Patherya, J. - (1.) This is an application filed under Section 47 of the Code of Civil Procedure for determination of an issue, which has arisen in respect of the compromise between the parties which resulted in the Award dated 19th February 2009.
(2.) The case of the applicants is that they are owners of the ground floor, mezzanine floor and the entire first floor on the western side of premises No.33A Jawaharlal Nehru Road, Calcutta (said premises). This is besides other units in their occupation in the said premises. Initially the said premises had been let out to the State Bank of India, who subsequently vacated the same and although in 2002 the wall of said premises was broken, pursuant to litigation filed in 2006, the applicants were put into possession but no amenities were provided. In an appeal from an application filed under Section 9 of the 1996 Act an order was passed on 23rd June, 2008, whereby the dispute between the parties was resolved and on basis thereof so also letter of the advocates of the judgmentdebtor society dated 22nd September 2008 an Award was passed on 19th February, 2009. The said compromise was also recorded in proceeding initiated before the Supreme Court from order dated 12.12.2006. On 2nd March, 2009 admittedly before the Arbitrator the area occupied by the petitioner in the said premises was 36,556 square feet. This will be reflected in the various statements of claim filed before the Arbitrator. In fact on the basis of the said area bills were also raised from time to time. The Joint Administrators also have found the applicants to be the occupants of the said area as will appear from the maintenance bills raised by them on the applicants in 2000. The judgmentdebtor society on the basis of the area covered by the bills of the Joint Arbitrators also raised bills on the applicants, and the area mentioned in the statements of claim filed before the Arbitrator also aggregate to 36,556 square feet. In fact even after passing of the Award on 19th February, 2009 bills have been raised on the basis of the said area. While State Bank of India was in occupation of the said premises rentable areas have been identified in its agreements wherein the bath room, kitchen and pantry have been excluded.
(3.) In the affidavit affirmed in 2002 by Mr. Mahesh Prahladka Secretary of the judgment-debtor society the said area has also been accepted. Therefore the bills raised for the differential area in March 2010 is without any basis as admittedly excess area, if any, was within the knowledge of the judgement-debtor at the time of compromise i.e. on 23rd June, 2008. From a reading of the compromise recorded in order dated 23rd June, 2008, it will appear that the dispute in respect of the issue of arrear maintenance charges was resolved by making payment of Rs.1.25 crores. Therefore the said sums covered the total area and on the basis of the said recorded in the order dated 23rd June, 2008, the Award and decree was also passed on the basis of the said total area. The covered area on the ground floor was within the knowledge of the judgment- debtor. In August, 2002 when an affidavit was filed by it in Civil Suit 352 of 2002 as it has been categorically stated in para 4(y) that the plaintiffs, namely, Vidyawati Gupta & Group were also occupying more areas in the said premises than what was purchased by them. The 2002 suit was in respect of the wall which has been broken down. Similarly in paragraph 32 of the said affidavit it was again admitted that the applicants and her group were occupying of more area than was conveyed to them under the Deed of Conveyance. In fact, the Deeds of Conveyance were forwarded to the Special Officer appointed in C.S. 352 of 2002 and a letter dated 17th September, 2002, the advocate for the judgmentdebtor informed the Special Officer that the basis of payment of maintenance charge was the covered area and no claim can be made for more constructed area and that the area of the said premises be measured and demarcated on covered area basis.;