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2005 Supreme(Cal) 96
High Court Of Calcutta
Kalyan Jyoti Sengupta
TURNER MORRISON LTD - Appellant
Versus
CALCUTTA STOCK EXCHANGE Association LTD - Respondent
C. S. 29 Of 2004
Decided On : 02/10/2005
A tenant cannot unilaterally deduct the amount spent on repairs and maintenance from the rent payable, in the absence of a special agreement between the parties allowing for such deduction.
Headnote:
EVICTION SUIT - WEST BENGAL PREMISES TENANCY ACT - TRANSFER OF PROPERTY ACT - SUMMARY JUDGMENT - NON-PAYMENT OF RENT - MAINTENANCE AND REPAIR OF DEMISED PREMISES - SECTION 106 CLAUSE (F) OF THE TRANSFER OF PROPERTY ACT - SECTION 107 OF THE TRANSFER OF PROPERTY ACT - SECTION 111 CLAUSE (H) OF THE TRANSFER OF PROPERTY ACT - The plaintiff sought final judgment in a suit for eviction and recovery of arrears of rent, alleging non-payment of rent and other outgoings. The defendant resisted the application, claiming that the suit was not maintainable under the West Bengal Premises Tenancy Act, 1996, and that it was entitled to deduct the amount spent on repairs and maintenance from the rent payable, invoking Section 106 Clause (f) of the Transfer of Property Act.
Fact of the Case:
The plaintiff let out a portion of its premises to the defendant for a period of seven years under a written agreement. The defendant failed to pay rent, service charges, and other outgoings from May 2001. The plaintiff served a notice to determine the tenancy, which expired on 30th December 2003. Despite the notice, the defendant failed to vacate the premises and pay the arrears of rent.
Finding of the Court:
The court held that the suit was maintainable under the West Bengal Premises Tenancy Act, 1996, and that the defendant could not rely on Section 106 Clause (f) of the Transfer of Property Act to deduct the amount spent on repairs and maintenance from the rent payable. The court further held that the defendant had not made out a strong case to contest the suit unconditionally.
Issues: 1. Whether the suit was maintainable under the West Bengal Premises Tenancy Act, 1996, or the Transfer of Property Act, 1882? 2. Whether the defendant was entitled to deduct the amount spent on repairs and maintenance from the rent payable under Section 106 Clause (f) of the Transfer of Property Act? 3. Whether the defendant had made out a strong case to contest the suit unconditionally?
Ratio Decidendi: 1. The court held that the suit was maintainable under the West Bengal Premises Tenancy Act, 1996, as the tenancy agreement was for a period of more than one year and was not registered, as required under Section 107 of the Transfer of Property Act. 2. The court held that the defendant could not rely on Section 106 Clause (f) of the Transfer of Property Act to deduct the amount spent on repairs and maintenance from the rent payable, as there was no special agreement between the parties allowing for such deduction. 3. The court held that the defendant had not made out a strong case to contest the suit unconditionally, as it had not shown that it had a valid defense to the plaintiff's claim for eviction and recovery of arrears of rent.
Final Decision: The court dismissed the plaintiff's application for summary judgment without any cost.
( 1 ) THIS summon has been taken out by the plaintiff for recording final judgment under Rule 1 (B) of Chapter XIIIA of the Original Side Rules. In this summons the plaintiff wants final relief at this interim stage in a suit for eviction from an immovable property and for a money claim. There is no dispute under the law that this mode of action is permissible under the aforesaid provision. The Plaintiff's case in short is as follows : by and under a written agreement dated 8th January, 1994 (hereinafter referred to as the said premises) the Plaintiff let out to the defendant an area of 5100 sq. ft. in the 4th floor of the premises No. 6, Lyons Range, calcutta-700 001 for a period of seven years from the aforesaid date at a monthly rent of Rs. 51,000/ -. In addition thereto the defendant agreed to pay to the plaintiff a sum of Rs. 12,750/- per month for service charges and further sum of Rs. 12,750/- as rent for the fixture thereof aggregating to Rs. 76,500/- per month with provision for increase of the same by 15% with effect from 1 st April, 1994 and thereafter by further 15% after the expiry of every two years from 1 st April, 1994. It was further agreed that the defendant would pay to the plaintiff the proportionate share of consolidated rate water tax, surcharge levied on consolidated rate and any other imposition or levy by Kolkata Municipal Corporation or under West Bengal Multistoried Building tax Act and the West Bengal Urban Land Taxation Act etc. Etc. In breach of the said agreement the defendant failed and neglected to pay the rent, service charges and rent for fixtures since May, 2001. In further breach of the agreement the defendant failed and neglected to pay proportionate share of consolidated rate, water tax surcharge levied on consolidated rate and other imposition of levy by the said Corporation and under West Bengal multistoried Building Tax Act as also West Bengal Land Taxation Act in respect of said premises.
( 2 ) IN view of the aforesaid breach the plaintiff is entitled to reenter the said premises, as such the tenancy of the said premises has been determined by forfeiture. In any event by notice dated 30th December, 2003 the tenancy has been determined and copy of the said notice has been received On expiry of the notice period of 30 days from the date of receipt and in spite of forfeiture of the tenancy the defendant failed and neglected to vacate and handover the possession of the said premises. The defendant further failed and neglected to pay arrear of rent.
( 3 ) IT is clear from the aforesaid that in view of non-payment of rent and other outgoings the tenancy has been determined.
( 4 ) IN the affidavit in opposition the defendant has made out their defence in the said suit, which is summarized as follows : the suit is not maintainable in view of the amended provision of West bengal Premises and Tenancy Act 1997 The hearing of this suit is liable to be stayed since the issues raised in this suit directly and substantially are issues in the suit filed earlier by the defendant against the plaintiff being c S No 230 of 2003 Obviously their suit is earlier in point of time than that of the present suit. On merit it is explained as to why payment of arrear of rent for the premises and fixtures and also maintenance charges has not been made from June 2001. It is stated further that by reason of the failure of the plaintiff to supply filtered water to the tenanted premises, to maintain and repair mam electrical lines, drains sewerage and water connection, to maintain lifts and general cleanliness of the building the defendant had to spend to ensure the same in order to make the said premises habitable reasonably As such the defendant is entitled to and makes deduction of the amount spent by it. The plaintiff had wrongfully retained and/or adjusted a sum of Rs 2 cores, although the respondent had surrendered its tenancy in respect of other portion of the said premises and thereby
