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2004(8) Supreme 490
SUPREME COURT OF INDIA
(From Calcutta High Court)
Ashok Bhan & S.H. Kapadia, JJ.
Kumar Dhirendra Mullick and Ors. -Appellants
versus
Tivoli Park Apartments (P) Ltd. -Respondents
Civil Appeal No. 7234 of 1999
Decided on 1-11-2004
Counsel for the Parties :
For the Appellants : Bijan Kumar Ghosh, G.V.R. Choudhary, Brotindra Mullick, Advocates.
For the Respondents : Sanjiv Sen, Sameer Parekh, Rajeev Mishra, Advocates for the M/s. P.H. Parekh, Advocates.
Held : The decree in question is not a self operative final decree. It is a preliminary decree. It merely directs the Trust to execute the lease on or before 24.10.1985. It does not prescribe any consequence of non deposit of premium. It does not prescribe any consequence of non tender of rent on or before 24.10.1985. Till date, the decree holder has paid the premium of Rs. 30 lacs. It has paid rent amounting to Rs. 96 lacs. In the circumstances, it cannot be said that the decree holder intended to abandon the contract dated 16.8.1980. There is no positive refusal on the part of the respondent to complete the lease. There is no explanation given by the Trust for not moving the application for rescission of the contract for nine years. The decree was passed on 25.7.1985 whereas the application for rescission of the agreement is dated 3.10.1994. As stated above, the Trust did not lead the evidence in suit No. 176/81. The corresponding suit No. 87/81 filed by the Trust was dismissed for non-prosecution. The Trust moved under Order IX Rule 13 CPC for setting aside the decree dated 25.7.1985. That application was dismissed for default vide order dated 1.8.1987. The Trust moved the application for restoration which was also dismissed for default on 16.7.1988. The Trust moved in appeal against the decree dated 25.7.1985. That appeal was also dismissed. The decree holder has referred to the entire correspondence between the parties which indicate that during this period of nine years in the guise of negotiations, the decree holder was prevented from filing execution application. The decree holder was repeatedly assured of settlement. The decree holder was repeatedly assured that lease would be executed in its favour. Attempt was also made by the Trustees during the interregnum to lease the property to Dilip Chand Kankaria and Smt. Sudha Kankaria. Lastly, in the present case, the decree holder was put in possession under the deed of assignment dated 20.8.1970. The respondent was not put in possession under the agreement dated 16.8.1980. In the circumstances, the trial Court erred in directing rescission of the said agreement dated 16.8.1980. For the aforestated reasons, we do not find any merit in this appeal. Before concluding, we may point out that till date the decree holder has deposited Rs. 96 lacs including premium of Rs. 30 lacs. The decree holder hereby undertakes to deposit the balance amount of Rs. 19,20,000/- within 30 days from the date of this judgment. He also undertakes to pay Rs. 10,00,000/- by way of compensation for loss, if any. In the circumstances, we direct the decree holder to tender a sum of Rs. 29,20,000/- within 30 days from today to the Trustees. On receipt, the Trustees shall execute the lease in favour of the respondent herein for 70 years commencing from 1.5.1981 to 30.4.2051. (Paras 34 to 36)
JUDGMENT
Kapadia, J.-This civil appeal, by grant of special leave, arises out of judgment and order dated 10.6.1999 of the High Court of Calcutta in FMA No. 37 of 1997 allowing the appeal of the respondent herein and setting aside the order of 2nd Assistant District Judge, Alipore, Calcutta, rescinding the agreement dated 16.8.1980 under section 28 of the Specific Relief Act, 1963 (hereinafter referred to as "the 1963 Act").
2. Briefly, the facts are as follows. Appellants herein are the Trustees of the Trust Estate of Raja Rajendra Mullick Bahadur owning suit premises bearing Nos. 225B and 225C, Lower Circular Road, Calcutta with eight cottages and a main building, more particularly described in the schedule annexed to the lease dated 25.11.1960 executed by the Trustees in favour of Mohd. Ismail for 21 years commencing from 1.5.1960.
3. Some of the relevant terms and conditions of the said lease are as follows:-
"(i) The lessee, i.e. Mohammad Ismail, would pay monthly rent at the rate mentioned in the said lease;
(ii) The lessee would pay the entire occupiers share of Corporation rates and taxes;
(iii) The lessee would be entitled to sublet all or any portion of the demised premises. The lessee would, however, be liable for regular payment of rents and for due observance and performance of the terms and conditions of the lease agreement;
(iv) Upon the expiration or sooner determination of the lease, the lessee would be obliged to deliver quietly and peaceful possession of the property to the lessors;
(v) The lessee would not do or suffer to be done anything in or upon the said property or any part thereof that may cause nuisance or annoyance to the lessors or the other tenants of the adjoining premises;
(vi) The lease would take effect retrospectively from Ist May, 1960 and would be for a period of 21 years i.e. up to Ist May, 1981.
(vii) The lease would come to an end in the event of the rents being in arrear for two months after the due date or in case of breach of any of the covenants of the lease agreement."
4. Subsequent to the grant of the above lease, the said Mohd. Ismail executed a deed of assignment dated 20.8.1970 and assigned the suit premises to the respondent-decree holder for the unexpired period and was subject to the terms and conditions contained in the lease. In the premises, the respondent herein was entitled to remain in possession of the said premises up to 1.5.1981 when the said lease was due to expire.
5. Before expiry of the lease, on 16.8.1980, an agreement was entered into by the then Trustees and the respondent-decree holder to the effect that terms and conditions of the said lease would be extended/renewed in favour of the said respondent for a further period of 70 years from 1.5.1981 on payment of increased rent of Rs. 30,000/- per month plus premium of Rs. 30 lacs. Respondent herein paid Rs. 4 lacs being part of the total premium of Rs. 30 lacs agreed to be paid at the time of the execution of the Transfer Deed.
6. Since the Trustees failed to execute the deed, respondent herein filed Title Suit No. 176 of 1981 in the Court of Assistant District Judge, Alipore, Calcutta (hereinafter referred to as "the trial Court") for specific performance of the agreement dated 16.8.1980. On 25.7.1985, the said suit was decreed.
7. In the said suit, the defendant-Trustees, made an application under Order IX Rule 13 CPC for recall of the decree. This application was not pursued, hence, it got dismissed. An appeal was also filed, however, the same was dismissed.
8. To complete the chronology of events, it may be mentioned, that, the Trustees had instituted suit No. 87/81 which got dismissed for non-prosecution.
9. On 3.10.1994, the Trustees - appellants herein, moved an application under section 28(1) of the 1963 Act read with section 151 CPC. It was alleged that there was a collusion between the two trustee
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