Calcutta High Court
Sidhartha Dealer Llp vs Orient Beverages Limited & Ors on 13 November, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 5 of 2022
In
CS No. 257 of 2016
Sidhartha Dealer LLP
Versus
Orient Beverages Limited & Ors.
Mr. Dhruba Ghosh, Sr. Adv.
Mr. Soumabho Ghose
Mr. Souvik Majumdar
Mrs. Anyapurba Banerjee
Ms. Sudha Singh
Ms. Ajeyaa Chowdhury
... For the plaintiff.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Arif Ali
Mr. Arnab Sardar
... For the defendant nos.2 and 4.
2
Hearing Concluded On : 07.08.2024
Judgment on : 13.11.2024
Krishna Rao, J.:
1. The defendant nos. 2 and 4 have filed the present application being G.A. No. 5 of 2022 praying for dismissal of the suit or for rejection of plaint. The plaintiff has filed the suit for a decree for recovery of khas possession of the suit property by evicting the defendant nos. 2 to 5, decree for a sum of Rs. 1,14,17,412/- against the defendant no.1 being the proportionate Municipal rates and taxes and decree for mesne profits.
2. At the time of filing of the suit, the plaintiff has also filed an application for grant of interim order against the defendant nos. 2 to 5 being G.A. No. 3669 of 2016 and this Court by an order dated 19th July, 2019, passed an interim order restraining the defendant nos. 2 to 5 from dealing with, transferring, alienating or parting with possession of any part or portion of the suit property till the suit is heard finally.
3. Mr. Abhrajit Mitra, Learned Senior Advocate, representing the defendant nos. 2 and 4 submitted that the landlord cannot file a suit for ejectment of sub-tenant or sub-lessee alone. He submits that the landlord has to sue the lessee for eviction and if he succeeds against the lessee, then the sub-lessee or sub-tenant would be ejected along with the lessee. He submits that if there is no decree claimed against 3 the lessee, then there cannot be any eviction decree against the sub- lessee or sub-tenant.
4. Mr. Mitra submits that it is the plaint case that the defendant nos. 2 and 4 are claiming to be in occupation of the suit property through the defendant no.1, the lessee. He submits that it is also the case of the plaintiff that the defendant no.1 was the lessee and the lease period expired by efflux of time but vacant possession of the property has not been handed over to the plaintiff. He submits that the defendant no.1 failed to hand over possession of the property to the plaintiff upon expiry of the lease period, the plaintiff could have sued the defendant no.1 for eviction and without any prayer for eviction of the defendant no.1, the plaintiff could not have sued the defendant nos.2 and 4 who as per the case of the plaintiff claiming their right through the defendant no.1. In support of his submissions, Mr. Mitra relied upon the judgment in the case of Hiralal Vallabhram Vs. Kastorbhai Lalbhai & Ors. reported in AIR 1967 SC 1853 and submitted that if the tenant-in-chief is not ordered to be ejected and there is no such order by the appellate court, it follows that the appellate court had no jurisdiction to order the ejectment merely of the sub-tenant assuming that the appellant was a sub-tenant.
5. Mr. Mitra submitted that it is the plaint case that the defendant no.1 has inducted sub-lessees and the same is appearing in the Lease Deed dated 31st March, 2001, under Clause 3. He submits that the document being Annexure 'B' i.e. Lease Deed dated 31st March, 2001 be taken 4 into consideration at the time of consideration of the present application. In support of his submissions, Mr. Mitra relied upon the judgment in the case of Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/ Managing Trustee reported in (2012) 8 SCC 706 and submitted that it is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint.
6. Mr. Mitra relying upon the judgment in the case of Ram Bharosey Lal Gupta (Dead) by Lrs. and Others Vs. Hindustan Petroleum Corporation Limited and Anr. reported in (2013) 9 SCC 714 and submitted that after expiry of lease under the Transfer of Property Act, 1882, both lessor and sub-lessee became trespassers in the eye of law.
7. Mr. Mitra submitted that as per the case of the plaintiff, the plaintiff have derived its right from the Deed of Lease dated 31st March, 2001 which takes effect from 1st October, 2015. Admittedly, the landlords/ lessors (the defendant nos. 6 to 10) had not made over actual physical possession of the subject property to the lessee, the plaintiff herein either on the date of execution of lease or from the date, it came into effect i.e. 1st October, 2015. He submitted that this being the position, there is no valid lease under the provisions of Section 105 of the Transfer of Property Act, 1882. In support of his submissions, Mr. Mitra relied upon the judgment in the case of Sukumar Saha Vs. 5 Shyamal Kumar Saha and Ors. reported in (2006) 1 CHN 12 and the judgment in the case of Biswanath Paul Choudhury and Ors. vs. Abdul Quaiyum Azad and Ors. reported in (2014) 2 CHN 437.
8. Mr. Mitra submitted that the consent decree between the plaintiff and the defendant no.1 is not for eviction of the defendant no.1 from any part or portion of the suit property. He submitted that the consent decree pertains to other parts of premises No. 50, Chowringhee Road, Kolkata - 700071 and not the schedule mentioned property. Mr. Mitra submitted that the defendant no.1 has not claimed to be holding over does not in any manner entitle the plaintiff to act contrary to the law as laid down in the case of Hiralal Vallabhram Vs. Kastorbhai Lalbhai and Others reported in AIR 1967 SC 1853.
9. Per contra, Mr. Dhruba Ghosh, Learned Advocate representing the plaintiff submits that Premises No.50, Chowringhee Road, Kolkata - 700071, is owned by the trustees of the Trust estate of Raja Rajendra Mullick Bahadur. The said trustees had granted a lease dated 29th September, 1965 in favour of one Alepe Finance Ltd. for a period of 50 years. Alepe Finance Ltd. later known as Orient Beverages inducted the defendant nos. 2 and 4, into a portion of the property as their sub- lessees. The lease dated 29th September, 1965 expired on 28th September, 2015 and has was not extended or renewed. 6
10. On 31st March, 2001, the Landlord has executed a registered lease deed in favour of the plaintiff for a period of 50 years commencing from 1st October, 2015. Mr. Ghosh submits that the defendant no.1 has never claimed to continue the lease or "hold over" and agreed to leave the property upon expiry of the lease. He submits that the defendant no.1 ultimately handed over possession of whatever portion of the property that was in its possession to the plaintiff after the institution of the suit and settled the dispute regarding municipal taxes as recorded by this Court in the order dated 17th February, 2020.
11. Mr. Ghosh submits that the defendant no.1 was lessee under the Trust/ Owners and not under the plaintiff and thus the question of holding over against the plaintiff does not arise. He submits that the plaintiff was given physical possession of a part of the premises but the defendant nos. 2 to 4 did not vacate the premises despite expiry of their head lessee.
12. Mr. Ghosh submits the plaintiff has not filed the suit against the defendant nos. 2 to 4 as sub-lessees but as trespassers. He submits that in the plaint, the plaintiff has categorically stated that the defendant nos. 2 to 4 are the trespassers and not sub-tenants or tenants. Mr. Ghosh submitted that the lease of the defendant no.1 expired on 28th September, 2015 and the defendant no.1 has not sought extension or tried to continue in possession. The defendant no.1 never claimed to be holding over the suit property and due to which the plaintiff has not prayed for eviction decree against the defendant no.1. 7 He submits that the plaintiff has made the defendant no.1 as party to the suit only for Municipal dues but this aspect was settled between the plaintiff and the defendant no.1 and it was formally recorded that the defendant no.1 had handed over possession of a portion of the suit premises and the same was recorded in the order dated 17th February, 2020.
13. Mr. Ghosh submits that the defendant nos. 2 to 5 does not have any contractual or statutory right to remain in possession and therefore only to evict them, the plaintiff has filed the present suit.
14. Heard the Learned Counsel for the parties, perused the materials on record and the judgments relied upon by the parties. The main contention raised by the defendant nos. 2 and 4 was that the plaintiff has filed the suit for eviction but has not prayed for any decree of eviction of the defendant no.1 though the defendant no.1 is the lessee and the defendant nos. 2 to 4 are the sub-lessees and without any prayer for eviction against the defendant no.1, no prayer for eviction be made against the sub-lessees.
15. Admittedly on 29th September, 1965, a lease deed between the landlord and the defendant no.1 was entered into with respect to the suit property for a period of 50 years which expired on 28th September, 2015. In the meantime, on 31st March, 2001, a registered lease deed was entered between the landlord and the plaintiff with respect to the 8 suit property for 50 years commencing from 1st October, 2015 i.e. after the expiry of lease deed dated 28th September, 1965.
16. During the pendency of the suit, the defendant no.1 sent a letter to the plaintiff on 12th March, 2019 and on the basis of the said letter, this Court has passed decree on 20th February, 2020 by making the said letter as part of the decree as Annexure "A". Letter dated 12th March, 2019, reads as follows:
"Dated:- 12th March, 2019.
To, M/s. Sidhartha Dealer LLP 24/1/1, Alipore Road, 3rd Floor, Kolkata - 700027 Ref: Handing over of possession of 1800 Sq. ft. built up area in ground floor, front block at 50, Jawaharlal Nehru Road, having on the North one way café and on the South Private Road towards exit gate of Premises No. 50, Jawaharlal Nehru Road (area facing the Jawaharlal Nehru Road).
Sir, We hereby surrender the possession of the aforesaid portion at Premises No. 50, Jawaharlal Nehru Road, Kolkata - 700071 to you and you have taken the peaceful possession of the aforesaid property from us. Henceforth, neither shall we have any claim against you of any nature, whatsoever, nor, you shall have any claim against us in respect of the said property including Mesne Profit, arrear Rent and/or Corporation Taxes and Surcharge thereon.
All disputes between us stands settled.
We further confirm that you are empowered, authorized entitled to receive the possession from one way café. You are further authorized on our behalf to negotiate with one way café, Sandeep Agarwal, M/s. Navin Intracon Pvt. Ltd. and Shiva Solution and to enter any short of agreement to which we have no objection and we hereby ceased to take any 9 action in the matter of one way café and for others mentioned hereinabove. All rights, if there be any, of ours stands relinquished in your favour.
Yours Faithfully, Sidhartha Dealer LLP
For and on behalf of (Partner/Authorized Signatory)
Orient Beverages Limited
Ballabha Das Mundhra
Executive Director
Authorized Signatory
In terms of Board Resolution Dated 12th March, 2019."
17. In the communication dated 12th March, 2019, it is categorically stated that 1800 sq.ft. built up area in the ground floor, front block at 50, Jawaharlal Nehru Road having on the North one way cafe and on the South Private Road towards exit gate of the premises no. 50, Jawaharlal Nehru Road is surrendered the possession and the plaintiff has taken peaceful possession of the property from defendant no.1. The defendant no. 1 further clarified that the defendant no.1 has no claim against the plaintiff and the plaintiff has no claim against the defendant no.1 in respect of the property including mesne profit, arears of rent, corporation taxes and surcharge. The defendant no.1 also confirmed that the plaintiff is empowered, authorized and entitled to receive the possession from the defendant nos. 2 to 5 and entered into any short of agreement for which the defendant no.1 has no objection.
18. The decree dated 20th February, 2020 was passed in presence of the Learned Advocate for the parties including the defendant nos. 2 to 5 and the said decree is not challenged.
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19. The judgment relied by the defendant nos. 2 and 4 in the case of Hiralal Vallabhram (Supra) is distinguishable from the facts of the present case. In the said law decided by the Court that the landlord cannot sue a tenant alone for eviction and must sue the tenant-in - chief and if succeed, the sub-tenant will be ejected with the tenant-in chief. But in the present case, the lease period of the defendant no.1 expired on 28th September, 2015. The defendant no.1 is not claiming possession of the suit property after expiry of lease period and he has also surrendered possession to the plaintiff and with regard to his sub- tenant he has already authorized and given liberty to the plaintiff for taking steps by a communication dated 19th March, 2019 which is being made as part of the decree dated 20th February, 2020.
20. The stand taken by the defendant nos. 2 and 4 that the lease deed dated 31st March, 2001 be treated as part of the plaint and to consider the same while deciding the present application and relied upon the judgment in the case of Church of Christ Charitable Trust and Educational Charitable Society (supra). This Court has considered the Lease Deed dated 31st March, 2001. It is settled law that where a document is sued upon and its terms are not set out in the plaint but referred to in the plaint, the said document gets incorporated by reference in the plaint. The plaintiff has not denied that the defendant nos. 2 to 5 were inducted by the defendant no.1. It is also admitted that the lease deed on the basis of which, the defendant no.1 has sub-lease to the defendant nos. 2 to 5 expired on 28th September, 2015 and after 11 expiry of the lease, the defendant nos.2 to 5 are the trespassers and the plaintiff has filed the suit for their ejectment as trespasser.
21. As regard to the contention raised by the defendant nos. 2 and 4 that a lawful tenancy can be created in favour of a person by a lessor only if a lessor is capable of giving khas possession of the tenanted portion in favour of the lessee. The defendant nos. 2 & 4 relied upon Section 105 of the Transfer of Property Act, 1882 and relied upon the case of Sukumar Saha (Supra). The plaintiff has relied upon Section 107 of the Transfer of Property Act, 1882.
Sections 105 and 107 of the Transfer of property Act, 1882, reads as follows:
"105. Lease defined.--A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined.--The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.
107. Leases how made.-- A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
[All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.12
[Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:] Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.]"
In the present case, the Lease Deed dated 31st March, 2001, is registered one and for more than one year and is covered under the first part of Section 107 of the Transfer of Property Act, 1882. Clause 3 and Clause 8 of the Lease Deed dated 31st March, 2001, reads as follows:
"3. The Lessors shall not have obligation or responsibility to put the Lessee in actual or vacant possession of the Demised Premises and the Lessee shall have to take possession from the existing leases under the Original Lease. The Lessee either on its own accord or on behalf of the Lessors shall be entitled to demand sue for and obtain the vacant and/or peaceful possession from the existing occupiers including the Lessee under the Original Lease and/or its sub-lessees and/or other occupants.
8. If the monthly rent or any part thereof shall remain unpaid for four months after the same is due or the Lessee fails to pay municipal and other taxes or any other money payable by the Lessee or the Lessee commits any willful breach or violation of any of the terms and conditions herein contained and does not rectify the same inspite of notice by the Lessors, then the Lessors shall be entitled to terminate this Lease and forfeit the entire refundable security deposit amount and upon serving notice of such termination and forfeiture by 13 the Lessors to the Lessee, the lease shall stand terminated and the Lessors shall be entitled to re- enter the Demised Premises or any part thereof in the name of the whole and/or take possession of the Demised Premises. The Lessee shall deliver possession of the Demised Premises to the Lessors."
During the pendency of the suit, the defendant no.1 has surrendered portion of the property to the plaintiff and authorized to take appropriate steps against the defendant nos. 2 to 5 on the basis of the communication dated 19th March, 2019 and a decree is also passed in the present suit.
It is also finds that the defendant nos. 2 and 4 have neither challenged the decree nor have challenged the Lease Deed dated 31st March, 2001 thus the stand taken by the defendant nos. 2 and 4 cannot be a ground for rejection of plaint or dismissal of suit on an application under Order VII, Rule 11 of the CPC.
22. Considering the above, this Court did not find any merit in the application filed by the defendant nos. 2 and 4 under Order VII, Rule 11 of the Code of Civil Procedure, 1908.
23. Accordingly, G.A. No. 5 of 2022 is dismissed.
(Krishna Rao, J.)