JUDGMENT : 1. The Court: This is an application under chapter 13A of the Original Side Rules of our High Court, the plaintiff claims to be the owner of a very valuable property of 17,000 Sq.Ft. more or less situated at the 6, Lyons Range,Kolkata – 700001 which is a business hub of the city. 2. The plaintiff files a suit for recovery of possession after serving a notice under Section 106 of the Transfer of Property Act. 3. That the relationship of the parties is governed by the provision of Transfer of Property Act is not disputed having regard to the composition of rent payable by the defendant to the plaintiff. The notice issued under Section 106 of the Transfer of Property Act is also not under dispute. 4. The defence raised by the defendants in this proceeding is of a prior suit instituted by the defendants claiming a declaration of ownership in respect of the suit premises. The defendant sthat after receiving a notice under Section 106 of the Transfer of Property Act, the defendant discovered certain materials and documents to show that by operation of law the said premises has vested by operation of the provisions of the Coking Coal Mines Nationalization Act, 1972. The property has vested in the defendant and in view thereof, the defendant has no obligation to pay any rent and occupation charges. The defendant says that the amount so far paid to the plaintiff was on misconception of law and fact and accordingly the plaintiff is required to refund all the monies realised on the basis of a representation made by the plaintiff that the said plaintiff is the owner of the premises in question. 5. Mr. S.K.Kapoor, learned senior Counsel appearing on behalf of the plaintiff submits that the plaint has no any spine and backbone to stand and an incredible story has been spun of an alleged discovery of a fact in the month of October, 2012 as to the legal status of the plaintiff in respect of the suit premises. 6. The pleadings according to the learned senior Counsel are so absurd and incredibly ridiculous that this Court in exercise of its power under Chapter 13A not only should allow this application for summary judgement but nip in the bud all proceedings initiated by the defendant. 6. The pleadings according to the learned senior Counsel are so absurd and incredibly ridiculous that this Court in exercise of its power under Chapter 13A not only should allow this application for summary judgement but nip in the bud all proceedings initiated by the defendant. It is submitted that the tenancy is governed by the provisions of Transfer of Property Act and in absence of anything to show that the said notice is invalid in law that the defendant cannot resist a final judgement for recovery of possession. 7. Mr. Kapoor has referred to the documents disclosed by the parties in this proceedings to establish that the plaintiff was a managing agent of Lodna Colliery and the said colliery was provided a table space at the said office premises. In fact, there are documents and records to show that the possession at the relevant time was with Allahabad Bank who was a tenant in respect of the suit premises. 8. Accordingly the contention of the defendant that at the time when the Coking Coal Mines Nationalization Act, 1972 came into force, Lodna Colliery was owner of the property in question is not only absurd but contrary to record. In support of his submission that the defendant was all throughout aware that the plaintiff is the owner of the suit premises, Mr. Kapoor has referred to the agreement dated 18th December, 1962, the letter dated 31st August, 1973 from Turner Morrison to Bharat Coking Coal Ltd., the letter of the Bharat Coking Coal Ltd. dated 15th February, 1973 and the minutes of the meeting held on 28th February, 1974. It is submitted that even after the coming into the operation of the Nationalization Act the defendant did not dispute the ownership of the plaintiff and has agreed to take on lease the property in question which clearly shows that the defendant had clearly acknowledged the ownership of the plaintiff in respect of the suit premises. 9. Mr. Pradip Kumar Dutta, learned Senior Counsel appearing on behalf of the defendant submits that the cause of action pleaded in the plaint is would be the defence in the suit filed by Turner Morrison. It is submitted that by operation of law the said property was vested in the defendants. 9. Mr. Pradip Kumar Dutta, learned Senior Counsel appearing on behalf of the defendant submits that the cause of action pleaded in the plaint is would be the defence in the suit filed by Turner Morrison. It is submitted that by operation of law the said property was vested in the defendants. The learned Senior Counsel has referred to the schedule to the Coaking Coal Mines Nationalization Act, 1972 as also regarding of some facts in the Coal Directory of 1970 published by the Office of Colliery Contorller and Chairman Coal Board, Government of India to emphasize the point that the plaintiff is not the owner of the property in question. In the suit filed by Coal India however, there is no reference of the Coal Directory of 1970 however, the reliance was placed on a schedule to the Coaking Coal Mines Nationalization Act, 1972 in order to sustain a plea of ownership in respect of the suit premises. 10. Mr. Dutta has referred to a decision of the Hon’ble Supreme Court in Bharat Coking Coal Limited versus Madanlal Agarwal reported at AIR 1997 Supreme Court 1599 and contended that the law has been clearly laid down in the said decision by reason whereof the office space which the Lodhna Colliery was occupying in the suit premises is by operation of law would vest in the defendant. 11. The schedule to the Coaking Coal Mines Nationalization Act, 1972 merely mentions that the owner of the colliery was having an office space at the premises in question. The defendant has failed to establish that any compensation has been received by the plaintiff as Lodhna Colliery in respect of the said premises by reason of alleged claim of vesting. 12. The decision does not say that in a situation where the owner of the coal mine is having an office space on hire, such office space would come within the definition of mines for the purposes of vesting under the Coaking Coal Mines Nationalization Act, 1972. Moreover, there is an inexplicable delay on the part of the defendant in explaining as to why suddenly after a notice under Section 106 of the Transfer of Property Act was served upon the defendants, suddenly the defendant became aware of their right as owner of the property in question. 13. Moreover, there is an inexplicable delay on the part of the defendant in explaining as to why suddenly after a notice under Section 106 of the Transfer of Property Act was served upon the defendants, suddenly the defendant became aware of their right as owner of the property in question. 13. The defendant appears to be in deep slumber for about twenty years until a notice under Section 106 was served upon the defendant. If one applies the tests laid down by the Hon’ble Supreme Court in Mechelec Engineers & Manufacturers versus Basic Equipment Corporation reported at AIR 1977, Supreme Court page 577 and a generous view is taken as to the defence disclosed in this petition the defendant cannot have an unconditional leave to defend this proceeding. The defence disclosed in this proceeding may not be entirely moonshine in the sense that if ultimately at the trial the defendant is able to establish its ownership which at the present point of time appears to be extremely doubtful any order of eviction at this stage would cause immense hardship. An application for summary judgment under Chapter XIII-A is decided on affidavit evidence. Since the fact of the parties are decided without a full fledged trial of the suit and solely on the basis of the affidavit evidence the court in exercising a discretion under Chapter XIII-A would not pass a final judgment unless the court conclusively arrives at a finding that the issues involved for determination does not require any oral evidence and the matter can be conveniently dealt with and decided on the basis of the affidavit evidence. Even if the court may find that the issues can be decided in a summary manner without having a rigmarole of a ritualistic long drawn trial the court may permit a party to defend the suit on terms if the court finds that there may be a very faint chance of success in the suit. Even if there was a remotest possibility of the defense to succeed at the trial the court following the observation in M/s. Mechelec that the court may protect the plaintiff by only allowing the defense to proceed if the amount claimed is paid in the court or otherwise secured is willing to give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence. I would expect at this stage the defendant to disclose some materials instead of waiting to excavate and dig materials at the trial of the suit to bring on record some documents to sustain the plea of ownership. The mere occupation of the table space in terms of the agreement executed much prior to the coming into operation of the Coal Mines Nationalization Act 1972 does not show that Lothna Colliery became the owner of the said suit premises and hence under the Nationalization Act the said property vests in the defendant no.1. It is also difficult at this stage to accept that only in 2012 the defendant had undertaken an enquiry and digging its record to discover that the plaintiff is not the owner of the property whereas the documents since 1973 till the date of filing of the suit would overwhelming establish that the plaintiff is the owner of the property and the defendant had recognized such ownership. The defendant relied upon the schedule to the Coal Mines Nationalization Act, 1972, to bring home its claim of ownership which fact was known to the defendant at the time when the said defendant was inducted as tenant. The schedule to the act of 1972 means Lothna Colliery and it is very difficult to accept at this stage the defendant no.1 was not aware of the schedule to the said Act and only became aware in 2012. Although the chance of success in the suit filed by the defendant on the basis of the available material disclose by the defendant appears to be extremely remote. However, the faintest ray of hope which is flickering and ebbing at this stage may remain alive on fulfillment of the conditions indicted in this order. Having regard to the nature of the defence disclosed I permit the defendant to defend the action upon payment of the arrears of rent from June 2012 to September, 2015 at the rate of last rent paid and for the subsequent period the defendant shall pay occupation charges at the rate of Rs.40 per sq. ft. from October 2015 till the disposal of the suit excluding Municipal Taxes which shall be paid on actuals. ft. from October 2015 till the disposal of the suit excluding Municipal Taxes which shall be paid on actuals. The plaintiff shall file an affidavit of undertaking in the suit with the Registrar, High Court Original Side that in the event the defendant no.1 succeeds in establishing its right then the plaintiff would refund the amount paid in terms of this order together with interest at the rate of 18% per annum. The arrears payment shall be made on or before 31st October, 2015. The current monthly occupation charges for the month of October 2015 shall be paid at the revised rate in terms of this order on or before 7th October, 2015 and the defendant shall continue to pay such occupational charges by seventh of each succeeding month till the disposal of the suit. The affidavit of undertaking of the plaintiff shall also be filed on or before 7th of October, 2015. In default of making payment of the arrears or the monthly occupational charges the plaintiff shall be entitled to a decree for khas and vacant possession of the property in question. This application being GA No.800 of 2013 stands disposed of. However, there shall be no order as to costs.