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IN THE HIGH COURT AT CALCUTTA
Pinaki Chandra Ghose & I.P. Mukerji, JJ.
Coal India Ltd.
vs.
Apeejay Private Ltd.
G.A. No. 1787 of 2009; A.P.D.T. No.8 of 2009; C.S. No. 41 of 2006
Decided On: August 24, 2009
LANDLORD AND TENANT - SUMMARY JUDGMENT - POSSESSION UNDER INVALID LEASE - SECTION 53A OF THE TRANSFER OF PROPERTY ACT - PART PERFORMANCE - TRIABLE ISSUE OF LAW - LEASE NOT REGISTERED - NOT VALID - POSSESSION BEFORE LEASE - CONTINUED UNDER LEASE - PARTIES ACTED ACCORDINGLY - PAYMENT OF RENT - OBSERVANCE OF OTHER TERMS - EQUITABLE PRINCIPLE OF PART PERFORMANCE - RESIST EVICTION - SUMMARY JUDGMENT NOT PROPER.
Fact of the Case:
Appellant occupied the 6th floor of the respondent's premises since the early seventies. An alleged lease agreement was entered into on 22nd January, 1992 for a period of 21 years, but it was never registered. The new rent Act came into force on 10th July, 2001, and the lease did not fall under the Act due to high rent. The respondent terminated the appellant's tenancy by a notice dated 4th January, 2006. The appellant filed a Chapter XIIA application claiming summary judgment, relying on section 53A of the Transfer of Property Act and the equitable principle of part performance.
Finding of the Court:
The court found that there was a triable issue of law as to whether the appellant's possession was protected under section 53A of the Transfer of Property Act, despite the invalid lease, due to part performance and estoppel. The court also found that there were triable factual disputes between the parties.
Issues: 1. Whether the appellant's possession was protected under section 53A of the Transfer of Property Act, despite the invalid lease, due to part performance and estoppel. 2. Whether there were triable factual disputes between the parties.
Ratio Decidendi: 1. Section 53A of the Transfer of Property Act applies not only to a lease in presenti but also to an agreement of lease. 2. Part performance of an invalid lease, by virtue of which the lessee has come into possession of the land, can be a defence to eviction by the landlord contrary to the terms of the invalid lease. 3. A triable issue of law can be a triable issue, entitling the defendant to leave to defend. 4. When a difficult question of law is raised by the defendant, the court should desist from pronouncing summary judgment and allow the defendant leave to defend.
Final Decision: The appeal was allowed, the judgment and order dated 20th May, 2009 was set aside, and the appellant was granted unconditional leave to defend. The court directed that the suit be expedited and gave directions for the filing of written statement, cross order for discovery, and inspection.
I. P. Mukerji, J.: In a Chapter XIIIA application, the Hon'ble Court below has passed a decree of eviction against the appellant. Hence, this appeal by them.
2. The respondent is the owner of premises No. 15 Park Street, Calcutta 17. As is well known it is one of the most expensive areas of Calcutta. The 6th floor of this premise, has been divided into blocks A, B & C. The appellant occupies the entire floor.
3. The total floor area of the three blocks is 28,406.614 sq.ft. The rent and other charges together paid by the appellant to the respondent is Rs.8,83,016.71/- per month. The Appellant has been there since the early seventies.
4. We are here concerned with block 'B'. It has an area of 10,458.074 sq. ft. Admittedly, the appellant was already in possession of this area, when an alleged agreement of lease was entered into between the parties on 22nd January, 1992 whereunder from 1st March, 1991 block ‘B’ was taken as demised to the appellant for a period of 21 years upon payment of monthly rent and performance of other covenants.
5. Now, this lease was never registered.
6. Thereafter on 10th July, 2001 the new rent Act the West Bengal Premises Tenancy Act, 1997 came into force. Since the rent was very high, this lease did not fall under the rent Act.
7. The respondent realised so and by a notice in writing dated 4th January, 2006 it described the occupation of the appellant as monthly tenancy and purported to terminate it by giving the appellant 15 days notice.
8. The appellant did not vacate the premise or any part of it and took no notice of the letter.
9. Promptly in or about the middle of February 2006 this suit was filed by the respondent claiming that the appellant was a monthly tenant of block "B", that by the aforesaid notice the tenancy had been terminate, and mesne profits.
10. In aid of the suit, this Chapter XIIA application was filed claiming summary judgment.
11. In that application the appellant filed an affidavit-in-opposition which was sworn on 24th July, 2006. The material defence of the appellant is contained in paragraph 4 of this affidavit. It admits that the alleged lease deed of 1992 was never registered. Although it was in possession before coming into operation of the lease, the appellant says, it retained possession by virtue of that lease deed. It has observed the covenants of that deed by timely payment of the entire rent stipulated therein and other charges and by observance of other covenants. The respondent has also acted according to the other terms and conditions in the lease deed.
12. Mr. Pradosh Kumar Mallick, Senior Counsel appearing for the appellant submits that although his occupation is not tenancy, yet, his possession is protected against interference by the respondent-landlord by section 53A of the Transfer of Property Act. He concedes that the alleged lease of 1992 by virtue of non-registration is invalid. The appellant was .in possession before the execution of the alleged lease and his possession has been continued under the said alleged lease. Parties have acted accordingly to the lease. The appellant has been paying rent punctually and observing all other terms stipulated in the alleged lease deed.
13. Therefore, he submits such possession can be defended under section 53A of the Transfer of Property Act. The said section of the said Act applies not only to a lease in presenti i.e. an agreement of lease but also to an agreement of lease but relies on the case of Maneklal vs. Hormusji Jamshedji Ginwalla & Sons, AIR 1950 SC 1 and Manjural Haque vs. Mewajan Bibi & Ors., AIR 1956 Calcutta 350. He further relies on the judgment reported in Technicians Studio Private Limited vs. Lila Ghosh, AIR 1977 SC 2425, to substantiate the contention that the equitable principle of part performance of a contract to transfer, in this case, the part performance of an invalid lease, by virtue of which the lessee has come into possession of the land, applies and that the appellant can resist eviction by
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