Gauhati High Court
M/S L.M. Commercial House vs Shri Chittaranjan Patowary on 17 March, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No: RFA 39/2015
1. M/s L.M. Commercial House, a partnership firm having its
Head Office at Nagaon Town, P.O. & Dist. Nagaon (Assam)
represented by its partners viz. 1. Sri Laxmipat Choraria, S/o
Late Chand Choraria, Resident of Mullapatty, Mouza -
Kachamari, Dist - Nagaon, Assam. 2. Md. Imdad, S/o Late
Wahid Uddin, Resident of Daccapatty Nagaon Town, Dist -
Nagaon, Assam.
...... Appellant
-Versus-
1. Shri Chittaranjan Patowary,
S/o late K.C. Patowary,
R/o Vivekananda Path
G.S. Road, Ulubari, Guwahati-7,
District - Kamrup(M), Assam.
....... Respondent
WITH Case No: RFA 49/2015
1. Sri Laxmipat Choraria, S/o Late Chand Choraria, R/o Mullapatty, Mouza - Kachamari, Dist - Nagaon, Assam.
2. Md. Imdad, S/o Late Wahid Uddin, R/o Daccapatty Nagaon Town, Dist - Nagaon, Assam.
...... Appellants
-Versus-
Page 1 of 39 RFA 39/2015 With RFA 49/2015
1. Shri Chittaranjan Patowary, S/o late K.C. Patowary, R/o Vivekananda Path, G.S. Road, Ulubari, Guwahati - 7, District - Kamrup (M), Assam.
....... Respondent
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Appellants : Mr. GN Sahewalla
Sr. Advocate
Mr. J Sharma
Mr. SK Agarwalla
Advocates
For the Respondent : Mr. AC Sarma
Advocate
Date of Hearing : 17.03.2016
Date of delivery of
Judgment and Order : 17.03.2016
JUDGMENT AND ORDER (ORAL )
Two first appeals being RFA No. 39/2015 and RFA No. 49/2015 between the same parties have been argued together. Appellants in both the cases have relied on the same set of documents and evidence. The respondent of the two appeals, however, have two different sets of evidence. Be that as it may, the subject matter of both the appeals have sprung out from a common transaction based on same set of documents and accordingly they are taken analogously for decision. In RFA No. 39/2015, defendant of Title Suit No. 1/2009 is the appellant. Page 2 of 39 RFA 39/2015 With RFA 49/2015 By judgment and decree dated 15.06.2015, the learned trial court decreed the suit for ejectment of the defendant and also for recovery of arrear rent at the rate of Rs. 2,88,000/- per month from the month of June, 2008 till ejectment in due process of law and also a simultaneous direction has been given for refund of Rs. 2,00,000/- interest free to the defendant in addition to a lump sum amount of Rs. 50,00,000/- towards improvement of the suit premises made by him.
2. Title Suit No. 1/2009 was instituted in the court of learned Civil Judge No. 1 at Guwahati stating that plaintiff being absolute owner in occupation of a plot of land measuring 1 B 3 L (8.23 Ares) covered by dag No. 95 in KP patta No. 727 of village Ulubari with a standing two storied RCC building thereon having 12,000 sq.ft. in both the floors was running a hotel under the name and style of M/s Hotel Pragjyotish since the year 1988. However, in the year 2000 the partners of defendant firm approached the plaintiff for taking the suit premises on lease on condition of payment of monthly rent and to construct remaining floors, namely, 2nd, 3rd and 4th floor of the RCC building. After negotiation between them, tenancy agreement was executed on 02.11.2007 for a monthly rental at the rate of Rs. 24/- per sq.ft. which comes to Rs. 2,88,000/- per month and the same was payable within 5th day of every succeeding month. The plaintiff also agreed to allow defendant to make use of existing bar licence on payment of Rs. 4,00,000/- out of which defendant paid Rs. 2,00,000/- and although agreed to make payment of the balance sum of Rs. 2,00,000/- within 12 months next, but ultimately did not make the payment. It is the further case of the plaintiff that Page 3 of 39 RFA 39/2015 With RFA 49/2015 after execution of the tenancy agreement on 02.11.2007 and after handing over of possession, the defendant approached the plaintiff for preparing another tenancy agreement only to save taxes and plaintiff agreed to the same. This is how, another tenancy agreement was executed on 01.12.2007. Plaintiff did not admit that the subsequent agreement dated 01.12.2007 was a genuine tenancy agreement and claimed that the same was obtained by playing fraud and undue influence. Plaintiff asserted that agreed rate of monthly rent was fixed at the rate of Rs. 24/- per sq.ft., but in the subsequent sham document it was described to be Rs. 2/- per sq.ft. In paragraph 8 of the plaint it is further stated that the defendant took possession on 01.11.2007 and it was agreed between the parties that during minor repairing and renovation, the defendant would pay Rs. 1,00,000/- per month for the months of November, 2007, December, 2007 and January, 2008 and since then i.e. w.e.f. February, 2008, the regular rent of Rs. 2,88,000/- would be paid by the defendant. The defendant failed and neglected the payment from the month of June, 2008 till the date of institution of the suit and so he became a defaulter and not entitled to any protection under Section 5 of the Assam Urban Rent Control Act, 1972. The defendant paid a sum of Rs. 6,46,000/- to the plaintiff which included a sum of Rs. 70,000/- being the sale proceeds for putting some old articles of the hotel on auction and thus the aforesaid amount contained rents for the months April and May, 2008 at the rate of Rs. 2,88,000/-. But defendant in the mean time instituted a suit being Title Suit No. 330/2008 in the court of learned Munsiff No. 4 praying for declaration that he is the tenant with respect to the suit premises under the defendant of Page 4 of 39 RFA 39/2015 With RFA 49/2015 that suit who is none other than the plaintiff in the present suit and that he was not liable to be evicted save and except, the process of law. In the aforesaid suit, defendant of the present suit placed reliance on agreement dated 01.12.2007 to be the tenancy agreement which according to the plaintiff of the present suit, was not at all a tenancy agreement and was created for the purpose of saving tax. The document dated 01.12.2007 was never acted upon by the parties and the same is liable to be adjudged as null and avoid etc. According to the plaintiff, defendant is defaulter for not paying rent from the month of June, 2008 to November, 2008 at the rate of Rs. 2,88,000/-. Accordingly, a decree was prayed for not only for ejectment of the plaintiff from Schedule-A premises but also for realisation of Rs. 19,28,000/- along with interest at the rate of 18% per annum from the date of institution of the suit till realisation. Plaintiff also made a prayer that agreement dated 01.12.2007 between the plaintiff and the defendant be declared null and void.
3. On being summoned, the defendant submitted written statement denying the case of the plaintiff and claiming that the plaintiff was under serious financial constraints and not in position to run and manage Hotel Pragjyotish properly due to poor upkeep of the premises and management. The hotel was at the verge of closure and that is why it is the plaintiff who proposed to the defendant for taking two storied building on lease and to run the hotel business without any precondition. It was agreed between the parties that defendant would have the right to expand and extend the existing building by constructing additional three floors being 2nd, 3rd and 4th floors at the cost of the defendant and the cost Page 5 of 39 RFA 39/2015 With RFA 49/2015 incurred therein would be adjusted from the monthly rental at the rate of 75%. The defendant denies that there was any tenancy agreement executed on 02.11.2007 agreeing to pay Rs. 24/- per sq.ft. as monthly rent. The real tenancy agreement was executed on 01.12.2007 at a monthly rental of Rs. 24,000/- in all for the two storied building. The tenancy was initially for a period of 3 years and the same was to be enhanced @ 15% of the initial rent. The defendant further claimed that as per the agreement, rent for 2nd, 3rd and 4th floor were agreed to be paid at the rate of Re. 1/- per sq.ft. till the entire cost of construction of the additional three floors is set off and all land revenue, municipal taxes, statutory dues etc. including electricity consumption charges were to be paid by the defendant. The liquor bar which was in existence in hotel was agreed to be given to the defendant on a lump sum payment of Rs. 2,50,000/- which the defendant paid in full in cash and so the defendant was not liable to make any further payment. Defendant disputed the quantum of rent to be Rs. 2,88,000/- per month and also denied that Rs. 20,00,000/- was paid as interest pay refundable security. According to the defendant, this amount was extended as loan to the plaintiff with interest thereon at the rate of 18% compounded monthly and it had no connection with the tenancy whatsoever. The same was done independently on the basis of a different contract dated 02.11.2007 between the plaintiff on one side and the partners of the defendant on the other side. Defendant claimed that monthly rent was fixed at the rate of Rs. 2/- per sq.ft. as against the claim of the plaintiff that the same was Rs. 24/- sq.ft. It is further alleged in the written statement that plaintiff with dishonest intention to claim more money Page 6 of 39 RFA 39/2015 With RFA 49/2015 from the defendant changed the agreement for loan dated 02.11.2007 into lease agreement by falsely claiming exorbitant rent from the defendant. After about 4 months from the date of running hotel Fame City by the defendant in the tenanted premises, plaintiff started pressurizing and harassing the defendant in many ways to evict them unauthorisedly. Plaintiff also asked the defendant on 15.09.2008 to replace and rename the business as Hotel Pragjyotish in place of Hotel Fame City. Under such circumstances, the defendant became compelled to institute Title Suit No. 330/2008 as aforementioned in the court of learned Munsiff No. 1. The same was transferred to the court of learned Munsiff No. 4 thereafter. The defendant claimed that there were some old articles in the hotel which were put to sell by auction and entire auction proceed of Rs. 5,98,000/- along with rent for two months, namely, April 2008 and May, 2008 amounting to Rs. 48,000/- was handed over to the plaintiff who issued a written receipt in acknowledgement of the receipt of the amount. Defendant also pointed out that the plaintiff had submitted objection when defendant wanted no objection certificate from State Fire Service Authority, G.M.C., shops and establishment, Sales Tax office etc. in the name and style of Hotel Fame City and plaintiff had been harassing him since the month of September, 2008 in many ways. Defendant denied that they paid Rs. 1,00,000/- per month for the month of November and December, 2007 and January, 2008 during the period of renovation and repairing of the premises as claimed in paragraph 8 of the plaint. They also denied that they paid rent for the month of February, March, April and May, 2008 at the rate of Rs. 2,88,000/- per month. According to them, they have Page 7 of 39 RFA 39/2015 With RFA 49/2015 been depositing rent in the Savings Bank Account No. 30025124061 of State Bank of India in favour of the plaintiff at Nagaon Main branch which was remitted to State Bank of India, Guwahati Branch and then transferred to the account of the plaintiff. They claimed to have made payment of municipal taxes with respect to the premises though they were not under duty and obligation to do so. They claimed to have paid rent for the month of April, 2008 and May, 2008 at the rate of Rs. 24/- in cash along with auction sale proceeds of old items of the Hotel Pragjyotish and plaintiffs acknowledged receipts thereafter for Rs. 6,46,000/-. Thereafter, defendant deposited another sum of Rs. 70,000/- into the aforesaid savings bank account of the plaintiff on 13.09.2008 towards rent for the months of June, July and August, 2008. The defendant was making deposits regularly in the bank but in the month of January, 2009, they came to know that the aforesaid account of the plaintiff with the State Bank of India had been closed and under such circumstances, they tendered rent to the plaintiff and on refusal to accept, the same was deposited under Section 5(4) of the Assam Urban Areas Rent Control Act, 1972 in the court of learned Civil Judge No. 1, Guwahati. They claimed that they continued depositing rent in court thereafter after making tender to the plaintiff. The defendant disputed that the sale proceeds of auction sale was Rs. 74,000/- as claimed by the plaintiff and so they did not make any payment of rent at the rate of Rs. 2,88,000/- for two months i.e. April, 2008 and May, 2008 as claimed by the plaintiff. They asserted that agreement dated 01.12.2007 was the only agreement of tenancy and the one dated 02.11.2007 was only a loan agreement for Rs. 20,00,000/- along with Page 8 of 39 RFA 39/2015 With RFA 49/2015 interest at the rate of 18% per month. The defendant further alleged that plaintiff designed the agreement dated 02.11.2007 only to avoid payment of interest on the aforesaid loan amount. The plaintiff has a political background and on the guise of which he started torturing the defendant on many ways to evict him illegally and for deriving wrongful gain. With these averments, the defendant prayed that the suit of the plaintiff be dismissed with a compensatory cost of Rs. 5,000/-.
4. On the basis of the aforesaid averments made in the respective pleadings of the parties, the learned trial court framed 8 issues. Subsequently, 3 more additional issues were also framed by the learned trial court as additional issues No. 1, 2 and 3. All these issues are mentioned below:-
1. Whether the suit is maintainable?
2. Whether there is any cause of action for the suit?
3. Whether the suit is bad for non-joinder and mis-joinder of parties?
4. Whether the suit is bad for waiver, estoppel and acquiescenece?
5. Whether the defendant violated the terms and conditions of lease agreement dated 02.11.2007?
6. Whether the lease agreement executed between the plaintiff and the defendant on 01.12.2007 is null and void?
7. Whether the defendant is defaulter?
8. Whether the plaintiff is entitled to get the decree as prayed for? Additional Issues:-
1. Whether the tenancy in respect of the suit premises was initiated on the basis of the agreement dated 02.11.2007 or 01.12.2007?
2. Whether the monthly rent for the suit premises was RS.
2,88,000/- or Rs. 24,000/-?
Page 9 of 39 RFA 39/2015 With RFA 49/2015
3. Whether the defendant in terms of the agreement of tenancy improved the suit premises with the cost of Rs. 1 Crore and has been paying the municipal taxes?
Plaintiff examined 5 witnesses and adduced as many as 18 documents in Title Suit No. 1/2009. Since the pleadings were identical in both the suits, the plaintiff examined PW 2 of the present suit as DW 1 in subsequent money suit No. 47/2009 and thus there were altogether 6 depositions on behalf of plaintiff of Title Suit No. 1/2009 and 18 documents on their behalf. The defendant of Title Suit No. 1/2009 examined 2 witnesses as DW 1 and DW 2 and they adduced 19 documents on their behalf in both the suits.
5. RFA No. 49/2015 arises out of money suit No. 47/2009 of the Court of learned Civil Judge No.1 at Guwahati. This suit was subsequently transferred to the court of learned Civil Judge No. 3 at Guwahati and was tried analogously with Title Suit No. 1/2009 as referred to above. Plaintiffs of money suit No. 47/2009 are the partners of the sole defendant in the title suit No. 1/2009. The pleadings of both the suits are identical arising out of same set of transactions. The suit of the plaintiff was dismissed by judgment and decree dated 15.06.2015 and so plaintiffs of money suit No. 47/2009 instituted RFA No. 49/2015 as referred to above. Since it was a claim of money with respect to Rs. 20,00,000/- which is claimed to be interest free security in title suit No. 1/2009 and plaintiff of money suit No. 47/2009 described the same to be a clear and simple money loan by them in favour of the plaintiff of title suit No. 1/2009, the learned trial court framed 6 (six) separate issues in this money suit and the same are quoted below:-
Page 10 of 39 RFA 39/2015
With RFA 49/2015
1. Is the suit maintainable in law as well as in facts?
2. Is there any cause of action for the suit?
3. Is the suit barred by law of limitation?
4. Whether the defendant obtained a loan of Rs. 20,00,000/- with interest thereon @ 18% compounded monthly from the plaintiff on the basis of the agreement for loan dated 02.11.2007 or whether it was an interest free refundable security against the tenancy?
5. Whether the plaintiff is entitled to a decree for recovery of Rs.
36,15,769/- with pendente lite and future interest @ 18% per annum from the defendant as prayed for?
6. To what other relief/reliefs the parties are entitled?
6. During pendency of the suit, plaintiff of money suit No. 47/2009 did not lead separate evidence but adduced a set of common evidence for both the suit. This means that plaintiffs of the aforesaid money suit being the partners of defendant in title suit No. 1/2009 led only one set of evidence. The defendant of money suit No. 47/2009, however, examined PW 2 of title suit No. 1/2009 as DW 1 in the money suit No. 47/2009 separately and he made some additional statements which he had no occasion to make in the previous suit. This is how in the judgment of title suit No. 1/2009, this witness has been described not only as PW 2 but also as DW 1 considering his evidence in money suit No. 47/2009 as DW 1 to be PW 6 in the title suit No. 1/2009. Be that as it may, the pleadings of the parties being identical in both the suits and same set of witnesses having been relied on by them although two different judgments have been passed by the learned trial court, can be decided together by a common judgment in the present case.
Page 11 of 39 RFA 39/2015 With RFA 49/2015
7. Learned trial court decreed title suit No. 1/2009 holding that there is cause of action, that the suit is not bad for non-joinder or mis-joinder of parties, tht the suit is not bad for waiver, estoppel, acquiescence etc. and thus issues No. 1, 2, 3 and 4 were decided in favour of the plaintiff. The learned trial court laid stress on additional issues No. 1, 2 and 3 in title suit No. 1/2009 and thereupon decided issues No. 5, 6, 7 and 8 to decree the suit in entirety. Finding on additional issue No. 1 is the crux of dispute between the parties insofar as it relates to the terms of tenancy. There is no dispute about landlord and tenant relationship between the parties. But the parties have differed on the terms of tenancy. When plaintiff of title suit No. 1/2009 claimed that the tenancy was based on agreement dated 02.11.2007, the defendant disputed the same and stated that there was only one tenancy agreement between them and it was the tenancy agreement dated 01.12.2007. It was not drafted or executed for the purpose of saving tax. The defendant denied that this agreement was never acted upon and went a step further saying that agreement dated 02.11.2007 was really a loan agreement. The learned trial court, therefore, was of the considered opinion that it has to be decided first as on the basis of which of these agreements the tenancy between the parties was created. The learned trial court noticed the pleadings of the plaintiff that in the year 2007, partners of defendant firm approached him with a proposal to take a hotel on lease on the condition that they would make further construction of 2nd, 3rd and 4th floors of the two storied hotel and this is how tenancy agreement was executed on 02.11.2007. Plaintiff claimed that defendant agreed to pay Rs. 24/- per sq.ft. per month Page 12 of 39 RFA 39/2015 With RFA 49/2015 which means that the monthly rental was Rs. 2,88,000/-. It was further agreed that they would pay this regular rent three months after the commencement of the tenancy or on completion of renovation/face upliftment of the premises as per requirement of the tenant and during the intervening period they would pay Rs. 1,00,000/- per month. They also agreed to make deposit of Rs. 20,00,000/- as interest free refundable security. After execution of tenancy agreement dated 02.11.2007, it is the partners of the defendant who came to the plaintiff with a request for preparing a second agreement for the purpose of saving tax. They brought a typed out tenancy agreement with separate terms and conditions at their own accord and plaintiff signed on it on 01.12.2007 at the instance of the defendant and under their undue influence. It was shown in the latter document that rent was at the rate of Rs. 2/- per sq.ft. and thus it was only Rs. 24,000/- per month and they did not make any mention of deposit of Rs. 20,00,000/- as interest free refundable security in the document. According to the plaintiff, the possession of the suit premises was given to the defendant of title suit No. 1/2009 on 01.12.2007 and defendant paid Rs. 1,00,000/- per month for three months i.e. November, 2007, December, 2007 and January, 2008. The defendant paid rent at the rate of Rs. 2,88,000/- for February, 2008, March, 2008 and April, 2008. It is during this renovation period, old articles and furniture of the hotel were sold in auction and sale proceed of Rs. 70,000/- along with monthly rent of the months of April, 2008 and May, 2008 was handed over to the plaintiff by cash and this is how plaintiff issued a money receipt for Rs. 6,46,000/- to the Page 13 of 39 RFA 39/2015 With RFA 49/2015 defendant but since then i.e. June, 2008, the defendant did not make payment of rent and became defaulter.
8. The learned trial court discussed the case of the defendant while deciding the additional issue No. 1 and noticed that according to the defendant, the tenancy agreement was agreement dated 01.12.2007 and not 02.11.2007. Tenancy agreement dated 02.11.2007 was merely a loan agreement for Rs. 20,00,000/-. In tenancy agreement dated 01.12.2007, defendant agreed to pay Rs. 2/- per sq.ft. and this is how entire monthly rent came to Rs. 24,000/-. The defendant denied that the agreement dated 01.12.2007 was executed for the purpose of saving tax. They denied to have made payment of rent at the rate of Rs. 24/- per sq.ft. to the plaintiff in any point of time on the basis of agreement dated 02.11.2007. They further claimed that they made expenditure of about Rs. 1 Crore for complete change and renovation of the suit premises during the course of repairing and renovation in accordance with the agreement and paid Rs. 1,00,000/- as lump sum rent till March, 2008 by depositing the same in cash in the savings bank account of the plaintiff on 10.12.2007 as per the direction of the plaintiff. The amount was deposited in cash in the Nagaon Branch of State Bank of India and was remitted to the Guwahati Branch of the plaintiff by transfer. The defendant claimed to have changed the whole suit premises on the basis of agreement dated 01.12.2007 and sold the old items in auction. The sale proceeds came up to Rs. 5,98,000/-. This amount along with Rs. 48,000/- being rents for the months of April and May, 2008 comes to Rs. 6,46,000/- and this amount was paid to the plaintiff in cash in acknowledgment whereof the plaintiff Page 14 of 39 RFA 39/2015 With RFA 49/2015 issued a money receipt. Having noticed such rival contentions of the parties, the learned trial court held that the landlord and tenant relationship between the parties is not a disputed one. But the real contentions between the parties is as to whether the tenancy has been initiated on the basis of agreement dated 02.11.2007 or on the basis of agreement dated 01.12.2007. Plaintiff exhibited tenancy agreement dated 02.11.2007 as Ext. 1 and the same document was exhibited by the defendant as Ext. D in course of their evidence. By comparing these two documents, the learned trial court noticed that while Ext. 1 consists of 8 pages, Ext. D contains only 5 pages. The last page of both the documents is the same and it contains signatures of both parties along with witnesses. But unlike the last page i.e. page No. 8 of Ext. 1 in the top middle portion of the last page there is black ink marking over the last page of Ext. D i.e. page No. 5 of Ext. D. Thereafter, the number 5 was typed out inside a bracket in the said paragraph. This dissimilarity in the appearance of last page of Ext. 1 and Ext. D gave rise to suspicion in the mind of the learned trial court and he noticed that the numeral 8 in last page of Ext. 1 was placed within a similar bracket exactly at the same distance and position from the first line of the last page but the position of the page mark in the last page of Ext. D showing page No. 5 was in a different place. The place where Ext. 8 occurs in Ext. 1 is blackened in Ext. D and a residue of bracket remains under the blackened part. The defendant, according to the learned trial court, could not explain as to why such blackening was there although they claimed that it was there since beginning. Plaintiff alleged that defendant made forgery of the tenancy agreement dated 02.11.2007 and that is Page 15 of 39 RFA 39/2015 With RFA 49/2015 why plaintiff instituted a complaint case in the court of learned Chief Judicial Magistrate at Kamrup which has been numbered as CR Case No. 2866/2009. The partner of the defendant firm, on the other hand, stated that in the last page of Ext. D blackening was there since beginning and it was given to him in that position only. In good faith he did not raise any objection when the document was handed over to him and plaintiff was really putting him to harassment by unlawfully designing the loan agreement dated 02.11.2007 into a tenancy agreement. However, the allegation as to forgery will be decided by the learned court in the criminal proceeding but the learned trial court observed that no prudent man would sign on any instrument containing such black ink marking unless there is some explanation therein to that effect.
9. Admittedly two sets of agreements were prepared on 02.11.2007. When plaintiff retained one set of document, the another set of same document was given to the defendant and so it is difficult to believe, as observed by the learned trial court, that partners of the defendant who signed on the last page already containing black ink coverage whereas there was no such thing in the plaintiff's copy. The learned trial court also noticed that the underlined words "first party/landlord" and "second party/tenant" in Ext. 1 or Ext. D though appears to be consistent with the first page of Ext. 1 wherein the plaintiff is described as the "first party/landlord" is not consisted with the first and second page of Ext. 2 where the words 'landlord' and 'tenant' were not used in the previous pages. Coming to the question of recital as to payment of Rs. 20,00,000/- to the first party, the learned trial court noticed that such loan payment was for 12 months Page 16 of 39 RFA 39/2015 With RFA 49/2015 with interest at the rate of 18% compounded monthly and thus, the monthly interest would come to Rs. 3,60,000/- which means that plaintiff would have to pay Rs. 43,20,000/- to the partners of the defendant as interest whereas as per agreement dated 01.12.2007 (Ext. T) the monthly rent was merely Rs. 24,000/-. This means that plaintiff having given his hotel premises on rent to the defendant is also required to pay Rs. 3,36,000/- every month to the defendant. This is because, monthly interest being Rs. 3,60,000/- if Rs. 24,000/- is deducted from it, the plaintiff becomes liable to make payment of Rs. 3,36,000/- per month to the defendant. The learned trial court wondered that if the plaintiff was to return the sum of Rs. 20,00,000/- within one year to the partners of the defendant along with interest of Rs. 43,20,000/- as claimed by DW 1 and DW 2, then it is not natural on the part of the plaintiff to agree for a nominal rent and that too, for 3 years. With these findings, the learned trial court refused to believe in Ext. D in paragraph 23 of his judgment. There is yet another finding in paragraph 24 of the impugned judgment that last pages of Ext. 1 and Ext. D contain signatures of same parties and witnesses. Witness is none other than one Mr. A.A. Mir, Advocate who was examined as PW 2 by the plaintiff in title suit No. 1/2009. He was also examined as DW 1 in money suit No. 47/2009 on behalf of the same parties when he deposed that he never drafted any loan agreement (Ext. D). He, however, failed to explain as to why he did not take signatures of Biswajit Sarma and Ramesh Kothari though they were present at the time of execution of agreement dated 02.11.2007. PW 2 being an Advocate and having drafted the documents did not feel it necessary to take signatures of executants in each and Page 17 of 39 RFA 39/2015 With RFA 49/2015 every page of the agreement and this, according to the defendant, is owing to his dishonest intention since beginning.
10. On the other hand, Ext. T i.e. the document dated 01.12.2007 was admittedly executed between the parties. Ext. T contains signatures on all pages but Ext. 1 does not contain signatures of parties on all the pages. Defendant examined one Biswajit Sarma as DW 2 to show that he was a friend of the family of plaintiff but in course of cross examination he could not say about family, house location, house type etc. of plaintiff and this is why the learned trial court could not place reliance upon the deposition given by him. Thus, the learned trial court did not believe in Ext. D but placed reliance on Ext. 1 dated 02.11.2007 to be the agreement for tenancy. The learned trial court accepted the explanation given by the plaintiff that Ext. 3 (Ext. T) dated 01.12.2007 was not acted upon by the parties for saving taxes. Ultimately, in paragraph 31 of the judgment, the learned trial court has framed as many as 6 points to show that the tenancy between the parties was based on the basis of agreement dated 01.11.2007 when Ext. 3 the document dated 01.12.2007 was not in existence. Comparing Ext. 3 with Ext. 1, the learned trial court has inferred that Ext. 1 was the basic document basing on which ultimately Ext. 3 document was created and that is why some of the statements made in Ext. 1 which were not required to be retained in Ext. 3 were actually so retained. Regarding adjustment of rent, the learned trial court has applied his mind and made calculation to show that if the case of the defendant is accepted that agreed rent between the parties was Rs. 24,000/- and then 70% is allowed to be adjusted from the expenditure incurred Page 18 of 39 RFA 39/2015 With RFA 49/2015 by the defendant in that event, the plaintiff would hardly get Rs. 7,200/- per month which is unreasonable and oppressive. The learned trial court, therefore, did not accept that the rent could not have been Rs. 10,000/- per month during the renovation period as stated in Ext. 3 and for all these cumulative reasons, the finding of the learned trial court is that tenancy was started on the basis of Ext. 1 dated 02.11.2007.
11. Coming to additional issue No. 2 as to the quantum of rent, the learned trial court accordingly held on the basis of Ext. 1 that rent was 2,88,000/- and not Rs. 24,000/- as claimed in Ext. D. Additional issue No. 2 was accordingly decided. Deciding additional issue No. 3, the learned trial court was of the opinion that defendant had done some renovation works in the suit premises but they have not been able to prove the expenditure actually incurred by them though they claimed the same to be Rs. 1 Crore. With aforesaid findings against issues No. 1, 2 and 3, the learned trial court decided issue No. 5 holding that defendant violated the term of Ext. 1 agreement and this is why it was also held by deciding issue No. 3 that defendant could not prove execution of lease deed dated 01.12.2007 Ext. 3 or Ext. T and so the same was null and void. Since admittedly defendant has been paying Rs. 24,000/- every month in the court, they have been depositing less money to the tune of Rs. 2,64,000/- and so they are defaulter in payment of entire rent. Ultimately, issues No. 8 and 9 were also decided in favour of the plaintiff declaring that the lease agreement dated 01.12.2007 was null and void. Consequently, the suit was decreed on contest for ejectment of the defendant from the suit premises described in Schedule-A to the Page 19 of 39 RFA 39/2015 With RFA 49/2015 plaint and for recovery of arrear rent from the month of June, 2008 till ejectment in the light of the judgment. However, interest free security of Rs. 20,00,000/- was directed to be refunded to the defendant along with a lump sum amount of Rs. 50,00,000/- towards cost of repair. This judgment and decree dated 15.06.2015 has been called in question in the present appeal on various grounds. The plaintiff has also filed a cross objection challenging the finding of the learned trial court that plaintiff is liable to make payment of Rs. 50,00,000/- as lump sum amount to the defendant towards expenditure incurred by them in making renovation of the suit premises.
12. With the identical findings arrived at in the money suit No. 47/2009, the learned trial court disbelieved the Ext. D to be a loan agreement and consequently did not accept the contention that Rs. 20,00,000/- was paid by Laxmipat Choraria to Chittaranjan Patowary as loan at the interest of 18% compounded monthly and accordingly by another judgment passed on the same day i.e. 15.06.2015, the money suit was also dismissed. Plaintiff of money suit No. 47/2009 has preferred RFA No. 49/2015 challenging the dismissal of the money suit by judgment and decree dated 15.06.2015.
13. I have heard Mr. GN Sahewalla, learned senior, counsel assisted by Mr. J Sharma and Mr. SK Agarwalla for the appellant in both the cases and Mr. AC Sarma, learned counsel for the sole respondent in both the appeals.
14. Mr. GN Sahewalla, learned senior counsel for the appellant, would argue that the plaintiff having instituted the suit for eviction of the defendant in title suit No. 1/2009 is duty bound to prove the terms of the tenancy including the Page 20 of 39 RFA 39/2015 With RFA 49/2015 quantum of rent, the due date and the mode of payment. Ext. 1 and Ext. 3 brought on record by the plaintiff as exhibits. Ext. 1, exhibited by the plaintiff as a proof of tenancy between the parties, is obviously for a period of more than one year and so it is compulsorily registrible under Section 107 of the Transfer of Property Act, 1882 but the same not having been registered, it is not admissible in evidence by operation of Section 49 of the Indian Registration Act and so the plaintiff has miserably failed to prove that the monthly rent was Rs. 2,88,000/- as well as the mode of payment and due dates. Mr. Sahewalla has placed reliance on the judgment of the Hon'ble Supreme Court in the case of K.B. Saha and Sons Pvt. Ltd. vs. Development Consultant Ltd. reported in (2008) 8 SCC 564 to argue as to what collateral purpose as provided in Section 49 would mean. Mr. Sahewalla asserted that the suit being a one for eviction and tenancy having been instituted allegedly by Ext. 1 dated 02.11.2007, quantum of rent is nothing but a term of tenancy and so it does not come within the mischief of collateral purpose or collateral transaction occurring in Section 49 of the India Registration Act and so Ext. 1 cannot be relied on to come to a finding that monthly rent payable by defendant was Rs. 2,88,000/- per month. He vehemently argued that Ext. 1 should be kept out of consideration being not admissible in evidence and plaintiff ought to have led sufficient evidence to enable the court to arrive at a finding as to what was the actual rent. Placing reliance on the judgment of this court in the case of Tushar Kanti Dey v. Sulata Choudhury and ors. reported in (2002) 2 GLR 50, Mr. Sahewalla would further argue that to get a decree of eviction on the ground of defaulter, landlord is duty bound to establish as to Page 21 of 39 RFA 39/2015 With RFA 49/2015 what is the due date and mode of payment of rent. In the instant case, plaintiff has not only failed to prove the mode of payment and the due date but has also failed miserably to establish as to the quantum of monthly rent. Mr. Sahewalla has also placed reliance on the judgment of this court in the case of Ranjit Kakati v. Krishna Prasad Kakati reported in (2014) 5 GLT 248 which is nothing but a judgment passed on reliance of Joseph John Peter Sandy vs. Veronica Thomas Rajkumar and anr. reported in (2013) 3 SCC 801 wherein the Hon'ble Supreme Court held that mere exhibiting a document would not amount to proof of its content. A party relying on the document will be required to prove the contents even after the execution of document is proved. According to Mr. Sahewalla, though Ext. 1 has been brought on record but its contents, more particularly, as to the quantum of the rent have not been established by the plaintiff by leading appropriate evidence and so the cumulative effect is that plaintiff has failed miserably either to prove the quantum of monthly rent or the due date and mode of payment and so plaintiff is not entitled to any decree of eviction. The learned trial court while deciding a suit for eviction under Section 5 of the Assam Urban Areas Rent Control Act, 1972, has not considered this aspect of the matter and so according to Mr. Sahewalla, impugned judgment, insofar as it relates to eviction of the defendant, is liable to be set aside. However, on being pointedly asked about the validity of Ext. 3 as well as Ext. D, Mr. Sahewalla could not give any reply convincingly as to their admissibility in evidence. More particularly, when Mr. Sahewalla was confronted with last page of Ext. D in regard to existence of blackening over bracket mark and supposedly subsequent insertion Page 22 of 39 RFA 39/2015 With RFA 49/2015 of page 5 in another third bracket, there could not be any convincing explanation.
15. Per contra, Mr. AC Sarma, learned counsel for the respondent, would argue that Ext. 1 is not compulsorily registrible. He submits that in case of landlord and tenant relationship under the Assam Urban Rent Control Act, 1972, even execution of a document is not necessary. According to him, the document was executed and there was no necessity for registration. This is why it was not registered. If the document was not required to be registered, then it cannot be held to be inadmissible because of Section 49 of the Registration Act. According to him, since witness of Ext. 1 was examined by the plaintiff as PW 1 and the same person being witness of Ext. D was examined as DW 1 and he having stated in no uncertain words that though described as the author of the document, he really did not create this document at all. What he had created was the tenancy agreement which is Ext. 1 and so Ext. 1 cannot be brushed aside merely because it is not registered. According to Mr. Sarma, plaintiff has proved that monthly rent was Rs. 2,88,000/- and so learned trial court has not committed any error in decreeing the suit for eviction more so, when the judgment is such an elaborate one.
16. Having heard the rival arguments of the parties, I have considered Ext. 1, Ext. D and Ext. 3. Ext. 1 obviously is a document seeking to create tenancy w.e.f. 01.11.2007. It was executed on 02.11.2007. There are terms of tenancy mentioned in the said document including the quantum of rent as well as due date. However, there is no mode of payment mentioned therein. By this Page 23 of 39 RFA 39/2015 With RFA 49/2015 document, obviously lease of the suit premises described in Schedule-A has been created. The period of lease is 3 years and so there is no reason as to why it should not attract the provision of Section 107 of the Transfer of Property Act. The submission of the learned counsel, Mr. AC Sarma, that it is not compulsorily registrible, therefore, cannot be accepted. Evidently, it is a lease deed involving immovable property for a period over one year and so it is compulsorily registrible under Section 107 of the Transfer of Property Act, 1882 and since the same has not been registered, it is not admissible in terms of Section 49 of the Indian Registration Act, 1908. Section 49 is quoted below:-
49. Effect of non-registration of documents required to be registered. - No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall -
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, Unless it has been registered:
[provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] From the recital of the aforesaid Section 49 of the Indian Registration Act, 1908, it would appear that a document if required to be registered either under Section 17 of the Registration Act or by any provision of Transfer of Property Act, then unless it is registered it cannot affect any immovable property comprised Page 24 of 39 RFA 39/2015 With RFA 49/2015 therein and it cannot be received as evidence of any transaction affecting such property or conferring such power. A proviso was added to the section in the year 1929 vide Section 10 of the Amendment Act of 21 of 1929 whereby it has been mandated that an unregistered document which is otherwise required to be registered can be received in evidence for limited purpose. It is mentioned therein in no uncertain terms that it can be received as evidence of a contract in a suit for specific performance under Chapter II of Specific Relief Act, 1877 (Now Specific Relief Act, 1963) or as evidence of any collateral transaction not required to be affected by registered instrument. The word collateral when used as Adjective, has been defined in the Black's Law Dictionary as follows:-
"Collateral, adj. By the side; at the side; attached upon the side. Not lineal, but upon a parallel or diverging line. Additional or auxiliary; supplementary; co-operating; accompanying as a secondary fact, or acting as a secondary agent. Related to, complementary; accompanying as a co-ordinate. As to collateral Consanguinity; Descent; Estoppel; Guaranty; Issue; Limitation; Negligence; Power; Proceeding; and Warranty."
From a reading of the aforesaid definition, it would appear that collateral is one which is not lineal but is only parallel. The rent payable by a tenant in terms of tenancy agreement is not a parallel transaction. Payment of rent and enjoyment of the property are two essential aspects of one transaction and it is not a different transaction. In proviso to Section 49 what has been mentioned is "Collateral transaction" so far as the elements of rent, due date, mode of payment is concerned, the same constitute one transaction, namely, transaction of lease where there would be a payment of lease money and consequent Page 25 of 39 RFA 39/2015 With RFA 49/2015 enjoyment of the lease property. The term of the transaction, therefore, is neither parallel nor diverging from the original transaction and is definitely an essential part of the transaction of lease. After all, it is the term of the lease. The Hon'ble Supreme Court considered as to what is collateral purpose in the judgment of K.B. Saha and Sons Pvt. Ltd. vs. Development Consultant Ltd. reported in (2008) 8 SCC 564 and has summarized in paragraph 34 as follows:-
"34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:
1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in Immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
17. As observed by the Hon'ble Supreme Court, an unregistered document which is otherwise required to be registered can be used for collateral purpose as provided under Section 49 of the Registration Act but it would not include the terms of the contract. Clause (5) mentioned in paragraph 34 of the aforesaid judgment covers the present case and this leads to the irresistible conclusion that payment of rent is a term of the contract and when the contract is required to be entered into by execution of a registered instrument and it is done by an Page 26 of 39 RFA 39/2015 With RFA 49/2015 instrument, in that event that instrument unless registered, would not be admissible in evidence for the purpose of proof of any of its terms including rent. The submission of Mr. GN Sahewalla, learned senior counsel for the appellant, therefore, has force.
18. If it is accepted that Ext. 1 being compulsorily registrible under Section 107 of the Transfer of Property Act is not actually registered in that event, it is not an admissible evidence for deciding as to what the agreed monthly rent is and so this document has to be kept outside the zone of consideration for the purpose of deciding as to what the rent is. Be that as it may, the admissibility of Ext. 1 not having been gone into by the learned trial court in otherwise detailed judgment, the findings of the impugned judgment in regard to additional issues No. 1 and 2, therefore, cannot be accepted. It is to be seen now as to whether plaintiff has succeeded to prove that agreed monthly rent was Rs. 2,88,000/- on the basis of other evidence available on record.
19. Plaintiff examined himself as PW 1 and his examination-in-chief is yet a repetition of the pleadings made in the plaint. What has been stated in paragraph 8 of the plaint has been reiterated in paragraph 14 of the examination-in-chief wherein the plaintiffs claimed that defendant had agreed to pay Rs. 1,00,000/- per month for the months of November and December, 2007 and January, 2008. He paid monthly rent of Rs. 2,88,000/- to the plaintiff for the months of February, March, April and May, 2008 but they defaulted in payment of rent from the month of June, 2008 and as such the defendant became a defaulter. He further stated that vide Ext. A, he issued receipt to the defendant Page 27 of 39 RFA 39/2015 With RFA 49/2015 for Rs. 6,46,000/-. There is no break up in the said document but it was for Rs. 70,000/- being the sale proceeds of auction sale and rent of two months at the rate of Rs. 2,88,000/-. Relying on Ext. 10 which is nothing but photocopy of Ext. A, adduced by the defendant, the plaintiff claimed that the receipt was given by him for Rs. 6,46,000/- and that document dated 01.12.2007 was never acted upon by the parties. This witness was cross examined at length. He could not say as to what was the quantum of expenditure incurred by the defendant towards renovation work. He also could not say as to whether Rs. 70,000/- was deposited by defendant in his savings bank account but denied that such deposit was made at his instruction. He stated that he has not submitted any document in support of his statement made in paragraph 14 of the evidence that defendant paid Rs. 2,88,000/- to the plaintiffs from the months of February, March, April and May, 2008. Later on, he stated that he used give money receipt but it was with the defendant. He claimed that an amount of Rs. 1,00,000/- was deposited to his account by the defendant and according to him, this was the rent for one month. This shows that defendant deposited rent in the account of the plaintiff. Nowhere in the plaint or in the examination-in-chief, plaintiff has stated that he received rents for certain months in cash. Normally, such a huge amount to the extent of Rs. 2,88,000/- are not permissible to be paid in cash and such transaction over Rs. 20,000/- is legally permissible only by way of cheque. Yet, if in a given case such amount was paid, though illegally, by the defendant, the plaintiff could have made such specific statement either in his pleading or in his examination-in-chief. He remains silent all along as to when and how did he receive rents for the Page 28 of 39 RFA 39/2015 With RFA 49/2015 months of November, December, 2007 and January, 2008. If the rent was paid by cheque in his account, as done on one occasion, then definitely by producing accounts statement of that particular account or any other account, the plaintiff could have established that he received rents for the months of November, December, 2007 and January, 2008 from the defendant at Rs. 1,00,000/- per month. He has also failed to make averment as to how did he receive rents for the months of February and March, 2008. Even if it is accepted that payment of rent for the months of April and May, 2008 was to the tune of Rs. 2,88,000/- which the plaintiff acknowledged by Ext. A (Ext. 10), in that event, there should be some indication somewhere that plaintiff received rents for the months of February and March, 2008. This is necessary because plaintiff has specifically stated in his plaint that defendant paid rent upto May, 2008 in full and became defaulter only w.e.f. June, 2008. If the payment during the previous period from November, 2007 to March, 2008 was brought on record by the plaintiff, it would have been easier for the learned trial court to arrive at a finding as to what was the amount of the rent, as to what was the due date and as to what was the mode of payment. After all, plaintiff being landlord in an eviction suit, is duty bound to prove that what was the due date and what was the mode of payment.
20. In the case of Tushar Kanti Dey (supra), this court while considering a similar case of eviction of a tenant, arrived at the definite finding that unless due date and mode of payment are proved, it is not possible to adjudicate as to whether defendant/ tenant was a defaulter. This is more so because, in a catena of cases it has been observed by this court that even if there is a written Page 29 of 39 RFA 39/2015 With RFA 49/2015 agreement laying down specific mode of payment and due date, in those cases by practice over long period of time, the parties get the mode of payment changed and on certain occasions, landlord himself wants that rent be paid for 2/3 months at a time. The finding of this court in the case of Tushar Kanti Dey (supra) can be profitably quoted for the same. Paragraph 6 of the judgment in the case of Tushar Kanti Dey (supra) is quoted below:-
"6. To buttress his argument above mentioned, Mr. Banerjee placed reliance on a decision of this Court in Upendra Chandra Deb Roy v. Smti Subhashini Deb Roy and two ors. reported in (1989) 2 GLR 7 and stated that ratio of the said case is squarely applicable in this case. On perusal of the above cited case, it is found that in the said case this Court allowed the Revision Petition holding in paragraph 8 that "..... The most important fact that has to be proved, therefore, is the date when the rent actually fell due". Without determination of the aforesaid fact, it is difficult or rather impossible to hold a tenant defaulter, because in that case, the very starting point from which the period of a fortnight within which the rent has to be paid runs is not available. The determination of the date when the rent actually falls due in a particular case depends upon the arrangement or agreement between the parties. The rent may be fixed on monthly basis but that by itself will not indicate the date when the rent will fall due. The parties might mutually agree that the rent would be paid monthly say within a week or a fortnight or a month or at any other interval from the expiry of the month for which it is due. There may be cases where no due date is fixed between the parties for payment of the rent and the rent is paid on demand to the landlord from time to time. There may be cases where the landlord, due to various reasons or for his own convenience wants the rent to be paid for two or three months at a time either in advance or on expiry of the period for which it is due. There may also be cases where the landlord resides at some place far away from the place where the house is situated and makes an arrangement with that the tenant that the rent would be paid to him from time to time as and when he visits the town and demands the payment thereof instead of remitting the same month to month or at any other interval to the place of his residence. Such contracts or arrangements are not unknown or uncommon. Nor are they always in writing. The landlord has therefore, to prove by adducing suitable evidence as to when the rent fell due. Where there is no agreement in writing fixing the date for Page 30 of 39 RFA 39/2015 With RFA 49/2015 payment of the rent, the landlord has to prove the same by other evidence. In considering the evidence of the landlord in such cases, the Court may also take into account the conduct of the parties. There may be evidence before the Court to show that the rent was being paid at varying intervals which the landlord has been accepting without any protest or grievance. That may indicate that there was no arrangement between the parties to pay the rent by any specific date. In such cases, the Court can infer and imply the agreement between the parties to pay the rent at varying intervals on demand from the landlord at his convenience. Even if it is shown that there was some agreement or arrangement to pay the rent within a specified time from the expiry of the month, conduct of parties spreading over fairly long period of time to the contrary without any protest or objection from either party may indicate that the agreement or arrangement in regard to the payment of rent between the parties was modified. A landlord who continues to receive the rent at varying intervals from the tenant without any objection whatsoever for several years cannot be permitted to suddenly turn back and say that the arrangement between him and his tenant was otherwise and seek eviction of a tenant on the ground that he was a defaulter.........."
21. Having noted that in an eviction suit plaintiff, is duty bound to prove the existence of landlord and tenant relationship and thereafter to prove the due date and the mode of payment, it is necessary to see as to whether apart from his own evidence, any other witnesses of the plaintiffs have come to his rescue on these grounds. PW 2, Advocate A.A. Mir, has been examined by the plaintiffs in title suit No. 1/2009. The same person has been examined as DW 1 in money suit No. 47/2009 on behalf of the same person. While in title suit No. 1/2009 he stated that he being a long time friend and a co-party worker of the plaintiffs, was asked to prepare the document and he drafted the document. Terms and conditions are laid down in the document Ext. 1 which were signed by the parties and their witnesses and thereafter he gave his own signature as a witness. He proved his signature at the last page of Ext. 1 which is page No. 8. Though he Page 31 of 39 RFA 39/2015 With RFA 49/2015 did not say as to whether he remained present during the time of execution in his examination-in-chief but in cross examination he claimed that he was present when the execution of document had taken place. But in his evidence as DW 2 in regard to the same transaction, he stated in course of cross examination that he did not know Laxmipat Choraria earlier. He knew only Mr. Chittaranjan Patowary, his friend. He stated in no uncertain words that he did not take part in the negotiation or deal between the plaintiff and the defendant. He was asked to act as an Advocate and that it is Mr. Chittaranjan Patowary (plaintiff in title suit No. 1/2009) who had asked him to draft the tenancy agreement and accordingly he drafted the agreement dated 02.11.2007. He at the same time, claimed that Ext. D running over 5 pages though contains his signature at the last page, was not prepared by him. He admitted that he did not ask the parties to give signatures in each and every page of Ext. 1 and Ext. D. However, it is necessary that document is to be executed by parties giving signatures in each and every page. He said that last page of Ext. 1 and Ext. D were taken by him but he could not remember as to whether Ext. 1 and Ext. D were typed document. He laid emphasis on blackening on the page 5 of Ext. D and said that there was tempering of the document which was not there in the original document. Be that as it may, it is conspicuous that DW 2 did not claim to have been present when the terms and conditions were settled between the parties and so this witness is of no help to the plaintiff in his endeavour to prove the terms of the contract including the quantum of rent.
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22. The next witness is one Ranjit Chakraborty who was examined as PW 3 by the plaintiff. He said that after the defendant of title suit No. 1/2009 had taken over possession of the premises, he worked there for one month as supervisor when renovation work was done and then he was removed from service. He said that there are 14 rooms out of which 6 rooms are A.C. rooms and 8 rooms are non - A.C. rooms and according to him, monthly rental for any premises of that area was Rs. 35 - 40/- per sq.ft. He did not say anything about the terms of the contract between the parties insofar as it relates to the quantum of rent. He has been cross examined, of course, at length to shake his credibility in regard to his opinion that prevalent market rate for letting out a house there was at the rate of Rs. 35-40/- per sq.ft. per month.
23. Dinesh Das has been examined as PW 4 by the plaintiff who was a Security Personnel of Hotel Pragjyotish. He said that defendant took over possession of the hotel on 01.11.2007 and thereafter new management sold the old goods and articles in his presence in auction and the sale proceed was Rs. 70,000/-. He also stated that monthly rent in the area was at the rate of Rs. 35- 40/- per sq.ft. In course of cross examination, he could not give any convincing reply or any supporting document to show that the rent rate in those areas is Rs. 35-40/- per sq.ft. He also could not produce any document to show that he is a trained security personnel. From the trend of cross examination it appears that the defendant wanted to prove him to be a third party who had no knowledge about the transaction whatsoever.
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24. Mahendra Patowary, son of KC Patowary has been examined as PW 5. Plaintiff has submitted three paragraphs towards his examination-in-chief which shows that the basic purpose for examining the witness was to prove the monthly rent. He said that in adjoining areas, some house was let out at the rate of Rs. 22/- per sq.ft. per month and in case of some other house, the monthly rent was calculated at the rate of Rs. 23/- per sq.ft. per month. He has also been cross examined and thereupon it came out that he is none other than the younger brother of the plaintiff and that is why a suggestion was given to him that he was telling a lie to support his elder brother.
25. The 18 documents relied on by the plaintiff contains various tenancy agreements like Ext. 4, Ext. 5 and Ext. 6 with respect to different premises. Ext. 7 is the scavenging paying receipt, Ext. 8 is Sales Tax clearance certificate, Ext. 9 is the Trade Licence, Ext. 10 is the photocopy of Ext. A money receipt for Rs. 6,46,000/-, Ext. 11 and Ext. 12 are orders passed in Misc. (J) case and Misc. Appeal arising there-from. The plaint of money suit No. 47/2009 which was analogously tried, has been exhibited as Ext. 13 and written statement of that suit has been exhibited as Ext. 14. The complaint of CR No. 2866/2009 is the Ext. 15 and the order passed therein has been exhibited as Ext. 16. Ext. 17 is the NOC given by the Fire Service Organisation and Ext. 18 is the copy of judgment passed in WP(C) No. 361/2009. Ext. 18 only goes to show that there was an attempt earlier for cancellation of fire service licence of the defendant at the instance of the plaintiff which only goes to show that there is tension between the parties for over a quite substantial period of time.
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26. What is required for this court to understand as to what was the mode of payment, what was the due date and what was the actual rate of rent. Ext. 1 the unregistered document has been relied on by the plaintiff to show that rate of rent was Rs. 2,88,000/- per month and it runs over 8 pages. The last page is signed by both sides along with the witnesses. One of the witnesses is Advocate A.A. Mir who is none other than PW 2 in title suit No. 1/2009. There is no reason as to why a learned Advocate who is described to have practised over 34 years in the civil side did not urge the parties to give signatures on all the pages and because of that, perhaps, there was scope for manipulation from both sides. The defendant in the present case has come forward with a different version of the same agreement dated 02.11.2007. Both the parties agree that there was an agreement dated 02.11.2007 for commencement of tenancy w.e.f. 01.11.2007. Both the parties agree that the suit premises are same. But when the plaintiff says that the Ext. 1 is that agreement, defendant says that the real agreement is Ext. D. Incidentally, last page of Ext. 1 is same as that of Ext. D. Only difference is when Ext. 1 reads the last page as page No. 8 within third bracket, the last page of Ext. D reads as page No. 5 within a similar third bracket. Of course, there is a residue left of pre-existing third bracket above page 5 which is under a black mark. Mr. AC Sarma strenuously urged that there was manipulation of Ext. 1 by the defendant and they prepared a new document keeping the last page intact. To hide such manipulation, there was blackening at the top of the last page and it was shown to be page No. 5 whereas it was really page No. 8. Whether there was any manipulation or not or whether there was any forgery is Page 35 of 39 RFA 39/2015 With RFA 49/2015 a subject matter of a pending criminal proceeding before the competent court and so it is neither advisable nor proper to make any comment in regard thereto. The question remains as to whether the Ext. 1 can be relied on for the purpose of determining the monthly rent payable by the defendant. Avoiding the question as to forgery or manipulation of the agreement dated 02.11.2007, it is clear from observation made above that the document being compulsorily registrible under Section 107 of the Transfer of Property Act, 1872 and not having been registered in accordance with law, it suffers from the rigour of Section 49 of the India Registration Act, 1908 and consequently Ext. 1 cannot be relied on for the purpose of proving that monthly rent for the suit premises was Rs. 2,88,000/- per month. Plaintiff has failed to prove any other document or oral evidence to prove that the monthly rent was Rs. 2,88,000/-. At the cost of repetition, it is stated here that had the proof as to payment of rents for the earlier months like November, December, 2007 and January, February and March, 2008 been placed on record either by producing account statement of the bank account or by counter foil of money receipt or any other document or by appropriate oral evidence, in that event it would have been possible on the part of the first appellate court to decide as to what is the quantum of rent in the present case. So it cannot be said that there is sufficient evidence on record to arrive at a finding as to what is the monthly rent.
27. At least one thing is admitted in the present case. It is that defendant is a tenant of plaintiff with respect to the suit premises. There is no dispute about the landlord and tenant relationship. If there is tenancy, there must be some rent Page 36 of 39 RFA 39/2015 With RFA 49/2015 either monthly or otherwise and there must be some mode of payment and due date. Of course, in a given case, as discussed above, there may not be a fixed mode of payment or there may not be a fixed due date but at least there will be a fixed rate of payment. From consideration of the evidence of the plaintiff and excluding Ext. 1 from the purview of consideration because of Section 49 of the Registration Act, 1908, there is no material whatsoever before the court to arrive at a finding as to what was the agreed rent of the suit premises at the commencement of the tenancy. The High Court, therefore, in exercise of power under Section 107 of the Code of Civil Procedure is not in a position to give a finding as to the quantum of rent. Unless rent is proved, it is not possible to hold as to whether the tenant is defaulter or not. The suit having been instituted basically on the point of default of rent, unless there are materials to hold that the defendant was a defaulter, the only recourse open to this Court as to remand the matter to the learned trial court by setting aside the impugned judgment to give opportunity to both sides to lead evidence in respect of their respective cases. The impugned judgment insofar as it relates to title suit No. 1/2009, therefore, is hereby set aside and the matter is remanded to the learned trial court for giving opportunity to both sides to lead evidence.
28. RFA No. 49/2015 has been filed challenging the judgment and decree dated 15.06.2015 passed by the learned trial court dismissing the money suit on the ground that Rs. 20,00,000/- paid by the plaintiff of that suit to the defendant of the suit was really refundable interest free deposit and not a loan agreement at all. The document has been shown to have been executed with Mr. AA Mir as Page 37 of 39 RFA 39/2015 With RFA 49/2015 a witness. Mr. Mir having claimed in his evidence that he drafted the agreement, at the same time he stated that pages 1 to 4 of Ext. D were not his creation. He refused to say that he was present during transaction between the parties and he did not see the transaction of Rs. 20,00,000/- as well. Once, Ext. D has entered into rough weather and the witness says that he did not draft the document and it was subsequently manipulated irrespective of whether the allegation made by DW 1 is correct, it can be said that transaction as to Rs. 20,00,000/- being money loan at least has not been proved. It may be probable that Rs. 20,00,000/- was paid by the defendant of title suit No. 1/2009 as security deposit for the tenancy and in that event, he will be entitled to get the same along with the expenditure incurred by him in making renovation of the hotel. The learned trial court has candidly held that Laxmipat Choraria failed to prove as to what was the actual expenditure incurred by him in making the renovation and that is why a lump sum amount of Rs. 50,00,000/- was granted by the learned trial court. Such granting of Rs. 50,00,000/- as lump sum amount does not inspire confidence of the appellate court. If any amount is claimed by the defendant of title suit No. 1/2009 being the plaintiff of money suit No. 47/2009, may be at liberty to lead evidence, more particularly, when he has laid foundation in the written statement that he made expenditure of Rs. 1 Crore for renovation of the building. This would not come in the purview of the money suit No. 47/2009. The ultimate result is that since Ext. D has not been found to be acceptable by the learned trial court, there was no other evidence on record to come to a finding that plaintiff of money suit No. 47/2009 advanced any loan of Page 38 of 39 RFA 39/2015 With RFA 49/2015 Rs. 20,00,000/- to the plaintiff. The dismissal of the suit by the learned trial court, therefore, does not warrant any interference. The same set of evidence as relied on in title suit No. 1/2009 does not contain any material whatsoever to show that any loan was advanced by the present appellant. This appeal stands dismissed.
29. No order as to costs. Interim order passed earlier stands automatically vacated.
30. The amount of Rs. 5,00,000/- deposited by the appellant herein before the learned Executing court if not already withdrawn by the Decree Holder shall be returned to the Judgment Debtor.
31. Since it is a matter of 2009, the parties shall appear before the learned trial court on 1st April, 2016 and the learned trial court shall endeavour to dispose of the suit afresh within a further period of 6 (six) months from the date of receipt of records.
32. Send down the lower court records immediately.
JUDGE BiswaS Page 39 of 39 RFA 39/2015 With RFA 49/2015