Calcutta High Court
Speciality Restaurants Limited vs Mani Square Limited on 24 August, 2020OD-8
AP 225 of 2020
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SPECIALITY RESTAURANTS LIMITED
Versus
MANI SQUARE LIMITED
BEFORE:
The Hon’ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 24th August, 2020.
Appearance:
Mr. Ratnanko Banerji, Sr. Adv.
Ms. S.Thard, Adv.
Mr. Jishnu Saha, Sr. Adv.
Mr. S. Bhattacharya, Adv.
The Court : The petitioner has a Fine Dining Restaurant in
Mani Square Mall which is the respondent in the present case(Mani
Square Limited). The case of the petitioner is that the restaurant
has not enjoyed any footfall since April 2020 by reason of the
pandemic.
Learned Counsel for the petitioner submits that the
restaurant has been virtually closed and has generally been
inaccessible since 22nd March, 2020 and has not had any customers
or sales even after 8th June, 2020 when the lockdown was partially
2
lifted. Counsel contends that the contract between the petitioner
and the respondent stands frustrated by reason of impossibility to
perform the terms of the contract due to the extraordinary state
of affairs which have been prevailing since April of this year.
Counsel relies on a letter of the petitioner dated 28th July, 2020
to the respondent stating that the petitioner intends to remove
all the furniture, fixtures, fit-outs etc. from the Fine Dining
Restaurant area which the petitioner had installed and hand over
the set of keys of the restaurant to the respondent. The fixtures
was due to be removed from 30th July, 2020 and the respondent was
requested to refund the security deposit of Rs.46,84,678/- lying
with the respondent.
The prayer in this application is for appointment of a
Special Officer who will supervise the removal of the fixtures and
furniture from the concerned area and that the petitioner should
be permitted to take possession of the same.
Learned counsel appearing for the respondent, i.e. the
company running the Mani Square Mall, submits that the contract of
the petitioner which was to remain valid till 2022 has a lock-in
period of three years from 2019 to 2022 and that the contract does
not contemplate termination before 2022. It is also submitted that
the respondent has filed an application under Section 9 of the
Arbitration & Conciliation Act, 1996 for securing the respondent’s
monetary claims which are due from the petitioner which includes
3
an amount of Rs.6 lakhs payable every month by the petitioner as
the minimum guaranteed amount. Counsel submits that although he is
not opposed to the idea of Special Officer being appointed in the
matter, the furniture and fixtures belonging to the petitioner
should be kept in a separate place so that the respondent can
treat the same as security for its claims against the petitioner.
The approximate amount of such claim is said to be Rs.25 crores as
on date.
On hearing counsel for the parties, this Court is of the view
that neither of the parties can be forced to suffer the
consequences of the pandemic which has severely affected the hotel
and hospitality industry. On the one hand, the petitioner is
unable to run its Restaurant and has its furniture and fixtures
locked in without being able to utilise the same; while on the
other, the respondent is saddled with a contract without being
able to realise its dues from the petitioner under the terms of
the contract. The rival monetary claims can be gone into before an
Arbitrator as and when such proceedings are commenced by the
parties. However, before that stage arrives the petitioner must be
given a measure of relief in the face of its restaurant becoming
financially unviable. However, if the petitioner is permitted to
take back all the furniture, the respondent may be deprived of
treating the furniture as security. The depreciated value of the
furniture and fittings is estimated in excess of Rs.2 crores.
4
In view of the above, Mr. Manish Ray of the Bar Library Club
is appointed Special Officer to oversee the removal of the
furniture, fittings and fixtures of the petitioner which are
presently lying inside the precincts of the petitioner’s
Restaurant at Mani Square. The process of removing should start
from 28th August, 2020 and be completed within a week thereafter.
In addition to the Special Officer, the process of removing
the furniture and fixtures will be done in the presence of two
representatives each of the petitioner and the respondent. After
completing the process, the keys of the petitioner’s Restaurant
will be handed over to the respondent’s representative in the
presence of the Special Officer. The furniture and fittings
removed will thereafter be kept at a place designated and arranged
for by the respondent and at the respondent’s expense till 14th
September, 2020. This arrangement has been directed till 14th
September, 2020 since the respondent has also filed an application
under Section 9 of the 1996 Act which is expected to be listed in
the coming week. The parties are at liberty to take appropriate
steps for realising their claims against each other during the
period in which protection has been given to the parties by this
order.
The Special Officer will be paid Rs.70,000/- as remuneration
in addition to incidental expenses for transportation etc. for the
5
work as directed and is to be borne by the petitioner including
all incidental charges.
This interim order is made without prejudice to the rights
and contentions of the parties which may appear from the terms of
the contract executed by them.
AP 225 of 2020 is disposed of accordingly.
(MOUSHUMI BHATTACHARYA, J.)
s.pal
Comments