Calcutta High Court
Poddar Projects Ltd And Anr vs Economic Transport Organisation Ltd on 28 February, 2017
Author: Soumen Sen
Bench: Soumen Sen
ORDER
GA No. 2883 of 2013
GA No. 2905 of 2013
CS No. 142 of 2013
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
PODDAR PROJECTS LTD AND ANR.
Versus
ECONOMIC TRANSPORT ORGANISATION LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 28th February 2017.
Appearance:
Mr. Samit Talukdar, Senior Advocate.
Mr. Bidyut Dutt, Advocate
Ms. V. Bhatia, Advocate
Mr. Debnath Ghose, Advocate
...for the plaintiffs.
Mr. Abhrajit Mitra, Senior Advocate
Mr. Chayan Gupta, Advocate
...for the defendant.
GA No. 2883 of 2013 is an application under Chapter 13A of
the Original Side Rules seeking a summary eviction of the
defendant upon expiry of the notice period. The plaintiffs are
the joint owners of the suit premises, namely 18, Rabindra Sarani,
Kolkata - 700001. By a scheme sanctioned by this court under
Sections 391(2), 392 and 394 of the Companies Act, the ownership
of the area demised to the defendant was changed in the following
manner:-
(i) The entire area ad measuring 1120 sft. of Poddar Udyog
Limited has been trnasferred to the plaintiff No.2.
2
(ii) Out of the total area of 8605 sft. owned by Plaintiff
No.1, an area of 1935 sft. has been transferred to the
plaintiff No.2.
The petitioners are the joint owners of 8605 sft. of Premises
No. 18, Rabindra Sarani, Kolkata, hereinafter referred to as "the
suit premises". The respondent was a monthly tenant in respect of
a portion of the ground floor of Poddar Court measuring about 9725 sft. On 19th August 1997, Poddar Udyog Limited, Poddar Projects Limited, Maharshi Commerce Limited and Hope Cardamom Estates Limited filed an application for sanction of a scheme of arrangement being CP No. 304 of 1997. At the time of presentation of the said petition, Poddar Udyog Limited was owner of an undivided equivalent to 1120 sft of the tenanted premises and the plaintiff No.1 was the owner of an undivided share equivalent to 8605 sft. of the tenanted premises. In terms of the Scheme of Arrangement sanctioned by an order dated 7th April 1998, he entire undivided share representing 1120 sft. owned by Poddar Udyog Limited in the tenanted premises stood transferred to the plaintiff No.2. Further, a part of the undivided share owned by the plaintiffs No.1 represented 1935 sft. in the tenanted premises also stood transferred to the plaintiff No.2.
With effect from the date of sanctioning of the scheme i.e. on and from 19th August 1997, the plaintiff No.1 became owner in 3 respect of 6670 sft. and Maharshi became joint and undivided owner of 3055 sft.
Following the sanctioning of the scheme, the plaintiff No.2 by a letter dated 11th July 2012 informed the defendant that by reason of the sanctioning of the scheme, the plaintiff No.1 and the plaintiff No.2 have become joint and undivided owners of 6677 sft. and 3055 sft. of the tenanted premises respectively and requested the defendant not to pay rent to Poddar Udyog Limited and instead pay rent in favour of the plaintiffs representing their respective undivided shares in the tenanted portion. In response to the said letter, the defendant by a letter dated 8th April 2012 acknowledged the change of ownership of the premises and started paying rent in the manner as indicated by the plaintiff No.2 in its letter dated 11th July 2012. On and from 2012, the defendant started making payment of 8,299/- to the plaintiff No.1 and 3,857/- to the plaintiff No.2 aggregating 12,156/- per month on account of rent of the tenanted premises. On 3rd October 2012, the plaintiffs issued a notice under Section 106 of the Transfer of Properties Act determining the tenancy of the defendant, since the monthly rent in respect of tenanted premises exceeds 10,000/- per month. The defendant in response to the said notice alleged that they are in occupation of the suit premises namely Premises No. 18, Rabindra Sarani, Kolkata, Poddar 4 Court for almost four decades and the tenancy cannot be terminated in the manner as indicated in the letter.
By reason of failure to vacate the premises, the plaintiffs filed a suit for eviction of the defendant and in aid of the prayers made in the said suit, this application for summary judgment has been taken out.
In defence, it is contended on behalf of the defendant that there are two separate premises creating two separate tenancies. It is submitted that the documents disclosed by the plaintiffs in this proceeding would not show that the tenancy of the of the defendant is in respect of one single premises inasmuch as the recitals in the scheme of arrangement would clearly show that the respective parties are owning separate premises and the plaintiff has instituted the suit by giving a misleading picture by consolidating the premises and by clubbing the rents which are separate and distinct. In the affidavit, the defendant contends that the defendant is a tenant of area of 6670 area in the ground floor in Udyog Building under the plaintiff No.1 and is a tenant of an area of 3055 sft. in Poddar Projects Limited under plaintiff No.2.
The scheme of arrangement is between four companies namely Poddar Udgyog Limited, Poddar Projects Limited, Maharshi Commerce Limited and Hope Cardamom Estates Limited. The present plaintiffs are Poddar Projects Limited and Maharshi Commerce Limited. The 5 recitals to the order sanctioning the scheme shows that the building concerned is described as "Poddar Court". The property is a freehold land wholly owned by Udyog and the building thereupon owned in parts by Udyog and Poddar Projects Limited. The division of several properties which inter alia include the Rabindra Sarani property is mentioned in Schedule-A, Schedule-B and Schedule-C. The scheme refers to the allocated areas to be distributed among the companies as PC1, PC2 and PC3 under Schedule-A, Schedule-B and Schedule-C. It is clear from the order that the four companies want to adjust their respective shares in respect of one building namely Poddar Court building situated at 18, Rabindra Sarani, Kolkata. Economic Transport Organization was a tenant in respect of 1935 sft. under Poddar Projects Limited. The defendant also was a tenant in respect of 1120 sft. under Udyog. These areas under the scheme of amalgamation are transferred to the plaintiff No.2. The tenancy of Economic Transport Organization insofar 6670 sft. is concerned remained with Poddar Projects Limited. By reason of the aforesaid order sanctioning the scheme of amalgamation, the plaintiff No.2 became the owner of 3055 sft.
The defendant was immediately informed about the change in the areas and the change of ownership consequent upon the scheme of amalgamation and was requested by the plaintiff No.2 not to pay any more rent to Poddar Udyog Limited and instead pay the rent in 6 favour of Maharshi for an area of 3055 sft. and in favour of Poddar Projects Limited for an area of 6670 sft. as per the scheme. The defendant thereafter paid rent to the plaintiffs for the respective areas of which the plaintiffs are the owners.
The plaintiffs have disclosed in the supplementary affidavit two letters dated 21st April 1969 and 22nd April 1969. By the letter dated 21st April 1969 addressed jointly to Poddar Chambers Limited Poddar Estates Limited being the predecessors in interest of the plaintiffs, the defendant confirmed having taken over possession of the area in the ground floor of Premises No. 18, Rabindra Sarani. In the letter dated 22nd April 1969, the defendant had set down the terms and conditions for a lease deed to be executed by the parties. Even in its reply to the notice under Section 106 of the Transfer of Property Act, the defendant did not say anything contrary to show that they had denied the joint ownership of the area by the present plaintiffs. It is not disputed from the bar that joint owners can file a composite plaint for eviction of a tenant by clubbing the rents payable since it constitutes only one tenancy. The causes of action of both the plaintiffs are same. The defendant in this proceeding is unable to establish even prima facie that there are two distinct tenancies in respect of two different premises. The building is one and the same, namely 18, Rabindra Sarani, Kolkata. The defendant, however, contends that earlier a suit was filed by the 7 plaintiffs under the West Bengal Premises Tenancy Act treating the said two tenancies as distinct and separate.
Although the defence appears to be feeble, but still there could be a small ray of hope flickering at the end of the tunnel which I want to keep alive. The tests to be applied are laid down initially by the Calcutta High Court in Smt. Kiranmoyee Dasi Vs. Dr. J. Chatterjee reported at (1945) 49 CWN 246 which are:-
"8.(a) If the defendant satisfies the court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.
(c) If the defendant discloses such facts as may be deemed sufficient to entitled him to defend that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security.8
(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.
(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence."
The said judgment was followed by the Hon'ble Supreme Court in M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation reported at AIR 1977 SC 577.
The Court in exercising its jurisdiction under the summary power would not ordinarily pass a decree unless the plaintiff is able to establish its claim free from all doubts and on the basis of unimpeachable evidence. The Court may grant a conditional leave if the Court is satisfied that although the defence of the defendant is weak but an opportunity be given to the defendant to contest the proceeding so that there is no violation of the principles of natural justice. At the same time while granting a conditional leave the court needs to be satisfied that the plaintiff has been able to make out a case which although prima 9 facie appears to be indefensible but apparently few microscopic holes, are created by the defendant which may have to be ultimately healed. Defendant appears to have raised some defence which although is weak and may or may not succeed at the trial be given an opportunity to fight out the rest of the battle. The said defence falls short of moonshine but little probable. A varied degree of probability is a factor to be taken into consideration. A thin ray of hope flickering at the end of the tunnel may glow ultimately and may by turn of events the defendant could dislodge the claim of the plaintiff which may or may not be a wishful thinking an opportunity is given to the defendant to contest the proceeding in pursuit of such hope. The Court at this stage is required to maintain equities so that the interest of both parties are protected. The quality and probability of defence likely to succeed at the trial is a factor to be taken into consideration.
The defendant is in possession of a very valuable property in the commercial hub of the city and is paying a meagre occupational charge at 1/- per sft. per month which is extremely low compared to the occupational charges that the property is expected to earn. Since establishment of separate tenancies at the trial would make the notice under Section 106 of the Transfer of Property Act invalid, on the basis of the discussions made above, the defendant is entitled to conditional leave to defend. I, therefore, grant 10 the defendant conditional leave to defend. The defendant upon payment of occupational charges @ 4 lakh per month on and from March 2017 till the disposal of the suit shall be entitled to defend the suit. The occupational charge for the month of March 2017 shall be paid by 10th March 2017 and the future monthly occupational charges shall be paid by 10th day of each succeeding month. Upon payment of the occupational charges for the month of March 2017, the defendant shall be entitled to file written statement within a period of four weeks from that date. In default of making payment of the monthly occupational charge for the month of March 2017 or any of the future monthly occupational charges, the decree for khas possession shall automatically follow and for which there would be no need to apply afresh.
GA No. 2883 of 2013 and GA No. 2905 of 2013 accordingly stand disposed of.
(SOUMEN SEN, J.) S. Kumar