Calcutta High Court
Coal India Ltd vs Apeejay Private Ltd on 24 August, 2009
Author: I.P. Mukerji
Bench: Pinaki Chandra Ghose, I.P. Mukerji
G.A. No. 1787 of 2009
A.P.D.T. No. 8 of 2009
C.S. No. 41 of 2006
In the High Court at Calcutta
Civil Appellate Jurisdiction
ORIGINAL SIDE
PRESENT:
The Hon'ble JUSTICE PINAKI CHANDRA GHOSE
The Hon'ble JUSTICE I.P. MUKERJI
COAL INDIA LTD.
Versus
APEEJAY PRIVATE LTD.
For the appellant : Mr. P. Mullick, Sr. Adv.
Mr. D. Ghosh, Adv.
Mr. Sudhakar Prosad, Adv.
Mr. Partha Basu, Adv.
For the respondent No.1 : Mr. Anindya Kumar Mitra, Sr. Adv.
Mr. P.K. Ghosh, Sr. Adv.
Mr. Pratap Chatterjee, Sr. Adv.
Mr. Abhrajit Mitra. Adv.
Ms. Rajashree Kajaria, Adv.
Mr. D. Mondal, Adv.
Mr. Jishnu Chowdhury, Adv.
Mr. A. Ray, Adv.
Ms. Sonia Sharma, Adv.
Mr. Debraj Bose, Adv.
Heard on: 13.07.2009, 22.07.2009, 23.07.2009
Judgment on: 24th August, 2009
I.P. Mukerji, J.
In a chapter XIIIA application, the Hon'ble Court below has passed a decree of eviction against the appellant. Hence, this appeal by them. The respondent is the owner of premises No. 15 Park Street, Calcutta - 17. As is well known it is one of the most expensive areas of Calcutta. The 6th floor of this premise, has been divided into blocks A,B & C. The appellant occupies the entire floor.
The total floor area of the three blocks is 28,406.614 sq.ft. The rent and other charges together paid by the appellant to the respondent is Rs.8,83,016.71 per month. The appellant has been there since the early seventies.
We are here concerned with block 'B'. It has an area of 10,458.074 sq.ft. Admittedly, the appellant was already in possession of this area, when an alleged agreement of lease was entered into between the parties on 22nd January, 1992 whereunder from 1st March, 1991 block 'B' was taken as demised to the appellant for a period of 21 years upon payment of monthly rent and performance of other covenants.
Now, this lease was never registered.
Thereafter on 10th July, 2001 the new rent Act The West Bengal Premises Tenancy Act 1997 came into force. Since the rent was very high, this lease did not fall under the rent Act.
The respondent realised so and by a notice in writing dated 4th January, 2006 it described the occupation of the appellant as monthly tenancy and purported to terminate it by giving the appellant 15 days notice.
The appellant did not vacate the premise or any part of it and took no notice of the letter.
Promptly in or about the middle of February 2006 this suit was filed by the respondent claiming that the appellant was a monthly tenant of block 'B', that by the aforesaid notice the tenancy had been terminate, and mesne profits.
In aid of the suit, this chapter XIIA application was filed claiming summary judgment.
In that application the appellant filed an affidavit in opposition which was sworn on 24th July, 2006. The material defence of the appellant is contained in paragraph 4 of this affidavit. It admits that the alleged lease deed of 1992 was never registered. Although it was in possession before coming into operation of the lease, the appellant says, it retained possession by virtue of that lease deed. It has observed the covenants of that deed by timely payment of the entire rent stipulated therein and other charges and by observance of other covenants. The respondent has also acted according to the other terms and conditions in the lease deed.
Mr. Pradosh Kumar Mallick, Senior Counsel appearing for the appellant submits that although his occupation is not tenancy, yet, his possession is protected against interference by the Respondent-landlord by section 53A of the Transfer of Property Act. He concedes that the alleged lease of 1992 by virtue of non- registration is invalid. The appellant was in possession before the execution of the alleged lease and his possession has been continued under the said alleged lease. Parties have acted accordingly to the lease. The appellant has been paying rent punctually and observing all other terms stipulated in the alleged lease deed.
Therefore, he submits such possession can be defended under section 53A of the Transfer of Property Act. The said section of the said Act applies not only to a lease in presenti i.e. an agreement of lease but also to an agreement to lease but relies on the case of Maneklal - Vs - Hormusji Jamshedji Ginwalla & Sons (AIR 1950 SC 1) and Manjural Haque - Vs - Smt. Mewajan Bibi and Ors AIR 1956 Calcutta 350. He further relies on the judgment reported in Technicians Studio Private Limited - Vs - Smt. Lila Ghosh AIR 1977 SC 2425 to substantiate the contention that the equitable principle of part performance of a contract to transfer, in this case, the part performance of an invalid lease, by virtue of which the lessee has come into possession of the land, applies and that the appellant can resist eviction by the landlord contrary to terms of the invalid lease, under section 53A of the Transfer of Property. He has also relied extensively on paragraph 4 of the affidavit-in-opposition wherein the appellant has narrated the above defence and part performance by them and readiness and willingness on their part to adhere to the terms of the alleged lease. Therefore, he contends that there is, a substantial triable issue and that he given leave to defend. He has also drawn our attention to the principles governing grant of summary judgment which were precisely enunciated in the case of Sm. Kiranmoyee Dassi - Vs. Dr. J. Chatterjee (1945) 49 CWN 246 and approved and followed in M/s. Mechalec Engineers & Manufacturers - Vs. - M/s. Basic Equipment Corporation, AIR 1977 SC 577.
Mr. Anindya Kumar Mitra, Senior Counsel for the Respondent on the other hand submits that once the lease in question was not registered, it was invalid, and void ab initio. No rights can be claimed under this alleged lease when possession was being enjoyed by the appellant prior to the lease. In other words, the appellant did not come into possession by virtue of the lease. After coming into operation of the latest rent Act in West Bengal, the appellant was at best a monthly tenant, whose tenancy has been duly terminated by the above notice. Hence, the appellant was a trespasser and ought to be evicted in a summary manner. In support of his submission he relied on in the case of Biswabani Private Limited - Vs - Santosh Kumar AIR 1980 SC 226, Singer India Limited - Vs - Anita Gupta 88 (2000) DLT 186 AIR 2000 SC 3523 and Avinash Kumar Chauhan - Vs - Vijay Krishna Mishra AIR 2009 SC 1489. The principles on which summary judgments are to be made are very precisely explained in M/s. Mechalec Engineers & Manufacturers - Vs. - M/s. Basic Equipment Corporation, AIR 1977 SC 577, quoting from Sm. Kiranmoyee Dassi - Vs. Dr. J. Chatterjee (1945) 49 CWN 246 as follows:
8. In Sm. Kiranmoyee Dassi - v. - Dr. J. Chatterjee, (1945) 49 Cal WN 246 at p. 253. Das. J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 37, C.P.C. in the form of the following propositions (at p. 253):
"(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendants is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sing judgment and the defendant is entitled to unconditional leave to defend.
(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff''s claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.
(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence."
The above Supreme Court case has been uniformly followed by the Supreme Court (see Defiance Nitty Industry Private Limited - Vs - Jay Arts) 2006 8 SCC
25. We are very familiar with the principles that govern grant of summary judgment. It is only in very rare cases, where the defendant has not and up to the trial has no real possibility of putting up a defence, or the defence is illusory or sham or practically moonshine that the plaintiff is entitled to judgment forthwith. Even when the defendant's condition is practically defenceless, the court retains its discretion to allow the defendant to defend upon securing the plaintiff's claim. Thus, even if the defendant has some case, he is permitted to stand trial and his defence is not to be shut out.
Now, in considering a triable issue, is a triable issue of law included? In our opinion, it is.
Order XIV, Rule 1 sub-rule 4 of the Code of Civil Procedure states that issues are of two kinds: -
a) Issues of Fact.
b) Issues of Law.
An issue of law can be a triable issue, entitling the defendant to leave to defend has been recognized by the Supreme Court in the case of Raj Duggal - Vs
- Ramesh Kumar 1991 supplementary 1 SCC 191. In that case, the Supreme Court has said that summary judgment is not to be pronounced when "any difficulty on issues as to law arises".
Thus, if, in a Chapter XIIA application or Order 37 suit, a question of law is raised by the defendant and the court is of the opinion that it is entirely without substance and that the defence is vexatious or moonshine, it can disregard such defence and pronounce judgment for the plaintiff.
But if the defendant raises any difficult question of law, the court should desist from pronouncing summary judgment and allow the defendant leave to defend. In our opinion, difficult question of law would also include any substantial question of law.
From a bare perusal of the order under appeal it is quite clear that some factual issues, whether pleaded or not were sought to be raised before the Hon'ble First Court, by both the parties and that has been dealt with by the said court. In fact there is a finding to this effect that " the increase as contemplated under the local rent laws was paid subsequently."
Again there is some finding as to part performance as under:
"The only act of part performance pleaded by the defendant is being put in possession. Such possession was with the defendant and will not constitute an act of part performance. No further act of part performance in furtherance of the lease agreement has been established nor has any such other act of part performance been pleaded and the decision reported in AIR (1950) SC1 relied on by the defendant is of no assistance to it."
From the findings above in the order it is plain that there is a triable factual dispute between the parties.
It is plain from a consideration of the above authorities that when a lease does not conform to the requirements of law it is invalid. It is equally true that when a person is delivered possession under the invalid lease, he is not to be considered as a lessee at all because there is no valid lease in his favour. However, if both the alleged grantor of the lease and the person in possession by virtue of the invalid grant have acted according to the terms and conditions of that invalid lease, the rule of estoppel operates. The grantor cannot deny the terms of the invalid lease and the person in possession can set up the invalid lease as a shield to defend his possession. The legal rights of the parties differ, according to the above authorities, according to the date of entering into possession. The rights of the parties also differ if the result of an invalid grant makes the alleged lessee, a protected tenant under the rent act.
These are no doubt quite difficult or substantial issues of law. It is not proper at this stage on the basis of the above authorities to pronounce summary judgment in favour of the respondent, as held in the case of Raj Duggal - vs. - Ramesh Kumar (Supra).
Therefore this appeal succeeds. The judgment and order dated 20th May 2009 is set aside. We grant the appellant unconditional leave to defend. We, however, feel that the suit should be expedited. The advocate on record for the respondent is to serve a copy of the plaint on the advocate on record for the appellant within 3 days of delivery of the certified copy of this order, if not already served. Written statement to be filed by the appellant within a period of 2 weeks thereafter or 2 weeks from the date of delivery of certified copy, if plaint has already been served. Cross order for discovery by 2 weeks from the date of filing of the written statement. Inspection forthwith. The above directions are peremptory. Thereafter the plaintiff may approach the Hon'ble judge taking suits to try the same on an expeditious basis. We make it clear that we have not expressed any opinion on any issue of facts or law save and except that the appellant has raised triable issues as discussed above.
There will be no order as to costs.
Urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(I.P. MUKERJI, J.) I agree, (PINAKI CHANDRA GHOSE, J.)