Calcutta High Court (Appellete Side)
Sri Rajendra Singh vs Mrs. Durga M. Bhatt on 5 October, 2023
Author: Supratim Bhattacharya
Bench: Supratim Bhattacharya
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IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Supratim Bhattacharya
S. A. No. 4 of 2010
Sri Rajendra Singh
Versus
Mrs. Durga M. Bhatt
For the appellant : Mr. Samiran Giri,
Ms. Madhumita Patra.
For the respondent : Mrs. Sutapa Sanyal
Mr. Ashis Kumar Mukherjee,
Mr. Saurabh Prasad.
Heard On : 07.07.2023
Judgment Delivered On : 05.10.2023
Supratim Bhattacharya, J.:
1. The instant second appeal has been preferred by the appellant/defendant/lessee being aggrieved by and dissatisfied with the Judgment and decree passed in Title Appeal No. 158 of 2007 dated 17.09.2009 by the Ld. Additional District Judge, 10th Court at Alipore, South-24-Parganas.
2. Through the said Judgment the Ld. First Appellate Court has been pleased to affirm the Judgment and decree dated 24.04.2007 and 2 21.05.2007 respectively passed by the Ld. Civil Judge Senior Divn., 9th Court at Alipore South-24-Parganas in Title Suit no. 99 of 2004 and thereby dismissing the first appeal on contest without cost.
3. Before the Ld. Trial Court the respondent/plaintiff/lessor had prayed for a decree for ejectment of the appellant/defendant/lessee from the suit property that is one room measuring 300 sq. ft. situated on the eastern side that is on the front portion of the ground floor of the building situated at the premises No. 2 Raja Basanta Roy Road within P.S. Tollygunge, District- South 24 Parganas and had also prayed for arrears of rent and for damages.
4. The Ld. Trial Court decreed the suit in part on contest with cost.
5. Being aggrieved by the Judgment passed by the Ld. Trial Court the Defendant/lessee preferred the first appeal.
6. The appellant in the instant second appeal was the appellant before the Ld. First Appellate court and the defendant before the Ld. Trial Court.
7. At the time of admission of the instant second appeal the following substantial question of law has been framed:
"Whether the Ld. Judges in the Courts below substantially erred in law in decreeing the suit for eviction in the absence of a valid notice determining the lease under Section 106 of the Transfer of Property Act, 1882?"
8. As per the case of the respondent/plaintiff, the plaintiff being the lessor gave a lease for 99 years to the defendant/lessee in respect of one room in the front side of the ground floor of the premises situated at 2, Basanta Roy Road within P.S. Tollygunge at a monthly rent of 3 Rs. 300/- for the first 4 years and thereafter at the enhanced rate of 10% per month over existing rate which has been laid down in a registered deed of lease dated 07.11.1997. As per the terms of the said lease deed an amount of Rs. 3,00,000/- was payable by the lessee to the lessor as premium in 6 installments of Rs. 50,000/- each. The first installment of Rs. 50,000/- was payable at the time of execution of the said deed of lease while the subsequent installments were payable at an interval of 3 months each. The lease deed also provided that in case of default in the payment of any installment, the lessor shall have the option to forfeit the lease by serving at least one month notice in writing upon the lessee. The lease deed further provided that the lessee shall pay the proportionate share of the consolidated rates and taxes to be levied by the Kolkata Municipal Corporation. It was also provided that the lessee shall obtain separate electricity connection in his own name and shall be responsible for the payment of electricity charges. The lease deed further provided that if there be default in the payment of rent or the municipal rates and taxes for four months then it shall be lawful for the lessor to re-enter the suit premises. It has been the case of the lessor that the lessee committed default of payment of the premium to the tune of Rs. 2,25,000/- and also defaulted in the payment of monthly rent. It is also the case of the lessor that the lessee did not pay the corporation taxes payable by him under the terms of the lease and the lessee did not make any arrangement for obtaining separate electricity connection and accordingly the lessor issued notice of forfeiture of the lease calling 4 upon the lessee to quit and vacate the suit premises. The lessee having not complied with the requisition contained in the said notice the lessor filed the lis praying for decree for ejectment.
9. The lessee contested the lis stating that the entire amount of premium has been paid by him to the lessor and he had also paid the rent till the month of October, 1998 but the lessor avoided to give receipt for such payment on various pretext. It is also the contention of the lessee that he had tendered the rent for the month of November, 1998 to the lessor but the lessor refused to accept the rent and thereafter the lessee had remitted the rent through money order but the lessor refused to accept the same. It is also the contention of the lessee that he approached the lessor several times for taking steps regarding separate assessment of the suit premises in his name and to give bill for the proportionate tax which was payable by him but the lessor did not take any step in this regard as such the lessee could not pay the proportionate tax which was payable by him under the terms of the lease deed. It is also the contention of the lessee that he took steps for taking separate electricity connection but he had not been successful in this regard because of the resistance of the lessor.
10. The Ld. Counsel appearing on behalf of the appellant/lessee during his submission has submitted the following:
i) The lessee has paid the entire amount of Rs. 3,00,000/-
as premium.
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ii) He has further submitted that on 07.11.1997 that is on the date of execution of the lease a sum of Rs. 1,10,000/- was paid in cash.
iii) He has further submitted that a cheque of Rs. 40,000/-
was drawn by him.
iv) He has further submitted that on 22.02.1998 a sum of Rs. 1,25,000/- was paid in cash which was drawn by S. Singh the father of the lessee from his account on 19.02.1998.
v) He has also submitted that an overdraft had been submitted against term deposit receipt as his father was due to retire from his service on 21.01.1998.
vi) He has further submitted that on 06.06.1998 the balance of Rs. 25,000/- was paid by cheque.
vii) The Ld. Counsel has also submitted that no receipt was granted by the lessor for the said payments of Rs. 1,10,000/- and Rs. 1,25,000/- made by the lessee to the lessor on 07.11.1997 and on 22.02.1999 respectively as because the lessor wanted to avoid payment of tax.
viii) He has further submitted that the lessor herself did not depose and did not deny the said payment.
ix) He has also submitted that the submission of the husband of the lessor on this point is not credible and is insufficient.
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x) Banking upon the aforesaid facts the Ld. Counsel has stressed upon the point that the failure to comply with the condition of the lease by payment of the premium does not lie.
xi) The Ld. Counsel has further submitted that there was cordial relation between the contending parties prior to 07.11.1997 that is the execution of the deed of the lease so the appellant/lessee could not anticipate fraudulent activities of the lessor as regards to non-issue of rent receipt and as such relied upon the lessor.
xii) The Ld. Counsel has further submitted that the lease was for a term of 99 years and the same is governed by Section 111 of the Transfer of Property Act, Section 106 of the Transfer of Property Act do not apply in the instant case and as the lease is for 99 years so it cannot be a lease from month to month as such Section 106 of the Transfer of Property Act do not apply.
xiii) He has further submitted that the notice is bad in law and the lease has not been determined in accordance with law as there was no breach of condition of the lease till the date of issue of the notice.
xiv) The Ld. Counsel has also submitted that a power of attorney holder cannot give evidence on behalf of his principle.
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xv) The Ld. Counsel has relied upon sections 114, 114A and Section 116 of the Transfer of Property Act, 1882. xvi) The Ld. Counsel in support of his contention relied upon the following authorities:
a) AIR 2005 SC 439
b) AIR 1927 PC 230
11. The Ld. Counsel appearing on behalf of the respondent/lessor during his submission has submitted the following:
i) He has submitted that the lessor gave a lease of 99 years to the lessee by executing a registered deed of lease dated 07.11.1997 and as per the agreed terms of the lease deed an amount of Rs. 3,00,000/- was payable by the lessee to the lessor.
ii) The Ld. Counsel has also submitted that the lessee has paid a total sum of Rs. 75,000/- and has not paid the balance sum of Rs. 2,25,000/- as premium. The Ld. Counsel has further submitted that the lessee has not paid the proportionate share of consolidated rates and taxes as levied by the Kolkata Municipal Corporation and has also not obtained a separate electricity connection in his own name.
iii) He has further submitted that the lessee has also defaulted in paying the monthly rent since the year 1998 and in view of such breach of terms the lessor proceeded 8 to file the instant suit subsequent to one month notice or forfeiture of lease.
iv) The Ld. Counsel has further submitted that Section 106 of the Transfer of Property Act is applicable in cases of lease which does not have any written contract. In this instant case the subject matter of the lease is a registered lease deed for a period of 99 years which was executed by the parties and also the terms mentioned therein were consciously agreed by the lessee, therefore in no manner whatsoever it can be said that the notice of the forfeiture of the lease under the agreement has to be in terms of the notice as it is provided under Section 106 of the Transfer of Property Act. Furthermore, the effect of holding over which has been cited by referring to Section 116 of the Section of the Transfer of Property Act in order to justify the illegal occupation of the lease premises for so long by the lessee does not stand on the face of it since, it is confined to such cases which are governed by Section 106 of the Transfer of Property Act.
v) He has further submitted that the case of the lessor is that the said lease of 99 years was based on the agreed terms and conditions formulated and executed by way of a registered deed of lease and as such can in no manner be said to be coming within the purview of Section 106 of the Transfer of Property Act so the question of sending 9 any notice in compliance of requisites of Section 106 of the Transfer of Property Act cannot and does not arise in any manner whatsoever.
vi) He has also submitted that the lessor is covered within the ambit of Section 111 of the Transfer of Property Act and as such the substantial question of law which was framed at the time of admission of the appeal fails on the face of it which stands further confirmed based on the submissions advanced on behalf of the appellant that Section 106 of the Transfer of Property Act is not applicable in this case.
vii) The Ld. Counsel has further submitted that the question of giving a notice in compliance of Section 106 of the Transfer of Property Act does not arise in any manner whatsoever.
viii) The Ld. Counsel appearing on behalf of the respondent has submitted that as per Section 120 of the Evidence Act, a husband is a competent representative in a civil proceeding.
ix) In support of his contention Ld. Counsel has relied upon the following authority:
(2009) 5 SCC 264.
12. On behalf of the appellant a point has been raised that the husband of the lessor has deposed in this case while the lessor herself 10 has not deposed. It has also been raised that the opportunity to cross- examine the lessor has been missed by the lessee as because the lessor herself did not come up before the Court to depose. On behalf of the appellant it has also been raised that the husband of the lessor was not present at the time of payment of the premium amount so the witness on behalf of the lessor could not have stated as regards to the payment of the amount for premium which has been paid by the lessee. In this context Section 120 of the Indian Evidence Act, 1872 is laid down which is as follows:
"120. Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial.--In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be competent witness."
13. Section 106 of the Transfer of Property Act lays down as follows:
"106. Duration of certain leases in absence of written contract or local usage.--(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purposeshall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or 11 proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property"
From the aforesaid section it is apparent that Section 106 of the Transfer of Property Act is applicable in the absence of the contract or local law or usage to the contrary.
14. On behalf of the appellant it has been submitted that as per Section 114 of the Transfer of Property Act, 1882 where a lease of immovable property has been determined because of non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within 15 days the Court may, in lieu of making a decree for ejectment pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. The appellant has relied upon the said section and has sought for application of the same. Section 114 of the Transfer of Property Act lays down as follows:
"114. Relief against forfeiture for non-payment of rent.-- Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs 12 of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."
In this instant lis there is not only non-payment of rent but there is non-payment of the premium for the lease. So section 114 of the Transfer of Property Act is not applicable in this instant case.
15. On behalf of the appellant section 114A has also been relied upon. It has been stated that where a lease of immovable property has been determined for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing specifying the particular breach complained of and if the breach is capable of remedy requiring the lessee to remedy the breach and if the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy. Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing of the property leased, or to an express condition letting forfeiture in case of non-payment of rent.
Section 114A of the Transfer of Property Act, 1882 states as follows:
"[114-A. Relief against forfeiture in certain other cases.--Where a lease of immovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor 13 may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing--
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach;
and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.
Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non- payment of rent."
In this instant case the lessee has claimed to have paid the entire premium amount for which no receipt has been issued by the lessor. If the case would have been so that the lessee had paid the entire premium amount to the lessor and had not been issued receipt then on behalf of the appellant, section 114A would not have been relied upon. On the one hand the appellant/lessee is claiming to have paid the entire premium amount and on the contrary on behalf of the lessee relief is being sought for under Section 114A of the Transfer of Property Act which does not go in parity and is very hard to accept.
16. Section 116 of the Transfer of Property Act that is effect of holding over has been relied upon on behalf of the appellant. Section 116 lays down as follows:
"116. Effect of holding over.--If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, 14 and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106."
From the aforesaid section it transpires that if a lessee or under- lessee remains in possession thereof after the determination of the lease granted to the lessee and the lessor or his legal representative accept rent from the lessee or under-lessee or otherwise assents to his continuing his possession the lease is in the absence of an agreement to the contrary, renewed from year to year or from month to month according to the purpose for which the property is leased.
In this instant case notice of determination of the lease was issued on 15.12.1998 which was received by the lessee as it is apparent as because the lessee through his Ld. Advocate had given a reply to the said notice. Ultimately the suit for eviction of the lessee has been filed on 21.01.2000. In the meantime the lessor has neither received any rent from the lessee nor from the conduct of the lessor it is apparent that the lessor had withdrawn the determination of the lease.
17. Section 111 of the Transfer of Property Act states as follows:
"111. Determination of lease
(a) by efflux of the time limited thereby:
(b) where such time is limited conditionally on the happening of some event--by the happening of such event:
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends 15 only to, the happening of any event--by the happening of such event:
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right:
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them:
(f) by implied surrender:
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter 1***; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; [or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease:
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
13. In this instant lis there is an indenture of lease executed on 07.11.1997 between the lessor and the lessee and the same has been registered in the office of the additional Registrar of Assurance, Calcutta recorded in Book No. 1, Volume No.34, Pages 147 to 158, being No. 950 for the year 1997.
14. Paragraph 4 of the said registered deed of lease states as follows:
"And it is further agreed that in the event of default of payment of any installment of the premium within the due date the lessor will have the option to forfeit the lease upon serving at least one months notice in writing upon the lessee."
So there being a registered deed of lease and there also being a clause for forfeiture of the lease in case of default in payment of premium which has taken place in this instant lis, the lessor is 16 entitled to forfeiture of the lease upon serving a one month notice in writing. In this instant lis a notice has been issued on behalf of the lessor addressing the lessee determining the lease. So the lessor is entitled to the determination of the lease by issuing a notice under Section 111 of the Transfer of Property Act which the lessor has complied, because of non-compliance of payment of premium in respect of the lease by the lessee.
15. On going through the judgments of the Ld. Trial Court and the Ld. First Appellate Court this court is of the view that the Ld. Judges in the Courts below did not err in law in decreeing the suit for eviction in the absence of a notice determining the lease under Section 106 of the Transfer of Property Act, 1882.
16. On going through the judgment of the Ld. First Appellate Court this Court does not find any reason to interfere with the same.
17. In such circumstances, the second appeal being S. A. No. 4 of 2010 stands thus dismissed.
Parties shall be entitled to act on the basis of the server copy of the judgment and order placed on the official website of the Court.
Urgent Xerox certified photo copies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Supratim Bhattacharya, J.)