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SUPREME COURT OF INDIA
R.K. AGRAWAL, ABHAY MANOHAR SAPRE, JJ.
Apollo Zipper India Limited – Appellant
Versus
W. Newman And Co. Ltd. – Respondent
Civil Appeal No. 4249 of 2018 (Arising out of S.L.P.(c) No. 27775 of 2017)
Decided On : 20-04-2018
(2002) 3 SCC 375; (2016) 3 SCC 343; (2017) 2 SCC 274; AIR 1967 SC 174 – Relied upon
(b) Transfer of Property Act, 1882 – Section 106 – Tenant not replying to quit notice u/s 106 – Objection available to him, if any, deemed to be waived. (Para 59)
AIR 2003 SC 3995 – Relied upon
(c) West Bengal Premises Tenancy Act, 1997 – Section 3(f) r/w section 106, Transfer of Property Act, 1882 and rule 1(B), Rules of the High Court at Calcutta (original side), 1914 – Premises within municipal limits of Corporation – Rent of premises 40000 – Tenancy law does not apply – Appellant rightly filing civil suit. (Para 69, 70, 71)
Facts of the case:
The shops and business premises in the great Eastern Hotel building, mostly on the ground floor, were let out by GEHL to different persons as their tenants. One such business premises (No.18) measuring around 6000 sq. feet, which is the subject matter of this appeal, was let out by GEHL, a century back, to the respondent for non-residential purpose. The monthly rent of the suit premises at the relevant time was Rs.40,000/-.
In the year 1975, the State of West Bengal passed an Act called “The Great Eastern Hotel (Taking Over of Management) Act, 1975 (Act XXXII of 1975)” to provide for taking over of the management of the undertaking of the GEHL for a limited period of five years in public interest and also to secure its proper management. Pursuant thereto, the State Government took over the management of the undertaking of the GEHL.
The Act of 1975 was followed by another Act passed by the State of West Bengal on the expiry of five years in 1980 called “The Great Eastern Hotel (Acquisition of Undertaking) Act, 1980 (Act No XXVII of 1980)” for the acquisition of the undertaking of the GEHL.
On 18.06.1981, the State Government notified that the undertaking of GEHL stood transferred to and vested absolutely in the State Government with effect from 17.07.1980.
The Governor issued a notification directing therein that the undertaking of the GEHL shall stand transferred to and vest in the Great Eastern Hotel Authority constituted under Section 5 (1) of the Act 1980.
The respondent too accepted this transfer of ownership of the suit premises and accordingly started paying monthly rent of Rs.40,000/- to GEHA which they paid till 2005.
On 05.10.2005, the Governor issued another notification and directed therein that all the fixed and current assets of the GEHA be vested in the Company called "Apollo Zipper India Limited" (appellant herein).
As a result of issuance of this notification, all the assets (fixed and current) of GEHA stood vested in the appellant-Company with effect from 05.10.2005.
On 17.05.2012, the appellant sent a quit notice to the respondent under Section 106 of the Transfer of Property Act, 1882 and terminated the respondent's tenancy with effect from 03.06.2012 and demanded arrears of rent and vacant possession of the tenanted premises from the respondent. The respondent did not reply to it.
Appellant filed ummary suit against the respondent claiming therein arrears of rent (Rs.39,20,000/-), the vacant possession of the suit premises and mesne profits at the rate of Rs.40,000/- per day.
The appellant filed another Civil Suit against the respondent for permanent injunction restraining them from carrying out any changes in the nature and character of the suit premises and from transferring and alienating the suit premises to any third party.
The respondent also filed one suit in the City Civil Court against the appellant for a declaration that the quit notice dated 17.05.2012 sent by the appellant to the respondent is void, that the respondent is a monthly tenant of the suit premises, and also prayed for issuance of mandatory injunction against the appellant, who was made defendant No.1 in the said suit, and Bharat Hotels Ltd., GEHA and the State of West Bengal as defendant Nos. 2, 3 and 4 respectively, directing them to accept the monthly rent from the respondent(plaintiff) at the rate of Rs.1600/- in respect of the tenanted premises. This suit is pending.
The respondent also filed Writ Petition challenging therein the rate of monthly rent of the suit premises.
In the summary suit the appellant (plaintiff) claimed that they are entitled to a decree for eviction against the respondent from the suit premises and also a decree for arrears of rent and mesne profits under Rule 6 of the Rules because the respondent has failed to raise any arguable and substantial defense on merits in support of their case in answer to the appellant's summary suit.
The respondent, however, raised essentially three grounds to oppose the appellant's suit by way of defense and sought leave to defend the suit on the said grounds.
The Single Judge declined to grant leave to defend to the respondent and decreed the appellant's suit by passing an eviction decree against the respondent in relation to the suit premises.
The respondent filed appeal before the Division Bench of the High Court. The Division Bench allowed the respondent's appeal, set aside the order of the Single Judge and granted unconditional leave to defend the suit to the respondent and remanded the suit for its trial on merits.
Finding of the Court:
The respondent failed to raise any arguable and substantial defense. Leave to defend rightly declined by the Single Judge.
Result: Appeal allowed.
JUDGMENT :
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is directed against the final judgment and decree dated 13.06.2017 passed by the High Court at Calcutta in APD No. 510 of 2015 whereby the Division Bench of the High Court allowed the appeal filed by the respondent herein and set aside the order dated 14.10.2015 passed by the Single Judge of the High Court and granted unconditional leave to the respondent to defend the suit and remanded the suit for its trial on merits.
3. The short issue involved in this appeal relates to grant of leave to the respondent (defendant) to defend the summary eviction suit filed by the appellant against them in relation to the suit premises.
4. In order to appreciate the issue involved, it is necessary to set out the background facts which led to filing of the summary eviction suit leading to passing of the impugned order.
5. The background facts of the case are as follows:
6. The appellant is the plaintiff whereas the respondent is the defendant in a summary suit out of which this appeal arises.
7. There is a Hotel in the city of Kolkata called “Great Eastern Hotel” (hereinafter referred to as “GEH”). It is situated in Old Court House Street (Hemanta Basu Sarani), Kolkata. The Hotel has been in existence for the last more than a century. It is a heritage Hotel. The Hotel building has several floors and consists of several shops, business premises including the Hotel. The building and the Hotel was owned and run by the Company called “Great Eastern Hotel Limited” (hereinafter referred to as “GEHL”).
8. The shops and business premises in the Hotel building are mostly on the ground floor and were let out by GEHL to different persons as their tenants. One such business premises (No.18) measuring around 6000 sq. feet, which is the subject matter of this appeal (hereinafter referred to as the “suit premises”), was let out by GEHL, a century back, to the respondent for non-residential purpose. The monthly rent of the suit premises at the relevant time was Rs.40,000/-.
9. In the year 1975, the State of West Bengal passed an Act called “The Great Eastern Hotel (Taking Over of Management) Act, 1975 (Act XXXII of 1975)” (hereinafter referred to as “the Act 1975”). The Act 1975 was passed to provide for taking over of the management of the undertaking of the GEHL as defined under Section 2(d) for a limited period of five years in public interest and also to secure its proper management. Pursuant thereto, the State Government took over the management of the undertaking of the GEHL.
10. The Act of 1975 was followed by another Act passed by the State of West Bengal on the expiry of five years in 1980 called “The Great Eastern Hotel (Acquisition of Undertaking) Act, 1980 (Act No XXVII of 1980)” (hereinafter referred to as “the Act 1980”). The Act 1980 was passed for the acquisition of the undertaking of the GEHL.
11. On 18.06.1981, the State Government issued a notification under Section 3(1) of the Act 1980 whereby the undertaking of GEHL stood transferred to and vested absolutely in the State Government with effect from 17.07.1980.
12. The Governor issued a notification under Section 3 (2) of the Act 1980 for better and efficient management and administration of the GEH, and directed therein that the undertaking of the GEHL shall stand transferred to and vest in the Great Eastern Hotel Authority (for short, “GEHA”) constituted under Section 5 (1) of the Act 1980.
13. Consequent upon enacting of the Act 1980 and issuance of the aforementioned notification under the Act of 1980, the State Government (GEHA) became the owner of the GEHL (which included the land, Hotel building, assets and the management of GEHL) by operation of law.
14. As a consequence thereof, the respondent, who was originally the tenant of GEHL, became the tenant of the State Government, i.e., GEHA on the same terms and conditions with effect from 17.07.1980. The respondent too accepted this transfer of ownership of the suit premises and acc
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