Pvt. Ltd Vs. Feroze Belal & Ors.  INSC 1706 (13 October 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6120 OF 2008 (Arising
out of S.L.P.(C) No. 4893/2007) BENGAL PROPERTIES PVT. LTD. ... APPELLANT(S)
CIVIL APPEAL NO. 6121
OF 2008 (Arising out of S.L.P.(C) No. 6161/2007) ORDER S.L.P.(C) No. 6161/2007:
Having heard Mr.
Mukherjee, learned counsel appearing on behalf of the appellants and Mr. Tapas
Ray, learned senior counsel appearing on behalf of the respondents, we are of
the opinion that without going into the respective merits and contentions
raised before us, interest of justice would be subserved if the appellants are
granted liberty to prefer an appeal before the Appellate Tribunal of the
Calcutta Municipal Corporation from the order dated 29.11.2004 passed by the
2 The Appellate
Tribunal shall consider the question relating to condonation of delay in
preferring such appeal in terms of provision of or akin to Section 14 of the
Limitation Act, 1963 as the appellants had been pursuing its remedy before the
Calcutta High Court and this Court.
The Tribunal is
hereby directed to hear out and dispose of the appeal as expeditiously as possible,
preferably within a period of six months from the date of preferring the
appeal. The appellants must file the memo of appeal within two weeks from date
with an appropriate application for condonation of delay. However, the order of
attachment shall continue.
We make it clear that
we have not gone into the merit of the matter and all the contentions of the
parties shall remain open.
We, however, in
exercise of our jurisdiction under Article 142 of the Constitution of India,
direct that the Calcutta Municipal Corporation shall appropriate any amount,
whether received from the landlord or from the tenant, in respect of the
property in question, towards the arrears of the property taxes dues.
The appeal is
disposed of accordingly.
S.L.P.(C) No. 4893/2007:
Although a limited
notice was issued by us in terms of order dated 26.3.2007, having heard Mr.
Mukherjee, learned counsel appearing on behalf of the appellant and Mr.
Vishwanathan, learned counsel appearing on behalf of the respondents, we are of
the opinion that leave should be granted in respect of all the questions raised
by the appellant herein.
3 Leave granted.
This appeal is
directed against the judgment and order dated 15.11.2006 passed by a Division
Bench of the Calcutta High Court in A.P.O.T. No. 462/2006 in G.A.No. 2793/2006
whereby and whereunder the appeal preferred by the respondents herein was
disposed of inter alia directing:
facts and circumstances of the case, Smt.
Basanti Dutta, a
learned Advocate of this Court is appointed Receiver. She shall hold an enquiry
as to who are the tenants and what is the rent actually paid by them. She shall
diligently collect the arrear dues from the tenant, if any, and shall also
collect the monthly rent and shall deposit the same with the Kolkata Municipal
Corporation towards the arrear rates and taxes. It is clarified that the
defendants shall go on paying the current dues in addition to the aforesaid
deposit in pursuance of the order passed by Sen, J by the order dated 24th August,
For the time being,
the prayer of the plaintiff to appoint Receiver in respect of the two
properties belonging to the defendant is rejected. It will be open to the
plaintiff to apply afresh after a year depending upon the outcome of the
exercise directed by this order. It is clarified that the Receiver shall be in
possession of the property and no change of tenancy shall take place without
the leave of the Court.
The Receiver shall be
entitled to a monthly remuneration of 120 G.M. The receiver shall also be
entitled to appoint a clerk of her choice at such reasonable remuneration which
she thinks proper. It will also be open to the Receiver to open a Bank Account
with the State Bank of India, Main Branch. The Receiver shall be entitled to
draw her remuneration including that of the clerk and the costs any from out of
the rental income.
In the event the
defendant are occupying any part or portion of the building in question, they
shall contribute at the rate of Rs. 6 per sq. ft.
Let the money, to be
deposited by the Receiver, be adjusted by the Kolkata Municipal Corporation
towards the principal first.
4 This will not
prevent the parties to the suit from challenging the assessment made by the
Corporation before the appropriate forum."
The basic fact of the matter is not in dispute.
herein is a Mutwalli in respect of Pahchi Bibi Wakf Estate.
He applied for and
was granted permission for a long term lease of a vacant plot of land being
situated at 54/1, Rafi Ahmed Kidwai Road. Pursuance to or in furtherance of the
directions issued by the High Court in this behalf, admittedly, a lease deed
was executed by and between the said Mutwalli and the appellant herein on or
about 5.4.1967. In terms of the said deed of lease, the appellant built up a
five-storeyed building (superstructure) covering an area of 55,000 sq. ft. It
let out the said superstructure, inter alia, to Income Tax Department and the
State Bank of India.
predecessors-in-interest of respondent Nos.1 to 3 filed a suit in 1997, inter
alia, for a decree for a sum of Rs. 3.50 crores in respect of the arrears of
rates and taxes to be paid by the appellant herein to the Municipal Corporation
as also for grant of a decree for recovery of peaceful and vacant possession of
the said premises by evicting defendant No.1 and/or tenants therefrom.
In the said suit, a
prayer was also made for appointment of a receiver for collecting the municipal
dues from the tenants of the suit premises and for payment of the arrears of
taxes dues to the Calcutta Municipal Corporation.
5 Indisputably, by
reason of an order dated 24.8.2005, a learned Single Judge of the Calcutta High
Court, while declining the prayer of the plaintiffs-respondents for appointment
of the receiver, directed:
No.1 is directed to pay the current dues of the KMC Act in accordance with the
bills raised by the KMC. The amount, which is being paid in terms of the
direction of the Writ Court, is to be adjusted towards arrears. The payments to
be made in terms of this order are without prejudice to the right and
contention of the parties both in suit as well as in the pending writ
application. In the event, it is ultimately held that the demand raised by the
KMC is not correct, then the respondent No.1 shall be given due adjustment in
respect of any excess payment made, after taking into account all payments made
as on that date. The excess amount so computed shall be reimbursed by the KMC
to the respondent No.1 and will not be adjusted towards future rates and taxes
to be paid in respect of the suit property."
said order was not appealed against. The plaintiffs- respondents, however,
filed an application for appointment of a receiver in respect of two other
properties owned and possessed by the appellant herein, namely, the properties
situate at 4B, Chowringhee Place, Kolkata, and 39, Bentinck Street, Kolkata. By
reason of the judgment and order dated 18.7.2006, a learned Single Judge of the
Calcutta High Court while declining the said prayer, observed:
"I have heard
Mr. Bachawat for the plaintiffs, Mr. Das Adhikary for the Municipal Corporation
and Mr. Banerjee. the respondent No. 1. It is true that the dues of the
corporation are mounting up day by day. The properties which the plaintiffs
want receiver to be appointed (illegible) (sic) the matter subject of the
present suit. At the same time protect the interest of the parties the order of
injunction passed by me on May 3rd, 206 should continue till the disposal of
6 I am told that the
respondent No.1 has already filed its written statement. Mr. Das Adhikary prays
for two (sic) time to file their written statement.
The written statement
be filed by the corporation within two weeks from date; cross-over for
discovery within four weeks thereafter, inspection forthwith, liberty is given
to the parties to mention for early hearing of the suit before the appropriate
Till the suit is
heard and disposed of, the interim order passed on May 3rd, 2006 would
plaintiffs-respondents preferred an appeal thereagainst. By reason of the impugned
judgment a Division Bench of the Calcutta High Court, while refusing to appoint
a receiver in respect of other properties belonging to the appellant, as
indicated hereinbefore, passed the impugned order as quoted hereinabove.
learned counsel appearing on behalf of the appellant would submit that keeping
in view the fact that the plaintiffs-respondents in the second application
filed before the learned Single Judge of the High Court, did not make any
prayer for appointment of receiver in respect of the properties, the Division
Bench of the High Court must be held to have committed an illegality in passing
the impugned judgment. The learned counsel, in this connection, has also drawn
our attention to Grounds D & I of the special leave petition which read as
"D. Because the
High Court erred in the appeal in directing inter alia that the petitioner
shall contribute @ Rs. 6 Per Sq. Ft. for any part or portion of the building
being occupied by the petitioners.
The said direction is
beyond the pleadings and relief claimed in the suit filed by the
respondents/plaintiffs being in contravention of the lease agreement between
the petitioner and the respondent Nos.1, 2 and 3, under which the said
respondent were paid a sum of 7 Rs.2,30,000/- (Two lacs thirty thousand) and
thereafter were to be paid a monthly lease rent of Rs.3,000/- for building upon
the vacant land and using the same for 51 years."
"I. Because High
Court erred in directing the petitioner to pay rent to the Receiver @ Rs.6/- per
sq. ft. for any portion of the said building being occupied by them as the same
was beyond the clauses of the lease Deed inasmuch as the petitioners are the
lessee of the said building and are paying the lease rent @ Rs.3,000/- per
month as per the Deed of Lease."
learned counsel appearing on behalf of the respondents, however, has drawn our
attention to the following averments made in the counter affidavit:
"In view of the
said appointment the Advocate of State Bank of India having their office at the
said premises have stated that on or about May 20, 2004 the petitioner had
taken a loan for a sum of Rs.
12 lacs against the
rent receivable from the said State Bank of India.
The said monthly rent
of Rs. 42,201/- was converted to EMI against the rent taken by the petitioner.
The petitioner has stated in their affidavit in opposition that as on September
1, 2006 they have been receiving Rs. 42,201/- as rent from the State Bank of
India. The said rent being converted to an EMI it is clear therefrom that the
petitioner could not have deposited the said rent of Rs. 42,201/- from the
State Bank of India as stated by the petitioner in the said affidavit."
is also required to be directed to make payment of the said dues of the
corporation in accordance with the order dated August 24, 2005 which has not
been appealed against by the petitioner and which is binding on them. The total
dues of the petitioner which they are liable to pay to the respondent No.4 is
more than Rs.4 crores and it is necessary that such direction be given by the
petitioner to make full payment thereof in view of the violation committed and
the mis-conduct of the petitioner as stated therein before. The said payments
are also to be given due adjustments in accordance with the order passed in the
said writ jurisdiction and/or proceedings arising therefrom as stated in the
said order of August 24, 2005. The petitioner also occupies an area of more or
less 500 Sq. Ft. on Ground Floor for which they are liable 8 to make payment
of rates and taxes as an occupier in accordance with the said terms and
conditions of the lease deed. The petitioner's quarterly rates and taxes
imposed on the said building is Rs.5,34,693/- and the rent collected is
The whole of the rent
collected has been directed to be deposited as rates and taxes by the Hon'ble
High Court at Calcutta to liquidate the said dues outstanding in respect of the
said premises. The said rent when calculated to per square feet per month comes
to approximately Rs.6.53 sq. ft. which has been rounded off by the Hon'ble
Judge in the said impugned order to Rs.6 per sq. ft. and has directed the
petitioner to make such payment per sq. ft. for the area occupied by them if
any in view of their admission that the said rent so collected has been
deposited as rates and taxes to the respondent No.4."
Mr. Vishwanathan on a
query made by us, however, very fairly stated before us that the said
contentions are raised before us for the first time. We, therefore, are of the
opinion that we should not deal with the said issues in this appeal.
prayer for appointment of receiver for the purpose of collection of rent from
the tenants inducted in the premises in question had been refused by the
learned Single Judge of the High Court. As the said order has not been appealed
against, the same attained finality. It is, furthermore, not in dispute that
the other directions issued by the learned Single Judge, including the order of
injunction, are being complied with. In fact, a statement has been made before
us by Mr. Mukherjee, learned counsel appearing on behalf of the appellant, that
out of a sum of Rs. 4,03,98,731/- as demanded by the Calcutta Municipal
Corporation up to March 2007, a sum of Rs.3,92,62,600.88 has already been paid.
We have, however, been informed that another bill has been issued by the
Calcutta Municipal Corporation on 9 15.9.2008, showing the arrears of taxes as
Rs.4,88,62,920/-. The said sum includes the amount of interest and penalty.
However, in view of
the fact that the plaintiffs-respondents in their second application for
appointment of receiver did not reiterate the prayer made in the first
application, namely, that a receiver be appointed in respect of the suit premises
in question, we fail to understand as to how the Division Bench of the High
Court could issue the impugned direction.
Before the learned
Single Judge, the prayer of the plaintiffs-respondents is confined to the
appointment of a receiver in respect of the two properties which were not the
subject matter of the suit and the said prayer having been rejected, the
Division Bench of the High Court should have considered as to whether any
interference therewith was warranted or not.
We have noticed hereinbefore
that the Division Bench has also rejected the said prayer. In that view of the
matter, the Division Bench of the High Court, in our opinion, could not have
gone beyond the pleadings of the parties and directed appointment of a receiver
for the purposes mentioned here to before. The said order, therefore, being
wholly unsustainable is set aside.
We would, however,
direct that the interim order passed by the learned 10 Single Judge shall
continue. The receiver is discharged. Any report submitted by the receiver
before the learned Single Judge shall, however, be kept on record. Any amount
realised by the receiver and deposited with the Calcutta Municipal Corporation
shall be adjusted towards the arrears of taxes.
continue to deposit the amount of rates and taxes in the office of the Calcutta
appropriated by the receiver from the amount of rent in terms of the order
passed by the Division Bench, however, need not be refunded.
The appeal is allowed
with the aforementioned direction/observation.
The parties may file
application or applications as they may deem fit and proper.
We, furthermore, make
it clear that the order passed in the connected appeal, i.e. appeal arising out
of SLP(C) No. 6161/2007, shall be deemed to have been passed in this appeal