1. The plaintiff has filed the present suit against the defendant praying for eviction of the defendant from an area of 12,125 sq.ft. on the second floor of the premises No. 6, Lyons Range, Kolkata - 700001 and for mense profit on and from 1st September, 2008 @ Rs. 34,355/- per diem.

2. During the pendency of the suit, the defendant has surrendered the suit premises on 29th September, 2023 and the plaintiff has taken possession of the premises in question. Now only the question for adjudication whether the defendant was in a wrongful occupation of the suit property on and from 1st September, 2008 till 29th September, 2023 and whether the notice issued by the plaintiff to the defendant under Section 106 of the Transfer of Property Act, 1882 dated 19th July, 2008 is valid or not.

3. The plaintiff and the defendant entered into a tenancy agreement on 7th May, 1984, wherein the plaintiff had let out an area of 12,125 sq.ft. on the second floor of the premises No. 6, Lyons Range, Kolkata - 700001 (herein after referred to as the “suit premises”) to the defendant on a monthly rent of Rs. 72,750/- calculated at the rate of Rs. 6/- per sq.ft. per month with the condition that rent will be increased by 10% every three years during the subsistence of the tenancy.

4. It was further agreed by the defendant to pay and reimburse the plaintiff the occupier’s share of Corporation taxes including surcharge, multistoried building tax, urban land tax and such other taxes. The defendant has also agreed to pay to the plaintiff maintenance charges of Rs. 2,425/- per month of the suit premises calculated at the rate of Rs. 0.20 paise per sq.ft. per month. In terms of the agreement, the rent of the suit premise was increased from time to time and lastly it was enhanced to Rs. 1,56,036.62 paise per month.

5. Mr. Utpal Bose, Learned Senior Advocate representing the plaintiff submits that the agreement entered between the parties on 7th May, 1984, was governed by the West Bengal Premises Tenancy Act, 1956 but in the meantime the Act of 1956 has been repealed by the West Bengal Premises Tenancy Act, 1997, thus the monthly tenancy having a rent of Rs. 1,56,036.62p came to be governed by the Transfer of Property Act, 1882.

6. Mr. Bose submits that on 19th July, 2008, the plaintiff had served a notice to the defendant under Section 106 of the Transfer of Property Act, 1882 by terminating the tenancy with effect from 1st September, 2008 and the said notice was duly served upon the defendant but the defendant failed to vacate the premises and continued to occupy the suit premises even after termination of the tenancy till 29th September, 2023.

7. Mr. Bose submits that Section 3(f) of the West Bengal Premises Tenancy Act, 1997, stipulates that a monthly tenancy taken for a nonresidential purpose which carries a monthly rent more than Rs. 10,000/-, the same shall not be covered by the Act of 1997.

8. Mr. Bose submits that a different portion of the same premises no.6, Lyons Range, Kolkata, measuring an area of 10,855 sq.ft. situated on the third floor, the plaintiff had initiated a suit for recovery of possession and for mesne profits against the defendant herein. The said suit was also filed after serving notice under Section 106 of the Transfer of Property Act, 1882 and the said suit was decreed in favour of the plaintiff. In the said suit, the Coordinate Bench of this Court had held that the monthly rent of the said premises was Rs. 91,941.85p at the relevant point of time and consequently Section 3(f) of the 1997 Act took the tenancy out of the purview of the 1956 Act and also held that the notice issued under Section 106 of the Transfer of Property Act, 1882 was valid. He further submits that the defendant has carried the said judgement and decree in appeal but the appeal preferred by the defendant was dismissed.

9. Mr. Bose in support of his submissions, has relied upon the judgment in the case of Apollo Zipper India Limited Vs. W. Newman and Co. Ltd. reported in AIR 2018 SC 2847 and submits that once the monthly rent exceeded the limit prescribed under Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had no application.

10. Mr. Shiv Shankar Banerjee, Learned Advocate representing the defendant submits that prior to the agreement dated 7th May, 1984, the defendant was in possession of the property since 1983. Prior to the agreement a special agreement was existing between the predecessorin- interest of the defendant i.e. the Corporation of Royal Exchange Assurance and after nationalization of the Insurance Company, National Insurance Company become the tenant. He submits that the agreement dated 7th May, 1984, was improperly stamped and was exhibited subject to objection.

11. Mr. Banerjee submits that in the agreement there is no clause to terminate the agreement. The agreement was signed by and between the parties when the Premises Tenancy Act, 1956 was enforced and from the agreement, it is crystal clear that the right of termination was not with the plaintiff. He submits that if the notice issued by the plaintiff under Section 106 of the Transfer of Property Act is taken into consideration, the tenancy agreement is not registered and thus it is to be treated as a monthly tenancy and the terms of the tenancy will be governed as per terms agreed between the parties.

12. Mr. Banerjee submits that the letter dated 27th May, 2022, clearly reveals that the plaintiff has extended the time for surrendering of the premises and if the letter dated 26th February, 2023, is taken into consideration, it can be said that the plaintiff has taken possession of the suit premises without any protest. He submits that the defendant has paid occupational charges of the suit premises to the plaintiff from 1st September, 2008 till the surrendering of the premises.

13. On the basis of the pleadings of the parties, the following issues have been framed :

                    “1. Whether the tenancy of the Defendant was governed by West Bengal Premises Tenancy Act, 1997 or by Transfer of Property Act, 1882?

                    2. Whether termination of the tenancy of the Defendant was proper or not?

                    3. What was the legal status of the Defendant after termination of tenancy, if any?

                    4. Whether the Defendant was unauthorized occupant? If so, from which date he became so.

                    5. Whether the Defendant is liable to pay mesneprofit? If so, from which date is liable to pay mesne-profit and for which period he is liable to pay.

                    6. Whether the Defendant is liable to be evicted from the suit premises?

                    7. Whether the Plaintiff is entitled to relief prayed for?”

14. Issue no.6 “Whether the defendant is liable to be evicted from the suit premises?” has become redundant as the defendant has surrendered the suit premises to the plaintiff during the pendency of the suit on 29th September, 2023.

15. The plaintiff has examined its Vice President and Company Secretary to prove its case. During his evidence, the Agreement dated 7th May, 1984, is marked as Exhibit-A (subject to objection). Though the defendant has raised objection to the said agreement but in the examination-in-chief on affidavit, the defendant has admitted that pursuant to mutual understanding between the parties, on 7th May, 1984, a tenancy agreement was executed by and between the parties and all the terms and conditions have been enumerated in the said agreement have been accepted by both the parties and such terms of the agreement stood conclusive at all materials times.

16. Admittedly, when the agreement was entered between the parties, the West Bengal Premises Tenancy Act, 1956 was in force. During the pendency of the suit, the Act of 1956 is repealed by the West Bengal Premise Tenancy Act, 1997. Section 45(1) of the West Bengal Premises Tenancy Act, 1997 reads as follows:

                    “45. Repeal and savings.—(1) The West Bengal Premises Tenancy Act, 1956 (West Ben. Act XII of 1956) (hereinafter referred to in this Chapter as the said Act), is hereby repealed.”

17. Section 3(f) of the West Bengal Premises Tenancy Act, 1997 reads as follows:

                    “3. Exemption.— (f) any premises let out for non-residential purpose, which carries more than—

                    (i) [ten thousand rupees] as monthly rent in the areas included within the limits of the Calcutta Municipal Corporation or the Howrah Municipal Corporation, or

                    (ii) [five thousand rupees] as monthly rent in other areas to which this Act extends;

                    Explanation.—Where any premises is let out partly for residential purpose and partly for non-residential purpose, the provisions of clause (f) shall apply to such premises in proportion to respective areas.”

18. Admittedly, the suit premises was not used for residential purposes and the monthly rent was more than Rs. 10,000/- per month. In a similar case between the plaintiff and the defendant with respect to different portion of the rented premises in third floor of the same building, the plaintiff had initiated a suit against the defendant being C.S. No. 199 of 2005 (Turner Morrison Limited Vs. National Insurance Company Limited). In the said case also, there was an issue whether the defendant is a monthly tenant in terms of the agreement. The Court taking into consideration the Act of 1956, 1997 and Section 3(f) of the Act of 1997 held that the tenancy is not regulated by the provisions of the West Bengal Tenancy Premises Act, 1997 and it is governed only by the provisions of the Transfer of Property Act, 1882.

19. The Court had passed decree in favour of the plaintiff directing the defendant to vacate the premises. The defendant has challenged the said decree in an appeal, the Appellate Court also upheld the decree passed by this Court.

20. In the present case also before initiation of the suit, the plaintiff has severed notice upon the defendant under Section 106 of the Transfer of Property Act, 1882 on 19th July, 2008, which was served upon the defendant on 21st July, 2008, terminating the tenancy on and from 1st September, 2008. The notice is duly proved and is marked as “Exhibit-B” but the defendant had failed to vacate the suit premises in terms of the said notice.

21. In the case of Apollo Zipper India Limited (Supra), the Hon’ble Supreme Court held that:

                    “69. The respondent is granted six months' time to vacate the suit premises subject to the condition that they shall deposit the entire arrears of rent up to date at the rate of Rs 40,000 per month within one month from the date of this order and also deposit six months' rent by way of damages for use and occupation within one month in advance.

                    70. The entire amount, as directed above, be deposited with the High Court. The appellant shall be entitled to withdraw the sum so deposited. The respondent shall also furnish the undertaking in this Court within two weeks stating therein that they will vacate the suit premises within six months from the date of this order and will also deposit the sum, as directed above, in time. Failure to file the undertaking and deposit of the amount will entitle the appellant to execute this order against the respondent on the expiry of one month.

                    71. As a consequence of this judgment, all the pending cases mentioned above such as, CS No. 53 of 2007, Title Suit No. 1183 of 2012, and WP No. 569 of 2004 which were filed by the parties against each other in various courts in relation to the suit premises and, if pending till date, stand accordingly disposed of.”

22. This Court finds that the notice issued by the plaintiff to the defendant under Section 106 of the Transfer of Property Act, 1882, is valid. The defendant failed to vacate the suit premises on or before 1st September, 2008, thus the plaintiff was in unauthorized occupation of the suit premises since 1st September, 2008 till 29th September, 2023.

23. The defendant has vacated the premises on 29th September, 2023 and the plaintiff has taken possession of the suit premises, thus no decree is required to be passed with regard to vacating the premises but the defendant was in unauthorized occupation of the premises since 1st September, 2008 till 29th September, 2023, thus the plaintiff is entitled to get mesne profit from 1st September, 2008 to 29th September, 2023.

24. To determine the mesne profit an inquiry is to be conducted in terms of provisions of Order 20 Rule 12 of the Code of Civil Procedure, 1908. Mr. Subhasis Sengupta, Learned Advocate, is appointed as Special Referee to determine the mesne profit from 1st September, 2008 till 29th September, 2023, after giving an opportunity of hearing to both the parties. The Special Referee shall file report before this Court on 27th April, 2026. The remuneration of the Special Officer is fixed at Rs. 3,00,000/- (Rupees Three Lakhs Only). Initially, the remuneration shall be paid by the plaintiff but the same shall be recovered from the defendant at the time of final decree.

25. The department is directed to drawn up preliminary decree within a period of two weeks. The record of this case be immediately sent down to the department.

26. List the matter on 27th April, 2026, for filing report by the Special Referee.