Calcutta High Court (Appellete Side)
Park Street Properties (P) Ltd vs Dipak Kumar Singh & Anr on 8 November, 2017
Author: Shivakant Prasad
Bench: Shivakant Prasad
1
08.11.2017 C.O. 3233 of 2017
Park Street Properties (P) Ltd.
Vs.
Dipak Kumar Singh & Anr.
Mr. Ratnanko Banerjee
Mr. Tanmoy Mukherjee
Mr. Neelesh Chowdhury
Ms. Anuradha Podder
........for the Petitioner
Mr. Rupak Ghosh
Mr. Rajesh Upadhyay
.......for the Intervenor
Mr. Abhrajit Mitra
Mr. Satadeep Bhattacharyya
Mr. Surajit Biswas
.......for the Opposite party no. 1
SHIVAKANT PRASAD, J.
Challenge in this application is against the Order being no. 49 dated 11.9.2017 passed by the learned Registrar, City Civil Court at Calcutta in Title Execution Case No. 22 of 2011 arising out of Title Suit No. 5394 of 2008.
Chronological event leading to the instant case is that the petitioner as plaintiff filed a suit for Recovery of Khas possession and mesne profits against the opposite parties herein. The said suit, which was filed before the learned Judge, 5th Bench, City Civil Court at Calcutta, was registered as Title Suit No. 5394 of 2008.
The defendants/opposite parties herein after entering appearance in the said suit contested the 2 same by filing written statement thereby denying the material allegations contained therein and the learned Trial Judge by its judgment and decree dated 07.6.2010 was pleased to decree the said suit on contest thereby directing the defendants/opposite parties herein to deliver the vacant and peaceful possession of the suit premises in favour of the plaintiff/petitioner.
Being aggrieved by and dissatisfied with the said judgment and decree passed by the learned Trial Judge, the defendants/judgment debtors/opposite parties herein preferred First Appeal being FA No. 151 of 2012 before this Hon'ble Court which was allowed thereby setting aside the judgment and decree passed by the learned Trial Judge and remitting back the suit on remand for fresh decision from the stage of examination of the question of validity of notice dated 30.10.2008.
Challenging the said judgment and decree dated 15.5.2014 passed in FA No. 151 of 2012, petitioner preferred Special Leave Petition being SLP (C) No. 24486 of 2014 before the Hon'ble Apex Court renumbered as Civil Appeal No. 8361 of 2016 on grant of leave and the Hon'ble Apex Court was pleased to allow the said appeal thereby setting aside the judgment and decree passed by this Hon'ble Court in FA No. 151 of 2012 and restoring the judgment and decree passed by the learned Trial Judge in Title Suit No. 5394 of 2008.
In the meanwhile petitioner had filed Title Execution Case being No. 22 of 2011 which was stayed due to pendency of the First appeal before this Hon'ble Court and immediately after allowing the appeal preferred by petitioner before the Hon'ble Apex 3 Court, petitioner on 07.9.2016 filed one put up petitioner for execution of the writ for delivery of possession of the suit premises before the Registrar City Civil Court at Calcutta and the Registrar by its order no. 23 dated 07.9.2016 directed the put up petition to appear on the next date as fixed i.e. on 17.12.2016.
The learned Chief Judge, City Civil Court by its order being no. 30 dated 08.3.2017 issue notice upon the judgment debtors in both modes fixing 08.5.2017 for the hearing of the said Misc. Case for service upon judgment debtors and fixed 07.7.2017 for return of service.
Being aggrieved by and dissatisfied with the said order being no. 30 dated 08.3.2017 passed by the learned Chief Judge, City Civil Court at Calcutta in Misc. Case No. 664 of 2017 in connection with Title Execution Case No. 22 of 2011 arising out of Title Suit No. 5394 of 2008, petitioner preferred one Civil Revisional application being C.O. 1923 of 2017 before this Hon'ble Court and the aforesaid Civil Revisional application came up for hearing on 18.7.2017 before His Lordship the Hon'ble Justice Sanjib Banerjee, when His Lordship upon hearing the learned Advocate for the petitioner and since no one entered appearance inspite of service on behalf of the judgment debtor, His Lordship was pleased to dispose of the same directing the learned Executing Court to bring the execution case to its logical conclusion expeditiously without insisting the presence of the judgment debtor.
The learned Executing Court vide its order being no. 36 dated 05.8.2017 was pleased to allow the Misc. Case no. 664 of 2017 ex parte thereby granting 4 Police Assistance at the time of delivery of possession of the suit property in favour of the decree holder and the learned Registrar, City Civil Court, Calcutta vide its order being no. 40 dated 01.9.2017 was pleased to record that the decree holder/petitioner herein duly deposited the police cost of Rs. 42,692/- fixing on 04.9.2017 for issuance of writ of possession of the suit property.
On 04.9.2017, though the date was fixed by the learned Registrar, City Civil Court, Calcutta but in view of the letter dated 04.9.2017 from the Park Street Police Station, the learned Registrar fixed on 06.9.2017 for issuance of writ of delivery of possession in favour of the decree holder and vide its order dated 06.9.2017 ultimately issued the writ of delivery of possession through Court's Bailiff with Police Assistance and directed to break open the padlocks of the suit property. But the writ was returned unexecuted by the bailiff as revealed from order dated 06.9.2017.
In view of the order dated 18.7.2017 passed in C.O. 1923 of 2017, the learned Registrar further fixed the date 08.9.2017 for issuance of writ possession through bailiff with Police Assistance for delivery of possession of the suit property in favour of the decree holder and on the same dated i.e. 06.9.2017, the judgment debtors/opposite parties herein filed one application under Section 47 of the Code, 1908 inter alia objecting the execution of the decree in question on the ground of nullity. The said application under Section 47 of the Code was registered as Misc. Case No. 2747 of 2017.
The judgment debtors in connection with the said application under Section 47 of the Code, 1908, 5 also filed another application under Section 151 of the Civil Procedure Code inter alia praying for stay of the Execution Case being No. 22 of 2011.
Since, there was no order of stay of the execution case, the executing court again issued writ through bailiff with Police Assistance for delivery of possession of the suit property in favour of the decree holder with the liberty to break open the pad lock of the suit property, if necessary on 08.9.2017. It is submitted that on 11.9.2017, the learned Chief Judge, City Civil Court, Calcutta after hearing both the parties did not pass any order of stay in connection with the Misc. Case no. 2747 of 2017 and fixed 14.9.2017 for hearing of the Misc. Case under Section 47 of the Code filed by the judgment debtors.
Being aggrieved by and dissatisfied with order being no. 49 dated 11.9.2017 passed by the learned Registrar, City Civil Court at Calcutta in Title Execution Case No. 22 of 2011 arising out of Title Suit No. 5394 of 2008, the petitioner preferred this revision, inter alia, on the grounds that the learned Judge of the Executing Court acted illegally and with material irregularity by simply adjourning the matter till 16.9.2017 for taking steps by the decree holder inspite of such a report of the bailiff dated 08.9.2017 being submitted before the learned Court.
It is contended that inspite of eviction decree being affirmed up to the Hon'ble Apex Court the defendants/judgment debtors/opposite parties herein is running a business of 'Mc Donald's Family Restaurant' over the suit property, the learned Judge of the Executing Court ought to have taken prompt steps for delivery of possession of the suit property in favour of the decree holder.
6Learned counsel for the judgment debtors submitted that the Court cannot be faulted with as there is no failure on the part of the Executing Court to take steps in the matter of execution of the decree and my attention is invited to the Bailiff's report at page 57 which shows the reports of Ram Nath Singh for D.K. Singh which reads thus--
"Seen the Courts order. I am the area manager in charge of Mac Donald, duly authorised to undertake on behalf of Mc Donald to the effect that the Furniture & Fixtures of Macdonalds will be removed within (15 days) from today and in the event the furniture & Fixtures cannot be removed within 15 days we will pray further time from the Court this undertaking is subjected to verification from our end in the Ld. Court who has pass the order of eviction.
Ram Nath Singh for D.K. Singh 8/9/17 5B J.C. Road Kol-97 9836570122"
It also reveals from the endorsement made by one Tarun Mallick employee of decree holder that the decree holder property was identified by him but the possession could not be done due to huge articles fixed in the decree holder property and that it was not possible to remove the articles within a few times and as nobody was taken liability to take these articles.
It also reveals that the S.I. of Police, Park Street Police Station has reported to this effect that necessary Police Assistance was rendered to Seal Bailiff Sri Sankar Das.
The said Bailiff has submitted his report on 08.9.2017 which reads thus--
"Sir, I beg to report that on 8.9.2017 at about 3 P.M. 7 I being accompany by the constituted Attorney of the Dhrs' firm (Park Street Properties (P) Ltd.) Mr. Tarun Mullick went to Park Street P.S. reaching there I took police force vide G.D. entry no. 20 dated 8.9.2017, I being accompanied by the said constituted Attorney of the Dhrs' firm Mr. Tarun Mullick Park Street as well as 55 Park Street, Calcutta-16 and found there is a restaurant styled as "Mc Donald" and I entered into the premises alongwith police party. One Mr. Ramnath Singh (44) , S/o. Late M. Singh came for ward and disclosed himself in charge of Mc Donald Seal Bailiff communicated him the order of Ld. City Civil Court, Calcutta for delivery of possession of the premises i/c/wT. Exa No. 22/2011. He stated the Seal Bailiff that there are huge fixed contly interior furniture and some articles, which cannot be dismantled within few hours. As such he sought 15 days time to vacate the premises. And accordingly I allowed his prayer Mr. Ram Nath Singh wrote the some in his own writing and signed it and made over such, declaration to the satisfaction of Seal Bailiff. No obstruction was raised on the part of the occupiers and situation was normal. The said Ram Singh informed me that as per permission of the Dhr Mc. Donalds is operating for a period of 30 years and the decree was passed is collusion of Dhr and the same is not lainding upon the Mc Donalds is appears that to the suit. After that left premises under direction of Seal Bailiff and officers force and Lady Police were withdrawn under order of Addl. O.C. Sec. Kl. The matter was informed to O/C Sec. Kl and all concerns. The attending Police and the constituted Attorney of the Dhr's firm made their endorsed on the back of the writ to that effect.
Yours faithfully, Sankar Das Seal Bailiff dt. 8.9.2017 "
It reveals therefrom that 15 days time was given to the Area Manager of Mc Donald for the judgment debtor to vacate the premises as it was not possible as on the date of execution of the decree on 08.9.2017 to execute the decree by taking possession 8 of the same due to the fixture of the furniture and the articles at the decreeted properties.
The learned counsel for the judgment debtors/opposite parties herein submitted that
Comought Plaza runs the chain of restaurant in the name of Mc. Donald, a third party who is in possession and that the said party has not been made party to the suit and that the decree is not executable as against third party. The report of the Bailiff clearly goes to show that the Bailiff took police help and went to the decreetal place with the police party to execute the decree. On behalf of the judgment debtor an application under Section 47 C.P. Code has been registered as Misc. Case.
The order no. 49 dated 11.9.2017 reveals that writ of delivery of possession was returned unexecuted to the execution court with report of Sankar Das, Seal Bailiff on 08.9.2017 through Nazir on 11.9.2017 and on that date the date was fixed on 16.9.2017 for taking steps by the decree holder. The learned executing court received an application under Section 151 C.P. Code filed by judgment debtor praying for not passing any further order for execution of decree without hearing the opposite parties on the ground stated in the application. The copy was not served on the decree holder but was kept on the record. Accordingly, the learned Registrar being the Executing Court directed the judgment debtor to serve the copy of the petition under Section 151 C.P. Code to the decree holder by the date fixed.
Learned counsel for the judgment debtor opposite parties herein has argued that the execution of the decree cannot be proceeded without an opportunity to the opposite parties being given 9 pertaining to the question raised in the execution proceeding.
Learned counsel for the opposite parties herein firstly referred to a decision in case of Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another reported in (1997) 3 Supreme Court Cases 694 adverting my attention to paragraph 8 which reads thus--
"A conjoint reading of Order 21, Rules 97, 98, 99 and 101 projects the following picture:
(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35 then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 10 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree."
Secondly, a decision in case of Anwarbi v. Pramod D. A. Joshi and others reported in (2000) 10 Supreme Court Cases 405 is referred in which case, suit was filed by the original plaintiffs for possession it was decreed. The first appeal as well as the second appeal were also dismissed. The original decree holder represented by respondent nos. 1 to 5 applied for execution of decree against judgment debtor under Order 21, Rule 35 by an application. In execution proceedings obstruction was raised by the appellant but declined to handover the possession of the property to the Bailiff on the ground that she was legally entitled to be in possession of the said property. The appellant was not a party to the suit proceedings.
In that set of fact the Hon'ble Apex Court held, in view of the obstruction caused it was for the decree holder to take appropriate steps under Order 21, Rule 97 for removal of the obstruction and to have the rights of the parties including the obstructionist adjudicated under the provisions under Order 21, Rule 101.
Finally, learned counsel for the judgment debtors/opposite parties has referred to a decision of Sameer Singh and another v. Abdul Rab and others reported in (2015) 1 Supreme Court Cases 379, wherein it has been held thus--
"Order 21 Rule 97 CPC deals with resistance or obstruction to possession by the holder of a decree for possession or the purchaser of any such property sold in execution of a decree. It empowers such a person to file an application to 11 the court. Rule 99 deals with dispossession by decree-holder or purchaser of "any person" other than judgment-debtor. When such person makes an application, the court is obliged to adjudicate the same. Rule 100 deals with orders to be passed upon application complaining of dispossession. Rule 98 deals with orders after adjudication. Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree."
It is clear from the above provisions that the Executing Court has the authority to adjudicate all the questions pertaining to right title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the removal property. The self-contained code in Order 21, Rule 97 to 103 enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also because prior to the 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the Executing Court. On behalf of the petitioner of Misc. Case before the executing court raising question to be decided in execution decree it is submitted that Mc Donald being the chain of restaurant of Camought Plaza not being pleaded in the Title Suit, the decree passed in respect of the suit property cannot be executed against the said Mc Donald a restaurant in possession of the decreetal property.
In rebuttal, learned counsel for the petitioner decree holder has invited my attention to the order dated 18.7.2017 passed in C.O. 1923/2017 which reflects that the judgment debtors/ opposite parties 12 jointly contested the eviction suit and suffered the decree. While disposing the revisional application the executing court was directed to bring the execution proceedings to a logical end without insisting on service on the judgment debtors any further, as a grievance of the petitioning decree holder was/is that on an application under Order 21, Rule 97 of the Code for police help for the Bailiff to deliver possession to the decree holder, the executing court required judgment debtor to be served. Thus, the execution court was directed to ensure that the executing proceedings are successfully concluded within a reasonable time of the next adjourned date on September 08, 2017.
Learned counsel for the petitioning decree holder submitted that the executing court has failed to bring the execution proceedings to a logical end in letter and spirit of the said order passed in C.O. No. 1923/2017 which provided for execution of the decree on September 08, 2017. But the learned executing court has failed to do so.
The question before this Court is whether the Mc. Donald is a third party stranger in possession of the decretal property. My answer is in the negative. In this context, it would be profitable to go through the judgment passed by the Hon'ble Apex Court in Civil Appeal No. 8361/2016 which arose out of the impugned judgment and order dated 15.5.2014 passed by this Hon'ble Court in FA No. 151/2012 whereby the High Court had set aside the decree and the judgment of the Trial Court and remanded the suit for reconsideration from the stage of examination the validity of the notice dated 30.10.2008. The facts as it appear from the judgment of the Hon'ble Apex 13 Court may be reproduced as under--
"One Karnani Properties Limited, a company incorporated under the Companies Act, 1956 was the owner of the suit premises. It had let out the suit premises in favour of the appellant herein with the right to sublet the same or portions thereof. The appellant herein entered into an agreement dated 15.10.2004 with the respondents subletting the suit premises for the purpose of carrying out business from the 'Blue Fox Restaurant'. Subsequently, the respondents requested the appellant to allow them to run franchise or business dealing with McDonald's family restaurant from the suit premises. In pursuance of the same, the agreement dated 15.10.2004 was terminated, and a tenancy of the suit premises was created in favour of the respondents on the basis of an unregistered agreement dated 07.08.2006 at a rent and on the terms and conditions agreed therein. In terms of the said agreement, the tenancy commenced from 01.08.2006, at a rent of Rs. 20,000/- per month, payable by "the tenants-respondents by the 7th day of every succeeding month according to the English calendar. Further, as per the terms of the agreement, in case of breach of the agreement, the landlord--appellant was entitled to terminate the tenancy after serving a notice of period of thirty days. On 30.10.2008, the appellant issued a notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the "Act") terminating the monthly tenancy of the respondents in respect of the tenanted premises upon the expiry of 15 days from the date of receipt of the said notice. Upon the expiry of the period of 15 days, the respondents did not vacate the suit premises. The appellant thus, filed suit for recovery of khas possession and mesne profits of the suit premises before the City Civil Court at Calcutta. The respondents contested the suit inter alia contending that by necessary implication the parties had agreed to not terminate the lease of the premises before 30 years, and that it was for this reason, a clause was incorporated for enhancement of monthly rent at the rate of 15% after expiry of every 3 years. The respondents further urged that the appellant had permitted them to invest a substantial sum of money for further repair and renovation of the tenanted premises suitably for their business. Thus, the appellant, by its declaration, acts and omissions had intentionally caused and permitted the respondents 1 not terminate the to believe that they will not terminate the lease of the respondents in respect of the tenanted premises before the expiry of the franchise agreement for 14 running the Mc Donald's Family Restaurant from the tenanted premises. It was thus, urged by the respondents that the notice of termination of lease is bad and not in accordance with law."
Thus, from the facts of the case before the Trial Court it would appear that it is the judgment debtors and the defendants in the suit who have entered into an unregistered agreement on 07.8.2016 for running the Mc Donald Family Restaurant from the tenanted premises. Therefore, it is the judgment debtors who are running the restaurant in the name and style of Mc Donald, ergo, Mc Donald as a separate entity cannot raise such contention that it was not a party to the suit and a stranger in possession of the decretal property. The decree was challenged before the Hon'ble High Court in First Appeal on the legality validity and sufficiency of the notice terminating the lease of the premises before thirty years. The learned Trial Court held that the said agreement was inadmissible in evidence so none of the terms can be admitted for the purpose of proving important clauses of conditions therein including the Clause 6. The Hon'ble Court in First Appeal set aside the judgment and the decree passed by the Trial Court and remanded the same to the learned Trial Court requiring it to enquire and to reconsider the validity of the notice dated October 30, 2008 looking into the exhibit-4.
The Hon'ble Apex Court in the Second Appeal while setting aside the impugned judgment and the order passed by the High Court restored the judgment and order of the Trial Court that is to say, affirmed the judgment and the decree of the Trial Court with the following observation in paragraph 12 of the judgment--
15"12. Thus, the question of remanding the matter back to the Trial Court to consider it afresh in view of the fact that the same has been admitted in evidence; as the High Court has done in the impugned judgment and order, does not arise at all. While the agreement dated 07.08.2006 can be admitted in evidence and even relied upon by the parties to prove the factum of the tenancy, the terms of the same cannot be used to derogate from the statutory provision of Section 106 of the Act, which creates a fiction of tenancy in absence of a registered instrument creating the same. If the argument advanced on behalf of the respondents is taken to its logical conclusion, this lease can never be terminated, save in cases of breach by the tenant. Accepting this argument would mean that in a situation where the tenant does not default on rent payment for three consecutive months, or does not commit a breach of the terms of the lease, it is not open to the lessor to terminate the lease even after giving a notice. This interpretation of the clause 6 of the agreement cannot be permitted as the same is wholly contrary to the express provisions of the law. The phrase 'contract to the contrary' in Section 106 of the Act cannot be read to mean that the parties are free to contract out of the express provisions of the law, thereby defeating its very intent. As is evident from the cases relied upon by the learned senior counsel appearing on behalf of the appellant, the relevant portions of which have been extracted supra, the contract between the parties must be in relation to a valid contract for the statutory right under Section 106 of the Act available to a lessor to terminate the tenancy at a notice of 15 days to not be applicable."
Having regard to the facts discussed above, this court finds that the judgment debtors/opposite parties herein are running a restaurant business in 16 the name and style of 'Mc Donald' which is well depicted from the report of the bailiff and the endorsement of undertaking to vacate the premises within 15 days given by the Area Manager-in-Charge of Mc Donald on behalf of Dipak Kumar Singh the judgment debtor/opposite party.
Therefore, this court directs that learned executing court to execute the decree affirmed by the Hon'ble Apex Court in Civil Appeal No. 8361/2016 by issuing writ of possession afresh with effective police help and to deliver up the possession of decretal premises unto the decree holder under direct supervision of learned Registrar, City Civil Court, Kolkata with further direction to report compliance by 29.11.2017.
Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)