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2023 DIGILAW 1411 (CAL)

Ashok Kumar Bhagnani v. Mansur Ahmed

2023-08-18

KRISHNA RAO

body2023
JUDGMENT : (Krishna Rao, J.) : 1. The plaintiff has filed the present application praying for Judgment on admission. The plaintiff has filed the suit against the defendants for their eviction, for recovery of ‘khas possession’ and recovery of outstanding rent, damages and mesne profit. 2. The plaintiff has filed the suit under the provisions of West Bengal Premises Tenancy Act, 1997 on the ground of subletting, defaulter in paying the monthly rent and reasonable requirement. The main contention of the plaintiff in the present application is that the defendants have sublated the premises without the consent of the plaintiff and the defendants do not possess the suit property any more. 3. Mr. Swatarup Banerjee with Ms. Somali Mukhopadhyay, Learned Advocates representing the plaintiff submits that the defendants have disclosed the Power of Attorney dated 13th February, 2012 wherein it is clear admission on the part of the defendant that the defendant no. 1 many times lives at abroad and is not in a position to look after the business personally in a proper way and as such he had nominated, constituted and appointed his known person one Mohammed Ayub to look after the said business. 4. Mr. Banerjee submitted that from the averments made in the Power of Attorney that the user and control of the tenancy premises has been parted with and the Deed of Partnership along with the Power of Attorney have been drawn up for providing a clock or cover to conceal a transaction which is not permitted by law. 5. Mr. Banerjee submitted that the Power of Attorney dated 13th February, 2012 clearly disclosed that the defendants have parted with the possession of the suit premises by subletting to Mohammed Ayub which is not permissible under law. 6. Mr. Banerjee submits that in the Power of Attorney, it is also mentioned that Power of Attorney holder is having the right to acquire, sell or dispose of goods and stock-in-trade for cash or on credit for the purpose of carrying on the said business. 7. Mr. Banerjee further submitted that as per the Power of Attorney, the defendants have also given the power to the third party to apply for, obtain and renew all licences, permits as may be necessary or requisite for the purpose of carrying on or developing the trade or business. 8. Mr. 7. Mr. Banerjee further submitted that as per the Power of Attorney, the defendants have also given the power to the third party to apply for, obtain and renew all licences, permits as may be necessary or requisite for the purpose of carrying on or developing the trade or business. 8. Mr. Banerjee further submitted that in the said Power of Attorney, it is also mentioned that Mohammed Ayub can also enter into any agreement with the landlords of the said premises relating to the tenancy as may be necessary from time to time. 9. Mr. Banerjee submitted that Mohammed Ayub died on 7th May, 2021 and after the death of Mohammed Ayub, the defendants have executed a fresh Power of Attorney dated 26th August, 2021 in favour of Shahbaz Ayubi and Faisal Ayubi sons of the earlier Power of Attorney holder, namely Mohammed Ayub. She submitted that the said Power of Attorney has been affirmed before the Consulate General of India, Dubai (UAE), therefore, it is evident that the defendants have parted with the possession of the suit premises and shifted to Dubai. 10. Mr. Banerjee further submitted that by the Power of Attorney dated 26th August, 2021, the defendants have given right to sell, purchase, pledge, raise money or convert into money or securities for money and transfer/exchange and other deal in all shares, stocks and other securities, marketable or non-marketable, cheques, bills, drafts, hundis and promissory note and investment through the authorized broker or otherwise to raise loan or hypothecation of the same. 11. Mr. Banerjee submitted that in the said Power of Attorney, the defendants have given right to Shahbaz Ayubi and Faisal Ayubi to enter into the agreement for renting the suit premises which further demonstrates that the defendants have no interest and left the suit premises allowing third party to run their business in the said property. 12. Mr. Banerjee relied upon the judgment reported in (2010) 4 SCC 753 (Karam Kapahi & Ors. –vs-Lal Chand Public Charitable Trust & Anr.) and submitted that the principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. She submitted that under this rule either party may get rid of so much of the rival claims about “which there is no controversy”. –vs-Lal Chand Public Charitable Trust & Anr.) and submitted that the principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. She submitted that under this rule either party may get rid of so much of the rival claims about “which there is no controversy”. She submitted that the defendants have parted the suit property initially to one Mohammed Ayub and after the death of Mohammed Ayub to Shahbaz Ayubi and Faisal Ayubi and the defendants are at abroad and thus this Court can pass judgment upon admission. 13. Mr. Banerjee further relied upon the judgment reported in (2020) 2 SCC 531 (A. Mahalakshmi –vs-Bala Venkatram) and submitted that subletting means transfer of an exclusive right to enjoy the property in favour of third party to constitute a sub-letting, there must be a parting of legal possession i.e. possession with the right to include and also right to exclude others. She submits that sub-letting, assigning or otherwise parting with the possession of whole or any part of tenancy premises, without obtaining the consent in writing of the landlord is not permitted and if done, the same provides a ground for eviction of tenant by the landlord. 14. Mr. Banerjee relied upon the judgment reported in (2004) 4 SCC 794 (Parvinder Singh –vs-Renu Gautam) and submitted that a lease of immovable property is transfer of a right to enjoy such property. Parting with possession or control over the tenancy premises by the tenant in favour of third person would amount to the tenant having “transferred his right under the lease”. 15. Per contra, Mr. Jishnu Chowdhury, Learned Advocate representing the defendants submitted that admittedly M/s. Lemos is a partnership firm and the partnership is a bonafide tenant under the plaintiff. He submits that as per the Deed of Reconstruction of Partnership dated 25th August, 2011, the partnership firm consisted of three partners namely, Mr. Mansur Ahmed, Mrs. Nuzhat Ahmed (defendant herein) and Mr. Mohammed Ayub. 16. Mr. Chowdhury submitted that after the death of Mohammed Ayub, his sons namely Mr. Shahbaz Ayubi and Mr. Faisal Ayubi have stepped into his shoe in terms of the partnership dated 25th August, 2011. 17. Mr. Mansur Ahmed, Mrs. Nuzhat Ahmed (defendant herein) and Mr. Mohammed Ayub. 16. Mr. Chowdhury submitted that after the death of Mohammed Ayub, his sons namely Mr. Shahbaz Ayubi and Mr. Faisal Ayubi have stepped into his shoe in terms of the partnership dated 25th August, 2011. 17. Mr. Chowdhury submitted that as the defendants are old aged and often stay out of the country, accordingly, they have executed a Power of Attorney initially in favour of Mohammed Ayub and after the death of the Mohammed Ayub, the defendants have executed Power of Attorney in favour of Shahbaz Ayubi and Faisal Ayubi who are the sons of Mohammed Ayub. 18. Mr. Chowdhury submitted that the plaintiff has filed the present application relying upon the Power of Attorney executed by the defendants but the plaintiffs failed to appreciate that the business of the defendant is the partnership business and the Power of Attorney was executed in favour of the partner not to the outsider. 19. Mr. Chowdhury submits that the plaintiff had the knowledge about the status of Mohammed Ayub as partner of the business as the plaintiff had earlier filed the suit being TS No. 340 of 2012 against the defendants wherein in the written statement, the defendants have disclosed about the Partnership Deed dated 25th August, 2011. He further submits that M/s. Lemos had filed another suit in the month of March, 2013 being TS No. 447 of 2013 wherein the defendants have specifically described that Mohammed Ayub to be the partner of M/s Lemos and in the said suit, the defendants have disclosed the Partnership Deed. 20. Mr. Chowdhury submitted that the plaintiff has filed the present suit on the ground of sub-letting but have not made Mohammed Ayub as party to the said suit. He submits that induction of partner does not tantamount to sublet and the said issues are the pure questions of fact and that is to be decided during the trial. He submits that the defendants are the partners holding majority control i.e. 68% in the partnership firm and thus the alleged subletting has not been established by any means. 21. Mr. Chowdhury has relied upon the following judgments : “i. (2000) 7 SCC 120 (Uttam Singh Duggal & Co. Ltd. – vs-United Bank of India & Ors.). ii. (1986) 3 SCC 62 (Madras Bangalore Transport Co. (West) –vs-Inder Singh & Ors.). iii. 21. Mr. Chowdhury has relied upon the following judgments : “i. (2000) 7 SCC 120 (Uttam Singh Duggal & Co. Ltd. – vs-United Bank of India & Ors.). ii. (1986) 3 SCC 62 (Madras Bangalore Transport Co. (West) –vs-Inder Singh & Ors.). iii. (2010) 9 SCC 129 (Vinaykishore Punamchand Mundhada & Anr. –vs-Shri Bhumi Kalpataru & Ors.). iv. (2005) 1 SCC 481 (Mahendra Saree Emporium (II) – vs-G.V. Srinivasa Murthy). v. (2002) 5 SCC 440 (Rakesh Wadhawan & Ors. –vs-Jagadamba Industrial Corporation & Ors.). vi. (2010) 1 SCC 217 (Celina Coelho Pereira (Ms) & Ors. -vs-Ulhas Mahabaleshwar Kholkar & Ors.).” 22. Heard the learned Counsel for the respective parties, perused the materials on record and the judgement relied by the parties. 23. The plaintiff has filed the present application for Judgment on admission relying upon the Power of Attorney executed by the defendants in favour of the Mohammed Ayub dated 13th February, 2012 and the plaintiff relied upon the following clauses of the said Power of Attorney : “2. To ask for, demand, recover, receive and collect all moneys due and payable to the said firm in connection with its said business from any persons, company or association, including any statutory body or authority, Government or semi-Government concern or concerns including insurance, claims, compensation and damages against Railways, Airways, Roadways and to give good valid receipts and discharges therefor. 4. To acquire, sell or dispose of goods and stock-in-trade for cash or on credit for the purpose of carrying on business of therefrom. 5. To apply for, obtain and renew all licences, permits, etc.. as may be necessary or requisite for the purpose of carrying on or developing the trade or business. 15. To sell, purchase, pledge, raise money or convert into money or securities for money and transfer and/or exchange and/or otherwise deal in all shares, stocks and other securities, marketable and non-marketable, cheques, bills, drafts, hundis, and promissory notes and investments through authorised brokers or otherwise and to raise loan by pledge or hypothecation of the same. 17. 15. To sell, purchase, pledge, raise money or convert into money or securities for money and transfer and/or exchange and/or otherwise deal in all shares, stocks and other securities, marketable and non-marketable, cheques, bills, drafts, hundis, and promissory notes and investments through authorised brokers or otherwise and to raise loan by pledge or hypothecation of the same. 17. To tender and pay monthly rent in respect of the said premises for myself and on my behalf to the Landlords of the said premises and to their legal representatives, executors, administrators and assigns as the case may be and as such when it shall be due and payable, and in case of refusal to accept such rent or dispute between the landlords to receive such rent to apply and deposit the same to the Rent Controller, Calcutta and for that purpose to sign and verify the petitions and to affirm affidavits and to deposit such rent in the Office of the Rent Controller Calcutta month by month, as and when necessary. 19. To enter into any agreement with Landlords of the said premises relating to the said tenancy as may be necessary from time to time” 24. The plaintiff has also relied upon the Power of Attorney dated 26th August, 2021 executed by the defendants in favour of Shahbaz Ayubi and Mr. Faisal Ayubi which is the replica of the above mentioned Power of Attorney. This Power of Attorney was executed by the defendants after the death of Mohammed Ayub, Shahbaz Ayubi and Faisal Ayubi are the sons of Mohammed Ayub. 25. On 11th November, 2003, a Partnership Deed was entered between P.A Rozario and Mrs. Fahmida Ahmed, Mr. Mansur Ahmed and Ashfaque Ahmed with respect of the business M/s. Lemos. Subsequently, another Deed of Partnership was entered between the Mr. Mansur Ahmed and Mrs. Nuzhat Ahmed on 3rd April, 2006. On 25th August, 2011, a Deed of Reconstruction of Partnership was executed between Mr. Mansur Ahmed, Mrs. Nujhat Ahmed and Mr. Mohammed Ayub with respect of M/s Lemos having the share of 34%, 34%, 32% respectively. Again, a Deed of Reconstruction of Partnership was entered on 27th December, 2013 between Mr. Mansur Ahmed, Mrs. Nuzhat Ahmed and Mohammed Ayub with respect of M/s. Lemos having the same share as mentioned above. 26. Mansur Ahmed, Mrs. Nujhat Ahmed and Mr. Mohammed Ayub with respect of M/s Lemos having the share of 34%, 34%, 32% respectively. Again, a Deed of Reconstruction of Partnership was entered on 27th December, 2013 between Mr. Mansur Ahmed, Mrs. Nuzhat Ahmed and Mohammed Ayub with respect of M/s. Lemos having the same share as mentioned above. 26. Initially, the Kolkata Municipal Corporation issued licence to M/s Lemos in the joint name of Syed Sultan Ahmed and P.A. Rozario. Subsequently, the licence was changed in the name of the defendants. The defendants have inducted Mohammed Ayub as a partner in the said business and the licence of the said business issued in the joint name of the defendants and Mohammed Ayub. After the death of Mohammed Ayub, their son’s name have been included in the licence by the Kolkata Municipal Corporation. 27. As per the income tax return submitted by the defendants for the assessment year 2021-2022, the profit of the said business has been transferred at the ratio of 34%, 34% and 32% respectively. 28. M/s Lemos has filed a suit being Title Suit No. 447 of 2013 against the defendant and others before the Learned City Civil Court, 6th Bench at Kolkata for declaration of mandatory injunction and the plaintiff is contesting the said suit and the same is pending for adjudication. 29. In the case of Celina Coelho Perteria (Ms) and Others (Supra), the Hon’ble Supreme Court held that: “25. The legal position that emerges from the aforesaid decisions can be summarized thus: (i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant. (iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession in tenancy premises by the tenant in favour of a third person. (iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession. (v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises. (vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.” 30. In the case of Madras Bangalore Transport Co. (West) (Supra), the Hon’ble Supreme Court held that: “The question what was necessary to be proved when sub-letting was alleged was then considered and it was said: “It seems to us that the landlord cannot succeed. He has to prove it as a fact that there was a sub-letting by his tenant to another person. He does not prove this merely by showing that his tenant was one firm and the premises are in the occupation of another firm, as he sought to do in the present case. Mere possession by somebody other than the tenant would not necessarily prove that the premises had been sub-let by the tenant to the person in possession. It is admitted that there is no evidence in this case to prove the fact of sub-letting. Mere possession by somebody other than the tenant would not necessarily prove that the premises had been sub-let by the tenant to the person in possession. It is admitted that there is no evidence in this case to prove the fact of sub-letting. In this case in particular, the premises continued in possession of one of the original tenants, Meghraj. It may be, as the learned counsel for the appellant said, that the attention of the courts below had not been directed to the fact in issue, namely, the proof of sub-letting. If that was so the fault was that of his client, the landlord, he cannot now claim any relief on that ground. As we have said, it is admitted that the evidence does not establish that there was any sub-letting by the tenant. There was nothing to prevent the landlord from leading evidence to establish that if it was a fact. If he has misconducted his case as he says, he must take the consequences.” 31. In G. Rangamannar v. Desu Rangiah [ AIR 1954 Mad 182 : 1952 Mad LJ 652] the original tenant, a few years after the commencement of the tenancy, entered into a partnership with two persons and carried on the partnership business in the very premises in which he was previously carrying on business. A question arose whether it could be said that he had sublet the premises. Subba Rao. J. (as he then was) referred to several English cases on the question as to what was meant by the word “sub-let” and finally observed: “It is clear from the aforesaid decisions that there cannot be a sub-letting, unless the lessee parted with legal possession. The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub-lease.” 32. In the present case, the plaintiff has filed the instant application for Judgment upon admission on the ground that the defendants have subletted the suit premises to third party by way of Power of Attorney. The Power of Attorney executed by the defendants is in favour of the partner of the firm and not to any third party. Since inception, the said firm is a partnership firm. The audit report also reveals that the partner is having share and the shares have been declared in the income tax documents. The Power of Attorney executed by the defendants is in favour of the partner of the firm and not to any third party. Since inception, the said firm is a partnership firm. The audit report also reveals that the partner is having share and the shares have been declared in the income tax documents. There is no evidence on record that the Power of Attorney holder is running the business exclusively. It is well settled that subtenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of the scene rather, such arrangement whereby and whereunder the possession is parted away by the tenant is always clandestine and such arrangements take place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord that the tenant has put some other person into possession of the tenanted property. 33. In the case of Uttam Singh Duggal (Supra), the Hon’ble Supreme Court held that: “12. As to the object of Order 12 Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the Objects and Reasons set out while amending the said Rule, it is stated that “where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled”. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed.” 34. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed.” 34. In the present case, admittedly the defendants have executed a Power of Attorney but the said Power of Attorney cannot be read in isolation. The defendants have not parted with the premises to any third party. The defendants have executed Power of Attorney in favour of the partners and not to any third party. Merely because, a tenant has executed a Power of Attorney he cannot necessarily be held to have sub-let the premises or parted with the possession thereof in favour of his attorney. If, the tenant is actively associated with the partnership business and retains the use and control over the tenancy premises with him, may be along with the partners, the tenant may not be said to have parted with the possession. 35. In view of the above, this Court do not find any admission on behalf of the defendants that the defendants have sublated the premises by way of Power of Attorney and thus the plaintiff is not entitled to get judgment upon admission. 36. G.A No.15 of 2022 is thus dismissed.