F.M.A.T. 604 of 2016 and CAN 9683 of 2016. Case: Multiple Resorts Pvt. Ltd. Vs Mars Bullion Trade Pvt. Ltd.. High Court of Calcutta (India)
| Case Number | F.M.A.T. 604 of 2016 and CAN 9683 of 2016 |
| Counsel | For Appellant: Aniruddha Chatterjee, Rajarshi Dutta and Sourjya Roy, Advs. and For Respondents: Saptangsu Basu, Arindam Mukherjee, Deepak Kumar Jain and Biyani Kumar Jain, Advs. |
| Judges | Jyotirmay Bhattacharya and Ishan Chandra Das, JJ. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XXXIX Rule 10 |
| Judgement Date | February 24, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Jyotirmay Bhattacharya, J.
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This First Miscellaneous Appeal is directed against an order being No. 14 dated 26th April, 2016 passed by the learned Civil Judge, Senior Division, 1st Court at Barasat, in Title Suit No. 10843 of 2014 at the instance of the defendant/appellant.
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By the impugned order, the plaintiff's application under Order 39 Rule 10 of the Code of Civil Procedure was allowed on contest with costs. The defendant/appellant was directed to clear all arrear occupational charges within three months from the date of communication of the impugned order in terms of the observation made in the body of the order and continue to pay the current occupational charges within seven days of every succeeding month. The defendant/appellant was further directed to show payment receipt on the next day as regards payment of maintenance charges in terms of Clause 23 of the term-sheet in favour of the Bengal Peerless so that the Court can ascertain as to whether it has paid those charges to Bengal Peerless or not.
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The legality of the said order of the learned Trial Judge is under challenge in this First Miscellaneous Appeal.
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Let us now consider the legality of the impugned order in the facts of the instant case.
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The plaintiff claims that it has become the sole and absolute owner of a commercial space, covering approximately 17072 sq.ft., built up area, in Axis Mall, more fully described in the schedule of the plaint. The construction of the said property was admittedly done by the Bengal Peerless Housing Development Complex Limited. On 5th February, 2008 Bengal Peerless entered into an agreement with the defendant for leasing out the suit property to the defendant for a term of three years with the option of renewal for two further terms of three years. The said agreement is hereinafter referred to as the said term sheet.
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In Clause 11 of the term-sheet, the lease rent was fixed at Rs. 10/- per sq.ft, per month. In Clause 12 of the term-sheet, compensation for common amenities was fixed at Rs. 40/- per sq.ft, per month. Clause 15 of the term-sheet further stipulates that there would be a rent-free period which would continue for a period of 90 days from the date of possession.
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Clause 23 deals with the maintenance and management of the common areas which runs as follows:
Intending lessee along with other occupiers/owners will form Common Area Management Committee (CAMC) to deal with the entire Maintenance and Management of the Common Area/Services/Facilities/Amenities.
The Maintenance and Management of Common Areas includes the property as a whole with all fittings and fixtures, House-keeping and Solid Waste Disposal, all Services/Amenities/Facilities such as Lifts, Escalator, A.C. Plant and Ventilation, Sub-station, DG Set Back-up Power, U.G. Reservoir, Fire Fighting Arrangement, Sanitary and Plumbing System, Sewage Disposal System, Area Lighting, Staircase Lighting, Water Supply System, Landscaping Security Guards and Persons engaged on Maintenance and Operation works etc. of the Complex.
Intending Lessee will pay to CAMC all maintenance and running expenses on pro-rata basis of Built-up area.
In case there be any delay on the part of Occupiers/Owners of the Complex to form CAMC and to engage the Agency for maintenance and management of Common Areas/Services, Lessor shall render such services for a maximum period of one year. In that event of delay an Advance is to be paid by all Occupiers/Owners including intending Lessee to Lessor to meet the cost of such maintenance and running expenses @ Rs. 15/- per month per sq.ft., for a period of 12 months before taking over possession for fit-out works. As soon as the Occupiers/Owners from the CAMC and take over the maintenance and management of the Common Areas/Services, the Advance for remaining period of 12 months shall be refunded to CAMC.
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Though Rs. 40 per sq.ft. Per month was payable as compensation for common amenities, in terms of Clause 12 of the said term-sheet, but the said clause does not define the common amenities which are required to be provided by the lessor to the tenant in terms of the said clause.
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The defendant was initially inducted as a tenant in respect of the suit premises by Bengal Peerless. Subsequently, by a deed of conveyance dated 27th July, 2012 Bengal Peerless sold, transferred and conveyed the suit property in favour of the present plaintiff and by a letter of attornment issued by Bengal Peerless on 14th August, 2012 the lease rent and compensation for amenities were directed to be paid by the defendant to the plaintiff while CAM, electricity charges and all other arrear payable from the date of possession till 27th July, 2012 was directed to be paid to Bengal Peerless.
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It is the contention of the plaintiff that the defendant inspite of being aware of the right, title and interest of the plaintiff, willfully failed and deliberately ignored to pay to the plaintiff the monthly rent and the monthly compensation for common amenities. By a letter dated 12th June, 2013, the defendant was asked to quit and vacate the suit premises to deliver vacant and peaceful possession of the suit premises to the plaintiff on expiry of one month from the date of receipt of the said letter. It was mentioned in the said notice that in case the defendant fails to hand over the vacant and peaceful possession of the suit premises to the plaintiff on the expiry of the notice period, the defendant will be treated as trespasser in the suit property and shall be liable to pay to the plaintiff mesne profit @ Rs. 1,00,000/- per day till vacant and peaceful possession is delivered to the plaintiff.
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Since the defendant failed and neglected to deliver vacant and peaceful possession of the suit premises even after expiry of the notice period, the plaintiff filed the instant suit praying for a decree for recovery of vacant and peaceful possession of the suit property. A decree for a sum of Rs. 2,98,31,613/- was also prayed for on account of arrear rent for the period from 3rd December, 2010 to 12th July, 2013. A decree for recovery of a sum of Rs. 23,04,720/- was also claimed towards interest on such unpaid dues of the plaintiff. A decree for mesne profit was further claimed @ Rs. 1,00,000/- per day from 13th July, 2013 until vacant and...
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