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THE HIGH COURT AT CALCUTTA
Jyotirmay Bhattacharya, Ishan Chandra Das, JJ.
M/s. Cooke and Kelvey Properties Pvt. Ltd. – Petitioner
Versus
M/s. Expo International & Anr. – Respondents
F.M.A. 968 of 2010 With F.M.A 969 of 2010
Decided on : 23-12-2016
TRANSFER OF PROPERTY ACT - Lease - Determination - Forfeiture - Sub-lease - Effect - West Bengal Premises Tenancy Act, 1956 - Repeal - West Bengal Premises Tenancy Act, 1997 - Applicability - Binding Effect of Eviction Decree on Sub-tenant - Collusive Decree.
Fact of the Case:
The appellant, M/s. Cooke and Kelvey Properties Pvt. Ltd., filed two appeals challenging the common judgment and order passed by the learned Executing Court in Misc. Case No. 3450 of 2006 and Misc. case No. 3117 of 2006, both arising out of Title Suit No. 1692 of 2003. The appeals arose from the execution of a decree for recovery of khas possession of the suit premises after evicting the defendant therefrom. The decree was passed against the original lessee, M/s. Hindustan Motor Finance Corporation Ltd., in an eviction suit filed by the appellant. The sub-tenants, M/s. Expo International and M/s. Kolkata Trade Syndicate, resisted the execution of the decree in respect of the portion in their occupation. The executing court allowed the objections filed by the sub-tenants and held that the decree was not binding upon them and that they had acquired independent rights in the suit property.
Finding of the Court:
The court held that the impugned order passed by the learned Executing Court in both the miscellaneous cases could not be retained on record and set them aside. The court held that the objectors in the respective Misc. Cases have not acquired any independent right in respect of the suit premises and the decree of eviction which was passed by the learned Trial Court in favour of the decree-holder against the judgment-debtor in Title Suit No.1629 of 2003 is binding upon the objectors being the sub-tenants under the original lessee, namely, M/s. Hindustan Motor Finance Corporation Ltd. viz the judgment-debtor in the said suit.
Issues: 1. Whether the sub-tenants acquired any independent right in the suit property? 2. Whether the decree of eviction passed against the original lessee is binding upon the sub-tenants? 3. Whether the decree of eviction obtained by the appellant against the original lessee is a collusive decree?
Ratio Decidendi: 1. The court held that the sub-tenants did not acquire any independent right in the suit property as the original lessee's tenancy was determined by service of notice under Section 106 of the Transfer of Property Act and not by forfeiture under Section 111(g) of the said Act. As such, Section 115 of the Transfer of Property Act, which protects the tenancy of sub-tenants in case of forfeiture of the lease, did not apply in the instant case. 2. The court held that the decree of eviction passed against the original lessee is binding upon the sub-tenants as they were not necessary parties to the eviction suit and their non-joinder in the suit did not make the decree inexecutable qua them. The court relied on the decisions of the Hon'ble Supreme Court in the cases of Balavant N. Viswamitra & Ors. -vs- Yadav Sadashiv mule reported in AIR 2004 SC 4377 and Rupchand Gupta Vs. Raghubanshi (Pvt.) Ltd. and another reported in AIR 1964 SC 1889. 3. The court held that the decree of eviction obtained by the appellant against the original lessee is not a collusive decree as there was no evidence of any secret arrangement between the appellant and the original lessee to obtain a decision of the judicial tribunal for some sinister purpose.
Final Decision: The appeals filed by the appellant were allowed. The impugned orders passed by the learned Executing Court in both the miscellaneous cases were set aside. The court directed the learned Executing Court to proceed with the Execution case in accordance with the law.
1. Two First Miscellaneous Appeals were filed by the appellant herein challenging the common judgment and order being No.67 dated 26th April, 2010, passed by the learned Judge 7th Bench, City Civil Court at Calcutta by which two miscellaneous cases being Misc. Case No. 3450 of 2006 and Misc. case No. 3117 of 2006, both arising out of Title Suit No. 1692 of 2003, were allowed by the learned Executing Court.
2. The appeal being FMA No.968 of 2010 arises out of the judgment and order passed by the learned Executing Court in Misc. case No.3450 of 2006. The other appeal being Misc. case No. 969 of 2010 is directed against the judgment and order being No.67 dated 26th April, 2010 passed by the learned Executing Court in the Misc. case No. 3117 of 2006. The appellant is common in both the appeals. The judgment debtor/respondent No.2 is also common in both the appeals. The third party objectors/respondents are not common. In one of such appeals the third party objector was M/s. Expo International and in the other appeals the third party objector was M/s. Calcutta Trade Syndicate being a proprietorship concern of Smt. Ushashree Modi.
3. Since common question of law and facts were involved in both the aforesaid miscellaneous cases, both the aforesaid Misc. cases were tried analogously and by a common judgment and/or order, both the aforesaid Misc. cases were disposed of.
4. Since common question of fact and law are involved in these two appeals, we have decided to dispose of both these appeals by a common order. Accordingly, we have heard the learned Counsel of both the appeals simultaneously one after another.
5. Let us now consider the merit of these appeals in the facts of the present case. The facts which are admitted by both the parties in the present appeals are as follows:-
(I). By a registered deed of lease dated 28th July, 1965 executed between M/s. Cooke and Kelvey Properties Pvt. Ltd., the appellant herein on the one part as the lessor and M/s. Hindustan Motor Finance Corporation Ltd. described therein as the lessee, the whole of the 2nd Floor admeasuring two thousand eight hundred fifty square feet of premises No.20, Old Court House Street, Kolkata 700001 was let out for a period of 16 years, commencing from 21st July, 1965 and ending on 20th July, 1981 @ Re.1/-per Sq. Ft. i.e., at a monthly rental of Rs.2,850/- (Rupees two thousand eight hundred fifty) only. It was provided in Clause 11 of the said lease deed that the lessee before expiry of one year from the date of the commencement of the lease, is not entitled to sub-let wholly or any part of the demised premises.
(II). M/s. Expo International a proprietorship firm represented by Bhagabati Prasad Goenka took sub-lease of a portion of the 2nd Floor admeasuring more or less 1425 Sq. Ft. lying and situate at premises No.2, Old Court House Street, Kolkata - 700001 from the lessee namely, M/s. Hindustan Motor Finance Corporation Ltd.
(III). In April, 1980 M/S. Kolkata Trade Syndicate sole proprietorship concern was inducted as a sub-lessee in respect of a portion of the 2nd Floor admeasuring more or less 660 Sq. ft. of the said premises by the lessee, namely, Hindustan Motor Finance Corporation Ltd.
(IV). The lease deed which was executed between M/s. Cooke and Kelvey Properties Pvt. Ltd. and M/s. Hindustan Motor Finance Corporation Ltd. on 28th July, 1965 expired by efflux of time on 20th July, 1981. However, even after expiry of the lease, the respondent No.2 continued to occupy the 2nd Floor of the said premises by holding over and thus, the said respondent became a monthly tenant and its tenancy started to be governed by the West Bengal Premises Tenancy Act, 1956.
(V). An agreement was entered into between M/s. Cooke and Kelvey Properties Pvt. Ltd. and M/s. Hindustan Motor Finance Corporation Ltd. on 27th March, 1981 whereby M/s. Cooke and Kelvey Properties Pvt. Ltd. agreed to grant a lease in favour of M/s. Hindustan Motor Finance Corporation Ltd. for a
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