P. B. MUKHARJI, J.

( 1 ) THIS is a suit by Messrs. Talbot and Co. , a registered firm, for the recovery of possession of the premises No. 113, Park Street, Calcutta. There is also a claim for mesne profits.

( 2 ) MESSRS. Talbot and Co. were appointed Receivers of the said premises by order of Lort-Williams J. in Suit No. 991 of 1929, 'sm. Provabati Debi v. J. C. Galstaun and Ors. ' That order was made on 12-5-1930. By a further order made in that suit by Ameen Ali J. on 12-1-1938 the plaintiffs as Receivers were given liberty to grant lease for 10 years of the said premises to Messrs. Ganeshdas Ramgopal. The present defendants are carrying on business under the name and style of Ganeshdas Ramgopal at 1, Chittaranjan Avenue, Calcutta. Originally there were 3 defendants one of whom Nawal Kishore Halwasiya died pending the suit and the necessary amendment was duly made bringing on the record the legal representatives of the deceased defendant. In pursuance of the leave granted by this Court the plaintiffs on 4-3-1939, granted a lease of the said premises 113, Park Street to defendant Hari Charan Halwasiya, the deceased defendant Nawal Kishore Halwasiya and defendant Detai Prosad Halwasiya for the period of 10 years commencing from 16-10-1937. By Clause 1 (8) of the said lease it was provided as follows :"that the lessees will not transfer or charge by way of sale, mortgage, assignment, 'sublease or' otherwise or part with possession of the demised premises or any part thereof or any interest therein or the right or enjoyment (hereof without the previous consent in writing of the lessors (which consent the lessors shall in their absolute discretion be entitled to give or refuse) nor suffer or permit their interest therein to be attached or a Receiver to be appointed of any of their property, estate or effects. "clause 3 (1) of the said Lease provided inter alia as follows :"that in case of any breach of any of the covenants or conditions by the lessees herein contained and on their part to be observed and performed it shall be lawful for the lessors at any time thereafter (and notwithstanding any waiver of any breach) into or upon the demised premises or any part thereof in. the name of the whole to re-enter and immediately thereupon this demise shall absolutely determine but without prejudice to any other rights the lessors may have against the lessees. "

( 3 ) IT is alleged in the plaint that the defendants committed breach of the covenant against sub-letting and that they in fact in breach of such covenant sub-let a portion of the said premises to Messrs. Poddar Automobiles without the previous sanction in writing of the plaintiffs. The plaintiffs came to know about the breach on or about 24-2-1947 and by notice dated 28-2-1947 the plaintiffs gave notice in writing to the defendant of their intention to forfeit and determine the said lease.

( 4 ) THERE are other breaches of other covenants alleged in the plaint but it is unnecessary for mo to refer to them because such allegations have been abandoned, before me and no issue has been raised on the same.

( 5 ) ALL the original defendants filed a joint written statement. Their case in the defence is that on or about 3-12-1946, they sublet a portion of the said premises to Messrs. Poddar Automobiles but they deny that such subletting was in breach of any of the covenants of the said lease or that the plaintiffs came to know of such subletting on or' about 24-2-1947. Then the defendants take the defence of waiver in their written statement. The defence is that the forfeiture has been waived by the plaintiffs and the particulars of such waiver are set out in Para. 5 of the written statement. The particulars are that on 26-2-1947 the plaintiffs with full knowledge of subletting demanded payment of rent for the month of January 1947 and the defendants paid such rent by Cheque dated 26-2-1947 for the sum of Rs. 763/- and which cheque is said to have been retained by the plaintiffs.

Click Here to Read the rest of this document