Kalyan Jyoti Sengupta ( 1 ) THE summons has been taken out by the plaintiff to write final judgement for eviction of the defendant from a portion of the premises No. 16a, Brabourne road also known as 29, Pollock Street, Kolkata - 700 001 ad measuring 8070 sq. ft. situates on the 8th floor of the demised premises (hereinafter referred to as the said premises ). The defendant has been a tenant of the said demised premises at a rent of Rs. 8070/- per month together with property tax at the rate of Rs. 282. 45p. and surcharge at the rate of Rs. 1012. 78p. per month aggregating to Rs. 9365. 23p. per month inducted by the plaintiff No. 1. The aforesaid tenancy was created by and under an agreement dated 12th december, 1972. It is a case of the plaintiff that the relationship of the landlord and tenant in respect of the demised premises shall not be governed by the west Bengal Premises Tenancy Act, 1997 thereinafter referred to as the said act) in view of the provision of Section 3 (f) as the same was let out for non-residential purpose and now it carries rent of Rs. 53,262/- per month in terms of Section 3 (f) (i) of the said Act. As such obviously this tenancy is to be governed under the provisions of the Transfer of Property Act, 1882 (hereinafter referred to the Act, 1882 ). According to the plaintiff this tenancy subsists for more than 24 years in respect of this building which was constructed in or before the year, 1984 and the same is used for commercial purpose. By operation of provision of Section 17 sub Section (4a) of the said Act the rent of the said premises is required to be determined and in fact has been determined at the aforesaid rate on and from 1 st September, 2003. As such a notice under Section 20 for increase of rent has been served. The defendant failed and neglected to pay the said rent at the enhanced rate. Besides, the defendant contrary to the agreement of tenancy unauthorizedly sublet and/or assigned a portion of the premises. In view of the aforesaid tenancy has been determined by serving a notice under Section 106 of the Transfer of Property Act. Inspite of such notice the defendant failed and neglected to vacate and quit the aforesaid premises. Besides, the defendant contrary to the agreement of tenancy unauthorizedly sublet and/or assigned a portion of the premises. In view of the aforesaid tenancy has been determined by serving a notice under Section 106 of the Transfer of Property Act. Inspite of such notice the defendant failed and neglected to vacate and quit the aforesaid premises. Apart from claiming relief of eviction the other monetary reliefs are also claimed, viz. a decree for the sum of Rs. 10,91,144. 60p. together with interim interest and interest on judgement at the rate of 10% per annum; judgement and decree for mesne profit at the rate of 17% aggregating to Rs. 1,37,190/- per month on and from 1st May, 2005 till delivery of vacant and peaceful possession of the said demised premises. ( 2 ) THE defendant has filed affidavit-in-opposition to resist this application and made out defence that this suit is not maintainable. The tenancy is governed by the aforesaid Act not by the Act of 1882. It is further stated that the question of paying rent at the enhanced rate as notified by the plaintiff does not and cannot arise in view of the written agreement of the tenancy and rent of the said demised premises would remain static and there will be no change nor revision. It is further stated that there has been no determination of the rent at the enhanced rate as required under Section 17 of the said Act. The provisions of Section 17 (4a) of the said Act has no automatic operation or applicability. ( 3 ) MR. Pratap Chatterjee learned Senior Advocate, while supporting this application, appearing for the plaintiff, submits that in this case no defence has been made out by the defendant. Admittedly this building was constructed in or before 1984 and the tenancy has been subsisting for a period of 20 years or more viz from 1976, as such the notice intending to increase rent under section 20 has been given by his client in the month of July, 2003. So the rate of rent now exceeds Rs. 10,000/ -. In view of the provision of Section 3 (f) of the said Act the protection against eviction of the defendant given under the said act is not available and this tenancy is to be governed by the Act, 1882. So the rate of rent now exceeds Rs. 10,000/ -. In view of the provision of Section 3 (f) of the said Act the protection against eviction of the defendant given under the said act is not available and this tenancy is to be governed by the Act, 1882. He further submits that determination of increase of the rent is not required to be done by the Rent Controller under provision of Section 17 of the said Act, and it is an automatic operation of law under sub section (4a) of Section 17 of the said Act, which enables the landlord to increase by serving a notice under section 20 of the said Act. In support of his submission he has relied on a decision of the learned Single Judge of this Court on this point reported in (2005)2 WBLR (Cal) 490. As such there is no defence at all for trial of the suit, so much so leave to defence shall not be granted. ( 4 ) MR. Swapan Kumar Mullick, learned Advocate, while opposing this application, contends that provision under Section 17 (4a) has no automatic operation. Rather it gives a ground and/or basis for fixation of fair rent under section 17 of the said Act by the Controller. Mere serving of notice intending to increase the rent under Section 20 of the said Act by the landlord does not, ipso facto, create a right to make a demand for payment of rent at an increased rate. This has necessarily to be done by the Controller who has exclusive jurisdiction to do so and no Civil Court or any other Forum can do it. Moreover, he contends that there has been an agreement in writing and in the agreement it provides that there shall not be any increase of rent so long the tenancy subsists. He submits further that these are seriously triable issues and as such his client has got good defence for which leave should be granted unconditionally to file written statement for trial. ( 5 ) THE point raised in this matter by the parties is that this application for summary judgement is quite interesting and according to me quite novel. He submits further that these are seriously triable issues and as such his client has got good defence for which leave should be granted unconditionally to file written statement for trial. ( 5 ) THE point raised in this matter by the parties is that this application for summary judgement is quite interesting and according to me quite novel. Before I consider and determine the issue raised, one of the important things which was not raised by any of the parties is maintainability of the suit under the provisions of the West Bengal Societies Registration Act, 1961. ( 6 ) IN the cause title I find that plaintiff No. 1 is a Society formed under the provisions of the West Bengal Societies Registration Act, 1860. The said act of 1860 is no longer in existence and in its place West Bengal Societies registration Act, 1961 has come into existence. In view of the provision of section. . . . . . . . . . . . . . . of 1961 Act the Society Registration under 1860 Act is deemed to have been registered under the new Act. Accordingly all the provisions of 1961 Act will be applicable in relation to filing and defending the suits by and on behalf of the Society. Under the provision of Section 19 of the 1961 Act suit can neither be filed nor be defended by the Society but by the Office Bearer or secretary of the Society. It is true that the plaintiff No. 2 has been described as an Honorary Secretary but I think the name of the Secretary has to be mentioned in the cause title. I, therefore, appropriately quote the provision of Section 19 of the West Bengal Societies Registration Act, 1961 : "19. Suits and proceedings by and against a society. (1) Every society may sue or may be sued in the name of the President, the Secretary, or any office-bearer authorized by the Governing Body in this behalf. ( 7 ) THE applicability of the aforesaid Section came to be considered before a learned Single Judge of this Court in the case of Khagendra Nath Sen v. University of Calcutta and Ors. , reported in AIR 1974 Cat 187 wherein this court held that suit can be maintained nor be defended the office bearer of the society. ( 7 ) THE applicability of the aforesaid Section came to be considered before a learned Single Judge of this Court in the case of Khagendra Nath Sen v. University of Calcutta and Ors. , reported in AIR 1974 Cat 187 wherein this court held that suit can be maintained nor be defended the office bearer of the society. This Division Bench judgment has been considered by the decision of the Division Bench of this Court reported in 12, AIR 1977 Cal 437 . Following above two decisions learned Single Judge of this Court in another case reported in AIR 2002 Cal. 189 held that society in its name, cannot sue nor can be sued. Mr. Chatterjee on the other hand cited two judgments reported in (1992)1 Cal hn 271 and AIR 1959 Cal. 361 and contends that the decisions cited by him were not considered by the learned Single Judge in the decision of a case reported in AIR 2002 Cal 189 . Ithink this controversy itself is triable issue. It is not proper for this Court to opine at this stage finally. ( 8 ) THEREFORE, plaintiff No. 1 cannot get a decree as, in my view this issue is required to be decided at the time of the trial of the suit and according to me this ground alone entitles the defendant to grant leave to defend the suit unconditionally. ( 9 ) IN order to decide contention and rival contention of the parties only question is to be answered whether by virtue of Section 3 (f) of the said Act this tenancy remains beyond the purview of the said Act or not. This question in its turns rest on the answer of the question whether the said demised premises carries Rs. 48,420/- as a monthly rent on and from September, 2003. According to Mr. Chatterjee by virtue of notice given under Section 20 of the said Act enhancement on and from September, 2003 under Section 17 (4a) the rate of the rent is automatically demandable by the landlord and payable by the tenant by operation of law as such this fair rent is fixed by his client. He contends that intervention of the Controller in this matter under provision of Section 17 is not required. ( 10 ) THIS contention is refuted by Mr. He contends that intervention of the Controller in this matter under provision of Section 17 is not required. ( 10 ) THIS contention is refuted by Mr. Mullick saying that in view of existence of agreement providing no increase of rate of rent, the plaintiffs demand is not tenable under law. He urges (hat at the time of Induction in the year 1976 his client deposited a sum of Rs. 10,000/- on which no interest is chargeable or payable by the plaintiff, and in consideration thereof it was agreed there will be no increase of rent. In any view of the matter this mixed controversy of fact and law has to be decided by the Rent Controller alone, not by the Civil court. ( 11 ) I tnink scope and purview of Section 3 sub clause (f) is to be read and construed, and I accordingly reproduce hereunder:"3. Exemption.- Nothing contained in this Act shall apply to- (f) any premises let out for non-residential purpose, which carries more than- (i) ten thousand rupees as monthly rent in the areas included within the limits of the Kolkata Municipal Corporation or the Howrah municipal Corporation, or (ii) five thousand rupees as monthly rent in other areas to which this act extends. Explanation - Where any premises is let out partly for residential purpose and partly for non-residential purpose, the provisions of clause (f) shall apply to such premises in proportion to respective areas". ( 12 ) THE aforesaid clause has been incorporated by way of amendment and has been given retrospective effect from 10th July, 2001. ( 13 ) THEREFORE, according to me, on 10th July, 2001 if any premises let out for non-residential purposes carries more than Rs. 10,000/- as monthly rent in the Municipal area of city of Kolkata and Howrah exemption granted under Section 3 will be applicable. Mr. Chatterjee contends that the word "carries" connotes that if the rent is already fixed or enhanced at a sum of Rs. 10,000/- or more exemption will be applicable. I am of the view that he is right in contention and in think also the intention of the legislature by the amendment, is that it ,is the rate of rent which will be reckoned, fixed not at the time of inception of tenancy, but at the time of the filing of the suit. This limit of Rs. I am of the view that he is right in contention and in think also the intention of the legislature by the amendment, is that it ,is the rate of rent which will be reckoned, fixed not at the time of inception of tenancy, but at the time of the filing of the suit. This limit of Rs. 10,000/- may gradually be appreciated in course of enhancement. ( 14 ) NOW next question is whether enhancement claimed by the plaintiff has been made in accordance with law, in other words, whether the defendant is obliged to pay rent at the enhanced rate as claimed by the plaintiff and without being determined by the Controller. ( 15 ) CHAPTER VI of the said Act provides for fixation of fair rent under section 17, which is set out hereunder:"fixation of fair rent.- (1) The Controller shall, on application made to him either by the landlord or by the tenant in the prescribed manner, fix the fair rent in respect of any premises in accordance with the provisions of this Act. (2) The fair rent for a year in respect of any premises constructed and let out after the year 1984, shall be fixed on the basis of. annual payment of any amount equal to six and three-fourth per cent per annum of the aggregate amount of the actual cost of construction and the market price of the land on the date of commencement of construction. Explanation-The cost of construction of a premises shall include the cost of water supply and sanitary and electric installation and shall be determined with due regard to the rates adopted for the purpose of estimate by the Public Works Department of the State Government for the area concerned. The Controller may allow or disallow the variation of estimates upto ten per cent, having regard to the nature of the premises : provided that while calculating the market value of the site on which the premises was constructed, the Controller shall take into account only the portion of the site on which the premises was constructed and sixty per cent of the portion of the vacant land, if any, appurtenant to such premises, the excess portion of the vacant land being treated as amenity. (3) Where a tenancy subsists for twenty years or more, in respect of the premises constructed in or before the year 1984, the fair rent shall be determined by adding to the rent as on 1. 7. 1976 not more than three times, and then deducting the increase if any, in the manner provided in schedule II, or by accepting the existing rent if such rent is more than the increased rent determined according to that Schedule. (4) Where a tenancy subsists for ten years or more but less than twenty years in respect of the premises constructed in or before the year 1984, the fair rent shall be determined by adding to the rent as on 1. 7. 1986 not more than two times, and than deducting the increase if any, in the manner provided in Schedule III, or by accepting the existing rent if such rent is more than the increased rent determined according to that schedule. (4a) Where a tenancy subsists for twenty years or more in respect of the premises constructed in or before the year 1984 and used for commercial purpose, the fair rent shall be determined by adding to the rent as on 1. 7. 1976 five times or by accepting the existing rent if such rent is more than the increased rent determined under this sub-section. (4b) Where a tenancy subsists for ten years or more but less than twenty years in respect of the premises constructed in or before the year 1984 and used for commercial purpose the fair rent shall be determined by adding to the rent as on 1. 7. 1986 three times or by accepting the existing rent if such rent is more than the increased rent determined under this sub-section. (5) Where at the commencement to this Act, any proceeding is pending for fixation of the fair rent of such premises under the West Bengal premises Tenancy Act, 1956 (West Ben. Act XII of 1956), the rent fixed under the said proceeding shall be fair rent under this Act. (5) Where at the commencement to this Act, any proceeding is pending for fixation of the fair rent of such premises under the West Bengal premises Tenancy Act, 1956 (West Ben. Act XII of 1956), the rent fixed under the said proceeding shall be fair rent under this Act. (6) Where none of the foregoing provisions of this section apply to any premises, the fair rent shall be such as would be reasonable, having regard to the situation, locality and condition of the premises and the amenities provided therein and, where there are similar or nearly similar premises in the locality, having regard also to the rent payable in respect of such premises". ( 16 ) UPON careful reading of the said Section it appears to me that whenever any situation will arise for fixation of the fair rent it has to be done under the method or procedure mentioned in Section 17 by the Controller. If there arises any occasion for determination is any dispute as to the question of fair rent the Rent Controller has exclusive jurisdiction to decide it, as under the scheme of the Act his function cannot be discharged by any other Forum because of Section 44 of the said Act which is set out hereunder:"jurisdiction of civil Courts barred in respect of certain matters save as otherwise expressly provided in the Act.-Save as otherwise provided in the Act, no civil Court shall entertain any suit or proceeding in so far as it relates to fixation of fair rent in relation to any premises to which this Act applies or to any other matter which the Controller is empowered by or under this Act to decide and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be- granted by any civil Court". ( 17 ) IT is contended that sub section (4a) has automatic operation and it confers right upon the landlord ipse dixit to increase, and to demand and/or claim. In other words, it attaches liability to the tenant to pay the rent as mentioned under Section (4a) upon calculation on demand. I think that there is a fallacy in this argument, because it is a question of determination of fair rent as mentioned in sub section (4a ). In other words, it attaches liability to the tenant to pay the rent as mentioned under Section (4a) upon calculation on demand. I think that there is a fallacy in this argument, because it is a question of determination of fair rent as mentioned in sub section (4a ). The word "fair rent" has been defined in section 2 (b) which reads as follows : "fair rent" means the rent fixed under section 17. ( 18 ) THEREFORE, in my view sub-section (4a) of Section 17 has to be read in conjunction with Section 2 (b ). According to me, sub-section (4a) is part and parcel of Section 17 and it is absurd to suggest that it should be read in isolation of other portion of the Section 17 because it is incorporated by the west Bengal Premises Tenancy (Amendment) Act, 2002 with retrospective effect from 10th July, 2001. ( 19 ) ACCORDING to me, if there is any dispute as to the rate of rent or fair rent this must necessarily be adjudicated and decided by the Rent Controller alone at the first instance. According to me, the provision of sub-section (4a)provides the basis and/or methodology for the purpose of calculation of increase of rent for determination, and/or adjudicating exercise by the Controller. On reading of all the sub-sections viz. right from sub-section (2) to sub-section (6)of Section 17 of the said Act it will appear that various basis and methods have been provided for calculating fair rent in diverse situations and cases. I am of the view that mere service of notice under Section 20 of the said Act does not, ipso facto, create right to demand-nor attaches liability to the tenant as per intention of the landlord. If, of course upon service ot notice under Section 20 of the said Act the tenant accepts the wishes of the landlord then matter ends, if not, then it has to be decided by the Controller. In fact, the learned Single judge of this Court in the decision cited above in paragraph 10 it has been observed as principle of law which is quoted hereunder:". . . . . . . . . . . . . . . . . . . . . . . . In fact, the learned Single judge of this Court in the decision cited above in paragraph 10 it has been observed as principle of law which is quoted hereunder:". . . . . . . . . . . . . . . . . . . . . . . . In such view of the matter the rent payable as on 1st july, 1976 should be the rent to be taken into account in determining fair rent and the rent would automatically be enhanced six times of the said rent payable on and from July 1, 2001, Rent Controller is an appropriate authority under the said Act to adjudicate into the disputes". ( 20 ) HOWEVER, learned Single Judge without referring to or mentioning of Section 2 (b) renders the aforesaid decision and granted relief to the petitioning creditor in winding up against a company. ( 21 ) MR. Chatterjee's contention is that by virtue of Section 18 of the said Act the fair rent initially fixed shall be automatically increased by 5% in every three years, so if provision of Section 18 read with Sections 20 and 17 (4a) are considered together, no determination is required by the Controller under the said Act is unacceptable to this Court. I am unable to accept this contention. If all these sections are read harmoniously which is the golden rule of interpretation of law, according to me, the fair rent has to be fixed by the controller if there be any dispute. If any tenancy is created on and from commencement of the said Act and the fair rent is required to be determined initially it shall be done under sub-section (2) of Section 17 of the said Act. Provision of Section 18 would be applicable only after the fair rent is fixed under the provision of Section 17 and after expiry of three years from such fixation. ( 22 ) IT is admitted that there is a tenancy agreement to govern the relationship. Therefore, whether the provision of the Act or the provision of the agreement will be applicable is also another triable issue. According to me, the decision of the learned Single Judge is rendered without discussing in detail the aforesaid legal provision. It would be wholly unsafe at this stage to write a final judgement either for eviction or otherwise relying on the aforesaid judgement. According to me, the decision of the learned Single Judge is rendered without discussing in detail the aforesaid legal provision. It would be wholly unsafe at this stage to write a final judgement either for eviction or otherwise relying on the aforesaid judgement. According to me, strongly triable issues have been raised by the defendant and it needs to be decided by filing written statement. As such, this application for final judgement under Chapter XIIA is dismissed and leave given to the defendant to file written statement unconditionally, if not done, within a period of three weeks from the date of receipt of the signed copy minutes of this order. I make it clear above findings and discussion for this application only. It will not be binding effect at the time of trial of the suit. The hearing of the suit if expedited. The defendant shall file written statement within three weeks from date. ( 23 ) THERE would be cross order for discovery within fortnight from the date of service of the copy of the written statement. There shall be inspection forthwith. Parties would be entitled to early hearing of this suit.