Calcutta High Court (Appellete Side)
Jaya Sarkar vs Tanusree Sarkar on 7 September, 2015
1
In the High Court At Calcutta
Civil Appellate Jurisdiction
Appellate Side.
.09.15
CAN 8970 of 2015
SAT No.427 of 2012
Jaya Sarkar
v.
Tanusree Sarkar
Mr. Utpal Majumdar
Mr. Sanjay Bose
Ms. Tapati Chatterjee
... for the appellant/petitioner.
Mr. Arup Banerjee
Mr. Arun Kumar Saha
... for the respondent.
This application is at the instance of the appellant-judgment debtor. The appellant has suffered the decree for eviction from the suit property, being a flat of 870 square feet of a multistoried building, passed by the learned trial Court as also by the learned first appellate Court.
By an order dated August 20,2013 the Division Bench of this Court admitted the second appeal by following the substantial question of law :-
" Whether a suit on the ground of personal use and requirement of the landlord could have been decreed without ascertaining whether partial eviction would satisfy the requirements of the landlord?"
In the appeal the appellant filed an application being CAN 8543 of 2012, praying for stay of the execution proceeding filed by the respondent-landlord being Ejectment Execution Case No.20 of 2012 pending before the Civil Judge, Junior Division, 2nd Court, at Alipore. The respondent-landlord also filed an application being CAN No.11668 of 2013 praying for an order requiring the 2 appellant-tenant to pay occupation charges in respect of the suit property at the market rate as a condition for obtaining stay of the execution proceeding. By an order dated May 07,2015 this Court disposed of both the said applications filed by the appellant and the respondent. However, in the said order dated May 07,2015 the application of the respondent being CAN 11668 of 2013 was inadvertently recorded as CAN 11228 of 2013.
By the said order, dated May 07, 2015 this Court directed that the appellant is liable to pay monthly occupation charges at the rate of Rs.15,000/- to the respondent together with other monthly charges of Rs.3,000/- to be paid to the Society of the building from August 2012, that is, after the lower appellate Court decree dated July 25,2012. So far as the arrear occupation charges of Rs.4,95,000/- is concerned, the appellant was granted liberty to pay the same to the respondent by eight equal monthly instalments of Rs.61,875 from the month of June 1015. The appellant was further directed to pay the monthly occupation charges of Rs.15,000/- to the respondent and Rs.3,000/- per month to the society from the month of May 2015. It was specifically directed that the appellant had to pay monthly instalment of Rs. 61,875 and the current monthly occupation charges of Rs.15,000/- to the respondent, through her bank account, within the tenth day of each month. In the said order it was made clear that in the event of any default on the part of the appellant to deposit any of the monthly instalments of Rs.61,875/- each or the monthly occupation charges of Rs.15,000/-for any month as stated above, the interim order passed in the appeal shall stand automatically vacated without any reference to this Court. The respondent also informed the appellant of the particulars of her bank account, maintained with the Axis Bank.
In this application the appellant has prayed for, inter alia, condonation of delay in making payment of the monthly instalment of the arrear occupation charges and the current occupation charges to the respondent landlord payable 3 for the month of August 2015 as also, for stay of the order passed by the learned executing Court for taking of possession of the suit property.
It is the case of the appellant in this application, that she deposited the cheques for the monthly instalment of Rs.61,875/- and current occupation charges of Rs.15,000/- with the bank account of the respondent for the months of June and July 2015 within the time stipulated by the said order dated May 7,2015. On August 8,2015 she instructed her caretaker to deposit two cheques both dated August 8,2015 drawn on Axis Bank for Rs.61,875/- and Rs.15,000/- respectively, in the bank account of the appellant, maintained with the Axis Bank. However, on enquiry from the bank while updating the pass- book she found that those two cheques were not encashed and after perusing the deposit slips the petitioner found that the account number of the respondent was wrongly mentioned in the deposit slips. According to the appellant, thereafter she immediately went to the bank on August 18,2015 and did the needful and both the cheques were encashed on August 18,2015. In the meantime, the respondent-landlord had filed the ejectment execution case at Alipore for executing the eviction decree on the ground of default in complying with the condition fixed by the said order dated May 7,2015 for the month of August, 2015 and after considering the facts of the case including the written objection of the appellant the learned executing court has passed an order for executing the decree for taking possession of the suit property against the appellant-petitioner. As mentioned above in this application, the appellant has also prayed for stay of the said order passed by the learned executing court.
In the application the appellant-petitioner has disclosed the written objection filed by her to the ejectment execution application of the respondent- decree-holder. She has also disclosed the deposit slips of the Axis Bank.
On the basis of the aforementioned statements made in the application and the documents disclosed by the appellant-petitioner, Mr. Sanjay Bose, learned 4 advocate led by Mr. Utpal Majumdar appearing for the appellant-petitioner submitted that the appellant has made out a bona fide case for the delay in making payment of the dues for the month of August 2015 to the respondent- decree-holder and for stay of the order passed by the learned executing Court.
However, Mr. Arup Banerjee, learned advocate appearing for the respondent-decree-holder submitted that although the appellant in this application and in her affidavit-in-opposition to the execution application has alleged that she instructed her caretaker to deposit two cheques drawn on Axix Bank in the account of the respondent decree-holder but, from the deposit slips disclosed in this application it is evident that by the said deposit slips she deposited Rs. 61,875/- and Rs.15,000/- in her own account maintained with the Axis Bank, Golpark Branch. He further submitted that the respondent had filed the execution application before the learned executing court on August 17,2015 and a copy of the same was also received by the appellant-petitioner. Mr. Banerjee further pointed out that in the said execution application the respondent decree-holder had disclosed her bank statement till August 11,2015 evidencing that the she had not received any payment in terms of the order dated May 7,2015. He further submitted that after receipt of the written objection filed by the appellant in the execution case, the respondent came to know the belated deposit of the said sum of Rs.61,875/- and Rs.15,000/- respectively on August 18, 2015 and by a cheque dated August 29,2015 the respondent sent back the sum of Rs. 76,875/- to the appellant.
Mr. Banerjee further submitted that the appellant has not been able to substantiate any bona fide mistake and in any event when the matter has already been decided by the executing Court, the appellant cannot invite this Court to pass any order nullifying the said order passed by the learned executing Court.
5In reply Mr. Bose submitted that the appellant has not received any cheque from the respondent.
Having considered the statements made in this application and the documents disclosed therein as also the submissions of Mr. Bose, led by Mr. Majumdar and Mr. Banerjee appearing for the respective parties, I am unable to convince myself to accept the explanation made in this application by the appellant-petitioner. She was well aware about the order dated May 7,2015 that if the monthly instalment of the arrear occupation charges and the current occupation charges are not paid to the respondent within the tenth day of each month, the interim order passed by this Court directing stay of the execution proceeding would automatically stand vacated without any reference to this Court. Although, in this application as also in her affidavit-in-opposition to the execution application, the appellant/petitioner has alleged that on August 08, 2015 she had instructed her caretaker to deposit the two cheques of Rs. 61,875/- and Rs.15,000/- the bank account of the respondent and the caretaker deposited the said cheques on the same day in the Axis Bank, but he mentioned the wrong account number of the respondent. However, from the deposit slips disclosed by the appellant in this application, in support of her case, it is ex facie evident that by the said deposit slips the appellant deposited Rs. 61,875/- and Rs.15,000/- in her own account maintained with the Axis Bank. The deposit slips disclosed and relied upon by the appellant herself do not render any credence to the case sought to be made out by the appellant-petitioner. The appellant petitioner has not disclosed any document issued by the bank either returning the said cheques along with deposit slip bearing wrong account number of the respondent or informing the appellant that the said cheques could not be deposited in the account of the respondent. In fact, the appellant has not disclosed any deposit slip of the Axis Bank to substantiate the case she sought to make out in this application.
6Further, admittedly the learned executing Court has already passed the order for taking possession of the suit property against the appellant and there is no scope in this appeal to pass any order to interfere with the said order passed by the learned executing Court.
For all the foregoing reasons, I do not find any merit in this application and the same stands rejected.
Prayer for stay of operation of this order has been made on behalf of the appellant-petitioner. Such prayer is considered and rejected.
Let a xerox plain copy of this order duly counter-signed by Assistant Registrar (Court) be made available to the respective parties on usual undertakings.
sh (Ashis Kumar Chakraborty, J)