- (1.) This is a chapter XIIIA Application.
(2.) It was allowed and the suit decreed on 29th June, 2010. Thereafter an application was taken out by the defendant. The decree was passed ex parte at the second call. The application was for setting aside such ex parte decree. Without much contest the decree of 29th June, 2010 was set-aside on 5th August, 2010. The reason was that this Court was of the view, which was accepted by both sides that it was better to pass a decree on contest. Thereafter, this application has been appearing in my list for sometime and was ultimately taken up on 11th August, 2011 for hearing. Hearing was concluded on that date. There is a building known as Haore Miller House at 15, Ganesh Chandra Avenue, Kolkata 13. The plaintiff and the defendant executed an agreement on 4th June, 1993. By it they purported to let out office space measuring 4360 sq. ft. in a part of the ground and basement floors of the building, to the defendant. The duration of the alleged lease was from 1st January, 1993 to 31st December, 1997. This agreement was neither stamped nor registered but the defendant came to occupy the property and paid rent according to the lease. The rent last paid was Rs. 42, 134 for December, 2007.
(3.) A firm of solicitor acting for the plaintiff issued the notice dated 20th August, 2007 to the defendant. The first paragraph of the notice said that defendant had been granted "tenancy" from 1st January, 1993 till 31st December, 2007 and that it was expiring on the above date. The defendant was called upon to vacate the property and deliver its possession to the plaintiff. Perhaps keeping the defective agreement in mind, subsequent paragraphs of the notice said that the plaintiff intended to terminate the "tenancy" after 31st December, 2007, under Section 106 of the Transfer of Property Act, 1882. There is no contest whatsoever about the agreement being unstamped or unregistered. Mr. Abhrajit Mitra, learned Counsel appearing for the plaintiff concedes that the agreement cannot be termed as a lease. But nevertheless since the duration of the lease expired on 31st December, 2007, there was no defect in the second part of the notice intending to terminate the monthly tenancy after 31st December, 2007, anticipating an argument to be advanced, based on the rule of part performance in Section 53A of the Transfer of Property Act, 1882 that before the expiry of the term specified in the agreement, the plaintiff could not terminate the tenancy. ;