Judgment:
ORDER
SHEET GA33022011; CS1882011 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE MEHTA SURAYA PVT.LTD.Versus ENGINEERING EXPORT PROMOTION COUNCIL BEFORE: The Hon'ble JUSTICE SOUMEN SEN Date : 9th July, 2015.
Mr.S.Talukdar, Sr.Adv.appears with Ms.H.Chakraborty, Adv.Mr.Abhrajit Mitra, Sr.Adv., appears with Mr.S.Ghosh, Adv.The Court : This is an application filed by the plaintiff-petitioner under Chapter XIIIA of the Original Side Rules of this Hon’ble Court for eviction of the defendant from the suit premises after serving a notice under section 106 of the Transfer of Property Act.
The defendant appears to have been inducted as a tenant in respect of the suit premises by United Investment Corporation (for short “UIC”) on certain terms and conditions which, inter alia, include that the defendant shall vacate and deliver up peaceful possession of the suit premises given under the subject lease after service of due notice.
The plaintiff appears to have instituted a suit against UIC and various other parties.
Ultimately, in order to protect the interest of the sub- lessees, an order was passed by this Court on April 11, 2008 in G.A.No.1046 of 2007, G.A.No.2861 of 2000 connected with C.S.No.123 of 1989 (Mehta Suraya PVT.LTD.–versus United Investment Corporation).whereby it was observed that the decree could not be executed against the sub-lessees who, inter alia, included the defendant.
plaintiff.
The said defendant thereafter became a direct lessee under the No formal deed of lease was executed by and between the parties.
It is not in dispute that rents were being paid month by month by the defendant to the plaintiff and the said rents were accepted even after March 25, 2010 till date notwithstanding issuance of second notice to quit dated August 23, 2010.
Ms.Chakraborty, learned counsel, being led by Mr.Samit Talukdar, learned senior counsel, submits that in view of the composition of the rent payable by the defendant to the plaintiff, namely a sum of Rs.39,347/-, the relationship between the plaintiff and the defendant is governed by the provisions of the Transfer of Property Act and not the West Bengal Premises tenancy Act.
It is further submitted that the said tenancy is determinable by simply serving a notice under section 106 of the Transfer of Property Act.
Since the said tenancy is terminable by serving a notice under section 106 of the Transfer of Property Act and there is no defect in the notice inasmuch as the defendant has failed to deliver up possession of the suit premises to the plaintiff upon expiry of the period mentioned in the said notice to quit, the defendant had no right to continue with the possession of the premises in question.
Mr.Abhrajit Mitra, learned senior counsel appearing with Mr.Soumava ghosh, learned counsel, submits that there are discrepancies ins the pleading with regard to the area under occupation of the defendant.
senior counsel quit and The learned has referred to the schedule to the plaint and the notice to submits that whereas in the said two documents, the area under occupation of the defendant has been shown as 6195 sq.ft., in paragraph 39 of the affidavit in support of the summons, it is stated that the defendant is a tenant of the office space measuring about 3360 sq.ft.
Mr.Mitra has referred to the various documents disclosed in the affidavit in opposition to demonstrate that even after the issuance of the initial notice to quit which was ultimately not carried forward and a further notice to quit was issued on August 23, 2010, rents under the garb of compensation charges were received by the plaintiff and this would clearly show that the plaintiff has waived its right to institute this proceeding for eviction of the defendant.
Mr.Mitra has referred to section 113 of the Transfer of Property Act and two decisions reported in AIR1971Delhi 213 (Raj Krishen Jain versus Master Hoshiar Singh) and AIR2011Calcutta 77 (Kanoria Jute and Industries LTD.versus Saraf Agencies Pvt.Ltd.)and submits that the acceptance of the said amount, whether it is compensation charge or rent for all these periods and even after issuance of the fiRs.notice to quit, would certainly raise a triable issue that is required to be adjudicated at the final trial.
Ms.Chakraborty in reply submits that the reference to 3360 sq.ft.
in paragraph 39 of the said affidavit is an inadvertent error since in the schedule to the plaint the suit property has been carefully described inasmuch as there is no denial by the defendant that they are not occupying an area as mentioned in the schedule to the plaint.
It is further submitted that the documents evidencing receipt of payment as disclosed by the defendant would not show that such amount was received towards rent and it was only received as compensation charges which the plaintiff otherwise would be entitled to receive as compensation for wrongful occupation of the area by the defendant.
It is submitted that mere acceptance of rent would not go to show that there is a waiver.
The question of waiver is a mixed question of law and fact.
In Raj Krishen Jain v.
Master Hoshiar Singh (supra) the learned Single Judge has taken into consideration the illustrations to section 113 of the Transfer of Property Act and observed that the question in each case is whether such conduct stands by itself and gives rise to the presumption of waiver or whether such conduct is accompanied by other acts which prevents from raising the presumption of fact about the waiver of the notice to quit.
In Kanoria Jute and Industries Ltd.v.Saraf Agencies Pvt.LTD.(supra) it is held that the question of waiver of notice should be decided on the basis of a regular trial for the purpose of ascertaining the intention of the parties on consideration of all the facts and circumstances.
The acceptance of the amount whether as compensation or rent even after the issuance of the fiRs.notice to quit and the conduct of the plaintiff to accept the said amount even after the final notice to quit is a matter which, in my view, are to be decided at the trial of the suit.
by the defendant is moonshine.
It cannot be said that the defence disclosed Although the said amounts were received without prejudice, but it has to be ascertained at the trial of the suit what exactly was the intention of the plaintiff in receiving the amount.
However, considering the fact that the said defendant is in occupation of 6195 sq.ft.
on the third floor of a prime property in Kolkata, the defendant shall without prejudice to its rights and contentions pay a sum of Rs.60000/- per month as occupation charges to the plaintiff commencing from August 1, 2015 and the plaintiff shall accept the same without prejudice to its rights and contentions upon filing an affidavit of undertaking to refund the amount paid in excess of Rs.39347/- in the event ultimately the suit fails.
The plaintiff shall file the said undertaking within a week from date before the Registrar, Original Side of this Court with a copy thereof to be served upon the Advocate on Record of the defendant and in the event such affidavit of undertaking is filed, the defendant shall comply with the directions passed in this order and shall pay the monthly occupation charges at the rate of Rs.60000/- per month on and from 2015 by the 7th of each succeeding month and in default thereof, the plaintiff shall be entitled to apply for eviction of the defendant from the suit premises.
However, in spite of giving the affidavit of undertaking, if the defendant fails to pay the aforesaid sum to the plaintiff by the 7th of each succeeding month commencing from August 2015, the plaintiff shall be entitled to a decree for eviction against the defendant without requiring the plaintiff to apply afresh.
With these directions, this application stands disposed of.
There will be no order as to costs.
(SOUMEN SEN, J.) tk