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2019 Supreme(Cal) 598
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SABYASACHI BHATTACHARYYA, J.
ALW Estates Pvt. Ltd. - Petitioner
Versus
M/s. Rajlaxmi Investment & Trading Co. Ltd. & Another - Respondents
C.O. No. 3836 of 2018 With C.O. No. 3840 of 2018
Decided On : 19-06-2019
For the Petitioner:Sakti Nath Mukherjee, Abhijit Mitra, Arindam Banerjee, Arpita Saha, Animesh Pal, Advocates.
For the Opposite Parties :S.P. Roychowdhury, Saptanshu Basu, Prabal Kumar Mukherjee, S.N. Dutta, Bhaskar Mukherjee, Advocates.
The main legal point established in the judgment is the recognition of the petitioner's strong prima facie case of possession through its business associates and the grant of stay of all further proceedings in the execution case pending the disposal of Miscellaneous Case No. 5 of 2017.
Headnote:
POSSESSION - AGREEMENT - 1956 Lease Agreement, Code of Civil Procedure, Order XXI Rule 101 - The court discussed the possession of the petitioner ALW through its business associates in the decretal premises. The court found that the agreement dated July 1, 2006, between the petitioner and the decree-holder was a contingent agreement of 21 years' lease, and the possession of the petitioner through its business associates was admitted by the opposite party no.1. The court held that the petitioner established a strong prima facie case of possession and granted stay of all further proceedings in the execution case pending the disposal of Miscellaneous Case No. 5 of 2017.
Fact of the Case:
The petitioner ALW alleged that the lease deed dated February 1, 1956, was modified, permitting ECEL to sub-let, transfer, and assign the leasehold interest in favor of others. The opposite party no. 1 instituted Title Suit No. 12 of 1997 for eviction of ECEL from the premises. The petitioner entered into an unregistered agreement with the decree-holder to grant lease for a period of 21 years, commencing after the eviction of ECEL, in respect of an area of 60,000 sq. ft. out of the parent premises.
Finding of the Court:
The court found that the petitioner established a strong prima facie case of possession and granted stay of all further proceedings in the execution case pending the disposal of Miscellaneous Case No. 5 of 2017.
Issues: The issues revolved around the possession of the petitioner through its business associates in the decretal premises and the admissibility and enforceability of the agreement dated July 1, 2006.
Ratio Decidendi: The court held that the petitioner established a strong prima facie case of possession through its business associates and granted stay of all further proceedings in the execution case pending the disposal of Miscellaneous Case No. 5 of 2017.
Final Decision: The court allowed the revisional applications, setting aside the orders impugned therein and granting stay of all further proceedings in the execution case pending the disposal of Miscellaneous Case No. 5 of 2017. The executing court was directed to assess the appropriate occupation charges as a condition for such stay.
JUDGMENT :
1. The two revisional applications, having arisen from connected matters, are taken up together for hearing. The brief facts of the case are as follows:
2. On February 1, 1956, the decree-holder/opposite party no. 1, Rajlaxmi Investment and Trading Co. Pvt. Ltd., entered into a lease agreement in favour of the judgment debtor/opposite party no. 2, namely, Electric Construction Equipment Industries Ltd. (ECEL), for a period of 40 years.
3. The said lease expired by efflux of time on January 31, 1996. The petitioner alleges that the lease deed dated February 1, 1956 was modified in the meantime, permitting ECEL to sub-let, transfer and assign the leasehold interest in favour of others.
4. The opposite party no. 1 instituted Title Suit No. 12 of 1997 on January 28, 1997 for eviction of ECEL from the aforesaid premises, which measured about 20 bighas (2,14,618 sq. ft. as per the opposite party no. 1).
5. On July 1, 2006, that is, during pendency of the eviction suit, the decree-holder Rajlaxmi Investment entered into an unregistered agreement with the petitioner ALW to grant lease to the petitioner for a period of 21 years, commencing after the eviction of ECEL, in respect of an area of 60,000 sq. ft. out of the parent premises, 3 which area was allegedly in actual physical occupation of 18 business associates of ALW (all of whom were mentioned in a schedule to the agreement) at a monthly rental of Rs. 1,80,000/-. An approximate sum of Rs. 18,00,000/- was allegedly received by Rajlaxmi from ALW under the said agreement, as per the allegations of the petitioner.
6. The said suit was ultimately decreed against the judgment debtor/opposite party no.2, namely, ECEL, on December 18, 2010. In the month of January, 2011, the decree-holder/opposite party no.1 levied execution of the said decree, giving rise to Title Execution Case No. 1 of 2011.
7. The judgment debtor/opposite party no. 2 preferred an appeal against the eviction decree but later, on August 1, 2014, withdrew the same. Thereafter on August 12, 2014, the judgment debtor ECEL surrendered possession of the parent premises by a letter of surrender in favour of the decree-holder, upon recording that 18 business associates of ALW had entered into an arrangement with the decree-holder and were making payments of rent directly to the decree-holder.
8. One Benarasi Rai, one of the 18 occupants, allegedly in occupation of an area of 26,442 sq. ft., filed Miscellaneous Case No. 4 of 2015 under Order XXI Rule 101 of the Code of Civil Procedure before the Civil Judge (Senior Division) at Sealdah. ALW, the present petitioner, was subsequently impleaded as a respondent in the said proceeding.
9. On January 7, 2017, Miscellaneous Case No. 4 of 2015 was dismissed, inter alia observing that the proposed lessee ALW Estate Pvt. Ltd. had not got possession of any portion of the decretal property pursuant to the terms of the agreement dated July 1, 2006.
10. Being aggrieved by such finding, ALW, the present petitioner, filed Miscellaneous Appeal No.34 of 2017.
11. ALW also filed a separate application under Order XXI Rule 101 of the Code of Civil Procedure, bearing Miscellaneous Case No. 5 of 2017, asserting its independent rights, primarily on the basis of the agreement dated July 1, 2006, the alleged payments made by it pursuant to it and on the basis of its alleged possession through its 18 business associates. On November 7, 2017, an application for stay filed by ALW in Miscellaneous Case No. 5 of 2017 was refused, primarily on the basis of the finding in the order dated January 7, 2017, passed in Miscellaneous Case No. 4 of 2015, to the effect that ALW did not have possession in respect of the suit premises.
12. ALW preferred against the said order a revisional application, bearing C.O. No.3635 of 2017, which was disposed of on November 22, 2017 by a co-ordinate bench of this court, holding that so long as the findings recorded in the proceedings of Benarasi Rai stared at ALW, there was no i
