ASHWIN DESAI Vs. BIJAY KUMAR MANISH KUMAR HUF

JUDGEMENT

(1.) This revisional application is directed against the order dated August 18, 2016 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Title Suit No. 2451 of 2007 (hereinafter referred to as "the said suit"). By the impugned order the learned Court below dismissed the application filed by the petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter called as "the Code") praying for, rejection of the plaint filed by the plaintiff opposite party, in the said suit.

(2.) In September, 2007 the opposite party, a HUF, being represented by its karta filed the said suit before the learned Court below claiming, inter alia, a decree for eviction of the defendant petitioner from the suit property described hereinafter.

(3.) In the plaint filed in the said suit, it is the case of the plaintiff opposite party claimed that M/s. Nanjee Shamjee and Company (hereinafter referred to as "the said company") was the owner of the Premises No. 10A, Rabindra Sarani, Kolkata-700001. By an indenture of lease dated February 23, 1991 the said company granted a lease in respect of one storied brick built godown, measuring about 1208 square feet at the said Premises No. 10A, Rabindra Sarani, Kolkata-700001 (hereinafter referred to as "the suit property") to the defendant for a period of 99 years, commencing from March 01, 1991 at a monthly rent of Rs. 250/-, payable according to English calendar. By a registered deed of conveyance dated August 30, 1996 the said company transferred the entirety of the said Premises No. 10A, Rabindra Sarani, Kolkata- 700001 to the plaintiff. The defendant became a lessee in respect of the suit property under the plaintiff and the said indenture of lease dated February 23, 1991 executed between the defendant petitioner and the said company became binding upon the parties to the suit. The plaintiff claimed that clause 4(a) the said indenture of lease dated February 23, 1991 expressly provided that in default of payment of monthly lease rent for a period of three months, the lease would be terminated by giving one month notice to lessee by the lessor and if, the arrear rent is paid by the lessee with interest at the rate of 16%, per annum, within one month from the date of receipt of such notice, the default will be waived, but in case of non-payment of arrear rent with interest at the rate of 16%, per annum the lessor is entitled to determine the lease and to re-enter and take possession of the demised premises. According to the plaintiff, since September, 2002 the defendant defaulted in payment of lease rent in respect of the suit property for more than three months; in spite of demand the defendant failed to pay the arrear rent together with interest at the rate of 16%, per annum and, as such, his lease in respect of the suit property was forfeited as per Clause 4(a) of the said indenture of lease dated February 23, 1991. The plaintiff further claimed that the defendant has lost all protections under the relevant provisions of the Transfer of Property Act and is liable to be evicted.