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Judgment
Moushumi Bhattacharya, J.
The instant appeal arises out of a judgment and decree dated 10th September, 2015 passed by the learned Court below on an Application under
Chapter XIIIA of the Original Side Rules of this Court, taken out for and on behalf of the plaintiff/respondent. By the said decree, the learned Single
Judge has been pleased to pass a decree for eviction in terms of prayer (a) of the Masters Summons in support of the affidavit filed on behalf of the
plaintiff/respondent in the said Chapter XIIIA application. Prayer (a) of the Master Summons is set out hereinbelow:-
“a) Final judgment and decree for recovery of khas, peaceful and vacant possession of the suit premises i.e. all that piece and parcel of ground
floor office space measuring about 5,542 square feet situated at premises No. 9, Old Post Office Street, Kolkata-700001, P.S. Hare Street more fully
described in Schedule hereunder written against the defendantâ€.
The other claims in the application were relegated to a suit by the learned Single Judge. Since the learned Single Judge found that the appellant Bank
had been in possession of the premises since 1969, liberty was given to the appellant Bank to continue to be in occupation of the premises for a further
period of one year subject to payment of rent at Rs.110/- per square feet with effect from October, 2015, in default of which the plaintiff/respondent
was given liberty to execute the decree. The premises in question is the Ground Floor Office Space measuring about 5542 Square Feet situated at 9
Old Post Office Street, Kolkata.
The factual position, as would appear from the plaint, is that by a registered lease agreement dated November 11, 2003, the plaintiff leased out the suit
premises to the defendant bank initially commencing from July, 2002 with the Bank’s option to continue the lease for a further term of five years
on the same terms and conditions subject to revision of rent @ 20% over the existing rent and also with a further option to the defendant to terminate
the tenancy at any time after five years on giving three months notice to the plaintiff. According to the plaintiff the lease rent was originally Rs.15/-
per square feet which was subsequently increased. According to the plaintiff, since the defendant Bank in the year 2007 had already exercised their
option of renewal for a further term of five years and since there was no scope for further renewal of the lease, by a letter dated November 24, 2011
the plaintiff informed the Bank that the defendant was liable to vacate the suit premises. Some rents tendered by the defendant were returned by the
plaintiff and according to the plaintiff, no rent has been accepted in respect of the suit premises from May 2012 onwards. The plaintiff filed the suit for
eviction on the ground that the lease has expired in June 2012.
Mr. Utpal Bose, learned senior Counsel appearing for the appellant/defendant Bank, submits that the instant suit should not have been decreed under
Chapter XIIIA and ought to have been sent to trial by recording evidence before any final decree was passed. Counsel submits that the affidavit-in-
opposition filed on behalf of the appellant Bank to the Chapter XIIIA application filed by the plaintiff, contained important facts which are of relevance
and involved matters of evidence which were required to be gone into by way of a trial. Of these relevant facts, counsel urges that the first Court
should have considered that the appellant Bank was always ready and willing to negotiate terms on the basis of which a fresh lease could be executed
between the parties. The other significant fact according to him is that the plaintiff obtained a loan in or about 1967 for the purpose of constructing the
building in lieu whereof the plaintiff was to induct the defendant as a lessee in the suit premises. Counsel submits that in the affidavit filed by the Bank,
elaborate particulars were disclosed with regard to circumstances inter-alia in which the Bank became the lessee in respect of the suit premises in
1969 and how the lease agreement was subsequently modified at various points of time including working out of the lease rental, pursuant to
negotiations between the parties. According to Counsel, the most significant fact disclosed in the affidavit was that parties had continued to negotiate
over the years with regard to the rent payable by the appellant Bank and that in terms of such negotiations, revised rents were fixed for the period
commencing from 1st July, 1992 to 30th June 1997, from 1st July 1997 to 30th June 2002, from 1st July 2002 to 30th June 2007 and from 1st July 2007
onwards at the rate of Rs.18 per square feet and that the revised rents were accepted by the plaintiff. At present, the appellant Bank is ready and
willing to negotiate and settle a new rate of rent so that it can be allowed to continue to be in occupation of the suit premises. For these reasons,
Counsel submits that the suit could not have been disposed of in a summary manner since the evidence disclosed in the defence of the appellant Bank
with regard to the past negotiations between the parties, was substantial and was required to be gone into. Hence, all relevant facts would have come
to light only if a trial was allowed to be directed, particularly to assess the conduct of the parties with reference to the right of the appellant/defendant
to continue to occupy the suit premises.
In support of his arguments, counsel for the appellant relies on the following decisions passed by the Division Bench of this Court reported in AIR
2017 Calcutta 182 (W. Newman & Company Limited Vs. Apollo Zipper India Limited & Anr.), (2015) 5 WBLR (CAL) 362 (Economic Transport
Organisation Limited Vs. Poddar Projects Limited & Anr.) and (2017) 4 CHN (CAL) 737 (Marco Polo Restaurant Pvt Limited Vs. Amit Tiwari &
Ors.) for the proposition that before deciding an application under Chapter XIIIA of the Original Side Rules of this Court in favour of a plaintiff, the
Court has to be satisfied that the defendant does not have a good defence to the plaintiff’s claim on merits and clear reasons have to be given why
the Court considers the defence to be sham or illusory or frivolous or moonshine.
Mr. Anindya Mitra and Mr. Abhrajit Mitra, learned Senior Counsel appearing for the respondent/plaintiff, submit that this is a fit case for decreeing
the suit in a summary manner and the judgment of the First Court should not be interfered with. They submit that the appellant Bank has admitted that
the lease expired on 30thJune, 2007 and was not extended thereafter. Since the lease was not renewed between the parties, a notice of eviction was
duly served upon the appellant Bank and in fact the respondent/plaintiff (lessor) gave a notice of reminder dated 24th November, 2011 to the appellant
Bank (lessee) that the lease was going to expire with a request for delivery of possession on the expiry of the lease. Accordingly, the suit for eviction
was filed on 19th July, 2012 when the lease had already expired. In support of the impugned judgment, Counsel submits that the appellant Bank has
failed to disclose any defence in its affidavit-in-opposition to the claim for recovery of possession on the expiry of the registered deed of lease.
Counsel further submits that the entire case of the appellant Bank was based on the premise that a fresh lease on terms negotiated between the
parties may be settled by the Court, which essentially is no defence to the plaintiff’s claim for recovery of possession upon expiry of the registered
deed of lease.
The respondent further takes the plea of the inequitable conduct on the part of the appellant after filing of the suit. According to Mr. Mitra, the
appellant/defendant has delayed the hearing before the First Court for more than three years since by an order dated 6th January, 2015, the matter
was referred to mediation. The mediation between the parties failed as would appear from a report dated 12th February, 2015 after which the matter
was taken up for hearing. Even after this the parties attempted to resolve their differences over a protracted period of time, which attempts also failed
and the matter finally came up for hearing before this Court in January 2018.
Counsel for the respondent states that, the only other point urged by the appellant Bank is a judgment of Hon’ble Justice Sanjib Banerjee in the
case of Shivani Properties Private Limited Vs. United Bank of India dated 30th April in which a rent of Rs.24 per square feet per month was fixed in
respect of a flat situated near the suit premises. This point was presumably taken with reference to the negotiations on the rent payable by the
appellant Bank for the subject premises. The aforesaid would show that the appellant Bank had no defence at all on merits and no attempt was made
to make out a defence in response to the claim of the plaintiff.
Mr. Anindya Mitra and Mr. Abhrajit Mitra have relied on:
i) Section 111(1) of the Transfer of Property Act.
ii) The judgment reported in 1977 (1) CLJ 561 for the proposition that once a lease is already determined under Section 111(a) of the Transfer of
Property Act 1882 by efflux of time, the lease comes to an end and there is no need for further determination of the lease.
iii) AIR 1964 SC 461 (Pooran Chand Vs. Mitilal and others) for the proposition that the where a tenancy expired by mere efflux of time, no statutory
notice under Section 106 of the Transfer of Property Act, 1882, was required to be given. We have considered the submissions of Counsel appearing
for the parties. Before dealing with the factual position as argued, the mandate of Chapter XIIIA of the Original Side Rules of this Court is required to
be looked into:-
“3. When application to be made- Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as
regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts
verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the judge for final
judgment for the claimed together with interest, if any, or for the recovery of the land (with or without rent or mesne profits) as the case may be and
costs:
Provided that as against any defendant who has filed a written statement such application shall not be permissible unless the summons is taken out as
in Rule 4 mentioned within ten days after receipt of notice of the entering of appearance under Chapter VIII, rule 18.
Application by summons- The application by the plaintiff for judgment under Rule 3 shall be made by summons returnable not less than seven clear
days after service accompanied by a copy of the plaint and affidavit.
Defendant may show cause- (a) The defendant may show cause against such application by affidavit..
(b) Affidavit- The affidavit shall state whether the defence alleged goes to the whole or to part only and (if so) to what part of the plaintiffs claim and
shall deal specifically with all matters of fact.
(c) Examination- The Judge may, if he thinks fit, order the defendant or in the case of a Corporation any Officer thereof t attend and be examined
upon oath or to produce any lease, deed-book or document or copy of or extract therefrom.
Judgment unless good defence- Upon such application the Judge may unless the defendant by affidavit or otherwise as the Judge may direct shall
satisfy him he has a good defence to the claim on its merits or disclose such facts as may be deemed sufficient to entitle him to defend, make an order
refusing leave to defend and forthwith pronounce judgment, in favour of the plaintiff.â€
It is clear from the above that in deciding an application under Chapter XIIIA, a Court has to see whether a defendant has been successful in raising a
defence worthy of stopping a Court in its tracks in pronouncing summary judgment on the strength of a plaintiff’s claim, and instead being
persuaded to grant leave to a defendant defend its case and contest the plaintiff’s claim by way of a trial. It is relevant at this point to extract the
findings of the learned Single Judge upon appreciation of the facts urged by the parties before him:-
“The respondent bank did not dispute that the period of lease had expired, but set up a plea which sounds in equity than in law to claim continuation
of such tenancy rights may be on terms as may be settled by this Court. The defendant says that with the fund provided by the defendant, the plaintiff
has raised construction of this building and this aspect of the matter is required to be taken into consideration in deciding the stand taken by the plaintiff
in relation to the tenancy of the defendant. The defendant says that the rents were revised from time to time and the defendant is willing to pay
reasonable sum as rent for occupation of the premises in question. ...................................................
The defendant cannot dispute that the lease had expired. The consequence of expiry of lease is delivery of possession of the property to the lessor
unless there is a waiver or defect in the notice. The defendant does not also plead any agreement between the parties supportive of a case for
continued occupation beyond the term fixed by the lease and seek specific performance of such agreement. As I said earlier the defence is based in
equity than in law. Under such circumstances, I pass an order in terms of prayer (a). The other claims in the application are relegated to a suit.â€
In order to test whether the impugned judgment can be sustained, the correctness of the findings of the Court set out above are required to be gone
into. We accordingly perused the relevant documents to see if any other picture emerges from the facts as would appear from the documents relied
upon by the parties. In particular, whether the appellant Bank (defendant in the first Court) attempted to bring any other additional facts on record in
answer to the plaintiff’s claim on merits which could have satisfied the learned Single Judge that the appellant Bank/defendant indeed disclosed a
defence worthy of relegating the parties to trial. In our view, two questions are required to be annexed:-
Was a fresh lease executed between the plaintiff and the defendant Bank on upon the earlier lease dated 11th November 2003 expiring by efflux of
time?
Whether the appellant Bank admitted to the lease having expired but sought occupation of the suit premises on some other basis which could have a
factual or legal basis, for instance, any overt act on the part of the plaintiff lessor which could be construed as waiver of the terms of the lease deed,
namely, expiration thereof?
According to us, the most important factor is whether the lease expired before the suit was filed by the respondent and whether the appellant Bank
knew and admitted to this, i.e. the expiry of the lease through efflux of time. The answer to this would appear from paragraph 4(p) of the
appellant/defendant’s affidavit in opposition, affirmed by Prabhat Ranjan Mohanty on 21st January, 2013. In that paragraph, the defendant makes
the following statement:-
“(p) Pursuant to and in terms of the said tenancy agreement, till June 30, 2007 the petitioner duly paid the rents and other charges in terms of the
said agreement to the respondent and the respondent also accepted and received the same without any objection.†In this context, it is also relevant
to point out the relevant clause of the lease agreement:-
“4. TENANCY:
(a) Lease Agreement for initial period of 5 (five) years commencing from 01.07.2002 with Bank’s option to continue the lease for a further term
of 5 years on the same terms and conditions subject to revision of rent @ 20% over the existing rent and also with further option to the Bank to
terminate the tenancy at any time after 5 years on giving three months’ notice to the owners.
(b) Security Deposit, free of interest equivalent to 6 (six) months’ initial rent may be granted to the owners which shall be further enhanced with
subsequent periodical enhancement of rent after 5 years. The said Security shall be realized from the last 6 (six) months’ rent of Bank’s
tenancy.
REVIEW OF RENT:
The fresh modified rent @ Rs.15/- per Square Feet shall be subject to further revision by 20% after 5 years to be reckoned from 01.07.2002.†The
second factor is whether, despite such admission, the defendant was able to disclose a good defence which could be seen as a triable issue and
persuade the Court to adjudicate the issues by way of a trial instead of pronouncing summary judgement in favour of the plaintiffs. In this context, we
perused the statements made in the affidavit in opposition as well as the written statement and found the following statements made by the
appellant/defendant; Specific statements made by the plaintiff/respondent in its affidavit:-
a. By a registered lease agreement dated 11th November 2003, the plaintiff/respondent leased out the suit premises to the defendant/appellant Bank
initially for the period of five years commending from 1st July, 2002, with an option given to the defendant/appellant Bank to continue the lease for a
further term of five years. On the same term and conditions subject to revision of rent and with a further option to the defendant/appellant Bank to
terminate the tenancy at any time after five years on notice to the plaintiff/respondent.
b. Initially the lease rent was fixed at Rs.15/- per square feet per month exclusive of monthly tax and commercial surcharge. This rent was valid for
the first five years commencing from 1st July, 2002 till 30th June, 2007. At this point of time, the monthly lease rent was Rs.83, 130/- and yearly lease
rent was Rs.9,97,560/-.
c. After the expiry of the initial period of five years, i.e. on 30th June, 2007, the defendant/appellant Bank exercise its option to renew the lease and
accordingly the lease was renewed for a further period of five years commencing from 1st July, 2007 and expiring on 30th June, 2012. At this point of
time the monthly rent was Rs.99,756/- and the yearly rent was Rs.11,97,072/- .
d. By a letter dated 24th November 2011, the plaintiff informed the Branch Manager of the defendant that the defendant/appellant Bank is liable to
vacate and hand over peaceful possession of the suit premises. This notice was given since after the defendant had exercised its option to renew the
lease for a further term of five years in 2007, there was no scope for further renewal under the terms of the registered lease deed dated 11th
November, 2003. A further reminder dated 18th April 2012 was sent by the plaintiff to the defendant requesting the defendant not to deposit any
further rent.
e. Since there was no question of any further renewal of the lease, the plaintiff by its letter dated 18th April 2012, requested the defendant not to pay
any further rent from the month of April 2012 as the plaintiff wanted to adjust the rent from the month of April 2012 to June 2012 from the security
deposit of Rs.5,98,536/- allowing with the plaintiff; and that the balance deposit money would be returned to the defendant as and when vacant and
peaceful possession of the suit premises is handed over to the plaintiff.
f. Since the defendant continued to deposit rent in the account of the plaintiff, such rent was returned to the defendant. Despite the defendant
continuing to make payments and the plaintiff having returned such payment for the months of May and June 2012, the fact remains that the plaintiff
has not accepted rent for the suit premises from May 2012 onwards.
g. The defendant has been in wrongful possession of the suit premises as a tress-passer from 1st July, 2012. In response to the above, the
defendant/appellant Bank’s position as would appear from the affidavit-in-opposition affirmed by one Prabhat Ranjan Mahanty is as follows:-
a. In 1967, the plaintiff obtained a loan from the defendant for constructing the building at 9 Old Post Office Street, Calcutta-1 wherein it was
understood that the defendant would be inducted as a tenant/lessee in the said building in lieu of the loan taken. The defendant has been in continuous
possession of a portion of the ground floor of the said building since 1969.
b. Several lease agreements were entered into between the parties which were modified from time to time including the rent payable.
c. The parties executed a tenancy agreement dated 11th November 2003 which was for an initial period of five years commencing from 1st July 2002
with the defendant’s option to continue the lease for a further term of five years. Pursuant to the terms of the said agreement, the defendant paid
rents and other charges till 30th June 2007. The defendant also deposited a security deposit of a sum of Rs.5,98,536/-
d. The defendant entered into a correspondence with the plaintiff but at all material times agreed to pay rents and other charges in terms of the
tenancy agreement for the renewed period after 30th June 2007.
e. Despite repeated requests made by the defendant, the plaintiff failed and neglected to renew the tenancy after 30th June 2007. The defendant
continue to deposit rent at Rs.99,756/- along with other taxes and surcharge aggregating to Rs.1,36,191.60/- per month in terms of the tenancy
agreement through RTGS and the same has been credited to the account of the plaintiff.
f. By letters dated 29th February 2012, 23rd April 2012, 30th May 2012 and 19th June 2012, the defendant requested the plaintiff for mutual
discussions for the ultimate object of renewing the lease.
g. By a letter dated 24th November 2011, the plaintiff served a notice asking the defendant to vacate the tenanted portion of the premises and to hand
over peaceful possession thereof to the plaintiff. By a further letters dated 15th April 2012 and 18th April 2012, the plaintiff asked the defendant not to
pay any further rent from April 2012 and also informed the defendant that the rent and other charges for the months of April, May and June 2012
would be adjusted from the security deposit made by the defendant and that the balance amount would be paid to the defendant at the time of handing
over possession of the tenanted portion to the plaintiff.
h. The defendant is ready and willing to discuss the terms of the tenancy and renewal thereof with the plaintiff. The defendant is a bona fide tenant
and occupier and has been in uninterrupted and peaceful possession of the tenanted premises. The defendant has not committed any default in paying
the rent or other charges and has not caused breach of any terms of the agreement. The undisputed facts which would appear from the above are
these:-
i) The registered lease agreement dated 11th November, 2003 for leasing out the suit premises to the defendant Bank, was initially meant for a period
of five years commencing from 1st July 2002. The defendant exercised its option to continue the lease for a further term of five years on 30th June
2007 commencing from 1st July 2007 till 30th June 2012.
ii) Since the further period of five years ended on 30th June 2012 and there was no scope for further renewal of the lease under the terms agreed
upon by the parties, the plaintiff, by a letter dated 24th November 2011 requested the defendant to vacate the suit premises and hand over peaceful
possession to the plaintiff.
What is significant is that nowhere has the defendant/appellant Bank stated that the lease was renewed for a period subsequent to 30th June 2012 or
that the plaintiff gave any reasons to persuade the defendant/appellant Bank to believe that the notice of termination dated 24th November 2011 would
not be given effect to or was waived by the plaintiff. The terms of the lease agreement particularly Clause-4a thereof show that the lease agreement
expired by efflux of time after one renewal and the parties did not execute a fresh lease agreement thereafter. The defendant/appellant Bank in fact
admits to the aforesaid fact in paragraph-4(t) of its affidavit-inopposition in unequivocal terms:
“Despite repeated requests made by or on behalf of the respondent, the petitioner failed and neglected to renew the said tenancy after June 30
2007â€.
The only defence which the appellant/Bank attempts to put forth is that the defendant had given a loan for construction of the building of which the
suit premises is a part; that the defendant has been in occupation of the suit premises since 1969; that there had been several lease agreements
entered into between the same parties pursuant to which the defendant continued to be in un-interrupted occupation of the said premises; that the
defendant continued to pay monthly rents even after expiry of the lease; that the defendant is ready and willing to discuss the terms of the tenancy and
renew the lease; that the defendant has not committed any default in payment of rent or caused breach of any terms of the tenancy agreement and
finally that the notice on termination issued by the plaintiff is illegal and wrongful.
It is clear that the defence taken by the defendant is based on equitable considerations and not really a defence to the plaintiff’s claim on merits.
By merits, one would be required to see the statements made in the application filed by the plaintiff under Chapter-XIIIA where the essential claim is
that the plaintiff has a right to peaceful and vacant possession of the suit premises upon expiry of the lease entered into between the parties. A
defence to the aforesaid claim would necessarily entail a negation of the plaintiff’s right to seek possession of the suit premises under the terms of
the lease agreement. This in turn would require the defendant to either show that Clause-4a of the lease agreement dated 11th November 2003 had
been subsequently modified or had been mutually waived by the parties.
We find no evidence on record to show either of the aforesaid. On the contrary, the correspondence between the parties shows that the only answer
given by the defendant/appellant Bank to the notice of termination issued by the plaintiff is a request for a meeting in person for a “meaningful
discussion on the said matterâ€; reply of the appellant dated 29th February, 2012. The contents of this letter are repeated by the appellant with a
further request for a renewal of the lease in subsequent letters dated 23rd April 2012, 30th May 2012 and 19th June 2012. None of these letters or any
correspondence subsequently exchanged between the parties reveal that the lease had in fact been renewed or a fresh lease executed between the
parties on any date after 30th June 2007 (when the first renewal expired) or 30th June 2012 (when the second renewal expired). On the other hand,
the letters written by the plaintiff during the subsistence of the second renewal, i.e. before 30th June 2012, show that the plaintiff had proceeded on
the basis that the defendant was all along aware of the fact that the defendant had to vacate the suit premises from 1st July 2012 since there was no
scope for any further renewal of the lease. The notice of termination issued by the plaintiff on 24th November 2011 and subsequent letters dated 15th
April 2012, 18th April 2012 further shows that the plaintiff treated the continued payments of rent by the defendant through RTGS as highly irregular
and specifically brought it to the notice of the defendant that continuing to pay rent in this manner would compel the plaintiff to take appropriate action
against the defendant. It is clear therefore that the defendant actually did not have any defence at all besides requesting the plaintiff to consider
renewal of the lease on equitable considerations. That the defendant/appellant Bank had given a loan to the plaintiff for the construction of the building
or being an occupation of the same since 1969 or had successfully persuaded the plaintiff to enter into successive lease agreements cannot be
construed as a good or sufficient defence for continuing to occupy the subject premises even after the expiration of the lease. In any event, these
contentions have been denied by the plaintiff/respondent in its affidavit-in-reply.
The limited issue in an application under Chapter XIIIA is whether the statements or facts disclosed by a defendant in its affidavit are such that a
Court is convinced that these can be construed as a “good defence†and would serve as a speed-breaker in the Court’s racing to pronounce
judgment in favour of a plaintiff. The defence disclosed would have to be such as to convince the Court of the necessity of a further opportunity being
given to the defendant to defend the plaintiff’s case by way of a full-fledged contest at the time of trial, subject to Rules 9 and 10 of Chapter
XIIIA. In view of the alleged defence disclosed by the defendant in this case, the defendant cannot really have the benefit of the window
contemplated in Rule 6, since it is not a case of a weak or even a defence which can be improved on evidence, but a case of no defence at all. In the
fact of this case, a weak defence would probably have been a case where the defendant could have relied upon a waiver of the notice of termination
or even the plaintiff being barred by estoppel or otherwise in proceeding with the notice of termination. In this case however, no defence has been
raised at all with regard to the relevant Clause of the lease deed being modified or being given a go by the parties or any documentary evidence
coming from the plaintiff which would show that the defendant had been given a right to continue occupying the premises despite the lease having
expired by efflux of time. Although equitable considerations which the defendant has pleaded may persuade a Court to take a sympathetic view of the
difficulties being faced by the defendant, it cannot be a reason for a Court to grant leave to a defendant to defend its case at trial where no defence at
al has been disclosed in its affidavit.
The principle governing whether a defendant will be given leave to defend in a summary proceedings contemplated under Chapter XIIIA of the
Original Side Rules of the Court or under Order 37 of the Code of Civil Procedure, has been succinctly put in Raj duggal Vs. Ramesh Kumar Bansal
reported in AIR 1990 Supreme Court 2218 which is set out below:
“Leave to defend the suit brought under Order 37 Rule 2 CPC is declined where the Court is of the opinion that the grant of leave would merely
enable the defendant to prolong the litigation by raising untenable and frivolous defences. The test is to see whether the defence raises a real issue and
not a sham one, in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those
facts. If the Court is satisfied about that leave must be given. If there is a triable issue in the sense that there is a fair dispute to be tried as to the
meaning of a document on which the claim is based or uncertainty as to the amount actually due or where the alleged facts are of such a nature as to
entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses leave should not be denied. Where also, the defendant shows that
even on a fair probability he has a bona fide defence, be ought to have leave. Summary Judgments under Order 37 should not be granted where
serious conflict as to matter of fact or where any difficulty on issued as to law arises. The Court should not reject the defence of the defendant merely
because of its inherent implausibility or its inconsistency.â€
This passage has also found place in Para 11 of Apollo Zipper (supra). A close reading of the rationale behind any summary proceedings is whether a
defendant is able to show that he has a bona fide defence to the plaintiff’s claim, and which would entitle him to obtain leave upon satisfaction of
the Court, that Judgment cannot be pronounced in favour of the plaintiff by way of summary proceedings. Even a plausible defence on facts
amounting to a triable issue would take the proceedings for adjudication at trial where the defence put-forth by the defendant would be considered on
contest.
We are in agreement with the proposition of law laid down in Apollo Zipper and Economic Transport Organisation with regard to the jurisdictional
basis of passing a summary Judgment in suits which satisfy the mandate of Chapter XIIIA of the Original Side Rules of this Court. In Apollo Zipper, a
Judgment delivered by a Division Bench consisting of one of us (Biswanath Somadder, J.), it was held inter-alia that under Rule 6, the matter of
granting leave (or refusal) to defend should be decided first and such decision should be supported with clear reasons, before the Court proceeds to
pronounce Judgment on the merits of the case in an application under Chapter XIIIA. In that case, the Division Bench held that the Court had below
discussed on the merits of the case without first coming to any clear finding as to why the Court was satisfied that the defendant had no good defence
to the plaintiff’s claim on merits. This was considered to be a vital omission on the part of the First Court. But more significantly, in the case of
Apollo Zipper, the Division Bench felt that there was a triable issue which required to be adjudicated at trial since the plaintiff and the defendant raised
contradictory factual issues in relation to a vital piece of evidence, namely, whether the plaintiff is the sole owner of the suit premises.
Economic Transport Organisation, a Judgment of a Division Bench of this Court, relied upon by the appellant was a case arising out of a suit for
eviction and the issue for adjudication was whether the statutory notice issued before filing of the eviction suit was valid. In the facts urged by the
parties therein, the division bench held that the issued raised had to be decided at trial to find out whether the suit will be governed by the West Bengal
Premises Tenancy Act or the Transfer of Property Act. Further, in that case the defendant had been granted conditional leave to defend only upon
imposition of stringent costs.
In Marco Polo Restaurant Pvt Limited Vs. Amit Tiwari & Ors. Reported in (2017) 4 CHN (CAL) 737, a Division Bench judgment of this Court, it
was held inter-alia that the defendant/appellant Bank therein had a good defence with an arguable case made out for trial. On the basis of which the
appeal was allowed. What persuaded the Court to come to the aforesaid finding was the question whether a single tenancy was created by 20
different trusts or 20 separate tenancies were created in favour of the defendant which was considered to be an important triable issue of fact and
law. The other factor which weighed on the Court was that the learned Single Judge had not come to any clear finding that the defendant had no good
defence to the claim of the plaintiff’s on merits which is sine qua non for pronouncing judgment in favour or a plaintiff in a summary procedure
contemplated under Chapter XIIIA.
The cases cited by the appellant have laid down that a good defence has to be established by the defendant to the satisfaction of the learned Judge in
terms of Rule 6 of chapter XIIIA. When there are disputed questions of fact in the matter of establishing the defence then the Court will not make a
summary judgment under chapter XIIIA. We are fully in agreement with the ratio as laid down in the aforesaid decisions, except unlike the facts in
these cases, the defendant here has failed to disclose any defence in its affidavit or by way of additional facts or otherwise.
 We have considered the cross-objection filed by the plaintiff/respondent on the issue of the learned Single judge not having passed a decree for
mesne profits. In view of the observations made hereinabove, no separate orders or directions are necessary.
The learned Single Judge had permitted the appellant â€" Bank to remain in possession of the suit premises for a period of one year from the date of
the judgment subject to payment of rent at Rs.110 per square feet with effect from October, 2015, in default of which the plaintiff would be entitled to
forthwith execute the decree. Since the parties have been unsuccessful in resolving their differences even after two years from the date of the
impugned judgment in terms of the monthly rent payable, the starting date from which the revised rent would be payable, or renewal of the lease, we
direct the appellant Bank to pay monthly rent at the rate of Rs.110 per square feet from October 2015 until one month from the date of
communication of judgment of this Court to the parties and direct the appellant to hand over peaceful and vacant possession of the suit premises to the
respondent from and with effect from 31st July, 2018.
The other directions passed by the First Court with regard to the time by which such payment is to be made, shall remain the same. APD 477 of 2015
together with OCOT 20 of 2015 stand disposed of accordingly. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to
the parties on a priority basis.