Ashim Kumar Banerjee. J.

FACTUAL SCENARIO

THIRD FLOOR TENANCY (C.S. No.42 if 2006)

Apeejay House Private Limited was the owner of premises no.15, Park Street, Calcutta. Since 1975 Coal India Limited was occupying various portions of the said building as tenant and/or lessee. The subject appeal would relate to tenancy in respect of third floor of the premises that was given to them. Since 1980 they were occupying thirty thousand four hundred eleven square feet more or less at blocks A, B and C of the third floor at a rent that was increased from time to time, the last of such increase was made in April 2004 when the rent was fixed at rupees three lacs forty five thousand one hundred sixty-four and eighty five paise. Coal India Limited duly paid rent up to December 2005.

On January 4, 2006 Apeejay terminated the tenancy and demanded vacant possession on expiry of fifteen days from the date of receipt of the notice. Apeejay issued the said notice under Section 106 of the Transfer of Property Act 1882. Considering the date of receipt, January 21, 2006 was the last date when they were supposed to hand over possession. From the pleadings it appears that Coal India Limited kept the said premises under lock and key since then and declined to hand over possession. Apeejay filed a suit for recovery of possession and on Coal India Limited entering upon appearance Apeejay made an application for summary judgment under chapter XIII-A of the High Court Rules, Original Side. Coal India Limited contested the said application by filing Affidavit-in-Opposition. According to them, the termination was wrongful as it was done contrary to the agreement. They relied upon an agreement that would relate to sixth floor tenancy to expire on January 31, 2012. The learned single Judge, upon hearing the parties, decreed the said suit by directing handing over of possession. His Lordship also appointed a Special Referee to find out mesne profit that was to be paid by Coal India Limited to Apeejay for the period when the tenancy was determined and the possession was wrongfully withheld. Being aggrieved, Coal India Limited preferred the appeal that we heard on the above mentioned dates.

SECOND FLOOR TENANCY (C.S. No.72 of 2006)

Similar to the third floor, second floor tenancy was also given on rent on monthly basis. The tenancy was created in January 1982 measuring about 4745 sqft. of carpet area at an initial monthly rent of rupees7.50 per sqft. that was subsequently revised from time to time by mutual consent. Apeejay terminated the tenancy by notice dated January 4, 2006 issued under Section 106 of the Transfer of Property Act, 1882 and filed a suit for recovery of possession. The suit was valued at Rs.6,64,680/-for recovery of possession that would constitute annual rent payable as on that date and a sum of Rs.6,99,917/-on account of mesne profit calculating the same at the rate of Rs.75 per sqft.

Coal India Limited took the identical defence. In addition, they contended, the valuation of the suit was inflated to attract jurisdiction of this Court. Hence, the suit was not maintainable, so was the application for summary judgment.

The learned Judge passed a decree similar to the decree passed in C.S. 42 of 2006 that Coal India assailed in the second appeal that we heard subsequently on the dates mentioned above.

CONTENTIONS

ON MERITS

Mr. Pradip Kumar Dutta, learned senior counsel appearing for the appellant contended as follows:-

i) Although there were several tenancies the parties agreed, they would be bound by the terms and conditions as agreed upon in case of sixth floor tenancy that would expire on January 31, 2012. Hence, prior termination that too, without any reason, was invalid in law and not enforceable.

ii) The appellant, being a tenant, was entitled to the protection given under the West Bengal Premises Tenancy Act, 1956. Such act being repealed and the new tenancy law coming into force in 1997 the appellant being a tenant under