Calcutta High Court
Rajeev Daga & Anr vs Ambalal Sarabhai Enterprises Ltd. & Ors on 11 August, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
GA No. 2061 of 2014
WITH
CS No. 297 of 1989
AND
GA No. 2118 of 2014
WITH
CS No. 297 of 1989
RAJEEV DAGA & ANR.
Versus
AMBALAL SARABHAI ENTERPRISES LTD. & ORS.
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 11th August, 2014.
Appearance :
Mr. Swarneandu Ghosh, Adv.
Mr. Deep Nath Roy Choudhury, Adv.
Mr. Pushan Kar, Adv.
Mr. Aniruddha Sinha, Adv.
...for the defendants Mr. Jishnu Saha, Adv.
Mr. Ashish Mukherjee, Adv.
Ms. Sulagna Mukherjee, Adv.
...for the plaintiff The Court : Two applications are taken up together.
G.A. No. 2061 of 2014 is an application at the instance of the defendant No. 1 challenging the report of the Special Referee quantifying the mesne profit in the suit.2
The defendant No. 1 claims that mesne profit is payable by a person who is in wrongful possession of a property. It is submitted on behalf of the defendant No. 1 that, it was not in wrongful possession of the suit property for the period between October 21, 1993 when a Special Officer appointed at the behest of the plaintiffs took physical possession of the suit property till April 25, 2014 when Special Officer made over the physical possession of the suit property to the plaintiffs.
It is submitted on behalf of the defendant No. 1 that, the directions contained in the judgment and decree dated July 15, 2013 is obiter dicta so far as it relates to quantification of mesne profit for the period from May, 1986 till the plaintiff received possession of the suit property is concerned.
In support of the contention that a person not in wrongful possession of a property cannot be asked to pay mesne profit, reliance is placed on All India Reporter 1924 Calcutta page-1010 (Chhaganmull Agarwalla & Ors. Vs. Amanathulla Mohammad Prodhan & Anr.) as also All India Reporter 1986 Calcutta page-393 (Gokul Chandra Seal Vs. M/s. Atlas and Union Jute Press Co. Ltd.).
It is submitted on behalf of the defendant No. 1 that, the issue as to whether the defendant No. 1 is liable to pay mesne profit for the period from May, 1986 is still open. Such issue has not been decided by the judgment and decree dated July 15, 2013. In support of such contention reliance is placed on Order XX Rule 12 of the Code of Civil Procedure, 1908, 1989 Vol. I Supreme Court Cases page-101 (Municipal Corporation of Delhi Vs. Gurnak Kaur) and All India 3 Reporter 2005 Supreme Court Cases page-2677 (M/s. Zee Tele Films Ltd. Vs. Union of India).
On behalf of the plaintiffs it is submitted that, the issue as to whether or not the defendant No. 1 was not in wrongful possession of the suit premises for the period on and from May, 1986 was not raised in the suit. The written statement in the suit was not amended. The issue sought to be raised now was not raised at the trial of the suit. The suit was decreed finally so far as eviction of the defendants were concerned on July 15, 2013. The decree required quantification of the mesne profit on and from May 1986 till the plaintiff received possession. The period for the mesne profit was specified. No objection was taken then. Therefore, it is submitted that the defendant No. 1 cannot raise the same issue today. It is pointed out on behalf of the plaintiffs that, the defendant No. 1 preferred an appeal against the judgment and decree dated July 15, 2013. The appeal Court did not interfere with the judgment and decree dated July 15, 2013. A Special Leave Petition against the dismissal of the appeal was also dismissed.
On behalf of the plaintiffs it is pointed out that, the defendant No. 1 was not out of possession on and from May, 1986. The defendant No. 1 continued to keep its articles at the suit premises and took delivery of the same at the time when the Special Officer made over possession of the suit premises to the plaintiffs. The defendant No. 1 was in possession of the suit premises through its articles for entirety of the period.
The plaintiffs rely upon Section 97 of the Code of Civil Procedure, 1908. It is submitted that the judgment and decree dated July 15, 2013 so far 4 as it relates to a decree for eviction the same has become final and that, the appeal preferred against the same was dismissed with the Special Leave Petition being also dismissed. So far as the quantification of the mesne profit is concerned the judgment and decree dated July 15, 2013 invokes provisions of Order XX Rule 12 of the Code of Civil Procedure, 1908 and directs the Special Officer to quantify the same. No appeal was preferred against such finding and direction. The period for which the defendants are liable to pay the mesne profit is quantified in the judgment and decree dated July 15, 2013. In support of the contention that the defendant No. 1 cannot now challenge the decree dated July 15, 2013 in view of Section 97 of the Code of Civil Procedure, 1908 reliance is placed on All India Reporter 1961 Supreme Court page-790 (Kaushalya Devi and Ors. Vs. Baijnath Sayal (Dec.) & Ors. and 1995 Vol.-V Supreme Court Cases page-631 (Mool Chand & Ors. Vs. Dy. Director, Consolidation & Ors.).
It is submitted on behalf of the plaintiffs that, mesne profit being in the nature of damages, no invariable rule cannot be there upon an assessment can be laid down. In support of such contention reliance is placed on 1979 Vol.- III Supreme Court Cases page-150 (Lucy Kochuvareed vs. P. Mariappa Gounder & Ors.).
The next application is by the plaintiffs challenging a portion of the report of the Special Referee which did not award any compensation for the arrears municipal rates and taxes and to the extent of grant of interest at the rate of 6% on the mesne profit awarded.5
It is submitted on behalf of the plaintiffs that the defendants are liable to pay municipal rates and taxes for the period on and from May, 1986 till the plaintiffs received possession of the suit premises on April 25, 2014 in accordance with the provisions of the Kolkata Municipal Corporation Act, 1980. So far as the grant of interest at the rate of 6 per cent is concerned it is submitted on behalf of the plaintiffs that, the West Bengal Premises Tenancy Act, 1956 recognized 8 1/3 per cent as the rate of interest to be awarded in respect of arrears of rent. A prayer is made for grant of interest at such rate.
On behalf of the defendant No. 1 it is submitted that, the municipal rates and taxes has not been quantified as yet and that the rate of interest being discretionary no prayer for enhancement of the same should be entertained.
I have considered the rival contentions of the parties and the materials on record in respect of the two applications.
The suit is for eviction and mesne profits. The suit was decreed on July 15, 2013. The decree directed eviction of the defendants. The decree provided for calculation of mesne profit payable by the defendants on and from May 1986 till the plaintiffs received possession. The decree was appealed against. The appeal failed. The Special Leave Petition against the order of dismissal of the appeal also failed. The issue, therefore, that the defendants are liable to pay mesne profits for the period from May 1986 till the plaintiffs received possession attained finality. The question of quantum was directed to be adjudicated by the Special Referee. The Special Referee had entered into reference in terms of the clause and has submitted his report. His report is under challenge to the extent 6 as indicated here by the parties. Significantly the rate at which mesne profit is awarded by the Special Referee is not under challenge.
So far as the first application being G.A. No. 2061 of 2014 is concerned, the parties are governed by the judgment and decree dated July 15, 2013. The appeal carried out against such judgment and decree was dismissed. The Special Leave Petition against the dismissal of the appeal was also dismissed.
The judgment and decree dated July 15, 2013 held that the defendants are in wrongful occupation of the suit premises since 1986 and that the plaintiffs will be entitled to mesne profit on and from May, 1986 till the recovery of the possession.
The period for which the defendants are liable to pay the mesne profit was quantified in the judgment and decree dated May 15, 2013. The submission of the plaintiffs that the defendants did not prefer an appeal against this portion of the judgment and decree dated July 15, 2013 is not controverted by the defendant no. 1, during the hearing of the applications.
In view of Section 97 of the Code of Civil Procedure, 1908, therefore, the defendant No. 1 is precluded from challenging the decree dated July 15, 2013 so far as it directs the Special Referee to quantify the mesne profit for the period from May, 1986 till the plaintiffs receive possession of the suit premises.
Kaushalya Devi and Ors. (supra) lays down that, if a person feeling aggrieved by a preliminary decree fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against 7 the final decree. It lays down that the preliminary decree would be taken to be correctly passed.
In Mulchand & Ors. (Supra) the Supreme Court is of the view that, if an appeal is not filed against the preliminary decree and its correctness is not challenged, it becomes final and the party aggrieved thereby will not be permitted to challenge its correctness in an appeal against the final decree.
Therefore, applying the ratio of the aforesaid two judgments the defendant No. 1 cannot be allowed to re-open the decree dated July 15, 2013 so far as it directs quantification of mesne profit for the period on and from May, 1986 till the plaintiffs received possession of the suit property.
The contention of the defendant No. 1 that, it was not in wrongful possession of the suit property on and from October 21, 1993 when the Special Referee appointed by the order dated October 20, 1993 took possession of the same is without any basis. As appointed by the learned counsel for the plaintiffs, the records demonstrates that the defendant No. 1 continued to keep its articles at the said premises during the entirety of this period. Moreover the decree dated July 15, 2013 found the defendant No. 1 to be in wrongful possession on and from May, 1986 till the plaintiffs received possession of the suit premises. In a lis between the same parties, it is not for me to re-open such issue particularly when the decree has attained its finality.
Chhaganmull Agarwalla & Ors. (Supra) deals with a suit for recovery of possession. It refers to various previous judgments and is of the view 8 that so long as the Court is in custody of an immovable property through a Receiver, a claim for mesne profit cannot be sustained for such period.
Gokul Chandra Seal (Supra) is rendered in a suit for partition. The Division Bench is of the view that, so long the lis continues, the possession of a Receiver appointed by the Court is the possession of the Court. In the facts of that case, it is held that even though the possession of the defendant was proved to be wrongful during certain period, the quality and the colour of its possession immediately changed when a Receiver appointed and the possession, even though wrongful, ceased to be wrongful from the time of such appointment and the liability to pay the mesne profits for any period thereafter automatically ceased.
The facts scenario in the instant case are completely different to that of Chhaganmull Agarwalla (supra) and Gokul Chandra Seal (supra) the instant suit is a suit for eviction of a tenant. The tenant is found to be in wrongful occupation on and from May, 1986 till the plaintiffs received possession of the suit property from the tenant.
The contention of the defendant No. 1 raised before me surprisingly, was not raised at the time of decree dated July 15, 2013. The issue that the defendants are not liable to pay mesne profits on and from October 21, 1993 when the Special Officer took possession of the suit premises was not raised at the time of the decree dated July 15, 2013. Such issue was not canvassed in the appeal preferred against the decree. I am afraid, I cannot allow the defendant no. 9 1 to revisit the decree through an application challenging the quantification of the mesne profit in terms of the decree.
After the findings that, the defendants are wrongful occupation on and from May, 1986 attained finality between the parties by virtue of the decree it cannot be said that, the quality or the colour of his possession changed with the appointment of a Special Officer on and from October 20, 1993. Even then as the facts of the case demonstrates the defendant no. 1 continued to remain in possession of the suit premises through the articles that it chose to keep at the suit premises under the actual physical possession of the Special Officer. No attempt was made by the defendant no. 1, to surrender the tenancy. No attempt was made by the defendant no. 1 to have the order appointing the Special Officer recalled or to take possession of the suit premises or to remove its possession from the suit property. It continued to stake its claim for possession for the entirety of the period.
On a binding precedent, reliance is placed on Gokul Chandra Seal (supra). Reliance is also placed on Zee Telefilms (supra) on the same issue. The aforesaid two judgements speak about when a precedent is to be considered as binding.
The two applications under consideration before me arise out of the suit in which a decree dated July 15, 2013 was passed. The parties cannot urge before me to revisit the decree dated July 15, 2013 through the mechanism of challenge to a report of a Special Referee. The parties are bound by the directions contained in the decree dated July 15, 2013. The Special Referee proceeded on 10 the basis of such directions and quantified the quantum of mesne profit payable by the defendants from the period May 1986 till April 24, 2014. No challenge is thrown to the rate of quantification. The only challenge is the period of quantification which, however is, laid down in the decree dated July 15, 2013 and which, according to me, is binding upon the parties and cannot be reopened.
In such circumstances G.A. No. 2061 of 2014 is dismissed. So far as the G.A. No. 2118 of 2014 is concerned, the Special Referee could not consider the quantification of municipal rates and taxes in view of absence of materials before him. The plaintiffs submit that the Kolkata Municipal Corporation has not raised bills for this period on the plaintiffs.
The provisions of the Kolkata Municipal Corporation Act, 1980, makes the defendants liable for a portion of municipal rates and taxes of the suit premises for the period of their occupation. There is a conclusion finding that the defendans were in occupation of the suit premises from May 1986 till April 24, 2014. The defendants are liable to pay their share of municipal rates and taxes in support of the suit premises.
In such circumstances when the Kolkata Municipal Corporation did not raise the bills for the aforesaid period on the plaintiffs, it would be appropriate to allow the plaintiffs to recover such sums from the defendants for the period that the defendants were in occupation of the suit premises, that is to say, May 1986 till April 25, 2014, Kolkata Municipal Corporation raises bill on the plaintiffs and the plaintiffs pays the same.
11
So far as the rate of interest is concerned, although the grant of a rate of interest is discretionary the special referee ought to have given reasons as to why he was awarding interest at the rate of 6 per cent instead of the statutory 8 1/3 percent in his report. Such reason is not found in the report.
In such circumstances it would be appropriate to substitute the rate of interest awarded by the special referee from 6 percent to 8 1/3 per cent .
G.A. No. 2118 of 2014 is allowed to such extent. Both the applications are disposed of. No order as to costs.
In view of the challenges made to the report by the special referee culminating in the manner as aforesaid, C.S. No. 297 of 1989 is decreed in terms of the report of the Special Referee dated June 17, 2014 as modified. The department will draw up and complete the decree expeditiously.
(DEBANGSU BASAK, J.) akb/sb1