Tripura High Court

Shri Sanjoy Chanda vs The State Of Tripura on 7 January, 2022

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                            MFA 01 OF 2019
Shri Sanjoy Chanda,
S/o Rajendra Chanda, resident of Hospital Road (extension),
P.S. West Agartala, Distt. West Tripura.
                                                              ---- Appellant.
                         Versus
1. The State of Tripura,
(Represented by the Secretary, Department of Health,
Govt. of Tripura, Civil Secretariat, P.O. Kunjaban,
P.S. New Capital Complex, Distt. West Tripura.)

2. The Medical Superintendent & Head of Office,
A.G.M.C. & G.B.P. Hospital, Agartala,
P.O. Kunjaban, Kunjaban, P.S. East Agartala,
District-West Tripura.
                                                          ---Respondents.

For Appellant(s) : Mr. Samarjit Bhattacharjee, Advocate.

For Respondent(s)        : Mr. H. Sarkar, Advocate.
Date of hearing & delivery
of Judgment and order : 07.01.2022
Whether fit for reporting : No

             HON'BLE MR JUSTICE ARINDAM LODH
                   Judgment & Order (Oral)

This is an appeal under Section 96 of the Code of Civil

Procedure, 1908 against the judgment and decree dated 02.08.2017, passed

by the learned Civil Judge, Sr. Division, Court No.1, West Tripura,

Agartala, in Money Suit No.40 of 2015.

2. The short facts are that the appellant herein was the original

defendant of the Money Suit no. 40 of 2015. The respondent-plaintiffs of Page - 2 of 8

the instant appeal were the plaintiffs of the said Money Suit. The

respondent-plaintiffs (here-in-after referred to as the plaintiffs) had

instituted the suit for realization of rent of Rs. 1,04,245/- out of the

premises occupied by the defendant-appellants (here-in-after referred to as

the defendants). The defendant was running the hospital canteen since 2009

for a rent @ Rs. 36,295/- per month. After expiry of almost three years, the

plaintiffs invited fresh Expression of Interest (for short, "EOI"). The

defendant alongwith others participated in the said "EOI". In the process of

evaluation, the defendant was selected as a successful bidder. Upon his

selection, the plaintiff no. 2 issued Office Order dated 29.08.2012 in favour

of him asking him to start the canteen by 01.09.2012. The defendant vide

communication dated 31.08.2012 had accepted the offer. However, he

stated in the said communication that due to lack of proper and adequate

infrastructure in the canteen, it was not possible for him to start the canteen

w.e.f. 01.09.2012. He further stated that complete renovation of the canteen

was required before effecting the new accepted rate. He has further

requested to the plaintiff no. 2 to allow him to continue the operation of the

canteen at the existing old rate/terms and conditions till renovation of the

same. The defendant also expressed his inability to start operation and

management of the college canteen due to lack of required infrastructure

i.e. there was no kitchen, no water, etc. To develop the infrastructure, he

requested the plaintiff no. 2 to allow him 15 days time since he had Page - 3 of 8

received the offer only on 31.08.2012. The defendant also requested the

plaintiffs by communication dated 31.08.2012 to consider the rate of

imposing penalty @10% in case of delay of depositing monthly revenue

within 1st week of every month. The defendant made further

communication dated 30.09.2014 (Exhibit-J) whereby and whereunder he

requested the Medical Superintendent i.e. plaintiff no. 2 to relieve him from

the canteen premise which was occupied by him. In the said

communication, he stated that despite eight months had elapsed over since

submission of his letter dated 18.01.2014, he could not receive any

response from the plaintiff no. 2. It was further stated that he was directed

to continue with the canteen service until the next tender is floated. It was

further stated that he had followed the said direction of plaintiff no. 2. He

further stated that new tender was already floated and that was opened too.

Thereafter, there was handing over and taking over of the hospital canteen

between plaintiff no. 2 and the defendant which had taken place on

28.11.2014.

3. What is gathered from the pleadings of both the plaintiffs and

the defendant that during the intervening period, the defendant did not pay

the rent for the canteen premise wherefrom he was operating his services.

Despite repeated requests, the defendant did not pay the rent either at the Page - 4 of 8

old rate of Rs. 36,295/- nor the new rate of Rs. 1,04,245/-. Ultimately, the

plaintiffs had filed the instant suit.

4. I have heard Mr. S. Bhattacharjee, learned counsel for the

appellant-plaintiff as well as Mr. H. Sarkar, learned counsel for the State-

respondents i.e. the plaintiffs.

5. Mr. Bhattacharjee, learned counsel has submitted that the

plaintiffs cannot claim the rent at the new rate for the reason that they did

not provide the specified premises for running the canteen at GBP hospital

and AGMC college, which would be evident from his communication

dated 31.08.2012 (Exhibit-G). Mr. Bhattacharjee, has invited my attention

to a portion of the cross-examination where the plaintiff no. 1 who adduced

evidence on behalf of the plaintiff stated that the communication dated

29.08.2012 was issued in respect of two canteens out of which one was

college canteen and another was for hospital canteen. In view of such

submissions, in my opinion, the acceptance letter issued by the defendant is

relevant, which is quoted here-in-below:-

       "To,                                          Dated, Agartala, the 31st August, 2012
       The Medical Superintendent,
       GBP Hospital & Head of Office
       AGMC, Agartala

Sub:- Acceptance of the offer for operation and management of College Canteen & Hospital Canteen of AGMC & GBP Hospital, Agartala- regarding Ref:- Your Letter no. F.2(70)-AGMC/S&P/2009-10/6820-27 dated 29.08.2012. Sir, With reference to the subject cited above, I am to inform you that I hereby accept your offer for operation and management of college Canteen & Hospital Canteen of AGMC & GBP Hospital, Agartala. However, neither canteen can be started Page - 5 of 8

w.e.f. 01.09.2012 in the new accepted rate as specified in your above referred letter on account tof the following reasons:-

1. I have been facing acute shortage of drinking/usable water required for smooth running of the hospital canteen (GBP Hospital Canteen) for a considerable period of time. The quantity of water being supplied to the canteen is far from the daily requirement of water to run my canteen. Moreover, there are leakages in the zinc covered portion of roof of the canteen. Furthermore, proper plastering of floor is also required for providing better service to the customers. In a nutshell, complete renovation of the canteen is required before effecting the new accepted rate. In the meantime, your good office is requested to kindly allow me to continue operation of the canteen in the existing old rate/terms and conditions till renovation of the same.

2. Regarding operation and management of the College Canteen cited above, the minimum infrastructure required for running the canteen is not available e.g. there is no kitchen, no water and some of the existing fans are not working. On the other hand, the minimum infrastructure required to be developed by me for running the canteen will require at least 15 days. Since, I have received the said letter only today, the aforementioned infrastructure cannot be arranged overnight by me.

3. Regarding imposing of penalty @10% in case of delay of depositing monthly revenue within the first week of every month, I am to request you to apply the existing rate prevailing in nationalized banks in case of delay in depositing the said revenue by me within the stipulated time as mentioned in your aforementioned letter.

I would also like to bring to your kind notice that our business is being tremendously hampered by free movement/entry of unauthorized hawkers within the hospital premises. Not only this, another canteen is also being run illegally behind the SS Block of the hospital, which is a matter of great concern of me as the said canteen is also hampering my business tremendously. Therefore, your kind attention is drawn towards these issues for your kind consideration in view of huge monthly revenue which I have to pay for running my business in your institute.

Moreover, I am also to bring to your kind notice that the security personnel restrict the entry of patient party of SS Block to enter into the main hospital block (Canteen Block) while collecting food from the canteen. Hence, neither the patient nor the patient party can have free access to the canteen which also hampers my business to a great extent.

Under the circumstances, your attention is drawn to the above facts for your kind consideration and needful, please.

Thanking you in anticipation"

6. On bare reading of the said communication, it comes to light

that the defendant had specifically stated that complete renovation of the

GBP hospital canteen was necessary and till then he had sought for some

time to renovate the same. Furthermore, he requested the plaintiffs to allow

him to pay rent at the old rate till such renovation.

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7. The defendant also brought it to the notice of the plaintiffs that

to operate and manage the college canteen, even minimum infrastructure

was not available. There was no kitchen, no water, even some fans were

not working and to remove those defects, he requested the plaintiffs to

allow him 15 days time. The plaintiffs did not respond to the said

communication. The plaintiffs neither accepted nor rejected the request

made by the defendant. Further, the defendant was allowed to operate the

GBP hospital canteen. Ultimately, the canteen premise was handed over to

the plaintiffs on 28.11.2014 (Exhibit-K).

8. I have gone through the judgment passed by the learned Civil

Judge, Senior Division while decreeing the suit in favour of the plaintiffs.

The learned Civil Judge held that the defendant had expressed his inability

to run the canteen at the new rate, but, inspite of that he continued to run

the canteen. It was further observed by the learned trial court that there was

nothing on record to show that the defendant's claim as to his inability to

run the canteen vide Exhibit-G was approved or accorded sanction by the

plaintiffs rather he was requested vide Exhibits 2,3,4 and 5 to deposit the

rent. The learned trial court further observed that it was not on record that

the defendant was ever requested by the plaintiff to run the canteen in the

public interest though he was recurring loss. It is a fact that the defendant

has not led any evidence to justify his statement that he was running the Page - 7 of 8

business with recurring loss. The learned trial court held that the "EOI" was

not disputed by the defendant and the work order which was issued by the

plaintiff no. 2 was accepted by the defendant. In those circumstances, the

learned trial court held that the defendant was liable to pay the rent for 27

months @ Rs. 1,04,245/- per month and decreed the suit in favour of the

plaintiffs.

9. On perusal of the records, particularly, Exhibits 2, 3, 4 and 5, I

also find that the defendant never disputed the rent claimed by the

plaintiffs. For convenience, last communication made by the plaintiff no. 2

dated 12.02.2014 may be reproduced here-in-below in extenso:-

                              "No. F.2(70)-AGMC/S & P/2009-10/              REMINDER-IV
                                                                             MOST URGENT
                                     Government of Tripura

Office of the Medical Superintendent & Head of Office AGMC & GBP Hospital, Agartala Dated, the 12th February, 2014 To, Sri Sanjoy Chanda, Prop: of College Canteen & Hospital Canteen AGMC & GBP Hospital, Agartala Sub:- Non-Receipt of Lease Rent of College & Hospital Canteen Ref:- Letter no. F.2(70)-AGMC & (S&P)/2009-10 dated 01.07.2013 & letter No. F.2 (70)- AGMC & (S&P)/ 2009-10 dated 30.09.2013 & dt. 06.12.2013. Sir, It has been observed that inspite of repeated intimation you have not deposited any amount of Rent and consumption of Electric Charges of College Canteen & Hospital Canteen, resulted loss of Government Revenue in original amount as well as loss of interest and you have violated the terms and conditions of EOI dated 26.05.2012 Hence, you are directed to deposit Rent amounting to Rs. 11,96,665/- (Rs. Eleven lakh Ninety six Thousand six Hundred sixty five) only for College & Hospital Canteen and consumption of electric Charges from August 2012 up to December, 2014 within 4 (four) days from the date of receipt of the letter, otherwise action will be taken as per rule deemed fit without any further communication from our end.

This is four your information and immediate necessary action".

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10. There is no evidence on record that the defendant had made

any attempt to renovate the canteen premise in the light of his

communication dated 31.08.2012 addressed to the plaintiff no. 2. Further,

the defendant has not brought on record any such materials from which it

can be garnered that the plaintiffs had ever deviated from the terms of

"EOI" or they imposed any new terms and conditions upon the defendant

to run canteen under "EOI". In view of this, I find no reason to interfere

with the findings returned by the learned trial court. Accordingly, the

instant appeal is devoid of any merit, and hence, dismissed.

However, there shall be no order as to costs.