JUDGMENT : Ashim Kumar Banerjee, J. F.A. 30 and 31 of 2009 are two appeals arising out of the common judgment and decree passed in an eviction proceeding. The facts would reveal, Anglo India Jute Mills Company Limited was the owner of flat No. 34 at Woodland Estate, premises No. 8/7 Alipore Road Calcutta. The premises were comprised of a total area of about 190 square feet. At one point of time, Duncan International India Limited and Anglo India Jute Mills Company Limited were under the same management of one Goenka family. Duncans were using the flat belonging to Anglo India where one of their officers was residing. The facts would depict, Anglo India became sick and was referred to the Board of Industrial and Financial Reconstruction (herein after referred to as BIFR). We would not go in detail as to the BIFR proceeding. Ultimately, as per the sanctioned scheme the present management of Anglo India took over charge of the company and demanded vacant possession of the flat in question that Duncans denied. Initially Duncans took the plea, they were having a claim against Anglo India in repayment of such loan. Duncans were adjusting the rent payable in respect of the flat as a tenant. Duncans would claim, they were inducted as a tenant with effect from April 1, 1991 at a monthly rental of Rs. 10000. Duncans paid and/or adjusted the rent for the period April 19, 1991 to December 1994. Subsequently, they tendered rent and ultimately started depositing rent in Court at the said rate. Anglo India totally denied the landlord-tenant relationship. According to them, once Anglo India came out of the fold of Goenkas they were not entitled to retain possession that would amount to tress-pass. Duncans filed a suit being Title Suit No. 5 of 1996 inter-alia, claiming a declaration, they were tenant in respect of flat and prayed for consequential injunction restraining Anglo India from disturbing their possession. Anglo India filed a suit being Title Suit No. 53 of 2001 inter-alia, claiming recovery of possession as well as mesne profit. Learned Judge heard both the suits analogously and dismissed the suit of Duncans and decreed the suit of Anglo India and asked the Duncans to deliver up vacant possession. 2. Anglo India filed a suit being Title Suit No. 53 of 2001 inter-alia, claiming recovery of possession as well as mesne profit. Learned Judge heard both the suits analogously and dismissed the suit of Duncans and decreed the suit of Anglo India and asked the Duncans to deliver up vacant possession. 2. Being aggrieved, the Duncans preferred both the appeals, one against the dismissal of their suit and the other against the decree for recovery of possession. The Division Bench vide judgment and Order dated January 15, 2009 asked the appellant to pay occupation charges at the rate of Rs. 65000 for the period February 1994 till July 1998 and thereafter at the rate of Rs. 1.3 lacs till the disposal of the appeal. The appellant did not comply with the said direction that resulted in vacating of the order of stay. Anglo India got the decree executed and obtained possession by dispossessing Duncans. The present appeal would thus effectively deal with the question of mesne profit. RIVAL CONTENTIONS: 3. Mr. Joydeep Kar learned Counsel appearing for the appellants would attack the judgment and decree impugned on two fold grounds: i. In absence of a notice under Section 106 of the Transfer of Property Act or any appropriate notice under the West Bengal Premises Tenancy Act, the suit for eviction was not maintainable hence, the decree was liable to be set aside. ii. The learned Judge, while deciding the issue, relied on the finding of the Court made by his predecessor under Section 17(2) of the Premises Tenancy Act that would make the decree null and void. 4. To support his contention, Mr. Kar would rely upon four decisions of this Court: 1. Badrilal v. Municipal Corporation of Indore, reported in All India Reporter 1973 Supreme Court Page 508. 2. East India Hotels Limited v. Syndicate Bank, reported in 1992 supplementary Volume-II Supreme Court Cases Page 29. 3. Kayamuddin Shamsuddin Khan v. State Bank of India, reported in Volume-VIII Supreme Court Cases Page 676. 4. Dwarka Nath Pyne v. Abhijit Sanyan & Another, reported in 2008 Volume IV Calcutta Law Times Page 206. 5. Mr. Kar would also rely upon the order of the Apex Court appearing in the supplementary paper book that dismissed the Special Leave Petition of Anglo India as against the judgment and order of the Delhi High Court in the BIFR proceeding. 5. Mr. Kar would also rely upon the order of the Apex Court appearing in the supplementary paper book that dismissed the Special Leave Petition of Anglo India as against the judgment and order of the Delhi High Court in the BIFR proceeding. Pertinent to mention, the Delhi High Court Division Bench order also dealt with the issue of subject tenancy. 6. Mr. Kar would place his plaint particularly, paragraph 9, 10, 12 and 17 to support his contention. He would also rely upon the documents tendered in evidence on behalf of Duncans. According to him, the tenancy was not in dispute in the BIFR proceeding hence, the suit filed by Anglo India making a plea of trespass would not be tenable and the eviction decree in absence of a notice under Section 106, would be liable to be set aside. 7. Per contra, Mr. Sabyasachi Chowdhury learned Counsel would also rely upon the relevant discussion in the matter of the Delhi High Court. He would refer to internal page-8 of the said decision. The relevant paragraph relied upon by Mr. Chowdhury is quoted below: "Claim of the petitioner Company that the flat is tenanted to it by respondent No. 7 is sham and fictitious in as much as there is no lease agreement and no Board Resolution of respondent No.7 authorising anyone to create tenancy: tenancy plea is malafide and is an abuse of process of law as tenancy is claimed by erstwhile promoter of respondent No.7 in addition to respondents Nos. 8 and 9, who also own 83.68 shareholding in the petitioner Company: no rent was paid from April, 1991 to March, 1992." 8. Elaborating his submission, Mr. Chowdhury would contend, the documentary evidence tendered during trial would relate to, at best, post-suit documents showing tender of rent and deposit thereof. Those documents would have no effect on the issue. He was also critical about the date of deposit. According to him, the Duncans claimed, they adjusted rent up to 1994 however, one year rent was sent for the first time by letter dated July 18, 1996 that would ex facie demonstrate the falsity of claim. Moreover, the creation of tenancy was never backed up by any Board resolution. The so-called adjustment did not have any contemporaneous record. According to him, initially, the reference before BIFR was made in 1987. Moreover, the creation of tenancy was never backed up by any Board resolution. The so-called adjustment did not have any contemporaneous record. According to him, initially, the reference before BIFR was made in 1987. The draft scheme was prepared in 1989 hence, the so-called creation of tenancy in 1991, keeping the BIFR in the dark, was not permissible at all. He would also complain, the resident Association would demand monthly maintenance charges that Duncans never paid, Anglo India was and still is paying maintenance charges, presently at the rate of 7000 per month. 9. Resuming his submission on the next day, Mr. Chowdhury would try to confront the submission of Mr. Kar on Section 17(2) findings. According to him, the documents relied upon by Duncans before the learned Judge in Section 17(2) proceeding was again used during final trial. No new document was tendered hence, the learned Judge, although a different person, come to the same conclusion. Mr. Chowdhury would rely upon two passages, one from Halsbury and the other from Byles on Bills of Exchange. The relevant portion is quoted below: "As rent constitutes a debt of equal degree with a specialty debt, it is not discharged by the landlords act in accepting a bill of exchange or promissory note; such a bill or note is a conditional payment only, that is, it does not operate as satisfaction until it is paid, in the absence of specific agreement to the contrary." "A plea of payment of a bill should be supported by proof of payment in money, and not merely by proof of a satisfaction of it by an agreement. If payment otherwise than in money is alleged, it must be proved that the party to whom such payment was made elected to treat a payment in that form as equivalent to a payment in money. Thus if bonds are accepted in payment, the payment is good though they prove to be valueless. A cheque is normally conditional payment, the debt reviving on tis dishonour." 10. Mr. Chowdhury further confronted Mr. Kars contention to the effect, tenancy was not in dispute in the proceeding. According to him, the dispute was already raised contemporaneously that would be apparent from the Balance Sheet. Mr. Chowdhury would refer to Sections 18(8) and 22 of the Sick Industrial Companies (Special Provisions) Act 1985 (hereafter referred to as SICA). Mr. Chowdhury further confronted Mr. Kars contention to the effect, tenancy was not in dispute in the proceeding. According to him, the dispute was already raised contemporaneously that would be apparent from the Balance Sheet. Mr. Chowdhury would refer to Sections 18(8) and 22 of the Sick Industrial Companies (Special Provisions) Act 1985 (hereafter referred to as SICA). Section 18(8) would provide as and when the sanctioned scheme would come in operation the same would be binding on the sick industrial company and/or the Transferee Company, as the case may be, including the other company, shareholder, creditors, guarantors, employees and all concerned. Section 22 would suspend all contracts during the period when the scheme was in operation that would be de hors the scheme. Relying on these two provisions, Mr. Chowdhury would contend, the scheme was in operation in 1989. In 1991, the tenancy was alleged to have been created that would be de hors the sanctioned scheme prevalent at the relevant time. He would lastly rely upon the decision of this Court in the case of Mather and Platt (India) Limited v. J. Thomas and Company Private Limited, reported in 2000 volume 1Calcutta Law Times Page 268 to support his proposition, mere payment of rent would not create any landlord tenant relation. Paragraphs 14 and 23 were relied upon in this regard. 11. Per contra, Mr. Joydeep Kar, learned Counsel while giving reply would distinguish Section 18(8) of SICA to contend the subject property was not a part of the said scheme. Hence, the same would not have any effect on the issue in this regard. He would rely upon the Delhi High Court judgment in the B.I.F.R. Proceeding in this regard. According to him, similar analogy would apply in case of applicability of Section 22. He would contend, Section 18(8) came in force in February 1, 1994 and as such even if the property was a part of the first scheme, the said provision would not apply. 12. Resuming his argument on the next day Mr. Kar would suggest, neither of the pleadings would indicate, the first scheme included the subject property. The respondent never argued the same at any stage. Distinguishing the passage cited by Mr. Chowdhury from Halsbury and Byles, Mr. Kar would submit, the bankers cheques were as good as cash. The bankers cheques were duly tendered that the respondent accepted and never returned. The respondent never argued the same at any stage. Distinguishing the passage cited by Mr. Chowdhury from Halsbury and Byles, Mr. Kar would submit, the bankers cheques were as good as cash. The bankers cheques were duly tendered that the respondent accepted and never returned. It was their wish either to encash or not to encash the same. The appellant had nothing to do with the same. He would further contend, the T.D.S. certificates were duly received by the respondent. If those were utilized, that would itself establish the landlord tenant relationship. The tenancy was created in 1991, the then landlord did not raise any objection whatsoever, Exhibit 4 was a rent receipt for 1992 that the respondent never challenged that would establish the relationship. The respondent never made out any case of fraud, there was no transfer of tenancy hence, the decision in the case of Mather and Platt (India) Limited v. J. Thomas and Company Private Limited, reported in 2000 volume 1 Calcutta Law Times Page 268 would have no application. He would pray for setting aside of the decree passed by the learned Judge of the Court below. OUR VIEW: 13. We have considered the rival contentions. For creation of landlord-tenant relation the parties intending to take benefit of relationship must prove the same. 14. In the case of Badrilal v. Municipal Corporation (supra) the Apex Court observed, a person who is lawfully in occupation of the premises would not become trespasser and he would not become a tenant holding over, he would be a tenant in suffering. 15. In the case of Dwarka Nath Pyne (Supra), the learned Single Judge of this Court held, in order to determine the amount of rent payable by the tenant along with arrears, the Court would need to come to a prima facie finding on the existence of landlord-tenant relationship and not a definite and final finding. Learned Judge observed so while dealing with the proceeding under Section 17(2) of the West Bengal Premises Tenancy Act. 16. Another learned single Judge of this Court held the similar view in the case of Mather and Platt (India) Limited (Supra). His Lordship held, under section 17(2) it is the duty of the Court to determine the amount of rent payable by the tenant. 16. Another learned single Judge of this Court held the similar view in the case of Mather and Platt (India) Limited (Supra). His Lordship held, under section 17(2) it is the duty of the Court to determine the amount of rent payable by the tenant. The tentative finding of the Court regarding the landlord tenant relationship was the elementary basis to proceed further in determination of rent. 17. If we analyze the evidence, we would find, prior to filing of the suit by Duncans no document could be brought in evidence establishing the tenancy. According to Duncans, the tenancy was created in 1991, they were adjusting loan against their liability to pay rent. Not a single contemporaneous document could be produced to support such claim. The property would admittedly belong to the sick industrial company. Hence, the scheme of 1989 would definitely have some say. At that time, Goenkas were in common management of both the companies. They were occupying the flat in question, once the company changed hands in 1993 the Goenkas should have handed over the property back to the company owning the same. They did not do so. It is not correct to say, Anglo India did not object or that they admitted the tenancy. The records would reveal other wise that would support the stand of Anglo India. Delhi High Court considered the BIFR direction with regard to tenancy, they were of the view, BIFR stepped out while giving such direction and as such set aside the same that would not take away the right of the company to avail due process of law that they did subsequently. The dismissal of the Special Leave Petition at the instance of Anglo India would have no consequence on the lawful proceeding initiated by Anglo India. The suit filed by Duncans was prior in time. Learned Judge heard both the suits analogously. If we take Duncans suit first for consideration, we would find no evidence to support their claim for tenancy. Hence, their defence in the eviction suit on non-service of notice under Section 106 of Transfer of Property Act would not sustain. Once Duncans failed to establish the tenancy and Anglo India could prove the ownership, the decree of eviction was the obvious consequence. We do not find any scope to interfere. RESULT: 18. Appeal fails and is hereby dismissed. There would be no order as to costs. Once Duncans failed to establish the tenancy and Anglo India could prove the ownership, the decree of eviction was the obvious consequence. We do not find any scope to interfere. RESULT: 18. Appeal fails and is hereby dismissed. There would be no order as to costs. The parties would have liberty to proceed accordingly for determination of mesne profit. Arijit Banerjee, J. : I agree.