BHAGWATI PRASAD JHUNJHUNWALA Vs. UCO BANK

JUDGEMENT

(1.) The instant appeal has been filed by the plaintiff-appellant even after a decree for mesne profit having passed in their favour but felt aggrieved by non-granting of the interest thereupon. The instant appeal is thus restricted to a question whether the Court below while granting the decree for mesne profit was obligated to grant an interest thereupon. There is no cross-objection filed by the contesting respondent and therefore, we proceeded to decide the aforesaid point involved in the instant appeal.

(2.) A prelude to a dispute leading to the institution of the suit by the plaintiff-appellant is required to be recapitulated in dealing with the points mentioned hereinafter. A suit being Suit no. 281 of 1983 was filed in the Original Side of this Court by the respondent herein for various reliefs in relation to a decretal property and an appeal being APO 8 of 2000 was filed against an order passed therein. Initially, the said suit was instituted against Poddar Shrof & Ors and a term of settlement was filed on 11/7/2001 by the respondent bank, the Proforma Defendant no. 2 therein and the Plaintiff no. 1. By virtue of a Terms of Settlement it was agreed to execute a deed of lease in favour of the respondent for a period of 12 years commencing from 1/3/1997. The said deed of lease was executed and registered on 23/11/2001 and upon expiration of the period reserved therein, it came to an end on 28/2/2009. Despite the expiry of the period contained in the said deed of lease, the respondent continued in possession which led the institution of Title Suit no. 27 of 2009 before the Civil Judge (Senior Division) at Alipore. The respondent handed over the possession of the decretal premises on 15/1/2014 unto and in favour of the plaintiff-appellant. Since the principal reliefs claimed in the plaint relating to recovery of possession upon expiration of lease by efflux of time becomes redundant, the suit was pursued for determination of a mesne profit/damages for wrongful occupation from the date of expiry of lease till the actual delivery of possession of the decretal premises. A commissioner was appointed for the purpose of determining the mesne profit and to submit the report before the Court. Both the parties participated in the work of commission and cited the witnesses as well as the documentary evidence i.e. a valuer report and also cross examined the respective witnesses. Ultimately, the Commissioner submitted the report determining the mesne profits/damages for wrongful possession of the respondent in respect of a decretal premises after the expiry of lease till the actual possession was delivered. Several dates were fixed for passing a final decree on mesne profits/damages but it appears from the said final decree passed on 29/9/2018 when the respondent did not appear and, therefore, the said final decree is passed ex parte. We have been given to understand that an application under Order 9 Rule 13 of the Code of Civil Procedure is filed by the respondent which is pending.

(3.) Be that as it may, the respondent has not challenged the final decree by filing an appeal before us nor filed cross-objection challenging the adverse findings contained therein but contested the appeal filed by the plaintiff- appellant on a limited issue as to whether it was obligatory on the part of the Court to grant interest on such mesne profit under Sec. 2(12) of the CPC. Such being the limited issue we invited the respective Counsels to address thereupon.