PRAVAT CHANDRA SYAM Vs. BENGAL CENTRAL BANK LTD

JUDGEMENT

(1.) The defendant is the appellant before us. The subject-matter of the suit is a tea estate named Longucharra Tea Estate, of which the defendant is the lessee under the plaintiff. The suit is one for possession on the ground that the defendant's lease has been determined by forfeiture. To follow the controversy between the parties in this appeal, the following facts have to be stated: The said Tea Estate originally belonged to the Union Tea and Trading Co., comprising an area of 400 Hals, some portion of which had already been planted with tea shrubs and on a portion whereof was a factory for manufacturing tea. The plaintiff purchased the said tea estate at a court sale and thereafter two transactions followed between the plaintiff and the defendant. Both these transactions were of the same date, namely 28 June 1935. The first is an agreement for sale between the plaintiff and the defendant. It is Ex. 1, Part 2, page 42. By this agreement, the defendant agreed to purchase the said tea estate, that is to say the lands including the factory and the machinery at the price of two lacs of rupees free from all incumbrances. The price was not to be paid all at once but was to be paid in instalments. Rs. 10,000 was paid by the defendant on the date of the agreement, and the balance of Rs. 1,90,000 was to be paid in 11 yearly instalments, each instalment being not less than Rs. 10,000 and payable on 15 day of January every year, the first of such instalments to be paid on 15 day of January 1936 and the last instalment on 15 day of January 1946. Clause 9 of the said agreement is material. It states that should the purchaser fail to pay any one of the instalments of the balance of the purchase money on the fixed date, the vendor would have the option of extending the time for payment of any defaulted instalment up to three months; but whether the extension would be given or not depended upon his option, and that in case the vendor refused to extend the time for payment of any defaulted instalment, or if the instalment be not paid within the time so extended by the vendor, the whole of the balance of the purchase money then remaining unpaid would become immediately payable and the vendor would be entitled to call upon the purchaser to pay the same; and if the purchaser failed or neglected to do so within a month after having been so called upon, the vendor would be entitled to rescind the agreement and resell the property after forfeiting all instalments paid up to date and also would have the option of suing the purchaser for specific performance of the agreement and for damages. The next transaction is a lease executed on the same date by the plaintiff in favour of the defendant. Ex. 2 is the lease printed at p. 50, Part 2. The subject-matter of the lease was the said tea estate, that is to say, the lands as well as the factory and the machineries. The lease is a lease from year to year terminable at the end of the year of tenancy by three months previous notice in writing given by either party to the other. The rent was fixed at Rs. 1600 payable on 15 day of August every year, the first payment to be made on 15 day of August 1935. In para. (2) of the lease, there are many covenants, one of them being in these terms: The tenant is not to break up or convert any part of the land which is under tea cultivation for any other purpose; but the said tenant shall be at liberty to cultivate or utilize the surplus lands not at present under tea cultivation for any other purpose but not so as to affect prejudicially the said tea estate.

(2.) Paragraph (4) of the lease is the clause dealing with the right of the landlord to re-enter. The material portion of the said paragraph is as follows: Provided always that if default is made by the tenant in the payment of any instalment in pursuance of the agreement of even date (Ex. 1) and made between the parties hereto, or if the tenant or other person in whom for the time being the term hereby created shall be vested, shall become insolvent . . . then and in any of the said cases it shall be lawful for the landlord at any time thereafter to re-enter upon the demised premises or any part thereof in the name of the whole and therefrom this demise shall absolutely determine.

(3.) The first instalment payable under Ex. 1 fell due on 15 January 1936, but the same was not paid. On 16 January 1936, the plaintiff gave a notice in writing to the defendant in these terms: Re : Longuchara Tea Estate in Sylhet Lease dated 28 June 1935. Dear Sir, Please take notice that as you have defaulted in payment of instalment due on 15 January 1936 as stipulated in the agreement dated 28 June 1935 the lease in your favour of the same date (i.e. 28 June 1935) is determined and you are asked to make over possession of the demised garden with buildings, fixtures, factories, plants machineries, crops, etc., forthwith. Failing compliance necessary action will be taken up against you. [Ex. 3 (a), p. 21, Part 2]