JUDGMENT I. P. MUKERJI, J. The defendant is in occupation of one flat and a car parking area in a building on Camac Street. It is Flat No. 9 on the 9th floor in premises No. 12A, Camac Street together with a car parking area for two cars, altogether measuring 2200 Sq. ft. The rent last paid was Rs.40,000/- per month. The property is within the jurisdiction of this court and most valuable. 2. The defendants entered this flat as a licensee of the plaintiff who was its owner. The licence agreement was dated 29th May, 2006. It was for an initial period of 11 months. It could be extended at the option of the licensee for two further periods of 11 months each. Clause E of the agreement stipulated that if it could be further extended it had to be on mutually agreed terms and conditions. There is not much of a dispute that this licence for all practical purposes was treated as a tenancy. It was extended for two terms up to 28th February, 2009. It could be extended to the maximum extent up to this date. However, Clause 17 provided that before this period the tenancy was terminable at the option of the licensor or licensee. Either party had to give one months prior notice. 3. It seems that this option was exercised in 2007. By a notice dated 17th October, 2007 the defendants were asked to vacate the flat by November of that year. 4. Thereafter, a suit was instituted by the plaintiff before the learned City Civil Court which was marked as T. S. 1101 of 2008. 5. The plaintiff withdrew from that suit on 22nd April, 2010. It is common ground that the learned Court did not grant any leave to the plaintiff to file a fresh suit. 6. The plaintiff issued another notice to the defendant on 16th June, 2010. It was said to be sent by Registered post. A copy of the notice was also affixed on the entrance to the flat in the presence of two witnesses, it was submitted. The plaintiff asked the defendant to vacate the flat. This time he gave them 15 days notice treating the defendant as a tenant, under S.106 of the Transfer of Property Act, 1882. 7. Thereafter the suit and the Chapter XIII A Application were filed. 8. The plaintiff asked the defendant to vacate the flat. This time he gave them 15 days notice treating the defendant as a tenant, under S.106 of the Transfer of Property Act, 1882. 7. Thereafter the suit and the Chapter XIII A Application were filed. 8. In a Chapter XIIIA Application, the plaintiff is entitled to a summary judgment if on the available evidence on affidavits the Court is in a position to form an opinion that the defendant has no defence to the claim of the plaintiff. If the defendant is able to bring out a prima facie defence, which is equivalent to raising a triable issue, the court grants him leave to defend. Even when the defendant is unable to disclose any defence the Court may, out of sympathy, grant him leave to defend, if it forms the opinion that at a later point of time when the suit is ready for hearing, he has a very outside chance of putting forward some defence. But in that case the Court grants leave to defend upon obtaining security. (See the case of Mechelec Engineers & Manufacturers v. Basic Equipment Corporation, reported in AIR 1977 SC 577 ). A part of the claim can be decreed on summary judgment principles. In that case, the rest of the claim is relegated to trial. 9. So the question is whether this suit or a part of it that can be so decreed. 10. It is said by the plaintiff that the suit in City Civil Court was withdrawn on the express understanding that the defendant would be treated as a tenant. So far so good. 11. But the City Civil Court while allowing the plaintiff to withdraw the suit did not give him permission to institute a fresh suit on the same cause of action. A notice was issued on 16th June, 2010 trying to terminate a monthly tenancy. 15 days notice was given. 12. Points of defence have been put forward by the defendant. The first is that this notice was never served. Secondly 15 days notice was inadequate in terms of Clause 17 of the Licence Agreement between the parties which provided for 30 days notice. Thirdly, since no leave was obtained from the Ld. City Civil Court, the suit was not maintainable. Fourthly, this suit was overvalued. 13. Mr. Mukherjee for the defendant cited the case of Md. Secondly 15 days notice was inadequate in terms of Clause 17 of the Licence Agreement between the parties which provided for 30 days notice. Thirdly, since no leave was obtained from the Ld. City Civil Court, the suit was not maintainable. Fourthly, this suit was overvalued. 13. Mr. Mukherjee for the defendant cited the case of Md. Shahariyar Baig v. R.P. Bhal, reported in 1986 (2) CHN 19 to submit that a notice under Section 106 had to be tendered at the residence of the lessee. He also cited the case of Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani, reported in AIR 1968 Bombay 387 which had gone to the extent of propounding that in certain circumstances a postman could be called into the box to testify as to how the notice was delivered. He also cited the case of K. Nasir Basha and another v. Turukkan Chatram Charities, reported in AIR 1976 Madras 120 para 20 to argue that in a stipulation for 30 days notice in the agreement a 15 days notice did not determine the tenancy. DECISION : 14. It was not disputed that there was no further extension of the leave and licence or tenancy after 28th February, 2009. 15. The Defendants have not paid any rent from December, 2007. 16. The licence or lease agreement dated 29th May, 2006 was an unregistered document. Any lease of over one years duration can be made only by a registered document. Therefore, the agreement did not affect the property according to Section 49 of the Registration Act, 1908. In other words, the document is to be treated as non est. 17. If the document is non est no rights are created by it. Therefore, it cannot be said that the defendant was a lessee up to 28th February, 2009. For all purposes the lease was from month to month. 18. If the terms of the lease or licence agreement dated 29th May, 2006 were inoperative, there was no obligation to give any notice under those terms to determine the lease or tenancy. In those circumstances, Section 106 of the Transfer of Property Act came into play. 19. In my opinion, the notice dated 16th June, 2010 was rightly given. Only 15 days notice was required to be given under that Section. Therefore, the notice determining the tenancy was valid. 20. In those circumstances, Section 106 of the Transfer of Property Act came into play. 19. In my opinion, the notice dated 16th June, 2010 was rightly given. Only 15 days notice was required to be given under that Section. Therefore, the notice determining the tenancy was valid. 20. Now, I come to the adequacy of the notice under Section 106 of the Transfer of Property Act, 1882. 21. The averments in paragraph 15 of the application are as follows: 15. The said notice has returned as not claimed endorsed on it on 19th June, 2010. The Defendants are deliberately avoiding service of notice upon them. Copies of the envelopes addressed to the Defendant Nos. 1 to 3 with the postal endorsement thereon are annexed hereto and marked with the letter I-1, I-2 and I-3 respectively. I have also affixed a copy of the said notice on the entrance of the said premises on 19th June, 2010. A copy of the photograph of the notice as affixed on the main entrance to the said premises is annexed hereto and marked with the letter J. An affidavit of two independent persons namely Sanjoy Jalan and Bimal Bothra recording affixation of the said notice on 19th June, 2010 is annexed hereto and marked with the letter K. Mr. Sanjoy Jalan is carrying on business from 7th floor of the said premises while Mr. Bimal Bothra is residing on 3rd floor of the said premises. 22. Each of the defendants was sent the notice dated 16th June, 2010 by registered post with acknowledgment due. Copies of the notices together with copies of the money receipts and acknowledgement due cards are annexed to the application. Each notice was delivered at the post office on 17th June, 2010. On each of the postal documents to record receipt there is a remark by the post office that an intimation was left at the office of the defendants on 19th June, 2010. Each of the notices was not claimed. 23. In paragraph 13 of their Affidavit-in-Opposition the defendants have challenged the authenticity of the remarks endorsed on the above documents. They denied that any notice had been served. 24. The originals of these documents were produced at the time of hearing. I am quite convinced going through the documents that they were genuinely attempted to be served upon the defendants by the post office. They denied that any notice had been served. 24. The originals of these documents were produced at the time of hearing. I am quite convinced going through the documents that they were genuinely attempted to be served upon the defendants by the post office. The defendants did not claim the documents. At any rate, I have no doubt that they were aware of the contents of these documents. 25. Under Section 27 of the General Clauses Act, 1897, if a document is required to be served by post, service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document. Unless the contrary is proved, service is deemed to have been made at the time at which the letter would be delivered in the ordinary course of post. Under Section 106 (4) of the said Act, the notice under sub-section (1) is to be sent, inter alia, by post. 26. Hence, the onus was upon the defendants to discharge the proof adduced by the plaintiff in the application, regarding service. I am afraid they have wholly failed in discharging this burden. Even if the defendants had adduced some evidence, I would have had relegated the issue to trial on evidence. 27. Hence I hold there was good service of the S. 106 notice dated 16th June, 2010. 28. When one of the modes of service prescribed by S. 106(4) of the said Act, that is, sending by post was adopted by the plaintiff, there is no scope of application of the principles in the case of Md. Shahariyar Baig v. R.P. Bhal reported in 1986 (2) CHN 19 which case is about service by hand at the address of the lessee. 29. Mr. Lall is also very right when he says, citing Section 106 (3) of the said Act, that even if it is assumed that adequate notice of 30 days under the agreement was not given, still, the suit had been filed after 30 days of deemed receipt of the notice which is adequate under the said sub-section. 30. Lastly the question of valuation. The point is worthless. The averments in the plaint clearly show trespass by the defendants from 5th July, 2010. Mesne profits are claimed on that basis which is far above Rs. 10 lacs. Furthermore arrears of rent are claimed. 30. Lastly the question of valuation. The point is worthless. The averments in the plaint clearly show trespass by the defendants from 5th July, 2010. Mesne profits are claimed on that basis which is far above Rs. 10 lacs. Furthermore arrears of rent are claimed. The total monetary claim is Rs.38,89,927/- as tabulated in paragraph 19 of the plaint. I do not think there is any overvaluation at all. So this point fails. 31. I am able to hold in a summary manner that the defendant is a trespasser. But the question of mesne profits has to stand to trial. First, for the reason that the order of the learned City Civil Court dated 22nd April, 2010 did not give any liberty to the plaintiff to file a fresh suit. 32. The City Civil Court plaint was not shown to me. In this suit the following monetary claim is made in the plaint: 19. The plaintiff is therefore, entitled to decree for a sum of Rs.38,89,927/- as per particulars mentioned hereinbelow: Outstanding rent (excluding municipal rates) Taxes @ Rs.44,640/- per month from December, 2007 to April, 2008, Rs.46,560/- per month from May, 2008 to March, 2009, Rs.48,945/- per Month from April, 2009 to February, 2010, Rs.51,260/- per month from March, 2010 to 4th July, 2010. Mesne Profit from 5th July, 2010 @ Rs.250/- per square feet per month till 15th September, 2010. Arrear of defendants share of municipal rates & taxes till 4th July, 2010. Total 20. The plaintiff is entitled to further mesne profit at the said rate of Rs.250/-per square feet per month from 16th September, 2010 till the recovery of possession of the said premises. 33. To what extent this claim can stand, after withdrawal of the City Civil Court Suit, has to stand trial. 34. Hence, I allow this Chapter XIIIA Application by passing an order in terms of prayer (a) of the Masters Summons. The balance claim of the plaintiff in the suit will stand to trial. The suit is partly decreed as above. 35. The department is directed to draw up the decree expeditiously. Urgent certified photocopy of this judgment/order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Order accordingly.