Calcutta High Court
Punjab National Bank vs Kamini Kapoor on 22 April, 2014
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present: The Hon'ble Justice Mr. Ashim Kumar Banerjee
And
The Hon'ble Justice Mr. Arijit Banerjee
APD 282 of 2013
CS 39 of 2012
GA 181 of 2014
Punjab National Bank
-Vs.-
Kamini Kapoor
With
APD 1 of 2014
CS 39 of 2012
Kavita Vyappar (P) ltd.
-Vs.-
Kamini Kapoor & Anr.
For the Punjab National Bank : Mr. Joydip Kar, Adv.
Mr.Siddhartha Banerjee, Adv.
Mr. Sandip Bose, Adv.
For Kamini Kapoor : Mr. Jishnu Saha, Adv.
Mrs.Sulagna Mukharjee, Adv.
Mr. Asish Mukharjee, Adv.
For Kavita Vyappar (P) Ltd. : Mr. Abhrajit Mitra, Adv
Mr. Jishnu Chowdhury, Adv.
Mrs. Noelle Banerjee, Adv.
Mr. Amitabh Ray, Adv.
Heard on (APD 282 of 2013): 28th February, 2014 & 6th March,
2014
Heard on (APD 01 of 2014) : 12th March, 2014
Judgment on : 22/04/2014
Arijit Banerjee, J.
These two appeals arise out of the same judgment and decree dated 23rd April, 2013 passed by the Hon'ble First Court in CS No. 39 of 2012 (Kamini Kapoor-vs.-Punjab National Bank). Accordingly, these two appeals have been heard analogously and are being disposed of by this common judgment.
Re: APD 282 of 2013 (Punjab National Bank-vs.-Kamini Kapoor) Kamini Kapoor (in short Kamini) and her husband, since deceased were lessees in respect of total of approximately 1510.40 sq. ft. area on the ground floor of the premises No. 8, Ejra St. Calcutta-700001 (hereinafter referred to as the "Suit Premises"). Under the lease deeds they had the power to sublet. Accordingly, they executed deeds of sub-lease dated 1st February, 1984 in respect of the suit premises in favour of Punjab National Bank (in short the Bank). The sub-leases were for a period of 19 years or so and were to expire on 13th November, 2002. The leases in favour of Kamini and her husband were to expire also on 13th November, 2002.
One Kavita Vyappar Pvt. Ltd. purchased the suit premises on or about 31st January, 2008 from the erstwhile owners. Kavita is the appellant in the second appeal with which we will deal separately in this judgment.
Although the lease in favour Kamini came to an end in November 2002 she continued to be in possession of the suit premises. Similarly, although the sub-leases in favour of the Bank expired in November, 2002, the Bank continued to occupy the suit premises. The Bank paid monthly rent to Kamini last in March 2008 in the sum of Rs. 21,849/-.
Since Kavita purchased the suit premises and became the owner thereof, the Bank entered into negotiation with Kavita and came to an arrangement under which the Bank continued to occupy the property ostensibly under Kavita. This new arrangement was made on or about 1st August, 2010. The Bank's justification was that the head lease in favour of Kamini having expired in November, 2002, Kamini did not have any further right, title or interest in respect of the suit premises.
On 30th June, 2011, Kamini issued a notice under Section 106 of the Transfer of Property Act, 1882 to the Bank asking the Bank to vacate the property and deliver possession thereof to Kamini by 15th July, 2011. The Bank paid no heed to such notice and continued to occupy the suit premises.
In the aforesaid factual matrix Kamini filed CS No. 39 of 2012 in this Court seeking eviction of the Bank from the suit premises and other consequential reliefs. In the suit Kamini took out an application under Chapter XIII A of the Original Side Rules of this Court for final judgment and decree. By a judgment dated 23rd April, 2013, which is impugned herein, the Learned Judge allowed such application and passed a final eviction decree against the Bank.
A point of lack of pecuniary jurisdiction of this Court to entertain the suit was sought to be argued on behalf of the Bank before the Learned Judge, but the same was negated by the Learned Judge and in our view rightly. Kamini's claim in the suit included a decree for Rs. 8,73,960/- for arrear of rent from 1st April, 2008 till 15th July, 2011 along with decree for mense profits at the rate of Rs. 2lakh per month on and from 16th July, 2011. This argument of lack of pecuniary jurisdiction was one made in despair. The said point, however, has not been urged before us.
The Learned Judge relied on the decisions in Vithal Bhai Pvt. Ltd-vs.-Union Bank of India reported in AIR 1992 Cal 283, Bashu Deo-vs.-Balkishan reported in (2002) 2SCC 50, E Parashuraman(dead) By Lrs-vs.- Doriswami (dead) By LR reported in 2006 1SCC 658 and Bansraj Laltaprasun Mishra- vs.-Stantey Parkar Jones reported in 2006 3SCC 91, of all which elucidate the principle of estoppel enshrined in Section 116 of the Evidence Act, held that the Bank was estopped from questioning Kamini's title to the suit premises. Upon the expiry of the sub-lease in its favour, the Bank had no defence to Kamini's claim. Accordingly, the learned Judge passed a final judgment and decree for eviction.
Before us, appearing for the Bank Mr. Joydip Kar urged essentially two points. Firstly, he contended that out of 3,200 sq. ft. that is in the possession of the Bank, about 1,500 sq. ft. is being held under two sub-leases granted by Kamini and her husband P.N. Kapoor (since deceased). He urged that P.N. Kapoor's son being a legal heir has become a co-lessor but he was neither party to the notice to quit nor a party to the suit and hence, the suit is not maintainable. He relied on a Gujarat High Court decision in the case of Nanalal Giridharlal reported in AIR 1973 Guj 131 paragraphs 9, 10 and 11. In that case a Full Bench of the Gujarat High Court held that where two or more co-owners have granted a periodic tenancy, it can be determined only by a notice to quit given by all co-owners. However, it is not necessary that it should be signed by all co-owners. It is sufficient if it is given by someone acting as an agent on behalf of the co-owners. The agent may be one of the co-owners or may be a third person.
Mr. Kar then relied on a decision of our Court in the case of ShantilalDulisha Shah reported in AIR 1981 Calcutta 413 paragraphs 16 and 17 wherein it was held that where a person receiving the payment was not the person who let the payer into possession, but someone who is claiming title by succession, the mere act of payment of rent, without more, is not conclusive and does not estop the payer from afterwards repudiating the payee's title if he can explain away the payment by showing that he had made it in mistake, ignorance or incomplete knowledge of the circumstances of the payee's title or any other material fact. We do not see how this decision helps Mr. Kar.
The second point urged by Mr. Kar is that the notice to quit suffers from the incurable infirmity of vagueness of description of property. He contended that it is not clear from the notice as to possession of exactly which portion out of 3,200 sq. ft. under the Bank's occupation, is being claimed by Kamini. With respect, there is absolutely no merit in this contention. The deeds of sub-lease executed by Kamini and her husband (since deceased) in favour of the Bank, in the schedule thereto describe and delineate with sufficient particularity the portions that were being sublet to the Bank. There is no scope for any confusion in anybody's mind as regards the exact portion of which recovery of possession is being claimed. Mr. Kar cited two decisions reported in AIR 1988 Delhi 174 and 1985 Volume 1 SCC 14 to substantiate his contention that vagueness as regards the rented area in a notice to quit makes the notice bad and any proceeding on the basis of such notice would also be bad. We do not feel it necessary to discuss these two decisions since, in fact, we find that there is no confusion in that regard.
Responding to Mr. Kar's first point, Mr. Jishnu Saha, learned Counsel appearing for Kamini submitted that P. N. Kapoor died leaving a Will under which Kamini was the sole legatee. The Will has since been probated and hence Kamini is the sole lessor vis a vis the Bank. He further submitted that in any event one of the lessors can maintain an eviction suit. In support of this contention Mr. Saha relied on the decision in the case of Mahindar Prasad Jain reported in 2006 2 SCC 724 paras 9, 10 and 11. In that case, the Hon'ble Apex Court referring to its earlier decision in the case of India Umbrella MFG Co. reported in 2004 3 SCC 178 held that one of the co-owners can maintain an eviction suit in law and non-joinder of the other co-owners is not fatal to the action.
In response to the second point urged by Mr. Kar, Mr. Saha produced the original deed of sub-lease executed by Kamini in favour of the Bank and from the plan annexed thereto demonstrated that the leased out area was identified with sufficient precision. Mr. Saha also relied on two Apex Court decisions reported in 2003 2 SCC 330 and 2007 13 SCC 421 in support of his contention that a decree should not suffer for mis-description of property and the Court should, if necessary, correct the decree in exercise of its power under Section 152 of the Code of Civil Procedure. We do not feel it necessary to discuss two decisions at length since we have already said above that we are satisfied that the area in dispute is precisely identifiable.
We have considered the rival contentions of the parties. We are not impressed with either of the points urged by Mr. Kar. There is no vagueness in the notice to quit. Even assuming Kaminiis only a co-lessor, the suit will still be maintainable at her instance. The Bank cannot question the title of Kamini as rightly held by the learned Judge.
Mr. Kar also cited an unreported Division Bench decision of our Court rendered in the case of Assam Co. (India) Ltd.-vs.- NumazarDorab Mehta wherein this Court reiterated the principles that the Court should follow in granting or refusing leave to defend a summary suit. We do not feel this decision helps Mr. Kar's client at all since according to us the Bank has absolutely no defence to Kamini's claim.
Notice under Section 106 of the Transfer of Property Act having been duly served on the Bank after expiry of the period of sub-lease and it being nobody's case that the Bank has the protection of the West Bengal Premises Tenancy Act, 1997, the Bank is bound to deliver up vacant possession of the suit premises to Kamini.
We find no reason to interfere with the judgment and decree passed by the learned First Court. The appeal fails and is dismissed. There will be no order as to costs.
Re: APD 1 of 2014 (Kavita Vyappar-vs.-Kamini Kapoor) Kavita Vyappar Pvt. Ltd. (in short Kavita) is the present owner of the suit premises. It claims to have become the owner by reason of execution of a deed of conveyance dated 31st January, 2008 in its favour by the erstwhile owners. Kavita was not a party to the proceeding before the Hon'ble First Court. However, Kavita seeks to assail the Hon'ble First Court's judgment dated 23rd April, 2013 in G.A. No. 1894 of 2012 (C.S. No. 39 of 2012). Ordinarily, an appeal at the instance of a non-party to the Trial Court proceeding would not be maintainable. When this appeal was admitted by us by our order dated 28th January, 2014 we had left the question of maintainability open.
Appearing for Kavita, Mr. Abhrajit Mitra, learned Counsel urged primarily three points.
Firstly, he argued that the suit premises measuring about 15 hundred sq. ft. which is a part of a bigger area being 3,200 sq. ft., is not demarcated or physically partitioned. It is one big open area. There are four leases in respect of the said 3,200 sq. ft.. Without partition by metes and bounds a co-lessor cannot maintain a suit for eviction for the entire area. In support of his contention he relied on the Hon'ble Apex Court's decision in the case of Sk. Sattat Sk. Md. Reported in 1996 6 SCC 373. In paragraph 37 of the said judgment the Hon'ble Supreme Court has observed, but in a completely different context, that a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. He has also referred to a Full Bench decision of the Madras High Court in the case of M/s. Latif Estate Line India Ltd. Reported in AIR 2011 Madras 66. This case deals with cancellation of a registered conveyance. We fail to appreciate how this case is relevant in the context of the present case.
Secondly, Mr. Mitra argued that the estoppel envisaged by Section 116 of the Evidence Act is not a bar as against the Bank vis a visKamini. In this connection, he has relied on three decisions, namely, Union Bank of India-vs.-Vithal Bhai Pvt. Ltd. reported in AIR 2002 Cal 144, D. Satyanarayana-vs.-P. Jagadish reported in 1987 SC 2192 and Russel Properties & Estates-vs.- Indian Aluminium Co. Ltd. & Ors. reported in 2011 (1) CHN
322. We fail to appreciate as to how it lies in the mouth of Kavita to urge the aforesaid two points. These are points which perhaps the Bank could have argued. We shall not permit Kavita to take up the cudgels for the Bank.
Finally Mr. Mitra has argued that Kamini has impliedly surrendered her tenancy in favour of Kavita by allowing her Title Suit No. 2597 of 2008 in the City Civil Court at Calcutta to be dismissed. The said suit was one for declaration of tenancy and injunction and Kavita was a defendant in the said suit. In support of his contention of implied surrender Mr. Mitra has relied on a decision in the case of Kamal Amal Krishna Aditya-vs.-Ganesh Chandra Das reported in 1998 (1) CHN 521. While in some cases from the conduct of the tenant it may be possible to infer that the tenant has impliedly surrendered his tenancy in favour of the landlord, we do not find any such conduct on the part of the Kamini in the instant case. On the contrary, she has sought to assert her right as tenant by filing the aforesaid suit in the City Civil Court at Calcutta. We are told that steps are being taken to restore the said suit.
Since we permitted Mr. Mitra to advance his arguments in this appeal, we have briefly noted his submissions above. However, we are unable to accept any of his submissions.
Taking up the more fundamental point of maintainability of this appeal which goes to the root of the matter, we are of the view that the appeal is not maintainable. Kavita is a stranger to the instant litigation. It was not a party before the Hon'ble Apex Court. No order has been passed by the Hon'ble First Court which can be said to have adversely affected or detrimental to the rights of Kavita. By reason of the Hon'ble First Court's order Kavita has not lost anything which it had. It is only in such cases, which are far and few and where non-party's valuable right is jeopardized by reason of an order, that the Appeal Court grants leave to appeal from such order although he was not a party before the Trial Court. We see this appeal has an attempt on the part of Kavita to obtain some sort of an order against Kamini in a lis between Kamini and the Bank. In our view, this is not permissible and such attempts should not be encouraged. If Kavita has any cause of action against Kamini it is at liberty to approach the appropriate forum for legal redress.
For the reasons afore stated this appeal fails and is dismissed with costs assessed at Rs. 10,000/-.
I agree.
(Ashim Kumar Banerjee, J.) (Ashim Kumar Banerjee, J.) (Arijit Banerjee, J.)