The Court held that the Civil Court had jurisdiction to determine the issues involved in the proceeding, even though there were pending proceedings under the Securitisation Act and the Recovery of Debts Due to Banks and Financial Institutions Act, as the Debt Recovery Tribunal did not have the jurisdiction to adjudicate the rights and liabilities of the parties arising out of the Leave and License Agreement.

Soumen Sen, J.

This is an application filed by the plaintiff under Chapter XIIIA of the Original Side Rules of High Court praying, inter alia, for a decree for vacant and peaceful possession of Premises No.12A, Camac Street, Kolkata-700017.

2. The case of the plaintiff in short is that the plaintiff is the owner of two flats being Flat No.1A and 1B on the first floor along with two servant quarters, measuring about 3216 sq. ft. situated at Premises No.12A, Camac Street, Kolkata-700017.

3. The defendant was in occupation of the said property in terms of a Leave and Licence Agreement dated 26th September, 2012 since terminated on 23rd May, 2014.

4. In or about September 2012, the defendant approached the plaintiff for letting out the said property as the defendant represented that they require a suitable space in central Kolkata for running a restaurant. Following such request a Leave and Licence Agreement dated 26th September, 2012 was entered into between the parties in respect of the said premises. The said agreement was for a period of three years with effect from 1st November, 2012 till 31st October, 2015. In terms of the agreement, the defendant was under an obligation to pay licence fees at Rs. 100/- per sq. ft. per month equivalent to Rs. 3,21,600/- for a period of three years in which Rs. 51,000/- was agreed to be paid for the first 16 months while the balance amount of Rs. 2,70,000/- was to be adjusted against payment towards Corporation rates and taxes, electricity dues and building maintenance charges. Under the said agreement after a period of 16 months from 1st November, 2012, that is, on and from March, 2014, the defendant shall deposit a sum of Rs. 19,26,000/- as interest free refundable security deposit. On the basis of the aforesaid agreement, the defendant was put into possession. The defendant, however, has failed and neglected to pay the agreed licence fees and continued to use, occupy and exploit the said space for running a restaurant therefrom. The plaintiff claims that a sum of Rs. 39,07,573/- is due and payable on account of unpaid licence fee from 1st November, 2012 to 23rd May, 2014.

5. The defendant defaulted in making payment of Rs. 19,26,000/- towards the security deposit. The cheque issued by the said defendant in partial discharge of its liability for the aforesaid sum, bearing No.34189 dated 1st March, 2014 was dishonoured on presentation and was returned to the plaintiff with endorsement insufficient funds.

6. In view of the aforesaid, the plaintiff issued a notice under Section 106 of the Transfer of property Act on 23rd March, 2014 terminating the Leave and Licence Agreement dated 26th September, 2012 and consequently called upon the defendant to deliver vacant possession of the premises within 15 days from the receipt thereof. The defendant, however, has failed and neglected to make over possession. Hence the suit and the application.

7. The defendant has taken a preliminary point as to the maintainability of this application by citing proviso to Rule 3 of Chapter XIIIA of the Original Side Rules on the ground that the said summon was taken out beyond the time stipulated under the said Rules. It is submitted that the plaint was affirmed on 16th August, 2014 and presented on 18th August, 2014. The writ of summons was issued on 26th August, 2015. Subsequently, the amendment of plaint was allowed on 16th September, 2014. On 16th February, 2015 an order was passed in which a direction was given for filing written statement upon payment of costs by 27th February, 2015 along with other consequential directions for inspection and discovery of documents. The suit was directed for trial fairly at the top of the list on 30th March, 2015. The defendant in terms of the order on 27th February, 2015 has filed a written statement. This application has been taken out on 10th March, 2015 which is beyond time.

8. The second objection appears to be that the plaintiff has suppressed the fact that secured cred