Calcutta High Court
Jayanta Krishna Datta & Anr vs Indian Oil Corporation Limited on 17 February, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 1 2019
(Old No. GA 2341 of 2019)
In CS/83/2019
Jayanta Krishna Datta & Anr.
Vs.
Indian Oil Corporation Limited
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Jishnu Chowdhury
Mr. Sarvapriya Mukherjee
Mr. Sanjiv Kr. Trivedi
Ms. Iram Hasan
Mr. Satadeep Bhattacharyya
Mr. Sanket Sarawgi
Mr. Subhajit Ghosh
...For the plaintiffs/petitioners.
Mr. Anirban Ray
Mr. Amit Kr. Nag
Mr. Partha Banerjee
Ms. Ranjabati Ray
...For the defendant/respondent
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Heard on : 16.12.2022, 19.12.2022 & 31.01.2023
Judgment on : 17.02.2023
Krishna Rao, J.:
The plaintiffs have filed the instant application praying for final Judgment and Decree under Chapter XIIIA of the Original Side Rules of this Court for recovery of immovable property with mesne profit along with interest.
The plaintiffs claimed that the immovable property being land and building at a portion of premises No. 16/1C, Ramakanta Bose Street, Kolkata and premises Nos. 80/1 and 80/2, Bhupendra Bose Avenue Kolkata - 700 004 measuring 8 Cottahs 8 Chittaks 6 square feet with structures and buildings having wide frontage of 68 feet of Bhupendra Bose Avenue Kolkata and 140 feet wide road of Kolkata.
By a lease dt. 10.09.2008 executed by the plaintiff no. 1 in favour of the respondent no. 2 which was duly registered before the competent Authority being No. 9881 in the year 2009, the plaintiff no. 1 had granted leasehold rights to the defendant of a suit premises being land admeasuring 5 Cottahs 10 Chittaks and 34 square feet being a portion of premises No. 16/1C, Ramakanta Bose Street, Kolkata and premises Nos. 80/1 and 80/2, Bhupendra Bose Avenue Kolkata - 700004.
On 10.09.2008, the plaintiff no. 2 had also executed a deed in favour of the defendant which was duly registered being No. 9882 in the year 2009 wherein the plaintiff no. 2 had granted leasehold rights in favour of the 3 defendant with respect of the remaining portion of the land measuring 2 Cottahs 13 Chittaks and 17 square feet together with building being a portion of premises No. 16/1C, Ramakanta Bose Street, Kolkata and premises Nos. 80/1 and 80/2, Bhupendra Bose Avenue Kolkata - 700 004 as per the terms and conditions mentioned in the lease deed on a monthly rents payable to the plaintiffs.
The deed executed by the plaintiff no. 1 and plaintiff no. 2 was valid for a period of 20 years with effect from 01.08.1998 with the option renewal for a further period of 10 years with fresh rental and other terms and conditions may be mutually agreed between the parties.
As per the lease deed, the aggregate rent is Rs. 20,000/- per month i.e. Rs. 13,400/- to be paid to the plaintiff no. 1 and Rs. 6,700/- to be paid to plaintiff no. 2 subject to escalation of 12% every 3 years. On completion of 20 years of lease period, no steps were taken by the defendants or any interest was shown to obtain fresh lease deed with fresh rental for further 10 years.
The plaintiffs have sent letters to the defendant and on 13.04.2018, the defendants have sent reply pretending to be interested to renew the lease deed but has not come forward for making any offer or giving any indication for renewal of lease deed and requested the plaintiffs to send their offer. The plaintiffs have informed the defendants that the defendants have to make an offer for renewal of lease deed but the defendants have not given any response and to avoid any litigation, the plaintiffs have made an offer to the defendants to grant lease for a period of 10 years at the total 4 rent of Rs. 2.60 lakhs per month but the defendant has not given any response.
The period of 20 years has expired by efflux of time on 01.08.2018 and thus the defendant is in wrongful occupation of the suit premises. On expiry of the 20 years, the defendant had informed the plaintiff, that a meeting is fixed by the defendant on 14.08.2018 and accordingly the plaintiffs have attended the meeting. The offer of the defendant was not accepted by the plaintiffs. As a last attempt to settle the issue, the plaintiffs have sent a letter by making an offer of revision of lease rent to Rs. 2.50 lakhs per month for 10 years and in the said letter, it was also mentioned that if the defendants will not accept within 15 days from the date of receipt, the plaintiffs will be constrained to take appropriate steps in accordance with law. The defendants have not conveyed any approval and no fresh lease deed was executed and thus by efflux of time, the defendants have become illegal trespasser over the suit property and accordingly the plaintiffs have filed the instant suit.
Mr. Abhrajit Mitra, Learned Senior Advocate with Mr. Jishnu Chowdhury submits that due to efflux of time the lease period has expired and the defendant has not come forward either to extend the lease period or to enhance the monthly rent and thus the defendant is in illegal occupation of the suit property and the defendant has no defence to defend the suit and as such the plaintiff is entitled for final Judgment and Decree under Chapter XIIIA of the Original Side Rules of this Hon'ble Court. Mr. Mitra relied upon the following judgments :
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i) (2018) 6 SCC 744 (Apollo Zipper India Limited -vs- W. Newman & Company Limited).
ii) (2020) 15 SCC 585 (Ambalal Sarabhai Enterprises Limited -vs- K. S. Infraspace LLP & Anr.).
iii) 2015 SCC OnLine Cal 4763 (United Bank of India -
vs- Shree Ram Trust & Ors.).
iv) 2015 SCC OnLine Cal 8363 (Partha Sarathi Endowment Trust -vs- Dilip Kr. China & Ors.).
v) (1998) 5 SCC 69 (Indian Bank -vs- Maharashtra State Cooperative Marketing Federation Limited).
vi) CO No. 759 of 2021 (Deepak Polymers Private Limited
-vs- Anchor Investments Private Limited) passed by High Court, Calcutta dt. 24.06.2021.
vii) SLP (Civil) No. 11418/2021 (Armstrong Investment Private Limited -vs- Sri Sandip Bazaz Huf) dt.
30.07.2021and 06.05.2022.
viii) Civil Appeal No. 2402 of 2015 (Nimai Chandra Kumar (D) through Lrs. & Ors. -vs- Mani Square Limited & Ors.).
Per contra, Mr. Anirban Ray with Mr. Amit Kumar Nag representing the defendant submits that the suit filed by the plaintiffs is not maintainable before this Court as the defendant is utilizing the said premises for the purpose of running petrol pump business.
Mr. Ray submits that the plaintiffs have jointly filed the instant suit though the suit properties are two different properties and thus the suit filed by the plaintiff is not maintainable.
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Mr. Ray submits that the suit property is a Thika Tenancy Property and in the suit property there is a pucca structure since 1970 and thus the instant suit is not maintainable before this Hon'ble Court.
Mr. Ray submits that two plaintiffs have entered two different lease agreements with two different properties but the plaintiffs have filed the present suit jointly and is not maintainable under law and no decree can be passed on the joint prayer of the plaintiffs.
Mr. Ray submits that all the issues as raised by the defendants are triable issues and thus no decree can be passed under Chapter XIIIA of the Original Side Rules of this Hon'ble Court.
Mr. Ray relied upon the following judgments :
i) 2021 SCC OnLine Cal 1457 (Laxmi Polyfab Private Limited -vs- Eden Realty Ventures Private Limited & Anr.).
ii) (2020) 15 SCC 585 (Ambalal Sarabhai Enterprises Limited -vs- K.S. Infraspace LLP & Anr.).
iii) (2017) 1 SCC 568 (IDBI Trusteeship Services Limited -vs- Hubtown Limited).
iv) 1925 SCC OnLine Bom 178 (Chandulal Suklal Shet & Ors. -vs- Dagdu Mahadu Chaudhuri & Ors.).
v) Santosh Madan Lal Agarwal -vs- Bhagwat Ragho Karad & Ors.) passed by Hon'ble Bombay High Court (Aurangabad Bench) in Second Appeal No. 0364 of 2016 dt. 29.07.2019.).7
Heard the Learned Counsels for the respective parties, perused the materials on record and the judgments relied by the parties. Order 1 Rule 1 of the Code of Civil Procedure reads as follows :
"1. Who may be joined as plaintiffs.- All persons may be joined in one suit as plaintiffs where-
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact would arise."
The plaintiffs have described with regard to joint ownership of the property, lease deeds and the monthly rent of the suit property in paragraphs 1, 2, 3 and 22 of the plaint which reads as follows :
"1. The subject matter of the suit is an immovable property being land and building at a portion of premises No. 16/1C, Ramakanto Bose Street, Kolkata and premises Nos. 80/1 and 80/2, Bhupendra Bose Avenue, Kolkata - 700 004 situate within the aforesaid jurisdiction in total measuring 8 Cottahs 8 Chittacks 6 Sq. Ft with structures and buildings thereon (hereinafter referred to as "the suit premises") and having wide frontage of 68 feet on Bhupendra Bose Avenue, Kolkata, an important 140 feet wide road of Kolkata. All the said premises' are contiguous to each other having no inter se demarcation within the said suit premises, which have been named by the defendant as premises of Super Avenue Service Station.
2. The plaintiffs are husband and wife who are the joint owners of the suit premises having two-third and one third share therein respectively.
3. By and under two registered lease deeds, both dated 10th September, 2008, the defendant was granted lease of the suit premises, described in the Schedule to the said lease deeds executed by the plaintiff No. 1 and No. 2 8 respectively, which recorded and represented one composite transaction of the demise of the suit premises. The rent was divided amongst the two plaintiff's as per arrangement between the parties.
22. The plaintiffs' right to reliefs is in respect of or arise out of the same act or transaction or series of acts or transactions and if separate suits were brought, common question of law and fact would arise for determination. The plaintiffs are having the same interest in this suit."
In the case of Partha Sarathi Endowment Trust (supra), the Coordinate Bench of this Court held that :
"2. The plea of maintainability of the suit was raised for that the several plaintiffs having independent rights cannot join together in one suit and therefore the suit is hit by misjoinder of parties. Admittedly, such objection is raised at the initial stage of the suit and invited the Court to decide the same on the touchstone of Order I Rule 1 and Order II Rule 3 of the Code of Civil Procedure.
3. Before proceeding to deal with the points urged before this Court, it would be appropriate to adumbrate the salient features of facts necessary for such limited purposes.
17. I have an occasion to decide the identical point in case of Ranjit Ghosh wherein it is held that even if the several plaintiffs are interested in espousing their individual relief but if the same arises from the same set of facts and/or transactions the suit by them is maintainable in these words:--
"10. Order 1 Rule 1 of Code permits several persons to be joined in one suit as plaintiffs where any right to relief in respect of or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons whether jointly, severally or in alternative. Rule 4 of Order 1 enable the Court to pass judgment without any amendment for one or more of the plaintiffs as may be found entitled to relief.
11. Therefore, on conjoined reading of the aforesaid provisions several persons can be joined as plaintiffs where the reliefs sought for arises from same transactions of series of set of facts or series of acts or 9 transactions whether jointly or severally. Therefore, if several reliefs are claimed where one of the reliefs could be granted to one of the plaintiffs and others to the remaining plaintiffs. The said suit cannot be said to be not maintainable to the score of non-entitlement of whole of the relief by the other set of the plaintiffs. The position is clear that there is no difficulty in filing a plaint by the several plaintiffs for espousing the individual relief is the same arises from the same set of facts or transactions."
18. What emerges from the aforesaid reports are that where two or more persons are jointly entitled to any relief in respect of a same act or transaction, they must all join as plaintiffs in one suit."
In the instant case, admittedly the suit properties are jointly recorded in the name of the plaintiffs and the plaintiffs have their two respective shares and have entered into two separate lease deeds of different rates as plaintiff no. 1 is having excess area then the plaintiff no. 2 and as such rent of the plaintiff no. 1 is higher than the plaintiff no. 2. The defendant though had executed two lease deeds with the plaintiffs but is running the business of the petrol pump by utilizing both the lands and the plaintiffs have categorically stated that the reliefs of the plaintiffs arises out of the same act, transactions and if two suits are brought, common question of law and fact would arise for determination and both the plaintiffs are having same interest in the suit.
Order 1 Rule 4 of the Code of Civil Procedure reads as follows :
"4. Court may give judgment for or against one or more of joint parties.- Judgment may be given without any amendment-
(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to;10
(b) against such one or more of the defendants as may be found to be liable, according to their respective liabilities."
In the case of Partha Sarathi Endowment Trust (supra), the Coordinate Bench of this Court has held that there is no difficulty in filing a plaint by several plaintiffs for espousing the individual relief, if, the same arises from the same set of facts or transactions.
In the case of Santosh Madanlal Agarwal (Aurangabad Bench) (supra), the Hon'ble Court held that :
"11. The contents of the plaint shows that all the plaintiffs are owners of different pieces of land. At one breath they have contended that plaintiff No. 1 had taken lands of other plaintiffs for cultivation and at another breath they are contending that each one of them had entered into contract with defendant for the supply of bananas grown in their respective land. Further details have not been mentioned. Then they say that pass-book was given to each one of them by the defendant. Based on the entries in the passbook, they appeared to have filed suit. Therefore, it ought to have been seen by both the Courts below as to what was the reason and how they could have filed the suit collectively. Though law requires that the objection in respect of non-joinder or mis- joinder of necessary parties as well as cause of action should be taken at initial stage, yet if it is apparent or even doubt about it can be seen on the face of the record, then unless that point is not got clarified, both the Courts below ought not to have gone ahead with passing of the decree."
The facts of the case relied upon by the defendant is distinguishable and is not applicable in the present case.
In view of the above, the objection raised by the defendant that the plaintiffs have filed the suit jointly and the suit is not maintainable is negated.
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It is the admitted case of the plaintiffs that the plaintiffs have leased out the suit premises to the defendant and the defendant is running the business of petrol pump. In the case of Ambalal Sarabhai Enterprises Ltd. (Supra), the Hon'ble Supreme Court held that :
"37. A dispute relating to immovable property per se may not be a commercial dispute. But it becomes a commercial dispute, if it falls under sub-clause (vii) of Section 2(1)(c) of the Act viz. "the agreements relating to immovable property used exclusively in trade or commerce". The words "used exclusively in trade or commerce" are to be interpreted purposefully. The word "used" denotes "actually used" and it cannot be either "ready for use" or "likely to be used" or "to be used". It should be "actually used". Such a wide interpretation would defeat the objects of the Act and the fast tracking procedure discussed above."
As per the case of the defendant, the case of the plaintiffs covered under Section 2(1)(c)(vii) of the Commercial Courts Act, 2015. The said section reads as follows :
"Section 2- Definitions.
(1) In this Act, unless the context otherwise requires],
(c) "commercial dispute" means a dispute arising out of-
(vii) agreements relating to immovable property used exclusively in trade or commerce;."
The question whether a suit primarily for recovery of possession of immovable property under Section 106 of the Transfer of Property Act, pertains to a "Commercial Dispute" under the Commercial Courts Act, 2015 or simpliciter for eviction does not come within the purview of a 12 commercial dispute is decided by the coordinate bench of this Court in the case of Deepak Polymers Private Limited (Supra) and held that :
The suits squarely arise out of a statutory right conferred by Section 106 of the Transfer of Property Act, having no direct nexus with the lease agreements in respect of the immovable properties concerned. Thus, the pre-condition of the applicability of Section 2(1)(c)(vii), that is, the emanation of the dispute out of the lease agreement, is not satisfied in the present suits. Thus, the secondary question as to whether the immovable properties are used exclusively in trade or commerce, pales into insignificance."
The order passed in the case of Deepak Polymers Private Limited (supra) was challenged before the Hon'ble Supreme Court and the Hon'ble Court had upheld the said order.
The present case is covered under Section 111(a) of the Transfer of Property Act as there is no nexus with the lease agreement with respect of the suit properties. The period of 20 years of two lease deeds entered between the plaintiffs and the defendant expired on 1st August, 2018 and since then the defendant is in illegal occupation of the suit premises. The facts of the Judgment of Ambalal Sarabhai Enterprises (supra), are different from the fact of this case. The Judgment passed in Deepak Polymers Private Limited (supra) is squarely applicable in the present case.
In view of the above, the objection raised by the defendant that the suit is required to be filed before the Commercial Division is not sustainable.
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"Pucca Structure" defined under Section 2(13) and "Thika Tenant"
defined under Section 2(14) of The West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 which reads as follows :
"(13) "pucca structure" means any structure constructed mainly of brick, stone or concrete or any combination of these materials, or any other material of a durable nature;
(14) "thika tenant" means any person who occupies, whether under a written lease or otherwise, land under another person, and is, or but for a special contract, would be, liable to pay rent at a monthly or any other periodical rate for that land to that another person, and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose, and includes the successors-in-interest of such persons but excludes any resident of a structure forfeited to the State under subsection (2) of section 6 of this Act irrespective of the status, he may have enjoyed earlier."
In the case reported in 2014 SCC OnLine Cal 5448 (Mani Square Ltd. -vs- State of West Bengal & Ors.) held that "the expression "structure including pucca structure", was included in Section 2(14) of the Act of 2001 only for recognizing the tenancy of those thika tenants who constructed these pucca structures with permission of the Controller under provisions of the Act of 1949 or the Act of 1981, with the building plan sanctioned by the Municipal Corporation."
The order passed by this Court upheld by the Hon'ble Supreme Court reported in 2022 SCC OnLine SC 920 (Nemai Chadra Kumar (D) Thr. Lrs. & Ors. - vs- Mani Square Ltd. & Ors.), the Hon'ble Supreme Court held that :
"In summation of what has been discussed hereinabove, we could broadly say:
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1. The Full Bench decision of Calcutta High Court in Lakshmimoni Das (supra) is affirmed.
2. The structure, as put up by the appellants and/or their predecessors, had been pucca structure on the property in question.
3. For the structure being pucca in character and the term of lease being 20 years, the appellants and/or their predecessors were not thika tenants within the meaning of Section 2(5) of the Act of 1949.
4. The appellants and/or their predecessors were not thika tenants within the meaning of the Act of 1981 for two major reasons:
a. that the structure in question was a pucca structure; and b. that the Act of 1981 was not operative in relation to the property in question because of the stay order passed by the High Court.
5. On the date when lease expired in the month of November, 1993, the appellants and/or their predecessors were not thika tenants and, therefore, the Act of 2001 does not enure to their benefit.
6. The impugned decision of the High Court, therefore, calls for no interference."
In the present case, lease deeds were executed on 10th September, 2008 for 20 years with effect from 01.08.1998 for the purpose of running the business of petrol pump and thus the submissions of the Counsel for the defendant is not sustainable.
Now, this Court has to consider whether the defendant has raised any triable issue indicating that the defendant has a fair or reasonable defence.
The defendant while filing the affidavit in opposition to the instant application has set up the following defence:
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"a. The said application is misconceived, misconstrued, illegal, malicious, vexatious, malafide and is liable to be dismissed.
b. The petitioners have sought to make out a case which does not fall within the ambit of Chapter XIII A of the Original Side Rules of the High Court at Calcutta.
c. The agreement between the parties dated 10 September 2008 clearly provides for extension of the lease period for a period of 10 years on the parties mutually agreeing and executing such documents.
d. From the pleadings made in GA No. 2341 of 2019, it is evident that the petitioners also proceeds on such interpretation of the deed of lease and have also agreed that there were negotiations between the parties to extend the said lease.
e. It is pertinent to note that the respondent has also issued a letter on the petitioners on 13th April 2017 which was a step in furtherance of the mutual agreement contemplated under the deed of lease between the parties.
f. The parties have proceeded on negotiations/agreement for the purpose of extension of the said lease.
g. The delay in concluding any such extensions was primarily attributable to the petitioners who are attempting to take advantage of the time frame for negotiation by instituting the present suit, a malafide action on the face of it.
h. The respondent has been regularly making payment of rent of the sum of Rs. 23,805/- and Rs. 13028/- to the petitioners 1 and 2 respectively, which is also undisputed by the petitioners and there is no doubt that the respondent herein is ready and willing to continue as a lessee at the said premises.
i. The said application is pre-mature and without any basis since there are still talks of negotiation with regard to the said lease.
j. Be that as it may, no notice under section 80 (2) of the Code of Civil Procedure, 1908 has been served on the respondent in spite of the factum that the respondent is a wholly owned government undertaking.16
k. The plaint is therefore liable to be rejected in view of the fact that there is no disclosure of cause of action.
l. The suit is therefore liable to be dismissed as there is an malafide action on the part of the petitioners to rick havoc on the respondent by illegally scuttling the negotiation between the parties and proceeding to file a suit.
m. In the aforesaid circumstances, the said suit is liable to be dismissed as well as the application is liable to be dismissed."
The defendant has admitted that the agreement between the parties dt. 10th September, 2008 provides for extension of lease period for a further period of 10 years on mutual agreement between both the parties and executing such documents. The plaintiff has made out the specific case that even though the period of lease was about to expire, neither any step was taken by the defendant nor any interest was shown by them to obtain fresh lease deed with fresh rental for 10 years and even for initiating discussion for arriving at mutually agreed upon terms of the lease. The plaintiffs have also intimated the defendant for execution of fresh lease deed with revised rent and other terms mutually agreed but the defendant instead of making any offer requested the plaintiffs to send their offer as regard the terms. The plaintiffs have again sent two letters to the defendant to make an offer containing terms and conditions of the renewal of lease deed with revised rent but the defendant did not respond to the request of the plaintiff. Even thereafter a meeting was convened on 14th August, 2018 i.e. after the lease period of 20 years from 1st August, 1998 but the offer of the defendant was not accepted by the plaintiffs. In the affidavit, the 17 defendant has stated that the proposal is pending. The defendant has affirmed the affidavit on 7th February, 2020 which also indicates that till the date of affirmation of the affidavit, the defendant has not taken any decision for renewal of lease deed for 10 years. The defendant has also admitted that the plaintiffs have returned the cheques to the defendant.
In view of the foregoing discussion, this Court is of the view that the defendant failed to raise any arguable and substantial defence as required under Rule 6 read with Rule 9 of the Rule and the grounds raised by the defendant were only for the sake of raising and had no factual and legal foundation to stand for trial in the suit. Accordingly prayer (a) of the Masters Summons is allowed. Department is directed to draw decree accordingly. GA 1 of 2019 is disposed of.
As regard mesne profit is concern, this court is of the view that an enquiry is to be conducted to ascertain the mesne profit acquired by the plaintiff by appointing a Special Officer. Mr. Rajarshi Dutta, Learned Advocate is appointed as Special Officer to conduct enquiry to ascertain with respect of mesne profit and to submit report before this Court. The remuneration of the Special Officer is fixed at Rs. 6,00,000/-(Rupees Six Lakhs only). Initially, the plaintiff shall pay the remuneration to the Special Officer and it is open for the plaintiff to recover the same from defendant.
(Krishna Rao, J.)