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2022 DIGILAW 1334 (CAL)

Sashi Prasad Goenka v. Steelco Syndicate

2022-09-15

RAVI KRISHAN KAPUR

body2022
JUDGMENT Ravi Krishan Kapur, J. - These applications raise common questions of law and fact and were heard analogously. 2. GA No. 8 of 2017 is an application for setting aside the report of the Special Referee dated 15 May, 2017 (the report) assessing mesne profits. GA No. 9 of 2017 is an application filed by the plaintiff landlord seeking a final decree in terms of the report. 3. Briefly, the suit is for eviction and mesne profits. The suit premises comprises of Flat no.2E having a built up area of 3975 sq.ft. on the second floor and a generator room having an area of 73 sq.ft. on the ground floor both located in a building commonly known as Dimple Court, situated at premises no. 26 Shakespeare Sarani, Kolkata-17(the suit premises). 4. The facts culminating in the filing of these applications are as follows: a. In 2005, the plaintiff permitted the defendant to use and occupy the suit premises for commercial perposes. b. In or about 2008, this suit was filed for recovery of possession and for mense profits. There was also a claim on account of rental arrears and maintenance charges. c. On 8th August, 2013 this suit was decreed in favour of the plaintiff. The Court also directed the respondent to pay mesne profits and other charges. d. On 26th November 2014, the suit premises was ultimately vacated by the defendants and possession was handed over to the plaintiff. e. By an order dated 13th July 2015, the Hon'ble Division Bench set aside the decree for mesne profits and appointed a Special Referee to determine the mesne profits for the period 1st September, 2008 to 26th November, 2014. f. Pursuant to the aforesaid, the Special Referee has filed the report determining mesne profits. g. The subject matter of these applications pertains to the report filed by the Special Referee. 5. It appears from the report that both parties adduced evidence. The plaintiff had three witnesses and the defendant had two witnesses. In the report, the Special Referee ascertained mesne profits on the basis of comparable unit method. The Special Referee took into consideration a lease dated 31 July, 2006 in respect of flat situated on the first floor of the same building wherein the suit premises is situated. The Special Referee has also recorded reasons. The Special Referee has also considered the Exhibits disclosed by the parties. The Special Referee took into consideration a lease dated 31 July, 2006 in respect of flat situated on the first floor of the same building wherein the suit premises is situated. The Special Referee has also recorded reasons. The Special Referee has also considered the Exhibits disclosed by the parties. The Special Referee has also provided a detailed calculation in assessing mesne profits. 6. On behalf of the defendant it is submitted that, the report is liable to be set aside on the ground of misconduct, since the procedure which the Special Referee has adopted vitiates his conclusions. It is alleged that the Special Referee had not considered the report of an expert valuer relied on by the defendants. It is further alleged that the Special Referee in adopting the comparative unit method failed to appreciate the signage which was attached to the concerned premises. It is also alleged that, the amenities to the suit premises should have been taken into consideration by the Special Referee. In brief, the report is assailed on the ground that the assessment arrived at by the Special Referee is without any investigation and is liable to be rejected on the ground of arbitrariness. 7. On behalf of the plaintiff it is contended that, the report filed by the Special Referee does not warrant any interference whatsoever. The plaintiff relies on the decision of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 (at para 13). It is contended that the scope of interference in such matters, is limited and restricted. It is further contended that there are no exceptional circumstances which warrant any interference with the report. 8. I have considered the submissions made on behalf of the parties. 9. An assessment of the nature undertaken by the Special Referee in arriving at mesne profits is more or less subjective in nature. Unless there is unreasonableness, irrationality or perversity, a Court ordinarily should not find fault with such assessment. It is also difficult to assess an enquiry of such a nature with scientific or mathematical precision. Generally, there are guides and indicators which are usually taken into consideration in calculating mesne profits. ( See: Pawan Kumar Tibrewalla & Anr.Versus J. Thomas & Co. It is also difficult to assess an enquiry of such a nature with scientific or mathematical precision. Generally, there are guides and indicators which are usually taken into consideration in calculating mesne profits. ( See: Pawan Kumar Tibrewalla & Anr.Versus J. Thomas & Co. (Pvt.) Ltd. (2008) 3 CHN 49 and Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 .) 10. I find that, the Special Referee has elaborately conducted the entire exercise of evaluating and assessing mesne profits. Both parties adduced witnesses. There is no complaint of lack of opportunity to either of the parties. The Special Referee has also considered the documentary evidence relied on by the parties. The Special Referee has taken into consideration the lease dated 31st July 2006 between Sanjay Banerjee and SBI Insurance in respect of a similar flat measuring approximately 2850 sq.ft on the first floor of the said building. The Special Referee has also considered the lease dated 6 September 2008 in respect of a flat measuring approximately 2592 sq.ft on the ground floor of the said building. The Special Referee has also considered the photographs, the lease dated 6th July, 2016 and an Affidavit of Valuation relied on by the defendant. I also find that the report is adequately reasoned. The Special Referee has taken into account the advantages of the suit premises. The Special Referee has also given a detailed assessment of mesne profits. I also find that Special Referee has given due weightage to the comparable unit method. The advantages and disadvantages of the comparable properties have also been. The lease dated 16 June, 2016 could not have been taken into consideration since the same had not been acted upon. 11. Significantly, during the cross-examination of the valuer who deposed on behalf of the defendant, admitted that he had never visited either of the properties at Short Street or at Camac Street mentioned in his Report. Nor had the valuer considered any of the properties situated in and around the suit premises. Nor did the valuer inspect the suit premises. In this background, I am not inclined to interfere with the discretion exercised by the Special Referee in not considering the Report of the valuer. 12. Nor had the valuer considered any of the properties situated in and around the suit premises. Nor did the valuer inspect the suit premises. In this background, I am not inclined to interfere with the discretion exercised by the Special Referee in not considering the Report of the valuer. 12. The decision cited by the defendants in Union of India v. Banwari Lal & Sons (P) Ltd. reported in (2004) 5 SCC 304 is distinguishable and inapplicable to the facts of this case. Similarly, the decision Lilabai R. Rajwade & Ors Vs Madhusudan S. Rajwade & Ors reported in (2010) 15 SCC 620 is also of no assistance to the defendant. This was a case where both parties had practically admitted that the conclusions which had been arrived in respect of the determination of mesne profits were based on guesswork. 13. In view of the aforesaid, I find no merit in the objections raised on behalf of the defendant. I find that there is no unreasonableness, arbitrariness, irrationality or perversity which warrants any interference with the report of the Special Referee. There is also no misconduct committed by the Special Referee. 14. For the foregoing reasons, GA No. 8 of 2017 stands disposed of. GA No. 9 of 2017 stands allowed. Hence, there shall be a decree in terms of prayers (a) the Notice of Motion in GA No. 9 of 2017. Costs are assessed at Rs. 50,000/- (Fifty thousand) to be paid by the defendants to the plaintiff. 15. It was also submitted by both the parties that GA/1/2008 and GA/7/2013 have become infructuous for all purposes. In view of the aforesaid, GA/1/2008 and GA/7/2013 also stand disposed of as infructuous.