BIDHAN NIRMAN PVT. LTD. vs DUTT & CO. PVT. LTD.

CS 99 of 1997 filed by the present petitioner in GA 2930 of 2017 was decreed by judgement and order dated 19th January, 2015. So far the decree for eviction is concerned, the same is satisfied inasmuch as petitioner has got possession of the suit property. So far the mesne profit determined under the said judgement by the learned Trial Court, the defendant filed an appeal being APOT 32 of 2015. The said appeal stood disposed of with direction "The learned Trial Judge shall rehear the settlement of the claims of the respective parties on merit and for that purpose he shall fix specific date for appearance of the respective parties and to redress their grievances regarding the quantum of mesne profit. The learned Judge is at liberty to refer the matter to the same special referee appointed by him to consider the settlement of claim of the respective parties and to reassess the mesne profit, damages etc. in accordance with law. The special referee''s fee may be assessed by the learned Trial Court and such fees will be added to the respondents'' claim automatically. With this direction, we remand the case to the learned Trial Judge for hearing afresh only on the point of mesne profit and future damages and costs, if any."

After the aforesaid judgement and order passed by the Hon''ble Division Bench, the matter came up for consideration before this Court on 31st October, 2017 and on the submission on behalf of the decree-holder in order to shorten the time a proposal was made before this Court to amicably settle the amount of mesne profit in this matter. The parties were given liberty to assess the mesne profit payable by the defendants and such order was passed in GA 2930 of 2017. Today when the matter is taken up, a terms of settlement affirmed on 25th January, 2018 signed by the plaintiff on the one hand and defendant nos. 1, 3, 5 & 7 to 9 on the other hand has been filed. Although the settlement has been arrived at by the plaintiff on the one hand and the defendant nos. 1, 3, 5 & 7 to 9 on the other, it has been mentioned in paragraph 4 of the said terms of settlement that name of the defendant no.1 has, however, been struck off from the Registrar of Companies statutorily and the terms herein agreed would be only binding upon the defendant nos.3, 5 & 7 to 9. It has also been specifically mentioned in the terms of settlement that defendant no.2 is not a party in the settlement and terms contained in the said terms of settlement would not be binding upon such defendant.

In view of the terms of settlement arrived at by the aforesaid parties, it is recorded that the defendant nos. 3, 5 & 7 to 9 have agreed to make payment of a sum of Rs.27,50,000/- (Twenty Seven Lakhs and Fifty Thousand) to Bidhan Nirman Private Limited, that is the plaintiff, a company registered under the Companies Act, 1956 having its registered office at No.76/1C Bidhan Sarani, Kolkata - 700006, in full and final settlement of its claim in the suit being CS 99 of 1997 so far the defendant nos.1, 3, 5 & 7 to 9 are concerned. As the defendant nos. 3, 5 & 7 to 9 have agreed to pay and simultaneously the plaintiff has agreed to accept the sum of Rs.27,50,000/- (Twenty Seven Lakhs and Fifty Thousand) only in three installments, namely, (i) the first installment of Rs.9,20,000/- (Rupees Nine Lakhs Twenty Thousand) only shall be paid by the said defendant nos.3, 5 & 7 to 9 to the plaintiff on or before 6th February, 2018 (ii) the second installment for a sum of Rs.9,20,000/- (Rupees Nine Lakhs Twenty Thousand) only shall be paid by the said defendants to the plaintiff on or before 6th March, 2018 and (iii) third and final installment of Rs.9,10,000/- (Rupees Nine Lakhs Ten thousand) only shall be paid by the said defendants to the plaintiff on or before the expiry of 6th April, 2018. Accordingly, the plaintiff is entitled to a decree for mesne profit for a sum of Rs.27,50,000/- (Twenty Seven Lakhs and Fifty Thousand) payable to the plaintiff by the said defendant nos.3, 5, & 7 to 9 in the manner as indicated hereinabove. The claim of the plaintiff as against the defendant nos. 1, 3, 5 & 7 to 9 is full and finally settled in terms of the settlement arrived at by and between the parties mentioned hereinbefore. However, in default of payment of the said sum in the manner as indicated above, the defaulting parties shall pay interest to the plaintiff @ 10% per annum from 7th April, 2018 to the plaintiff till the date of actual payment of the sum due and payable.

GA 2930 of 2017 is disposed of so far as the claim against defendant nos. 1, 3, 5 and 7 to 9 is concerned.

Department is directed to draw up and complete the decree as against the defendant nos. 1, 3, 5 and 7 to 9 as expeditiously as possible. In view of the fact that the settlement is only against the defendants named above and is not binding upon defendant no. 2, the plaintiff will be at liberty to proceed in accordance with law against the defendant no. 2 in application being GA 2930 of 2017. The application is kept pending so far as the claim against defendant no. 2 is concerned.

Let this application be made returnable on 29.04.2018.