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2005 Supreme(Cal) 666
Calcutta High Court
KALYAN JYOTI SENGUPTA, J.
S. B. Properties Pvt. Ltd. - Appellant
Versus
Bank of India. - Respondents
G.A. No. 32 of 2005 and CJ No. 290 of 2004
Decided On : 7 October 2005
A monthly tenancy that is not governed by the West Bengal Premises Tenancy Act, 2001, is governed by the Transfer of Property Act, 1882, and can be terminated by serving a valid notice of termination in accordance with Section 111 of the Transfer of Property Act, 1882.
Headnote:
LANDLORD TENANT - MONTHLY TENANCY - TERMINATION OF TENANCY - TRANSFER OF PROPERTY ACT, 1882, SECTIONS 106 AND 111 - WEST BENGAL PREMISES TENANCY ACT, 2001, SECTION 3 - SUMMARY PROCEDURE FOR EVICTION - APPLICABILITY - VALIDITY OF NOTICE - ADMISSION OF STATEMENTS AND AVERMENTS IN SUPPORT OF SUMMONS.
Fact of the Case:
Plaintiff filed a suit for eviction of the defendant, a monthly tenant, from the suit premises. The tenancy was determined by due notice, but the defendant failed to vacate the premises. The plaintiff sought eviction through a summary procedure under Chapter XIIIA of the Original Side Rules of the Calcutta High Court.
Finding of the Court:
The court held that the tenancy was a monthly tenancy governed by the Transfer of Property Act, 1882, and not the West Bengal Premises Tenancy Act, 2001, as the rent was outside the purview of the latter Act. The court found that the notice of termination was valid and lawful and that the tenancy had been determined with due process of law.
Issues: 1. Whether the monthly tenancy was governed by the Transfer of Property Act, 1882, or the West Bengal Premises Tenancy Act, 2001. 2. Whether the notice of termination was valid and lawful. 3. Whether the tenancy had been determined with due process of law.
Ratio Decidendi: 1. The court held that the monthly tenancy was governed by the Transfer of Property Act, 1882, as the rent was outside the purview of the West Bengal Premises Tenancy Act, 2001. 2. The court found that the notice of termination was valid and lawful, as it was served in accordance with the provisions of Section 111 of the Transfer of Property Act, 1882. 3. The court held that the tenancy had been determined with due process of law, as the defendant had failed to vacate the premises despite the valid notice of termination.
Final Decision: The court granted an eviction decree in favor of the plaintiff, ordering the defendant to vacate the suit premises.
Based on the provided legal document, the key points are as follows:
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The tenancy in question is a monthly tenancy that is not regulated by the West Bengal Premises Tenancy Act, 2001, but rather by the Transfer of Property Act, 1882. This is because the rent exceeds the threshold specified in the Act, making the tenancy outside its scope (!) (!) .
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The tenancy was established through an oral agreement, and it was determined by serving a valid notice of termination in accordance with Section 111 of the Transfer of Property Act, 1882 (!) (!) .
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The notice of termination was deemed valid and lawful, and the tenancy was legally determined through proper legal procedures. The defendant failed to vacate the premises despite the valid notice, which led to the eviction suit (!) (!) .
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The court confirmed that the relationship between the landlord and tenant was that of a monthly tenancy, governed by the Transfer of Property Act, and not by the tenancy act, as the rent was outside the Act's purview (!) (!) .
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The court emphasized that the tenant did not contest the validity of the notice, and the service of the notice was properly established. The tenant's failure to vacate after the notice was legally sufficient to determine the tenancy (!) (!) .
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The court granted an eviction decree in favor of the landlord, ordering the tenant to vacate the premises, while noting that other claims or defenses could be considered at the trial stage, as no evidence was presented to support additional relief at this point (!) .
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The proceedings confirmed that the summary eviction process was applicable and appropriate under the circumstances, given the tenancy was properly determined and the notice was valid (!) (!) .
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Costs were to be borne in the cause, and the final decision was made without granting further relief beyond eviction, reserving the right to decide other issues at the trial (!) .
These points summarize the legal reasoning and outcome based on the facts and applicable law as presented in the document.
JUDGEMENT :- The summons has been taken out for final judgement under Chapter XIIIA of the Original Side Rules of this Court. The plaintiff has resorted to the aforesaid summary procedure the provision of which is set out hereunder :
"Nature of cases in which applicable. The provisions of this Chapter shall not be applicable save to suits.
(A) .......................................................
(i) to (iv) ...............................................
(B) for the recovery of immoveable property with or without a claim for rent or mesne profits by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant".
The present suit is for eviction of the defendant who has been described as a monthly tenant, and was inducted by the plaintiff at a monthly rate of rent. The let out premises is entire ground floor and first floor including a connecting staircase having an area of 3550.25 square feet more or less of premises No. 55, Bhupendra Bose Avenue, Kolkata-700 004 (hereinafter referred to as suit premises). The aforesaid tenancy has been determined by due notice. In spite of termination of tenancy the defendant failed and neglected to quit and vacate the said premises. Hence, the suit has been filed.
2. It appears from the records that the defendant entered appearance through Mr. Durga Sankar Mullick, learned Advocate in the said suit. This fact is evidenced by his letter dated 9th December, 2004, immediately thereafter the instant summons has been taken out. The summons and the supporting affidavit have been duly served upon Mr. Mullick and affidavit-of-service has been filed. In spite of service on 18th January, 2005 direction for filing affidavit was given though on that date none appeared. By a letter dated 19th January, 2005 which was received on behalf of Mr. D. S. Mullick, the plaintiffs Advocate on record duly intimated of the aforesaid order giving direction for filing affidavit. This letter was also received. On 27th January, 2005, the Advocate-on-record of the plaintiff duly forwarded a copy of the order dated 18th January, 2005. The aforesaid letter appears to have been received for and on behalf of Mr. D. S. Mullick for the defendant. The aforesaid facts have been established by filing an affidavit of service and the same is kept on record. Notwithstanding communication as above no affidavit of opposition has been filed. This matter appeared in the list on 24th March, 2005. On that date none appeared. The matter was adjourned till 21st April, 2005. However, the matter was heard on 25th April, 2005 and none appeared on that date too and the same was adjourned till 2nd May, 2005. On 2nd May, 2005 the matter was finally heard. On all those days none appeared on behalf of the defendant.
3. As such the statements and averments made in affidavit in support of summons are deemed to have been admitted.
4. From the statements and averments it appears to me that the defendant was inducted on the basis of oral agreement of monthly tenancy. The tenancy stood determined with notice.
5. Mr. Banerjee appearing with Mr. Bachwat submits that it is the monthly tenancy and this tenancy is not governed by the West Bengal Premises Tenancy Act, 2001. By virtue of Section 3 of the said Act because of the rate of rent this tenancy is outside purview of the said Act. Mr. Banerjee, therefore, contends that the protection against the eviction as envisaged in the said Tenancy Act is not available to the defendant. This shall be governed by the provision of Transfer of Property Act viz. Section 111 of the Transfer of Property Act. This tenancy has to be treated as a lease from month to month and it can be determined by serving 15 days notice by either of the parties with the end of month of the tenancy. The defendant has not come forward to challenge the validity of the notice, as such it has to be acce
