RAJIV GANDHI NATIONAL UNIVERSITY OF LAW,

PATIALA, PUNJAB

TOPIC: - RIGHTS AND LIABILITIES OF LESSOR AND LESSEE

SUB-TOPIC: - COVID 19 AND LEASE AGREEMENTS

SUBJECT: - PROPERTY LAW

Submitted by: Submitted to:

Name = Prerak Fouzdar Dr. Jaswinder Kaur

Roll No. = 18144 Ass. Prof. of Law, RGNUL

Section = C

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 ACKNOWLEDGEMENT
I would like to thank our teacher Dr. Jaswinder Kaur for giving the opportunity to do this
project, it has helped us to conduct research through learning. Because of this exercise for
completion of the project I came to know about several things that generally could have been
overlooked by us.

During this project, my parents and friends made an immense contribution to ensure that the
project is completed within the limited time frame we had.

I would also like to extend my gratitude to all our classmates who gave us important tips and
suggestions for this project.

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 TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION ..................................................................................................... 4
1.1 BASIC DEFINITIONS ........................................................................................................................4
1.1.1 INGREDIENTS ........................................................................................................................5
CHAPTER 2: DETERMINING RIGHT AND LIABILITIES ............................................................. 7
2.1 BY CONTRACT ................................................................................................................................7
2.2 BY LOCAL USAGE ...........................................................................................................................7
2.3 BY SECTION 108 .............................................................................................................................7
CHAPTER 3: RIGHTS AND LIABILITIES OF LESSOR............................................................... 8
3.1 RIGHTS OF LESSOR .........................................................................................................................8
3.2 LIABILITIES OF A LESSOR ................................................................................................................8
CHAPTER 4: RIGHTS AND LIABILITIES OF LESSEE ............................................................... 10
4.1 RIGHTS OF LESSEE ........................................................................................................................10
4.2 LIABILITIES OF A LESSEE ..............................................................................................................12
CHAPTER 5: APPLICABILITY OF THE DOCTRINE OF FRUSTRATION TO LEASE AND
LICENSE AGREEMENTS ........................................................................................................... 16
5.1 JUDICIAL DECISIONS.....................................................................................................................17
CHAPTER 6: CONCLUSION ...................................................................................................... 18
CHAPTER 7: BIBLIOGRAPHY ................................................................................................... 19

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 CHAPTER 1: INTRODUCTION

1.1 BASIC DEFINITIONS

It is settled rule that a contract makes a few rights and liabilities for the two parties in the same.
As lease is made through some contract, accordingly it additionally makes a few rights and
liabilities for both lessor and lessee. A lease is an exchange of an option to appreciate the
property of lessor made for a specific time under which the resident is placed possessing the
property. The privilege of proprietorship or title isn't passed on the transferee. There is just
exchange of right of pleasure in lease. Without contract or nearby utilization to opposite, lessor
and lessee of immoveable property have a few rights against one another and are dependent
upon certain liabilities against one another.

In the absence of a contract or local usage to the contrary, the lessor and the lessee of
immovable property, as against one another, respectively, possesses the rights and are subject
to the liabilities as mentioned in the act and they are applicable to the property that is leased.

The definition of a lease is explained by the Hon’ble Supreme Court in the case of State Bank
of Hyderabad v. Nehru Palace Hotels1, wherein the Court held that a lease entails transfer
of right to enjoy such property in respect of which a lease is made out for a defined time which
is express or implied or even in perpetuity in consideration of price paid or promised to be
paid in cash or anything of value which is to be rendered periodically or on specified occasions

The word Lease is a very commonly used term concerning land and properties, if a person is
willing to rent out his property which includes house, flat, shop etc, he will for sure opt for
leasing the same. However, there are many trivial things which people generally miss in a lease
deed which later creates and causes a ruckus for the parties. It would be astute for a tenant and
a landowner to be careful about their privileges and liabilities with the goal that they can dodge
any impediment and can appreciate a consistent progress where a landowner secures his
inclinations and an inhabitant will appreciate the property he leased.

As defined in Section 105 of the Transfer of Property Act, 1882 a lease is “… a transfer of a
right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in
consideration of a price paid or promised, or of money, a share of crops, service or any other
thing of value, to be rendered periodically or on specified occasions to the transferor by the

1
State Bank of Hyderabad v. Nehru Palace Hotels AIR 1991 SC 2130

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transferee, who accepts the transfer on such terms”. Section 105 also defines lessor, lessee,
premium and rent.

The transferor is called the lessor, the transferee is called the lessee, the price is called the
premium, and the money, share, service or other thing to be so rendered is called the rent.

Section 108, sub-section (a) to (q), of the Act mentions the Rights and Liabilities of
Lessor and Lessee.

1.1.1 INGREDIENTS

A. Competency of Lessor and Lessee

o For a lease to be valid both the lessor and the lessee must be competent enough
to constitute a contract. For a lessor and lessee to be competent they must be:
 The lessee must be a major.
 The lessor must hold the title and authority to make the lease.
 Both the lessor and lessee must be of sane mind.

In Shri Narain Gosain v. Collector, Cuttack2, the Court held that the lessor and the
lessee must also be persons who are competent to contract. A lawful agreement of lease
of immovable property is a contract within the meaning of Section 10 of the Indian
Contract Act, 1872

B. Matter
o Lease is always for an immovable property which can be anything.

In Bengal A & I Corporation v. Corporation of Calcutta3, the Court held that the
subject matter of lease must be ascertained, and clearly defined. If the land is yet to be
ascertained and carved out of a larger parcel of land, there cannot be a demise

2
Shri Narain Gosain v. Collector, Cuttack AIR 1986 Ori 46
3
Bengal A I Corporation v. Corporation of Calcutta, AIR 1960 Cal

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 C. Transfer of goods
o There is a transfer of rights only to enjoy such property. (only the right to enjoy
such property, neither the title nor the ownership is transferred)

In Love Raj Kumar v. Daya Shankar4, the Court opined that a person who himself is
not possessed of any right or title in the property cannot pass any interest and cannot
create a lease

D. Duration
o As far as the duration of the lease is concerned, it can be for a certain expressed
or implied duration, or it can be for perpetuity (99 years)

In Makali Engg. Works Pvt. Ltd. v. Dalhousie Properties Ltd5, the Court held that to
execute legally binding lease agreement, one of the essential elements is that it has
definite period unless it is a lease in perpetuity

In Vijay Kumar v. Inder Sain6, the Court opined that the rate of rent, duration of a
lease, the purpose of letting, etc. are all governed by the terms of the contract entered
into &; Thus, under the ordinary law, the landlord can evict his tenant on the expiry of
the period for which premises were let out

E. Consideration
o It is must for a lease; it can be money, a share of crops or any other thing of
value.

F. Time Period
o Consideration can be paid periodically or on specified occasions which are
decided between lessor and lessee.

4
Love Raj Kumar v. Daya Shankar, AIR 1986 Del 364
5
Makali Engg. Works Pvt. Ltd. v. Dalhousie Properties Ltd. 2006 (1) Cal HN 419
6
Vijay Kumar v. Inder Sain, AIR 1982 Del 260

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 CHAPTER 2: DETERMINING RIGHT AND LIABILITIES

Without an contract or neighbourhood use in actuality, the lessor and the lessee of enduring
property, as against each other, separately, have the rights and are dependent upon the liabilities
referenced in the standards next after, or such of them as are pertinent to the property rented.

The rights and liabilities of the lessor and lessee are determined -
o by contract;
o by local usage; and
o By this section.

2.1 BY CONTRACT
These are the agreements communicated in the rent. An express pledge consistently supersedes
an inferred contract, i.e., the agreements suggested by this part7. Subsequently, the pledge for
calm pleasure under clause (c) of Section 108 might be avoided by an agreement unexpectedly.
In interpreting a rent deed, the court should take a gander at the words utilized in the agreement,
except if they are to such an extent that one may presume that they don't pass on the expectation
accurately.

2.2 BY LOCAL USAGE

A use may in any case be throughout development and it might require proof for its help for
each situation, yet in the outcome it is sufficient in the event that it gives off an impression of
being so notable and assented in that it might sensibly be attempted to have been a fixing
imported by the gatherings into their contract8. At the point when a utilization is demonstrated,
it abrogates the pledges inferred by this part, and surprisingly express agreements are
understood as dependent upon it.

2.3 BY SECTION 108

This section, as said by J Coutts Trotter sets out in a convenient form the implied covenants
usually subsisting in a lease9.Nearly all the clauses were said by CJ Rankin to be expressions
of well settled principles, familiar to the law of England

7
Millers Emcee Products, Ltd, [1956] 1 All ER 237.
8
Juggomohun v Manickchund, (1859) 7 Moo Ind App 263, p 282.
9
Secretary of State v Venkayya, (1917) ILR 40 Mad 910, p 913.

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 CHAPTER 3: RIGHTS AND LIABILITIES OF LESSOR

3.1 RIGHTS OF LESSOR

Section 108A talks about the rights and liabilities of a lessor, Rights of Lessor are defined under
Section 108 of the Transfer of Property Act, 1882.

A. Right to Accretions
On the off chance that any promotion or expansion to the property is delivered via an
contract during the term of an contract, at that point that increase or expansion will be
viewed as remembered for the first lease. The expansion could be regular or on the
Lessee's expense. The Lessee may, nonetheless, have no title to such accumulation and
the Lessee should return something similar at the end of the lease or after the due length
of the contract.

B. Right to collect Rent

The lessor has the privilege to gather rent or any type of thought as referenced in the
terms and states of the contract from the inhabitant with no type of interferences.

In the case of Gurvindersingh Chadha v. State of Chhattisgarh10, A piece of land was

granted by lease to the petitioner by the state of Chhattisgarh. Later on a letter was issued by
the state govt. cancelling the lease on the ground that the land was required for the preservation
and beautification of tank and also for widening national highway. Before cancellation of lease
show-cause notice was given to the petitioner but the grounds for cancellation were not
mentioned in the show cause notice. It was held that the absence of material relied upon by the
state government for cancellation of lease amounts to violation of natural justice and hence
the cancellation was quashed.

3.2 LIABILITIES OF A LESSOR

Liabilities of the lessor are laid down in Section 108(a) to Section 108(c)

Section 108(a) lays down that the lessor has to disclose any material defect relating to the
property which the lessee does not know and cannot with ordinary supervision find out. Thus
lessor is under an obligation to reveal to the lessee all defects in the demised premises as are

10
Gurvindersingh Chadha v. state of Chhattisgarh, AIR 2018 Chh 125

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materials that is, such as would affect the use to which they are to be subjected by the lessee.
There is no duty to disclose defects which are either known to the lessee or which the lessee
would with ordinary care discover.

In Syed Mukhtar v. Rani Sunder Koer11, the Court held that a defect in the lessor’s title cannot
be said to be a material defect in a property within the meaning of Section 108(a). Section 108
(b) lays down that the lessor is bound by the request of the lessee to give him the right of
possession over his property.

A. Duty to Disclosure [Clause (a)]

It Provides that the lessor is obliged to report any material deformity in the property to
the Lessee concerning its proposed use of which the lessor is cognizant yet which the
Lessee doesn't have a clue. The deformities could be visible and latent.
Latent defect- Latent deformity can't be found normally or through review by
the lessor.
Apparent defect- Apparent deformity can be effortlessly found through some
investigation
The lessor is needed to uncover idle imperfections since standard consideration can't
find such deformities. The commitment to report is particularly significant where there
are defects which influence the privilege of pleasure in the property for the Lessee.

B. To Give Possession [Clause (b)]

The lessor is under a commitment to give Lessee the possession of the land, upon the
solicitation of the Lessee. Except if he gives the tenant possession, he won't recuperate
the lease or execute Lessee commitments under the lease. Nonetheless, the lessor's
obligation to give ownership arises just when the Lessee demands or requests him in
such a manner.

C. The Directive for Quiet Enjoyment [Clause (c)]

The Clause indicates that if the Lessee pays lease held by the rent and executes the
agreement restricting on him, the Lessee may hold the property without interference
inside the time frame determined by the lease.

11
Syed Mukhtar v. Rani Sunder Koer 17 C.W.N. 960

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 CHAPTER 4: RIGHTS AND LIABILITIES OF LESSEE

4.1 RIGHTS OF LESSEE

Section 108A talks about the rights and liabilities of a lessor, Rights of Lessee are defined
under Section 108 of the Transfer of Property Act, 1882.

A. Right to Accretions [Clause(d)]

Accretions implies augmentations made to the property either by individual or by
activity of regular powers. Where the gradual additions are made by the activity of
normal powers, e.g., alluvion, the lessee can appreciate it over the span of means of
lease. The lessee will undoubtedly give up accumulations if any made throughout his
living at the hour of expiry of rent; he can't save it for his own advantage.
In the case of Secretary of State v Kadirikutti12, the Madras High Court held that the
English rule applied unless excluded by enactment or local usage. It is now settled that
in India it is not necessary for the accretion to be imperceptible, and that it is sufficient
that it is gradual13. If the accretion is not imperceptible or gradual, no change occurs in
the ownership of the land14.

B. Right to Avoid Lease [Clause(e)]

At the point when the property/object of the rent is harmed, the Lessee may end the rent
at his carefulness in the event that he isn't to be censured for such misfortune. Where
the whole lease has been paid ahead of time, and the property is lost before the rent
time frame closes, the Lessee will reserve the option to recuperate the proportionate
piece of the lease recently saved. The actual object of lease is to give the privilege of
utilization and delight in the property to the resident. The by and large acknowledged
standard that is additionally embraced by the Supreme Court in T Lakshmipathi v. P
15
Nithyananda Reddy , is that a lease of a house or of a shop is a lease of the
superstructure, yet additionally of its site. It would be unique if the site, yet in addition
the land underneath, stops to exist by a demonstration of nature. The Hon'ble Apex

12
Secretary of State v Kadirikutti, (1890) ILR 13 Mad 369.
13
Lala Lachmi Narayan v Maharaja Kesho Prasad, (1920) 5 Pat LJR 1.
14
Arendra v Acchaibar, (1906) ILR 28 All 647
15
T Lakshmipathi v P Nithyananda Reddy, AIR 2003 SC 2427.

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 Court in number of cases has held that that where the occupancy is solely for premises
and not for land, on the annihilation of the topic, the tenure stands extinguished

C. Right to Charge for Repair [Clause (f)]

This provision states that if the lessor neglects to make any fixes or repairs that he will
undoubtedly make after notice inside a sensible period, the inhabitant or the tenant may
make the maintenance himself and deduct the expense of such fixes with interest from
the lease or in any case recover everything from the land owner. The renter has the
privilege by clause (f) of section 108 to do the fixes himself, if there should arise an
occurrence of the lessor's default after sensible notification; yet he isn't qualified for
end the tenure by reason of the lessor's default and to stop16, the resident may deduct
the expense of fixes with interest from the lease.

D. Right to Make Payments [Clause (g)]

This provision states that if the lessor neglects to make any payment which he is obliged
to make and which is recoverable from the Lessee or against the property in the event
that he doesn't cause it, the Lessee can make such payment himself and deduct it from
the lease with intrigue or in any case recover it from the leaseholder.
Payments under this section may be government assessment or ground rent or rates and
taxes payable by the landlord17

E. Right to remove fixtures [Clause (h)]

The Lessee may remove all things that he has attached to the land, even after the lease
has been decided, at any time while he owns the leased property, but not afterwards.
However, the property must be returned in the state in which he acquired it. This clause
(h) of section 108 has been amended by the insertion of the words “even after the
determination of the lease” A further amendment by the words “whilst he is in
possession of the property leased and not afterwards” fixes definitely the time during
which the right may be exercised.

F. Right to have the benefit of Crops [Clause (i)]

Every Lessee is qualified for everything grown, cultivated or reaped by him to his/her
advantage. Where the lease is of questionable term and the lessee’s advantage is

16
Bijay Chandra v Howrah Amta Rly, AIR 1923 Cal 524.
17
Basant Lal v Boora Ram, AIR 1963 All 568.

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 resolved in any case than by his issue, the lessee is qualified to support all harvests
developing on the land, and planted or planted by him. As subordinate to one side to
eliminate developing harvests, the lessee has the privilege of free entrance to and
departure from the property to divert them. The privilege under this segment is like that
given by Section 51 to a genuine transferee who has planted harvests, and is ousted by
an individual having a superior title. The section doesn't make a difference
straightforwardly to agricultural tenures, yet the rule would no uncertainty be applied.

G. Right to Assign his Interest [Clause (j)]

This arrangement enables the Lessee to pass the whole or any piece of his advantage in
the land, altogether or via home loan or sub-rent. Essentially, the transferor or assignor
can additionally move his interest. Every one of these arrangements are in the exception
of an agreement or nearby custom. "Where there is a lasting lease, and there is no
pledge limiting the privilege of the tenant to relegate his advantage, the renter's
privileges are heritable and adaptable"18 The standard of the lessee giving out the
interest under a rent can in India be removed by an agreement actually. "
4.2 LIABILITIES OF A LESSEE

Liabilities of the lessee are laid down in Section 108 of the Act.

A. Duty to disclose facts material to increase the value of the property [Clause (k)]
Under this Clause, the Lessee is obliged to report any abandon to the lessor of which
he knows, yet lessor doesn't know and which fundamentally expands the estimation of
that interest. Where the Lessee won't report the truth, and the lessor in this manner loses,
he will sue for pay. The lessor is by section 108(a), under a commitment to reveal
deformities of which he knows and which influence the expected utilization of the
property, yet the obligation of the tenant is more restricted. He simply will undoubtedly
uncover realities influencing the lessor's title which increment the estimation of the rent,
and of which the lessor is ignorant. The part is like section 55(5) (a) of the Act which
forces a comparable obligation on the purchaser and alludes to the title, and not to actual
benefits. A lessee like a purchaser would be under no obligation to unveil the presence
of a coal mineshaft of which the lessor was unconscious. The note under section 55(5)
(a) might be alluded in this association. In any case, if the lessee acquired an
understanding for a recharged lease, in light of the acquiescence of the old lease,

18
Ram Kinkar v Satya Charan, AIR 1939 PC 14.

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 smothering the way that the individual on whose life the old lease depended was then
on his death bed, the agreement couldn't be upheld19

B. Duty to Pay Rent [Clause(l)]

Under this clause (l) of section 108 there is an implied covenant by the lessee to pay
rent. But there is no charge for unpaid premium20as in the case of unpaid price. Again,
as all leases have now to be executed by both parties, the covenant will always be
expressed. The obligation to pay rent begins as soon as the lessor has fulfilled his
obligation under section 108(b), and put the lessee in possession21 Payment to one of
several joint lessors is a payment to all and conversely, payment by one of several joint
lessees is a payment by all22
C. Duty to maintain the property [Clause (m)]
The Lessee is obliged to hold the property in as great condition as it was the point at
which he was placed in control until the rent is ended. He is obliged to permit the lessor
and his representatives to get to property and look at its conditions at all fitting
occasions23 and should yield up the property in a similar condition, subject only to fair
wear and tear and irresistible force
There are thus two implied covenants
i) to keep24 in repair, on which suits may be filed from time to time during the
term; and
ii) To restore in repair, i.e., in as good a condition as he found the property, on
which covenant a suit can only be filed at the end of the term.
Reasonable wear and tear is an exception exonerates the lessee in case of
dilapidation caused by the friction of the air, by exposure and by ordinary use25

D. Duty to Give Notice [Clause (n)]

At the point when the Lessee knows that someone else has dispatched procedures to
recover entire or part of the land, or has encroached on it or meddled with the lessor's
correct, he should carry such a reality to lessor's mindfulness.

19
Ellard v Llandaff (Lord), (1810) 1 Ball & B 241.
20
Venkatacharuyulu v Venkatasubba,a AIR 1926 Mad. 55.
21
Shama Prosad v Taki Mullik, (1901) 5 Cal WN 816.
22
Nillunber Mustophy v Doorgachum, (1865) 2 WR 94
23
Doongersey v Keshavji Meghji, (1917) 19 Bom LR 878.
24
Lurcott v Wakely & Wheeler, (1911) 1 KB 905, p 918.
25
Terrell v Murray, (1901) 17 TLR 570.

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 E. Duty to use the property Reasonably [Clause (o)]
This provision determines that if the property were his own, the Lessee would utilize
the property and its products as an individual of standard judiciousness. He should not
chop down the trees or sell the wood, or destroy or obliterate the house. The words
"utilize the property for the reason other than that for which it was rented" happening
in this proviso imply that the difference in business would not achieve change of client
as mulled over by this condition26 Section 108 beginnings “in absence of a contract or
local usage to the contrary”. As such, it licenses agreement unexpectedly referenced
under this part. In the event that the rent deed illuminates that "the inhabitant will not
do some other business than the business indicated" at that point the gatherings confines
the client of the rented premises just for the business which is expressed in that and no
other27

F. Duty not to erect permanent Structure [Clause (p)]

A resident will have no obligation to raise any perpetual construction on the land, aside
from agricultural purposes or without the lessor's consent. Under this sub-section, the
denial is against making a lasting design as it were. The legal prerequisite under clause
(p) of Section 108 is that the lessee should not without lessor's assent erect any lasting
construction on the property aside from farming purposes. Where the occupant raises
unapproved developments, he is responsible for expulsion taking into account segment
108(p)28 On a horticultural holding an inhabitant may not erect a structure not associated
with agrarian tasks29 .
The word “permanent” is used in opposition to “temporary”. What is a lasting
construction is an issue of truth; it relies on the idea of the design, and the aim with
which it is raised.

G. Duty to restore possession [Clause (q)]

This provison states that in any case as specified the Lessee is always obliged to give
the property as given by the Lessor back to him as he is the main owner of the same

26
Jagdish Lal v Parma Nand, AIR 2000 SC 1822.
27
M Arul Jothi v Lajja Bal, AIR 2000 SC 1122.
28
Nisha Rani Mookherjee v Puran Chand Jain, (2004) 10 SCC 637.
29
Jugut Chunder v Eshan Chunder, (1874) 24 WR 220.

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 and lessee if not does same he will be liable to pay damages to the Lessor and is bound
to vacant the possession of the property on termination of the lease.

This is known as the standard in Henderson v Squire30 without agreement or

neighborhood utilization unexpectedly, it is a commitment of the tenant to place his
lessor into ownership of the property on the end of the lease. Till the time the lessee
reestablishes the belonging, the commitment caused by him as renter doesn't reach a
conclusion. In the event that he proceeds under lock and key even after the assurance
of the rent, the property manager clearly has an option to discharge him forthwith31

In Hirabai v. Jivanlal32, the Court held that where the lessee wrongfully refuses to
deliver possession, the lessee must pay damages to the lessor to the extent of the loss of
rent suffered by latter during the period he remained out of possession.

30
Henderson v Squire (1869) LR 4 QB 170.
31
Society for Health & Social Transformation, Rehabilitation v Kimtu Devi, 2010 SCC OnLine HP 3779.
32
Hirabai v. Jivanlal, AIR 1955 Nag 134

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CHAPTER 5: APPLICABILITY OF THE DOCTRINE OF FRUSTRATION
TO LEASE AND LICENSE AGREEMENTS

With the beginning of the third wave of India's countrywide lockdown, the time has shown up
for organizations to take a chilly, hard glance at their draining assets and discover approaches
to deal with their misfortunes. By virtue of the new lockdown, despite the fact that the
limitations are steadily being lifted, 'non-essential' organizations are being constrained to stop
tasks and can't get to their leased premises. Thus, the need to end tenant contracts to cut
misfortunes has acquired significance. Tenant contracts, regardless of whether they are rent
deeds or permit arrangements, are important for the operational expenses of any going concern.
The terms 'lease' and 'license' regularly will in general be conversely utilized. In any case, it is
imperative to draw a differentiation between these two ideas, to comprehend the idea of the
gatherings' commitments under their arrangements, and to distinguish approaches to end these
commitments considering the current pandemic. It is to note that the general rule as present in
Section 56 of the Indian Contract Act, 1872 regarding the application of force majeure does
not apply to the lease deeds and the same was clarified by Hon’ble Apex court in Raja Dhruv
v. Raja Harmohinder Singh33

The Supreme Court excused the case of force majeure under Section 56 on two expansive
grounds. In the first place, it held that rights under a lease are not just authoritative rights but
rather are rather administered under the arrangements of the Transfer of Property Act, 1872
(TPA). Second, the Court contemplated that Section 56 of the ICA doesn't have any significant
bearing to a closed contract where no further presentation was required. The Supreme Court
re-insisted this situation in Sushila Devi v. Hari Singh34

Section 108(B)(e) shows three criteria must be satisfied before any benefit can be derived:

(i) the existence of an ‘irresistible force’;

(ii) property becomes substantially and permanently unfit for use for which it was let;
and
(iii) the lessor must be informed of the lessee’s decision to render the lease deed void.

In this specific situation, it gets essential to analyze whether COVID-19 and the lockdown can
be termed as an ‘irresistible force’ for the purposes of Section 108(B)(e). Black’s Law

33
Raja Dhruv Dev Chand vs Harmohinder Singh & Anr 1968 AIR 1024
34
Sushila Devi And Anr vs Hari Singh And Ors 1971 AIR 1756

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Dictionary defines force majeure, inter alia, as a “superior or irresistible force” (4th ed. 1972).
While there is not even a single judicial precedent where the definition of ‘irresistible force’
has been specifically settled, obiter indicates that the Courts have not made a distinction
between ‘irresistible force’ and force majeure. The law provides the lessee the opportunity to
determine if an event within the ambit of Section 108(B)(e) of the TPA has permanently
affected his ability to use the property. However, if there is an impairment to the lessee’s ability
to use the property, the law imposes a strict obligation to give a notice under Section 108(B)(e)
of the TPA to the lessor. If the lessee fails to give notice under Section 108(B)(e) of the TPA,
the lease is deemed to remain unaffected regardless of a force majeure event. It is important to
note that once this notice is sent, the lease agreement between the parties stands terminated.

Therefore, under Section 108(B)(e), it is as important to establish that COVID-19 rendered the
property permanently unfit for the purpose for which it was leased out, as it is to establish that
COVID-19 is in itself an instance of an ‘irresistible force’.

5.1 JUDICIAL DECISIONS

In a new judgment of Standard Retail Pvt Ltd v M/s G S Global Corp and Ors35 , the Bombay
High Court denied help to a gathering looking for assurance of force majeure because of the
Covid-19 outbreak and explicitly expressed the lockdown can't act the rescue of the petitioners
to resile from their legally binding commitments of making payments. The request likewise
expressed that the way that the candidate had endured harms is additionally not a factor which
can be thought of and held against the respondent.

On 30 April 2020, the Supreme Court of India passed a request on account of Pawan Pathak
Prakash v Bar Council of India36 , where the Court dismissed a writ appeal looking for waiver
of lease of attorneys' chambers during lockdown and guided the Bar Council of India to help
its individuals, remembering the predominant circumstance.

This choice of the Delhi High Court has eliminated any confusion air on the appropriateness
of Section 32 of ICA, Section 56 of ICA, and Section 108(B) (e) of TPA on the lease
arrangements. It is currently clear by the aforementioned choice that Section 56 of ICA doesn't
matter to lease arrangements. Further, the materialness of Section 108(B)(e) of TPA is
dependent upon the leased property being considerably and forever destructed because of the
Force Majeure occasion.

35
Commercial Arbitration Petition (L) Nos 404 of 2020.
36
Writ Petition (Civil) No 10949 of 2020.

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 CHAPTER 6: CONCLUSION

In this project we discussed what are the essentials of a lease and the determinants of rights and
liability of lessors and lessee. We also discussed the rights and liabilities of both lessor and
lessee who are integral and indispensable part of a lease deed.

There are plenty of rights and liabilities given to lessor as well the lessee and it is the duty of
both the parties to know about their rights and not misuse them to their own benefit. The lawful
privileges of a lessor over the resource have been surely known by Courts in practically all
wards. Except if the rent is a simple gadget to clothing a got loaning exchange, Courts would
for the most part honor the rent understanding and permit to the lessor the rights referenced in
that.

In most countries, the lessor’s predominant legal interest over the leased asset has been
recognised. This is one of the clauses in the UNIDROIT convention on international leases. No
other creditor of the lessee, or a statutory authority having a claim against the lessee, can have
a superior legal interest over the property to over-ride the lessor’s interest.

It is therefore crystal clear from plenty of the judicial decisions as cited in the project above
that the provision of suspension or in some of the cases the waiver of the rent in the cases where
the property is leased will totally be dependent on the terms of the contract made between the
parties. However, if there exists no contract or a particular force majeure clause in the contract
that has been made, therefore the provisions as contained in the TPA Act will be made
applicable to the same and the terms and conditions as present in the contract shall have to be
satisfied accordingly. The relevant provisions of the TPA are useful only if the lease is sought
to be voided, and the TPA does not contemplate suspension of rent in such a situation.

If there does not exist properly designed or drafted executive orders, or contractual terms, the
parties in the contract are free to approach the judicial bodies and the question related to waiver
of the rent shall totally differ from case to case provided the factors including those which were
taken in the of Ramanand and Ors v Dr Girish Soni and Anor37 are given due importance 38

37
RC. Rev. 447/2017.
38
Surendra Nath Bibran v Stephen Court, AIR 1966 SC 1361.

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 CHAPTER 7: BIBLIOGRAPHY

Books Referred

 The Transfer of Property Act by R.K Sinha

 Property Law by Dr. Poonam Pradhan Saxena
 Mulla On the Transfer of Property Act 1882 Ed. 5th

Online Resources

 https://blog.ipleaders.in/
 https://www.toppr.com/
 https://shodhganga.inflibnet.ac.in/
 http://www.legalservicesindia.com/
 https://www.legalbites.in/
 https://www.barandbench.com/

Online Databases

 https://indiankanoon.org/
 http://scconline.com/
 https://www.manupatrafast.in/

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