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High Court Of Calcutta
M. N. RAY, AMARENDRA CHANDRA SENGUPTA
H.P.CORPN.LTD. - Appellant
Versus
R.P.AGARWALLA AND BROS.PVT.LTD. - Respondent
A. F. O. D. 372 Of 1981
Decided On : 09/18/1985
ESSO (ACQUISITIONS OF UNDERTAKINGS IN INDIA) ACT, 1974 - LEASE - RENEWAL - ESSENTIAL CONDITIONS - WAIVER - ESSENTIAL REQUIREMENTS - ESSO (ACQUISITIONS OF UNDERTAKINGS IN INDIA) ACT, 1974, SS. 5, 6, 7 - TRANSFER OF PROPERTY ACT, 1882, S. 107 - CIVIL PROCEDURE CODE, 1908, O. 41, R. 27 - LIMITATION ACT, 1963, ART. 54.
Fact of the Case:
The appellants were inducted into the suit premises in respect of a flat as a lessee for a period of 25 years. The lease expired on 31st January 1980. The appellants claimed that not only in terms of clause 10 of the lease (Ext. 1) which related to renewal, the suit as filed, was misconceived. Apart from that, the appellants further claimed that such renewal clause as exercised, if appropriately considered with the relevant provisions of the ESSO (Acquisitions of Undertakings in India) Act, 1974 (hereinafter referred to as the said Act), there would be no way out but to hold that the option of renewal in the instant case was duly exercised and in any event, the lease in question, was to be renewed and that being the position, the suit as filed, was misconceived and the same should be dismissed. The respondents claimed that the appellants had lost their right, if any, to have renewal of the lease in question.
Finding of the Court:
The Court held that the appellants did not adopt the provisions of the renewal clause in clause 10 of the lease in its entirety and had only exercised the option of renewal for a further period of 25 years on existing terms. The Court further held that Ext. 3, not having contained the due expression of the intention to have the lease (Ext. 1) renewed and that too in due and full compliance of clause 10 of Ext. 1 and more particularly when, the appellants have not fulfilled their obligations to pay mesne profits amongst others, there was or has neither been any appropriate claims for renewal of the lease nor the lease has been actually renewed. The Court also held that mere sending of the said Ext. 3 would not create a lease or allow renewal of the same in terms of S. 107 of the Transfer of Property Act and requirements of necessary execution of such a lease in terms of the observations in the case of Asiff v. Jadunath (supra). The Court further held that the appellants have not acquired the right of the necessary renewal under Ss. 5 and 7 of the said Act since the flat was let out for residential purposes only and at all material times, the same was used as such or held for the purposes of the residence of the officers of the appellants and peculiarly enough, the officer occupying the said flat or any competent person from the office of the appellants or on their behalf, has come to depose to the effect, that the said flat was not used as residential purposes as mentioned above or the same appertained to the business, carried on by Esso, in India.
Issues: 1. Whether the appellants had lost their right, if any, to have renewal of the lease in question? 2. Whether the appellants had duly exercised the option of renewal in terms of clause 10 of the lease? 3. Whether the appellants had acquired the right of the necessary renewal under Ss. 5 and 7 of the said Act?
Ratio Decidendi: 1. The terms of the renewal clause as contained in clause 10 of the lease cannot be exercised or obtained in piecemeal and in isolation of any part and portion, and when any option is exercised under the said clause, the entire provisions of the same must be followed and complied with. 2. The appellants did not adopt the provisions of the renewal clause in clause 10 of the lease in its entirety and had only exercised the option of renewal for a further period of 25 years on existing terms. 3. Ext. 3, not having contained the due expression of the intention to have the lease (Ext. 1) renewed and that too in due and full compliance of clause 10 of Ext. 1 and more particularly when, the appellants have not fulfilled their obligations to pay mesne profits amongst others, there was or has neither been any appropriate claims for renewal of the lease nor the lease has been actually renewed. 4. Mere sending of the said Ext. 3 would not create a lease or allow renewal of the same in terms of S. 107 of the Transfer of Property Act and requirements of necessary execution of such a lease in terms of the observations in the case of Asiff v. Jadunath (supra). 5. The appellants have not acquired the right of the necessary renewal under Ss. 5 and 7 of the said Act since the flat was let out for residential purposes only and at all material times, the same was used as such or held for the purposes of the residence of the officers of the appellants and peculiarly enough, the officer occupying the said flat or any competent person from the office of the appellants or on their behalf, has come to depose to the effect, that the said flat was not used as residential purposes as mentioned above or the same appertained to the business, carried on by Esso, in India.
Final Decision: The Appeal was dismissed.
( 1 ) THIS appeal is directed against the judgment and decree dt. 25th April 1981, passed in Title Suit No. 33 of 1980, by Shri D. K. Panda, learned Subordinate Judge, 4th Court, Alipore, 24 Parganas.
( 2 ) BY such judgment and decree, the plaintiff/respondent's suit for ejectment and for damages in respect of the property as described hereafter, was decreed and consequently, the declarations as asked for were granted.
( 3 ) M/s. R. P. Agarwalla and Brothers (Pvt) Ltd. Plaintiffs in the suit, stated that a Company by the name of Property Development Trust (P) Ltd. , who incidentally were their predecessor-in-interest, acquired more or less 2 Bighas 15 Cottahs 14 Chittacks and 62 Square feet of land, appertaining to premises No. 5, Lansdown Road, which is presently known as 5b, Sarat Bose Road, Calcutta-20 and thereafter, the said predecessor-in-interest (hereinafter referred to as the said Trust), built a multistoried building, which is known as "lansdown Court" (hereinafter referred to as the said premises), consisting of 28 flats.
( 4 ) IT was also the case of the plaintiffs that by a registered deed of lease dt. 10th May 1957 (Ext. 1), the predecessor-in-interest of the defendant/appellants Standard Vaccum Oil Co. Ltd. , were inducted into the said premises in respect of flat No. 12 (hereinafter referred to as the said flat), as a lessee for a period of 25 years, at a monthly rent of Rs. 225. 00p. payable according to English Calendar month. It was also the case of the plaintiffs that the. lease in question, expired on the expiry of the last day of Jan. 1980, since the same commenced from 1st day of Feb. 1955. It was pointed out, that Cl. 10 of the said Ext. 1, specifically stipulated that upon the expiry of the said term, forthwith to deliver up possession of the said flat to the Lessor without any objection or obstruction and in default, to pay mesne profit for the Lessee's continued occupation on the basis of the rent prevalent at the time in respect of premises of the same standard and in the same locality. The Lessee shall have the first option of renewal of the lease after the first period of 25 years is over, and it was further pointed out, that as per terms of the lease in question, the Lessee was not entitled to make any additions or alterations in respect of the said flat and was also required to bear and pay, enhanced Municipal taxes to the extent of the occupier's share.
( 5 ) IT was the further and specific case of the plaintiffs that though there was or has been a clause in the Lease deed in question (Ext. 1), for option of renewal as indicated hereinbefore, the defendants had lost such option of renewal and that being the position, the concerned suit for decree for eviction and mesne profit, had to be filed as the defendants were continuing with their unauthorised occupation of the said flat.
( 6 ) IN their written statement, the defendants apart from denying the material allegations and averments of the plaint, claimed that not only in terms of clause 10 of (Ext. 1) which related to renewal, the suit as filed, was misconceived. Apart from that, the defendants further claimed that such renewal clause as exercised, if appropriately considered with the relevant provisions of the ESSO (Acquisitions of Undertakings in India) Act, 1974 (hereinafter referred to as the said Act), there would be no way out but to hold that the option of renewal in the instant case was duly exercised and in any event, the lease in question, was to be renewed and that being the position, the suit as filed, was misconceived and the same should be dismissed.
( 7 ) ON the pleadings as above, the following issues were framed for consideration:-1. Is the suit maintainable? 2. Has the Lease deed 1st Feb. 1955 for a period of 25 years in respect of the suit premises extended? 3. Whether the defendant is entitled to the benefit of such extension? 4. Is the plaintiff entitled to a decree for recovery of Khas possession of t
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