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2000 DIGILAW 280 (CAL)

Purnand Garg v. Tuhin Kr. Chowdhury

2000-06-12

Amit Talukdar, Tarun Chatterjee

body2000
Judgment Chatterjee, J. This appeal arises out of a suit for recovery of possession, mesne profits and otter reliefs in respect of Municipal Premises No.6, Lansdown Place and more fully described in the schedule of the plaint (hereinafter referred to as "the suit premises") on the ground of expiry of lease. 2. The plaint case, in short, is that by a registered indenture oflease dated 30th November, 1960 between Smt. Bedbala Devi as lessor and defendant Purnand Garg as lessee, a lease in respect of the suit premises was created for 21 years commencing from 1st of December, 1960 and terminating on 1st of December, 1981 and monthly rent payable was Rs. 800/- together with occupier's share of taxes, initially assessed at Rs. 52/- payable within 7th of each English Calender Month in respect of the month in which the rent fell due. By virtue of a deed of gift dated 13th August, 1969 Smt. Bedbala Devi bequeathed, conveyed and transferred the suit premises in favour of her son that is plaintiff/respondent and thus the defendant/appellant became the lessee under the plaintiff/ respondent on the same terms and conditions as contained in the lease deed dated 30th November, 1960. The defendant/appellant attorned to the plaintiff/ respondent and notice of such attornment was given by the plaintiff/respondent to the defendant/appellant. The plaintiff/respondent accepted the rent from time to time from the defendant/appellant in terms of the lease deed dated 30th November, 1960. On the expiration of December 1, 1981 the tenure of the lease expired, even then the defendant had failed to deliver vacant possession of the suit premises in favour of the plaintiff/respondent. It was also the case of the plaintiff/respondent in his plaint that the defendant/appellant was not entitled to invoke the provisions of the West Bengal Premises Tenancy Act, 1956 and that at current market rate the suit premises would fetch a rent of Rs.5,000/- per month and, therefore, defendant/appellant was liable to pay mesne profits at that rate with effect from 2nd December, 1981 when the lease expired. Since the occupier's share of taxes was also increased by the Municipal Corporation, the defendant/appellant was liable to pay enhanced rate of municipal taxes. Upon the aforesaid allegations, the plaintiff/respondent was constrained to file the suit for eviction of defendant/appellant on the ground of expiry of lease and for mesne profits and other incidental reliefs. 3. Since the occupier's share of taxes was also increased by the Municipal Corporation, the defendant/appellant was liable to pay enhanced rate of municipal taxes. Upon the aforesaid allegations, the plaintiff/respondent was constrained to file the suit for eviction of defendant/appellant on the ground of expiry of lease and for mesne profits and other incidental reliefs. 3. The defendant/appellant contested the suit by filing a written statement wherein the material allegations made in the plaint were denied. It was alleged in the written statement that the suit was not maintainable in law against the defendant/appellant in view of the fact that the defendant/appellant was not a lessee and Waxpol Industries Ltd. was in fact, the lessee of the suit premises under the plaintiff/respondent. He further alleged that although the lease deed was executed by and between Smt. Bedbala Devi and the defendant/appellant, but the said lease was not acted upon. It would appear from the correspondence between the parties, that Waxpol Industries Ltd. took lease of the suit premises and incurred all expenses for the suit premises and fully repaired and renovated the old dilapidated building by incurring expenditure from time to time and all along maintained the suit premises. It was the further case of the defendant/appellant in his written statement that the defendant/appellant was not eagar to get the lease executed in his personal name, but as the lease was done hurriedly, it was done in his name. The said Waxpol Industries Ltd. allowed the defendant/appellant who was the Managing Director of the Company to occupy a part of the suit premises as his residence along with other officers of the said Company and the said Waxpol Industries Ltd. was carrying on business in the rest of the suit premises and was all along paying rent to the predecessor-in-interest of the plaintiff/respondent and thereafter to the plaintiff/respondent which was accepted by the lessee. Accordingly, the defendant/appellant alleged in the written statement that since defendant was not the lessee and it was Waxpol Industries Ltd., who was the lessee under the plaintiff/respondent, the suit filed against the defendant/appellant cannot be held to be maintainable in law. Accordingly, the defendant/appellant alleged in the written statement that since defendant was not the lessee and it was Waxpol Industries Ltd., who was the lessee under the plaintiff/respondent, the suit filed against the defendant/appellant cannot be held to be maintainable in law. So far as the mesne profits are concerned, the defendant also denied such liability and alleged further in the written statement that the Waxpol Industries Ltd. incurred huge expenses from time to time amounting to Rs.1,00,000/- to renovate the entire dilapidated house, the plaintiff/respondent was not entitled to mesne profits. Accordingly, the defendant/appellant sought for dismissal of the suit. 4. Upon the aforesaid pleadings, the following issues were framed: 1. Is the suit maintainable? 2. Is the suit barred by limitation? 3. Is the suit bad for defect of parties? 4. Was there any lease agreement so alleged? 5. Was the same acted upon and is binding? 6. Is the plaintiff entitled to get a decree for recovery of possession? 7. Is the plaintiff entitled to get the decree for mesne profits? 8. To what relief, if any, is the plaintiff entitled? 5. Upon the consideration of all the evidence and the materials on record, the trial Court decreed the suit on a finding that the defendant/appellant with whom the lease was executed by the lessor became a lessee under the lessor and it was not the company-the M/s. Waxpol Industries Ltd. who became the lessee under the plaintiff/respondent and that the lease in question had expired by efflux of time feeling aggrieved by this judgment and decree of the trial Court, the present appeal has been preferred by the defendant/appellant. 6. On behalf of the defendant/appellant, Mr. Hirak Mitra, the learned senior Counsel made only one submission. According to Mr. Mitra, from the materials on record and on consideration of the surrounding circumstances which ought to have been looked into by the Trial Court, the Trial Court sought to have held that it was the company - Waxpol Industries Ltd. who became the lessee or the tenant under the plaintiff/respondent and, therefore, no suit could be filed against the defendant/appellant. In this connection, Mr. Mitra had drawn our attention to Exhibit A and also to Exhibit B-3 which were produced by the defendant/appellant in support of his contention that the company was the lessee. In support of this contention, Mr. In this connection, Mr. Mitra had drawn our attention to Exhibit A and also to Exhibit B-3 which were produced by the defendant/appellant in support of his contention that the company was the lessee. In support of this contention, Mr. Mitra relied on two decisions, one of the Supreme Court in the case of Modi Company vs. Union of India, AIR 1969 SC 9 and the other of this Court in the case of Sukumar Bysack vs. S.K. Banerjee, AIR 1972 Calcutta 207. 7. This submission of Mr. Mitra was hotly contested by Shri Shyama Prasanna Roychoudhury appearing on behalf of the plaintiff/respondent. Before we taken into consideration the submission made by the respective parties we need to reiterate the admitted facts of this case at this stage. I. The lease was executed on 30th November, 1960 by the predecessor-in-interest of the plaintiff/respondent with the defendant/appellant for a period of 21 years commencing from 1st of December, 1960 and expiring on 1st of December, 1981. II. The defendant/appellant also paid rent to the plaintiff/respondent after the right to the suit property was transferred in his favour by the original lessor Smt. Bedbala Devi. III. The defendant/appellant was or is the Managing Director of M/s. Waxpol Industries Ltd. IV. No rent receipt was produced from the side of the defendant/appellant to show that the original lessor or the present plaintiff/respondent during the continuance of 21 years of the lease had ever granted any rent receipt in the name of the company. V. Since the defendant/appellant was or is the Managing Director of M/s. Waxpol Industries Ltd. it was also open to the company during the pendency of the suit to file an application for its addition. VI. During the continuance of the lease no steps was taken on behalf of the company to show that in fact the company was a lessee and it was not the defendant/appellant who was the lessee in respect of the suit premises. (Emphasis supplied). Keeping these admitted facts, in our mind, we now take into consideration whether the trial Court was justified in decreeing the suit for eviction on a finding that the defendant/appellant was in fact the lessee of the suit premises, and, therefore, liable to vacate the suit premises on the ground of expiry of lease. (Emphasis supplied). Keeping these admitted facts, in our mind, we now take into consideration whether the trial Court was justified in decreeing the suit for eviction on a finding that the defendant/appellant was in fact the lessee of the suit premises, and, therefore, liable to vacate the suit premises on the ground of expiry of lease. In our view, the trial Court was fully justified in holding that it was the defendant/appellant who was in fact inducted as a lessee in respect of the suit premises and that the evidence and materials on record could not justify the case of the defendant/appellant that the company was in fact inducted as a lessee in the suit premises. To justify this conclusion of fact we thought it fit to consider some of the correspondences made in respect of the suit premises. Exhibit 15 series unmistakably revealed that the company was never the lessee but it was the defendant/appellant himself who was the lessee in the suit premises until it was determind by efflux of time. Exhibit 15 is the true copy of the letter from M/s. Waxpol Industries Ltd. to Sm. Bedbala Devi, the predecessor-in-interest of plaintiff/respondent. By this letter the terms and conditions agreed for grant of the lease between the defendant/appellant and the predecessor-in-interest of the plaintiff/respondent were placed on record. Exhibit 15(a) is the letter dated 28th November, 1960. This was written by M/s. S.N. Sen & Co. Solicitors to Purnand Garg- the defendant/appellant. Acting on behalf of the defendant/appellant the Solicitor's Firm duly intimated the defendant/appellant that the draft lease approved on behalf of the defendant/appellant was also approved with some alterations. In this letter it was also said "We have also forwarded your cheque of Rs.600/- in favour of Shri Chunder on account of Stamp and Registration charges which was handed over to us by Sri Chakraborty for the said purpose." From the above quotation of the letter it is evident that the letter was addressed in the personal name of the defendant/appellant and the cheque for Rs.600/- was issued by the defendant/appellant. Even assuming that the aforesaid two letters raised any doubt in the mind of the Court the question who was accepted as a lessee by the predecessor-in-interest of the plaintiff/respondent and subsequently by the plaintiff/respondent, then also Exhibit 15(c) removes such doubt without any difficulty. Even assuming that the aforesaid two letters raised any doubt in the mind of the Court the question who was accepted as a lessee by the predecessor-in-interest of the plaintiff/respondent and subsequently by the plaintiff/respondent, then also Exhibit 15(c) removes such doubt without any difficulty. This letter was written on 29th of November, 1960 by S.N. Sen & Co. Solicitors to Sri Pumand Garg - the defendant/appellant. Before proceeding further, we may reiterate at this stage that the formal deed of lease was executed on 30th November, 1960 i.e. two days after the issue of Exhibit 15(c). In our view, that letter is an important piece of evidence to come to a finding whether the defendant/appellant was in fact the lessee of the suit premises. From this letter, it can be safely concluded as rightly done by the trial Court that even if the company intended to take the lease, such intention was given up by them and in that letter it was admitted that the lease shall be executed in the personal name of the defendant/appellant. This position would be made clear if we can reproduce the relevant portion of this letter herein-below :- "We had a discussion with your Sri Ramesh Chandra Chakraborty when he called at our office this morning and are given to understand that in view of the lessor's insistence on a formal resolution from your Board of Directors and to avoid any delay in the matter, it has been agreed that the lease would be taken in your personal name. He also intimated us not to insist on the alterations in para-II of the lease, which are not acceptable to the lessor's solicitors." 8. From the above quotation of the letter Ext. 15(c), doubt in our mind as to who was inducted as a lessee in the suit premises has been clearly removed. Apart from that law requires that a formal resolution of the company is necessary for the purpose of entering into the lease in respect of the suit premises. This formal resolution was admittedly not taken which would also be evident from the aforesaid quotation, of the letter Exhibit 15(c). Apart from that law requires that a formal resolution of the company is necessary for the purpose of entering into the lease in respect of the suit premises. This formal resolution was admittedly not taken which would also be evident from the aforesaid quotation, of the letter Exhibit 15(c). It is also clear from the written statement that no case was made out by the defendant/appellant that after the execution of the lease the company came into possession and started asserting their right of possession in terms of the lease in question. There was also no case in the written statement that the defendant/appellant had over surrendered or assigned the tenancy in favour of the company. That apart, as noted herein-earlier, the lease was entered into by and between the mother of the plaintiff/respondent - Bedbala Devi and Purnand Garg, the defendant/appellant. Law is well-settled that a legal transaction reduced into writing should ordinarily be held to be an exclusive conclusion of the fact of which ordinarily no evidence to vary its terms can be adduced. It also appears from the records that all through i.e. for 21 years, rent receipts in respect of the suit premises were issued in the personal name of the defendant/appellant and not in the name of the company but no objection was raised on behalf of the company for long these years i.e. during the continuance of the lease the Rent Receipts should be issued in their favour and not in the personal name of the defendant/appellant. Lastly, we find from the records that applications for deposit of rent under section 21 of the W.B. Premises Tenancy Act, 1956 were made on behalf of the defendant/appellant in his personal name which also amply signified that the defendant/appellant was the lessee in respect of the suit premises. We shall also keep it in mind that the company could not seek its addition in the suit for eviction when admittedly the company had the knowledge of filing of the suit for eviction as the Managing Director of the company was the defendant/appellant himself. All these lead to an irresistible conclusion that not only the defendant/appellant was a lessee in the suit premises but also the lease deed was duly acted upon by both the parties. All these lead to an irresistible conclusion that not only the defendant/appellant was a lessee in the suit premises but also the lease deed was duly acted upon by both the parties. Therefore, we are of the view that the trial Court was fully justified in coming to a conclusion of fact that it was defendant/appellant himself who admittedly entered into the lease with the predecessor-in-interest of the plaintiff/respondent was the lessee of the suit premises and it was not the company who became the lessee of the same. Mr. Mitra, however, as noted herein-earlier, had drawn our attention to Exhibit-A and Exhibit B-3 for the purpose of showing that the trial Court, while coming to the conclusion of the aforesaid fact, had failed to consider the same and thereby committed a grave error in coming to such a finding. It is true that from the judgment under appeal is does not appear that the aforesaid two Exhibits were taken into consideration by the trial Court. But on consideration of the aforesaid documents, it does not appear to us that even after their consideration, the trial Court could have come to a different finding. So far as Ext.-A is concerned, we only find from the same that it was the Managing Director, Shri Purnand Garg (defendant/appellant) had all along discussed with the plaintiff/respondent and the terms and conditions of the proposed lease was settled by him only. It is true that in the said letter dt.23rd November, 1960 (Ext. A) which was seven days before the actual execution of the lease deed, it was stated by the company that the letting out of the suit premises was with them. Mr. Mitra argued that from the letter Ext.-A it would be evident that the intention of the parties was to induct the company as a lessee in the suit premises. We are unable to accept this submission of Mr. Mitra. In our opinion, on the first blush, this argument of Mr. Mtira, may be looked attractive but in view of our discussions made hereinabove and on consideration of the other materials on records, particularly Ext. 15(c) which was issued on 29th November, 1960, a few days after issuance of Ext. A, we must hold that even if the intention of the parties at the initial stage to induct the company on the basis of the aforesaid Ext. 15(c) which was issued on 29th November, 1960, a few days after issuance of Ext. A, we must hold that even if the intention of the parties at the initial stage to induct the company on the basis of the aforesaid Ext. A but at a latter stage such intention was abandoned by the company and it was agreed by the parties that the lease deed shall be entered into by the predecessor-in-interest of the plaintiff/respondent and the defendant/appellant himself in his personal name and the lease was acted upon by the parties throughout the period when the lease was in force without any objection whatsoever. That apart, Ext.-A can also be explained by the aforesaid conduct of the parties that since the resolution was not taken by the company, the lease was taken by the Managing Director in his personal name. Therefore, in our opinion, this document (Ext. A) cannot help a defendant/appellant although this letter was issued seven days before the actual execution of the lease deed. So far as Ext. B-3 on which Mr. Mitra strongly placed reliance is concerned, we are unable to find any fault in the matter of writing of the said letter. This letter was written for and on behalf of Shri Purnand Garg arid for the Waxpol Industries Ltd. to Shri Tuhin Kr. Chowdhury, the present respondent. From the contents of the letter it appears that for and on behalf of Purnand Garg and for the Waxpol Industries Ltd, it was written that immediate necessity of repairs of the premises would be required and such repairing work was undertaken. From this letter it cannot be said conclusively that the company only was a lessee of the suit premises. It was made clear in the said letter that the letter was written by, for and on behalf of Shri Purnand Garg and for the Waxpol Industries Ltd. Therefore, from this letter it can also be concluded that this letter was written for and on behalf of Shri Purnand Garg, the defendant himself. Therefore, from the aforesaid documents on which Mr. Mitra strongly relied would not conclusively prove that the company was the lessee in respect of the suit premises. Accordingly, from the materials on record, we are unable to agree with Mr. Therefore, from the aforesaid documents on which Mr. Mitra strongly relied would not conclusively prove that the company was the lessee in respect of the suit premises. Accordingly, from the materials on record, we are unable to agree with Mr. Mtira that the real intention of the parties to enter into a lease in respect of the suit premises was to induct the company in the same. Before we part with this submission of Mr. Mitra, we may consider the decisions cited by him in respect of the aforesaid contention. As noted herein-earlier, Mr. Mitra relied on a decision of the Supreme Court in the case of Modi Company vs. Union of India, AIR 1969 Supreme Court 9. In our opinion, this decision has no application to the facts and circumstances of this case. In that decision, the Supreme Court, while dealing with provisions of Forward Contracts Regulation Act, 1953, held that absence of a specific clause in an agreement prohibiting transfer was not conclusive and it was the intention of the parties gathered from the contract as a whole and the surrounding circumstances would be decisive. Will this decision apply to our case? Simple answer is "No." The first reason is that decision of the Supreme Court was based on the interpretation of the construction of a specific delivery contract under section 2(f) of the Forward Contracts Regulation Act. In view of our discussions made hereinabove and in view of the conclusions arrived at by us and also by the Trial Court, there cannot be any doubt that in order to come to a specific finding on the clauses of a particular lease deed, the Court should not only consider the different clauses of the said deed but also the intention of the parties who entered into such lease. As it is an admitted position that the lease was entered into by the defendant/appellant in the personal name and in view of our findings made hereinabove, there is no question at this stage to conclude that such intention of the parties was to induct the company as a lessee in respect of the suit premises. Therefore, this decision of the Supreme Court, as noted herein-earlier, is not of any help to the appellant. Therefore, this decision of the Supreme Court, as noted herein-earlier, is not of any help to the appellant. So for as the other decision of this Court in the case of Sukumar Bysack vs. S.K. Banerjee, AIR 1972 Calcutta 207 is concerned, we do not find any quarrel about the proposition laid down in the said decision that sections 91 and 92 of the Evidence Act do not preclude the defendant from showing any evidence that though the document was executed in the form of an agreement for sale of land, the real nature of transaction was a loan for which the document was a security. As discussed hereinabove, we have taken into consideration of the entire materials on record and thereby we are in agreement with the judgment of the Trial Court as we find that the intention of the parties from the correspondences and the lease deed was clear to the extent that defendant/appellant was inducted as a lessee in respect of the suit premises. There is yet another aspect of this matter. Even assuming that the trial Court had failed to consider the material evidence on record for the purpose of showing that the company was the lessee which in fact had entered into the said lease, then also the judgment under appeal cannot be upset. The cardinal distinction between the trustee known to the English Law and a benamidar lies in the fact that trustee is the legal owner of the property standing in his name and cestui quo trust is only a beneficial owner whereas in the case of a benamidar transaction, the real owner has got the legal title, though the property is in the name of the benamidar. In the case of Our Narayan vs. Sheolal Singh, AIR 1918 PC 140, the Judicial Committee observed as follows: "The benamidar has no beneficial interest in the property or business that stands in his name: he represents in fact the real owner and so far as their relative legal position is concerned he is a mere trustee for him..... The bulk of judicial opinion in India is in favour of the proposition that in proceeding by or against the benamidar the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. The bulk of judicial opinion in India is in favour of the proposition that in proceeding by or against the benamidar the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action but whether he is made a party or not a proceeding by or against his representative in its ultimate result is fully binding on him. In a contest between an alleged benamidar and an alleged real owner other considerations arise with which their Lordships are not concerned in the present case." (Emphasis supplied). Applying the aforesaid principle laid down by the Judicial Committee, the Supreme Court in the case of Ragho Prasad vs. Shri Krishna, AIR 1969 page 316 at para - 3 held: "In view of this decision, it is well settled that in any litigation with a third party, the benamidar can sufficiently represent the real owner. The decision in any proceeding brought by or against the benamidar will bind the real owner though he is not joined as a party unless it is shown that the benamidar could not or did not in fact represent the interest of the real owner in that proceeding." If we are permitted to follow the observations made by the Supreme Court as well as the Judicial Committee in the aforesaid two decisions, in the facts of this case we have no hesitation in our mind to hold that even if the company was the real lessee, the defendant/appellant being the Managing Director of the said company had sufficiently represented the company. The decision in the proceeding brought against the defendant/appellant will bind the company though the company was not joined as a party unless it could be shown that the defendant/appellant could not or did not in fact represent the interest of the real lessee in the proceeding. No argument was advanced by the ld. Counsel for the defendant/appellant that the defendant/appellant would not in fact represent the interest of the company. The suit for eviction was hotly contested by the defendant/appellant who adduced evidence to support his defence that the company was a tenant or a lessee under the plaintiff/respondent. No argument was advanced by the ld. Counsel for the defendant/appellant that the defendant/appellant would not in fact represent the interest of the company. The suit for eviction was hotly contested by the defendant/appellant who adduced evidence to support his defence that the company was a tenant or a lessee under the plaintiff/respondent. The defendant/appellant who was the Managing Director of the company had access to the documents of the company and in fact produced all necessary documents for the company to show that the company was the lessee. Since the life of the lease had expired, the company could not have any other better defence than the defendant/appellant. Therefore, it can be safely concluded that even if the company was the lessee of the suit premises, the company was duly represented by the defendant/appellant who was its Managing Director. No other point was raised by the learned Counsel for the parties. Accordingly, there is no merit in this appeal. The appeal is, therefore, dismissed without any payment of costs. Let the Lower Court Records be sent down immediately if it is lying in this Court. Later After the judgment is pronounced the learned advocate for the appellant prays for stay of operation of the judgment. Accordingly, in the facts and circumstances of the case let the operation of this judgment shall remain stayed for a period of two months from date. A. Talukdar, J.: I agree. Appeal dismissed.