Calcutta High Court
Maharshi Commerce Limited vs Rajiv R. Balani & Ors on 24 September, 2019
Author: Shivakant Prasad
Bench: Shivakant Prasad
OD-9
ORDER SHEET
GA 1462 of 2019
WITH
CS 3 of 2019
GA 1087 of 2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
MAHARSHI COMMERCE LIMITED
Versus
RAJIV R. BALANI & ORS.
BEFORE:
The Hon'ble JUSTICE SHIVAKANT PRASAD
Date : 24th September, 2019.
Appearance:
Mr. Avinash Kankari, Adv.
Ms. Arunima Lala, Adv.
Mr. Suman Majumder, Adv.
..for the plaintiff
Mr. Rupak Ghosh, Adv.
Mr. Ashim Kr. Mukherjee, Adv.
Mr. S. Mishra, Adv.
..for the defendants.
The Court : This application is at the instance of the defendant in a suit
for eviction and recovery of vacant and peaceful possession of the suit premises
against the defendants brought by the plaintiff. The issue germane to this
application is that this Court has no pecuniary jurisdiction to entertain the suit.
Mr. Rupak Ghosh, learned Advocate appearing for the defendant/petitioner
at the outset invites my attention to paragraph 23 of the plaint to argue that for
the purpose of jurisdiction and Court fees, the suit has been valued by the
plaintiff at Rs.1,06,08,000/- being the market value of the premises and for
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mesne profit etc being sum of Rs.28,08,000/- from January 1, 2016 to December
31, 2019 only to create jurisdiction of this Hon'ble Court.
Crux of the argument as advanced by Mr. Ghosh is that the plaint is
required to be rejected or dismissed by way of return of the plaint to the plaintiff
for filing the same in the Court having competent jurisdiction because the suit is
substantially for eviction against a tenant/sub-tenants. So, the suit should have
been valued on the basis of rate of rent multiplied by 12 months of a year.
It is argued that Annexure B being the photocopies of rent deposited with
the rent controller on behalf of the M/s. Getco Electricals and the rent received
by the plaintiff would reflect rent @ Rs. 5739/- per month is in respect of suit
premises and Annexure C being the rent challans also show the deposit of the
sum of Rs.5773/- as the monthly rent deposited on behalf of M/s. Getco
Electricals a partnership firm represented by its partners Sri. Rajiv R. Balani, Sri.
Jagdish R. Balani and Sri Sarita Balani. Thus it is submitted that by
mathematical calculation of the rate of rent multiplied by 12 months of a year
would be the objective standard for assessing the valuation of the suit to
determine as to which Court has the pecuniary jurisdiction to entertain such
suit.
My attention is invited to the averments made in paragraph 12 of the plaint
to argue that this is a classic example of sub-tenancy created in favour of the
defendant Nos. 1 and 2 against whom notice to quit has been issued.
It would be apt to take note of the averments made in the said paragraph
wherein the plaintiff has categorically averred that upon making enquiry plaintiff
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came to learn that the original tenants namely, Mr. B.G. Harchandani, Mr. D.G.
Harchandani and Mr. J.G. Harchandani were not associated with the business of
the defendant No. 3 and they handed over the exclusive possession and
occupation of the suit premises to the defendant Nos. 1 and 2. So, there was a
complete severance of status and relationship between Mr. B.G. Harchandani,
Mr. D.G. Harchandani, Mr. J.G. Harchandani on one hand and the defendant No.
3 on the other because the defendant No. 3 is the partnership firm and in
support of his case Mr. Ghosh refers to the provision of Section 26(2) of West
Bengal Premises Tenancy Act, 1997 to contend that defendants are sub-tenants
in respect of the suit premises and they can be evicted only by due process of law
as in case of any tenancy.
Section 26(2) of the Act 1997 provides thus:
"(2) Where before the commencement of this Act, the tenant has, with or
without the consent of the landlord, sublet any premises either in whole or
in part, the tenant and every sub-tenant to whom the premises has been
sublet, shall give notice to the landlord of such subletting in the prescribed
manner within [two years] of the commencement of this Act and shall, in the
prescribed manner, notify the termination of such sub-tenancy within one
month of such termination."
The provision under Section 26 of the West Bengal Premises Tenancy Act,
1997 provides for creation and termination of sub-tenant to be identified. It is
argued that the case in hand is a case of eviction and recovery of possession of
the suit premises against the sub-tenants to conclude that this Court has no
pecuniary jurisdiction to entertain the present suit.
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In rebuttal Mr. Avinash Kankari, learned Advocate appearing for the
plaintiff/respondent submits that the suit framed on behalf of the plaintiff is not
at all a classic example of sub-tenancy as the plaint averments taken as a whole would reveal that suit is substantially for eviction and recovery of possession of the suit premises against defendants as trespassers. It is urged that Annexure A, a letter dated 28th February, 1972 addressed to Shri B.G. Harchandani, Shri D.G. Harchandani and Shri. J.G. Harchandani being the partners of M/s. Getco Electricals is the creation of tenancy in their favour in respect of the suit premises at a monthly rental of Rs.1/- plus occupier's share of Municipal Taxes and the service charges as occupier's share of Municipal Taxes per sq.ft. which the partners were called upon to deposit one month's rent as security deposit for giving possession of the premises of 360 sq.ft. approximately with effect from 1st April, 1972. This is the letter by which the tenancy was granted in favour of the three partners of M/s. Getco Electricals, the defendant No. 3 a partnership firm carrying on business from the premises No. 18, Rabindra Sarani, Kolkata 700001 within the jurisdiction of this Court whereas the defendant Nos. 1 and 2 have been shown as the defendants as the trespassers as per the averments made in the plaint.
It would appear from the letter dated 10.10.2018 that defendants were requested to send a copy of the trade license for the year 2018-2019 and further requested to arrange to send the same without any delay. Another letter dated 11.10.2018 was communicated to the said partners of M/s. Getco Electricals with a request that due to tragedy that struck Bagri Market, advice was given to 5 keep the common passage and area free from encroachment for free ingress and egress and arrange to send trade license.
A letter on behalf of the Getco Electricals communicated to the plaintiff on 4th October, 2018, Annexure E and another letter dated 12th October, 2018 mentioned that the shop is located in the main road as such there is no common passage. Similarly, it was informed and brought to the notice of the plaintiff that they do not store any plastic material or cartoons in the common passage but the trade license has been misplaced and assured the plaintiff to update regarding the trade license. Letter appears to have been sent for Getco Electricals without any signature of any partner. So obviously it is reasonable thinking in mind as to who made the communication on behalf of the defendant No. 3 firm and then on enquiry it was learnt that the defendant Nos. 1 and 2 are in possession and occupation of the suit premises. Annexure J reflects name of Mr. Rajiv R. Balani, Mr. Jagdish Balani, Mr. Sarita Balani in respect of the premises is the Certificate of Enlistment. So, the plaintiff issued a notice dated 29.10.2018 addressed to Mr. Rajiv R. Balani and Mrs. Jyoti R. Balani about their illegal occupation in respect of the shop room at the said suit premises. Since it has come to the notice of the plaintiff that the said partners have passed away, the defendants Nos. 1 and 2 are in illegal occupation and possession of the said rooms and retaining the name of M/s Getco Electricals with ulterior motive and carrying on business in the said name and style without any prior consent of the landlord. In that view of the matter defendants were called upon to vacate the said shop room 6 immediately upon receiving the letter failing which appropriate legal action are to follow. Hence, the suit.
In the said fact scenario, the issue as to whether this Court has jurisdiction to entertain the suit or to reject or return the plaint to the plaintiff with the liberty to file it before the competent Court of law is the issue for decision.
Mr. Avinash Kankari has referred to a decision in case of Vinaykishore Punamchand Mundhada and Another versus Shri Bhumi Kalpatru and Others reported in (2010) 9 SCC (2010) 3 Supreme Court Cases (Civ) 625 and relied on the observation made in paragraphs 11, 12 and 18 to argue that the defendant No. 3 being a partnership firm is not the tenant in respect of the suit premises. Observations of the Hon'ble Apex Court are reproduced for profitable consideration thus:
"11. It may be of some importance to note that the original tenant did not join any issue with the landlords though he was impleaded as a party- respondent to the proceedings. It is an admitted fact that none of the partners of "Bhumi Kalpataru" including Respondent 4 who constituted the firm "Bhumi Kalpataru" are the partners in the firm "Shri Bhumi Kalpataru". It is not a case of reconstitution of the firm where the original tenant continued to be a partner of such newly reconstituted firm.
12. It is clearly evident from the record and findings recorded by the authorities that "Shri Bhumi Kalpataru" consists of altogether different individuals and the Managing Partner thereof being Jagdish Champalal Mundhada. It is also an admitted fact that there was no further agreement as such between the appellants and the respondents recognising "Shri Bhumi Kalpataru" and its partners as the tenants. In such view of the matter, the authorities in clear and categorical terms found that the respondents have been inducted into possession of the premises by the original tenant without the required written permission of the landlords. It 7 is under those circumstances that the reviewing authority came to the correct conclusion that the original tenant had no right to transfer and part away with the possession of the premises to the respondents without the required written permission from the landlords. None of the respondents were the partners in the previous firm that was constituted by Madankumar Govardhandas Pasari known as "Bhumi Kalpataru". It was absolutely an internal arrangement between an original tenant and the newly inducted one about which the landlord was never put on notice. The mere acceptance of the rents from the newly constituted firm "Shri Bhumi Kalpataru" on the facts and circumstances in the present case by itself cannot lead to any inference that the landlords accepted the rents knowing fully well as if they were accepting the rents from the sub- tenants. The "landlord and tenant" relationship in the circumstances of the original tenanted firm "Bhumi Kalpataru". The said firm "Bhumi Kalpatra", in a clandestine manner became "Shri Bhumi Kalpataru" by adding "Shri"
in an innocuous manner to "Bhumi Kalpataru". Once it is clearly established that none of the previous partners of "Bhumi Kalpataru"
continued to be the partners of the newly constituted firm, it becomes very clear that "Shri Bhumi Kalpataru" is altogether a different firm consisting of new partners who were inducted into possession by the previous tenant.
18. It is well settled that sub-tenancy of sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of the scene rather, such arrangement whereby and whereunder the possession is parted away by the tenant is always clandestine and such arrangements take place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord that the tenant has put some other person into possession of the tenanted property."
As quoted above, from the observation made in the decision it is well settled position that sub-tenancy or subletting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In the instant case, as would appear from the paragraph 12 of the plaint that on enquiry, the plaintiff came to learn that the 8 erstwhile partners of defendant No. 3, handed over the exclusive possession and occupation of the suit premises to the defendant Nos. 1 and 2 who are into partnership firm in the same name and style of Getco Electricals, the defendant no.3 herein.
Taking into consideration, averments of the plaint itself and further bearing in mind the specific provisions of Section 26(2) of the West Bengal Premises Tenancy Act, 1997, the defendant Nos. 1 and 2 can be treated as a sub- tenant or not, is an issue to be decided in the trial on evidence because there is no paper placed on record at this juncture to show that even without the consent of the landlord when the exclusive possession of the suit premises was handed over to the defendant Nos. 1 and 2, did not write to the landlord plaintiff intimating about sub-tenancy created in this firm.
Therefore on perusal of plaint, this Court is unable to arrive at a finding that the case in hand is a classic example of sub-tenancy and the suit is a suit for eviction of sub-tenants because in view of Section 4 of the Partnership Act, defendant no.3 is not a tenant in respect of the suit premises as the partnership firm is known by its partners. There were three partners of the defendant no. 3 who were inducted as the tenants but it is not understood as to whether those partners of defendant no. 3 are still in the business affairs. These are all factual aspects for determination in the suit in accordance with the evidence to be adduced by the parties to the suit.
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Therefore, in so far as, valuation of suit as made in paragraph 23 of the plaint valued as per the market value of the suit premises, the plaintiff has right to value the suit on his own in view of the provision of Section 7(vi) (a) which provides that the suit for recovery of possession of immovable property from a trespasser where no declaration of title property either prayed for or necessary for disposal of the suit has to be according to the amount at which the reliefs sought is valued in the plaint subject to the provision of Section 11. Provision of Section 11 relates to enquiry of the value of the suit which enjoins that if the Court is of the opinion that the subject matter of any suit has been wrongly valued, it may refuse the valuation and determine the correct value and may hold such enquiry as it thinks fit for such purpose. I am of the opinion, that plaintiff has rightly valued the suit on the basis of market value of the suit property taking into consideration the objective standard for valuation of the suit being the value of the suit property. Therefore, this Court has pecuniary jurisdiction to entertain the suit of this nature. Ergo, the application being GA No. 1087 of 2019 is dismissed, however, without any cost.
The defendant, is given opportunity to enter into the suit and to submit the written statement within three weeks after ensuing Puja Vacation. Discovery and inspection of the document, if any by the four weeks thereafter.
(SHIVAKANT PRASAD, J.) Sbghosh