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E.H. Ducasse Vs. E.M.D. Cohen - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal99,60Ind.Cas.105
AppellantE.H. Ducasse
RespondentE.M.D. Cohen
Cases Referred and Quinion v. Borne
Excerpt:
calcutta high court original side rules, ch. xiii, originating summons - indenture of lease, construction of--procedure. - .....of the following questions, namely, whether, upon the true construction of the indenture of lease mentioned in the plaint herein, relating to premises no. 4, madge lane, in the town of calcutta, commonly known as trees grand opera house, and in the circumstances mentioned in the plaint, the plaintiff is entitled to assign the remainder of the term under the said lease to the bijou limited without the consent of the defendant e.m.d. cohen, and whether the defendant should not, pay the costs of and incidental to these proceedings.2. it appears that by an indenture of lease, dated 2nd march 1917, the premises known as the grand opera house were demised to the plaintiff for a period of five years, commencing from the 1st april 1917, on certain terms and conditions mentioned in the.....
Judgment:

Ghose, J.

1. (sic) Ducasse for the determination of the following questions, namely, whether, upon the true construction of the Indenture of lease mentioned in the plaint herein, relating to premises No. 4, Madge Lane, in the town of Calcutta, commonly known as trees Grand Opera House, and in the circumstances mentioned in the plaint, the plaintiff is entitled to assign the remainder of the term under the said lease to the Bijou Limited without the consent of the defendant E.M.D. Cohen, and whether the defendant should not, pay the costs of and incidental to these proceedings.

2. It appears that by an Indenture of Lease, dated 2nd March 1917, the premises known as the Grand Opera House were demised to the plaintiff for a period of five years, commencing from the 1st April 1917, on certain terms and conditions mentioned in the said lease.

3. Among other conditions it was provided by (he said Indenture that the plaintiff would not assign, underlet or otherwise dispose' of the said Grand Opera House and the said premises or part with the possession' thereof or any part thereof, without the consent of the defendant, but. that such consent should not be unreasonably withheld provided the plaintiff remained responsible in terms of the said Indenture.

4. The plaintiff complains that he applied to the defendant sometime in August 1918 for his consent to his assigning his interest in the said Indenture for the residue of the term mentioned therein to the Bijou Limited but the defendant, although repeatedly requested by the plaintiff to give his consent to the said assignment, has refused to do so. This refusal was finally given on the 5th of January 1920, and the plaintiff characterises this refusal as capricious and without any valid reason whatever on the part of the defendant.

5. The correspondence which passed between the parties shows that the plaintiff applied for the defendant's consent on the 2nd August 1918. On the 8th August 1918, the defendant replied saying that there was an outstanding dispute about a chandelier in the Grand Opera House (sic) 1920. On the 2nd January 1920 Messrs. Watkins and Co., acting on behalf of the Bijou Limited, wrote to the defendant saying that be had been repeatedly requested to give his consent to the assignment of the residue of the term of the lease to the Bijou Limited, but that the defendant had not formally granted his consent to the proposed assignment. In these oiroumstanoes, they notified to the defendant to the effect that they, on behalf of their client, namely, the Bijou Limited, proposed to take a formal assignment from the plaintiff on 6th January 1920 and asked the defendant to state definitely on or before that date, whether he consented to the assignment or not. On the 5th January 1920, Messrs. Leslie and Hinds, on behalf of the defendant, stated that their client refused to consent to the assignment referred to above. Messrs, Leslie and Hindu stated their client's objections in these terms--'The objection of our client to the assignment to a Limited Occupancy is a perfectly reasonable and valid one, and any attempt to carry out such assignment will be lacked upon as a breach of covenant with a consequent right to our client to put an end to the lease. Our client has agreed with Mr. Galstaun to call the property to him subject to certain conditions being compiied with, and subject to your client's lease, It is possible that the purchaser will not have the same objection to the assignment that our client has.'

6. The plaintiff thereupon came to this Court on the 21st January 1920, with his present plaint against the defendant and applied on an originating summons for the determination of the questions hereinbefore referred. The application came on before me on the 6th February 1920. Learned Counsel who then appeared for the defendant objected to my determining the questions raised on an originating summon, and argued that the plaintiff should be directed to proceed by means of a regular suit. He further argued that, even if the Court should be of opinion that this matter could be proceeded with on an originating summons, the defendant ought to, be given an opportunity to file a (sic) But inasmuch as the defendant wanted to file a written statement, I saw no objection to such a course and accordingly granted an adjournment. The defendant has now filed his written statement. In his written statement, the defendant states that the plaintiff has no cause of action as against, him, and that, even if he had any, these proceedings by way of originating summons are wholly misconceived.

7. I think the procedure which has been adopted by the plaintiff in the present instance is entirely correct. Under the Rules of this Court (see Chapter XIII, Rule 9) any person claiming to be interested under a deed or other written instrument may apply by originating 'summons for the determination of any question of construction arising under the instrument find for a declaration of the rights of the persons interested. The corresponding rule in England is Rules of Supreme Court, Order LIVa, Rule 1. Among points dealt with from time to time under the last mentioned rule, have been questions as to whether an effective notice to determine a lease had been given Viola's Lease, In re, Humphrey v. Stenbury (1909) 1 Ch. 244 : 78 L.J. Ch. 128, 100 L.T. 33 whether a license to assign had been unreasonably withheld Young v. Ashley Gardens Properties Limited (1903) 2 Ch. 112 : 72 L.J. Ch. 520 : 88 L.T. Spark's Lease, In re, Berger v. Jenkinson (1905) 1 Ch. 456 : 74 L.J. Ch. 318 : 92 L.T. 537 and Evans v. Levy (1910) 1 Ch. 452 : 79 L.J. Ch. 383 : 102 L.T. 128. Whether upon the true construction of a covenant in a lease the costs of new drainage works were payable by the tenant Farlow v. Stevenson (1900) 1 Ch. 128 : 69 L.J. Ch 106 : 81 L.T. 589 : 48 W.R. 213 : 16 T.L.R. 57 and whether letters which had passed between parties' amounted to an agreement for the renewal of a lease Bossert v. Jones (1901) 48 Sol. Jour. 636 : 17 L.T. Jour. 285 and the like. Of course, it is not the proper mode of procedure when the litigation involves anything beyond questions of construction, or where the questions of construction will not necessarily put an end to the litigation see Lewis v. Green (1905) 2 Ch. 340 : 74 L.J. Ch. 682 : 93 L.T. 803 : 54 W.R. 93, The procedure adopted in this case was also, it may be notified, adopted in the recent case of Mills v. Cannon Brewery Company Limited (1920) 36 T.L.R. 513 : 89 L.J. Ch. 351. I do not doubt, therefore, as I have said already, the correctness of the procedure in this case.

8. The only question that now arises is, whether, in the circumstances of the present case, the defendant was justified in withholding his consent to the assignment of the residue of the term under the said Indenture of lease to the Bijou Limited. The onus of proof is on the plaintiff. I understand that the defendant's objection was that he did not like that the residue of the terms should Ice assigned to a Limited Company. In my opinion, the objection is not sustainable. It has been held that the word person' in a covenant against assignment includes a Corporation, and a Limited Company is capable of being a respectable and responsible person' within the meaning of such a covenant. See Willmott v. London Road Car Co. (1910) 2 Ch. 525 : 80 L.J. Ch. 1 : 103 L.T. 447 : 54 S.J. 873 : 27 T.L.R. 4. As to what is an 'arbitrary' or 'unreasonable' refusal, the cases of Treloar v. Bigge (1874) 9 Ex. 151 : 43 L.J. Ex. 95 : 22 W, Governors of Bridewell Hospital v. Fawkner (1892) 8 T.L.R. 637, Barrow v. Isaacs (1891) 1 Q.B. 417 : 60 L.J.Q.B. 179 : 64 L.T. 686 : 39 W.R. 338 : 55 J.P. 517 and Quinion v. Borne (1906) 1 Ch. 596 : 75 L.J. Ch. 293 : 54 W.R. 344 indicate that the expressions when used in a clause such as the one under consideration mean 'without fair, solid and substantial cause,'

9. On the evidence before me, I am of opinion that the defendant's refusal in the present case was unreasonable and capricious. I do not propose to again go through the correspondence, it is only necessary to point out that there was an express clause in the lease by which the liability of the plaintiff would remain undiminished, in the event of an assignment. The only question now is the question of costs. In the view of the matter which I have taken, there is no escape from the conclusion that the defendant must pay the costs of this application. Therefore, the order is that, on a proper construction of the Indenture of Lease mentioned in the plaint, and in the circumstances mentioned therein, the plaintiff is entitled to assign the remainder of the term of the said lease to the Bijou Limited without the consent of the defendant, and that the defendant should pay the costs of and incidental to this application.


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