- (1.) The suit is for eviction, arrears of rent and damages. THE tenanted premises measures about 5858 sq.ft. and covers parts of two floors at 4/1, Red Cross Place, just beyond a stone's throw away from this Court. THE application that engages immediate attention is for final judgment for eviction and a decree for mesne profits.
(2.) In addition to the affidavit-in-opposition and the reply, two sets of supplementary affidavit have been filed by the defendant and one by the plaintiff. There is no written agreement spelling out the terms of tenancy that the parties have relied upon. Since there was no deed of lease in respect of the suit premises, there was no fixed tenure as to occupation that bound the parties. The defendant accepted the plaintiff as a tenant by a letter dated May 8, 2004 addressed to the erstwhile landlord. IN the words of such letter, the defendant had already apparently paid "rent, service charges and municipal rates and taxes for the period January, 2004 to March, 2004" to the erstwhile landlord. A copy of the letter was marked to the plaintiff and certain payments were also tendered thereunder to the new landlord. By a notice dated May 22, 2007 the plaintiff alleged that a sum of Rs.17.51,804.64 remained due from the defendant in respect of the suit premises. The plaintiff also alleged that the defendant had made structural additions and alternations to the suit premises. After narrating such grounds, the plaintiff determined the tenancy and called upon the defendant to deliver vacant and peaceful possession of the premises within a month of the date of such notice. The plaintiff indicated that upon the expiry of the notice period, the defendant would be regarded as a trespasser and the plaintiff would be entitled to claim damages at the rate of Rs.10,000/- per diem. The last paragraph of the notice of May 22, 2007 provided as follows: "7. Please treat this letter as a notice under section 106 of the Transfer of Property Act, 1882 to be read with the provisions of the West Bengal Premises Tenancy Act, 1997 (as amended) which please note." The plaintiff claims that such notice was received by the defendant on May 29, 2007. A copy of the postal acknowledgement card is appended to the plaint and the application for summary judgment. According to the plaintiff, despite due receipt of such notice, the defendant did not respond thereto or act in accordance therewith. The suit was instituted by or about the first week of December, 2007. In the application for summary judgment the plaintiff has disclosed the following letter dated January 3, 2008 issued by the defendant: "As per the discussion held with the undersigned with you, we are giving the following proposal to liquidate the entire dues of Rs.19,91,206.82 (Nineteen Lacs Ninety-One Thousand Two Hundred Six and Paise Eighty- Two Only) against outstanding of Rent and other costs up to 31.12.2007 as per details enclosed. We shall pay 25% of the above mentioned amount immediately after receipt of your confirmation and the remaining outstanding amount shall be paid to you by a Bank Guarantee equivalent to one month Rent and Taxes every month, kindly give the proforma of the Bank Guarantee to enable us to discuss the matter with the bank. We shall pay the current Rent and Taxes, further we state that if our financial position improves we will liquidate the dues earlier also. We also submit that we will fulfill the commitments and won't give you opportunity for any complain and keep the good neighborly relation with you. We solicit your co-operation in this regard and waiting for an early reply." A summary sheet detailing the admitted dues was appended to such letter by the defendant. It has not been suggested on behalf of the defendant's that the letter embodies any post-notice agreement between the parties.
(3.) The plaintiff says that notwithstanding the sundry other matters referred to in its letter of May 22, 2007 since the tenancy was one at will and not for any period specified by any deed of lease, the plaintiff was entitled to determine the tenancy without assigning any reason therefor. THE plaintiff contends that the fact that the plaintiff had alleged grounds of non-payment and structural alternation would not detract from the substance of the demand in the notice to vacate the premises. At paragraph 14 of the plaint it has been averred that the monthly rent was Rs.22,150/- and the defendant was liable to pay arrears of Rs.10,32,100/- on account of outstanding rent, Rs.6.21,204.08 on account of commercial surcharge upto the quarter of June, 2007 and electricity charges of Rs.96,506.56. The total amount claimed of Rs.17,51,804.64 in paragraph 14 of the plaint is the basis for the valuation of the suit as indicated in paragraph 16 thereof. At paragraph 13 of the plaint there is a claim for mesne profits at the rate of Rs.10,000/- per day which has been ridiculously computed to be Rs.13,800/- for the defendant's occupation of the suit premises after the notice period. Though the sum of Rs.13,800/- appears to be a mistake as the corresponding relief indicated in the prayers is for Rs.13,80,000/-, the claim on account of mesne profits has not been included in the basis for the valuation of the suit.;