Calcutta High Court
Nirwan Finvest Private Limited vs Jatia Estates Limited on 19 March, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
OD-4
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APDT/4/2025
WITH
CS/185/2024
IA NO. GA/1/2025
NIRWAN FINVEST PRIVATE LIMITED
-VS-
JATIA ESTATES LIMITED
BEFORE:
THE HON'BLE JUSTICE SABYASACHI BHATTACHARYYA
AND
THE HON'BLE JUSTICE UDAY KUMAR
Date: 19th March, 2025.
APPEARANCE:
Mr. Jayanta Kumar Mitra, Sr. Adv.
Mr. Shyamal Sarkar, Sr. Adv.
Mr. Ram Anand Agarwal, Adv.
Mr. Rajesh Kumar Gupta, Adv.
Ms. Nibedita Pal, Adv.
Mr. Ananda Gopal Mukherjee, Adv.
Ms. Sonam Ray, Adv.
Mr. Viraj Gupta, Adv.
...for the appellant.
Mr. Tilak Kumar Bose, Sr. Adv.
Mr. ArindamGuha, Adv.
Mr. SuvasishSengupta, Adv.
...for the respondent.
The Court: The certified copy of the impugned judgment filed today be
kept on record.
The present appeal has been preferred against a judgment of the
learned Single Judge whereby a summary judgment was passed upon
allowing an application under Chapter XIIIA of the Original Side Rules of
this Court and rejecting an application under Order VII Rule 11 of the Code
of Civil Procedure.
Learned senior counsel appearing for the appellant raises several
questions regarding the legality of the impugned judgment.
Upon hearing learned senior counsel for the parties, we find that
certain issues crop up for consideration in the appeal.
First, whether there was a misjoinder of causes of action insofar as
the clubbing of two separate tenancies is concerned.
Secondly, whether the tenant/lessee/appellant is entitled to the
benefit of Section 114 of the Transfer of Property Act, 1882, even at the
appellate stage, by virtue of the deeming legal fiction that an appeal is a
continuation of the suit.
Thirdly, whether in an eviction suit filed on the premise of a notice
under Section 106 of the Transfer of Property Act and not on the ground of
forfeiture for non-payment of rent, the benefit under Section 114 of the said
Act can at all be extended.
Fourthly, whether in the absence of any prayer by the plaintiff for
arrears of rent, the learned Single Judge was justified in directing payment
of arrears of rent by the defendant/appellant to the plaintiff/respondent.
The appeal will be heard on the above questions and other grounds
taken in the memorandum of appeal.
Accordingly, the appeal is admitted.
In view of a prima facie case having been made out for hearing of the
appeal on merits, the appellant is entitled to a stay of operation of the
impugned judgment.
The question which arises is regarding the occupation charges which
are payable by the appellant at the current market rates.
The suit property is situated in the Burrabazar area and is comprised
of four floors of a building located in a highly commercial area.
Upon considering the submissions of the parties and the pleadings in
the application, we are of the opinion that monthly occupation charges of
Rs.60,000/- would suffice as a condition for grant of stay.
Since we have not invited the parties to file affidavits, it is deemed that
none of the allegations made in the stay application are admitted by the
respondent.
Accordingly, GA No. 1 of 2025 is disposed of by granting stay of
operation of the impugned judgment till disposal of the appeal bearing APDT
No. 4 of 2025, subject to the appellant paying to the respondent an amount
of Rs.60,000/- per month as occupation charges as condition of such grant
of stay. The first of such current payment for the month of March, 2025
shall be paid by March 31, 2025 and thereafter, for each current month by
the last day of the said month.
All such payments shall be made directly by online transfer to the
bank account of the respondent, the particulars of which shall be furnished
in writing by the learned Advocate-on-record for the respondent to the
learned Advocate-on-record for the appellant by tomorrow.
The stay order shall continue unconditionally till March 31, 2025 and
thereafter, subject to the above payments being made, shall continue till the
disposal of the appeal. However, it is made clear that in case of default of
any of the above payments, the stay order shall stand automatically vacated
without further reference to the Court.
Learned senior counsel appearing for the respondent, at this juncture,
contends that since the respondent was all along enjoying an order of
injunction which merged with the final impugned judgment and the
injunction application was dismissed only since a judgment of eviction has
been passed against the appellant, the injunctionorder should be revived.
That apart, it is also submitted that the arrears of rent, for which TDS
amounts have been declared by the appellant for some of the period, should
also be directed to be paid to the respondent to the tune of Rs.21,38,942/-
in terms of the impugned judgment as a part of the condition of stay.
However, insofar as the injunction is concerned, we are of the opinion
that the interim injunction granted during the pendency of the suit has
exhausted itself with the disposal of the suit. Although the legal fiction
prevails that an appeal is a continuation of the suit, fact remains that there
is no independent application for injunction in the appeal, after the
injunction application was disposed of by the learned Single Judge, as of
date. However, liberty is granted to the respondent to file an appropriate
injunction application for such relief, if the respondent so deems fit, in
connection with the appeal.
As regards the direction to pay the arrear rent of Rs.21,38,942/-, we
are of the opinion that since one of the grounds of admission of the appeal is
whether the learned Single Judge acted without jurisdiction in passing the
said component of the decree in the absence of any such prayer on the part
of the plaintiff, it would not be prudent, at this juncture, to direct the
appellant to pay the same to the respondent.
However, to secure the arrear rents, the appellant shall deposit such
amount of Rs.21,38,942/- with the Registrar, Original Side within one
month from date. As and when such deposit is made, the Registrar, Original
Side shall invest the same in a short-term interest-bearing account with any
nationalized bank and furnish the particulars thereof to the learned
Advocates for the parties as and when so approached by the parties.
Such deposit and the occupation charges paid shall be subject to the
outcome of the appeal.
In view of the appearance of the respondent through its learned
Advocate, service of notice of the appeal on the respondent is dispensed
with.
The trial court records be called for. The appellant shall prepare and
file the requisite number of paper books within four weeks from date with an
advance copy to the learned Advocate-on-record for the respondent.
Liberty to the parties to mention the appeal for enlistment before the
appropriate Bench as and when the same is ready for hearing.
As and when such deposit is made by the appellant, the learned
Advocate for the appellant shall intimate about such deposit to the learned
Advocate appearing for the respondent.
(SABYASACHI BHATTACHARYYA, J.)
(UDAY KUMAR, J.)
KB
