GA No.3175 of 2013 CS No.257 of 2013 GA No.3021 of 2013 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE ANIRUDH JALAN -VersusBRAHMAPUTRA VALLEY FERTILIZER CORPORATION LTD.Appearance: Mr.Sabyasachi Chowdhury, Adv.Mr.Soumava Ghosh, Adv.Mr.S.E.Hooda, Adv...for the plaintiff.
Mr.Rupak Ghosh, Adv.Mr.Rajesh Upadhyay, Adv...for the defendant.
BEFORE: The Hon'ble JUSTICE SOUMEN SEN Date : 15th July, 2016.
The Court : The petitioner has filed this application under Chapter XIIIA of the Original Side Rules of this Court for eviction of the defendant from the suit premises.
The plaintiff is a present owner of the property.
Initially, the defendant was a monthly tenant under one Smt.
Jayshree Bajoria (hereinafter referred to as the “erstwhile owner”).The plaintiff purchased the said premises from the said erstwhile owner by a registered Deed of Conveyance dated 15th May, 2012.
Pursuant to such transfer, the erstwhile owner by a letter dated 16th May, 2012 informed the defendant about the said transfer and requested the defendant to attorn the tenancy of the defendant under her in favour of the plaintiff and pay the monthly rents to the plaintiff with immediate effect.
Initially, the defendant refused to attorn its tenancy in favour of the present plaintiff and did not even pay any rent in terms of the tenancy agreement with the erstwhile owner in favour of the plaintiff.
Ultimately, on 26th November, 2012, the defendant agreed to enter into a licence agreement to use the said premises till 30th April, 2013.
In response to the offer of the defendant, the plaintiff has granted the said licence in favour of the defendant on and from 26th November, 2012 till 30th April, 2013.
As the defendant did not pay any occupation charges to the plaintiff for using the said premises on and from 15th May, 2012 till 26th November, 2012 when the said licence was granted, it was agreed between the plaintiff and the defendant that the defendant would make payment of licence fee with retrospective effect from 1st June, 2012.
The defendant agreed to pay a consolidated sum of Rs.18,660/- towards licence fees and other charges which include maintenance charges, municipal taxes and commercial surcharges.
The plaintiff by a legal notice dated 23rd March, 2013 reminded the defendant that the licence granted under the said licence agreement dated 26th November, 2012 was due to expire on 30th April, 2013, and, accordingly, the defendant was called upon to hand over the said premises on and from May 1, 2013 failing which the defendant would be treated as a trespasser and appropriate proceedings would be initiated against the defendant.
In response to the aforesaid letter, the defendant by a letter dated 29th April, 2013 contended that though the defendant had entered into a licence agreement 26th on November, 2012, the defendant is also a tenant under the erstwhile owner and occupying the said premises under dual capacity as a tenant under earlier owner as well as the licensee under the plaintiff the and as such even after expiry of the licence, the defendant is entitled to occupy the premises as a tenant under the erstwhile owner.
The defendant on the aforesaid plea has refused to vacate the premises on and from 1st May, 2013.
Since the plaintiff was not willing to extend the licence dated 26th November, 2012 and as the defendant failed to make over possession of the said premises the plaintiff filed a suit for recovery of possession and mesne profit.
institution of the suit, the plaintiff has taken out After this application for summary eviction of the defendant.
In the affidavit-in-opposition, the defendant alleged that the defendant is a lawful tenant of the suit premises under the subsisting tenancy agreement dated 22nd January, 2009.
The agreement dated 26th November, 2012, relied upon and referred to by the plaintiff is vitiated by fraud as the plaintiff in collusion and conspiracy with one Ashit Kumar surreptitiously entered into an arrangement, against some extraneous consideration, in order to create the alleged agreement as leave and licence in respect of the suit premises for 11 months notwithstanding the subsistence of lawful and valid tenancy agreement between the defendant and the plaintiff.
The alleged manufactured document.
leave and licence agreement is a The plaintiff has filed a suit on 14th May, 2014 in the City Civil Court in Calcutta being Title Suit No.643 of 2014.
It was alleged that the tenancy agreement dated 22nd January, 2009 was not terminated nor was agreement or by operation of law.
brought to an end either by There was no occasion to enter into leave and licence agreement during the subsistence of the tenancy agreement accordingly there was no reason for the defendant to enter into a leave and licence agreement in respect of the suit property.
There cannot be any doubt that if a triable issue is raised, the summary procedure must give way to the suit being tried as an ordinary suit.
However, if it appears to the Court that the issues raised can be decided without any further evidence and on the basis of the materials on record the Court can dispose of the said matter without requiring the parties to wait for a trial which would involve oral and documentary evidence.
The important thing which the Court must consider in deciding an application of this nature is whether the defendant is able to make out plausible defence and such defence is likely to succeed at the trial.
Even a faint chance of success at the trial might at times persuade the Court to exercise its discretion favour of the plaintiff.
defence is hesitate patently to against passing a decree in However, where the Court finds that the absurd pronounce the and moonshine decree.
In the Court this age would of not docket explosion, in my view, it is the duty of the Court to dispose of suits in a summary way where the Court finds that there is no possibility of the defence to succeed even if it is tried as a suit.
A matter can be decided on the basis of affidavit evidence without calling for an oral testimony.
The Court has to find out whether the issue raised can by decided on the basis of affidavit evidence.
(Auroshikha Vinimay PVT.LTD.versus Kai Commercial PVT.LTD.reported at 2016 (2) CHN (Cal)
26) Mr.Sabyasachi Chowdhury, learned Counsel appearing on behalf of the petitioner submits that the application is to succeed as the respondent has contended that the respondent is a tenant in respect of provision present the of premises the tenancy West does in question Bengal not come and Premises within Bengal Premises Tenancy Act, 1997.
having Tenancy the regard Act, purview of to the 1997, the the West Mr.Chowdhury would persuade this Court to read the notice to quit as a notice under Section 106 of the Transfer of Property Act, 1882 and submits that the suit was filed after the expiry of a period of 15 days from the date that is to say, after the expiry of the period mentioned in 106(1) of the Transfer of Property Act and in view of Section 106(3) of the Transfer of Property Act, 1882, the notice may be regarded as valid.
It is further contended that although it may be argued that a suit for eviction of a licencee may not be maintainable under Chapter 13A of the Original Side Rules, but having regard to the admission of tenancy in the affidavit-in-opposition, coupled with the fact that the rent and/or licencee fees of Rs.18,600/-, paid for the use and occupation of the said premises is exempted from the provision of the West Bengal Premises Tenancy Act, 1997, the provision of Transfer of Property Act shall apply.
Mr.Rupak Ghosh, petitioner learned Counsel appearing on behalf of the submits that irrespective of the defence taken in the affidavitin-opposition filed by the defendant, in this proceeding, the plaintiff has to prove its case and the averments of the plaintiff should be taken to be correct.
It is submitted that in this summary proceeding, the Court is not holding a mini-trial and if a plausible defence is disclosed, the Court may not be inclined to write a judgment in favour of the plaintiff.
There cannot be any dispute that alleged that the defendant is a licensee.
the plaintiff has The defendant before the execution of the purported licence agreement was a tenant.
The defendant allyed that the said tenancy was surreptitiously converted to a leave and licence agreement without the knowledge of the defendant.
The defendant, however, continued to pay the occupation charges under the agreement, which the defendant now wants to challenge and, in fact, a suit has been filed for the declaration that the defendant is a tenant in respect of the suit premises.
Mr.Chowdhury, learned Counsel appearing on behalf of the plaintiff, is right in his contention that irrespective of the fact whether the defendant continued to be a tenant or a licensee under the agreement having regard to the admission claimed by the defendant that the defendant claims to be a tenant and if that case is accepted even then the defendant cannot succeed in its defence as the relationship of the parties is to be governed by the provisions of the Transfer of Property Act and he is not entitled to any protection under the West Bengal Premises Tenancy Act, 1997.
In this regard, Mr.Chowdhury has relied upon an order passed by the Hon'b’e Supreme Court in Civil Appeal No.1192 of 2007 arising out of SLP(C) No.4941 of 2006 dated March 7, 2007 (Subrata Kumar Ray versus Outram Club & Ors.).The said Special Leave Petition arose from an order passed by a learned Single Judge in licence Chapter XIIIA agreement.The proceeding Hon’ble arising Supreme out Court of after a leave taking and into consideration the defence disclosed by the club that the club is a tenant and not a licensee remanded the matter to the trial court for consideration treating the said club as a tenant.
The plaintiff, defendant is a licensee.
however, maintained the plea The nomenclature ‘licensee’ that the or ‘tenant’ would not much turn on the fate of the defence as a plea of tenancy would not be of much help to resist eviction in view of exemption of the tenancy from the tenancy act.
Under such circumstances, there shall be an order in terms of prayer (a).The other claims are triable issues and cannot be decided in this proceeding.
The application being GA No.3175 of 2013 is allowed in part.
Re.: GA No.3021 of 2013 The application being GA No.3021 of 2013 is limited to the issues left open in view of the judgement and order passed in GA No.3175 of 2013 earlier today.
The defendant shall file written statement within a period of four weeks from date.
(SOUMEN SEN, J.) A/s/sp2.