JUDGMENT
Narayan Chandra Sil, J.
1. The Court: This is to consider an application filed by the plaintiff for passing a decree upon admission against the defendant for eviction from the suit property described in Schedule ‘A’ to the plaint along with other incidental reliefs.
2. The case of the petitioner Company in brief is that a Company known as Standard Chartered Grfndlays Bank Ltd. (Respondent No. 1) filed an application being G.A. No. 4040 of 2001 in the instant suit praying inter alia for an order allowing them to be added as defendant in the instant suit which was allowed by the order of the Court dated January 17, 2002. After having been added as a defendant the Respondent No. 1 filed an application being G.A. No. 824 of 2002 praying inter alia for dismissal of the instant suit but the same was dismissed by an order dated 27.06.2002. Neither the original defendant nor the added defendant has filed any written statement. In those applications being G.A. No. 4040 of 2001 and G.A. No. 824 of 2002 the Respondent No. 1 alleged that there has been only a mere change in the name of the defendant from ANZ Grindlays Bank to Standard Chartered Grindlays Bank Ltd. Thereafter on August 26, 2002 the Respondent No. 1 filed another application being T. No. 474 of 2002 and in paragraphs 13 and 14 of the said application it was inter alia stated that the Respondent No. 1 had applied to the Reserve Bank of India under Section 44(A) of the Banking Regulation Act, 1949 for approval of the scheme of amalgamation with Standard Chartered Bank. The Reserve Bank of India by its order dated 17th August, 2002 had sanctioned the scheme of amalgamation of the Indian Branches of the respondent No. 1 with the Indian Branches of Standard Chartered Bank (Respondent No. 2) with effect from 31st August, 2002. Thereafter on September 2, 2002 the Respondent No. 2 had filed two applications being G.A. No. 3580 of 2002 and G.A. No. 3501 of 2002 praying for various reliefs. By an order dated September 12, 2002 the Court was pleased to dispose of those two applications by allowing the Respondent No. 2 to be added as a party/defendant to the instant suit. It is further stated that from the averment made in paragraph 9 of the petition being T. No. 474 of 2002 the added defendant admitted that the defendant had transferred and assigned the suit property to a third party without any consent of the petitioner/plaintiff in writing in favour of the respondent No. 2 and in this background the present application has been filed.
3. The respondent No. 2 has contested the application by filing an affidavit-in-opposition in which all the material allegations are denied and it is inter alia stated that the Respondent No. 2 as defendant could not file the written statement due to unavoidable predicament, as the learned Advocate continued to stay away from their professional work in Court. It is also stated that in spite of that an advance copy of the said written statement had duly been served upon the learned advocate for the petitioner under a letter dated 15th November. 2002 issued by the learned advocate for the respondent No. 2. It is denied that the Respondent No. 2 as added defendant had admitted that the defendant had transferred or assigned the suit property to a third party without the consent in writing of the petitioner in favour of the respondent No. 2. It is specifically stated that there could not, cannot or has not been any transfer or assignment of the suit property or the tenancy by the defendant to a third party or to the Respondent No. 2 by reason of amalgamation order issued by the Reserve Bank of India under Section 44(A) of the Banking Regulation Act, 1949.
4. Mr. Surojit Mitra, the learned counsel appearing for the plaintiff/ petitioner has pointed out the metamorphosis of the respondent. The admitted position is that ANZ Grindlays Bank Limited turned into Standard Chartered Grindlays Bank Limited and ultimately after amalgamation it takes the form as Standard Chartered Bank. He has drawn my attention to page 108 of the petition and submits that both the petitions being G.A. No. 3580 of 2002 and G.A. No. 3581 of 2002 were disposed of by the order dated 12th September, 2002 whereby the Standard Chartered Bank was permitted to contest the suit. It is also submitted that in those two petitions the defendants admitted that there was a transfer/assignment of the right, interest etc. ultimately in favour of defendant No. 3 without any consent of the plaintiff. Mr. Mitra then submits that amalgamation amounts to transfer and in the connection he has referred to a number of case laws.
5. Thus, it was held in the case of M/s. General Radio & Appliances Co. Ltd. v. M.A. Khader as below :
“The transferee-company which has been put in possession of the tenanted premises by the transferor company which was tenant of the premises cannot be deemed to be tenant under the Act on the mere plea that the tenancy right including the leasehold interest in the tenanted premises have come to be transferred and vested in the transferee company on the basis of the order of the High Court on sanctioning the scheme of amalgamation of company made under Sections 391 and 394 of the Companies Act. Moreover when clause of the rent agreement executed by the transferor company expressly prohibited subletting of the tenanted premises without the express consent of the landlord, the transfer of the interest of the transferor company including possession in respect of the tenanted premises under the order of the High Court without obtaining the written permission or consent of the landlord could be said to have been transferred to the transferee company in contravention of the provisions of the said Act as well as in contravention of the terms and conditions of the said rent agreement thereby making the transferee company liable to be evicted from the tenanted premises.”
6. Mr. Mitra has also referred to the decision of the Apex Court in the case of Saraswati Industrial Syndicate Ltd. v. C.I.T. Haryana, Himachal Pradesh, Delhi-III, New Delhi in which the ratio decided in the case of General Radio (supra) has been referred. It is stated that in the case of General Radio (supra) the effect of amalgamation of two companies were considered. The General Radio was the tenant of a premises under an agreement providing that tenant shall not sub let the premises or any portion thereof of anyone without the consent of the landlord. General Radio was amalgamated with National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under Sections 391 and 394 of Companies Act, under the amalgamation scheme, the transferee company namely National Ekco Radio and Engineering Company had acquired all the interests, rights including leasehold and tenancy rights of the transferor company and the same vested in the transferee company. Pursuant to the amalgamation scheme the transferee company continued to occupy the premises which had been let out to the transferor company. The landlord initiated proceedings for eviction on the ground of unauthorised subletting of the premises by the transferor company. The transferee company set up a defence that by amalgamation of the two companies under the order of the Bombay High Court all interest, rights including leasehold and tenancy rights held by the transferor company blended with the transferee company and therefore, the transferee company was legal tenant and there was no question of any subletting. The Rent Controller and the High Court both decreed the landlord’s suit. But the Supreme Court in appeal held in the case of General Radio (supra) that under the order of the amalgamation made on the basis of the High Court’s order, the transferor company ceased to be in existence in the eye of law and it effaced itself for all practical purposes. That decision lays down that after the amalgamation of the two companies the transferor company ceased to have any entity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. In the said background the Supreme Court held that the Tribunal rightly decided that the appellant company was a separate entity and the different assessee and therefore the allowance made to the Indian Sugar Company which was a different assessee could not be held to be the income of the amalgamated company for the purpose of Section 41(1) of the Income Tax Act, 1961. The Supreme Court had set aside the order of the High Court and confirmed the order of the Tribunal.
7. Mr. Mitra has drawn my attention to the application of Standard Chartered Bank appearing at page 43 of the petition wherein it was inter alia stated by the Standard Chartered Bank in paragraph 5 that it had all the right, title and interest of Standard Chartered Grindlays Bank Limited. I am tempted to quote the said paragraph which reads as under: “By reason of the aforesaid facts the right, title and interest of Standard Chartered Grindlays Bank Limited in the suit premises has devolved upon your petitioner which is in occupation of the suit premises and accordingly your petitioner is entitled to contest the above suit and proceed with the connected applications and proceedings.”
8. Mr. Mitra tries to impress upon me from the above quoted paragraph that admittedly the respondent No. 3 claims that the right, title and interest of the respondent No. 2 had been transferred to the Respondent No. 3 by the order of amalgamation passed by the Reserve Bank of India,
9. Mr. Syama Prosad Sarkar, the learned senior counsel appearing for the defendant/respondent has pointed out that the present suit is one for eviction and in the plaint the ground of sub-tenancy had been taken. Mr. Sarkar has also drawn my attention to the notice for eviction issued by the petitioner upon the Respondent No. 1 appearing at page 105 of the petition. It is also submitted by Mr. Sarkar that consideration of the prayer for judgment on admission comes within the discretionary power of the Court. Mr. Sarkar has then taken me through para 9 of the petition and agreed about the admission of the Respondent No. 3 as regards amalgamation. But Mr. Sarkar has argued on the question of the claim of the petitioner that the petitioner had no consent against such amalgamation and in this connection he has taken me through the deed of lease between the plaintiff and the Respondent No. 1 appearing at page 76 onwards of the petition. It is also pointed out by him that the question of amalgamation was kept outside the grounds of eviction by consent in the deed of lease.
10. In this connection, Mr. Sarkar has referred to the ratio decided in the case of Smt. Juthika Mullick and Anr. v. Dr. Mahendra Yashwant Bal and Ors. . In the said case Section 2(h) and Section 13 of West Bengal Premises Tenancy Act appeared for interpretation. The Supreme Court held that Section 2(h) of the Act is a definition section and it cannot confer any right not being an operative section. There must be a lease deed to attract this definition. In the case of Juthika Mullick it was clearly stipulated that on the death of tenant, heirs in possession cannot continue. There being inheritable right, Section 2(h) of the Act had no application. It was further held in that case that if the intention of the parties was not to confer inheritable right, such a contract is not overridden by the Act. Section 13 of that Act mentions only “notwithstanding anything to the contrary in any other law”. It does not override the contract. The Supreme Court observed that if Section 13 is contrasted with Section 34(4) of the Act in respect of recovery of possession it is clear that the contract was not overridden. Thus, under the terms of contract, if the heirs are denied the inheritable right, that will prevail.
11. Mr. Sarkar from the decision of Juthika Mullick (supra) tries to impress upon me that since there are specific grounds mentioned in the deed of lease for eviction keeping the ground of amalgamation outside the scope of those grounds there is no way for the plaintiff to seek for eviction on the ground of amalgamation of the respondents.
12. Mr. Sarkar has been referred to the ratio decided in the case of Presidency Industrial Bank v. Hindustan Leather Industries Ltd. and Ors. . It was held in that case as under: “While under Section 153-A (2), Companies Act, 1913 the vesting takes place by separate order of the Court, under sub-section (6) of Section 44(A) of the Banking Companies Act, 1949, once the Reserve Bank sanctions a scheme of amalgamation, the transfer takes place by operation of law and no vesting order is made or is required to be made by the Reserve Bank of India. Therefore, in case of a transfer of vesting of the kind contemplated by Section 44(A) Banking Companies Act, the provisions of Order 21, Rule 16 are applicable.”
13. From that judgment Mr. Sarkar submits that the transfer was made by operation of law and not by the act of the parties particularly not by the act of the defendant.
14. Mr. Sarkar has then drawn my attention to the order of the Reserve Bank appearing at page 35 of the petition. It appears from that order that the same was passed on August 17, 2002 which came into force from August 31, 2002 and the present suit was filed before that on 23.04.2001.
15. Mr. Mitra in giving replies has drawn my attention to the grounds of eviction appearing in Clause (a) at page 16 of the deed of lease which appears at page 90 of the petition. I like to quote the said paragraph which reads as under: “In the event of the Leasee defaulting in the payment of the reserved rent and service charges according to the terms and conditions herein provided and if any rent and service charges shall be in arrears and unpaid for two months after the same shall have become due or if the Lease shall at any time fail or neglect to perform and observe any of the covenants on the part of the Leasee to be performed and observed or if the Leasee shall be wound up whether voluntarily or compulsorily otherwise than for the purpose of amalgamation or reconstruction of the Company then in any such event It shall be lawful for the Lessor at any time thereafter to enter upon the demised premises or any part thereof in the name of the whole and thenceforth the said demised shall absolutely determine but without prejudice to any right or action or remedy of the Leasee in respect of any prior breach of the Leasee’s covenants by the Leasee.” (underlined for emphasis)
16. Mr. Mitra submits that it is clear from the above ground that the leasee will be subjected to eviction if the company is wound up but the said winding up will not be due to amalgamation or reconstruction of the company. Mr. Mitra is candid enough to submit before me that if the amalgamation is for the purpose of winding up the petitioner shall not be entitled to invoke the said clause, but it is not the case of anybody that there is winding up of the company and consequently the amalgamation was made.
17. There cannot be any scope of denying of the position of law as propounded by the Hon’ble Supreme Court in the various judgments including in those referred to by the learned advocate for the petitioner that unqualified amalgamation of two companies amounts to the transfer of right, interest including the interest as tenant to the transferee company. And this is the settled position of law. The present suit in which the present application has come up for consideration is one under West Bengal Premises Tenancy Act. The conditions for eviction appearing in the deed of lease came up for interpretation in the case of Juthika Mullick (supra) as referred to by Mr. Sarkar. In the said case in view of the specific mention of ouster of the right of successor of the tenant, though the same stood in contravention with the statutory provision, was not held to be in favour of the tenant and the conditions in the agreement stood as paramount.
18. In the instant case the fate of the petition in my humble view hangs on the interpretation of clause (a) of the deed of lease appearing at page 16 of the said deed. There the winding up of the lessee was one of the grounds for eviction but the parties consciously made a rider therein that such winding up must not be as a consequence of amalgamation or re-construction of the lessee company. Thus, if the said clause is understood in its appropriate sense then in my view it stands like this that the parties were conscious to incorporate the ground of winding up for eviction but consciously kept amalgamation simpliciter or reconstruction of the company outside the scope of eviction.
19. Mr. Mitra has of course argued that the ground of amalgamation was kept outside only for the purpose of winding up of the leasee company and perhaps according to him the amalgamation simpliciter as in terms of the ratio decided by the Supreme Court referred to by him amounts to transfer of title and right including the right of tenancy to the transferee, the transferee becomes liable to be evicted. Unfortunately I cannot come in agreement with such submission of Mr. Mitra. From the deed of lease particularly from clause (a) which is being repeatedly mentioned, it is abundantly clear that the parties had taken consciously the ground of winding up, of course not being related to amalgamation or reconstruction, as a ground for eviction of the leasee. But the parties are conspicuously silent to incorporate amalgamation simpliciter as a ground for eviction. In my humble view the term “amalgamation” of two or more companies was not unknown to the parties. The amalgamation of course by implication of law is the transfer of title, right and interest of the transferor to the transferee. The deed of lease in paragraph 11 specifically contains the embargo to assign under-let, sublet or part with the possession of the demised premises or any part thereof to any other person or firm. It may however, be argued that since amalgamation amounts to transfer of the right, title and interest including the tenancy, apart from interpretation of amalgamation with a rider incorporated in Clause (a) of the agreement it attracts the provisions of Section 13(a) of the West Bengal Premises Tenancy Act. But in view of my observations and in view of the decisions referred to in the case of Juthika Mullick (supra) the agreed lease deed will stand to supersede the statutory provisions. Accordingly, it is held that the grounds of amalgamation was kept consciously outside the scope for eviction by the parties in the deed of lease.
20. That apart, the present suit was filed before the order of amalgamation came into force and in fact, there is nothing in the plaint that the eviction is prayed on the ground of amalgamation of the defendant/banking company, although, it is true, plaint does not require to contain what is called law.
21. From all this, I must draw this conclusion that the application being G.A. No. 4234 of 2002 is liable to be rejected and accordingly, it is rejected and disposed of. Let the suit proceed.
Urgent xerox certified copy of the operative portion of this judgment be given to the parties, if applied for.