Calcutta High Court (Appellete Side)
Projnan Chakravarti & Anr vs Sudipta Basu (Since Deceased) … on 15 May, 2025
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
SA 11 of 2015
Projnan Chakravarti & Anr.
Vs.
Sudipta Basu (Since Deceased) substituted by his legal heirs &
representatives Purnima Basu & Ors.
For the Appellants : Mr. Dibyajyoti Raha
For the Respondents : Mrs. Sarmistha Ghosh Sarma
Heard on : 22.08.2024, 19.09.2024 Judgment on : 15.05.2025 Ananya Bandyopadhyay, J.:-
1. The present second appeal arises out of a decree of eviction passed in favour
of the plaintiffs/respondents and affirmed by the learned First Appellate
Court. The facts giving rise to the present appeal are as follows:
2. The plaintiffs had instituted Title Suit No. 302147 of 1994 before the
Learned Civil Judge (Junior Division), 2nd Additional Court at Alipore,
seeking eviction of the defendant on the grounds of default, subletting, and
reasonable requirement.
3. The plaintiffs’ case, in brief, had been that their maternal grandfather,
Subodh Chandra Basu, since deceased, had been the absolute owner of
premises no. 18/2, Fern Road, P.S. Gariahat, Calcutta – 700019. During his
lifetime, he had executed a registered deed of trust in respect of the said
2premises, appointing his wife, Niharkana Basu, and his daughter, Smt.
Sipra Basu, the plaintiffs’ mother, as joint trustees. It had been stipulated in
the trust deed that upon the demise of the joint trustees, the plaintiffs
would become the absolute owners of the said premises.
4. It had been alleged that the defendants were inducted as monthly tenants
under the plaintiffs in respect of the first floor of the suit premises at a
monthly rent of Rs.400/-, payable according to the English calendar month.
5. The grounds for eviction had been, inter alia, that (a) the defendant had
defaulted in the payment of rent since June 1991, (b) the defendant had
sublet one room of the tenanted premises without the plaintiffs’ consent,
and (c) the suit premises had been reasonably required by the plaintiffs for
their own use and occupation, they not having any other suitable
accommodation. It had also been submitted that the adjacent premises at
18/1, Fern Road, in the plaintiffs’ occupation, had been wholly insufficient
to meet their residential needs.
6. The plaintiffs had issued an eviction notice dated 22.12.1993 terminating
the defendant’s tenancy upon the expiry of January 1994 or upon the expiry
of the month of tenancy next following one month from the date of receipt of
the said notice. The notice had been dispatched under registered post with
acknowledgment due and also under certificate of posting.
7. Despite receipt of the said notice, the defendant had failed to vacate the suit
premises, compelling the plaintiffs to institute the suit seeking eviction and
mesne profits quantified at Rs.300/- per day until delivery of vacant
possession.
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8. The original defendant had contested the suit by filing a written statement.
Upon his demise during the pendency of the suit, his legal heir had been
substituted and had continued contesting the proceedings.
9. In defence, it had been contended that the extent of tenancy described by
the plaintiffs had been incorrect; that the defendant had been forcibly
evicted from a portion of the tenanted premises; and that the rent amount
had never been revised despite a verbal agreement reducing the rent from
Rs.400/- to Rs.200/- following surrender of part of the premises in July
1991. It had further been submitted that the plaintiffs had sufficient
accommodation and that no notice of eviction had ever been served.
10. The learned Trial Court, upon considering the pleadings and evidence, had
decreed the suit on the ground of default in payment of rent. It had been
held that the plaintiffs had become absolute owners of the suit premises by
virtue of the trust deed and subsequent demise of the trustees. The
defendant had been found to be a monthly tenant at a rent of Rs.400/- per
month.
11. The notice dated 22.12.1993 had been found to be valid and duly served.
The Court had held that the defendant had failed to comply with the
requirements under Section 17(2A) of the West Bengal Premises Tenancy Act
and had thus disentitled himself to the protection under Section 17(4). On
this basis, he had been held to be a defaulter in law.
12. The plea of subletting had not been substantiated with cogent evidence, and
the ground of reasonable requirement had also not been accepted in view of
discrepancies and non-disclosure of material facts by the plaintiffs,
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including the number of rooms available to them and the extent of their
occupation in the adjoining premises.
13. The learned Trial Court had accordingly decreed the suit on contest, without
costs, and had directed the defendant to vacate and deliver possession of the
suit premises within two months. Mesne profits had also been awarded in
favour of the plaintiffs.
14. Aggrieved thereby, the defendant had preferred Title Appeal No. 26 of 2012
before the Learned Additional District Judge, 10th Court, Alipore. The
learned Appellate Court had noted that the defendant had been a monthly
tenant in respect of the first floor of premises no. 18/2, Fern Road, Kolkata –
700019, consisting of multiple rooms and amenities, at a monthly rent of
Rs.400/-, as per the English calendar month.
15. The Appellate Court had reiterated the plaintiffs’ case that rent had not been
paid since June 1991 and that the defendant had allegedly sublet part of the
premises without consent. Eviction notice dated 22.12.1993 had been found
to have been validly issued and duly served upon one Soma Chakraborty, on
behalf of the defendant. In the absence of any rebuttal to establish that she
had not been a family member, the notice had been accepted as having been
validly served.
16. It had further been observed that although the defendant had filed an
application under Section 17(2) of the Act for depositing arrears of rent,
there had been failure to comply with the court’s order regarding the same.
Even after being afforded an opportunity through modification of the earlier
order, the arrears had not been cleared. The plea of ignorance owing to the
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demise of the original tenant had not been accepted in the absence of
adequate explanation.
17. On the allegation of subletting, the Appellate Court had concurred with the
Trial Court’s finding that the same had not been established through
evidence. As regards the plea of reasonable requirement, it had been noted
that the plaintiffs had not filed any cross-objection under Order XLI Rule 22
of the Code of Civil Procedure, and thus, the said issue could not be
reopened at the appellate stage.
18. The Learned First Appellate Court had therefore affirmed the finding that
the appellants/defendants had been defaulters in rent and that a valid
notice of eviction had been served. The judgment and decree of the Trial
Court had been upheld, and the appeal had been dismissed on contest
without costs.
19. This Hon’ble Court by an order dated January 20th, 2015 had interalia
observed as follows:-
“This appeal will be heard on the following substantial question of law:
Whether the learned judges of the Courts below, substantially, erred in
law in passing a decree for eviction on the ground of default when the
defendants/ appellants have, substantially, complied with the direction
passed under sub-Section (2) of Section 17 of the West Bengal Premises
Tenancy Act, 1956 and when the defendants/appellants filed an
application under Section 151 of the Code of Civil Procedure for
extension of time for depositing remaining two instalments?”
20. The learned advocate representing the appellants submitted that the present
second appeal arises from the concurrent findings of both the Trial Court
and the First Appellate Court in a suit for eviction filed under the West
Bengal Premises Tenancy Act, 1956, instituted originally against the father
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of the appellants, now deceased, on the grounds of default, sub-letting and
reasonable requirement. The Courts below decreed the suit solely on the
ground of default, the other grounds having been dismissed and not
appealed against by the respondent-landlords.
21. It was urged that pursuant to an application under Section 17(2) of the said
Act, the original tenant had complied with the order of deposit, albeit with a
subsequent modification. While 12 out of 14 instalments were deposited, the
original tenant expired before completion of the same, and the appellants,
upon substitution, inadvertently failed to deposit the remaining two
instalments, which was only discovered at the stage of final hearing. The
said default, it was submitted, was neither deliberate nor wilful. Upon such
discovery, the remaining amounts along with statutory interest were
deposited immediately on the next date, and an application under Section
151 CPC seeking condonation of the delay was filed.
22. The Courts below, however, declined to condone the delay and proceeded to
decree the suit, relying on the strict import of Section 17(3) of the Act. It was
contended that such a reading is unduly rigid, and the word “shall” as
employed in Section 17(3) ought to be construed as “may” in view of the law
laid down by the Hon’ble Supreme Court in B.P. Khemka Pvt. Ltd. v.
Birendra Kumar Bhowmik1. It was further submitted that no specific
application under Section 17(3) was filed by the respondents seeking
striking out of the defence, thereby vesting the Court with discretion not to
penalise the appellants, particularly when the substantial compliance with
the Court’s directions had been demonstrated.
1
AIR 1987 SC 1010.
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23. Reference was also made to the decisions of this Hon’ble Court in Pasupati
Nath Auddya v. Shiba Ch. Dhar2 and Sheikh Shahjahan v. Smt. Shama
Debi Bai3, in support of the proposition that a minor procedural lapse
should not result in the drastic consequence of eviction where equity
favours protection.
24. It was further submitted that the appellants have complied with the
conditional stay granted by this Hon’ble Court by depositing occupational
charges at an enhanced rate of Rs. 18,000/- per month since January 2015,
which, in the event of the appeal being allowed, ought to be refunded to the
appellants, in terms of the ratio laid down by the Hon’ble Supreme Court in
State of Maharashtra v. Super Max International Pvt. Ltd 4.
25. The learned Advocate for the respondents submitted the appellants to have
deliberately failed to have complied with the order of the trial court which
disposed of the petition of 17(2) of the West Bengal Premises Act
determining arrear rent along with statutory interest which was directed to
be paid by the defendant appellant in ten installments which was further
modified on the prayer of the defendant appellant to be paid in fourteen
installments which was subsequently being defaulted and were not allowed
such protection under Section 17(4) of the West Bengal Premises Act.
Accordingly both the learned trial court as well as the first appellate court
were justified in granting a decree of eviction on favor of the present
respondents.
2
1998 (2) CLJ 14
3
1977 (2) CLJ 545
4
AIR 2010 SC 722.
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26. The plaintiffs had claimed ownership of premises No. 18/2, Fern Road,
Calcutta, through a registered deed of trust executed by their maternal
grandfather, Subodh Chandra Basu, appointing his wife and daughter (the
plaintiffs’ mother) as joint trustees, with the plaintiffs to become absolute
owners after their demise. The defendants had been inducted as monthly
tenants in the first floor of the said premises at a rent of Rs. 400/- per
month. The plaintiffs had instituted a suit for eviction on the grounds of
default in rent payment from June 1991, subletting without consent, and
their own reasonable requirement, further alleging insufficiency of
alternative accommodation in the adjoining premises. They had issued an
eviction notice dated 22.12.1993, terminating the tenancy with effect from
January 1994, which had been served by registered post. Despite service of
notice, the defendants had not vacated the premises, prompting the
plaintiffs to file the suit along with a claim for mesne profits.
27. The original defendant had filed a written statement denying the extent of
tenancy, the allegations of default, subletting, and reasonable requirement,
and had claimed partial surrender of the tenanted premises with a
corresponding rent reduction based on a verbal agreement. Upon his death,
his legal heir had been substituted and continued the contest. The Trial
Court had held that the plaintiffs had become absolute owners under the
trust deed, the tenancy had been validly terminated, and the defendants
had defaulted in payment of rent, having failed to comply with Section
17(2A) of the West Bengal Premises Tenancy Act. The Court had found no
conclusive evidence of subletting or reasonable requirement but had decreed
the suit on the ground of default, granting eviction and mesne profits
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without costs, directing the defendants to vacate within two months.
Aggrieved, the defendants had preferred an appeal. The Learned Additional
District Judge had reaffirmed that the plaintiffs had established ownership
through the trust deed and that the eviction notice had been duly served on
the defendants, evidenced by receipt through one Soma Chakraborty. The
defendants had filed a petition under Section 17(2) of the Act but had failed
to comply with the order for depositing arrears, even after receiving an
extension, and their plea of ignorance following the original tenant’s death
had not been accepted due to insufficient justification. The Court had again
found no evidence to prove subletting, and since the plaintiffs had not filed a
cross-objection regarding the ground of reasonable requirement within the
stipulated period under Order XLI Rule 22 CPC, the matter had not been
reopened in appeal. Consequently, the appellate court had upheld the
judgment and decree of the trial court, dismissed the appeal on contest
without cost, and affirmed the plaintiffs’ entitlement to eviction.
28. The appellants had preferred the present second appeal being aggrieved by
the judgment and decree of the learned First Appellate Court, which had
affirmed the judgment and decree of the learned Trial Court in a suit for
eviction filed in 1994 under the West Bengal Premises Tenancy Act, 1956,
against the father of the appellants, now deceased, who had been a monthly
tenant at a rent of Rs. 400/-. The learned Trial Court had decreed the suit
solely on the ground of default and had dismissed the claims of sub-letting
and reasonable requirement. It had found that the arrears of rent with
statutory interest had been determined under Section 17(2) of the Act and
directed to be paid in instalments, which had been complied with in part by
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the original defendant before his death. Upon his death, the appellants had
been substituted and had discovered at the time of argument that the last
two instalments had remained unpaid. They had deposited the remaining
amount with statutory interest the very next day and had filed an
application under Section 151 CPC seeking condonation of delay, which had
been rejected. Consequently, the Trial Court had held that the appellants
were not entitled to protection under Section 17(4) and had decreed eviction
solely on the ground of default.
29. A Title Appeal had been filed, which had also been dismissed, prompting the
present appeal, which had been admitted on the question of whether the
Courts below had erred in law by decreeing eviction despite substantial
compliance with Section 17(2) and the filing of an application under Section
151 CPC. By order dated 20.01.2015, this Court had granted a stay of
execution proceedings on the condition that the appellants would pay
occupational charges of Rs. 18,000/- per month, which they had complied
with since January 2015. It had been contended that the Courts below,
guided by Section 17(3), had wrongly treated the default as fatal and failed
to consider that the delay had not been willful or intentional, as the
appellants had deposited 12 of the 14 instalments and had promptly made
good the shortfall upon discovery. It had further been argued that the word
“shall” in Section 17(3) ought to have been read as directory and not
mandatory in light of the Supreme Court’s decision in M/s. B.P. Khemka
Pvt. Ltd. vs. Birendra Kumar Bhowmik, (supra) Moreover, there had been
no application by the respondents under Section 17(3) to strike out the
defence, and the Courts below had not exercised their discretion judicially,
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especially since a revision application against the rejection of the Section
151 CPC application had remained pending.
30. The appellants had emphasized that the default of two instalments after the
substantial compliance had been inadvertent and had not prejudiced the
respondents, and the Courts had erred in mechanically applying the law
without appreciating the equities involved. They had also cited precedents
including Pasupati Nath Auddya vs. Shiba Ch. Dhar (supra) and Sheikh
Shahjahan vs. Shama Debi Bai (supra) in support of their contentions. It
had been submitted that the decree be set aside and the appellants be
refunded the amount of occupational charges paid in excess of the
contractual rent, in line with the Supreme Court’s decision in State of
Maharashtra vs. Super Max International Pvt. Ltd. (supra)
31. The following Sections of The West Bengal Premises Tenancy Act, 1956 have
been replicated as follows:-
S. 17. When a tenant can get the benefit of protection against
eviction.–(1) On a suit or proceeding being instituted by the landlord
on any of the grounds referred to in section 13, the tenant 21[shall,
subject to the provisions of sub-section (2), within one month] of the
service of the writ of summons on him, 22[or where he appears in the
suit or proceeding without the writ of summons being served on him,
within one month of his appearance] 23[deposit in Court or with the
Controller or pay to the landlord] an amount calculated at the rate of
rent at which it was last paid, for the period for which the tenant may
have made default including the period subsequent thereto up to the
end of the month previous to that in which the deposit or payment is
made together with interest on such amount calculated at the rate of
eight and one-third per cent. per annum from the date when any such
amount was payable up to the date of deposit, and shall thereafter
12continue to deposit or pay, month by month, by the 15th of each
succeeding month a sum equivalent to the rent at that rate.
(2) If in any suit or proceeding referred to in sub-section (1) there is any
dispute as to the amount of rent payable by the tenant, the tenant shall,
within the time specified in sub-section (1), deposit in court the amount
admitted by him to be due from him together with an application to the
court for determination of the rent payable. No such deposit shall be
accepted unless it is accompanied by an application for determination
or the rent payable. On receipt of such application, the court shall–
(a) having regard to the rate at which rent was last paid, and the period
for which default may have been made, by the tenant, make, as soon
as possible within a period not exceeding one year, a preliminary order,
pending final decision of the dispute, specifying the amount, if any, due
from the tenant and thereupon the tenant shall, within one month of the
date of such preliminary order, deposit in court or pay to the landlord
the amount so specified in the preliminary order; and
(b) having regard to the provisions or this Act, make, as soon after the
preliminary order as possible, a final order determining the rate of rent
and the amount to be deposited in court or paid to the landlord and
cither fixing the time within which the amount shall be deposited or
paid or, as the case may be, directing that the amount already
deposited or paid be adjusted in such manner and within such time as
may be specified in the order.
(2A) Notwithstanding anything contained in sub-section (1) or sub-
section (2), on the application of the tenant, the Court may, by order,–
(a) extend the time specified in sub-section (1) or sub-section (2) for the
deposit or payment of any amount referred to therein;
(b) having regard to the circumstances of the tenant as also of the
landlord and the total sum inclusive of interest required to be deposited
13or paid under sub-section (1) on account of default in the payment of
rent,permit the tenant to deposit or pay such sum in such instalments and
by such dates as the Court may fix:
Provided that where payment is permitted by instalments such sum
shall include all amounts calculated at the rate of rent for the period or
default including the period subsequent thereto up to the end of the
month previous to that in which the order under this sub-section is to be
made with interest on any such amount calculated at the rate specified
in sub-section (1) from the date when such amount was payable up to
the date of such order
3) If a tenant fails to deposit or pay any amount referred to in sub-
section (1) or sub-section (2) within the time specified therein or within
such extended time as may be allowed under clause (a) of sub-section
(2A), or fails to deposit or pay any instalment permitted under clause (b)
of sub-section (2A) within the time fixed therefor, the Court shall order
the defence against delivery of possession to be struck out and shall
proceed with the hearing of the suit.
(4) If a tenant makes deposit or payment as required by sub-section (1)
[sub-section (2) or sub-section (2A)], no decree or order for delivery of
possession of the premises to the landlord on the ground of default in
payment of rent by the tenant shall be made by the Court but the Court
may allow such costs as it may deem fit to the landlord:
Provided that a tenant shall not be entitled to any relief under this sub-
section if, having obtained such relief once in respect of the premises, he
has again made default in the payment of rent for four months within a
period of twelve months.
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32. The Hon’ble Supreme Court in Bijay Kumar Singh v. Amit Kumar
Chamariya5 held the following:-
21. Sub-section (3) provides for consequences of non-payment of rent
i.e. striking off the defence against the delivery of the possession and to
proceed with the hearing of the suit. Such provision is materially
different from sub-sections (2-A) and (2-B) which was being examined
by this Court in B.P. Khemka [B.P. Khemka (P) Ltd. v. Birendra Kumar
Bhowmick, (1987) 2 SCC 407] . Sub-sections (2-A) and (2-B) of Section
17 of the 1956 Act confer unfettered power on the court to extend the
period of deposit of rent, which is circumscribed by the proviso to
Section 7(2) and sub-section (3) of Section 7 of the Act. Therefore, the
provisions of sub-section (2) are mandatory and required to be
scrupulously followed by the tenant, if the tenant has to avoid the
eviction on account of non-payment of arrears of rent under Section 6 of
the Act. There is an outer limit for extension of time to deposit of arrears
of rent in terms of the proviso to sub-section (2) of Section 7 of the Act.
The consequences flowing from non-deposit of rent are contemplated
under sub-section (3) of Section 7 of the Act. Therefore, if the tenant fails
to deposit admitted arrears of rent within one month of receipt of
summons or within one month of appearance without summons and
also fails to make an application for determination of the disputed
amount of rate of rent and the period of arrears and the subsequent
non-payment on determining of the arrears of rent, will entail the
eviction of the tenant. Section 7 of the Act provides for a complete
mechanism for avoiding eviction on the ground of arrears of rent,
provided that the tenant takes steps as contemplated under sub-section
(2) of Section 7 of the Act and deposits the arrears of rent on
determination of the disputed amount. The deposit of rent along with an
application for determination of dispute is a precondition to avoid
eviction on the ground of non-payment of arrears of rent. In view
thereof, tenant will not be able to take recourse to Section 5 of the
5
(2019) 10 SCC 660
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Limitation Act as it is not an application alone which is required to be
filed by the tenant but the tenant has to deposit admitted arrears of
rent as well.
33. Admittedly the defendants/appellants had filed an application under
Section 17(2) of the West Bengal Premises Tenancy Act, 1956, whereupon
the Learned Trial Court, by order no. 148 dated 23.06.2006, had directed
the appellants to deposit arrear rent to the tune of ₹27,132/- in ten
instalments by 15.07.2006. Subsequently, on an application under Section
151 of the Code of Civil Procedure filed by the appellants, the Learned Trial
Court, by order no. 152 dated 07.09.2006, had modified the earlier order
and granted the appellants further opportunity to deposit a reduced
balance amount of ₹14,794/- in fourteen instalments.
34. Despite such indulgence shown by the Court, the appellants had failed to
deposit the entire sum as directed. On 11.08.2011, at the stage of final
hearing, the appellants filed a further petition under Section 151 of the
Code of Civil Procedure, submitting that they were under a bona fide
impression that the order under Section 17(2) had been duly complied
with, and that the omission of the last two instalments had come to light
only at the time of arguments. It had further been stated that the original
defendant–the predecessor-in-interest of the present appellants–had been
depositing the arrear rent prior to his demise on 16.08.2010, and that the
present appellants had not been fully aware of the status of compliance.
35. The Learned Trial Court, however, by order dated 01.09.2011, had rejected
the said application upon recording that the obligation to deposit the
arrears had arisen as early as 2007 or 2008, and that there had been no
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satisfactory explanation for the inordinate delay of nearly four years in
addressing the default. The predecessor of the appellant being their father
expired on 16.08.2010 and the arrears of rent were to have been deposited
within the year 2007 or 2008 complying the same to be paid in fourteen
installment vide order dated 23.06.2006 passed by the trial court prior to
the death of the father of the present appellants. The claim of the present
appellants to be ignorant of the dealings of their deceased father who had
been responsible for deposition the rent could not be sustained since the
father of the present appellants had been a defaulter in paying the arrears
of rent of the remaining installments which should have been exhaustively
paid within the year 2007 considerably prior to the date of his demise. The
demise of the predecessor-in-interest in 2010 could not condone the failure
to comply with orders passed years earlier, and in the absence of cogent
justification, the prayer for condonation was justifiably declined.
36. In view of the provision under Section 17(2) of the West Bengal Premises
Tenancy Act 1956 and the observations of the Hon’ble Supreme Court in
Bijay Kumar Singh v. Amit Kumar Chamariya (supra) , no further
extensions of time for depositing the remaining two installments should
have been granted after a lapse of four years in an application under
section 151 of the Code of Civil Proceedure, since the present appellants
could not be allowed to take the plea of ignorance. The default in payment
balance installments was committed much prior to the death of the father
of the appellants disregarding the Trial Courts Order.
37. In view of the above discussions, the instant Second Appeal being SA 11 of
2015 stands dismissed
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38. The decisions in Title Suit No. 302147 of 1994 and the Title Appeal No. 26
of 2012 are affirmed. The instant appeal is disposed of accordingly. Decree
to be drawn up.
39. The Trial Court Records shall be sent down to the concerned trial court
forthwith.
40. Copy of the order be sent to the Department as well as concerned trial
court for information.
(Ananya Bandyopadhyay, J.)
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