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2015 DIGILAW 909 (CAL)

Biswajit Samanta v. Dhakuria Service Centre

2015-11-18

HARISH TANDON

body2015
JUDGMENT : Harish Tandon, J. 1. The supplementary affidavit filed in Court today is taken on record. 2. It reminds me the well-known dictum of the Privy Council "the real trouble starts after the decree is obtained", which received the legal recognition from the Hon'ble Supreme Court, who approved and applied the said dictum. 3. This is one of the apparent examples of such dictum where a dealer of the Hindustan Petroleum Corporation Limited has approached the Executing Court for adjudication of his right, title and interest as Bharatia with further prayer that the decree obtained against the so-called thika tenant, that is Hindustan Petroleum Corporation Limited, is not binding. 4. Admittedly, a suit for recovery of possession was instituted way back in the year 1975 on the ground that the period provided in the lease deed has expired by efflux of time. It is a matter of record that the Hindustan Petroleum Corporation Limited was the defendant in the said suit and obviously contested the same with a defence available to it. 5. The record would reveal that the primary defence taken in the written statement was that they continued in possession under a renewal clause after exercising an option and, therefore, they cannot be evicted from the suit premises. Though it was not specifically pleaded in the written statement that they have acquired a status of a thika tenant under Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, but such plea was raised at the time of an argument. In absence of such pleading, naturally, there was no issue framed in this regard but such plea was taken under Issue No. 1, which relates to the maintainability of the suit before the Civil Court. 6. Initially, the Trial Court dismissed the said suit holding that the plaintiff was bound to renew the lease for the period provided therein on the existing terms and conditions. The said judgment and decree was carried to an Appellate Court under Section 96 of the Code of Civil Procedure. The Appellate Court affirms the judgment and decree of the Trial Court, which was further challenged before this Court in a second appeal. The second appeal was allowed and as a consequence whereof, the judgment and decree of both the Courts were set aside and the suit stood decreed in favour of the decree holder/petitioner. 7. The Appellate Court affirms the judgment and decree of the Trial Court, which was further challenged before this Court in a second appeal. The second appeal was allowed and as a consequence whereof, the judgment and decree of both the Courts were set aside and the suit stood decreed in favour of the decree holder/petitioner. 7. The Hindustan Petroleum Corporation Limited did not stop there but took out an application for review before this Court, which could not yield fruitful result. The order dismissing the application for review was assailed before the Hon'ble Supreme Court under Article 136 of the Constitution of India and at the time of taking up the said application it was informed that the possession has already been taken by the decree holder/petitioner. The Apex Court after recording the said fact ultimately did not find any grounds warranting the leave to be granted in favour of the Hindustan Petroleum Corporation Limited and finally dismissed the said Special Leave Petition. 8. Now, it is the turn of the dealers to activate the legal process taking advantage of the provisions contained under Order 21, Rule 97 to 101 of the Code. The sum and substance of the said application of the dealers is that by virtue of an agreement between the Hindustan Petroleum Corporation Limited with them, they have acquired the status of a Bharatia and, therefore, they cannot be evicted on the basis of the alleged decree. It is the specific stand of the dealers that the Hindustan Petroleum Corporation Limited was, in fact, a thika tenant in respect of the decreetal premises and by virtue of the provisions contained in Act of 1981 the land had vested to the State thereby taking away the right, title and interest of the decree holder in respect thereof. 9. It admits no quarrel to the fact that the application under Order 21, Rule 101 of the Code is still pending before the Executing Court and has not been decided finally. In the said proceeding, an application was taken out restraining the decree holder from dealing with and/or disposing of and/or alienating and/or encumbering or creating third party right in respect of the decreetal premises and also from changing the nature and character thereof. The Executing Court declined to pass the order in favour of the dealer, who challenged the said order before the Appellate Court. The Executing Court declined to pass the order in favour of the dealer, who challenged the said order before the Appellate Court. The Appellate Court reversed the said order and directed the decree holder/petitioner to ensure that the underground reservoir of the petroleum products are not disturbed or harmed in any manner till the disposal of the injunction application. 10. At the very outset, this Court must record that there is a doubt whether an appeal could at all be maintainable before the Appellate Court. Since none of the parties have raised such an issue, this Court is not entering into such aspect and decided to proceed with the matter on merit. 11. Mr. Sabyasachi Bhattacharya, learned advocate appearing on behalf of the decree holder/petitioner, submits that the dealer cannot challenge the decree passed against the Hindustan Petroleum Corporation Limited claiming his right, title and interest as Bharatia when such plea was impliedly decided against the Hindustan Petroleum Corporation Limited. It is further submitted that even if it is accepted that the Civil Court did not decide such issue completely and finally, even then the Hindustan Petroleum Corporation Limited as well as the dealer are estopped from raising such issue under Explanation 4 to Section 11 of the Code. 12. He audaciously submits that the agreement relied upon by the dealer does not remotely suggest the creation of a tenancy and is, in fact, a simpliciter agreement for dealership and, therefore, the claim of the dealer as Bharatia is afterthought, concocted and engineered for the purpose of putting fetter on his client to enjoy the usufruct of the said decree. Lastly, it is submitted that an application has been taken out by his client before the Executing Court to pass a direction upon the Hindustan Petroleum Corporation Limited to take the materials stacked at the decreetal premises, which is still pending. 13. Mr. S.P. Mukherjee, learned advocate appearing on behalf of the opposite party nos. 1 to 4, vehemently submits that there are convincing documentary evidence evincing the claim of thika tenancy, which is required to be adjudicated by the Executing Court under the provisions of Order 21, Rule 101 of the Code. 14. 13. Mr. S.P. Mukherjee, learned advocate appearing on behalf of the opposite party nos. 1 to 4, vehemently submits that there are convincing documentary evidence evincing the claim of thika tenancy, which is required to be adjudicated by the Executing Court under the provisions of Order 21, Rule 101 of the Code. 14. He, however, submits that recourse to such provision can be taken by a third party, who is not arraigned as party in the original proceeding, which culminated into a decree and the Executing Court is, therefore, obliged to determine the right, title and interest under the said provision. He strongly submits that since the materials are admittedly lying in the decreetal premises, it cannot be construed that the possession has, in fact, been taken by the decree holder/petitioner through proper recourse to law. Mr. Mukherjee is very much vocal in saying that the articles worth crores of rupees have been allowed to loose its value because of the act of the decree holder/petitioner and his client has to suffer such loses for no fault of his own. In support of the contention that the Executing Court is competent to decide the right, title and interest of a third party, not bound by the decree, the reliance is placed upon the following judgments: Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd. and Others, reported in (1996) 4 SCC 144 , Sanjib Chakraborty and Another v. Ramanath Ghosh, reported in 2003 (3) CLT 500 and Bibhuti Bhusan Dutta v. Samarendra Nath Misra, reported in 2002 (3) CHC Notes 482. Mr. Mukherjee would further submit that after the promulgation of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, the power of the Civil Court to determine the status of a person as thika tenancy has been taken away and is vested upon the thika controller and, therefore, the decree passed by the Civil Court is not binding upon his client. To buttress the aforesaid submission, Mr. Mukherjee relies upon a judgment of the Hon'ble Supreme Court in case of Dwarika Nath Acooli v. Dulal Chandra Bayen and Others, reported in (2009) 2 SCC 403 . Mr. To buttress the aforesaid submission, Mr. Mukherjee relies upon a judgment of the Hon'ble Supreme Court in case of Dwarika Nath Acooli v. Dulal Chandra Bayen and Others, reported in (2009) 2 SCC 403 . Mr. Mukherjee, thus, concluded his submission that once the plea of thika tenancy is raised before the Executing Court it is incumbent on the part of the Executing Court to determine and decide such dispute irrespective of the fact that the decree for recovery of possession is affirmed up to the Hon'ble Supreme Court. 15. Mr. Ambar Majumdar, learned advocate appearing on behalf of the opposite party no. 5, strenuously submits that the plea of thika tenancy was never adjudicated and/or decided finally by a Civil Court trying the main suit, even such issue was raised at the time of an argument. He heavily relies upon the observations of the Trial Court where such issue was recorded to have been raised at the argument but declined to adjudicate in absence of such plea being raised in a pleading. According to Mr. Majumdar, once the Court did not decide an issue, which is important and has bearing on the rights of the parties, the same can be adjudicated and determined by the Executing Court under Order 21, Rule 101 of the Code. He further submits that thika controller, who has been vested with the power to determine the status of a person as thika tenant, has already issued a notice and pending such adjudication, the Court has rightly passed an interim order and, therefore, no interference is called for in this revisional application. He summed up his argument with the submission that the Act of 2001 impliedly excludes the jurisdiction of the Civil Court in adjudicating any matter relating to the said Act and vested upon the thika controller. 16. Having heard the respective submissions, the point, which hinges in this revisional application, is whether a person, not the judgment debtor, can raise an issue under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, that the judgment debtor is, in fact, a thika tenant and he acquires an immunity from eviction on the strength of a decree passed by the Civil Court. 17. Admittedly, the suit for recovery of possession was instituted way back in the year 1975 when the Calcutta Thika Tenancy Act, 1949 was in vogue. 17. Admittedly, the suit for recovery of possession was instituted way back in the year 1975 when the Calcutta Thika Tenancy Act, 1949 was in vogue. The plaint simpliciter proceeds that by virtue of a deed of lease dated 15th March, 1957, the property was demised unto the Hindustan Petroleum Corporation Limited initially for a period of nine years containing a clause of renewal for like period on existing terms and conditions. 18. During the pendency of the said lease, another lease was executed on 9th July, 1960 for a period of five years and eight months containing the renewal clause, by which the period can be extended for a further period of nine years. 19. After the expiry of the terms provided therein and in absence of exercise of option for renewal, the decree holder/petitioner filed the suit for recovery of possession. 20. It appears that subsequently an intention was shown by the Hindustan Petroleum Corporation Limited to renew the said lease but the parties cannot arrive to a consensus. A plea was taken in the written statement that once the option for renewal is exercised, the continuance in possession should be deemed to be under a renewal clause and, therefore, the Hindustan Petroleum Corporation Limited cannot be directed to hand over the possession on an expiration of the initial term. 21. A further plea appears to have been taken as a defence is under the Esso (Acquisition of undertaking in India) Act, 1974. By virtue of the said Act, it is sought to be contended by the Hindustan Petroleum Corporation Limited that the right, title, interest and liabilities of Esso Eastern Inc. came to be vested in the Government of India with effect from 1st January, 1971 and, subsequently, received sanction with regard to the change of name by the Hindustan Petroleum Corporation Limited and, therefore, if the option is exercised by the Central Government it would be deemed to have been exercised by the Hindustan Petroleum Corporation Limited and, therefore, the relief for recovery of possession is not available. 22. Before the Trial Court, an argument was advanced that because of the promulgation of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, the right, title and interest of the Jamindar (holder of the land) came to be vested with the State Government and the thika tenant became the tenant directly under the State. 22. Before the Trial Court, an argument was advanced that because of the promulgation of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, the right, title and interest of the Jamindar (holder of the land) came to be vested with the State Government and the thika tenant became the tenant directly under the State. The Trial Court rejected the aforesaid contention as the Hindustan Petroleum Corporation Limited was not found to have continued in possession under the renewal clause with further observation that such plea having not taken by the Hindustan Petroleum Corporation Limited in the written statement cannot be allowed to be agitated at the last moment. 23. From the meaningful reading of the entire discussions made in the said judgment of the Trial Court, the suit was dismissed solely on the ground that because of promulgation of Esso (Acquisition of undertaking in India) Act, 1974, the Central Government, in fact, exercised an option for renewal for further period of ten years from February to May, 1975 and, therefore, the plaintiff was bound to renew the said lease for such period on the existing terms and conditions. The Appellate Court concurs and affirms the findings of the Trial Court without making any independent findings on any of the issues raised before the Trial Court. In the second appeal, both the judgments and decrees were reversed by this Court with categorical finding that once the period (original and renewed) expired in course of the proceeding, the Hindustan Petroleum Corporation Limited is not entitled to remain in possession. 24. This Court thought that it is not necessary to delve into the question whether the option for renewal was, in fact, exercised strictly in terms of the renewal clause or not but proceeded to take into account the subsequent events that even the lease is treated to have been renewed and the Hindustan Petroleum Corporation Limited is found to have continued in possession under the renewal clause, the renewed tenure had also expired and, therefore, it is not open to the Hindustan Petroleum Corporation Limited to remain in possession perpetually. 25. The application for review of the judgment of this Court in second appeal was further dismissed, as the Court did not find any grounds warranting interference. 26. 25. The application for review of the judgment of this Court in second appeal was further dismissed, as the Court did not find any grounds warranting interference. 26. According to the Hindustan Petroleum Corporation Limited, the plea of thika tenancy was neither directly or substantially in issue of the suit nor have been finally decided and/or adjudicated by the Trial Court. Admittedly, the plea of thika tenancy was never raised by the Hindustan Petroleum Corporation Limited in the written statement nor a specific issue in this regard was framed by the Trial Court. Such plea was sought to be agitated under Issue No. 1, which relates to the maintainability of the suit and the Trial Court declined to hold that the suit in such form is not maintainable. If the plea, which was available to the Hindustan Petroleum Corporation Limited, having not been raised and agitated in the pleading nor there was a specific issue framed in this regard, such plea cannot be re-agitated and/or reopened at the execution stage. 27. Explanation 4 to Section 11 of the Code is a complete answer to this and it would be deemed that plea available to the Hindustan Petroleum Corporation Limited having not taken in the pleading or in a suit shall not be allowed to be agitated in a subsequent proceeding. Furthermore, the Executing Court cannot travel beyond the decree. The Executing Court cannot re-open the decree and make a de novo trial to scrutinise whether the judgment passed in a civil suit is legally sustainable or not or whether all issues have been correctly answered and addressed by the Court. 28. Once the Hindustan Petroleum Corporation Limited has suffered a decree from the Civil Court, it is not open to it to reopen an issue before the Executing Court. In fact, the Hindustan Petroleum Corporation Limited has not approached the Executing Court directly but has pushed its dealer to take such plea having conscious of the legal position and invited the Executing Court to open the decree in the garb of Order 21, Rule 101 of the Code. 29. Mr. Mukherjee is right in his contention that a third party, who is not bound by the decree, can approach the Executing Court under Order 21, Rule 97 to 101 of the Code to adjudicate his right, title and interest with further relief that the decree does not bind him. 30. 29. Mr. Mukherjee is right in his contention that a third party, who is not bound by the decree, can approach the Executing Court under Order 21, Rule 97 to 101 of the Code to adjudicate his right, title and interest with further relief that the decree does not bind him. 30. Since the aforesaid provision barred the institution of the suit at the instance of the third party, it is imperative on the Executing Court to adjudicate the issue, if raised. The right to approach the Executing Court and right to have an interim protection in such proceeding are two different, distinct and individual instances. In order to get the interim protection, the Executing Court is guided by three principles, namely, the existence of prima facie case, the balance of convenience and inconvenience and irreparable loss and injury. The interim protection is not automatic in the sense that once the approach is made, the Executing Court had no option but to stay the execution proceeding even if vexatious and frivolous objections have been raised in the said proceeding. 31. The entire objection is raised on a status of a Bharatia and the protection under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, one must not over look the well-known legal maxim "nemo dat quod non habet" meaning that a person cannot give what he does not have. The status as a Bharatia can only be recognised when the inductor has been declared as thika tenant and not otherwise. In the instant case, the Hindustan Petroleum Corporation Limited has not been declared as thika tenant and found to have possessed the property under a lease, which expired by efflux of time, the petitioner cannot elevate his status higher than the status of his inductor. Once the Court found that a person is holding the property under a lease and after expiration of the lease he has no right to remain in possession in any capacity including the capacity of a thika tenant, he cannot subsequently take a rebound and say that such plea, which was available to him or a plea raised by the Court but not determined, can be reopened and/or re-agitated before the Executing Court. 32. The proposition of law enunciated in the judgments, namely, Samir Sobhan Sanyal (supra), Sanjib Chakraborty and another (supra) and Bibhuti Bhusan Dutta (supra), as relied upon by Mr. 32. The proposition of law enunciated in the judgments, namely, Samir Sobhan Sanyal (supra), Sanjib Chakraborty and another (supra) and Bibhuti Bhusan Dutta (supra), as relied upon by Mr. Mukherjee, do not require any deliberation as those are well settled. The Executing Court, if approached, is bound to adjudicate the right, title and interest under the aforesaid provision but once the party seeks interim protection, the Executing Court is not denuded of its power to record its finding on the existence of a prima facie case, balance of convenience and inconvenience and irreparable loss and injury. 33. My attention is further drawn to a memorandum of agreement entered into between the Hindustan Petroleum Corporation Limited and the dealer, which is a foundation of a claim as Bharatia in respect of a decreetal property. I am not unmindful of proposition of law that in order to ascertain whether a person is merely a permissive occupant or is occupying in such status, which is protected under the Act, the intention of the parties are the relevant consideration. The nomenclature of a document is not a determinant factor if such right is based on a legal document as the terms and conditions embodied therein may be the factors to decide the real intention of the parties. The said agreement postulates that the permission and licence was granted to the dealer to use the outlet for the purpose of selling the product of the Hindustan Petroleum Corporation Limited and to pay a fixed monthly compensation for use of such outlet. 34. Clause (4) of the said agreement clearly provides that the right created under the said agreement shall not be construed as creating the right of tenancy in favour of the dealer. In this regard, a reference can be made to a judgment of the Hon'ble Supreme Court in case of Delta International Limited v. Shyam Sundar Ganeriwalla and another, reported in (1999) 4 SCC 545 , wherein it is held that when the parties to the document were fully aware that lease or sub-lease could not be granted, it is not possible to accept the contention that the intention of the parties was to create a lease or a tenancy in respect thereof. It would be relevant to quote the relevant excerpts from paragraph 20 of the said judgment, which runs thus: "The aforesaid term of the document is not provided by an illiterate layman or poor person in need of some premises for his residence or business, but is executed by two companies where it can be presumed that it is mentioned after full understanding and to avoid any wrong inference of intention. It specifically mentions that only a license was created and not a lease. The said clause is in positive as well as negative form providing that the agreement was a licence and should not be treated or used or dealt with or construed by the parties in any way as lease or to confer any relationship as landlord and tenants between the parties. When the parties which are capable of understanding their rights fully, expressly agreed and declared that document should not be construed in any manner as creating any relationship, as landlord and tenant between them, it would be impermissible to conjecture or infer that their relations should be construed as that of landlord and tenant because of certain terms mentioned in the deed can have double intendment. As stated above, intention of the parties is the meaning of the words they have used and there could be no intention independent of that meaning. The learned Single Judge of the High Court rightly, therefore, held that this clause stares in his face in construing it as a lease deed." 35. Furthermore, Section 27 of the Act of 2001, which is a repealing and saving clause, does not affect the legal proceeding or remedy in respect of any such right but permits the continuance of such proceeding as if the said Act has not been passed. It is not in dispute that the suit was instituted way back in the year 1975 when neither the Act of 1981 nor the Act of 2001 was promulgated and, therefore, such proceeding is protected and saved under the repeal and saving clause contained in both the aforesaid Acts. 36. Once the possession is taken through recourse to law and the Executing Court is still in seisin of the matter, mere presence of articles of judgment debtor or a third party cannot be construed that the possession, in fact, has not been taken. 36. Once the possession is taken through recourse to law and the Executing Court is still in seisin of the matter, mere presence of articles of judgment debtor or a third party cannot be construed that the possession, in fact, has not been taken. Furthermore, the decree holder has taken out an application for direction upon the judgment debtor to take the articles lying on the decreetal premises. 37. The articles, which are lying, are not the ordinary articles, which can be stored and/or stacked at any place. The articles are combustible and hazardous in nature and require a special kind of storage. 38. This Court, therefore, cannot accept the plea of the dealer that the possession has not been legally recovered by the decree holder. The aforesaid contention is further not acceptable as the Special Leave Petition was dismissed by the Hon'ble Supreme Court recording that the possession has been delivered to the decree holder. 39. In whatever angle this Court looks is unable to persuade with the findings recorded by the Court of Appeal below on existence of a prima facie case. Bearing in mind the nature of the substance stored in the decreetal premises, the locality shall be at risk in case of any accident occurred and, therefore, passing an order to keep those articles in the same position is unwarranted and, therefore, cannot be sustained. 40. Since an application for direction upon the judgment debtor to remove the said articles is pending before the Executing Court, it is expected that the Executing Court shall take utmost steps to dispose of the said application. 41. The order impugned, therefore, suffers from illegality and/or infirmity and the same is hereby set aside. The revisional application is allowed. 42. The Executing Court is further requested to take all endeavours to dispose of the said proceeding as expeditiously as possible without granting unnecessary adjournment to either of the parties and preferably within three months from the date of communication of this order. 43. The observations made herein above are mere tentative and is only on the application for temporary injunction and, therefore, the Executing Court shall not be swayed by any observations made herein at the time of disposal of the main application.