Madras High Court
K.Subramaniam vs S.Raja on 14 March, 2009
Equivalent citations: AIR 2009 (NOC) 2221 (MAD)
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:14.03.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.115 of 2009 and M.P.No.1 of 2009 K.subramaniam .. Appellant vs. S.Raja .. Respondent This second appeal is filed against the judgment and decree made in A.S.No.58 of 2008 dated 30.09.2008 on the file of the Subordinate Judge, Coimbatore, confirming the judgment and decree made in O.S.No.480 of 2005 dated 13.03.2008 on the file of II Additional District Munsif, Coimbatore. For Appellant : No appearance For Respondent : No appearance J U D G E M E N T
This second appeal is focussed by the original defendant, animadverting upon the judgement and decree dated 30.09.2008 passed in A.S.No.58 of 2008 by the Subordinate Judge, Coimbatore, confirming the judgment and decree of the trial Court, namely, II Additional District Munsif, Coimbatore in O.S.No.480 of 2005. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.
2. The respondent/plaintiff filed the suit for obtaining delivery of possession of the suit property and for recovery of arrears of rent, on the ground that the plaintiff is the owner of the suit property, wherein the defendant was inducted as a tenant for carrying on his timber business for a period of three years on monthly rental basis. Lastly the lease was renewed for a period of eleven months, vide the lease agreement dated 19.09.2001. According to the plaintiff, there were arrears in payment of rent by the defendant which necessitated the lessor to issue notice under Section 106 of the Transfer of Property Act terminating the tenancy.
3. Remonstrating and refuting, gainsaying and impugning the allegations/averments in the plaint, the defendant filed the written statement setting out various pleas including the one that there was an agreement to sell between the plaintiff and the defendant; that there was demand for huge advance by the plaintiff from the defendant; there was no default in payment of rent and such like pleas.
4. During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A6 were marked. On the side of the defendant, the defendant examined himself as D.W.1 and Exs.D1 to D8 were marked.
5. Ultimately, the trial Court decreed the suit, as against which first appeal was filed, for nothing but to be dismissed by the appellate Court, confirming the judgment of the lower Court. Being disconcerted and aggrieved by the judgments of both the Courts below, this Second Appeal is focussed on various grounds and in the memorandum of appeal, the following proposed substantial questions of law are found suggested:
(a) When admittedly the suit village was notified under the Tamil Nadu Buildings (Lease & Rent Control) Act even prior to the institution of the suit, still are the Courts below right in decreeing the suit when the suit is not maintainable?
(b) When the lease between the plaintiff and the defendant is admittedly for manufacturing purposes, the suit as framed is maintainable in the absence of 6 months' notice as contemplated under Sec.106(1) of transfer of Property Act.
(c) Admittedly, when the landlord holding an advance of Rs.12,000/- and even the alleged default is for a period of 7 months, still are the Courts below right in holding that there is willful default on the part of the defendant?
6. Despite printing the names concerned, none appeared.
7. A bare poring over and perusal of the typed set of papers including the certified copies of the judgments of both the Courts below would demonstrate and display that the suit property was leased out by the plaintiff in favour of the defendant only as a vacant site, so as to enable the latter to run timber business. In the plaint also the suit property is found described as a vacant site of 1440 sq.ft. In such a case, it is obvious and axiomatic, pellucid and palpable that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act cannot be pressed into service. I am at a loss to understand as to how the proposed substantial question of law (a) would ever be put forth before the High Court in the Second Appeal. As such, the said substantial question of law (a) does not arise and it is not tenable.
8. The proposed substantial questions of law (b) and (d) are with reference to Section 106 of the Transfer of Property Act. The ground No.10 to the shock and surprise of this Court bespeaks to the effect as though in the written statement there is reference challenging the pre suit notice of the plaintiff that it was not in accordance with Section 106 of the Transfer of Property Act. The trial Court in its judgment clearly pointed out that a deep reading of the written statement filed by the defendant did not reveal any plea based on Section 106 of the Transfer of Property Act. Inasmuch in the grounds of Second Appeal, there is a specific ground as stated supra that in the written statement filed by the defendant before the lower Court there is a challenge to the plaintiffs termination notice based on Section 106 of the Transfer of Property Act, I, line by line read the written statement of the defendant, found enclosed in the typed set of papers, and could find no whisper about any challenge based on Section 106 of the Transfer of Property Act as against the termination notice sent by the plaintiff to the defendant. The lower Court correctly au fait with law and au courant with facts gave a finding that the defendant having failed to raise such a plea based on Section 106 of the said Act, would not be justified in simply questioning the validity of the said notice. The lower Court in its judgement correctly referred to the following precedents of Honble Apex Court:
(i) 2006(3) S.C.C. 216 [Dharam Pal v. Harbans Singh]
(ii) AIR 2003 S.C.3995 [Parwati Bas v. Radhika] and held that the defendant by failing to reply to the termination notice and by refraining from taking a specific plea challenging the termination notice by invoking Section 106 of Transfer of Property Act, waived his right to impugn the termination notice. Absolutely there is no contrary, plausible ground found set forth are put forth by the defendant. However, the defendant also failed to highlight and substantiate as to how "Timber business" would come within the ambit of the term "manufacturing purpose" as per Section 106 of Transfer of Property Act. I only observe as above, incidentally once there is waiver of notice, the other consideration under Section 106 of Transfer Property Act dies down in oblivion. In fact, in the written statement he stated only thus:
To ward off and screen the illegal motives the plaintiff issued a legal notice dated 24.01.2005 with untenable and improper claims
9. By no stretch of imagination or by any standard, the aforesaid excerpt in the written statement could be taken as a challenge under Section 106 of the Transfer of Property Act as against the termination notice. The main thrust of the defendants plea in the written statement is that he established his business and gained good clientele for his business; if he is asked to vacate, he would be put in a quandary and irreparable loss business wise and financially too. He also tried to press into service some oral agreement to sell which allegedly emerged at the time of emergence of the lease agreement dated 19.09.2001. The present suit itself was filed in the year 2005, so to say, long after three years from the alleged emergence of the oral agreement to sell, but the defendant had not chosen to file any suit for specific performance of such oral agreement to sell, despite lapse of three years limitation period prescribed for such enforcement. Put simply, the said plea of oral agreement to sell is only an afterthought on the part of the defendant so as to stall the attempt on the part of the plaintiff to regain possession from the defendant. As such, the suggested substantial questions of law (b) and (d) do not arise at all.
10. The suggested substantial question of law (c) is relating to wilful default. To the risk of repetition, without being tautologous I would reiterate that so far this case is concerned, the Provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act cannot be pressed in to service.
11. The lower Court clearly based on evidence held that nine months arrears of rent was there as on the date of filing of the suit and once the statutory tenancy got terminated no other consideration arises. It is not a sine qua non for the plaintiff to prove that the defendant committed wilful default in paying rent. As such, the substantial question of law (c) does not arise.
12. However, ground No.9 in the memorandum of Second Appeal challenging the awarding of 12% interest per month on the arrears of rent deserves consideration.
13. A plain perusal of the judgment of the lower Court would evince and reveal that 12% interest was awarded on the arrears of rent from the date of suit till realisation. At this juncture, it is just and necessary to extract hereunder Section 34 of CPC:
34. Interest (1) Where and in so far as a decree is for the payment of money, the Court, may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:-
Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. ... (emphasis supplied)
14. A plain reading of it would spotlight and highlight the fact that from the date of plaint, reasonable interest on the principal sum, in this case the arrears of rent to a tune of Rs.6,300/-, could be awarded, even though there is no stipulation for payment of interest as per contract. It is a common or garden principle of law that when there is no contractual liability to pay interest on arrears of rent up to the filing of the suit, no interest could be claimed. Here, correctly adhering to the aforesaid principles of law, the plaintiff claimed only 9 months arrears at the rate of Rs.700/- per month, totally amounting to Rs.6,300/-. Only from the date of plaint, 12% interest was claimed and it was allowed by the Courts below. Awarding of interest from the date of suit is a discretionary one, even though there was no contract. The ratiocination in awarding such interest is to instil some discipline on the side of the judgement debtor to comply with the decree, as otherwise he may refrain from paying decreetal amount for long number of years. Here there is ex facie and prima facie mistake in awarding 12% interest from the date of decree till payment, in violation of Section 34 of CPC.
15. Considering the pro et contra, I am of the opinion that the ends of justice would be met if 6% p.a. interest only is awarded from the date of plaint till realisation on the arrears and not 12% p.a. Accordingly to this effect the judgment and decree of both the Courts below shall stand modified, and to this limited extent alone, this Second Appeal is allowed and rest of the portion of the judgment and decree of the Courts below shall hold good in all aspects.
Accordingly, this Second Appeal is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.
gms To
1. The Subordinate Judge, Coimbatore.
2. II Additional District Munsif, Coimbatore