Calcutta High Court
Messrs Madhav Mukund Finance Pvt Ltd vs Messrs Exterior Interior Limited on 24 July, 2024
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
CS/88/2015
MESSRS MADHAV MUKUND FINANCE PVT LTD.
VS
MESSRS EXTERIOR INTERIOR LIMITED
For the Plaintiff : Mr. Jayanta Sengupta, Adv.
Mr. Shayak Mitra, Adv.
Mr. Abhijit Sarkar, Adv.
Mr. Abhik Chitta Kundu, Adv.
Hearing concluded on : 15/07/2024
Judgment on : 24/07/2024
Sugato Majumdar, J.:
This is an undefended suit filed for recovery of possession, mesne profit along with other prayers.
The plaint case in nutshell is that Sri Prahlad Roy Khaitan and Smt. Santosh Khaitan are absolute owners of a space measuring about 2215 sq. ft. of built up area in the 4th Floor of Rajkamal Building at 13, Camac Street, Kolkata - 700017, within jurisdiction of this Court. The said owners leased out the space to the Plaintiff company. The Plaintiff, thereafter, entered into and executed an unregistered lease deed dated 14/12/2002 in favour of the Defendant for a period of 12 years, creating a Page |2 monthly tenancy thereby. In terms of the said unregistered lease deed, tenancy of the Defendant was valid till 31/12/2014. The agreement was countersigned by the aforesaid owners of the premises, as confirming parties. Rate of rent of the tenancy was Rs.55,000/- per month and maintenance charges. The Defendant lastly paid rent to the Plaintiff at a rate of Rs.83,648/- per month inclusive of maintenance charges. Rent was payable according to English calendar month. On expiry of the lease, the Defendant was bound to handover peaceful and vacant possession to the Plaintiff.
The Plaintiff served a notice on the Defendant dated 20/12/2014 asking them to handover peaceful and vacant possession of the suit property on expiry of 31/12/2014 to the Plaintiff raising issues of maintenance. The Plaintiff replied the said letter of the Defendant by its letter dated 08/01/2015. It was stated that in case the Defendant failed to vacate the premises by 28/02/2015, the Plaintiff would be compelled to initiate legal action for recovery of the premises. Extension of time given by the Plaintiff was purely a matter of good gesture in order to enable the Defendant to find out alternative accommodation. But his is not waiver or acquiescence of the right of the Plaintiff to recover vacant possession of the suit premises which acquired on 31/12/2014. Since the Defendant neglected and failed to vacant the premises by 28/02/2015, the Plaintiff instituted the instant suit praying for recovery of possession, mesne profit along with other prayers.
The Defendant entered appearance in the suit but did not file written statement contesting the suit. Therefore, in terms of the order dated 14/08/2019, this suit was treated as undefended one.
The Plaintiff adduced oral as well as documentary evidences.
Page |3 The Learned Counsel for the Plaintiff filed written notes of argument. In course of hearing a question was raised whether the suit involves commercial dispute as defined in Section 2 of the Commercial Courts Act, 2015. It is admitted in the plaint that the suit premises was used for commercial purpose. It was submitted by the Learned Counsel for the Plaintiff that tenancy of the Defendant is a monthly one since it was based on unregistered lease agreement. Tenancy was terminated under Section 106 of the Transfer of Property Act, 1882. Referring to observation made by a Single Bench of this High Court in Deepak Polymars Pvt. Ltd. Vs. Anchor Investments Pvt. Ltd. [(2021) SCC OnLine Cal 4323], Mr. Sengupta, the Learned Counsel for the Plaintiff argued that the judgment of the co- ordinate Bench was not set aside by the Supreme Court of India. In that case, it was held that when a tenancy is determined or terminated under Section 106 of the Transfer of Property Act, 1882, a statutory right is created to evict and recover possession. That dispute does not partake the character of commercial dispute. This judgment of the Single Bench was not set aside by the Supreme Court of India in terms of the Order dated 30/07/2021.
I agree with the argument of Mr. Sengupta, as such, the suit continued to appear in the list of Ordinary Original Side Jurisdiction.
Mr. Sengupta argued that genesis of the tenancy was unregistered lease deed. Referring to observations and finding of the Supreme Court of India in Park Street Properties Pvt. Ltd. Vs. Dipak Kumar Singh & Anr. [(2016) 9 SCC 268], Mr. Sengupt argued that compulsorily registerable but unregistered lease agreement of immovable property creates only monthly tenancy terminable under Section 106 Page |4 of the Transfer of Property Act, 1882. As such, tenancy would run from month to month. Such lease would be terminable with 15 days' notice prior. As evidence is adduced, genesis of tenancy is unregistered lese deed dated 14/12/2002. It is apposite to refer to the observations made in Burmah Shell Distributing V Khaja Midhat Noor and Ors. [(1988) 3 SCC 44]:
"5. In view of the para 1 of Section 107 of the Act, since the lease was for a period exceeding one year, it could only have been extended by a registered instrument executed by both the lessor and the lessee. In the absence of registered instrument, the lease shall be deemed to be "lease from month to month". It is clear from the very language of Section 107 of the Act which postulates that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. In the absence of registered instrument, it must be a monthly lease. The lessee and the sub-lessee in the facts of this case continued to remain in possession of the property on payment of rent as a tenant from month to month. The High Court so found. We are of the opinion that the High Court was right."
It was held by three Judges' Bench of the Supreme Court of India in Anthony Vs. K.C. Ittoop & Sons [(2000) 6 SCC 394], relied on by the Supreme Court of India in Park Street Properties Pvt. Ltd.'s case (supra) as follows:
"16. Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non-registration of the document Page |5 had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted."
Principles of law emerges from the above mentioned decisions is that in case of unregistered deed of lease, a monthly tenancy comes into being, terminable under Section 106 of the Transfer of Property Act, 1882.
In the instant case a monthly tenancy came into being, as argued by Mr. Sengupta. Although, in terms of the unregistered deed of lease the tenancy came to an end on expiry of 31/12/2014 and the Plaintiff asked the Defendant to vacate the premises in terms of the notice dated 20/12/2014 the said notice was not a fifteen days' notice as contemplated in Section 106 of the Transfer of Property Act, 1882. A subsequent notice dated 03/01/2015 (Ext. G) was served upon the Defendant asking them to vacate the premises by 28/12/2015. This letter dated 03/01/2015 extended the period of occupation since the Plaintiff did not receive any rent for this period, as averred in the plaint. Ext. H is a reply letter to Ext. G. Clearly Ext. H acknowledged receipt of the letter dated 03/01/2015, namely, Ext. G. Plaintiff adduced evidence that in spite of receipt of the notice dated 03/01/2015 the Defendant neglected and failed to hand over the possession of the suit premises after 28/02/2015. Therefore, occupation of the Defendant of the suit premises becomes unauthorized on and from 1st March, 2015.
In the circumstances on the basis of evidence adduced by the Plaintiff, both oral and documentary it is inevitable conclusion that the Plaintiff is entitled to a Page |6 decree of recovery of possession of the suit premises. A decree of eviction of the Defendant and the recovery of the khas possession of the suit premises.
Hence, it is ordered that the Plaintiff do get a decree of eviction against the Defendant, its directors, agents, servants, employees and all other persons claiming through him and decree for recovery of vacant and khas possession. Let the decree be drawn up as a preliminary decree.
Fix 16th August, 2024 for enquiry into and consideration of mesne profit.
(Sugato Majumdar, J.)