Bhartia Steel and Engineering Co. Pvt. Ltd. Vs. Dina Nath Parolia and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/602
CourtKolkata High Court
Decided OnDec-09-2014
JudgeDebangsu Basak
AppellantBhartia Steel and Engineering Co. Pvt. Ltd.
RespondentDina Nath Parolia and anr.
Excerpt:
in the high court at calcutta extra ordinary original civil jurisdiction original side before: the hon’ble justice debangsu basak e.o.s. no.58 of 1987 bhartia steel & engineering co. pvt. ltd. vs. dina nath parolia & anr. for the plaintiff : mr. arindam mukherjee, advocate mr. ashok kumar awasthi, advocate mr. aishwarya kumar awasthi, advocate for the defendants : mr. haradhan banerjee, advocate mr. debabrata banerjee, advocate ms. somali mukhopadhyay, advocate hearing concluded on : december 03, 2014 judgment on : december 09, 2014 debangsu basak, j.the plaintiff seeks eviction of the defendant from the suit premises. the plaintiff claims that, by a registered lease dated march 25, 1970 the plaintiff granted lease of its steel rolling business to the defendant no.1. the defendant no.1 having committed various breaches of such lease, the plaintiff through its advocate’s letter dated december 24, 1979 called upon the defendant no.1 to vacate the suit premises on expiry of april 30, 1980. the plaintiff also claims that the defendants are guilty of construction as well as making addition and alteration at the suit premises without the consent of the plaintiff. the defendants are contesting the instant suit. the defendant no.2 is a partnership firm in which the defendant no.1 is a partner. the defendants have filed a written statement. the defendants have denied having any obligation to vacate the suit premises. the defendants claim that, the tenancy is governed by the provisions of the west bengal premises tenancy act, 1956. the parties invited the court to settle the issues on november 24, 2014. the issues settled are as follows:1. did the plaintiff lease out its steel rolling mills, factory and workshop situate at 106 & 106/1, dharmatala road, salkia, howrah, under the registered lease dated 25th march, 1970 to the defendants?.2. is the lease of steel rolling mills, factory and workshop situate at 106 & 106/1, dharmatala road, salkia, howrah, to the defendants governed by and under the provisions of west bengal premises tenancy act, 1956 as alleged in paragraph nos.7 & 12 of the written statement?.3. was the plaintiff required to serve a notice u/s. 13(6) of the west bengal premises tenancy act, 1956 upon the defendants?.4. is the plaintiff entitled to recovery of the suit properties as described in the schedules of the plaint?.5. is the plaintiff entitled to mesne profits, if so at what rate?.6. is the plaintiff entitled to damages, if so to what extent?.7. is the suit maintainable as framed?.8. is the suit barred by limitation?.9. what other reliefs the plaintiff is entitled to?. the first three issues are taken up together. the first three issues are interlinked with each other in the facts of the case. in fact, mr. haradhan banerjee, learned advocate for the defendants opened his submission by submitting that he would address the court on all the issues taken together. the lease between the parties is not disputed. the defendants admit to come into possession of the suit premises by the registered deed dated march 25, 1970. the defendants however claim that, their tenancy at the suit premises is governed by the west bengal premises tenancy act, 1956. the plaintiff claims the lease to be a lease of a steel rolling business. mr. haradhan banerjee, learned advocate for the defendants contends that, the relationship between the parties is governed by the west bengal premises tenancy act, 1956. the tenancy of the defendants is protected under the provisions of the said act of 1956. he submits that, the plaintiff did not demise its business of rolling mill to the defendant no.1 by the lease deed. he contends that, the lease deed does not disclose that, the business of the plaintiff was demised to the defendant no.1. according to him, the lease deed is unambiguous. since the lease deed is unambiguous, subsequent conduct of the parties with regard to the lease has no relevance. mr. banerjee contends that, the lease is for 10 years and, therefore, is governed by the west bengal premises tenancy act, 1956. he submits that, no notice under section 13(6) of the west bengal premises tenancy act, 1956 was served by the plaintiff upon any of the defendants. he submits that, both the defendants are tenants. he refers to the deed of lease and to the renewal clause thereof. he submits that, no case has been made out by the plaintiff either in the plaint or in the evidence that, the defendants are liable to be evicted under the provisions of the west bengal premises tenancy act, 1956. the ingredients of eviction under section 13(6) of the west bengal premises tenancy act, 1956 has neither been pleaded nor proved by the plaintiff. he points out that, the suit as framed is a suit for eviction under the provisions of the transfer of property act, 1882 whereas the suit property is governed by the west bengal premises tenancy act, 1956. on the point of inadequacy of the notice of eviction, he submits that, the notice is not addressed to both the tenants. according to him, the defendant nos. 1 and 2 are the tenants of the plaintiff. admittedly the addressee in the notice is not the defendant no.2. the addressee is the defendant no.1 in his personal capacity. therefore, according to him, the notice is bad. in this context he refers to exhibit ‘13’ series which are the rent receipts. the rent receipts have been issued in the name of the firm which is the defendant no.2. he refers to the various paragraphs of the plaint and submits that, the plaint case is that the lease is in respect of business as well as land. he submits that, the plaintiff now is taking a stand that the lease is in respect of steel rolling business only. he refers to the lease deed itself and submits that, the only conclusion that can be arrived at after reading the deed as a whole is that, the same is a lease of land with building and by virtue of its tenure guided by the west bengal premises tenancy act, 1956. mr. banerjee refers to section 92 of the evidence act, 1872 and submits that, where there is unambiguous documentary evidence, the parties should not be allowed to give oral evidence on the subject. he refers to various questions and answers given by the plaintiff’s witness with regard to the nature of the lease. mr. banerjee refers to 2004 volume 1 supreme court cases page 1 (state of u.p. & ors. v. lalji tandon) on the issue of the distinction between a renewal and an extension of a lease. on the same subject he refers to all india reporter 2005 supreme court page 2905 (shanti prasad devi & anr. v. shankar mahto & ors.). mr. banerjee relies upon 68 calcutta weekly notes page 1136 (d.s. jain v. meghamala roy & ors.) and submits that, a tenancy cannot be divided. mr. banerjee refers to the definition of a premises given in section 2(f) of the west bengal premises tenancy act, 1956. he relies upon 1995 volume 6 supreme court cases page 274 (savita dey v. nageswar majumdar & anr.), 1999 volume 1 calcutta law journal page 373 (peace heaven v. must. mozzammell khatoon & ors.), 1999 volume 2 calcutta high court notes page 167 (gopal das baheti v. sri sailendra chandra dey & ors.) and 1989 volume 1 calcutta law journal page 360 (mahindra & mahindra ltd. v. sm. kohinoor debi) in this regard. he submits that the lease is governed by the provisions of the west bengal premises tenancy act, 1956. he submits that, since no ground of eviction under the said act of 1956 has been established. mr. arindam mukherjee, learned advocate for the plaintiff contends that, the lease is in respect of a steel rolling business. according to him, the lease deed speaks of a lease of the steel rolling business. he submits that, in the event the court is pleased not to hold that the lease in respect of a business, he submits that, the plaintiff has let out the rolling mills to the defendant no.1 and, therefore, the same is to be considered as a business. a rolling mill will also not come within the definition of “premises”. under the act of 1956. he submits that, the dominant intention of the parties in the deed of lease has to be found out to construe whether the parties fall within the west bengal premises tenancy act, 1956 or not. he relies upon all india reporter 1965 supreme court page 716 (uttamchand v. s.m. lalwani) and 82 calcutta weekly notes page 1055 (alliance jute mills co. ltd. v. alliance mills pvt. ltd. & ors.) and all india reporter 2005 supreme court page 2054 (spun casting & engineering co. pvt. ltd. v dwijendra lal sinha & ors.) in this regard. he submits that, the dominant intention of the parties was grant of the lease of the steel rolling business by the plaintiff to the defendant no.1. in order to corroborate the dominant intention of the parties as appearing in the lease deed he refers to the conduct of the parties prior to the entering into the deed of lease and subsequent thereto. on prior conduct he refers the board resolution of the plaintiff dated march 21, 1970 being exhibit ‘1’. on the subsequent conduct of the parties he refers to the letter dated april 24, 1980 being exhibit ‘m’, letter dated april 9, 1970 being exhibit ‘b’, letter dated june 28, 1976 being exhibit ‘e’, letter dated november 10, 1970 being exhibit ‘d’ and letter dated october 12, 1979 being exhibit ‘f’. he submits that, such documents are letters issued by the defendants to third parties where the defendants claim themselves to be the lessee of the business of the plaintiff. mr. mukherjee refers to the rent receipts being exhibit ‘13’ series which will show that, the rent was accepted on account of factory lease. he refers to various answers given by the witness of the defendants being defendant witness no.1 who according to him has agreed that the defendants had taken the mills on lease. he refers to all india reporter 1975 supreme court page 1758 (dwarka prasad v. dwarka das saraf) and submits that, the premises concerned cannot be governed by the west bengal premises tenancy act, 1956, he relies upon definition of a premises given in section 2(f) of the west bengal premises tenancy act, 1956 and submits that, the business of a steel rolling mill, its factory and machineries do not fall within the definition of a premises given in the act of 1956. he contends that, the suit premises therefore, cannot be said to be governed by the provisions of the west bengal premises tenancy act, 1956. he points out that, the stand of the defendants will also appear from the question put in cross-examination by the learned counsel of the plaintiff in question no.269 where the advocate for the defendants asked the plaintiff witness no.1 as to whether the plaintiff gave the business to be run or not. he also refers to various questions and answers of the defendant witness no.2 given in examination-in-chief in this regard. he submits that, there is a notice terminating the lease dated december 24, 1979 being exhibit ‘g’. this notice has been duly served as will appear from the acknowledgement due card thereto which is a part of exhibit ‘g’. in any event, the defendant had replied thereto by a letter dated april 3, 19802 being exhibit ‘k’ issued by the advocate for the defendants. he next contends that, even if the suit premises is considered to be one governed by the west bengal premises tenancy act, 1956 in such a case, a valid notice under section 13(6) of the west bengal premises tenancy act, 1956 has been served upon the defendants by the notice dated december 24, 1979 being exhibit ‘g’. requisite ground for eviction of a tenant under the west bengal premises tenancy act, 1956 has been made out. the defendants are guilty of making addition and alteration at the suit premises without the consent of the plaintiff. in this regard he refers to various questions and answers given by the plaintiff witness no.1. he relies strongly on the reports submitted by the receiver which according to him, will demonstrate that various machineries at the suit premises were removed. he submits that, the defendants are guilty of making permanent construction at the suit premises without the consent of the plaintiff and in this regard refers to question no.
Judgment:

IN THE HIGH COURT AT CALCUTTA Extra Ordinary Original Civil Jurisdiction Original Side Before: The Hon’ble Justice Debangsu Basak E.O.S. No.58 of 1987 Bhartia Steel & Engineering Co. Pvt. Ltd. Vs. Dina Nath Parolia & Anr. For the Plaintiff : Mr. Arindam Mukherjee, Advocate Mr. Ashok Kumar Awasthi, Advocate Mr. Aishwarya Kumar Awasthi, Advocate For the Defendants : Mr. Haradhan Banerjee, Advocate Mr. Debabrata Banerjee, Advocate Ms. Somali Mukhopadhyay, Advocate Hearing concluded on : December 03, 2014 Judgment on : December 09, 2014 DEBANGSU BASAK, J.

The plaintiff seeks eviction of the defendant from the suit premises. The plaintiff claims that, by a registered lease dated March 25, 1970 the plaintiff granted lease of its steel rolling business to the defendant No.1. The defendant No.1 having committed various breaches of such lease, the plaintiff through its Advocate’s letter dated December 24, 1979 called upon the defendant No.1 to vacate the suit premises on expiry of April 30, 1980. The plaintiff also claims that the defendants are guilty of construction as well as making addition and alteration at the suit premises without the consent of the plaintiff. The defendants are contesting the instant suit. The defendant No.2 is a partnership firm in which the defendant No.1 is a partner. The defendants have filed a written statement. The defendants have denied having any obligation to vacate the suit premises. The defendants claim that, the tenancy is governed by the provisions of the West Bengal Premises Tenancy Act, 1956. The parties invited the Court to settle the issues on November 24, 2014. The issues settled are as follows:1. Did the plaintiff lease out its steel rolling mills, factory and workshop situate at 106 & 106/1, Dharmatala Road, Salkia, Howrah, under the registered lease dated 25th March, 1970 to the defendants?.

2. Is the lease of steel rolling mills, factory and workshop situate at 106 & 106/1, Dharmatala Road, Salkia, Howrah, to the defendants governed by and under the provisions of West Bengal Premises Tenancy Act, 1956 as alleged in paragraph nos.7 & 12 of the written statement?.

3. Was the plaintiff required to serve a notice u/s. 13(6) of the West Bengal Premises Tenancy Act, 1956 upon the defendants?.

4. Is the plaintiff entitled to recovery of the suit properties as described in the schedules of the plaint?.

5. Is the plaintiff entitled to mesne profits, if so at what rate?.

6. Is the plaintiff entitled to damages, if so to what extent?.

7. Is the suit maintainable as framed?.

8. Is the suit barred by limitation?.

9. What other reliefs the plaintiff is entitled to?. The first three issues are taken up together. The first three issues are interlinked with each other in the facts of the case. In fact, Mr. Haradhan Banerjee, learned Advocate for the defendants opened his submission by submitting that he would address the Court on all the issues taken together. The lease between the parties is not disputed. The defendants admit to come into possession of the suit premises by the registered deed dated March 25, 1970. The defendants however claim that, their tenancy at the suit premises is governed by the West Bengal Premises Tenancy Act, 1956. The plaintiff claims the lease to be a lease of a steel rolling business. Mr. Haradhan Banerjee, learned Advocate for the defendants contends that, the relationship between the parties is governed by the West Bengal Premises Tenancy Act, 1956. The tenancy of the defendants is protected under the provisions of the said Act of 1956. He submits that, the plaintiff did not demise its business of rolling mill to the defendant No.1 by the lease deed. He contends that, the lease deed does not disclose that, the business of the plaintiff was demised to the defendant No.1. According to him, the lease deed is unambiguous. Since the lease deed is unambiguous, subsequent conduct of the parties with regard to the lease has no relevance. Mr. Banerjee contends that, the lease is for 10 years and, therefore, is governed by the West Bengal Premises Tenancy Act, 1956. He submits that, no notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 was served by the plaintiff upon any of the defendants. He submits that, both the defendants are tenants. He refers to the deed of lease and to the renewal clause thereof. He submits that, no case has been made out by the plaintiff either in the plaint or in the evidence that, the defendants are liable to be evicted under the provisions of the West Bengal Premises Tenancy Act, 1956. The ingredients of eviction under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 has neither been pleaded nor proved by the plaintiff. He points out that, the suit as framed is a suit for eviction under the provisions of the Transfer of Property Act, 1882 whereas the suit property is governed by the West Bengal Premises Tenancy Act, 1956. On the point of inadequacy of the notice of eviction, he submits that, the notice is not addressed to both the tenants. According to him, the defendant nos. 1 and 2 are the tenants of the plaintiff. Admittedly the addressee in the notice is not the defendant No.2. The addressee is the defendant No.1 in his personal capacity. Therefore, according to him, the notice is bad. In this context he refers to Exhibit ‘13’ series which are the rent receipts. The rent receipts have been issued in the name of the firm which is the defendant No.2. He refers to the various paragraphs of the plaint and submits that, the plaint case is that the lease is in respect of business as well as land. He submits that, the plaintiff now is taking a stand that the lease is in respect of steel rolling business only. He refers to the lease deed itself and submits that, the only conclusion that can be arrived at after reading the deed as a whole is that, the same is a lease of land with building and by virtue of its tenure guided by the West Bengal Premises Tenancy Act, 1956. Mr. Banerjee refers to Section 92 of the Evidence Act, 1872 and submits that, where there is unambiguous documentary evidence, the parties should not be allowed to give oral evidence on the subject. He refers to various questions and answers given by the plaintiff’s witness with regard to the nature of the lease. Mr. Banerjee refers to 2004 Volume 1 Supreme Court Cases page 1 (State of U.P. & Ors. v. Lalji Tandon) on the issue of the distinction between a renewal and an extension of a lease. On the same subject he refers to All India Reporter 2005 Supreme Court page 2905 (Shanti Prasad Devi & Anr. v. Shankar Mahto & Ors.). Mr. Banerjee relies upon 68 Calcutta Weekly Notes page 1136 (D.S. Jain v. Meghamala Roy & Ors.) and submits that, a tenancy cannot be divided. Mr. Banerjee refers to the definition of a premises given in Section 2(f) of the West Bengal Premises Tenancy Act, 1956. He relies upon 1995 Volume 6 Supreme Court Cases page 274 (Savita Dey v. Nageswar Majumdar & Anr.), 1999 Volume 1 Calcutta Law Journal page 373 (Peace Heaven v. Must. Mozzammell Khatoon & Ors.), 1999 Volume 2 Calcutta High Court Notes page 167 (Gopal Das Baheti v. Sri Sailendra Chandra Dey & Ors.) and 1989 Volume 1 Calcutta Law Journal page 360 (Mahindra & Mahindra Ltd. v. Sm. Kohinoor Debi) in this regard. He submits that the lease is governed by the provisions of the West Bengal Premises Tenancy Act, 1956. He submits that, since no ground of eviction under the said Act of 1956 has been established. Mr. Arindam Mukherjee, learned Advocate for the plaintiff contends that, the lease is in respect of a steel rolling business. According to him, the lease deed speaks of a lease of the steel rolling business. He submits that, in the event the Court is pleased not to hold that the lease in respect of a business, he submits that, the plaintiff has let out the rolling mills to the defendant No.1 and, therefore, the same is to be considered as a business. A rolling mill will also not come within the definition of “premises”. under the Act of 1956. He submits that, the dominant intention of the parties in the deed of lease has to be found out to construe whether the parties fall within the West Bengal Premises Tenancy Act, 1956 or not. He relies upon All India Reporter 1965 Supreme Court page 716 (Uttamchand v. S.M. Lalwani) and 82 Calcutta Weekly Notes page 1055 (Alliance Jute Mills Co. Ltd. v. Alliance Mills Pvt. Ltd. & Ors.) and All India Reporter 2005 Supreme Court page 2054 (Spun Casting & Engineering Co. Pvt. Ltd. v Dwijendra Lal Sinha & Ors.) in this regard. He submits that, the dominant intention of the parties was grant of the lease of the steel rolling business by the plaintiff to the defendant No.1. In order to corroborate the dominant intention of the parties as appearing in the lease deed he refers to the conduct of the parties prior to the entering into the deed of lease and subsequent thereto. On prior conduct he refers the Board resolution of the plaintiff dated March 21, 1970 being Exhibit ‘1’. On the subsequent conduct of the parties he refers to the letter dated April 24, 1980 being Exhibit ‘M’, letter dated April 9, 1970 being Exhibit ‘B’, letter dated June 28, 1976 being Exhibit ‘E’, letter dated November 10, 1970 being Exhibit ‘D’ and letter dated October 12, 1979 being Exhibit ‘F’. He submits that, such documents are letters issued by the defendants to third parties where the defendants claim themselves to be the lessee of the business of the plaintiff. Mr. Mukherjee refers to the rent receipts being Exhibit ‘13’ series which will show that, the rent was accepted on account of factory lease. He refers to various answers given by the witness of the defendants being defendant witness No.1 who according to him has agreed that the defendants had taken the mills on lease. He refers to All India Reporter 1975 Supreme Court page 1758 (Dwarka Prasad v. Dwarka Das Saraf) and submits that, the premises concerned cannot be governed by the West Bengal Premises Tenancy Act, 1956, he relies upon definition of a premises given in Section 2(f) of the West Bengal Premises Tenancy Act, 1956 and submits that, the business of a steel rolling mill, its factory and machineries do not fall within the definition of a premises given in the Act of 1956. He contends that, the suit premises therefore, cannot be said to be governed by the provisions of the West Bengal Premises Tenancy Act, 1956. He points out that, the stand of the defendants will also appear from the question put in cross-examination by the learned Counsel of the plaintiff in question No.269 where the Advocate for the defendants asked the plaintiff witness No.1 as to whether the plaintiff gave the business to be run or not. He also refers to various questions and answers of the defendant witness No.2 given in examination-in-chief in this regard. He submits that, there is a notice terminating the lease dated December 24, 1979 being Exhibit ‘G’. This notice has been duly served as will appear from the acknowledgement due card thereto which is a part of Exhibit ‘G’. In any event, the defendant had replied thereto by a letter dated April 3, 19802 being Exhibit ‘K’ issued by the Advocate for the defendants. He next contends that, even if the suit premises is considered to be one governed by the West Bengal Premises Tenancy Act, 1956 in such a case, a valid notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 has been served upon the defendants by the notice dated December 24, 1979 being Exhibit ‘G’. Requisite ground for eviction of a tenant under the West Bengal Premises Tenancy Act, 1956 has been made out. The defendants are guilty of making addition and alteration at the suit premises without the consent of the plaintiff. In this regard he refers to various questions and answers given by the plaintiff witness No.1. He relies strongly on the reports submitted by the Receiver which according to him, will demonstrate that various machineries at the suit premises were removed. He submits that, the defendants are guilty of making permanent construction at the suit premises without the consent of the plaintiff and in this regard refers to question no.