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Judgment
The Court : This appeal is preferred with a prayer for condonation of delay of almost 670 days. The explanation offered for delay is carrying out to misconceived applications for review of the decree and the period consumed in disposal of the said two applications.
Mr. S.P. Sarkar, learned Senior Counsel appearing on behalf of the appellant has questioned the findings of the learned Trial Judge and has argued that it is not clear from the judgment as to whether the learned Judge has proceeded on the basis of West Bengal Premises Tenancy Act or Transfer of Property Act. The fact, however, remains that the appellant did not pay monthly rents for few years and thereafter claimed to have deposited the occupational charges in Court pursuant to orders passed by the Court at the relevant point of time. Mr. Sarkar is also critical about the judgment as he submits that the suit for mesne profit could not have been filed in 1986 without there being first explanation that the occupation of the appellant in the suit property is unlawful and validly determined by the notice to quit. However, at this stage, we feel that the appellant should be put to terms as well as the solvency of the appellant has to be determined keeping in mind the fact that the appellant had, in the past, defaulted in making payment of the occupational charges and is in occupation of 3854 sq.ft. at a prime location in Kolkata.
We accordingly direct the appellant to deposit a sum of Rs.3.50 crores with the Registrar, Original Side within three weeks from date and to pay occupational charges at the rate of Rs.3.50 lakhs to the decree-holder on and from September, 2019 until disposal of the appeal. The deposit of the said sum of Rs.3.50 crores and the payment of monthly occupational charges, payable in terms of this order, shall be without prejudice to the rights and contentions of the parties in the appeal. The occupational charges shall be paid by 7th of each succeeding months. In default of compliance of either of the terms as above, the decree-holder shall be entitled to put the decree into execution. The operation of the decree shall, however, remain stayed initially till 10th September, 2019 and, in the event, the occupational charges for the month of September, 2019 is paid by 7th September, 2019, the stay would continue for a further period of three weeks from date and on compliance of this order, the operation of the decree shall remain stayed till the disposal of the appeal.
The Registrar, Original Side shall deposit the said amount of Rs.3.50 crores with any nationalized bank yielding highest return and shall keep the said fixed deposit renewed till the disposal of the appeal.
In addition to the aforesaid, the appellant shall pay costs assessed at Rs.25,000/- to the decree-holder as a condition precedent for condonation of delay; failing which GA No.1187 of 2016 shall stand dismissed and it will also result in dismissal of the other applications including the appeal. The costs shall be paid within a period of one week from date.
The deficit court-fees shall be put in within one week from date. In default, the appeal shall stand dismissed.
Subject to compliance of this order, the appellant shall prepare informal paper books out of Court enclosing all the document relied upon before the Trial Court with duly typed proper index and list of dates on or before 15th November, 2019 and shall serve copies thereof upon the Advocate-on-record of the respondent within a week thereafter.
Leave is given to amend the memorandum of appeal subject to compliance of all the directions passed in this order. A copy of the amended memorandum of appeal shall be served upon the Advocate-on-record along with the paper book.
GA No.1185 of 2016, GA No.1187 of 2016 and GA No.1189 of 2016 are disposed of.
The parties shall be at liberty to mention for early disposal of the appeal.