An agreement that grants exclusive possession of property for business purposes, and creates an interest in the property, is a lease.

SATYABRATA SINHA, J, J.

( 1 ) BOTH these appeals arise out of a common judgment and decree passed by a learned single Judge of this Court in Suit No. 491 of 1985 instituted by Delta International Ltd. and another, inter alia, for eviction of the defendants-appellants and other reliefs.

( 2 ) THE basic fact of the matter is not in dispute.

( 3 ) THE plaintiffs' predecessor-in-interest Dewar's Garage (India) Pvt. Ltd. (In Short 'dewar') was maintaining and running a Petrol Service Station for sale of motor spares and components at premises No. 4d, Council House Street, Calcutta. The said Service Station was equipped with requisite Plant and Machinery. Dewar had erected and built certain structures on the said premises. Allegedly an agreement termed as leave and licence was granted by Dewar in favour of Esso Standard Eastern Inc. (in short ESSO ). As it was decided by Dewar not to continue to carry on business of Petrol Service Station, an agreement dated 18th July, 1970 was entered into with ESSO. By an order passed in Company Petition No. 331/91 Dewar amalgamated with the plaintiff. The business undertakings and the estates of ESSO had also been taken over by a Parliamentary Act, the same had been transferred and assigned by the Central Government by reason of an appropriate notification issued therefor in favour of M/s. Hindusthan Petroleum Corporation Ltd.

( 4 ) THE plaintiff-respondent filed the aforementioned suit on the ground that the defendants were guilty of the following breaches :" (A) Defendants are allowing parking of car at the said premises which is not permissible under the said agreement. (b) Defendants are failing to properly maintain the Plant and equipments which belong to the plaintiff and to keep the same in working condition. One of the Ramps has ceased to be in working condition. (c) The defendant No. 1 has failed to keep the said premises duly insured in terms of the agreement and has failed to produce and send copies of the policy of insurance to the plaintiff. (d) Defendant No. 1 has not paid the licence fees since the month of June, 1980. "

( 5 ) THE plaintiff in its plaint, inter alia, prayed for a decree of perpetual injunction restraining the respondent from using or occupying or carrying on business or fixture, fittings and accessories lying at the said premises as also decree for vacant possession thereof. It also prayed for a decree for damages.

( 6 ) THE appellants filed separate written statements. The plea taken by the appellants in their written statements inter alia is that the said purported agreement dated 18th July, 1970 is not an agreement of a 'leave and licence' but in fact was a lease. They denied and disputed commission of any breach of the said agreement as alleged. It was further stated that the rent had regularly been paid and as the plaintiff wrongfully refused to accept the rent for the month of May, 1980, all the rents from December 1980 to July 1986 with the exception of August and September, 1981 were deposited with the Rent Controller, Calcutta and after institution of the suit they have deposited the entire arrears together with statutory interest upon obtaining the permission of the Court therefor and it had also been depositing month by month the monthly rent of Rs. 3,950/ -.

( 7 ) THE learned trial Judge in view of the aforementioned pleadings of the parties framed as many as 16 issues as was suggested by the defendants.

( 8 ) THE learned trial Judge in his judgment under appeal proceeded on the basis that the suit was mainly for possession of immoveable properties instituted primarily against the first defendant. 5 The learned trial Judge rightly observed that the rights and obligations of the parties flow from the said agreement dated 18th July, 1970 and the main issue in the suit was the construction of the said document. The learned trial Judge in his judgment set out the clauses of Memorandum of agreement and inter alia came to the conclusion that/ (sic) inte

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