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2010 Supreme(Cal) 876
High Court Of Calcutta
Sanjib Banerjee, J.
Saraf Agencies Pvt. Ltd.
Vs.
Kanoria Jute And Industries Ltd.
Appeal No : GA No. 3383 of 2008; CS No. 288 of 2007
Decided on : July 28, 2010
Advocate Appeared:
Anindya Kumar Mitra, Abhrajit Mitra, Aniruddha Mitra, Susanta Basu, Surajit Nath Mitra, Arindam Mukherjee, D.K.Jain
In a tenancy at will, the consent of the tenant, whether express or implied, is indispensable for there to be a waiver of the notice to quit.
Headnote:
EVICTION SUIT - NOTICE UNDER SECTION 106 OF TRANSFER OF PROPERTY ACT - WAIVER - TENANCY AT WILL - IMPLIED CONSENT - SUMMARY JUDGMENT - ARREARS OF RENT - MESNE PROFITS - JURISDICTION - TRANSFER OF PROPERTY ACT, 1882, SECTIONS 106, 111, 113 - CODE OF CIVIL PROCEDURE, 1908, ORDER 2 RULE 4, ORDER XIIIA, LETTERS PATENT, CLAUSE 14 - WEST BENGAL PREMISES TENANCY ACT, 1997.
Fact of the Case:
Suit for eviction, arrears of rent and damages for premises measuring about 5858 sq.ft. and covers parts of two floors at 4/1, Red Cross Place, Kolkata. Plaintiff alleged that a sum of Rs.17.51,804.64 remained due from the defendant in respect of the suit premises and issued a notice dated May 22, 2007 determining the tenancy and calling upon the defendant to deliver vacant and peaceful possession of the premises within a month of the date of such notice. Defendant denied receipt of the notice and claimed that the notice was waived by the plaintiff's subsequent issuance of rent bills for the months of July and August, 2007, which the defendant accepted.
Finding of the Court:
1. The defendant's contention that it did not receive the notice under section 106 of the Transfer of Property Act was not supported by any categorical assertion in its affidavit. 2. The mere receipt of the subsequent rent bills without reacting thereto in any manner would not pass for implied consent to waive the notice to quit. 3. The defendant's letter of January 3, 2008, which admitted an outstanding amount of rent and proposed a payment plan, did not refer to the notice to quit having been waived. 4. The plaintiff was entitled to summary judgment for eviction as the defendant had not made out an arguable defence.
Issues: 1. Whether the defendant received the notice under section 106 of the Transfer of Property Act? 2. Whether the notice to quit was waived by the plaintiff's subsequent issuance of rent bills for the months of July and August, 2007? 3. Whether the defendant had a fair or bona fide or reasonable defence to the claim for eviction?
Ratio Decidendi: 1. A tenancy at will is put an end to by the agreement of the parties. 2. In case of a forfeiture of lease, the lease is voidable at the choice of the lessor. 3. In a tenancy at will, the consent of the tenant, whether express or implied, is indispensable for there to be a waiver of the notice to quit. 4. The mere receipt of a subsequent letter without reacting thereto in any manner would not pass for implied consent. 5. A high test has to be met by a plaintiff seeking summary judgment. If the defendant indicates that it has a fair or bona fide or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.
Final Decision: GA No. 3383 of 2008 was allowed in terms of prayer (a) of the master's summons dated September 26, 2008. The plaintiff was granted final judgment for eviction and costs of the application assessed at 6000 GM. The balance claim in the suit would stand trial.
Sanjib Banerjee
1. THE suit is for eviction, arrears of rent and damages. THE tenanted premises measures about 5858 sq.ft. and covers parts of two floors at 4/1, Red Cross Place, just beyond a stone's throw away from this Court. THE application that engages immediate attention is for final judgment for eviction and a decree for mesne profits.
2. IN addition to the affidavit-in-opposition and the reply, two sets of supplementary affidavit have been filed by the defendant and one by the plaintiff. There is no written agreement spelling out the terms of tenancy that the parties have relied upon. Since there was no deed of lease in respect of the suit premises, there was no fixed tenure as to occupation that bound the parties. The defendant accepted the plaintiff as a tenant by a letter dated May 8, 2004 addressed to the erstwhile landlord. IN the words of such letter, the defendant had already apparently paid "rent, service charges and municipal rates and taxes for the period January, 2004 to March, 2004" to the erstwhile landlord. A copy of the letter was marked to the plaintiff and certain payments were also tendered thereunder to the new landlord. By a notice dated May 22, 2007 the plaintiff alleged that a sum of Rs.17.51,804.64 remained due from the defendant in respect of the suit premises. The plaintiff also alleged that the defendant had made structural additions and alternations to the suit premises. After narrating such grounds, the plaintiff determined the tenancy and called upon the defendant to deliver vacant and peaceful possession of the premises within a month of the date of such notice. The plaintiff indicated that upon the expiry of the notice period, the defendant would be regarded as a trespasser and the plaintiff would be entitled to claim damages at the rate of Rs.10,000/- per diem. The last paragraph of the notice of May 22, 2007 provided as follows: "7. Please treat this letter as a notice under section 106 of the Transfer of Property Act, 1882 to be read with the provisions of the West Bengal Premises Tenancy Act, 1997 (as amended) which please note."
3. THE plaintiff claims that such notice was received by the defendant on May 29, 2007. A copy of the postal acknowledgement card is appended to the plaint and the application for summary judgment. According to the plaintiff, despite due receipt of such notice, the defendant did not respond thereto or act in accordance therewith. THE suit was instituted by or about the first week of December, 2007. In the application for summary judgment the plaintiff has disclosed the following letter dated January 3, 2008 issued by the defendant:
"As per the discussion held with the undersigned with you, we are giving the following proposal to liquidate the entire dues of Rs.19,91,206.82 (Nineteen Lacs Ninety-One Thousand Two Hundred Six and Paise Eighty- Two Only) against outstanding of Rent and other costs up to 31.12.2007 as per details enclosed. We shall pay 25% of the above mentioned amount immediately after receipt of your confirmation and the remaining outstanding amount shall be paid to you by a Bank Guarantee equivalent to one month Rent and Taxes every month, kindly give the proforma of the Bank Guarantee to enable us to discuss the matter with the bank. We shall pay the current Rent and Taxes, further we state that if our financial position improves we will liquidate the dues earlier also. We also submit that we will fulfill the commitments and won't give you opportunity for any complain and keep the good neighborly relation with you. We solicit your co-operation in this regard and waiting for an early reply."
A summary sheet detailing the admitted dues was appended to such letter by the defendant. It has not been suggested on behalf of the defendant's that the letter embodies any post-notice agreement between the parties.
4. THE plaintiff says that notwithstanding the sundry other matters referred to in its letter of May 22, 2007 since the tenancy was one
