Kalyan Jyoti Sengupta, J. - (1.) This Summons for final judgment has been taken out in the aforesaid suit which is basically for a decree for specific performance of the terms of the indenture of lease dated 12th May, 1988, and for other consequential relief, namely, for declaration notices to quit dated 29th November, 2001, February 15, 2002 are wrongful and illegal and deliver up and cancellation.
(2.) The short fact in this case is that the plaintiffs are the joint lessees in respect of amongst others of the 1st floor of the premises No. 6 Vivekananda Road, Calcutta 700 007 (hereinafter referred to as the demise premises) and the lessors and/or owner of which is one Radha Krishan Saraf. In terms of the head lease the plaintiffs, being lessee granted sub-lease the aforesaid premises in favour of the defendant by and under a registered instrument dated 12th May, 1988 and for reserved rent provided in the deed itself for different stages for a period of 21 years with effect from 11th December, 1987. With this lease another parallel agreement in writing dated 12th May, 1988 was concluded by and between the plaintiffs and the defendant, whereby, the plaintiffs were entitled to realise maintenance and re-decorating charges. Pursuant to the terms of the lease, as well as the parallel agreement the defendant Bank took possession of the said premises. However, the difficulty arose because of serving of notice to quit by the defendant dated 29th November, 2001. The plaintiffs duly objected to the aforesaid notice, contending amongst other that such notice is invalid and illegal and the defendant cannot quit or vacate, and should remain in possession until full terms of the sub-lease expired as it was granted on the representation and/or assurance of the defendant that it would complete its occupation for full period of the lease. As they prematurely disrupted this tenure it must pay the rent reserved in the deed of lease for the balance unexpired period.
(3.) The plaintiffs have claimed not only the balance amount of rent for the unexpired period but the maintenance charges in terms of the parallel agreement for the balance period as well. Obviously this application is being resisted by filing an affidavit-in-opposition contending that the suit itself is not maintainable and further their exists strong defence to resist the frivolous claim of the plaintiffs. The defence, as I understand from the affidavit-in-opposition, is that in exercise of the statutory right under Section 111 Clause (g) of the Transfer of Property Act, 1882 (hereinafter referred to as the said Act), the lease has been determined by serving due notice. Moreover, in terms of the interlocutory order passed in this suit the possession of demised premises has been taken by the plaintiffs and indeed it has been let out to third parties profitably. Under such circumstances no decree could be passed in this matter, not to speak of passing a decree in this summary proceeding.;