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IN THE HIGH COURT AT CALCUTTA
KRISHNA RAO, J.
Jayanta Saha – Appellant
Versus
Janki Bhagwan Dansingani. – Respondent
IA No: GA 5 of 2020 (Old No. GA 750 of 2020) In CS 125 of 2017
Decided on : 26-07-2023
LANDLORD TENANT - LEASE DEED - TERMINATION OF LEASE - SUMMARY JUDGMENT - NOTICE - SERVICE - VALIDITY - "NOT CLAIMED" ENDORSEMENT - EFFECT - TRANSFER OF PROPERTY ACT, 1882, SECTION 111 - ORDER 37 RULE 2 OF THE CODE OF CIVIL PROCEDURE, 1908 - ORIGINAL SIDE RULES OF THIS COURT, CHAPTER XIIIA.
Fact of the Case:
Plaintiff filed a suit for eviction of the defendant from the suit property, alleging non-payment of rent and Municipal tax in accordance with the registered Lease Deed since November 2015. The plaintiff sent notices of demand for payment of arrears of monthly rent and the tax but the notice returned unserved as not claimed. The defendant claimed that the plaintiff refused to accept the rent on one or the other pleas and that the plaintiff had removed the letter box of the defendant due to which no notice/communication was received by the defendant.
Finding of the Court:
The Court held that the defendant had not raised any substantial and genuine triable issues and the defence raised by the defendant was frivolous and vexatious. The Court found that the defendant had not paid the monthly rent from November’ 2015 and the proportionate Municipal tax of the suit premises to the plaintiff and that the defendant had not disclosed any document to establish that the defendant had sent the monthly rent but the plaintiff had denied to accept the same.
Issues: 1. Whether the notice of termination was served upon the defendant? 2. Whether the defendant has wilfully not paid the rent or the plaintiff has not accepted the rent?
Ratio Decidendi: 1. The Court held that the registered letters returned unserved with the endorsement “Not Claimed” and that the defendant had taken the only defence that the post box of the defendant in the ground floor has been removed and no notice was served upon the defendant is not tenable. 2. The Court relied on the principles laid down in Kiranmayi Dasiv. –vs- J.Chatterji, AIR 1949 Cal 479 and IDBI Trusteeship Services Limited vs. Hubtown Limited reported in : (2017) 1 SCC 568 to hold that the defence raised by the defendant is frivolous and vexatious.
Final Decision: The Court decreed the suit in terms of prayers (a) and (aa) of the plaint. An enquiry was ordered to be conducted for damages and mesne profit.
JUDGMENT :
Krishna Rao, J.
1. The plaintiff has filed the present application under Chapter XIII A of the Original Side Rules of this Court for summary judgment. The plaintiff has filed Civil Suit No. 125 of 2017 praying for recovery of vacant and peaceful possession of the suit No. 3B on the 3rd floor of the front building of Premises No. 111, Muzaffar Ahmed Street (commonly known as “Ripon Street”) Kolkata – 700 016, arrears of monthly rent, damages and mesne profit.
2. The plaintiff contended that on 1st March, 2008, a Lease Deed was executed between the plaintiff and the defendant which was duly registered before the Additional Registrar of Assurance-II, Kolkata with respect of the suit premises for a period of 21 years in favour of the defendant on a monthly rent of Rs. 1000/-per month for the first five years, Rs. 1100/-for the second five years, Rs. 1210/-for the third five years, Rs. 1330/-for the fourth year five years and Rs. 1465/-for the remaining last one year. As per the terms and conditions of the Lease Deed, the defendant shall pay the Municipal taxes during the lease period. In the Lease Deed, it is also provided that if the defendant fail to pay the monthly rent for three months and not paid even after demand made by the plaintiff, the Lease Deed entered between the parties will be determined.
3. In terms of the Lease Deed, the defendant has taken possession of the premises on 1st March, 2008 but defaulted in payment of rent and Municipal tax in accordance with the Lease Deed since the month of November’ 2015. The plaintiff had sent a letter to the defendant on 18th May, 2016 calling upon the defendant to pay the arrears of monthly rent from the Month of November’ 2015 as well as the Municipal Tax but the letter sent by the plaintiff to the defendant returned unserved as “Not Claimed”.
4. The plaintiff again on 18th July, 2016 had sent a legal notice calling upon the defendant that the right of the defendant in the premises had ceased by forfeiture for not paying the monthly rent. The legal notice sent by the plaintiff was also returned unserved with the endorsement “Not Claimed”.
5. Mr. Anirban Ray with Mr. Jayanta Sengupta, learned Advocates representing the plaintiff submits that the defendant has violated the terms and conditions of the registered Lease Deed by not paying the monthly rent since November’ 2015 along with the Municipal tax. He further submits that the plaintiff had sent notice of demand for payment of arrears of monthly rent and the tax but the notice returned unserved as not claimed which amounts to good service.
6. Mr. Ray submitted that the plaintiff had also sent legal notice through his learned Advocate by determining the lease but the same was also returned unserved as not claimed thus by the said notice under Section 111 of the Transfer of Property Act, 1882, the plaintiff duly terminated the contract upon expiry of 15 days from the date of service of the said notice upon the defendant.
7. Mr. Ray submitted that the defendant has no defence to the claim of the plaintiff and thus the plaintiff is entitled to get summary judgment of eviction of the defendant from the suit property.
8. Ms. Arunima Lala, learned Advocate representing the defendant submits that the suit filed by the plaintiff is not maintainable as there is no cause of action for the plaintiff to file the instant suit.
9. Ms. Lala submitted that notice of termination was not served upon the defendant at any point of time. She further submits that the plaintiff has removed the letter box of the defendant and due to which no notice/communication was received by the defendant.
10. Ms. Lala submits that the defendant all along made several attempts to pay the monthly rents to the plaintiff but the plaintiff deliberately refused to accept the monthly rent from the defendant on one or the other pleas.
11. Ms. Lala submitted that since the defendant has raised objection for opening of eatery in the ground floor by the plaintiff due to which
A registered letter returned with the endorsement “Not Claimed” is tantamount to good service and is valid service upon the addressee.
A summary judgment cannot be granted if the defendant raises triable issues, including the status of tenancy and acceptance of rent post-lease expiration.
An unregistered lease deed can be looked into for a collateral purpose, namely, to prove the existence of a jural relationship between the parties.
The Court's power to dismiss a suit under Order VII, Rule 11 of the Code of Civil Procedure, 1908 is limited to cases where there is no definite evidence with regard to the quantum of monthly rent.
Validity of termination notice under Section 106 of the Transfer of Property Act and determination of mense profits.
The validity of a notice to quit under Section 106 of the Act of 1882 and the applicability of relief against eviction under Section 114.
A notice under Section 106 of the Transfer of Property Act is valid if served to one partner, binding the partnership firm, unless contested at the first opportunity.
The legal requirements for proving rent payment and depositing rent and interest under U.P. Act No. 13 of 1972 and Order XV Rule 5 C.P.C. must be strictly complied with by tenants in rent disputes.
A lease deed not registered creates a month-to-month tenancy; urgent interim relief suits are exempt from mandatory pre-institution mediation.
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