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HIGH COURT OF CALCUTTA
Ramendra Mohan Datta
DOONI LAL SEAL - Appellant
Versus
GINIYA DEVI RATERIA - Respondent
Suit 2071 Of 1967
Decided On : FEBRUARY 9, 1970
LEASE - Determination - Notice - Forfeiture - Waiver - Transfer of Property Act (4 of 1882), Ss. 111 (g), 114, 114-A.
Fact of the Case:
The lessee failed to pay rent and did not pay the advance rent of Rs. 21,000 as per the lease agreement. The lessors served a notice on the lessee determining the lease and calling upon the lessee to quit and vacate the premises. The lessee did not comply with the notice. The lessors filed a suit for recovery of possession of the premises, arrears of rent, and mesne profits.
Finding of the Court:
1. The lessee committed breach of covenant by non-payment of rent and non-payment of the advance rent of Rs. 21,000. 2. The notice dated June 7, 1967, served by the lessors on the lessee was a valid and sufficient notice under Section 114-A of the Transfer of Property Act, 1882. 3. The lessors were entitled to claim rent for the period up to the expiry of the notice period, even though the lease had been determined. 4. The lessors did not waive the forfeiture by accepting rent for the month of July 1967. 5. The suit was maintainable even though all the lessors did not join as co-plaintiffs.
Issues: 1. Whether the lessee committed breach of covenant of the lease as alleged in paragraph 3 of the plaint? 2. (a) Are the averments made in paragraphs 4 and 7 of the plaint relating to notice sufficient? (b) If not, does the plaint disclose any cause of action relating to recovery of possession? (c) Was there any waiver of the forfeiture of the alleged acceptance of money towards rent after notice dated June 7, 1967 as alleged in paragraph 5 of the written statement of the defendant No. 1? (d) Was there any waiver of forfeiture by reason of the lessor's claiming rent for the month of July 1967 as stated in paragraph 8 of the plaint? (e) Was the notice in suit valid and sufficient? 3. Did Shri P. K. Chose, Advocate have any authority from the defendants Nos. 2, 3, 4 and 5 to send the notice dated June 7, 1967? If not, to what effect? 4. Is the suit not maintainable for reasons as alleged in paragraph 1 of the written statement of the defendant No. 1? 5. To what relief or reliefs, are the plaintiffs and the defendants Nos. 2 to 5 entitled?
Ratio Decidendi: 1. The covenant for payment of Rs. 21,000 in the lease was a covenant capable of remedy in case of breach and accordingly a notice under Section 114-A of the Transfer of Property Act was necessary to be given to enable the lessors to file a suit against the lessee. 2. The notice dated June 7, 1967, served by the lessors on the lessee was a valid and sufficient notice under Section 114-A of the Transfer of Property Act, 1882. 3. The lessors were entitled to claim rent for the period up to the expiry of the notice period, even though the lease had been determined. 4. The lessors did not waive the forfeiture by accepting rent for the month of July 1967. 5. The suit was maintainable even though all the lessors did not join as co-plaintiffs.
Final Decision: Decree for arrears of rent to the extent of Rs. 13,500 in favour of the plaintiffs jointly with the defendants Pramatha Lal Seal, Pasupati Lal Seal, Purna Lal Seal, the defendants Nos. 2, 3, 4 and 5 herein. The plaintiffs are also entitled to a decree for recovery of possession of the suit premises jointly with the said defendants Nos. 2, 3, 4 and 5 herein against the defendant No. 1. The plaintiffs jointly with the said defendants Nos. 2, 3, 4 and 5 would be entitled to mesne profits at the rate of Rs. 1500 per month from August 1, 1967 till the date of the suit and thereafter at the same rate until possession would be delivered or until October 18, 1971 whichever would happen earlier. If the decree for recovery of possession would remain unsatisfied on 19th October 1971 the plaintiffs and the defendants Nos. 2, 8, 4 and 5 would be entitled to mesne profits at the rate of Rs. 4500 per month, as provided in the lease, from the aforesaid date until possession would be delivered or until three years from the date of the decree herein whichever would happen earlier. The plaintiffs would be entitled to the costs of this suit as against the defendant No. 1. For the reasons as stated above, there would be no order as to costs as against or in favour of the defendants Nos. 2, 3, 4 and 5.
( 1 ) THIS suit is, inter alia, for the recovery of possession of the northwestern portion of premises No. 12/2 Kyd Street and the entirety of premises No. 13, Kyd Street, Calcutta (hereinafter called the said premises ). By a registered Deed of Lease dated October 18, 1966 the said premises were demised by the lessors on a lease for 99 years in favour of the defendant No. 1. Besides the re-entry clause in case of non-payment of three months' rent and/or breach of any of the covenants contained therein the said lease, inter alia, provided the following clause :--"clause 6 (a ). That the lessee shall at any time within period of six months from the said lease pay to the lessors (plaintiffs and the defendants Nos. 2 to 5 and their mother) either at a time or by two equal monthly instalments the aggregate sum of Rs. 21,000 as and by way of advance rent. Provided, however, that the defendant would be at liberty to adjust the said advance rent of Rs. 21000 so to be paid by deducting at the rate of Rs. 300 per month out of the total monthly rent payable by her. Provided further that the defendant would start such deducting at the rate of Rs. 300 per month out of the total monthly rent after the period of 13 years 8 months from the said date of the lease and would continue to do so until the sum of Rs. 21000 would have been fully adjusted. Provided also that if the lease was determined at any time before the said sum of Rs, 21000 would be adjusted as aforesaid due to any breaches of any covenant under the lease committed by the defendant No. 1 the lessors (the plaintiffs and the defendants Nos. 2 to 5 and their mother) would not be required and/or called upon to refund and/or adjust the sum of Rs. 21000 or any portion thereof which might then remain outstanding. "
( 2 ) THE said lessee paid rent only for the broken period of October 1966 calculated at the rate of Rs. 1500 per month but failed and neglected to pay any further rent. As regards the said payment of rent the lessees granted different rent receipts in respect of their shares of rent in terms of the said lease.
( 3 ) ON June 7, 1967 a notice was served upon the defendant through the lawyer Sri P. K. Gliose, inter alia, determining the lease, specifying the breaches of the covenant and calling upon the lessee to quit and vacate and deliver up peaceful possession on the expiry of the mouth of July 1967. The defendant No. 1 having failed to comply with the said notice, two of the lessors filed this suit impleading the other lessees as party defendants herein and claimed arrears of rent npto the month oi July 1967 and mesne profits from August 1, 1967 until possession would be delivered. The two plaintiffs who have filed this suit are the two brothers and the defendants Nos. 2, 3, 4 and 5 are the sons of another pre-de-ceased brother. The two plaintiffs and the sons and the widow of the said pre-deceas-ed brother were the lessors under the said lease. The widow Annabati Dassi died sometime prior to the notice dated June 7th 1967. It is stated that the said notice was caused to bo served under instructions from the plaintiffs and the defendants Nos. 2, 3, 4 and 5 being the sons of the said pre-decea-sed brother.
( 4 ) THE defendants Nos. 2, 3, 4 and 5 filed a joint written statement supporting the plaintiffs and claiming similar reliefs as claimed by the plaintiffs.
( 5 ) THE defendant No. 1 in her written Statement took various points in defence. It is alleged that the saia lease was executed on the basis of various representations made on behalf of the plaintiff's and pursuant thereto the defendant No. 1 paid a sum of Rs. 31,000 in cash without any receipt. It is further alleged that the plaintiffs themselves committed breach of the condition of the said lease and as such they were not entitled to claim a sum of Rs. 21,000 under the lease. The authority of the lawyer in sending the notice of forfeiture dated June 7, 1967 on behalf of the defendants
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