Calcutta High Court
Apeejay House Pvt. Ltd vs Coal India Ltd on 6 October, 2023
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
GA/8/2019 (Old No: GA/752/2019)
WITH GA/1543/2012
IN APD/256/2009
GA/1599/2012
IN APD 216/2009
WITH CS 42/2006
In CS/72/2006
In CS/72/2006
APEEJAY HOUSE PVT. LTD.
Vs
COAL INDIA LTD.
For the Plaintiff : Mr. Abhrajit Mitra, Sr. Adv.
Mr. Debanjan Mandal, Adv.
Mr. Sanjiv Kr. Trivedi, Adv.
Mr. Aritra Basu, Adv.
Ms. Iram Hassan, Adv.
Mr. Sanket Sarawgi, Adv.
For the Defendant : Mr. Sudhakar Prasad, Adv.
Mr. Pradipta Bose, Adv.
Hearing concluded on : 18.09.2023
Judgment on : 06.10.2023
Page |2
Sugato Majumdar, J.:
Two suits were filed by the Plaintiff/Petitioner against the Defendant/Respondent in respect of two tenancies, praying for eviction and other prayers.
C.S. 72 of 2006 was filed by the Plaintiff/Petitioner praying for decree for peaceful vacant possession of the tenanted portion of the second floor of the premises no. 15, Park Street, Kolkata - 700016; decree for Rs. 6,99,917/- on account of mesne-profits; decree for further mesne-profit @ 75/- per square feet per month on and from 21.03.2006 till recovery of possession along with interest @ 12 per cent per annum, alternatively an enquiry into mesne-profit and decree for such sum at such rate as may be found due on enquiry along with other prayers.
The suit was decreed on the basis of an application filed under Chapter XIIIA of the Original Side Rules on 14.07.2009 and eviction decree was passed. For enquiry into mesne-profit Special Referee was appointed. Appeal was preferred against the Judgment and Decree dated 14.07.2009 by the Defendant without success. The Appellant Court also passed direction to raise the issue of mesne-profit before the Single Bench. Accordingly, it was enjoined upon this Court to enquire into the mesne-profit on the basis of the report of the Special Referee dated 07.05.2012.
G.A. 8 of 2019 is filed in connection with C.S. 72 of 2006 with prayer for confirmation of the report of the Special Referee dated 07.05.2012. G.A. No. 1543 of 2012 was filed in A.P.D. No. 256/2009 by the Defendant praying for setting aside the report of the Special Referee dated 07.05.2012 with further prayer to re-direct the Special Referee to re-determine and assess mesne-profit. This is in nature Page |3 exception to the report dated 07.05.2012 of the Special Referee. G.A. 9 of 2020 is the exception filed by the Defendant against the report of the Special Referee dated 07.05.2012 in this suit.
C.S. 42 of 2006 was filed by the Plaintiff/Petitioner against the Defendant praying for decree for peaceful vacant possession of the tenanted portion being the third floor of the premises no. 15, Park Street, Kolkata - 700016; decree for a sum of Rs. 26,35,620/- as mesne-profit; a decree for further mesne-profit @ 100/- per square feet per month till recovery of possession along with interest @ 12 per cent per annum along with other prayers. Judgment and decree of eviction was passed on 23rd June, 2009 on the basis of application under Chapter XIIIA of the Original Side Rules. Special Referee was appointed thereafter to enquire into the mesne- profit. Appeal was preferred by the Defendant against the Judgment and Decree dated 23.08.2009 without any success. The Special Referee submitted report dated 31.01.2012.
G.A. 1599 of 2012 was filed in A.P.D. No. 216 of 2009 in connection with C.S. 42 of 2006 by the Plaintiff praying for setting aside/expunging from evidence the report of the Special Referee dated 31.01.2012 with further prayer of passing final decree in terms of prayer (c) of the plaint along with other prayers. G.A 8 of 2020 is filed in C.S. 42 of 2007 with the same prayers.
In C.S. 72 of 2006, the Learned Special Referee Sri Dipak Deb, Advocate was appointed for calculation of mesne-profit of the premises no. 15, Park Street, Kolkata - 700016. The Learned Special Referee calculated mesne-profit for an area of 4745 square feet office space from the month of February, 2006 to the month of December 2010. The rate was determined as Rs. 100/- per square feet per month Page |4 carpet area inclusive of municipal taxes and all other outgoings with an enhancement of 15 per cent at an interval of every three years until the date of delivery of possession.
In C.S. 42 of 2006, the Learned Special Referee, Mr. Arindam Sinha, Advocate (as His Lordship was then) was appointed to determine mesne-profit in respect of office space on the third floor of Blocks A, B and C at premises no. 15, Park Street, Kolkata - 700016. Mesne-profit determined by the Special Referee is at a rate of Rs. 37.77 p per month per square feet carpet area from 01.02.2006 till 31.01.2009 and thereafter from 01.02.2009 to 31.12.2011 at a rate of Rs. 43.44 p per square feet per month carpet area.
Both the Learned Counsels exchanged respective affidavits which were filed and kept on record.
So far as C.S. 72 of 2006 is concerned, the Learned Counsel for the Plaintiff argued that the report of the Special Referee Sri Dipak Deb, Advocate should be accepted and final decree should be passed. According to the Learned Counsel the rate fixed at Rs. 100/- per square feet per month is more than reasonable.
Per contra, the Learned Counsel for the Defendant, referring to the report of the Special Referee Mr. Arindam Sinha, Advocate (as His Lordship was then), argued that rate fixed by Mr. Sinha is more acceptable. According to the decree/order of this Court, the Special Referee was required to compare the letting out value of the suit property between February 2006 to December 2010 whereas the Special Referee Sri Dipak Deb considered in his report the letting out value of the comparable properties from January 2001 till January 2011. It is further argued Page |5 that while comparing with tenancies, the Learned Special Referee took into consideration rents payable by these tenants who were at ground floor of the premises and had been paying higher rate of rents. Amenities provided in respect of different tenancies, taken into consideration, also differed. Differences in amenities provided to different tenants which were placed in evidence before the Special Referee Mr. Deb were not taken into consideration. The Special Referee also did not take into consideration different areas of different tenancies and also failed to consider that smaller size of tenancies are more in demand in comparison to larger size of tenancies. The Special Referee required to assess mesne-profit on the basis of the expert report and also from nearest comparable units which was not done. It is further argued that the Learned Special Referee gave undue weightage to a report of another Special Referee in respect of the premises no. 13, Ganesh Chandra Avenue, Kolkata - 700013 at ground floor and also wrongly followed and/or compared the said report in Bahubali's case. There is another limb of argument that ratio of the judgment in respect of the method of valuation as reported in (1995) 211 ITR 721 was not considered at all. The Defendant handed over a chart to the Special Referee Mr. Deb showing the name of the tenants, area demised, floor areas, occupied area, rate of square feet and lease period which were not at all considered. In nutshell, it is argued by the Learned Counsel for the Defendant that mesne-profit at a rate calculated by Mr. Arindam Sinha (as His Lordship then was) should be accepted in this case also.
In C.S. 42 of 2006 that is to say tenancy in respect of 3rd Floor, Block Nos.
"A", "B" and "C" of Premises No. 15, Park Street, Kolkata - 700016, the Plaintiff challenged the report of the Special Referee dated 31.01.2012. It is argued by the Learned Counsel for the Plaintiff that the Special Referee considered the rent Page |6 payable by the old sitting tenants; that the Special Referee did not consider the current rents payable by other similar tenancies. Mesne-profit considered in other suits in respect of similarly situated tenancies in the same premises should be taken into consideration; evidences were adduced by the Plaintiff before the Special Referee but the same was not taken care of. According to the Learned Counsel for the Plaintiff the report of the Special Referee dated 31.01.2012 should be expunged.
Mr. Dutta, the Learned Counsel for the Defendant mentioned in his notes of argument and submitted that rate of the mesne-profit determined by Special Referee Mr. Sinha (as His Lordship then was) should be accepted.
I have heard rival submissions.
It is no one's case that mesne-profit is not payable at all. In both the cases pleading as well as the arguments of the Defendant is that mesne-profit in respect of both the tenancies subject matters of both the suits, shall be at the rate which was determined by Mr. Sinha (as His Lordship was then) in his report dated 31.01.2012. It is not in dispute that the Plaintiff is not entitled to any mesne-profit.
Mesne-profit is defined in Section 2 (12) of the Code of Civil Procedure, 1908 as:
"'mesne profits' of property names those profits which the person in wrongful possession of such property actually received or right with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
Page |7 The normal measure of mesne-profit is, therefore, the value of the user of land to the person in wrongful possession, as explained by the five Judges' Bench of the Hon'ble Supreme Court of India in Fateh Chand Vs. Balkishan Das [AIR 1963 SC 1403]. It was further elaborated in this judgment that normally a person in wrongful possession of immovable property has to pay compensation computed on the basis of profits he actually received. It is not necessary to consider whether mesne-profits at a rate exceeding the rate of standard rate of the house may be awarded. In this case, the assessment was made by the High Court of compensation at a rate of five per cent of the fair value of the property which was regarded by the Hon'ble Supreme Court of India, not based on the value of the property. This was not sustained by the Hon'ble Supreme Court of India. In Martin & Harris Pvt. Ltd. & Anr. Vs. Rajendra Mehta & Ors. [(2022) 8 SCC 527], the Hon'ble Supreme Court of India expressed the view that basis of determination of the amount of mesne-profits depends on the facts of circumstances of each case considering the place where the property is situated, i.e. village or city or metropolitan city, location, nature of premises i.e. commercial or residential area and the rate of rent precedent on which premises can be let out are the guiding factor in the fact of individual cases.
Mesne-profit is not the actual rent which a landlord could have earned had the tenant vacated the premises. It is more in the nature of profits which the person in wrongful possession had gained. Rent which could have been earned is one of the parameters to determine mesne-profit; but, as discussed above, other guidelines are there to decide on the issue. The instant premises namely the premises no. 15, Park Street, Kolkata - 700016 is located at the heart of the commercial centre of the city. The tenancies were used for commercial purpose used as office space. Various amenities were also provided to the Defendant. In view of the location of the Page |8 property and its commercial values reasonable rate of mesne-profit should be fixed, taking into consideration also the pleadings of the parties and the concerned reports along with documents.
So far as C.S. 72 of 2006 is concerned, tenancy in respect of the part of second floor of the premises no. 15, Park Street, Kolkata - 700016 is in question, Mr. Dipak Deb calculated mesne-profit at a rate of Rs. 100/- per square feet, per month from the month of February 2006 till December 2010. In my considered opinion, reasonable rate of mesne-profit should be Rs. 85/- per month per square feet carpet area along with interest at a rate of 8 per cent per annum with 15 per cent increase of the mesne- profit after three years from the month of February, 2006 till December, 2010.
So far as C.S. 42 of 2006 is concerned, tenancy in question is in respect of part of third floor of the premises no. 15, Park Street, Kolkata - 700016. Mr. Sinha (as His Lordship then was) calculated mesne-profit at a rate of Rs. 37.77 p per square feet per month carpet area from 01.02.2006 till 31.01.2009 and thereafter from 01.02.2009 to 31.12.2011 at a rate of Rs. 43.44 p per square feet per month carpet area. In my consider opinion reasonable rate of mesne-profit should be Rs. 85/- per month per square feet carpet area along with interest at a rate of 8 per cent per annum with 15 per cent increase of the mesne-profit after three years from the month of February 2006 till the month of December 2011.
Hence it is ordered accordingly.
Let the final decree be drawn up.
Page |9 The original documents, the parties are at liberty to take back after the appeal period is over on furnishing authenticated copies and on submitting written undertaking to return the originals as and when required.
C.S. 42 of 2006 and C.S. 72 of 2006 are disposed of accordingly along with the pending applications.
(Sugato Majumdar, J.)