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IN THE HIGH COURT OF CALCUTTA
INDIRA BANERJEE AND SAHIDULLAH MUNSHI, JJ.
Essjay Ericsson Pvt. Ltd – Appellant
Vs.
Dilip Kumar Khandelwal – Respondents
G.A. No. 2475 of 2015
Decided On : 15/10/2015
LANDLORD AND TENANT - NOTICE TO QUIT - VALIDITY - LEASE - MONTHLY TENANCY - TERMINATION - NOTICE PERIOD - TRANSFER OF PROPERTY ACT, 1882, SECTION 106(1).
Fact of the Case:
The appellant-tenant, a successor-in-interest of Ericsson Telephone Sales Corporation AB, occupied the demised premises as a monthly tenant under a tenancy agreement that expired on 1st January 1975. The plaintiff-landlord, who acquired the shares of the co-owners of the demised premises and became its sole owner, issued a notice to quit under Section 106 of the Transfer of Property Act, 1882, terminating the tenancy with 15 days' notice. The appellant challenged the validity of the notice, arguing that it should have been a six-month notice as per Section 106(1) since the original lease was for manufacturing purposes.
Finding of the Court:
The court held that the tenancy was a monthly tenancy created by a valid lease agreement, which was terminable by three months' notice. The expiry of the initial agreement did not change the nature and character of the demise. Section 106(1) would not be attracted since there was a contract to the contrary, and after expiry of the lease agreement, the appellant remained in possession as a monthly tenant. Therefore, the 15-day notice period under Section 106 was sufficient.
Issues: 1. Whether the notice to quit issued by the landlord was valid and in accordance with the provisions of Section 106 of the Transfer of Property Act, 1882? 2. Whether the tenancy was a yearly tenancy terminable by six months' notice or a monthly tenancy terminable by 15 days' notice? 3. Whether the expiry of the initial lease agreement changed the nature and character of the demise?
Ratio Decidendi: 1. The court interpreted Section 106(1) of the Transfer of Property Act, 1882, and held that it would not be attracted if there was a contract to the contrary. In this case, the initial lease agreement, which created a monthly tenancy terminable by three months' notice, was a valid contract to the contrary. 2. The court distinguished the case from Ram Kumar Das v. Jagadish Chandra Deb Dhabal Deb and another, (1952) 1 SCR 269, cited by the appellant, and held that the judgment in that case was rendered in a different factual context and did not support the appellant's argument that the tenancy became a yearly tenancy terminable by six months' notice upon expiry of the initial agreement. 3. The court held that the expiry of the initial lease agreement did not change the nature and character of the demise, and the appellant remained in possession as a monthly tenant, paying rent from month to month.
Final Decision: The court dismissed the appeal, holding that the learned single Bench rightly pronounced final judgment and decree in favor of the plaintiff-landlord.
INDIRA BANERJEE, J.
This appeal is against a final judgment and decree dated 16th July, 2015, passed by the Hon— ble single Bench, in favour of the plaintiff respondent inter alia for khas, peaceful and vacant possession of premises No.5, Commissariat Road, Kolkata ' “ 700 022, hereinafter referred to as the demised premises, in an application under Chapter XIIIA of the Original Side Rules of this Court being G.A. No.288 of 2015 in the suit being C.S. No.372 of 2014.
2. The plaintiff respondent was initially a co-owner of the demised premises. The plaintiff respondent purchased the shares of the co-owners of the demised premises by four several registered deeds of conveyance all dated 2nd May, 2014, and is now its sole owner.
3. The appellant defendant is a tenant at the demised premises, as the successor-in-interest of Ericsson Telephone Sales Corporation AB, inducted as a monthly tenant of the demised premises about 52/53 years ago. An agreement dated 29th March, 1963 was executed between the then owners of the demised premises and the said Ericsson Telephone Sales Corporation AB.
4. The agreement executed on 29th March, 1963 has, however, expired, but the appellant defendant has remained at the demised premises, upon payment of monthly rent which has been revised from time to time, the last rent paid by the defendant appellant to the plaintiff respondent being Rs.24,000/- per month.
5. According to the plaintiff respondent, immediately after, acquisition of the shares of the co-owners, a letter of attornment was issued. The said letter of attornment had been acted upon by the appellant defendant. The appellant defendant has tendered rent to the plaintiff respondent.
6. It is not in dispute that the tenancy was governed by the provisions of the Transfer of Property Act, 1882. The plaintiff respondent issued a notice dated 12th July, 2014 under Section 106 of the Transfer of the Property Act, 1882, through his Advocate, terminating the tenancy of the said premises on expiry of 15 days from the date of receipt of the said notice and calling upon the appellant defendant to vacate and deliver peaceful possession of the demised premises to the plaintiff respondent.
7. The notice under Section 106 of the Transfer of Property Act, 1882 was apparently served on the defendant appellant on 15th July, 2014 at its office in Kolkata and on 17th July, 2014 at its office in New Delhi. According to the plaintiff respondent, the period mentioned in the notice expired on 31st July, 2014. In the plaint, as also the Chapter XIIIA of the application, it is contended that the plaintiff defendant continued in occupation of the demised premises as a trespasser on and from 1st August, 2014.
8. The learned single Bench held :
' In deciding an application for summary judgment the Court is required to find out if the defence disclosed by the defendant raises any triable issue.
In the instant case it is not in dispute nor it can be disputed that the said tenancy is determinable by serving a notice under Section 106 of the Transfer of Property Act. Although a submission is made that the said notice is defective but the learned Counsel is unable to substantiate such defence. The only ground on which the said notice is impinged is that the plaintiff could not have unilaterally determined the said tenancy. The defendant does not dispute that they have received the letter of attornment and the plaintiff by reason of such communication became the absolute owner of the said property. In fact, the defendant during the pendency of this proceeding had attempted to tender rent to the plaintiff treating the plaintiff as the owner of the said property. Moreover, a tenant is not entitled to deny the title of the plaintiff in view of Section 116 of the Indian Evidence Act. Insofar as the objection as to Order 2, Rule 4 is concerned in my view the suit cannot fail.
Under such circumstances, there shall be an order in terms of prayers (a) and (b) of the Master— s Summons
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