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ALOK KUMAR BASU AND JYOTIRMAY BHATTACHARYA, JJ.
Smt. Renuka Seal and Ors.
versus
Smt. Sabitri Dey and Ors.
F. A. No. 287 of 2004
Decided on :- 24 -8 -2007
LEASE - RENEWAL - EFFECT OF RENEWAL CLAUSE - EXTENSION OF LEASE - DISTINCTION - REGISTRATION - REQUIREMENT - WEST BENGAL PREMISES TENANCY ACT - APPLICABILITY.
Fact of the Case:
The plaintiffs filed a suit for recovery of khas possession of the suit shop room from the defendants on expiry of lease by efflux of time. The defendants contended that the lease was renewed for a further period of 10 years on payment of enhanced rent as per the renewal clause contained in the registered lease deed. The plaintiffs, however, contended that since no registered deed was executed for renewal, the defendants became tenants by holding over.
Finding of the Court:
The court held that the original lease which was limited for a period of 21 years was extended for a further period of ten years as per the agreement contained in Clause 5 of the said lease deed and thus, the said lease continued for a period of 31 years. The court further held that renewal of lease can be made only through a bilateral process, as renewal cannot be effected unless one exercises the option pursuant to the renewal clause and the other accepts such proposal for renewal. However, the extension of lease can be made through an unilateral process, inasmuch as, such extension is made on the option of one of the parties to the lease, as the party on the other part had and/or has no option but to accept the option for renewal exercised by the said party and to extend the said lease as per the provision contained in the original registered lease deed.
Issues: 1. Whether the defendants became tenants by holding over after expiry of the original lease period of 21 years? 2. Whether renewal of lease is possible without any registered document?
Ratio Decidendi: 1. The court held that the defendants did not become tenants by holding over after expiry of the original lease period of 21 years, as the lease was renewed for a further period of 10 years on payment of enhanced rent as per the renewal clause contained in the registered lease deed. 2. The court held that renewal of lease can be made without any registered document, if it is made through an unilateral process, inasmuch as, such extension is made on the option of one of the parties to the lease, as the party on the other part had and/or has no option but to accept the option for renewal exercised by the said party and to extend the said lease as per the provision contained in the original registered lease deed.
Final Decision: The appeal was dismissed.
JYOTIRMAY BHATTACHARYA, J. :- This appeal is directed against the judgment and decree dated 31st March, 2004 passed by the learned Judge, Second Bench, City Civil Court at Calcutta in Title Suit No. 1942 of 2000 at the instance of the defendants/ appellants.
2. The plaintiffs/respondents filed a suit for recovery of khas possession of the suit shop room located in the ground floor of premises No. 40, Garanhatta Street, Calcutta from the defendants/appellants on expiry of lease by efflux of time.
3. A decree for damages for illegal use and occupation of the suit shop room on and from 1st day of Ashar 1407 B.S. to 27th day of Kartick 1707 B.S. at the rate of Rs. 3/- per diem and a further decree for mesne profit on and from the date of filing of suit until recovery of khas possession of the suit premises, were also sought for incidentally against the defendants in the said suit.
4. Admittedly by a registered deed of lease executed between the predecessor-in-interest of the plaintiffs/respondents, viz., Kanailal De on the one part as lessor and Narayan Chandra Seal, Benimadhav Seal and Kalikrishna Seal on the other part as lessees, the suit shop room was demised to the said lessees collectively for a period of 21 years commencing from the 1st day of Ashar, 1376 B. S. at rental of Rs. 105/- per month payable to the lessor according to Bengali Calendar month on or before the 15th day of each succeeding month for which such rent would become due and payable.
5. The terms and conditions, on which the suit shop room was let out to the said lessees, were incorporated in the said lease deed. Some of the terms and conditions which are relevant here for the purpose of consideration of this appeal, are set out here-under :-
" 1. The lessees doth hereby covenant with the lessor as follows :-
(a)........................................................
(g) In case of default of non-payment of rent for three months or breach of covenants for any of the clauses of the lease, the lessor shall be entitled to terminate the lease earlier and to re-enter the premises.
(h)...........................................................
(i) To bear the proportionate share of the increased occupiers' share of tax that is to say if there be any increase of Municipal rates and taxes during continuance of the lease that is to say rent being Rs. 105/- per month on such rental basis Corporation tax at present 18½% thereon but if this 18½% slab be increased during continuance of this lease then in such circumstances, the lessees shall pay half of the difference amount of such increased amount of tax proportionately.
(j) and (k) ...............................................
The Lessor hereby covenants with the Lessees as follows :-
(a) The Lessees paying the rents hereby reserved and observing fulfilling and performing all the several covenants conditions, obligations and stipulations herein contained and on their part to be fully paid, observed, fulfilled and performed shall peaceably hold and enjoy the demised room during the said period of twenty one years subject to Lessees' option for renewal for a further period of ten years as hereafter appearing without any interruption by the Lessor or by any person or persons claiming through under or in trust for him.
(b) ...........................................................
5. That on the expiry of the period of this lease the lessees shall have option to renew the lease for a further period of ten years upon fulfilment of the terms and conditions hereof. In case of such renewal there shall be increased of monthly rent by 10% on the basic rent of Rs. 105/- per month."
6. The arrangement which was so made between the lessor and the lessees in respect of the suit shop room in the said lease deed dated 25th June, 1969 continued smoothly without any trouble and/or disturbance and/or interruption till first week of February, 1978. Trouble started amongst the lessees and/or their heirs with regard to the use and enjoyment
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