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TMI Blog1999 (9) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... ease was executed by Smt. Bindu Rawla. 4. By another indenture executed on 14-1-1971, 41,100 sq. ft of land together with buildings and structures thereon was leased out by Anup, Alok, Bindu, Anuj and Arjun Rawla. The said lease commenced from 1-7-1969 and was for a period of 21 years with an option of renewal for another period of 21 years after the expiry of the original period on the same terms and conditions except as to rent which may be agreed upon by and between the parties. 5. According to respondent Nos. 1 to 5 herein, the company had not only defaulted in making payment of rent since December, 1985 but also committed various breaches of the terms and conditions of the lease and on 20-5-1987, a notice was issued calling upon the company to remedy the breaches within 15 days from the date of receipt of the notice, failing which they would re-enter the premises. 6. In 1988 a suit was filed by Anup Rawla being T.S. No. 136 of 1988 in the Court of the 1st Subordinate Judge, Alipore for reliefs inter alia , as follows : "( a )decree for recovery of Khas and Vacant possession of the suit property particularly described in schedule below after evicting the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 sq. ft. of land and to pay mesne profits or rents to her until vacant possession was made over. 11. A similar application had been filed on behalf of the respondent Nos. 1 to 5 for disclaimer of 41,100 sq. ft. of the factory premises. Prayer B of the said application reads thus; "( b )The Official Liquidator, High Court, Calcutta be directed to forthwith pay the applicants the amount of rentals and/or mesne profits in respect of the demised premises for the period of December, 1985 till the date of surrender of the leasehold interest and deliver up vacant and peaceful possession of the demised premises, more fully described in schedule being annexure A herein." As regards the quantum of rent, it was alleged; " The applicants are entitled to receive a sum of Rs. 6,07,500 towards rent on the basis of agreed terms of the aforesaid deed of lease as per details contained in Annexure C hereto." 12. As can be seen from the order of the learned trial judge, the offer of the appellant having been accepted and the purchaser having paid the first instalment on 17-1-1991, the official liquidator made over possession of the factory premises together with plant, machinery, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of money out of the sale proceeds to meet her claim against the company. 17. With regard to the third issue, the learned trial judge rejected the submissions of the lessors that there was not only mere silence but also an active representation that the leases were subsisting. It was further held that there was a duty on the part of the lessors to speak in the instant case because the matter was not limited to the original lessee or lessor but because third party rights were being created and more so, because the Court was a party to the rights being created. Disclaimer is not one such right which can be claimed by the lessors as a matter of right and it is a matter of discretion of Court. The learned trial judge exercised the discretion against the lessors. In our opinion, very rightly so. 18. With respect to the fourth issue, the application of the appellant was considered and the submissions of the appellant that they are not liable to pay rent except under and in terms of the lease was accepted. It was, however, held that the conclusions drawn by the appellant/purchaser on the basis of such submissions viz., that the rent was to be fixed on the basis of original ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is directed but it was stated that the appellant is aggrieved by the confirmation of the report of the valuer. Therefore, it stands admitted that so far as the applications filed by the respondents for permission to continue the suit for eviction and the application of Bindu Rawla for leave to initiate eviction proceedings and the application filed by the respondents for discharging having been rejected, the two cross-objections, filed by the respondent Nos. 1 to 5 as well as the respondent No. 6 in our opinion are not maintainable. 26. In view of the fact that the company had gone on liquidation, the official liquidator had a right to exercise the option for renewal of the lease particularly in view of the fact that such a stipulation had been made in the advertisement itself. According to the learned counsel, even it is not necessary for that purpose to get the deed registered and in support of the said contention strong reliance had been placed upon Gopal Chandra Sadhukhan v. Sheikh Jamsed AIR [1965] Cal. 51. The learned counsel contends that even in interest of justice such renewal should be allowed and in support of the said contention reliance had been placed upon Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso been drawn to the letter of Teclamat (India) Ltd. which was issued, inter alia , on the ground that the same had become onerous on the part of the Official Liquidator to continue. 28. Mr. P.K. Roy, the learned counsel appearing on behalf of the respon-dents, on the other hand, submitted that a distinction has to be made between a case of renewal and a case of extension of the period of lease. According to the learned counsel only in a case of extension, the total period of lease can be taken into consideration and not in a case where a renewal clause exists in agreement and the lease can be renewed subject to fulfilment of the conditions stipulated therein. Reliance in this connection has been placed on Provash Chandra Dalui v. Biswanath Banerjee AIR [1989] SC 1834. Drawing this Court s attention to the prayers made in the suit filed against the Company, the learned counsel submitted that as thereby mesne profit had been claimed and further in view of the fact that the respondents had prayed before the learned company judge for liberty to proceed with the suit for eviction, the same would clearly show their right and/or claim for eviction was not barred under the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid or not ? 32. In view of the decision of this Court in Martin Burn Ltd. s case ( supra ) the parties has proceeded on the basis that where there exists a renewal clause and such renewal is accepted although without fixing the rent therefor by mutual agreement, the court only can fix the quantum of fair rent. Such a function on the part of the court is a judicial function. 33. A valuer cannot be appointed so as to perform the judicial functions either in terms of Order 26 Rule 9 of the Code of Civil Procedure, 1908 or Order 39 Rule 7 thereof. It is not the duty of the Court to appoint a Commissioner/Valuer for the purpose of procuring evidence on behalf of the parties. For the purpose, the parties may appoint experts but ultimately the court has to determine as to what would be the fair rent and get their reports brought on evidence. The learned trial judge while upholding the objection of the appellant to the effect that the appellant should have taken into consideration the rents paid by the other tenants in respect of the similar properties observed : "At the same time the Court cannot loss sight of the fact that the lessors are not being paid any rent under the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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