Impressions & Ors vs Royal Bank Of Scotland Plc

The Court : An initial objection as to the receipt of the appeal was taken, not by the respondent-plaintiff but by the Court. Since the appeal appears to arise out of a matter covered by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, the appellants were required to demonstrate how the appeal would be maintainable. The suit is fashioned as one under Section 6 of the Specific Relief Act, 1963. There are specific averments at paragraphs 3 and 21 of the plaint to such effect and the primary relief is couched in the classical manner seeking a decree for recovery of possession without even seeking a mandatory injunction for return of possession.

Section 6 of the Act of 1963 does not permit any appeal being carried from any order or decree passed in proceedings instituted under such provision. However, Section 6 of the Act could not have impinged on the authority conferred by Clause 15 of the Letters Patent to carry an appeal since such provision does not expressly rule out the operation of the Letters Patent or the appellate provision therein.

However, if the suit was to be regarded as a suit under the said Act of 2015, implying that a commercial dispute was involved therein, the overriding effect of the Act of 2015 would have kept the operation of Clause 15 out of the purview.

It is submitted on behalf of the appellants that Section 2(1)(c) of the Act of 2015 defines "commercial dispute" and sub-clause (vii) thereof covers "agreements relating to immovable property used exclusively in trade or commerce". It is contended on behalf of the appellants that since a suit under Section 6 of the Act of 1963 need not be pegged to any agreement or need not be concerned with any contract, ordinarily, a suit of such kind may not be regarded as a commercial dispute within the meaning of the relevant provision in the Act of 2015. To boot, paragraph 3 of the plaint is placed where some previous agreements between the parties are referred to but it is expressly pleaded that the agreements are not the basis for the suit. Elsewhere, as noticed above, paragraph 21 of the plaint claims the suit to be exclusively under Section 6 of the Act of 1963. The submission on behalf of the appellants on the point of appellability is unexceptionable since the dispute in the lis does not pertain to any agreement as such. Accordingly, the appeal is received and taken up for assessment on merits since Clause 15 of the Letters Patent permits the appeal notwithstanding the prohibition under Section 6 of the Act of 1963.

The appellants submit that the appellants were really put into possession of the suit premises by the respondent and, as such, no case of the appellants being dispossessed from the suit premises could have been made out. The appellants refer to the order impugned and the directions contained therein to say that a substantial part of the order and the directions thereunder are beyond the purview of Section 6 of the Act of 1963.

Several letters have been referred to in the order impugned, including letters of August 4, 2017, August 9, 2017, August 14, 2017, September 1, 2017 and September 4, 2017. Without going deeper into the contents of each of the letters, it may be noticed that it is the contention of the appellants that it would be evident from such correspondence exchanged between the parties that possession of the suit premises had been made over by the respondent to the appellants and, as such, there was no question of the respondent having been dispossessed from the suit premises otherwise than in due process of law.

The aforesaid letters reveal that the respondent bank called upon the appellants herein to jointly inspect the suit premises on August 1, 2017 and, by September 1, 2017, furnish a list of all the repair works that had to be undertaken at the said premises. The respondent also indicated that it would express its views on the list furnished by the appellants and the cost estimates by September 5, 2017 so that after adjusting the costs necessary to be deducted from the security deposit kept with the appellants, the balance could be refunded by September 12, 2017. In one of the letters, it was clearly indicated by the respondent that if the appellants failed to either indicate the nature of the repair works necessary or furnish the cost estimates thereof by the agreed date of September 1, 2017, it would be understood that there were no repair works or any costs required to be undertaken or incurred. Similarly, the respondent bank agreed that if it did not revert to the appellants by September 5, 2017 on the extent of repair works and cost estimates, the respondent would be deemed to have agreed to the extent of the repair works said to be necessary and the cost estimates therefor.

In one of the letters, the respondent invited the representatives of the appellants to undertake the cleaning operations after the respondent had ceased to carry its commercial activities at the premises in question and the letter also indicated that a representative of the respondent would be present at such time. In one of the later letters, precisely, the one dated September 1, 2017, the appellants asserted that the appellants had been delivered possession of the premises in question. Loosely speaking, the relevant sentence implied that the representatives of the appellants who had been authorised to undertake the cleaning operations were in possession; but, even such assertion may have not implied that the lawful possession of the suit premises had been made over by the respondent to the appellants. It is submitted by the appellants that the final letter in the series, the one dated September 4, 2017, was suppressed when the petition was moved by the respondent. The second and the last paragraphs of such letter are emphasised on by the appellants in their attempt to demonstrate that the respondent had accepted that possession in respect of the suit premises had been made over by the respondent to the appellants. It is necessary to notice the second paragraph of such letter:

"Our vacating of the premises, being the unit no 3,4 and 5 on the First and Ground Floors of the premises No.7, Camac Street, Kolkata 700 017, commonly known as "AZIMGANJ HOUSE", containing by admeasurement 4,535 sq.ft. ("Premises") rented under you was specifically discussed with you and now that we have already acted upon it, you are seeking to bring in new issues which is not acceptable."

Notwithstanding the relevant paragraph beginning with the words "Our vacating of the premises" and including the expression "we have already acted upon it" towards the later part of the single sentence contained therein, the "acted upon" relates to the discussion between the parties and, prima facie, may not be relatable to the vacating of the premises. At any rate, it may not be conclusively said on the basis of such letter or the relevant paragraph that the respondent had delivered possession of the suit premises to the appellants. It is still possible that the respondent may have delivered possession, but that is for the appellants to prove at the trial. The appellants also point out that the respondent only threatened to recover the security deposit or institute proceedings for recovery of the security deposit towards the end of the letter of September 4, 2017, without referring to recovering possession of the property. Contrary to what the appellants would try to establish, it only demonstrates that the respondent did not acknowledge that possession of the property had been made over to the appellants for the respondent to even assert that such possession would be recovered. At least, prima facie, that appears to be the intention evident from the letter of September 4, 2017.

What is apparent from the conduct of the parties and the correspondence exchanged between them, is that lawful possession of the property in question may not have been handed over by the respondent to the appellants for the respondent not being entitled to bring this suit for recovery of possession under Section 6 of the Act of 1963.

However, the ambit of such provision is limited and the Court's only concern is to ensure that the suit is decided expeditiously (there is a time-limit provided in the Section). In the order impugned, directions have been issued for refund of some money and for the appellants herein being set a condition to be able to enjoy the premises in question. Such directions as contained in the order impugned are clearly not within the purview of Section 6 of the Act of 1963 and are, accordingly, set aside. The order impugned dated July 5, 2018 is, thus, modified. The appellants are restrained from using the suit premises in any manner or form till the suit is finally decided. The appellants are also restrained from creating any third party rights or making over possession in respect of the suit premises or any part thereof in favour of any other without the express previous leave of this Court.

Since the written statement has already been filed, it will be open to the plaintiff to seek an early listing of the suit by citing this order.

Nothing in this order will preclude the parties from instituting any proceedings in respect of any other right pertaining to the property in question in accordance with law or pursuing appropriate reliefs in such regard.

There is also an appeal arising out of the rejection of a petition in the nature of a demurer. In the light of the order passed above, such appeal is also disposed of.

APO No.201 of 2018 along with GA No.1778 of 2018 and APO No.202 of 2018 along with GA No.1779 of 2018 are disposed of.

There will be no order as to costs.