Bombay High Court
Canara Bank vs Yusuf Abdulhussein Arsiwala (Deceased ... on 2 August, 1999
Equivalent citations: 1992(3)MHLJ510, AIR 2000 BOMBAY 71, (1999) 3 MAH LJ 510 1999 (3) BOM LR 447, 1999 (3) BOM LR 447
Author: D.G Deshpande
Bench: D.G. Deshpande
ORDER D.G Deshpande, J.
1. Heard advocates for the petitioner/bank and respondents.
2. Three questions are involved in this case viz. (I) whether the suit premises were given to the petitioner/bank for the purpose of doing banking business; (2) whether the petitioner/bank has stopped banking business and are using the premises for godown purpose; and (3) whether there is change of user of the premises by the petitioner.
3. These questions arise because admittedly the petitioner/bank have denied that there was any change of user and the findings of both the trial Courts are against the petitioner/bank. Consequently these questions are required to be decided on the basis of record and arguments advanced by both the advocates.
4. Exhibit 'A' is the notice dated 22nd July 1974 given by the respondents/landlords to the petitioner/bank for vacating the premises on the ground of change of user. In that notice it is contended that the suit premises were let out specifically for the purpose of office only, and in fact till recently the petitioner had been carrying on their banking business therein. But since 1966 the bank has shifted to some other premises and the petitioner has been using the suit premises as a godown. The bank gave reply to this notice vide Exhibit 'B', but it was merely an acknowledgment of a notice and no reply because the bank contended that they had referred the matter to their premises Section at Northern Zone Office and the respondents would get reply in due course. Admittedly, till respondents filed their suit before the Small Cause Court Bombay in 1975, no reply was given by the petitioner/ bank to this notice on merits. Therefore, there is no denial of facts asserted by the respondents in their notice Exhibit 'A'.
5. Secondly, in paragraph No. 2 of the plaint at Exhibit 'C' the respondents have repeatedly asserted and contended that the suit premises were let out specifically for the purpose of petitioner's office only and the petitioner did not carry on business of banking in these premises. But since 1966 the petitioner shifted to other premises and has been using the premises as a godown. The petitioner/bank filed their points of defence to the plaint and though in para 6 there is a denial of these allegations, it is pertinent to note that there are no pleadings or assertions by the petitioner that the premises were let out for banking business and also for godown purpose. What they have stated therein is that after shifting their banking business from the suit premises the earlier landlord allowed the petitioner to use the suit premises for keeping stationery and other records.
6. The evidence adduced by the parties must be scrutinised with reference to their pleadings. The petitioner/bank do not plead anything regarding existence of an agreement between them and the earlier landlord or owner about user of the premises for doing banking business and also for other purposes including godown purpose. The petitioner did not adduce any evidence in that regard. Apart from this, when they positively asserted that previous landlord allowed them to use the suit premises for keeping stationery and other records, the petitioner did not examine previous landlord as to whether this permission was in writing or in oral. When the same was given and who had accepted on behalf of the said bank or on other ancillary points. Therefore there is no evidence from the petitioner regarding so called permission granted by the landlord in that regard and admittedly, there is no evidence to show that there was an agreement between the petitioner and landlord for using the premises for banking business purposes and also for the purpose of godown. To the contrary, right from the stage of first notice Exhibit 'A' till the stage .of pleadings and evidence, the respondents have consistently stated that the suit premises were let out for the purpose of doing banking business and not for godown purpose.
7. In view of these facts, the findings of the trial Courts are required to be upheld that the suit premises were let out to the petitioner for banking purpose only and not for the purpose of godown. Hence point No. 1 is required to be answered in the negative and against the petitioner.
8. So far as point No. 2 is concerned, there is no dispute that the petitioner has stopped doing banking business in the suit premises and they are using the same as a godown. Therefore, point No. 2 is required to be answered in the affirmative.
9. The crucial question now left is, whether this amounts to a change of user. According to the petitioner's advocate, the banking business includes storing of stationery. He relied upon the judgments of Supreme Court Mohan Lal v. Jai Bhagwan and Gurdial Batra v. Raj Kumar Jain wherein in the first judgment the Supreme Court has held that changing business of English liquor-vend to general merchandise would not attract any mischief or detriment or impairment of the shop. And in the second judgment the Supreme Court has held that changing business of cycle shop to a sale of television would not amount to change of user. The Supreme Court has also held that such a change of user would not cause any mischief or detriment or impairment of the shop in question.
10. In my opinion both these judgments are of no help to the petitioner. Firstly, because the petitioner did not allege in their written statement that there was any specific agreement between them and the landlord, that the petitioner would be using the premises as a godown. Secondly according to them, the landlord granted them permission to use the premises as a godown. But the petitioner did not adduce any evidence in that regard. Thirdly it is an admitted fact that the petitioner stopped doing banking business in the suit premises long before institution of the suit. And lastly there is no dispute that the premises are being used for godown only.
11. When the respondents came out with a specific case that the premises were let out for banking business and when the petitioner/bank does not allege any specific agreement to the contrary between them and the landlords, then it has to be presumed that the petitioner/bank admitted that letting out was only for the purpose of doing banking business. Therefore, stopping banking business from the suit premises, shifting banking business to other premises and using those premises as a godown are the circumstances sufficient to hold that there is a change of user. Admittedly, user is against the terms of the agreement. It is also obvious that the premises are not being used for the purpose of banking. Using the premises only as a godown is definitely a change of user.
12. It was contended by the counsel for the petitioner that apart of the banking business viz. writing of accounts etc. is being carried on in the suit premises by the staff of the petitioner bank. My attention was invited by the counsel for the petitioner to the evidence of the petitioner's witnesses. However, this evidence is required to be rejected because admittedly there is no electric supply to this premises and it is impossible to hold that in the absence of electricity any banking business can be carried out in the suit premises or any business connected with banking can be carried out in the suit premises for a long period of ten years before Exhibit 'A' and till this day. In view of this fact the findings of both the trial Courts that the petitioner are using the premises only for the purpose of storing their stationery and using the premises as a godown are required to be upheld. I have already observed that if the premises were used as a godown in addition to carrying on the banking business then that was permissible. But when the main business of banking was stopped or not done from 1966 onwards, then user of the premises only for the purpose of godown is required to be held as change of user. Therefore, the finding on point No. 3 is in the affirmative and in favour of the respondents.
13. In this connection it was contended by counsel for the respondents that in Exhibit 'A' which is a notice given by the respondents to the petitioner bank, the respondents had offered an alternate premises in the rear side of the building to the bank but that offer was not accepted by the bank and both the Courts have held that this prove bona fide intention of the respondents. However, it was contended by counsel for the petitioner that those promises are not now available and hence it could not be said that the offer was bona fide.
14. I am unable to accept this contention. Firstly because there is no dispute that an offer was given by the respondents about alternate premises. There is also no dispute that those premises were in respect of an area covering about 10 x 14 ft. and there is no dispute that the offer was kept open till recently. Now if the premises are no longer available, the respondents cannot be blamed for the same because the respondents were not expected to keep the premises unoccupied indefinitely and the respondents were not under obligation to keep their offer open till the decision of this petition which was filed in 1989.
15. So far as merits of the matter are concerned, it was contended by the counsel for the petitioner that the respondents could have used the alternate premises (which was offered to the petitioner) for their business and they could start their business in those premises, but they did not start the business in those premises. Even this submission can not be accepted because admittedly the premises offered to the petitioner are in the rear portion of the building whereas the suit premises are in front part of the building. If at all the petitioner were using the premises for godown. there should have been no hesitation on the part of the petitioner in accepting the premises in the rear side. However, the respondents are requiring premises having frontage for their business, and therefore, non-user of the alternative premises by the respondents can not be an indicative of mala fide on their part or an indicative of non-existence of bona fide. For all these reasons the petition is liable to be dismissed. Hence the order :--
ORDER The petition is dismissed with costs through out.
Rule discharged. Stay, if any, vacated.
(D. G. Deshpande), Judge.
After this order was pronounced counsel for the petitioner prayed for continuation of the stay for eight weeks. Counsel for the respondent opposed this prayer. However, considering the fact that the bank is in possession of the premises, operation of the order is stayed for eight weeks on condition that the petitioner shall deposit Rs. 5,000/- as costs. On deposit of Rs. 5,000/- respondent will be allowed to withdraw the same without making any application. Petitioner is directed to file usual undertaking within two weeks.