Calcutta High Court
Apeejay House Pvt. Ltd vs Coal India Ltd on 27 October, 2025
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
LAST HEARD ON: 30.06.2025
DELIVERED ON:27.10.2025
PRESENT:
THE HON'BLE MR. JUSTICE BISWAROOP CHOWDHURY
E.C. No. 16 of 2024
IN
C.S. No. 72 OF 2006
APEEJAY HOUSE PVT. LTD. VERSUS COAL INDIA LTD.
Appearance:
Mr. Aritra Basu, Adv.
Mr. Sanket Sarawgi, Adv.
..... for the plaintiff
Mr. Pradip Kumar Dutta,Sr. Adv.
Mr. Abir Debnath, Adv.
Mr. Pradipta Bose, Adv. ... for the defendant
Biswaroop Chowdhury, J.: This is an application for Execution of the Decree
passed on October 6, 2023 and corrected by Order dated December 13,
2023 read with order dated December 15, 2023 passed by a Learned Co-
ordinate Bench of this Court in C.S. No. 72 of 2006.
It is the contention of the Decree holder that the decree-holder filed
the present suit being CS. No. 72 of 2006 inter-alia praying for the following
reliefs:
a) Decree for peaceful vacant possession of the tenanted portion of
the second floor of the premises No. 15 Park Street Kolkata-700016
more fully described in Annexure 'A'.
b) Decree for Rs. 6, 99, 917/- on account of mesne profits;
c) Decree for further mesne profit @ Rs. 75 per squere feet per month
on and from 21st March 2006 till recovery of possession along with
interest @ 12% p.a;
d) Alternatively an enquiry into mesne profit and decree for such sum
and at such rate as may be found due upon enquiry;
e) Interim interest and interest upon judgment @ 12% p.a.;
f) Receiver.
g) Injunction.
h) Costs;
i) Such further and/or other reliefs.
2) The Decree holder in the said suit applied for a summary decree by
filing an application under chapter XIII A of the Original Side Rules of this
Hon'ble Court being GA No. 1730 of 2006.
3) The application filed under Chapter XIII A of the Original Side Rules
of this Hon'ble Court was allowed and an eviction decree was passed on July
Page 2 of 16
14, 2009. In terms of the decree for eviction dated July 14, 2009, a Special
Referee and/or Mesne profit Commissioner was appointed to inquire into the
mesne profits which was due and payable by the judgment debtor to the
decree holder on account of wrongful and illegal possession of the premises
and to submit a report before this Hon'ble Court. The Learned Special
Referee and/or Mesne Profit Commissioner entered upon reference and
made and published his report on May 7, 2012.
4) The Judgment Debtor being aggrieved by and dissatisfied with the
judgment and decree dated 14thJuly 2009 preferred an appeal before the
Division Bench of this Hon'ble Court which was dismissed. Thereafter the
Judgment Debtor preferred a Special Leave Petition before the Hon'ble
Supreme Court and the same was also dismissed.
5) On 15th September 2009 the Hon'ble Division Bench directed the
judgment debtor to deposit Rs. 100,000/- per month as occupational
charges which was to be kept in a short term fixed deposit in a Nationalized
Bank. By Judgment and order Dated January 16, 2013 the Hon'ble Court
passed an order that the occupation charges as paid by the judgment debtor
would be subject to the finding of the Special Refree on the Mesne Profit and
the decree holder also undertook to give adjustment to the amount lying in
the fixed deposit with the total sum claimed herein towards the mesne
profit.
Page 3 of 16
6. The decree holder upon receipt of the report of the Learned Special
Refree and/or Mesne Profit Commissioner filed an application before this
Hon'ble Court being G.A. No. 8 of 2019 inter alia praying for the following
reliefs.
a) delay if any in filing the present application be condoned.
b) Report of the Learned Special Refree being Annexure 'C' hereof
dated 7th May 2012 be confirmed and final decree be passed in accordance
therewith.
c) Ad-interim orders in terms of prayers above.
d) Such further and/or other order or orders be passed direction as
directions be given as to this Hon'ble Court may deem fit and proper.
7. The judgment debtor filed an application inter alia, taking exeption
to the report dated May 7, 2012, made and published by the Learned
Special Refree and/or Mesne Profit Commissioner.
8. The application of the decree holder and the judgment debtor were
heard analogously by this Hon'ble Court and on September 6, 2023 and
September 18, 2023 the decree holder's application inter alia for
confirmation was allowed and the judgment debtor's application, inter alia
taking exception to the report of the Learned Special Referee was dismissed
by a judgment and decree dated October 6, 2023. The application of the
decree holder was heard and disposed of by the order dated December 13,
Page 4 of 16
2023. As per the order dated December 13, 2023 read with Order dated
December 15, 2023 the Decree holder is entitled to a sum of Rs.
10,52,65,301/-. The decree holder is also entitled to interest @ 8% per
annum on the aforesaid sums until recovery.
8) Despite several efforts the decree holder has not been able to find
out and/or ascertain the exact details and extent of the assets whether
immoveable or otherwise owned and possessed by the judgment debtor for
satisfaction of the decree. The registered office of the judgment debtor is
situated at Coal Bhawan, premises 04 March plot No. AF-III, Action Area 1A,
New Town Rajarhat Kolkata-700156 outside the jurisdiction of this Court.
However the decree holder has reasons to believe that the judgment debtor
has assets within the jurisdiction of this Hon'ble Court.
The judgment debtor has filed affidavit in opposition to the execution
application by contending as follows.
1.
With reference to Paragraph 17 of the said affidavit the Judgment
Debtor denies that the Decree-Holder is entitled to a sum of Rs.
10,52, 65, 304/- as per particulars given in Annexure M to the said
affidavit.
2. According to the calculation of the receivable amount as made in
Annexure-M is erroneous inasmuch as the same has not been
calculated strictly in accordance with the terms of the said order
dated 6th October 2023, as corrected thereafter in as much as the
Decree Holder has wrongly calculated the mesne profit and had
enhanced the rate for the period from 01.02.2012 to 30-09-2013.
The Decree Holder has wrongly calculated at Rs. 112.41. for the
said period instead of Rs. 97.75 as ordered by this Hon'ble Court.
Similarly, the service tax and interest amount calculated on the
said amount would further be reduced.
3. Without prejudice and subject to result of any order that may be
passed in the appeal preferred by the judgment debtor, a total sum
of Rs. 67,99,030 with accrued interest thereon covered under the
fixed deposit.
4. The Judgment Debtor is the Government of India Organisation and
its Registered Office situated at Action Area, New Town Rajarhat.
There is no necessity for the Decree Holder to ascertain the details
and extent of the assets of the Judgment Debtor as alleged. It is
also absurd to suggest that the Judgment Debtor will remove its
assets or transfer the same in favour of any other person.
5. The Judgment debtor in terms of the earlier orders of the Appellate
Court had kept a sum of Rs. 67,99,030/- by way of Fixed Deposit
in the credit of C.S. No. 72 of 2006 and the said Fixed Deposit
together with accrued interest are lying with Mr. Sanjib Kumar
Trivedi Advocate on record of the plaintiff/Decree Holder, who is
holding the same as receiver thereof appointed by the order dated
30th June 2021 passed by this Hon'ble Court in G.A. No. 11 of
2021.
6. After adjustment of Rs. 67,99,030/- Judgment debtor is liable to
pay the balance sum of Rs. 4,37,33,337/-
7. It is denied that Judgment debtor should be restrained from
dealing with and disposing of the assets and properties of or the
bank account without leaving a sum of Rs. 10,52,65,304/-.
Heard Learned Advocate for the Decree holder and Learned Advocate
for the Judgment Debtor. Perused the petition filed and materials on record.
Learned Advocate for the decree holder submits that the judgment
debtor filed affidavit on July 3, 2024 wherein the judgment debtor admitted
that the decree holder will atleast be entitled to a sum of Rs. 4,37,33,337/-.
The calculations provided in Annexure 'A' of the affidavit in opposition of the
judgment debtor are incorrect and contrary to the judgment and decree
dated October 6, 2023. In terms of the judgment and decree dated October
6, 2023 the decree holder is entitled to a sum of Rs. 10,52,65, 304/-.
Learned Advocate further submits that the decree holder has been awarded
mesne profits at Rs. 85/- per month per square feet Carpet area along with
interest at 8% per annum with 15% increase after three years from February
2006 till the date possession of suit premises was handed over in favour of
the decree holder ie. upto September 30, 2013. It would be evident from the
calculations contained in Annexure 'A' of the affidavit in opposition that
though the area of the suit premises has been taken correctly, mentioned,
however the increment of 15% in the rate of mesne profits has not been
given effect to by the judgment debtor.
Learned Advocate also submits that for the initial three years between
February 1, 2006, and January 31, 2009 the rate of mesne profit for the
next three years between February 1, 2009 and January 31, 2012, ought to
have been calculated at Rs. 97.75/- per square feet.
Learned Advocate submits that the mesne profit rate for the balance
period between February 1, 2013, and September 30, 2013 was required to
be calculated at Rs. 112.41/- ie after given an enhancement on the
enhanced rate ie. Rs. 97.75/- (Rs. 85/- plus 15%).
The judgment debtor in Annexure 'A' has erroneously not taken Rs.
112.41/- as the rate of mesne profits for the period between February 1,
2013, and September 30, 2013.
Learned Advocate submits that the schedule mentioned herein below
will demonstrate the original rate and the escalation given effect to the
original rate after expiry of every three years in terms of the judgment and
decree dated October 6, 2023.
Period Existing Rate Escalation Rate
01/02/2006 to 30/01/2009 85/- Nil
01/02/2009 to 31/01/2012 97.75 15%
01/02/2012 to 31/09/2013 112.41
In view of such enhanced rate of 15% as directed by the judgment and
final decree dated October 6, 2023 the decree holder will be entitled to an
aggregate sum of Rs. 10,52,65,304/- for mesne profits.
Learned Advocate for the Decree holder submits that if the decree is
executed and if the judgment debtor is directed to make payment of the
entire decretal dues, upon receipt of the said decretal, sum, the decree
holder will receive an intimation from the GST authorities to make payment
of the required sum that has become outstanding on account of Goods and
Services Tax. In the event payments are not made forthwith by the decree
holder, the same will be treated as an event of default.
Learned Advocate relies upon the following Judicial decisions.
HDFC Bank Ltd VS Jagdish Lal Sharma.
Reported in MANU/DE/2469/2023
Raghubir Saran Charitable Trust VS Puma Sports India Pvt. Ltd.
MANU/DE/1321/2013.
Learned Advocate for the Judgment Debtor submits that the decree
holder has claimed Rs. 10,52,65,304/- (Rupees Ten Crore fifty two lakhs
sixty four only). The said calculation has not been done in terms of
judgment and decree dated October 6, 2023, which clearly states that the
rate of mesne Profit will be calculated @ 85/- per month per square feet
along with interest @ 8% per annum with 15 per cent increase of the mesne
profit after 3 years from the month of February 2006 till December 2010.
The word '30th September 2023' was substituted by 'December 2010' at the
end of second paragraph. Again by Order dated December 15, 2023 the
word '30th September 2023' was substituted by '30th September 2013' in the
second and third page of the order dated December 13, 2023 read with order
dated December 15, 2023. Therefore the correct calculation will be such that
the first three years the rate of mesne profit will be Rs. 85/- per sq. ft. and
the interest calculated will be @ 8% per annum. However after three years
the interest will be calculated @ 15% per annum and the same will stay
consistent till 30th September 2013.
Learned Advocate further submits that the decree holder has
erroneously enhanced the interest amount every three years which is not
the intention of the judgment and decree dated October 6, 2023. Therefore
the decree holder has wrongly calculated at Rs. 112.41 for the period from
01.02.2012 to 30.09.2013 instead of Rs. 97.75 as ordered by this Hon'ble
Court. Learned Advocate also submits that as the Judgment does not deal
with the point of G.S.T. the GST which may arise in future is not to be
calculated.
As the Executing Court cannot go beyond the decree it is necessary to
peruse the decree passed in the suit on October 6,2023, corrected by Order
dated December 13, 2023 read with Order dated December 15, 2023.
In the Judgment and Decree dated 06-10-2023 it was observed as
follows:
'So far as C.S. 72 of 2006 is concerned, tenancy in respect of the part
of second floor of the premises no. 15, Park Street, Kolkata - 700016 is in
question, Mr. Dipak Deb calculated mesne-profit at a rate of Rs. 100/- per
square feet, per month from the month of February 2006 till December
2010. In my considered opinion, reasonable rate of mesne-profit should be
Rs. 85/- per month per square feet carpet area along with interest at a rate
of 8 per cent per annum with 15 per cent increase of the mesne-profit after
three years from the month of February, 2006 till December, 2010.
So far as C.S. 42 of 2006 is concerned, tenancy in question in respect
of part of third floor of the premises no. 15, Park Street, Kolkata - 700016,
Mr. Sinha (as His Lordship then was) calculated mesne-profit at a rate of Rs.
37.77 p per square feet per month carpet area from 01.02.2006 till
31.01.2009 and thereafter from 01.02.2009 to 31.12.2011at a rate of Rs.
43.44 p per square per month carpet area. In my consider opinion
reasonable rate of mesne-profit should be Rs. 85/- per month per square
feet carpet area along with interest at a rate of 8 per cent per annum with 15
per cent increase of the mesne-profit after three years from the month of
February 2006 till the month of December 2011.
Hence it is ordered accordingly.
Let the final decree be drawn up.'
In the Order dated 13th December 2023 it was observed as follows:
'At page 8 of the judgment, the word 30th September, 2023 shall
substitute the words "December, 2010" at the end of second paragraph and
"December, 2011" at the end of third paragraph.
The judgment may be rectified accordingly and uploaded.
GA No. 11 of 2023 stands disposed of.'
GA-12 of 2023.
'The judgment dated 6-10-2023 stands rectified to the following
extent:
1) At page 8 of the judgment the word 30th September 2023 shall
substitute the words 'December 2010' at the end of second
paragraph and 'December 2011' at the end of third paragraph.
The judgment may be rectified accordingly and uploaded.
G.A. No.12 of 2023 stands disposed of.'
In the Order dated 15th December 2023 it was observed as follows.
The Court: 'The Order dated 13th December, 2023 be rectified to the
extent that the word "30th September, 2023" appearing in the second page
as well as in the third page of the order shall be substituted by the words
"30th September, 2013". The corrections be made and uploaded in the
server.'
It will appear from the Judgment and Order dated 06-10-2023 that so
far CS. 42 of 2006 is concerned the Mesne Profit calculated by the Special
Refree was taken into consideration and thereafter findings was arrived at
and necessary observation was made. Thus the arrival of the decision of the
Mesne profit will go to show that the commencement of the period from 01-
02-2009 till 31-12-2011 as mentioned by the special refree was accepted the
period of three years after which the increase to be given effect was also
accepted. It is only with regard to the rate of increase a different opinion was
expressed and findings arrived at with the particular observation 'with 15
per cent increase of the mesne profit after three years from the month of
February 2006 till the month of December 2011' which will further clarify
that there will be 15 per cent increase of the mesne-Profit after three year
and keeping the month of February 2006, and December 2010 subsequently
modified. This will further clarify the position that the period observed by
the Learned Special Refree ie. from February 2006 till December 2010 is
accepted by the Court with increase after the expiry of 3 years from 01-02-
2006. It is only the rate of mesne profit and percentage of increase Rs. 85
per month, and 15% after 3 years is incorporated by modification in the
Judgment and Decree dated 06-10-2023.
Similarly observation made by the special Referee in C.S. No. 42 of
2006 with regard to Date of Commencement being February 2006 till
December 2011 subsequently modified is accepted by the Court with rate of
mesne profit Rs.85 per month per square feet and 15% increase after 3
years.
Thus the principle of increase after 3 years as observed by both the
Special Refrees is accepted by the Court.
The modification of the Decree by Order dated 13/12/2023, and
15/12/2023 is the last date upto which mesne profit is to be calculated. The
Order dated 13th December 2023 and 15th December 2023 is in variation
with regard to dates and not the main findings.
In the facts and circumstances this Court does not find any error on
the part of Decree holder in computing interest on the basis of increase after
3 years.
Now the point of consideration is whether GST should be included in
the claim of Decree holders.
Upon considering the decision relied upon by Learned Counsel for the
Decree-holder this Court is of the view that it is well settled that Service Tax
is to be paid by those who receives service and not by service provider.
In the instant matter Goods and Service Tax did not exist when the
Lease was entered into. However when Goods and service Tax is introduced
the recipient of Service is bound to pay the service Tax whether prospective
or retrospective as the case may be. It is held in different Judicial decisions
that while the service provider is liable to pay the service tax to the
exchequer it is entitled to recover from the recipient of service. In the instant
matter also the plaintiff/Judgment Debtor upon payment of Goods and
Service Tax to the concerned authority if imposed with regard to
occupational charge or mesne Profits shall be entitled to recover from the
Judgment Debtor in accordance with law.
Thus the Judgment and decree passed in
C.S. 72 of 2006 and C.S. 42 of 2006 on 06.10.2023 and modified on 13-12-
2023 and 15-12-2023 will exclude the GST. @ 18 % and Interest which is
Rs. 85,18,065. The interest on the basis of increase is rightly calculated by
the Decree holder. However before passing any stringent order with regard
to execution of Decree against Judgment Debtor Coal India Ltd. which is a
'Government undertaking' and 'State' within meaning of Article 12 of the
Constitution it should be given reasonable opportunity to comply the decree.
Hence the Judgment Debtor is directed to pay Rs. 5 crores which is
part of decretal sum on or before 15/11/2025.
Fix 18/11/2025 for compliance and further orders.
(Biswaroop Chowdhury, J.)
