KAISER BEGUM Vs. E. D. ENTERPRISES PVT. LTD.

JUDGEMENT

(1.) The judgment on admission is passed by the Single Bench on 28/7/2022 in CS No. 105 of 2021 directing the delivery of khas possession of the scheduled premises being the subject matter of the suit and for Rs.10,11,500.00 towards occupational charges in respect of the said suit premises. Admittedly, the respondent is the owner of a demarcated portion of the ground floor and the mezzanine floor admeasuring approximately 374 sq. ft. super built up area situated at premises no. 42A, Shakespeare Sarani, Kolkata - 700020. The defendant/appellant was inducted as a tenant for commercial purposes at a rent of Rs.1,40,000.00 per month which was subsequently, enhanced to Rs.1,61,000.00 inclusive of the rent and the amenities charges. The lease agreement was entered into by and between the parties wherefrom it appears that a sum of Rs.7.00 lakhs was deposited as security deposit. Pursuant to the said agreement and understanding between the parties, the appellant was put into possession by the respondents for using the said premises for commercial purposes and the rent in respect thereof was being paid from time to time until the default was committed on and from December, 2019. Since the appellant defaulted in payment of the rent and the amenities charges attached to the said suit premises the demand was made by the respondent but despite discharging his contractual and statutory obligation in payment of the rent and amenities charges for use and enjoyment of the suit premises, the appellant filed the Title Suit no. 571 of 2020 before the City Civil Court at Calcutta for declaration that there are a bona fide tenant and the tenancy right is still subsisting in respect of the suit premises at a monthly rent of Rs.1,40,000.00 per month payable according to an English Calendar and a decree of perpetual injunction restraining the respondents herein from interfering and/or disturbing the peaceful possession, use and enjoyment of the suit premises and/or from disrupting the water and electric connection and other facilities and amenities attached to the said tenancy.

(2.) Indubitably, an application of injunction was taken out and an ad- interim order of injunction was passed against the respondent not to disturb and/or interfere with the possession of the appellant and also from disconnecting the water and electric connection and other amenities attached to the tenancy. Subsequently, by a notice dated September 24, 2022 the respondent determined the said tenancy under Sec. 106 of the Transfer of Property Act and the same was sent to the appellant by speed-post with acknowledgement due which was duly received by the appellant.

(3.) On the conspectus of the aforesaid undisputed facts, the respondent filed a suit for recovery of possession upon expiration of the period enshrined in Sec. 106 of the Transfer of Property Act and recovery of the arrear rents/occupational charges in terms of the agreement. A plea of demur was taken as the said suit is filed in ordinary original civil jurisdiction of this Court and since the transaction between the parties is of commercial nature, it is a commercial dispute and, therefore, the ordinary original civil jurisdiction of the High Court is denuded of power in view of the promulgation of the Commercial Courts Act, 2015. The aforesaid objection was sustained and the plaint was returned to be presented before the Commercial Division of this Court which in fact, was filed and gave rise to a registration of CS 105 of 2021. After the service of summons the appellant entered appearance and sought for extension of time to file written statement which we are informed that the same was allowed. In the meantime, an application under Order 12 Rule 6 of the Code of Civil Procedure has been taken out by the respondent for judgment on admission. It is contended by the respondent that the jural and contractual relationship of landlord and tenant between the parties and the notice under Sec. 106 of the Transfer of Property Act duly served upon the appellant having not disputed, therefore, it would be a mere formal exercise if the suit is decided after full- fledged trial as it would invite the same result. According to the respondent, the moment the tenancy is governed by the provision of the Transfer of Property Act and the notice under Sec. 106 of the Transfer of Property Act is valid and the service thereof has not been denied, it is a clear admission on the part of the appellant to pass a judgment on admission in favour of the respondents. The said application is resisted by the respondent in the affidavit-in- opposition directed to be filed, which in fact was filed, primarily on the ground that there is no breach of terms and conditions of the said agreement and the said suit has been filed to harass the appellant as the respondent intended to create a third-party in respect thereof. It is further stated therein that the said agreement postulates a notice of 45 days in the event any breach has occurred so that the appellant may remedy the same and having not done so the foundation for termination of an agreement is illegal and invalid. It is further stated that the said agreement provides for service of notice at the registered office of the appellant and not at the suit premises and, therefore, the same is invalid. A plea of the pandemic was also taken which impedes the progress of the business and ultimately compelled the appellant to close down the said shop and it was decided that no rent would be payable from the month of January, 2020 to October, 2020. There are other defence which were taken in relation to the withdrawal of the amenities, dishonor of the cheque issued by the appellant in favour of the respondent which was kept as a security but in our opinion, those are not relevant for the purpose of ascertaining whether there is a clear admission made by the appellant inviting the judgment on admission to be passed. The Trial Court discarded all the contentions of the appellant and held that there is a clear admission at the behest of the appellant inviting the judgment to be passed for recovery of possession and also for arrear occupational charges upon adjusting a sum of Rs.7.00 lakhs which has been recovered by the respondent.