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2000 DIGILAW 267 (CAL)

PARAMANAND AGARWAL v. SUDERA ENTERPRISES PVT. LTD

2000-05-18

MAHEMMAD HABEEB SHAMS ANSARI, S.B.SINHA, S.N.BHATTACHARJEE

body2000
S. B. SINHA, J. ( 1 ) REFERENCE of this matter to this Bench has been made under extraordinary circumstances. ( 2 ) THE plaintiffs are the appellants. The plaintiff No. 3 is an Association of Shop-keepers of A. C. Market registered under the West Bengal Societies Registration Act, 1961. The owner of said market is the defendant No. 1. The other 2 plaintiffs are the shopkeeper-tenants under the defendant No. 1. ( 3 ) THE defendant No. 1 constructed a multi-storied buildings and converted the upper and lower basements as well as the ground and part of the first floor thereof in a market in the year 1972 known as "air-Condition Market". The said market is a certrally air-conditioned one wherein 206 shops exist. ( 4 ) ACCORDING to the defendant No. 1, for the purpose of supplying high-tension electricity, two transformers were installed at enormous expenses in the years 1969 and 1972, the normal expected life whereof is 25 years. It is stated:"the air-conditioning plant installed by the defendant No. 1 in the said building comprises, inter-alia, of 12 compressors and air handling units of different powers. The capacity requirement of the plant is about 780 T. R. Ferom Gas, which is an expensive but essential ingredient for air conditioning plants. The capacity of the said plant is 780 tonnage refrigeration, which, inter alia, requires 12 compressors and 14 air handling units. Air handling units are terminal equipments required for distributing refrigerated or cooled air into different spaces through ducting systems. The capacity of distributive power of the said air handling units are different in different areas of use, such as market and offices. The high the power of the said air handling units, the higher the electricity consumption. 5 air handling units having a capacity of 355 tonnage refrigeration are required only for the said market. 780 tonnage of air conditioning plant has been installed in the said building for its central air conditioning. Taking into account the staffs and employees of the said shops, about 1000 people are visiting the said market per hour. A huge quantity of commodities of diverse types such as textiles, garments, footwear, leather goods, electrical and electronic equipments and food staff etc. are stored in the said market. The shops at the said market use very powerful condeceand and vapour lamps which consume lot of power and generate considerable heat. A huge quantity of commodities of diverse types such as textiles, garments, footwear, leather goods, electrical and electronic equipments and food staff etc. are stored in the said market. The shops at the said market use very powerful condeceand and vapour lamps which consume lot of power and generate considerable heat. This requires extra air conditioning and consequent consumption of a huge amount of electrical energy to keep and to maintain the required ventilation and temperature at the said market, which far exceeds the normal need for offices. Besides, the said air conditioning plants are required to be operated from around 7 a. m. so that the required temperature is attained at about 9. 30 a. m. when the market opens. For the aforesaid reasons the air conditioning requirement for the market of 355 tonnes. The cost per square feet for air conditioning the said market would came to Rs. 20. 07 paise approximately, taking into account the assets replacement cost, electrical energy cost for plant operation, annual maintenance cost and service cost. The asset replacement cost, electrical energy cost for plant operation, annual maintenance cost and service cost are each subject to and have risen and are continuing to rise beyond expectation. The enhancement of rates by the defendant No. 9 and the other cost charged and expenses have in fact increased and are presently continuing to increase by more than 10 (ten) per cent per year. " ( 5 ) THE said Air-Conditioning Plant is allegedly required to be operated from around 7 a. m. so as to attain the minimum temperature at about 9. 30 a. m. when the market opens. According to the defendants the costs per square feet for air conditioning the market comes to Rs. 20. 07 paise per unit approximately considering the electricity charges and other expenses including maintenance cost. Allegedly, enhancements made in the electricity tariff by the defendant No. 2 is about 10% per year. ( 6 ) EACH shop-keeper admittedly entered into agreements with the defendant No. 1 containing similar provisions on or about 27th September, 1980 and 6th September, 1980 respectively, the relevant provisions whereof are:"in case of any increase or increases from time to time in the current/present per unit rate of electricity consumption charges of paise 52. ( 6 ) EACH shop-keeper admittedly entered into agreements with the defendant No. 1 containing similar provisions on or about 27th September, 1980 and 6th September, 1980 respectively, the relevant provisions whereof are:"in case of any increase or increases from time to time in the current/present per unit rate of electricity consumption charges of paise 52. 1 supplied under High Tension Rate 'b' of the Calcutta Electric Supply Corporation (India) Ltd. particulars whereof will appear from the statement annexed hereto and marked 'a', the monthly air-conditioning charges of Rs. 1195. 74 payable by the tenant hereinbefore provided shall automatically stand increased in the ratio similar to the ratio of increase or increases in the per unit rate of electricity charges and the tenant shall pay the monthly air conditioning charges at such increased rate or rates alongwith the monthly rent and service charges payable by the tenant. " ( 7 ) HOWEVER, admittedly a supplemental agreement was entered into with some of the tenants for a limited period i. e. from 1st January, 1983 to 31st December, 1985 whereby and whereunder air conditioning charges for the said period remained fixed. ( 8 ) ACCORDING to the defendant No. 1, on the expiry of the said period the original agreement, however, revived from 1st January, 1986 with the effect as if there had been no supplemental agreement entered into by the parties. Defendant No. 1 alleged that many of the tenants had refused to discharge their contractual obligation, wherefor the defendant No. 1 commenced distress proceedings against many of them in the Small Causes Court at Calcutta. The plaintiffs, thereafter, filed the aforementioned suit claiming 21 reliefs including grant of injunction and appointment of receiver. ( 9 ) IN the said suit two interlocutory applications were filed, one of them being for in-junction as also appointment of Administrator in the said suit. The plaintiffs, thereafter, filed the aforementioned suit claiming 21 reliefs including grant of injunction and appointment of receiver. ( 9 ) IN the said suit two interlocutory applications were filed, one of them being for in-junction as also appointment of Administrator in the said suit. ( 10 ) THE said injunction petition was moved before P. K. Majumdar, J. (as His Lordship then was) and by an order dated 29th January, 1990, it was directed:"in the facts and circumstances of the case I think the proper order that can be made at this interlocutory stage and which 1 hereby make is that the defendant will prepare the bills for rent as also the air-conditioning charges in accordance with the agreement entered into between the parties but the defendant would realise the amount by way of rent inclusive of air-conditioning charges which was last paid by the plaintiff to the landlords i. e. , the defendants immediately prior to the date of this application, and regarding the balance amount the plaintiff would deposit the same with Mr. Srenik Singhvi, the Advocate-on-Record of the plaintiff who will hold the same as a Receiver without security and without remuneration. This arrangement will, however, continue till the fair rent is determined by the authority concerned under the said Act. The authority concerned will determine the amount of fair rent in accordance with the provisions of the said Act and it is made clear that nothing has been found in this proceeding at this stage with regard to the determination of fair rent. The amount so paid being the difference by the tenants to the said Advocate on Record pursuant to the Bills submitted by the landlord will be kept by the said Advocate-on-Record in any nationalised bank or scheduled bank in a short term deposit account and he will go on to do so until further orders or until the determination of fair rent by the appropriate authority. Regarding the arrears of rent from 1987 till 9th August, 1989 will also be deposited by the tenants, i. e. the petitioners, with the said Advocate-on-Record of the plaintiff who will deposit the same in any nationalised bank or scheduled bank as and when realised in a short term deposit. Regarding the arrears of rent from 1987 till 9th August, 1989 will also be deposited by the tenants, i. e. the petitioners, with the said Advocate-on-Record of the plaintiff who will deposit the same in any nationalised bank or scheduled bank as and when realised in a short term deposit. Regarding the rent i. e. , the basic rent and air-conditioning charges as contemplated in the said agreement this will be paid by the petitioner in the manner indicated above until further orders or until the determination of the fair rent by the appropriate authority. The arrear sum will be deposited by the petitioner within a period of four weeks from date in the manner indicated above. The said Advocate-on-Record of the plaintiff will intimate the Advocate-on-Record of the defendants about the deposits so made. " ( 11 ) ON or about 27-2-1990 an application was filed by the appellants herein for extention of the time for payment of rent pursuant whereto time was extended till 28-2-1990 and time regarding payment of arrears rent was extended till 13-3-1990. The tenants were also directed to pay month by month and every month the arrear rent together with current rent and such payment should be made by 7th day of each succeeding month and to intimate the payment thereof to the defendant No. 1 in terms of the order dated 29-1-1990. ( 12 ) THE defendant No. 1 filed an application on 27-8-1992 alleging inter alia: "inspite of the specific direction contained in the said order dated 29th January, 1990 and 27th February, 1990 directing the said tenants to deposit the arrears of rent from January 1987 to July, 1989 with their Advocate-on-Record Sri Srenik Singhvi within 13th March, 1990 most of the said tenants failed and/or deliberately neglected to comply with the same and defaulted in depositing the arrear rents for the period from January, 1987 to July, 1989 with Sri Srenik Singhvi as will appear from a schedule annexed hereto and marked with the letter 'j'. In view of the fact that most of the said tenants have defaulted in complying with the said directions for depositing arrear rents from January, 1987 to July, 1989 with the Advocate-on-Record Mr. In view of the fact that most of the said tenants have defaulted in complying with the said directions for depositing arrear rents from January, 1987 to July, 1989 with the Advocate-on-Record Mr. Srenik Singhvi, the said order dated 29th January, 1990 and 27th February, 1990 which were passed on the applications taken out by the said tenants and for their benefit have been violated by the said tenants should be vacated. In terms of the said orders dated 29th January, 1990 and 27th February, 1990 the defendant No. 1 was directed to prepare the bills for rent as also the air-conditioning charges in accordance with the agreement entered into between the parties but was directed to realise by way of rent (inclusive of air-conditioning charges) only the amount last paid by the said tenants to the landlords prior to the date of the plaintiffs' application, i. e. during the month of July, 1989, as has been set out in the schedule being Annexure 'c' hereto. The said tenants were expressly directed to deposit the balance amount every month, being the difference between the rent bills (inclusive of air-conditioning charges) raised for every individual month and the rent and air-conditioning charges for the month of July, 1989 with their Advocate-on-Record Mr. Srenik Singhvi, who was directed to hold the same as Receiver without security and without remuneration in a short term fixed deposit in any nationalised or scheduled bank till determination of fair rent by the appropriate authority and was required to intimate the Advocate-on-Record of the petitioner about the deposits made with him. Inspite of the specific direction contained in the said orders regarding payment of current rent, the majority of the said tenants deliberately failed to and/or neglected to pay and are continuing to default in the payment of monthly rents to the petitioner at the rate of the rents paid by them for the month of July, 1989 and further failed and/or deliberately neglected to deposit and defaulted in depositing the balance amount (being the difference between the billed amount for such individual month and the rent paid for the month of July, 1989) to their Advocate-on-Record Mr. Srenik Singhvi. Srenik Singhvi. The defaults on the part of the said tenants in complying with the directions contained in the said orders dated 29th January, 1990 and 27th February, 1990 with regard to payment of current rent will transpare from the summary charts annexed hereto and marked with the letter 'e'. Your petitioner craves leave to refer to the charts showing the dues from the individual tenants, the time of hearing if necessary. In terms of the aforesaid order dated 29th January, 1990 the plaintiff's Advocate-on-Record, Mr. Srenik Singhvi further failed to regularly intimate the Advocate-on-Record of the defendant No. 1 of all the deposits made with him. In respect of shop rooms Nos. D-8/e-10, D-9/c-8, C-11, B-6, D-7/e-9, A-003, B-005/c-006 it has recently come to light that the recorded tenants have sublet the said shop rooms or created third party interests in then without the consent of the defendant No. 1, landlord, either in writing or otherwise. Under the circumstances the defendant no. 1 has been advised to initiate appropriate proceedings for ejectment of the tenants of the following shop rooms and not to accept any rent from them as such the names of the tenants of the following shop rooms have not been included in the schedule being the annexure 'e' hereto. SI. No. Block Nos. Name of Tenants. 1. D-8 and E-10 sri Sukhdeb Prasad Malpani 2. D-9 and C-8 sri Hazarimal Kabra 3. C-ll sri Durga Dutt Sharma and Smt. Bimala Saraogi 4. B-6 smt. Laju G. Chatlani and Sri Narayan Dhalomal Chatlani 5. D-7 and E-9 sri Bhagwati Prasad Chowdhury and Sri Remesh Kumar Agarwal 6. A-003 sri Prayag Narain Agarwala Sri Shiv Kumar Agarwala Smt. Suman Agarwala 7. B-005 and C-006 shri Paramanand Agarwal ( 13 ) THAT according to the defendant the tenants did not deposit the exact amount of rent with the Administrator in terms of the order of P. K. Majumdar, J. It was contended that in view of the said order as well as non-compliance of a part thereof by the members of the plaintiff No. 3 Association, the defendant No. 1 has been and continues to be out of pocket for substantial amount each month. ( 14 ) IN the said application the following prayers were made:" (A) The order dated 29th January, 1990 and 27th February, 1990 be vacated forthwith; (b) The said Sri Srenik Singhvi be discharged from further acting as Receiver and he directed to make over all monies deposited with him by the said tenants to the defendant No. 1; (c) The defendant No. 1 be given liberty to adjust the monies deposited by the said tenants to the said Sri Srenik Singhvi towards arrear rents outstanding till the month of May, 1992; (d) The said tenants be directed to pay the balance arrear rents (inclusive of air-conditioning charges) due and payable by them to the defendant No. 1 for the period from January, 1987 till May, 1992 within a period of 14 days from the date of the order. " ( 15 ) CHIEF Justice K. C. Agarwal while sitting singly on 8th August, 1995 heard the said matter and noticed that a sum of about Rs. 35 lakhs have been collected from the plaintiffs towards their liabilities of payment of electricity and air-conditioning charges. As regard the interpretation of agreement, it was stated :"at this stage, it is not necessary for me to give any concluded opinion except noting down that there was no mistake as the plaintiffs had been paying rent understandingly and correctly under clause 16 (iii) (c) and (e) of the agreement. The interpretation of the defendants that the electricity charges whenever increased they are liable to pay the same appears prima facie to be acceptable. The electricity one time charges dependent on the increase by the Calcutta Electric Supply Corporation Limited and it was not the own or individual act of the defendants. The defendants' interpretation of clause 16 (iii) (c) and (e) was wrong. " ( 16 ) THE learned Chief Justice directed, inter alia:"after hearing the contention of the parties, it appears to me that the sum of Rs. 35 lakhs which is in deposit should be in equity and justice, paid over to the defendants and that the plaintiffs cannot get an injunction restraining the defendants from realising the same on security being furnished to the satisfaction of the Registrar of this court. If ultimately, the plaintiffs succeed, the defendants would be liable to pay interest at the rate of 15 per cent per annum. If ultimately, the plaintiffs succeed, the defendants would be liable to pay interest at the rate of 15 per cent per annum. This will secure the interest of the plaintiffs. " ( 17 ) STATING the law relating to the effect of furnishing Bank Guarantee, it was held that the same fully secures the interest of the plaintiffs, as in the event of success in the case, the plaintiffs would be entitled to receive the full amount by enforcing the same. It was directed:"upon the security being furnished, the Registrar will permit Rs. 35 lakhs in deposit to be withdrawn by the defendants and in that event, the plaintiffs will have no objection to raise. This order secures the interest of the parties of the amount of Rs. 35 lakhs which is in deposit of present, but as and when the money is deposited in future, withdrawal of the same would be governed by the order which may be passed at that time. Subject to above the prayer made by the defendants for withdrawal of Rs. 35 lakhs (Rupees Thirty five lakhs) are allowed. " ( 18 ) AN application for modification of the said order was filed wherein a prayer was made to the effect that the Receiver be discharged. It is stated that on that date the learned Chief Justice did not have the requisite determination and another interlocutory bench was functioning. The learned Chief Justice noticed the contentions raised on behalf of the appellant herein to the effect that the said application was barred by the principles of res judicata but negatived the same and proceeded to consider the matter on merit afresh. By an order dated 5-12-1995, it was directed :"counsel or the defendant No. 1 has given undertaking before me on behalf of his client about the property not being disposed or sold. This to my mind satisfies the requirement/even the plaintiffs admitted in the plaint that defendant No. 1 was the owner of the property hence ownership is not being in dispute. The interim order passed on 8th August, 1995 is modified. The defendant no. 1 would be entitled to withdraw Rs. 35 lacs immediately on undertaking as aforesaid. In future rent would be deposited by the plaintiffs with the defendant No. 1. It will not be necessary for them to deposit the rent with Mr. Srenik Singhvi, Advocate. The interim order passed on 8th August, 1995 is modified. The defendant no. 1 would be entitled to withdraw Rs. 35 lacs immediately on undertaking as aforesaid. In future rent would be deposited by the plaintiffs with the defendant No. 1. It will not be necessary for them to deposit the rent with Mr. Srenik Singhvi, Advocate. Suit No. 601 of 1989 being considered as appropriate I direct the office to place before me the entire record for assignment to any other Bench. " ( 19 ) THE appellants preferred two appeals against the said two orders. A Division Bench comprising of U. C. Banerjee, J. (as His Lordship then was) and R. K. Mitra, J. initially stayed operation by order dated 5th December, 1995. However, by an order dated 29th January, 1997, relying on a 'chart' submitted Mr. Khanna learned Counsel showing arrears of the electricity bills allegedly payable by the appellants to the first respondent, it was directed:"mr. Khanna assures this court as regards the correctness of the chart. The issue as regards the actual rate payable by the appellants, however, will be decided on the next occasion but in our view, since there was an order of the court, the appellants ought to comply with the order first before further order can be obtained in the matter. Such deposit be made with the Receiver within a period of three weeks from the date hereof. Such deposit, however, will be made without prejudice to the rights and contentions of the parties. It is placed on record that Mr. Khanna has made over the chart to the Receiver in terms of this order in court today. Receiver is directed to intimate the Advocate-on-Record of the respondent the details of the investments made as regards the money already held by him and the accrued interest thereon. " ( 20 ) AN application for grant a Special Leave Petition was filed before the Supreme Court of India there against and by an order dated 17th February, 1997, the Apex Court directed:"the grievances of the appellants are two folds first the appellant was directed to deposit the amount indicated in chart handed up in court without any affidavit by the respondent No. 1. Secondly, the correctness of the chart was not allowed to be controverted by the appellants and the court passed its order on the basis of that chart. Secondly, the correctness of the chart was not allowed to be controverted by the appellants and the court passed its order on the basis of that chart. Having heard both the parties we are of the view that this matter must go back to the High Court and the respondents will have an opportunity of stating on affidavit that the appellants have failed to make deposits with the Receiver as by the court and seek suitable direction. The appellants should be given an opportunity to file a counter-affidavit. The application will be made as early as possible before the Division Bench. Affida-vit-in-opposition will be filed within two weeks. Reply, if any, within one weeks thereafter the High Court will dispose of the application as expeditiously as possible. Some allegations have been made about the Receiver. We are not passing any order on that. Prayer may be made to the High Court for change of the Receiver. These cases are remanded back to the appeal court for passing fresh orders. The appeals are disposed of accordingly with no order as to costs. " ( 21 ) THE parties thereafter filed affidavits, in respect of the said claim of the respondents. ( 22 ) THE appeal, thereafter, was placed for hearing before a Division Bench of this court comprising of Gupta and Tiwari, JJ. Gupta. J. held:"we however, do feel that in the facts and circumstances of the case the arrangement settled and arrived at by Prabir Kumar Majumdar, J. vide his order dated 29th January, 1990 should not have been disturbed. In the order dated 29th January, 1990, P. K. Majumdar, J. had clearly evolved the system of making payments of the admitted amount and the disputed amount and had clearly held that such arrangement was to continue till the determination of fair rent by the Authority under 1956 Act. In a way the order passed by P. K. Majumdar, J. on 29th January, 1990 had thus evolved an effective mechanism with regard to the payment of amounts in dispute to the Receiver and any subsequent order by the court without there being any intervening reasons justifying departure, might be hit by the principles of constructive res judicata. In any event, there was no occasion not the learned Chief Justice K. C. Agarwal (as He then was) to have passed the order dated 8th August, 1995 alongwith the amount of Rs. In any event, there was no occasion not the learned Chief Justice K. C. Agarwal (as He then was) to have passed the order dated 8th August, 1995 alongwith the amount of Rs. 35 lacs to be withdraw by the respondent No. 1. In this appeal however we are only concerned with the correctness of the aforesaid order dated 8th August, 1995 limited to the observations made and the other related aspect of its modifying the order dated 29th January, 1990 and upsetting the arrangement regarding the deposit of the amount. We are not at all concerned with any question relating to the entitlement of respondent No. 1 to receive this amount of the liability of the appellants to pay the same to respondent No. 1. We are conscious of the fact that such question has to be determined by the learned Single Judge because of the remand order that we proposed to pass. " ( 23 ) A note of difference, however, recorded by Tiwari, J. as he opined that such application was maintainable in view of Order 39 Rule 4 of the Code of Civil Procedure. The learned Judge referring to the provision of section 4 of the West Bengal Premises Tenancy Act, 1956, observed: "i am constrained to point out that each tenant entered into a separate lease agreement with the landlord yet one representative suit has been filed invoking the provisions of Rule 8 of Order 1 C. P. C. which appears to be impermissible. The suit appears to be bad for multifariousness. " ( 24 ) HOWEVER, the learned Judges unfortunately did not formulate the points of their differing opinions in terms of Clause 36 of Letters Patent of this court which reads as follows:"single Judges and Division Court, and we do hereby declare that any function which is hereby directed to be performed by the said High Court of judicature at Fort William in Bengal, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court. Therefore, appointed or constituted for such purpose, in pursuance of section one hundred and eight of the Government of India Act. 1945 and if such Division Bench is composed of two or more Judges, or by any Division Court. Therefore, appointed or constituted for such purpose, in pursuance of section one hundred and eight of the Government of India Act. 1945 and if such Division Bench is composed of two or more Judges, or by any Division Court. Therefore, appointed or constituted for such purpose, in pursuance of section one hundred and eight of the Government of India Act, 1945 and if such Division Court is composed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges we have heard the case including those who first heard it. " ( 25 ) THE learned Chief Justice, keeping in view the difference of opinion of the aforementioned learned Judges placed the matter before one of us (S. B. Sinha, J.) and by order dated 4-3-1999 having regard to the phraseology used in Clause 36 of the Letters Patent and a Special Bench decision of this court in Jyoti Prakash Mitter v. H. P Bose, C. J. Calcutta High Court, as also keeping in view the fact as to whether the respondent herein agreed in effect and substance not to press their application in terms of the order of the Apex Court dated 7-2-1992 observed:"although the questions of law upon which the learned Judges differed in their opinion could be deciphered from the orders passed by them but keeping in view the aforementioned submissions made at the Bar, this court is of this opinion that it is not possible for this court to formulate the points of difference of the light of a decision if the Special Bench of this court in Jyoti Prakash Mishra (supra ). " ( 26 ) THUS, the matter was remitted to the learned Judges of the Division Bench for stating the points of differences in terms of the Clause 36 of the Letters Patent of this court. " ( 26 ) THUS, the matter was remitted to the learned Judges of the Division Bench for stating the points of differences in terms of the Clause 36 of the Letters Patent of this court. ( 27 ) THE matter, however, for same reason or other was not placed before the same bench for a long time and in the meantime Tiwari, J. retired in July, 1999. In that situation the matter was placed before a bench comprising Gupta and P. K. Sen, JJ. and by order date 12-8-1999, although Gupta, J. was a party to the order dated 21-8-1998 they directed: 1. AIR 1963 Cal. 483 . "the present Bench is not in a position to either decipher or cull out or state the points of difference in terms of clause 36 of the Letters Patent because Justice Tiwari is'not now available. We, accordingly direct that the matter shall be placed before the learned third Judge for hearing and request the learned third Judge to himself cull out and decipher the points of difference between the two Judges constituting the Division Bench at the relevant time. " ( 28 ) KEEPING in view the fact that the said direction apparently is contrary to the letter and spirit of Clause 36 of the Letters Patent of this court, the matter was directed to be heard by a Division Bench. However, latter on keeping in view the importance of the question involved which may be raised, viz. as to whether in this situation the entire appeal can be heard afresh or not without formulating the points of differences, the appeals have been referred to a Special Bench. ( 29 ) THIS appeals were heard on 12-4-2000, 28-4-2000 and 3-5-2000. ( 30 ) MR. Anindya Mitra and Mr. Joyanta Mitra, learned Senior Counsels appearing on behalf of the appellants, submitted that the air-conditioning charge being a part of the rent and the matter relating fixing of fair rent being pending before the Rent Controller, the impugned orders could not have been passed and as the respondent No. 1 is causing delay in the disposal of the proceeding before the Rent Controller, the impugned order should not be sustained. ( 31 ) THE learned Counsel submitted that the points of difference between the two learned Judges can be culled out from the order of Tiwari, J. and only two points arise for consideration in these appeals: 1. Whether in the facts and circumstances of the case the learned Judge by his order dated 8th august, 1995 could have permitted the defendant to withdraw the money lying in the hands of the Receiver on furnishing of Bank Guarantee. 2. Having done so by his order dated 8th August, 1995 whether the Learned Judge had any jurisdiction or any material before him to vary his earlier order in passing the order dated 5th December, 1995 and permit the defendant to withdraw the money lying in the hands of the Receiver without furnishing Bank Guarantee, on the undertaking of the counsel of the respondent about the property not being disposed of or sold and further directing that in future rent to be deposited by the plaintiffs with the defendant No. 1. ( 32 ) MR. P. C. Sen, the learned Senior Counsel, however, as on the previous occasion differed therewith submitting that another question also arises for consideration before this court, in view of the order passed by the Supreme Court of India, viz. Whether any direction is required to be passed by the Bench regarding arrears, on the application filed by the respondent in terms of the order of the Supreme Court of India? ( 33 ) MR. Mitra submitted that Majumdar, J. passed the aforementioned interlocutory order which was in the nature of a preservative one so that the interest of both the parties could be safe-guarded. He has pointed out that the admitted amount of rent including the air conditioning charges being @ 12% per sq. ft. is being deposited with the landlord and only the rest of the amount was being deposited with the Receiver who happens to be the Ad-vocate-on-Record of the plaintiffs. It was submitted that the increased rate stated to be at 22. 14% per annum is not correct. It was submitted that the orders passed by the learned trial Judge is barred under the principles of res judicata. ( 34 ) RELIANCE in this connection has been placed on the basis of such differences the Apex Court in Arjun Singh v. Mohindra Kumar and Ors. 14% per annum is not correct. It was submitted that the orders passed by the learned trial Judge is barred under the principles of res judicata. ( 34 ) RELIANCE in this connection has been placed on the basis of such differences the Apex Court in Arjun Singh v. Mohindra Kumar and Ors. 2, wherein it was held that order could be modified only if a subsequent event occurs. In the instant case, according to the learned counsel no subsequent event has occurred nor there was any change in circumstances as observed by Tiwari, J. In any event, contends the learned Counsel, as an Administrator had been appointed and no order of injunction had been passed, the provisions of Order 39 Rule 4 of the Code of Civil Procedure cannot be said to have any application whatsoever in the instant case. ( 35 ) ACCORDING to the learned Counsel, the learned trial Judge while hearing an application for modification of an interim order can exercise his jurisdiction only if subsequent event occurs and cannot sit over in appeal over the said order passed by a co-ordinate bench which had been sought to be done by Tiwari, J. ( 36 ) STRONG reliance in this connection has been placed in a decision reported in ILR 44 Calcutta 28. Upon taking us, through the two impugned orders, the learned Counsel contended that there had been no change in the circumstances as after the first order was passed and an application for modification thereof was filed only with a view to get the said matter listed before Hon'ble the Chief Justice although the substantive prayer of removal of the Receiver which was made had been rejected by the same learned Judge. ( 37 ) THE learned Counsel contends that the principles of res judicata applies in all the stages of the proceedings and once it was held that the interpretation of the defendants as regard the construction of the terms of agreement is correct and the court having allowed only the prayer of handling over of the sum of Rs. 35 lakhs to the respondent No. 1 upon furnishing bank guarantee, no occasion arose to review the said order in the name of modification, as a result whereof not only the respondent No. 1 has been absolved from furnishing any bank guarantee, but also the Receiver has also been discharged. 35 lakhs to the respondent No. 1 upon furnishing bank guarantee, no occasion arose to review the said order in the name of modification, as a result whereof not only the respondent No. 1 has been absolved from furnishing any bank guarantee, but also the Receiver has also been discharged. ( 38 ) HARDSHIP, according to the learned Counsel is by itself no ground to invoke the court's power to pass a different order at the interlocutory stage ignoring the principles of res judicata and/or of constructive res judicata. In any event, the learned Chief Justice having not recorded that any hardship was caused to the defendant No. 1 by reason of the order dated 8-8-1995 nor having arrived at any finding as regard happening of any subsequent event the impugned order dated 5-12-1995 could not have been passed. ( 39 ) TIWARI, J. according to the learned Counsel proceeded on a wrong premise. It was submitted that the question as to whether the suit was maintainable or not or whether keeping in view the provision of section 4 of the West Bengal Premises Tenancy Act, the plaintiffs were bound to pay the agreed rent to the defendant No. 1 did not fall for consideration before the Division Bench and thus Tiwari, J. must be held to have acted on a wrong premise and thereby sat in appeal over the judgment of P. K. Majumdar, J. which was not the subject matter of consideration before the Division Bench. ( 40 ) IT has been pointed out that in the second application, despite the fact that the same was application for modification a completely new case was made out which is not permissible in law. It was, therefore, submitted that keeping in view the fact that this Bench is merely to consider the points of difference of opinion between two Hon'ble Judges, should accept the views of Gupta, J. Mr. P. C. Sen, Ld. Senior Counsel, appearing on behalf of respondent/defendants on the other hand submitted that the only question which arises for consideration in the suit is as regard the effect of the supplemental agreement viz-a-viz original agreements. ( 41 ) MR. Mitra, Ld. P. C. Sen, Ld. Senior Counsel, appearing on behalf of respondent/defendants on the other hand submitted that the only question which arises for consideration in the suit is as regard the effect of the supplemental agreement viz-a-viz original agreements. ( 41 ) MR. Mitra, Ld. Counsel appearing on behalf of plaintiff would further urge that the tenants premises is a multistoried building in fact some floors thereof have already been sold and thus there is no adequate security so far as the excess amount which has been deposited by the tenants with the Special Officers. The Director's names appearing in the application contends Mr. Mitra, are only employee directors and do not have any substantial property. ( 42 ) ACCORDING to Mr. Sen whereas the tenants contends that in view of moratorium in the matter of enhancement of electricity charged, the enhancement should be calculated treating the tariff as prevalent as the base, upon expiry of the period of moratorium, the respondent No. 1 contends that the basis for increase should also include the enhancement in the tariff occurred in the meantime. The Ld. Counsel submits that the order passed by Apex Court could not have been ignored and Gupta, J. Himself has taken into consideration the same whereas Tiwari, J. has not considered the aspect of the matter at all. ( 43 ) MR. Sen would urge that air conditioning charges being a part of the rent, the plaintiffs were bound to pay the same to the defendants and Receiver was required to be appointed nor any security was required to be furnished in respect thereof as any excess amount paid can be recovered from future monthly rent. According to Mr. Sen, the market was one of the first centrally air conditioned market in the Eastern Region and thus, with a view to make it popular, moratorium was granted so that some of the shopkeepers may get some breathing time, but the same does not mean that a tenant shall take undue advantage of their position and continue to get the facilities of air conditioning in respect where for the respondent No. 1 had incurred a huge expenses. The electricity bills have been revised on the basis of enhanced tariff, according to Mr. The electricity bills have been revised on the basis of enhanced tariff, according to Mr. Sen, will have to be paid and it will be a travesty of justice if the landlord is to pay the electricity charges from his own pocket. ( 44 ) IT was submitted that the amount was not deposited in terms of order passed by P. K. Majumdar, J. by some of the tenants. Interpretation of the agreement, according to the Ld. Counsel had a direct nexus with the electric charges required to be deposited and if the tenant had not been depositing the amount, as directed by the Ld. Judge, it was open to his client to file an application for appropriate orders. The Ld. Counsel contends that the second application had been filed whence it become to his clients that for the purpose of furnishing bank guarantee they will have to deposit the entire amount as a result whereof the order dated 8th August, 1995 had become unworkable. ( 45 ) MR. Sen would urge that the applications filed by the respondent No. 1 in terms of the order of the Supreme Court dated 17-2-1997 annexing therewith a chart showing the actual amount payable by the tenants is required to be considered and it is in that context the counsel for defendant No. 1 stated the entire appeal may be disposed of along with the same and it is not correct to contend that the application filed by his client in terms of the order of Supreme Court of India was not pressed. ( 46 ) AS the Ld. Counsel for the parties did not agree as regard the parties of difference which should be decided by us as regard differing opinions of Gupta and Tiwari, JJ. and we having applied our own minds and also in view of the fact that a Division Bench of this Court of which Gupta, J. , himself was a member, could not cull out the difference of opinion, we intend to answer all the three questions raised before us as quoted (supra) and in particular the purpose for which referring the matter has been referred to this Bench. ( 47 ) HOWEVER, before answering the questions we may state that in a case of this nature clause 36 of the Letters Patent cannot be strictly adhered to as by action of the court, the litigants cannot suffer in view of the well known doctrine "actus Curiea namenim grauabit". ( 48 ) IT is a well settled principles of law that procedures are handmaid of justice and no technicality may be allowed to play any role, so as to obstruct dispensation of justice to the parties. The Court is not only a court of law but also a court of equity. ( 49 ) IN Ramankutty Guptan v. Auara, the Apex Court stated :"it is to be seen that the procedure is the handmaid for justice and unless the procedure touches upon jurisdictional issue, it should be moulded to subserve substantial justice. Therefore technicalities would not stand in the way to subserve substantive justice. " ( 50 ) IN New India Assurance Co. Ltd. v. R. Srinivasan, the law is stated in the following terms:"the interest of justice, in our opinion, cannot be defeated by this rule of technicality. The rules of procedure, as has been laid down by this Court a number of times, are intended to serve the ends of justice and not to defeat the dispensation of justice. " ( 51 ) IN V. I. I. Co. Ltd. v. S. Mistri, a Division Bench of this court of which two of us (S. B. Shinha and Ansari, JJ.) were members held that a High Court is not only a court of law but also a court of justice. ( 52 ) SO far as the appeal filed by the appellant herein against the order dated 5th August, 1995 is concerned, we are of the opinion that the application for modification was maintainable. Not only in the application but also from the order passed by Majumdar, J. dated 29th January, 1990 it will be manifest that parties as also the court have proceeded on the basis that an application for injunction had been filed and entertained. In fact, Majumdar, J. while appointing the Advocate-on-Record of the plaintiff as a Special Officer issued a mandatory injunction upon the plaintiffs to deposit the disputed amount to the Special Officer and also injuncted the defendant-respondent therein from receiving the said amount directly from the tenant-plaintiff. In fact, Majumdar, J. while appointing the Advocate-on-Record of the plaintiff as a Special Officer issued a mandatory injunction upon the plaintiffs to deposit the disputed amount to the Special Officer and also injuncted the defendant-respondent therein from receiving the said amount directly from the tenant-plaintiff. ( 53 ) ORDER 39 Rule 4 of the Code of Civil Procedure, therefore, in our considered opinion, may apply to such case. Order 39 Rule 4 of the Code of Civil Procedure has a salutary object, as thereby the court is empowered to discharge, vary and set aside the order of injunction when a party adversely affected is dissatisfied therewith. It, therefore, cannot be said that only in a case where a subsequent event had occurred, Order 39 Rule 4 can be taken recourse to. in any event, in the instant case, the defendant-respondent has filed the said application, inter alia, on the ground that not only they had been facing undue hardship inasmuch as a huge amount which was to be paid to the CESC Ltd. by way of electricity charges remained blocked but also that the plaintiffs-appellants had not been depositing the amount in terms of order passed by Majumdar, J. Undue hardship would be a ground for variation of an order of injunction is neither in doubt nor in dispute. (See: Bepin Krishna Sur and Ors. v. Gautam Kumar Sur and Ors6 and Phani Bhusan Dey v. Sudhamoyee Roy and Anr. ). ( 54 ) EVEN when a Receiver is appointed undar Order 40 Rule 1 of the Code of Civil Procedure, the court has the right may a duty to oversee its functions and issue such directions upon him from time to time as it may seem fit and proper. In an appropriate case, he may also be discharged. Such a power is inherent in the court inasmuch as a Special Officer having been appointed by the Court, the properties being custodialegis, the court has the jurisdiction to issue directions upon the Receiver in respect thereof from time to time. The court also in terms of Order 40 Rule 4 of the Code of Civil Procedure may enforce the duties to be performed by the Receiver. No exception therefore can be taken, upon entertainment of the modification application filed by the defendant-respondent made by the Ld. Chief Justice. The court also in terms of Order 40 Rule 4 of the Code of Civil Procedure may enforce the duties to be performed by the Receiver. No exception therefore can be taken, upon entertainment of the modification application filed by the defendant-respondent made by the Ld. Chief Justice. ( 55 ) WHEN such question arises, the principles of res judicata will have no application as would appear from the decision of the Supreme Court in Arjun Singh v. Mohindra Kumar and Ors. , itself whereupon strong reliance has been place by Mr. Anindya Mitter wherein the law has been stated in the following terms:"it is needless to point out that interlocutory orders are of various kinds: some like order of stay; injunction or Receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle or res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the court would be justified in rejecting the same as an abuse of the process of court. " ( 56 ) REFERENCE in this connection may also be made to M/s. Devidayal Rolling Mills v. Prakash Chiman Lal Parikh. ( 57 ) IT is not in doubt that the dispute between the parties centres round the fact as what would be the base for evaluating the amount for consumption of electrical energy by each tenant in relation whereto the period of moratorium applied i. e. while the same would include enhancement in electrical charges @ 10% per annum or from the date when such agreement expired. ( 58 ) THE appellants admittedly in terms of the order passed by Majumder, J. to the effect that the admitted amount would be paid to defendant-respondent, while paying the rent at the rate of 12% per sq. ft. had been depositing the amount in terms of the bills sent to them by the defendant which had been calculated on the basis that the base would be the date of the expiry of the agreement. The defendant-respondent admittedly issued supplementary bill realising their alleged mistake. ( 59 ) THUS, what would the construction of the order regarding deposited of the amount necessarily fall for consideration before the learned trial Judge. Such a question has also been raised by the defendant-appellant while filing the application for modification. ( 60 ) K. C. Agarwal, C. J. while passing the said order had found that a sum of Rs. 35,00,000/- is lying in the hands of the special Officer, as per the bill prepared by the defendant-respondent on the same basis to which the plaintiff agreed. We find, no reason as to why such amount should not be paid to the supplier of electricity and would remain un-uti-lised although the same is meant to be paid to CESC Ltd. towards electricity charges. ( 61 ) THE Ld. Chief Justice in his order has rightly held that the interest of the plaintiffs-appellants would be secured if a bank guarantee in respect thereof is furnished. Re. Question No. 2 : ( 62 ) HOWEVER, so far as the order dated 5th December, 1995 passed by the learned Chief Justice is concerned, we are of the opinion that the same was clearly barred under the principles of res judicata. Explanation V appended to Section 11 of the Code of Civil Procedure reads thus:-"s. 11. Res judicata.-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation-I. . . . . . . . . . Explanation-I. . . . . . . . . . Explanation-V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. " ( 63 ) THUS, if any claim has not been granted, the same would be deemed to have been rejected. In any event, the learned Chief Justice while passing the order dated 8th August, 1995 expressly held that the plaintiff had been paying the rents understandingly and correctly under Clause 16 (iii) (c) and (e) of the agreement and that there was no mistake on the part of the plaintiffs. Without filing any application of review and/or modification of the said part, another application could not have been filed. It is also surprising that whereas in his order dated 8th August, 1995 the learned Chief Justice stated the law as regards contract of bank guarantee, it appears that he deviated therefrom in his order dated 5th December, 1995. The Ld. Chief Justice, in our opinion, has also failed to consider that the principles of res judicata applied even at different stages of the same proceeding. (See: Y. B. Patil and Ors. v. Y. L. Patil. ( 64 ) THE said order dated 5-12-1995 therefore, cannot be sustained which is set aside accordingly. Re. Question No. 3 : ( 65 ) THE Apex Court in its order dated 17th February, 1997 merely granted leave to the defendant-respondent to file an appropriate application therefor and directed this court to dispose of the same upon giving an opportunity to the plaintiff-appellant to file an affi-davit-in-opposition thereto. The Apex Court did not decide the matter nor enter into the merit. The question which now arises for consideration is as to whether such an application is maintainable in these appeals. Keeping in view the fact that the defendant-respondent did not prefer any appeal, in our opinion, by filing an interlocutory application the defendant could not have prayed for the reliefs which was not the subject matter of determination of appeal, thus, enlarging the scope of appeal. Keeping in view the fact that the defendant-respondent did not prefer any appeal, in our opinion, by filing an interlocutory application the defendant could not have prayed for the reliefs which was not the subject matter of determination of appeal, thus, enlarging the scope of appeal. As a court of appeal the Division Bench was concerned only with the subject matter of the appeal viz, correctness or otherwise of the orders appealed against and, thus it could not substitute itself as the original court so as to entitle it to hear an application filed by the respondent who independently has not preferred any appeal and raised a claim which was beyond the scope and purport of the orders passed appealed against. Such an application, keeping in view the subsequent events and/or changes of circumstances, if any, could be filed only before the court where the suit is pending. The defendant-respondent would, therefore, be at liberty to file an appropriate application in this regard if any are so advised before the appropriate bench where the suit is pending. ( 66 ) BEFORE parting with this case, however, we may reiterate the views of Gupta, J. , to the effect that it is really unfortunate that the Rent Controller had not been able to dispose of the proceedings relating to fixation of fair rent for such a long time. The parties before us have blamed each other. We, although, do not intend to go into the said question as the Rent Controller being a quasi-judicial authority is entitled to regulate its own procedure, however, keeping in view of the peculiar facts and circumstances of this case, direct him to complete such proceedings expeditiously and preferably within two months from the date of communication of this order. In the result, Appeal No. 464 of 1995 is dismissed whereas Appeal No. 465 of 1995 is allowed. However, in the facts and circumstances of this case there will be no order as to costs.