ABL International Ltd. vs The Durgapur Projects Limited

Jayanta Kumar Biswas, J.—One Sudera Enterprises Pvt. Ltd. instituted this suit on September 16, 1992 when the plaint was presented and admitted, and leave under Order 2, Rule 4 of the Code of Civil Procedure, 1908 was granted. Sudera prayed for decrees for recovery of the suit property, past and future mesne profits, and Rs. 9,07,246.29 for air conditioning.

Case stated in the plaint is this. Under a registered instrument dated February 22, 1969 Sudera leased out the suit premises to the defendant for twenty-one years commencing March 1, 1969. The suit property compromises 1 a floor area of 12,108 square feet on the first floor of 1, Shakespeare Sarani, Calcutta. The agreement provided that the defendant would pay rent, service 1 charges, air conditioning charges; that it would have the right to terminate the lease, by giving three months'' notice, after expiration of eight years; that on expiration of twenty-one years it would put Sudera into possession of the suit property. By agreement of parties the rate for air conditioning was increased from time to time. The lease determined on March 1 or 2, 1990 by efflux of time limited thereby, inspite of determination of the lease the defendant failed and neglected to put Sudera into possession of the suit property. If wrongfully contended that it was entitled to protection against eviction provided by the West Bengal Premises Tenancy Act. 1956. - an Act not applicable to the tenancy. Even if the provisions of the Act are applicable to the tenancy, on the ground of default, reasonable requirement, etc. Sudera is entitled to a decree for recovery of suit property. For the period from March '' 1, 1990 to August 31, 1992 Sudera is entitled to mesne profits at the '' reasonable rate of Rs. 12,340.20 per day. The defendant is also liable to pay Rs.9,07,246.29 for air conditioning for the period from March 1, 1990 to August 31. 1992.

The defendant entered appearance and filed its written statement dated March 8, 1994 on May 6, 1994. Case stated in the written statement is this. The lease created by the instrument dated February 22, 1969 conferred on it a right to terminate it, by giving three months'' notice, after expiration of eight years, and hence it was not a lease for twenty-one years. The provisions of the West Bengal Premises Tenancy Act, 1956 were applicable to the tenancy from its very inception, since it was terminable after eight years at its option. Rate for air conditioning was increased according to relevant provisions of the agreement creating the lease. It is not correct that the lease is for twenty one years or that it determined on or after March 1 or 2, 1990. The amount (sic) for air conditioning from March. 1990 is not correct. It is necessary (sic) an enquiry for ascertaining the correct payable amount. No valid notice to quit was given under the West Bengal Premises Tenancy Act, 1956, any case, on the grounds stated in the plaint the plaintiff is not entitled to decree for ejectment. The plaintiff is not entitled to any mesne profits, because it is a lawful tenant. In any case, the claimed rate of mesne profits is an inflated one.

In terms of a scheme of amalgamation sanctioned by this Court by an order dated September 26, 2000 the suit property stood transferred to one ABL International Ltd. Under the circumstances, a prayer for amendment of the plaint was allowed by an order dated May 24, 2001. Consequently ABL was substituted for Sudera and para.14.A was inserted.

By an order dated August 7, 2007 the following seven issues were framed and recorded:

Is the suit maintainable in its present form?

Whether the lease dated 22nd February, 1969 is terminable before its expiry at the option of the defendant?

Is the lease granted by the plaintiff in favour of the defendant with respect to the suit property governed by the provision of West Bengal Premises Tenancy Act?

Is the defendant liable to vacate the suit premises and make vacant possession thereof to the plaintiff on the expiry of 21 years as agreed upon by the parties on the basis of lease dated 22nd, February, 1969?

Did the defendant commit breaches of the terms by not paying air-conditioning charges as per the formula agreed between the parties?

Is the plaintiff entitled to mesne profit as per law?

Is the plaintiff entitled to the decree, as prayed for?

To what other relief, if any, is the plaintiff entitled?

Mr Abhrajit Mitra counsel for the defendant, has submitted as follows. In view of the proviso to sub-section(2) of section 3 of the West Bengal Premises Tenancy Act, 1956, the lease containing a clause giving an option to the defendant to terminate it before expiration of the period limited by it, was a lease to which the provisions of the West Bengal Premises Tenancy Act, 1956 were applicable from the beginning. Hence there was no question of determination of the lease by efflux of time limited thereby.

Mr Surojit Nath Mitra, counsel for the plaintiff, has said that the plaintiffs case has three limbs: (i) the lease for twenty-one years expired, but the defendant did not put it into possession of the suit property, and hence it is entitled to possession and mesne profits; (ii) even if the provisions of the West Bengal Premises Tenancy Act, 1956 are applicable to the tenancy, for the reasons stated in the plaint the defendant is not entitled to any protection against eviction: (iii) the plaintiff is entitled to a decree for Rs.9,07,926.29 for air conditioning.

He has said that he is not pressing the alternative case of the plaintiff that even if the provisions of the West Bengal Premises Tenancy Act, 1956 apply to the tenancy, for the reasons stated in the plaint the defendant is no entitled to any protection against eviction; and that, since in compliance with interlocutory orders all dues have been paid, there is no reason to adjudicate the question whether the defendant is liable to pay any amount for any conditioning.

He has then argued as follows. The questions that require adjudication and determination in this suit are: whether the provisions of the West Bengal Premises Tenancy Act, 1956 were applicable to the tenancy; and if not whether on determination of the lease by efflux of time limited thereby the plaintiff became entitled to possession of the suit property. In Pabitra Kumar Roy and Another Vs. Alita D'' Souza, the Supreme Court has decided exactly the same question on the proviso to sub-section(2) of section 3 of the West Bengal Premises Tenancy Act, 1956 that has been raised in this suit Relying on Pabitra Kumar Roy a Division Bench of this Court, dealing with an identical question, has given the decision in Padmabati Shaw v. Manabhwati. Shaw & Ors., 2007(2) CLJ (Cal) 655.

Mr Abhrajit Mitra''s argument is as follows. The decision in Pabitra Kumar Roy was arrived at sub silentio, and hence it is not authoritative. Even J if it is not a decision passed sub silentio, it is a decision per incuriam, because it was given in ignorance of the words "or of the tenant" used in the proviso to sub-section(2) of section 3 of the West Bengal Premises Tenancy Act, 1956; and also without properly considering the decision in Savita Dey Vs. Nageswar Majumdar and Another, , in which the decision in Mahindra & Mahindra v. Smt. Kohinoor Debi, 1989 (1) CHN 1 was approved. Since Pabitra Kumar Roy is a decision sub silentio, and if not so, then it is a decision per incuriam, the Division Bench decision of this Court based on Pabitra Kumar Roy cannot be considered authoritative as well.

In support of his contentions he has relied on Sri Mahant Govind Rao v. Sita Ram Kesho & Ors., (1898) L.R. 25 IA 195(JC) ; Sahu Bisheshar Nath and Another Vs. Abdul Wahid, Ogden Industries Put. Ltd. v. Lucas, [1969] 1 All E.R. 121 State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, Arnit Das Vs. State of Bihar, Supratik-Ghosh & Aw. v. M/s. Pasari Housing Development Put. Ltd., 2000 (1) CHN 614 ; M/s. A-One Granites Vs. State of U.P. and Others, ; and Soham Dutta Vs. Sudhangshu Kumar Ghosh and Another, Mr Surojit Nath Mitra has relied on Parkash Singh Badal and Another Vs. State of Punjab and Others, 1 to show what is the meaning of the expression "per incuriam".

The question is whether it can at all be argued before this Court that Pabitra Kumar Roy is a decision sub silentio, and if not so, then it is a decision, per incuriam. According to Mr. Abhrajit Mitra, the contention can be entertained and decided by this Court. I am unable to agree with him. As is known, a decision passes sub silentio when the particular point of law involved in the decision is not perceived by the Court or present to its mind; and a decision is arrived at per incuriam when it is given in ignorance of a statute or a rule having the force of statute, i.e., delegated legislation or overlooking a binding decision.

In view of Article 141 of the Constitution of India the High Courts are simply bound by the decisions of the Supreme Court; and a single bench of the High Court is bound by a Division Bench decision thereof. The sub silentio and per incuriam exceptions are for each tier to apply on its own level, they just do not empower a Court bound by a decision not to feel bound by it. If it is held that the sub silentio and per incuriam rules can be used by a Court bound by the decision, it will amount to empowering such Court to examine the correctness of the decision, a fallacious proposition.

Under the circumstances, I am unable to accept the argument that Pabitra Kumar Roy being a decision sub silentio, and if not so, then it being a decision per incuriam, is not authoritative. A case is an authority for its ratio decidendi, and a ratio is the general rule without which the case would have been decided otherwise. And it will appear from Pabitra Kumar Roy that the general rule without which the case would have been decided otherwise has been stated in para 22 of the report.

In Pabitra Kumar Roy the lease for twenty-one years commencing January 1, 1969 contained a clause permitting the parties to terminate it before expiration of the period limited by it. On September 29, 1972 the lessor served a notice determining the lease u/s 111 (g) of the Transfer of Property Act, 1882. In the lessor''s suit for recovery of possession and other reliefs, the lessee applied for protection u/s 114 of the Transfer of Property Act, 1882 and got the relief on payment of rent arrears. On expiration of the period of twenty-one years in 1990, the lessor called upon the lessee to put him into possession of the property. Since possession was not given, the lessor filed suit; and in the written statement the lessee contended that it was a tenancy to which all the provisions of the West Bengal Premises Tenancy Act, 1956 were applicable.

Under the circumstances, the question that arose for consideration was whether in view of the proviso to sub-section(2) of section 3 of the West Bengal Premises Tenancy Act, 1956, all the provisions thereof were applicable to the lease, since the period of twenty-one years limited by it was expressed to be terminable before its expiration at the option either of the landlord or of the tenant.

After considering the decisions in Mahindra & Mahindra v. Smt Kohinoor Debi, 1989 (1) CHN 1, and Savita Dey Vs. Nageswar Majumdar and Another, their Lordships held (para. 19):

The decision in Savita Dey case makes the position clear that the mere inclusion of a clause for prior determination of a lease, which is otherwise for a fixed period of more than twenty years, will not ipso facto bring it within the exception contemplated in the proviso to sub-section (2) of section 3 of the 1956 Act. The inclusion of such a clause may be taken by the tenant as a defence in the event the option under the said clause is exercised. Such a defence was not set up by the lessee in the earlier suit when it was available to her and the same is not available to her after the lapse of the fixed period of the lease.

Their Lordships then said (para. 22):

The law is clear that lease deeds for periods of twenty years or more would stand excluded from the operation of the 1956 Act except in matters relating to sections 31 and 36 thereof, unless the same were terminable before their expiration at the option either of the landlord or of the tenant In other words, if such a lease is terminated before its fixed period expired the proviso to section 3(2) would be attracted as a defence against eviction If, however, the lease was allowed to run its full course, both the lease and the conditions contained therein would come to an end and would 1 cease to be operative and the clause for prior determination would no longer be available as a defence against eviction.

In view of what was held by the Supreme Court in Pabitra Kumar Roy, I have absolutely no doubt that to the lease under which the defendant held the suit property the provisions of the West Bengal Premises Tenancy Act, 1956, except the provisions concerning rent and the provisions of sections 31 and 36 thereof, were not at all applicable, though the period limited by it was expressed to be terminable before its expiration at the option of the defendant, the tenant.

Sub-section (2) of section 3 of the West Bengal Premises Tenancy Act, 1956 says that the Act shall apply to all premises held under a lease entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1956. The proviso to the sub-section provides that nothing in the Act, other than the provisions concerning rent and the, provisions of sections 31 and 36, shall apply to any premises held under a lease entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1956, if such lease is for a period not less than twenty years and the period limited by it is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant.

Here the suit premises was held by the defendant under Ex A, the lease dated February 22, 1969, for twenty-one years, and the period limited by it was expressed to be terminable before its expiration, but not within eight years of commencement, at the option of the defendant. The defendant, however, did not exercise the option, and, on the contrary, allowed the period of twenty-one years to run its full course; and applying this general rule in Pahitra Kumar Roy their Lordships held (para 22) that if the lease is allowed to run its full course, then both the lease and conditions contained therein come to an end, and the clause giving option for prior determination will no longer be available as a defence against eviction.

In the face of the law so clearly declared by the Supreme Court, I see absolutely no scope for the defendant to contend that since the period limited by the lease was expressed to be terminable before its expiration at its option, in view of the proviso to sub-section(2) of section 3 of the West Bengal Premises Tenancy Act, 1956, all the provisions thereof were applicable to the lease from

its very inception. The question of law raised is squarely covered by the ratio of Pabitra Kumar Roy.

Mr Abhrajit Mitra''s further arguments are these. Even if the provisions of the West Bengal Premises Tenancy Act, 1956 were not applicable to the lease according to the provisions of the proviso to sub-section (2) of section 3 of the Act, the defendant is entitled to protection against eviction provided by the Act for the following reasons: (i) on termination of the lease by Ex 1. the letter dated July 24, 1981, the defendant became a monthly tenant; (ii) in view of Ex O, the agreement between the parties dated November 16, 1984, read with Ex 2, the notes of discussion held by the parties in the meetings held on September 12 & 13, 1984, and the ejectment notice dated July 11, 1984, a fresh lease creating a monthly tenancy came into existence; and (iii) the lease expired on February 28, 1990 and the plaintiff assented to the defendant''s continuing in possession of the suit property at least till August 2, 1991, and hence, in view of the provisions of section 116 of the Transfer of Property Act, 1882, the lease stood renewed.

In response Mr Surojit Nath Mitra has argued that neither any case of creation of a fresh tenancy or of holding over was stated in the written statement, nor has any evidence of creation of any fresh tenancy or of renewal of the lease according to section 116 of the Transfer of Property Act, 1882 been given by the two witnesses examined by the defendant; and the case has been made out only at the Bar.

It is evident from the written statement that the defendant has not stated any case that the lease having been determined, first, by the notice dated July 24, 1981, Ex 1, and then by the notice dated July 11, 1984 that brought into existence the agreement dated November 16, 1984, Ex O, or in view of section 116 of the Transfer of Property Act, 1882, a new monthly tenancy entitling the defendant to protection against eviction provided by the provisions of the West Bengal. Premises Tenancy Act, 1956 came into existence. Neither such a case was put to the two witnesses examined by the plaintiff, nor have the two witnesses examined by the defendant given any evidence in proof thereof.

As is known, a party to a suit can be permitted to take a plea only if a case giving rise to the plea is stated in his pleading; and in the absence a case stated in the pleading, no amount of evidence adduced in support thereof is of any utility. I, therefore, do not see how the defendant can take that plea taken by its counsel only at the Bar. Under the circumstances, I am of the view that the defendant has no right to take the plea.

Assuming that my above view is wrong, I propose to examine on merits the plea of the defendant that in view of Ex 1 and O, and section 116 of the Transfer of Property Act, 1882, a new monthly tenancy to which all the provisions of the West Bengal premises Tenancy Act, 1956 are applicable came into existence.

Ex 1 is the letter of Sudera''s lawyer dated July 24, 1981 addressed to the defendant. By the letter Sudera determined the lease with effect from September 2, 1981 on the ground that the defendant failed and neglected to pay rent, service charges and for air conditioning according to terms and conditions of the lease. Mr Abhrajit Mitra has said that this was a notice u/s 111(g) of the Transfer of Property Act, 1882; and that the plaintiff has not given any evidence in proof of a case that the forfeiture was waived by it according to the provisions of section 112 of the Transfer of Property Act, 1882.

Exhibit O is a memorandum of agreement dated November 16, 1984 entered into by Sudera and the defendant. From the agreement it appears -1 that the terms and conditions recorded therein were decided by the parties in the meetings held on September 12 & 13. 1984. The terms and conditions recorded in the agreement show that the parties settled the pending disputes and differences concerning air conditioning rate; and that, in view of an ad hoc payment according to the agreement by the defendant, Sudera agreed to cancel and withdraw the ejectment notice dated July 11, 1984. It was recorded that the notice was cancelled and withdrawn with immediate effect.

According to Mr Abhrajit Mitra, even if a fresh monthly tenancy did not come into existence on determination of the lease by Ex 1, in view of the terms and conditions recorded in Ex O, a new monthly tenancy definitely came into existence, because the ejectment notice dated July 11. 1984 was not waived, it was only withdrawn on certain conditions. To show what is the effect of determination or termination of a lease, he has relied on The Calcutta Credit Corporation Ltd., and Another Vs. Happy Homes (P) Ltd., . His further submission is that since the notice dated July 11, 1984 was not u/s 111 (g), the provisions of section 112 were not applicable to it.

I find absolutely no merit in the arguments. Section 112 of the Transfer of Property Act, 1882 says:

Waiver of forfeiture. - A forfeiture u/s 111, clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:

Provided that the lessor is aware that the forfeiture has been incurred:

Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.

Mr Surojit Nath Mitra has rightly pointed out that it is nobody''s case that during the period from September, 1981 to August, 1984 rent was not accepted by the plaintiff. He has also pointed out the defendant''s case stated in para 9(a) of the written statement is that during the period of twenty-one years it never defaulted for three months or more or at all. As to acceptance of rent from September. 1981 to August, 1984 he has rightly invited me to draw a presumption u/s 114(f) of the Indian Evidence Act, 1872. Hence there can be no doubt that the forfeiture u/s 111 was waived by the plaintiff, and that under the circumstances, there was no question of any new tenancy coming into existence.

It appears that the ejectment notice dated July 11, 1984, PD9, was also for forfeiture. It was substantially identical with the notice dated July 24, 1981, Ex 1. The notice dated July 11, 1984 also shows that at the time lithe notice was given the lease was subsisting. There is no dispute that this ejectment notice was cancelled and withdrawn on November 16, 1984 when the memorandum of agreement, Ex O was entered into by the parties. This means that the forfeiture was consciously waived by the plaintiff.

I am unable to see how the defendant can contend that Ex O recording the terms and conditions increasing the air conditioning rate according to the terms and conditions of the lease brought into existence a new tenancy to which all the provisions of the West Bengal Premises Tenancy Act, 1956 became applicable. Ex 2 is the notes of discussion held by the parties in the meetings held on September 12 & 13, 1984, and it is evident therefrom that the parties proceeded treating the lease as subsisting. In my opinion, the contention is misconceived and Ex O did not bring into existence any new tenancy at all.

There is absolutely no merit in Mr Abhrajit Mitra''s argument that in any case the lease was renewed according to the provisions of section 116 of the Transfer of Property Act, 1882, since after its determination on February 28, 1990 by efflux of time limited thereby the plaintiff assented to the defendant''s continuing in possession thereafter at least till August 2, 1991. It is interesting to note that the holding over plea he has based partly on the ejectment notices dated July 24, 1981, Ex 1, and July 11, 1984. PD9, and the memorandum of agreement dated November 16, 1984, Ex O.

Nothing in Ex 1 and PD9, the two ejectment notices, and Ex O, the memorandum of agreement, can be considered relevant to the question of holding over u/s 116 of the Transfer of Property Act, 1882. As I have already held, in 1 view of Ex 1 and PD9, the ejectment notices, and Ex O, the memorandum of agreement, the lease never determined. And the question of renewal of the lease from month to month according to the provisions of section 116 could arise, if at all, only if the lease had determined in terms of any of them.

There is no merit in the argument that since by the letter dated April 6, 1990, Ex H, the defendant offered rent while remaining in possession after determination of the lease by efflux of time limited thereby, and since by the letter dated April 24, 1990, Ex I, the plaintiff refused to accept rent, it should be held that the plaintiff otherwise assented to the defendant''s continuing in possession of the property after the determination of the lease. Under Ex I the plaintiff returned the cheques and called upon the defendant to deliver possession. In the absence of acceptance of rent by the plaintiff the question of renewal of the lease according to section 116 could not arise at all.

It has also been argued that the letter dated April 4, 1990, Ex G, will show that the plaintiff permitted the defendant to remain in possession for seven days from March 1, 1990. I am unable to see how this letter can used to hold that the lease was renewed according to the provisions of section 116. It was a notice to vacate or to face legal process. By referring to the plaintiffs notice to sue dated June 24, 1991, Ex L, a similar argument has been made that the plaintiff permitted the defendant to remain in possession till August 2, 1991. It seems to me that the entire argument is misconceived

None of the letters shows the plaintiffs intention to accept the offence for a fresh lease or renewal of the lease. The plaintiff simply gave the defendant time to vacate. This cannot be said to be acceptance of the defendant''s offence to create a new lease or renew the lease. The lease cannot be created unilaterally, it must be a bilateral act and the parties are required to act ad idem. The decision in Sunil Kumar Roy Vs. Bhowra Kankanee Collieries Ltd. and Others, , relied by Mr Mitra, is entirely misplaced. It is regarding the proposition that a document which varies the essential terms of the existing lease, such as the amount of rent, must be registered.

As to the plaintiffs prayer for mesne profits, it has examined PW.2. He is a Chartered Valuation Surveyor and the Consultant-in-charge, Surveyor and Valuation Department of M/s. Talbot & Co., Surveyors and Valuers. In his testimony he has said that he is connected with the works of valuation of property for forty-nine years; that on instruction from an officer of the plaintiff he carried out inspection of the property at 1, Shakespeare Sarani, Calcutta that he prepared his report dated December 7, 2007, Ex N, mentioning therein the rental value of the suit property in different years.

In cross-examination he has said that though he was not connected with the execution of agreement under which portion of 230A, AJC Bose Road was leased out, he himself made a xerox of the original agreement; that he| has personal knowledge of the property; that he is in profession for forty nine years; that his firm is in business for eighty-five years; that he hast; personal knowledge of details of valuation of a portion of 11, Dr. U.S. Brahmachari Street that was let out under an agreement dated August 6, 1993; that he has personal knowledge of the property at 101, Park Street, Calcutta that was leased out to a tenant; and that he also has personal knowledge of lease of portions of 46D and 36A, B, C & D, Chowringhee Row.

PW.2 has been cross-examined at length to establish that necessary facilities were not available at the time he carried out the inspection of the suit property. Witnesses examined by the defendant have also given evidence in proof of a case that after determination of the lease the plaintiff failed to provide necessary facilities to the suit property.

In my opinion, for determining the amount of mesne profits what is relevant is not the condition of the suit premises subsequent to determination of the lease. The lessor is under no obligation to provide facilities to the erstwhile lessee who, according to the lessor, has wrongfully remained in possession of the property. What is necessary for the purpose is what profits the erstwhile lessee, remaining in possession of the property, has actually received, or might with ordinary diligence have received therefrom. Here it is nobody''s case that the defendant has actually received any profits. Hence the principle that will apply is what profits it might with ordinary diligence have received from the suit property.

,42. I find no reason not to accept and rely on the evidence of P.W.2. According to Mr Abhrajit Mitra, P.W.2 cannot be considered an expert witness. The question does not arise, because Mr. Surojit Nath Mitra has clearly said that PW.2 has not been examined as an expert witness. P.W.2 has been examined just as a witness. He has sufficient experience in the matter of Evaluation of property. He is in the profession for forty-nine years. His report, Ex N, as rightly submitted by Mr Surojit Nath Mitra, has remained virtually unchallenged. He has determined the rental value of the suit property for the period from March 1. 1990 to November 1, 2007. He has stated that the building is maintained in a good state of repairs; that the suit property is situate in a first class commercial-cum-residential area and is easily approachable by all modes of transport including Metro Rail.

After taking into consideration the upward trend in the real estate market during the period and a good demand for office space, he has determined monthly rental value inclusive of municipal taxes and maintenance as follows: on March 1990 at Rs.3,07,543; on March 1, 1994 at Rs.5,63,627; on March 1, 1998 at Rs.7,80,966; on March 1, 2002 at Rs. 10,32,207; and on November 1, 2007 at Rs. 13,00,762. He has added and deducted percentages for advantages and disadvantages of the suit property. The advantages and the disadvantage he has mentioned in his report. After considering the report, I find no reason why the rates determined by him should not be accepted for determining the amount of mesne profits. I am of the view that the plaintiff is entitled to mesne profits at the rates mentioned in Ex N.

I, therefore, do not find any reason to say that the suit is not maintainable in its present form. I hold that the suit is maintainable in its present form. Accordingly, I answer the first issue in the affirmative. The admitted position is that the lease dated February 22, 1969, Ex A, could be terminated by the defendant at its option before expiration of the period limited by it, but after eight years of commencement thereof. In view of this, the answer to the second issue has to be in the affirmative, and I answer it accordingly. To the lease all the provisions of the West Bengal Premises Tenancy Act, 1956 were not applicable. Hence the third issue is answered in the negative. The defendant allowed the lease for twenty-one years to run its full course; hence, on determination of the lease by efflux of time limited thereby it incurred the obligation to put the plaintiff in possession of the suit property. Accordingly, I answer the fourth issue in the affirmative. The fifth issue does not require any answer, because in view of the interlocutory orders, as submitted before me, nothing concerning liability to pay for air conditioning requires adjudication. The plaintiff is entitled to mesne profits at the rates mentioned in Ex N. Hence the sixth issue is answered in the affirmative. The seventh and eighth issues are also answered in the affirmative, since, in view of my findings, the plaintiff is entitled to decrees for recovery of the suit property and mesne profits.

For these reasons. I allow the suit on contest and with costs. There shall he a decree for recovery of the suit property, and there shall be a decree for past and future mesne profits at the rates mentioned in Ex N. with interest at the rate of 10% per annum. The decrees shall be drawn up, prepared and completed within a fortnight from the date the records are sent down from the Court.

Urgent certified xerox of this judgment, if applied for, shall be supplied toll the parties within three days from the date the records are received by the department concerned.