Calcutta High Court
Abl International Limited vs Indian Oil Corporation Limited on 14 December, 2018
Equivalent citations: AIRONLINE 2018 CAL 1600
Author: Moushumi Bhattacharya
Bench: Biswanath Somadder, Moushumi Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Present:
The HON'BLE JUSTICE BISWANATH SOMADDER
AND
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
APD No.494 of 2014
With
C.S. No.77 of 1995
ABL INTERNATIONAL LIMITED
VS.
INDIAN OIL CORPORATION LIMITED
APO No. 207 of 2015
With
C.S. No.77 of 1995
INDIAN OIL CORPORATION LIMITED
VS.
ABL INTERNATIONAL LIMITED
For the Appellant : Mr. Jishnu Saha, Sr. Advocate,
Ms. Sulagna Mukherjee, Advocate.
Ms. U.S. Menon, Advocate.
Mr. Abhirup Chakraborty, Advocate.
For the IOCL : Mr. Dhruba Ghosh, Sr. Advocate,
Mr. Shuvasis Sengupta, Advocate
Ms. Trisha Mukherjee, Advocate
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Heard on : 29.11.2017, 30.11.2017, 04.12.2017,
05.12.2017, 12.12.2017, 09.01.2018,
11.01.2018, 18.01.2018, 30.01.2018,
08.02.2018, 04.05.2018, 08.06.2018,
15.06.2018, 22.06.2018, 29.06.2018,
20.07.2018, 03.08.2018, 17.08.2018 and
14.09.2018.
Judgment on : 14.12.2018.
Moushumi Bhattacharya, J. :
These are two appeals from a Judgment dated 25th September 2014 as corrected by an order dated 28th October 2014 passed by the learned First Court. The suit is for a money decree filed by the plaintiff ABL International Limited (ABL) against the defendant Indian Oil Corporation (IOC) on the basis of an agreement executed between the parties in relation to four floors of premises no.1, Shakespeare Sarani, Kolkata, for a term of 21 years commencing from the date when the said floors were handed over to the defendant IOC.
2. By the impugned judgment, the learned First Court held that the defendant IOC was a trespasser in relation to the three floors of the 3 premises in question from 3rd November, 1991 to 31st May, 1994 and that the plaintiff ABL was entitled to mesne profit for the said period.
3. The defendant IOC has challenged the impugned judgment and order (APO no. 207 of 2015) by reason of the above findings of the learned First Court. The plaintiff ABL has also preferred an appeal (APD 494 of 2014) challenging the period for which the mesne profit was granted.
4. According to the plaintiff, a supplementary agreement registered on 12th September, 1969 modified the terms and conditions of the earlier deed of lease dated 21st November, 1968 and the second and third floors were handed over to the defendant on 12th September 1969; the 4th floor on 18th December, 1969 to the defendant. The defendant allegedly failed to take possession of the guest house on the 9th floor. The plaintiff further claimed that the defendant failed to finalise the execution of a suitable lease in respect of the second, third and fourth floor of the premises in question and the money lent and advanced to the plaintiff by the defendant was recovered by the latter in the manner laid down in a lease deed of 21st November, 1968 as modified on 12th September, 1969. The 21 years envisaged in the lease expired on 11th September, 1990 and the plaintiff called upon the defendant to hand over possession of the second and third floors, and the 4th floor on 17th December, 1990. By a letter dated 3rd November, 1990 the defendant was asked to hand over possession of the third floor. The plaintiff claims that the defendant handed over possession of the 2nd, 3rd and 4th floors only 4 on 31st May, 1994 and hence was in wrongful possession of the said floors after expiry of the term on 11th September 1990; and was in wrongful possession of the 4th floor from 17th December, 1990 or 3rd/4th November, 1991 (on the basis of the defendant's computation) until 31st May, 1994. The plaintiff claims mesne profits in respect of 57,105 square feet comprised of the 2nd, 3rd and 4th floors at the rate of Rs.31 per square feet per month.
5. The defendant's (IOC) case is that the 2nd, 3rd and 4th floors of the premises were handed over by the plaintiff to the defendant on 4th November, 1970 and the plaintiff determined the tenancy on 7th December 1977 by which the defendant was called upon to vacate the 2nd, 3rd and 4th floors; which the defendant did not. Since a suit filed by the plaintiff for a decree for possession being suit No.20 of 1978, was dismissed by this Court, the defendant continued to occupy the three floors and paid monthly rent to the plaintiff who accepted the same every month. By a letter dated 19th October 1990, the defendant was called upon to make over possession of the three floors which was replied to by the defendant by a letter dated 3rd November, 1990 contending that since the defendant was given possession on 4th November, 1970, the period of 21 years had not expired. The defendant meanwhile intended to shift to a new office building at Gariahat Road, Kolkata and issued a notice for public auction of the furniture and fittings lying at the suit premises namely, 1, Shakespeare Sarani, Kolkata. Pursuant to the notice for auction, the plaintiff bought the furniture at a settled price which was adjusted against the arrears of municipal taxes. 5 Finally, the defendant gave a notice to quit on 30th May, 1994 and vacated the premises on 31st May, 1994 which was accepted by the plaintiff without any objection. The defendant claims that the lease was governed by The West Bengal Premises Tenancy Act, 1956 and that the defendant was a monthly tenant in respect of the three floors of the suit premises. The monthly rent tendered by the defendant was accepted by the plaintiff and since the defendant vacated the premises on its own, the claim for mesne profit is without basis. In the alternative, after determination of the lease on 7th December, 1977, the defendant became the monthly tenant of the plaintiff on and from January 1978 and was treated as such by the plaintiff. In any event, the claim of the plaintiff for mesne profits up to 15th March, 1994 is barred by limitation.
6. The following issues were settled by an order dated 24th September 2012 and were:
i) Is the suit maintainable in its present form? ii) Is the suit barred by limitation?
iii) Is the plaintiff entitled to the decree as prayed for?
iv) To what other relief or reliefs, if any, is the plaintiff entitled?
7. The defendant/appellant IOC contends, inter alia, that the hearing of the suit was adjourned for quantification of the mesne profit and no decree can be said to have been passed by the Court below.
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8. Mr. Dhruba Ghosh, learned Senior Counsel appearing for the appellant, assisted by Mr. Shuvasis Sengupta, learned Counsel for IOC, in the first appeal urges that the defendant was never in wrongful possession of the premises during from 3rd November, 1991 to 31st May, 1994 and that the defendant was a monthly tenant in respect of the said premises during that period with the consent of the plaintiff ABL. Accordingly, there was no termination of the monthly tenancy under the 1956 Act. The contentions of learned Counsel can be summarised as follows;
i) IOC was a monthly tenant from the very inception i.e. since 21st November, 1968. The lease agreement relied upon by ABL dated 21st November, 1968 was only an agreement for a lease and was not a concluded lease. Learned counsel relies on the language of this document to submit that the parties intended to do something in future in pursuance of the agreement for lease after possession of the agreed area of the premises was handed over by ABL to IOC. He relies on Clause 14 of the document to show that a monthly tenancy was envisaged till such time the lease was executed and during such monthly tenancy or as long as monthly rent was being paid by IOC and accepted by ABL, the latter could not be evicted. He urges that no new deed of lease was executed between the parties as would be evident from the document particularly the last clause which states that "And it is hereby also agreed by and between the confirmer, the lessor and the lessee that the lessor shall execute a formal Deed of Lease in favour of the lessee when the lessee will require the same......."
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ii) Since no lease deed was executed, IOC was to be treated as a monthly tenant right up to 31st May, 1994 under the provisions of the 1956 Act. The supplementary agreement dated 12th September, 1969 cannot be construed as a fresh lease as it merely records certain changes in the clauses of the earlier lease deed.
iii) A suit filed by ABL being C.S. No. 20 of 1978 was settled between the parties and from June, 1980 thereafter till 31st May, 1994 IOC was a monthly tenant since the earlier notice of termination of the lease dated 7th December 1977 could not be revived. Learned counsel relies on the provisions of The Transfer of Property Act, 1882, in that once the lease is terminated, it cannot be revived without the consent of the parties thereto.
iv) Even assuming that there was a valid lease deed, since IOC was given possession only on 4th November, 1970, 21 years would have expired only on 3rd November, 1991 (and not in October 1990 as alleged by ABL). The fact of possession being given to IOC on 4th November, 1970 would appear from the minutes dated 5th June, 1980 where ABL agreed not to demand any rentals prior to 4th November, 1970.
v) Even if it is assumed that the lease continued till 4th November, 1991, IOC was permitted to occupy the premises up to 31st May, 1994 and ABL accepted the rents paid by IOC along with other charges.
vi) The amicable nature of the occupation from 1991 to 1994 would be evident from correspondence between the parties, particularly the letter dated 30th May, 1994 which shows that IOC surrendered the tenancy out of 8 its own volition. This letter also refers to IOC as a tenant. ABL co-operated IOC in terms of purchasing the furniture of IOC lying at the said premises. This letter dated 30th May, 1994 further stated that after May, 1994, IOC would have no liability for payment of rent and that the three floors of the suit premises were being surrendered by IOC.
vii) Since ABL never sought eviction of IOC after November, 1991, IOC was never declared as a trespasser and no such declaration has been claimed in the instant suit. Hence the question of mesne profit, as defined under Section 2 (12) of the Code of Civil Procedure, 1908 does not arise.
09. On the first point that the agreement in question was an agreement for lease which expired by efflux of time, Mr. Jishnu Saha, learned Senior Counsel with Ms. Sulagna Mukherjee, learned Counsel, appearing for the respondent/plaintiff ABL, places several paragraphs of the written statement where the defendant has specifically described the agreement dated 21st November, 1968 as a lease. Paragraphs 1, 4 and 8 of the written statement are required to be set out below:
.................. "Both the said documents were not only registered but the requisite stamp duty as applicable to lease were paid thereon. The terms of the lease have been finally ascertained and recorded in the said two documents which gave the defendant right of exclusive possession. The said document dated 21st November 1968 operated as a deed of lease and was modified by the supplementary registered deed dated 12th September 1969". ................... "All the terms and conditions of the lease were finalized and set out in the document described as agreement for lease dated 21st November 1968................the said 9 document dated 21st November 1968 constituted the actual demise of the property and operated as deed of lease. Since he plaintiff and the defendant treated the said document dated 21st November 1968 as deed of lease as modified by the supplementary deed dated 12th September 1969, neither the plaintiff nor the defendant insisted upon execution of a formal deed of lease as requisite stamp duty as applicable to lease has been paid and the said documents had been registered" and ................. "..........it is stated that the period of 21 years expired on 4th November 1991 and all allegations to the contrary are denied and disputed."
10. Learned Counsel also refers two letters dated 3rd November, 1990 and 4th November, 1993 both written by the defendant IOC where the agreement in question has been described as an agreement for lease. He refers to the evidence of the defendant's witness, Mantu Chandra Das, where there has been no denial of the fact that the agreement executed between the parties was indeed an agreement for lease of the premises in question. A specific statement had in fact been made by the defendant's witness that the defendant was a lessee under the plaintiff since November, 1970 in respect of the 2nd, 3rd and 4th floors of the building at 1, Shakespeare Sarani and further that the lease expired in 1991 (Questions 4, 12 and 73). Mr. Saha submits that in light of the aforesaid, it is clear that the defendant proceeded on the basis of the agreement being a lease and altered its stand only much later at the stage of arguments.
11. On the point that there was never any agreement for a monthly tenancy between the parties, counsel for the respondent/plaintiff submits 10 that once a lease is permitted to run its full course, it is no longer open to the lessee (the appellant IOC in this case) to take the prior determination clause as a defence. According to him, the stand taken by the defendant when it was asked to deliver possession of the premises, was that the lease of 21 years had not yet expired. The possession of the premises was handed back to the plaintiff only much later in May 1994 and having allowed the lease period to run its full course, the defendant cannot take recourse to the prior determination provision in the lease to contend that the lease was in fact a tenancy governed by the provisions of The West Bengal Premises Tenancy Act, 1956. Learned Counsel relies on Pabitra Kumar Roy and Anr. Vs. Alita D'Souza reported in (2006) 8 SCC 344 in which it has been held that by mere inclusion of a prior determination clause, a lease for a fixed term would not seem to be so unless the option of prior determination is exercised. He relies on ABL International Limited Vs. Durgapur Project Limited reported in (2010) 3 CHN Cal 572 and Durgapur Project Limited Vs. ABL International Limited reported in (2011) 2 CHN (CAL) 522.
12. The next point urged by Mr. Saha is that the appellant/defendant's occupation of the suit premises after 7th December, 1977 was not by way of a monthly tenant who could take recourse to the protection of the 1956 Act. Learned Counsel points to paragraph 7 of the defendant's written statement where it has been stated that the plaintiff by a notice dated 7th December, 1977 had determined the tenancy and filed Suit No.20 of 1978 in this Court since the defendant did not vacate the premises. The said suit was 11 dismissed on 20th June 1986 as not pressed and the defendant continued to occupy the three floors as before and paid rent to the plaintiff which was accepted by the plaintiff every month. Mr. Saha submits that contrary to the aforesaid statements, the notice of 7th December 1977 has not been produced or proved by the defendant and that by a meeting between the parties on 5th June 1980, all claims were withdrawn. He relies on the minutes of the meeting (Exhibit-8) from which it is evident that the parties by their conduct waived the notice to terminate the tenancy on 7th December 1970, subsequent to which the defendant allowed the lease to run its entire course of 21 years. Reliance is placed on Section 113 of The Transfer of Property Act, 1882, which provides that a notice given under Section 111(h) is waived by any act on the part of the person to whom the notice is given or the person who gives the Notice showing an intention to treat the lease as subsisting. The fact that the defendant did not vacate the suit premises and continued to occupy the three floors "as before" (as stated in paragraph 7 of the written statement), shows that the parties by their conduct waived the operation of notice of termination given in December 1977. Counsel relies on Calcutta Credit Corporation Limited and Anr. Vs. Happy Homes Private Limited reported in AIR 1968 SC 471. He submits that there is no evidence on record to show that the defendant treated the agreement to be anything else but a deed of lease.
13. On the other point that there was no holding over of the suit premises by the appellant IOC after expiration of the lease, it is submitted that the 12 defendant has not pleaded this case in his written statement. Mr. Saha relies on Bachhaj Nahar Vs. Nilima Mandal reported in (2008) 17 SCC 491, on the proposition that no arguments can be brought in without pleadings. Counsel submits that even on facts, the plaintiff accepted occupation charges from the defendant until 31st May 1994 without prejudice, as would be evident from the plaintiff's letter dated 2nd January 1991 (Exhibit-L). Mr. Saha urges that mere continuance in occupation of the demised premises after the expiry of a lease, notwithstanding the receipt of rent by a landlord would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. In such cases, the tenant would be treated as a trespasser, not having any independent right to continue in possession; reference C. Albert Morris Vs. K.Chandrasekharan & Ors. reported in (2006) 1 SCC 228.
14. For ease of reference, upon hearing the parties, the learned First Court came to the following findings;
a) The document dated 21st November 1968 is a deed of lease since the defendant IOC had also referred to the said document as a lease in its written statement.
b) The lease was terminated by the plaintiff ABL and there was no waiver of the said notice of termination by IOC. The basis of such finding was that cross suits were filed by the parties against each other. Subsequent to the notice of termination 13 being withdrawn, the parties decided to refer the question of mesne profits to the chairman of IOC.
c) That acceptance of rent by ABL from IOC would not make IOC a monthly tenant in respect of the said premises. The learned Judge relied on Bhawanji Lakhamshi & Ors. Vs. Himatlal Jamnadas & Ors. reported in AIR 1972 SC 819 where the Hon'ble Supreme Court held that mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, cannot be regarded as evidence of a new agreement of tenancy. The Learned Judge also relied on Smt Phool Rani Trivedi & Anr. Vs. Sheel Chandra reported in AIR 2004 Delhi 424 where a Division Bench of the Delhi High Court held that where a lease for a fixed period is determined by efflux of time without the lease deed having a renewal clause, a plea of holding over is not open for the tenant. Reliance was also placed on Shanti Prasad Devi & Anr. Vs. Shankar Mahto & Ors. reported in AIR 2005 SC 2905 in which it was held that in the absence of an express or implied agreement on the part of the lessor for renewal of lease, there can be no implied renewal by holding over on mere acceptance of rent offered by the lessee.
15. The grounds on which the impugned judgment has been assailed by the defendant IOC is that mere reference to a document as a lease cannot be 14 the sole ground for holding that the document dated 21st November 1968 was a deed of lease and that the learned First Court should have examined the nature of the document. Mr. Ghosh submits that the learned First Court failed to appreciate that the suit was withdrawn in 1980 and the defendant IOC continued as a monthly tenant up to 1994 and further that the quantum of rent was referred to the chairman of IOC for adjudication in 1994. He submits that the learned first Court did not consider Bhawanji Lakhamshi in its entirety and that in the facts of the instant case, since the monthly tenancy of IOC was not ternimated the question of IOC being a statutory tenant during the relevant period does not arise. He further submits that since the learned Judge was not satisfied with the evidence of the plaintiff on the quantum of mesne profits, the suit should have been dismissed and the question of referring the disputes to a special referee for deciding the quantum of mesne profits did not arise.
16. Mr. Saha defends the impugned judgment under the following heads:-
i) The agreement in question was an agreement for lease which expired by efflux of time.
ii) There was never any agreement or otherwise for a monthly tenancy between the parties and the document dated 21st November 1968 cannot be construed as such.
iii) The appellant/defendant's occupation of the suit premises after 7th December 1977 was not by way of a monthly tenant which could entitle it to 15 the protection under the provision of The West Bengal Premises Tenancy Act, 1956.
iv) There was no holding over of the suit premises by the appellant/defendant after expiration of the lease.
17. The learned First Court was of the view that since the parties allowed the lease to run its full course, the defendant (appellant) as the lessor cannot be permitted to take shelter of the clause for prior determination or contend that the lease is governed by the provisions of the 1956 Act.
18. The learned First Court gave the following reasons for arriving at the findings as indicated above. First, since the appellant/defendant itself had described Exhibits A and F (registered deed of 21st November 1968 and the registered supplementary agreement of 12th September 1969, respectively) as a Lease in the very first paragraph of its written statement, it could not be permitted to argue a case different from its pleadings. The Learned Single Judge relied on (2003) 4 SCC 161(Bondar Singh) and (2003) 10 SCC 653 (Rajgopal) for the said proposition. The learned First Court was also of the view that the construction sought to be given by the defendant that the agreement was not a lease since there was no present demise of the property cannot be accepted in view of Ramjoo Mahomed vs. Haridas Mullick & Ors. reported in AIR 1925 Cal 1087 which held that even if a lease is to commence at a future date, it does not follow that the agreement will not operate as a present demise of the premises.16
19. The appellant's contention that it is protected under the provisions of The West Bengal Premises Tenancy Act, 1956 since the lease provided for an option to terminate and further that the defendant was never in wrongful possession of the premises till it voluntarily quit in May 1994, was rejected by the Learned Single Judge on the dictum in Pabitra Kumar Roy & Another vs. Alita D'souza reported in (2006) 8 SCC 344 In this decision, the Hon'ble Supreme Court held that a clause for prior determination of the lease does not mean that the lease ceases to be so unless the option for prior determination is exercised. The learned Judge was of the view that since the appellant did not exercise its option to determine the lease before the expiry of 21 years, the prior determination clause will not assist the case of the defendnant held in ABL International 2010 3 CHN 572. He was further of the view that having allowed the lease to run its full course, the appellant /defendant cannot be permitted to take recourse to the prior determination clause and urge that it is governed by the 1956 Act. On the issue of the termination clause not being withdrawn, the Learned Judge relied on the view taken in Calcutta Credit Corporation AIR 1968 SC 471 in that a tenancy comes to an end once a notice is served determining the same unless it is treated to be subsisting with the consent of the party to whom the notice is given.
20. On the question of the starting point of the lease, the learned Single Judge however did not concur with the plaintiff that the appellant was put in possession of the second and third floors on 12 September 1969 and of 17 the fourth floor on 18 December 1969. The learned Judge held that the dates sought to be contended by the plaintiff was by way of inference from documents and there was no direct evidence of the dates when the defendant was put in possession of the respective floors. It was on the basis of this date that the expiry of the lease was calculated as 3rd November 1991 and the entitled of the plaintiff to mesne profits was taken from 3rd November 1991 to 31st May 1994.
21. On the question whether the possession of the defendant of the suit premises from 3rd November 1991 to 31st May 1994 was wrongful so as to entitle the plaintiff to mesne profits under Section 2(12) of The Code of Civil Procedure, 1908 (CPC), the learned Judge accepted the ratio of Bhawanji Lakhamshi that mere acceptance of rent by landlord from a tenant in possession after a lease had been determined by efflux of time or by notice to quit, cannot be regarded as evidence of a new agreement of tenancy. The learned Judge also relied on Smt Phool Rani Trivedi and Shanti Prasad Devi for the general proposition that a plea of holding over is not open to a tenant where the lease did not contain any renewal clause or where the lessor did not agree to renewal of the lease. The learned Judge therefore held that the plaintiff had disputed the continued occupation of the suit premises by the defendant after the lease had expired by efflux of time and further that the plaintiff demanded adequate compensation for the period during which the defendant remained in possession after expiry of the lease. The First Court relied on ABL International Limited where the Appeal Court 18 found that a valuer's report may not be reliable in the absence of other evidence. It was on the aforesaid basis that an advocate was appointed as the Special Referee for quantifying the mesne profits for the three floors from 4th November 1990 till 31st March 1994 and to submit a report on the next date of hearing.
22. We have considered the submissions of counsel and the materials-on-
record. We agree with the finding of the learned First Court that the agreement dated 21st November 1968 (Exhibit-A) was an agreement for lease for the three floors in the suit premises. We find that the defendant had itself described the agreement of 1968 and the supplementary agreement of 12th September 1969 (Exhibit-F) as a "lease" in several paragraphs of its written statement (which has been quoted earlier on in this judgment). The averment of the defendant in the written statement is not a solitary statement which can be taken to have been made through inadvertence, but reiteration of the defendant's position that the defendant all along treated the said agreements to be a lease where the requisite Stamp Duty had also been paid. The defendant also stated that both the parties had in fact "treated the document dated 21st November 1968 as a deed of lease as modified by the supplementary deed dated 12th September 1969". Besides the specific stand taken by the defendant in the written statement, in its letter dated 3rd November 1990, the defendant had also clearly stated that "the period of the lease has ....................not expired ................." 19 as well as in the letter dated 4th November 1993 (Exhibit-Q) where it was stated that ".................we reiterate that after the expiry of the lease period we have been holding over as a monthly tenant......"
23. Since the same position emerges from the evidence of the witness of the defendant, we cannot but rely on the fundamental dictum laid down in Vinod Kumar Arora Vs. Surjit Kaur reported in (1987) 3 SCC 711 that it is not open to a party to give up the case set out in the pleadings and propound a new and different case at the stage of arguments. If the document dated 21st November 1968 is taken as an agreement for lease, it must follow that once the lease is allowed to run its full course, a lessee cannot take the prior determination clause as a defence.
24. On the point that the defendant is not permitted to argue that the parties would be governed by The West Bengal Premises Tenancy Act, 1956, we are in agreement with the ratio of Pabitra Kumar Roy that mere inclusion of a prior determination clause will not alter the character of a lease for a fixed period unless the option is exercised. We also find no evidence on record which would show that the defendant took steps to exit the lease before May 1994 which would also be clear from its stand in October 1990 when it was asked to deliver possession of the premises. In not choosing to exercise the option of prior determination and instead 20 allowing the lease to run its full course, the defendant cannot take refuge the argument of the lease being a tenancy under the 1956 Act.
25. We have also considered the rival submissions in relation to the issue urged by the defendant that a fresh tenancy was created after the lease expired by efflux of time and are not persuaded to accept the contention of the defendant. The defendant has not pleaded such a case in its written statement or that the plaintiff had assented to the defendant continuing in possession of the leased premises. Further, the plaintiff accepted occupation charges from the defendant "without prejudice" which would be evident from the plaintiff's letter dated 2nd January, 1991 (Exhibit-L) for the period after expiry of the lease to 31st May, 1994 when the defendant relinquished the suit premises. We are in agreement with the dictum laid down by the Hon'ble Supreme Court in C. Albert vs. K. Chandrasekharan & Others reported in (2006) 1 SCC 228 that acceptance of occupation charges after expiry of the period of a lease does not create a fresh tenancy. We accept the contention of counsel for the respondent/plaintiff in this regard that mere continuance in occupation of the demised premises after expiry of a lease, notwithstanding the receipt of an amount by the landlord, would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. As laid down in the decision cited, the status of an erstwhile tenant has to be treated as a tenant at sufferance and akin to a trespasser having no independent right to continue in possession. We are also in agreement with the reliance placed by the learned Single Judge on 21 the decisions considered on this issue particularly in Bhawanji Lakhamshi, Smt. Phool Rani Trivedi and Shanti Prasad Devi where it was held that the determining factor is whether the landlord has assented to the continuing possession of a tenant after expiry of the lease. The plea of holding over is not open to the tenant where a lease for a fixed period has been determined by efflux of time and the lease does not contain any renewal clause,
26. For the reasons as stated above, we find no basis for interfering with the decision of the learned Single Judge and accordingly hold that APO No. 207 of 2015 is liable to be dismissed.
27. The plaintiff has challenged a part of the impugned judgment dated 25th September, 2014 to the extent of the finding that the defendant came in possession of the three floors of the suit premises on 4th November, 1970 and that the lease expired by efflux of time on 3rd November, 1991. The plaintiff is aggrieved with the finding of the learned Single Judge that a decree of mesne profit cannot be passed on the basis of the evidence-on- record on the basis of which the learned Judge refrained from accepting the dates of handing over of possession of the three floors to the defendant as urged by the plaintiff. The plaintiff has relied on several exhibits to contend that the defendant deposited amounts with the plaintiff which would show that possession of the particular floor had already been handed over to the defendant by that time. The reasoning of the learned Single Judge is apparently based on a concession made by the plaintiff that there is no 22 direct evidence of the exact date when the defendant was put in possession of the three floors and that in the absence of any direct evidence, the learned Judge would have to infer the dates which the learned Judge declined to do.
28. The learned Judge also came to the finding that deposit of payment may not have led to the plaintiff putting the defendant in possession and that the documents relied upon by counsel appearing for the plaintiff would require an inference to be made that the defendant was put in possession of the three floors on a certain date. We have perused the documents relied upon by the plaintiff.
29. Most of these documents namely Exhibits B, B-1, F, Exhibit-3 merely indicate deposits made by the defendant to the plaintiff on several dates in 1970 and do not indicate any specific date when the defendant was put in possession of the suit property. Exhibit-3 however is a letter dated 17th December, 1969 from the defendant to the plaintiff (then known as Sudera Enterprises Pvt. Ltd) stating that the defendant "may take possession of the fourth floor" provided the plaintiff undertakes to provide certain facilities before 31st March, 1970. Exhibit-2 is a letter from the plaintiff to the defendant dated 16th September, 1969 which states that the plaintiff has received Rs.8,54,265.60/- from the defendant in terms of the modified Deed dated 12th September, 1969 but that the plaintiff has not yet received the payment as security deposit "for the floors already handed over to you." If Exhibit-2 is compared with Exhibit-3, it can be assumed that Exhibit-2 is 23 concerned with the second and third floors of the suit property (since Exhibit-3, which is a later document, specifically only mentions possession of the fourth floor).
30. In our view Exhibit-2 being the letter dated 16th September, 1969 from the plaintiff to the defendant can be taken as evidence of the fact that the defendant was put in possession of the second and third floors before 16th September, 1969. In the absence of any other evidence as to the exact date when the defendant was put in possession of the second and third floors, 16th September, 1969 can be accepted as the starting point of the lease for the second and third floors of the suit property.
31. We are in agreement with the conclusion of the learned Judge in respect of the fourth floor that there are no documents to show the exact date when the defendant was put in possession of the fourth floor. Exhibit-3 makes it clear that as on 17th December, 1969 the defendant had not been put in possession of the fourth floor.
32. In view of the above finding, we modify the impugned judgment to the extent of the starting point of the lease and consequently the period for calculation of mesne profits. The starting point of the lease for the second and third floors would be 17th September, 1969. The finding of the learned Judge in respect of the fourth floor will remain the same namely 4th November, 1970.
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33. As directed by the learned First Court, the Special Referee appointed will proceed to compute the mesne profits for the fourth floor from 4th November, 1991 until 31st May, 1994. In respect of the second and third floors, the mesne profits will be computed from 17th September, 1990 to 31st May, 1994. The Special Referee will submit a report to the Court within 31st January, 2019.
34. The remuneration as directed will be paid to the Special Referee by the plaintiff and may be increased to Rs.70,000/-, payable at the first instance together with incidental expenses for undertaking the work which may be subsequently increased with the leave of court.
35. For the above reasons, APD No. 494 of 2014 is allowed to the extent as stated above.
36. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on a priority basis.
(BISWANATH SOMADDER, J.) (MOUSHUMI BHATTACHARYA, J.)