M/S Ghose Estates vs Debsons Private Limited
2022 Latest Caselaw 2582 Cal/2

                    IN THE HIGH COURT AT CALCUTTA
                ORDINARY ORIGINAL CIVIL JURISDICTION
                            ORIGINAL SIDE
                        COMMERCIAL DIVISION


BEFORE:
The Hon'ble Justice Ravi Krishan Kapur

                              IA NO. GA/2/2021
                                In CS/5/2021

                            M/S GHOSE ESTATES
                                  Vs
                          DEBSONS PRIVATE LIMITED

For the petitioner             : Mr. Sarathi Dasgupta, Adv,
                                 Ms. A. Lala Sengupta, Adv,
                                 Mr. D.N. Misra, Adv,
                                 Mr. P.K. Singh, Adv,

For the respondent             : Mr. Chayan Gupta, Adv
                                 Mr. S. Kundu, Adv.
                                 Mr. Yubaraj Bhattacharyya, Adv.

Reserved on                    : 12.05.2022

Judgment on                    : 27.09.2022

Ravi Krishan Kapur, J.

1. This is an application for final judgment under Chapter XIIIA of the

Original Side Rules.

2. The suit is filed, inter alia for eviction and mesne profits. The suit

premises is situated on the ground floor at premises no.11,

Prafulla Sarkar Street, Kolkata- 700072, (measuring 2530 sq. ft.)

Kolkata- 700072, P.S. - Bowbazar.

3. The facts culminated in the filing of the suit are as follows:

a. By a registered deed of lease dated April 3, 2015, the

respondent was inducted in the suit premises for a period of five

years with effect from December 1, 2013 within an option to renew

the same for a further period of five years.

b. The suit premises is being used exclusively for commercial

purposes and the respondent is carrying on the business of

running a restaurant from the suit premises.

c. The lease rental was initially fixed at Rs.1,26,500/- per

month (which was to be increased by 15% every three years).

d. Thereafter, the lease rental was revised on and from

December 2016 to Rs.1,45,475/- per month. The respondent had

also given a refundable interest free deposit to the petitioner for a

sum of Rs.3,79,500/-.

e. The respondent paid monthly lease rentals up to June 2018,

but has refused to pay any lease rentals on and from July, 2018.

f. Significantly, the lease agreement was executed after

resolution of an earlier dispute which had arisen by and between

the parties (in an earlier suit being CS 178 of 1978).

g. The petitioner also claims outstanding lease rental arrears

and municipal taxes and other rates and taxes in respect of the

suit premises.

h. By a notice dated 5 November 2019, the petitioner called

upon the respondent to make payment of all outstanding dues on

account of rental arrears and municipal taxes. The notice also

directed that if the respondent failed to comply with its obligation

to make payment, the lease agreement would stand automatically

determined.

4. In view of the aforesaid, the plaintiff has filed the suit and filed

this application under Chapter XIIIA of the Rules seeking, inter

alia, a final judgment against the respondent for eviction from the

suit premises and final judgment on account of lease rental arrears

and municipal taxes respectively.

5. On behalf of the respondent, it is contended that the notice dated 5

November, 2019 is not a notice to quit within the meaning of

Section 106 of the Transfer of the Property Act, 1882 (the Act).

Hence the petitioner is not entitled to any order of this suit. It is

alleged that the notice does not determine the lease and merely

calls upon the respondent to make payment of the amount of the

outstanding dues in respect of the premises. It is further

contended that the notice is a short notice only giving 7 days to the

respondent to cure the defaults.

6. I have considered the submissions made on behalf of the parties.

7. The provisions of Chapter XIIIA of the Original Side Rules applies

to limited cases namely:

"Rule 1. The provisions of this Chapter shall not be applicable save to suits (A) in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the Defendant with or without interest arising

(i) on a contract express or implied; or

(ii) on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or

(iii) on a guarantee where the claim against the principal is in respect of a debt or a liquidate demand only; or

(iv) on a trust; or (B) for the recovery of immoveable property with or without a claim for rent or mesne profits by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant."

8. Ordinarily, in an application under Chapter XIIIA, the plaintiff

may, on affidavit made by himself or by any other person who can

swear positively to the facts verifying the cause of action and the

amount claimed, if any, and stating that in his belief there is no

defence to the claim, apply to the Court for final judgment. Against

such a prayer, the respondent may show cause. Upon such

application, a Court may, unless the respondent by affidavit or

otherwise satisfies the Court that he has a good defence to the

claim on merits or disclose such facts as may be deemed sufficient

to entitle him to defend, make an order refusing leave to defend

and forthwith pronounce judgment in favour of the plaintiff. Rules

7, 8, and 9 of Chapter XIIIA vests the Court with the discretion to

allow any one or more of several respondents, who alone has or

have a good defence, to defend and to pronounce final judgment

against others who have not, or to pronounce final judgment in

respect of part of the claim to which the defence set up does not

apply, or to give leave to defend conditionally or subject to such

terms as to security, or time or mode of trial or otherwise as the

court may think fit. This is in general the scheme of Chapter

XIIIA."[See: Hari Shankar Banka Vs Caltex (India) Ltd reported in

(1968) ILR 1 Cal 349].

9. The object of this Chapter XIII A is to primarily see that, the

defendant does not unnecessarily prolong the litigation and

prevent the plaintiff from obtaining an early decree by raising

untenable and frivolous defences in a class of cases where speedy

decisions are required.

10. In IDBI Trusteeship Services Ltd. vs. Hubtown Ltd. (2017) 1 SCC

568 the following principles have been enumerated:

"17. Accordingly, the principles stated in para 8 of Mechelec case [Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698 : (1966) 68 Bom LR 36] , 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 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."

11. In my view, the only question which is to be decided is whether the

respondent has raised a triable issue or an iota of defence which

requires relegating the parties to a full-fledged trial.

12. The respondent assails the notice dated 5 November, 2019 on the

ground that the same is not in conformity with Section 106 of the

Act. It is well settled that the object of a notice under Section 106

of the Act is to inform the tenant of the intention of the landlord

that he wants the suit premises back. The notice under section

106 is not to be read as a statue. It should not be construed in a

pedantic and impractical manner. In fact, such notices are to be

liberally construed. The notice must give an intention that upon

the happening of an event, the lease stand determined and that the

plaintiff is entitled to take back his premises. On a plain and

meaningful reading of the letter dated 5 November, 2019, I find

that it is clear that the petitioner has put the respondent on notice

that in case the respondent failed to pay the outstanding lease

rentals and other statutory outgoings, the lease shall stand

automatically determined. The respondent could not have been

misled by the notice. The validity of the notice ought not to turn on

the splitting of a straw. The period of 7 days mentioned in the

notice is also not vital and integral to the effect of notice, nor is

non-mentioning of Section 106 of the Act. The fact remains that a

period of more than one year has lapsed since the issuance of the

notice and the filing of this suit. The authorities cited by the

respondent are distinguishable and inapposite to this case.

13. There is no other defence which the plaintiff has taken. The

respondent is admittedly commercially exploiting the suit premises

without paying any rent or occupational charges since July 2018.

There is a huge amount of rent aggregating to approximately

Rs.24,17,111/- which has now become due and payable.

Admittedly, the respondent has also not paid its share of municipal

taxes. On the aspect of non-payment of rental dues and municipal

taxes, the respondent has chosen not even to contest the same.

Applying the principles aforesaid to the facts of the case, in my

view, the respondent has no defence far less a substantial or good

defence to the claim of the plaintiff. There is no genuine triable

which has been raised by the respondent. Accordingly, I find the

defence raised by the respondent to be frivolous, vexatious and

unsubstantiated.

14. In view of the foregoing, there shall be an order in terms of prayers

(a), (b), (c) and (d) of the Master's Summons. Insofar as the claim

for mesne profits are concerned, I appoint Mr. Shayak Chakraborti

Member of the Bar Library Club to ascertain the question of the

mesne profits at a consolidated remuneration of 3000 gms. and file

a report within a period of five months from the date of passing of

this order. With the aforesaid directions, GA 2 of 2021 stands

allowed.

(RAVI KRISHAN KAPUR, J.)

Later:

After pronouncement of the judgment, the Advocate

appearing on behalf of the respondent prays for stay of operation of

the judgment. The prayer for stay is considered and rejected.

(RAVI KRISHAN KAPUR, J.)