GA No.2383 of 2015 CS No.20 of 2015 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE P.C.CHANDRA & SONS (INDIA) PVT.LTD.Versus UNION BANK OF INDIA BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 11th April, 2016.
Appearance: Mr.Ranjan Bachawat, Sr.Adv.Mr.S.Sengupta, Adv.Mr.S.Dasgupta, Adv.Ms.Sreya Basu Mallick, Adv.Mr.S.Sil, Advocate..for the petitioner.
Mr.Jayanata Sengupta, Adv.Ms.Richa Ramai, Adv..for the respondent.
In this application under Chapter XIII-A of the Original Side Rules of this Court, the petitioner prayed for a summary judgement for eviction of the defendant/respondent for want of plausible defence far to speak of good defence.
The plaint case proceeds that the petitioner was and still is owner of premises no.127A, Bipin Behari Ganguly Street, Kolkata700012 and demised under a lease to the respondent the space measuring 1500 sq.
more or less on the fiRs.floor of the said premises at a rent of Rs.9000/- together with 50% of the monthly tax aggregating to Rs.10,762/- payable on a monthly basis according to English calendar.
The respondent was inducted on the strength of indenture of lease dated 15th September, 2004 which was duly registered with the registering authority and the initial period provided therein was 5 years commencing from 1st day of April, 2004.
Apart from the other terms and conditions relating to the respective obligations, one of the clauses contains an extension for a period of 5 years with an enhancement at the rate of 20% of the rent.
It is alleged that the respondent did not exercise an option for extension during the currency of the initial period and allowed the said period to expire by efflux of time.
Subsequently, several correspondences were exchanged between the parties relating to the renewal/extension of the term and it is not in dispute that the respondent continued in occupation until the expiration of the extended period.
The correspondences would reveal that at one point of time the parties were contemplating to have the lease renewed for a period of 5 years and have principally agreed on other terms and conditions except that the same would not contain the provision for further extension.
Ultimately, the parties fell apart and by that time the further period of 5 years also expired.
The present suit is filed not only on the basis of the notice terminating the tenancy under Section 106 of the Transfer of Property Act but also for recovery of possession on the strength of the expiration of the extended period.
Before proceeding to deal with the respective arguments advanced before this Court, it would be apt and relevant to quote the relevant clause which contains an option for extension of the initial period which is set out hereunder: “VII.
The Lessor doth hereby covenant with the Lessees that if the Lessees pay the rent hereby reserved regularly and if the Lessees have observed and performed all the covenants and conditions herein contained, the Lessor shall, on Lessees’ request extend the period of the lease on the same terms and conditions herein contained for a further period not exceeding five years with 20% enhancement in rent from the expiration of the terms hereby granted.” It is submitted on behalf of the petitioner that even if a notice under Section 106 of the Transfer of Property Act was issued during the extended period for breach of the terms and conditions embodied in the registered Deed of Lease, the claim is also based therein.
It contemplate continue however, in to upon the expiration of is thus submitted that renewal of occupation payment of the lease under the the the extended said permitting the enhanced lease clause the extension term does respondent clause rent.
provided It not to subject, was never intended under the aforesaid clause that the respondent would be entitled to exercise an option for renewal, though at one point of time the without parties the were clause contemplating for further to have extension.
the renewal According but to the petitioner, if the respondent has enjoyed the full term including the extended period, it has no authority to remain in occupation or possession as the lease would be treated to have been determined under Section 111 (a) of the said Act.
On the plea of maintainability of the instant application under Chapter XIII-A of the Original Side Rules of this Court, it is submitted that the same has been taken out within the outer limit provided therein and, therefore, the contention of the respondent that it has been filed prematurely is unfounded and unsustainable.
On the other hand, the between respondent says parties clearly the that the correspondences stipulate the exchanged intention that the parties were proceeding for renewal of the lease which is nothing but a fresh lease and the respondent was allowed to continue in occupation upon payment and acceptance of rent and therefore, the petitioner is not entitled to a summary judgement.
According to the respondent, if a defence is put forward which requires an adjudication summary upon judgement unconditionally.
acceptance of possession and trial, and It rent the the is petitioner leave further constitute therefore such to is defend submitted an entitled should that assent possession not of is the be to a granted payment and continuing in protected under Section 116 of the Transfer of Property Act.
Even if the parties could not arrive at consensus, according to the learned Advocate for the respondent, a distinction can be seen between the word “renewal” and “extension” and, therefore, in absence of any further document of lease, it would not automatically construe that the possession was under the extension clause.
A preliminary objection is further taken on the maintainability of the instant application being premature.
I am not oblivious of the proposition of law that if the respondent has determination on shown a evidence, plausible no leave defence should be which granted requires to the plaintiff to have summary judgement under Chapter XIII-A of the Original Side Rules of this Court.
Letters exchanged between the parties after the expiration of the initial terms would reflect the minds of the parties.
The aforesaid clause does not contain the word “renewal” but an option was given to the lessee to have the period provided under the lease to get it extended on same terms and conditions for a further period not exceeding 5 yeaRs.subject however, to enhancement of rent at the rate of 20% so reserved.
There is a clear distinction between the word “renewal” and “extension”.
The former requires execution of a further document.
However, in case of the latter, such continuance of possession is under the extended clause.
The meaning which could be attributed to the word ‘renewal’ etymologically means ‘again’ and ‘fresh’.
Section 107 of the Transfer of Property Act postulates that a lease for a period extending one year is required to be made by a written document and should be registered.
In case of renewal, unless a fresh lease is executed, the continuance in possession cannot be presumed under a renewal clause.
On the other hand, the word ‘extension’ logically means stretching of, flowing from and arising from earlier document and, therefore, does not require further or fresh document to be executed.
refers to existence of an earlier The word ‘extension’ document and prolongation thereof, subject, however, to the parties intending otherwise.
It does not require a fresh or further document to be executed as the continuance in possession would be under the extension clause.
The support can be lent on the aforesaid proposition to a judgment of the apex court in the case of Provash Chandra Dalui and another v.
Biswanath Banerjee and another reported in AIR1989SC1834 wherein it is held: “It is pertinent to note that the word used is ‘extension’ and not ‘renewal’.
To extend means to enlarge, expand, lengthen, prolong, to carry out further than its original limit.
Extension, according to Black’s Law Dictionary means enlargement of the main body; addition of something smaller than that to which it is attached; to lengthen or prolong.
Thus extension ordinarily implies the continued existence of something to be extended.
The distinction between ‘extension’ and ‘renewal’ is chiefly that in the case of renewal, a new lease is required, while in the case of extension the same lease continues in force during additional act.
period by the performance of the stipulated In other words, the word ‘extension’ when used in its proper and usual sense in connection with a lease means a prolongation of the lease.
Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole.
The purposes of the lease were not expected to last for only 10 years and as Mr.A.K.
Sen rightly pointed out the Schedule specifically mentioned the stipulated period of twenty years.’ lease as ‘for As these words are very clear, there is very little for the Court to do about it.” The letters exchanged between the parties do not indicate that there was a concluded contract for renewal as the petitioner ultimately showed its intention not to agree on the terms and conditions suggested by the respondent.
notice under Section 106 of the Transfer Even if the statutory of Property Act was issued by the petitioner after the expiration of the initial term, it looses its efficacy the moment the extended term expires by efflux of time.
Section 111(a) of the Transfer of Property Act does not contemplate any notice under Section 106 of the Act if the period provided under the lease runs its full tenure and the recovery is sought on such ground as well.
The legislative intent can further be gathered from the opening sentence of Section 111 of the Act, which provides that a lease is determined by efflux of time.
Much argument is advanced on the validity and legality of the notice under Section 106 of the Act.
Those, in my view, become academic the moment this Court finds that the extended period has expired.
A defence is further disclosed in the opposition that though the municipal rates and taxes at the proportionate rate have been agreed to be paid for use and occupation of the demised premises, they do not form part of the rent.
What is sought to be contended is that if the rent reserved for the demised premises is below Rs.10,000/- per month for a premises situated within the area over which the Kolkata Municipal Corporation Act extends, it would come within the ambit of the exemption provision contained in Section 3 of the said Act.
defined in the Act.
The word ‘rent’ has not been The definition of ‘rent’ should not be given narrowly but should imbibe within it all payments made for use and enjoyment of the premises and the facilities provided at the costs of the landlord.
and amenities It is not stated in the opposition that the municipal taxes were payable separately and the parties have clearly intended not to bring the same within the purview of the rent.
There is no denial that the municipal taxes were never paid by the respondent.
It is evident and apparent from the statements made in the petition that not only was the rent of Rs.9,000/- per month payable but along with it municipal taxes were being paid and, therefore, the total sum which the respondent used to pay on monthly basis exceeds Rs.10,000/- and, therefore, the nature of the occupancy cannot be said to be such to come within the periphery of the West Bengal Premises Tenancy Act, 1997.
From whatever angle this Court looks, it does not find that the respondent has been able to make out a defence, far less to speak of good defence, entitling him to have the leave to defend unconditionally.
The application is thus allowed.
There shall be master’s summons.
an order in terms of prayer (a) of the The plaintiff is also entitled to a decree for arrear rent as claimed in paragraph 17 of the plaint.
So far as the relief for mesne profits is concerned, this Court, instead of passing a decree for the same, hereby directs enquiry to be made as to the alleged mesne profits.
This Court appoints Mr.Sabyasachi Chowdhury, a practicing advocate of this Court, as Special Referee who shall make an enquiry as to the mesne profits, after permitting the parties to adduce evidence in this regard.
The Special Referee shall submit his findings on such enquiry within three months from the date of communication of this order to him.
fixed at 5000 GMs The remuneration of the Special Referee is to be paid by the plaintiff at the fiRs.instance.
(HARISH TANDON, J.) n.m./ S.