Kalyan Jyoti Sengupta ( 1 ) THIS summon has been taken out by the plaintiff for recording final judgment under Rule 1 (B) of Chapter XIIIA of the Original Side Rules. In this summons the plaintiff wants final relief at this interim stage in a suit for eviction from an immovable property and for a money claim. There is no dispute under the law that this mode of action is permissible under the aforesaid provision. The Plaintiff's case in short is as follows : by and under a written agreement dated 8th January, 1994 (hereinafter referred to as the said premises) the Plaintiff let out to the defendant an area of 5100 sq. ft. in the 4th floor of the premises No. 6, Lyons Range, calcutta-700 001 for a period of seven years from the aforesaid date at a monthly rent of Rs. 51,000/ -. In addition thereto the defendant agreed to pay to the plaintiff a sum of Rs. 12,750/- per month for service charges and further sum of Rs. 12,750/- as rent for the fixture thereof aggregating to Rs. 76,500/- per month with provision for increase of the same by 15% with effect from 1 st April, 1994 and thereafter by further 15% after the expiry of every two years from 1 st April, 1994. It was further agreed that the defendant would pay to the plaintiff the proportionate share of consolidated rate water tax, surcharge levied on consolidated rate and any other imposition or levy by Kolkata Municipal Corporation or under West Bengal Multistoried Building tax Act and the West Bengal Urban Land Taxation Act etc. Etc. In breach of the said agreement the defendant failed and neglected to pay the rent, service charges and rent for fixtures since May, 2001. In further breach of the agreement the defendant failed and neglected to pay proportionate share of consolidated rate, water tax surcharge levied on consolidated rate and other imposition of levy by the said Corporation and under West Bengal multistoried Building Tax Act as also West Bengal Land Taxation Act in respect of said premises. ( 2 ) IN view of the aforesaid breach the plaintiff is entitled to reenter the said premises, as such the tenancy of the said premises has been determined by forfeiture. ( 2 ) IN view of the aforesaid breach the plaintiff is entitled to reenter the said premises, as such the tenancy of the said premises has been determined by forfeiture. In any event by notice dated 30th December, 2003 the tenancy has been determined and copy of the said notice has been received On expiry of the notice period of 30 days from the date of receipt and in spite of forfeiture of the tenancy the defendant failed and neglected to vacate and handover the possession of the said premises. The defendant further failed and neglected to pay arrear of rent. ( 3 ) IT is clear from the aforesaid that in view of non-payment of rent and other outgoings the tenancy has been determined. ( 4 ) IN the affidavit in opposition the defendant has made out their defence in the said suit, which is summarized as follows : the suit is not maintainable in view of the amended provision of West bengal Premises and Tenancy Act 1997 The hearing of this suit is liable to be stayed since the issues raised in this suit directly and substantially are issues in the suit filed earlier by the defendant against the plaintiff being c S No 230 of 2003 Obviously their suit is earlier in point of time than that of the present suit. On merit it is explained as to why payment of arrear of rent for the premises and fixtures and also maintenance charges has not been made from June 2001. It is stated further that by reason of the failure of the plaintiff to supply filtered water to the tenanted premises, to maintain and repair mam electrical lines, drains sewerage and water connection, to maintain lifts and general cleanliness of the building the defendant had to spend to ensure the same in order to make the said premises habitable reasonably As such the defendant is entitled to and makes deduction of the amount spent by it. The plaintiff had wrongfully retained and/or adjusted a sum of Rs 2 cores, although the respondent had surrendered its tenancy in respect of other portion of the said premises and thereby it has become entitled to receive the said sum along with interest upon cessation of tenancy since the said amount was deposited as security deposits. The plaintiff had wrongfully retained and/or adjusted a sum of Rs 2 cores, although the respondent had surrendered its tenancy in respect of other portion of the said premises and thereby it has become entitled to receive the said sum along with interest upon cessation of tenancy since the said amount was deposited as security deposits. All this claim and contention have been made in the suit filed by the defendant. On this background relief has been sought for against the plaintiff in the suit for an injunction restraining it from making any claim demanding any payment in respect of the said premises and also for a decree for sum of Rs. 5,19,000/- ( 5 ) MR. S. N. Mukherjee led by D. Banerjee appearing on behalf of the plaintiff contend that it is an admitted position there has been failure in making payment of rent etc. in terms of the said tenancy agreement as such forfeiture of tenancy on that ground is beyond any question. Only plea of justification put forward by the defendant is failure of the plaintiff to repair, maintain essential services. According to him this plea for non-payment of rent is not tenable under the law. The plaintiff cannot suspend and remit unilaterally the amount of rent payable to the land lord on account of failure to repair or to maintain essential supplies for making the demised premises habitable reasonably. If there be any failure or on account thereof, if any expenses has been incurred by it the tenant is entitled to compensation for damages and not to adjust or remit the rent. In support of his submission he has relied on three decisions reported in AIR 1957 Cal 232 , AIR 1961 Cal 198, AIR 1975 Cal 123 . With the leave of the Court Mr. D. Banerjee leading mr. Mukherjee resumed argument and submits that even if the defence made out in the affidavit in opposition is treated to be a valid one for argument sake, the defendant has no answer to the case of the termination of tenancy by notice under the provision of Section 111 Clause (h) of the Transfer of property Act, 1882. Mukherjee resumed argument and submits that even if the defence made out in the affidavit in opposition is treated to be a valid one for argument sake, the defendant has no answer to the case of the termination of tenancy by notice under the provision of Section 111 Clause (h) of the Transfer of property Act, 1882. He further submits in connection with judgment and order dated 17th January, 2005 passed in the said suit, whereby application for stay of the suit was disposed of, that the same does not stand in the way to deal with the application for summary judgment as it is made clear therein that this application shall be heard. ( 6 ) MR. Soumen Sen learned Counsel for the defendant submits that ground for eviction is non-payment of rent for use of the premises, fixture and also other essential services. The rent was not paid because of failure to repair, maintain the building and further to maintain and ensure the essential supplies so much so to make the premises habitable. The defendant had to incur expenses to maintain the building and further to make the premisses habitable by reason of the failure of the plaintiff, as such the defendant is entitled to be reimbursed, accordingly deduction has been made under the provision of Section 106 Clause (f) of the Transfer of Property act, 1882. All these contentions have been raised in the suit filed earlier by the defendant. In the suit the plaintiff herein has filed written statement stating the above facts and contention therein and also made counter-claim as has been claimed here. Therefore, the issues involved herein are also directly and substantially issues in the earlier suit. That is why by the said order dated 17th January, 2005 it has been decided that his client's suit is to be heard first and thereafter instant suit should be heard out. This has been clearly observed in my aforesaid order under such circumstances this application cannot be heard and decided at all. ( 7 ) I have considered respective contention of the Learned Counsels, i have examined the material produced before me. This has been clearly observed in my aforesaid order under such circumstances this application cannot be heard and decided at all. ( 7 ) I have considered respective contention of the Learned Counsels, i have examined the material produced before me. There are two questions involved namely (i) whether plaintiff has been able to make out a case for recording final judgment in this application for eviction and further recovery of arrears of rent, (ii) whether the defendant has been able to make out such defence that entitle it to contest the suit. ( 8 ) I wish to consider the impact of my earlier judgment and order dated 7th January, 2004 little later as I have indicated therein that I would hear the present application. I think in order to maintain a suit for eviction on the ground of default of paying rent the plaintiff must have a legal foundation to seek such relief. Mr. Mukherjee has submitted that West Bengal Premises tenancy Act, 1996 has no application in a case of this nature. He submits that this case shall be governed by the Transfer of Property Act and as such the suit has been filed on the ground of forfeiture of lease on and also determination of tenancy by notice. Mr. Banerjee the Learned Leader of Mr. Mukherjee contends that even if the ground for defaulter fails another ground namely determination of tenancy cannot be assailed. I find in the petition and a copy of the plaint the tenancy has been created by an unregistered document for a period of more than one year. The right of the lessor under the provision of Section 108 read with Section 111 of Transfer of Property act can be asserted only when there has been lawful and valid lease. A valid lease having tenure of more than one year can be enforced if it is done by a registered instrument as provided under provision of Section 107 read with Sections 17 and 49 of the Registration Act. The provision of Section 107 of the Transfer of Property Act is set out hereunder. "section 107 : A lease of immovable property from year to year, of for any term exceeding one year, or reserving a yearly rent, can be made only be a registered instrument. The provision of Section 107 of the Transfer of Property Act is set out hereunder. "section 107 : A lease of immovable property from year to year, of for any term exceeding one year, or reserving a yearly rent, can be made only be a registered instrument. ( 9 ) I think this issue whether the suit can be maintained under the provisions of Transfer of Property Act, needs to be considered and decided in details and this can only be done at the trial of the suit, Mr. Mukherjee conceded the legal position that provision of West Bengal Premises Tenancy act has of application. Grounds for eviction on account of non-payment of rent can only be available apart from the Transfer of Property Act, in the said Tenancy Act. ( 10 ) IF these Acts are not applicable then only remedy available to the plaintiff is under the Tenancy Agreement itself. In the Tenancy Agreement i do not find any provision has been made for determining tenancy on account of default in paying rent or determining tenancy with notice. Under the law the plaintiff is entitled to recover the arrears of rent if permissible, but eviction before expiry of terms of seven years propose is not permissible. However, these are the questions required to be addressed by the Court at the time of trial of the suit not in the summary proceedings. ( 11 ) MR. Banerjee's reliance on the decisions of this Court as above in my view are not helpful in this case. The Division Bench judgment of this court reported in AIR 1961 Cal 198, Jatindra Kumar Dass v. Dhirailal Vrajlal kanakia, AIR 1975 Cal 123 as above have not ruled out the right of the lessee to deduct and remit the amount of rents as against the amount of expenses incurred by the tenant for repair of the demised building. In the said two judgments it has been observed that for deduction on account of reimbursement there must be a special agreement. The provisions of Section 106 Clause (f) will not be applicable automatically. The earlier judgment of this Court reported AIR 1957 Cal 232 dealt with in the context of the Rent act then enforced. This judgment will not be applicable in this case also. The provisions of Section 106 Clause (f) will not be applicable automatically. The earlier judgment of this Court reported AIR 1957 Cal 232 dealt with in the context of the Rent act then enforced. This judgment will not be applicable in this case also. ( 12 ) MOREOVER I find in my judgment I have recorded that the core issue in both the suit must be identical and unless the vexed question as to whether the plaintiff in suit No. 29 of 2004 is entitled to adjust a sum of Rs. 2 crore claimed in the first suit is decided the other claim of the later suit cannot be effectively decided. It is further observed by me that in the later suit the principal relief claimed is for eviction on the ground amongst other default of payment of rent and in the instant suit defendant says that they are entitled to get and adjust the same. ( 13 ) IN view of my aforesaid observation it is not possible to record final judgment on the summary proceedings. ( 14 ) I hold for the defendant has been able to make out strong case to contest the suit unconditionally. Thus I dismiss the application without any cost.