PREM NATH DIESELS PRIVATE LIMITED Vs. ALOKA DAM

JUDGEMENT

(1.) - The plaintiff/respondent filed Title Suit No. 43 of 1989 in the 2nd Court of the learned Assistant District Judge at Alipore against the defendant/appellants for eviction from the suit premises alleging inter alia, in the plaint that the plaintiff inducted the defendant company as monthly tenant in respect of the ground floor flat of premises No. 43, Jhowtola Road, at present renamed as Fazlul Haque Sarani, Calcutta-19, of which the plaintiff was the owner, at a monthly rental of Rs. 5,000/- payable according to the English Calendar, for a period of 3 years from lst of July, 1980 to 30th June, 1983 as per the tenancy agreement dated 21st June, 1980. Subsequently, after the expiration of the said period of tenancy, at the request of the defendant company, the plaintiff allowed the tenancy to continue for another period of 3 years commencing from 1st July, 1983 till 30th June, 1986 in terms of the renewal clause in the said agreement dated 21st June, 1980 with an enhancement of rent from Rs. 5,000/- to Rs. 5,500/- per month payable according to the English Calendar. Prior to the expiry of the said renewed period, the plaintiff by a letter dated 30th April, 1986 requested the defendant company to vacate the suit premises immediately after the expiry of the renewed period. The defendant company, however, without vacating the suit premises sent rent for the month of May, 1986 by account payee demand draft, which was duly refused by the plaintiff. The plaintiff also informed the defendant company that as there was security deposit of Rs. 15,000/- lying with the plaintiff, the same would be adjusted against the rent for the months of May and June, 1986 and the balance Rs. 4,000/- was to be refunded thereafter. The defendant company, however, through its solicitors and Advocates M/s. Khaitan and Company wrote a letter on 12th June, 1986 to the plaintiff inter alia, claiming therein that the defendant company was a monthly tenant under the plaintiff in terms ofthe West Bengal Premises Tenancy Act, 1956. The defendant company, subsequently, requested the plaintiff to allow induction of a sub-tenant namely M/s. Bharat Power Corporation (P) Ltd. in place and stead of the defendant company in the suit premises but the said request was flatly refused by the plaintiff by her letter dated 30th September, 1986. Subsequently, however, in the month of January, 1987, the defendant company expressed its intention to vacate the suit premises by the end of March, 1987 and the plaintiff relying on the said assurance and promise, wrote a letter to the defendant company dated 6th March, 1987 and intimated the defendant company that her men and/or agent would be present to accept delivery of possession on 1st of April, 1987, in reply to which, the defendant company intimated the plaintiff that the defendant company was looking for alternative arrangement, and if it was successful in getting alternative accommodation, it would vacate the suit premises. The defendant company, however, did not vacate the suit premises by 31st March, 1987. Subsequently however, according to the plaintiff, the defendant company inducted M/s. Bharat Power Corporation (P) Ltd. as a sub-tenant in the suit premises without the consent of the plaintiff. By her letter dated 30th March, 1987, the plaintiff duly intimated the defendant company that by its acts and conducts it had violated the undertaking to vacate the suit premises. Immediately on receipt of the same, the defendant company with a mala fide motive purported to send a demand draft for the sum of Rs. 22,000/- alleging to be the rent for the months of October, 1986 to March, 1987. The plaintiff, however, returned the same to the defendant company by her covering letter dated 17-4-87.

(2.) The plaintiff further alleged, that on the persuation of the said M/s. Khaitan and Company with the father of the plaintiff, the matter was ultimately settled and on the assurance and express written undertaking given by the defendant company that it would vacate the suit premises immediately after the expiry of 30th June, 1989, and the plaintiff by an agreement dated 1st June, 1987 allowed the defendant company to continue its tenancy for a further specific period of 3 (three) years commencing from 1st July, 1986 till 30th June, 1989 subject to the payment of monthly rent of Rs. 6,000/- including service charges and Rs. 900/- per month as consolidated charges of occupier' share of Municipal rates and taxes. The defendant company through its Solicitors and Advocates' letter dated 26th May, 1987admitted the default on its part in payment of rent from the month of July, 1986 till May, 1987 at the said rate per month, and after calculating and adjusting the amount deposit lying with the plaintiff, the defendant company agreed, and in fact paid a sum of Rs. 1,02,473/- by an account payee cheque drawn on the Punjab National Bank, Janpath Road, New Delhi, in favour of the plaintiff. The defendant company also cleared its obligation towards the payment of occupier' share of corporation rates and taxed for the suit premises. The plaintiff further alleged that by the agreement dated 1st July, 1987 the defenant company expressly, unambiguously and unequivocally agreed in writing to deliver vacant possession of the suit premises on the expiry of the 1ast date of June, 1989, which is clearly a writing made subsequent to the creation of the said tenancy.

(3.) The plaintiff also alleged that as the defendant company had failed and neglected to vacate the suit premises and deliver possession of the same to the plaintiff with the expiry of 30th June, 1987 in total violation of the written undertaking dated 1st July, 1986 as referred to above, the defendant company was liable to be evicted under clauses (j) and (k) of Sub-sec. (1) S. 13 of the West bengal Premises Tenancy Act, 1956 and as the defendant company agreed to vacate the suit premises in writing dated 1st July, 1987, no notice in terms of sub-section (6) of S. 13 of the said Act was required to be served upon the defendant company, though the plaintiff had sent a letter dated 26th April, 1989 calling upon the defendant company to vacate the suit premises on the expiry of June, 1989.