Calcutta High Court
Abl International Ltd vs Indian Oil Corporation Ltd on 25 September, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
Before:
The Hon'ble Justice Debangsu Basak
C.S. No. 77 of 1995
ABL International Ltd.
Vs.
Indian Oil Corporation Ltd.
For the Plaintiff : Mr. Surajit Nath Mitra, Sr. Advocate
Mr. Arindam Mukherjee, Advocate
Ms. Sananda Mukhopadhyay, Advocate
Mr. U.S. Menon, Advocate
For the Defendant : Mr. Dhruba Ghosh, Advocate
Ms. Ahana Sikdar, Advocate
Hearing concluded on : June 05, 2014
Judgment on : September 25, 2014
DEBANGSU BASAK, J.
The plaintiff seeks a money decree against the defendant. The plaintiff claims that it demised centrally air-conditioned second, third, and fourth floor of premises No. 1, Shakespeare Sarani, Kolkata containing a floor area of about 55,000 square feet and non air- conditioned guest house on the ninth floor containing of about 5,000 square feet for a term of 21 years commencing from the date when the said floors are handed over the defendant.
The plaintiff claims that, a supplementary agreement duly registered dated September 12, 1961/1969 modified the terms and conditions of the earlier registered deed of lease dated November 21, 1968. The plaintiff claims that, it made over possession of the second and third floor on September 12, 1969 and possession of the fourth floor on December 18, 1969 to the defendant. According to the plaintiff, the defendant failed and neglected to take the guest house on the ninth floor. The plaintiff accepted such refusal without any claim for damages in that regard.
In paragraph 9 the plaintiff claims that, the defendant failed and neglected to join and co-operate with the plaintiff in finalization, execution and registration of an appropriate indenture of lease in respect of the second, third and the fourth floor of the said premises. According to the plaintiff, the defendant lent and advanced moneys to the plaintiff. Such moneys were recovered by the defendant in the manner laid down in the contract dated November 21, 1968 modified on September 12, 1969. The recovery by the defendant was completed in October 1987. By a letter dated October 19, 1990 the plaintiff called upon the defendant to make over possession of the second and third floor of the said premises as the agreed period of 21 years expired on September 11, 1990. The plaintiff also called upon the defendant to make over possession of the fourth floor on December 17, 1990. The plaintiff refers to the letter dated November 3, 1990 of the defendant and the contention made therein that, the defendant received possession on November 4, 1970 and, therefore, the period under the contract did not expire. By such letter dated November 3, 1990 the defendant gave notice to quit the three floors.
The plaintiff claims that, the defendant failed and neglected to deliver vacant possession of the second, third and fourth floor of the premises even on the basis of the calculation of the defendant as to the date of expiry of the lease and that, it made over possession only on May 31, 1994. Consequently, according to the plaintiff, the defendant was in a wrongful possession of the second, third and fourth floor of the premises after the expiry of September 11, 1990 for the second and third floor and December 17, 1990 for the fourth floor or alternatively on the expiry of November 3/4, 1991 in terms of the computation of the defendant until May 31, 1994. The plaintiff claims mesne profit in respect of 57,105 square feet comprised in the second, third and fourth floor at the rate of Rs.31/- per square feet per month.
The original plaintiff stood amalgamated with the present plaintiff by virtue of a scheme of amalgamation sanctioned by the Court by an Order dated September 26, 2000 as corrected by the Order dated March 26, 2001 passed in Company Petition No. 317 of 2000.
The defendant has filed a written statement and is contesting the suit. The defendant claims that, upon the building being completed on November 4, 1970 the plaintiff was made over possession of the second, third and fourth floor of the said premises. The plaintiff by a notice dated December 7, 1977 determined the tenancy and called upon the defendant to vacate the three floors. The defendant did not vacate. Thereafter, the plaintiff filed Suit No. 20 of 1978 in the Hon'ble High Court at Calcutta claiming a decree for possession which was dismissed on June 20, 1986. The defendant continued to occupy the said three floors and paid monthly rent and other charges and the plaintiff accepted the same month by month. Thereafter, by the letter dated October 19, 1990, the plaintiff called upon the defendant to make over possession of the three floors to which defendant replied by its letter dated November 3, 1990. Since the defendant received possession on November 4, 1970 the period of 21 years did not expire on October 19, 1990 and as such the defendant had no obligation to give possession on such date.
The defendant constructed a new office building at premises No. 2, Gariahat Road, Kolkata. After completion of such new building the defendant wanted to shift to the new building. The defendant, however, had some furniture and fittings lying at the suit premises. The defendant issued a notice for public auction of such furniture and fittings. Only after the same was sold, the defendant could make over possession of the suit premises to the plaintiff and as such there was some delay. In order to expedite vacating of the suit premises, the plaintiff pursuant to the notice for public auction bought the furniture and fittings at a settled price. By the letter dated May 2, 1975 the plaintiff agreed to pay the settled price of the furniture and fittings provided such price was adjusted against the arrears of municipal taxes. The defendant accepted such proposal. The defendant gave notice to quit on May 30, 1994 and vacated the premises on May 31, 1994. The plaintiff accepted vacant possession without any objection whatsoever. The factum of receipt of possession is recorded in the minutes dated May 31, 1994.
The defendant claims that, the lease was governed by the provisions of the West Bengal Premises Tenancy Act, 1956 and that the defendant was a monthly tenant in respect of the three floors of the premise. The defendant had paid the monthly rent to the plaintiff which the plaintiff had accepted. The defendant vacated the premises on its own without a decree for eviction. The claim for mesne profit by the plaintiff is, therefore, misconceived. Alternatively the defendant claims that, after the determination of the lease by the notice dated December 7, 1977 the plaintiff accepted rent from the defendant and, therefore, the defendant became the monthly tenant of the plaintiff on and from January 1978 and, therefore, the tenancy of the defendant is protected and governed by the provisions of the West Bengal Premises Tenancy Act, 1956. The claim of the plaintiff for mesne profit is excessive and not maintainable. The defendant was never a trespasser and, therefore, the claim for mesne profit is not maintainable. According to the defendant, the claim of the plaintiff for the period up to March 15, 1994 is barred by limitation.
The issues raised by the parties were settled by the Order dated September 24, 2012. The issues settled are as follows:-
(i) Is the suit maintainable in its present form?
(ii) Is the suit barred by limitation?
(iii) Is the plaintiff entitled to the decree as prayed for?
(iv) To what other relief or reliefs, if any, is the plaintiff entitled? The plaintiff examined two witnesses on its behalf. The first witness is an Executive Officer of the plaintiff and the other being a Chartered Valuer Surveyor. The defendant produced its manager as its witness.
Mr. Surajit Nath Mitra, learned Senior Advocate for the plaintiff submits that, the defence of the defendant that, the lease was terminated by the notice dated December 7, 1977 is unsubstantiated by evidence. The notice dated December 7, 1977 has not been tendered in evidence. Therefore, no reliance should be placed on such defence. According to him, even assuming that the notice dated December 7, 1977 is a notice of termination of the lease, such notice was withdrawn and was not given effect to by the parties as will appear from the subsequent conduct of the parties. He refers to the minutes of the proceedings of the meeting held between the parties on June 5, 1980 being Exhibit '8' and submits that, it would show that the parties were trying to settle their pending disputes. The cross suits filed by the parties were agreed to be withdrawn. In fact in view of such settlement one suit being Suit No. 1 of 1978 filed by the defendant herein against the original plaintiff and the other suit being Suit No. 20 of 1978 filed by the original plaintiff against the defendant were dismissed by a decree dated June 20, 1986. He submits that, the defendant was never a monthly tenant in respect of three floors and that the defendant was not governed by the provisions of the West Bengal Premises Tenancy Act, 1956. Such defence appears for the first time in the written statement of the defendant. He refers to various documents and submits that, the defendant accepted the lease and its continuance. The defendant continued to remain in possession till the expiry of the lease by efflux of time on November 3, 1991. Therefore, the conduct of the parties will establish that a lease was granted by the plaintiff and that such lease was subsisting. He submits that, the defendant never contended that the notice dated December 7, 1977 was not withdrawn or that the same is subsisting. He refers to Section 113 of the Transfer of Property Act, 1882 and All India Reporter 1968 Supreme Court page 471 (Calcutta Credit Corporation Ltd. & Anr. v. Happy Homes (Private) Ltd.) in this regard. Mr. Mitra points out that the defendant never exercised its option to determine the lease before the expiry of 21 years. Not having done so, it is not for the defendant to contend that, in view of the earlier determination clause in the lease the parties are governed by the provisions of the West Bengal Premises Tenancy Act, 1956. In this regard reliance is placed on 2006 Volume 8 Supreme Court Cases page 344 (Pabitra Kumar Roy & Anr. v. Alita D'Souza), 2010 Volume 3 Calcutta High Court Notes page 572 (ABL International Limited v. Durgapur Projects Limited) and 2011 Volume 2 Calcutta High Court Notes page 522 (Durgapur Projects Limited v. ABL International Limited). Mr. Mitra points out that, the defendant did not lead any evidence as a monthly tenant since January 1978 or otherwise. The witness of the defendant also did not claim that, the parties were guided by the West Bengal Premises Tenancy Act, 1956. On the contrary, the witness of the defendant admitted that, the defendant was a lessee and that, the lease was subsisting. He refers to question Nos. 4, 12, 46, 73 and 74 in this regard. According to him, therefore, the defendant cannot contend that with the issuance of the notice dated December 7, 1977 the defendant became a monthly tenant on or after January 1978 or that, the tenancy of the defendant was protected or governed by the provisions of the West Bengal Premises Tenancy Act, 1956.
On the question of the date for commencement of the deed of lease, Mr. Mitra submits that, the date of delivery of possession by the plaintiff to the defendant is material. According to him, there is no document on record to show the exact date on which possession of the three floors was given by the plaintiff to the defendant. However, he submits that, the date of possession can be inferred from the documents on record. He refers to the registered deed dated November 21, 1968 being Exhibit 'A' and the registered supplementary agreement dated September 12, 1969 being Exhibit 'F'. He points out that, the quantum of security deposit in clause 8 of Exhibit 'A' was modified by clause 8 of Exhibit 'F'. These clauses relate to security deposits to be made by the defendant with the plaintiff. These clauses required the defendant to deposit a sum of Rs.1,64,462.40p. in three instalments, the first of the three installments becoming payable on the date of possession of the second floor of the demised premises being given by the plaintiff to the defendant, the second of such installments becoming payable when possession of the third floor is given and third installment becoming payable when possession of the fourth floor is given. Therefore, according to him, the date of payment of the security deposit will be the date when the defendant received possession of the three floors from the plaintiff. He refers to Exhibit 'G' being the registered indenture dated September 12, 1969 which says that the defendant was to pay a sum of Rs.8,80,000/- as and by way of loan to the plaintiff upon possession being given by the plaintiff to the defendant of the fully completed third floor and a further sum of Rs.8,80,000/- upon possession being given by the plaintiff to the defendant of the fully completed fourth floor.
Mr. Mitra refers to Exhibit '1' being the plaintiff's letter dated September 12, 1969 and submits that, possession was yet to be given. From Exhibit '2' being the letter dated September 16, 1969 it will appear that the plaintiff recorded a sum of Rs.8,54,265.60p. being payment in terms of Exhibit 'G'. He refers to Exhibit 'G' and submits that, it will appear from such exhibit that the possession of the third floor was yet to be given on September 12, 1969.
According to Mr. Mitra from the letter dated July 28, 1970 being Exhibit 'B' it will appear that a sum of Rs.1,09,641.60p. was paid by the defendant to the plaintiff on September 27, 1961. Further a sum was paid as will appear from Exhibit 'B1' on December 18, 1969. According to him, Exhibits 'B' and 'B1' taken together will establish that the third and last installment was paid on December 16, 1969 and that is the date when possession of the fourth floor of the premises was given to the defendant. Mr. Mitra refers to Exhibit '3' being a letter dated December 17, 1969 that shows that the defendant wanted to take possession of the fourth floor. Therefore, according to him, the defendant was already in possession of the second and third floor of the premises in question. He refers to the answers given to the various questions put to the first witness of the plaintiff as also the only witness of the defendant with regard to the dates of possession of the three floors. He submits that, the defendant did not make any attempt to explain the date of payments which, according to him, correspondingly gives the date of making over possession of the three floors by the plaintiff to the defendant. Not having done so, according to him, the dates of possession can be inferred from such documents.
Mr. Mitra points out that the defendant relies upon Exhibits '4' and '8' to contend that the possession of the floors were had by the defendant on November 4, 1970. He submits that, Exhibit '4' was controverted by a letter dated February 2, 1971 being Exhibit '5'. According to him, Exhibit '5' will demonstrate that, the second and third floors were handed over to the defendant immediately after entering upon the further agreement dated September 12, 1969 being Exhibit 'F' and that the sum was recorded in the letter dated September 12, 1969 being Exhibit '1'. He submits that, from Exhibit '5' it will appear that the possession of the fourth floor was handed over on December 18, 1969. He points out that Exhibit '8' does not record any date of possession. It deals with a refund of a particular sum.
Taking such evidence into consideration, according to Mr. Mitra, the only conclusion that can be drawn is that the possession of the second and third floor of the premises were handed over by the plaintiff to the defendant on September 12, 1969 and that possession of the fourth floor was handed over on December 18, 1969. Possession of the three floors was not made over on November 4, 1970 as claimed by the defendant.
Mr. Mitra, thereafter, dealt with the contention of the defendant that the defendant became a monthly tenant after the determination of lease by efflux of time. He submits that, mere act of holding over after expiry of the term of the lease does not create a tenancy of any kind. He makes a distinction between a tenant continuing in possession after the determination of the term without the consent of the landlord and a tenant doing so with the consent. He relies upon All India Reporter 1972 Supreme Court page 819 (Bhawanji Lakhamshi & Ors v. Himatlal Jamnadas Dani & Ors.), All India Reporter 2005 Supreme Court page 2905 (Shanti Prasad Devi & Anr. v. Shankar Mahto & Ors.) and All India Reporter 2004 Delhi page 424 (Smt. Phool Rani Trivedi & Anr. v. Sheel Chandra) in this regard. He refers to Exhibit 'L' being the letter dated January 2, 1991 from the plaintiff to the defendant and submits that, the payments made by the defendant were accepted as occupation charges and not as rent. He refers to diverse correspondences exchanged between the parties and submits that, the plaintiff never accepted the possession of the defendant in the three floors after the determination of the lease by efflux of time.
He, thereafter, meets the contention of the defendant that Exhibit 'A' is an agreement of lease and not a lease of agreement itself. He refers to contemporaneous stand of the defendant as well as the stand of the defendant in its written statement. He submits that, no evidence nor any argument contrary to the pleadings can be looked into. He relies upon All India Reporter 1970 Supreme Court page 2025 (Goswami Shri Mahalaxmi Vahuji v. Shah Ranchhoddas Kalidas & Ors.), 2003 Volume 4 Supreme Court Cases page 161 (Bondar Singh & Ors. v. Nihal Singh & Ors.) and 2003 Volume 10 Supreme Court Cases page 653 (Rajgopal v. Kishan Gopal & Anr.) in this regard.
He submits that, whether an agreement amounts to present demise or not depends upon the intention of the parties which is gathered from the language in which the agreement is couched and relies upon All India Reporter 1925 Calcutta page 1087 (Ramjoo Mahomed v. Haridas Mullick & Ors.) in this regard. He refers to Exhibit 'A' and Exhibit 'F' and submits that, the plaintiff demised the three floors on lease to the defendant.
Mr. Dhruba Ghosh learned Advocate for the defendant submits that, a suit for mesne profit is not maintainable in view of the fact that, the defendant was never in wrongful possession of the premises. He refers to Section 2(12) of the Code of Civil Procedure, 1908 and submits that, the defendant was not in wrongful possession of the premises. There is no decree for eviction from any Court. Neither has any Court declared the possession of the defendant to be wrongful. He submits that, the defendant paid rent in respect of the entire period for which the defendant was in possession of the three floors. The defendant vacated the three floors on May 31, 1994. The plaintiff accepted such possession without any objection. According to him, the plaintiff permitted the defendant to occupy the premises till May 31, 1994 and as such it cannot be contended that, the plaintiff was in wrongful possession of the suit premises within the meaning of Section 2(12) of the Code of Civil Procedure, 1908. The question, therefore, of the defendant paying any mesne profit does not and cannot arise.
He refers to Exhibit 'A' being the agreement for lease dated November 21, 1968 and submits that, it is not a document of lease. He refers to Section 105 of the Transfer of Property Act, 1882 where lease is defined. According to him, Exhibit 'A' envisages a formal contract/lease to be executed which was never done. He refers to the language used in Exhibit 'A' and submits that, there is not clause demising the premises of the plaintiff. He refers to Exhibit '5' being the letter dated February 2, 1971 which according to him, establishes such fact. He refers to the answers by the plaintiff witness to question No. 223 where the witness of the plaintiff admits that, the agreement of lease in not a document of lease. The lease was executed on September 12, 1969 and he refers to the answer given to the question No. 225 in this regard. He submits that, such answer is also incorrect and contrary to documents on record as the document referred to by the witness of the plaintiff being the supplementary agreement dated September 12, 1969 is not a document of lease. Consequently, he submits that, the defendant is a monthly tenant on and from 1969 and/or 1970 when the defendant obtained possession of the three floors.
He submits that, the tenancy of the defendant is governed by the West Bengal Premises Tenancy Act, 1956 and that no notice of eviction was issued under the West Bengal Premises Tenancy Act, 1956. He also points out that no notice under Section 106 of the Transfer of Property Act, 1882 was issued to the defendant. It is the defendant, who volunteered and vacated the suit premises on May, 31, 1994. Therefore the defendant was not in wrongful occupation of the suit premises at any point of time for it to be liable to pay any mesne profit.
He refers to Exhibits 'A' and 'F' and submits that, in the event they were construed to the deed of lease, since there are clauses in Exhibits 'A' and 'F' for the determination of the lease prior to 20 years, the lease is governed by the provisions of West Bengal Premises Tenancy Act, 1956 in terms of Section 3 thereof. He goes on to submit that, in the event it is held that the lease is for 20 years then it was terminated on December 12, 1977 as will appear from the earlier suit of the plaintiff being C.S. No. 20 of 1978. Although such suit was withdrawn, the notice of termination was not withdrawn. He submits that, there is nothing in the minutes of June 5, 1980 which led to the withdrawal of the cross suits, to show that, the defendant consented to the withdrawal of the termination dated December 12, 1977. He refers to Section 113 of the Transfer of Property Act, 1882 in this regard and submits that consent of the person to whom notice was given before the same can be waived was not taken. Therefore, according to him, the defendant remained a monthly tenant and that such tenancy was never terminated.
He submits that, the contention of the plaintiff that, the lease expired in 1990 is incorrect as the defendant received possession only on November 4, 1970. During the period of 1968 till 1970 there were disputes between the parties. Such disputes were agreed to be withdrawn by the meeting held on June 5, 1980. The plaintiff accepted the position that no rent was payable by the plaintiff to the defendant. The plaintiff is, therefore not entitled to claim that the lease commenced from a date prior to November 4, 1970.
It is submitted on behalf of the defendant that, it continued to remain in possession after November 4, 1991 with the consent of the plaintiff. It is pointed out that, the defendant tendered rent for the period subsequent to November 4, 1991 and the defendant accepted the sum without any objection whatsoever. This according to the defendant, created a new tenancy. The plaintiff all along assented to the defendant being in possession as will appear form letter dated September 20, 1993 being Exhibit 'O' and the letter dated October 8, 1993 being Exhibit 'P'.
Mr. Ghosh points out that, the notice dated May 30, 1994 which speaks of the property to be tenanted was not disputed contemporaneously or at all by the plaintiff. He points to the conduct of the parties subsequent to May 31, 1994 where the plaintiff left the matter for deciding the rent for the period upto May 31, 1994 to the Chairman of the defendant. The defendant consistently was of the view that, no mesne profit was payable. The Chairman of the defendant, however, did not arrive at the decision. On the quantification of mesne profit, Mr. Ghosh submits that, the plaintiff has failed to prove the quantum of mesne profit. The valuer did not visit the premises. The method adopted by the valuer is erroneous in fact and well as in law. In view of the rival contentions the four issues settled by the Order dated September 24, 2012 requires consideration. The parties did not press issue No. 2 relating to limitation. In any event, the suit is within the period of limitation. According to the parties, the defendant vacated the suit premises on May 31, 1994. The suit is filed in 1995 for mesne profit well within the period of limitation.
Issue Nos. 1, 3 and 4 are taken up together. To decide these three issues, according to Mr. Mitra, first the status of the defendant at the suit premises is required to be adjudicated upon. The defendant claims to be a monthly tenant governed by the provisions of the West Bengal Premises Tenancy Act, 1956 with Exhibits 'A' and 'F' not being deeds of lease. The plaintiff contends that Exhibit 'A' read with Exhibit 'F' are deeds of lease and that, the defendant is bound by the same. As rightly pointed out by Mr. Mitra it is the case of the defendant in its written statement that Exhibits 'A' and 'F' constitutes a lease.
In Goswami Shri Mahalaxmi (supra) the Supreme Court noted that the defendant argued a case wholly different from the one in the written statement. It held that, a defendant cannot be permitted to make out a case which is wholly inconsistent with its pleadings. In Bondar Singh & Ors. (supra) the Supreme Court lays down that "it is settled law that in the absence of plea no amount of evidence led in relation thereto can be looked into." Rajgopal (supra) is also of the same view.
In its written statement the defendant has taken a stand that, the document dated November 21, 1968 being Exhibit 'A' operated as a deed of lease and was modified by the supplementary registered deed dated September 12, 1969 being Exhibit 'F'. It goes on to say that, under the terms and conditions of the said documents, the lease was expressly stated to be terminable before its expiry at the option of the defendant, the lessee. This pleading appears in the first paragraph of the written statement. Applying the ratio of Goswami Shri Mahalaxmi (supra), Bondar Singh & Ors. (supra) and Rajgopal (supra) I am afraid, I am not in a position to accept the contention of the defendant that, the document being Exhibits 'A' and 'F' are not deeds of lease.
The defendant contends that, Exhibits 'A' and 'F' cannot be looked into as documents of lease as there is no present demise by such two deeds. This contention is not available to the defendant in view of its declared stand in its written statement stating that Exhibits 'A' and 'F' constitute lease.
Ramjoo Mahomed (supra) is of the view that, although the term of a lease is to commence at a future date or a formal document is to be executed, it does not necessarily follow that the agreement will not operate as a present demise of the premises. The facts of the instant case demonstrate that, the parties accepted and acted upon Exhibits 'A' and 'F' as a lease. The same is the declared position of the defendant in its written statement.
The defendant contends that, even if Exhibits 'A' and 'F' are deeds of lease, then also since an option to terminate such deed of lease is provided therein, such lease is guided by the provisions of the West Bengal Premises Tenancy Act, 1956. The defendant is protected under the provisions of the West Bengal Premises Tenancy Act, 1956. The tenancy of the defendant not being terminated by a valid notice to quit under Section 13 of the West Bengal Premises Tenancy Act, 1956, the defendant cannot be said to be a wrongful possession of the suit premises for any period of time upto May 31, 1994 when it voluntarily give up possession to the plaintiff. The plaintiff relies upon Pabitra Kumar Roy & Anr. (supra), ABL International Limited (supra) and Durgapur Projects Limited (supra) in this regard.
In Pabitra Kumar Roy & Anr. (supra) the Supreme Court held that, where a lease executed after the commencement of the West Bengal Premises Tenancy Act, 1956 contains a clause allowing prior determination of the lease at the instance of the lessor or the lessee, such clause does not make such lease cease to be a lease for a fixed period unless the option of prior determination is exercised.
ABL International Limited (supra) is of the view that, if the lease is allowed to run its full course then the lease and the conditions contained therein come to an end and the clause for prior determination will no longer be available as defence against eviction. On appeal the Division Bench in Durgapur Projects Limited (supra) did not upset such view.
Applying such ratio to the facts of the instant case, it can be safely held that, the parties allowed the lease to run its full course. The defendant as the lessor, thereafter, cannot be allowed to take shelter of the clause for earlier determination to contend that, the lease is governed by the provisions of West Bengal Premises Tenancy Act, 1956.
The contention of the defendant that, the notice of termination was not withdrawn and its reliance on Section 113 of the Transfer of Property Act, 1882 cannot be accepted. Calcutta Credit Corporation Limited (supra) is of the view that, once a notice is served determining the tenancy, such tenancy comes to an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting. The facts of the instant case demonstrate that, the defendant continued to remain in possession of the three floors till it vacated the same. None of the parties acted on the basis of the notice of termination. The parties agreed to withdraw the cross suits filed by the parties against each other subsequent to the notice of termination. The parties, thereafter, decided to refer the question of the quantum of mesne profit to be pronounced upon by the Chairman of the defendant. All of these facts taken together will show that, the notice of termination was not acted upon.
The question as to when the defendant came into possession of the three floors to determine when the period of lease came to an end assumes importance in view of the claim for mesne profit.
The plaintiff claims that the defendant was put into possession for the second and third floor on September 12, 1969 and for the fourth floor on December 18, 1969. The plaintiff concedes that, there is no direct evidence on this fact. It proceeds to infer such dates from diverse documents tendered in evidence. I have considered the documents referred to by the plaintiff to infer such dates of possession. I am afraid, I am not in a position to concur with the inference sought to be made by the plaintiff from the documents referred to. Deposit or payment simultaneously may not have led to the plaintiff putting the defendant into possession of the respective floors. As the submissions of Mr. Mitra noted earlier on this point will show, one has to infer the dates of possessions by making one assumption after the other. I do not find it safe to venture upon inferring the date of possessions in the manner as submitted by Mr. Mitra. As rightly pointed out by the plaintiff, there is no direct evidence of the dates of possession. In absence of direct evidence, it will not be proper to infer the dates of possession from the documents. The documents do not by themselves say that possessions of the respective floors were given to the defendant on the respective dates.
However, the defendant admittedly enjoyed the three floors upto May 31, 1994. The defendant, therefore, came into possession of the three floors at a given point of time. The defendant admits that it came into possession on November 4, 1970. In my view, in the fact and circumstances of the instant case it would be appropriate to take the admission of the defendant that it came into possession of the suit premises on November 4, 1970 as the date when the plaintiff put the defendant into possession of the suit premises.
The lease is for 21 years. The lease will, therefore expire by efflux of time on November 3, 1991. The defendant admits that it continued to remain in possession till May 31, 1994. The plaintiff is, therefore, entitled to mesne profit for the period between November 3, 1991 till May 31, 1994 if the possession of the defendant is not found to be wrongful for this period.
The defendant contends that its possession cannot be wrongful for this period since (a) there were no lease by virtue of Exhibits 'A' and 'F' and (b) the defendant was accepted as a tenant holding over after May 3, 1991 when the plaintiff accepted payment of rent from the defendant for this period unconditionally.
The defendant also refers to the unconditional acceptance of possession by the plaintiff from the defendant on May 31, 1994 as another pointer to the fact that the defendant was never in wrongful possession of the suit premises.
Since I have already held that Exhibits 'A' and 'F' are deeds of lease, the question of the defendant being governed by the West Bengal Premises Tenancy Act, 1956 since inception of its possession does not arise. Payment of occupation charges described as rent per se does not make a person to be a tenant holding over. Bhawanji Lakhamshi & Ors. (supra) lays down what constitutes holding over. The Supreme Court in paragraph 9 is of the following view:-
"The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.
................................................................................... Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, cannot be regarded as evidence of a new agreement of tenancy.
.................................................................................."
In Smt. Phool Rani Trivedi & Anr. (supra) the Division Bench of the Delhi High Court is of the view that, where a lease is for a fixed period and where such lease is determined by efflux of time with the lease deed not containing any renewal clause, a plea of holding over is not open for the tenant. The rent deposited by the tenant was not found to be accepted as rent and damages for occupation of the premises.
In Shanti Prasad Devi & Anr. (supra) it was held that, where the lessor did not expressly or impliedly agree for renewal of lease there can be no implied renewal by holding over on mere acceptance of rent offered by the lessee.
The facts of the instant case disclose that, the plaintiff disputed the continued occupation by the defendant of the suit premises subsequent to the expiry of the lease by efflux of time. The plaintiff went on to ask for adequate compensation for the period in which the defendant continued to remain in possession subsequent to the expiry of lease. The parties agreed that such dispute will be referred to the Chairman of the defendant for his decision. The Chairman of the defendant however, did not decide the issue. It cannot be said in the facts of the instant case that, the plaintiff accepted payment from the defendant as rent for the period after the expiry of lease by efflux of time and treated the defendant as a tenant. Consequently, the period of occupation of the defendant subsequent to November 3, 1991 is not protected under the provisions of the West Bengal Premises Tenancy Act, 1956. The possession of the suit premises by the defendant subsequent to November 3, 1991 is, therefore, a wrongful possession entitling the plaintiff to mesne profit in respect thereof.
The question of quantum of mesne profit is required to be determined. The period for the mesne profit is determined that is to say for the period from November 3, 1991 to May 31, 1994. The plaintiff has relied upon certain evidence as the date. I find that the plaintiff relied upon a report of the valuer. However, in one of the suits filed by is being C.S. No. 530 of 1992 was decreed on June 15, 2009 and the judgment of such suit is reported at 2010 Volume 3 Calcutta High Court Notes page 572 (ABL International Limited v. Durgapur Projects Limited). The judgment of the Appeal Court therefrom is reported at 2011 Volume 2 Calcutta High Court Notes page 522 (Durgapur Projects Limited v. ABL International Limited). The Appeal Court did not interfere with the decree for eviction. So far as the calculation of the mesne profit is concerned the Appeal Court found that, it was not prudent to rely upon the valuer report itself in absence of other evidence. Such valuer was not called as an expert witness. Similar fact obtains in the present case as that of Durgapur Projects Limited (supra). Therefore, a decree for mesne profit cannot be passed on the evidence on record.
In Durgapur Projects Limited (supra) the Appeal Court directed adjudication of mesne profit by a special referee. Such procedure is adopted in the present case. Mrs. Ruma Sikdar, Advocate is appointed as the Special Referee for the purpose of quantification of mesne profit for the period from November 4, 1990 till May 31, 1984 for the three floors and to submit a report thereon to the Court on the next date of hearing. The Special Referee will be paid a consolidated remuneration of Rs.50,000/- payable by the plaintiff at the first instance. The Special Referee will proceed expeditiously as possible in computing the mesne profit.
C.S. No. 77 of 1995 will appear "For Hearing" in the monthly list of December 2014.
[DEBANGSU BASAK, J.] Later:-
Stay prayed for is considered and refused.
[DEBANGSU BASAK, J.]