Sanjib Banerjee, J.
1. In this application under Chapter XIII-A of the Rules on the Original Side of this Court, the plaintiff seeks a decree of eviction in respect of a portion of premises No. 20B, Abdul Hamid Street, Calcutta-700069.
2. Under a registered deed of indenture of July 19, 1908 the plaintiff demised unto the defendant an area of 22785.14 sq.ft. on the first, second and fifth floors of the relevant building at the agreed monthly rent for a period of three years with an option to the defendant-tenant to renew the lease for a further year at the end of the third year and for a period of another year thereafter. The tenure under the lease began on June 1, 1967 and the monthly rent was fixed at Rs. 20,506.50 at the rate of 90 paise per square foot inclusive of the tenant's share of the municipal rates and taxes and a service charge of Rs. 7519.05 calculated at the rate of 33 paise per square foot for the amenities annexed to the tenancy. The deed obliged the tenant to observe the various terms thereunder throughout the tenure thereof and Clause II(n) of the tenant's covenants required the tenant to peacefully yield up possession upon the expiration or earlier determination of the tenancy:
11. The Tenant to intent that the obligations may continue throughout the term hereby created doth hereby covenant with the landlord as follows:.
(n) On the expiration or earlier determination of the said term or renewal thereof to yield up peaceably the demised premises with all the installations and fixtures belonging to the landlord as listed in Schedule 'B' hereto to the landlord in the same conditions as the same were at the time of commencement of this lease; damages by reasonable wear and tear and by fire not caused by any negligence on the part of the tenant or its employees, servants or agents, earthquake, storm, tempest, flood, mob violence, war, air-raid, civil commotion and other irresistible forces excepted.
The corresponding obligation of the landlord is found at Clause III(d) of the deed. The agreement records at Clause IV(c), the following:
IV. It is hereby agreed and declared by and between the parties hereto as follows:.
(c) If the rents and charges hereby reserved or any part thereof shall be unpaid for two consecutive months after becoming payable (whether demanded or not) within a period of twelve months or if any terms, covenants and conditions on the tenant's part herein contained shall not be performed and observed and/or if the tenant shall go into liquidation then and in any of such cases it shall be lawful for the landlord at any time thereafter to re-enter the demised premises or any part thereof in the name of the whole and thereupon this lease shall absolutely cause and determine without a prejudice to any right of the landlord in regard to any antecedent breach of the tenant's covenants, terms and conditions herein contained.
3. The lease being for an initial period of three years with the lessee's option of renewing it for two further periods of a year, it fell within the ambit of the West Bengal Premises Tenancy Act, 1956 and the lessee was entitled to protection thereundpr. The 1956 Act was repealed by the West Bengal Premises Tenancy Act, 1997 that came into effect in 2001. Section 3(f)(i) of the Act carves out an exception that the plaintiff claims and is not disputed by the defendant. The omnibus protection to tenants does not apply, in view of Section 3(f)(i) of the later Act, to the suit premises that a tenant uses for non-residential purpose and yields more than Rs. 10,000/-as monthly rent in an area within the limits of the Kolkata Municipal Corporation.
4. The plaintiff has issued notice under Section 106 of the Transfer of Property Act, 1882 and founds its claim in the suit thereon. It transpires that in course of time the plaintiff had created three further tenancies in respect of other portions at the same building in favour of the defendant. The plaintiffs notice of April 28, 2006 covers the entire area occupied at the building by the defendant and the plaintiff called upon the defendant to quit, vacate and deliver vacant and peaceful possession in respect of all the tenancies by May 30, 2006. The notice was received by the defendant on May 2, 2006 and the defendant has made no grievance as to the date of May 30 mentioned in the notice for possession thereof to be made over and has proceeded on the footing that the plaintiff had stipulated that the tenancy would stand determined at the .nd of the month of May.
5. In its notice the plaintiff proffered a reason for determining the tenancy: the rent yielding from the area at the said building under the defendant's occupation was meagre and the defendant had refused to enhance the rate despite demands. The second, fourth and fifth paragraphs of the notice which the plaintiff required the defendant to treat as one under Section 106 of the Transfer of Property Act (the said Act) states as follows;
2. By reason of the aforesaid transfer, M/s. EIC Holdings Limited is the owner and landlord of premises No. 20B, British India Street (now known as 20B, Abdul Hamid Street), Kolkata- 700069 including Flat Nos. 1D, 1G, 1I, 2A, 3D and 5A thereof, and the Calcutta Dock Labour Board (for short 'CDLB') has been occupying an area covering a total area of 25,155.25 sq.ft. at the said Flat Nos. 1d. 1G, 1D, 2A, 3D and 5A at premises No. 20B, British India Street (now known as 20B, Abdul Hamid Street), Kolkata 700069, occupying by CDLB as a tenant of EIC Holdings Ltd. as per the following details:
Floor Total space occupied Flat1st floor : 7,436.57 sq. ft. 1D, 1G & II2nd floor : 10,923.57 sq. ft. 2A3rd floor : 1,379.11 sq. ft. 3D5th floor : 5,416.00 sq.ft. 5AThe said Flat Nos. 1D, 1G, II, 2A, 3D and 5A at premises No. 20B, British India Street (now known as 20B, Abdul Hamid Street), Kolkata- 700 069, occupied by CDLB is hereinafter referred as to 'the said premises'.
4. Inasmuch as the said premises is a commercial building and is being used by CDLB for commercial purposes, from time to time representations were made to CDLB by the predecessor-in-interest of our client for increment of rent and for payment of the commercial -surcharge and share of municipal taxes. In fact, from time to time several proposals were sent to CDLB for such increment, but no response has been received from it. At present, CDLB is paying rent of Rs. 24,717/-(after deducting TDS @ 20.5%, hence gross rent is Rs. 31,091/- which includes a monthly car parking rent of Rs. 150/-) by a single cheque every month @ Rs. 1.23 per sq.ft. to our client. Our client is not inclined to continue the said monthly tenancy/lease.
5. In the circumstances, we, as authorized legal agent of M/s. EIC Holdings Limited, do hereby give notice that your said monthly tenancy/lease shall stand terminated at the end of the month of May, 2006 and we call upon you to quit, vacate and deliver vacant and peaceful possession of the said premises by May 30, 2006 to our client in the same condition as the said premises was given to you at the time of inducting you as tenant. In the event, such possession is not handed over to our client, you will be treated as 'trespasser' and appropriate legal proceedings against you will be taken for recovery of possession of the said premises and for other relief. Needles to say that you will be responsible for the costs and expenses thereof.
6. The defendant responded by its letter of May 19, 2006, disputing the validity of the notice and questioning the ground given for determining the tenancy. The defendant reminded the plaintiff of proceedings pending before the Rent Controller for enhancement of rent, expressed its indifference to the plaintiffs assertion as to the defendant's legal status and declined to make over possession as demanded. It appears that the plaintiff instituted four sets of proceedings before the Rent Controller in respect of the four several tenancies at the said building granted in favour of the defendant, for enhancement of rent. The rents that the other three tenancies yield would entitle the defendant protection under the West Bengal Premises Tenancy Act, 1997 and would not be covered, by value, by the exemption recognised in Section 3(f)(i) thereof. The plaintiff has accepted such position and confines its claim in the suit and this application only to the extent of the tenancy covered by the deed of July 19, 1968. The plaintiff clarifies that it does not press its claim in respect of the other tenancies and says it will proceed before the Rent Controller for enhancement of rent in respect thereof and take other steps that it may be entitled to in law.
7. It is on such count that the defendant principally attacks the claim made in the suit and the notice on which it is based. The defendant has urged three grounds to not only resist the claim, but to also suggest that triable issues arise that would entitle the defendant to carry the defence to a protected trial and not require it to succumb to a decree in summary proceedings on affidavit evidence. The first ground taken in defence is that Section 106 of the said Act has no manner of application and in the plaintiffs invocation thereof and the notice thereunder, the suit is flawed. As a corollary, the defendant suggests that Section 111(g) of the said Act would govern the matter. The substance of the first count of defence is that Clause IV(c) of the deed specified the instances which would amount to default on the defendant's part and would entitle the plaintiff to forfeiture. Since none of the conditions set down in that clause, argues the defendant, had been met, the plaintiff cannot seek to determine the tenancy.
8. The second ground urged by the defendant is that the notice of April 28, 2006 is otherwise bad as it does not disclose any categorical intention to determine the relevant tenancy. The defendant insists that in seeking to determine all the several tenancies in the same breath, the plaintiff had referred to an imaginary tenancy and however lenient the Court may be with the notice under Section 106 of the said Aft, it would not permit a landlord to proceed under a notice which fails to appropriately describe the tenancy.
9. The final ground put forth by the defendant is that it is irrelevant whether Section 106 of the said Act enjoins upon the landlord to give reasons for determining the tenancy, since this landlord had done so in this case, it had to stand or fall on the reasons and the Court could test them. The third count of defence appears to be a sequel to the failed attempts to have the matter amicably resolved between the parties. Though such attempts are irrelevant upon their failure, the defendant seeks to assert that there is neither any basis for the exorbitant rent demanded by the plaintiff, nor has the plaintiff brought any material to demonstrate that the reasonable letting out value would be in excess of what the defendant pays month to month.
10. The defendant asserts that it is for the plaintiff to affirmatively establish lawful termination before it can proceed to have judgment and the nature of the present proceedings would not require the defendant to conclusively demonstrate that it had a right to resist eviction but only to give a preview of what it may bring at the trial by making out an arguable case.
11. The defendant seeks toforush aside Section 106 of the said Act by suggesting that the opening words of Sub-section (1) thereof would preclude its operation in the context. According to the defendant, there is a contract to the contrary, within the meaning of the opening phrase of Section 106(1) of the said Act, as to the determination of the lease. If Clause IV(c) is regarded as the enumeration of the circumstances that would result in the lease being forfeited, the defendant argues, it is only under one or more of such grounds that the plaintiff can seek to determine the lease and not under Section 106 of the said Act.
12. The defendant relies on the seventh limb of Section 111 and submits that the plaintiff could have sought eviction only by a notice being served thereunder upon asserting and proving the fulfilment of at least one of the three grounds recognised by Section 111(g) of the said Act.
13. Alternatively and without prejudice to its contention that it was Section 111(g) rather than Section 106 of the said Act that the plaintiff was required to invoke, the defendant submits that the notice of April 28, 2006, even if tested under Section 106 of the said Act, is incurably bad. The defendant says that such notice was not in furtherance of the cause that the plaintiff now espouses, and the plaintiff should be required to work out its first step before it is permitted to prosecute its present, truncated claim. According to the defendant, the demand found in the notice does not match up to the claim now being prosecuted, and that is fatal to the case now run.
14. The defendant suggests that quite apart from the plaintiff not adducing any evidence as to the insufficiency of the rate of rent that it alluded to in its notice, neither had the defendant committed any default in tendering rent nor in observing its covenants that the deed obliged it to nor even had the defendant gone into liquidation.
15. The plaintiff answers the defendant's reliance on Clause IV(c) with the argument that since the tenure recognised by the deed of 1968 was only for a duration of five years at the most, the terms of the deed became irrelevant after the expiry of five years from June 1, 1967. The plaintiff cites the protection accorded to a tenant under the West Bengal Premises Tenancy Act, 1956 to justify that it could not have proceeded to remove the defendant after the expiration of the tenure under the deed.
16. The defendant has referred to a Full Bench judgment reported at : AIR1973Ker51 (Jacob Philip v. State Bank of Travancore and Ors.) and has placed paragraph 2 thereof. The defendant relies on the construction of Section 116 of the said Act, relating to holding over, enunciated in the Jacob Philip case. The relevant passage from paragraph 2 supports what the defendant asserts that the acceptance of rent or assent otherwise of the landlord would keep the terms of the lease alive even after the determination of the period originally covered thereby as the tenant would be holding over on the same terms:
2. First, as to the question of notice. Ex. P-3 is for a term of one year which expired on 27-7-1957. The suit was filed on 9-10-1965. There was no assent by acceptance of rent, to the continuance in possession of the defendants since the expiry of the tenancy and prior to the institution of the suit. But they continued in possession. The plaint treated the 1st-defendant as tenant and defendants 2 and 3 as sub-tenants, and claimed arrears of rent for three years prior to the suit at the rate stipulated in Ex- P-1 and future rent at the rate of Rs. 500/-. Both were decreed by the Court below only at Rs. 480/- per year. In the circumstances, we are of the opinion that the plaintiff had 'otherwise assented' to the continuance in possession of the defendants as tenants within the meaning of Section 116 of the Transfer of Property Act and that there was a tenancy by holding over subsequent to the expiry of the period of Ext. P-3. As a result, the lease Ex. P-3 would stand statutorily renewed from year to year.
17. The defendant relies, in this context, to a letter of March 17, 1988, long after the efflux of the original period contemplated under the lease, to suggest that in the following lines thereof the assent of the plaintiff as to the defendant holding over is apparent:
The said lease deed was for three years and the same was not renewed on expiry but you are continuing the occupation of the said area on the terms and conditions as conttmed in the said lease deed as holding over.
18. The argument made by the plaintiff that all the terms cease to have application beyond the original tenure of the lease, is not open to the plaintiff on its unequivocal acceptance in the said letter of the continuance of the original terms. Even without the assertion in its letter of March 17, 1988, the principal terms of the lease would have been applicable. The quantum of rent is also a term of the lease as may be other covenants as to the manner in which the premises may be maintained. If the original terms cease to run upon the tenure running out and not spilling over during the period that the tenant holds over, it would lead to an absurd result. The protection that the defendant enjoyed during the currency of the 1956 Act was against eviction except in accordance with the provisions of such Act. If there were terms in the agreement which the defendant breached and the breach thereof did not exempt the defendant from eviction under the 1956 Act, the plaintiff could have sought eviction. The test is not against the overwhelming protection that the 1956 Statute conferred on a tenant but as to whether the argument of the plaintiff would hold in case of a tenant holding over de hors the umbrella of a Rent Control Act.
19. The defendant has relied on a judgment reported at : AIR1951Mad408 (Arunachala Naicker v. Ghulam Mahmood Saheb) for the interpretation of the expression 'contract to the contrary' appearing in Section 106 of the said Act. The relevant Clause of the agreement which was put up in furtherance of the argument that there was a contract to the contrary, in such case, was:
Besides this, if you, after the expiry of the said stipulated period, send me a notice giving one month's time I shall vacate the said land and deliver to you possession thereof.
The lease in the Arunachala Naicker case related to an agricultural land which, under Section 106 of the said Act requires a six-month notice and is deemed to be a lease from year to year. The tenant's argument in such case for being entitled to the benefit of Section 106 of the said Act was repelled upon the above Clause being regarded as an agreement to the contrary:
 A contract to the contrary within the meaning of the words in Section 106 T.P. Act, was certainly entered into by the parties by Ex. P.1. It is argued by Mr. C.R. Krishna Rao for the appellant that Section 106 requires not only a contract to the contrary with regard to the period of notice, but also with regard to the expiry of the notice. It seems to us that when there is a contract governing the question of notice, we must read that contract in a reasonable way to ascertain what the parties intended by way of notice and not try to read into the contract some term that would have to be implied only if there were no contract. It seems to us reasonable to conclude from the passage set out in the opening para that not merely did the parties intend that the period of notice should be one month, but also that the one month's notice should be given at any time.
Sections 106, 111 and 116 of the said Act need to be noticed in the context of the arguments made:
106. - Duration of certain leases in absence of written contract or local usage.- (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in Sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under Sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under Sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
111. Determination of lease. - A lease of immovable property determines-
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event - by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event- by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may reenter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
116. Effect of holding over. - If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.
20. The various instances of how a lease of an immovable property determines, is set out in Section 111 of the Act. The last limb of the Section provides that the lease would stand determined, inter alia, on the expiration of a notice to determine the lease or to quit. The notice that Section 111(h) refers to may be a notice contemplated under Section 106(1) of the Act. Forfeiture and determination, though of the same practical effect, are not interchangeable expressions. A lease may determine without forfeiture, but forfeiture will result in the lease being determined. Forfeiture, as judicially understood, is a punishment annexed by law to some illegal act or negligence; something imposed as a punishment for an offence or delinquency and conveys a sense of penalty. Section 111(g) enumerates when the lessee will forfeit the lease. Such forfeiture is on account of breach or on account of the lessee setting up a title adverse to the lessor's or upon insolvency. In each case there is an element of default on the part of the lessee that results in forfeiture.
21. The other cases of determination of a lease as recognised by Section 111 of the Act may not necessarily involve a default on the part of the lessee; at least Section 111(h) does not. There certainly was a contract to the contrary, within the meaning of Section 106(1) of the Act, in the deed of 1968. There is no longer a contract to the contrary within the meaning of Section 106(1) of the Act and there was not one either when the plaintiff issued the notice on April 28, 2006.
22. The shield behind which the defendant seeks to take cover was available to it only during the enure that the lease contemplated. Clause IV(c) was a protection granted unto the tenant that during the period covered by the lease, the tenancy would not be liable to be determined unless one or the other conditions in that Clause applied. When the period contemplated under the deed ran out, so did the protection accorded under Clause IV(c) to the tenant. Whether or not the plaintiff assented to the tenant holding over, the defendant was no longer at liberty to cite Clause IV(c) to resist termination. It is not abnormal for a Clause of such nature to be included in a lease, protecting the lessee against determination during the agreed period. But despite the principal terms of the lease remaining in force during the period that the lessee holds over, such a Clause cannot be cited by the lessee to set up a tenancy in perpetuity. Just as the executed part of a contract becomes irrelevant and the executory terms carry on, a Clause of such nature would lose its force upon the tenure contemplated by the parties, coming to an end. Clause IV(c) would have been a ground for earlier determination of the tenancy during the period covered by the deed. Clause II(n) which contains the tenant's promise to peaceably yield up possession 'on the expiration or earlier determination' of the tenancy would recognise such construction. Clause IV(c) would only have bi an the basis for the 'earlier determination' referred to in Clause IKn). Upon the tenure under the lease running out, the tenant was bound to deliver possession without further ado. The 'earlier determination' and Clause IV(c) became dead wood after the tenure covered by the lease expired and did not survive, irrespective of any holding over.
23. There is another way of looking at Clause IV(c), but one that may be irrelevant. The Clause entitled the landlord to re-enter the demised premises or any part thereof in the name of the whole upon the happening of any or more of the instances recognised therein. In the wording of the Clause it appears to be one more to arm the landlord than to be a shield for the tenant. The matter may have been different if the Clause went on to add that the tenancy could not be determined on any other ground save those set out therein. That would have made the instances enumerated exhaustive. But again, in the context of the view taken, it is immaterial as to whether the Clause was exhaustive or that the Clause granted absolute protection except in the case of instances mentioned, to the tenant. The Clause did not survive the tenure of the lease and ceased to be operative when holding over by the tenant began. Even if the other terms of the lease continued despite the end of the tenure contemplated by the deed of 1968, Clause IV(c) cannot be said to have remained in operation. Not all terms of a lease need continue upon the expiry of the tenure thereof and during the period when the lessee holds over.
24. The defendant's charge that the notice is bad as being vague is without much merit. A notice of the kind required under Section 106(1) of the Act has to be a formal declaration of the lessor's intention to end the lease. A notice of such nature where the intent is evident and the noticee is seen to have been conveyed the purport thereof, there is little else to enquire as to validity. Not every notice under any statutory provision requires such notice to refer to the provision as long as the legal requirement required to be discharged by the provision is complied with.
25. The plaintiff here set out in its notice details of all the flats that the defendant occupies and required the defendant to remove itself therefrom. With the benefit of the defendant's reply, it can be gauged as to how the defendant read the notice. The notice made out a larger case, than what the plaintiff now pursues, but that would not render the notice vague or indeterminate. There were several tenancies that the plaintiff clubbed together in the notice and as long as the entirety of the tenancy in respect of which a remedy is sought, was included in the notice, the plaintiff would not be required to begin at step one all over again.
26. Section 106 of the Act does not require any reason to be given by the lessor and the fact that the lessor gave a reason would not require the lessor to justify the reason before termination becomes effective. If the law recognises a lessor's right to determine the lease at his pleasure, that he pleases to cite a ground that he ultimately does not, or chooses not to, establish would not detract from the right conferred on him by statute. The plaintiff was not called upon, in the circumstances, to establish what would be the reasonable letting out value of the suit premises and that the plaintiff did not attempt to do so, cannot be held against it.
No other or additional material that the defendant can bring at the trial will further any of the grounds of defence urged since none of the grounds is tenable. A triable issue does not arise at the defendant's farcy and merely upon the defendant stating a defence. The triability of the issue arises if there is any likelihood of success of the issue, however thin, at the trial. If the defence taken can be dismissed on affidavit evidence without any further enquiry, the defendant has no arguable case nor is any triable issue raised for a trial to ensue.
27. The plaintiff is entitled to the decree for eviction. There will be a decree entitling the plaintiff to have vacant and peaceful possession of such portion of premises No. 20B, Abdul Hamid Street, Calcutta - 700 069 as was demised under the deed of July 19, 1968 in favour of the defendant, being flat No. ID and II on the first floor, flat No. 2A on the second floor and flat No. 5A on the fifth floor, comprising a total area of 22785.14 sq.ft. The plaintiff is also entitled to an inquiry into the mesne profits for such period from June 1, 2006 that the defendant remains in possession, without this direction giving the defendant a charter to continue in possession. Mr. Manoj Malhotra, Advocate, is appointed Special Referee to assess the mesne profits in respect of such flats comprising a total area on 22785.14 sq.ft. The Special Referee's report should be filed within six months of the Special Referee first taking up the assignment of assessing the mesne profits and the Special Referee will be paid a consolidated remuneration of 5000 GMs for such purpose. Such remuneration will be paid by the plaintiff at the first instance with liberty to the plaintiff to recover the same from the defendant.
The plaintiff will also be entitled to costs assessed at 2000 GMs.
Urgent certified photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
28. On the prayer of the defendant, the decree will remain stayed for a period of three weeks from date.