Calcutta High Court
The Durgapur Projects Ltd vs Abl International Ltd on 4 October, 2010
Author: I.P Mukerji
Bench: Pinaki Chandra Ghose, I.P. Mukerji
1
G.A. No. 1940 of 2009
APOT No. 265 of 2009
C.S. No. 530 of 1992
In the High Court at Calcutta
Civil Appellate Jurisdiction
PRESENT:
The Hon'ble JUSTICE PINAKI CHANDRA GHOSE
The Hon'ble JUSTICE I.P. MUKERJI
THE DURGAPUR PROJECTS LTD.
Versus
ABL INTERNATIONAL LTD.
For the petitioner : Mr. Anindya Mitra, Sr. Adv.
Mr. Bhaskar Mitra, Adv.
Mr. Sarbapriya Mukherjee, Adv.
Mr. Awani Kr. Roy, Adv.
For the respondent : Mr. Surajit Nath Mitra, Adv.
Mr. Harish Tandon, Adv.
Mr. Arindam Mukherjee, Adv.
Heard on: 07.09.09, 14.09.09, 16.09.09, 06.08.10
Judgment on: 04.10.2010
2
I.P MUKERJI, J.
This is an appeal from a Judgment and decree dated 15th June 2009 passed in a suit for eviction and mesne profit. The decree was for recovery of property which was the subject matter of the suit and for mesne profits. The rate of mesne profits was at the rates mentioned in Exhibit N with interest at the rate of 10 %. The defendant is up in appeal. At the time of preferment of the appeal they were aggrieved both by the decree for eviction and mesne profit. During the hearing of the Appeal, the first point was given up as it was realized by them that there was no substance in it. Only the point about mesne profit was pressed. Such is the stand even in the written notes of argument.
But none the less some facts are to be noted .By a registered deed of lease dated 22 February, 1969, the first floor of 1, Shakespeare Sarani, Calcutta was demised to the appellant defendant for 21 years. The area was 12,108 square feet. One clause in the lease became controversial. It was that on completion of eight years, the appellant defendant had the option to terminate the lease. It did not do so .But nevertheless according to the appellant defendant by the proviso to s3 of the then West Bengal Premises Tenancy Act, 1956, the protection of s.3 did not apply, because of the presence of that clause. Upon the expiry of the period of lease, the appellant defendant became a monthly tenant. However the 3 Respondent attempted to allege determination of the lease by its letter 24th July,1981. The appellant defendant argued in the alternative various points to the effect that the lessor lessee relationship was continued as a monthly tenancy under the holding over principle and by acquiescence. But all these grounds were rejected by the Hon`ble first court holding that the lease stood determined by efflux of time and that the Respondent was entitled to possession. This part of the decree has not been challenged. Therefore we dismiss the appeal with regard to that part of the decree and affirm the Judgment and decree of the first Court to that extent.
But the real controversy is with regard to mesne profit. On a reading of the Judgment under appeal it appears that the entire foundation for grant of mesne profit was a report dated 7th December,2007 of M/s Talbot &Co ,Surveyors and Valuers, marked as exhibit `N`. It was signed by Mr. S. Maitra, Chartered Valuation Surveyor. It was conceded by the Respondent that the valuer was not called to give evidence as an expert. The valuation report computed letting out values of the property as on 1st March,1990,1st March 1994,1st March,1998,1st March 2002 and 1st November,2007.They were Rs. 3,07,543, Rs. 5,63,627, Rs. 7,80,966,Rs10,32,207 and Rs. 13,00,762 respectively.
4The learned Judge of the first Court passed a decree on the said valuation report. He said "............and there shall be a decree for past and future mesne profits at the rates mentioned in Exhibit N with interest at the rate of 10 percent per annum."
Now on our first look at the report, this report cannot be part of a decree, as it is uncertain. Something more had to be decided. For example as it is stated there that as on 1st March 2002 the rent was a particular amount and on 1st March 2007 it was a higher amount, neither the rent in February,2002 can be computed nor the rent in April 2007 on the basis of the report. The whole report was an estimation, in our opinion and not a quantification. That quantification is not available in the decree.
Moreover, it is possible to quantify the rent on the basis of the principles of valuation disclosed in the report. Some method should have been provided in the decree.
But the question is to what extent is the report reliable? The valuer was called as a witness.
According to the records of his evidence he said that he had personally valued the property, prepared the report and signed it. He also disclosed the materials he had considered in preparation of the report, mainly in cross examination. The 5 report was tendered in evidence. It is true that no real challenge was thrown to the contents of the report nor the contents disproved in cross examination. Now, it is contended by the Respondent that no real challenge was made to the materials on which the report was based namely lease agreements relating to properties in the neighbourhood i.e. 230A AJC Bose Road and 11 Dr U.S. Brahmachari Street and 101 Park Street, Calcutta and some other properties. Some of the questions and answers in examination in chief and cross examination are set out below:
On examination the witness said the following:
"7. In what connection you came to this property at No. 1, Shakespeare Sarani, Calcutta?/ I was instructed or requested by Mr. Atanu Mitra, Manager (Law), of ABL International Limited to assess the rental value in different years of a portion of the first floor of the building.
8. on the basis of such instruction so received by you did you carry out any inspection of the property or submit any report?/ I inspected the property and prepared a report mentioning therein the rental value in different years the portion concerned.
9. I am showing you a document dated 7th December, 2007. Kindly look at this document whether this is the report you have talked about? /Yes, this is the report I was taking about.
10.Are the contents of the report true and correct?/ Yes.
11.Who prepared this report?/ I prepared this report. This was typed by my office under my supervision.
12.Is it bear your signature?/Yes.
13. Whose signature is this?/ This is my signature.
14.In short, what is the basis of this report?/ I based on the rental value of commercial spaces for different years and on the basis of this rental I have added and deducted 6 percentage for the advantageous and disadvantageous of the property and have arrived at rental value in different years. (Tendered the document and marked as Ext. 'N')
15. Kindly look at the report submitted by you which has been marked as Ext. 'N' in these proceedings and tell before My Lord about the portion of the premises No.I, Shakespeare Sarani, Calcutta to which the report relates?/ This report relates to the southern portion of the first floor of the building in premises measuring about 12,108 sq.ft."
In cross examination he said the following "19. Were you any manner connected with the determination of rent of the portion of 230A AJC Bose Road being the subject matter of the alleged agreement of the lease dated December 26, 1983?/ I was not connected with the determination of rent at 230A. A.J.C. Bose Road.
20. Do you know the name of the parties to this deed of lease dated December 26, 1983?/ So far as I remember the sub- lessee of the State Bank of India and the lessee was some Agarwala. Exact name I cannot say. I have the relevant documents with me and if I have permitted I can tell the names after going through the documents.
21. Was the original lease deed allegedly entered into on December 26, 1983 in respect of the portion of premises No. 230A, A.J.C. Bose Road given to you at any point of time?/ I was the original lease deed. I make a Xerox copy of the lease deed.
22. Have you personally visited the first floor of the premises No. 230A, A.J.C. Bose Road?/I have got personal knowledge of the property.
23. In what connection did you visit to 230A, A.J.C. Bose Road?/ When the portion was let out to State Bank of India I enquired from the land lord, they have shown me a lease and I had inspected the property at that time.
24. Is it your evidence that your services were engaged by the landlord were letting out the property to the State Bank of India?/ We have got letting and sales department which have been functioning for 85 years. I have been in this profession for 49 years.
25. Was any agreement entered into between the Talbot & Company and landlord in this connection?/ They instructed us verbally or by letter but I cannot show the letter. 7
26. Please come to the second page of your "details of valuation" - What was your role in connection with letting out of a portion of Premises NO. 11 Dr. U.S Brahmachari Street by alleged agreement on August 6, 1993?/ We made measurement of the property for letting out.
27. On the basis of the information received b y you in connection with the alleged letting out of Premises No. 11 Dr. U.S. Brahmachari Street, have you made your report?/ I have got personal knowledge of the property since we carried out the measurement and I saw the lease document also, though I was not involved introduce a tenant.
28. What was your role in the alleged letting out of a portion of Premises No. 101, Park Street, Calcutta to IDBI Bank?/ I have got personal knowledge of the property and I have seen the lease deed but I was not involved to introduce a tenant.
29.........................
30. What was your role in the alleged letting out of a portion of Premises No. 46D, Chowringhee Row to one star television?/ I had no role. I have got personal knowledge about the letting out.
31. What was your role in connection with the alleged letting out of a portion of premises No. 36A, B, C & D, Chowringhee Row by lease dated January 12, 2004?/I had no role but I have personal knowledge about this letting out and I have seen the copy of the lease."
It is sought to be contended on behalf of the Respondent relying on P.C. Purushothama Reddiar vs. S. Perumal, reported in AIR 1972 SC 608, On the death of Aamal Dasgupta, Ashok Dasgupta and others, reported in AIR 1992 Cal 341, Allahabad Bank vs. Sourendra Nath Shaw and another, reported in AIR1997 Cal 80 and R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another, reported in (2003)8 SCC 752 that since the report was admitted in evidence its contents also stood proved. The other decisions of our high court have followed that decision. But all principles of law have to be applied correctly to the facts. Now, the first decision of the Supreme Court has become a very fertile source for misinterpreting and 8 misunderstanding the law by misinterpreting that decision. According to the above decisions as interpreted by the respondent if a document has been admitted in evidence its contents are also admitted in evidence. In the P.C. Purushothama Reddiar vs. S. Perumal, reported in AIR 1972 SC 608 the court was concerned with some police reports, the correctness of which is presumed under s. 35 of the Evidence Act. Therefore if such report was admitted, the contents of the document were proved on such presumption. But in other circumstances, proving a document is completely different from proof of its contents. If a particular document says that according to the author of the document, the valuation of property B is Rs. X, when the document is admitted the fact that the author made that statement is proved. But whether the property is valued at Rs. X is not proved, unless it is shown that the author of the document is such an infallible expert that the statement proves the fact. In this case admittedly the valuer was not called or to be treated as an expert. Therefore the report per se is not to be taken as authoritative. Therefore, the materials on which the conclusions in the document were arrived at, lease deeds, rents paid in comparable properties had to be established by establishing the documents forming the basis of the report and proving other facts by cogent evidence.
It is true that the appellant defendant did not properly cross examine the valuer or lead any significant evidence regarding valuation. But the Respondent plaintiff 9 had the burden of proof to prove its own case. We do not think that the issue of mesne profit was proved satisfactorily.
Hence we set aside that part of the decree relating to mesne profits. We remand the matter back to the First Court for determination of mesne profits. But for the ends of justice we think the right order would be to appoint a Referee to determine mesne profits in accordance with law and file a report before the First Court. We appoint Mr. Partha Sarathi, Sr. Advocate of the Bar Library Club, as Special Referee to determine mesne profits with regard to the subject property within four months of communication of this order. The Commissioner will be entitled to engage a clerk and stenographer. The Commissioner will be paid remuneration @ 300 GMS per sitting to be paid by the appellant/defendant together with the administrative expense for such determination. The parties will be at liberty to rely on the self same evidence adduced before the First Court together with any additional evidence which they may disclose and produce in accordance with law.
The appeal is partly allowed.
Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities.
I agree, 10 (I. P. MUKERJI, J.) (P.C. GHOSE, J.)