently but must be contextually
understood as a condition for leave to defend. If construed otherwise, the
order would be rendered nugatory as no punitive consequence of non-
payment would befall the defendant.
Goan Real Estate And Construction Ltd. Vs. Union of India, (2010) 5 SCC 288 (para 31)
17. Hon'ble Single Judge failed to appreciate the direction of the Hon'ble
Supreme Court in its right perspective and incorrectly held that the
direction was not a conditional leave to defend the suit.
18. It has also been argued that the appellants have blown hot and cold.
19. Referring to order dated 19th November, 2019, Mr. Bose contends the
appellants had acceded to the suit being tried out as an ordinary suit and
thereafter altered course and taken out the instant prayer for drawing up
summary decree on default. We find little substance in this submission too.
Hon'ble Supreme Court had imposed the condition to pay Rs.2 lakhs per
month as occupational charges w.e.f. 1st March, 2017 on 18th October,
2019. Barely a month thereafter when the suit had come up for hearing, it
was not in the farthest contemplation of the appellants that the
respondent/defendant could not comply with the aforesaid direction.
Accordingly, they agreed to the suit being tried as contested one. Soon
thereafter, their hopes were belied and the appellants took out an
application for drawing up of decree due to breach of the conditions for
leave to defend.
20. In light of the aforesaid discussion, we are of the view the condition
imposed by the Hon'ble Supreme Court requiring the respondent to deposit
occupational charges at the rate of Rs.2 lakhs per month w.e.f. 1st March,
2017 was a condition to grant leave to defend the suit. As the respondent
has failed to comply with the aforesaid condition, leave to defend stands
forfeited and the defense of the respondent/defendant is liable to be struck
off.
21. Needless to mention that the respondent/defendant shall have a right
to cross-examine the plaintiff's witnesses and address arguments only
during the hearing of the suit.
22. Order passed by Hon'ble Single Judge is set aside.
23. APO No.80 of 2023 is allowed.
I agree
(GAURANG KANTH, J.) (JOYMALYA BAGCHI, J.)
pa/akg
