C MACKERTICH Vs. STEUART AND CO LIMITED

JUDGEMENT

(1.) These appeals are brought by certificate from the judgment of the Calcutta High Court dated March 27, 1962 in appeals from original decrees Nos. 55 and 268 of 1956.

(2.) By a registered lease dated December 22, 1913, M. Mackertich and Frank Earnest Bushby let out the subject matter of Title Suit No. 31/53, that is, a portion of the premises No. 38/1 Panditia Road, covering an area of approximately 7 bighas, 9 cottahs, 5 chittacks and 9 square ft. of land to four persons, namely Walter Bushby, Frank Earnest Bushby, Geoffrey B. Page and William Shenton carrying on business as coach builders. The term of the lease was for 50 years from January 1, 1915. By another registered lease dated January 31, 1919 between the same lessors and the lessees the premises which are the subject-matter of Title Suit No. 30/53 were leased out for a period of 46 years and three months from October 1, 1918. By memorandum and Articles of Association dated December 4, 1919 a company limited by shares namely Steuart and Co. Ltd., was incorporated. The objects of the company were to carry on the trade or business of coach and carriage builders and to buy, sell import, export, manufacture, repair, let on hire, otherwise deal in carriage and vehicles of every description. On December 17, 1919 an agreement was made and signed between the partners of the partnership firm (Frank Earnest Bushby Geoffery Barridge Page and William Shenton) and Steuart and Co. Ltd., wherein it was stated that the partners of the partnership firm would sell the business and transfer all the assets of the firm with effect from the 31st day of December, 1919 to the incorporated company viz. Steuart and Co. Ltd. It was stipulated that the partners would sell and the incorporated company would purchase with effect from December 31, 1919 the goodwill of the business, the leasehold properties of the firm, machinery, office furniture etc., of the firm and generally all the assets of the firm. Under this agreement the incorporated company entered into possession of the leasehold premises of the partnership firm and also took charge of the business of the partnership firm and began to carry on the business itself. No separate deed of transfer in respect of the leasehold properties was executed by the partnership firm in favour of the new incorporated company. But the lessors treated the incorporated company as monthly tenants and accepted rents from them. Frank Earnest Brushby ultimately sold his interest as owner of the property to M. Mackertich. The plaintiff C. Mackertich is the son of M. Mackertich and has inherited all his interests and is, therefore, the sole landlord of two premises in suit. He claimed that the tenancies were governed by the West Bengal Premises Rent Control Act, 1950 and on the ground that there had been default of payment of rent from May, 1952 to March, 1953 he claimed that the defendant company had forfeited the protection against eviction. Notice determining the tenancy was issued on March 12, 1953 by registered post and served on the defendant company on March 13, 1953 calling upon the defendant company to vacate the premises. As the defendant company did not give up possession of the premises, the plaintiff instituted the two suits on May 26, 1953 seeking decree for the ejectment against the defendant company and a decree for Rs. 5,500 for arrears of rent for 11 months from May, 1952 to March, 1953 in Title Suit No. 31 of 1953 and a decree for arrears of Rs. 2,200 for the 11 months from May, 1952 to March, 1953 in Title Suit No. 30 of 1953. Plaintiff also claimed decrees for damages from the 1st of April, 1953 in both the suits. The defendant contested the suits on the ground that the tenancies were governed by the terms of the lease deed dateds December 22, 1913 and January 31, 1919 and that in the circumstances the tenancies were not governed by the West Bengal Premises Rent Control Act, 1950 and could not be determined by service of 15 days' notice. The defendant denied that there was any arrears of rent and contended that for repairs of the premises which had become dilapidated the defendant company incurred expenditure to the extent of Rs. 22,000 and until there was adjustment of the account between the parties it could not be said that there was any arrear of rent due by the defendant company. The Subordinate Judge found that the defendant company being a separate legal entity from the partnership firm the members of which had been granted two leases the leasehold could not be transferred to the defendant company without registered documents and in the absence of such registered documents the defendant company could not claim to be lessees governed by the registered lease deeds Ex. L and L (I). The Subordinate Judge held that the plaintiff accepted rent for many years from the defendant company as a tenant. In the circumstances the defendant company must be deemed to be tenant from month to month terminable by 15 days' notice under Section 106 of the Transfer of Property Act, 1882. The Subordinate Judge rejected the claim of the defendant company that the purpose of the tenancy was manufacturing and that therefore six months' notice ending with the year of tenancy was necessary. As regards the claim of the defendant company for adjustment the Subordinate Judge observed that the defendant company was not entitled to avail of any condition contained in the registered lease deed Ex. L and L (I) and that as between the defendant company and the plaintiff there was no evidence of any agreement that the plaintiff would ever undertake repairs of the premises. In the circumstances the Subordinate Judge held that the plaintiff was not bound to carry out the repairs and that therefore the defendant company could not claim a set-off for the cost of the repairs against the arrears of rent. The Subordinate Judge, therefor granted the plaintiff decree for ejectment as well as arrears of rent and mesne profits in both the suits. Against this decision the defendant company preferred appeals to the Calcutta High Court. By its judgment dated March 27, 1962 the High Court held that the plaintiff was not entitled to a decree for eviction as the purpose of the lease was manufacturing and, therefore, the notice was bad. The High Court, however, upheld the findings of the Subordinate Judge and held that the suit should be decreed in part for arrears of rent claimed but dismissed so far as the claim for ejectment and damages and mense profits is concerned.

(3.) In support of these appeals it was submitted on behalf of the appellant that the High Court was in error in holding that the tenancy was for manufacturing purpose and that six months' notice terminable with a year of tenancy was required. It was said that the onus of proving that the tenancy was for manufacturing purpose was upon the defendant and as that point was not raised in the written statement the High Court should not have allowed the respondent to raise the question. In our opinion there is substance in this argument. But we shall assume in favour of the respondent that such an objection could have taken by it even without a specific plea in the written statement. Even upon that assumption we are of opinion that there is no evidence in the case to support the finding of the High Court that the purpose of the lease was dominantly for manufacturing purpose. Exhibit W is the Memorandum and Articles of Association. The objects of the company are given in paragraphs 3 and 4 and are to the following effect: