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Multiple Resorts Pvt. Ltd. v/s Mars Bullion Trade Pvt. Ltd.

    F.M.A.T. No. 604 of 2016 & CAN No. 9683 of 2016
    Decided On, 24 February 2017
    At, High Court of Judicature at Calcutta
    By, THE HONOURABLE MR. JUSTICE JYOTIRMAY BHATTACHARYA & THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    For the Appellant: Aniruddha Chatterjee, Rajarshi Dutta, Sourjya Roy, Advocates. For the Respondent: Saptangsu Basu, Arindam Mukherjee, Deepak Kumar Jain, Biyani Kumar Jain, Advocates.


Judgment Text
Jyotirmay Bhattacharya, J.

1. 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.

2. 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.

3. The legality of the said order of the learned Trial Judge is under challenge in this First Miscellaneous Appeal.

4. Let us now consider the legality of the impugned order in the facts of the instant case.

5. 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.

6. 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.

7. 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."

8. 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.

9. 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.

10. It is the contention of the plaintiff that the defendant in spite of being aware of the right, title and interest of the plaintiff, wilfully 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.

11. 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 peaceful possession of the suit property is delivered by the defendant to the plaintiff. Certain other incidental reliefs have also been claimed in the said suit.

12. The defendant is contesting the said suit by filling written statement denying the material allegations made out by the plaintiff in the plaint.

13. In such a suit, the plaintiff filed an application under Order 39, Rule 10 of the Code of Civil Procedure for issuance of direction upon the defendant/opposite party to deposit in court a sum of Rs.2,98,31,613/- on the account of the arrear monthly rent and the monthly compensation for common amenities accumulated during the period between 3rd December, 2010 and 12th July, 2013 together with a further sum of Rs.23,4,720/- towards reimbursement of the amount paid by the plaintiff towards the security on account of defendant in respect of the suit premises and further to deposit in Court mesne profit on account of the defendant/opposite party continuing in wrongful and unauthorized use and occupation of the suit premises from 13th July, 2013 until the peaceful and vacant possession of the premises is recovered from the defendant. The said application was filed by alleging that the defendant admitted its obligation to pay the said sum of Rs.2,98,31,613/- to the plaintiff on account of monthly rent and monthly compensation for common amenities and interest thereon for the period from 3rd December, 2010 upto 12th July, 2013 and also a further sum of Rs.23,04,720/- which according to the plaintiff, the defendant had deliberately failed to deposit with Bengal Peerless towards security deposit and, as a result, thereof the plaintiff had to pay said amount to Bengal Peerless. The plaintiff thus, claims reimbursement of the said amount of Rs.23,04,720/- from the defendant. Direction was sought for payment of mesne profit by the defendant at the rate of Rs.1,00,000/- per day for the period from 13th July, 2013 until delivery of vacant possession to the plaintiff as the defendant/opposite party was continuing its unauthorized occupation of the suit premises.

14. The defendant contested the plaintiff's said application under Order 39, Rule 10 of the Code of Civil Procedure by filing objection denying the allegations made out by the plaintiff in the said application. The defendant denied its liability to pay monthly compensation for common amenities in terms of column No.12 of the term sheet as the plaintiff was not providing any common amenity to the defendant. It was denied and disputed by the defendant that between 3rd December, 2010 and 12th July, 2013, a sum of Rs.3,49,53,213/- became due and payable by the defendant to the plaintiff on account of non-payment of monthly lease rent or monthly compensation for common amenities or interest thereon as per the particulars given in paragraphs 23 and 24 of the said application. It was further denied and disputed that after adjusting a sum of Rs.51,21,600/- being the amount deposited by the defendant with Bengal Peerless as or by way of security deposit a Sum of Rs.2,98,31,630/- became due and payable by the defendant to the plaintiff as on 12th July, 2013. It was contended by the defendant that the defendant has been enjoying the common facilities and/or amenities as per Clause 23 of the term sheet and the defendant is making payment for such facilities being rendered to it at the agreed rate to the Bengal Peerless. The plaintiff's right to claim any money for a period of one year commencing from July, 2012 upto July 2103 was also disputed by the defendant as the plaintiff has came into picture after July, 2013. The liability to pay mesne profit and/or damages for the alleged unauthorized and/or wrongful use and occupation of the said premises from 13th July, 2013 was also denied by the defendant.

15. The defendant thus prayed for dismissal of the plaintiff's said application under Order 39, Rule 10 of the Code of Civil Procedure.

16. The learned Trial Judge after taking into account that the defendant had already made some payment in favour of the plaintiff at the rate of Rs.50/- (i.e. Rs. 10 per sq.ft. per month on account of rent and Rs. 40 per sq.ft. per month on account of compensation for monthly amenities) in terms of the order passed by the Division Bench of this Court in FMAT No.1296 of 2013, for the period from September, 2013 to July, 14, held that the defendant is now estopped from challenging that Rs. 50/- per sq.ft. per month is not payable by the defendant on account of rent and/or compensation for common amenities. Relying upon certain decisions cited from the bar, the learned Trial Judge held that compensation for common amenities is a part of rent and, as such, the defendant is liable to pay Rs.50/- per sq.ft. per month i.e., Rs.10/- per sq.ft. per month on account of rent and Rs.40/- per sq.ft. per month towards compensation for common amenities. By referring to the letter of attornment dated 14th August, 2012, the learned Trial Judge came to the conclusion that the defendant is liable to pay the rent as well as monthly compensation for common amenities in terms of Clauses 11 and 12 of the term sheet to the plaintiff w.e.f. 28th July, 2012. The learned Trial Judge also recorded that since the ownership of the plaintiff in respect of the suit property is not disputed and the tenancy of the defendant was admittedly attorned in favour of the plaintiff, the defendant cannot avoid its liability to pay the monthly rent and/or compensation for common amenities in terms of Clauses 11 and 12 of the said term sheet w.e.f. 28th July, 2012.

17. Thus, the plaintiff's application under Order 39, Rule 10 of the Code of Civil Procedure was allowed. The defendant was directed to clear all the arrears of occupational charges within three months from the date of the order in terms of the observation made in the body of the order. The defendant was also directed to continue such payment towards current occupational charges within seven days of every succeeding month. The defendant was also directed to show payment receipt on the next date as regards payment of maintenance charges in terms of Clause 23 of the terms sheet in favour of the Bengal Peerless so that the Court can ascertain as to whether the defendant has been paying such charges to the Bengal Peerless or not.

18. The legality of the said order passed by the learned Trial Judge is under our scrutiny in this appeal. Let us first of all consider the provision under Order 39, Rule 10 of the Code of Civil Procedure which in our view is necessary for ascertaining the merit of the impugned order. For proper appreciation of the dispute of this nature we feel it necessary to quote the provision contained in Order 39, Rule 10 of the Code of Civil Procedure which runs as follows:-

"Deposit of money, etc., in Court- where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last- named party, with or without security, subject to the further direction of the Court".

19. On perusal of the said provision, it appears to us that the following conditions are required to be satisfied for obtaining relief under Order 39, Rule 10 of the code of Civil Procedure:-

(i) Suit must be a suit for realization of money or the claim of the plaintiff in the suit is such which is capable of delivery.

(ii) If any of the aforesaid two conditions is satisfied then the Court can invoke its jurisdiction under Order 39, Rule 10 of the Code of Civil Procedure provided any of the following conditions is satisfied:-

(a) The Court must find out from the pleading of the party against whom such relief is claimed, as to whether he admits that (i) he holds any money or other thing as a trustee for another party; or (ii) such money belongs to the other party or (iii) is due to the other party.

20. If the conditions as referred to above are satisfied, Order 39, Rule 10 of the Code of Civil Procedure can be invoked.

21. Let us now consider the pleadings of the plaintiff to find out as to whether the suit filed by the plaintiff is a suit either for recovery of money from the defendant or for relief which is capable of delivery of anything. On perusal of the plaint we find that the plaintiff has also claimed arrear rent and also mesne profit from the defendant. The Plaintiff has claimed recovery of possession of the suit premises from the defendant. Thus, in our view, the first condition as to the nature of the suit in which such application was filed is satisfied in the instant case.

22. Let us now scan the pleadings of the defendant to find out as to whether anyone of the other three tests as mentioned above, is satisfied in the instant case or not.

23. Mr. Basu, learned Senior Counsel appearing for the plaintiff/respondent drew our attention to the various parts of the pleadings of the parties to convince us that the defendant has admitted its liability to pay rent and compensation for monthly common amenities in terms of Clauses 11 and 12 of the term sheet. He has pointed out from Clauses 11 and 12 of the term sheet that lease rent payable by the defendant as mentioned in Clause 11 is Rs.10/- sq.ft per month and compensation for common amenities as mentioned in Clause 12 is Rs.40/- per sq.ft. per month.

24. He has also drawn our attention to Clause 18 of the term sheet wherefrom it appears that security deposits are required to be deposited by the defendant with the landlord in two instalments. Clause 18 runs as follows:-

"Clause 18. Security Deposit: (I) Rs.34,14,400/- (Rupees thirty four lac fourteen thousand four hundred only) at the time of signing of Term Sheet

(ii) Rs.17,07, 200/-(Rupees seventeen lac seven thousand two hundred only) on issuance of Notice of taking over possession for Fit-out.

25. He has also pointed out from the ledger account of Bengal Peerless Housing Development Company Ltd. that a sum of Rs.34,14,400/- equivalent to four months rent which was inclusive of compensation for common amenities, deposited by the defendant with the original landlord i.e. Bengal Peerless in terms of Clause 18 of the said term sheet. By referring to the said document Mr. Basu, learned Senior Counsel tried to impress upon us that compensation for common amenities payable as per clause 12 of the term sheet was accepted by the defendant as a part of rent.

26. Mr. Basu has also drawn our attention to the order passed by the Division Bench of this Court on 18th November, 2013 in FMAT 1296 of 2013 whereby the defendant was directed to go on making payment of rent as occupation charges as per the agreement commencing from September, 2013. Such direction was passed by the Division Bench of this Hon'ble court without specifying as to the exact amount which is payable by the defendant towards rent. Even though the said order was silent about the defendant's liability to pay compensation for common amenities but still then the defendant itself on its own paid arrear rent @Rs.50/-Sq.ft. per month (i.e., Rs.10 per Sq.ft per month on account of rent and Rs.40/- per Sq.ft. per month) to the plaintiff by accepting its liability to pay rent as well as compensation for common amenities as per Clause 11 & Clause 12 of the term sheet, under the order passed by the Division Bench of this Court in the earlier First Miscellaneous appeal.

27. According to Mr. Basu, by making such payment of rent and compensation for common amenities continuously for a period of 11 months in terms of the said order passed by this Court, the defendant also admitted that compensation for common amenities as enumerated in Clause 12 of the term sheet, is a part of rent. Mr. Basu thus, submits that the learned Trial Judge did not commit any illegality by passing the impugned order as admission of the defendant as to its liability to pay rent and compensation for common amenities in respect of the tenancy as per Clause 11 & 12 of the term sheet, is apparent from the pleadings of the defendant and/or from its conduct.

28. Mr. Chatterjee, learned Advocate appearing for the defendant/appellant refuted such submission of Mr. Basu by contending that in a proceeding under Order 39, Rule 10 of the Code of Civil Procedure there is no scope for adjudication of any disputed between the parties by the Court. According to him while dealing with such an application, the Court is only required to ascertain from the pleading of the defendant as to whether he admitted satisfaction of any of the three conditions as mentioned therein and if the Court finds admission of the defendant of any of the three criteria as mentioned therein, then the Court can pass necessary Order 39, Rule 10 of the Code of Civil Procedure in favour of the party seeking such relief.

29. Mr. Chatterjee also drew our attention to the relevant parts of the objection filed by the defendant against the plaintiff's said application Order 39, Rule 10 of the Code of Civil Procedure to show that his client never admitted its liability to pay the claimed amount of the plaintiff, rather it disputed the plaintiff's claim towards compensation for common amenities as no amenity was provided by the plaintiff to the defendant. He thus, contended that since the basic criteria regarding the defendant's admission as to the existence of any of the three criteria remains absent, no relief under Order 39, Rule 10 of the Civil Procedure Code can be given to the plaintiff.

30. Let us now consider the acceptability of the argument made by the learned Counsel of the respective parties in the facts of the present case.

31. We have already mentioned above the relevant parts of the pleading made out by the defendant in its objection filed against the plaintiff's application in Order 39, Rule 10 of the Code of Civil Procedure. From the pleadings of the defendant made out by it in its objection to the plaintiff's application Order 39, Rule 10 of the Code of Civil Procedure, we are unable to find out the defendant's admission either with regard to his holding of any money or any other thing as trustee of the plaintiff or his admission that the money which is held by it either belongs to the plaintiff or is due to the plaintiff.

32. On the contrary, we find that the defendant has categorically denied its liability to pay any amount on account of compensation for common amenities to the plaintiff as no service towards common amenities was provided by the plaintiff to the defendant. However, the binding effect of the contract as contained in the term sheet was not denied by the defendant. Attornment of tenancy in favour of the plaintiff after the plaintiff purchased the suit property from the original landlord, namely, Bengal Peerless is also not denied by the defendant and consequently its liability to pay rent in terms of Clause 11 of the said term sheet was not denied but its liability to pay compensation for common amenities to the plaintiff was specifically denied by the defendant on the ground that no common amenity is provided by the plaintiff to the defendant.

33. We find that the agreement itself is silent as to the amenities to be provided by the plaintiff to the defendant for which compensation can be demanded for common amenities by the plaintiff from the defendant in terms of Clause 12 of the term sheet. Nothing is mentioned in the plaint as to the amenities which are required to be provided by the plaintiff to the defendant for which they can claim payment from the defendant in terms of Clause 12 of the said term sheet. The plaintiff has also not stated in its application under Order 39, Rule 10 of the Code of Civil Procedure as to the amenities which the plaintiff was providing to the defendant for which the plaintiff could have demanded payment on account of compensation for common amenities in terms of Clause 12 of the said term sheet.

34. It is no doubt true that service charges can be constructed as a part of rent when the services to be provided by the Service Provider are of such nature without which the tenancy cannot be used by the tenant for the purpose for which it was let out to the tenant. However even whereof service charges is treated as an integral part of the rent, still then the landlord cannot realise any service charge from its tenant without providing any service to the tenant.

35. Here in this case we find that the plaint pleading is absent as to the service which the plaintiff is required to provide to the defendant for which they can demand service charges in terms of Clause 12 of the term sheet. The defendant has also categorically denied its liability to pay any amount on account of compensation for common amenities as according to the defendant, the plaintiff has not provided any amenity to the defendant. Such being the pleadings of the defendant, this Court is unable to find out the defendant's admission with regard to its liability to pay the ascertained sum which plaintiff has claimed either in the suit or in the said application.

36. No doubt the defendant has paid rent as well as compensation for common amenities to the plaintiff for 11 months in terms of the order passed by the Division Bench of this Court in the earlier first Miscellaneous appeal but such payment cannot be construed as an admission on the part of the defendant towards its liability to pay compensation for common amenities as the defendant claims that such payments were made by it by wrongly interpreting the order passed by the Division Bench of this Court and whenever the defendant understood the real purports of the said order, the defendant stopped paying rent and the compensation for common amenities to the plaintiff and prayed for adjustment of the excess amount which was paid by it to the plaintiff during the said 11 months under wrong interpretation of the order of the Court, against future rent payable by the defendant to the plaintiff in terms of Clause 11 of the said terms sheet.

37. Thus we do not find any clear and unambiguous admission on the part of the defendant towards its liability to pay compensation for common amenities; rather the defendant disputed its liability to pay such compensation for common amenities on the ground that the plaintiff has not provided any common amenities to its tenancy.

38. We have already indicated above that while considering an application under Order 39, Rule 10 of the Code of Civil Procedure. there is no scope for adjudication of any dispute between the parties as to the liability of the defendant which the defendant allegedly owe to the plaintiff as per the agreement i.e the term sheet. While deal with an application under Order 39, Rule 10 of the Code of Civil Procedure, the Court has its duty to ascertain from the pleading of the defendant as to whether the defendant admitted the existence and/or satisfaction of any of the three conditions as mentioned in Order 39, Rule 10 of the Code of Civil Procedure, and the Court cannot grant any relief to the party seeking such relief when the Court does not find any admission of the party against whom such relief is claimed, as to the existence and/or satisfaction of any of the three criteria as mentioned in Order 39, Rule 10 of the Code of Civil Procedure.

39. We do not find any admission with regard to its liability to pay compensation for common amenities to the plaintiff either in the pleadings or from the conduct of the defendant. As such we hold that the learned Trial Judge was not justified in passing the impugned order and by directing the defendant to deposit the entire area rent compensation including the compensation for common amenities for the entire defaulted period within three months. Even the direction which was passed by the learned Trial Judge for continuing with such deposit for the current months by the defendant is contrary to the spirit of the provision contained in Order 39, Rule 10 of the Code of Civil Procedure. Even the direct

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ion which was given by the learned Trial Judge upon the defendant to submit the receipts regarding payment of maintenance charges in terms of Clause 23 of the terms sheet in favour of Bengal Peerless is also contrary to the spirit of the provision contained in Order 39, Rule 10 of the Code of Civil Procedure as the Court is not empowered either to pass any order or to make any enquiry with regard to the rights and liabilities of the 3rd party in the suit. Bengal peerless is not a party to the suit. Bengal peerless has not made any complaint for non-payment of its dues to it in terms of Clause 23 of the terms sheet. The plaintiff has also not claimed that the compensation which is payable by the defendant in respect of Clause 23 of the terms sheet is payable to it and not to Bengal Peerless. Such being the position we are of the view that the learned Trial Court ought not to have considered any issue which is not triable in the suit, while considering the plaintiff's application Order 39, Rule 10 of the Code of Civil Procedure. 40. Here, the learned Trial Judge instead of finding out admission of the defendant with regard to satisfaction of any of the three criteria as mentioned above, adjudicated on the issue relating to the defendant's probable liability under the contract and directed the defendant to discharge not only its present liability but also its future liability according to its own wisdom. Adjudication of any dispute by Court is impermissible under Order 39, Rule 10 of Civil Procedure Code. 41. We thus hold that the impugned order is liable to be set aside. The impugned order is thus set aside. 42. Having regard to the fact that the pleadings are all complete, we request the learned Trial Judge to make all endeavour to dispose of the suit as early as possible without granting any unnecessary adjournment to any of the parties but preferably by the end of this year. 43. It is, however, clarified that the defendant's claim for adjustment of the money which has allegedly been paid by the defendant to the plaintiff for 11 months in excess of the rent, towards future rent is left open to be decided by the Court at the time of trial of the suit. The defendant is, however, directed to go on paying its rental dues in terms of Clause 11 of the terms sheet directly to the plaintiff every month within 7th day of the each following month or deposit the equivalent amount in Court to the credit of the plaintiff month by month is similar manner till the disposal of the suit. Arrear amount towards rent payable in terms of Clause 11 of the said terms sheet will be deposited by the defendant in Court by end of March, 2017. 44. In case such deposit is made, the plaintiff will at liberty to withdraw the same without furnishing any security. 45. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. I agree.
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