Calcutta High Court (Appellete Side)
( K. K. Saha & Co. Pvt. Ltd vs Ashok Agarwal) on 19 February, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
1 1 19.02.2019
jb.
C.O. 3777 of 2016 ( K. K. Saha & Co. Pvt. Ltd. vs. Ashok Agarwal) with C.O. 2200 of 2018 (M/s Saj Food Products Pvt. Ltd. vs. Sri Prasanta Sen) Re: C.O. 3777 of 2016 Mr. Suman Kr. Dutt Mr. Shibasish Sengupta Ms. Subhra Das Mr. Balarko Sen .... For Petitioner Mr. Purnasish Gupta Mr. J. K. Mukhopadhyay .... For Opposite Party These two petitions under article 227 of the Constitution of India, tagged together, have been assigned to this Bench on a reference, to answer the following question:-
"Whether the Civil Court can direct the tenant to pay the occupational charges, damages, mesne profits during pendency of the eviction proceeding at the prevalent market rate in excess of the contractual rent."
Learned single Judge dealing with these petitions, by order dated 23rd July, 2018 though found such question was answered by a Division Bench of this Court in K. K. Saha & Co. Pvt. Ltd. vs. Ashok Agarwal reported in (2018) 1 CHN 497 but by reason of one of the petitioners having moved Supreme Court under article 136 of the Constitution of India and obtained order dated 9th February, 2018 in Special Leave to Appeal (C) 25607/2017 2 (K. K. Saha & Co. Pvt. Ltd. vs. Ashok Agarwal), was of view said question is open for reference yet again. Hence, this reference on same question.
Supreme Court by order dated 9th February, 2018 (supra) said, inter alia, as follows:-
"It is stated by learned counsel for the petitioner that even though if the West Bengal Premises Tenancy Act, 1997 is not applicable the plaintiff may be able to seek the rent/user charges at higher than the applicable rent, the plea that the Act was not applicable not been gone into by the High Court.
The High Court has proceeded on the footing that the said rent Act is applicable without going into the said question.
In these circumstances, we permit the petitioner to move the High Court so that the High Court may now determine whether the said rent Act is applicable and in case the same is not applicable, the High Court may further consider the matter in accordance with law.
We make it clear that we have not expressed any opinion on the merits of the case."
Mr. Suman Dutt, learned advocate, assisted by Mr. Shibasish Sengupta, learned advocate, appears on behalf of petitioner in C.O. 3777 of 2016 and submits, the application made by his client was for direction on defendant to pay contractual rent/occupational charges. He submits, unlike provisions in West Bengal Premises Tenancy Act, 1997, provisions in Transfer of Property Act, 1882 do not provide for payment of agreed rent on termination of tenancy 3 by notice issued under section 106 thereof. His client's application should have merited an order in line with view expressed in Kanak Projects Limited vs. Oil and Natural Gas Corporation Ltd. reported in (2014) 2 CHN 405.
On query from Court Mr. Dutt confirms, the question for answer was correctly extracted and reproduced in order dated 16th March, 2017 by co-ordinate Bench answering earlier reference. On further query from Court and on said order having been placed in Court, he could not dispute that the order was made in context of his client's case for eviction of defendant initiated by issuance of notice under section 106, consequence of which, in said order, was expressed as under:-
"Under the Transfer of Property Act, tenancy can be terminated by service of notice by the landlord under Section 106 of the Transfer of Property Act. Once the tenancy of such a tenant is determined by service of notice under Section 106 of the Transfer of Property Act, he will not be regarded as a statutory tenant, rather he will be regarded as a trespasser. In the present case the landlord /petitioner filed the said suit for eviction against the defendant/opposite party after termination of defendant's tenancy by service of notice under Section 106 of the Transfer of Property Act."4
We find the question stands answered by co-ordinate Bench by said order dated 16th March, 2017. Facts of petitioner's case were stated therein as reproduced below:-
"The tenancy of the said defendant was terminated by the plaintiff/petitioner by issuing a notice dated 29th July, 2015 under Section 106 of the Transfer of Property Act. Since the defendant did not hand over the vacant possession thereof to the plaintiff after expiry of the notice period, the plaintiff filed a suit for eviction of the defendant. In the said suit he has also prayed for recovery of arrear rent and also for mesne profit till recovery of possession of the suit premises. Several other incidental reliefs have also been claimed by the plaintiff in the said suit."
Co-ordinate Bench, to answer the question, considered firstly provisions in West Bengal Premises Tenancy Act, 1997. It will appear from said order that on consideration of provisions in Act of 1997, in context of question to be answered, no answer was given. Reference may be had to relevant extract from said order as reproduced below:-
"It is no doubt true that certain protections are given to the tenant against eviction under the West Bengal Premises Tenancy Act. In view of the definition of tenant engrafted under Section 2(h) of the West Bengal Premises Tenancy Act, 1997; a tenant continues to be a tenant under the landlord in respect of his tenancy until an eviction decree is passed against him. As such, such a tenant whose tenancy is protected under the Premises Tenancy Act is entitled to 5 continue his possession in his tenancy on payment of contractual rent during the pendency of the suit. Certain additional protections are also given to the tenant under the West Bengal Premises Tenancy Act. Even a tenant may deposit the arrear rent in the eviction suit and get protection against eviction when a suit for ejectment is filed under the said Act on the ground of default in payment of rent."
Co-ordinate Bench then went on to answer the question on considering provisions in Transfer of Property Act, 1882. In doing so it formulated two points as extracted from said order and reproduced below:-
"i) Existence of relationship of landlord and tenant between the parties in respect of the suit premises, and
ii) legality of termination of such tenancy by the admitted landlord by service of notice upon the admitted tenant under Section 106 of the Transfer of Property Act."
On giving due consideration to the points formulated, said Bench answered the question in the negative against petitioner. As such we find plea taken before Supreme Court that the tenancy Act not being applicable to case of petitioner was not gone into by High Court, was an incorrect plea. The question stands answered by said order dated 16th March, 2017. This reference is answered accordingly.
6
Re: C.O. 2200 of 2018 Mr. Joydeep Kar, Adv.
Mr. Ayan Banerjee, Adv.
Ms. Debasree Dhamali, Adv.
Mr. Dinobandhu Das, Adv.
...For petitioner Mr. Aniruddha Chatterjee, Adv.
Mr. Siddhartha Banerjee, Adv.
Mr. Suchayan Banerjee, Adv.
....For opposite party This revisional application was tagged together with C.O. 3777 of 2016 ( K. K. Saha & Co. Pvt. Ltd. vs. Ashok Agarwal) on a reference to answer a question. We have answered the reference as above. Mr. Chatterjee, learned advocate appearing on behalf of opposite party however submits, his client's case is completely different from case of petitioner in CO 3777 of 2016. His client's case is on disputes arising out of franchise agreement with prayer for possession on termination of it. Mr. Joydeep Kar, learned senior advocate appearing for petitioner points out from order dated 23rd July, 2018, made by learned single Judge, Mr. Chatterjee had taken points regarding direction for payment of mesne profits prior to judgment in eviction suit which is why by said order this revisional application was tagged with the other.
Since Mr. Chatterjee has now reconsidered his position and submitted that his client's case is different, there is no question for answer arising out of this revisional application. The 7 revisional application be sent back for adjudication by learned single Judge.
(Arindam Sinha, J.) (Rajasekhar Mantha, J.)