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2006 DIGILAW 495 (CAL)

INDO EUROPA TRADING CO. PVT. LTD. v. ANIL PODDAR

2006-08-09

PINAKI CHANDRA GHOSE, TAPAN KUMAR DUTT

body2006
TAPAN KUMAR DUTT, J. ( 1 ) THE plaintiffs/respondents filed a suit against the appellant and the proforma respondent (proforma defendant in the suit)praying inter alia for a declaration that the lease dated 1st September, 1969 stands determined from 1st July, 1990, a decree for eviction against the defendants and a decree against the defendant-company for mesne profit from 2nd July 1990 at the rate of 800/- per day till the date of recovery of possession and a decree for damages. ( 2 ) THE case of the plaintiffs/respondents was that on 1st September, 1969 one Satya Narayan Poddar and the plaintiff Nos. 1 and 2 granted a lease to the defendant No. I/appellant by executing an Indenture of lease in respect of a portion measuring about 850 sq. ft. of the first floor of premises No. 4, ganesh Chandra Avenue, Calcutta, according to the lease the demise was for a period of 10 years comencing from 1" June, 1969 with an option for renewal on the part of the lessee for a further period of 11 years from the expiration of the said term; that the defendant/appellant would not be entitled to transfer, assign or sublet or underlet or grant any lease or licence in respect of suit property to any person without the written consent of the lessor and the rent for the demised premises would be Rs. 750/- per month and Rs. 250/- per month would be payable by the lessee by way of service charges; the defendant/appellant exercised the said option for renewal of the lease in or about June, 1979 for a further period of 11 years. According to the plaintiffs/respondents, on or about 29th September, 1973 the defendant/ appellant sublet a portion of the demised premises measuring about 300 sq. ft. to the proforma-defendant without the written consent of the plaintiffs/ respondents and thus the said defendant caused a breach of the terms and conditions embodied in the said lease deed, on 3rd February, 1981 the defendant company filed a suit against the proforma-defendant in the Court of Small Causes of Calcutta praying for recovery of vacant possession of the portion measuring 300 sq. ft. ft. According to the plaintiff, the lease dated lst september, 1969 which was with effect from 1st June, 1969 stood determined by efflux of time on 1st July, 1990 but the defendant/appellant failed and neglected to hand order possession of the suit property to the plaintiff and hence the said suit. ( 3 ) THE defendant/appellant contested the said suit by filing a written statement and an additional written statement. The defence of the defendant/ appellant was to the effect that this Hon'ble Court has no jurisdiction to entertain the instant suit as the value of the suit has been intentionally escalated by the plaintiffs. According to the said defendant, it has not sublet any portion of the demised premises to the proforma-defendant and the proforma-defendant has been a licensee of the defendant with the consent of the landlords. The defendant/appellant took the stand that all rents have been duly collected by the Collecting Agency of the landlords but when the said agency refused to accept the rent which was tendered by the defendant/ appellant, the defendant/appellant has been depositing the rent in the office of the Rent Controller. The defendant's case is that the defendant is a tenant as defined in the West Bengal Premises Tenancy Act, 1956 and there has been no agreement dated 1st June, 1969. ( 4 ) THE said suit came up for hearing and the parties adduced evidence. The Hon'ble First Court by its judgment and decree dated 10th February, 2005 was pleased to pass a decree directing the defendant/appellant to put the plaintiff in possession of the property specified in the schedule to the lease deed dated 1st September, 1969. His Lordship was also pleased to appoint a referee for the purpose of ascertaining mesne profits payable by the defendant/appellant to the plaintiff as indicated in His Lordship's judgment. ( 5 ) THE Hon'ble First Court was pleased to frame four issues as follows: " (1) Whether there has been any renewal of the lease dated September 1, 1969 ? (2) Is the demise in the present case hit by the proviso to section 3 of the west Bengal Premises Tenancy Act? (3) Is the plaintiff entitled to any mesne profits? (2) Is the demise in the present case hit by the proviso to section 3 of the west Bengal Premises Tenancy Act? (3) Is the plaintiff entitled to any mesne profits? (4) To what relief if any is the plaintiff entitled?" ( 6 ) WITH regard to the first issue the Hon'ble First Court was pleased to hold that the defendant in its written statement did not make any specific denial of the plaintiffs allegation in the plaint that the defendant exercised their option for renewal of the lease in or about June, 1979 for a further period of 11 years. Paragraph 4 of the plaint is as follows: "4. The defendant company exercised the said option for renewal of the lease in or about June, 1979 for a further period of 11 years". 6a. The defendant in paragraph 6 of its written statement stated: "6. The defendant denies each and every allegation made in paragraph 4 of the plaint and puts the plaintiffs to the strict proof of the same. " ( 7 ) IT will thus appear that paragraph 4 of the plaint makes only one statement and it is a one-sentence-paragraph. Considering paragraph 6 of the written statement it is difficult to come to the conclusion, in the view of this Court, that there was no specific denial. The defendant has not only denied the allegation made in paragraph 4 of the plaint but has put the plaintiff to strict proof of such allegation. This shows that the defendant was very emphatic about its denial of the allegations made in paragraph 4 of the plaint. Forms of denial may vary from person to person and what has to be seen is whether such denial is specific or not. In this case the defendant has specifically denied the single allegation made in paragraph 4 of the plaint and it cannot be said that there was only a general denial of the grounds alleged by the plaintiffs. The defence stand was that there was no renewal of the lease and the plaintiffs' stand was that there was a renewal of the lease. Therefore, the plaintiff is to prove that there was a renewal of the lease and the defendant has rightly put the plaintiff to strict proof of such allegation. The defence stand was that there was no renewal of the lease and the plaintiffs' stand was that there was a renewal of the lease. Therefore, the plaintiff is to prove that there was a renewal of the lease and the defendant has rightly put the plaintiff to strict proof of such allegation. Therefore, this Court is of the view that the defendant was specific in denying the plaintiffs' allegation regarding the alleged renewal of the lease. ( 8 ) NOW, the question is whether in the instant case the lessee exercised its option for renewal of the lease for a further period of 11 years. The hon'ble First Court came to the finding that the balance of probability is certainly in favour of the plaintiff which is further supported by the fact that the defendant has continued to remain in possession and the plaintiff has allowed the defendant to remain in possession without raising any objection at any point of time. The Hon'ble First Court was pleased to consider certain questions and answers in the evidence of the parties. It appears from the evidence of the plaintiffs' witness that there was no dispute with regard to the fact that there was no request in writing by the defendant to the plaintiff with regard to any proposal for renewal of the lease and there is no existence of any registered deed of renewal (question Nos. 112 to 115 and answers thereto at pages 72-73 of the Paper book may be referred to ). There is also no evidence to prove that there was any written deed of renewal. 112 to 115 and answers thereto at pages 72-73 of the Paper book may be referred to ). There is also no evidence to prove that there was any written deed of renewal. Clause 'j' of the lease deed provides as follows: " (j) The lessors shall on a written request of the lessee made before the expiration of the terms hereby created execute and register at the lessee's cost a renewal lease for a further period of 11 years from the expiration of the term hereby reserved created at the same monthly rent as it is hereby reserved and containing the like terms, covenants, and conditions as are herein contained including the present covenant for renewal (its being the intention that the lessee shall be entitled to one option of renewal of this lease of 11 years.)" ( 9 ) THE evidence on behalf of the defendant is that the defendant's witness does not remember whether the defendant exercised its option of renewal as per the terms of deed of lease (question No. 45 and its answer at page 93 of the paper book may be referred to ). But the question which preceded the question No. 4 is question No. 44 which was put in this way: "44. Did you exercise any option of renewal as provided in the lease deed executed in the year 1969 that means, after expiry of the period of fixed term i. e. 21 years?" The answer given the defendants witness was "i do not know. " ( 10 ) OBVIOUSLY the lease deed did not contemplate any renewal of lease after the expiry of 21 years. The lease deed stipulated that the lessee will have its option to exercise its right of renewal after the expiry of the initial period of 10 years. Therefore, the question No. 44 was not in the context of facts which are relevant in the present case. The lease deed stipulated that the lessee will have its option to exercise its right of renewal after the expiry of the initial period of 10 years. Therefore, the question No. 44 was not in the context of facts which are relevant in the present case. However, even if it is assumed that the defendant's witness stated in evidence that he does not remember whether the defendant exercised its option of renewal as per the terms of the lease deed or not, the question would still remain as to what would be the effect where the lease deed stipulates a written deed of renewal which has to be registered but there is no such written deed of renewal executed by the parties and, obviously, there is no registration, and it cannot also be said in the fact of the instant case that there was an admission on the part of the defendant/appellant that the defendant/appellant exercised the option of renewal of the lease. In fact, the consistent stand of the defendant/appellant was that there was no renewal of the lease. The plaintiff has not also been able to prove by its own evidence that there was any verbal request by the defendant to the plaintiffs for renewal of the lease. It is difficult to appreciate as to how the fact that the defendant's witness did not remember whether or not there was any request for renewal and/or exercise of the option of renewal can help the plaintiffs in establishing their own case, particularly, since the lease deed has prescribed particular manner in which the lease could be renewed. The fact that the defendant continued to remain in possession and the plaintiffs allowed the defendant to remain in possession cannot mean that there was any valid renewal of the original lease. There may be more than one reason for which a tenant may continue in possession of the property after the expiry of the original lease. In view of the discussions above, this Court has to hold that the plaintiffs' allegation of renewal of lease was not proved. ( 11 ) THE learned Advocate for the appellant submitted that the status of the appellant has always been that of a tenant under the provisions of the west Bengal Premises Tenancy Act, 1956 and not that of a lessee under the transfer of Property Act, 1882. ( 11 ) THE learned Advocate for the appellant submitted that the status of the appellant has always been that of a tenant under the provisions of the west Bengal Premises Tenancy Act, 1956 and not that of a lessee under the transfer of Property Act, 1882. The said learned Advocate submitted that the subject lease was for a period of 10 years, that is from 01. 06. 1969 to 01. 06. 1979, and that such lease was governed by the said Act of 1956 and the status of the appellant was that of a tenant in view of the provisions of section 3 of the said Act of 1956. There is no dispute with regard to the fact that after the expiry of 10 years the appellant continued to occupy the suit premises upon payment of rent. According to the appellants' learned Advocate the appellant could not be evicted without following the provisions of section 13 of the said Act of 1956 and the protection which the appellant was entitled to under the said Act of 1956 could not be rendered nugatory by virtue of the renewal clause contained in the lease deed. Payment of rent by the appellant has been made to the plaintiffs which have been accepted by the plaintiffs till sometime in the year 1986-87. After which, rents have been deposited with the Rent Controller's office. Reference may be made to questions 14 and 15 of evidence of the defendant's witness at page 87 of the paper book. ( 12 ) THE learned Advocate for the defendant/appellant relied upon a decision reported in 1979 (2) CLJ 144 (Santosh Kumar Chatterjee vs. Santosh Roy chowdhury and Ors. and also section 2 (h) of the said Act of 1956. In the reported case, on October 17,1958 the plaintiffs' predecessor executed a lease for 10 years residential purposes and on May 9, 1969 the plaintiffs instituted a suit for recovery of possession against the defendants. This hon'ble Court held in the said reported case that the defendant, in the facts of that case became, on the expiry of the term of lease on October 17, 1968, a monthly tenant from October 18, 1968 and such tenancy could be determined subject to the provisions of section 13 of the Act of 1956. ( 13 ) THE plaintiffs' witness in answer to question Nos. ( 13 ) THE plaintiffs' witness in answer to question Nos. 60, 61 and 62 at page 59 of the paper book stated that the lease was renewed for the period of 11 years and renewal period came to an end on 01. 07. 1990 and also that after 01. 07. 1990 there was no further renewal. Now, if the said 11 years comes to an end on 01. 07. 1990 then the renewal period must have started on or about 01. 07. 1979. But it appears from records that the initial period of 10 years expired on 01. 06. 1979. Therefore, during this interregnum of about one month there was no lease subsisting since the 10 years periods started from 01. 06. 1969. The Hon'ble First Court also proceeded on the basis that the plaintiffs' witness No. 1 deposed that on July 1, 1979 the defendants exercised their option for renewal of the lease for 11 years (page 110 of the paper book ). The learned Advocate for the appellant submitted that the renewal of a lease is only possible if there is a subsisting lease and the option of renewal has to be exercised during the subsistence of the lease although the period of renewal may commence from the expiry of the initial lease. In the instant case even the allegation of renewal was not that the renewal was made during the subsistence of the initial lease of 10 years. ( 14 ) THE appellant's learned Advocate submitted that in view of section 107 of the Transfer of Property Act, sections 17 (1) and 49 of the Registration act renewal of the lease by verbal agreement is not permissible and even if it is assumed for the sake of argument that there was a verbal renewal of the lease then in that event it has to be said that such renewal was void because of non-registration. Reference was made to the decision reported at AIR 2000 Supreme Court 3523 (Anthony vs. K. C. Ittoop and Sons and ors. ). Paragraphs 8, 9, 10 and 16 are quoted below: "8. The lease deed relied on by the plaintiff was intended to the operative for a period of five years. It is an unregistered instrument. Hence, such an instrument cannot create a lease on account of three-pronged statutory inhibitions. ). Paragraphs 8, 9, 10 and 16 are quoted below: "8. The lease deed relied on by the plaintiff was intended to the operative for a period of five years. It is an unregistered instrument. Hence, such an instrument cannot create a lease on account of three-pronged statutory inhibitions. The first interdict is contained in the first paragraph of section 107 of the Transfer of Property Act, 1882 (for short the 'tp Act') which reads thus: "a lease of immovable property from year to year, or for any term exceeding one year, or reserving an yearly rent, can be made only by a registered instrument". "9. The second inihibtion can be discerned from section 17 (1) of the registration Act, 1908 and it reads thus (only the material portion): 'documents of which registration is compulsory.- (i) The following documents shall be registered if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1877, or this Act came or comes into force, namely: (d) leases of immovable property from year to year, or for an term exceeding one year, or reserving a yearly rent. " "10. The third interdict is contained in section 49 of the Registration Act which speaks about the fatal consequence of non-compliance of section 17 thereof. Section 49 reads thus: "49. Effect of non-registration of documents required to be registered.- No document required by section 17 (or by any provision of the TP Act, 1882), to be registered shall - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered : provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument. " no endeavour was made by the Counsel to obviate the said interdict with the help of the exemptions contained in the proviso. 16. Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non-registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted. " ( 15 ) REFERENCE was also made to AIR 1992 Mad 190 (Hindustan Petroleum corporation Limited vs. Vumnidi Kannan ). Paragraphs 10 and 11 of the said report are quoted below: "10. There is another contention, which, though not vehemently argued, yet has been expressed by the learned senior Counsel appearing for the defendant and that is, the renewal of the lease had come into existence and force by the exercise of opinion for renewal by the defendant and hence the suit laid before the lapse of the period of the renewed lease was incompetent. With regard to the exercise of option for renewal, we can construe Ex. A. 4 as amounting to exercise of the option, dropping the addition of any new clause, as suggested in Ex. A. 2. However, Mr. V. Krishnan, learned Counsel for the plaintiff, would submit that the set of expressions 'please treat our request as withdrawn' occurring in Ex. A. 4 would mean the withdrawal of the very exercise of option for renewal. Strain we may, yet we are not able to fall in line with this thinking of the learned Counsel for the plaintiff. It is only with reference to the new clause suggested in Ex. A. 2 the request of the defendant has been withdrawn and nothing more. Then the learned Counsel for the plaintiff would submit that the expressions 'we have also exercised our option for renewal of the lease', are in the past-tense, and would not amount to exercise of option by Ex. A. 4 itself. A. 2 the request of the defendant has been withdrawn and nothing more. Then the learned Counsel for the plaintiff would submit that the expressions 'we have also exercised our option for renewal of the lease', are in the past-tense, and would not amount to exercise of option by Ex. A. 4 itself. A harmonious reading of the document along with the preceding correspondence leaves no room, for ambiguity in our mind, that by Ex. A. 4, there had been a valid exercise of option for renewal. But, a bare exercise of option for renewal could not be of any avail to the defendant, because the law is well-settled that a covenant for renewal contained in a lease does not ipso facto extend the tenure or term of the lease, but only entitles the lessee to obtain a fresh lease. If there is a clause for renewal in the original lease, and that clause has been taken advantage of and any option pursuant thereto has been properly exercised it only gives a lever for the lessee to obtain a new lease in accordance with and in due satisfaction of the law governing the making of leases. If to the renewed lease, the requirements of the first part of section 107 of the Transfer of Property Act are attracted as obviously are in the present case, no valid lease would come into existence unless the said requirements are satisfied. So far as present case is concerned, even if the defendant is stated to have exercised its option for renewal, which position we have accepted, it has not improved the lot of the defendant to say that there had been a renewed lease, which had enured in its favour, becau se admittedly the requirements of section 107 of the Transfer of Property Act were not satisfied. The proposition of law has been clearly recapitulated by Ismail, J. , as the then was, after tracing the authorities on the subject, in R. M. Mehta vs. Hindustan Photo Films manufacturing Company, 1976 (1) MIJ 115 : AIR 1976 Mad 194 , a decision cited by Mr. The proposition of law has been clearly recapitulated by Ismail, J. , as the then was, after tracing the authorities on the subject, in R. M. Mehta vs. Hindustan Photo Films manufacturing Company, 1976 (1) MIJ 115 : AIR 1976 Mad 194 , a decision cited by Mr. V. Krishnan, learned Counsel for the plaintiff - in the following terms: "the result, is, once the option is exercised either by the lessor or by the lessee a valid lease as such does not come into existence unless a registered document is executed, if the renewal lease in question satisfies the requirements of section 107 of the Transfer of Property Act. After all, the option conferred either on the lessee or on the lessor is more or less in the nature of a pre-emption and neither the conferment of such option itself nor the exercise thereof automatically or of its own force brings into existence a new lease irrespective of other statutory provisions regarding the form, procedure or the modalities by which alone such a lease can be brought into existence. Therefore, looked at from any point of view, I am of the opinion that once a renewed lease comes within the scope of section 107 of the Transfer of Property Act, such a lease can be made only by a registered instrument. I am emphasising that notwithstanding the option conferred on the lessor or the lessee, in the light of the judgment of the Federal Court referred to above, it is a new lease that comes into existence as a result of the exercise of the option for renewal and that too by the bilateral acts of the parties and consequently the new lease is made within the scope of the expression occurring in section 107 of the Transfer of Property Act and therefore it has to be only by a registered instrument. In this case, admittedly the renewed lease was for a period of three years and if it has not been a renewal lease, the initial lease itself, there was no dispute that it required registration. Simply because it happened to be a renewed lease, it does not follow that no registered document was necessary to bring into existence such a lease. Simply because it happened to be a renewed lease, it does not follow that no registered document was necessary to bring into existence such a lease. In this particular case, the appellants instituted the suit only on the basis of a valid renewed lease for a period three years and the respondent herein having committed a breach of the contract by surrendering possession or terminating that lease prior to the expiration of the period prescribed thereunder. Once I hold that such a lease should have been made only by a registered instrument and there being no registered instrument, there was no valid lease for a period of three years, the appellants were not entitled to institute the suit for recovery of the amounts in question as damages for breach of the contract alleged to have been committed by the respondent herein. " 11. In Delhi Development Authority vs. Durga Chand, AIR 1973 SC 2609 , which again is a decision, relied on by Mr. V. Krishnan, learned Counsel for the plaintiff, there are observations as follows indicating that the renewal of a lease is really a fresh lease : "a renewal of a lease is really the grant of a fresh lease is called a 'renewal' simply because it postulates the existence on a prior lease which generally provided for renewals as of right. In all other respects, it is really a fresh lease. In the present case, as we could see from the correspondence, the parties were at logger heads even with regard to terms of the lease to be renewed and no document of fresh lease as per the requirements of section 107 of the Transfer of Property Act had come into existence to bring about a renewal lease valid in the eye of law. Hence, we do not think that defendant through his learned Counsel successfully put forth a plea that there had been a renewed lease, and hence the suit for ejectment was not competently laid. " ( 16 ) IT appears from the reading of the said reported decisions that for the purpose of having a valid renewal of the lease for 11 years, considering the facts of the instant case, there ought to have been a written and registered deed of renewal and without such written and registered deed of renewal there could not have been a renewal of the lease for 11 years. ( 17 ) THE learned Advocate for the appellant argued that the option of renewal could have been exercised only in accordance with the terms of the renewal clause and a fresh deed of lease was required to be executed between the parties and failing such execution of a fresh deed of lease, another lease for a fixed period could not have come into existence. He relied upon a decision reported at 2004 (1) Supreme Court Cases 1 (State of U. P. and Ors. vs. Lalji Tandon ). Paragraph 13 of the said report is quoted below: "13. In India, a lease may be in perpetuity. Neither the Transfer of property Act nor the general law abhors a lease in perpetuity. (Mulla on the Transfer of Property Act, 9th Edn. , 1999, p. 1011.) Where a covenant for renewal exists, its exercise is, of course a unilateral act of the lessee, and the consent of the lessor is unnecessary. (Baker vs. Mcrckcl, also mulla, ibid, p. 1204.) Where the principal lease executed between the parties containing a covenant for renewal, is renewed in accordance with the said covenant, whether the renewed lease shall also contain similar clause for renewal depends on the facts and circumstances of each case, regard being had to the intention of the parties as displayed in the original covenant for renewal and the surrounding circumstances. There is a difference between extension of lease in accordance with the covenant in that regard contained in the principal lease and renewal of lease, again in accordance the covenant for renewal contained in the original lease. In the case of extension it is not necessary to have a fresh deed of lease executed, as the extension of lease for the term agreed upon shall be a necessary consequence of the clause for extension. However, option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised, a fresh deed of lease shall have to be executed between the parties. Failing the execution. of a fresh deed of lease, another lease for a fixed term shall not come into existence though the principal lease in spite of the expiry of the term thereof may continue by holding over for year by year or month by months, as the may be. Failing the execution. of a fresh deed of lease, another lease for a fixed term shall not come into existence though the principal lease in spite of the expiry of the term thereof may continue by holding over for year by year or month by months, as the may be. " ( 18 ) IT appears from the reading of the said paragraph that Hon'ble Supreme court was pleased to make a distinction between the extension of lease and renewal of lease. The Hon'ble Apex Court was pleased to observe that failing the execution of a fresh deed of lease; another lease for a fixed term shall not come into existence though the principal lease in spite of the expiry of the term thereof may continue by holding over for year by year or month by month, as the case may be. The Hon'ble Apex Court was further pleased to observe that the option for renewal consistently with the covenant for renewal has to be exercised consistently with the terms thereof and, if exercised, a fresh deed of lease shall have to be executed between the parties. ( 19 ) THE appellant's learned Advocate submitted that even if there was a renewal of lease, such renewal was void and the appellant remained in occupation of the suit premises upon payment of rent and the appellant was a statutory tenant under the provisions of the said Act of 1956. Reference was made to AIR 1980 Supreme Court 226 (Biswabani Pvt. Ltd. vs. Santosh kumar Dutta and Ors. ). Paragraph 16 of the said report is quoted below: "16. In this case it is unquestionably established that at the commencement of the lease which turns out to be void, i. e. on 1st March, 1955 appellant was a tenant of the premises and that on its application standard rent in respect of the demised premises was determined and the same was accepted as the rent to be paid under the second lease. Payment has in fact been made and it would be twisting the language to hold that the payment was not made as rent but under the terms of the second lease. In view of the statutory enactment of the equitable principle of part performance as found in section 53a, the equity recognised in walsh vs. Lonsdale, 1882 (21) Ch D 9, may not be attracted. In view of the statutory enactment of the equitable principle of part performance as found in section 53a, the equity recognised in walsh vs. Lonsdale, 1882 (21) Ch D 9, may not be attracted. However, it would not be correct to hold that a tenant who was in possession of the demised premises as tenant and who negotiated a fresh agreement of lease with the landlord for a period exceeding one year which, in order to be legal, must be by a registered instrument and which turns out to be void for want of registration, would alter his position from one as tenant at the commencement of such void lease and would render him a licensee continuing in possession under the terms of a lease being void and, therefore, ineffective and that he ceases to be a tenant and could be forcibly removed at the end of the period which was reserved under the void lease. Such an incomplete and ineffective attempt at creating a fresh lease would have no impact on a tenant who was in possession as tenant at the commencement of such a void lease and he would continue to be the tenant because section 53a would not be attracted as he is not put in possession in part performance of an agreement of lease not registered and that it would be unwise to hold that the payment of the standard rent fixed by the Rent Controller having jurisdiction could be by any process of construction treated as payment under such an agreement of lease. Therefore, it would appear that the appellant company was a tenant during the period 1948-53 and on expiry of the contractual tenancy on 31st August, 1953 it became a statutory tenant. A person remaining in occupation of premises let to him. after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. In other words, he acquires the status of irremovability [see Anand Niwas (Private) Ltd. Case)]. Statutory tenant being a person who enjoys the status of irremovability, would enjoy the protection of the statute until he is evicted from the premises under the enabling provisions of the statute. In other words, he acquires the status of irremovability [see Anand Niwas (Private) Ltd. Case)]. Statutory tenant being a person who enjoys the status of irremovability, would enjoy the protection of the statute until he is evicted from the premises under the enabling provisions of the statute. A statutory tenancy would, therefore, come to an end on either the surrender of premises by such a tenant or if a decree of eviction is passed against him [see Hiralal Vallabhram vs. Kastorbhai Lalbhai, 1967 (3) SCR 343 ]. As the period reserved under the first lease expired on 31st August, 1953 and thereafter the tenant continued in possession, it became a statutory tenant under the West Bengal premises Rent Control (Temporary Provisions) Act, 1950. If thereafter an ineffective attempt was made to enter into a fresh contract of tenancy the status of the appellant as tenant did not undergo any change and it continued to be the tenant of the premises and the statutory tenancy would come to an end if it surrenders possession or is evicted by due process of law. " ( 20 ) READING paragraph 16 of the said report it appears that the Hon'ble supreme Court was pleased to hold that an agreement for lease for a period exceeding one year, in order to be legal, must be by a registered instrument and it would be void for want of registration. The Hon'ble Supreme Court was further pleased to hold that if after the expiry of the period referred under the first lease, the tenant continued in possession, it became a statutory tenant under the Rent Control Act concerned and the statutory tenancy would come to an end if the tenant surrendered possession or if the tenant is evicted by due process of law. In the instant case there was no registered deed of renewal of the lease which was supposed to have been for about 11 years and thus there was no valid renewal at all and applying the principle laid down in the decision of Biswabani Private Ltd. case (supra), the defendant/appellant became a statutory tenant and was entitled to the protection under the West Bengal Premises Tenancy Act, 1956. ( 21 ) THE next submission of the learned Advocate for the appellant was that even if there had been a valid renewal of the subject lease by execution and registration of deed of renewal such renewal would have been considered as a fresh lease for a period of 11 years and the status of the appellant still would have been that of a statutory tenant. Reference was made to the decisions reported at 1973 (2) Supreme Court Cases 825 (Delhi Development authority vs. Durga Chand Kaushish ). In paragraph 7 of the said report the hon'ble Supreme Court was pleased to observe that "a renewal of a lease is really the grant of a fresh lease. It is called a "renewal" simply because it postulates the existence of a prior lease which generally provides for renewals as of right. In all other respects, it is really a fresh lease. " The next reference was made to the decision reported at 1989 Supp.- (1) Supreme court Cases 487 (Provash Chandra Dalui and Anr. vs. Biswanath Banerjee and anr.) at paragraph 14 of the said report. In the said paragraph the Hon'ble supreme Court was pleased to observed that "to extend means to enlarge, expand, lengthen, prolong to carry out furtner than its original limit. " The hon'ble Supreme Court was further pleased to observe that extension ordinarily implies the continued existence of something to be extended and when the word 'extension' is used in connection with the lease it means a prolongation of the lease. The Hon'ble Supreme Court was pleased to make a distinction between 'extension' and 'renewal' and was pleased to observe that the distinction between the said two terms is chiefly "that in the case of renewal, a new lease is required, while in the case of extension the same lease continues in force during additional period by the performance of the stipulated act. " ( 22 ) THE learned Advocate for the appellant submitted that for determining the nature and character of the tenancy of the appellant the original period of 10 years could not have been added to the subsequent period of 11 years and according to the said learned Advocate the lease on renewal has to be considered as the fresh lease and therefore even if their had been a valid renewal of the lease for a period of 11 years, which has to be considered as a fresh lease, the plaintiff could not have got a decree of ejectment under the provisions of Transfer of Property Act since fresh lease for 11 years would attract the provisions of West Bengal Premises Tenancy Act. Reference was made to the decision reported at 1991 (1) CHN 210 , Sri Sri Iswar Ganesh jiu and Ors. vs. Austin Distributors (Pvt.) Limited, at paragraph 11 of the said report the Division Bench of this Court was pleased to observe as follows: "11. We may start first with what would be the natural and grammatical meaning of the word 'renewal'. It would appear that the word 'renewal' itself suggests that it is something new, because the word 're' appears in collocation with the word 'new'. That is to say, it would mean even at first sight that it becomes new though there is a link with the past. It is, as if, the old spirit dwells a new body. If so, we would be concerned with the new body, or the new structure. It is true that there should not be any exclusive concentration on grammar, but then the ordinary and natural meaning should also not be ignored, unless a contrary meaning is conveyed by the Act itself. The Act has not amplified as to what renewal would mean. Such being the position, the natural and normal meaning should be given to the word 'renewal'. In Mozley and Whitely's Law dictonary (9th Edition) page 279 renewal of lease has been interpreted as a regrant of an expiring lease for a further term. It Stroud's Judicial dictionary, Volume-IV (4th Edition), page 2327, it is observed that renewal of a tenancy means an agreement for a fresh tenancy following on the termination of the earlier one. In Mozley and Whitely's Law dictonary (9th Edition) page 279 renewal of lease has been interpreted as a regrant of an expiring lease for a further term. It Stroud's Judicial dictionary, Volume-IV (4th Edition), page 2327, it is observed that renewal of a tenancy means an agreement for a fresh tenancy following on the termination of the earlier one. Again in Wharton's Law Lexicon (13th edition), page 738, renewal of lease has been described as a regrant of an expiring lease for a further term. These text books suggest that renewal of lease connotes regrant or fresh lease. " ( 23 ) IN paragraph 15 of the said report Their Lordships were pleased to observe as follows: "15. After analysing the ratio of the different case and on the strength of the authority of the observations of the Supreme Court in Delhi development Authority's case, we reiterate that for determining the character of the tenancy, we cannot add ten years to ten years of the original lease deed. The lease on renewal must be considered as a fresh lease for the purpose of computation of the period. If we cannot adopt the process of adding up, the subsequent lease remains a lease well within the purview of the W. B. P. T. Act. That being the position, the plaintiff cannot get any decree for ejectment, as the ground of building and rebuilding was not proved. Under the Act. no decree for ejectment can be passed, except on specified grounds. That being the position we find that the judgment of the First Appellate Court, dismissing the suit, is quite sound and must be affirmed. " ( 24 ) THE learned Advocate for the appellant submitted that the judgment and decree dated 10. 02. 2005 should be set aside and the possession of the suit property should be given back to the appellant. ( 25 ) ON the question as to whether there was any renewal of the lease dated September 1, 1969, the plaintiff/respondents' learned Advocates submission that there was only a general denial in paragraph 6 of the written statement to the allegations made in paragraph 4 in the plaint, cannot be accepted in view of the discussions akeady made above. ( 25 ) ON the question as to whether there was any renewal of the lease dated September 1, 1969, the plaintiff/respondents' learned Advocates submission that there was only a general denial in paragraph 6 of the written statement to the allegations made in paragraph 4 in the plaint, cannot be accepted in view of the discussions akeady made above. Since we are of the view that the denial by the defendant was not evasive the reference to the decision reported at CAL LT 1998 (2) (HC) 5 (Hirendra Nath Basu vs. Kshetra mohan Dutta) and 2000 (2) CAL LT 353 (HC) (Sripati Charan Mondal and Anr. vs. Oriental Insurance Company Ltd.) does not help the plaintiff respondents. With regard to the allegations made in the plaint and denial thereof in the written statement on the question of renewal of the lease as alleged by the plaintiff/respondents, we have already discussed it earlier in this judgement. In view of such discussions made above and considering the facts and circumstances of the instant case we do not find that the said reported cases can be of any assistance to the plaintiff/respondents. The said learned advocate for the respondent also referred to the decision reported at AIR 1964 Supreme Court 538 (Badat and Co. Bombay vs. East India Trading co.) and submitted that since the defendant's denial was evasive the statement made in the plaint with regard to the exercise of the option for renewal of the lease was admitted by the defendant. In view of our discussions made above we cannot accept such submission of the said learned Advocate. Thus we do not find any reason as to how the said reported case can be of any assistance to the plaintiff/respondents. ( 26 ) WITH regard to the question of exercise of the option for renewal the respondents' learned Advocate referred to AIR 1927 Cal 725, Bengal National bank, Ltd. vs. Janoki Nath Roy and Ors. ). It appears that facts of the said reported case were quite different from the facts of the instant case. A comparison of the renewal clauses in the lease deed in the two cases will make it clear that factually the instant case cannot be compared with the reported case. ). It appears that facts of the said reported case were quite different from the facts of the instant case. A comparison of the renewal clauses in the lease deed in the two cases will make it clear that factually the instant case cannot be compared with the reported case. In the instant case the lessee was required to make a written request to the lessor before the expiration of the terms created by the said lease deed and the lessor was required to execute and register at the lessee's cost a renewal lease for a further period of 11 years. In the instant case no such thing happened and it cannot be said that the lessee remained in possession under the renewal clause of the lease as a person who had exercised the option given to it by the renewal clause. Thus the said reported case cannot be any assistance to the plaintiff/respondents. The next case referred to by the respondents' said learned Advocate is the one reported at AIR 1965 Cal 55 (Lalit Mohan Dey vs. Smt. Satadalbasini Dasf ). In the said reported case Their Lordships were pleased to consider the fundamental distinction between a tenancy by "holding over" under section 116 of the transfer of Property Act by mere assent of the landlord and a tenancy or rights under a renewal clause and Their Lordships were pleased to hold that "in the first case, the tenancy, though it may continue the old possession under the old terms, would in law, be a new tenancy de hors the lease and in spite of its determination (Vide Gopal Chandra Rudra vs. Khater Karikar, 33 CWN 1207; (AIR 1930 Cal 162) and Mahadeb Ram Kahar vs. Tinkori Roy, air 1954 Cal 539 ). In other case, the tenancy or the rights in question arise under the lease itself, though under its renewal clause, by reason of the exercise of the lessee's option thereunder. In other case, the tenancy or the rights in question arise under the lease itself, though under its renewal clause, by reason of the exercise of the lessee's option thereunder. In the latter case, the holding over and continuance of possession is under the original lease, which has not expired or determined but survives in or by reason of its renewal clause, which sustains the said holding over or continuance of possession, the same being under and referable to the said case, or, for the matter of that, the original lease itself, while, in the former clause, the holding over and continuance of possession is referable to the statute (section 116 of the transfer of Property Act) and is under it cannot stand upon the original lease, which has determined and cannot support or sustain the same. The lease for the optional or further period under the renewal clause would not have been an independent lease but would have been a part and an integral part of the original lease, which, in essence, was for a fixed or firm period of twenty years and an optional or further period of six years, the latter to come into effect on exercise of the option by the tenant; or; in other words, the option of renewal, though it does not affect the term or period of the lease until the option is exercised, does affect it, once it is exercised. The holding thus under the said further lease would be a holding under the original lease, which, in effect, is a lease for the entire term, including the option period, the latter operating only on exercise of the option. In the case of holding over under section 116 of the Transfer of Property Act, however, it would have been under the 'renewed' or the new or statutory lease under the said section, distinct from and independent of the original lease, which stood determine, though, normally, the terms of the two serve, of course, the period, would, in the absence of an agreement to the contrary, be, practically, the same. The holding under the above statutory "holding over", therefore, would not be a holding under the said original lease. The holding under the above statutory "holding over", therefore, would not be a holding under the said original lease. " ( 27 ) BUT in the instant case we have already found that there was no proof that the defendant/appellant had exercised the option and also it is apparent that there is no compliance of the renewal clause of the lease deed in question. Thus the said reported case cannot help the plaintiff/ respondents. The said learned Advocate also referred to AIR 1977 Cal 226 (Syed Alt Kaiser vs. Mstt. Ayesha Begum) but again it appears that the facts are quite distinguishable from the facts of the instant case. In the said reported case the defendant exercised his option of renewal but in the instant case there was no proof of exercise of any option of renewal by the defendant. Of course, in paragraph 5 of the said reported case Their Lordships were pleased to observe that 'in our view, the subsequent period of one year for which the lessee had exercised his option in terms of the lease, Ext. l, cannot be called to be a fresh lease. It must be held that it was a continuation of the lease as originally executed. The defendant is, therefore not entitled to any protection under the West Bengal Premises Tenancy Act because such lease is outside the provisions of the said Act by virtue of section 3 (l) (b) of the Act. ( 28 ) THE next case referred to was the decision reported at 1988 CWN. 127 (Bank of India vs. Govind Devi Binani and Ors. ). It appears from a reading of the said report that there was a renewal clause in the lease deed in question in the said reported case but it is not clear as to what was the exact terms and/or the language of the renewal clause. It only appears that in the renewal clause it was proved that the option for renewal must be exercised one year before the expiry of the term of the lease (paragraph 3 of the report ). It only appears that in the renewal clause it was proved that the option for renewal must be exercised one year before the expiry of the term of the lease (paragraph 3 of the report ). It further appears that the tenant in the said reported case applied for renewal of the lease and that was accepted by the landlord but the tenant refused to register the lease and contended that it was a monthly tenant under the West Bengal Premises Tenancy Act (paragraph 12 of the report ). Thus the facts in the said reported case were quite different from the facts of the instant case and it is not known whether in the facts of the said reported case there was any specific stipulation to the effect that there has to be the execution and registration of a deed of renewal for the purpose of giving effect to the renewal clause. Thus the said reported case is of no assistance to the plaintiff/respondents. ( 29 ) REFERENCE to 1988 (II) CHN 139 (Pravin Chandra Liladhar vs. Modan mohan Jaidka and Ors.) was made by the learned Advocate for the respondents. In the said reported case there was a finding that the lessee exercised the option for renewal. It appears from the reading of the said report that no distinction was made between an "extension" of a lease and a "renewal" of a lease. In any event, factually, the instant case is different from the reported case since we have found that there was no exercise of option under the renewal clause in the instant case. ( 30 ) THE learned Advocate for the respondents also cited 1998 (II) CHN 502 (J. Thomas and Company Pvt. Ltd. and Anr. vs. Paman Kumar Tibarewala ). In the said reported case the initial lease was for 21 years with an option that the lessee could renew for a further period of 5 years. The Hon'ble division Bench was pleased to find in the said reported case that "the tender by the lessee of the rent fixed by the registered lease is all that is needed for exercise of the lessee's option in this case. " (paragraph 20 of the said report ). The Hon'ble division Bench was pleased to find in the said reported case that "the tender by the lessee of the rent fixed by the registered lease is all that is needed for exercise of the lessee's option in this case. " (paragraph 20 of the said report ). In paragraph 19 of the said report Their Lordships were pleased to observe "the law is that an option to renew a lease might be exercised by the lessee in lawful manner which might be prescribed by the parties in their agreement contained in the lease; in the absence of any prescribed mode of exercise of such option, it might be exercised in any lawful manner at all. " Therefore, the facts of the said reported case were quite different from the facts of the instant case. In the instant case, we have found that there is no proof that the option for renewal was exercised by the lessee and the particular mode of exercising the option of renewal as stipulated in the renewal clause of the lease deed was not at all followed by the parties. That apart, the original lease in the instant case was for 10 years only with the clause for termination of the lease before its expiration. Thus the said reported case cannot be of any assistance to the respondents. In the instant case it appears that there is no evidence to show that the parties intended to cause the renewal of the lease at the material time - even the plaintiffs could not prove that they had done anything, at the material time, in terms of renewal clause of the lease deed. Thus it cannot be said that there was any renewal of the original lease. ( 31 ) THE facts of the decision reported at 2000 (1) CHN 727 [mather and platt (India) Ltd. vs. J. Thomas and Company Pvt. Ltd. ] were quite different and the reported case cannot be of any assistance to the respondents. Thus it cannot be said that there was any renewal of the original lease. ( 31 ) THE facts of the decision reported at 2000 (1) CHN 727 [mather and platt (India) Ltd. vs. J. Thomas and Company Pvt. Ltd. ] were quite different and the reported case cannot be of any assistance to the respondents. In that case the lease was for about 21 years, the lessee requested the lessor for extension of the lease; the lessor was agreeable to extend the lease at the increased rate of rent but the lessee found the proposal to steep and took time for consideration; the lessee continued in possession by depositing rent at old rate with the Rent Controller and ultimately the plaintiff filed a suit for eviction. Thus the facts of the reported case were quite different. ( 32 ) IN AIR 1997 Cal 278 (Ranjit Kumar Dutta vs. Tapan Kumar Shaw and anr.), cited on behalf of the respondents, the Hon'ble Judge came to a finding that "in the instant case the lessee exercised his option and continued in possession after the expiry of the initial period of 15 years as per the renewal/ extension clause and as such his continuance would be deemed to be under the old registered deed of lease. His continuance in possession thereafter of the demised premises would not be holding over the same under section 116 of the T. P. Act and his tenancy would not be governed under the provisions of the West Bengal Premises Tenancy Act, 1956. " But in the instant case we have found that there is no proof of the allegation that the appellant continued in possession after the initial period of 10 years by exercising any option of renewal in terms of the original lease deed. Thus, the said reported case is of no assistance to the respondents. ( 33 ) WE are unable to accept the argument of the learned Advocate for the respondents that where a tenant under a lease with a renewal clause continues in possession after expiry of such lease, then in that event such continuance of possession will be deemed to be under the renewal clause under the original lease even if there is no express exercise of the option of renewal. This argument cannot be accepted because accepting such argument would frustrate the very purpose of an agreement between the parties that a party would have an option to exercise the right of renewal or not to exercise such right. That apart, such argument on behalf of the respondents cannot be accepted also on the ground that section 116 of the Transfer of property Act cannot permit one to accept such argument - question whether or not the lease has been determined has to be gone into. ( 34 ) ACCORDING to the argument advanced on behalf of the respondents the stand taken by the respondents is that the renewal of a lease is a creation of a fresh lease and the fresh lease has to be registered in accordance with law but where no such fresh lease is created in terms of the clause of renewal of the original registered lease deed no question of registering it arises and in such a case, if the lessee continues in possession in exercise of his option in accordance with the renewal clause after the original period of lease is over, then his continuance in possession should be deemed to be under the original registered deed of lease. According to the respondents' learned advocate, the further period is to be treated as part of the period of the original lease and the lease period does not remain limited to the initial period only but it breaks the limit for a further flow for another term. According to the said learned Advocate, the appellant's continuance on the demised property should be deemed to be under the original registered deed of lease and will not be governed under the provisions of the West bengal Premises Tenancy Act, 1956. We are unable to accept such contention of the said learned Advocate since, as we have already held earlier, that there is no proof that the appellant/tenant ever exercised his option of renewal in terms of the deed of lease and even according to the plaintiffs-respondents, the option was not exercised during the subsistence of the original lease. We are unable to accept such contention of the said learned Advocate since, as we have already held earlier, that there is no proof that the appellant/tenant ever exercised his option of renewal in terms of the deed of lease and even according to the plaintiffs-respondents, the option was not exercised during the subsistence of the original lease. On the other hand the very fact that the renewal clause of the lease-deed made it mandatory that the lessor will have to execute and register a lease of renewal on the written request of the lessee which was to be made before the expiration of the lease itself only shows that the intention of the parties were clear to the effect that in case of a renewal nothing was to be done verbally. Even the request by the lessee was expected to be done in writing. Thus the intention of the parties was that in case of renewal, a written and registered deed of lease had to come into existence. The facts and circumstances of the instant case clearly show that the appellant did not intend to continue in possession of the demised property after the original period of lease was over, under the terms of the original lease. In our view, the appellant continued in possession of the demised property but it was not in exercise of the option of renewal contained in the original deed of lease and it cannot be said that the lease agreement between the parties was lor a total period of 21 years. In our view, the lease for 10 years came to an end after the expiry of the period of 10 years and since the tenant went on paying the rent and the landlord went on accepting such rent even after the expiry of the period of the said 10 years for quite sometime i. e. upto 1986-1987, it cannot be said that the tenant was in wrongful occupation of the property after the expiry of the initial period of 10 years. In the facts and circumstances of the instant case it appears to us that after the expiry of the initial period of 10 years the appellant continued in possession of the demised property but it has been in the capacity of a tenant under the West bengal Premises Tenancy Act. In the facts and circumstances of the instant case it appears to us that after the expiry of the initial period of 10 years the appellant continued in possession of the demised property but it has been in the capacity of a tenant under the West bengal Premises Tenancy Act. In view of such finding we have to hold that the suit as framed and filed by the plaintiffs-respondents was not maintainable in law. Accordingly, the suit has to be dismissed. ( 35 ) IN view of the discussions and the findings made above we have to hold that the lease in question that is the original lease for 10 years was neither extended nor renewed. The occupation of the demised property by the defendant-appellant, as already held above, after the expiry of the initial period of 10 years, was in the capacity of a monthly tenant under West bengal Premises Tenancy Act. It further appears that in the deed of lease in question there is a clause for earlier determination of the lease and the right of the lessor to re-enter into the demised property before the expiry of the lease. Considering the provisions of section 3 of the said Act of 1956 and the findings which we have already made above, we hereby set aside the judgment and decree dated 10. 02. 2005 which has been challenged in the instant appeal. We allow this appeal. ( 36 ) IT appears that by an order dated 28. 03. 2005 the Hon'ble Division bench of this Court was pleased to grant stay of operation of the decree passed on 10. 02. 2005 on certain conditions to be fulfilled by the appellant. The appellant failed to comply with such conditions and ultimately the appellant has already delivered possession of the suit property to the plaintiffs-respondents. In view of the fact that this appeal has been allowed and the said judgment and decree dated 10. 02. 2005 stands set aside, the plaintiffs-respondents are now required to deliver back the possession of the suit property to the appellant. In such circumstances the appellant is hereby given the liberty to make an appropriate application before the appropriate forum for restitution of possession of the suit property. The appeal stands disposed of. There will, however, be no order as to costs. In such circumstances the appellant is hereby given the liberty to make an appropriate application before the appropriate forum for restitution of possession of the suit property. The appeal stands disposed of. There will, however, be no order as to costs. ( 37 ) URGENT xerox certified copy of this Judgment be given to the parties, if applied for, on compliance of all formalities. Pinaki Chandra Ghose, J. : I agree. Later : ( 38 ) AFTER the judgment is delivered, learned Counsel for the respondent has prayed for stay of operation of the judgment for a period of four weeks from date. The learned Counsel for the appellant has opposed such prayer. ( 39 ) CONSIDERING the circumstances of this case, there shall be stay of operation of this judgment for a period of four weeks from date. Pinaki Chandra Ghose and Tapan Kumar Dutt, JJ. : appeal disposed of.