Soumen Sen, J. - (1.) THE plaintiffs are the owners of an office space on the first floor at premises No. 24, Park Street, Kolkata, measuring 2625 sq. ft. together with the parking space in the courtyard (hereinafter referred to as the suit premises). The plaintiffs have instituted the suit against the defendants for recovery of possession of the suit premises and for mesne profits from May, 1986 till possession. The plaintiffs purchased the suit premises from its erstwhile owner, Calcutta Credit Corporation Limited, which had let out the same to one Standard Pharmaceuticals Limited (hereinafter referred to as the original tenant). There was an attornment of tenancy in favour of the present plaintiffs, on 16th May, 1977 prior to the purchase of the suit premises by the plaintiffs and thereafter, the rents were being paid by the original tenant to the present plaintiffs. According to the plaintiffs, in or about November, 1988 the plaintiffs for the first time noticed that the original tenant has been describing itself as a division of the defendant No. 1, Ambalal Sarabhai Enterprises Limited. The plaintiffs upon enquiry could discover that pursuant to a scheme of amalgamation the said original tenant has merged with the defendant No. 1 and have thereafter being dissolved without winding up. Inasmuch as the same amounted to an assignment of the tenancy of the original tenant without consent of the landlord, the plaintiffs filed the instant suit seeking, inter alia, eviction of the defendants from the suit premises as a consequence of amalgamation of the original defendant with the defendant No. 1. The defendants had come to occupy the said premises on the basis of such order sanctioning the scheme of amalgamation. The plaintiffs could also ascertain that the original defendant had merged with the defendant No. 1 in or about 1983. The plaintiff had never consented to transfer of such tenancy in favour of the defendants. The plaintiffs were advised to file the instant suit for eviction of the defendant No. 1 on the ground of illegal transfer/assignment of the said premises by the original tenant, the defendant No. 1. The plaintiffs prior to obtaining such legal advice were not aware of their right to initiate the present action against the defendant No. 1.
(2.) THE plaintiffs contended that in the events that have happened the defendant No. 1 is under an obligation to make over the suit premises as the defendant No. 1 is in occupation of the property as a trespasser without having any semblance of right to occupy the suit premises. The said transfer/assignment is illegal, as the plaintiffs never had given any consent to the original tenant within the meaning of Section 14 of the West Bengal Premises Tenancy Act, 1956. The plaintiffs could further ascertain that the defendant Nos. 2, 3 and 4 are also having their offices and are carrying on their business on the said premises. The plaintiffs, at no point of time, had ever given any permission or consent to the continuous occupation of the said defendants or use of the said premises or any portion thereof. The plaintiffs had duly served on the said defendants two notices dated February 8, 1989 (Exhibit K) calling upon them to hand over possession of the suit premises to the plaintiffs. The defendants and each of them however has refused to make over a vacant possession of the suit premises. The occupation of the defendant in the suit premises from May, 1986 is illegal and the plaintiffs are entitled to mesne profits. On these facts, the suit was filed by the plaintiffs. The defendants contested the proceeding and have filed the written statement. The defendants contended that the defendants are protected by Clause 5 and Clause 11 of the tenancy agreement entered into on 22nd January, 1973. Pursuant to a scheme of amalgamation made by and between Standard Pharmaceuticals Limited and the defendant No. 1 sanctioned by this Hon'ble Court and the Gujarat High Court by orders dated 22nd January, 1983 and 7th May, 1983 respectively, all assets, liabilities, rights and respectively, all assets, liabilities, rights and obligations including the aforesaid tenancy vested in defendant No. 1, the said Standard Pharmaceuticals Limited stood dissolved without winding up by an order dated 22nd January, 1983 passed by this Court in the amalgamation proceeding. The said order ultimately attained finality in September, 1983 after a special leave petition challenging the order of the Division Bench of Gujarat High Court approving the amalgamation was dismissed as withdrawn. Pursuant to the aforesaid, all the rights and obligations contained in and arising out of the said agreement of tenancy dated 22nd January, 1973, in so far as it related to Standard Pharmaceuticals Limited, vested in the defendant No. 1. Standard Pharmaceuticals Limited duly communicated confirmation and/or sanction of the said scheme of amalgamation to the plaintiffs whereupon the plaintiffs by actual acceptance and/or acquiescence recognised the defendant No. 1 as a tenant in respect of the suit premises. Moreover, the plaintiffs had actual notice of the petition for confirmation of the said scheme of amalgamation through advertisements published in newspapers. The plaintiffs actually and by their conduct became bound by the tenancy agreement and, in fact, had started accepting rents and issued rent receipts in favour of defendant no 1.
(3.) IN view of the aforesaid a fresh tenancy is created in favour of the defendant No. 1 adapting all the terms and conditions of the said tenancy agreement dated 22nd January, 1973. In view of such recognition of the defendant No. 1 as a tenant under the plaintiff, the defendant No. 1 should necessarily be substituted in place of Standard Pharmaceuticals Limited so far as the application and interpretation of the said agreement dated 22nd January, 1973 is concerned. In view thereof and particularly Clause 11 of the said tenancy agreement dated 22nd January, 1973, the defendant No. 1 would be entitled to use the said premises for any company which will be managed or associated with the defendant No. 1 in which its directors have substantial interest. The parties have also disclosed their documents. Before commencement of the trial the following issues were settled: 1. Is the suit maintainable? 2. Is the suit barred by limitation? 3. Was the transfer/assignment of the tenancy right by virtue of the amalgamation order to the defendant No. 1 illegal within the meaning of West Bengal Premises Tenancy Act, 1956 as alleged in paragraph 7 of the plaint? 4. Are the defendants trespassers in respect of the suit premises?;