Calcutta High Court (Appellete Side)
M/S. Luxmi Pharmaceutical Works vs Sri Rajat Barua & Ors on 11 March, 2020
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
S.M.A 36 of 2007
M/s. Luxmi Pharmaceutical Works
-Vs-
Sri Rajat Barua & Ors
For the Appellant: Mr. Asit Baran Raut, Adv.,
Ms. Ishita Raut, Adv.
For the Respondents: Mr. Tirthendu Dasgupta, Adv.,
Mr. Asit Nayek, Adv.
Heard on: January 10, 2020.
Judgment on: March 11, 2020.
BIBEK CHAUDHURI, J. : -
1. The instant second miscellaneous appeal is filed by the judgment debtor assailing the order dated 19th March, 2005 passed by the learned Additional District Judge, Fast Track, 1st Court at Alipore in Misc Appeal No.284 of 2004 affirming the order dated 17th July, 2004 passed by the learned Civil Judge (Senior Division) in Misc Case No.4 of 2003 arising out of an application under Section 47 read with Order XXI Rules 97, 98, 99, 101 and Section 151 of the Code of Civil Procedure.
2. It is important to note that M/s Laxmi Pharmaceutical Works, appellant herein was a partnership firm and the said firm was a tenant in respect of the suit premises under the respondent. Sometimes in 1975 the partners of the appellant firm transferred their business with all profits and liabilities in favour of one Pankaj Sur. The said Pankaj Sur carried on business under the name and goodwill of the appellant firm as a proprietorship concern. Sometimes in 1979 the respondent instituted a suit for eviction against the appellant. The said suit was decree ex-parte. The respondent put the decree in execution vide Title Execution Case No.2 of 1981. During the pendency of the execution proceeding the suit property was acquired by the government. Against such order of acquisition the tenant filed a writ petition before this Court. The writ petition was finally disposed of and the suit property was derequisitioned. During pendency of the execution proceeding, it is alleged by the appellant that an agreement was executed between Mr. Pankaj Sur, the proprietor of the appellant concern and the respondent and pursuant to the said agreement, a sum of Rs.2,00,000/- was paid to the respondent by the said Mr. Sur. It was stipulated in the agreement that within a specific period of time Mr. Sur would purchase the suit premises and if he fail to purchase the same the said amount of Rs.2,00,000/- would be adjusted towards arrear rent. The petitioner also instituted Title Suit No.369 of 2002 contending, inter alia, that it has become a direct tenant under the opposite party and the execution case is not maintainable. Finally the appellant filed Misc Case No.4 of 2003 under Section 97, 98, 99, 101 of the Code of Civil Procedure. The learned judge in executing court dismissed the said misc case on contest.
3. The petitioner of the said misc case filed an appeal before the learned Additional District Judge, Fast Track, 1st Court at Alipore which was registered as Misc Appeal No.284 of 2004. Learned Judge in First Appellate Court also dismissed the misc appeal on contest. Affirming the order dated 17th July, 2004 passed by the learned executing court in Misc Case No.4 of 2004.
4. Against the said concurrent finding of fact, the appellant has preferred the instant appeal.
5. It appears from the record of the instant appeal that the appeal was admitted by the Division Bench of this Court on 18th April, 2005 formulating the following substantial questions of law:-
(1) Whether the learned courts below committed substantial error of law in misinterpretating exhibit-9 by holding that such document did not create any right of tenancy in the property notwithstanding the fact that no sale deed was executed in favour of appellant and at the same time an amount of Rs.2,00,000/-
(Rupees Two Lakhs only) was adjusted as "rent".
(2) Whether the learned courts below committed substantial error of law in not holding that Rs.2,00,000/- taken vide exhibit-9 can be adjusted only if the appellant are treated as tenant and not otherwise.
6. Mr. Ashit Baran Raut, learned Advocate for the appellant at the outset submits before me that for proper adjudication of the instant appeal the following factual background is required to be considered:-
The respondent instituted Title Suit No.115 of 1979 against the appellant, partnership firm and its partners on the ground of default and subletting alleging, inter alia, that the partners of the appellant firm had parted with possession in respect of the suit premises in favour of one Pankaj Sur. The suit was decreed ex-parte on 22nd August, 1980. The plaintiff/decree holder filed Title Execution Case No.2 of 1981 to execute the decree. During the pendency of the execution case, the suit premises was requisitioned by the State Government to protect the interest of the petitioner firm and its employees on 20th December, 1989 and the possession of the suit property was handed over to the petitioner on the very date of requisition by the Land Acquisition Collector, Kolkata. Subsequently, the petitioner was served with a notice of the requisition of the suit property issued by the State Government directing the petitioner to hand over possession of the same. The petitioner then moved under Article 226 of the Constitution challenging the order of derequisition before this Court which was registered as W.P 4836(W) of 1993. During the pendency of the writ petition, the decree holder/respondent approached the appellant and an agreement was entered into by and between the parties in pursuant to the said agreement, Pankaj Sur paid a sum of Rs.2,00,000/- to the respondent towards arrears rent and others. The amount was received by the son of the respondent by two numbers of cheque dated 5th July, 1996 and 17th July, 1996 on behalf of the respondent. It was agreed by and between the parties, "In the event it is decided in course of a period of one year from date to sale the above mentioned premises to him on mutually agreed terms and conditions, the aforesaid payment will be adjusted against the full consideration value of the same."
It is also agreed by and between the parties as hereunder:-
"If, for whatever may be the reason, it is not possible for Mr. Sanjay Roy and his successors/nominees to conclude the purchase of the above mentioned property within a maximum period of one year from the date of this document, the above mentioned amount as on account of arrear rent will remain adjusted against total rental due."
7. Placing reliance on Exhibit-9, it is submitted by Mr. Raut that the son of the decree holder accepted a sum of Rs.2,00,000/- from the petitioner towards arrear rent. It was also agreed upon by and between the parties that the parties would arrive at a decision within a period of one year from the date of the agreement to sell the suit premises to Pankaj Sur, proprietor of Laxmi Pharmaceutical Works on mutually agreed terms and conditions. However by any reason whatsoever, the suit property was not transferred to the appellant. The suit was filed for default in payment of rent to the tune of Rs.34,600/- by accepting the sum of Rs.2,00,000/-, the decree holder/opposite party did not only accept the arrear rent but also agreed to adjust the balance amount with the future rent. It is therefore, contended by Mr. Raut that on acceptance of the said sum of Rs.2,00,000 from Laxmi Pharmaceutical Works, the decree holder/opposite party practically accepted that the decree would not be executed and as such the decree has become inexecutable. Mr. Raut further refers to a series of money receipts to show that even after Title Suit No.115 of 1979 was decreed and the Title Execution Case No.2 of 1981 was pending the decree holder went on accepting rent on behalf of M/s Laxmi Pharmaceutical Works from the appellant/petitioner. According to the learned Advocate for the appellant neither the executing court nor the First Appellate Court considered such aspect of the matter that acceptance of rent from the tenant after decree of eviction is passed creates a new tenancy in respect of the suit premises and accordingly the decree becomes exexecutable.
8. Mr. Raut next draws my attention to the photostat copies of the certified copies of the orders passed in Title Suit No.115 of 1979. It is found from photostat copies of the certified copies of the orders passed in the said suit which is made part of the lower court record that the decree holder/opposite party filed the said suit for eviction Smt. Usha Mistry and others on 5th June, 1979. The suit was decreed ex parte vide order No.16 dated 22nd August, 1980. The relevant part of the judgment passed exparte in the said suit is reproduced below:-
"This is a suit for eviction of the defendant from the suit premises.
The plaintiff's case is that the defendant was a monthly tenant in the suit premises and he defaulted in payment of rent from November, 77. The defendant also transferred the possession of the premises to one Pankaj Sur. The plaintiff also requires the suit premises for her own requirement.
The defendant does not contest and hence the suit proceed ex- parte.
Considering the evidence I hold that the plaintiff has been able to prove her case and is entitled to get the relief prayed for.
C.F paid is correct. Hence, it is, Ordered.
that the suit be and the same is decree ex-parte with cost. The defendant is directed to give up possession of the suit premises in favour of the plaintiff within two months of the decree failing which the plaintiff shall be entitled to evict the defendant through court as per law.
Let there be a preliminary decree authorizing the plaintiff to recover mesne profit from the defendant @ Rs.25/- per day from 1.2.79 subject to adjustment of payment of any amount for that period as rent or otherwise. The defendant is directed to pay the amount within two months failing which the plaintiff shall be entitled to pray for making the decree for mesne profit final and to recover the amount from the defendant on payment of proper court fees."
9. It is contended by Mr. Raut that the decree passed by the trial court disclosed no ground envisaged in any of the clauses of Section 13(1) of the West Bengal Premises Tenancy Act and therefore the decree is nullity and is not executable. In support of his contention Mr. Raut refers to the decision of this Court in the case of Nandini Bala Dassi vs. Bibhuti Bhusan Mukherjee reported in 1987 (1) CLJ 57. On the same point Mr. Raut also refers to another decision of the Hon'ble Supreme Court in the case of Smt. Kaushalya Devi & Ors. vs. K.L. Bansal reported in AIR 1970 SC 838.
10. Relying on a decision of this Court in Priyalal Das vs. Sadhana Kar reported in 84 CWN 322 it is submitted by Mr. Raut that by virtue of acceptance of a sum of Rs.2,00,000/- from Laxmi Pharmaceutical Works Ltd. the decree holder created a new tenancy in respect of the suit property and the decree is not executable.
11. Learned Advocate for the decree holder/respondents, on the other hand submits that the document (Exhibit-9) is in the nature of acknowledgement of a sum of Rs.2,00,000/- received by the son of the decree holder on 17th July, 1996 towards the payment of arrear rents and rental dues. Acceptance of arrear rent from the tenant or his representative does not create a new tenancy. Such acknowledgment can also not be treated as continuation of the subsisting tenancy which was previously determined by a notice to quit and followed by a decree of eviction. In support of his contention the learned Advocate for the respondent refers to a decision of the Hon'ble Supreme Court in the case of Ganga Dutta Murarka vs. Kartik Chandra Das & Ors. reported in AIR 1978 SC 1518. In the said report, it is held by the Hon'ble Supreme Court that where a contractual tenancy to which the rent control legislation applied, had expired by efflux of time or by determination of notice to quit and the tenant continued in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy. According to the learned Advocate for the respondent, Exhibit-9 speaks of arrear rent and rental dues, it does not speak of any subsequent or future rent. In fact, it was an acceptance of mesne profit and question of creation of new tenancy does not arise in favour of the appellant or Pankaj Sur, the proprietor of the appellant concern.
12. Learned Advocate for the decree holder has also pointed out that the said payment of a sum of Rs.2,00,000/- were not even made by Mr. Pankaj Sur. On the other hand, it was paid by one Sanjay Roy an agreement, if any was made between the said Sanjay Roy and the son of the decree holder. Neither the decree holder nor the appellant/judgment debtor is bound by such acknowledgement of money (Exhibit-9).
13. Learned Advocate for the respondent/decree holder next draws my attention to the evidence adduced by Pankaj Sur in Misc Case No.4 of 2003. In his cross examination he has candidly admitted that he has no tenancy in respect of the suit premises. He further admitted that he could not deliver possession of the suit premises as per his assurance he had not also paid arrear rent as per the order of the court. It is also pointed out by the learned Advocate for the respondent that the said Pankaj Sur filed Title Suit No.369 of 2002 praying for declaration of his tenancy right. The said suit was dismissed by the trial court as not maintainable.
14. It is already on record that the appellant filed Misc Case 4 of 2003 invoking the provision of Section 47 read with Order 21 Rule 97, 99 and 101 of the Code of Civil Procedure. It is needless to say that any question arising between the parties or their representatives relating execution, discharge and satisfaction of the decree will be dealt with by the executing court under Section 47 of the Code of Civil Procedure and not by a separate suit. Thus, a party to the suit or his representative can only file an application under Section 47 of the Code of Civil Procedure challenging executability of the decree. It is found from the application for execution that the judgment debtors are Smt. Usha Mistry and Laxmi Pharmaceutical Works. It is the case of the appellant that Laxmi Pharmaceutical Works was a partnership firm and subsequently the said firm was purchased by Mr. Pankaj Sur. He is representing M/s Laxmi Pharmaceutical Works as its proprietor. The suit property was purchased by Pankaj Sur after the decree was passed. It is a trite law that a proprietorship concern must be represented by its proprietor. Proprietorship concern has no independent juridical entity. Pankaj Sur purchased the business of Laxmi Pharmaceutical Works with all its profits, assets and liabilities. By purchasing a partnership firm tenancy right does not devolve upon the purchaser. The said Pankaj Sur also did not make any application in the execution proceeding for being added as the proprietor of judgment debtor No.2 M/s Laxmi Pharmaceutical Works in place of Smt. Usha Mistry. Therefore, the said Pankaj Sur is neither the party to the suit or the representative of the defendants/judgment debtors. Therefore, he cannot claim any relief under Section 47 of the Code of Civil Procedure.
15. Rule 99 of Order 21 deals with dispossession by decree holder or purchaser. Its stipulates that where any person other than the judgment debtor is dispossessed of the immovable property by the holder of a decree for possession of such property or where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the court complaining of such dispossession. Thus, rule 99, as is manifest, includes any person other than the judgment debtor. Rule 101 of Order 21 deals with the question to be determined in such proceeding it provides that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the court dealing with an application and not by a separate suit and for the said purpose, the executing court has been conferred the jurisdiction to decide the same.
16. Right of tenancy is an outcome of contract between the parties. There was no privity of contract between Pankaj Sur and the decree holder regarding tenancy. The learned Advocate for the appellant has urged that since the decree holder/opposite party accepted rent from Mr. Pankaj Sur after the decree was passed, a new tenancy was created in favour of M/s Laxmi Pharmaceutical Works, proprietorship concern of Mr. Pankaj Sur. If, however, the said money receipts are carefully considered, it would be found that the decree holder accepted the amount equivalent to rent after decree was passed from Pankaj Sur as mesne profits and not as rent.
17. Exhibit-9 also does not create any right of tenancy in favour of either the appellant or the said Mr. Pankaj Sur. Both the courts below correctly held that a sum of Rs.2,00,000/- was received by the son of the decree holder from one Sanjay Roy the agreement, if any to sale the suit property and adjustment of the said sum of Rs.2,00,000/- against the final consideration money for the sale of the property was arrived at between the son of the decree holder and between Sanjay Roy. Mr. Pankaj Sur, the proprietor of M/s Laxmi Pharmaceutical Works was not a party to such agreement. Last but not least after the decree for eviction was passed no agreement for tenancy by acceptance of rent was made by and between the decree holder and the appellant. Mr. Pankaj Sur also cannot challenge the decree on the ground that decree in the eviction suit was passed without any ground stipulated in Section 13 of the West Bengal Premises Tenancy Act, 1956 of course the decree might have been held to be a nullity if it was challenged by the judgment debtor. In the instant case Mr. Pankaj Sur has no status as party to the suit to challenge the decree.
18. For the reasons stated above I do not find existence of any substantial question of law in the instant appeal. Accordingly, the order passed in Misc Case No.4 of 2003 is affirmed.
19. In instant miscellaneous appeal is therefore dismissed on contest, however without cost.
20. Let a copy of this order along with the lower court record be sent to the learned executing court for information and necessary action.
(Bibek Chaudhuri, J.)