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IN THE HIGH COURT OF CALCUTTA
Biswajit Basu, J.
ALW Estates Private Limited - Appellant
Versus
M/s Rajlaxmi Invetment And Trading Company Private Limited - Respondent
C.O. No. 3855 of 2019, 3928 of 2019
Decided On : 07-04-2021
Article 227 - Revisional applications against Order No. 39 dated September 21, 2019 passed by the learned Civil Judge (Senior Division) at Sealdah in misc. Case No. 05 of 2017 arising out of Title Execution Case No. 01 of 2011 - Order XXI Rules 99 to 101, Section 151 of the Code of Civil Procedure - ANWARBI VS. PRAMOD D.A. JOSHI & OTHERS, (2000) 10 SCC 405, BRAHMDEO CHAUDHARY VS. RISHIKESH PRASAD JAISWAL & ANOTHER, (1997) 3 SCC 694, SRI AMITAVA MITTER & ORS. VS. M/S. NEELAM & ORS. - ALW seeking determination of its right to occupy the subject property as lessee under Rajlaxmi on the basis of the independent agreement dated July 01, 2006 - Court directed to assess appropriate occupation charges - ALW's liability to pay occupation charges - Rate of occupation charges and from which date payable - Stay of execution case - Arrear occupation charges payable by ALW - Final decision modifying the impugned order without costs
Fact of the Case:
Rajlaxmi leased property to ECE, who was later sued for eviction. During the suit, Rajlaxmi agreed to lease to ALW. ALW filed for determination of its status as lessee under Rajlaxmi. The executing Court refused ALW's stay and recall orders, leading to revisional applications. Rajlaxmi filed for occupation charges, which the executing Court assessed at a lower rate. ALW argued against liability and the quantum of charges, citing agreements and legal precedents.
Finding of the Court:
The Court found that ALW cannot evade its liability to pay occupation charges to protect its possession over the subject property. The Court also held that the executing Court rightly relied on the agreement in assessing the amount of occupation charges but erred in fixing the charges at a lower rate. The Court determined the arrear occupation charges payable by ALW and ordered payment in installments.
Issues: The issues involved were the determination of ALW's right to occupy the subject property, the liability to pay occupation charges, the rate and date of payment of such charges, and the stay of the execution case.
Ratio Decidendi: The Court held that ALW cannot evade its liability to pay occupation charges to protect its possession over the subject property. The Court also determined the rate and date of payment of occupation charges based on the agreement between the parties.
Final Decision: The Court modified the impugned order, determining the arrear occupation charges payable by ALW and ordering payment in installments, while granting a conditional stay of the execution case.
JUDGMENT
Biswajit Basu, J. - These two revisional applications under Article 227 of the Constitution of India are taken up together for analogous hearing and disposal since both the revisional applications are directed against the Order No. 39 dated September 21, 2019 passed by the learned Civil Judge (Senior Division) at Sealdah in misc. Case No. 05 of 2017 arising out of Title Execution Case No. 01 of 2011.
2. Alw Estates Private Limited (hereinafter referred to as the 'ALW' in short) is the petitioner of C.O. 3855 of 2019 whereas M/s. Rajlaxmi Investment and Trading Company Private Limited (hereinafter referred to as the 'Rajlaxmi' in short) is the petitioner of C.O. 3928 of 2019.
3. The undisputed facts of this case relevant to deal with the issues involved in the present revisional application are thus, Rajlaxmi by a deed of lease dated February 01, 1956 inducted Electronic Construction and Equipment Company Limited (hereinafter referred to as the 'ECE' in short), the opposite party no. 2 in both the revisional applications, as lessee for a period of forty years in respect of more or less 20 Bighas 4 Cottahs and 9 Chittaks of land with different structures standing thereon at Premises No. 9, Kaliprasanna Singha Road, Kolkata- 700002 (hereinafter referred to as the 'leasehold property' in short). Rajlaxmi after expiry of the said period of lease filed a suit for eviction against ECE in the Court of learned Civil Judge (Senior Division) at Sealdah being Title Suit No. 12 of 1997.
4. The Rajlaxmi during the pendency of the said suit for eviction, by an agreement dated July 01, 2006 agreed to grant lease to ALW after disposal of the said suit for eviction for a period of twenty one years in respect of an area of 60,000 sq. ft. out of the entire leasehold property on the terms and conditions enumerated in the said agreement. In the said agreement, possession of eighteen business associates of ALW over the area of 60,000 sq. ft. was acknowledged and names of the said business associates of ALW were recorded under a schedule appended to the said agreement.
5. The said suit for eviction was decreed on December 18, 2010. ECE, although preferred Title Appeal No. 56 of 2010 against the said decree, but ultimately withdrew it. The said decree was put into execution in Title Execution Case No. 01 of 2011. In the said execution case, ALW has filed an application under Order XXI Rules 99 to 101 read with Section 151 of the Code of Civil Procedure for determination of the question of its status as lessee under Rajlaxmi on the basis of the aforesaid agreement dated July 01, 2006 in respect of the said 60,000 sq.ft of area which is more fully described under the schedule appended to the said application (hereinafter referred to as the 'subject property' in short). The said application has been registered before the executing Court as the misc. Case No. 05 of 2017 out of which the present revisional applications arise.
6. The prayers of ALW for stay of all further proceedings of the execution case till the disposal of the said misc. case and for recall of an order granting Police help to Rajlaxmi for execution of the said decree of eviction were refused by the executing Court. ALW challenged the said orders in two separate revisional applications being C.O. 3840 of 2018 and C.O. 3836 of 2018.
7. The said revisional applications were allowed by the judgment and order dated June 19, 2019 by granting stay of all further proceedings of the execution case till the disposal of the said misc. Case with a direction upon the executing Court to assess the appropriate occupation charges as condition for such stay upon hearing both sides and, if necessary, permitting them to produce documentary and other evidences. The parties did not adduce any oral evidence, however, after the matter was remanded back to the executing Court, Rajlaxmi, on August 08, 2019 filed an application for fixation of said occupation charges @ Rs. 17.33 per sq. ft. per month on t
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