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IN THE HIGH COURT AT CALCUTTA
Manash Nath Roy and Samir Kumar Mookherjee, JJ.
M/s. Anirban Chit Fund (P) Ltd.
and
Insulation Materials Manufacturing Company Private Ltd - Objector
Versus
Commissioner, Sanchaita Investments - Respondent
Case Nos. 37 of 1986 and 193 of 1987
Decided on : November 19, 1987
Whether a tenancy right is attachable? Whether the attachment in the instant case was duly levied and authorized?
Fact of the Case:
The Commissioner, Sanchaita Investments attached the tenancy right standing in the name of Anirban Chit Fund (P) Ltd. in respect of two office Rooms being Nos. 7 and 9 on the mezzanine floor of the premises No. 1/1, Vansitart Row, Calcutta-l along with all furnitures, fixture, moveables and all other appertaincies attached and lying therein. Anirban Chit Fund (P) Ltd. claimed to be one of the Directors of the said Company. The Company instituted Ejectment Suit No. 843 of 1985 in the City Civil Court at Calcutta, for recovery of khas possession of the premises in occupation of the tenant. It was the further case of the deponent that on the date of service of the notice of ejectment, which in fact, was served on 3rd September, 1986, there was not in existence any tenancy light of the said Anirban Chit Fund (P) Ltd., in respect of the premises in question, as their tenancy was duly determined and possession was obtained on execution of the decree, as passed. The deponent has stated that as such or in any event, the question of attaching the premises in question, as has been contended by the Commissioner, Sanchaita Investments, would not arise.
Finding of the Court:
The tenancy right in the instant case becomes attachable. The bar pleaded by Mr. Jayanta Mitter on the basis of the provisions of section 14(1) of the West Bengal Premises Tenancy Act does not have much relevance for determinations of liability for attachment of such tenancies as it does not render any disposition by the tenant absolutely void. But, may only create and ground for eviction. It is significant to note that the tenancy in the instant case was not a residential tenancy and as such the exemption granted with regard to such residential tenancy from attachment, section 60(1)(kc) of the Code of Civil Procedure does not apply.
Issues: Whether the tenancy right is attachable?
Ratio Decidendi: The test of a property's liability to attachment as laid down by the highest judiciary of the country has already been indicated by us hereinabove. Even applying the said test, the tenancy right in the instant case becomes attachable. The bar pleaded by Mr. Jayanta Mitter on the basis of the provisions of section 14(1) of the West Bengal Premises Tenancy Act does not have much relevance for determinations of liability for attachment of such tenancies as it does not render any disposition by the tenant absolutely void. But, may only create and ground for eviction. It is significant to note that the tenancy in the instant case was not a residential tenancy and as such the exemption granted with regard to such residential tenancy from attachment, section 60(1)(kc) of the Code of Civil Procedure does not apply.
Final Decision: The order of attachment is confirmed and the Commissioner is directed to put up the flat for public auction. The Commissioner is also authorized to give vacant possession of the flat in question by evicting the existing occupants, whose claim of tenancy we have disbelieved in the foregoing part of our judgment, by execution of this order of ours and if necessary, with police help.
Roy, J.:
In terms of the powers conferred on him by the order passed and made on 4th May, 1983 and 27th September, 1983, by the Hon'ble Supreme Court of India, in Writ petition Nos. 638, 757-800 of 1983, the Commissioner, Sanchaita Investments, in Case No. 37 of 1986, issued an order of attachment against M/s. Insulation Materials Manufacturing Company Private Limited (hereinafter refereed to as the said Company) in respect of the tenancy right standing in the name of Anirban Chit Fund (P) Ltd. in respect of two office Rooms being Nos. 7 and 9 on the mezzanine floor of the premises No. 1/1, Vansitart Row, Calcutta-l along with all furnitures, fixture, moveables and all other appertaincies attached and lying therein. By the order in question, which was passed on 3rd September, 1986, the tenancy right and the properties as mentioned hereinbefore were sought to be attached by the Commissioner, Sanchaita Investments, claiming them to be actually belonging to or controlled and managed by Sanchaita Investments, in the name of others.
2. On receipt of the notice dated 3rd September, 1986, as mentioned hereinbefore, a petition dated 1st October, 1986, was filed through one Ratanlal Rampuria claiming to be one of the Directors of the said Company. In the petition, it has been stated that the said Company viz, the objector are the lessee/landlords in respect of 1/1A, Vansitart Row, Calcutta-700 001 and they inducted M/s. Anirban Chit Fund (P) Ltd. as a monthly tenant in respect of Room No.9 on the first floor of premises No.l/1, Vansitart Row, Calcutta-I with effect from 1st January, 1973 and the monthly rent was Rs. 643.90 P. The terms and conditions of the concerned agreement of tenancy dated 2nd January, 1973, have also been disclosed in the concerned petition. It has been indicated that by a letter dated 2nd January, 1973, the monthly rent as mentioned above, in respect of the tenancy was enhanced from 643.90 P. to Rs. 705/- by the said company through their letter dated 2nd January 1973, in consideration of the improvement which was done to the premises and it has also been stated that the tenant in question, had agreed to pay the rent at the rate of Rs. 705/- per month with effect from 1st January, 1974 and thereafter, they have shifted their office room No.9 to a larger area and consequently monthly rent was enhanced to Rs. 1,025/-, in terms of another agreement dated 2nd September, 1975. The agreement in question has also been disclosed with the petition.
3. It was the case that by virtue of the further agreement, Room No. 7 on the mezzinine floor of the premises in question was also included in the tenancy of the tenant as mentioned above, with effect from 1st October, 1977 at an additional rent of Rs. 325/- and thus, the total rent payable by the tenant became Rs. 1,350/- on and from 1st October, 1977.
4. It was the case of the deponent that the tenant in question, had failed and neglected to pay the monthly rent from March, 1983 to October, 1984, as a result whereof, in November, 1984, the said Company filed a Distress Cases in the Small Causes Court at Calcutta, being Distress Case No. 102 of 1984, for recovery of rent for a period of 12 months from the tenant in question, by obtaining leave from the Small Causes Court at Calcutta. It is an admitted fact that the said Company, through the Distress Case as mentioned above, realised the rent for the 12 months in question.
5. It was the further case of the deponent that the tenant again defaulted in making payment of further rent from November, 1984 and as such, they made themselves liable to be evicted from the premises in question and the said Company having no alternative, on due service of Ejectment notice dated 5th October, 1985, terminated the tenancy in question and asked the tenant to quit and vacate the premises in their possession and also to deliver, vacant possession of the same. This notice has been stated to have been duly served on the tenant, but since t
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