KRISHNA KUMAR KHEMKA Vs. GRINDLAYS BANK P L C

JUDGEMENT

(1.) Leave granted.

(2.) This appeal is directed against the order of the Division Bench of the High Courtof Calcutta. The appellant was transposed as the plaintiff in the Original Side Suit No. 2479/67 in the High Court of Calcutta. The suit was filed for a declaration that the various properties set out in the Schedule belonged and still belong to the joint family consisting of the members mentioned in the plaint. Pending the suit an application was filed for appointment of a receiver for the various properties mentioned in Schedul Aannexed to the petition, for injunction and for other reliefs. One Mr. S. C. Sen was appointed as Receiver. A declaration was also sought in the suit that the trust dated Oct. 20th, 1948 created.by late Gopi Krishna Khemka, father of the plaintiff, is void and for cancellation of the same. Premises Nos. 38, New Road, Alipore; building with open space was one of the properties belonging to the trust. Grindlays Bank Limited (Grandlays for short), respondent No. 1 herein was the original tenant and they were occupying four flats and they surrendered a portion of the tenancy namely two flats i.e. Flats Nos. 1 and 2 which came into effect from Ist April, 1978. The receiver let out these two flats to M/s. Tata Finlay Ltd. ('Tatas' for short) with effect fron. February 7, 1979 pursuant to a letter written by Tatas. Questioning the action of the receiver an application was filed in the High Court contending that the receiver had no authority to create any tenancy and that the receiver has virtually created two new tenancies terminating the original tenancy of Grindlays and it was contended before the learned single Judge of the Calcutta High Court that neither Grindlays nor Tatas were entitled to occupy the premises and they are liable to be evicted summarily. The learned single Judge was not inclined to order summary eviction as prayed for but, however, observed that the respective contentions of the parties as to the validity of the tenancy created in favour of Tatas have not been finally decided by the High Court and that the parties are at liberty to agitate the same grounds in any action that they may be advised to proceed for eviction of Tatas and Grindlays. As against the order of the learned single Judge, an appeal was filed before a Division Bench. It was contended before the Division Bench that upon surrender of Flats Nos. 1 and 2 by the Grindlays a fresh tenancy was created by the receiver from Ist April, 1978 and the other tenancy in favour of Tatas is beyond the powers of the receiver and that the receiver had no authority to create any tenancy either in favour of Grindlays or Tatas. Various contentions were raised before the Division Bench and ultimately the Division Bench having considered the several submissions passed an order, the operative portion of which reads as follows:

(3.) It is not in dispute that the tenancy in respect of Flats Nos. 1 and 2 was surrendered by the Grindlays and from Ist April, 1978 Tatas was inducted as tenant in respect of the said two flats at a monthly rent of Rs. 1200/ and service charge at the rate of Rs. 600 per month and since then Tatas is a monthly tenant in respect of the said two flats. It is the case of the Tatas that the terms of the tenancy were reduced into writing as recorded in the letter dated 7th Feb., 1979 and the receiver adopted the same and did not raise any objection thereto, and it claimed to be still a monthly tenant and therefore, they are entitled to protection under West Bengal Premises Tenancy Act ('Act' for short) and the appellant has no right to demand vacant possession of the said flats from the Tatas. The stand taken by the Grindlays is that the premises in question comprised of four flats and they took all the four flats for 10 years on lease from I st June, 1958. After the expiry of the period of the said lease relationship between Grindlays and the Trust continued to be that of landlord and tenant governed by the Act, and that in 1977 they agreed to surrender Flat Nos. 1 and 2 by the letters dated 17th March, 1978 and 29th March, 1978 addressed to the Receiver in favour of Tatas. However, at all material times they retained the tenancy in respect of Flats Nos. 3 and 4 and continued to be a tenant in respect of those flats and they are also governed by the Act. In the letters written it is also stated by the Grindlays that their continuation as tenant of flats Nos. 3 and 4 was acknowledged by the Receiver by his letter dated 15th May, 1978. It is contended on behalf of the appellant that after the expiry of the lease the receiver had no power to grant a lease for a period exceeding three years without the leave of this Court as envisaged in Chapter 21, Rule 5(a) of the Original Side Rules and that in the instant case without obtaining any such leave receiver's granting monthly tenancies is illegal. Reliance was also placed on the injunction order passed by Justice A. N. Sen Sitting on Original Side while appointing the receiver. The learned Judge passed an order restraining the tenants from selling or "transferring" any of the properties mentioned in Schedule 'A'. According to the appellants the transfer includes lease and therefore, the Receiver by creating a new lease i.e. tenancy has violated the injunction order and on that ground also the action of the receiver should be held to be illegal. First we shall dispose of this contention and then advert to the rest. 0. 40, C.P.C. which provides for the appointment of Receivers empowers the Court to confer upon the Receivers all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property. In Satyanarayan Banerji v. Kalyani Prosad Singh Deo Bahadur, AIR (1945) Calcutta 387, a Division Bench held that the object of appointment of Receiver is not to divest the rightful owner of the title but only to protect the property and an appointment might operate to change possession but cannot affect the title to the property, which remains in those in whom it was vested when the appointment was made. In Ratnasami Pillai v. Sabapathy Pillai, AIR (1925) Madras 318, it is held that the Receiver has only such powers as expressly granted by the Court.