Vijay H. Punwani vs Samaresh Bishnu Majumdar

Ruma Pal, J.—This appeal has been preferred from an interlocutory order passed on the application of the Plaintiff (being the Respondent No. 1 herein). By the impugned order, the Learned Single Judge has appointed a Receiver to take possession of the mezzanine floor of Premises No. 31, Chowringhee Road, Calcutta.

The case of the Appellant before us, briefly stated, is that the Appellant was in possession of the said mezzanine floor as a tenant under the Respondent No. 2. The Respondent Nos. 3 and 4 are the partners of the Respondent No 2. It is also the Appellant''s case that he was in physical possession of the mezzanine floor and had been in effect dispossessed by the impugned order. According to the Appellant, the Plaintiff/Respondent No. 1 had no right to nor was he ever in possession of the mezzanine floor and had Come to Court with a false case of having been dispossessed from the mezzanine floor by the Appellant and the Respondent Nos. 3 and 4. It is stated that the Appellant was in fact not even in India when the alleged Dispossession took place.

The Appellant is supported by the Respondent No. 4, one of the partners of the Respondent No. 2. She has stated that the Plaintiff/Respondent No. 1 does not exist at all. She has commented on the fact that the plaint and the petition were filed by a constituted attorney and that the affirmation In the plaint and in the petition were discrepant. She has also argued that no money at all had been advanced by the Plaintiff/Respondent to the Respondent firm nor was the Plaintiff/Respondent No. 1 in a position to do so.

The Plaintiff/Respondent No. 1 urged that the order under appeal could not be faulted. He has said that he had lent a sum of Rs. 16 lakhs to the Respondent No. 2. The amount had been accepted by the Respondent No. 3, one of the partners of the Respondent No. 2. This advance had been admitted by the Respondent No. 3, who had executed 4 promissory notes dated January 2, 1995, April 5, 1995, April 13, 1995 and May 4, 1995, recording receipt of the sum of Rs. 5 lakhs 4 lakhs, 4 lakhs and 3 lakhs respectively. Copies of all the 4 promissory notes were annexed to the pleadings by the Plaintiff. The execution of these documents had not been denied by the Respondent No. 3 at all in his affidavit filed before the Trial Court. It is the further case of the Plaintiff/ Respondent No. 1 that the amount had been advanced to purchase certain properties at Alipore but the deal did not materialise. According to the Plaintiff/Respondent No. 1 on April 30, 1996, the Respondent No. 3 representing the Respondent No. 2 wrote a letter to the Plaintiff/Respondent No. 1 confirming that an amount of Rs. 20.35 lakhs inclusive of interest was payable by the Respondent firm to the Plaintiff/Respondent No. 1 and also recording that the firm would permit the Plaintiff/ Respondent No. 1 to take possession and use the office space of the entire mezzanine floor measuring about 1200 sft. ''at our show room on the ground floor at Premises No. 31, Chowringhee Road, Calcutta, under us on payment of Rs. 1,500.00 per month''. A sum of Rs. 5 lakhs would be retained as security by the firm out of the sum of Rs. 20.35 lakhs and the balance would be repaid forthwith. The Plaintiff/Respondent No. 1 was also requested to attend at the show room on May 2, 1996, at 10.00 a.m. to enable the firm to deliver peaceful possession of the office space ''with exclusive entrance with stairs leading from Park Street''. The execution of this letter has also not been denied by the Respondent No. 3. The schedule of the letter reads as follows:

All that office space/at the show room of the Defendant No. (illegible) being the entire mezzanine floor about 1200 sft. on the ground floor at Premises No. 31, Chowringhee Road, Calcutta 700016, along with exclusive entrance and stairs leading from Park Street.

The Plaintiff/Respondent No. 1 has also relied upon a letter signed by the Respondent No. 3 as partner of the firm, dated May 2, 1996, placing on record that vacant possession of the mezzanine floor with exclusive entrance at the show room at 31, Chowringhee Road, Calcutta had been delivered by the firm. The letter goes. We confirm that you shall be entitled to use and occupy the said mezzanine space upon paying of Rs. 1,500.00 per month. The other stairs leading from our Show Room to the mezzanine shall however be not allowed to be used by you, You shall be at liberty to use the said mezzanine office for carrying on your business. We also forward you herewith our stamped receipt for Rs. 5 lakhs held by us as security deposit.

Further, we forward you herewith our three cheques all dated 2nd instant respectively for Rs. 5 lakhs, Rs. 5 lakhs and Rs. 5.35 lakhs all in your favour drawn on Standard Chartered Bank towards payment of the above balance outstanding dues inclusive of interest upto 30th April, 1996 in full and final settlement.

A receipt was executed by the Respondent No. 3 on May 2, 1996, which records that it would be treated as security deposit for possession and occupancy as mentioned in the said letter dated April 30, 1996.

The three cheques all dated May 2, 1996, for Rs. 5 lakhs, 5 lakhs and 5.35, lakhs signed by the Respondent No. 3, as partner of the Respondent No. 2 copies of which have been annexed, were dishonoured on presentation. The bank''s intimation in this regard has also been disclosed. The Plaintiff/Respondent No. 1 has finally relied upon two rent receipts signed by one Bablu Sen for the months of May, 1996, and June, 1996, ''in respect of office space being the entire mezzanine measuring 1200 sq. ft. on the ground floor at 31, Chowringhee Road, Calcutta''.

The Respondent No. 3 did not appear before us. He had, however, filed an affidavit before the Learned Single Judge in which he admitted execution of various documents relied on by the Plaintiff/Respondent No. 1. According to his affidavit he executed the documents at the instance of one Manturam Praladhkar of M/s. Manturam and Co. on the basis of promises made by the latter that Rs. 16 lakhs would be advanced. According to the Respondent No. 3 no such money was in fact advanced.

The Learned Single Judge found that the Appellant was in possession of the mezzanine floor but that the Appellant had not been able to establish any right prima facie thereto. As far as the Plaintiff/Respondent No. 1''s case was concerned, the case of his dispossession does not appear to have been accepted, but the execution of the documents creating a tenancy in favour of the Appellant in respect of the mezzanine floor has been. In that view of the matter the Learned Single Judge allowed the application to the extent that the Receiver was directed to take possession of the mezzanine floor and keep the same in his custody till the disposal of the suit.

The finding that the Appellant was in possession of the mezzanine floor when the suit was filed has not been challenged before us by the Respondent No. 1. It would need, in our view, a strong case to deprive the Appellant of that possession. Had the Plaintiff/Respondent No. 1 been in prior possession of the premises in question or if the Plaintiff/Respondent No. 1 established, at least prima facie, that he had a clear and Superior right to the mezzanine the court might have been justified in depriving the Appellant of its undisputed possession which has also been admitted in the petition of the Plaintiff Respondent No. 1 (vide paragraph 20).

The documents relied upon by the Respondent No. 1 have already been noted. As far as the Appellant is concerned his case is that in August, 1995, the partners of the Respondent No. 2 namely the Respondent Nos. 3 and 4 entered into an agreement with him on September 30, 1995, (referred to as the first agreement) whereby the said Respondents created a subtenancy in respect of 1350 sft. on the ground floor of Premises No. 31, Chowringhee Road. Calcutta, at a monthly rent of Rs. 3000.00. The Appellant took possession of 1350 sft. on that date and there is no dispute that he is entitled to that portion of the shop room. The Appellant claims the disputed mezzanine floor under an agreement dated April 26, 1996, (referred to as the second agreement) between the Appellant and the Respondent Nos. 3 and 4 as partners of the Respondent No. 2. According to the Appellant a sum of Rs. 5 lakhs was paid by cheque on the date of the agreement as well as Rs. 3 lakhs by cash. Subsequently a further sum of Rs. 5.50 lakhs was paid on May 24, 1996. The relevant portions of the second agreement are excepted herein below, (wherein the Respondent No. 2 is referred to as the first party and the Appellant is referred to as the second party):

Whereas the first party is the lawful tenant of the all that space butted and bounded on the north by Park Street, on the south partly by the offices of the Shree Madhusudhan Mills Ltd. and partly by New Bank of India and partly Godrej and Boyce Manufacturing Co. Pvt. Ltd. and on the west partly by Shree Madhusudhan Mills Ltd. and partly by New Bank of India, consists of a shop room in the entire space hereinafter referred to as the said tenanted premises and whereas said first party has sub-let and handed over possession of a portion of the said tenanted premises measuring 1350 sft. in favour of the second party herein and since then the first party is carrying on its own business at and from the remaining portion of the said tenanted premises.

Now this agreement witnesseth and it is hereby agreed by and between the parties as follows:

I. X xx xxxxxxxx XX X X X X XX X X XX

II. In consideration of the above and as security for repayment of the said amount the first party on and from this date handed over and the second party accepted vacant possession of all that shop/showroom being the remaining portion of the said tenanted premises at the ground floor of the said premises No. 31, Chowringhee Road, Calcutta.

Of the 3 receipts executed in respect of receipt of the sums only two have been annexed. The second receipt dated April 26, 1996, reads as follows:

Received with thanks from Mr. Vijoy H. Punwani of 14, Sudder Street, Calcutta 700016, further sum of Rs. 3,00,000/- (Rupees three lac) only in cash against our shop room at the ground floor of Hall and Anderson Building at 31, Chowringhee Road, Calcutta.

The question therefore is whether the disputed mezzanine floor was included in the second agreement.

In our view, it would appear prima facie to be so for the following reasons:

The mezzanine has repeatedly been described even in the Respondent No. 1''s documents as being ''at'' or ''on'' the ground floor. This is evident from the schedule to the letter dated 30.4.96 quoted above, allegedly evidencing the agreement between the Respondent No. 2 and the Respondent No. 1, as well as the body of the same letter:

This is to confirm,that after long discussion it was ultimately agreed and decided that we shall permit you to take possession and use the office space being the entire mezannine measuring about 1200 sq. ft. at our Show Room on the Ground Floor at Premises No. 31, Chowringhee Road, Calcutta, under us on payment of Rs. 1,500/- per month.

Read in this light, the same phrase used in the second agreement (between the Respondent No. 2 and the Appellant) ''at the ground floor of the said premises'' might arguably include the mezzanine.

Significantly, para. 20 of the Respondent No. 1''s petition before the Trial Court described the mezzanine as follows:

Your Petitioner states and submits that the office space measuring 1200 sq. ft. on the ground floor of premises No. 31, Chowringhee Road, Calcutta, is in the heart of Calcutta.

The recital in the second agreement read with clause II speaks of subletting ''the remaining portion of the tenanted premises''. This suggests that the entirety of the premises taken quatenant by the Respondent No. 2 from its superior landlord was being sub-let by the Respondent No. 2 to the Appellant. It is nobody''s case that the mezzanine did not form part of the tenancy of the Respondent No. 2.

The intention of the parties to the agreement is evidenced also by their subsequent conduct. As found by the Learned Trial Judge, the Appellant was in possession of the entire space including the mezzanine. There does not appear to be any protest from the Respondent No. 2 or its partners.

Furthermore, the case relating to the tenancy of the Plaintiff/Respondent appears to be suspect. That the tenancy was granted in consideration for an advance of a sum of Rs. 16,00,000.00 to the Respondent No. 2 for purchasing a property in Alipore cannot be relied upon on the material now before us. No particulars of the date or the property in Alipore have been given either in the petition or in the affidavit-in-reply although a specific challenge was thrown to the transaction by the Appellant and other Respondents. Again the case of possession pursuant to the alleged agreement between the Respondent No. 1 and the Respondent No. 2 has not been accepted by the Learned Single Judge. The finding has not been challenged by the Plaintiff Respondent. This finding militates against the grant of a tenancy by the Respondent No. 2 not only because it belies the Respondent No. 1''s documents dated May 2, 1996, but also because it is difficult to believe that a tenant would not demand and obtain possession from the landlord. If the Plaintiff Respondent No. 1 was not put in possession of the showroom on May 2, 1996, nor dispossessed on June 25, 1996, as claimed by him in the plaint. It also means that he waited for 6 weeks before filing the suit to assert his right quatenant. Indeed the case made in the plaint of being dispossessed from the premises by the Appellant and the Respondent No. 3 and 4 appears to be prima facie incorrect. The Appellant has produced his passport to show that on the date of the alleged dispossession, the Appellant was not in India at all. It is also difficult to believe that the Respondent No. 3, a lady aged about 68 years, would have participated in any physical dispossession of the Respondent No. 1 as alleged. Furthermore, it would have been normal for a tenant if he had at all been in possession and who had been forcibly dispossessed to have at least lodged a complaint in the local police station. That was not done. Indeed the suit was filed on June 29, 1996 through a constituted attorney one Prabodh Kumar Jain. The petition of the Plaintiff/Respondent No. 1 was also affirmed by the constituted attorney who has verified the material paragraphs in the petition as being true to his knowledge. His connection with the Plaintiff has not been disclosed.

In the light of the aforesaid we hold that there was not such a clear case in the Plaintiff/Respondent No. 1''s favour which justified the dispossession of the Appellant. The balance of convenience is also against the Appellant being deprived of such possession. By keeping the room under the custody of the Receiver no possible benefit could accrue to the Plaintiff/Respondent No. 1 except to deprive the Appellant of the user of the same.

Accordingly the appeal is allowed and the judgment is set aside. However, the Receiver will remain in formal possession of the mezzanine and the Appellant will hold the same under the Receiver. Fifty percent of the amount of rent payable by the Appellant under the second agreement shall be deposited with the Receiver by the Appellant month by month by the 7th of each month. The Receiver will invest the amounts received by him at the end of every six months in a short term fixed deposit with any nationalised bank and held the same subject to further orders of Court in the suit. In default of payment of any one monthly payment by the Appellant the Receiver will forthwith take actual possession of the disputed mezzanine. The Appellant is also restrained from changing the nature and character of the disputed space till the disposal of the suit. There will be no order as to costs.

M.H.S. Ansari, J.

I agree.

Appeal allowed.