IMPORTANT POINT
To constitute lease there must be transfer of an estate for a term.

I.P. Mukerji, J.—Marco Polo is a restaurant on Park Street. It is spread over an area of 2731 sq. ft. on the north western side of the ground floor of a building called “Anuj chambers”. It is numbered as 24, Park Street. The building is also known as the “annexe building”. A company by the name of Magma Leasing Limited is the owner of this area. The cause title of the plaint reveals that there are 20 trusts managed by 6 trustees. One trustee died during pendency of the suit. The plaintiff trustees got a lease of this property on 22nd September, 2003 and 1st December, 2003 from Magma Leasing Limited by execution of 20 registered deeds of lease. The deeds of lease mentioned that the interest of the lessors was ‘undivided and demarcated’. These lessees had the power to sub-lease.

2. On 22nd April, 2004, these lessees (the plaintiffs and the deceased trustee), sought to underlease the said premises to the defendant on a stamp paper of Rs. 10/-. The purported demise was for nine years from 22nd April, 2004 till 21st April, 2013. The sub lessee would pay the stipulated rent by a single cheque to Mayank Poddar Family Trust which would issue a single receipt. It was stated in the lease deed that the lessors/plaintiffs were making a demise of that area to the lessee defendant. It was submitted that the last rent paid by the defendant was Rs. 1,98,000/- per month. The instrument was unregistered By a notice dated 16th May, 2013 issued by M/s Singhvi and Company Advocates, ostensibly u/s 106 of the Transfer of Property Act, 1882, the defendant was called upon to deliver vacant and peaceful possession of the premises to one of the plaintiff trustees within fifteen days of the date of receipt of the notice. The notice also informed the defendant that on 31st March, 2013 one of the trustees would visit the premises to take vacant and peaceful possession thereof. The defendant did not deliver possession of the premises unto the plaintiff. Hence this suit.

3. At the very threshold Mr. Abhrajit Mitra, learned senior advocate for the defendant took the point that the demise stated to be for nine years had to be by a registered and properly stamped instrument. The deed of lease was not registered and was insufficiently stamped. Hence the deed of lease could not be looked into.

4. Hereinafter, these parties will be known as lessors/plaintiffs and lessee/defendant.

5. The lessors by a notice dated 16th May, 2013 sought to determine the lease/tenancy with fifteen days’ notice.

6. Now, I come to the main dispute between the parties. According to the lessee they are entitled to obtain leave of this court to defend the suit on a legal issue. The issue is this. The superior lessor of the lessors had granted separate leases to them. The rent was paid separately by lessors to the superior landlord. Therefore the holdings were all different. The lessors had granted separate leases to the lessee. The rent that they were paying had to be appropriated amongst the lessors according to their shares in the property. If it were so appropriated each of the lessors got less than Rs. 10,000/- a month. Hence, the West Bengal Premises Tenancy Act, 1997 applied to the tenancy. The notice dated 16th May, 2013 could not have determined the tenancy. The lessee is a monthly tenant under the said rent act.

7. Mr. Abhrajit Mitra very ably assisted by Mr. Ghosh showed me a division bench judgment of our court Coal India Ltd. v. Apeejay Private Ltd., 2009 (4) CHN 192. It held that if the defendant raised a substantial question of law, it was entitled to defend the suit. Learned Counsel for the defendant suggested that a substantial question of law had been raised by them and that this court should not pass a judgment and decree on the Chapter XIIIA application but should relegate the suit to trial.

8. What I have stated above is a narration of a basic question of law raised by the lessee. Whether, this issue raises a substantial question of law or not has to be analy