The defendant was in occupation of one flat and a car parking area in a building on Camac Street. The rent last paid was Rs. 40,000 per month. The defendant entered this flat as a licensee of the plaintiff who was its owner. The licence agreement was dated 29th May, 2006. It was for an initial period of 11 months. It could be extended at the option of the licensee for two further periods of 11 months each. There is not much of a dispute that this licence for all practical purposes was treated as a tenancy. It was extended for two terms up to 28th February, 2009. It could be extended to the maximum extent up to this date. However, Clause 17 provided that before this period the tenancy was terminable at the option of the licensor or licensee. Either party had to give one month’s prior notice.
This option was exercised in 2007. By a notice dated 17th October, 2007 the defendants were asked to vacate the flat by November of that year. Thereafter, a suit was instituted by the plaintiff in the City Civil Court. The plaintiff withdrew that suit on 22nd April, 2010.
The plaintiff issued another notice to the defendant on 16th June, 2010. It was said to be sent by Registered post. A copy of the notice was also affixed on the entrance to the flat in the presence of two witnesses. The plaintiff asked the defendant to vacate the flat. This time he gave them 15 days’ notice treating the defendant as a tenant, u/s. 106 of the Transfer of Property Act, 1882. Thereafter, the suit and the Chapter XIII A Application were filed.
The Hon’ble Court observed that under Chapter XIIIA the plaintiff is entitled to a summary judgment if on the available evidence on affidavits the Court is in a position to form an opinion that the defendant has no defence to the claim of the plaintiff. If the defendant is able to bring out a prima facie defence, which is equivalent to raising a triable issue, the court grants him leave to defend. Even when the defendant is unable to disclose any defence the Court may, out of sympathy, grant him leave to defend, if it forms the opinion that at a later point of time when the suit is ready for hearing, he has a very outside chance of putting forward some defence. But in that case the Court grants leave to defend upon obtaining security.
A few points of defence have been put forward by the defendant. The first is that this notice was never served. Secondly, 15 days’ notice was inadequate in terms of Clause 17 of the Licence Agreement between the parties which provided for 30 days’ notice.
The licence or lease agreement dated 29th May, 2006 was an unregistered document. Any lease of over one year’s duration can be made only by a registered document. Therefore, the agreement did not affect the property according to section 49 of the Registration Act, 1908. In other words, the document is to be treated as non est.
If the document is non est no rights are created by it. Therefore, it cannot be said that the defendant was a lessee up to 28th February, 2009. For all purposes the lease was from month to month.
If the terms of the lease or licence agreement dated 29th May, 2006 were inoperative, there was no obligation to give any notice under those terms to determine the lease or tenancy. In those circumstances, section 106 of the Transfer of Property Act came into play.
The Court observed that the notice dated 16th June, 2010 was rightly given. Only 15 days’ notice was required to be given under that section. Therefore, the notice determining the tenancy was valid.
Each of the defendants was sent the notice dated 16th June, 2010 by registered post with acknowledgment due. Each notice was delivered at the post office on 17th June, 2010. On each of the postal documents to record receipt there is a remark by the post office that an intimation was left at the office of the defendants on 19th June, 2010. Each of the notices was not claimed.
U/s. 27 of the General Clauses Act, 1897, if a document is required to be served by post, service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document. Unless the contrary is proved, service is deemed to have been made at the time at which the letter would be delivered in the ordinary course of post. U/s. 106(4) of the said Act, the notice u/s.s. (1) is to be sent, inter alia, by post.
Hence it was held there was good service of the section 106 notice dated 16th June, 2010.
Ajay Kumar Singh vs. Dasa AIR 2013 Cal. 125
