CALCUTTA GUJARATI EDUCATION SOCIETY Vs. KAMARHATY COMPANY LIMITED

JUDGEMENT

(1.) The summons has been taken out by the plaintiff to write final judgement for eviction of the defendant from a portion of the premises No. 16A, Brabourne Road also known as 29, Pollock Street, Kolkata - 700 001 ad measuring 8070 sq. ft. situates on the 8th floor of the demised premises (hereinafter referred to as the said premises). The defendant has been a tenant of the said demised premises at a rent of Rs. 8070/- per month together with property tax at the rate of Rs. 282.45p. and surcharge at the rate of Rs. 1012.78p. per month aggregating to Rs. 9365.23p. per month inducted by the plaintiff No. 1. The aforesaid tenancy was created by and under an agreement dated 12th December, 1972. It is a case of the plaintiff that the relationship of the landlord and tenant in respect of the demised premises shall not be governed by the West Bengal Premises Tenancy Act, 1997 thereinafter referred to as the said Act) in view of the provision of Section 3(f) as the same was let out for non- residential purpose and now it carries rent of Rs. 53,262/- per month in terms of Section 3(f)(i) of the said Act. As such obviously this tenancy is to be governed under the provisions of the Transfer of Property Act, 1882 (hereinafter referred to the Act, 1882). According to the plaintiff this tenancy subsists for more than 24 years in respect of this building which was constructed in or before the year, 1984 and the same is used for commercial purpose. By operation of provision of Section 17 sub Section (4A) of the said Act the rent of the said premises is required to be determined and in fact has been determined at the aforesaid rate on and from 1 st September, 2003. As such a notice under Section 20 for increase of rent has been served. The defendant failed and neglected to pay the said rent at the enhanced rate. Besides, the defendant contrary to the agreement of tenancy unauthorizedly sublet and/or assigned a portion of the premises. In view of the aforesaid tenancy has been determined by serving a notice under Section 106 of the Transfer of Property Act. Inspite of such notice the defendant failed and neglected to vacate and quit the aforesaid premises. Apart from claiming relief of eviction the other monetary reliefs are also claimed, viz. a decree for the sum of Rs. 10,91,144.60p. together with interim interest and interest on judgement at the rate of 10% per annum; judgement and decree for mesne profit at the rate of 17% aggregating to Rs. 1,37,190/- per month on and from 1st May, 2005 till delivery of vacant and peaceful possession of the said demised premises.

(2.) The defendant has filed affidavit-in-opposition to resist this application and made out defence that this suit is not maintainable. The tenancy is governed by the aforesaid Act not by the Act of 1882. It is further stated that the question of paying rent at the enhanced rate as notified by the plaintiff does not and cannot arise in view of the written agreement of the tenancy and rent of the said demised premises would remain static and there will be no change nor revision. It is further stated that there has been no determination of the rent at the enhanced rate as required under Section 17 of the said Act. The provisions of Section 17(4A) of the said Act has no automatic operation or applicability.

(3.) Mr. Pratap Chatterjee learned Senior Advocate, while supporting this application, appearing for the plaintiff, submits that in this case no defence has been made out by the defendant. Admittedly this building was constructed in or before 1984 and the tenancy has been subsisting for a period of 20 years or more viz from 1976, as such the notice intending to increase rent under Section 20 has been given by his client in the month of July, 2003. So the rate of rent now exceeds Rs. 10,000/-. In view of the provision of Section 3(f) of the said Act the protection against eviction of the defendant given under the said Act is not available and this tenancy is to be governed by the Act, 1882. He further submits that determination of increase of the rent is not required to be done by the Rent Controller under provision of Section 17 of the said Act, and it is an automatic operation of law under sub section (4A) of Section 17 of the said Act, which enables the landlord to increase by serving a notice under Section 20 of the said Act. In support of his submission he has relied on a decision of the learned Single Judge of this Court on this point reported in (2005)2 WBLR (Cal) 490. As such there is no defence at all for trial of the suit, so much so leave to defence shall not be granted.