EAST ANGLIA PLASTICS INDIA LTD Vs. STATE

JUDGEMENT

(1.) The appellant East Anglia Plastics (India) Limited (hereinafter referred to as "the petitioner") has made this application praying, inter alia, for condonation of the delay in preferring an appeal from the judgment and order of Ajit Kumar Sengupta, J. dt. 13th June 1985; for leave to file the memorandum of appeal without the certified copy of the said order upon usual undertakings and for stay of operation of the said order till final disposal of the appeal. The facts leading to the making of this application may briefly be stated.

(2.) By an Indenture of lease dt. 12th Jan. 1965 the respondent 1, State of West Bengal, granted a lease in respect of 5.91 acres of land in Durgapur (hereinafter referred to as "the demised premises") to the petitioner for a term of 60 years from 25th May 1964 to 25th May 2024 upon payment of a salami of Rs. 36,300/- and the rent of Rs. 60/- per year and upon the term and condition that the petitioner within five years from the date of lease would erect a factory thereon, failing which the lease would be determined. Clause 20 of the said lease provides as follows : "Clause 20 : Should Lessee fail and neglect to erect the factory within 5 years from the date of these presents then the Lessor shall have the right and be entitled to determine these presents and thereafter re-enter into the demised premises or in a portion thereof in the name of the whole".

(3.) Under the terms of the said lease the petitioner should have constructed a plastic factory on the demised premises by 12th 1970, but, as is alleged by the petitioner, due to no fault of its own, it was unable to do so. It is alleged by the petitioner that the respondent 1, however, condoned and/or waived such failure on the part of the petitioner, inter alia, by accepting rent from the petitioner after such breach and had been continuing to do so until just before the institution of the above suit filed by the petitioner against the respondent 1 State of West Bengal.