9911796707
TMI Blog1985 (9) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, Lansdown Road, which is presently known as 5B, Sarat Bose Road, Calcutta-20 and thereafter, the said predecessor-in-interest (hereinafter referred to as the said Trust), built a multistoried building, which is known as Lansdown Court (hereinafter referred to as the said premises), consisting of 28 flats. 4. It was also the case of the plaintiffs that by a registered deed of lease dt. 10th May 1957 (Ext. 1), the predecessor-in-interest of the defendant/appellants Standard Vaccum Oil Co. Ltd., were inducted into the said premises in respect of flat No. 12 (hereinafter referred to as the said flat), as a lessee for a period of 25 years, at a monthly rent of Rs. 225.00P. payable according to English Calendar month. It was also the case of the plaintiffs that the lease in question, expired on the expiry of the last day of Jan. 1980, since the same commenced from 1st day of Feb. 1955. It was pointed out, that Clause 10 of the said Ext. 1, specifically stipulated that upon the expiry of the said term, forthwith to deliver up possession of the said flat to the Lessor without any objection or obstruction and in default, to pay mesne profit for the Lessee's continued occupation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the suit as framed, was in form and there was no defect in the same. 9. The question whether the defendants would be entitled to the benefits of extension of the lease as claimed or whether the said lease was really and in fact extended and if the plaintiffs entitled to a decree for recovery of Khas possession of the said flat and the consequential damages, were taken up together for the consideration by the learned Court below. There has been no doubt that the said lease in respect of the said flat was granted in favour of the appellants or their successors in office or their predecessor-in-interest, for a period of 25 years, which has expired on 3lst Jan. 1980 and the said Act came into existence on or about 13th Mar. 1974, for the purpose of providing for the acquisition and transfer of the right, title and interest of ESSO in India, in relation to its undertakings in India, with a view to ensuring co-ordinated distribution and utilisation of petroleum products distributed and marketed in India by ESSO Eastern Inc and for matters connected therewith or incidental thereto. The preamble of the said Act would also show that the said ESSO Eastern Inc, to be a foreign company a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tenancy the Central Government shall, on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be in respect of such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy shall be deemed to have been transferred to and vested in the Central Government. (2) On the expiry of the term of any lease or tenancy referred to in Sub-section (1), such lease or tenancy shall, if so desired by the Central Government be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day. 6. ......................... 7. Power of Central Government to direct vesting of the undertakings of Esso in a Government company. (1) Notwithstanding anything contained in Sections 3, 4 and 5, the Central Government may, if it is satisfied that a Government company is willing to comply, or has complied, with such terms and conditions as that Government may think fit to impose, direct, by notification, that the right, title and interest and the liabilities of Esso in relation to any undertaking in India shall, instead of continuing to vest in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inbefore, Ext. 3 which is the letter dt. 9th Oct. 1979, has been claimed to be the demand for having the lease renewed. The said letter, no doubt was sent before the expiry of the terms of the lease, which incidentally was to expire in Jan. 1980 and the same was addressed to one Master Amit Agarwalla C/o M/s. R. P. Agarwalla Brothers (P) Ltd., 51 Stephen House, 4, B.B.D. Bag East, Calcutta-700.001. The said Ext. 3 was addressed to the said Master Amit Agarwalla, by the constituted Attorney of the defendants; not only under or in terms of the renewal clause of the concerned lease, but also under Sections 5 and 7 of the said Act. The learned Court below has duly found that in terms of the Lease (Ext. 1), there was or has admittedly been a renewal clause and thus the question for consideration before him, if such renewal was appropriately asked and duly applied for and that too in view of the letter dt. 9th Oct. 1979 (Ext. 3), the other particulars the terms whereof have been indicated hereinbefore. It has been indicated by the learned Court below that Clause 10 of that Exhibit cannot be opted for piecemeal and if any option is exercised or required to be exercised, then, the same m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons interested in the matter, decide it in such manner as it may think fit. It has been observed that the submissions as indicated hereinbefore, were without any substance, as the real scope and effect of the concerned section was overlooked, as they provide that provisions of Sections 3, 4 and 5 of the said Act, shall apply to the extent to which any property is appertained to the business carried on by the Esso in India. The learned Court below has referred to the evidence of P.W. 1, Bishnukant Jha and P.W. 2 Benoy Kumar Agarwalla, who had testified that the said flat was let out for residential purposes only and the same, at the time of institution of the concerned proceeding, was also used for that purpose, for the officers of the defendants. On further consideration of the paucity of evidence on the point that the said flat was not used for any other purpose or the same appertained to the business carried on by Esso in India, the learned Court below has observed that Section 5 of the said Act, would not enure to the benefit of the defendants or to get any assistance for and from the said Act and in respect of their claim, that the lease was renewed in terms of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said flat. It was also claimed that the option of renewal under Clause 10 of Ext. 1, could be exercised by following the entire provisions of the said clause and the learned Court below erred in not holding that the provisions as contained in first sentence of the said Clause 10, was not the renewal clause and furthermore, in terms of the last sentence of the said Clause 10, the lessee in the instant case was entitled to have the first option for renewal after the expiration of the lease after twenty five years. In any event, it was claimed that the learned Court below was wrong in holding that the lessee did not adopt the entire provisions of the said Clause 10 of Exhibit 1, but only exercised option for renewal for a further period of twenty five years on existing terms and in holding so, the terms of the letter of renewal (Ext. 3) were misconstrued and misappreciated.. 16. Apart from the above, the defendant/ appellants also claimed Chat the learned Court below should have held that by virtue of or in view of Sections 5 and 7 of the said Act, the Lease (Ext. 1) was deemed to have been renewed on the same terms and conditions and as such, the lessee was entitled to remain in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evidence, was not due and appropriate. 19. Mr. Mallik, appearing in support of the Appeal, after placing the pleadings and the available evidence, also submitted that in the instant case, there was in fact a due renewal or a claim for the same, by virtue of the letter dt. 9th Oct. 1979 (Ext. 3) and as such there was no justification in holding by the learned Court below, that by the said letter (Ext. 3), option was not exercised in terms of Clause 10 of Exhibit 1. That apart, he specifically claimed that in terms of Sections 5 and 7 as quoted hereinbefore, there was really and in fact an automatic renewal of the concerned lease. It was also contended by him that the observations that such claim for renewal was given a go-by and that too for the attending circumstances as mentioned in the impugned judgment, had no basis. It was also the specific submissions of Mr. Mallik that the impugned judgment and decree should be held and deemed to to be bad in law, as the same was made and passed on the basis of a case, which in fact was nobody's case. 20. Thereafter, the submissions were continued by Mr. Chatterjee. He took us through the preamble of the said Act, Section 2( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered and looked into as a whole and not in isolation of the several limbs as contained therein. In fact, it was contended by him, that Ext. 3 not being a proper expression to have the intention of the lease (Ext. 1) renewed in terms of or in full compliance with the said Clause 10, there was in fact no demand, claim and option to have the necessary renewal of the said lease. Mr. Mitra, pointed out that even though after the expiry of the lease, for the purpose of having the necessary renewal, it was obligatory on the part of the lessee to pay mesne profits, there has in fact been no such offer or any reference on that aspect in Ext. 3 and that being the position, there has been in this case, no due compliance with the renewal clause and furthermore when, the payment for such mesne profit or the offer for the same, must and should be held to be one of the necessary limbs of the renewal clause or harmonious construction of the same, would require amongst others, such compliance as indicated above. That apart, it was pointed out by Mr. Mitra that from Ext. 3, it would not also appear that there has in fact been no offer to pay the market rate of rent or there has not also been any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se provisions, there has been in this case, an automatic renewal of the lease. On construction of the provisions of the said Act, it was initially contended by Mr. Mitra that the undertaking of Esso in India has only been vested in terms of Sections 3 and 4 and not any lease, as held by them, and more particularly when, such lease would be governed by or under a separate heading under Section 5 of the said Act. It was also pointed out by Mr. Mitra, that Section 5(2) of the said Act make provisions of renewal of a lease on expiry, not automatically, but on expression of such or necessary desire and such expression of desire to have the lease renewed, should be made duly and that being the position, there was in fact no such desire expressed by Ext. 3 and so, the submissions of renewal of the lease or the automatic renewal of the same, would be of no avail in this case. Section 6 of the said Act has used the word appertains to the business carried on by Esso in India . Such expression, according to Mr. Mitra, would mean part of the business of Esso and the holding of the said flat would not be part of such business. Such term appertains to , Mr. Mitra claimed, would mean any manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he concerned lease in terms of the said Act and there was also no due compliance with the renewal clause as contained in Clause 10 of the said Ext. 1 or alternatively such right of renewal has not been exercised in terms of the said Clause 10 and there has been no evidence that the said flat was required to be used for the purposes of the business of the Esso in India and furthermore when, there has been the definite and specific evidence that the same was to be used for residential purposes only, the learned Court below was right and justified in making the order, in the manner as has been done. While further arguing the case, following the submissions of Mr. Mitra, Mr. Dasgupta on a reference to Section 5(2) of the said Act or the terms as contained therein, claimed that the extension of the lease in the instant case was not and could not be automatic, the more so when, there was no offer by the defendant/appellants in terms of the Clause 10 for renewal of the lease and more particularly when, there was no offer by them to pay Rs. 45,000/-, which they were required to pay for every renewal, as consideration for the lease and which consideration again, was the condition precedent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be entertained. It was also claimed that the plaintiff/Respondents, not having filed the letters in question at the appropriate time of the hearing of T.S. No. 33 of 1980, although they had such opportunity, should not be allowed to file them now and at this stage of the Appeal and that too when, the original letters have not been filed along with the application. It was also stated that letters as sought to be disclosed now, would not be required to enable this Court to pronounce its judgment. Apart from the above, the application in question was claimed to be a belated one. To substantiate his submissions on the Power of the Appellate Court to admit additional evidence Mr. Dasgupta made a reference to the case of K. Venkataramiah v. A. Seetharama Reddy, [1964]2SCR35 , where, it has been laid down that under Rule 27(1), the appellate court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment , but also for any other substantial cause . There may well be cases where even though the court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the case of ends of justice , and while making an order for any reasons as mentioned above, the Courts must also be satisfied that for some good or sufficient reason or cause, the concerned evidence could not be produced before the trial Court. The Courts at the same time have right, authority and power to refuse admission of additional evidence, if the action is not bona fide and intended to fill up the lacuna in the evidence. The last part of the power of the Courts will not apply in this case, since we are satisfied that for reasons duly explained the concerned letters in this case could not be brought in evidence at the trial of T.S. No. 33 of 1980. 27. Mr. Mallik, in his reply further restated that the letter Ext. 3 can be looked into and considered to be a valid exercise of renewal in terms of Clause 10 of Ext. 1 and the point regarding the fact that the same cannot be looked into or considered in the manner as indicated hereinbefore, as claimed by the defendant/Respondents at the stage, cannot be allowed to be urged at this stage, as at no point of time, any point was taken that the said Ext. 3 was not a proper exercise of the renewal as the same was addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... renewed, which was done in the instant case by Ext. 3, was enough. It was further claimed and contended by Mr. Mullik that in terms of Section 5(2) of the said Act also, such and mere expression of desire was enough and since in the instant case, a statutory right was created in favour of the defendant/appellants, in view of the provisions of the said Act, no lease deed was necessary. Apart from the above, Mr. Mullik stated that the defendant/appellants, having the right to be accepted as a tenant by or under the provisions of the said Act and since, from their conduct, it also appeared that they intended to continue as such tenant, no further execution of a lease was necessary. 29. Admittedly, the lease (Ext. 1) was due to expire with effect from 31st Jan. 1980 and there was or has also been no doubt that an employee of the defendant appellants was in possession of the said flat, even after such expiry. It was the claim and contention of the plaintiff/Respondents, in the facts and circumstances as indicated hereinbefore viz. that the lease was not extended or the extension of the same not having been duly asked for by the defendant/appellants, they were not entitled to any prot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, we hold that Ext. 3, not having contained the due expression of the intention to have the lease (Ext. 1) renewed and that too in due and full compliance of Clause 10 of Ext. 1 and more particularly when, the defendant/ appellants have not fulfilled their obligations to pay mesne profits amongst others, there was or has neither been any appropriate claims for renewal of the lease nor the lease has been actually renewed. While on the point, we have also considered the inaction of the defendant/appellants, to pay market rent or any offer for the same, which was also a necessary prerequisite for renewal of the lease on the expiry of the same. The said Ext. 3 was not also addressed to the proper authority, who could grant the renewal of the lease or in other words, the said Ext. 3 not having been addressed to a person duly authorised to grant the renewal, there was also and in fact, no proper and due claim for such renewal. We further hold that mere sending of the said Ext. 3 would not create a lease or allow renewal of the same in terms of Section 107 of the T.P. Act and requirements of necessary execution of such a lease in terms of the observations in the case of Asiff v. Jadunath ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
