Jayanta Saha vs Janki Bhagwan Dansingani
2023 Latest Caselaw 1697 Cal/2

                 IN THE HIGH COURT AT CALCUTTA
                 (Ordinary Original Civil Jurisdiction)
                             ORIGINAL SIDE


Present:

The Hon'ble Justice Krishna Rao



                         IA No: GA 5 of 2020

                       (Old No. GA 750 of 2020)

                          In CS 125 of 2017


                                Jayanta Saha
                                   Versus
                     Janki Bhagwan Dansingani.




           Mr. Anirban Ray
           Mr. Jayanta Sengupta
           Mr. A.K. Acharyya
           Mr. Subir Banerjee
           Ms. Moumita Das
                                               ... For the plaintiff.

           Ms. Arunima Lala
           Mr. Pradeep Kumar
           Mr. Subhamoy Patra
                                                ... For the defendant.


Hearing Concluded On : 04.07.2023

Judgment on          : 26.07.2023
                                       2


Krishna Rao, J.:


 1.

The plaintiff has filed the present application under Chapter XIII A of

the Original Side Rules of this Court for summary judgment. The

plaintiff has filed Civil Suit No. 125 of 2017 praying for recovery of

vacant and peaceful possession of the suit No. 3B on the 3rd floor of

the front building of Premises No. 111, Muzaffar Ahmed Street

(commonly known as "Ripon Street") Kolkata - 700 016, arrears of

monthly rent, damages and mesne profit.

2. The plaintiff contended that on 1st March, 2008, a Lease Deed was

executed between the plaintiff and the defendant which was duly

registered before the Additional Registrar of Assurance-II, Kolkata with

respect of the suit premises for a period of 21 years in favour of the

defendant on a monthly rent of Rs. 1000/- per month for the first five

years, Rs. 1100/- for the second five years, Rs. 1210/- for the third

five years, Rs. 1330/- for the fourth year five years and Rs. 1465/- for

the remaining last one year. As per the terms and conditions of the

Lease Deed, the defendant shall pay the Municipal taxes during the

lease period. In the Lease Deed, it is also provided that if the

defendant fail to pay the monthly rent for three months and not paid

even after demand made by the plaintiff, the Lease Deed entered

between the parties will be determined.

3. In terms of the Lease Deed, the defendant has taken possession of the

premises on 1st March, 2008 but defaulted in payment of rent and

Municipal tax in accordance with the Lease Deed since the month of

November' 2015. The plaintiff had sent a letter to the defendant on

18th May, 2016 calling upon the defendant to pay the arrears of

monthly rent from the Month of November' 2015 as well as the

Municipal Tax but the letter sent by the plaintiff to the defendant

returned unserved as "Not Claimed".

4. The plaintiff again on 18th July, 2016 had sent a legal notice calling

upon the defendant that the right of the defendant in the premises

had ceased by forfeiture for not paying the monthly rent. The legal

notice sent by the plaintiff was also returned unserved with the

endorsement "Not Claimed".

5. Mr. Anirban Ray with Mr. Jayanta Sengupta, learned Advocates

representing the plaintiff submits that the defendant has violated the

terms and conditions of the registered Lease Deed by not paying the

monthly rent since November' 2015 along with the Municipal tax. He

further submits that the plaintiff had sent notice of demand for

payment of arrears of monthly rent and the tax but the notice

returned unserved as not claimed which amounts to good service.

6. Mr. Ray submitted that the plaintiff had also sent legal notice through

his learned Advocate by determining the lease but the same was also

returned unserved as not claimed thus by the said notice under

Section 111 of the Transfer of Property Act, 1882, the plaintiff duly

terminated the contract upon expiry of 15 days from the date of

service of the said notice upon the defendant.

7. Mr. Ray submitted that the defendant has no defence to the claim of

the plaintiff and thus the plaintiff is entitled to get summary judgment

of eviction of the defendant from the suit property.

8. Ms. Arunima Lala, learned Advocate representing the defendant

submits that the suit filed by the plaintiff is not maintainable as there

is no cause of action for the plaintiff to file the instant suit.

9. Ms. Lala submitted that notice of termination was not served upon the

defendant at any point of time. She further submits that the plaintiff

has removed the letter box of the defendant and due to which no

notice/communication was received by the defendant.

10. Ms. Lala submitts that the defendant all along made several attempts

to pay the monthly rents to the plaintiff but the plaintiff deliberately

refused to accept the monthly rent from the defendant on one or the

other pleas.

11. Ms. Lala submitted that since the defendant has raised objection for

opening of eatery in the ground floor by the plaintiff due to which the

plaintiff got annoyed and had initiated the proceeding for eviction from

the premises though the defendant is ready and willing to pay the due

rent for due lease period.

12. Ms. Lala submitted that the defendant has raised triable issue

whether the notice was ever served upon the defendant and whether

the defendant has wilfully not paid the rent or the plaintiff has not

accepted the rent is to be decided during the trial only and thus no

summary judgment can be passed in the present application.

13. Heard the learned Counsels for the respective parties and perused the

materials on record. Clause 10, Clause 15 and Clause 3 of the last

portion of the Deed of Lease reads as follows :

"10. And further that if any time the rent and tax for any month or any part thereof shall remain unpaid for three months after the date whereon it is made payable as aforesaid and when the same is not paid even after demand made by the Lessors, or not or in the case of any breach of any of the covenants and conditions hereinbefore contained then it shall be lawful for the Lessors to determine the lease and to take legal steps for recovery of possession of the said premises.

15. The Lessee shall pay all other taxes which may be imposed by the Government or C.I.T or C.M.D.A. or any other local body or authority proportionately payable for the said portion or suite from the date from when imposed and shall pay the same along with the lease rent payable.

PROVIDED ALWAYS that in case the Lessee makes default in payment of Lease rent for two consecutive months whether any formal demand therefore has been made or not or fails to observe and perform any of the terms and conditions and covenants to be observed and performed by him or is declared insolvents or makes composition with any of his creditors then or in any of the said cases, notwithstanding anything herein before contained it shall be lawful for the Lessor to

determine this lease and to re-enter and re- possess the said demised premises or any part or portion thereof in the name of the whole as in his original estate as if these presents had never been made or executed but without prejudice to his other rights and remedies under these presents for such breaches or any of them.

3. That any letter or notice addressed to Lessee sent under registered post at the demised premised will be treated as valid service upon Lessee."

14. It is not denied by the defendant that the defendant has not paid the

monthly rent from November' 2015 and the proportionate Municipal

tax of the suit premises to the plaintiff but the only defence taken by

the defendant that the plaintiff refused to accept the rent on one or

the other pretext. The defendant has filed his affidavit-in-opposition

but had not disclosed any document to establish that the defendant

had sent the monthly rent but the plaintiff has denied to accept the

same. The defendant has made only a bold defence that the plaintiff

has not accepted the rent though the defendant was willing to pay.

15. The defendant has denied with regard to receipt of both the notices

wherein on the first occasion, the plaintiff has called upon the

defendant for payment of arrears of monthly rent dated 18th May,

2016 and on the second occasion, the plaintiff through the legal notice

under Section 111 of the Transfer of Property Act,1872 determined the

lease. Both the notices were returned to the plaintiff with the

endorsement "Not Claimed". The defendant has taken the specific

defence that notice was not served upon the defendant as the plaintiff

has removed the letter box of the defendant from the ground floor.

As per Clause 3 of the last portion of the Lease Deed, it is

provided that "any letter or notice addressed to the Lessee sent under

registered post at the demised premises will be treated as valid service

upon Lessee".

The letter and the notice sent to the defendant at the following

address :

"111, Ripon Street, Suit No. 3B, Third Floor, Kolkata - 700 016"

The registered letters returned unserved with the endorsement

"Not Claimed". The defendant has taken the only defence that the post

box of the defendant in the ground floor has been removed and no

notice was served upon the defendant.

In the case reported in AIR 2011 Cal 72 (New Globe

Transport Corporation vs. Magma Shrachi Finance Ltd.), the

Coordinate Bench of this Court held that:

"11. I have gone through the pleadings of the respective parties as well as the materials on record and have considered the submissions made by the learned Counsel for the respective parties. It is on record that the petitioner is running his transport business from 193 Moharshi Devendra Road, P.S. Jorabagan, Kolkata-6. The learned Arbitrator sent the award in an envelope by register post with acknowledgment due card on 8th August, 2008 which returned with postal endorsement 'Not Claimed'. The envelope is sufficiently stamped. The petitioner is receiving letters and correspondences at the said address and it was not received by their office. Subsequent letters and correspondence all were

received from the same address. Accordingly there should not be any doubt to presume that the envelope which was sent at the office of the petitioner, was in fact tendered by the postman at the same address but the same has not been accepted. Mr. Bose cited a judgment deliver by the Division Bench of this Hon'ble High Court in case of Arun Banerjee and Ors. v. Baidya Nath Mullick and Ors., reported in 2008 volume 3 Calcutta Law Times High Court 338 wherein the Hon'ble Division Bench have held that 'The notice was sent on behalf of the plaintiffs to the original defendant under registered post with A/D and the same was returned with the postal endorsement 'Not Claimed', which is tantamount to a good service. The notice itself has validly terminated his tenancy with the end of the month of May, 1979 and the same appears to be legal, valid and sufficient.'

15. In the aforesaid circumstances, in my opinion, the word 'Not Claimed' tantamount to good service and accordingly the award was served upon the petitioner on 8th August, 2008, and, therefore, the petition is barred by limitation under sub-section (3) of Section 34 of the Arbitration and Conciliation Act,1996 and as such the same is dismissed."

In the present case, the registered notice was sent to the

defendant in the address of the suit premises. It is not the case of the

defendant that the plaintiff has sent notice to any other address than

the address of the suit premises. The only plea of the defendant is that

the post box in the ground floor was removed by the plaintiff,

therefore, the registered letter cannot be put in the letter box, the

registered letter is to be delivered to the addressee or agent in person.

16. In the case reported in AIR 1949 Cal 479 Kiranmayi Dasiv. -vs- J.

Chatterji, the Division Bench of this Court held that:

"(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 defendant 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 sign 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, shows 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 defence 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 aforesaid principles have been repeatedly approved of, adopted

and enunciated by different Courts of India including the Supreme

Court in Mechelec Engineers reported in (1976) 4 SCC 687. In the

said decision, the Hon'ble Supreme Court also approved of an old

decision of the English Courts in Jacobs vs. Booths Distillery

Company (1901) 85 LT 262 (HL) wherein it was held that whenever a

defence raises a really triable issue, leave must be given. Subsequently,

these principles have also been followed by the Hon'ble Supreme Court

in M/s Sunil Enterprise and Anr vs. SBI Commercial

&International Company Ltd. reported in : (1998) 5 SCC 354 at

paragraph 4 and in State Bank of Saurashtra vs. Ashit Shipping

Pvt. Ltd. & Another reported in : (2002) 4 SCC 736 at paragraph 10.

In the most recent decision of the Supreme Court, in IDBI

Trusteeship Services Limited vs. Hubtown Limited reported in :

(2017) 1 SCC 568 the entire case law pertaining to summary

judgments has been reviewed and it has been held at paragraph 17 as

follows:

"17. Accordingly, the principles stated in para 8 of Mechelec case [Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., MANU/SC/0043/1976 : (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., MANU/SC/0376/1965 : 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."

Order 37 Rule 2 of the Code of Civil Procedure which is similar to

those of Chapter XIIIA of the Original Side Rules of this Court. Leave to

defend the suit brought under Order 37, Rule 2 of the Code of Civil

Procedure, 1908 is declined where the Court is of the opinion that the

grant of leave will merely enable the defendant to prolong the litigation

by raising untenable and frivolous defences. The test is to see whether

the defence raises a real issue and not a sham one, in the sense that

the facts alleged by the defendant to establish their case would be a

good or even a plausible defence on those facts. If there is a triable

issue in the sense that there is a fair dispute to be tried as to the

meaning of a document on which the claim is based on uncertainty as

to the amount actually due or where the alleged facts are of such

nature as to entitle the defendant to interrogate the plaintiff to cross-

examine his witnesses should not be denied. Where also, the defendant

shows that even a fair probability that he has a bona fide defence, he is

ought to be granted leave. Summary judgements under Order 37

should not be granted where serious conflict as to the matter of fact

where any difficulty on issues as to law arises, the Court should not

reject the defence of the defendant merely because of its inherent

implausibility or its inconsistency.

17. Considering the entire plaint case, documents and the defence raised

by the defendant in affidavit-in-opposition, this Court finds that the

defendant has not raised any substantial and genuine triable issues

and the defence raised by the defendant is frivolous and vexatious.

18. In view of the above, the plaintiff is entitled to get judgment in terms

of prayers (a) and (aa) of the plaint. As regard damages and mesne

profit an enquiry is required to be conducted. Mr. Rajarshi Dutta

(Contact No. 9903039663, Bar Library, 2nd Floor), Advocate is

appointed as Special Officer to conduct enquiry for damages and

mesne profit after giving an opportunity of hearing to both the parties

and to submit report before this Court within a period of three months

from the date of receipt of this judgment. The remuneration of the

Special Officer is fixed Rs. 3,00,000/-. Initially the plaintiff shall pay

the said remuneration and the plaintiff is entitled to recover the same

from the defendant.

19. G.A No. 5 of 2020 is thus disposed of.

(Krishna Rao, J.)