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2011 DIGILAW 1078 (CAL)

EIC Holdings Limited v. E. I. T. A India Limited

2011-08-12

NADIRA PATHERYA

body2011
Judgment :- Patherya J. This is an application filed under Chapter XIII A of the Original Side Rules of this High Court. The case of the petitioner is that the rent paid by the defendant is above Rs.10,000/-and the notice under Section 106 of the Transfer of Property Act was issued on 26th March, 2008. Such notice was received on 27th March, 2008. To the notice issued under Section 106 of the Transfer of Property Act, a reply was given on 8th April, 2008 wherein the tenancy between the plaintiff and the defendant has been accepted. In view of Section 3(f) of the 1997 Act which has come into effect on and from 10th June, 2001 the plaintiff is entitled to initiate the instant proceeding. Besides claiming a decree of eviction, mesne profit from 12th April, 2008 till the filing of the suit has also been claimed. The defence taken by the defendant is that at the time when the tenancy was taken the rent payable was approximately Rs.3,000/-which subsequently has been enhanced. Therefore, it is the rent laws which will govern the tenancy and the notice under the Transfer of Property Act is bad. It is by subsequent enhancement that the rent has exceeded Rs.10,000/- and therefore, the tenancy is not governed by the 1997 Act. The second objection raised is with regard to non-filing of the application within 10 days of entering appearance. Both the objections are nothing but moonshine as the period of 10 days will be applicable only in cases where a written statement has been filed. In the instant case no written statement has been filed, therefore, 10 days limitation is not applicable to the facts of this case as held in 30 CWN 298 and 2004(3) CLT 271. The 1956 Act will not be applicable as held in (2008) 2 SCC 728 and (1995) 1 SCC 104 . No reasons may be recorded in the notice issued under Section 106 of the Transfer of Property Act as held in 2008 (2) CHN 270. For all the said reasons, therefore, a decree be passed against the defendant. The case of the defendant is that in 1977 East India Transport Agency a partnership firm became a monthly tenant under East India Commercial Limited. In 1983 the Transport Agency became a unit of EITA and thereafter rent was increased. For all the said reasons, therefore, a decree be passed against the defendant. The case of the defendant is that in 1977 East India Transport Agency a partnership firm became a monthly tenant under East India Commercial Limited. In 1983 the Transport Agency became a unit of EITA and thereafter rent was increased. In December 2003 the rent was Rs.3337/-and in 2003 a notice was issued for increase of rent under the 1997 Act. Such rent was increased in January, 2003 to Rs.20,022/-and month by month such rent is paid by East India Transport Agency and receipt is also issued in its name. East India Commercial merged with EIC Holdings Limited and thereafter the rent has been paid to the plaintiff by East India Transport Agency. Therefore no privity of contract exists between the plaintiff and the defendant. Since April 2008 the cheque issued by East India Transport Agency has been returned and no rent receipt issued. The notice under Section 106 of the Transfer of Property Act was at first addressed to EITA India Limited. Reply has been given to such notice. There is no denial that East India Transport Agency is a partnership firm and all the letters have been addressed to the Agency. The Agency is a juristic person and has been treated so by the landlord. As alleged by the plaintiff East India Commercial pursuant to orders of Court has merged with EIC Holding Limited, and it is pursuant to such order that EIC Holding Limited has become the landlord. Upon merger of East India Transport Agency to E.I.T.A., E.I.T.A has become the tenant. Therefore the question which will arise for consideration is when did EITA become a tenant of EIC Holding Limited. Thus a triable issue has been raised which is neither sham nor moonshine but is a good defence and even if it is a plausible defence conditional leave to defend must be given as held in 49 CWN 246 and AIR 1990 Supreme Court 2218. In view of Section 113 of the Transfer of Property Act there has been waiver of notice in view of the letter dated 24th November, 2008. For all the said reasons no order need be passed on this application. Counsel for the plaintiff in reply submits that the partnership firm was a tenant since 1977 and in 1993 became a unit of the defendant company. For all the said reasons no order need be passed on this application. Counsel for the plaintiff in reply submits that the partnership firm was a tenant since 1977 and in 1993 became a unit of the defendant company. Therefore it is the principal namely the defendant which must be sued. In paragraph 7(i) of the affidavit filed by the defendant, it is admitted that the recorded tenant received the notice dated 26th March, 2008. The reply given is also by the recorded tenant. The reply dated 6th August, 2008 is addressed by East India Transport Agency as a unit of EITA. Therefore, the Transport Agency has accepted itself as a unit of the defendant. Section 113 of the Transfer of Property Act is not applicable as the letter written was only in respect of replacement of plaintiff. From all other correspondence the Transport agency being a unit will be evident. Therefore, no triable issue has been raised and the defence sought to be raised is sham and orders be passed as sought. Having considered the submissions of the parties in 1977 one East India Transport Agency was inducted as a tenant of the plaintiff, at a rental of Rs. 3,337. The said sum over the years was enhanced and in 1997 was over Rs. 10,000/-per month, therefore the tenancy is governed by the 1997 Act and not by the 1956 Act. More so in view of the decision reported in 1995 1 SCC 104 , paragraph 53 whereof reads as follows:- “The provisions of a repealed statute cannot be relied upon after it has been repealed. But, what has been acquired under the Repealed Act cannot be disturbed. But, if any new or further step is needed to be taken under the Act, that cannot be taken even after the Act is repealed”. In view of 30 CWN 298 as no written statement has been filed this application is maintainable. The defendant in its affidavit affirmed on 12th March, 2009 has annexed the letter dated 17th December, 2008 issued by Transport Agency, as a unit of the defendant to the plaintiff. Therefore that the Transport Agency is a unit of the defendant cannot be disputed. Maybe initially the Transport Agency was the, tenant but subsequently and to be more precise in 1983 Transport Agency became a unit of the defendant. Therefore that the Transport Agency is a unit of the defendant cannot be disputed. Maybe initially the Transport Agency was the, tenant but subsequently and to be more precise in 1983 Transport Agency became a unit of the defendant. It was incumbent on the defendant to get the tenancy changed in its name and for not doing so cannot take advantage of its own wrong. The notice dated 26th March, 2008 was addressed by the plaintiff to the defendant and in the affidavit filed by the defendant on 12th March, 2009 it has been accepted that the same was received by the recorded tenant. In fact the reply on 8th April, 2008 according to the said affidavit was given by the recorded tenant and the recorded tenant in both the letters is the defendant. The notice dated 26th March, 2008 has been addressed to E.I.T.A India Limited, the defendant herein by the plaintiff’s advocate. Similarly in the reply to the said notice dated 8th April 2008 the defendant’s advocate has referred to E.I.T.A. India as “our client” and to the plaintiff as “Your client”. The relevant paragraph of the defendant’s affidavit affirmed on 12th March, 2009 is also set-out hereunder:- “After July, 2007 the bill raised by the plaintiff included an amount for service tax, education cess and secondary and higher education cess which at all material times were paid by the recorded tenant. The aforesaid position continued until March, 2008. On or about 29th March 2008 the recorded tenant received a notice dated 26th March, 2008 issued by one Sandip Dasgupta, Advocate alleging that the recorded tenant who is the addressee in such notice is a monthly tenant and by such notice, the said monthly tenancy of the recorded tenants have been purported to have been determined and the said recorded tenant have been called upon to vacate and deliver peaceful possession of the room after expiry of 15 days from the said notice. The recorded tenant through their Advocates have replied to the said notice on 8th April, 2008 denying the validity of the said notice and disputing the other contentions contained therein more particularly contending that the question of expiry of monthly tenancy by issuing of notice under Section 106 of the Transfer of Property Act did not arise as the tenancy at all material times was and still is governed by the provisions of the West Bengal Premises Tenancy Act” From a reading of the aforesaid so also the reply to the notice by E.I.T.A India which it was not required to do, in the event it would not be affected by the decree, it is evident that the defendant has accepted itself as the recorded tenant in the affidavit filed by it. In view of the aforesaid both the defence sought to be taken by the defendant is no defence in the eye of law and accordingly entitles the plaintiff to a decree in terms of prayer (a) of the Masters Summons. Mr. Amit Gupta, Advocate 1st floor Bar Library Club, is appointed Special Referee to determine the mesne profits, report in respect whereof be filed within 8 weeks from the date of entering upon reference. The Special Referee will be entitled to an initial remuneration of 1000 gms. In view of the aforesaid this application is disposed of. Accordingly decree be drawn up expeditiously. In view of the above G.A No. 267 of 2009 stands dismissed. Department, Special Referee and all parties concern to act on a Photostat signed copy of the judgment on the usual under takings. Later Prayer for stay made, is considered and refused.