Calcutta High Court
Bhartia Steel & Engineering Co. Pvt. Ltd vs Dina Nath Parolia & Anr on 9 December, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Extra Ordinary Original Civil Jurisdiction
Original Side
Before:
The Hon'ble Justice Debangsu Basak
E.O.S. No. 58 of 1987
Bhartia Steel & Engineering Co. Pvt. Ltd.
Vs.
Dina Nath Parolia & Anr.
For the Plaintiff : Mr. Arindam Mukherjee, Advocate
Mr. Ashok Kumar Awasthi, Advocate
Mr. Aishwarya Kumar Awasthi, Advocate
For the Defendants : Mr. Haradhan Banerjee, Advocate
Mr. Debabrata Banerjee, Advocate
Ms. Somali Mukhopadhyay, Advocate
Hearing concluded on : December 03, 2014
Judgment on : December 09, 2014
DEBANGSU BASAK, J.
The plaintiff seeks eviction of the defendant from the suit premises. The plaintiff claims that, by a registered lease dated March 25, 1970 the plaintiff granted lease of its steel rolling business to the defendant no. 1. The defendant no. 1 having committed various breaches of such lease, the plaintiff through its Advocate's letter dated December 24, 1979 called upon the defendant no. 1 to vacate the suit premises on expiry of April 30, 1980. The plaintiff also claims that the defendants are guilty of construction as well as making addition and alteration at the suit premises without the consent of the plaintiff.
The defendants are contesting the instant suit. The defendant no. 2 is a partnership firm in which the defendant no. 1 is a partner. The defendants have filed a written statement. The defendants have denied having any obligation to vacate the suit premises. The defendants claim that, the tenancy is governed by the provisions of the West Bengal Premises Tenancy Act, 1956.
The parties invited the Court to settle the issues on November 24, 2014. The issues settled are as follows:-
1. Did the plaintiff lease out its steel rolling mills, factory and workshop situate at 106 & 106/1, Dharmatala Road, Salkia, Howrah, under the registered lease dated 25th March, 1970 to the defendants?
2. Is the lease of steel rolling mills, factory and workshop situate at 106 & 106/1, Dharmatala Road, Salkia, Howrah, to the defendants governed by and under the provisions of West Bengal Premises Tenancy Act, 1956 as alleged in paragraph nos.7 & 12 of the written statement?
3. Was the plaintiff required to serve a notice u/s. 13(6) of the West Bengal Premises Tenancy Act, 1956 upon the defendants?
4. Is the plaintiff entitled to recovery of the suit properties as described in the schedules of the plaint?
5. Is the plaintiff entitled to mesne profits, if so at what rate?
6. Is the plaintiff entitled to damages, if so to what extent?
7. Is the suit maintainable as framed?
8. Is the suit barred by limitation?
9. What other reliefs the plaintiff is entitled to?
The first three issues are taken up together. The first three issues are interlinked with each other in the facts of the case. In fact, Mr. Haradhan Banerjee, learned Advocate for the defendants opened his submission by submitting that he would address the Court on all the issues taken together. The lease between the parties is not disputed. The defendants admit to come into possession of the suit premises by the registered deed dated March 25, 1970. The defendants however claim that, their tenancy at the suit premises is governed by the West Bengal Premises Tenancy Act, 1956. The plaintiff claims the lease to be a lease of a steel rolling business.
Mr. Haradhan Banerjee, learned Advocate for the defendants contends that, the relationship between the parties is governed by the West Bengal Premises Tenancy Act, 1956. The tenancy of the defendants is protected under the provisions of the said Act of 1956. He submits that, the plaintiff did not demise its business of rolling mill to the defendant no. 1 by the lease deed. He contends that, the lease deed does not disclose that, the business of the plaintiff was demised to the defendant no. 1. According to him, the lease deed is unambiguous. Since the lease deed is unambiguous, subsequent conduct of the parties with regard to the lease has no relevance.
Mr. Banerjee contends that, the lease is for 10 years and, therefore, is governed by the West Bengal Premises Tenancy Act, 1956. He submits that, no notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 was served by the plaintiff upon any of the defendants. He submits that, both the defendants are tenants. He refers to the deed of lease and to the renewal clause thereof. He submits that, no case has been made out by the plaintiff either in the plaint or in the evidence that, the defendants are liable to be evicted under the provisions of the West Bengal Premises Tenancy Act, 1956. The ingredients of eviction under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 has neither been pleaded nor proved by the plaintiff. He points out that, the suit as framed is a suit for eviction under the provisions of the Transfer of Property Act, 1882 whereas the suit property is governed by the West Bengal Premises Tenancy Act, 1956.
On the point of inadequacy of the notice of eviction, he submits that, the notice is not addressed to both the tenants. According to him, the defendant nos. 1 and 2 are the tenants of the plaintiff. Admittedly the addressee in the notice is not the defendant no. 2. The addressee is the defendant no. 1 in his personal capacity. Therefore, according to him, the notice is bad. In this context he refers to Exhibit '13' series which are the rent receipts. The rent receipts have been issued in the name of the firm which is the defendant no. 2.
He refers to the various paragraphs of the plaint and submits that, the plaint case is that the lease is in respect of business as well as land. He submits that, the plaintiff now is taking a stand that the lease is in respect of steel rolling business only. He refers to the lease deed itself and submits that, the only conclusion that can be arrived at after reading the deed as a whole is that, the same is a lease of land with building and by virtue of its tenure guided by the West Bengal Premises Tenancy Act, 1956.
Mr. Banerjee refers to Section 92 of the Evidence Act, 1872 and submits that, where there is unambiguous documentary evidence, the parties should not be allowed to give oral evidence on the subject. He refers to various questions and answers given by the plaintiff's witness with regard to the nature of the lease. Mr. Banerjee refers to 2004 Volume 1 Supreme Court Cases page 1 (State of U.P. & Ors. v. Lalji Tandon) on the issue of the distinction between a renewal and an extension of a lease. On the same subject he refers to All India Reporter 2005 Supreme Court page 2905 (Shanti Prasad Devi & Anr. v. Shankar Mahto & Ors.).
Mr. Banerjee relies upon 68 Calcutta Weekly Notes page 1136 (D.S. Jain v. Meghamala Roy & Ors.) and submits that, a tenancy cannot be divided. Mr. Banerjee refers to the definition of a premises given in Section 2(f) of the West Bengal Premises Tenancy Act, 1956. He relies upon 1995 Volume 6 Supreme Court Cases page 274 (Savita Dey v. Nageswar Majumdar & Anr.), 1999 Volume 1 Calcutta Law Journal page 373 (Peace Heaven v. Must. Mozzammell Khatoon & Ors.), 1999 Volume 2 Calcutta High Court Notes page 167 (Gopal Das Baheti v. Sri Sailendra Chandra Dey & Ors.) and 1989 Volume 1 Calcutta Law Journal page 360 (Mahindra & Mahindra Ltd. v. Sm. Kohinoor Debi) in this regard. He submits that the lease is governed by the provisions of the West Bengal Premises Tenancy Act, 1956. He submits that, since no ground of eviction under the said Act of 1956 has been established.
Mr. Arindam Mukherjee, learned Advocate for the plaintiff contends that, the lease is in respect of a steel rolling business. According to him, the lease deed speaks of a lease of the steel rolling business. He submits that, in the event the Court is pleased not to hold that the lease in respect of a business, he submits that, the plaintiff has let out the rolling mills to the defendant no. 1 and, therefore, the same is to be considered as a business. A rolling mill will also not come within the definition of "premises" under the Act of 1956.
He submits that, the dominant intention of the parties in the deed of lease has to be found out to construe whether the parties fall within the West Bengal Premises Tenancy Act, 1956 or not. He relies upon All India Reporter 1965 Supreme Court page 716 (Uttamchand v. S.M. Lalwani) and 82 Calcutta Weekly Notes page 1055 (Alliance Jute Mills Co. Ltd. v. Alliance Mills Pvt. Ltd. & Ors.) and All India Reporter 2005 Supreme Court page 2054 (Spun Casting & Engineering Co. Pvt. Ltd. v Dwijendra Lal Sinha & Ors.) in this regard. He submits that, the dominant intention of the parties was grant of the lease of the steel rolling business by the plaintiff to the defendant no. 1. In order to corroborate the dominant intention of the parties as appearing in the lease deed he refers to the conduct of the parties prior to the entering into the deed of lease and subsequent thereto. On prior conduct he refers the Board resolution of the plaintiff dated March 21, 1970 being Exhibit '1'. On the subsequent conduct of the parties he refers to the letter dated April 24, 1980 being Exhibit 'M', letter dated April 9, 1970 being Exhibit 'B', letter dated June 28, 1976 being Exhibit 'E', letter dated November 10, 1970 being Exhibit 'D' and letter dated October 12, 1979 being Exhibit 'F'. He submits that, such documents are letters issued by the defendants to third parties where the defendants claim themselves to be the lessee of the business of the plaintiff.
Mr. Mukherjee refers to the rent receipts being Exhibit '13' series which will show that, the rent was accepted on account of factory lease. He refers to various answers given by the witness of the defendants being defendant witness no. 1 who according to him has agreed that the defendants had taken the mills on lease.
He refers to All India Reporter 1975 Supreme Court page 1758 (Dwarka Prasad v. Dwarka Das Saraf) and submits that, the premises concerned cannot be governed by the West Bengal Premises Tenancy Act, 1956, he relies upon definition of a premises given in Section 2(f) of the West Bengal Premises Tenancy Act, 1956 and submits that, the business of a steel rolling mill, its factory and machineries do not fall within the definition of a premises given in the Act of 1956. He contends that, the suit premises therefore, cannot be said to be governed by the provisions of the West Bengal Premises Tenancy Act, 1956.
He points out that, the stand of the defendants will also appear from the question put in cross-examination by the learned Counsel of the plaintiff in question no. 269 where the Advocate for the defendants asked the plaintiff witness no. 1 as to whether the plaintiff gave the business to be run or not. He also refers to various questions and answers of the defendant witness no. 2 given in examination-in-chief in this regard. He submits that, there is a notice terminating the lease dated December 24, 1979 being Exhibit 'G'. This notice has been duly served as will appear from the acknowledgement due card thereto which is a part of Exhibit 'G'. In any event, the defendant had replied thereto by a letter dated April 3, 19802 being Exhibit 'K' issued by the Advocate for the defendants.
He next contends that, even if the suit premises is considered to be one governed by the West Bengal Premises Tenancy Act, 1956 in such a case, a valid notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 has been served upon the defendants by the notice dated December 24, 1979 being Exhibit 'G'. Requisite ground for eviction of a tenant under the West Bengal Premises Tenancy Act, 1956 has been made out. The defendants are guilty of making addition and alteration at the suit premises without the consent of the plaintiff. In this regard he refers to various questions and answers given by the plaintiff witness no. 1. He relies strongly on the reports submitted by the Receiver which according to him, will demonstrate that various machineries at the suit premises were removed. He submits that, the defendants are guilty of making permanent construction at the suit premises without the consent of the plaintiff and in this regard refers to question no. 277 and the answer given thereto by the plaintiff witness no. 1.
On mesne profit he submits that, the claim is of Rs.1,000/- per day. In support of such claim he refers to the questions put in examination-in-chief to the witness of the plaintiff being question nos. 160, 164, 165, 197 and 198. He submits that, the witness was not cross-examined on this issue. He submits that, in the event the Court is not satisfied with the evidence on mesne profit, the adjudication of the quantum of mesne profit may be referred to a Special Referee under Order 20 Rule 12 of the Code of Civil Procedure, 1908.
In order to arrive at the answer to the first three issues raised in the suit, the lease deed being Exhibit 'A' is required to be construed. Relevant clauses of the recitals as well as the havendum in the deed of lease are set out below:-
"...........................................................................
WHEREAS the Lessor is in possession and enjoyment of the pieces and parcels of land together with the land structures standing thereon situate lying at and being premises Nos. 106 and 106/1, Dharmatala Road, Salkia, Howrah within the Howrah Municipality, as monthly tenant under its superior Landlords hereinafter referred to as "the demised land" fully mentioned and described in Schedule "A" hereunder written.
AND WHEREAS the Lessor had been carrying on for some time past the business of Rolling Mills, Foundry and Workshop at the said demised land;
..................................................................................
AND WHEREAS the Lessor being unable to run the said business of rolling mills, foundry and workshop for sometime past for want of funds and ability to manage and run the said business and being desirous of letting out the said demised land together with tanks thereon and rolling mills, foundry and workshop together with all plants, machinery, structures, equipments, fittings and fixtures as fully mentioned and described in the said respective Schedule "A" and "B" hereunder written hath approached the lessee for such demise of the said demised land together with the tank, boundary walls, sheds, structure rolling mills, foundry and workshop together with plants, machinery equipments, fittings and fixture.
AND WHEREAS pursuant to the said approach by the Lessor, the Lessee hath agreed to have the demised aforesaid on the terms and conditions hereinafter mentioned.
NOW THIS INDENTURE WITNESSETH that in pursuance of the said agreement and in consideration of the rent hereby reserved and of the covenants, conditions, agreements herein contained and on the part of the Lessee to the paid observed and performed the Lessor doth hereby demise unto the lessee all these messuages land, tanks hereditaments, structures, and premises comprising an area of about 7(seven) Bighas a little more or less and being the said premises No.106 and 106/1, Dharmatala Road, Salkia, Howrah fully mentined and described in the said Schedule "A" hereunder written together with all plants, machinery equipments, fittings, fixture, structures, constructions and appurtenances in respect of the said rolling mills, foundry and workshop and fully mentioned and described in the said Schedule "B" hereunder written and hereinafter referred to as "the said demised premises"
for a fixed term of 10(ten) years commencing on and from the first day of May, One thousand Nine hundred and Seventy and ending on the thirty day of April, One thousand Nine hundred and Eighty with option for renewal for further terms of 5(five) years to be exercised by the lessee as hereinafter provided and yielding and paying unto the Lessor therefore during the said fixed term of 10(ten) years the monthly rent of Rs.2,001/- (Rupees Two thousand one) only inclusive of all municipal rates and taxes in respect of the said demised premises and payable in the month succeeding the month for which such rent shall become due.
THE LESSEE DOTH HEREBY COVENANT WITH THE LESSOR AS FOLLOWS:
...................................................................................
(2) to carry out the repairs on the Lessee may desire think fit and proper to the said demised premises at his own costs and to maintain and keep the said rolling mills, foundry and workshop, plants, machinery structures, fixtures, fittings and equipments in respect of the said Rolling Mills, foundry and workshop is desired by the Lessee for the purpose of running the said business of rolling mills, foundry and workshop or for any other purpose during the term of the demise;
.................................................................................
(10) Upon the termination and/or expiry of the demise hereunder the lessee shall make over to the lessor all the said plants machinery, equipments, fittings and fixtures demised hereunder in such other and condition as they are now subject, however, to all reasonable wear and tear, damages by fire not caused by willful act or omission of the lessee, his servants and agents, earthquake or other irresistible force, air-raid, riots, civil commotion and/or political disturbances save and except all new machinery, plants, equipments, fittings, fixtures, stores, furnitures, erection or constructions and/or new structures and/or installations which may be brought in, erected or constructed installed or purchased by the lessee at his own costs for the purpose of running the said factory, the rolling mills and/or foundry or workshop and/or other purposes aforesaid with absolute right of the lessee to remove the same from the demised premises.
.................................................................................
AND THE LESSOR DOTH HEREBY COVENANT WITH THE LESSEE AS FOLLOWS:
..................................................................................
(2) the lessor shall pay all appears of rent to its superior landlords, the rates and taxes due and payable to the Howrah Municipality and/or other authorities all arrears of the charges for the electric supply to the labourers employees and/or staff of the lessor and/or any other liabilities and/or impositions due and payable by the lessor in respect of its said business upto the date of the demise forthwith on receipt of the said sum of Rs.12,006/-
(Rupees Twelve thousand and six) only;
(3) the lessee shall not be liable for payment of any liberty on account of any income tax or sales tax that may be due and payable by the lessor in respect of its said business and/or otherwise.
.............................................................................."
According to the defendants, the lease in question relates to a premises within the meaning of the West Bengal Premises Tenancy Act, 1956. According to the plaintiff, the lease is of a business and, therefore, does not fall within the definition of premises under the West Bengal Premises Tenancy Act, 1956. The question therefore is whether or not, the lease in question is a lease in respect of a premises within the meaning of the West Bengal Premises Tenancy Act, 1956 or whether the lease in question is a lease of a business or not.
Mr. Banerjee refers to D.S. Jain (supra) to submit that where a cinema hall equipped with machineries was given on lease, it was held by a Division Bench of this Court that, the mere fact that different parts or components of the lease belonged to different persons the same would not affect the position under the West Bengal Premises Tenancy Act, 1956. The question in D.S. Jain (supra) was whether the lease in that case came under the West Bengal Premises Tenancy Act, 1956 or not. In that case the lease was of a furnished and well equipped cinema show house and the building comprised with machines and machineries necessary for a cinema show house. The building belonged to one person, the furniture to another and the machines and machineries to a third person. The total quantum of rent was also divided amongst the three persons. It was held that the building, the furniture and the machineries cannot be regarded as separate distinct or different. They are linked together by the lease itself. It was, therefore, found that the lease was in respect of all of them and that the parties were governed by the West Bengal Premises Tenancy Act, 1956.
D.S. Jain (supra) was considered in Alliance Jute Mills Co. Ltd. (supra) cited by Mr. Mukherjee. In Alliance Jute Mills Co. Ltd. (supra) the Court noticed the various terms and conditions of the lease concerned. It was held that the predominant intention of the parties was to lease out the mill. The building in the entire component of the lease was found to be incidental to and a part of the leasing out of the mill. The building by itself did not make the lease to be governed under the West Bengal Premises Tenancy Act, 1956.
Mr. Mukherjee has also relied upon Uttamchand (supra), Dwarka Prasad (supra) and Spun Casting & Engineering Co. Pvt. Ltd. (supra) in support of the proposition that, the dominant intention of the parties are to be seen to find out whether a business has been leased out or a premises within the meaning of the West Bengal Premises Tenancy Act, 1956 has been leased out.
In Uttamchand (supra) the Supreme Court construed a lease not to come within the preview of a Rent Control Act after returning a finding that, the dominant intention of the parties was to create a lease in respect of a Dal Mill. In Dwarka Prasad (supra) the Supreme Court found in the fact of that case, that the lease was composite and has a plurality of purpose. The Supreme Court was of the view that the decisive test as to whether a lease would come within the purview of a Rent Control Act or not, was the dominant purpose of the lease.
Similar view has been expressed by the Supreme Court in Spun Casting & Engineering Co. Pvt. Ltd. (supra). The case involved a proceedings for eviction. The provisions of the West Bengal Premises Tenancy Act, 1956 was considered including the definition of premises given in Section 2(f) thereof. It was found from the lease deed that, the business was settled rather than a premises within the meaning of the West Bengal Premises Tenancy Act, 1956 being let out. Their Lordships were of the view that, "in order to determine the true character of the settlement, it would be necessary to refer to the deed itself and construe the term thereof." Their Lordships found that, the definition of premises under Section 2(f) of the West Bengal Premises Tenancy Act, 1956 did not include the furniture supplied or any fittings or fixtures in a building or a part of a building but will not include a room in hotel or a lodging house. It does not include the lease of a business along with machinery in a building. The intention of the parties has to be seen. Where the structures and sheds did not constitute the dominant part of the settlement in favour of the lessee then it would be a lease for running of a business and not in respect of a premises within the meaning of the Act of 1956.
A lease can be for an immovable property or it can be a lease of a business. In the event of lease of a business, the same may involve demise of an immovable property. The situs of the immovable property may be such that it attracts a Rent Control legislation. In such a case, the dominant intention of the parties has to be found out to arrive at a finding as to whether the lease is in respect of an immovable property attracting a Rent Control legislation.
In the facts of this case, therefore, the dominant intention of the parties is to be seen in reference to the deed of lease in question. The deed of lease between the parties is Exhibit 'A'.
Mr. Banerjee strenuously contends that, the lease refers to both land as well as machineries demised by Exhibit 'S' and contends that the demise by Exhibit 'A' is of immovable properties along with others. The situs of the immovable property is such that, it attracts the provisions of the West Bengal Premises Tenancy Act, 1956. It is a lease for a premises within the meaning of the Act of 1956. There are two schedules in the deed of lease. He also relies upon the prayers made in the plaint and submits that, the only conclusion that can be derived out of Exhibit 'A' is that the lease in respect of a premises within the meaning of West Bengal Premises Tenancy Act, 1956. He contends that a factory cannot remain on its own without a land underneath. Therefore, according to him the land along with factory was given on lease to the defendants.
The fact that the lease deed refers to a schedule describing land and building does not by itself make the lease to be a lease for a premises within the meaning of the Act of 1956 where the dominant part of a lease is for running a business as noted in the authorities cited at the bar and discussed above. The dominant part of the lease has to be found out from the lease by looking into the dominant intention of the parties recorded in the lease deed. In the instant case, Exhibit 'A' being the lease deed contained clauses, recitals as well as a havendum speaks of a business of rolling mills, foundry and workshop. The recital notes that the lessor was carrying on a business of rolling mills, foundry and workshop and that it had subsisting licenses and quotas in respect thereof. The havendum clause notes that the lessor was demising the land and building, plant and machineries as well as the right to enjoy subsisting licenses and quotas of the lessor, the plaintiff herein. The right to enjoy the subsisting licenses and quotas could only mean the right to carry on the rolling mill business. The termination clause in the lease deed is also crucial. It provides that, on the termination of the lease, the lessee is to make over the entirety of the subject matter of the lease in such a condition so as to permit the lessor to carry on the same business as earlier.
Therefore, in my reading of Exhibit 'A' the lease deed, the rolling mill business which the plaintiff as the lessor could not carry on, was sought to be given on lease to the defendants with the right of the plaintiff as the lessor to receive the same business in such a condition so that the plaintiff as the lessor could continue with the same business upon termination of the lease. Reading the lease deed in such perspective, in my view, the irresistible conclusion is that the dominant intention of the parties was the grant of the lease of a business of rolling mill, foundry and workshop, by the plaintiff as the lessor to the defendants. The dominant part of Exhibit 'A' is grant of a business. A business is demised by Exhibit 'A' so as to receive such business in such state as to permit carrying out of the same on termination. This dominant intention of the parties is corroborated by the subsequent conduct of the defendants.
The defendants considered and acted on the basis that the lease was for rolling mill, foundry and workshop business. By at least five several letters being Exhibits 'B', 'D', 'E', 'F' and 'M', the defendants described themselves as the lessee of the plaintiff or were described as third parties as such. These letters are either issued to the Central Government and other authorities or are letters of such authorities. By their letters the defendants took various benefits of the licenses and quotas. By the letter dated April 19, 1970 being Exhibit 'B' the plaintiff informed the Iron and Steel Controller as to the grant of the lease of the mill to the defendants. Such authority was informed that by virtue of such lease the defendants would operate the mill. The approval of the lease arrangement was sought. The defendants endorsed their acceptance of the terms and conditions of the lease of the mill. This letter demonstrates the intention of the parties that the business of rolling mill of the plaintiff would be continued by the defendants as the lease of the plaintiff. The Ministry of Steel and Heavy Engineering was informed of the arrangement also. They accorded approval by a writing dated November 12, 1970 being Exhibit 'D' herein. By this letter the Government allowed the defendants all privileges which were allowed to the plaintiff prior to the lease. This can only be done when the business is continued. By the letter dated April 24, 1980 being Exhibit 'M' the defendants write to the Government and claim to be a lessee under the plaintiff. The defendants call upon the Government not to interfere with the right of the defendants to carry on business in the rolling mill as the lease thereof.
The defendants cannot be allowed to resile from their declared position that it is a lessee of a rolling mill business particularly when such declaration was made in writing to Government authorities to take benefit of various licenses and quotas and the Government authorities approved of the same on such basis. The defendants cannot be allowed to approbate or reprobate on the same issue. When it obtains the benefits of the subsisting licenses and quotas, the defendants conveniently claim that they are the lessee of the business of the plaintiff. In a suit for eviction on the ground of termination of a lease for the same business, they cannot be permitted to take the shelter for the protection of a tenant under the West Bengal Premises Tenancy Act, 1956 by claiming that the lease is in respect of an immovable property and not a business. Viewed in such perspective, no premises within the meaning of the West Bengal Premises Tenancy Act, 1956 was let out by the plaintiff to any of the defendants by virtue of Exhibit 'A'. The defendants cannot claim protection under the provisions of the West Bengal Premises Tenancy Act, 1956.
Mr. Banerjee relies upon Lalji Tandon (supra) and Shanti Prasad Devi & Anr. (supra) in support of the proposition that, in view of the option of earlier termination contained in the lease deed, the lease deed is guided by the provisions of the West Bengal Premises Tenancy Act, 1956. I am afraid that I have found the lease to be one for business. The question, therefore, such lease being governed by the West Bengal Premises Tenancy Act, 1956 does arise. With respect, both the authorities noted above are not relevant to the case.
Mr. Banerjee on the question of whether or not the lease between the parties should be construed as one to be governed under the West Bengal Premises Tenancy Act, 1956 or under the Transfer of Property Act, 1882 by virtue of the tenure or a period of the lease relied upon few authorities. Savita Dey (supra), Peace Heaven (supra), Gopal Das Baheti (supra) and Mahindra & Mahindra Ltd. (supra) have no manner of application with respect, as the facts of the instant case does not require me to determine whether or not Exhibit 'A' is to be governed by the West Bengal Premises Tenancy Act, 1956 or by the Transfer of Property Act, 1882 by virtue of the period of lease.
Once it is found that the dominant intention of the parties was that the plaintiff had granted lease of the steel rolling business to the defendants through Exhibit 'A', the first three issues can be answered. Consequently, other contentions raised by the parties need not be considered, as the same in no manner affects the decision on the issues framed, in view of the finding on the dominant intention of the parties in respect to Exhibit 'A'.
The first issue raised is answered in favour of the plaintiff by holding that, the plaintiff granted lease of its steel rolling business by the registered deed of lease dated March 25, 1970 being Exhibit 'A'.
The second issue raised in the suit is answered in the negative and against the defendants. The suit premises is not governed by the provisions of the West Bengal Premises Tenancy Act, 1956.
Once the second issue is answered in the negative and as against the defendant, the third issue raised in the suit, is required to be answered in the negative and against the defendants. The plaintiff was not required to serve any notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 as the suit premises is not governed by the provisions of the West Bengal Premises Tenancy Act, 1956. Mr. Banerjee has raised a point with regard to the insufficiency of the notice dated December 24, 1979 being Exhibit 'G' claiming that, the notice is addressed to the first defendant while both the defendants are tenants. The notice of termination being Exhibit 'G' is addressed to the first defendant. It refers to the lease and terminates the same. The lease being Exhibit 'A' was entered into between the plaintiff on one part and the first defendant on the other part with the first defendant being described in the deed of lease as the partner of the second defendant. The firm and the partner of the firm named in the lease deed are sued for possession. I find no insufficiency in the notice of termination. The defendants did not establish non-receipt of the notice.
The fourth issue is taken up for consideration. The plaintiff has issued a notice of termination dated December 24, 1979 being Exhibit 'G'. The acknowledgement due card in respect of such notice has been produced in evidence. The acknowledgement due card establishes that the notice of eviction dated December 24, 1979 was received on behalf of the defendant no. 1 on December 26, 1979. The defendants have replied thereto through their Advocate's letter dated April 3, 1980 being Exhibit 'K'. The plaintiff is entitled to terminate Exhibit 'A' by a notice which the plaintiff duly did by Exhibit 'G'. In spite of receipt of Exhibit 'G' the defendants have not vacated the suit premises. In such circumstances issue no. 4 is answered in the affirmative and in favour of the plaintiff.
So far as issue no 5 is concerned, the plaintiff did not adduce sufficient evidence in support of its claim. The oral evidence in this regard is a claim for a sum of Rs.1,000/- per day. I do not find it appropriate to pass a decree on the basis of materials made available as on date. The Counsel for the plaintiff submits that, the plaintiff may be granted another opportunity to prove the mesne profit in terms of Order 20 Rule 12 of the Code of Civil Procedure, 1908. In such circumstances Ms. Hashnuhana Chakraborty, Advocate, Bar Library Club is appointed as the Special Referee to inquire into the quantum of mesne profit and damages receivable by the plaintiff from the defendants on and from May 1, 1980 being the date next to the date when the lease was terminated till the plaintiff receives possession of the same. The Special Referee will conduct and conclude the enquiry as expeditiously as possible. The Special Referee will not grant any adjournment to any of the parties. The Special Referee will submit her report when the suit appears next in the list. The Special Referee will be entitled to a consolidated remuneration of Rs.50,000/- to be paid by the plaintiff at the first instance. The plaintiff will provide and bear all costs for rendering adequate assistance to the Special Referee to undertake the enquiry.
Issue no. 6 can also be referred to the Special Referee and is so done.
The 7th, 8th and 9th issues are taken up together. No argument was advanced that the suit was not maintainable as framed save that, the plaintiff is not entitled to any relief as the suit is a suit for eviction and the tenancy is governed by the West Bengal Premises Tenancy Act, 1956. Such issue has already been answered. No argument was advanced with regard to the suit being barred by limitation. Issue no. 7 is answered by holding that the suit is maintainable as framed. Issue no. 8 is answered by holding that the suit is not barred by limitation.
So far as issue no. 8 is concerned, the plaintiff will be entitled to costs of the suit this far assessed at Rs.75,000/-.
There will be a decree in terms of prayer (a) of the plaint. Damages and mesne profits will be considered after the report of the Special Referee. E.O.S. No. 58 of 1987 will appear in the monthly list of February 2015 for such purpose.
The department will draw up and complete the decree as expeditiously as possible.
[DEBANGSU BASAK, J.]