TURTLE LIMITED Vs. M.M. INDUSTRIES

JUDGEMENT

(1.) The plaintiff has entered into a Licence Agreement with the defendant on 30th July, 2011 in respect of premises No.138, Grand Foreshore Road, Ramkristopur, Howrah. Under the agreement the plaintiff is required to deposit a sum of Rs. 30,30,000/- as interest free security deposit with the defendant, which is refundable upon vacating the said space and making over possession to the defendant. Pursuant to the said agreement, the plaintiff had paid to the defendant a sum of Rs. 30,30,000/- as interest free security deposit. The defendant had permitted the plaintiff to occupy the space after 30th June, 2012 and accordingly, the plaintiff continued to use and occupy the said premises after 30th June, 2012 on the same terms and conditions as existed prior to the expiry of the agreement by efflux of time on 30th June, 2012.

(2.) On or about 13th July, 2012, a fire broke out at the said premises, as a result whereof, the shed and structures at the said premises and stocks of the plaintiff lying therein were completely charred and destroyed. The plaintiff made an enquiry with the defendant as to whether the defendant would reconstruct the shed and the structures standing on the said premises to enable the plaintiff to carry on its business. The defendant appears to have declined to construct such shed and structures as a result whereof, the said agreement was terminated and the plaintiff demanded refund of the security deposit of Rs. 30,30,000/-. The defendant refused to pay the aforesaid sum on a specious plea that in terms of Clause 13 of the agreement, the plaintiff had agreed to make good all damages to the said shed and structures at its own costs and the plaintiff having failed to do so is not entitled to refund of the said sum. It was further alleged that after the destruction by the fire, the defendant appointed a Surveyor who has assessed the loss at Rs. 1.50 crores and after adjusting the said security deposit a sum of Rs. 1,19,70,000/- is due and payable as compensation for the damage caused to the said structures. In view of denial to refund the security deposit, the plaintiff has filed a suit. In the suit the plaintiff has prayed for a decree for a sum of Rs. 30,30,000/- together with interest. The defendant entered appearance in the suit and filed written statement with the counter-claim.

(3.) Mr. Suman Dutt, learned counsel appearing on behalf of the plaintiff has submitted that the claim of the defendant sounds in damages and unless the said damage is adjudicated upon, the defendant cannot claim such amount. Mr. Dutt submits that the law in this regard is well-settled from the decision of Raman Iron Foundry and subsequently followed by the Hon'ble Court in "Gangotri Enterprises Limited v. Union of India and Ors.' reported at (2016) 11 Supreme Court Cases 720 and having regard to the fact that the defendant cannot set off the said amount against the fixed deposit amount, the defendant is required to pay the aforesaid sum.