MOUSHUMI BHATTACHARYA,J. - (1.) The instant appeal arises out of a judgment and decree dated 10th September, 2015 passed by the learned Court below on an Application under Chapter XIIIA of the Original Side Rules of this Court, taken out for and on behalf of the plaintiff/respondent. By the said decree, the learned Single Judge has been pleased to pass a decree for eviction in terms of prayer (a) of the Masters Summons in support of the affidavit filed on behalf of the plaintiff/respondent in the said Chapter XIIIA application. Prayer (a) of the Master Summons is set out hereinbelow:- "a) Final judgment and decree for recovery of khas, peaceful and vacant possession of the suit premises i.e. all that piece and parcel of ground floor office space measuring about 5,542 square feet situated at premises No. 9, Old Post Office Street, Kolkata-700001, P.S. Hare Street more fully described in Schedule hereunder written against the defendant". The other claims in the application were relegated to a suit by the learned Single Judge. Since the learned Single Judge found that the appellant Bank had been in possession of the premises since 1969, liberty was given to the appellant Bank to continue to be in occupation of the premises for a further period of one year subject to payment of rent at Rs.110/- per square feet with effect from October, 2015, in default of which the plaintiff/respondent was given liberty to execute the decree. The premises in question is the Ground Floor Office Space measuring about 5542 Square Feet situated at 9 Old Post Office Street, Kolkata. The factual position, as would appear from the plaint, is that by a registered lease agreement dated November 11, 2003, the plaintiff leased out the suit premises to the defendant bank initially commencing from July, 2002 with the Bank's option to continue the lease for a further term of five years on the same terms and conditions subject to revision of rent @ 20% over the existing rent and also with a further option to the defendant to terminate the tenancy at any time after five years on giving three months notice to the plaintiff. According to the plaintiff the lease rent was originally Rs.15/- per square feet which was subsequently increased. According to the plaintiff, since the defendant Bank in the year 2007 had already exercised their option of renewal for a further term of five years and since there was no scope for further renewal of the lease, by a letter dated November 24, 2011 the plaintiff informed the Bank that the defendant was liable to vacate the suit premises. Some rents tendered by the defendant were returned by the plaintiff and according to the plaintiff, no rent has been accepted in respect of the suit premises from May 2012 onwards. The plaintiff filed the suit for eviction on the ground that the lease has expired in June 2012.
(2.) Mr. Utpal Bose, learned senior Counsel appearing for the appellant/defendant Bank, submits that the instant suit should not have been decreed under Chapter XIIIA and ought to have been sent to trial by recording evidence before any final decree was passed. Counsel submits that the affidavit-in-opposition filed on behalf of the appellant Bank to the Chapter XIIIA application filed by the plaintiff, contained important facts which are of relevance and involved matters of evidence which were required to be gone into by way of a trial. Of these relevant facts, counsel urges that the first Court should have considered that the appellant Bank was always ready and willing to negotiate terms on the basis of which a fresh lease could be executed between the parties. The other significant fact according to him is that the plaintiff obtained a loan in or about 1967 for the purpose of constructing the building in lieu whereof the plaintiff was to induct the defendant as a lessee in the suit premises. Counsel submits that in the affidavit filed by the Bank, elaborate particulars were disclosed with regard to circumstances inter-alia in which the Bank became the lessee in respect of the suit premises in 1969 and how the lease agreement was subsequently modified at various points of time including working out of the lease rental, pursuant to negotiations between the parties. According to Counsel, the most significant fact disclosed in the affidavit was that parties had continued to negotiate over the years with regard to the rent payable by the appellant Bank and that in terms of such negotiations, revised rents were fixed for the period commencing from 1st July, 1992 to 30th June 1997, from 1st July 1997 to 30th June 2002, from 1st July 2002 to 30th June 2007 and from 1st July 2007 onwards at the rate of Rs.18 per square feet and that the revised rents were accepted by the plaintiff. At present, the appellant Bank is ready and willing to negotiate and settle a new rate of rent so that it can be allowed to continue to be in occupation of the suit premises. For these reasons, Counsel submits that the suit could not have been disposed of in a summary manner since the evidence disclosed in the defence of the appellant Bank with regard to the past negotiations between the parties, was substantial and was required to be gone into. Hence, all relevant facts would have come to light only if a trial was allowed to be directed, particularly to assess the conduct of the parties with reference to the right of the appellant/defendant to continue to occupy the suit premises.
(3.) In support of his arguments, counsel for the appellant relies on the following decisions passed by the Division Bench of this Court reported in AIR 2017 Calcutta 182 (W. Newman & Company Limited Vs. Apollo Zipper India Limited & Anr.), (2015) 5 WBLR (CAL) 362 (Economic Transport Organisation Limited Vs. Poddar Projects Limited & Anr.) and (2017) 4 CHN (CAL) 737 (Marco Polo Restaurant Pvt Limited Vs. Amit Tiwari & Ors.) for the proposition that before deciding an application under Chapter XIIIA of the Original Side Rules of this Court in favour of a plaintiff, the Court has to be satisfied that the defendant does not have a good defence to the plaintiff's claim on merits and clear reasons have to be given why the Court considers the defence to be sham or illusory or frivolous or moonshine. Mr. Anindya Mitra and Mr. Abhrajit Mitra, learned Senior Counsel appearing for the respondent/plaintiff, submit that this is a fit case for decreeing the suit in a summary manner and the judgment of the First Court should not be interfered with. They submit that the appellant Bank has admitted that the lease expired on 30thJune, 2007 and was not extended thereafter. Since the lease was not renewed between the parties, a notice of eviction was duly served upon the appellant Bank and in fact the respondent/plaintiff (lessor) gave a notice of reminder dated 24th November, 2011 to the appellant Bank (lessee) that the lease was going to expire with a request for delivery of possession on the expiry of the lease. Accordingly, the suit for eviction was filed on 19th July, 2012 when the lease had already expired. In support of the impugned judgment, Counsel submits that the appellant Bank has failed to disclose any defence in its affidavit-in-opposition to the claim for recovery of possession on the expiry of the registered deed of lease. Counsel further submits that the entire case of the appellant Bank was based on the premise that a fresh lease on terms negotiated between the parties may be settled by the Court, which essentially is no defence to the plaintiff's claim for recovery of possession upon expiry of the registered deed of lease. The respondent further takes the plea of the inequitable conduct on the part of the appellant after filing of the suit. According to Mr. Mitra, the appellant/defendant has delayed the hearing before the First Court for more than three years since by an order dated 6th January, 2015, the matter was referred to mediation. The mediation between the parties failed as would appear from a report dated 12th February, 2015 after which the matter was taken up for hearing. Even after this the parties attempted to resolve their differences over a protracted period of time, which attempts also failed and the matter finally came up for hearing before this Court in January 2018. Counsel for the respondent states that, the only other point urged by the appellant Bank is a judgment of Hon'ble Justice Sanjib Banerjee in the case of Shivani Properties Private Limited Vs. United Bank of India dated 30th April in which a rent of Rs.24 per square feet per month was fixed in respect of a flat situated near the suit premises. This point was presumably taken with reference to the negotiations on the rent payable by the appellant Bank for the subject premises. The aforesaid would show that the appellant Bank had no defence at all on merits and no attempt was made to make out a defence in response to the claim of the plaintiff. Mr. Anindya Mitra and Mr. Abhrajit Mitra have relied on: i) Section 111(1) of the Transfer of Property Act. ii) The judgment reported in 1977 (1) CLJ 561 for the proposition that once a lease is already determined under Section 111(a) of the Transfer of Property Act 1882 by efflux of time, the lease comes to an end and there is no need for further determination of the lease. iii) AIR 1964 SC 461 (Pooran Chand Vs. Mitilal and others) for the proposition that the where a tenancy expired by mere efflux of time, no statutory notice under Section 106 of the Transfer of Property Act, 1882, was required to be given. We have considered the submissions of Counsel appearing for the parties. Before dealing with the factual position as argued, the mandate of Chapter XIIIA of the Original Side Rules of this Court is required to be looked into:- "3. When application to be made- Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the judge for final judgment for the claimed together with interest, if any, or for the recovery of the land (with or without rent or mesne profits) as the case may be and costs: ;