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2017 DIGILAW 296 (CAL)

State Bank of India v. Minakshi Poddar

2017-03-16

ASHA ARORA, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. This First Appeal is directed against an eviction decree dated 20th November, 2013 passed by the learned Civil Judge (Senior Division), 2nd Court, Alipore, Distract 24 Parganas (South) in title suit No. 10385 of 2011 at the instance of the defendant/tenant. 2. After filing the appeal an application being CAN No. 10320 of 2014 was filed by the defendant/appellant praying for stay of further proceedings of the Title Execution Case No. 7713 of 2014 pending before the Learned Civil Judge(Senior Division), 2nd Court, Alipore, District 24 Parganas (South). Conditional stay was granted. 3. The defendant/appellant was directed to deposit all arrear rents upto the month of May, 2011 at the contractual rate of Rs. 14,200.00 per month to the credit of the plaintiff/respondent in the executing Court within four weeks from date. 4. The defendant was further directed to deposit arrear occupational charges of the suit premises commencing from the month of June, 2011 upto the month of May, 2005 @ Rs. 1,45,000/- per month to the credit of the plaintiff/respondent in the Executing Court. The defendant/appellant was also directed to go on depositing the current occupational charges @ Rs. 1,45,000/- per month from the month of June, 2015 till the disposal of this appeal. 5. The defendant was also directed to pay its share of periodical rates and taxes including all arrears up to the current assessment period to the plaintiff/respondent within four weeks from the date of the order with a rider that for the subsequent assessment periods, the appellant will also go on paying its share towards the periodical rates and taxes to the plaintiff/respondent as and when such rates and taxes will become due and payable and demand will be made by the plaintiff/respondent. This arrangement was directed to be continued till the disposal of the appeal. 6. The defendant/appellant deposited Rs. 13,99,539.62 in terms of the aforesaid interim order passed by this Court and enjoyed all the benefits of the said interim order of stay of further proceedings of the Execution Case till 31st May, 2016 when they delivered the vacant and peaceful possession of the suit premises to the plaintiff/respondent in compliance with the decree for eviction passed by the learned Trial Judge. 7. Thus, in effect, the instant appeal has now become infructuous. 7. Thus, in effect, the instant appeal has now become infructuous. However, the same is kept pending for resolving a dispute which cropped up as to whether the payments which the defendant/appellant was required to pay and/or deposit for enjoying the benefits of the interim order of stay passed by this Court were sufficient in terms of the order passed by this Court or not. 8. The defendant/appellant though does not dispute its liability to pay the rates and taxes and the surcharge payable by it to the Kolkata Municipal Corporation but it denied its liability to pay penalty and/or interest which was demanded by the plaintiff and/or respondent. 9. It is contended by the learned advocate appearing for the bank that due to delayed payment of the Corporation rates and taxes and/or the surcharge by the landlord such penalty and/or interest was demanded by the Corporation. He thus, contends that had this property tax and/or the surcharge been paid by the plaintiff/landlord within the stipulated period of demand, the Corporation would not have demanded any amount on account of penalty and/or interest. He further contends that even the defendant/appellant was not informed about the payment which was made by the plaintiff/respondent on account of the property tax and/or surcharge to the Municipal Authority and no demand was raised by the plaintiff/landlord from the defendant/appellant in this regard. 10. As a result, such payment could not be made by the defendant/appellant to the plaintiff/respondent in time. He thus, disputes the liability of the defendant/appellant to pay any amount of money on account of penalty and/or interest. 11. Since such a dispute was raised by the bank, we appointed a learned advocate of this Court as Commissioner of Accounts, who from time to time submitted his report before this Court. In the report which was submitted by the learned Commissioner on 28th March, 2016, it was specifically mentioned in his report that plaintiff/respondent by his several letters written from time to time intimated the exact amount of money payable by the bank towards bank's share of taxes and commercial surcharge as per the demand raised by the Municipal authority and thus demanded the proportionate payment of discharge the liability of the bank towards payment of such property tax and/or the commercial surcharge etc. as per the Municipal Laws as well as the agreement between the parties. 12. as per the Municipal Laws as well as the agreement between the parties. 12. The particulars of such letters which were written by the plaintiff/respondent to the defendant/appellant were not only mentioned in the said report but those letters were all annexed to the said report. The learned Commissioner of Accounts ultimately reported that excepting a sum of Rs. 9,81,509/- nothing was paid by the defendant/appellant to the Plaintiff/respondent. The total liability of the defendant/appellant on account of property tax, surcharge, penalty has been quantified wherefrom it appears that a sum of Rs. 32,44,588.67/- was payable by the defendant/appellant to the plaintiff/respondent. Since a sum of Rs. 9,81,509/- has been paid by the bank the liability of the bank was reduced to the extent of such payment and thus, the bank was liable to pay a sum of Rs. 22,63,079.67/- out of such total dues of the defendant/appellant. We find that the defendant/appellant has also paid a further sum of Rs. 8,63,540.05/- by an account payee cheque on 29th March, 2016. Thus, net dues which were payable by the bank has reduced to Rs. 13,99,539.62/-(Rupees thirteen lakh ninety nine thousand five hundred thirty nine and sixty two paise) only. 13. Though it is true that the commercial surcharge was payable by the defendant/appellant but the primary liability to pay property tax lies on landlord, viz., the plaintiff/respondent. Since the primary liability has not been discharged by payment of the occupier shares of the rates and taxes of the said premises by the plaintiff/respondent, penalty and interest was imposed by the Corporation. However, surcharge was payable by the occupier, viz., the defendant/appellant. The defendant/appellant has not discharged its duties in paying the surcharge payable by it, in time, despite it was kept informed by its landlord as to money payable by the Bank as per the Municipal demand. Thus, we hold that both are responsible for delayed payment of the property tax and/or the surcharge to the Municipal Authority. As such, we relax the defendant/appellant to pay penalty and/or interest to the extent of half of the amount demanded by the Corporation. 14. Thus we hold that a sum of Rs. 6,27,919/- is still payable by the defendant/appellant with the plaintiff/appellant. 15. Having regard to the fact that a sum of Rs. As such, we relax the defendant/appellant to pay penalty and/or interest to the extent of half of the amount demanded by the Corporation. 14. Thus we hold that a sum of Rs. 6,27,919/- is still payable by the defendant/appellant with the plaintiff/appellant. 15. Having regard to the fact that a sum of Rs. 13,99,539.62 is kept in deposit with the learned Registrar General of this Court, we permit the plaintiff/respondent to withdraw the said sum of Rs. 6,27,919/- out of such deposit. The learned Registrar General of this Court is directed to encash the fixed deposit and pay the aforesaid sum of Rs. 6,27,919/- to the plaintiff/respondent and refund the balance amount lying in such deposit to the defendant/appellant subject to compliance of the necessary formalities by the respective parties in this regard. The instant appeal is thus, disposed of. 16. However, the cross-objection filed by the plaintiff/respondent being COT No. 7 of 2015 will be placed for hearing in the next week of Thursday i.e. on 23rd march, 2017. Asha Arora, J. - I agree.