Calcutta High Court
Sri Sri Lakshmi Thakurani vs Promod Kumar Agarwal & Anr on 12 February, 2025
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 5 of 2022
In
CS No. 36 of 2021
Sri Sri Lakshmi Thakurani
Versus
Promod Kumar Agarwal & Anr.
Mr. Meghnad Dutta
Mr. Lal Ratan Mandal
... For the plaintiff.
Mr. Sudip Deb, Sr. Adv.
Ms. Ipsita Ghosh
Ms. Laxmi Agarwal
... For the defendants.
Hearing Concluded On : 24.01.2025
Judgment on :12.02.2025
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Krishna Rao, J.:
1. The plaintiff has filed the present application under Chapter XIIIA of the Original Side Rules of this Court for summary judgment and decree for eviction of the defendants and for recovery of khas possession of the suit property. The plaintiff is the sole and absolute owner of the Municipal premises No. 117, B.K. Pal Avenue, P.S. Jorabagan, Kolkata
- 700 005 along with four storied building standing thereon, by way of registered Deed of Declaration dated 29th May, 1963. The said property was originally belonged to one Sambhu Kumar Pal, who dedicated the said property to the deity. In the said Deed of Declaration, Sambhu Kumar Pal, appointed himself as first Shebait of the said deity and provided that after his demise, his wife Shanti Bala Pal and his son Shyamal Kumar Pal would succeed the office of the Shebait.
2. The defendants were lessees of the entire third floor of the said premises at a monthly rent of Rs. 2049.74. A registered Lease Deed was entered between the plaintiff and the defendants on 15th December, 1995 for a period of 25 (twenty five) years with effect from 1st November, 1995 till 31st October, 2020. In the meantime, the debutter property including the suit property was made a subject-matter of a partition suit being T.S. No. 1955 of 2011 instituted before the Learned City Civil Court at Calcutta. In the said suit, debutter property was put under the control, administration and management of an Advocate Receiver appointed in the said partition suit. In a Revisional Application, the Coordinate Bench of this Court in C.O. No. 629 of 2019 expunged the 3 debutter property from the schedule of the plaint of T.S. No. 1955 of 2011.
3. As the lease period was going to expire on 31st October, 2020, the plaintiff by a letter dated 3rd September, 2020 intimated the defendants that the lease period is going to expire on 31st October, 2020 and requested the defendants to hand over the peaceful, vacant and khas possession of the suit property on the date of expiration of Deed of Lease.
4. The defendants received a notice dated 3rd September, 2020 but the defendants have not vacated the premises and made out a separate case that the plaintiff has accepted monthly rent from the defendants till December, 2020 and even after expiry of lease period, the plaintiff has accepted rent from the defendants and the defendants become monthly tenants and new tenancy has been created. The defendants have now become tenants by holding over.
5. On receipt of reply from the defendants, the plaintiff has again sent a notice dated 19th November, 2020 informing the defendants that pursuant to the Deed of Lease, the lease rent was supposed to be enhanced 10% over the existing rent after the expiry of every five years and the original rent of Rs. 1400/- which was enhanced to Rs. 1540/- and further Rs. 1694/- and thereafter to Rs. 1863.40/- and lastly to Rs. 2049.74/-. In the said notice, it is mentioned that in the month of August, 2020, the defendants made payment of the pending differential 4 amount of lease rent from the month of November, 2015 to November, 2019 and the last cheque of Rs. 11,180.40 which was given by the defendants was towards the rent for the month of July, 2020 and for the payment of the pending differential amount of enhanced lease rent from the month of November, 2015 to November, 2019 which was not paid by the defendants in terms of Deed of Lease dated 15th December, 1995.
6. On 23rd November, 2020, the plaintiff has sent a notice to the defendants under Section 106 of the Transfer of Property Act, 1882 calling upon the defendants to vacate the suit property and to hand over the peaceful and vacant possession of the suit property to the defendants but inspite of receipt of notice, the defendants have neither sent any reply nor have vacated the premises.
7. Mr. Meghnad Dutta, Learned Advocate representing the plaintiff submits that the defendants have no right to use, occupy and possess the suit property. He submits that the defendants have no defence and the plaintiff is entitled to summary judgment and decree.
8. Mr. Sudip Deb, Learned Senior Advocate representing defendants submits that the application filed by the plaintiff is not maintainable as the plaintiff has filed the present application after the period of 10 days from the date of defendants entering appearance in the suit notifying the same to the plaintiff. The defendants have already filed written statement.
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9. Mr. Deb submits that plaintiff has accepted the rent even after the expiry of the lease period and the rent has been duly deposited by the defendants. He submits that the defendants have categorically informed the plaintiff that the defendants have paid rent from the month of July, 2020 to December, 2020.
10. Mr. Deb submits that the plaintiff has made false allegation that the rent paid by the defendants has been purportedly adjusted by the plaintiff from the proposed enhanced rent. He submits that the plaintiff had accepted the defendants as monthly tenants or in the alternative, the defendants have become tenants by holding.
11. Mr. Deb submits that the case of the purported enhancement of the proposed rent has been made out by the plaintiff for the first time in reply to the defendants' letter dated 14th October, 2020 and the plaintiff has not demanded any enhanced rent from the defendants. He submits that in the first eviction notice also the plaintiff has not mentioned about the same.
12. Mr. Deb submits that whether the defendants are monthly tenants or have become tenants by holding over by conduct and/or acceptance and/or acquiescence of the rights made by the plaintiff, needs to go for trial. He submits that the at the very initial stage of the suit, the defendants have raised the point of maintainability of the suit and this Court by an order dated 13th December, 2021 kept the point of maintainability open and at this stage if this Court will pass summary 6 judgment, the defendants would be prejudiced to raise the point of maintainability.
13. Mr. Deb in support of his submissions relied upon the following judgements:
(i) State Bank of Hyderabad vs. Rabo Bank reported in (2015) 10 SCC 521.
(ii) R.N. Gosain vs. Yashpal Dhir reported in (1992) 4 SCC 683.
(iii) IDBI Trusteeship Services Limited vs. Hubtown Limited reported in (2017) 1 SCC 568.
(iv) Kadhir Masthan Rowther vs. Segammal reported in XI L.W.J 197.
(v) Chairman, State Bank of India and Another vs. M.J. James reported in (2022) 2 SCC 301.
(vi) Prabhakar vs. Joint Director, Sericulture Department and Another reported in (2015) 15 SCC 1.
14. The defendants have raised an issue that the plaintiff has accepted rent till the month of December, 2020 even after expiry of the lease period thus the plaintiff has accepted the defendants as monthly tenants or the defendants have become tenants by holding over. The defendants have relied upon the bank statement and the certificate issued by the Indian Bank, B.K. Paul Avenue Branch showing that an amount of Rs. 11180.40 is transferred in the account of the plaintiff on 20th August, 2020 being the monthly rent of the suit premises from the month of July, 2020 till the month of December, 2020.
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15. The contention of the plaintiff is that the amount of Rs.11180.40 paid by the defendants vide Cheque No. 130990 dated 17th August, 2020 is adjusted being the enhanced rent at the rate of 10% from the month of November, 2015 to November, 2019 and the said amount is not the monthly rent from the month of July, 2020 to December, 2020. In support of the submissions, the plaintiff has relied upon money receipts dated 18th August, 2020.
16. Clause 1 and 2 of the registered Deed of Lease dated 15th December, 1995 reads as follows:
"1. The Lessees, shall pay unto the Lessors during the continuance of the lease the monthly rent of the sum of Rs.1,400/- only by the 7th day of each month in Advance according to English Calendar subject to an increment of rent @ 10% percent over the then existing rent after the expiry of 5 years hereby reserved without any abatement or deduction of payment of such rent within the period aforesaid interest shall run at the rate of 2% per month from the date of payment until realisation.
2. The Lease will commence from the 1st day of November, 1995 and shall determine on the expiry of 31st October, 2020, A.D. The lessee has paid to the lessors a sum of Rs.1,400/- equivalent to the one month's rent by way of security deposit which will be adjusted when the lessee delivers up vacant possession of the said premises to the Lessors on expiry or sooner determination of the lease."
17. The defendants relied upon the judgment in the case of R.N. Gosain (supra) wherein the Hon'ble Supreme Court held that:
"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no 8 party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage"."
In the letter dated 19th November, 2020, the plaintiff has clarified about the adjustment of enhanced rent from the month of November, 2015 to November, 2019 and in the said letter, it is also mentioned that the rent from the month of August, 2020 to October, 2020 total amounting to Rs. 6149.22 and the differential amount of Rs. 1304.38 being the enhanced rent from the month of December, 2019 to June, 2020 is due and the plaintiff has adjusted Rs. 1400/- being the security amount and net amount of Rs. 6053.60 is due. The plaintiff has issued first notice of eviction on 3rd September, 2020 and notice under Section 106 of the Transfer of Property Act, 1882 but in none of the notice, the plaintiff has claimed any due amount from the defendants as mentioned in the notice dated 19th November, 2020.
18. The defendants have relied upon the judgment in the case of Prabhakar (supra) wherein the Hon'ble Supreme Court held that:
"40. Likewise, if a party having a rightstands by and sees another acting in a manner inconsistent with that right and makes no objection while the act is in progress he cannot afterwards complain. This principle is based on the doctrine of acquiescence implying that in such a case the party who did not make any objection acquiesced into the alleged wrongful act of the other party and, therefore, has no right to complain against that alleged wrong.9
41. Thus, in those cases where period of limitation is prescribed within which the action is to be brought before the court, if the action is not brought within that prescribed period the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over. Likewise, in other cases even where no limitation is prescribed, but for a long period the aggrieved party does not approach the machinery provided under the law for redressal of his grievance, it can be presumed that relief can be denied on the ground of unexplained delay and laches and/or on the presumption that such person has waived his right or acquiesced into the act of other. As mentioned above, these principles as part of equity are based on principles relatable to sound public policy that if a person does not exercise his right for a long time then such a right is non-existent."
In the case of Chairman State Bank of India & Another (supra), the Hon'ble Supreme Court held that:
"39. Before proceeding further, it is important to clarify distinction between "acquiescence" and "delay and laches". Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. However, acquiescence will not apply if lapse of time is of no importance or consequence."10
The plaintiff claims that on receipt of Rs. 11180.40, the plaintiff has adjusted the said amount being the arrears of enhanced rent from November, 2015 to November, 2019. The plaintiff has not filed any document to show that the plaintiff has claimed the arrears of enhanced rent from the defendants form the month of November, 2015 to November, 2019. The plaintiff has adjusted the enhanced rent above the period of limitation. The receipts dated 18th August, 2020 relied by the plaintiff in the reply to the present application is not disclosed by the plaintiff in the suit. The plaintiff has also not made out any such case in the plaint as stated in the notice dated 19th November, 2020.
19. In the case of IDBI Trusteeship Services Limited (supra), the Hon'ble Supreme Court held that:
"17. Accordingly, the principles stated in para 8 of Mechelec case will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in as follows:
17.1. If the defendant satisfies the court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt is left with the trial Judge about the defendant's good faith, or the genuineness of the triable issues, the trial Judge may impose conditions both as to time or mode 11 of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security.
17.4. If the defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires.
17.5. If the defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court."
20. In the case of State Bank of Hyderabad (supra), the Hon'ble Supreme Court held that:
"17. An analysis of the above principles makes it clear that in cases where the defendant has raised a triable issue or a reasonable defence, the defendant is entitled to unconditional leave to defend. Leave is granted to defend even in cases where the defendant upon disclosing a fact, though lacks the defence but makes a positive impression that at the trial the defence would be established to the plaintiff's claim. Only in the cases where the defence set up is illusory or sham or practically 12 moonshine, is the plaintiff entitled to leave to sign judgment."
21. In the case in hand, the plaintiff claims that the amount paid by the defendants have been adjusted as enhanced rent from the month of November, 2015 to November, 2019 on the other hand, the defendants claims that the defendants have paid rent for the month of July, 2020 to December, 2020. The defendant has also raised the point of maintainability of the suit and this Court by an order dated 13th December, 2021 has kept the point of maintainability open. The case made out by the plaintiff in the notice dated 19th November, 2020 is not the case in the suit. The receipts received by the plaintiff in the reply are also not disclosed in the plaint.
22. Considering the above, this Court finds that the defendants have raised triable issues and thus no summary judgment and decree as prayed for by the plaintiff can be passed.
23. In view of the above, G.A. No. 5 of 2022 is dismissed.
(Krishna Rao, J.)