Calcutta High Court
Jay Shree Tea & Industries Limited vs General Magnets Limited on 29 November, 2013
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :
The Hon'ble Acting Chief Justice Ashim Kumar Banerjee
And
The Hon'ble Justice Debangsu Basak
A.P.D. No. 18 of 2010
C.S. No. 17 of 2001
Jay Shree Tea & Industries Limited
Vs.
General Magnets Limited
For the Appellant : Mr. Samit Talukdar, Senior Advocate
Mr. Suman Dutta, Advocate
For the Respondent : Mr. Anindya Kumar Mitra, Senior Advocate
Mr. Dhruba Ghosh, Advocate Mr. Abhrajit Mitra, Advocate Mr. P.K. Saraogi, Advocate Heard on : November 7, 12, 13, 18, 19 and 20, 2013 Judgment on : November 29, 2013 ASHIM KUMAR BANERJEE, ACJ.
General Magnets Limited was the owner of a plot of land situated at Rampur, Budge Trunk Road 24 parganas (South). On the said land, a godown measuring about 63756 square feet was given to Jay Shree Tea and Industries Limited the appellant above named on monthly tenancy by the respondent. The tenancy agreement was subsisting since 1966. The rent was time to time enhanced. Last enhancement was made with effect from April 1, 1990 at the rate of 39 paise per square feet. The agreement for increase would appear from a minutes of the meeting held on February 16, 1991 appearing at page 43. Clause 4 would provide as follows:
"The revision of rent will be reviewed every 10 (ten) years by both parties prospectively." There was further tenancy in respect of another godown measuring about 7500 square feet. After expiry of 10 years the respondent landlord wrote to the appellant for revision of rent that the appellant denied by their letter dated May 15, 2000 appearing at page 45. The contents are quoted below:
"This is to inform you that it is a fact our meeting was held on 16th February, 1991 at our office and it was agreed that revision of rent will be reviewed every after ten years prospectively. But since uauthorised/illegal construction has been made by you in the year 1999 by digging the wall of our tenanted godown and as a result of which our godown has become insecure as well as we are facing a lot of difficulties and/or obstruction for parking our Goods-vehicles due to the aforesaid illegal/unauthorized construction. Finding no other alternative, we had to file a suit against you and the matter is subjudice.
Therefore, the question of review of the rent at this stage does not arise."
The respondent thus filed a suit for recovery of enhanced rent for the period April 2000 to December 2000. The respondent also prayed for a declaration that the defendant tenant was liable to pay the enhanced rent from April 2000. The appellant/defendant did not contest the suit despite opportunity being given; they did not file any written statement. Simultaneously on filing of the suit the respondent filed an application for a direction upon the appellant to pay rent at the rate of Rs.6 per square feet and alternatively, for appointment of a Commissioner to find out appropriate rent after enhancement. By an order dated January 18, 2001 the Learned Single Judge appointed a Commissioner to investigate as to the market rate of rent payable in and around the premises in question and suggest the enhanced rent. The Commissioner accordingly submitted his report on February 15, 2001 suggesting rent between 5 to 6 rupees per square feet. The defendant prayed for setting aside of the report of the Commissioner. The learned Single Judge fixed the revised rent at Rs.3.50 per square feet. The defendant filed an appeal; plaintiff also filed cross-objection. The Division Bench asked the defendant to pay at the said rate without prejudice to their rights and contention in the suit. Since then, the appellant/defendant had been paying rent at the same rate. The defendant prayed for time to file written statement that the Apex Court ultimately rejected vide order dated November 23, 2007. The Division Bench however, permitted the appellant/defendant to cross examine the plaintiff's witness.
In this backdrop, the learned Single Judge heard the suit. The plaintiff produced two witnesses being the representative of the defendant and the Commissioner. The appellant did not object to the Commissioner's report being tendered in evidence. They were unsuccessful in dislodging the assertion made on behalf of the plaintiffs with regard to the rent fixed by the Commissioner. The Commissioner also could not be shaken during cross-examination as we find from his deposition. The learned Judge decreed the suit as prayed for, hence this appeal.
Mr. Samit Talukdar, learned Senior Counsel appearing for the appellant would raise two issues:
i) The Clause quoted above, could only be applicable when parties would be ad idem, otherwise it would have no effect.
ii) The plaintiffs could not prove their case, hence the decree was liable to set aside.
While elaborating his submission, Mr. Talukdar would refer to the deposition to comment, the Commissioner relied on the documents pertaining to other tenancies, those grantees, although known to the plaintiff, did not choose to depose in support of the said documents. Both Tapan Ghosh and Nilima Ghosh, the landlords of the premises in respect of which the tenancy agreements were produced and relied on by the Commissioner, were related to the supervisor of the respondent landlord. Their absence would raise serious doubt that was never attempted to be dispelled. The Learned Judge allowed photo copies of the documents to come on record without calling for the original documents. On the interpretation of the subject Clause, Mr. Talukdar would contend, the Clause would at best permit review of the rent with 10 years interval. Such review could only be possible when parties would be ad idem, otherwise the Court would have no jurisdiction to fix the enhanced rent. In short, Mr. Talukdar would contend, unless there was an agreement between the parties the Court could not modify any term of the agreement that the parties did not agree. To that extent, such Clause was absolutely vague and could not have any operation in absence of an agreement between the parties. He referred to the following decisions in this regard:
1. Maharaj Bahadur Sir Prodyot Coomar Tagore Vs. Maynuddin Mia & Ors. reported in All India Reporter 1938 Calcutta Page-724.
2. Keshavlal Lallubhai Patel and others Vs. Lalbhai Trikumlal Mills Limited reported in All India Reporter 1958 Supreme Court Page-512.
3. Beer Vs. Boden reported in 1981 Volume- I All England Reporter Page-1070.
4. Shanti Prasad Devi and Another Vs. Shankar Mahto and Others reported in 2005 Volume-5 Supreme Court Cases Page-543.
5. National Sample Survey Organisation and Another Vs. Champa Properties Limited and Another reported in 2009 Volume-14 Supreme Court Cases Page-451.
On the issue of degree of proof in respect of the Commissioner's report, Mr. Talukder relied on the following decisions:
1. Sasanka Sekhar Pal and others, Vs. Dinanath Gorain and others reported in All India Reporter 1952 Patna Page-271
2. Mariappa Thevar Vs. Kaliammal reported in All India Reporter 1971 Madras Page-198.
3. The Special Land Acquisition Officer Vs. Vishanji reported in All India Reporter 1996 Bombay Page-366.
4. Jute Corporation of India Limited Vs. Sudera Enterprises Private Limited reported in All India Reporter 2000 Calcutta Page-152.
He would lastly contend, under the tenancy law, the Rent Controller would be the appropriate authority to fix a fair rent by enhancement or otherwise. Civil Court would have no jurisdiction. He would rely upon the following decisions:
1. Sriram Rayons Vs. Ashok Nain & Ors. reported in 2005 Volume-III Calcutta High Court Notes Page-596.
2. Food Corporation of India Vs. Anurag Properties Private Limited & Anr. reported in 2007 Volume-I Calcutta High Court Notes Page- 1.
3. Punjab National Bank & Ors. Vs. Gulab Chand Bhora & Anr.
reported in 2008 Volume-3 Calcutta High Court Notes Page-
654. Per contra, Mr. Anindya Kumar Mitra, learned Senior Counsel would contend, an interpretation of a Clause would depend upon how the parties would understand and act upon it. Referring to the Clause Mr. Mitra would contend, the parties were definite, there must be a review of revision of rent with every 10 years approval. The Clause was specific and no vagueness could remotely be inferred. In this regard, he would strongly rely upon the decision in the case of H.V. Rajan Vs. C.N. Gopal & Ors. reported in All India Reporter 1961 Mysore Page-29. He would also rely upon the Single Bench decision of this Court reported in 1988 Volume-II Calcutta Law Journal Page-416 (Martin Burn Limited Vs. Steel Authority of India Limited) and the unreported decision of the Division Bench affirming the said decision. In the said case a Clause of like nature was interpreted by the Learned Single Judge to the extent, when parties agreed to have rent enhanced at a particular stage the Court could assist them in doing so in case of disagreement. He would rely upon Section 4 and 10 of the old tenancy law being the West Bengal Premises Tenancy Act 1956 to contend, the Rent Controller was entrusted to decide on a fair rent at the instance of the landlord or the tenant. Decision on a fair rent by the Rent Controller, according to Mr. Mitra, was totally a different concept as the parties herein, by agreement, agreed to have review of rent with a periodic interval. According to him, the Clause was specific and could not be termed as vague. He referred to the pleadings to show, such issue was never taken earlier. Additional grounds should not be permitted to be taken at this belated stage. Distinguishing the cases cited by Mr. Talukdar on the issue of interpretation of the Clause of the like nature Mr. Mitra would contend, the decision in the case of Keshav Lal (supra) was rendered under the Sale of Goods Act. Similarly, the decision in the case of Shanti Prasad Devi (supra) would render no assistance to Mr. Talukdar. The Clause involved therein would relate to renewal of lease. Mr. Mitra also distinguished the decisions cited by Mr. Talukdar on the power of the Civil Court he contended, Section 4 and 6 of the old tenancy law empowering the Rent Controller to decide fair rent would have no application in the instant case and in any event, fixation of rent by the Court in case of disagreement between the parties, was not specifically barred by law. On the degree of proof, Mr. Mitra distinguished the cases by contending, the Apex Court granted the appellant opportunity to cross-examine the witnesses. The representative of the landlord as well as the Commissioner were cross examined but they could not be shaken during examination. The original documents relied on by the Commissioner were produced that the learned Judge permitted the plaintiff to take back upon keeping a loco copy thereof. There was no contemporaneous objection with regard to tendering of those documents, hence the presence of the grantees to the said agreements was not necessary. Mr. Talukdar, while replying, relied on paragraph 6 of the Mysore Judgment as well as the decision in the case of M/s. Jardine Skinner and Company (supra) to strenuously support his contention.
We have considered the rival contentions; we have considered the law on the subject, so decided by the precedents. A decision in a case would not only depend upon the abstract proposition of law so decided by the precedent, but also upon the facts of the case and more so, the conduct of the parties. The plaintiff rightly or wrongly insisted on enhancement on rent that the defendant did not agree giving rise to the cause of action to file a suit by the plaintiff as against the defendant. The plaintiff filed the suit in 2001. The plaintiff served the writ of summons. The defendant did not choose to file written statement. Belated prayer for extension of time to file written statement stood rejected at the Apex Court level. The Apex Court granted opportunity to cross-examine the plaintiff's witness that they availed.
On the Commissioner's report we find, the defendant was not successful in getting the order of appointment of Commissioner set aside. They were also unsuccessful in upsetting the report of the Commissioner. Once they failed to do so, the report would be binding upon them. The limited scope they had from the order of the Apex Court referred to above, was availed. Yet, they were unsuccessful. We fail to reason how at this juncture the defendant could question the propriety of the Court to fix the enhanced rent through Commissioner or otherwise and decree the suit accordingly. Keeping it in mind let us now examine the rival contentions.
The Clause quoted above, would make a definite proposition, the parties agreed to have review of revision of rent with every 10 years interval. Last of such review was made in 1990 hence, the plaintiff wanted to have review in 2000. The defendant avoided on the plea of pendency of a suit that would have no bearing on the issue (at least not argued by Mr. Talukdar before us). Even if one of the parties would not agree to such revision or parties could not come to a conclusion on the exact enhancement the clause., in our view, could not be rendered nugatory on the plea of vagueness. It is the duty of the Court to give effect to an agreement by giving harmonious construction to the extent possible. The Clause above is not so absurd that would pre-empt the Court to interfere. Such interference cannot be termed as novation of the agreement. It is like the Court helping as a catalyst between the parties in getting a particular condition of the contract fulfilled. Both the parties before us placed reliance on H.V.Rajan (supra), the Division Bench of the Mysore High Court considered a Clause of in a Deed of Lease that would involve renewal on certain terms and conditions to be agreed. The lease was renewed. However, the increase could not be affected. The agreement therein provided as follows:
"After the expiry of the period of five years fixed under this lease this lessees shall have the option of five years but subject only to such terms and conditions as may be mutual agreed upon."
Lease was renewed however, the parties could not agree to the enhanced rent. In that context, the Division Bench of the Mysore High Court rendered the decision. While doing so the Division Bench observed, in paragraph 6 "Ordinarily the renewal clause in a lease deed is an important term of the agreement. Courts will be reluctant to ignore that clause on the ground that it is vague, unless on a reasonable construction no meaning can be attached to it." In the case of Jardine Skinner (Supra) the Court considered a Clause, if the grantor do not take a patta the grantee would be free to make a settlement with others. The defendant at the expiration of the lease continued in possession however, nothing was done in assessing the rent for the new lease. Considering such backdrop, the English Court held, the plaintiff had right to turn the defendant out of possession at the expiry of five years as he did not opt for renewal. We do not find any scope to apply the ratio in the case of Jardine (Supra) in the present case. Rather the decision in the case H.V.Rajan (supra) would impress us more. As observed hereinbefore, clause was specific. There was no ambiguity that would leave any scope to raise doubt as to its interpretation. Unfortunately parties could not come to a conclusion, rather the defendant never attempted to act upon such term on the plea of pendency of a civil suit that would have no bearing on the issue. The matter could be looked into from a different angle. In case the parties agree to such a clause and when the time would come oneof them would abruptly avoid acting upon it showing no plausible reason, would that clause be nugatory? In our view, no. Law would not permit anyone to act contrary to the agreement, without plausible reason.
Assuming the Court did not have jurisdiction uch issue should have been raised at the threshold. The defendant did so however, unsuccessfully. Once becoming unsuccessful at the highest level and submitting to the jurisdiction of the Commissioner they were duty bound to assist the Commissioner in discharging his duty. From the report of the Commissioner we find, there was totall non- cooperation from the side of the defendant. Hence, the Commissioner was compelled to close the process with the assistance he had from the plaintiff as also by making local enquiry of his own. The defendant challenged the report and became unsuccessful. How could we come to their aid at this stage? The appeal fails and is hereby dismissed. There would be no order as to costs.
Debangsu Basak, J:
I agree.
[ASHIM KUMAR BANERJEE, ACJ.] [DEBANGSU BASAK, J.]