- (1.) The defendant is a bank. They are in occupation of the ground and first floors of a building numbered as 79, Vivekananda Road, Kolkata 6. They have been occupying the said property as a monthly tenant, under the plaintiff from October, 1992. They were last paying rent @ Rs.1,76,639/- per month. They paid this rent till January, 2011 in February, 2011.
(2.) As the rent is much above Rs.10,000/- per month, this tenancy, without any dispute is outside the purview of the West Bengal Premises Tenancy Act, 1997. The plaintiff treated the occupation of the defendant as a month to month lease tenancy. By their notice dated 23 rd September, 2010 which is Annexure E at page 16 of the application, they terminated this lease and asked the defendant to quit and vacate the property by delivering vacant and peaceful possession to them by 31 st October, 2010. But the plaintiff introduced a bit of complication into this termination by writing the letter dated 3 rd November, 2010. They wrote to the defendant saying that the lease or tenancy stood terminated on and from 1 st November, 2010. Since the defendant had not delivered possession they asked them to pay rent at the rate last paid and that they would be accepting the said rent "under protest".
(3.) It was accepted like this till February, 2011. The apprehension of creation of a lease by holding over was very effectively nullified by Mr. Ahin Choudhury, learned Senior Advocate for the plaintiff by citing the case of Sarup Singh Gupta vs. Jagdish Singh & Ors., 2006 AIR(SC) 1734(paragraph 6 and 8). In this case the Supreme Court has opined that where rent was accepted by the landlord without prejudice after determination of the lease under Section 111 (h) of the Transfer of Property Act, 1882, there was no waiver of the notice to quit under Section 113 of the Act. Applying the same principles in this case, by the plaintiff accepting rent without prejudice, after termination of the defendant s monthly tenancy, there was no creation of a lease by holding over under Section 116 of the Transfer of Property Act, 1882.;