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2013 DIGILAW 186 (CAL)

Murlimal Santram v. Bata India Limited

2013-04-03

ASHIM KUMAR BANERJEE, ASHOKE KUMAR DASADHIKARI

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JUDGMENT ASHOKE KUMAR DASADHIKARI, J. This appeal is preferred by the plaintiff/appellant against the order impugned dated 30th April, 2012 passed by the learned single Judge while disposing of the application being GA No.354 of 2012 filed by the plaintiff. By that order the learned Judge was pleased to direct the defendant/respondent to deposit occupation charges with the Advocate-on-Record of the plaintiff/appellant who was appointed as Receiver. Occupation charges would be paid on and from 1st July, 2012 till 30th April, 2012 at the last paid rate of rent. Further direction for making payment of current occupation charges was also given. The arrear occupation charges should be deposited with the Receiver by 15th June, 2012. The Receiver was directed to make payment of Municipal taxes only from the payment and keep the rest with him, pending further orders. The remaining fund should be deposited in a savings bank account of the Receivers choice. The deposits and payments would be without prejudice to the rights and contentions of the parties. There was further direction for maintaining status quo regarding occupation and user. 2. Mr. S. N. Mukherjee, learned Senior Counsel appearing for the appellants would submit, the respondent tenant was in occupation of 44,000 sq. ft. of area in the premises at a total rent of Rs.2,60,441 per month. Subsequently, the respondents agreed to increase the rent @ Rs.10% per month over the existing rate of rent, expiry after three years from the date of previous increase for entire tenancy. He submitted, there would be further increase of rent @ 15% per month for the ground floor lobby. Mr. Mukherjee referred to two letters dated 2nd July, 1998 and 30th June, 2000 issued by the respondent admitting such agreed enhancement. It was also submitted by him, the learned Judge ought to have directed the respondent to pay the agreed rent to the plaintiff. He also submitted, the learned Judge should have directed the respondent to pay the money directly to the landlords who could have paid the Municipal taxes. Since the plaintiff was admittedly the sole landlord of the respondent, they were obliged to pay their occupation charges directly to the landlord. The respondent tenant was also not entitled to get any protection under the tenancy law. Accordingly, a direction should be given upon the respondent to pay the occupation charges at the increased rate as agreed. 3. Mr. Since the plaintiff was admittedly the sole landlord of the respondent, they were obliged to pay their occupation charges directly to the landlord. The respondent tenant was also not entitled to get any protection under the tenancy law. Accordingly, a direction should be given upon the respondent to pay the occupation charges at the increased rate as agreed. 3. Mr. Abhrajit Mitra, learned Counsel appearing for the defendant/respondent would submit, they had no difficulty and/or problem to pay the rent at the current rate but extra amount they were not agreeable to pay. He would submit, although the appellant was the landlord of his client, the property would belong to Municipal Corporation and in view of a newspaper report the Municipal Authority was to take possession of the property and in that event the respondent would have to pay rent to the Municipal Authority. Therefore, the rent should be kept with the Receiver after payment of the municipal taxes. Mr. Mitra further submitted, the plaintiff/appellant was not entitled to get mesne profit. Mr. Mitra cited three decisions in support of his submissions: 1. 1982 Maharashtra Law Journal, Page 99 (Suresh s/o Haribhau Admane v. Purshottam Shankarrao Purohit), 2. AIR 2009 Calcutta 221 : (2009 (6) All LJ (NOC) 1028) (Poonam Kejriwal v. Bhagwandas Auto Finance Ltd. & Ors.), 3. 2006 Vol. 4 Supreme Court Cases 205 : ( AIR 2006 SC 1734 ) (Sarup Singh Gupta v. Jagdish Singh & Ors.). 4. He also submitted that at pre decree stage of suit, the landlord was not entitled to an order of deposit by the tenant of interim past and future mesne profits. 5. We have considered the submissions made by both sides. Admittedly, the appellant was the landlord of the respondent and the respondent agreed by their two letters for an increase of 10% in respect of all tenancies and so far ground floor lobby was concerned additional increase is 15%. It is also undisputed, the appellant issued notice under Section 106 of Transfer of Property Act. The respondent was also not protected under the tenancy law. Therefore, the landlord would be entitled to get occupation charges month by month for the use and occupation of the premises, being an amount equal to the monthly rent payable by the tenant. It is also undisputed, the appellant issued notice under Section 106 of Transfer of Property Act. The respondent was also not protected under the tenancy law. Therefore, the landlord would be entitled to get occupation charges month by month for the use and occupation of the premises, being an amount equal to the monthly rent payable by the tenant. Although learned Counsel for the respondent/tenant submitted, defendant was agreeable to pay the monthly rent at the current rate it is evident from the two letters dated 2nd July, 1998 and 30th June, 1998 issued by the respondent that there would be 10% increment after an interval of every three years and there would be a further increase for the ground floor lobby @ 15% after every three years along with rent for the tenancy. 6. It is now well settled principle of law that granting relief of interlocutory mandatory injunction or its refusal is essentially equitable one and shall ultimately rest in the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances in each case. Accordingly we are of the view that in the facts and circumstances of this case the appellant/plaintiff is entitled to get occupation charges on agreed basis as interim relief. The judgment referred by Mr. Mitra (Poonam Kejriwal v. Bhagwandas Auto Finance Ltd. & Ors.)(supra) were delivered in a different sets of facts. In that case the plaintiff landlord prayed for declaration of title, permanent injunction, mesne profit, etc. but the facts of the present case are totally different. In our view the ratio of the judgment is not at all applicable in the instant case. So far the other judgment (Sarup Singh Gupta v. S. Jagdish Singh & Ors.) (supra) in that case the facts were totally different. The tenant offered and landlord accepted the rent month by month. The question involved there is whether this constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. The ratio of that case is not also applicable. The other judgment of (Suresh s/o Haribhau Admane v. Purshottam Shankarrao Purohit) (supra) is of no application in the instant case since we are not deciding mesne profit that is to be decided at the time of disposal of the suit. 7. The ratio of that case is not also applicable. The other judgment of (Suresh s/o Haribhau Admane v. Purshottam Shankarrao Purohit) (supra) is of no application in the instant case since we are not deciding mesne profit that is to be decided at the time of disposal of the suit. 7. In our considered opinion, the respondent is to pay at the enhanced rate that they agreed as reflected the aforementioned two letters, being occupation charges. However, we feel, the payment should be made to the Receiver month by month and the Receiver after payment of municipal taxes, would pay the balance amount to the landlord appellant. So far mesne profit is concerned, this Court cannot allow the same in favour of the plaintiff/appellant so long the suit is not decided. The order passed by the learned Judge is modified to this extent. 8. The payments to the landlord through the Receiver as directed above, would be without prejudice to the rights contentions of the parties in the pending application under Chapter XIII A of the High Court Rules, Original Side. 9. The appeal is thus disposed of without any order of cost. 10. Let urgent Xerox certified copy of this judgment, if applied for, be given to the learned Advocates of the parties on usual undertaking. ASHIM KUMAR BANERJEE, J. : 11. I agree. Order accordingly.