Patherya, J. - (1.) THIS is an application filed under Chapter XIII A of the Original Side Rules of this High Court.
(2.) THE case of the petitioner is that the rent paid by the defendant is above Rs. 10,000/- and the notice under Section 106 of the Transfer of Property Act was issued on 26th March, 2008. Such notice was received on 27th March, 2008. To the notice issued under Section 106 of the Transfer of Property Act, a reply was given on 8th April, 2008 wherein the tenancy between the plaintiff and the defendant has been accepted. In view of Section 3(f) of the 1997 Act which has come into effect on and from 10th June, 2001 the plaintiff is entitled to initiate the instant proceeding. Besides claiming a decree of eviction, mesne profit from 12th April, 2008 till the filing of the suit has also been claimed. The defence taken by the defendant is that at the time when the tenancy was taken the rent payable was approximately Rs. 3,000/- which subsequently has been enhanced. Therefore, it is the rent laws which will govern the tenancy and the notice under the Transfer of Property Act is bad. It is by subsequent enhancement that the rent has exceeded Rs. 10,000/- and therefore, the tenancy is not governed by the 1997 Act. The second objection raised is with regard to non-filing of the application within 10 days of entering appearance. Both the objections are nothing but moonshine as the period of 10 days will be applicable only in cases where a written statement has been filed. In the instant case no written statement has been filed, therefore, 10 days limitation is not applicable to the facts of this case as held in 30 CWN 298 and 2004(3) CLT 271. The 1956 Act will not be applicable as held in (2008) 2 SCC 728 and (1995) 1 SCC 104. No reasons may be recorded in the notice issued under Section 106 of the Transfer of Property Act as held in 2008 (2) CHN 270. For all the said reasons, therefore, a decree be passed against the defendant. The case of the defendant is that in 1977 East India Transport Agency a partnership firm became a monthly tenant under East India Commercial Limited. In 1983 the Transport Agency became a unit of EITA and thereafter rent was increased. In December 2003 the rent was Rs. 3337/- and in 2003 a notice was issued for increase of rent under the 1997 Act. Such rent was increased in January, 2003 to Rs. 20,022/- and month by month such rent is paid by East India Transport Agency and receipt is also issued in its name. East India Commercial merged with EIC Holdings Limited and thereafter the rent has been paid to the plaintiff by East India Transport Agency. Therefore no privity of contract exists between the plaintiff and the defendant. Since April 2008 the cheque issued by East India Transport Agency has been returned and no rent receipt issued. The notice under Section 106 of the Transfer of Property Act was at first addressed to EITA India Limited. Reply has been given to such notice.
(3.) THERE is no denial that East India Transport Agency is a partnership firm and all the letters have been addressed to the Agency. The Agency is a juristic person and has been treated so by the landlord. As alleged by the plaintiff East India Commercial pursuant to orders of Court has merged with EIC Holding Limited, and it is pursuant to such order that EIC Holding Limited has become the landlord. Upon merger of East India Transport Agency to E.I.T.A., E.I.T.A has become the tenant. THEREfore the question which will arise for consideration is when did EITA become a tenant of EIC Holding Limited. Thus a triable issue has been raised which is neither sham nor moonshine but is a good defence and even if it is a plausible defence conditional leave to defend must be given as held in 49 CWN 246 and AIR 1990 Supreme Court 2218. In view of Section 113 of the Transfer of Property Act there has been waiver of notice in view of the letter dated 24th November, 2008. For all the said reasons no order need be passed on this application. Counsel for the plaintiff in reply submits that the partnership firm was a tenant since 1977 and in 1993 became a unit of the defendant company. Therefore it is the principal namely the defendant which must be sued. In paragraph 7(i) of the affidavit filed by the defendant, it is admitted that the recorded tenant received the notice dated 26th March, 2008. The reply given is also by the recorded tenant. The reply dated 6th August, 2008 is addressed by East India Transport Agency as a unit of EITA. Therefore, the Transport Agency has accepted itself as a unit of the defendant. Section 113 of the Transfer of Property Act is not applicable as the letter written was only in respect of replacement of plaintiff. From all other correspondence the Transport agency being a unit will be evident. Therefore, no triable issue has been raised and the defence sought to be raised is sham and orders be passed as sought.;