Calcutta High Court
E.D. Enterprises Private Ltd vs Kaiser Begum & Anr on 28 July, 2022
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ORIDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
[COMMERCIAL DIVISION]
BEFORE:
The Hon'ble Mr. Justice Ravi Krishan Kapur
IA No. GA 1 of 2021
In
CS No.105 of 2021
E.D. ENTERPRISES PRIVATE LTD.
Vs
KAISER BEGUM & ANR.
For the Plaintiff : Mr. Ratnanko Banerjee, Sr. Advocate
Mr. Debdut Mukherjee, Advocate
Mr. Kanishk Kejriwal, Advocate
Mr. Meghajit Mukherjee, Advocate
Ms. Shivangi Thard, Advocate
Ms. Rishika Goyel, Advocate
For the Defendant : Mr. Arik Banerjee, Advocate
Mr. Arijit Roy, Advocate
Mr. Partha Pratim Mukherjee, Advocate
Reserved on : 18.05.2022
Judgment : 28.07.2022
Ravi Krishan Kapur, J.:
1. This is an application for judgment on admission. The suit is filed for eviction and mesne profits. The suit premises comprises of the ground floor measuring about 374 sq.ft. (including a mezzanine floor ) situated at Premises no.42A, Shakespeare Sarani, Kolkata-700020 ("the suit premises").
2. By a lease agreement executed in January, 2016 by and between the plaintiff and the defendant no.1, the defendant no.1 was inducted as a 2 monthly lessee at a lease rent of Rs.60,000/- (subsequently enhanced to Rs.1,61,000/-). The suit premises is being used by the defendant no.1 for commercial purposes. The defendant no.1 is running a hair salon from the suit premises. Admittedly, the lease agreement is unregistered and insufficiently stamped.
3. It is alleged that, since December 2019, the defendant no.1 stopped paying any rentals in respect of the suit premises. By a notice dated 24 September, 2020 issued under section 106 of the Transfer of Property Act, 1882, the plaintiff sought for eviction of the defendant no.1. Significantly, the defendant no.1 had also instituted a prior suit before the City Civil Court at Calcutta being Title Suit No.571 of 2020 against the plaintiff inter alia praying for a declaration and perpetual injunction restraining the plaintiff from dispossessing the defendant no.1 without following the due process of law and further restraining the plaintiff from taking any steps to disconnect the electricity or the water supply at the suit premises. The earlier suit has since been transferred before this Court in its Ordinary Civil Jurisdiction (renumbered as EOS No.1 of 2021). In this background, the plaintiff seeks eviction of the defendant no.1 from the suit premises and rental arrears of Rs.17,11,500/- for the period December, 2019 to October, 2020 and for mesne profits in this suit.
4. The plaintiff has filed this application on the ground that the defendant no.1 has expressly admitted the relationship of landlord and tenant in the pleadings filed in the earlier suit. It is also admitted in the plaint 3 filed in EOS No 1 of 2021 that the quantum of rent of the suit premises was enhanced to Rs.1,61,000/- per month. Such admissions are to be found at paragraphs 2 and 4 of the plaint filed in EOS No 1 of 2021. The defendant no.1 has also not denied receipt of the notice under section 106 of the Transfer of Property Act, 1882. There is also a monetary claim for admitted outstanding lease rentals payable since December, 2019. These facts are not disputed by the defendant no.1. In this background, the plaintiff seeks a decree for judgment upon admission on the basis of the aforesaid admissions.
5. On behalf of the defendant no.1, it is contended that there is no admission which the plaintiff can rely on for the purposes of getting a decree at this stage of the proceeding. It is further alleged that in view of the earlier suit and the injunction restraining the plaintiff from taking any steps for eviction except without due process of law, this application is not maintainable. It is also contended that the notice dated 24 September, 2020 is invalid and does not comply with clauses 27 and 29(1) of the lease agreement which provides for a longer duration of notice. It is contended that there was an oral settlement between the plaintiff and the defendant no.1, wherein it was admitted that no rent or maintenance would be paid by the defendant no.1 from January, 2020 to October, 2020. On the aspect of maintainability, it is contended that this suit is not maintainable before the Commercial Division of this Court in view of the decision rendered in Deepak Polymers Private Limited Versus Anchor Investments Private Limited (Unreported decision 4 of the High Court at Calcutta dated 24 June, 2021 in CO No.759 of 2021). In this background, it is contended that no order can be passed in this application.
6. Order XII Rule 6 of the Code of Civil Procedure, 1908 provides as follows:
6. Judgment on admissions - (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub- rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
7. The provision of Order XII Rule 6 of the Code is enabling, discretionary and permissive. The object of the Rule is to expedite trials and enable a party to obtain a speedy judgment at least to the extent of the relief which according to the admission of the defendant the plaintiff is entitled. The Rule permits the Court at any stage of the suit, either on the application of any party or of its own motion and without determination of any other question between the parties, to make such order or give such judgment as it may think fit on the basis of the admission, having regard to such admissions. The purpose of this Rule is for either party to get rid of so much of the rival claims about "which 5 there is no controversy". Lord Jessel in Throp and Holdsworth (1876) 3 Ch D 637. Basically, the Rule permits the Court to sift through unworthy defences and leave the Court to spend time only on such aspects of the claim which call for an adjudication. The spirit and object of the Rule cannot be whittled down to suggest that every denial of the factum of admission or every dispute of the consequent liability on merits is to be pushed to trial (Adhunik Ispat Ltd. vs. Triveni Infrastructure Development Co. Ltd.(2011) 2 CHN 527).
8. Ordinarily, unworthy claims and frivolous defences form a substantial part of defences in civil trials. Recalcitrant and unscrupulous litigants take advantage of the known delays in the judicial process. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria reported in (2012) 5SCC 370, the Supreme Court has held as follows;
"False claims and false defences
84. False claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If a pragmatic approach is adopted, then this problem can be minimized to a large extent."
9. An admission can also be inferred from the facts and circumstances of the case without there being any dispute. In such cases, in order to expedite and dispose of the matter such admission can be acted upon. 6 Even on constructive admissions or what follows as a natural corollary the Court can proceed to pass a decree in the plaintiff's favour. [Charanjit Lal Mehra vs. Kamal Saroj Mahajan (Smt) (2005) 11 SCC 279 at paragraph 8, Pradeep Khanna vs Renu Khetarpal (2015) 219 DLT 417 at paragraph 28, Sirijit Sachdev vs. Kazakhastan Investment Services Pvt. Ltd. & Others 66 (1997) DLJ 54 at paragraphs 12 and 17, Rajgopal (HUF) vs. the State Bank of India 1999(49) DRJ 285 at paragraphs 8 and 9, H.K. Taneja vs. Bipin Ganatra 2013(1) Mh. L.J.783 at paragraph 20, Concrete Developers vs. State Bank of India (2022) 3 BomCR 636 at paragraphs 11 and 22 , Pooja Sharma vs. Garmeet Kaur 2013 SCC OnLine 4730 at paragraphs 17-19, Deepak Thiruwani & Anr. vs. Lalman Das Mansharmani (2013) 203 DLJ 391 at paragraph 12].
10. In Payal Vision Limited Vs. Radhika Choudhary (2012) 11 SCC 405 the Hon'ble Supreme Court has held as follows:
"In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintiff landlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute the Court can pass a decree in terms of Order 12 Rule 6 CPC."
11. At the outset, a question of maintainability of this suit has been raised by the defendant no.1. It is submitted that the suit is not maintainable on the Commercial Division of this Court and should have been filed in the Ordinary Original Civil Jurisdiction. I find that the suit 7 was initially instituted before the Ordinary Original Civil Jurisdiction of this Court and not before the Commercial Division and was registered as CS No.136 of 2020. In that suit, the defendant no.1 had filed an application being GA No.2 of 2021 for rejection of the plaint on the ground that the dispute between the parties was a "commercial dispute"
within the meaning of Commercial Courts Act, 2015. The matter was contested. By an order dated 7 April, 2021, this Court had directed return of the plaint for presentation before the Commercial Division. Pursuant to such direction, the plaintiff has now filed this suit before the Commercial Division of this Court. In my view, having contended that the suit was not maintainable in the Ordinary Original Civil Jurisdiction the defendant no 1 is now estopped from contending that the suit is now not maintainable before the Commercial Division of this Court. Accordingly, I find that the contention of maintainability is one made in sheer desperation and is outrightly mischievous. If taken to its logical conclusion, this argument would mean that no suit can be filed by the plaintiff against the defendant no.1 whether in the Commercial Division or in the Ordinary Original Civil Jurisdiction of this Court. Obviously, the only intent of the defendant no.1 is to drive the plaintiff from pillar to post. Thus, I find no merit in this contention and the same is rejected.
12. From the facts and circumstances of this case and the pleadings filed by the defendant no.1 the admitted facts which emerge are as follows:
(a) Admittedly, the plaintiff is the owner of the suit property; 8
(b) Admittedly, the defendant no.1 had been inducted by the suit premises by way of a lease agreement;
(c) Admittedly, the lease rental in respect of the suit premises is Rs.1,61,000/- (paragraphs 2 and 4 of the plaint filed by the defendant no.1 in EOS No.1 of 2021). Consequently, the suit is outside the purview of the West Bengal Tenancy and Tribunal Act, 1997.
(d) Admittedly, the defendant no.1 has failed to pay any lease rentals since December, 2019 in respect of the suit premises;
(e) Admittedly, the suit premises is being used for commercial purposes and for running a hair-salon;
(f) Admittedly, the petitioner has been served a notice under section 106 of the Transfer of Property Act, 1882 which has been duly received by the defendant no.1.
13. Thus, I find a clear and unequivocal admission on behalf of the defendant no.1 that there exists a relationship of landlord and tenant. The rent is Rs.1,61,000/-. The defendant no.1 has been duly served with a notice under section 106 of the Transfer of Property Act, 1882 determining the relationship of landlord and tenant. No rent or occupational charges have been paid since December, 2019. Accordingly, in my view, no triable issue has been raised by the defendant no.1. Nothing further remains in dispute and there is no question of the parties having to lead any further evidence save and except on the issue of mesne profits.
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14. The petitioner has also prayed for a decree of Rs.17,11,500/- in respect of occupational charges for the period from December, 2019 to October 16, 2020. I find the claim on account of occupational charges till the filing of the suit is also an admitted position. The defendant has not been able to demonstrate that any amount has been paid on account of occupational charges or lease rentals for the period December, 2019 to October 16, 2020. The only contention of the defendant is that security deposit aggregating to Rs.7 lakhs should be adjusted while calculating the arrears of rent. The defendant no.1 admits that the last paid rent was Rs.1,61,000/- per month. No tenant can be allowed to retain possession of the tenanted premises without payment for its use and occupation (National company Vs Territory Manager, Bharat Petroleum Corporation Limited (2021) SCC OnLine SC 1042 at paragraph 38). Thus, after adjusting the amount on account of security deposit, the plaintiff is entitled to the balance sum of Rs.10,11,500/-. In view of the aforesaid, I grant a decree for said sum of Rs.10,11,500/- as prayed for by the plaintiff.
15. On the aspect of the merits of the notice under section 106 of the Transfer of Property Act, 1882, in my view, the object of the notice under section 106 of the Transfer of Property Act, 1882 is to intimate the tenant the intention of the landlord that he wants the suit premises back. The section mandates that the notice period should be fifteen days time to vacate. Such notice is not meant to be a pleading or to be read as a statute. Such notices are to be liberally construed. There is a 10 statutory obligation on the tenant to vacate the suit premises upon the expiry of the fifteen days period.
16. An issue has also been raised on behalf of the defendant no.1 that the since there is an arbitration clause in the lease agreement the parties should be referred the arbitration. This is also a misconceived and untenable submission both in fact and in law. The defendant no.1 itself had filed a suit being Title Suit No.517 of 2021 before the Learned City Civil Court at Calcutta. The written statement has also been filed in the said suit. The defendant no.1 has also applied for extension of time to file the written statement in this suit. In view of the aforesaid, the conduct of the defendant no.1 evidences a clear intention of the respondent no.1 having waived and abandoned the arbitration agreement. Hence, the defendant no.1 cannot now seek to refer the disputes to arbitration (See Krishna Sarma vs. Ramesh Kumar Joshi & Ors. (2006) 3 Arb LR 186 at paras 14-18, 28-34 and Gupta Global Exim Pvt Ltd. vs. MV Asean Express MANU/GJ/0429/2004 at paras 16-18). In any event, the mandatory requirements under section 8 of the Arbitration and Conciliation Act, 1996 have not been complied with by the defendant no.1 (See Sukanya Holdings Pvt Ltd. vs. Jayesh H. Pandya (2003) 5 SCC 531 at para 12). Hence, I find no merit in this submission and same is rejected.
17. Thus, in the absence of any protection under any Rent Control Legislation or the express terms of the contract, in my view the 11 respondent no.1 has not been able to demonstrate a semblance of a legal right to remain in possession.
18. Ownership to the layman as a simple notion. It is merely a question of meum and tuum. If the thing is mine, I own it; if it is not, I do not (The Law of Property, T.H Lawson and Bernard Rudden 2nd Edition at Page 7) The development of the law of property has not always met with unqualified adulation. Possession has always been three-fourths of the law. However, the remaining one-fourth cannot be reduced to absurdity. The principles of "without due process of law" or "in accordance with law" meaning thereby only a full-fledged trial has become a travesty of justice for the plaintiff landlord. The owner of a property cannot be left with the mere husk or phantom of title of his property. From a different perspective, how would any person react if he or she was in the shoes of the plaintiff landlord owner?
19. In a different context, Vivian Bose, J. in State of Bombay Vs Bhanji Munji And Another (AIR 1955 SC 41) had observed as follows:
"A race of proprietors in the shape of rapacious landlords who thrived on the misery of those who could find no decent roof over their heads sprang into being. Even the efficiency of the administration was threatened because government servants could not find proper accommodation. Milder efforts to cope with the evil proved ineffective."
20. In my view notions of social welfare, public good, rack-renting, public interest and shortage of accommodation can longer be the yardstick on which such matters ought to be decided. Time plays an important role in 12 reading any judgment. Land is no longer scarce. The prices have also escalated. The modern day tenant or at least a section of them appreciates the value of possession. The systemic delays in the final disposal of such suits adds to the woes of the owner landlord and is a reality. Security guards, caretakers and corner shops have thrived and continue to make a mockery of justice. The extortionate and unreasonable demand made by tenants or at least a section of them to be compensated in terms of the market value prior to vacating the suit premises is a notorious fact. The more benevolent tenant ask for a right to joint development of the suit premises with an indefeasible right to own the penthouse in the proposed development. No sensible law can encourage or contribute to such conduct.
21. Even on the touchstone of common sense, the stand of the defendant no.1 is incomprehensible and inequitable. The defendant no.1 continuous to be in an enviable position. The defendant no.1 is in actual possession of the suit premises. Commercially exploiting the same. Not paying a single penny as rent or occupational charges in respect thereof. And seeks the luxury of an unnecessary and prolonged trial which would conservatively take at least a decade if not more before it attains finality. There can be no inherent right in a tenant not to vacate the suit premises even after determination of the lease by means of a notice under section 106 of the Transfer of Property Act, 1882. In a system governed by the Rule of Law how can such conduct be permitted far less encouraged?
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22. Accordingly, in view of the admitted, uncontroverted and indisputable facts as mentioned hereinabove the petitioner landlord is entitled to a decree for judgment on admission. There shall be an order in terms of prayer (a)(i) of the Notice of Motion. There shall also be an order in terms of prayer (a)(ii) of the Notice of Motion. The claim for occupational charges is limited to Rs.10,11,500/-. The defendant no.1 is liable to forthwith vacate the suit premises preferably before sunset and without beat of drum.
23. In view of the unmeritorious, unbecoming and incorrigible stand of the defendant no.1, costs are assessed at Rs.5 lakhs to be paid by the defendant no.1 to the plaintiff. With the aforesaid directions, GA 1 of 2021 stands allowed.
(Ravi Krishan Kapur, J.) Later:
After pronouncement of the judgment, the Advocate appearing on behalf of the defendant no.1 prays for stay of operation of the judgment. The prayer for stay is considered and rejected.
(Ravi Krishan Kapur, J.)