Calcutta High Court
National Council Of Ymca'S Of India vs Skippers Textiles Private Ltd on 16 April, 2009
Author: Patherya
Bench: Patherya
GA No. 387 of 2008
GA NO.455 OF 2008
CS NO.8 OF 2008
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
NATIONAL COUNCIL OF YMCA'S OF INDIA Plaintiff/Petitioner/Applicant
Versus
SKIPPERS TEXTILES PRIVATE LTD. Defendant/Respondent
For Petitioner : MR. RANJAN BACHWAYAT, MR. S. S. DAS, ADVOCATES. For Respondent : MR. JISHNU SAHA, MR. A. MUKHERJEE, ADVOCATES. BEFORE:
The Hon'ble JUSTICE PATHERYA Date : 16th April, 2009.
The Court : This is an application filed by the defendant under Order VII Rule 11 of the Code of Civil Procedure for dismissal of CS No.8 of 2008.
Counsel for the defendant submits that by increasing the rent from Rs.5,200/- to Rs.20,800/- per month benefit of the 1997 Act was taken by the plaintiff and the said increase was only for purposes of attracting the provisions of the Transfer of Property Act. After effecting such increase by letter dated 2.3.2005 and for default in payment of the said sum pursuant to such increase, CS No.8 of 2008 has been filed. The plaintiff cannot take the benefit of the Transfer of Property Act by issuing a notice under Section 106 of the Transfer of Property Act, as the increase has been made under the 1997 Act. 2 Fair rent as postulated by Section 17 of the 1997 Act is to be fixed by the Controller and without following the said process there can be no increase in rent. The plaintiff is a registered society and must sue and be sued in the name of any of its office bearers specified in the rules and regulations of the Society. The suit, therefore, is not maintainable as it has not been filed through any of its office bearers and, therefore, is liable to be dismissed. While calculating the pecuniary jurisdiction mesne profits has been added for purposes of valuation and the said is not permissible. Reliance has been placed on [2006]1 WBLR 565 and [2006]2 CHN 384 for the proposition that the rent cannot be increased automatically to bring the disputes within the purview of the Transfer of Property Act. Reliance has also been placed on [2003]8 SCC 413 for the proposition that a registered society is not a body corporate as a Company registered under the Companies Act and, therefore, must either sue or be sued in the name of its President, Secretary or any office bearer authorised by the governing body. For all the said reasons, the suit is liable to be dismissed.
Counsel for the plaintiff submits that Sections 17[1] and 17[2] of the 1997 Act postulate fixation of fair rent by the Controller while Sections 17[3], 17[4A] and 17[4B] contemplates fixation of fair rent by a landlord and for such purposes, notice under Section 20 of the 1997 Act is to be issued. Sections 17[5] and 17[6] seek interference by the Controller. In the instant case the notice dated 2.3.2005 seeks to increase the rent under Section 17[4B] of the 1997 Act, which the landlord was entitled to do. Therefore, there has been no miscarriage of law and the suit is maintainable. Reliance is placed on AIR 1959 Calcutta 361 and AIR 1996 Calcutta 391 for the proposition that a suit filed by 3 a Registered Society is maintainable even though not filed through its office bearers.
Having considered the submissions of the parties and in view of [2003]8 SCC 413 a Society registered under the Societies Registration Act can be distinguished from a Company registered under the Companies Act. A Society under the Societies Registration Act is not a juristic person. The Company is a juristic person by virtue of being a body corporate whereas the Society though registered does not possess this characteristic. Section 19 of the West Bengal Societies Registration Act, 1961 also specifically provides for suits and proceedings by and against the Society being maintained in the name of its President, Secretary or any office bearer authorised by the governing body. As the instant suit has not been filed in the name of any of the office bearers authorised by the governing body, the suit is liable to fail and, accordingly, CS No.8 of 2008 is dismissed.
It is made clear that it is only on this point that the suit has been dismissed and the question of fair rent has not been considered.
In view of the order passed this day, GA No.465 of 2008 also stands dismissed.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(PATHERYA, J.) pkd.
Assistant Registrar[C.R]