JUDGMENT : (Krishna Rao, J.) : 1. The plaintiff has filed the present application being G.A. No. 1 of 2019 (Old No. GA 2846 of 2019) in C.S. No. 234 of 2019 praying for judgment and decree upon admission. 2. The plaintiff has initiated the suit against the defendant praying for following decree: a) A decree for Rs. 29,63,946/-against the defendant as pleaded in paragraph 25 above; b) Interim interest and interest on Judgment @18% p.a. till realization; c) Judgment upon admission; d) Receiver; e) Injunction; f) Attachment upon the Judgment; g) Costs; h) Such further and/or other reliefs.” 3. The father of the plaintiff, Parimal Biswas, since deceased was the sole and absolute owner of the building situated at premises No.4A, Ekdalia Place, Kolkata – 700019. The father of the plaintiff during his life time had executed a Will and Testament on 20th May, 2003, appointing the plaintiff and his younger brother as joint executors of his last Will and Testament. The plaintiff has obtained probate of the said last Will and became the sole and absolute owner of the entire Ground Floor together with 50% share of the garage and the entire First Floor together with common staircases, common entrance, pump room and the common terrace together with common shares in three rooms and one dining room on the terrace, together with one room on the back portion of the building at the premises No.4A, Ekdalia Place, Kolkata – 700019. 4. The defendant became a tenant of the entire ground floor measuring about 2375 Sq. Ft. and the entire mezzanine Floor and the First Floor of the building measuring about 1455 Sq. Ft. together with a room to be used as ATM room on the eastern side of premises together with one generation room measuring about 162 Sq. Ft. in the Ground Floor (West Side) of the building by virtue of a Lease Agreement under the father of the plaintiff, which came to an end on 31st March, 2014. 5. By a letter dated 17th June, 2015, the defendant had offered to take on lease the total area of 3505 Sq. Ft. (Ground Floor area about 2300 Sq. Ft. and subsequent additional space includes Mezzanine Floor to stair case from First Floor and entire area of First Floor area about 1205 Sq. Ft.). 5. By a letter dated 17th June, 2015, the defendant had offered to take on lease the total area of 3505 Sq. Ft. (Ground Floor area about 2300 Sq. Ft. and subsequent additional space includes Mezzanine Floor to stair case from First Floor and entire area of First Floor area about 1205 Sq. Ft.). The terms and conditions agreed between the parties are mentioned hereinbelow: (i) The defendant agreed to pay rent @Rs.40 per Sq. Ft. for an area of 3505 Sq. Ft. in the Ground Floor and Mezzanine Floor to staircase from First Floor and entire area of First Floor. (ii) Monthly rent of Rs.1,40,200/-was agreed between the parties, inclusive of all rates and taxes, service charges and other outgoings with effect from 1st April, 2014 but exclusive of commercial surcharge, KMC tax and 50% of future incremental portion of KMC Tax on occupied portion of Defendant. (iii) The defendant has further agreed to pay 50% of the future incremental portion of KMC Tax over (existing assessment). (iv) The defendant would also bear commercial surcharge, KMC Water Tax, as will be applicable proportionately for the occupied portion. (v) The review of the rent to be made after 3 years from 1st April, 2014 subject to enhancement of rent, if any, not exceeding 15% over the prevailing rent. (vi) The rent for the ATM will be Rs.5,000/-per month w.e.f. June, 2015. 6. The defendant by a letter dated 5th October, 2015, had decided to surrender the First Floor of the building and relocate its branch on the ground floor under the revised terms and conditions which was duly accepted by the plaintiff on 6th October, 2015 and on 7th October, 2015, the defendant duly performed its reciprocal promise under the contract and paid a sum of Rs. 5,00,000/-towards arears of rent. 7. By a letter dated 31st July, 2017, the defendant requested the plaintiff to take possession of the First Floor of the building and it also contemplates that the defendant will not be in a position to pay the rent to the plaintiff for the said First Floor with effect from 1st May, 2017. 8. 5,00,000/-towards arears of rent. 7. By a letter dated 31st July, 2017, the defendant requested the plaintiff to take possession of the First Floor of the building and it also contemplates that the defendant will not be in a position to pay the rent to the plaintiff for the said First Floor with effect from 1st May, 2017. 8. The Deed of Lease was formally entered into and executed by the parties herein on 21st December, 2017 in respect of the entire Ground floor including generator place excluding ATM rooms and staircase on mezzanine floor to the First Floor at the premises being No. 4A, Ekdalia Place, Kolkata – 700019 and the said lease was for a period of 10 years and commenced from 1st April, 2014, with the option to continue for further 5 years under the same terms and conditions subject to revision of rent. 9. The defendant by a letter dated 22nd December, 2017, handed over the physical possession of an area of 1205 Sq.Ft. consists of mezzanine floor to staircase from the first floor and the entire area of first floor of the said premises to the plaintiff. 10. The defendant by a letter dated 17th January, 2018, forwarded a calculation sheet of an arear of rent to the plaintiff and in the said letter, it was mentioned that the defendant has already paid the lump sum of Rs.13,00,000/-to the plaintiff. In reply to the said letter, the plaintiff by a letter dated 24th January, 2018, requested the defendant to pay the arears of rent in respect of 1205 sq.ft. from 1st April, 2014 to 31st March, 2017 at the rate of Rs.40/-per sq.ft. and for the period from 1st April, 2017 to 22nd December, 2017 at the rate of Rs.46/-per Sq.ft. The plaintiff further demanded that the arears of rent at Rs.46/-per sq.ft. in respect of 2300 sq.ft be further paid. The plaintiff further demanded that the defendant is required to pay 50% of the Corporation Tax which has already paid by the plaintiff to the Municipal Corporation. 11. The plaintiff further demanded that the arears of rent at Rs.46/-per sq.ft. in respect of 2300 sq.ft be further paid. The plaintiff further demanded that the defendant is required to pay 50% of the Corporation Tax which has already paid by the plaintiff to the Municipal Corporation. 11. The defendant by a letter dated 14th March, 2018, informed the plaintiff that the total arrears of rent for the period between 1st April, 2014 to 31st December, 2017 was Rs.35,41,698/-out of which an amount of Rs.13,00,000/-was already paid to the plaintiff in three instalments and the balance amount of Rs.22,41,698/-was payable to the plaintiff as arrears of rent. 12. The plaintiff by disputing the calculation of arrears of rent forwarded by the defendant and informed that defendant that a sum of Rs.66,78,010/-was due as arrears of rent on 21st December, 2017, out of which a sum of Rs.13,00,000/-was only paid and a further sum of Rs.55,87,010/-is payable by the defendant. Thereafter, the defendant has further paid a sum of Rs.15,71,445/-as arrears of rent of 45 months from the period from May, 2014 to January, 2018 at the rate of Rs.34,921/-per month including TDS. On 3rd January, 2018, the respondent has paid an amount of Rs.1,00,395/-at new rate i.e. at the rate of Rs.46/-per month which includes the rent of ATM also. 13. The defendant has further paid an amount of Rs.15,00,000/-to the plaintiff on 14th March, 2018, leaving the balance amount of Rs. 23,06,565/-as arrears of rent as on 21st December, 2017. 14. Mr. Gopal Pahari, Learned Advocate representing the plaintiff submits that the defendant by a letter dated 16th August, 2018, admitted the claim of the plaintiff. He submits that the respondent has admitted that the arrears of rent from 1st April, 2014 to 31st December, 2017, is due which according to the defendant comes to Rs. 35,41,698/-. “The said calculation is erroneous. The total arrear rent as on 21 December 2017 comes to Rs.66,78,010/-which particularly described in paragraph 24 hereinabove. According to the Respondent a sum of Rs. 13,00,000/-(On 7th October 2015 Rs 5,00,000/-, on 15th February 2016 Rs.5,00,000/-and on 26th September 2017 Rs.3,00,000/-) and on 14th March 2018 a sum of Rs. 15,00,000/-have been paid on account of arrear rent. It has already been stated that a further sum of Rs.55,87,010/-was till payable by the Respondent to the Petitioner in this regard. 13,00,000/-(On 7th October 2015 Rs 5,00,000/-, on 15th February 2016 Rs.5,00,000/-and on 26th September 2017 Rs.3,00,000/-) and on 14th March 2018 a sum of Rs. 15,00,000/-have been paid on account of arrear rent. It has already been stated that a further sum of Rs.55,87,010/-was till payable by the Respondent to the Petitioner in this regard. The Respondent had thereafter further paid a sum of Rs.15,71,445/-for the rent of 45 months for the period from May 2014 to January 2018 @ Rs.34,921 Per Month including TDS. On 3rd January 2018 the Respondent has paid the rent amounting to Rs.1,00,395/-at new rate i.e. @ Rs.46/-Per Month which includes the rent for ATM also. This rent includes with said Rs. 15,71,445/-. In these circumstance as on 14th March 2018 a sum of Rs.23,06,565/-admittedly became due and payable by the Respondent. Respondent is also liable to pay interest at the rate of 18% per annum from 15th March 2018 to till 15th October 2019 which comes to Rs.6,57,381/-. Therefore, all together the Petitioner is entitled to Rs.29,63,946/-and admittedly the Respondent is liable to pay the said sum of Rs.29,63,946/-to the Petitioner.” 15. Mr. Pahari has relied upon the judgment reported in (2000) 7 SCC 120 (Uttam Singh Duggal and Co. Ltd. vs. United Bank of India and Others) and submitted 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. He submits that 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. 16. Mr. Pahari has relied upon the judgment reported in 2016 SCC OnLine Cal 10447 (Star Vincom Private Ltd. vs. K.L. Commercial (P) Ltd.) and submitted that the provisions of Order 12, Rule 6 of the Code of Civil Procedure, 1908, can be activated, if an admission is made to a claim of the plaintiff. 17. Mr. Samrat Sen, Learned Senior Advocate representing the defendant submits that there is no unconditional and clear admission by the defendant with respect to the claim of the plaintiff as required under Order XII, Rule 6 of the Code of Civil Procedure, 1908. 18. Mr. 17. Mr. Samrat Sen, Learned Senior Advocate representing the defendant submits that there is no unconditional and clear admission by the defendant with respect to the claim of the plaintiff as required under Order XII, Rule 6 of the Code of Civil Procedure, 1908. 18. Mr. Sen submitted that as per the case made out by the plaintiff, the earlier tenancy came to an end on 31st March, 2017. The question whether any ‘rent’ can be said to be payable after the tenancy has ceased to exist is a question which can be adjudicated only upon trial in the suit after evidence is adduced. He submits the rent ceases to be payable upon the tenancy coming to an end. 19. Mr. Sen submitted that in case of occupational charges or mesne profit, the same can only be done after trial, during which the plaintiff would be obliged to lead cogent evidence in respect of fair rent at the rate of Rs.40/per Sq.ft. with respect to the First Floor. 20. Mr. Sen submitted that the letter dated 17th June, 2015, is only a proposal and the same is not a concluded contract between the parties. He submits that in the said letter, it is categorically sated that if the plaintiff approves the said draft lease agreement, the office of the defendant bank will submit to the Head Office for approval for effecting the lease agreement. 21. Mr. Sen submitted that the suit involves non-payment of rent in respect of an immovable property and the said property is situated outside the local limits of this Court. He submits that the reliefs sought for in the present suit is whether or not the defendant had retained or given up physical possession of 1205 Sq.Ft forming a part of the property and from which date. He submits that an interest in rent or profits of the immovable property and the right to the proceeds thereof is itself immovable property and the said issue involves adjudication relating to the nature and extent of physical possession of immovable property outside the jurisdiction of this Court. 22. Mr. Sen submitted that the portion of the rent claimed by the plaintiff is barred by limitation. 22. Mr. Sen submitted that the portion of the rent claimed by the plaintiff is barred by limitation. He submits that the plaintiff is claiming the arrears of rent from the month of April, 2014 and the plaintiff has filed the suit in the year 2019 and thus the part of the claim of the plaintiff is barred by limitation. 23. Heard the Learned Counsel for the respective parties, perused the materials on record and the judgment relied by the defendant. The plaintiff relied upon the letter dated 17th June, 2015, issued by the defendant bank to the plaintiff which reads as follows: “UNITED BANK OF INDIA CALCUTTA (S) REGION From: Chief Manager (Admn. & P&D) Calcutta (S) R.O. To: Sri Asis Biswas (Landlord) 4A, Ekdalia Place Kolkata – 700019. RO/CAL(S)/Ekdalia Br. Premises/1299/2015 Dt.17.06.2015 Re: Renewal of Tenancy/Lease Agreement & enhancement of rent of our Ekdalia Branch Premises. We feel please that you have accepted our new offer of Lease Agreement @40/- per sft. at Premises No.4A, Ekdalia Place, Kolkata duly sent by the Manager, Ekdalia Branch. In this regard, we are furnishing below enhancement of rent proposal with terms & conditions of the fresh/new agreement for your perusal and acceptance. 1) Name of the Landlord :: SRI ASHIS BISWAS 2) Location of Premises :: 4A, Ekdalia Place, Kolkata– 700 019 3) Floor Space :: (i) Initial space 230 sft. more or less in Gr. Fl. (ii) Subsequent additional space 1250 sft. more or less on mezzanine floor. (iii) Proposed 2300 + 1250 = 3505 sft. 4) Rent : @Rs.40/- per sft. for an area of 3505 sft. In the ground floor and mezzanine floor (to be enhanced from @Rs.9.25/- per sft. for an overall area of 3505 sft. w.e.f. 01.04.2014) as per mutual negotiation per month amounting to Rs.1,40,200/- (Rupees One Lac Forty Thousand Two Hundred Only) inclusive of all rates and taxes, service charges and other outgoings w.e.f. 01.04.2014 (exclusive of commercial surcharge, KMC Tax and 50% of the future incremental portion of KMC Tax on Bank’s occupied portion. for an overall area of 3505 sft. w.e.f. 01.04.2014) as per mutual negotiation per month amounting to Rs.1,40,200/- (Rupees One Lac Forty Thousand Two Hundred Only) inclusive of all rates and taxes, service charges and other outgoings w.e.f. 01.04.2014 (exclusive of commercial surcharge, KMC Tax and 50% of the future incremental portion of KMC Tax on Bank’s occupied portion. 5) K.M.C. & Commercial Charge : The Bank would separately bear 50% of the future incremental portion of K.M.C. Tax (over existing assessment) and bank would also bear commercial surcharge and KMC water tax as will be applicable proportionately for the occupied portion on the basis of actual paid-up to be produced before the Bank as documentary evidence for obtaining such reimbursement of KMC Tax, Commercial Surcharge and Water Tax. 6) Tenancy : Lease/Tenancy? For 10 (Ten) years, w.e.f. 01.04.2014 with option on the part of the Bank to continue the lease/Tenancy for a further period of 10 (Ten) year with mutual negotiation on the same term and condition subject to review of rent as stated therein below and also with further option to the bank to relinquish the tenancy at any time on giving 3 (Three) months notice to the lessor. 7) Review of the Rent : Review of rent to be made after 3 (Three) years from 01.04.2014 subject to enhancement of rent, if any, not exceeding 15% (Fifteen Percent) over the prevailing rent. 8) Rent of ATM : Rent of ATM will be Rs.5,000,/- (Rupees Five Thousand) p.m. w.e.f. June, 2015. We would request you to please approve the above Draft Lease Agreement and send the same to this office for our onward submission to H.O. for necessary approval for effecting the Lease Agreement at the earliest. CHIEF MANAGER (Admn./P&D).” By the aforesaid letter, the defendant bank has sent a new proposal and requested the plaintiff to approve the draft Lease Agreement and to send the same to the defendant for approval from the Head Office but after the said letter, there is no document on record to say that the proposal of the defendant bank was approved and returned to the bank and the Head Office of the bank has approved the same. On the other hand, the defendant by a letter dated 5th October, 2015, informed to the plaintiff that the bank has decided to surrender the 1st floor and relocate the branch in the ground floor itself. The plaintiff by a letter dated 6th October, 2015, accepted the proposal subject to release of Rs.5,00,000/-of arrears of 7th rent by October, 2015, the defendant had released the said amount on 7th October, 2015. By a letter dated 22nd December, 2017, the defendant bank surrendered an area of 1205 sq.ft. out of total area 3505 sq.ft. and retained an area of 2300 sq.ft. for the purpose of Ekdalia Branch premises. 24. On 21st December, 2017, a new Lease Deed entered between the parties with respect to 2300 sq.ft. covering the portion of the entire ground floor including generator space. In the lease deed, rent is fixed Rs.40/-per square feet in addition to Rs.5000/-for the ATM. Subsequent to execution of the lease deed, the several correspondences were made between the plaintiff and the defendant with regard to calculation of the arrears of rent but no conclusive decision was arrived between the parties. 25. In the written notes of argument both the parties have enclosed the letter dated 22nd July, 2022, issued by the defendant bank wherein the defendant has made the calculation of the arrears of rent which reads as follows: Date: 22.07.2022 To, Ms. Aruna Ghosh Advocate High Court, Calcutta Hasting Chamber, 7C. K.S. Roy Road, 1st Floor Room No.1 Kolkata – 700001 Reg: Reply in court case C.S. No. 234 of 2019 Between Ashish Biswas (Land Lord of Ekdalia Branch) V/S Punjab National Bank. With reference to captioned subject we are in receipt of letter from advocate of plaintiff in compliance with the order dated 07.07.2022 passed by Hon’ble Justice Ravi Krishan Kapur furnishing total rental arrear due and payable by the bank. Pursuant to further direction of the court as informed by you to submit the calculation sheet for the rent and arrear paid by bank. We in reply to the letter dt.07.07.2022 submit as under: SL. No. Remarks Amount 1 Total Rent Paid from 01.04.2014 to 31.03.2017 @40 per sq. ft. per month on total area of 2300 sq. ft. Rs.33,12,000/- 2 Total Rent Paid from 01.04.2014 to 21-12- 207 @46 per sq. ft. per month on total area of 2300 sq. ft. We in reply to the letter dt.07.07.2022 submit as under: SL. No. Remarks Amount 1 Total Rent Paid from 01.04.2014 to 31.03.2017 @40 per sq. ft. per month on total area of 2300 sq. ft. Rs.33,12,000/- 2 Total Rent Paid from 01.04.2014 to 21-12- 207 @46 per sq. ft. per month on total area of 2300 sq. ft. Rs.9,18,071/- 3 Rent paid from 01.04.2014 to 07.10.2015 @Rs.10.63 for area 1205 as per letter dt 06.10.2015 by plaintiff Rs.2,33,618/- 4 Rent paid from 01.04.2014 to 31.03.2017 @Rs.5,000/- per month for ATM Rs.1,80,000/- 5 Rent Paid from 01.04.2017 to 31.12.2017 @Rs.5750/- per month for ATM Rs.51,750/- Sum Total Rs.46,95,439/- As per Plaintiff reply bank paid Rs.5,00,000/-towards release of 1st floor i.e.1205 sq.ft. Rs.5,00,000/-paid on 07.10.2015. Bank released property area 1205 sq.ft. on 07.10.2015 so the total rent Payable Rs.46,95,439/-(Rs.33,12,000+Rs.9,18,071+ Rs.2,33,618+Rs.1,80,000 + Rs.51,750) Plaintiff admitted Payment of Rs.43,71,445/- Thus Total Rent Paid by bank Rs.46,95,439/-Minus Rs.43,71,445/-= Rs.323994/- 50% Stamp duty payable by plaintiff for registration of lease agreement was paid by bank amounting Rs.2,13,554/- Payable if any Total Rs.1,10,440/-(Rs.3,23,994/-Minus Rs.2,13,554/-) Bank also paid Rs.1,73,974/-on 30.08.2018. Thus recovery of excess rent paid by bank to be refunded by plaintiff Rs.63,534/-(Rs.1,73,974/-Minus Rs.1,10,440/-) Further TDS Paid Rs.3,54,170/- Yours Faithfully. As per the said calculation, the contention of the bank is that an amount of Rs.63,534/-is recoverable from the plaintiff. The plaintiff had disputed the said calculation submitted by the defendant. 26. The defendant has also raised several issues that i.e. limitation and jurisdiction and the same are the triable issues which could not be decided in the present application. In the case of Balraj Taneja and Another -vs-Sunil Madan and Another reported in (1999) 8 SCC 396 and submitted that under Order XII, Rule 6 of the Code of Civil Procedure, 1908, the Court can at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the Court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. In the case of Himani Alloys Limited -vs-Tata Steel Ltd. reported in (2011) 15 SCC 273 and submitted that a judgement can be given on an “admission” contained in the minutes of a meeting but the admission should be categorical. In the case of Himani Alloys Limited -vs-Tata Steel Ltd. reported in (2011) 15 SCC 273 and submitted that a judgement can be given on an “admission” contained in the minutes of a meeting but the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. in the case of S.M. Asif -vs-Virendra Kumar Bajaj reported in (2015) 9 SCC 287 and submitted that the power under Order XII, Rule 6 of the Code of Civil Procedure, 1908, is discretionary and cannot be claimed as a matter of right. Judgmental admission is not a matter of right and rather is a matter of discretion of the court. If the defendant has raised objections which go to the root of the case, it would not be appropriate to exercise the discretion of under Order XII, Rule 6 of the CPC, 1908. 27. The plaintiff has relied upon the judgement in the case of Uttam Singh Duggal (Supra) but the said case is distinguishable from the facts and circumstances of the present case as in the present case there is no un conditional or clear admission made by the defendant. 28. The plaintiff has claimed the arrears of rent from 1st April, 2014 till 21st December, 2017 and the plaintiff has filed the suit in the year 2019. The defendant has raised the point of limitation as well as jurisdiction and the same issues are to be decided during the trial only. Considering the above facts and circumstance, this Court finds that there is no unequivocal and clear admission made by the defendant and thus no judgment on admission can be passed. 29. In view of the above, G.A. No. 1 of 2019 is dismissed.