Calcutta High Court (Appellete Side)
Smt. Jaya Sarkar vs Smt. Tanusree Sarkar on 7 May, 2015
07.5.2015.
ap
S. A.T. 427 of 2012
Smt. Jaya Sarkar
Vs.
Smt. Tanusree Sarkar
Mr. Sadananda Ganguly
Mr. Utpal Majumder
Mr. Mainak Bose
Mr. Sanjoy Bose
Ms. Tapati Chatterjee
... For the appellant.
Mr. Arup Banerjee
... For the respondent.
Re: CAN 8543 of 2012 and CAN 11228 of 2013.
The appellant has filed the above second appeal against the decree for eviction passed by the lower appellate Court affirming the decree for eviction passed against her by the Trial Court. On August 20, 2013 the Division Bench of this Court admitted the second appeal. By an order dated December 23, 2014, the learned Single Judge passed an interim order in CAN 8543 of 2012 of the appellant unconditionally staying all proceedings in the Ejectment Execution Case No. 20 of 2012 before the Civil Judge, Junior Division, 2nd Court, at Alipore till the end of January, 2015. The said ad interim order was extended from time to time and the same is subsisting.
During pendency of the said CAN 8543 of 2013 (the stay application) the respondent/land lady filed the application CAN 11228 of 2013 praying for, inter alia, an order requiring the appellant tenant, to pay occupation charges in respect of the suit property, at the market rate as a condition for obtaining stay of the aforesaid execution proceeding.
Since, the issue involved in both the applications filed by the appellant tenant and the respondent landlord is the same, that is, whether the appellant/tenant can claim unconditional stay of the execution proceeding arising out of the eviction decree of the first appellate Court both the applications CAN 8543 of 2012 and CAN 11228 of 2013 are taken up together for hearing and the same are disposed of by this common order.
The appellant was a tenant under the respondent in respect of flat, (measuring 870 square feet) together with a covered car parking space of a multistoried building, namely "Megha Mallar", Gariahat Road, Kolkata. Since 1987 the appellant paid Rs. 1900/- per month on account rent to the landlord and monthly maintenance charges to the Society/Association of the said multistoried building. From the affidavit-in-opposition of the appellant filed in CAN No. 11228 of 2013 it appears that the appellant is depositing Rs. 1900/- per month with the Trial Court and she is paying Rs. 3000/- per month to the society of the building on account of maintenance charges.
Mr. Sadananda Ganguly, learned counsel appearing for the appellant did not dispute that the suit property occupied by the appellant in said multistoried building "Megha Mallar" is situated on the main road at the four point crossing of Gariahat, in the prime residential cum commercial locality of the city of Kolkata. The said building, "Megha Mallar" is an well known multistoried building in South Kolkata and there is no complaint of the appellant with regard to the standard of maintenance and services of the building.
However, Mr. Ganguly, learned counsel appearing for the appellant submitted that after considering all the relevant facts of the case, by the said order dated December 23, 2014 the learned Single Judge passed the interim order of unconditional stay of all further proceeding in execution case. According to him, the said order should be extended till disposal of the second appeal without imposing any condition on the appellant to pay occupation charges as claimed by the respondent/landlady. He urged that in any event, the respondent/landlady in her application has not disclosed any document to substantiate the present market rent of any property in or around the suit property. He strongly contended that the respondent landlady is a resident of Germany and the eviction suit filed on the ground of reasonable requirement was not at all maintainable.
On the other hand, Mr. Banerjee, learned counsel appearing for the respondent/landlady submitted in view of the various decisions of the Supreme Court starting from the case of Atma Ram Properties (P) Ltd. vs. Federal Motors reported in (2005) 1 SCC 705 the appellant, against an eviction decree, cannot obtain stay of execution of the decree as a matter of right and as a condition for granting stay of the eviction decree or the execution proceeding, the appellate Court has the power to direct the appellant/tenant to pay occupation charges, in respect of the suit property, at the market. He further submitted that in her application, the respondent/landlady has disclosed the present market value of the suit property to be of Rs. 1 crore on the basis of the certificate issued by the Registering Authority and based on the decision of the Supreme Court in the case of State of Maharashtra vs. Super Max International (P) Ltd. reported in (2009) 9 SCC 772, this Court should direct the appellant to pay monthly occupation charges, in respect of the suit property, with effect from the date of the first appellate Court decree on the basis of such valuation of the suit property.
Mr. Banerjee further submitted that, so far as the contention of the appellant, that the suit could not be decreed on the ground of reasonable requirement, as the respondent/landlady is residing in Germany the respondent/landlady requires the suit property during her visits to Kolkata.
While disposing of these two applications, this Court is bound by the decisions in cases of Atma Ram Properties (supra), Super Max International (supra), Niyas Ahmed Khan vs. MahmoodRahmatulla Khan reported in (2008) 7 SCC 539 and other decisions, where the Supreme Court and this Court reiterated that in an appeal or revision preferred by a tenant against an order or decree of an eviction passed under a Rent Act, the appellate or the revisional Court is empowered to direct the appellant tenant to pay occupation charges at the market rate to compensate the decree-holder for the loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Of course, such terms should be reasonable.
It cannot be disputed that the prices, as also the rent in respect of properties, in all the metropolitan cities of the country, including city of Kolkata have sky- rocketed.
After considering the relevant facts of this case, that is, the suit property occupied by the appellant is a flat comprising 870 square feet in a multistoried building, along with a covered car parking space in the prime residential and commercial area of the city of Kolkata it appeared to this Court that it would be reasonable to direct the appellant to pay monthly occupation charges of Rs. 18000/- to the respondent plaintiff and Rs. 3000/- as monthly service charge to the Society of the building. To this, Mr. Ganguly, after taking instruction from the husband of the petitioner present in Court, prayed for some relaxation from Rs. 18,000/-. Mr. Banerjee appearing for the raised objection to such prayer of Mr. Ganguly.
However, in the interest of justice, after considering the renewed prayer of Mr. Ganguly, this Court is of the view that the appellant should at least pay Rs. 15,000/- per month to the plaintiff/respondent on account of monthly occupation charges from August, 2012, that is, the month commencing after the appellate Court decree dated July 25, 2012. Apart from the said sum of Rs. 15,000/- on account of the occupation charges, the appellant shall also continue to pay monthly maintenance charges payable to the society of the multi-storied building.
In these circumstances, both applications are disposed of with the following directions:
The appellant shall pay Rs. 15,000/- to the respondent/plaintiff on account of monthly occupation charges of the suit property from the month of August, 2012 till disposal of this appeal. Apart from the said sum of Rs. 15,000/-, the appellant shall also continue to deposit Rs. 3,000/- the monthly charges payable to the society/association of the building on account of maintenance charges.
So far as the outstanding amount of arrear occupation charges from the month of August, 2012 till April 2015, the appellant shall pay the said arrear occupation charges amounting to Rs. 4,95,000/- to the respondent.
Mr. Ganguly appearing on behalf of the appellant prayed for ten installments to pay the arrear amount Rs. 4,95,000/- to the respondent.
However, Mr. Banerjee appearing for the respondent submitted that the appellant should be directed to pay the arrear occupation charges of Rs. 4,95,000/- in six monthly installments.
Considering the prayer of Mr. Ganguly and the submission of Mr. Banerjee, the appellant is directed to pay the said sum of Rs. 4,95,000/- by way of eight equal monthly installments of Rs. 61, 875/- from June, 2015. Apart from the said monthly installments of Rs. 61, 875/-from the month May, 2015, the appellant shall continue to pay the monthly occupation charges of Rs. 15,000/- to the respondent together with other charges of Rs. 3,000/- to the society of the building within the 10th day of each month. In the event, the appellant continues to pay the said sum as monthly installment of Rs. 61,875/- from the month of June, 2015 and also pays Rs. 15,000/- per month to the plaintiff/respondent on account of the monthly occupation charges from the month of May, 2015 within the tenth day of each month, there shall be stay of all further proceedings in the Ejectment Execution Case No. 20 of 2012 pending before the learned Civil Judge, Junior Division, 2nd Court, at Alipore till disposal of the second appeal.
It is made clear that this order has been passed after considering the submissions made by Mr. Ganguly upon the instruction received from the husband of the appellant, who is present in Court, and it is also made clear that in the event there is any default on the part of the appellant to deposit any of the monthly installments of Rs. 61,875/- each or the monthly occupation charges of Rs. 15,000/- and other charges of Rs. 3,000/- for any month as stated above, the interim order passed in the matter shall stand automatically vacated without any reference to this Court.
The respondent/plaintiff shall communicate the particulars of her bank account to the advocate-on-record of the appellant and thereafter the appellant shall pay the arrear occupation charges and the monthly occupation charges from May, 2015 directly to the bank account of the respondent/plaintiff.
However, after payment of the arrear occupation charges for the said sum of Rs. 4,95,000/-, the appellant will be entitled to withdraw the amount already deposited by her with the Trial Court from August, 2012 upon serving notice to the respondent.
Photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Ashis Kumar Chakraborty, J.)