Krista Chandra Ghosh v. Krista Sakha Ghose

Woodroffe, J.:— The Advocate-General appears on behalf of the lessee Rajah Benoy Krista Deb to whom the Receiver has leased the property, the subject of this application, and takes a preliminary objection that this application cannot be entertained and that the lease having been already executed, no summary order can be passed such as is asked for here. On the other hand, reliance is placed upon cases in which the parties were allowed to appear pro interesse suo; but these cases do not apply, because, there the question arose on the application of third parties aggrieved by the Court's action through its Receiver and the Court grants such an application by reason of the control it necessarily has over its Receiver's action. This is nob a case of that kind. I am nob asked in this matter to control the action of the Receiver, because the Receiver has already done that which is complained of and has conveyed the property into the hands of the lessee, a third party, to whom the Receiver, under the order giving him authority to do so, granted a lease which has been completed and under which possession has been given. Admittedly, in this case, the lessee is also a party to the suit; but, although he is subject to the jurisdiction of the Court as a party, he is nob subject to its jurisdiction as lessee. This is not a case in which the matter rests on an agreement which has nob been carried out and in which the Court may Interfere be prevent its Receiver giving effect to the proposed agreement. This is a case in which the matter has passed out of the stage of agreement and has resulted in a conveyance of the property to the lessee. As long as that lease stands, the property must be taken to be in the lessee and I do not think that I can, on this application, set aside that lease.

The course open to the applicant appears to me by proceeding by suit against the Receiver, and also, if it is alleged that the lease was granted and obtained by collusion, against the lessee. In the case cited in Surendra Keshab Roy v. Durga Sundari Dassee, the Court was asked to control the action of the Receiver and to enforce the applicant's right to have a lease for which a contract had been entered into; and in the English cases therein cited, the matter still rested in contract and an order was made directing enquiry as to dagmages against the lessee who had repudiated the contract, and, in the other case, the Receiver had parted with money without the authority of the Court and so was the Court's money ordered to be paid back. Bub here, unless the lease is set aside, the interest is nob that of the Court or of the parties, but of the lessee.

Under these circumstances, the application appears to me to be not entertain-able and must be dismissed.

I need only add that, had the preliminary point not prevailed, I should have been disposed to grant the adjournment asked for by Mr. Chaudhurl and by Mr. Chakravarti in order to put in further affidavits.

The second part of the application came on for hearing on the 22nd June 1908.

Parties represented as before.

The Judgment of the Court was as follows:—

Woodroffe, J.:— This is a part of an application which I dealt with on the 8th June 1908. On that date, I dealt with the question then raised as to whether the lease granted by the Receiver to Rajah Benoy Krista Deb Bahadur should not be Bet aside, which I then decided in the negative. Another part of the application asks that the Receiver may be directed, to realise all sums due for Interest from the lessee or he do personally make good the losses sustained by the estate. As regards this application, a distinction must be drawn between the present and the late lease. As regards the present lease, it is clear, if the parties insist on it or any of them, that the terms of the lease must be strictly enforced and if the rent is in arrears, the lessee must pay Interest; but on the other hand, the lessee is not bound to pay anything under the lease before it is due. Then the question arises, as to the late lease, whether an order can be made as to the Interest on the arrears of rent which it is said amounts to a large sum of money—nearly Rs. 9,000—and which should, It is said, have been re covered by the Receiver from the lessee. There appears to me to be two objections to this part of the application. No order can be made against the lessee on the present application. If it can, It is said, the lessee holds a discharge from the Receiver for all the rent under the late lease. However that may be, It is sufficient to say, no order can be made against the Rajah on this application. Then, If the applicants have any remedy against the Receiver in respect of these moneys, the matter cannot be gone into on this application. It is a matter touching the Receiver's accounts. In so far as the Receiver's accounts have been passed, the matter may be taken to be concluded. So far as the accounts have not been passed, it is open to the parties to raise the question on the passing of the accounts. The answer of the Receiver as to the payment of interest on arrears of rent not being insisted on is given in the 4th para, of his affidavit sworn on the 11th June 1908 in which he states that the parties agreed to waive Interest on arrears of rent because the lessee agreed to pay a monthly allowance of Rs. 3,000 in advance and Rs. 3,000 before the closing of the Court offices for the pujahs and this agreement was in consideration of the interest in respect of each instalment of rent not being insisted upon. As I have said, I desire to express no opinion on the merits of these contentions, because, in so far as they are against the lessee, they cannot be gone into in these proceedings and as against the Receiver, they must be raised (if at all) on the passing of the Receiver's accounts and the Court can then determine whether the matter can then be gone into or whether it is one as to which the parties must file a suit against the Receiver. I express no opinion on the merits. The result is the application is dismissed with costs.

Mr. Advocate-General.—Asks costs of a hearing.

The Court.—I make the ordinary order as to costs.

Mr. Charu Chandra Basu, Attorney for the Applicants.

Messrs Morgan & Co., Attorneys for Raja Benoy Krista Deb.

Maharaj Coomar S.K Deb, Messrs Leslie & Binds Messrs Watkins & Co., Messrs B.N Basu & Co., Mr. Charu Chunder Mitter and Mr. Amar Nath Ghose, Attorneys for various parties.

P.R.C

Application dismissed with costs.