THACKERS PRESS AND DIRECTORIES LTD Vs. GOPI NATH AUDDY
LAWS(CAL)-1963-9-26
HIGH COURT OF CALCUTTA
Decided on September 18,1963

Thackers Press And Directories Ltd Appellant
VERSUS
Gopi Nath Auddy Respondents


Referred Judgements :-

SHANMUGAM PILLAI V. ANNALAK AMMAL [REFERRED]
FATEH CHAND V. BALKISHAN DASS [REFERRED]
<RC>LAWSUIT(CAL) 1963 0 227;ILR(CAL) 1969 2 482;</RC> HIGH COURT OF CALCUTTA <JGN>P. N. MOOKERJEE,SEN</JGN> THACKERS PRESS AND DIRECTORIES LTD GOPI NATH AUDDY <AT>APPEAL FROM ORIGINAL ORDER 29 OF 1962</AT> 18.09.1963 <SUBJECT>CIVIL,CONTRACT,LIMITATION,PROPERTY</SUBJECT><SI> TRANSFER OF PROPERTY ACT,1882 SEC 114;CONTRACT ACT,1872 SEC 74; <ACT>TRANSFER OF PROPERTY ACT,1882</ACT> <S>S.114</S><S>S.114A</S><ACT>CONTRACT ACT,1872</ACT> <S>S.74</S> </SI> <FV>APPEAL DISMISSED</FV> <ADV>P. K. SEN,S. R. DAS GUPTA [REFERRED TO]
NAMDEO LOKMAN LODHI VS. NARMADABAI [REFERRED]
K SIMRATHMULL VS. NANJALLNGINH GOWDER [REFERRED]


JUDGEMENT

- (1.)This appeal is directed against a judgment of our learned brother Sinha, J., dismissing the Appellant's application for relief against forfeiture. The application came as a sequel to a suit for ejectment in which a decree was passed by consent of parties. That decree itself provided for relief against forfeiture but, that relief having become unavailable due to lapse of time, the instant proceeding was started for fresh relief on an alleged fresh cause of action upon a broader basis and a much widened scope. The history of this litigation is somewhat long and its chequered career bristles with intricacies of law and variety and diversity of circumstances. A brief recapitulation of this history is necessary for the decision of this appeal.
(2.)The litigation started on July 26, 1955, in the form of a suit (Ejectment Suit No. 2105 of 1955) for ejectment (recovery of possession), arrears of rents and taxes, mesne profits, damages etc. Respondent No. 1 was the Plaintiff in the said suit and the present Appellant was the sole Defendant at the time of its institution. Ejectment was claimed on the ground of forfeiture of the Defendant's tenancy of the suit premises (premises No. 6B Bentinck Street) on account of non-payment of rent since November 1954. This claim was made under a specific term of the lease between the parties, dated March 21, 1934, which provided, inter alia, for forfeiture of the lease "if the rent payable or any part thereof would at any time be unpaid for 21 days after becoming payable", the rent being payable under the said lease "on or before the 10th of every month in respect of the preceding month". In the suit, the present Respondent No. 2, the Metropolitan Bank Limited, got itself added as Defendant No. 2 on the allegation it was a 'hypothecate' in respect of the demised property from the tenant Defendant No. 1.
(3.)On March 6, 1958, when the suit was called on for hearing before Dutta, J., counsel for the present Appellant admitted the claim of the Plaintiff-Respondent No. 1, so far as it was based on and referable to arrears of rent, and prayed for relief against forfeiture in terms of Section 114 of the Transfer of Property Act by offering its properties as security for the landlord's dues on the above account and assuring payment within a month. To enable compliance with the Statute the suit was adjourned for a fortnight and on March 21, 1958, a consent decree was passed as follows:
Suit No. 2105 of 1955 In the High Court at Calcutta Ordinary Original Civil Jurisdiction Gopinath Auddy, residing at No. 58/1, Wellington Street, Calcutta, within the said jurisdiction...... Plaintiff v. Thacker's Press & Directories Ltd., a Limited Liability company having its registered office and carrying on business at No. 6B Bentinck Street (formerly a portion of premises Nos. 6 and 7 Bentinck Street), Calcutta, within the said jurisdiction, (2) Metropolitan Bank Ltd., having its registered office at No. 7 Chowringhee Road, Calcutta, within the aforesaid jurisdiction...... Defendants.

Suit for recovery of possession of No. 6B Bentinck Street, Calcutta, for Rupees six thousand and eight hundred being the arrears of rent, for Rupees two hundred and ninety-four annas four and pies three being the occupier's share of taxes, Rupees two hundred and twenty-seven annas thirteen being the excess owner's share of taxes, Rupees five thousand for damages, Rupees three thousand for mesne profits, for costs &c. This cause coming on this day for final disposal before the Hon'ble Sushil Kumar Dutta, one of the Judges of this Court, in the presence of the Advocates for the parties. And it appearing that the Plaintiff is pressing his claim only with reference to arrear of rent in respect of the premises in suit and not on subletting or on other grounds as mentioned in the plaint. And upon the Defendant Thacker's Press & Directories Ltd., charging its properties subject to the existing charges or decree in respect of the said properties, if any, at No. 6B Bentinck Street, Calcutta, in favour of the Plaintiff for the sum of Rupees forty thousand nine hundred and forty-seven being the arrears of rents mesne profits interest and excess arrears shares of Corporation taxes upto this date and costs of the Plaintiff. It is ordered and decreed that the interest at six per cent per annum will run on the sum of Rupees thirty-four thousand and five hundred and ninety-five which represent arrears of rents and mesne profits from the date of the decree until realisation. And upon the Defendant Thacker's Press & Directories Ltd. paying to the Plaintiff the said sum of Rupees forty thousand nine hundred and forty-seven within fifteen days from the date hereof. It is further ordered and decreed that the Defendant Thacker's Press & Directories Ltd. shall be entitled to hold the said property as if no forfeiture of the lease had occurred. And in default of payment of the said sum of Rupees forty thousand nine hundred and forty-seven within fifteen days from the date hereof as aforesaid. It is further ordered and decreed that the Defendant Thacker's Press & Directories Ltd. do deliver up quite vacant and peaceful possession of the said property, and it is further ordered and decreed that the Defendant Thacker's Press & Directories Ltd. do pay to the Plaintiff mesne profits at the existing rate of rent of the sum of Rupees eight hundred and fifty per month commencing from the twenty-second day of March one thousand nine hundred and fifty-eight until possession thereof is delivered up to the Plaintiff as aforesaid. It is further ordered and decreed that the Defendant Thacker's Press & Directories Ltd. do pay to the Defendant the Metropolitan Bank Limited its cost of this suit to be taxed by the Taxing Officer of this Hon'ble Court as of a defended suit and such costs to be added by the said Defendant the Metropolitan Bank Ltd. to its claim under the mortgage decree obtained by it against the Defendant Thacker's Press & Directories Ltd. in Suit No. 1734 of 1957 (The Metropolitan Bank Ltd. v. The Thacker's Press and Directories Ltd.). It is further ordered that this decree be drawn up expeditiously.



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