JUDGMENT : Subhro Kamal Mukherjee, J. This is an appeal against judgment and decree dated August 13, 2014 passed by the learned judge, Seventh Bench, City Civil Court at Calcutta in Title Suit No. 560 of 2006. The plaintiff is the appellant. 2. By the impugned decree, the learned trial judge dismissed the suit holding, inter alia, that the tenancy of the defendant was not lawfully terminated by a notice under Section 106 of the Transfer of Property Act as the notice did not expire with the expiry of the month of tenancy although it was for a longer duration than fifteen days. The learned judge, further, held that such a notice by the plaintiff was insufficient in terms of the requirements of Section 106 of the Transfer of Property Act. 3. Mr. Roy Chowdhury, learned senior advocate appearing for the plaintiff, submits that the defendant was a tenant under the plaintiff at a monthly rental of Rs. 13,230/- (Rupees thirteen thousand two hundred thirty) only. Mr. Roy Chowdhury submits that the relationship of the parties is governed under the Transfer of Property Act inasmuch as the West Bengal Premises Tenancy Act, 1997, shall not apply in relation to such tenancy as it was for commercial purpose and the rent was more than Rs. 10,000/- (Rupees ten thousand) only. 4. Mr. Roy Chowdhury submits that the notice terminating the tenancy was issued on November 18, 2005 and it was served on the defendant by registered post on November 21, 2005. He, further, submits that a copy of notice was, also, personally served on the defendant by hand on November 18, 2005 itself. Mr. Roychowdhury draws our attention to the said notice dated November 18, 2005 and submits that the tenancy was determined by such notice calling upon the defendant to quit, vacate and deliver vacant possession of the tenanted premises within thirty days from the date of receipt of such notice. Mr. Roy Chowdhury, further, submits that, in view of the amendment of the Transfer of Property Act, the learned trial judge could not hold that the notice was insufficient. 5. Mr. Arun Kumar Maity, learned advocate appearing for the respondents, submits that as the tenancy was created during the subsistence of the West Bengal Premises Tenancy Act, 1956, the relationship of the parties shall be governed under the said Act and 1997 Act has no application. 5. Mr. Arun Kumar Maity, learned advocate appearing for the respondents, submits that as the tenancy was created during the subsistence of the West Bengal Premises Tenancy Act, 1956, the relationship of the parties shall be governed under the said Act and 1997 Act has no application. He submits that the office of Milk Commissioner, West Bengal, Directorate of Dairy Development, was set up in the tenanted premises. From the said premises, Sales and Accounts Department are functioning. As the office was set up to control and supervise the entire process of milk supply to Kolkata and Greater Kolkata, the tenancy was for manufacturing purpose as the activities of the office are linked with processing and manufacturing activities. 6. Lastly, Mr. Arun Kumar Maity submits that, even after filing of the suit and even after passing of the decree, the plaintiff received rent from the defendant and, therefore, the defendant has become a monthly tenant. The conduct of the plaintiff, clearly, shows that it had accepted the defendant as a subsisting tenant. 7. Before dealing with the contentions of Mr. Maity, we record that the learned trial judge found that the tenancy would not be governed under the West Bengal Premises Tenancy Act as the suit premises has been used by the defendant as an office, that is, for non-residential purpose. It was, also, found that the rent has been for more than Rs. 10,000/- (Rupees ten thousand) only per month. 8. Section 3(f)(i) of the West Bengal Premises Tenancy Act, 1997, provides that any premises let out for non-residential purpose, which carries more than Rs.10,000/- (Rupees ten thousand) only as monthly rent in the areas included within the limits of the Kolkata Municipal Corporation or the Howrah Municipal Corporation, nothing contained in the West Bengal Premises Tenancy Act, 1997, shall apply to such premises. 9. Admittedly, the tenancy was for non-residential purpose; rent was Rs.13,230/- (Rupees thirteen thousand two hundred thirty) only. We accept the finding of the learned trial Judge that the West Bengal Premises Tenancy Act, 1997, has no application. 10. The contention of Mr. Maity is that the tenancy was for manufacturing purpose as from the suit premises, the entire process of milk supply to Kolkata and Greater Kolkata is controlled and supervised. This point was never taken in the written statement. 10. The contention of Mr. Maity is that the tenancy was for manufacturing purpose as from the suit premises, the entire process of milk supply to Kolkata and Greater Kolkata is controlled and supervised. This point was never taken in the written statement. There is no material in support of such contention that the tenancy was for manufacturing purpose. On the contrary, it is established that the Sales and Accounts Departments of the Milk Commissioner are functioning from the suit premises. We cannot permit the defendant to raise such argument for the first time in appeal that too in the absence of any material. 11. We, thus, hold that the tenancy was not for manufacturing purpose. 12. Mr. Maity, strenuously, submits that as the tenancy was created under the 1956 Act, the relationship must be governed under the said Act. There is complete answer to such submission of Mr. Maity in Section 45 of the West Bengal Premises Tenancy Act, 1997. Section 45 of the West Bengal Premises Tenancy Act, 1997, runs as under: "45. Repeal and savings." (1) The West Bengal Premises Tenancy Act, 1956 (West Ben. Act XII of 1956) (hereinafter referred to in this Chapter as the said Act), is hereby repealed. (2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending at the commencement of this Act before any court or any other authority shall be continued and disposed of in accordance with the provisions of the said Act as if the said Act had continued in force and this Act had not been passed: Provided that the provisions for appeal under the said Act shall continue in force in respect of the suit or proceeding disposed of thereunder : Provided further that for any of the purposes as aforesaid, the Controller or the Additional Controller or the Deputy Controller appointed under this Act shall be deemed to be the Rent Controller or Additional Rent Controller or Deputy Rent Controller, as the case may be, appointed under the said Act." 13. The provision does not save the repealed Act, but saves only the rights and liabilities, which have accrued under the repealed provisions. 14. The provision does not save the repealed Act, but saves only the rights and liabilities, which have accrued under the repealed provisions. 14. In view of the saving clauses in Section 45, only the proceedings pending under the 1956 Act, where suits were instituted and the proceedings are pending decision before any Court of law or any other authority, shall be continued. 15. Thus, only the suits and other proceedings pending before the commencement of the 1997 Act, were saved. The Court or any other authority cannot fall back upon the West Bengal Premises Tenancy Act, 1956, to adjudicate the claim in relation to such suits and other proceedings as those suits or proceedings were pending before the commencement of 1997 Act. 16. We, thus, reject the contentions of Mr. Maity that as the tenancy was created during the commencement of the West Bengal Premises Tenancy Act, 1956 notwithstanding the repeal of the said 1956 Act, the relationship of the parties would be governed under the provisions of 1956 Act. 17. Mr. Maity submits that the rent was accepted during the pendency of the suit and even after passing of the decree. Acceptance of rent, after the suit for ejectment is filed, is not regarded as waiver because once the matter has come to the Court, the election has become irrevocable. Waiver must be an act with a clear intention to treat lease as subsisting. Acceptance of rent during the pendency of the appeal against ejectment decree, rent receipt clearly showing that the rent was received under protest, would not give rise to the inference of intention on the part of the lessor to treat the lease subsisting. After the decree, the defendant was trespasser and the acceptance of rent was on acceptance of compensation for use and occupation unless there is definite intention to create a fresh tenancy. 18. Let us now consider whether by such conduct of the plaintiff, there has been any novation of contract. 19. Mr. Roy Chowdhury draws our attention to order No. 8 dated March 21, 2007 passed by the trial court. With express leave of the Court the occupational charges were accepted during the pendency of the suit. This appeal was filed on September 19, 2014 and the occupational charges were received on September 24, 2014 by the plaintiff expressly recording that such payments were received without prejudice. 20. With express leave of the Court the occupational charges were accepted during the pendency of the suit. This appeal was filed on September 19, 2014 and the occupational charges were received on September 24, 2014 by the plaintiff expressly recording that such payments were received without prejudice. 20. The Supreme Court of India in the case of Ganga Dutta Murarka v. Kartik Chandra Das and others reported in AIR 1961 SC 1067 held that it has been well settled that where a contractual tenancy to which the rent control legislation applied had expired by efflux of time or by determination by notice to quit and the tenant continued in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration of or determination of the contractual tenancy would not afford ground for holding that the landlord had assented to a new contractual tenancy. One of the elements necessary to constitute waiver of notice to quit has been an intention on the part of the person giving such notice, that is, the landlord, to treat the lease as subsisting. An act on the part of such person in order to amount waiver of a notice to quit must be an act, which would show such an intention. 21. In Navnitlal Chunilal v. Baburao reported in AIR 1945 Bombay 132 the High Court at Bombay held as under : "The argument of the appellant is that because the landlord accepted the amount sent as rent, although while accepting the same he stated that he was receiving it on account of compensation for use and occupation, he must in law be deemed to have accepted it as rent and, therefore, there was a waiver of the notice to quit. In my opinion, this line of argument is faulty, because it attempts to split the provision of S.113 in two parts. It is an attempt to read in S.113 the words "by acceptance of rent" as an act resulting absolutely in the waiver of the notice to quit, irrespective of the question whether there was an intention to treat the lease as subsisting or not. It is true that under illust. (a) if an amount is sent as rent and 'is received as rent,' there will be a waiver of a notice to quit. It is true that under illust. (a) if an amount is sent as rent and 'is received as rent,' there will be a waiver of a notice to quit. But the section does not provide that if an amount is sent as rent, but is received by the landlord and accepted by him not as rent but as compensation for the use and occupation, that is a receipt of rent. In each case according to the wording of S. 113, it is for the Court to determine whether the act in question, (whether it is a receipt of the amount sent as rent, or is the receipt of the amount sent without any statement at all) discloses an intention to treat the lease as subsisting. If the answer to the question is in the affirmative, then only if there is a consent, express or implied, of the tenant, there is a waiver of a notice to quit." 22. The question really is one of the intentions of the parties. Section 113 of the Transfer of Property Act clearly indicates that there should be an intention not only on the part of the lessor, but, also, on the part of the lessee. In order to determine the question of waiver of a notice to quit one of the questions to be decided in each case is whether from the conduct of the landlord, by acceptance of rent or otherwise, an intention to treat the lease as subsisting can be inferred and that would depend upon the facts and circumstances of each case. 23. From this point of view, we decide the effect of acceptance of amount by the landlord. The landlord accepted the amount from the defendant after obtaining express leave from the trial court, as recorded in the said order No. 8 dated March 21, 2007. This appeal was filed on September 19, 2014 and the occupational charges were received on September 24, 2014 by the plaintiff expressly recording that such payments were received without prejudice. 24. We hold that there has been no intention on the part of the landlord to waive the notice to quit or the landlord has never expressed any intention to treat the lease as subsisting. 25. Now, let us consider whether the learned trial judge, rightly, dismissed the suit on the ground that the notice to quit was insufficient. 24. We hold that there has been no intention on the part of the landlord to waive the notice to quit or the landlord has never expressed any intention to treat the lease as subsisting. 25. Now, let us consider whether the learned trial judge, rightly, dismissed the suit on the ground that the notice to quit was insufficient. In order to appreciate the findings of the learned trial judge, we must record pre and post amendment provisions of Section 106 of the Transfer of Property Act. Before substitution the original Section 106 stood as under: "106. Duration of certain leases in absence of written contract or local usage. " In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property". 26. The provisions of Section 106 of the Transfer of Property Act, 1882, were amended by the Transfer of Property (Amendment) Act, 2002. By such amendment, the following Section was substituted : "106. Duration of certain leases in absence of written contract or local usage. 26. The provisions of Section 106 of the Transfer of Property Act, 1882, were amended by the Transfer of Property (Amendment) Act, 2002. By such amendment, the following Section was substituted : "106. Duration of certain leases in absence of written contract or local usage. " (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property." 27. Section 3 of the Transfer of Property (Amendment) Act, 2002 contemplates that the provisions of Section 106 of the Transfer of Property Act, 1882, as amended by the said amendment Act, shall apply to all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act or all notices which have been issued before the commencement of this Act, but where no suit or proceeding has been instituted before such commencement. 28. 28. By the Transfer of Property (Amendment) Act, 2002, the words "expiring with the end of the year of the tenancy" appearing in the middle and the words "expiring with the end of the month of the tenancy" appearing at the end of the old Section 106 have been omitted. 29. It appears that the attention of the learned judge was not drawn to the amended provision of the Transfer of Property Act and as such, he was misled in dismissing the suit holding, inter alia, that the notice to quit was insufficient, as the notice did not expire with the expiry of the month of tenancy. 30. Thus, the appeal is allowed. Title Suit No. 560 of 2006 stands decreed. 31. The defendant is directed to deliver khas possession of suit premises to the plaintiff by June 30, 2015. 32. In default, liberty is granted to the plaintiff to obtain khas possession of the suit premises in execution of the decree. 33. The plaintiff, also, gets a preliminary decree for mesne profits from December 18, 2005 till delivery of khas possession of the suit premises at such rate, which shall be determined in a separate proceeding, if instituted by the plaintiff. 34. The appeal is, thus, allowed.