Calcutta High Court (Appellete Side)
Sudipto Mukerjee & Anr vs Kabra Marble Corporation & Ors on 14 December, 2018
Author: Biswajit Basu
Bench: Biswajit Basu
1 06,SL,Ct.21. 14.12.2018
AJ.
C.O 2960 of 2018 Sudipto Mukerjee & Anr.
-Vs-
Kabra Marble Corporation & Ors.
Mrs. Shohini Chakraborty, Ms. Prajaaini Das.
... for the petitioners.
Mr. Pradyumna Sinha, Mr. Prabir Banerjee.
.......for the opposite parties.
The present revisional application under Article 227 of the Constitution of India is at the instance of the decree-holders in a suit for ejectment under Section 6 of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as "the said Act'' in short) and is directed against Order No. 19 dated February 09, 2018 in Ejectment Execution Case No. 6 of 2017.
The petitioners filed a suit for ejectment of the opposite parties from the suit property, inter alia, on the grounds of default in payment of rent and causing damage to the suit property.
The opposite parties entered appearance in the suit and filed an application under Section 7(2) of the said Act. The learned Trial Judge by the order dated January 06, 2011 disposed of the said application of the opposite parties holding that the opposite parties are defaulter in payment of rent and assessed the arrears of rent at Rs. 7,16,253.88/-. The opposite parties were directed to liquidate the said arrear rent by six equal monthly installments 2 with an option to pay the said amount at a time also. The opposite parties did not comply with the said order.
The suit was subsequently decreed ex-parte on August 19, 2011. The opposite parties applied for setting aside ex-parte decree which was registered as Misc. Case No. 13 of 2011. The learned Trial Judge allowed the said Misc. Case by the order dated May 13, 2014 subject to payment of costs of Rs. 1000/-. The ex-parte decree was set aside.
Thereafter by the order dated November 30, 2015 the defence of the opposite parties against delivery of possession was struck out under Section 7(3) of the said Act for non-compliance of the order passed under Section 7(2) of the said Act and the suit was again decreed ex-parte on December 22, 2016.
The opposite parties filed an application for setting aside the said second ex parte decree, which has been registered as Misc. Case No. 119 of 2017.
The decree-holders, in the meantime, put the decree into execution, which gives rise to Execution Case No. 6 of 2017.
The opposite parties in the said execution case applied for stay of all further proceedings of it during the pendency of the said Misc. Case No. 119 of 2017.
The learned Trial Judge allowed such application of the opposite parties by the order impugned on condition that the opposite parties shall pay a sum of Rs. 15,000/- per month on account of occupational charges from the date of decree i.e. December 22, 2016 till January 31, 2018 by April 30, 2018 and 3 shall also pay current occupational charges @ Rs. 25,000/- per month within 15th day of each succeeding calendar month.
Mrs. Chakraborty, learned advocate appearing on behalf of the petitioners submits that the suit property is a go-down situated in a commercially viable area of Kolkata and is measuring about four thousand square feet. She further submits that as per the market rate of rent prevalent in the said area, the suit property can fetch monthly rent at least of Rs. 1,50,000.
In support of her such contention she draws my attention to an unreported judgment of the Hon'ble Division Bench of this Court passed on March 11, 2016 in S.A.T. No. 30 of 2016 in the matter of M/s. Hirjee Auto Centre -versus- dinesh Kumar Agarwalla in respect of the premises no. 1/2, Chetla Road, Police Station: New Alipore, Kolkata - 700023 which is situated in close vicinity of the suit property. The Hon'ble Division Bench in the said judgment and order fixed occupational charges of the suit premises of the said appeal which is a go-down measuring about 1600 sq. ft. at Rs.50,000/- per month. She contends that the present suit property is a go-down measuring about 4000 sq. ft. situated in the same area with better amenities and facilities for it's commercial use.
She, therefore, submits that the occupational charges fixed by the learned Trial Judge is totally disproportionate with the market value of the property and the amount of monthly rent which the suit property can fetch. 4
On the other hand, Mr. Sinha, learned advocate appearing on behalf of the judgment-debtors/opposite parties submits that the suit property is being used as go-down, which is open to the sky. Therefore, the amount of occupational charges fixed by the learned Trial Judge is just and proper.
Heard the learned advocates for the parties, perused the materials on record.
It is not in dispute that the suit property is situated in a commercially viable area of the city. The assessment of the occupational charges by the Hon'ble Division Bench in the decision relied on by Mrs. Chakraborty can be considered as an yardstick to assess the occupational charges of the suit property since the suit property and the property of the above referred judgment are situated in the same locality and both the properties are being used for commercial purpose. In the said judgment occupational charges of a property measuring about 1600 square feet was assessed at Rs. 50,000/- per month meaning thereby @ Rs. 31.25 per square feet and if the said rate is applied in respect of the suit property which is measuring about 4000 square feet, the monthly occupational charges would be Rs. 1,25,000/- per month.
Therefore, assessment of the occupational charges of the suit property @ Rs. 1,00,000/- per month would not be unjust. On the contrary same would not be in a lesser side.
The occupational charges of the suit property is, therefore, assessed at Rs. 1,00,000/- per month, which is payable from the month of May, 2018. The opposite parties shall deposit the arrear occupational charges for the period of 5 May, 2018 to December, 2018 @ Rs. 1,00,000/- per month with the executing Court within fortnight from the day.
The opposite parties shall thereafter deposit the current occupational charges @ Rs.1,00,000/- per month with the executing court from January 2019 and first of such deposit shall be made within January 7, 2019 and thereafter the opposite parties shall keep on depositing the said amount with the executing Court within seventh of each succeeding month for which it falls due.
So far the payment of arrear occupational charges fixed by the learned Trial Judge @ Rs. 15,000/- per month for the period from the date of decree i.e. December 22, 2016 till January, 2018 is concerned, this Court is not interfering with the said part of the impugned order.
Mr. Sinha, learned advocate appearing on behalf of the opposite parties informs this Court that his clients have already deposited the said amount with the executing Court.
The executing court shall invest and the aforementioned amounts already deposited by the opposite partis and to be deposited by the opposite parties to any best interest bearing fixed deposit scheme with a nationalized bank.
There shall be an unconditional stay of all further proceeding of Title Execution Case No. 6 of 2017 pending before the learned Civil Judge (Senior Division), Alipore Dist- 24 Parganas South for a period of fortnight from this date and in the event the opposite parties deposit the aforementioned amounts 6 within the time stipulated hereinabove the stay shall continue till the disposal of the Misc. Case No. 119 of 2017.
It is made clear that in default of deposit of any of the aforementioned amounts within the time stipulated by this order the stay shall stand automatically vacated and the decree under execution shall be executable at once.
The learned Trial Judge is requested to expedite the hearing of the Misc. Case No. 119 of 2017 and shall conclude the same within three months from the date of communication of this order without granting any unnecessary adjournment to either of the parties.
With the above observation, the revisional application being C.O. 2960 of 2018 is allowed.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)