JUDGMENT : Tapabrata Chakraborty, J. This appeal arises out of a judgment and decree dated 26th June, 2007 passed by the Learned Judge, Bench-VII, City Civil Court, Calcutta in Money Suit No.104 of 2001. 2. The appellant herein preferred a suit for recovery of a sum of Rs.3,36,384/- being Money Suit No.104 of 2001 stating inter alia that by a lease deed dated July 27, 1983, the appellant let out to the respondent one office block measuring about 2245 square feet on the 2nd floor at premises 19 R.N. Mukherjeee Road, Calcutta- 700 001 (hereinafter referred as the said premises) for a period of five years with effect from November 01, 1982 at a monthly rate of Rs.15,715/- with an option for renewal for a further period of five years and that after the lapse of the said term of five years and the period of option for renewal for a further period of 5 years, a fresh lease of deed dated May 19, 1993, in respect of the said premises, was executed by the appellant in favour of respondent herein. It was further averred that with effect from April 01, 1984, the Calcutta Municipal Corporation (hereinafter referred to as CMC) imposed a surcharge at the rate of 50% of the consolidated rate towards user of the premises for commercial and/or non-residential purpose and that such surcharge is payable only by the person putting the premises to non-commercial use. The appellant demanded the said surcharge, as quantified by a certificate of allocation issued by CMC on 3rd May, 2000 from the respondent herein by letter dated July 20, 2000 and that even after the receipt of the said letter and a further reminder dated September 19, 2000, the respondent did not exhibit any inclination to pay the said quantified amount of Rs. 3,36,384/-. The appellant, therefore preferred the suit for recovery of the said sum. 3. 3,36,384/-. The appellant, therefore preferred the suit for recovery of the said sum. 3. The respondent entered appearance in the said suit and filed a written statement controverting the allegations made in the plaint and stating inter alia that by an agreement dated July 10, 1993, Hanuman Estates Limited, the superior Lessor had let out the said premises to the appellant on lease conferring a right upon the said appellant to assign and or sub-let its lease hold interest in the said premises without any consent from the superior Lessor and that on the rudiments of such right, the appellant in the capacity of a Lessor inducted the respondent as a lessee in the said premises for a period of 10 years, commencing from 1st October, 1992, by a deed of lease dated May 19, 1993. It was further averred that prior to the said agreement dated 1st October, 1992, the appellant and the respondent herein also entered into an agreement dated July 27, 1983, for a period of ten years, which expired on 31st September, 1992. 4. The primary defence of the respondent was that, in terms of Clause 1(g) of the lease deed dated May 19, 1993, the appellant had the primary liability to pay the taxes to the CMC and that as the earlier lease deed dated July 27, 1983 had expired on September 31, 1992, none of the parties to the said deed are bound by the covenants contained in the same which had admittedly expired and that the lease deed dated 19th May, 1993 did not have any clause which attracts any of the provisions of the expired lease. 5. To corroborate the contents of the plaint, deposition was tendered by Sri Becharam Chatterjee, Law Assistant of the appellant and that on behalf of the appellant reliance was placed upon the registered deed of lease dated May 19, 1993 as Exhibit-1, the certificate of allocation of surcharge issued by CMC as Exhibit- 3, the letters of the appellant to the respondent dated September 19, 2000 and October 09, 2000 as Exhibit nos.4 and 5 and the letter dated December 01, 2000 issued by the Learned Advocate on behalf of the appellant as Exhibit-6. 6. 6. To corroborate the contents of the written statement deposition was tendered by Sri K. Radha Krishna Rai, the Senior Branch Manager of the respondent as DW1 and in course of such cross-examination, DW1 stated that he had not seen any letter sent by CMC to the appellant demanding the commercial surcharge and that he had not seen any document to the effect that the appellant had paid commercial surcharge and that as there is no demand, question of payment of surcharge does not occasion. 7. Upon contested hearing the Learned Judge, Bench-VII, City Civil Court dismissed the suit observing inter alia that the appellant being the Lessor did not discharge its primary liability to pay the surcharge and without doing so the appellant had straight away demanded the amount of surcharge from the respondent and that the appellant had failed to state in details as to how it had handled the situation when the team of officials of CMC visited the suit premises and that the appellant had accordingly failed to prove its case. 8. The Learned Counsel appearing for the appellant argues that surcharge is a part of consolidated rate or tax and that the burden of payment of such surcharge is only on the person putting the premises to non-residential or commercial purpose and that in the backdrop of the admitted sequence to the effect that the respondent was the occupier of the said premises and that it is the respondent who had put the premises to a commercial/non-residential use, the burden of payment of such surcharge is upon the occupier being the respondent herein. He further submits that surcharge is imposed upon the occupier and that surcharge, though a primary liability of the landlord, the real and ultimate liability to pay surcharge is of the occupier who had used the said premises for commercial/non-residential purpose. He further submits that surcharge is imposed upon the occupier and that surcharge, though a primary liability of the landlord, the real and ultimate liability to pay surcharge is of the occupier who had used the said premises for commercial/non-residential purpose. The Learned Counsel for the appellant further submits that the Learned Court below had proceeded on an erroneous premise that as the appellant had not discharged its primary liability to pay the surcharge to CMC, question of recovery of the said amount of surcharge from the occupier, being the respondent herein, does not arise, failing to appreciate that payment of surcharge is a statutory liability and that it rests only on the person putting the premises to commercial/non-residential use and that the said surcharge amount is payable to CMC by the occupier, being the respondent herein, through the appellant. 9. The Learned Counsel appearing for the appellant further submits that on a plea of lack of any coercive action by CMC against the appellant, the respondent cannot deny its statutory liability to pay the surcharge in as much as the said respondent had admittedly put the said premises in the commercial/nonresidential use. It was further submitted that the recovery of the surcharge amount by the appellant was for the purpose of payment of the same to the CMC authorities. 10. The Learned Advocate for the appellant places reliance upon the judgment delivered in the case of Satish Chandra Agarwalla & Ors. v. State Bank of India & Anr. reported in AIR 1988(1) CLJ page 536 wherein the Hon'ble Court had categorically observed that it is the occupier or the tenant, who uses the premises for commercial or non-residential purpose, shall be liable to pay the surcharge and that such surcharge though a primary liability of the landlord, the real and ultimate liability to pay surcharge is of the occupier who uses the premises for commercial purpose or non-residential purpose. 11. The Learned Advocate for the appellant further places reliance upon the judgment delivered by the Hon'ble Supreme Court in the case of Calcutta Gujrati Education Society and Anr. v. Calcutta Municipality Corporation and Ors., reported in AIR 2003 Supreme Court 4278 and draws the attention of this Court to paragraphs 38 and 39 which runs as follows :- "38. 11. The Learned Advocate for the appellant further places reliance upon the judgment delivered by the Hon'ble Supreme Court in the case of Calcutta Gujrati Education Society and Anr. v. Calcutta Municipality Corporation and Ors., reported in AIR 2003 Supreme Court 4278 and draws the attention of this Court to paragraphs 38 and 39 which runs as follows :- "38. It is true that various provisions of Bombay Act and the Act under consideration before us applicable to Calcutta, are somewhat similar. However, some of the most outstanding features of Calcutta Act are not to be found in the Bombay Act. In the Act applicable to Calcutta which is for consideration before us, the tenant, sub-tenant or occupier have to be involved by public notice and individual written notices in the course of valuation and assessment of the "consolidated rate" or tax. Pursuant to the aforesaid public and individual notices, they have a right to object to the proposed valuation and assessment. They can also submit returns in response to the above notices. The annual value is determined on the basis of actual rent and market rent and is apportioned between the owner and lessor, as the person "primarily liable" and the tenant, sub-tenant or occupier, who are described as "persons liable". The provision of sub-section (6) of Section 178 creates an obligation on the Municipal Commissioner to supply information, on payment of fee, to the person "primarily liable" and to "persons liable" regarding the apportionment of the "consolidated rate" or tax on the properties among the several occupiers. The "consolidated rate" so determined for a property is recoverable only from the "person primarily liable" who is given a right of reimbursement from the other "persons liable". The consolidated rate is also made recoverable from the persons liable by attaching their rents payable to the "person primarily liable" and giving corresponding rights to the parties to claim adjustment of the tax paid from the quantum of rent. 39. The Act applicable to Calcutta also imposes a surcharge as part of "consolidated rate" or tax of which the whole burden is on the tenant, sub-tenant or occupier who is putting the premises to non-residential or commercial use. The burden of this surcharge as part of "consolidated rate" is only on the person putting the premises to non-residential or commercial use. The burden of this surcharge as part of "consolidated rate" is only on the person putting the premises to non-residential or commercial use. The imposition of this surcharge for properties in use for non-residential and commercial purpose with apportionment of that liability only on persons using the property in the manner aforesaid, is a special feature of the Act applicable to Calcutta and which makes this provision as also other provisions to a great extent different from the provisions of Bombay Act which were considered and the right of appeal in that case was held to be allowable only on full deposit of property tax for the whole property or building which is treated to be on unit for valuation and assessment of tax." 12. Learned Counsel appearing for the respondent submits that the surcharge determined for a property is recoverable only from the person primarily liable, being the appellant herein, who is given right of reimbursement from the person liable, being the respondent herein and that only upon payment of the surcharge amount by the appellant to CMC, the appellant can claim reimbursement of the said amount from the respondent herein and that as the appellant had not admittedly discharged its primary liability by paying the surcharge to the CMC, the appellant cannot claim the said amount of surcharge, quantified to be Rs.3,36,384/- from the respondent. 13. The Learned Counsel for the respondent further places reliance upon Clause 2(b) of the lease deed dated May 19, 1993 which runs as follows :- "2(b). The Lessor will during the said terms pay the Land Revenue, ceases, Land be and house taxes and rates in respect of the premises to the concerned authorities, or before the due dates thereof and on failure of the Lessor to do so, the Lessee may make the said payments without being obliged to do so and be entitled to recover the amounts so paid with interest from the Lessor." 14. The said clause of the lease deed, however, does not provide for any term pertaining to payment of surcharge and that as such the respondent cannot shift the burden of payment of surcharge moreso when the liability towards payment of such surcharge is a statutory liability of the respondent. 15. The said clause of the lease deed, however, does not provide for any term pertaining to payment of surcharge and that as such the respondent cannot shift the burden of payment of surcharge moreso when the liability towards payment of such surcharge is a statutory liability of the respondent. 15. The Learned Counsel for the respondent further submits that no cause of action towards preference of the suit by the appellant had occasioned, in as much as the appellant itself had not discharged its primary liability to pay the surcharge to the CMC. 16. A perusal of the judgment impugned reveals that the Learned Court below had arrived at the following findings :- (a) Non production of the lease deed dated July 27, 1983 is a blemish on the part of the plaintiff but at the same time the fact that admittedly the respondent used to occupy the said premises by virtue of the execution of the lease deed dated July 27, 1983, cannot be lost sight of. (b) A surcharge assessed by CMC is for the period relating to the period covered by the first lease deed but it cannot be said that the defendant, being the occupier of the suit premises, at the relevant point of time shall not be liable to pay the surcharge. (c) It may be that the owner has to pay at the first instance but it will be recoverable from the occupier. It is the occupier or the tenant, who uses the premises for commercial or nonresidential purpose, shall be liable to pay the surcharge. 17. After arriving at the aforesaid findings, the Learned Court below abruptly dismissed the suit as the appellant could not state in details as to how it had handled the situation with the team of officials of the CMC who visited the suit premises and such reasoning is absolutely untenable in law in as much as the admitted liability of the respondent to pay the surcharge, having admittedly put the premises to non-residential/commercial use, is not subject to any precondition to the effect that such liability would occasion only after the amount of such surcharge is recovered from the appellant. Furthermore, such liability to pay surcharge is a statutory liability of the respondent and that such liability cannot be shifted to the shoulders of the appellant. Furthermore, such liability to pay surcharge is a statutory liability of the respondent and that such liability cannot be shifted to the shoulders of the appellant. In the judgment of the Hon'ble Apex Court delivered in the case of Calcutta Gujrati Education Society (supra) it had been categorically declared that the burden of payment of surcharge as part of consolidated rate is only on the person putting the premises to nonresidential/ commercial use and that the imposition of the said surcharge for properties in use for non-residential/commercial purpose with apportionment of that liability only on persons using the property in the manner aforesaid, is a special feature of the Act applicable to Calcutta. In the backdrop of such declaration, the plea of the respondent to the effect that the primary liability to pay the surcharge is upon the owner is not sustainable. 18. A close scrutiny of the judgment impugned reveals that the suit had been dismissed as the appellant had not been able to exhibit and establish the coercive action undertaken by CMC against it and as the appellant, being primarily liable, had not actually paid the surcharge to the CMC. As such, it was the view of the Learned Court below that as the appellant was primarily liable to pay the surcharge and as the appellant had not paid the same, the suit was not maintainable though the burden of payment of surcharge was only upon the respondent who had put the premises to non-residential/commercial uses. 19. The law which emerges from the judgment of the Supreme Court in Calcutta Gujrati Education Society and Anr. v. Calcutta Municipal Corporation and Ors. (supra) read with the judgment of this Court in Satish Chandra Agarwalla & Ors. v. State Bank of India & Anr. (supra) is that the burden of surcharge as part of consolidated rate is only on the person putting the premises to non-residential or commercial use. It is the occupier who is solely responsible for payment of surcharge to the Corporation since the occupier puts the occupied portion of the premises into commercial use. Of course the owner may be the occupier as well. However, when the occupier fails to discharge its burden to the Kolkata Municipal Corporation Act, 1980, the Corporation proceeds against the owner. It is the occupier who is solely responsible for payment of surcharge to the Corporation since the occupier puts the occupied portion of the premises into commercial use. Of course the owner may be the occupier as well. However, when the occupier fails to discharge its burden to the Kolkata Municipal Corporation Act, 1980, the Corporation proceeds against the owner. This is obviously because the Kolkata Municipal Corporation Act casts an implied statutory obligation on the owner to realise the surcharge from the occupier and make payment of the same to the Corporation, for operational convenience. 20. Where an occupier does not discharge its burden of making payment of surcharge to the Corporation, the owner is burdened with the liability to make the payment, obviously by realising the same from the occupier. The failure of an occupier to deposit the surcharge exposes an owner to the risk of recovery proceedings including attachment and even sale of the premises. 21. An occupier who puts the premises or any part thereof to commercial use cannot avoid its liability to pay the surcharge. The surcharge would have to be paid to the Calcutta Municipal Corporation, or alternatively to the owner, on demand, for deposit to the Calcutta Municipal Corporation. There can be no doubt that the owner would have to deposit the amount with the Calcutta Municipal Corporation. In any case, if the owner did not do so the owner would expose himself to the risk of recovery and penal proceedings. 22. The contention of the respondent to the effect that as the appellant had not paid the amount of surcharge to CMC, it had no right whatsoever to recover the said amount from the respondent, is absolutely fallacious in as much as the burden of the surcharge as part of "consolidated rate" is only on the person putting the premises to non-residential or commercial use. 23. 23. In our opinion, there is no dispute that the respondent was in occupation of the said premises for the period from April 01, 1984 to March 31, 2000, during which the demand for payment of surcharge was made and that the said premises was admittedly put to non-residential and commercial uses by the respondent and that the absolute liability was upon the respondent to pay the said amount of surcharge as quantified to be Rs.3,36,384/- and that the suit was preferred for recovery of the said quantified amount of surcharge by the appellant for onward transmission to CMC. 24. In view of the observations made above, the judgment and decree dated 26th June, 2007, passed by the Learned Judge, Bench-VII, City Civil Court, Calcutta is not sustainable-in-law and that the same is accordingly set aside and quashed and the suit is decreed. 25. The lower court records be sent back along with the copy of the judgment, at the earliest. 26. Urgent Photostat certified copy of the judgment be supplied to the Learned Counsel of the parties, if applied for. I agree.