Skip to content


Sm. Charusila Dassi Vs. Madan theatres Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberSuit No. 3788 of 1949
Judge
Reported inAIR1953Cal536
ActsTransfer of Property Act, 1882 - Section 114A; ;West Bengal Amusement Tax (Amendment) Act, 1949 - Sections 3 and 4
AppellantSm. Charusila Dassi
RespondentMadan theatres Ltd. and ors.
Appellant AdvocateAtul Chandra Gupta and ;K.K. Basu, Advs.
Respondent AdvocateS.M. Bose, Adv.
Cases ReferredKomalukuttl v. Muhamad
Excerpt:
- p.b. mukharjee, j.1. the plaintiff in this suit claims possession of the two cinema houses, named sree cinema and uttara cinema, formerly known as cornwallis theatre and crown cinema respectively at no. 138/1 and 138/2 cornwallis street, calcutta, on the ground of forfeiture. the defendant company is alleged to have committed breach of the covenant in the lease between the plaintiff and the defendant company dated 19-8-1933, which provides that the lessee shall keep a box, not less than four seats in each of the said cinema houses at the disposal of the lessor for the use of herself or other person or persons authorised by her or on her behalf & if the lessor so desires in writing the defendant company shall instead of four seats in the box permit 6 persons in the stall and 8 persons in.....
Judgment:

P.B. Mukharjee, J.

1. The plaintiff in this suit claims possession of the two cinema houses, named Sree Cinema and Uttara Cinema, formerly known as Cornwallis theatre and Crown Cinema respectively at No. 138/1 and 138/2 Cornwallis Street, Calcutta, on the ground of forfeiture. The defendant company is alleged to have committed breach of the covenant in the lease between the plaintiff and the defendant company dated 19-8-1933, which provides that the lessee shall keep a box, not less than four seats in each of the said cinema houses at the disposal of the lessor for the use of herself or other person or persons authorised by her or on her behalf & if the lessor so desires in writing the defendant company shall instead of four seats in the box permit 6 persons in the stall and 8 persons in the gallery or pit to view the performance held in the aforesaid two demised premises. The allegation is that the defendant company has committed breach of this covenant. That is the cause of action.

2. The main dispute in this suit may be stated briefly at the outset.

3. By a Statute of the West Bengal Government an Entertainment Tax has been imposed on all free or complimentary passes or tickets. This Statute is the West Bengal Amusement Tax (Amendment) Act, 1949, being West Bengal Act 11 of 1949. The defendant company contends that such Entertainment Tax has to be paid by the plaintiff and the defendant company and its Receivers who are the two other defendants in this suit demanded payment of this tax from the plain-tiff. On the other hand the plaintiff contends that she is not liable to pay the tax for the seats mentioned in the covenant, in the Indenture, of Lease. She claims protection from this liability under the covenants in the lease.

4. It is admitted by the defendant company and the two Receiver defendants that the admittance of the Cinema was refused to the plaintiff and/or her nominees on this ground. The plaintiff gave notice of forfeiture and gave the defendants time to remedy such alleged breach. As the defendants did not yield on the point, the plaintiff has sued for possession.

5. The main question in this suit is one of law and of considerable importance. Such question is whether the lessor or the lessee is to pay this Entertainment Tax in respect of seats mentioned in the covenant, it depends on the construction of the covenants in the lease and on the construction of the West Bengal Amusement Tax Act.

6. The following issues were raised by counsel for the defendant and accepted by the plaintiff:

1. What was the agreement with regard to keeping a box and/or seats at the disposal of the plaintiff by the defendant company under lease dated 19-8-1933?

2. Have the defendants committed breach of covenant by refusing admittance to the cinema performance as provided for in the said lease except on receiving from the plaintiff the amount of taxes levied by the West Bengal Amusement Tax (Amendment) Act, 1949, being West Bengal Act 11 of 1949?

3. In case the defendant company has committed breach of covenant is it entitled to any relief against forfeiture?

4. To what relief, if any, is the plaintiff entitled?

Another issue was raised whether the notice given by the plaintiff forefeiting the lease was valid. But the learned Advocate-General appearing for the defendant company abandoned that issue.

7. There are two admitted Briefs of documents marked 'A' and 'B' in these proceedings. Counsel on either side have called no evidence as the issues are all issues of law.

8. Issue No. I. The covenant in the lease of 19-8-1933, which is relevant for this issue is contained in Clause 7 of the lessee's covenants and runs as follows:

'The company shall at all times during the period of the lease keep one box containing not less than 4 seats in each of the said Cornwallis Theatre and Crown Cinema at the disposal of the lessor for the use of herself or of person or persons authorised by her or on her behalf in writing and if the lessor so desires in writing the company shall instead of four seats in the box permit 6 persons in the stall and 8 persons in the gallery or in the pit to view the performances which will be held in the aforesaid two demised premises.'

9. On this covenant a contention has been raised that this does not provide for free seats in the box or in the stail or in the gallery or in the pit. The substance of that contention is that the word 'free' has not been used in the covenant. The words 'keep one box' are said only to mean that the box is reserved but payment of the price of tickets has to be made for getting into the seats. As long therefore as the stated accommodation is kept at the disposal of the lessor or for her use the covenant is said to be satisfied.

10. To my mind this is an untenable contention both on the grounds of pleading and correspondence in this suit as well as on the ground of construction of the covenant.

11. I will take first the pleadings and the correspondence in this suit. In paragraph 5 of the written statement filed on behalf of the defendant company the admission is made in the following terms:

'The obligation of the lessee under the said indenture of lease dated the 19th August, 1933, is to issue free passes to the lessor or other person or persons authorised by her or on her behalf in writing to the lessee.'

12. On that pleading, it is not open in my opinion to the defendant company now to contend that there was no obligation to provide the seats mentioned in the covenant 'free'. In paragraph 2 of the written statement by the defendant Receivers the admission is made in the following terms:

'These defendants have taken the view that they will not charge the plaintiff or her nominees any price on behalf of the said lessee but the Amusement Tax payable to the West Bengal Government must be paid either by the plaintiff or her nominees.'

13. This admission is made further clear in paragraph 3 of their written statement where in fact it is said that the seats are free except as to Amusement Tax payable on them. There is further admission in the said paragraph 3 of their written statement that the defendants bad 'at all material times allowed free and complimentary passes or tickets in terms of the lease.'

14. Upon such admission in the pleadings I do not think that the argument is open to the defendant Receivers now that the seats mentioned in the covenant are to be paid for by the plaintiff.

15. The correspondence is also to the same effect as the pleadings. In the letter of Murali-dhar Chatterjee, Director of the Exhibitor Syndicate Ltd., acting for the defendant company addressed to the plaintiff dated 29th March 1949, it is admitted

'Under the terms of the lease agreement with you, you have been allowed one box of complimentary passes and 6 D. C. The passes or the complimentary tickets were so long free from payment of any Amusement Tax.'

Then again in the letter of 14-8-1949, from the defendant company's solicitor to the plaintiff's solicitor it is said with reference to that letter ef 29-3-1949,

'our client duly sent intimation to your client about the imposition of the Amusement Tax by the Government on free pass and requesting your client to advise the person or persons who will come on the complimentary pass or tickets issued by your client to pay the amount of entertainment tax payable.'

Again in the defendant company's solicitor's letter to the plaintiff's solicitor dated 21-6-1949 it is said:

'As already stated the lessee's obligation was to keep the seats reserved free from payment of any charges which they have done.'

On the correspondence in this suit, and the entire conduct of the defendant company appearing from the said correspondence, the admission is clear that these seats mentioned in the covenant were free in the sense that no price was charged or paid in respect thereof. On this ground also, I hold that this contention is no longer open to the defendants that the seats mentioned in the covenant had to be paid for by the plaintiff.

16. I do not wish to rest my decision on this issue merely on admission on pleadings and correspondence or even on the conduct of parties. On the construction also of this particularcovenant in the lease I have come to the same conclusion. My reasons for so construing the covenant may be stated briefly.

17. The words in the covenant are not merely to 'keep one box'. There are qualifying words such as 'at the disposal of the lessor for the use of herself or of other person or persons authorised by her', 'permit' and 'to view the performances which will be held in the aforesaid two demised premises.' The combined effect of the words 'disposal', 'permit' and 'to view the performances' to my mind is that the seats mentioned in the covenant are at the disposal of the plaintiff or her nominees to view the cinema performances and no price for the seats so used is to be charged or paid. This covenant does not in my view mean an ordinary case of a mere reservation which is open to other spectators, namely, reservation on payment or purchase of a ticket.

18. On a consideration of the whole lease and the context in which this particular covenant appears it seems to me that this is a part of the consideration for granting of the lease by the plaintiff to the defendant company. It would be a meaningless consideration if the prices of such seats are to be paid by the plaintiff. In fact, the very next covenant appearing in Clause 8 of the lessee's covenant the consideration of the lessee's quiet enjoyment is the performance by the lessee of the 'covenant hereinbefore mentioned.'

19. The historic context behind this particular covenant leads to the same construction. The origin of the lease of these two cinema houses dates back to the year 1919. By lease dated 29-10-1919, it was provided:

'The lessee shall during the terms of this demiseallow to the lessor a free complimentary passfor four seats in the first class stall or a privatebox for the performance at the theatre orcinema in the demised premises'.

This clearly provides for free seats. Then thereare two leases between the same parties on 14-11-1924. There it is provided:

'The company shall during the term of this demise allow to the lessor a free complimentary pass for 4 seats in the first class stalls or a private box for the performance at the theatre or cinema in the demised premises.'

That again clearly states that the seats are to be free. Then came the lease of 19-8-1933, and. I have already set out in extenso the covenant appearing in that lease. I am not unmindful of the fact that one lease is not to be interpreted by reference to another lease. But here the historic context of these other previous leases has an importance and relevance which arise by reason of the fact that in this lease of 1933 there is a specific stipulation in Clause 9 of the lessee's covenant which runs in these terms:

'Provided always and it is hereby agreed and declared that the terms, conditions and covenants as contained in the said two leases dated 14th day of November 1924 will be existing and binding on the parties.'

20. Therefore, the lease of 1933 does attract such terms and conditions of the lease of 1924 as are not inconsistent with the lease of 1933. The construction that the seats mentioned in Clause(7) of the lease of 1933 are not to be paid for by the plaintiff can also be arrived at by attracting the above provision of the 1924 lease, subject of course to what is expressly stated in Clause(7) of the lease of 1933. Mere variation of the language between the lease of 1933 as compared to the language in the lease of 1924, in the sense that the word 'free' is dropped in the 1933 lease, can-not lead to the conclusion that by the 1933 leaseit was intended to make the seats mentioned in Clause(7) thereof not free, because of the fact that the terms and conditions of the 1924 lease are expressly said to be subsisting by the clear provisions of the 1933 lease. This conclusion is not, in my view, affected by the fact that the lease of 1924 has expired. By stipulating in the 1933 lease that the terms and covenants of the 1924 lease are to subsist, they have, in my view, been extended for the period mentioned in the 1933 lease. There can be no doubt that if there is a conflict or repugnancy between the 1924 lease and the 198.3 lease, the latter lease of 1933 must prevail. But I see neither conflict nor repugnance when I make the construction that Clause (7) of the lessee's covenants in the 1933 lease must mean free seats. In fact, such construction alone reconciles Clause (7) and (9) of the lessee's covenants in the very lease Of 1933.

21. I therefore hold, both on the pleadings as well as on the construction of Clause (7) of the lessee's covenants in the lease of 1933, that the seats mentioned therein are free seats for the plaintiff and the plaintiff need not pay the price for the same.

22. Issue No. 2. This is the main and the most important issue in the suit. Indeed the whole controversy is who should pay the Entertainment Tax, the lessor or the lessee; or to put it more accurately and narrowly, can the defendant company realise the Entertainment Tax levied by She Government on free and complimentary tickets used by the plaintiff and/or her nominees?

23. A survey of the Bengal Amusement Tax Act with its amendments is essential to understand the nature of the problem raised.

24. Amusement tax was introduced into Bengal in the year 1922 for the declared object of making an addition to the public revenues of Bengal. That was the Bengal Amusement Tax Act, 1922, being Bengal Act 5 of 1922. By Section 3 of that statute an entertainment tax is provided for on all payments for admission to any entertainment, which included any performance, amusement, exhibition, game or sport. Being a tax on 'all payments for admission to any entertainment', no such amusement tax could toe realised where admission to the entertainment was not by payment, but free. One of the main alterations introduced by the Amendment Act 1949 is to impose a tax even where no payment is made for admission to the entertainment. In Sub-section (3) (b) of Section 3 of the Act as amended it is now provided:

'Entertainment taxes shall be charged, levied and paid on all free or complimentary passes or tickets, by whatever name called, issued by the proprietor of a cinematograph exhibition in respect of admissions without payment to a seat or other accommodation therein and every person who is so admitted on a free or complimentary pass or ticket in a cinematograph exhibition shall be liable to pay the same amount of entertainment tax as would be payable by him had he been admitted to such seat or other accommodation on payment'.

25. Upon this the learned Advocate General has argued with considerable force that the statute makes every person who is admitted on a free ticket liable to pay the entertainment tax. I have given my most anxious consideration to this argument of the learned Advocate General, and the clear words of the statute, in my opinion, show that the Advocate General's contention must be accepted. There is no doubt in my mind thatthe words of sub-section (3) (b) of Section 3 of the Amended Act are such that the person who is admitted on free ticket is liable to pay the entertainment tax.

26. But this conclusion does not lead to the solution of the problem. Liability of the person admitted on a free ticket does not, in my view, under the scheme of the Act as amended, prevent the proprietor of the cinema from discharging that liability. Under Section 4 as amended, ib is provided that no person liable to pay the entertainment tax shall be admitted to any entertainment except with a ticket stamped with the stamp issued by the Government for the purpose of revenue denoting that the entertainment tax has been paid, or, in special cases, with the approval of the Government, through a barrier which, or by means of a mechanical contrivance which automatically registers the number of persons admitted. Nevertheless, the provision is also made that this procedure for admittance will not apply in the case when the proprietor of the entertainment has made arrangements approved by the Government for furnishing returns of the payments for admission and in the case of cinematograph exhibitions also returns of admission to seats or other accommodation without payment and further has given security up to an amount and in a manner approved by the Government for the payment of the entertainment tax. On a proper construction of the amended Section 4 of the Act it is clear to me that if the proprietor of the entertainment has made the requisite arrangement for furnishing returns both for paid and unpaid seats and has given the necessary security, the person liable to pay the entertainment tax may be admitted without payment of the tax as mentioned in sub-clauses (a) and (b) of Section 4 of the amended Act,

The proprietor, therefore, has the option. Then again, by Section 5 of the Amended Act the proprietor of the entertainment is liable on a conviction to pay a fine not exceeding Rs. 5,00/- plus the tax if he allows a person liable to pay tax to be admitted without complying with the provisions of Sections 4 and 5 of the Act as noticed above. Thaton a proper construction means that a person liable to pay entertainment tax can be admitted to a place of entertainment without payment of the tax if the proprietor has made the necessary arrangements for returns and security as contemplated in Section 4, and if he does that he cannot suffer any conviction or penalty. The proprietorof the entertainment, therefore, has it in his power to avoid penalty and conviction as well as to admit a person liable to pay tax without actually realising such tax from the person so admitted, as long as he gives the necessary returns of admissions to seats and furnishes the necessary security to the Government.

27. That view is further supported by a reference to some other sections of the Act. Section 6 lays down that the provisions of Sections 4 and 6 shall not apply to any entertainment in respect of which a consolidated payment is made under sub-section (4) of Section 3. Now, Section 3 (4) of the Act provides that the Government may, on the application of a proprietor of any entertainment, in respect of which the entertainment tax is payable under the sub-section, allow the proprietor on such conditions as they may prescribe to pay the amount of tax due by means of a consolidated payment of 20 per cent of the gross sum received by the proprietor on account of payments for admissions to the entertainment and on account of tax. Now, when the proprietor makes a consolidated payment under Sub-section(4) of Section 3, the proprietor avoids the operation of both Sections 4 and 5 of the Act. It is noteworthy that neither Section 6 nor Section 3 (4) of the Act has been amended by the Amendment Act of 1949. The result is that by paying the consolidated amount on the gross sum received on account of payments for admission to the entertainment and on account of the tax the proprietor will be within law to admit persons on free or complimentary passes or tickets without realising the amusement tax from the holders of such tickets at the time of their admittance.

28. A person cannot be required to commit a crime or an offence in order to perform a contract into which he has entered with another person. Requirement under the law to perform a contract is ordinarily commensurate with the ability to perform it. To this Court there are no degrees of higher or lower efficacy or higher or lower order of sacredness as between a contract and a statute. The Court will hold both contract and Statute equally good and sacred obligations to be discharged and apply such remedies as the law provides in the case of breach of either. The Court does not make a competitive preference between a breach of a statute and a breach of contract. The Statute however may make the contract illegal in which event no court can require its performance. The law will not presume that the demands of a Statute and the demands of a contract are mutually intolerant and will not treat them as such unless they are manifestly so. Whenever possible the law will attempt to reconcile them and in doing so the court will have to be satisfied, before the Statute is allowed to override the contract, that the Statute is such, that to contract out of it is not permissible or against public policy,

I am satisfied on the analysis I have made that the present Statute under my consideration is not such a Statute. Had I been convinced on a reading of the different sections of the Act as amended that the proprietor of an entertainment by admitting a person liable to pay the entertainment tax without realising the tax from him was open to statutory penalty or an offence, I would have held that inasmuch as the Act makes the person admitted liable, the tax is to be paid by him when demanded by the proprietor, because to admit him without payment of the tax would mean conviction for the proprietor. But I am convinced that that is not the position here. Under the scheme of the statute the liability of the person admitted does not mean that the proprietor cannot discharge that liability for him.

29. The whole question therefore resolves into the problem that although the liability to pay the Entertainment Tax is on the person admitted without payment and although a free ticket is charged with the payment of the Amusement Tax, does the lease or its covenant emancipate the lessor or her nominees from the demand of the defendant' company to obtain the tax, from the plaintiff. That a person is admitted without payment and that free tickets are charged with the payment of the tax are clear to my mind beyond dispute both under Sub-section 3 (b) of Section 3 of the Amended Act as well as under Section 7 (1) of the Amendment. But the point here for determination is, does the covenant protect the lessor from this liability and enable the lessor to shift this Statutory liability to the lessee under the covenant.

30. Reverting to Clause 7 of the lessee's covenants in the lease and applying the considerations I have just discussed, I reach the conclusion that this covenant requires the lessee to discharge forand on behalf of the lessee such liability for tax on free and complimentary tickets or passes.

31. Entertainment tax cannot in my view be realised on these seats by the lessee from the lessor. That will not keep the lessee's covenant to provide free seats to the lessor. Such free seat is part of the very consideration of the lease just in the same way as rent. In my view, therefore, the lessee does infringe its liability under the covenant to provide free seats to the lessor if it attempts to realise the tax from the plaintiff. This docs not mean that such free seats or the holders of such free passes or complimentary tickets are hot under the statute liable to pay taxes. They are expressly made so liable under the Act but by virtue of the covenant, the lessee, in my view, has to discharge such liability for the lessor and that the lessee, as the proprietor of the cinema can do under the Act without incurring any penalty or committing any offence thereunder as I have indicated by my analysis of the various provisions of the Statute. That is how in this case the demands of the Statute and the demands of the contract can best be reconciled.

32. The next consideration which appears to me to be relevant' in this context is the well-settled principle that the law will always imply in such context on the part of the lessee to do all things necessary to perform the covenant. That he can so perform in this case without obtaining payment of the entertainment tax from the lessor or her nominees under the statute is clear. I find nothing in the statute which prevents the defendant company as lessee to discharge this liability for entertainment tax which has been levied by the statute on all free or complimentary passes or tickets and which says that every person who is so admitted on free or complimentary passes or tickets shall be liable to pay the amount of the entertainment. It is in my judgment open to two persons by a private contract to agree that one will discharge the tax liability of the other. Such a contract is neither illegal nor against public policy. This is therefore a statute from which the parties can contract out and this is exactly, in my view, the effect of the covenant. The covenant shifts the incidence of the tax. The protection contained in the covenant, therefore, in my view prevails and protects the lessor from the tax being realised by the lessee.

33. It is necessary at this stage to dispose of another argument which has been advanced on the basis of the construction of Clause2 of the lessee's covenant in the lease of 1933. By that clause, it is provided:

'That the company during the continuance of the term hereby granted shall pay the monthly rent as hereinbefore reserved on the days in the manner and to the extent hereinbefore mentioned and shall also pay both the Owner's and Occupier's shares of rates and taxes and other outgoings and impositions payable in respect thereof during the said term'.

34. On behalf of the plaintiff, it has been contended that apart from Clause 7 of the lessee's covenant which I have just noticed and discussed this particular clause also protects the lessor from the tax. Learned Advocate General submits that on proper construction of this particular clause, it means that the rates and taxes or outgoings and impositions that the lessee agreed to pay under this clause are only such as are 'in respect thereof' appearing in the covenant. He emphasizes the words 'in respect thereof'. The argument proceeds that the provision for freeseats is not part of the demised premises & therefore the entertainment tax on the free seats doesnot come within this covenant so as to protect thelessor. It is said that the taxes or impositionscontemplated by this covenant are proprietory taxes and do not include entertainment taxwhich is levied on the person admitted withoutpayment and which therefore must be regardedas a personal tax. There is a good deal of forcein that argument. That the words 'in 'respectthereof' are very material in construing such covenant there can be no doubt. I have examinedvarious decisions and authorities on this pointand if I do not refer to them that is because Ido not consider that they settle the point thatI have to decide. While on the question of construction of a particular covenant I am not convinced that decisions and authorities in othercases are at all a safe guide, this general conclusion can at any rate be made from the authorities that the words 'in respect thereof' do circumscribe the scope and effect of a covenant. InVol. 20 of Halsbury's Laws of England at p. 194the law is stated briefly as follows:

'In all the above cases however whether the 'covenant' is in the restricted form -- 'rates taxes and assessments' -- or whether it is extended by the use of one or more of the words 'duties', 'outgoings', 'impositions', 'burden', or 'charges' if it defines these as existing 'in respect of the demised premises' this is enough to determine the scope of the covenant and it is immaterial whether the words 'or on the landlord or tenant in respect thereof are also inserted'.

I accept that to be the correct statement of lawon that point.

35. Various authorities which I have examined and to which reference was made in the course of arguments are: -- 'Tidswell v. Whitworth', (1867) L R 2 C P 326 at p, 336 (A); -- 'Brett v. Rogers', (1897) 1 Q. B. 525 (B); -- 'In re Floyd', 1897 1 Ch 633 (C); East wood v. Me Nab', (1914) 2 K. B. 361 (D); -- 'Wooler v. North Eastern Breweries', (1910) 1 K. B. 247 (E); -- 'Al-dridge v. Feme', (1886) 17 Q B D 212 (F); --'Allum v. Dickinson', (1882) 9 Q B D 632 (G); --'Henman v. Berliner', (1918) 2 K B 236 (H). But there is no terminological similarity between the language of the covenant that I have to construe and the language of the covenants construed in these authorities.

36. The learned Advocate General also relied on the decision of the Privy Council in -- 'Bengal Coal Co. Ltd. v. Sri Sri Janardan Kishorelal Singh' deciding the appeal from this High Court whose judgment is reported in -- 'Bengal Coal Co. Ltd. v. Sri Sri Janardan Kishore Lal Singh' : AIR1936Cal459 . The language of the covenant in that case used the words in a mining lease 'charged, assessed or imposed upon the said mine or any part thereof'. I must say at once that the words I have to construe are not similar. It was held by the Privy Council in that case that on the construction of the covenant' the case being - a levy on the immovable property was a demand which was within the covenant but income tax was outside such covenant. Sir George Rankin in delivering the judgment of the Privy Council at p. 245 of observed:

'Income tax is in a very different position, as intending purchaser or mortgagees of the lessor's interest would appreciate. It is not a tax imposed upon the mines in any sense relevant to the lessee's covenant in a Mining Lease. Indeed express words referring to pub-lie demands imposed upon the proprietors in respect of the mine would not have brought income tax within the covenant', As the words 'imposed upon' are not in the present covenant before me this case cannot be said to decide the construction of the particular covenant in this suit. The Privy Council referred to the cases of -- 'Payne v. Esdaile', (1888) 13 A. C-613 (K), (1882) 9 Q B D 632 (G) and -- 'Foulger v. Anting'. (1902) 1 K. B. 700 (L).

37. These principles must all be understood with reference to the particular covenants considered in each case. I have set out the covenant in the present lease before me relating to the payment of taxes. I will assume, as I consider it to be correct, that the taxes mentioned in such covenants are only those which are 'in respect of the demised premises'. The real question in this case appears to wwhether the provision of free seats can at all be said to be a part of the demised premises. Now for this purpose clause 7 of the lessee's covenants in this regard uses rather significant words and they are 'to view the performance which will be held in the aforesaid two demised premises'. That seems to me that the lessor should be given free access to the seats in these two demised premises during performance. In such a contract I do not see anything unreasonable in the construction that these seats in the demised premises are part of the demised premises themselves and if any tax is imposed in respect of these seats or persons using these seats why such taxes should not be said to be in respect of the demised premises. It is not any seat that is contemplated in Clause 7 of the lessee's covenant but seats on those demised premises. If the proprietor of the cinema house or the lessee defendant company had agreed by a covenant to provide seats to the lessor in other cinema but not in this demised premises that surely would not come within the meaning of 'in respect of the demised premises'. Such seats being part of the demised premises taxes in respect thereof can in my view legitimately come i within the meaning of the covenants contained in Clause 2 of the lessee's covenant.

38. It is essential to remember also in this context that the purpose of the lease as appears from the lease itself is provided in Clause6 of the lessee's covenant which is in these terms:

'The company shall be at liberty to use the demised premises for bioscope and cinema shows, party entertainment, theatre, clubs and all other purposes of like nature'.

Obviously, the purpose of the lease was to make it a house for entertainment. Obviously again and expressly indeed the lessor was intended to be given by the lease free access to such entertainments on those demised premises. If therefore such entertainment being the express purpose of the demise attracts a tax, it is difficult to see how it goes outside the covenant. If the lessee did not use these demised premises for this particular purpose of cinematographic exhibition, then such user would not have attracted the tax. It is in a double sense that the entertainment tax in this case can be said to be 'in respect of' the demised premises, first because the very purpose of the demise being entertainment produces the tax and secondly because the seats themselves being on the demised premises are an integral and inseparable part of the demised premises. It is one of those cases where I think it is not possible to make a clear-cut division between a personal tax and a proprietory tax. It is one of those cases where I consider the personal element of the tax. is so inextricably connected with theproprietary element of it, that such a tax can very reasonably be said to come within the meaning of Clause 2 of the covenant. On the other question there can of course be no doubt that entertainment tax will be within the meaning of the words 'taxes', 'outgoings' or 'imposition' used in that covenant.

39. I therefore hold that even on the construction of Clause 2 of the lessee's covenant, the liability to pay the entertainment tax should be discharged by the lessee under this covenant although the statute imposes such liability on the free seats and the persons using them.

40. As it is admitted that the defendants have refused admittance to the lessor or her nominees except on receiving from the plaintiff the amount of taxes levied by the West Bengal Amusement Tax Act as amended, the answer to issue No. 2 must, in my opinion, be in the negative and I hold that the defendant has committed breach of the covenant.

41. Issue No. 3. There being the breach of the covenant and as the plaintiff gave the necessary notice of forfeiture, forfeiture must follow as a matter of legal consequence.

42. The only question now is whether any relief can. be given by me against such forfeiture. Court's power to grant relief against forfeiture is much wider when such forfeiture is caused by nonpayment of rent. There Section 114, T. P. Act endows the court with the power to relieve forfeiture at the hearing of the suit for ejectment. But where forfeiture is caused by the breach of an express condition providing for re-entry the only relief is that provided by Section 114A, T. P. Act. The substance of that relief is the opportunity to remedy that breach within a reasonable time after the service of the notice under that section. Once that stage is passed with the expiry of the reasonable time without remedy of the breach, the court in my judgment is powerless to grant any relief against forfeiture. The Legislature in my view, by introducing this particular relief under Section 114A, T. P. Act, by the Amending Act, 20 of 1929 intended a conscious and deliberate departure from the Scheme laid down for relieving forfeiture for non-payment of rent Under Section 114, T. P. Act, and withheld from the court any power to grant relief against forfeiture caused by breach of express condition providing for re-entry, where the lessee had failed to remedy the breach within a reasonable time after notice to remedy. That intention of the Legislature will be defeated if the court assumes and exercises any further power of relief purporting to act under equity or inherent jurisdiction, I am not unmindful of the obiter dicta of the Bombay and Madras High Courts in --'Rachtoppa v. Konher', AIR 1935 Bom 41 (M) and -- 'Komalukuttl v. Muhamad', AIR 1919 Mad 1106 (N), where relief was said to be possible when forfeiture is incurred by disclaimer. But they are of no assistance here because this is not a case of forfeiture by disclaimer but Is a case clearly within the four comers of Section 114A, T. P. Act. Where that is so there can in my judgment be no scope whatever of this court applying equity jurisdiction or inherent Jurisdiction in the teeth of the Statute.

43. In the present case, the forfeiture is incurred for breach of an express condition. Clause 8 of the lessee's covenant in the lease of 1933 provides clearly that the breach of any condition mentioned in the lease will entitle the lessor to re-enter. The admitted Brief of Correspondence shows that notice in writing was given by the plaintiff under Section 114A, T. P. Act, specifying theparticular breach complained of, and asking for remedy of the breach. The correspondence shows that the letter of 1-9-1949 is such a notice. That reasonable time was given by the plaintiff to the defendants is also seen from the letter dated 8-6-1949. The defendants did not remedy the breach and chose to obtain and act on counsel's opinion. On that it is argued that the defendants and specially the Receiver defendants could not remedy such a breach as it was a question of law and they had to wait till the decision of the court. This I am afraid is no argument in defence under Section 114A, T. P. Act. One who takes a defence in law just as one who takes a defence on fact must always do so at his peril. The words in Section 114A, T. P. Act and in Sub-paragraph (D) thereof are 'capable of remedy' and the lessee 'fails to remedy'. The breach in this case was capable of remedy and the lessee failed to remedy. Legal opinion can be no answer and can give no protection. The defendants have taken the risk of acting on the legal opinion without remedy of the breach. They therefore have also taken the risk of the consequence. In such a case, therefore, under Section 114A, T. P. Act, the Court has no power when the conditions mentioned in that Section are satisfied to grant any relief against forfeiture. This issue therefore must be answered in the negative.

44. Issue No. 4.: Relief follows as a matter of course on the basis of my findings on the foregoing issues.

45. For reasons stated above, the plaintiff isentitled to judgment in this case. There willtherefore be judgment for the plaintiff for possession of the said demised premises and for costs.No claim for damages has been pressed beforeme. I certify the suit to be a fit and proper onefor the employment of two counsel. Costs of theReceivers should come out of the estate in theirhands and such costs will be as between attorneyand client.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //