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2015 DIGILAW 273 (CAL)

Allahabad Bank v. Dalia Roy

2015-03-20

INDRAJIT CHATTERJEE, SUBHRO KAMAL MUKHERJEE

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JUDGMENT:- Indrajit Chatterjee, J. The suit was filed for eviction, recovery of possession and mesne profit on the expiry of lease. The entire ground floor measuring about 3022 sq. Ft. at premises No. 8, CIT Scheme, LTI, presently known as Nani Gopal Roy Chowdhury Avenue, Post Office Entally, Kolkata – 700 014. The father of the plaintiff No. 1, plaintiff Nos. 2 and 3 demised the suit premises by a registered deed of lease commencing from January 1, 1990 and expiring on December 31, 1998. There was a suit for eviction on the ground of forfeiture, which was registered as Title Suit No. 112 of 1983 in the Court of learned Subordinate Judge, 9th Court at Alipore. Pursuant to a compromise decree passed in the aforementioned suit, the lease was renewed for another nine years commencing from January 1, 1999 and expiring on December 31, 2007. This suit was filed on the ground of expiry of the lease due to efflux of time. The tenant is not entitled to protection under the relevant rent restrictions Act, that is, The West Bengal Premises Tenancy Act, 1977. A notice was issued by the learned Advocate for the plaintiffs, which was duly received by the defendant on December 12, 2007. In spite of such notice, the defendant did not vacate the suit premises. Hence, the suit was instituted for recovery of possession and for mesne profit. The defendant filed a written statement, inter alia, contending that there was talk of renewal of the lease. In spite of several negotiations, the plaintiffs, with ulterior motive, did not renew the lease. The defendant further disputed the validity and sufficiency of the notice. The trial court held that in spite of repeated demands, the original lease deed was not produced by the defendant in the court below. The learned Judge found that as the lease rent of the premises was more than Rs.10,000/- and as the demised property was let out for non-residential purpose and as the property situate within the jurisdiction of the Kolkata Municipal Corporation, the defendant was not entitled to protections under the West Bengal Premises Tenancy Act, 1977, and, thus, the relationship of the parties was governed by the Transfer of Property Act, 1882. The learned Judge found that, in view of the aforementioned finding, a notice to suit was not necessary, but a notice to quit has been issued terminating the tenancy and asking the defendant to deliver possession of the demised premises. The learned Judge found that the notice was valid, lawful and it was duly served on the defendant. The learned Judge found that the lease admittedly expired by efflux of time. The plaintiffs were entitled to a decree for eviction and for recovery of mesne profit. Thus, a decree for eviction was passed directing the defendant to vacate and deliver the vacant possession of the suit to the plaintiffs within three months. In default, liberty was granted to the plaintiffs to recover possession by initiating an execution case. It was ordered that the defendant would pay mesne profit from the date of the decree and the prayer for future mesne profit would be ascertained in an enquiry under Rule 12 of Order 20 of the Code of Civil Procedure. Considering the pleadings of the parties the Trial Court was pleased to frame several issues. Out of these issues two issues are very vital being issue nos. 3 and 5. The issue no. 3 relates to the answer by the Court as to whether the notice issued by the plaintiffs/ respondents was legal and valid. This issue was dealt with by the trial court very rightly. It was decided by the learned trial court that as per Clause VI A of the registered lease deed, the present appellant was entitled to get notice. It may be mentioned here that the original lease deed was not produced by the present appellant bank in spite of several reminders. The learned trial court rightly held that as per the provision of 3(f) of the West Bengal Premises Tenancy Act, 1997 the occupation of bank was not covered under the said Act of 1997 and rather it is guided by the Transfer of Property Act, 1882. Section 3(f) of the Act of 1997 runs thus: (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 Calcutta 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. Admittedly this lease was for commercial purpose and the property situates within the jurisdiction of Calcutta Municipal Corporation (now Kolkata Municipal Corporation). It is also true that the rent fixed was more than Rs. 10000/- to take the battle out of the Premises Tenancy Act. It appears from the fact which we have stated earlier that the notice to quit was duly issued and received, but still then the possession was not handed over. Thus, this Court reiterates that the notice issued was valid and legal and further that the issue before the learned Trial Court was rightly ordered to be covered under the provision of 111(a) of the Transfer of Property Act, 1882. Now this Court is to examine as to whether the lease expired by efflux of time. As per Section 111 (a) of the Transfer of Property Act “A lease of immovable property determines – by efflux of the time limited thereby: ………………………….” Thus, we reiterate that the lease of immovable property determined by efflux of time limited in that deed of lease after the period of expiry. The trial court rightly held that the lease of the suit premises had already determined by efflux of time limited thereon. Thus, the present appellant bank is a defaulter. The fact reveals that the lease deed was executed between the parties for a period of 9 years with effect from 01.01.1990 with an option for another 9 years extension after 31.12.1998. It may be mentioned here that one Title Suit No.112 of 1983 was filed by the present respondents for eviction of the bank but the said suit was settled in terms of solenama dated 05.01.1991. Thus, this Court ditto the findings of the learned trial court that the lease expired on 31.12.2007 and as such the present respondents were entitled to get a decree for ejectment against the defendant on the ground of determination of lease by efflux of time since December 31, 2007 when the compromise decree lost its force with the expiry of the stipulated time. The mesne profit was also rightly held to be entitled by the present respondents. The mesne profit was also rightly held to be entitled by the present respondents. Thus, we are of the considered opinion that there is no merit in this appeal and it must fail. The memo of appeal is properly stamped. Hence it is ordered, that the appeal is dismissed on contest. The judgment and decree passed by the learned Civil Judge (Senior Division) at Alipore within the District of South 24-Parganas passed in Title Suit No.70 of 2009 are hereby confirmed.