Summary judgment requires clear evidence from the plaintiff, and the existence of triable issues necessitates a full hearing.

JUDGMENT :

Krishna Rao, J.

1. The plaintiff has filed the present application being G.A. No. 2 of 2021 in CS (Com) No. 253 of 2024 (Old No. CS 60 of 2021) under Order XIIIA of the Code of Civil Procedure, 1908 for summary judgment.

2. The plaintiff has filed the suit praying for eviction and recovery of khas possession of the suit property and mesne profit. The plaintiff is the owner of “Karnani Mansion” situated at premises nos. 21, 23, 25A, 25B, 27A, 27B, 29, 31, 33, 35, 37, 39, 43, 45, 47, 55 and 57 situated at Park Street, Kolkata-700016 including the suit property being Shop nos. “E” and “F” measuring an area of 2,200 sq.ft. including mezzanine floor measuring an area of 500 sq.ft.

3. The Directors and shareholders of the defendant company, namely, Sanjay Kumar Shaw and Rajesh Kumar Jaiswal were earlier in their individual capacities, inducted into the suit property as tenants by the plaintiff. The plaintiff has initiated an Ejectment Suit against Shri Sanjay Kumar Shaw and Rajesh Kumar Jaiswal in the year 2005 before the Learned Court of City Civil Court at Calcutta.

4. Mr. Sabyasachi Choudhury, Learned Senior Advocate representing the plaintiff submits that during the pendency of the ejectment suit before the Learned City Civil Court, Calcutta, Shri Shaw and Jaiswal surrendered their tenancy to the plaintiff by a letter dated 17th January, 2018 and requested for withdrawal of the ejectment suit. He submits that by virtue of the said surrender of tenancy, the ejectment suit lost its force and the plaintiff had undertaken to withdraw the said ejectment suit.

5. Mr. Choudhury submits that only after surrender of the tenancy by Shri Shaw and Shri Jaiswal, the defendant company controlled by Shri Shaw and Jaiswal was inducted as monthly tenant in the suit property on 1st February, 2018 and the terms of the tenancy of defendant were recorded in an unregistered and insufficiently stamped instrument.

6. Mr. Choudhury submits that the defendant has admitted the jural relationship between the parties as landlord and tenant by paying monthly rent of Rs. 59,000/- including GST in respect of the suit property. He submits that the defendant is a monthly tenant under Transfer of property Act, 1882 and the plaintiff has chosen not to rely upon the unregistered instrument in this suit.

7. Mr. Choudhury submits that the plaintiff has issued notice to the defendant under Section 106 of the Transfer of Property Act, 1882 on 2nd January, 2020 to quit and the same was duly received by the defendant but inspite of receipt of the notice, the defendant has not vacated the premises. He submits that initially, the plaintiff has filed the suit against the defendant on the basis of the notice under section 106 of the Transfer of Property Act, 1882 before the Regular Division of this Court being C.S. No. 164 of 2020 but pursuant to the objection raised by the defendant, the plaintiff has withdrawn the said suit and filed the present suit before this Court as Commercial Suit.

8. Mr. Choudhury submits that the tenancy of the defendant is terminated on expiry of 18th January, 2020 when the period of 15 days from the date of receipt of notice dated 3rd January, 2020 expired. He submits that the defendant instead of vacating the premises and handing over the same to the plaintiff, the defendant continued and still continuing with the suit property as illegal trespasser since 19th January, 2020.

9. Mr. Jishnu Chowdhury, Learned Senior Advocate representing the defendant submits that initially when the plaintiff has filed the suit as regular suit, the defendant raised objection that the suit filed by the plaintiff is a commercial dispute and accordingly the plaintiff has withdrawn the suit and filed before this Court as Commercial suit but subsequent to the judgment passed in the case of Deepak Polymers Vs. Anchor Investments Pvt. Ltd. reported in 2021 SCC OnLine 4323, the suit cannot be said to be a commercial suit and is not maintainable before this Court. He furt