Uco Bank Vs. Shri Amar Nath Jindal - Court Judgment

Excerpt:
evidence act, 1872 - section 114--presumption of service--time of delivery--dispatch of notice by ordinary post--service on the same day within same city, cannot be presumed.; transfer of property act, 1882 - section 106, lll(h) & 116--notice to quit--necessity of--expiry of lease by efflux of time--lessor is not liable to send notice to the lessee.; there is no doubt one aspect that the lease was for a specified period of five years and that period of five years had already expired on 31st december, 1993 by efflux of time. the only ground to assail the notice in the grounds of appeal is that 'after exercise of the option of the said notice, the said notice is illegal and not binding on the appellant/tenant'. it has not been assailed on any other ground. vie tenancy had expired.....orders.n. kapoor, j.1. this is a regular first appeal against judgment and decree dated 31st july 1996, decreeing the suit for recovery of possession, mesne profits amounting to rs. 18,700/- up to 17th january 1994, along with pendente lite and future mesne profits at the rate of rs. 6,865/- per month and interest @ 15% per annum.2. plaintiff/respondent amar nath jindal is the owner and landlord of property known as jindal house bearing no. 270/2-3, shri asha ram road, g.t. road, shahdara, delhi. he had let out the ground floor and mezzanine floor of the aforesaid property for a period of five years w.e.f. 1st january 1989 to 31st december 1993 at a rent of rs. 6865/- per month inclusive of all rates and taxes. this lease deed dated 8th november 1989 ex.pw2/d-15 was duly executed and.....

Judgment:
ORDER

S.N. Kapoor, J.

1. This is a regular first appeal against judgment and decree dated 31st July 1996, decreeing the suit for recovery of possession, mesne profits amounting to Rs. 18,700/- up to 17th January 1994, along with pendente lite and future mesne profits at the rate of Rs. 6,865/- per month and interest @ 15% per annum.

2. Plaintiff/respondent Amar Nath Jindal is the owner and landlord of property known as Jindal House bearing No. 270/2-3, Shri Asha Ram Road, G.T. Road, Shahdara, Delhi. He had let out the ground floor and mezzanine floor of the aforesaid property for a period of five years w.e.f. 1st January 1989 to 31st December 1993 at a rent of Rs. 6865/- per month inclusive of all rates and taxes. This lease deed dated 8th November 1989 Ex.PW2/D-15 was duly executed and registered. This lease deed also provided for a renewal clause. Since the defendant did not get the lease renewed by giving one month's notice, before expiration of the term of the least on 31st December 1993, the tenancy of the defendant came to an end on 31st December 1993 by efflux of time. The plaintiff respondent however, received a letter dated 5th January 1994 mentioning about an earlier letter dated 6th December 1993 seeking extension. The plaintiff respondent replied the same on 11th January 1996 and requested the defendant to hand over the vacant possession of the suit property. Since the rent was more than 3,500 per month, the premises were not covered by the Delhi Rent Control Act. After the expiry of 31st December 1993, the defendant/appellant did not have any right to remain in the possession of the property. Accordingly, the plaintiff/respondent claimed damages at the rate of Rs. 1100/- per day from 1st January 1994 till the filing of the suit total amounting to Rs. 18,700/-. He also claimed damages/mesne profits during pendency of the suit as well as till the date of delivery of possession. The plaintiff also claimed interest at the rate of 18% per annum with amount of decree from the date of suit till realisation of the decretal amount.

3. The defendant/appellant contested the suit and claimed that the appellant/defendant had already exercised option in accordance with the terms and conditions of the lease to continue the tenancy for another five years in their verbal talks and meetings and also by sending letter dated 30th November 1993 Under Certificate of Posting. The defendant/appellant was not liable to pay any damages since he continued to be the tenant from 1st January 1994 at the rent enhanced by 15% per annum i.e. at the rate of 7,895/- per month. The defendant had also tendered rent for the period from January 1994 to June 1994 at the enchanted rate. But the plaintiff refused to receive the same with ulterior motive.

4. The plaintiff/respondent filed replication reiterating and denying the allegations made in the written statement.

5. On the pleadings of the parties, following issues were framed by learned Additional and District Judge.

1. Whether the defendant had exercised option for renewal of the lease for a further period of five years as alleged in para 4 of the Written Statement? OPD

2. Whether the plaint does not disclose any cause of action? OPD

3. Whether the plaintiff is entitled to any mesne profits, if so, at what rate? OPD

4. Whether the plaintiff is entitled to recover possession of the suit property? OPD

5. Relief.

6. The learned Additional District Judge decided all these issues in favor of the plaintiff and against the defendant and decreed the suit for possession and recover of for Rs. 18,700/- as damages/mesne profits due up to 17th January 1994 along with interest at the rate of 15% per annum and awarded pendents lite and future mense profits at the rate of 6,865/- per month along with interest at the rate of 15% per annum till its realisation.

7. Feeling aggrieved by the aforesaid judgment and decree, the present appeal has been filed by the defendant/appellant.

8. Following points of challenge are stated hereunder:

a) The defendant/appellant had exercised his option of renewal at the rate of rent enchanted by 15% per annum be sending notice for renewal of the lease on 30th November 1993 under UPC EX.DW1/1. Rule 22 of Delhi Rent Control Rules prescribing service of notice by Regd. Post was not applicable. The learned Additional District Judge erred in decreeing the suit on the one hand granting the plaintiff damages/mesne profits at the rate of Rs. 6865/- per month from 1st January 1994 onwards and at the same time has passed decree for Rs. 18,700/- as damages for a period from 1st January 1994 to 17th January 1994 along with interest at the rate of 15% per annum.

b) Notice dated 5th January 1994 Ex.PW2/3 was invalid and illegal after the exercise of option by the appellant/tenant.

9. We have heard the parties counsel at length and gone through the record.

10. At the very outset, it may be mentioned that the learned counsel appearing for the respondent considered that there was a mistake in the impugned judgment and the decree in quantification of the amount of Rs. 18,700/- as damages/mesne profits for the period up to 17th January 1994 and the aggregate amount calculated at the rate of Rs. 6865/- per month for this period should be Rs. 6891. Thus, the only question which requires to be decided in this appeal is whether defendant/appellant had validly exercised his option to renew the lease or not. The learned counsel for the defendant/appellant contended that the appellant and exercised the option firstly when the Manager of the Bank visited the appellant, then by posting letters dated 28th November 1993 and 6th December 1993 EX.PW1/1 and DW1/3 and ultimately by sending Regd. letter dated 5th December 194 Ex.DW1/5 to the plaintiff/respondent. In addition to it, the defendant/appellant had also tendered rent to the appellant at the enhanced rate increasing the rent by 15% per annum by 1st January 1994 when the plaintiff refused all the cheques of rent sent by the defendant from January 1994 to June 1994 at the increased rent of Rs. 7895/-. This fact is not disputed in replication.

11. In order to inject life in his submissions, the learned counsel for the defendant/respondent relied upon Madanlal Kadia Vs . Union of India, : AIR1968Ori234 . He also contended that the case of Prem Chander Jain v. Jagat Parkash Gupta, 35 (1998) DLT 279 was not applicable to the facts of the present case.

12. It is apparent from EX.PW2/D.15 that the period of five years was to expire on 31st December 1994. Accordingly, the defendant/appellant had to give a notice in writing of not less than one month before that date and thereupon the plaintiff would have granted the defendant a new lease for a further period of five years with an increase of 15% per annum in the amount of rent. It is apparent that this notice was required to be given in writing. Consequently, alleged verbal talk even if talk had taken place would not ensure to the benefit of defendant/appellant. As regards the written notice, according to the appellant, he sent a letter Ex.DW1/1 dated 28th November 1993 on 13th November 1993 under UPC to the plaintiff/respondent.

13. Further, it is necessary to refer to clause (g) of the agreement which stipulates the mode of service of the renewal notice. It provided for only two modes of service of the notice on the lesser: one, if left at its usual and last known place of residence; and the other is sending the same by Regd. Post. In case of notice sent by Regd. post, it is further provided that it shall be deemed to be given at the time when it ought in due course of post to be delivered at the address to which it is sent. Thus, it also provided about an assumption about the date of service of notice.

14. It is not the case of the defendant/appellant that any notice addressed to the lesser was 'left' at his usual or last know place of residence. According to the statement of DW1, R.K. Narayan, SR. Manager, UCO Bank, Shahdara, he had orally asked the plaintiff for renewal of the lease deed for a further period of five years and he had also written letter to the plaintiff regarding the same. The said letter was sent by him through UPC and the carbon copy of that letter is EX.DW1/1. The UPC is EX.DW1/2. The said letter dated 28th November 1993 reads as under :

'Sub: Notice for renewal of Lease Deed of Bank's Promises.

We wish to inform you that lease deed/agreement for the premises is due for renewal on 1/1/94 and we wish to continue tenancy and are willing to Execute new lease deed as per terms and conditions laid down in lease deed dated 8/11/1989. You are requested to please formalities can be materialised immediately.

Yours Faithfully,

sd/

MANAGER'

15. Thus, it is correct that this letter was not left at the usual or last known place of residence of the lesser. Moreover, it was not even sent on 28th November 1993. It was sent under UPC on 30th November 1993. Obviously, this notice could not have been delivered by post on 30th November 1993, even if we ignore the requirement of service of the said notice by Regd. Post. Consequently, EX.DW1/1 would not help the defendant/appellant.

16. The learned counsel for the appellant submitted that there is presumption of service of notice under UPC and he relied upon Madanlal Kadia v. Union of India, (supra). No doubt, such a notice could be deemed to have been served but the presumption under section 114 of the Indian Evidence Act could be raised only for delivery of the letter in normal course of time and not on the very same day on which the letter was posted under UPC. We have taken into consideration usual time taken for delivery of such letters after its is left at the post office under Certificate of Posting. It is a matter of common knowledge that even a local letter is not delivered on the same day. It is already mentioned that a notice in writing not less than one month before expiry of time had to be sent and if it is not delivered on 30th November 1993 itself that notice served even on 1st December 1994 would be less than one month's notice and it would not satisfy the clause (f) of the agreement. Thus it is apparent that the notice purported to have been sent on 30th November 1993 is of no help.

17. DW1 R.K. Narayan further stated that he again sent letter of confirmation DW1/3 under the UPC EX.DW1/4. This confirmation letter is dated 6th December 1993. It does not refer at all to the letter dated 28th November 1993. If any letter was sent on 28th November 1993 and 30th November 1993 then obviously it might have found a reference in the letter dated 6th December 1993 and should have indicated that the defendant/appellant Bank had exercised its option for extension of the lease period for five years. In absence of any such reference apart from the above, one may be inclined to believe that no letter dated 28th November 1993 was sent on 30th November 1993, though we are not going to that extent.

18. The letter dated 6th December 1993 just requests that landlord either to call on the Manager of the Bank on any working day or invite at the residence/office in this regard to finalise the matter. Obviously, this is also after the expiry of period of one month. This letter had also not been sent by Regd. Post. Thus, it has also not been sent in accordance with clause (g) of the agreement.

19. Any letter written after 1st December 1993 would not be of any help of defend for the purpose of extension of the lease for a period of five years.

20. In so far as the judgment of Bhanwar Singh v. Sultan Khan, 1985 RLR 509 is concerned, we may not advert to it for two reasons. Firstly, it related to Rule 22 of the Delhi rent Control Rules for service of notice to be served as per requirements of the Delhi Rent Control Act and not in respect of a notice to be served in terms of clause (f) and (g) of the aforesaid agreement. Secondly, the case is not covered by the provisions of Delhi Rent Control Act, the rent of the premises being over 3500/- per month.

21. In view of the foregoing, we are of the confirmed view that the finding of the learned Additional District Judge that the defendant failed to prove on record that they had given one month's prior notice exercising their option for renewal of the lease for a further period of five years, is absolutely justified and does not call for any nterference.

22. Once it is held that the plaintiff/defendant had failed to exercise its option for renewal of lease for a further period of five years, obviously, the plaintiff would become entitled to claim mesne profits and damages. It is relevant to note the learned counsel for the appellant did not press for damages at the rate of Rs.6865/- per month. We have already mentioned that the counsel for the respondent/plaintiff has not claimed damages/mesne profits from 1st January 1994 to 17th January 1994 at the rate of Rs. 1100/- per day instead, he claimed only at the rate of Rs. 6865/- per month.

23. Admittedly, no fresh agreement or lease was executed between the parties and plaintiff served notice dated 5th January 1994 EX.PW2/3. this notice dated 5th January 1994 Ex.PW2/3 was assailed as illegal and without any authority of law and thus could not be acted upon. There is no doubt about one aspect hat the lease was for a specified period of five years and that period of five years had already expired on 31st December 1993 by efflus of time. The only ground to assail the notice in the grounds of appeal is that 'after exercise of the option of the said notice, the said notice is illegal and not binding on the appellant/tenant'. It has not been assailed on any other ground. The tenancy had expired by way of efflus of time. The notice EX.PW2/3 was sent just to inform the legal position after the expiry of the term of tenancy by efflus of time and that notice was meant to call upon the tenant to deliver possession. It is certainly not a notice in terms of Section 106 of the Transfer of Property Act. It may be mentioned that the present lease was not governed by provisions of Section 106 of the Transfer of Property Act for Section 106 applies only in the absence of a contract or a local law or uses to the contrary. Under Section 111 of the Transfer of Property Act, it is stipulated that lease of immovable property could be determined by efflux of time limited thereby and there are as many as 8 modes given in Section 111 of the Transfer of Property Act by which the tenancy is determined. Thus, there are seven other modes of determination of tenancy apart from service of notice and determination 'on the expiration of a notice to determine the lease under clause (h) of Section 111 in terms of Section 106 of Transfer of Property Act'. Such leases expire on the least day of the term and the Lesser or person entitled to reversion and might enter without any notice or any other formality. thereforee, the plaintiff was not required to serve any notice under Section 106 of the Transfer of Property Act. In the instant case, the defendant/appellant could not insist on such a notice for his interest in the premises has already come to an end efflux of time.

24. For the foregoing reasons, while we uphold the judgment and decree for recovery of possession of the property know as Jindal House bearing No. 270/2-3, Shri Asha Ram Road, G.T. Road, Shahdara, Delhi and the mesne profits/ damages at the rate of Rs. 6865/- w.e.f. 1st January 1994 till 17th January 1994 and w.e.f. 18th January 1994 during pendency of the suit as well as the appeal till delivery of possession, with interest at the rate of 15% per annum of damages. Thus, the decree stands modified only in respect of damages and mesne profits awarded in respect of period starting from 1st January 1994 to 17th January 1994 only in stead of Rs. 18,700/- on a sum of Rs. 3,891/- is awarded as calculated by the learned counsel for the plaintiff/respondent.

25. In the peculiar circumstances of the case, the parties are left to bear their own costs throughout.