Calcutta High Court (Appellete Side)
Re : Messrs G. K. Sports vs Federal Motors Private Ltd). Wherein ... on 26 July, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
1
26.07.2016
Item No.43
aks
S.A.T. 12 of 2015
with
C.A.N. 3792 of 2016
with
C.A.N. 1428 of 2015
Re : Messrs G. K. Sports ... Appellant.
Mr. Puspendu Bikash Sahu
Mr. Suchit Kumar Banerjee
Mr. Prasanta Bishal
.. for the petitioner.
Mr. Aniruddha Chatterjee
Mr. Ananda Basu
Mr. Emon Bhattacharya
.. for the appellant.
This is an application as filed by the landlord petitioner/respondent praying for
occupational charges in respect of premises No.196A, Harish Mukherjee Road, Kolkata-25 measuring about 1 katha 5 Chattak which is a three storied building having enjoyable area of 2700 sq. ft. more or less. It is the admitted position that at present the opposite party/tenant is depositing the contractual rent before the learned trial court as per order of this Court. Now this prayer has been made for occupational charges as I have stated earlier. It is further case of the petitioner that the building was let out as back as on 01.12.1944 at a monthly rent of rupees fifty per month and that was subsequently enhanced to Rs.250/- since 1994. It is further case of the petitioner that the present opposite party lost legal battle in both the courts below. It is also the case of the petitioner that the suit property has been kept vacant and under lock and key under a contractor.
The history goes like this that RC Case No.69 of 2006 was filed by the present petitioner/plaintiff for eviction and recovery of Khas possession under the provision of West Bengal Premises Tenancy Act, 1997. That suit was decreed on contest against the appellant/the opposite party on 31st January, 2008. And ejectment appeal No.47 of 2010 (renumbered as ejectment appeal No.47 of 2014) was filed by the appellant and that was also dismissed on contest and as such the decree of the trial court was affirmed. The second appeal was admitted by this Court as per order 2 dated 02.02.2016. It is further case of the petitioner that at his instance one valuer was appointed to assess the valuation of the property and also to assess the current market rent of the suit property. That company being M/s. Talbot & Co. submitted a report which is Annexure-R-3 which shows that as per opinion of that company the market rental value in different years should be as follows:-1) From 01.02.2008 to 31.01.2012 Rs.39,400 per month i.e. @ Rs.14.60 per sq.ft. per month 2) From 01.02.2012 to 31.07.2014 Rs.56,000 per month i.e. @ Rs.20.80 per sq.ft. per month 3) From 01.08.2014 Rs.72,100 per month i.e. @ Rs.26.70 per sq.ft. per month till the report was filed on.
It is also the case of the petitioner that the appellant is still enjoying the property because of interim order of stay without paying any occupational charges, municipal taxes etc. It is further claim of the petitioner that the petitioner is entitled to get the occupational charges from 31.01.2008 when the trial court decree was passed rendering the possession of the appellant as that of trespasser.
Mr. Shau appearing on behalf of the petitioner took me to the report Annexure-R-3 and running page no.30, 31 & 32 to convince this Court that the valuation of the property is Rs.1,08,10,000/- and the rental value as on 1st February, 2008 to January, 2012 may be fixed at the rate of Rs.39400/- per month, the assessment being 14.60 sq.ft. per month for 2700 sq.ft. which comes to Rs.39400 per month X 48 months=Rs.18,91,200/-.
For the period of 01.02.2012 to 31.07.2014 the assessment will be Rs.56,000/- per month at the rate of 20.80 per sq.ft. per month for 2700 sq.ft. This comes to Rs.56000 per month X 30 months=Rs.16,80,000/-.
For the period of 01.08.2014 to 01.08.2016 the assessment will be Rs.72,100/- per month at the rate of 26.70 per sq.ft. per month for 2700 sq.ft. This comes to Rs.72100 per month X 24 months=Rs.17,30,400/-.
He further submitted that if this chart is viewed properly then in between 2012 to 2014 there has been increase of 16100 per month and the rate of rent increased from 20.80 sq.ft. to 26.70 sq. ft. that is Rs.5.90 per sq.ft. extra and this may be considered while determining the occupational charge to be paid after 31.07.2016 and in that case the calculation will be Rs.32.60 per sq.ft. X 2700 sq.ft. per month which comes to Rs.88,020 per month.
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Mr. Sahu, learned Counsel cited a decision of the Apex court as reported in (2005) 1 SCC 705 (Atma Ram Properties (p) Ltd. vs. Federal Motors Private Ltd). wherein the Apex Court affirmed the order of the court as regards imposition of condition while granting stay and in that case before the floor of the Apex Court the Appellate Court imposed term on the tenant to deposit Rs.15,000/- as rent per month in court for grant of stay of decree for eviction, original rent being 371.90. It was observed by the Apex Court relying on Order 41 Rule 5 (3)(a) that dispossession during pendency of an appeal a party in possession is generally considered to be 'Substantial Loss' to the party applying for stay within meaning of that order and rule. It was further held by the Apex Court that while granting stay the Appellate Court may impose conditions and since the power to grant stay is equitable in nature and applicant for stay must do equity for seeking equity. The duty of the Appellate Court will be to see to reasonably compensate the decree holder for the loss by delay in execution of the decree by the grant of stay in the event of the appeal being dismissed.
He also cited a decision of this Hon'ble Court as reported in 2014 (2) CHN (Cal) 562, a single bench judgment (Hindustan Petrolium Corporation Limited vs. S.K. Banerjee @ Suchit Kumar Banerjee) wherein this court relying on the decisions of the Apex court as delivered in Atma Ram (supra) and (Anderson wright Company vs. Amarnath Roy) as reported in 2005 (6) SCC Page 489 held that now it is a settle law that in order to get a protection by way of stay of operation of the impugned judgment and decree of eviction the tenant has to pay occupational charges at the rate of market rent of the locality for the period starting from the date of the passing of ejectment decree if the case was guided by rent laws or from the date of expiry of the lease, if the case was guided by T.P. Act and also to pay current market rent month by month till disposal of the appeal.
It was submitted by Mr. Aniruddha Chatterjee, learned Advocate, appearing on behalf of the opposite party/tenant/appellant that the mesne profit as per the plaint was assessed to Rs.1,000/- per month and as such, the occupational charges cannot go beyond that. He further submitted that the report of Ms. Talbot & Co. is one made to order report at the behest of the petitioner/landlord and that cannot be accepted in any means.
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Mr. Chatterjee further submitted that while assessing the occupational charges, the court may consider that the petitioner is in occupation of the property since 1944 and the rent was increased to Rs.250/- only in the year 1994 and on instruction he submitted that his client is ready to bear the occupational charges at the rate of Rs.2500/- per month since the decree was passed by the learned trial court.
He further submitted that his client did not allow Mr. S. Mitra, the valuer of M/s. Talbot & Co. to inspect the suit property and as such, said report is baseless.
In reply, it was submitted by Mr. Sahu, the learned Advocate, appearing on behalf of the plaintiff/petitioner/respondent that there is nothing in the affidavit in opposition to convince this court that actually the opposite party took the plea that Mr. S. Mitra was not allowed to inspect the suit property and that the argument is baseless.
He further pointed out that even though the plaintiff/landlord got the suit property valued by one official valuer but the opposite party did not take any venture to submit the report by any separate valuer to assess the valuation or the rental charges per square foot. He further submitted that in assessing the occupational charges, the appellate court must follow the principle of equity so that the landlord may be compensated with the 'Substantial Loss' in respect of the dispossession during the pendency of the appeal of a party in possession.
Regarding C.A.N. 1428 of 2015, it was submitted by Mr. Chatterjee that as the appeal has been admitted and the Division Bench passed one interim stay in respect of the execution proceeding, this court may naturally make the said order absolute till the disposal of the appeal. He further submitted that he is ready to hear out the appeal as soon as it may be fixed by the court.
In counter to this, it is submitted by Mr. Sahu, learned Advocate, appearing on behalf of the plaintiff/opposite party that if the occupational charges which is the condition precedent for stay is allowed, then he has no objection if the order as granted by the Division Bench is made absolute till the disposal of the appeal.
Thus, I have taken into consideration the fact that the house is three storied one, having 2700 sq.ft. area, two balconies, six room, three bathrooms, the W.Cs., two kitchens one 5 corridor two varandas and staircase, the property is located in prime area of Kolkata being on Harish Mukherjee Road and the valuation of the property as given by Talbot & Co. in the year 2015 to the tune of Rs.1,08,10,000/- which according to me has increased substantially to even reach 1.5 Crore. It is really astonishing to note that appellant is enjoying such a valuable property on a payment of rent of rupees 250 only. The proposal made by Mr. Chatterjee appearing on behalf of the appellant to make the occupational charge to be Rs.2500/- per month is not acceptable to this court which cannot be any real fixation of occupational charges considering the valuation of the property, location of the property and equity which can very well be claimed by the petitioner landlord.
The argument of Mr. Chatterjee that the report as submitted by Talbot & Co. is to be thrown out as it is made to order report is also not convincing to this court. The tenant could have taken the responsibility to create such a report by another agency. The rent of the property as assessed by Talbot & Co. per sq.ft about which I have already discussed cannot be said to be excessive or beyond the market rent. The appellant tenant lost in both the courts below and both the courts below concurrently held that the property is not being possessed in the manner for which the property was given on rent. Mr. Sahu on instruction submitted that it is being occupied by some employees of M/s. G.K. Sports. Thus, the total rent in due as calculated above up till 31.07.2016 is Rs.53,01,600/- as calculated from 01.02.2008. This court is not unmindful of the fact that in Atma Ram (supra) the Apex Court upheld the increase of rent from Rs.372 to Rs.15000 in a case of tenancy for which eviction proceeding was started in the year 1992. Thus, there was an increase of 40 times. Even if I make the amount of Rs.53,01,600, that is the total arrear rent calculated earlier upto 31.07.2016 to be ¾th then it will come to Rs.39,76,200/- as arrear rent. According to me considering the valuation of the property, the position of the property, area of the property being enjoyed and the total floor space under occupation of the appellant/tenant including kitchens, latrines, balconies etc,. then I must say that for the use of such property for continuous period of 102 months such amount of Rs.39,76,200/- cannot be said to be too much. The breakup being, for the first period from 01.02.2008 to 31.01.2012 is Rs.29550/-, for the second period from 01.02.2012 to 31.07.2014 is Rs.42,000/- and for the third period from 01.08.2014 to 31.07.2016 is Rs.54,075/-. I also make it clear that after 01.08.2016 the 6 tenant opposite party must go on paying Rs.66,015/- (being ¾th of Rs.88,020/- as calculated earlier) till the disposal of the appeal.
The amount of arrear rent to the tune of Rs.39,76,200/- being a fat amount I allow ten equal instalments to be paid by the tenant on the thirteenth day of every month, if that date is a holiday then on the reopening date, apart from the current occupational charge calculated @ Rs.66,015/- from 01.08.2016. The first current occupational charge and the arrear occupation charge must be deposited before the learned Registrar General, of this court starting from 13th of September, 2016, if due to long vacation the current or arrear occupational charges cannot be deposited then on the next month the amount will be double to cover up both the arrear and current occupational charges.
I direct that the learned Registrar General to open one recurring deposit account in any nationalised bank which will run for ten months from September 13, 2016 to July 12, 2017, wherein the current occupational charge and arrear occupational charge may be deposited. After this account is closed then the entire amount with interest will be kept in fixed deposit for one year which may be renewed on yearly till the disposal of this second appeal.
Regarding the current occupational charge from 13th July, 2017 till the disposal of the appeal, the learned Registrar General will open one fresh recurring deposit account for one year in any nationalised bank, to make deposit of such amount. He will have the option to renew the recurring deposit on yearly basis till the appeal is disposed of. All such deposits with interest will be paid to the party in whose favour the appeal is decided.
The petitioner will be at liberty to withdraw the contractual rent from the court where it is being deposited.
The appellant is directed to intimate such deposits to the learned Advocate on Record of the respondent either by way of a notice or by supplying a copy of the challan.
If the order as passed in CAN No.3792 of 2016 is not complied with in its' letters and spirits then the interim stay as granted by the Division Bench will automatically stand vacated. If the order passed in the above noted CAN is complied with then there will be stay as regards the 7 execution of the judgment and decree passed by the first appellate court. This stay will automatically be vacated, if there is any lapse in compliance of the order passed in CAN number referred to above.
Thus, both the CAN numbers are disposed of accordingly on the terms mentioned above.
The appellant is directed to deposit within 15 days from this day the special messenger cost as may be assessed by the department to bring the lower court records. On receipt of the record the department will check and verify those and if found correct must issue notice to the learned Advocate on record of the appellant so that the paper books are prepared within four weeks of that.
Let this second appeal go out of list for the present with liberty to mention for listing after the purpose as mentioned above is fulfilled.
(Indrajit Chatterjee, J.)