DELTA INTERNATIONAL LIMITED Vs. SHYAM SUNDAR GANERIWALLA

JUDGEMENT

(1.) Leave granted.

(2.) These appeals are filed against the Judgment and Decree dated 2nd December, 1997 passed by the Division Bench of the High Court of Calcutta in Appeal from Original Decree Nos. 148 of 1992 and 165 of 1992 (reported in AIR 1998 Cal 233). Undisputed facts of the matter are that original owner of the premises was Abhiram Mullick (since deceased) who created tenancy of the premises, namely, No. 4D, Council House Street, Calcutta in favour of Mallika Investment Company Private Limited. Dewar's Garage India Private Limited was inducted into the premises as the monthly tenant under Mallika Investment Company Private Limited. Dewar's Garage (India) Private Ltd. (in short 'Dewar') was maintaining and running a petrol service station for sale of motor spares and components at the tenanted premises. Dewar had erected and built certain structures on the said premises. Dewar was subsequently amalgamated into Delta International Limited (appellant-plaintiff). By an agreement dated 18th July, 1970, Dewar executed leave and license agreement in favour of ESSO Standard Eastern Inc. (in short ESSO). The ESSO in turn permitted Shyam Sunder Ganeriwalla, respondent No. 1, to run a petrol service station. By an Order passed in Company Petition No. 331/91, Dewar was amalgamated with plaintiff (Delta International Limited). Further, the business undertakings and the estates of ESSO also had been taken over by the Act of Parliament and has been transferred and assigned by the Central Government in favour of M/s. Hindustan Petroleum Corporation Limited. In 1985, Delta International Limited filed Civil Suit No. 491/85 in the High Court of Calcutta for a perpetual injunction restraining the Defendants and/or their servants, agents and assigns from using any of the fixtures, fittings and accessories lying at suit premises; for damages, for wrongful use and occupation of the premises at the rate of Rs. 20,000/- p.m. from 1st May, 1985, that is, the date of termination of leave and license as claimed in the plaint and for decree for possession of the said premises and other reliefs. The learned single Judge passed the decree in favour of the plaintiff by holding that the agreement in question was only a license agreement and it was not a sub-lease. In appeal, the said Judgment was reversed by holding that the agreement in question constitutes a lease mainly on the basis of exclusive possession and the Division Bench observed that "to put is pithily, if an interest in immovable property entitling the transferees to enjoyment is created, it is a lease, if permission to use land without right to exclusive possession is alone granted, a licence is the legal result."

(3.) At the time of hearing of this appeal, learned Counsel for the parties exhaustively referred to the material terms and conditions of the agreement in which the term 'leave and license' is used. In support of their contentions, they also referred to various decisions which have laid down tests to find out in which set of circumstances even though the document is termed as a leave and license could be construed as a lease.