S.N.Bhattacharjee, J. - (1.) This appeal is directed against the order passed by a learned single judge of this court dated 14.7.98 whereby the plaintiff's application being G.A. No. 3057 of 1997 in suit No. 93B of 1997 was allowed.
(2.) On 6.11.74 an agreement was entered into between the appellant and the respondent herein whereby the respondent agreed to grant lease in respect of the centrally air-conditioned 7th floor of the premises No. 1, Shakespeare Sarani, containing an area of 17320 sq. ft. on the terms and conditions contained therein for a period of 21 years with an option of renewal of further term of 10 years. The lease was to commence upon the completion of the 7th floor which was under construction. On the same day by a registered deed of mortgage the respondent mortgaged in favour of the appellant the entire premises No. 1, Shakespeare Sarani, Calcutta, in order to secure repayment of a sum of Rs. 17,14,680/- which was lent and advanced by the appellant. The terms of repayment were stated therein. On 1.1.76 by a registered deed of lease the appellant granted 21 years of lease with a stipulation that option of renewal for another term of 10 years of lease will have to be exercised in writing two months before the expiry of the lease. On 19.12.96 the respondent gave a notice to the appellant for delivery of quiet and peaceful possession of the lease of the premises as the appellant failed to exercise its option for renewal of the lease. On 3.1.97 the appellant informed the respondent that the option to renew the lease was verbally exercised in September 19, 1996 to Mr. B.K.Modi, a representative of the respondent and Sri Modi allegedly agreed to confirm the proposal. The respondent denied such communication through Mr. Modi. After a flurry of correspondence that followed between the parties the respondent instituted suit No. 93B of 1997 against the appellant claiming, a decree for recovery of vacant possession and for mesne profits. The plaintiff filed an application dated 14.8.97 under Chapter XIIIA of the Original Side Rules of this court for final judgment against the defendant for a decree of khas possession and mesne profits.
(3.) The defendant contested the application by filing Affidavit-in-opposition contending, inter alia, that the application under Chapter XIIIA is misconceived and that the exercise of option by the defendant for renewal was verbally communicated to Mr. Modi, the representative of the plaintiff in September, 1996 long before the expiry of the lease and the same was ratified by a letter dated 3rd January, 1997. The defendant further contended that in the deed of agreement dated 6.11.74 there was no question of exercising option in writing but the stipulation for exercising option in writing two months before the date of expiry of the lease was incorporated in the lease dated 1.1.76. According to the defendant, the application for invoking the provision of Chapter XIIIA of the High Court Rules is premature and misconceived inasmuch as no written statement has been filed and no issues have been settled.;