The liability to pay surcharge levied by the CMC under the Calcutta Municipal Corporation Act, 1980, falls on the occupier using the premises for commercial or non-residential purposes.

In this suit a short but interesting question of law calls for determination. The question is whether the Sur-charge levied by the Calcutta Municipal Corporation is the liability of the Landlord or of the occupier. It is agreed by the learned Counsel appearing for the plaintiffs and the State Bank of India, the first defendant, that the Court should proceed to decide the said question of law on the basis of the documents tendered without any oral evidence being adduced. It may be recorded that inspite of Notice issued, to the Calcutta Municipal Corporation, the second defendant, they have not chosen to appear in the suit. The Calcutta Municipal Corporation is a proforma defendant and no relief has been claimed against the Calcutta Municipal Corporation.

2. This suit was instituted by several plaintiffs, seventeen in number, against the State Bank of India and Calcutta Municipal Corporation, first and second defendants respectively.

3. The case of the plaintiffs as appearing from the Plaint is that the Plaintiff Nos. 1 to 14 and one Ramesh Gupta entered into 14 several agreements all dated 10th July, 1979 with Chatterjee Polk Private Limited whereby and whereunder the plaintiffs agreed to purchase 14 several portions on the first floor of the premises No. 33A, Chowringhee Road Calcutta, hereinafter referred to as the 'said Premises'. At the time when the several 14 agreements were entered into the first defendant had already been inducted as tenant of the first floor of the said premises by Chatterjee Polk Pvt. Ltd.

4. By a Decree passed in Suit No. 417 of 1982 in (1) Satish Chandra Agarwalla & Ors. v. Chatterjee Polk Private Limited & Others this Court granted specific performances of the respective agreements entered into by and between the plaintiffs and the said Chatterjee Polk Private Limited. The said decree was passed on October 6, 1982. By and under the said agreements the plaintiffs are entitled to realise the rent and all other dues from the first defendant. On 21st October, 1985 the said Ramesh Gupta the owner of the Flat No. 5A at the said premises No. 33A, Chowringhee Road, Calcutta, died after having made and published his last Will and testament in English language and character dated 15th January, 1983. By and under the said Will the said Ramesh Gupta appointed the Plaintiff Nos. 3, 6, 10 and 15 as the Executors Trustees of the said Will. The said Flat No. 5A comes within the residuary clause of the said Will whereby the said deceased created a Trust called Ramesh Gupta Trust wherein the said deceased appointed the Plaintiff Nos. 3, 6, 10 and 15 as Trustees of the said Trust. The beneficiaries of the said Trust are the Plaintiff Nos. 15, 16 and 17 are the only heirs and legal representatives of the said deceased. In the premises the plaintiffs became the owners of the said 14 several portions at the first floor of the said premises No. 33A, Chowringhee Road, Calcutta.

5. Under an agreement dated 30th May, 1977 the first defendant State Bank of India became a monthly tenant under the said Chatterjee Polk Pvt. Ltd., the then owners in respect of basement, ground, mezzanine and first floors of the said premises No. 33A, Chowringhee Road, Calcutta on the terms and conditions contained therein. The first defendant carries on banking business on the said tenanted portion and as such has been using the same for commercial purposes.

6. The case of the plaintiffs is that they have received several bills from Calcutta Municipal Corporation, the second defendant, inter alia, claiming surcharge in accordance with the provisions of the Calcutta Municipal Corporation Act, 1980 amounting to Rs. 2,26,911.30 p. The first defendant was liable to pay the said surcharge but inasmuch as it failed and neglected and refused to make payment of the said amount, in order to save the amount on account of interest and also the penalty which the second defendant could have recovered in the event of delay in the payment of the said bil