COMMERCIAL PROPERTIES & MERCHANDISE LTD Vs. PALLAB ROY

JUDGEMENT

(1.) This is a suit for specific performance of an agreement being a draft deed of lease (Annexure 'B' to the plaint) purportedly agreed to be executed by and between the plaintiff and the defendant and for mandatory injunction directing the defendant to execute the lease deed in the form as mentioned in Annexure 'B' to the plaint and further for a declaration that the lease in respect of the subject property in favour of the plaintiff is valid till 31st March, 2068 and/or the same has stood renewed until 31st March, 2068. The plaintiff has also prayed for perpetual injunction restraining the defendant, his servants, agents and assigns from creating any disturbance and they are interfering with the peaceful enjoyment and occupation of the premises by the plaintiff as tenant at least till 31st March 2068. In this suit the plaintiff has also prayed for other consequential reliefs for injunction, receiver, attachment, cost and other reliefs, if entitled to. According to the plaint case, the plaintiff is a tenant under the defendant in respect of the suit property mentioned in the schedule to the plaint which was leased out for a period of 99 years under the deed of lease executed on 2nd February, 1909. The plaintiff tendered and defendant accepted rent for the said suit property by cheque on account of rent. With effect from April 2005, the plaintiff had been tendering rent to the defendant under cover of a letter sent under speed post. Such letters containing the enclosed cheques on account of rent, however, have been refused by the defendant. The indenture of lease dated 2nd February 1909 was for a period of 99 years commencing from 1st February 1909 and was due to expire on 31st January 2008. In the meantime, several subleases were executed by the original lessee. The plaintiff is an assignee in pursuance of one of such sub-lease which was to expire on 31st October, 2007. According to the plaintiff, the grandfather of the defendant being the original lessor under the deed of lease dated 2nd February, 1909 died on 29th June, 1993 and thereafter, in July, 1996 the defendant approached the plaintiff for funds and a meeting was held between the plaintiff and the defendant in presence of the father of the defendant Prasanta Kumar Roy and his mother Supriya Devi Roy when allegedly it was agreed that the plaintiff would enhance the rent payable under the deed of lease dated 2nd February, 1909 to a substantial amount to be agreed upon on consideration that the tenure of the lease would be extended by a further period of 61 years 5 months beginning from 1st November, 2007. On the basis of the alleged agreement reached in July, 1996, a draft lease deed was finalized by the plaintiff's learned Advocate and was forwarded to the defendant and his father Prasanta Kumar Roy. At the request of the defendant, the said draft lease was thereafter sent to his learned Advocate. The draft lease was corrected in the hand writing of Prasanta Kumar Roy on the advice and in presence of the defendant and the same was again returned and corrected by representatives of the plaintiff for the purpose of finalization and preparations of the final lease deed. The plaintiff, although prepared final lease deed and forwarded the same to the defendant together with Form No.34A under Section 230A of the Income Tax Act 1961 for his signature, the defendant delayed the matter with regard to obtaining necessary income tax clearance, as a result whereof, the final lease deed could not be executed.

(2.) According to the plaint case, on 20th November 2004 the final lease deed prepared in terms of the draft as contained in Annexure 'B' to the plaint, was presented to the defendant for execution but the defendant refused to execute and sign the said lease deed on the purported ground that further amendments had to be made in the said final lease deed. The defendant, therefore, acted in breach of an obligation by refusing to execute the lease deed and the plaintiff is compelled to seek specific performance of the said lease deed to compel the defendant to perform the said obligation. The plaintiff has averred in the plaint that it is still ready and willing to make payment of necessary amount as mentioned in draft lease deed contained in Annexure 'B' to the plaint immediately upon execution of the same and to perform his obligation thereunder. The defendants entered appearance and contested the suit by filing written statement and denied the plaint case.

(3.) In the written statement the defendant has made a categorical averment that being a lessee of the suit property covenanted specifically to bear, pay and discharge the existing and future rates and taxes and assessment duties imposition outgoing and burdens whatsoever assessed, charged or imposed upon the suit property or upon the owner or occupier in respect thereof or payable by either in respect thereof. The lease deed contained a provision to the effect that if any covenant on the tenant's part contained therein should not be performed or observed, it shall be lawful for the landlord at any time thereafter and without notice to the tenants to re-enter upon the demised premises and any part thereof and to take possession of the suit property.