- (1.) The plaintiff claims eviction under Chapter Xlll-A of the Rules on the Original Side of this Court in respect of a property at Poddar Court in Chitpur within jurisdiction. It is not in dispute that subsequent to a recent enhancement the monthly rent payable in respect of the premises in question takes it beyond the pale of the West Bengal Premises Tenancy Act, 1997. THE notice under Section 106 of the Transfer of Property Act, 1882 was Issued on August 8,2008. THE notice specified that the tenancy stood terminated with effect from August 24, 2007 and required the defendant to make over possession of the premises "before 23.08.07."
(2.) The suit was instituted in the City Civil Court on November 30, 2007 and has been transferred to this Court pursuant to an order of July 28, 2008. That order noticed that the defendant had instituted a suit in this Court claiming a declaration as to its tenancy and injunction restraining the landlord from evicting it. Since it was felt that the matters in issue in the two suits would be closely connected, the order for transfer of this plaintiff's suit was made. Four grounds of defence have been urged. The defendant says that the notice is bad, since the notice required the defendant to deliver possession before the expiry of 15 days from the date of the notice. It is the defendant's case that the provisions of Chapter XIII-A of the Rules on the Original Side of this Court would not apply to a transferred suit. The defendant next urges that in view of the order dated July 28, 2008 that required the two suits to be taken up one after the other, it was intended that this suit would stand to trial and not be disposed of on the basis of an application for summary judgment. The final ground urged is on merits: the defendant says that subsequent to the issuance of the notice of August 8, 2007, the plaintiff received payment of rent and deposited the relevant cheques in its bank account, thus waiving the notice under Section 106 of the Transfer of Property Act. On the question of the propriety of the notice, the plaintiff has relied on a judgment BHAGABANDAS AGARWALLA v. BHAGWANDAS KANU, 1977 AIR(SC) 1120 The case involved a notice under Section 106 of the Act that had been issued on September 29, 1962 and demanded that the noticee deliver possession of the premises in question "within the month of October, 1962". The notice further went on to say that the landlord would consider the tenant to be a trespasser as on November 1,1962, Since Section 106 of the Transfer of Property Act, as it then stood, required a notice to be issued with effect from the end of the subsequent month of tenancy, an argument was made successfully by the tenant that the command in the notice that the tenant deliver possession "within the month of October, 1962" did not meet the requirements of that section. The Supreme Court opined that a notice under Section 106 had to be construed liberally and found the notice in question to have sufficiently complied with the provisions of Section 106 of the Act. The plaintiff says that, in any event, sub-section (3) of Section 106 of the Act precludes the defendant from questioning the propriety of the notice. The plaintiff says that since it is not in dispute that the suit was instituted well after 15 days from the date of receipt of the notice under Section 106 of the Act by the defendant, in view of Section 106(3) of the Act, the validity of the notice is beyond dispute. The plaintiff is completely justified in such assertion.
(3.) As to the technical ground that the substance of Chapter XIII-A of the Rules on the Original side of this Court cannot be applied to a suit that is transferred from a subordinate Court, the plaintiff refers to a judgment SHREE SHREE GOPAL JEW v. JUMBO TRADERS PRIVATE LIMITED, 2007 1 CalHN 237. In view of the Division Bench judgment and the principle of law recognized therein, the defendant does not urge the ground any further. There is some discussion that is necessary on the aspect of waiver that has been urged by the defendant. The defendant apparently tendered cheques for the value of the rents for the months of August, September and October to the plaintiff notwithstanding the issuance and receipt of the notice dated August 8, 2007 under Section 106 of the Act. By a letter dated November 29, 2007 the plaintiff apparently returned the cheques and reminded the defendant that since a notice under Section 106 had been issued there was no question of the plaintiff accepting rent for any subsequent period. The defendant wrote back on December 18, 2007 alleging that though the plaintiff's letter of November 29, 2007 had been received by it, the three cheques which had been apparently returned under cover of such letter had not been included in the package delivered to the defendant. The defendant claimed in such letter that a representative of the defendant had called on a representative of the plaintiff, and upon negotiations, the plaintiff's representative agreed that the rent for the three months would be received and the cheques deposited. The defendant asserted in such letter that the cheques had thereafter been encashed by the plaintiff by December 15, 2007.;