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2016 DIGILAW 830 (CAL)

Hari & Mahesh Private Limited v. Rajib Agarwal

2016-10-06

I.P.MUKERJI

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JUDGMENT : I.P. Mukerji, J. The plaintiff is a private limited company. It has its registered office at 24, Rajendra Nath Mukherjee Road, Kolkata-700 001. It claims eviction of the defendants from and possession of the 4th floor of premises no. 1, Park Lane, Kolkata-16. 2. Laxmi Shankar Agarwal and Mahesh Chandra Agarwal were brothers. Both are dead. The defendants are the sons of Laxmi Shankar Agarwal. 3. The suit premises is a five storeyed building. It was built in 1976. It is owned by the plaintiff company. 4. On 20th February, 2009 the plaintiff issued a notice to quit against the defendants (Ext.E). 5. In the written statement the defendants have pleaded that Laxmi Shankar Agarwal, Mahesh Chandra Agarwal and Hari Shankar Agarwal were three brothers and the principal shareholders of the plaintiff company. It was purchased from the fund contributed by the three brothers, although the ownership was with the company. Laxmi Shankar Agarwal contributed a major portion of the fund for construction of the building. 6. One Ashok Kumar Roy deposed for the plaintiff. He said in answer to questions 13 and 14 in examination-in-chief that after March 1974 Laxmi Shankar Agarwal had no “relation with the company”. 7. The second defendant deposed for the defendants. He said in answer to questions 4 to 35. That his father had started the family business. Apart from the plaintiff company there were other firms run by the family. The fund from the plaintiff and other firms including Devi Commercial were utilised by the brothers to buy the property at Park Lane. His father objected to the land being purchased in the name of the plaintiff. As he studied only upto standard-III, he could not understand the implication of the property being purchased in the name of the company. 8. Laxmi Shankar Agarwal died on 25th June, 1989. At the time of incorporation of the private limited company the share of Laxmi Shankar Agarwal was 1/3, the second defendant deposed. 9. Whether Laxmi Shankar Agarwal objected to purchase of the property in the name of the plaintiff company is pointless. This property was acquired on 26th July, 1974 by the company. No step had been taken by him at any point of time to challenge this acquisition of the property. 10. 9. Whether Laxmi Shankar Agarwal objected to purchase of the property in the name of the plaintiff company is pointless. This property was acquired on 26th July, 1974 by the company. No step had been taken by him at any point of time to challenge this acquisition of the property. 10. It has been established by evidence that at least after 1974, Laxmi Shankar Agarwal had no shareholding or any other stake in the company. 11. In the eyes of law the suit premises belongs to the plaintiff company. The defendants have been unable to disclose any kind of right whatsoever with regard to the ownership or possession of the suit premises. It appears that upto the date of issuance of the notice to quit dated 20th February, 2009 the defendants were residing in the suit premises as mere licensees. That licence was revoked from 20th February, 2009. Therefore the plaintiff is entitled to dispossess the defendants and recover possession of the suit premises. 12. It is also established that Mahesh Chandra Agarwal, Laxmi Shankar Agarwal and Hari Shankar Agarwal, as brothers used to carry on their family business. The plaintiff was a part of it. It cannot be ruled out that Laxmi Shankar Agarwal had contributed funds for the acquisition of this property. Although the property was in the name of the company, the members of the Agarwal family, including the branch of Laxmi Shankar Agarwal resided in it. As part of that family they are still residing there. But, the family is now broken. The feelings of mutual affection and the desire in the family members for joint enjoyment of the property have long evaporated. Now, there is a lot of acrimony between the families of Mahesh Chandra Agarwal and Laxmi Shankar Agarwal. The family of Mahesh Chandra Agarwal seems to be in control of the company and want eviction of the defendants. 13. There is little that this court can do because legally the suit premises is in the name of the plaintiff. 14. In the circumstances, I am inclined to grant one year’s time to the defendants to quit and vacate the premises and deliver vacant possession thereof to the plaintiff. The defendants should do so by 31st October, 2017. 15. It was beyond the contemplation of the defendants that they would be ousted from a property that they considered to be family property. The defendants should do so by 31st October, 2017. 15. It was beyond the contemplation of the defendants that they would be ousted from a property that they considered to be family property. Hence, they believed that the licence to remain in the suit premises continued. 16. Considering the facts and circumstances of this case that one branch of the family is trying to oust another branch who have been residing in the suit premises treating it as their family property for several decades, there is no question of granting mesne profit. 17. I pass a decree directing the defendants to quit and vacate the suit premises and handover vacant possession thereof to the plaintiff by 31st October, 2017. The claim for mesne profits made in the plaint in rejected. 18. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.