Delhi High Court
State Bank Of India vs Ashok Kumar Gupta And And Anr. on 6 March, 1992
Equivalent citations: II(1992)BC21, 47(1992)DLT317, 1992RLR158
Author: D.P. Wadhwa
Bench: D.P. Wadhwa
JUDGMENT D.P. Wadhwa, J.
(1) This is defendant's appeal against the judgment and decree dated 9 July, 1991 of the learned Additional District Judge, Delhi, whereby he decreed the suit of the plaintiff for possession of the suit premises. The two plaintiffs are now respondents in the appeal.
(2) The plaintiffs claiming to be owners and landlords of certain property being factory premises at G. T. Karnal Read Industrial Area, Delhi, filed 'a suit for possession against the defendant. They said that they had led out a portion of the factory premises consisting of basement, ground floor and mezzanine floor to the defendant on 20 September 1978 at a monthly rent of Rs. 6,500. The premises were let out for a period of 10 years. It was said that the tenancy was monthly tenancy in accordance with the English calendar month and starting from the first of every such month and ending on the last day of that very month. Then the plaintiffs said that though the tenancy of the defendant expired on 20 September 1988 but the defendant continued to occupy the premises and the plaintiffs, therefore, terminated the tenancy by notice dated 2 May 1989 sent by registered post and served upon the defendant on or about 10 May 1989. Since the defendant failed to vacate, the plaintiffs filed the suit valuing the suit for purposes of court fee and jurisdiction at Rs. 78,000 being the yearly rent of the premises. The plaintiffs also said that cause of action arose on the expiry of the period allowed in the notice dated 2 May 1989 terminating the tenancy of the defendant.
(3) The defendant said that the tenancy was initially for a period of five years commencing from 20 September 1978 on which date the lease deed was executed and thereafter the defendant continued to be a tenant as rent up to October 1988 had already been received by the plaintiffs. The defendant also said that civil court had no jurisdiction in the matter as the amendment (Act 57 of 1988) to the Delhi Rent Control Act, 1958, which came into force on I December 1988, was prospective and did not apply to the tenancy created before that date. The defendant then said that the tenancy had not been terminated as per the provisions of law and further that the suit was malafide and had beer. filed with an intention to harass the defendant. It said payment of rent "up to December 1989 had been made by means of bankers cheques". The defendant also gave details of Ii cheque? as to how the rent had been paid after October 1988. Except for the one cheque which is dated 19 November 1988 all other cheques are between the dates first to fourth of every English calendar month. Last two cheques are both dated 3 August 1989. From these details it would appear that rent up to September 1989 had only been paid by means of bankers cheques. As to for what period rent had been paid it is not quite material as it had been the admitted case that cheques mentioned by the defendant had been sent back by the plaintiffs. The defendant had further pleaded that a lease deed was executed and delivered to the plaintiffs and the lease for an initial period of five years reckoned from 20 September 1978 and after the expiry of five years the defendant was entitled to renew the lease deed for a further period of one year each on the same terms and conditions. It was stated that no period for lease was fixed and the lease was, thus, perpetual lease.
(4) The plaintiffs in their replication did not dispute the factum of existence of lease deed and it being with them. They, however, generally denied the pleas raised by the defendant.
(5) On pleadings of the panties the following issues were framed :--
1. Whether the plaintiff terminated the contractual tenancy of the defendant as alleged in the plaint ?
2.Whether civil court has no jurisdiction to try the present suit as alleged in the preliminary objection of the written statement ? OPD
3.Whether the plaintiff is entitled to the relief of possession of the property in dispute ? OPP
4.Relief.
(6) In support of their case the plaintiffs examined plaintiff No. I himself and also brought on record a few documents. Defendant's evidence consisted of the statement of its Branch Manager (7) The plaintiff Ashok Gupta said in his statement that initially the premises were let out for a period of five years and it was renewed thereafter every year continuously for five years with an option with the defendant making the period of tenancy for ten years which period he said expired on 19 September 1988. Then he said it was a monthly tenancy commencing from the first of every English calendar month and ending with that. He said an agreement of lease was entered into between the parties but the same was in possession of the defendant. He denied the suggestion that the agreement was in his possession and that he was not producing the sams. The Branch Manager, Mr. Chander Shekhar Trivedi, of the defendant said the lease deed was executed on 20 September 1978 and that was for a period of five years, the tenancy commencing from 20 September 1978. He said after the expiry of five years the lease was to be renewed at the option of the defendant and that no period was fixed after which the bank could give the premises. He said the lease deed is not with the cefendant. He also said that the rent was paid for the period commencing from 20th of every English calendar month and that though there was no fixed date for making the payment of the rent it was to be paid before 20th of the month. According to this witness also the tenancy was monthly but he said it commenced from the 20th of every English calendar month and ending with the 19th of next month.
(8) Of the documents filed only four would be relevant. In letter Ext. Public Witness 1/2 which is dated 11 December 1986 from the plaintiffs to the defendant it is mentioned that the premises were given on 20 September 1978 for a period as per lease agreement and now these were required for the use of the plaintiffs themselves. The reply to this by the defendant bank is Ext. Public Witness 1/3 and is dated 23 December 1986. Here the bank says that the initial period of lease was five years with an option with the bank to renew it for five further periods of one year each and that the agreement would expire on 19 September 1988. Again by a letter dated Ii June 1988 (Ext. Public Witness 114) plaintiffs asked the bank to vacate the premise stating that the bank in its letter dated 23 December 1986 had mentioned that the agreement would expire on 19 September 1988. The plaintiffs, therefore, wanted the bank to vacate the premises up to 20 September 1988. Last document is the notice (Ext. Public Witness 1/5) dated 2 May 1989 sent by an Advocate on behalf of the plaintiffs purporting to terminate the tenancy in question. In this notice it is stated that the tenancy was monthly commencing from first day of each English calendar month and ending on the last day of the same month. The notice then mentioned that the plaintiffs did not want to keep the defendant as a tenant and "do hereby terminate your tenancy by the end of 31st day of May, 1989, i.e., on expiry of your tenancy month". Then last para is as under :-- "I,therefore, call upon you to please vacate the performances and hand over its vacant possession to my clients by the end of 31st day of May, 1989, i.e, on the expiry of your tenancy month failing which legal action for your ejectment from the premises will be taken against you at your cost and liability. If, however, according to you your tenancy be ending on any other date than as mentioned above then you should please treat your tenancy terminated on the close of such day of your tenancy month which will expire after the expiry of 15 days of the service of this notice on you and you should please vacate and deliver vacant possession of the premises to my clients on the expiry of that day on which your tenancy comes to an end according to you."
(9) There is no dispute that this notice was received by the defendant bank on 10 May 1989.
(10) The Amending Act 57 of 1983 provided that nothing in the Delhi Rent Control Act shall apply to any premises, whether residential or not, whose monthly rent exceeds three thousand and five hundred rupees. Such premises, therefore, came outside five purview of this Act. A Bench of this court in Mrs Nirmaljit Arora vs. M/s. Bharat Steel Tubes Ltd. 1991 (1) Delhi Lawyer 183 (DB), upheld the validity of this provision. A civil court, will, therefore, have jurisdiction to try a suit for ejectment of tenant in respect of the premises whose monthly rent exceeds Rs. 3,500. There are provisions of the Transfer of Property Act, 1882, would apply. In M!S. Interocean Shipping Co vs. Lt. Col. Y. R. Puri (R. F. A. No. 206191, decided on 8 August 1991) this Court has taken a similar view. The present suit, therefore, was maintainable and civil court had jurisdiction to try the same.
(11) The most controversial issue is that No. 1. There is challenge to the validity of the notice (Ext. Public Witness 1/5) itself and it is contended by the appellant defendant that it did not terminate its tenancy. It is, no doubt, true that the plaintiffs were not sure of their ground as to on which date of the month the tenancy started and when it ended though they said that it was according to English calendar month. The plaintiffs have been vacillating in their stand on this. Mr. Anand had indeed strong comments to offer on this attitude of the landlords apart from his contention that it was an yearly tenancy. He said according, to different stands of the plaintiffs the tenancy was fluctuating, notice was vague and was bad for uncertainty. He said two different stands of the plaintiffs could not be reconciled, He suggested that if the plaintiffs in the notice terminating the tenancy had used the language as under in the alternative then perhaps the notice could be valid : "IF according to you, your tenancy commences and ends on any other day of the English calendar month, then please treat this notice by having 15 clear days notice and your tenancy would be deemed to have been terminated on the expiry of such tenancy month according to you."
(12) Now if we refer to section 106 of the Transfer of Property Act, 1882 (for short 'the Act') and if the tenancy is from month to month it would be terminable on the part of the plaintiffs landlords by giving 15 days notice expiring with the end of a month of the tenancy. The content on of the defendant in brief is that it was not so. But then if we examine the state of mind of the plaintiffs it cannot be said that they were absolutely wrong in their preception as to when the tenancy would start and end. At one stage they had in fact admitted that tenancy started from 20th of each English calendar month ending with 19th of next month. But then the defendant when it says that the payment of rent had been made up to December 1989 it will certainly mean that rent was paid as per each English calendar month. It is difficult to accept the contention of the defendant that when it said the rent for December 1989 had been paid it meant rent for a period up to 19 December had been paid. It does apear to us that at some stage the defendant was giving and the plaintiff accepting the rent on the basis of an English calendar month as if the tenancy started from first of every such month and ending with the end of that month. In any case this conduct did raise a doubt in the mind of the plaintiffs for them to say that if the defendant though the tenancy month to be ending on any other date than 31st May, 1989 as mentioned in the notice, 'then the defendant should treat its tenancy terminating on such day of his tenancy month which will expire after 15 days of service of the notice. Thus, according to the language of this notice if the defendant thought that its tenancy ended on 19 May 1989 then as the notice was received on 10 May . 1989 the tenancy of the defendant would stand terminated only on 19 June 1989. This is so as by this time the defendant had 15 days notice expiring with the end of tenancy month on 19 June 1989 which month had started on 20 May 1989. We, 'therefore, do not find any fault in 'the notice.
(13) We do not find any merit in other places raised by the appellant (1) that its tenancy was from year to year terminable on the part of the landlords by six months notice expiring with the end of a year of the tenancy, and (2) that having accepted the rent after the expiry of the initial period of ten years its tenancy got renewed from year to year under section 116 of the Act.
(14) The appellant is running a branch of its bank at the premises in question. The lease is not for agricultural or manufacturing purposes which under section 106 of the Act shall be deemed to be a lease for year to year in the absence of any contract to the contrary. For any other purpose the lease shall be deemed to be a lease from month to month. It is an admitted case that lease deed was executed between the parties, There is, however, a dispute in whose possession the document is. When in its written statement the defendant bank alleged that the lease deed was executed by it and delivered to the plaintiffs, in the replication the plaintiffs landlords did not specifically dispute this contention. Again during course of the proceedings before the trial court the defendant bank required the plaintiffs to produce the lease deed and filed an application for the purpose under Order 11 Rule 14 read with section 151 of the Code of Civil Procedure. The plaintiffs did not file any reply to this. The trial court passed orders on 20 March 1991 stating that counsel for the plaintiffs had said that the plaintiffs did not possess the lease deed and it was so stated by the first plaintiff in a statement during the course of recording of his evidence. The court, therefore, held that since in those circumstances the plaintiffs did not possess the lease deed there was no force in the application for production of the lease deed which application the court rejected subject to legal consequences. From the conduct of the plaintiffs the lease deed presumably appears to be in their possession. But then nothing turns on that inasmuch as it is nobody's case that it was a registered document. Under section 107 of the Act, a lease of immovable property from year to year. or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by registered instrument or by oral agreement accompanied by delivery of possession. In this connection provisions of the Registration Act, 1908, may also be referred to. Under clause (d) of section 17 of that Act, leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, shall be compulsorily registered. If that is not done, then under section 49 of that Act the document shall not affect any immovable property comprised therein, or be received as evidence of any transaction affecting such property.
(15) In Burmah Shell Oil Distributing (now known as Bharat Petroleum Corporation Ltd.) v. Khaja Midbat Noor and others, , the court was also concerned with the question of the validity of a notice to the lessee. The main question involved was whether there was a valid termination of the lease. In that case the lease was for a period of ten years with a light of renewal for a further period of five years. After the expiry of ten years no instrument was executed by the parties and the lessee continued to remain in possession of the suit proerty. The Lesser accepted the rent and allowed the lessee to continue. The court referred to the provisions of sections 106, 107 and 116 of the Act and held the lessee, on facts of the case, continued to remain in possess in of the property on payment of rent as a tenant from month to month. The lease was, therefore, stood renewed from month to month. The court also examined the validity of notice terminating the tenancy with reference to the date when the tenancy commenced and when it expired every month. The court observed that notice must be read in the context of the facts of each particular case having regard to the situation of the parties to whom it was addressed. It referred to a decision of the Judicial Committee in Harihar Banerjee v. Ramsashi Roy, Air 1918 P.C. 102, and quoted the following passage with approval :-
'........that notices to quit, though net strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to. a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean. to tenants, presumbaly conversant with all these facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed ut res magis valeat quam pereat."
The court, thus, held that "this is how the notices should be literally construed".
(16) In Bhagabandas Agarwalla v. Bhagwandas Kanu and others, , a question that arose lor determination was whether the notice to quit was invalid as not being in conformity with the requirements of section 106 of the Act. A notice to quit in so far as it is material was in the following terms :- "YOU are hereby informed by this notice that you will vacate the said house for our possession within the month of October 1962 otherwise you will be treated as trespassers from 1st November in respect of the said house."
(17) The court also quoted with approval the above passage from the judgment of the Judicial Committee in Harihar Banerjee case and observed that it was settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. The court held that the notice was valid one in the circumstances and it effectively determined the tenancy from the mid night of 31 October 1962. In that case also the tenancy was admittedly a monthly tenancy. The court observed that the tenancy was sought to be determined on the expiration of the month of October 1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required under section 106 of the Act.
(18) Mr. Arun Mohan, learned counsel for the respondent landlords, also referred to a decision of the King's Bench Division in Addls v. Burrows. (1948) K.B. 444. The facts may be taken from the head note and were as follows :- "BY an agreement, dated February 14, 1944, the plaintiffs let premises at the yearly rent of 250L to the defendant "from the 1st day of January, 1944, to 30th day of June, 1945, for the term of one year and so on from year to year until the tenancy be determined at the end of the first or any subsequent year by one of the parties giving to the other of them six calendar months previous notice writing." The agreement was on a printed form with the words "from the 1st day of January, 1944, to the 30th day of June, 1945." typed in. On June 28, 1945, the plaintiffs gave the defendant notice to quit at the expiration of the year of your tenancy, which will expire next after the end of one half year from the service of this notice." The defendant not having yielded up possession the plaintiffs brought proceedings on March 21, 1947, by which they claimed that under the notice to quit the tenancy had ended on June 30, 1946."
The question was if the notice to quit, which the plaintiffs gave, a good notice to quit. The court held (1) that the notice to quit was not invalid as being too vague, and (2) that the tenancy, therefore, came to an end on June 30, 1946.
(19) In support of his submissions Mr. Anand, learned counsel for the appellant, relied on two decisions, both of learned Single Judges, one was that of the Karnataka High Court in Francis Jerone Feranandis v. Anthony Pedad Cardoza, , and of this Court in Sudarshan Kumar v. Rattan Lal Dhingra. . In the Karnataka case notice to quit said that " ....... the lease in respect of suit premises has been terminated at the end of the tenancy month which will expire next after the end of the 15th day from the date of service of the notice." The court there observed that a notice giving mere 15 days time by itself will not answer the requirement of section 106 of the Act but it must also indicate that the 15 days period must expire with the end of the tenancy month. We do not think that is a case before us. This judgment is clearly distinguishable and notice there meant that the dale of expiry of the end of the tenancy month would be a fluctuating one depending upon the date on which the notice was served upon the tenant, and in other words, the tenant was not told definitely as to when exactly his tenancy would come to an end which was corresponding to the expiry with the end of the tenancy month. because. what was stated in the notice was that the end of the tenancy month would expire next after the end of 15th day from the date of the service of the notice. The court held this was not the requirement of section 106 of the Act. This is not so in the impugned notice before us whatever may be the view taken by the Karnataka High Court in the case before it. Ie Sudarshan Kumar case one of the questions was whether on the pleadings of the landlord himself he had shown that the tenancy was validly terminated. The court then examined the provisions of section 110 of the Act and also section 9 of the General Clauses Act, 1897, and also section 12 of the Limitation Act, 1963. That judgment is not applicable in the present case before us as we are not much concerned with the date of either commencement of the tenancy or the date of end of the month of the tenancy.
(20) It is not, therefore, that notice to quite is to be construed either liberally or strictly. If must, however, clearly and unambiguously convey the intention of the landlord to terminate the tenancy and that in the case of tenancy from month to month it will be terminable by fifteen days notice expiring with the end of a month of the tenancy. The notice can certainly leave the choice with the tenant as to when he consider his tenancy to commence and end and that it should be terminable by fifteen days notice expiring with the end of that month of the tenancy. We may also note another argument of Mr. Arun Mohan though made in the alternative. He said after the notice to quit was served upon the tenant the landlords could not sue for eviction as that time Delhi Rent Control Act was applicable to the suit premises and the tenant was protected by that Act. He said the tenant was then a statutory tenant enjoying protection under the Delhi Rent Control Act and here was, therefore, no question of holding over as was sought to be contended by Mr. Anand. There is, we find, substance in this submission.
(21) The notice in question leaves a choice with the tenant. It meets the requirement of section of 106 of the Act. The impugned notice, therefore, validly terminated the tenancy of appellant bank which was a tenancy from month to month. The appeal, therefore, fails and is dismissed. The judgment and decree of the trial court are affirmed. We make, however, no order as to costs.
(22) Since the appellant bank is running its Branch there and there may be many clients of the bank who may be put to a great deal of difficulty if the appellant bank is asked to leave immediately, we will give six months time to the appellant bank to vacate and band over vacant possession of the premises to the respondents.