Calcutta High Court
Ajay Kumar Rathod vs Ranbaxy Laboratories Ltd on 7 July, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
GA 2356 OF 2012
WITH
CS 151 of 2010
AJAY KUMAR RATHOD
Versus
RANBAXY LABORATORIES LTD.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 7th July, 2014.
Mr. J.Chowdhury, Advocate Mr. Chayan Gupta, Advocate ...for the petitioner The Court :- The defendant is not represented despite the matter having appeared in the warning list. The suit has been decreed and the determination of the mesne profits was left to a special referee. The plaintiff challenges only a portion of this special referee's report on the ground that the special referee erred in finding the plaintiff entitled to mesne profits till a particular date though the possession of the property in question was not handed over to the plaintiff till much later.
2
The special referee's report of March 15, 2012 provides for mesne profits for two periods: December 1, 2009 till December 31, 2010 and January 1, 2010 till December 31, 2011.
It is the plaintiff's assertion, which remains uncontroverted in the defendant's absence, that the possession in respect of the premises was made over to the plaintiff on July 23, 2012 upon the keys thereto being handed over to the plaintiff. However, the plaintiff complains that the special referee has not awarded mesne profits to the plaintiff for the period January 1, 2012 to July 23, 2012, presumably since the special referee inferred from the correspondence exchanged between advocates for the parties that the defendant was willing to hand over possession of the property to the plaintiff in January, 2012 but the plaintiff declined to accept the same.
The relevant letters appear as part of the annexure F to the petition. On January 6, 2012, advocate for the plaintiff called upon the defendant to make over possession for the decretal premises in terms of the decree. On January 11, 2012, advocate for the defendant wrote back that the keys to the premises could be handed over on January 16, 2011 (obviously, it was a mistake and it meant January 16, 2012) subject to "mutually acceptable modalities" being worked out. By a letter dated January 11, 2012, though erroneously marked as December 11, 2012, advocate for the plaintiff said that the plaintiff was willing to take delivery of possession of the premises whenever the defendant would hand over the same but protested the use of the expression "mutually acceptable modalities". By a further letter of January 16, 2012, advocate for the defendant informed the 3 plaintiff that the defendant would file an application in Court for delivering the keys to the plaintiff.
It is evident that the plaintiff was entitled to the immediate possession of the property by virtue of the decree and the defendant failed to make over possession thereof to the plaintiff prior to July, 2012. In such circumstances, the plaintiff ought to have been found entitled to mesne profits at the rate assessed by the special referee till the actual date of delivery of possession of the property by the defendant. Since the plaintiff claims the date of delivery of possession is July 23, 2012 and such statement remains uncontroverted by the defendant GA 2356 of 2012 is disposed of by modifying the special referee's report by providing for the plaintiff to be paid mesne profits in terms thereof till July 23, 2012 instead of December 31, 2011.
It is clarified that for the period between January 1, 2012 and July 23, 2012 the plaintiff will be entitled to mesne profits at the rate assessed by the special referee for the period immediately preceding such period.
There will be no order as to costs.
Certified website copy of this order, if applied for, be urgently supplied to the parties, subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) GH.