Calcutta High Court
Kalpana Shah vs Corporation Bank on 6 April, 2017
Author: Soumen Sen
Bench: Soumen Sen
GA No.1232 of 2015
CS No.120 of 2012
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
KALPANA SHAH
-Versus-
CORPORATION BANK
Appearance:
Mr. R.K. Jain, Adv.
Mr. Piyush Kumar Roy, Adv.
...for the plaintiff.
Mr. V. Raja Rao, Adv.
Ms. Aparajita Rao, Adv.
Ms. Sudeshna Sen, Adv.
...for the defendant.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 6th April, 2017.
The Court : This is an application filed by the owner of the property for setting aside of the report filed by the special referee dated 28th February, 2015 and for holding a fresh enquiry for determination of the mesne profits in respect of the suit premises for the period from 9th January, 2012 TO 30th September, 2014. The special referee has returned his finding after assessing the evidence. The special referee was of the view that on consideration of the oral and documentary evidence, the mesne profit of the suit premises would be Rs.55 per sq.ft per month for 2 3000 sq.ft. of the suit premises which works out to Rs.1.65 lakhs per month. The plaintiff is also entitled to mesne profits for the period 9th January, 2012 to 30th September, 2014 i.e. 32.74 months which, in turn, works out to Rs.54,02,100/- less the rent of Rs.13,625/- per month (including TDS but excluding Rs.6598/- towards KMC taxes) paid by the defendant throughout the period January, 2012 to September, 2014.
The learned Counsel has relied upon a judgment of this Court in the case of Casyab Pvt. Ltd. vs. Central Bank of India reported in (2013)3 CHN 222 which appears to have been placed before the special referee on behalf of the plaintiff. There is nothing on record to show that the report filed by the special referee has been seriously challenged by the bank or the basis of the said report is not acceptable to the bank. The special referee, however, proceeded on the basis that the expert evidence could not be taken into consideration without supporting documents which, in my view, the special referee was justified. However, it is submitted during the course of hearing that the plaintiff is in a position to adduce further evidence in justification of its claim. The evidence of comparable units fetching rents which may be nearer to the claim of the plaintiff was claimed to have been produced before the special referee at a belated stage which according to the plaintiff were not considered. 3
Under such circumstances, the matter is remanded to the special referee for reconsideration of the fixation of mesne profits only on production of additional evidence. The plaintiff as well as the bank shall be entitled to adduce further evidence before the special referee. However, without prejudice to the rights and contentions of the plaintiff the bank shall pay the mesne profits as determined by the special referee in his report dated February 28, 2015 within six weeks from date. This report of the special referee dated February 28, 2015 is not under challenge by the bank.
The special referee shall enter reference within one weeks from the date of communication of this order and is requested to conclude the same on consideration of fresh evidence that may be produced before the special referee by the parties preferably within a period of four months from the date of production of such additional evidence in terms of this order. The parties intending to rely upon any fresh evidence shall do so within two weeks from date; failing which it shall be presumed that they do not have any further evidence to adduce in the proceeding. In the event no additional evidence is produced, the finding of the special referee shall remain conclusive.
The special referee shall be entitled to a remuneration of 600 Gms. per sitting to be shared equally by the parties. He 4 may engage a clerk and a stenographer at a remuneration to be fixed by him and to be shared by the parties in equal measure.
G.A.No.1232 of 2015 accordingly, stands disposed of.
(SOUMEN SEN, J.) A/s.