ORDER
SHEET GA3163of 2013 CS366of 1937 GA2609of 2014 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE JOGENDRA NATH MULLICK Versus KANTO MOHAN MULLICK & ORS. BEFORE: The Hon'ble JUSTICE SOUMEN SEN Date :
14. h August, 2015. Appearance: Mr. Debmalya Ghosal, Adv. Mr. Arnab Dutt, Adv. Mr. I.P. Mullick, Adv. Ms. Saddhi Mallick, Adv. …for the plaintiff. Mr. Arijit Basu, Adv. …for the tenant. The Court: This application has been filed by one of the legal heirs and successors of the original admittedly a Shebait of Debutter estate. plaintiff who is This application is filed alleging that M/s. A.S. Highrise Pvt. Ltd. has parted with possession of the rooms and/or portion thereof at the ground floor in violation of the order of injunction which restrains the said tenant to occupation. part with possession of the said area under their It is stated in the petition that M/s. A.S. Highrise Pvt. Ltd. is a tenant in respect of the rooms at the ground floor and an application filed by the Shebaits being GA No1999 of 2011 an order was passed on 20th July, 2011 directing Mr. Ashok Kumar Roy, Bar-at-Law, Receiver appointed in the suit to visit the Debutter property and furnish a report with regard to the said property and the rights claimed by the occupants thereto. During such inspection the present Receiver found that M/s. A.S. Highrise Pvt. Ltd., is an occupant in respect of rooms marked as R-6, R-7, R-12 and R-12A. Apart from an allegation being made of encroachment the main allegation appears to be that the said tenant has stopped all its business activities and are in the process of alienating and/or transferring their tenanted portion to third parties. The applicant says that various strangers are coming to inspect the property in question and this has created an apprehension in the mind of the petitioner that the said respondent is seeking to create a third party interest in respect of the tenanted portion. At the time of moving this application. After considering the submission on behalf of the Shebait of the Debutter estate, an order was passed on 9th October, 2013, restraining the said tenant from parting with possession of rooms being R-6, R-7, R-12 and R-12A at the suit premises till 12th November, 2013. The order records that in spite of notice, the respondent tenant was not represented. Subsequently, on 17th March, 2013 the tenant was represented by Ms. Prova Jain and she had given an undertaking on behalf of the tenant that M/s. A.S. Highrise Pvt. Ltd. would not sub-let nor has any intention of subletting or parting with possession of any portion of the tenancy at 60C, Collotola Street, Kolkata – 700 073. Thereafter, on 11th August, 2014, after considering the submission on behalf of the applicant Shebait and on consideration of the materials produced before this Court, namely, a photograph of a signboard displayed at the entrance of the tenanted premises which shows that one Shingnapur Carrying Corporation is carrying business on and from the suit premises, I direct the Receiver to take immediate possession of the tenanted portion apparently to be in possession of Shingnapur Carrying Corporation after making an inventory and also direct him to file a report on the returnable date. I have recorded in the said order that the signboard displays the name of the tenant as a booking agent. said In absence of contrary evidence and having regard to the fact that the said tenant is not represented in spite of having due notice, the aforesaid order was passed. The Receiver, pursuant to the aforesaid order, visited the premises and filed a report. In order to appreciate the argument of the parties, it would be better if I refer to some of the paragraphs of the said report:
“3. At the entrance wall of the business place at Colutola, the Receiver found a big signboard indicating, inter alia, being the business place of the said M/s. Shingnapur Carrying Corporation.
4. It is particularly to the noted here that at the time of receiver’s coming to the said address, the receiver found two alleged employees of the aforesaid M/s. Shingnapur Carrying Corporation as they represented themselves as such employees and hence the Receiver served on them and/or handed over to them a copy of the said order dated 11.08.2014 of the Hon’ble Justice Soumen Sen and explained to them the purport of the said order by Receiver. The Receiver also explained to them his purpose of visit under the said order. Immediately thereafter, the said two employees made various phone calls and thereafter became volatile and violent an expressed their intention not to allow the Receiver to accomplish his purpose as directed under the said order.
5. The Receiver apprehended on 13.08.2014 that there might be any law and order problem during Receiver’s said purpose for taking possession and sealing an hence the Receiver directed the petitioner’s solicitor and/or their representative to inform the Jorasanko Police Station and asked for police help to counter any act of breach of peace which might happen on 14.08.2014 during carrying out of the aforesaid taking over possession under the said order dated 11.08.2014.
6. Accordingly, on 13.08.2014 due intimation was given to the Jorasanko Police Station forwarding therewith a copy of the said order dated for their knowledge and help. Due to 15.08.2014 Independence Day celebration the police did not have enough and proper force and so they would not give any police help but assured in emergency if arises they shall provide help, if required.
7. On 14.08.2014 along with the aforesaid persons the Receiver duly came to the concerned address at about 1.15 p.m. and served on and explained the said order on the said two employees of M/s. Shingnapur Carrying Corporation as stated above. Thereafter the said two employees became rude and violent and refused to allow to carry on the Receiver his aforesaid duty under the said order. Their conduct and attitude made the Receiver to believe that at any moment the said two alleged employees may resort to physical violence against the Receiver and/or other aforesaid persons came with the Receiver. There are two rooms in that portion. Inner rooms is totally empty but in the outer room the said two alleged employees were found.
8. In the facts and circumstances as stated hereinabove, inventory was made. There was nothing much in the said premises, but whatever were there found set out at the end. Then the Receiver completed taking possession of the rooms and closed the collapsible gate and put on a big lock thereon. Thereafter, the said lock was also properly sealed with lacs. When all the said works were completed one Mr. Ashok Surana appeared and objected the Receiver of his taking such possession. Photographs were taken showing the said sealing work and also Receiver along with the said Mr. Surana standing there outside.
11. It is to be noted here, as stated above that the said portion consists of 2(two) rooms. The inner room was found to be fully empty, but the outer room there was about 15 to 20 paper cartoon and/or boxes (contents not known) and a few PVC containers. There was one small wooden table and about 4 plastic chairs. On weighing machine, one Telephone and one Ceiling Fan found in the said outer room.”
. The Receiver in his report has also stated that he found Shingnapur Carrying Corporation to be in occupation of the premises in question. Immediately thereafter, an application was filed on 19th August, 2014 by the tenant for leave to intervene and recalling of the order dated 11th August, 2014. In the said application, the said applicant tenant stated that the said applicant is a tenant in respect of the suit premises and is carrying on his business as a booking agent of Shingnapur Carrying Corporation for the last two years with the knowledge of the petitioner. The application, however, does not disclose any document to show that the applicant tenant, in fact, was carrying on business as a booking agent of Shingnapur Carrying Corporation. On 19th September, 2014 after hearing the applicant tenant, I pass the following order: “ In order to appreciate the submission of Mr.Dhruba Ghosh representing M/s. A.S.High Rise Private Limited, this Court feels that an affidavit should be called for from Shingnapur Carrying Corporation having its office at E-2/253, 1st Floor, Shastri Nagar, Near Shastri Nagar Metro Station, Delhi – 110052, Ph.:23519226, M.8826499773 since it is claimed by M/s. A.S. Highrise Private Limited that they are acting as a booking agent on behalf of the said corporation. This said corporation shall disclose the composition of the said corporation including who are the directors, share-holders and the persons in control of the said corporation. The said corporation shall also disclose the agreement, if there be any, concerning the appointment of M/s. A.S.Highrise Private Limited as a booking agent. Such affidavit shall be filed on or before 22nd September, 2014. The matter shall appear on 24th September, 2014.”
. Considering the supplementary proprietor of Shingnapur Carrying affidavit filed by the sole Corporation affirmed on 24th September, 2014, I direct the Receiver to remove the padlock and allow M/s. A.S. Highrise Pvt. Ltd. to function from the said room until further orders. The issue as to whether the applicant tenant has parted with possession in favour of Shingnapur Carrying Corporation was set down to trial and was heard as trial on evidence. Mr.Gouri Shankar Joshi claiming to be the proprietor of Shingnapur Carrying Corporation appeared and deposed in support of the affidavits filed by him. He has stated in his deposition that he is not a tenant in respect of the property in question and M/s. A.S. Highrise Pvt. Ltd. is appointed as a booking agent. However, there is no written agreement to show that M/s. A.S. Highrise Pvt. Ltd. was appointed as a booking agent. He further stated that Amit Chowrasia and Gopal Sharma are not his employees and he does not pay any rent to M/s. A.S. Highrise Pvt. Ltd. Although a claim was made by Mr.Gouri Shankar Joshi that M/s. A.S. Highrise Pvt. Ltd. was appointed as a booking agent two years back, he is unable to produce any document to show that any transaction had taken place between the said two entities over and for the last two years. He alleged that M/s. A.S. Highrise Pvt. Ltd. was functioning as a booking agent of Shingnapur Carrying Corporation. In this regard, some of the answers given by him in this proceeding are stated below : “22.Have you disclosed any document regarding any booking agency that you are saying to have with M/s. A.S. Highrise Pvt. Ltd. ?./ No.23.When the booking agency has been given ?./ I cannot recollect the exact date but it will be in October, 2013. 24.As you have said that the booking agency may have been given on October, 2013, in that case what are the procedure you have followed to booking agency ?./ We usually prepared accounts once in a year for the goods that they sent us per quintal. They booked goods here and we carry the goods to Dimapur or Imphal and Gouhati and Assam. 25.As you have state that there are books of accounts between you and M/s. A.S. Highrise Pvt. Ltd, then there must be document for recording accounts ?./ There are accounts pending right now. After we carrying the goods in Dimapur, Imphal and Gouhati, we settle the accounts with them. 26.Is there any settled transaction between you and M/s. A.S. Highrise Pvt. Ltd from October, 2013 ?./ No, there have been no transaction (lenden) till now. 27.I put it to you that you have stated before this Court that goods have been transferred to Imphal now you are stating that no transaction has been made between you and M/s. A.S. Highrise Pvt. Ltd. ?./ The transaction was supposed to be done at a time but I was not aware. I could not come to Kolkata although Mr. Surana had telephoned me couple a time. 28.I suggest it to you that the answer you have given to this Court that M/s. A.S. Highrise Pvt. Ltd. is not your booking agent but you are sub-tenant of M/s. A.S. Highrise Pvt. Ltd ?./ I do not agree. 29.Mr. Joshi, I put it to you that M/s. A.S. Highrise Pvt. Ltd. had illegally purported with the possession of room no.6 and 7 of the ground floor of 60C Colootola Street, Kolkata ?./ I do not agree. 30.I put it to you that your signboard as displayed in 60C Colootola Street, Kolkata is the room let out to you by M/s. A.S. Highrise Pvt. Ltd and you are in physical possession of the said room in of in 60C Colootola Street, Kolkata ?./ It may be or may not be to my knowledge. There may be a board because our boards are everywhere pertaining to our transport business. Boards are actually put up for the knowledge of the customers. 31.I put it to you that your employees of Shingnapur Carrying Corporation took possession and attended the office at 60C Colootola Street, Kolkata ?./ They are not representing us.”
. It is quite unusual for a trader not to have an agreement with his booking agent and more so, not to have the account settled for the last two years, if it is at all to be accepted that M/s. A.S. Highrise Pvt. Ltd. was appointed as a booking agent by Shingnapur Carrying Corporation. The answer with regard to the appointment of M/s. A.S. Highrise Pvt. Ltd. as a booking agent raises serious doubt about the true nature of the dealings between the parties. The signboard displayed at the premises would show that the name of Mr.Gouri Shankar Joshi is prominently displayed whereas one needs to strain one’s eyes to find out the name of M/s. A.S. Highrise Pvt. Ltd. as a booking agent. It is true that the signboard insignificantly mentions the name of M/s.A.S. Highrise Pvt. Ltd. as a booking agent. The inventory made by the Receiver would show that there was hardly any business activity and the claim of the petitioner that goods worth Rs.10 lakhs were lying stored therein is too tall a claim to be accepted having regard to the report filed by the Receiver. Although the tenant had the opportunity to take exception to the report filed by the Receiver the tenant had not done so. On the basis of the evidence adduced by the parties, I have no hesitation to hold that even if actually no sub-letting might have taken place, but all steps were taken by M/s. A.S. Highrise Pvt. Ltd. to create an interest in the property and the signboard displayed was possibly a stratagem and/or a device by which the said tenant attempted to sub-let the property in favour of Shingnapur Carrying Corporation. Under such circumstances, I restrain A.S. Highrise Pvt. Ltd. from parting with possession occupation in any manner whatsoever. symbolic possession of the said rooms. of the rooms under their The Receiver shall remain in I make it clear that these observations with regard to creation of third party interest is based on the documents that were made available to this Court by the parties. In view of the aforesaid finding and in absence of any credible evidence and documents to show that A.S. Highrise Pvt. Ltd. was acting as a booking agent, the signboard shall be immediately removed by the Receiver. GA No.3163 of 2013 and GA No.2609 of 2014 are, accordingly, disposed of. (SOUMEN SEN, J.) sp2.