Case: Krishna Kumar Khemka Vs. Grindlays Bank P.L:C. And Ors

The appellant was transposed as the plaintiff in the original side Suit No. 2479 of 1967 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 Schedule A annexed 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 October 20, 1948 created by late Gopi Krishna Khemka, father of the plaintiff, is void and for cancellation of the same. Premises No. 38, New Road, Alipore, building with open space was one of the properties belonging to the trust. Grindlays Bank Limited (Grindlays for short), respondent 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 April 1, 1978. The receiver let out these two flats to M/s. Tata Finlay Ltd. (Tatas for short) with effect from 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 not 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 April 1, 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 asthe petitioner is entitled to get a decree for possession on any ground mentioned in Section 13(1) of the said Act and such relief can be obtained in a suit which cannot be filed in this court inasmuch as the premises in question is situated outside the original side jurisdiction of thisor less the same contentions are advanced before us. Firstly, it is submitted that the receiver had no right or authority to create any lease or tenancy in respect of the said flats for a term exceeding three years at a time and such creation of a tenancy should be deemed to be only for a period of three years terminable on the expiry of the said period. In this context a further submission is that upon surrender of flat Nos. 1 and 2 by Grindlays a fresh tenancy was created by the receiver from April 1, 1978 for which he had no authority. Therefore, the High Court ought to have ordered summary eviction of Tatas andIt is not in dispute that the tenancy in respect of flat Nos. 1 and 2 was surrendered by the Grindlays and from April 1, 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 February 7, 1979 and the receiver adopted the same 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 June 1, 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 March 17, 1978 and March 29, 1978 addressed to the receiver in favour of Tatas. However, at all material times they retained the tenancy in respect of flat Nos. 3 and 4 and continued to be 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 flat Nos. 3 and 4 was acknowledged by the receiver by his letter dated May 15, 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 receivers 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.

Reasoning:
In such a situation the question is whether the Tatas can invoke the benefit of the provisions of the Act. In Smt. Ashrafi Devi case (Suit No. 966/58 dated 9th Sept., 1977) this is precisely the question that is decided, and we have already referred to some of the observations made therein. Justice Sabyasachi Mukharji held further"On behalf of the transferee of the said property, it was contended that the West Bengal Tenancy Premises Act, 1956 protects such transferee. If however, a valid lease or a tenancy had been created then of course, such a lease or a tenant would be protected but that, in my opinion, begs the question. Secondly, it was contended that no party should be made to suffer because of an act of the court, I have not been able to appreciate this contention. The court specifically prevented the transfer or creation of the tenancy. The tenancy which is created was in derogation and in violation of the order of the court. Therefore, by acting in violation of the order of the court, no right, in my opinion, can be created in favour of a third party. Indeed, the court has not acted. The action was in breach of the order of the court."16. Similarly as observed in Arumugha Gounder case (AIR 1975 Mad 231 : (1975) 1 MLJ 385 ) any such act of the receiver done on behalf of the court pendente lite and anyone who gets possession through such an act could only do so subject to the directions and orders of the court. If we apply the above principles to the case of Tatas the tenancy created in their favour by the receiver is in violation and contrary to the injunction order and such an act is subject to the directions and orders of the court appointing the receiver. Therefore the tenancy created in favour of the Tatas was in breach of the order of the court and consequently the Tatas claim any protection under the provisions of the Act and they are liable to be evicted. In the counter-affidavit filed on their behalf, it is no doubt stated that they were inducted into possession and even sending the cheques. The case of the appellant is that cheques were never encashed. In any event as observed above, the new tenancy created in their favour contrary to the orders of the court does not create a right and is liable to be cancelled. Consequently the provisions of the Act cannot be invoked by them.