Calcutta High Court (Appellete Side)
Unknown vs Shri Himangshu Kumar Mitra on 20 May, 2011
Author: Soumen Sen
Bench: Pinaki Chandra Ghose, Soumen Sen
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
HON'BLE JUSTICE PINAKI CHANDRA GHOSE, J.
AND HON'BLE JUSTICE SOUMEN SEN, J.
F.A. 132 of 2007 SUKALYANI COAL INDIA LIMITED (CIL) WOMENS EMPLOYEES WELFARE ORGANIZATION .... DEFENDANT/APPELLANT
-Versus-
SHRI HIMANGSHU KUMAR MITRA
.... PLAINTIFF/RESPONDENT
For the Appellant : Dr. Reba Roy, (in person)
(Sukalyani Coal India Ltd. Womens
Employees Welfare Organization)
For the Respondent : Mr. Prabal Mukherjee, Adv.,
Mr. Bhaskar Mukherjee, Adv.,
Ms. Debjani Ghosh, Adv.,
Heard on : 18.05.2011
Judgment on : 20th May, 2011
Soumen Sen, J. : When we concluded the hearing of this appeal the parties before us had prayed for an adjournment so that they could arrive at a 2 settlement. Although the hearing was concluded only to settle the matter and in view of the fact that the said association came forward and tried to settle the matter, we granted time for settlement of the matter in question.
But today when the matter is taken up for hearing, we have been informed that the settlement between the parties has failed.
Accordingly, we proceed to decide the appeal on merits. The instant appeal is arising out of a judgment and decree passed by the Civil Judge, Senior Division in Title Suit No.1/2002 (Shri Himangshu Kumar Mitra Vs. Sukalyani Coal India Limited (CIL) Womens Employees Welfare Organization).
Under an agreement dated 24th October, 1996, the plaintiff had agreed to sell three properties, namely, (i) 5A, Nirode Behari Mullick Road, Kolkata - 700 006 (ii) 5B, Nirode Behari Mullick Road, Kolkata - 700 006 (iii) 2A, Khas Mahal Street, Kolkata - 700 006 to the defendant for a valuable consideration. The plaintiff by another agreement of the same date, namely, 24th October, 1996 also agreed to sell a portion of 2A, Khas Mahal Street, Kolkata - 700 006 covering the 3 tenanted portion measuring 10 Cottah 8 Chittacks on the basis of proposal given by the appellant.
In consideration of the plaintiff having agreed to deliver peaceful, vacant and khas possession of the properties mentioned hereinabove the defendant agreed to arrange for a suitable accommodation for the plaintiff for a temporary period from the date of delivery of possession of such premises till the appellant/defendant provides a flat measuring 1200 square feet more or less in a complex in the first or second floor of the building to be constructed by the said defendant in such complex and would bear all costs, charges and expenses for such period of accommodation. The defendant further undertook to compensate the plaintiff for any loss of damage suffered for such temporary accommodation. Such obligation of the defendant would appear from Clause 8 of the agreement dated 24th October, 1996 which is set out hereinbelow:
"8. Upon the Vendor is making out a marketable title and on receipt of the balance of the consideration by the Vendor and Vendor shall at the costs of the Purchaser execute and register in favour of the Purchaser or its nominee or nominees conveyance or conveyances in respect of the said property in such part or parts as the Purchaser shall desire and also at his own costs shall cause all necessary parties if any to join the said conveyance. Simultaneously with the execution of the Deed of Conveyance, the Vendor shall hand over to the Purchaser vacant and peaceful possession of the said premises. Before delivery of such 4 possession by the Vendor to the Purchaser, the Purchaser shall arrange for a suitable accommodation for the Vendor for temporary period from the date of delivery of possession of the aforesaid premises by the Vendor to the Purchaser till the Purchaser provides the aforesaid flat at 1200 Sq. Ft. more or less in the complex of their proposed new building on the said land at its own costs, charges and expenses and the Purchaser undertakes and hereby bind itself for any loss or damage suffered by the Vendor for such temporary accommodation and the Purchaser will compensate the said loss, if any, at its own costs, charges and expenses."
The respondent/plaintiff in addition to the aforesaid flat had agreed to purchase on his own another flat of measuring 550 square feet at the said complex being 5A and 5B, Nirode Behari Mullick Street, 700 006 to a Khas Mahal Street adjoining to the flat proposed to be given by the defendant to the plaintiff. The plaintiff from time to time duly paid the entire consideration, membership fee and part of the construction charges aggregating to Rs.1,61,118/-.
The grievance of the plaintiff is that in spite of the plaintiff having vacated the said premises in terms of the agreement, the defendant/appellant had failed to provide a suitable accommodation to the plaintiff in terms of the said agreement. The accommodation at Salt Lake given by the said appellant/defendant was far from satisfactory and was not in a habitable 5 condition. The said premises at Salt Lake was in a deplorable condition and not fit for habitation. Although, the plaintiff had brought it to the notice of the defendant and requested the defendant to find out a suitable alternative accommodation, the said appellant/defendant had neglected and refused to provide any such accommodation. The plaintiff having no other alternative and after waiting for almost two and half years was compelled to shift a house situated at Badu, Madhyamgram in the district of North 24 Parganas. Although, the plaintiff had agreed to pay Rs.6500/- per month as the rent for such alternative accommodation when the plaintiff started temporarily residing at a flat at Salt Lake, the said defendant had even illegally stopped payment of such accommodation charges.
The said appellant/defendant not only had failed and neglected to deliver 1200 square feet of flat but also did not deliver the 550 square feet of flat for which the plaintiff had paid the consideration.
In view of the failure on the part of the appellant to pay the accommodation charges and failure to execute and register necessary deed of conveyance in respect of the A and B Scheduled properties in spite of demand. The plaintiff, in this circumstance, instituted the said suit before the learned Court of Senior Civil Judge at Sealdah in Title Suit No.1 of 2002.
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The defendant contested the said proceeding by filing a written statement in which apart from making a monotonous and mechanical denial, the defendant did not put forward any substantial defence to controvert the allegation of the plaintiff. There is no noticeable improvement of defence even at the stage of examination-in-chief or cross-examination of the witness of the defendant.
On the contrary, the defendant in paragraph 8 of the written statement admitted its obligation to pay such accommodation charges at Rs.6500/- per month. The defendant has also admitted its obligation in paragraph 10 of the written statement to hand over possession of the plaintiff the flats in question in terms of the agreement.
It appears from the evidence that consideration has been paid in respect of 550 square feet. The only defence that is sought to be raised by the defendant not in the written statement but at the time of adducing the evidence is that certain arrears of municipal taxes are pending and required to be paid by the plaintiff in respect of 1200 square feet flat. The defendant alleged that they have paid a sum of Rs.85,000/- towards municipal taxes in the name of the plaintiff and unless the said amount is reimbursed, the plaintiff is not entitled to get delivery of possession of the said flat.
The defendant has nowhere challenged the legality and validity of the agreements nor their obligation to hand over the said flats. Although, it is 7 contended that the flat measuring 1200 square feet can only be delivered upon payment of the municipal taxes but there was no such reservation expressed or objection raised in respect of 550 square feet. In respect of the flat measuring 1200 square feet it has been admitted in evidence by the defendant that such delivery of flat is not conditional upon payment of any arrear tax.
It appears that the learned Court below considered Clause 5 of the said agreement which mentions that all taxes and outgoings payable in respect of the said property up to the date of completion of the transaction should be made, paid and borne by the vendor and if necessary the sum should be apportioned out of the consideration money. The learned Court below on construction of the said clause along with evidence on record held that it was always to the appellant to appropriate any amount if paid towards the municipal taxes on behalf of the plaintiff upto to the date of completion of the transaction but that by itself could not be a ground for refusing to execute the necessary conveyance in favour of the plaintiff. The plaintiff specifically contended that he had paid all tax dues upto the date of completion of the transaction and in support thereof had exhibited tax receipts. There appears to be a dispute pending with the Kolkata Municipal Corporation (KMC) with regard to some enhanced claim on rates and taxes made by the KMC. The plaintiff appears to have paid the admitted dues but disputed the enhanced claim of KMC on account of such taxes. As opposed to such contention of the plaintiff, the defendant although contended that they 8 have paid 85,000/- towards municipal taxes in the name of the plaintiff but they could not produce any evidence.
The fact remains that the plaintiff had performed its obligation and, in fact, had paid substantial amount towards municipal tax dues in respect of the property in question. We find that the learned Court below held that if any arrear amount of tax in respect of the land belonging to the plaintiff found to be outstanding that could be apportioned from the consideration price in terms of Clause 5 of the said agreement but that could not be a ground for refusing to execute the necessary conveyance. We are in respectful agreement with such finding of the learned Civil Judge, Senior Division.
In so far as the claim of alternative accommodation is concerned it is an admitted position that when the plaintiff was put to Salt Lake accommodation, the defendant had agreed to pay a sum of Rs.6500/- and thereafter when the plaintiff shifted to Madhyamgram, the said defendant had agreed to pay a some of Rs.3000/- per month on ad hoc basis. The learned Judge had proceeded on the basis of such admission on the part of the defendant and on the basis of the materials on record granted a limited order for payment of accommodation charges at the rate of Rs.3000/- per month since February 2000 till possession of A Scheduled property in favour of the plaintiff. We see no reason to disagree with such finding. It is a fact that the entire land was handed over to the defendant for construction and the plaintiff was not accommodated in his own land where 9 the defendant has promised to construct building out of which 1200 square feet to be given to the plaintiff without any consideration and 550 square feet for a consideration. The property in question in which the plaintiff is ultimately to get those flats are located in Kolkata and it is an undisputed fact that the rent of any suitable flat near the said locality at any rate would not be less than Rs.3000/-. Moreover, we feel that the plaintiff is required to be compensated for being kept out of his own property for all these years and we feel that the granting of accommodation charge at the rate of Rs.3000/- is reasonable.
During the conclusion of hearing and when a request was made to adjourn the hearing of the appeal on the ground of settlement, we directed the parties to produce before us the amounts that may be receivable or payable by either of the parties in respect of the flats in question. From the Chart made over to us by the respondent upon furnishing a copy to the appellant, it appears that a sum of Rs.2,46,482/- is receivable by the appellant, particulars whereof are mentioned hereinbelow:
Receivable by the Appellant:-
Total Consideration for the flat:514 Sq.ft. X Rs.1100/-
= Rs.5.65,400/-
(Less) Already paid:- Rs.1,60,918/-
--------------------------------------------------------
Rs.4,04,482/-10
Receivable by the Respondent:-
Accommodation Charges:- Rs.3,000/- X 136 months (From February, 2000 till May, 2011) = Rs.4,08,000/- (Less) Already deposited in Court:-Rs.2,50,000/-
--------------------------------------------------------
Rs.1,58,000/-
To be paid by Respondent to the Appellant Rs.4,04,482/-
Rs.1,58,000/-
--------------------------
Rs.2,46,482/-
The respondent had expressed before us the desire to pay the aforesaid sums, in fact, it appears that a sum of Rs.2,50,000/- has already been deposited by the appellant in Court in terms of an earlier order towards accommodation charges. We have suggested the appellant to receive the said amount and to execute the necessary conveyance since the appellant would not have any other claim in respect of the said flat. The appellant, however, had refused to accept the said sum.
The fact remains that none of the flats have been delivered to the respondent in terms of the agreements mentioned hereinabove.
In view of the aforesaid, we uphold the judgment and decree passed in the suit with this modification that the plaintiff should pay a sum of Rs.2,46,482/- to 11 the defendant within three months from date and upon receipt of such sum, the defendant should execute necessary conveyance positively within a period of three weeks thereafter. In the event, the appellants refuse to accept the said amount, the plaintiff should deposit the same with the Registrar General within a period of three months from the date of such refusal and the Registrar General in turn would execute necessary conveyance and register the same in favour of the appellant within a period of three weeks from the date of depositing such amount with the said Registrar General.
In view of the aforesaid, the decree of the learned Court below stands modified to the aforesaid extent.
In view of the aforesaid, the appeal is dismissed, however, there shall be no order as to costs.
The appellant, however, has prayed for stay of operation of the said judgment and decree. We consider said prayer and upon consideration we reject the said prayer for stay.
(Soumen Sen, J.) I agree:
(Pinaki Chandra Ghose, J.)