A tenant does not sublet the premises merely by executing a Power of Attorney in favor of a partner of the firm.

JUDGMENT :

(Krishna Rao, J.) :

1. The plaintiff has filed the present application praying for Judgment on admission. The plaintiff has filed the suit against the defendants for their eviction, for recovery of ‘khas possession’ and recovery of outstanding rent, damages and mesne profit.

2. The plaintiff has filed the suit under the provisions of West Bengal Premises Tenancy Act, 1997 on the ground of subletting, defaulter in paying the monthly rent and reasonable requirement. The main contention of the plaintiff in the present application is that the defendants have sublated the premises without the consent of the plaintiff and the defendants do not possess the suit property any more.

3. Mr. Swatarup Banerjee with Ms. Somali Mukhopadhyay, Learned Advocates representing the plaintiff submits that the defendants have disclosed the Power of Attorney dated 13th February, 2012 wherein it is clear admission on the part of the defendant that the defendant no. 1 many times lives at abroad and is not in a position to look after the business personally in a proper way and as such he had nominated, constituted and appointed his known person one Mohammed Ayub to look after the said business.

4. Mr. Banerjee submitted that from the averments made in the Power of Attorney that the user and control of the tenancy premises has been parted with and the Deed of Partnership along with the Power of Attorney have been drawn up for providing a clock or cover to conceal a transaction which is not permitted by law.

5. Mr. Banerjee submitted that the Power of Attorney dated 13th February, 2012 clearly disclosed that the defendants have parted with the possession of the suit premises by subletting to Mohammed Ayub which is not permissible under law.

6. Mr. Banerjee submits that in the Power of Attorney, it is also mentioned that Power of Attorney holder is having the right to acquire, sell or dispose of goods and stock-in-trade for cash or on credit for the purpose of carrying on the said business.

7. Mr. Banerjee further submitted that as per the Power of Attorney, the defendants have also given the power to the third party to apply for, obtain and renew all licences, permits as may be necessary or requisite for the purpose of carrying on or developing the trade or business.

8. Mr. Banerjee further submitted that in the said Power of Attorney, it is also mentioned that Mohammed Ayub can also enter into any agreement with the landlords of the said premises relating to the tenancy as may be necessary from time to time.

9. Mr. Banerjee submitted that Mohammed Ayub died on 7th May, 2021 and after the death of Mohammed Ayub, the defendants have executed a fresh Power of Attorney dated 26th August, 2021 in favour of Shahbaz Ayubi and Faisal Ayubi sons of the earlier Power of Attorney holder, namely Mohammed Ayub. She submitted that the said Power of Attorney has been affirmed before the Consulate General of India, Dubai (UAE), therefore, it is evident that the defendants have parted with the possession of the suit premises and shifted to Dubai.

10. Mr. Banerjee further submitted that by the Power of Attorney dated 26th August, 2021, the defendants have given right to sell, purchase, pledge, raise money or convert into money or securities for money and transfer/exchange and other deal in all shares, stocks and other securities, marketable or non-marketable, cheques, bills, drafts, hundis and promissory note and investment through the authorized broker or otherwise to raise loan or hypothecation of the same.

11. Mr. Banerjee submitted that in the said Power of Attorney, the defendants have given right to Shahbaz Ayubi and Faisal Ayubi to enter into the agreement for renting the suit premises which further demonstrates that the defendants have no interest and left the suit premises allowing third party to run their business in the said property.

12. Mr. Banerjee relied upon the judgment reported in (2010) 4 SCC 753 (Karam Kapahi & Ors. –vs-Lal Chand Public Char