The acceptance of rent by the landlord during the pendency of the suit and appeal does not amount to a waiver of the notice to quit if there is no intention on the part of the landlord to treat the lease as subsisting.

Subhro Kamal Mukherjee, J.

This is an appeal against judgment and decree dated August 13, 2014 passed by the learned judge, Seventh Bench, City Civil Court at Calcutta in Title Suit No. 560 of 2006.

The plaintiff is the appellant.

2. By the impugned decree, the learned trial judge dismissed the suit holding, inter alia, that the tenancy of the defendant was not lawfully terminated by a notice under Section 106 of the Transfer of Property Act as the notice did not expire with the expiry of the month of tenancy although it was for a longer duration than fifteen days. The learned judge, further, held that such a notice by the plaintiff was insufficient in terms of the requirements of Section 106 of the Transfer of Property Act.

3. Mr. Roy Chowdhury, learned senior advocate appearing for the plaintiff, submits that the defendant was a tenant under the plaintiff at a monthly rental of Rs. 13,230/- (Rupees thirteen thousand two hundred thirty) only. Mr. Roy Chowdhury submits that the relationship of the parties is governed under the Transfer of Property Act inasmuch as the West Bengal Premises Tenancy Act, 1997, shall not apply in relation to such tenancy as it was for commercial purpose and the rent was more than Rs. 10,000/- (Rupees ten thousand) only.

4. Mr. Roy Chowdhury submits that the notice terminating the tenancy was issued on November 18, 2005 and it was served on the defendant by registered post on November 21, 2005. He, further, submits that a copy of notice was, also, personally served on the defendant by hand on November 18, 2005 itself. Mr. Roychowdhury draws our attention to the said notice dated November 18, 2005 and submits that the tenancy was determined by such notice calling upon the defendant to quit, vacate and deliver vacant possession of the tenanted premises within thirty days from the date of receipt of such notice. Mr. Roy Chowdhury, further, submits that, in view of the amendment of the Transfer of Property Act, the learned trial judge could not hold that the notice was insufficient.

5. Mr. Arun Kumar Maity, learned advocate appearing for the respondents, submits that as the tenancy was created during the subsistence of the West Bengal Premises Tenancy Act, 1956, the relationship of the parties shall be governed under the said Act and 1997 Act has no application. He submits that the office of Milk Commissioner, West Bengal, Directorate of Dairy Development, was set up in the tenanted premises. From the said premises, Sales and Accounts Department are functioning. As the office was set up to control and supervise the entire process of milk supply to Kolkata and Greater Kolkata, the tenancy was for manufacturing purpose as the activities of the office are linked with processing and manufacturing activities.

6. Lastly, Mr. Arun Kumar Maity submits that, even after filing of the suit and even after passing of the decree, the plaintiff received rent from the defendant and, therefore, the defendant has become a monthly tenant. The conduct of the plaintiff, clearly, shows that it had accepted the defendant as a subsisting tenant.

7. Before dealing with the contentions of Mr. Maity, we record that the learned trial judge found that the tenancy would not be governed under the West Bengal Premises Tenancy Act as the suit premises has been used by the defendant as an office, that is, for non-residential purpose. It was, also, found that the rent has been for more than Rs. 10,000/- (Rupees ten thousand) only per month.

8. Section 3(f)(i) of the West Bengal Premises Tenancy Act, 1997, provides that any premises let out for non-residential purpose, which carries more than Rs.10,000/- (Rupees ten thousand) only as monthly rent in the areas included within the limits of the Kolkata Municipal Corporation or the Howrah Municipal Corporation, nothing contained in the West Bengal Premises Tenancy Act, 1997, shall apply to such premises.

9. Admittedly, the tenancy was for non-residential purpose; rent was Rs.13,230/- (Rupees