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2015 DIGILAW 387 (CAL)

Ananda Mohan Roy v. Hara Prasad Mookerji

2015-05-04

JOYMALYA BAGCHI, MANJULA CHELLUR

body2015
JUDGMENT 1. The appellant is before us, aggrieved by the impugned order dated 13th March, 2015 which was passed by the learned single Judge in Execution Proceeding No. 152 of 2010. 2. The challenge is to the direction given by the learned single Judge to the Receiver to handover the premises to respondent Corporation. According to appellant that the respondent/corporation can take steps in the matter in terms of the order passed by the Division Bench of this Court on earlier occasion. According to learned Senior Counsel Mr. P.K. Datta, arguing for the appellant this would mean that West Bengal Small Industries Development Corporation is permitted to re-enter the premises in question after due termination of lease, therefore, the same cannot be allowed directly as there was no such direction. 3. We have gone through the judgment of learned single Judge. We have also taken into consideration the argument of learned Senior Counsel Mr. Choudhuri, arguing for respondent/corporation as well as learned Senior Counsel Mr. Mitra, arguing for third party/decree holder. 4. The property in question was given on lease to appellant by the respondent/corporation for certain number of years. During the subsistence of lease the right and interest acquired by the appellant under the deed of lease were attempted to be sold in public auction by decree holder/third party. It is also not in dispute that Receiver came to be appointed to take possession of the property in question. There was discharge of Receiver, however, by Division Bench Order the Receiver was put back into possession of the property in question. It is also pertinent to mention that Bank of Baroda lent money to the lessee i.e. appellant in order to secure the said loan. The unspent period of lease by which certain right and interest were created in favour of the appellant were hypothecated or mortgaged to the bank. This is approved by the respondent corporation. It is also placed on record that even according to Bank of Baroda, the payments are not regular. As on today there is one private respondent who is a decree holder already and there is a claim of Bank of Baroda so far as the appellant industry is concerned. It is not in dispute that the property is in possession of the Receiver. As on today there is one private respondent who is a decree holder already and there is a claim of Bank of Baroda so far as the appellant industry is concerned. It is not in dispute that the property is in possession of the Receiver. As a matter of fact, challenging the order of the Division Bench, Special Leave Petition came to be filed before the Hon ble Apex Court by the appellant raising several questions of law, including the rights of third parties and also creditors vis-a-vis terms and conditions especially Clause 6 of Lease Deed, between appellant and respondent corporation. Fact remains the Special Leave Petition was dismissed and order of Division Bench stood unaltered as on today. On going through the contents of earlier Division Bench order, the Division Bench clearly indicates the claim of respondent corporation to re-enter into the premises could be considered after expiry of three months, if occasion so arises, if the proposed sale was not concluded within the stipulated period. The fact remains, said sale has not fructified into a positive action till date. In the meanwhile, Bank of Baroda has already said to have initiated proceeding under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and even symbolic possession was taken in terms of Section 13(4) of the Act. Learned single Judge in the impugned order has only said in terms of earlier Division Bench order actions have to be pursued and proceeded with. As stated above the Receiver is in possession of the property. It is necessary to quote Clause 6 of the lease document in order to understand the factual situation as on today which reads as under "6. As stated above the Receiver is in possession of the property. It is necessary to quote Clause 6 of the lease document in order to understand the factual situation as on today which reads as under "6. Provided always and it is expressly agreed by and between the parties hereto that if the rent, charges or expenses herein reserved or any part thereof or interest thereon or any part thereof shall remain unpaid for 3 (Three) months after the same became payable or if any covenant on the part of the Lessee therein contained shall not be performed of if the demised premises be not used by the Lessee for the purpose of which it is being demised (within the twelve months from the date of presents) or if the factory of manufacturing units to be created and established thereon as provided by these present remains closed consecutively for 6 (six) months without reasonable cause or causes beyond the control of the Lessee or if the Lessee becomes insolvent of the firm dissolved or if the leasehold property and/or the structure be attached or if a Receiver be appointed of the demised premises or the buildings and structures to be created thereon or of the plant machines and appliances therein due to any acts done or omitted to be done by the Lessee and/or agent or any partner admitted in the said business or the Lessee with the prior approval as hereinabove mentioned it shall be lawful for the Lessor at any time to determine the lease and re-enter upon the demised premises or any part thereof in the name of the whole and thereupon this demise shall absolutely determine without prejudice to the rights of the Lessor or any other remedies available to the Lessor in respect of breach of the Lessee s covenants herein contained. Provided further, that if the demised premises is kept closed for a period longer than 6 (six) months without reasonable cause or causes beyond the control of the Lessee or if the same be vacated without notice and/or previous consent in writing of the Lessor, this lease will be deemed to have been surrendered with effect from the date as will be determined by the Lessor and it shall be lawful for the Lessor to take immediate possession thereof and remove the machinery and materials, if any, therein and in such event the Lessor shall not be liable for action or for damages and such recovery of possession will be without prejudice to any other rights of action of the Lessor and that it shall also be lawful for the Lessor to sell the articles, after 15 days notice to the Lessee by auction or private treaty and appropriate the proceeds thereof for liquidation of arrears of Lessor s dues, if any, and in case of any surplus remaining to refund the balance, if any. PROVIDED ALWAYS AND IT IS HEREBY FURTHER AGREED AS FOLLOWS: (i) All amounts remaining due and payable by the Lessee to the Lessor shall constitute a charge upon the sheds, structures, machineries and all other assets of the Lessee situate in the demised premises. (ii) The Lessee may, however, hypothecate or charge or mortgage the leasehold interest, the machineries and assets with a Bank or any Financial Institution to obtain advance for the purpose of the business of the Lessee. (iii) Any notice required to be served hereunder shall be deemed to have been served if sent by registered post at the address of the Lessee given herein or at such address as the Lessee may hereafter intimate in writing and a notice sent by post will be deemed to have been served at the time it is ordinarily expected to be delivered. (iv) All moneys due payable by the Lessee shall be realisable as public demand under the West Bengal Public Demands Recovery Act or any Statutory modification thereof for the time being in force. (iv) All moneys due payable by the Lessee shall be realisable as public demand under the West Bengal Public Demands Recovery Act or any Statutory modification thereof for the time being in force. (v) Should the Lessee duly pay the rent, charges and expenses and faithfully perform and observe the conditions herein on the part of Lessee in that event the Lessee will be entitled to renewal of lease on such terms and conditions as may be agreed by and between the parties hereto upon the Lessee giving notice of such intention for such renewal at least 6 (six) months prior to expiration of the period of demise then subsisting. Further provided, that in case the Lessee agreed to pay the rent on installments, the Lessor may determine the Lease on default of two installments and can take possession of the demised premises by giving one month s notice and the Lessee is not entitled to get any refund of the sum paid prior to the determination of lease. 5. In terms of above clause the lessor has a right to initiate action or act in terms of the above clause is on happening of a contingency mentioned therein. In that view of the matter, according to us absolutely there is no defect so far as the impugned order is concerned and we do not need to interfere with the same. 6. Hence, the appeal is dismissed, so also the application. Appeal dismissed.