1. The plaintiff has filed the suit against the defendants for recovery of vacant and peaceful possession of the suit premises being flat no.5 on the second floor together with a godown and a garage of the building at the premises no. 36, Shakespeare Sarani (formerly known as Theatre Road), Calcutta and a decree for mesne profits against the defendant no.1 for Rs.21,90,000/-.
2. The plaintiff is a monthly tenant of Flat No.5 situated on the Second Floor of a building at the premises no.36, Shakespeare Sarani, Calcutta under the Trustees of Rai Bahadur Bissessuelal Motilal Halwasiya Trust.
3. The suit premises consists of three bed rooms, three baths, balconies, one Drawing Room, one Dining Room, one Kitchen along with store room no.13 on the first floor and covered garage no.19 on the ground floor and the said flat was furnished and was equipped with various furniture and fittings, such as, dinning table, wardrobe, sofas, writing table, ceiling fans etc.
4. On or around 25th September, 1972, the defendant no.1 (since deceased) was appointed as a Director in the plaintiff company and was subject to retirement by rotation. The defendant no.1 on the basis of such terms of employment retired by rotation but was reappointed as a Director by the shareholders of the plaintiff company at the Annual General Meetings of the plaintiff company held from time to time. The defendant no.1 finally retired at the Annual General Meeting of the Plaintiff Company held on 15th July, 1985 and as a result, the defendant no.1 ceased to be a Director of the plaintiff company.
5. Thereafter, in the month of January, 1985, whilst the defendant no.1 was a Director of the plaintiff company, the defendant no.1 approached the plaintiff that he wanted the suit premises together with the furniture and fittings installed thereat for the purpose of accommodating one of his relatives temporarily for a period of two months as the flat of his relative was under renovation and the defendant no.1 would deliver vacant and peaceful possession of the suit premises immediately after the flat of his relative was renovated and in any event within two months, whichever was earlier.
6. Relying upon the representation of the defendant no.1, the plaintiff handed over vacant and peaceful possession of the suit premises with all furniture and fittings installed therein on undertaking/assurance to deliver vacant and peaceful possession of the suit premises immediately after the flat of his relative was renovated or in any event within two months.
7. The plaintiff submits that the license, granted by the plaintiff to the defendant no.1, expired in the month of March, 1985 and the defendant no.1 was obliged to make over vacant and peaceful possession of the suit premises together with all furniture and fittings atleast by 31st March, 1985.
8. In the Annual General Meeting of the Company held on 15th July, 1985, the Plaintiff company did not reappoint the defendant no.1 as Director of the Company and as a result to that, the defendant no.1 ceased to be a Director of the Company on and from 15th July, 1985 and the same was duly informed by the plaintiff company to the Registrar of the Companies.
9. The defendant no.1 taken possession of the suit premises along with all furnitures and fixtures with the permission of the plaintiff and thus, the defendant cannot claim the suit premises by way of adverse possession, instead of vacating the suit premises by handing over possession to the plaintiff, the defendant no.1 has inducted various third parties, i.e. defendant nos. 2 to 7 in the suit premises and started realising substantial amounts from defendant nos.2 to 7 as purported service fees.
10. The defendant no.1 had no right, title and interest over the suit premises and has no authority to induct any third party in the suit premises. The defendant no.1 has wrongful and illegal gains from the premises by inducing defendant nos. 2 to 7 in the premises.
11. The plaintiff has been making payment of rent in respect of the suit premises month by month to its landlord and being the lawful tenant of the suit premises, the plaintiff has a right over and in respect of the suit premises and is entitled to use and enjoy the said premises.
12. The defendant nos. 2 to 7 are rank outsiders and there is no privity of contract between the plaintiff and the defendant nos.2 to 7. The defendant nos. 2 to 7 have no right to remain in possession of the suit premises.
13. Learned Counsel appearing on behalf of the Plaintiff, brought to the notice of this Court that in spite of service of notices, and even after publication of the notices in the local newspaper, none appears on behalf of the defendants and it appears from the reports of the Suit Registry Department, Original Side, that the defendant no.1 had entered appearance on 11th December, 2001, through its Learned Advocate, and thereafter none appeared on behalf of the defendant no.1 and thus the matter was fixed as an “undefended suit”.
14. Learned Counsel appearing on behalf of the plaintiff also handed over the copy of the order passed by the Company Court in C.P. No. 90 of 1983, dated 27th April, 2016, wherein it has been recorded that defendant no.1, namely Mr. Nirmaljit Singh Hoon died on 16th March, 2016, accordingly on the basis of the said order this Court recorded the death of defendant no.1 and deleted the name of the defendant no.1 from this Suit. As none appears on behalf of the defendant no.1 even after publication of notice, accordingly this court proceeded with the suit against the other defendants.
15. The Plaintiff had examined one witness, namely, Mr. Krishna Kumar Biyani, who worked with the plaintiff company as its Vice-President and Company’s Secretary, herein after referred as PW-1 in the present suit and during his evidence, the plaintiff has adduced altogether 12 (Twelve) Documents being “Exhibit – A to Exhibit – L”.
Exhibit – A, which are letters sent to M/s. Rai Bahadur Bissessurlal, dated 4th November, 1998; 8th March, 1999; 7th March, 2000; 9th August, 2001; 9th October, 2001; 12th Nomber, 2001; 11th December, 2001, by the plaintiff enclosing Cheques towards payment of rent for the suit premises being Flat No.5 situated on the Second Floor of a building at the premises no.36, Shakespeare Sarani, Calcutta.
Exhibit – B, are copies of Challans issued by the Rent Controller with respect to deposit of rent by the Plaintiff Company for the month of June, 2006 till December 2023, for the same suit premises proves that the plaintiff company has been paying rent for the premises being Flat No.5 situated on the Second Floor of a building at the premises no.36, Shakespeare Sarani, Calcutta.
Exhibit – C, is a copy of a Form-32 filed with the Registrar of Companies, West Bengal with respect to the appointment of the Defendant No.1 as a director of the plaintiff company, dated 25th September, 1972, which proves his participation as a Director in the company and Exhibit – D, is a copy of another Form – 32 with the Registrar of Companies, West Bengal with respect to the Cessation of Services of the Defendant No.1 as a director of the plaintiff company, dated 15th July, 1985, which proves that the Defendant No.1 stopped being a Director of the plaintiff company from and onwards 15th July, 1985.
Exhibit – I, Copy of an Annual Return Report under the Companies Act, 1956, wherein the details of shareholders and directorship is written which also reflects that Mr. Nirmaljit Singh Hoon was appointed as a Director on 25th September, 1972 which proves the services of Mr. N.S. Hoon as a Director of the plaintiff company and Exhibits – J and K, Photocopies of Minute Book of Annual General Meeting of the shareholders of the company, which was held on 15th July, 1985 at the Registered Office of the Company, which was 6, Lyons Range, Kolkata – 700 001 which proves that in that meeting it was decided by all the other members that Mr. N.S. Hoon, will not be continuing his services as a Director in the plaintiff company.
Exhibit – F, is a copy of the Receiver’s Report dated 12th March, 1998, in G.A. No. 791 of 1998 in suit No. 68 of 1998, and Exhibit – G, are copies of some photographs taken by the Receiver, while inspecting the suit premises which conjointly proves that there are illegal occupants in the premises till date namely, Nirmaljit Singh Hoon (died on 16th March, 2016), Julie’s Herbal Beauty Clinic, Mrs. Julie Sen and Smt. Nina Varma.
Exhibit – L, is copy of notice published to inform the defendant no.1 regarding the suit proceedings, as it appears from the records that neither the defendant no.1 nor his representatives have appeared in the suit, the suit proceeded as an ‘Undefended Suit’.
16. During the pendency of the suit, by an order dated 9th March, 1998, this Court has appointed a Receiver with a direction to prepare a report on the present state of affairs and the persons in possession of the suit premises, being Flat No. 5, a godown and a garage at no.36 Shakespeare Sarani, Calcutta. The report submitted by the Receiver is marked as Exhibit “F” which reads as follows:
“3. I visited the suit premises on 11 March, 1998 at 4:00pm. I was accompanied by:
Mr. M.J. Ojha, Advocate, representing Jhunjhunwala & Co. the Advocate on record for the plaintiff;
Mr. Asok Das, clerk of Mr. Ojha:
Mr. P.K. Mishra,
Mr. S. Mookherjee, and
Mr. R.N. Saha, representing the plaintiff;
Mr. Manas Bose, the receiver's clerk.
4. Near the front entrance of the building, I noticed:
(i) a shingle of Julie's Herbals Beauty Clinic, with "House of Nina Verma, 2nd Floor Flat No.5, 36 Shakespeare Sarani, Calcutta-16" also imprinted;
(ii) a letter box, beneath the signboard, bearing the names of the two companies, Licon Eskay Enterprises Private Ltd. and D.G.H. Excon (India) Private Ltd.
5. Re. Flat No.5
This flat is on the 2nd floor of the building. The area of the flat, I was told, is about 2000 sq.ft. The flat in divided into two parts. The larger part, measuring 1250 sq.ft (approximately), is occupied by Julie's Herbals Beauty Clinic. The smaller part is occupied by the two companies jointly. The main door of the beauty parlour is at the head of the flight of stairs. The two companies have a common door which is to the left of the 2nd floor landing.
6. Re. the part occupied by the Beauty Parlour
(a) A small signboard with "The House of Nina Verma, 36 Theatre Road, Plat No.5, Calcutta-17" inscribed is affixed to the beauty parlour's front door. A nameplate of N.S. Hoon is also attached.
(b) The apartments appeared to be specially fitted for use as a beauty salon.
(c) The apartments comprise of a reception room, a lon-gish waiting room, a couple of cubicles to the right of the waiting room and separated from it by a wooden partition, a covered balcony at the other extreme, and a room to its left. A thumb-nail sketch of the apartments is given below:
(i) The reception room is sparsely furnished with a few chairs;
(ii) The waiting room has a long sofa and a couple of smaller ones, and one or two low tables;
(iii) The two cubicles have a few office furniture and some gadgets for physical exercises. I was told that the cubicles, which were once used for office purposes, are now used for storing equipments for exercise and other things;
(iv) The balcony has a temporary partition, and a clothes-line where towels, etc. were hung out to dry:
(v) The room to the left of the balcony has a medium-sized steel almirah, a low oval couch or divan in the middle of the room, a few stools and chairs, an exerciser and one or two implements for callis- thenics.
(d) In addition, there are two rooms, which I did not enter. I was told that those two rooms are used for hairstyling and tinting, manicuring, etc. and that business was on, with beauticians tending to women customers.
(e) Upon enquiring, I learnt that:
(i) the apartments are used as the business establishment of the beauty parlour, and not as a residence;
(ii) the beauty parlour is run by Mrs Julie Sen, who usually comes in the morning and leaves after noon, at around 1 o'clock;
(iii) Ms Nina Verma can be contacted at her residence at Judge's Court Road;
(iv) Mr Hoon is the "malik" [landlord), and the apartments have been let out to Julie's Herbals Beauty Clinic.
(f) These informations were given by one Debasis Halder, who introduced himself as the parlour's caretaker, and one S.R. Mishra, claiming to be an employee there. Besides these two persons, I saw two or three ladies in their blue tunics in the apartments.
7. Re. the part occupied by the two companies
(a) The front door bears the nameplates of the two companies;
(b) Inside, there are a number of small cubicle-type office rooms, with a reception counter near the entrance;
(c) Upon enquiring, I learnt that:
(i) the two companies are under the same management, and are engaged in engineering business, mainly carrying out fabrication work;
(ii) the premises are used exclusively for office purposes;
(iii) the premises have been let out to the two companies by the "landlord" N.S. Hoon.
(d) These informations were collected from one S. Jharimune, who introduced himself as a clerk.
8. Copies of the minutes of the order of 9 March 1998 and of the plaintiff's application were left at the reception room of the beauty parlour and at the reception counter of the companies as the employees said that none of them had the authority to receive the copies. According to them, the copies ought to be served at the Judge's Court Road residence of Mr. Hoon.
9. There is a 2-storied annexe housing the servants' quarters. According to one Braij Raj Singh, the quarters are not numbered, but one of the rooms there is occupied by an employee of Flat No.5. It was pointed out by Mr Saha that one of these one-roomed quarters has been referred to as "godown" in the plaint and petition.
10. There are a number of covered garages in front of and behind the annexe. I was told by Braij Raj Singh that the garages also have no numbers, but a garage allotted to Flat No.5 is lying empty.
11. I tried to but could not get in touch with the durwan of the building as he was busy elsewhere.”
The report of Receiver proves that the defendant nos. 2 to 7 are in occupation of the suit premises. Exhibits A and B proves that the plaintiff has paid the rent of the suit premises initially to M/s. Rai Bahadur Bissessurlal and subsequently, the plaintiff has started depositing the rent with the from the year 2006 till 2023 with the Rent Controller.
17. The evidence adduced by the plaintiff proves that the plaintiff company has never inducted the defendant nos.2 to 7 as tenant in the suit premises. On the request of the defendant no.1 who was at the relevant point of time was the Director of the plaintiff Company, the plaintiff has delivered the possession of the suit premises along with all fittings and fixtures as the defendant no.1 had assured that immediately after the flat of his relatives was renovated or in any event within two months whichever is earlier, the defendant no.1 will deliver the possession of the same but the defendant has not vacated the premises and on other hand defendant no.1 since deceased during his life time has inducted the defendant nos. 2 to 7 in the suit premises and the defendant no.2 to 7 are still in illegal occupation of the suit premises. It is also proved by the plaintiff that the relation between the plaintiff company and the defendant no. 1 extinguished on and from 15th July, 1985 in terms the Annual General Meeting of the Company wherein the plaintiff company did not reappoint the defendant no.1 as Director of the plaintiff company and the defendant no.1 ceased to be the director of the plaintiff company.
18. In view of the above, this Court finds that the plaintiff is entitled to get decree for recovery of possession of Flat No. 5, situated on the second floor of the building at the premises no.36, Shakespeare Sarani (formally known as Theatre Road), Kolkata comprises of three bed rooms, three baths, balconies, one drawing room, one dining room, one kitchen along with store room no.13 on the first floor and covered garage no.19 on the ground floor of the said premises.
19. The defendant nos. 2 to 7 are directed to vacate the suit premises and to hand over the vacant peaceful possession of the suit premises to the plaintiff company.
20. As regard the mesne profits this Court is of the view to ascertain the same, an enquiry is to be conducted. Mr. Pritam Choudhury, Contact No. 9831775807, is appointed as and Special Officer to conduct an enquiry to ascertain the mesne profit. The remuneration of the Special Officer is fixed Rs.3,00,000/-. Initially, the plaintiff shall pay the remuneration to the Special Officer and the plaintiff is entitled to recover the same from the defendants. The Special Officer is directed to complete the enquiry within four months from the date of receipt of the copy of this order and to submit report before this Court by 6th November, 2024.
21. List this matter on 6th November, 2024.
