Delhi District Court
Sh. Vijender Kumar & Anr vs Punjab National Bank on 17 November, 2012
Sh. Vijender Kumar & Anr vs Punjab National Bank
IN THE COURT OF SHRI INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
ROOM NO. 308, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
C.S No. 338/11
1. Sh. Vijender Kumar S/o Late Sh. Data Ram
2. Mrs. Sucheta D/o Sh. Vijender Kumar
Both R/o 9398, Sector 9, Pocket - C,
Vasant Kunj, New Delhi 110070
.....Plaintiffs
Versus
Punjab National Bank,
Through its Chairman,
7, Bhikaji Cama Place, New Delhi - 110066.
Service also affected at :
Punjab National Bank,
Branch Manager,
A4, (1st Floor), Sarvodaya Enclave,
Sri Aurobindo Marg, New Delhi.
.....Defendant
Plaint Presented on : 04.11.2011
Date of Institution : 05.11.2011
Decision Reserved on : 08.11.2012
Date of Decision : 17.11.2012
CS No. 338/11 Page 1
Sh. Vijender Kumar & Anr vs Punjab National Bank
JUDGMENT
(on suit for possession)
1. Plaintiffs namely Sh. Vijender Kumar and Mrs. Sucheta filed suit on 04.11.2011 for recovery of possession, mesne profit/damages and arrears of rent against defendant Punjab National Bank, after serving the defendant by notice dated 04.10.2011 to terminate the tenancy after 15 days of receipt of notice and asking the defendant to vacate and hand over physical possession of the suit property on or before 31.10.2011. The defendant had replied the notice by reply dated 29.10.2011 and also contested the suit. It was followed by plaintiff's replication. The plaintiff has filed an application dated 04.04.2012 under order XII rule 6 CPC, under consideration, on the ground that there are admissions by the defendants in the written statement and plaintiff is entitled for decree of possession on such admission. To adjudicate the application, it requires to elucidate the feature of case of both parties.
2.1 The suit property is entire first floor ad measuring 3142.25 sq. feet (super area 4200 sq. feet) bearing No. A4, Sarvodya Enclave, Sri Aurobindo Marg, New Delhi, consisting a large hall having a pantry/kitchen, and toilet (in brief the suit property). The plaintiffs namely Sh. Vijender Kumar and Mrs. Sucheta CS No. 338/11 Page 2 Sh. Vijender Kumar & Anr vs Punjab National Bank purchased it by sale deed dated 30.06.2006 from previous owner Sh. Ram Kumar and Sh. Babu Ram, who informed the defendant about this fact of purchase of property by plaintiff by letter dated 01.07.2006, which was acknowledged by the defendant on 07.07.2006.
2.2 The defendants had taken the suit property on lease by lease dated 30.01.2006 from the previous owner/landlords Sh. Ram Kumar and Sh. Babu Ram at the monthly rent of Rs. 1,09,978.75p for commercial purposes for a period of five years commencing from 01.02.2006 to 31.01.2011. The present plaintiff had informed the defendant and tenancy was attorned in favour of plaintiffs; the defendant was asked and it was required to pay/deposit monthly rent in the accounts of plaintiffs, operational in the branch of defendant. From July 2006 defendant started paying rent to the plaintiffs by depositing in the account. There was advance of Rs. 6,61,500/, equivalent to six months rent adjustable in last 12 months of fifth year of lease in equal installments. From the month of October 2010 in terms of clause 12 of lease deed, the defendant started adjusting a sum of Rs. 50,000/ per month in the monthly rent and adjusted the said amount upto March 2011, i.e., Rs. 3,00,000/ in six months; from April 2010 the defendant had been adjusting Rs. 60,200/ per month upto July 2011 i.e., for four months of Rs. 2,40,800/ and thereafter from August 2011 the defendant stopped paying rent to CS No. 338/11 Page 3 Sh. Vijender Kumar & Anr vs Punjab National Bank the plaintiff. By adjusting the advance of Rs. 6,61,500/ upto 30.09.2011, a sum of Rs. 98,251/ falls arrear of rent.
2.3 The lease deed dated 30.01.2006 had expired on 31.01.2011 and thereafter no fresh registered lease deed has been executed, therefore, in the absence of registered lease deed between the defendant and the plaintiffs, the st tenancy became month by month w.e.f 01.02.2011 and it commenced on 01 day of each English calender month and expires on last of same English calender month . By notice dated 04.10.2011 by the plaintiff called upon the defendant that tenancy shall expire after 15 days of receipt of notice and asked the defendant to vacate and hand over possession of the suit property on or before 31.10.2011, besides claiming damages of Rs. 5,00,000/ per month and defendant was also asked that in case any amount is deposited in the accounts of plaintiff, the same would be treated part payment towards the damages, it would not be treated as rent visavis deposit of any amount would not deemed to be waiver of the notice. The defendant replied the notice and failed to comply the notice, alleging that prior to expiry of lease deed dated 30.01.2006 the defendant informed the plaintiffs on telephone that it desired to get the lease deed renewed or that defendant bank had exercised the renewal clause. However, the defendant never shown its intentions to get the lease deed renewed and it failed to comply with the terms and conditions of CS No. 338/11 Page 4 Sh. Vijender Kumar & Anr vs Punjab National Bank clause 1 of the lease deed nor deposited the enhanced rent as per clause 1 of lease deed. Further w.e.f February 2011, after expiry of lease period, the defendant started adjusting advance payment at the rate of original rent of Rs.1,09,978.75 p and it never enhanced rent by 20%. The defendant failed to vacate the property, that is why the suit.
2.4 In application under order XII rule 6 CPC plaintiff requests that paragraph 1 to 5 of defendant's written statement are admissions - (i) that plaintiffs are landlord/owners and the defendant occupied the property as tenant, (ii) the monthly rent of suit property is more than Rs. 3,500/, thus provisions of Delhi Rent Control Act are not applicable and (iii) plaintiff served legal notice dated 04.10.2011 under section 106 of Transfer of Property Act terminating the tenancy and defendant was asked to vacate and hand over the possession before 31.10.2011. It suffice the requirement of law and entitles the plaintiff for decree of possession on such admissions.
2.5 The defendant in its written statement took the stand that the lease deed dated 01.02.2006 provides options of continuing the lease for further two terms of five year each and plaintiffs have no right to file suit for possession till 31.01.2021 vis a vis defendant paid enhanced rent to the plaintiff after legal notice CS No. 338/11 Page 5 Sh. Vijender Kumar & Anr vs Punjab National Bank dated 04.10.2011. Whereas, it is admitted fact on the part of defendant that except registered lease deed dated 01.02.2006, no further registered lease deed was executed between the parties and after 31.01.2011 of expiry of lease of five year, there is no document executed or registered between the parties with regard to renewal of lease. As per Section 107 of Transfer of Property Act read with section 17 (1) (b) and 17(1) (d) of Indian Registration Act, 1908, it is mandatory that there must be a registered lease deed for period of one year or more and in the absence thereof, tenancy would be treated as month to month tenancy, which can be determined by notice under section 106 of Transfer of Property Act. The situation in hand is not exception to it.
2.6 Paragraph 2.1 to 2.5 above is the compilation of case of plailntiff, available in the form of pleading, application and documents. Sh. R.S. Verma, Advocate, in order to highlight plaintiffs' case, has gone through the pleading and documents and the provisions of law. Further clause 1and clause 12 of the lease deed has also been referred along with the defendant's reply dated 29.10.2011 to notice dated 04.10.2011 and the record of other suit number 221/12 filed on 4.10.2012 by Punjab National Bank, containing notice dated 25.07.2012 to establish that the defendant Punjab National Bank had never any intention to exercise the option of clause 1 of lease deed for renewal of lease after five year nor that option CS No. 338/11 Page 6 Sh. Vijender Kumar & Anr vs Punjab National Bank has been ever since exercised. The plaintiffs' notice has never been waived off by the plaintiffs. The other contentions of plaintiffs are fortified on the basis of precedent or case law, the same are as follows:
1. Hardesh Ores Pvt. Ltd vs Hede & Company VI 2007 SLT 597 & Abhinav Outsourcing Pvt. Ltd vs Sunita Seth 186 2012 DLT 689 - held , to give effect to a renewal of lease, a document has to be executed evidencing the renewal of the agreement or lease, as the case may be, and there is no concept of automatic renewal of lease by mere exercise of option by the lessee. It is, therefore, not possible to accept the submission urged on behalf of the appellantsplaintiffs that by mere exercise of option claiming renewal, the lease stood renewed automatically and there was no need for executing a document evidencing renewal of the lease. By virtue of provisions of section 17(1)(b)(d) of Registration Act, 1908 and section 107 of Transfer of Property Act, there cannot be lease for a fixed period in excess of one year unless there is a registered lease deed for fixed period. In the absence of such registered lease deed the tenancy will be of monthly tenancy.
2. Bank of Baroda vs Vijay Mahipal & Co. 2010 (117) DRJ 691 - held, without the consent of lessor, the lessee cannot be said to have opted for and obtained the renewal of lease deed after expiry of lease by efflux of time, may just on account of renewal clause in the lease deed, providing for option of lessee to renew the lease deed on an enhanced rate of rent.
3. Rasiklal M. Mehta & Anr vs The Hindustan Photo Films Manufacturing Co.
Ltd., AIR 1976 Madras 194 & Indian Oil Corporation Ltd. vs Smt. Alka Agarwal AIR 2007 Bombay 113 - held that once the option is exercised either by the lessor or by the lessee, a valid lease as such does not come into existence unless a registered document is executed, if the renewed lease in question satisfies the requirement of S. 107 of Transfer of Property Act. After all, the option conferred either on the lessee or on the lessor is more or less CS No. 338/11 Page 7 Sh. Vijender Kumar & Anr vs Punjab National Bank in the nature of preemption and neither the conferment of such option itself nor the exercise thereof automatically or of its own force brings into existence a new lease irrespective of other statutory provisions regarding the form procedure of the modalities by which also such a lease can be brought into existence. Therefore, once a renewed lease comes within the scope of section 107 such a lease can be made only be a registered instrument. This is because it is a result of the exercise of option for renewal and that too by the bilateral acts of the parties. Consequently, the new lease is made within the scope of the expression occurring in Section 107 of the T.P. Act , therefore, it has to be only by a registered instrument. Further in the absence of registered instrument the lease must be held to be monthly lease, it is not continuation of old tenancy.
4. Ansuman Mullick vs Mallika Investment Co. (P) Ltd. & Ors AIR 2004 Culcutta 316 - held, renewal of lease and extension of lease are two distinctly separate concepts. The extension of lease does not create a fresh lease or new lease but renewal does. Therefore, when it is a renewal of lease, it is fresh lease, it must be created according to provisions in section 107 of Transfer of Property Act and it requires execution and registration of lease.
5. Punjab National Bank vs Riviera Apartments Pvt. Ltd. 140 2007 DLT 649 (DB) - held mere acceptance of rent after serving notice upon tenant to quit would not amount to waiver under section 113 of Transfer of Property Act.
6. Sarup Singh Gupta vs S. Jagdish Singh & Ors 128 2006 DLT 534(SC), Fateh Chand vs Purshottam Dass & Anr 2011 122 DRJ 356 & Ms. Mani Mann vs Smt. Ram Dulari (Deceased) through LT 90 2001 DLT 305 (DB) - held mere acceptance of rent for the subsequent months in which the lease continued to occupy the premises even after the expiry of the period of the lease, cannot be said to be a conduct signifying his assent to the continuing of the lease even after the expiry of the lease period. It was noticed the conditions incorporated in the agreement itself, which provided for renewal of CS No. 338/11 Page 8 Sh. Vijender Kumar & Anr vs Punjab National Bank the lease and held that those conditions having not been fulfilled, the mere acceptance of rent after expiry of period of lease did not signify assent to the continuance of the lease. Further to constitute waiver under section 113 of T.P. Act, mere tender and acceptance of rent are not sufficient. It should manifest the two actions that there was intention on the part of landlord to treat the lease as subsisting and there is an acceptance by the landlord of any sum tendered by the tenant as rent.
7. ITDC Ltd. Vs M/s Chander Pal Sood & Sons 84 2000 DLT 337 (DB) - held, that the application under order XII rule 6 CPC was allowed considering that there was relationship of landlord and tenant, tenancy was month to month and service of notice was admitted in the written statement.
8. Sunil Kapoor vs Himmat Singh & Ors 2010 (115) DRJ 229 - held that suit for ejectment of a tenant and recovery of mesne profit was filed, as tenancy was determined but premises was not vacated. Prior to institution of the suit, the tenant filed suit for specific performance of oral agreement to sell of immovable property, it was held that agreement to sell property does not create any right in the property except to enforce the said agreement. (It is supplemented by ld. counsel for plaintiff that since tenancy has been determined and suit has been filed for possession, defendant's filing suit No. 21/dt 4.10.2012 for mesne profit, does not tantamount to create fresh tenancy or to accrue any rights in favour of defendant.
9. Shanti Prasad Devi & Anr vs Shankar Mahto & Ors AIR 2005 SC 2905 - held when there is renewal clause in the contract prescribing period and mode of renewal, there could be no implied renewal by holding over on mere acceptance of rent offered by the lessee. The lessee did not exercise option of renewal in accordance with the terms of renewal before expiry of lease and acceptance of amount on expiry of lease would not tantamount assent for continuation of lease.
CS No. 338/11 Page 9 Sh. Vijender Kumar & Anr vs Punjab National Bank 3.1 The defendant Punjab National Bank opposed the suit by filing written
statement and documents.The application under order XII rule 6 CPC has also been opposed by detailed reply followed by oral arguments and written synopsis. There are no clear admissions to make the plaintiffs entitled for judgment of possession in their favour. The plaintiff has concealed vital facts and documents, which have been brought in light by the defendant in the written statement. On plain reading of clause 1 of lease deed, the lease was initially for a period of 5 years from 01.02.2006 to 31.01.2011, the plaintiff bank has two options of renewal of five years each after expiry of lease of period of five years, on the same terms and conditions as contained in the lease deed but subject to increase of rent by 20% vis a vis the lessors/plaintiffs shall not be entitled to refuse extension for further two terms of five year each, if lessee/defendant exercise the option within one month before the expiry of original terms of five years. Further in the absence of notice for exercise of option the lessee will be deemed to have exercised option. This is the exactly case here, the lessor did not given any notice and the lessee exercised the option. Further a fresh lease deed shall be executed on every renewal, however, it has not been executed by the plaintiffs inspite of the repeated requests made orally and the plaintiffs/lessors kept the defendant in dark regarding renewal of lease, therefore, for want of such fresh lease deed, the status of defendant remains intact. The defendant will be deemed to have exercised the option. There is no CS No. 338/11 Page 10 Sh. Vijender Kumar & Anr vs Punjab National Bank requirement of law that defendant bank is bound to execute fresh lease and in fact there is no need to execute fresh lease because one is already existing, it has created tenancy till 2021, however, the bank would not object to execute the fresh leased deed provided on the basis of the terms and conditions stipulated in the existing lease deed. Since the defendant bank had exercised the option and plaintiff is not willing to execute the lease deed, the plaintiffs be directed to execute the lease deed (during the course of arguments, it has been supplemented that Punjab National Bank has filed suit No. 221/dated 4.10.2012 for specific performance separately to enforce clause 1 of lease deed). The defendant has given detailed reply dated 29.10.2011 to notice dated 04.10.2011 that defendant had exercised it option of renewal of lease by requesting the plaintiffs on telephone and the plaintiffs are not entitled for any damages. The plaintiffs are going contrary to the terms of contract whereas, parties are bound to owner their commitment, even the doctrine of promissory estoppel binds the parties, the defendants relies upon th MULLA on Indian Contract and Specific Relief Acts in Volume I 12 Edition has observed as follows:
"The doctrine of promissory estoppel is a departure from the doctrine of consideration. A promise in future creates an estoppel, the principle being that if a promise is made in the expectation, that it would be acted upon and it was in fact acted upon, the party making the promise will not be allowed to back out of it and CS No. 338/11 Page 11 Sh. Vijender Kumar & Anr vs Punjab National Bank the courts should insist that the promise so made must be honoured. The principle of promissory estoppel has been stated in the India thus:
Where one party has by his words or conduct made to the other a clear and enequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party upon it, it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective of whether there is any preexisting relationship between the parties or not."
The defendant started adjusting advance rent of Rs. 6,61,500/ from December 2010 (i.e. Rs. 1,50,000/ for the month for October, November and December 2010) and adjusted at the rate of Rs. 50,000/ each for January, February and March 2011 and then at the rate of Rs. 60,250/ for April, May, June, July, 2011. The defendant adjusted the amount of Rs. 1,20,500/ on 05.10.2011 for the month of August and September 2011. The balance amount of monthly rent at old rate was duly credited in the account of plaintiffs, after adjusting advanced rent and defendant also credited enhanced rent from February to September 2011 on 08.10.2011 and rent is being paid regularly after deducting TDS. The defendant remained under the impression that plaintiff is accepting rent according to the terms CS No. 338/11 Page 12 Sh. Vijender Kumar & Anr vs Punjab National Bank of lease and they will execute written lease deed at some period of time.
Since the status of defendant is of tenant and tenancy exists upto 2021 and the lease is valid upto 31.01.2021, in terms of original lease deed dated 30.06.2006, therefore, it is ridiculous to say on the part of the plaintiff that tenancy became month by month terminable by 15 days of notice or section 106 of T.P. Act applies.
3.2 The defendant has filed two documents with the written statement, one is a letter dated 27.07.2006 which shows that plaintiff has secured loan of Rs. 50,00,000/ from the Bank of Maharashtra and plaintiffs have given irrevocable power of attorney in favour of Bank of Maharashtra in respect of suit property and they have admitted that premises is given on lease to the defendant bank for a period of 10 years, Thus as per power of attorney the plaintiffs have no locus standi to file the present suit. The plaintiffs are trying to take advantage of want of execution of fresh lease deed or as if defendant had not exercised the option, whereas, the plaintiff themselves failed to execute the lease deed and original lease deed is still valid, which binds the party and parties are supposed to adhere to the clauses of lease deed, which is a license granted by both the each other and Jhon Stuart Mill had observed "liberty without licence is no liberty". The contract may be partly expressed and partly implied, the express contract is in the form of CS No. 338/11 Page 13 Sh. Vijender Kumar & Anr vs Punjab National Bank words written or spoken whereas, the implied contract is surrounded by circumstances and can be proved, therefore, the entire lease deed is to be read together and it infers that the lease was entered upto 31.01.2021. 3.3 Paragraph 3.1 and 3.2 is the record of written statement, reply to application and documents of defendant vis a vis the written synopsis/oral arguments advanced on behalf of defendant. During the course of arguments, ld. counsel Sh. R.S. Sharma, Advocate for defendant also referred provisions of section 53A of Transfer of Property Act as well as the contents of lease deed to demonstrate that the possession with the defendant is in continuation of its interest in the suit property because of consideration as well as in terms of lease agreement and defendant's possession is protected under the law. There are no admissions to decree the suit for possession against the defendant. The defendant further relies upon:
1. Sheth Maneklal Mansukhbhai vs Hormusji Jamshedji Ginwalla & Sons AIR 1950 SC 1 - There was sanction order/resolution for lease but no registered lease could be executed, it was held that plaintiff cannot eject defendant on the ground there is no registered lease and defence under section 53A is available to person who has an agreement to lease in his favour though no lease has been executed and registered. (plaintiffs' counsel request that ratio of this case does not apply to the situation in hand) CS No. 338/11 Page 14 Sh. Vijender Kumar & Anr vs Punjab National Bank
2. Biswabani Pvt. Ltd vs Santosh Kumar Dutta & Ors 1980 1 SCC 185 - held section 53A can be relied upon to protect possession for the period reserved under a void lease and further held that tenant would be entitled to protect his possession unless evicted in due course of law and in order to protect its possession it can sue for declaration of its status and for injunction (plaintiffs' counsel request that ratio of this case does not apply to the situation in hand and the present case is not of protected tenant under the Rent Act).
3. M/s Babulal Agrawal vs Food Corporation of India & Ors, Appeal Civil No. 3484/1997 (Date of decision 05.01.2004) While construing and interpreting agreement to lease, the record must be given to all relevant and material terms and an attempt must be made to reconcile the relevant terms if possible and not to treat any of them as idle surplausage (it is submitted that terms of lease deed 01.02.2006 are to be construed accordingly).
It is concluded to dismiss the application.
4. (Findings): The contentions of both the sides are assessed, analyzed in the light of pleadings and documents of the parties and statutory provisions of law of order XII rule 6 CPC, relevant provisions/section 53A, 106, 107, 113 of T.P. Act, provisions of section 17 of Indian Registration Act and the precedents/case law presented. By taking consolidated stock of the record and submissions, the extent and location of the suit property is not disputed, lease deed dated 01.02.2006 in respect of suit property between the present parties is also not disputed, the monthly rent, when defendant was inducted in the premises, was at the rate of Rs.
CS No. 338/11 Page 15 Sh. Vijender Kumar & Anr vs Punjab National Bank 1,09,278.75 p is also not disputed, the plaintiff gave notice dated 04.10.2011 and it was replied by the defendant on 29.10.2011 is also not disputed. Thus provisions of Delhi Rent Control Act are not applicable to the suit property and to the parties.
However, the crucial point is with regard to existence/subsistence or termination of tenancy, the plaintiff claims that tenancy has been determined by notice dated 04.10.2011 but according to defendant the tenancy is still subsisting because of terms and conditions of lease deed dated 01.02.2006, particularly, clauses 1. Is there admission by the defendant? The following paragraphs will answer such questions but now it becomes incumbent to reproduce clause No. 1 and 12 of lease dated 01.02.2006, to adjudicate the application, which reads as follows: Clause No. 1 That the period initial for the lease is 5 (five) years commencing from 01.02.2006 with two options for continuing the lease for further two terms of five years each, on the same terms and conditions as herein contained, subject to the conditions that rent shall be increased by 20% on the last rent paid and the lessors shall not be entitled to refuse the extension for further two terms of five years each if the lessee exercised that option within one month before expiry of the original terms of five years, provided that in the absence of notice for the exercise of option, the lessee will be deemed to have exercised the same. A fresh lease deed shall be executed on every renewal.
CS No. 338/11 Page 16 Sh. Vijender Kumar & Anr vs Punjab National Bank Clause No. 12. That the lessee bank has advanced a sum of Rs. 6,61,500/ (Rupees Six Lakhs Sixty One Thousand Five Hundred only) being equivalent to six th months rent, as advanced rent adjustable in last twelve months of 5 year of this lease in equal installments.
5.1 The clause 1 of the registered lease has four components, firstly, the lease is for a period of five years commencing from 01.02.2006 (which lasts till 31.01.2011); secondly it may be renewed for further two terms of five year each subject to increase of 20% of last rent paid (i.e., first five year from 01.02.2011 to 31.01.2016 and from 01.02.2016 to 31.01.2021), and lessor shall not be entitled to refuse the extension, thirdly, the lessee/defendant has to exercise the option within one month before the expiry of original terms of five years provided in the absence of notice for exercise of option the lessee will be deemed to have exercise the option and fourthly a fresh lease deed shall be executed on every renewal.
The defendant claims that firstly option was exercised on telephone call and secondly lease was not required to be executed as tenancy was subsisting upto 31.01.2021, as want of any notice means the option has been exercised by the defendant in terms of clause 1. Section 53A also protects the defendant otherwise the defendant has been depositing the enhanced rent in the account of plaintiffs. However, the plaintiffs have contrary interpretation that firstly lease was upto five year, it expired on 31.01.2011 and thereafter it became month by month CS No. 338/11 Page 17 Sh. Vijender Kumar & Anr vs Punjab National Bank tenancy. No fresh lease deed has been executed and it is alien to law of automatic renewal of lease. It is also mandatory requirement of section 17 read with section 107 of T.P. Act to get the document registered compulsorily. The plaintiffs never accepted the enhanced rent and plaintiffs never waive off their notice under section 106 of T.P. Act.
5.2 As per section 107 of the T.P. Act, when there is lease of immovable property either from year to year or for any term exceeding one year, it can be made only by registered documents. All other lease of immovable property (other than lease of year to year or for a terms exceeding one year) may be made either by registered document or by oral agreement accompanied by delivery of possession. Section 17(1)(d) of Indian Registration Act 1908 also mandates registration compulsory in respect of lease of immovable property from year to year or for a terms exceeding one year. The lease deed dated 30.01.2005 between the parties was registered for a period of five year. It fulfills the requirement of law of section 107 of the T.P. Act read with section 17(1)(d) of Indian Registration Act. The other conditions are optional and reserved by the defendant for renewal of lease twice of five year each. To say, the lease deed dated 30.01.2005 was not registered for a period of 15 years i.e., upto 31.01.2021. The defendant had option to exercise for renewal in January 2011 by notice to plaintiffs to renew it and in case CS No. 338/11 Page 18 Sh. Vijender Kumar & Anr vs Punjab National Bank there is no notice the lessee will be deemed to have exercise the same. However, a fresh lease deed is to be executed for renewal of lease. It is admitted case of defendant that he had not given any notice in writing in January 2011 to renew the lease for a period of five years but there is a claim that plaintiff was informed on telephone (as mentioned in the paragraph 5 of reply dated 29.10.2011, without mentioning any date as to when telephone call was made).
5.3 As per clause 1 of notice, the enhanced rent could be by increase of 20% from February 2011, had the defendants opted for renewal. The plaintiff in their notice dated 04.10.2011 (paragraph 5) claimed that defendant started adjusting the advance amount at the old rate of rent from October 2010 (i.e., in the last phase of fifth year of initial five year tenancy) and defendant in its reply dated 29.10.2011 (paragraph 8) admits that enhance increase of rent by 20% which was effective from February 2011 was credited in the account of plaintiffs on 08.10.2011. To say the increased rent of 20% was from 01.02.2011 and it was not released or credited to the account of plaintiffs from 1.2.2011 but it was carried on 08.10.2011 after plaintiffs' notice dated 04.10.2011.
5.4 There is no lease deed after 31.01.2011. The registered lease deed dated 30.01.2006 was for a period of five year, it expired on 31.01.2011. On the eve CS No. 338/11 Page 19 Sh. Vijender Kumar & Anr vs Punjab National Bank of expiry of initial period of tenancy, it becomes month by month tenancy. The defendant in their reply dated 29.10.2011 had not given any notice to the plaintiff to execute fresh lease deed. It is the first time when on 25.07.2012 the defendants gave legal notice to the plaintiffs asking them to execute fresh lease deed in terms of original lease deed dated 30.01.2006, on the basis of which suit No. 221/dated 04.10.2012 has been filed. Whereas there is elapse of about of 19 month period (i.e., from January 2011 to July 2012) to express the option. Moreover, the plaintiffs in their notice dated 04.10.2012 clearly elucidated that tenancy terminates after 15 days of receipt of notice vis a vis to vacate the premises on or before 31.10.2011 or in case any amount is deposited in the account of plaintiffs the same would be treated not as a rent but part payment towards the damages, claimed in paragraph 9 of the notice. Therefore, adjustment of advanced amount or release of enhanced amount on 08.10.2011 in the account of plaintiffs would not tantamount to waiver of the notice, as waiver of notice of termination tenancy could be by express consent or implied consent of the person who gave the notice but there is no such consent by the plaintiffs and for ready reference section 113 with illustrations is given below:
Sec. 113 - Waiver of notice to quit - A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
CS No. 338/11 Page 20 Sh. Vijender Kumar & Anr vs Punjab National Bank Illustrations : (a) A, the lessor, gives B, the notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A given to B as lessee a second notice to quit. The first notice is waived.
5.5 The plaintiffs had borrowed loan from Bank of Maharashtra, they executed irrevocable General Power of Attorney and defendant project that in the power of attorney period of 10 year tenancy/lease has been mentioned vis a vis the monthly rent and it amounts to an admission on the part of plaintiffs that tenancy was for a period upto 2021. On the other part, the plaintiffs claim that Bank of Maharashtra had already given NOC that suit for possession/ejectment may be filed and they have no objection.
The contentions of defendant are not tenable, for the reasons viz. the GPA by the plaintiff in favour of Bank of Maharashtra does not bar the plaintiffs to file the suit, secondly,the relationship of executant of power of attorney and an attorney is of principal and an agent and an agent always acts on the instructions of plaintiff within the parameters of authorities assigned thirdly, the Bank of Maharashtra has also given no objection certificate, which has been placed on the file and fourthly, the contract between the plaintiffs and the Bank of Maharashtra would not determine the right of parties to the suit.
CS No. 338/11 Page 21
Sh. Vijender Kumar & Anr vs Punjab National Bank
5.6 In Uttam Singh Duggal vs Union Bank of India 2000 VI AD SC 389 =
2000 7 SCC 120, out apex court held that term admission in order XII rule 6 CPC is wide enough to include not only pleadings but also balance sheet, minutes of meetings, letter, agreement, notice or constructive notice and when such record leads to unambiguous and clear admissions, the court may exercise power under order XII rule 6 to pass appropriate judgment/decree.
6. The detailed analysis carried in paragraph 5.1 to 5.6 above, clearly spells out that the registered lease deed dated 30.01.2006, w.e.f from 01.02.2006 was initially for the period of five years i.e., upto 31.01.2011 and then it was subject matter of exercise of the option in January 2011 for renewal of lease by increasing rent by 20% as well as to execute the fresh lease deed. The defendant was maintaining account of plaintiffs but increased rent by 20% was never started depositing from February 2011, however, it was done on 08.10.2011 after plaintiffs' notice dated 04.10.2011. On the eve of expiry of initial lease deed on 31.01.2011, became month by month tenancy, which was determined by notice dated 04.10.2011. Since there is no registered lease deed after 31.01.2011, in terms of section 17(1)(d) read with section 107 of Transfer of Property Act, it cannot be treated tenancy upto 31.01.2016 from 01.02.2011. The lease period expired on 31.01.2011 and thereafter it was month by month tenancy which stand determined CS No. 338/11 Page 22 Sh. Vijender Kumar & Anr vs Punjab National Bank by notice dated 04.10.2011 from 30.10.2011. There is no provisions either in the T.P. Act or in Indian Registration Act or under Indian Stamps Act for automatic renewal and reserving option for renewal of tenancy does not automatically renew the tenancy for any specific period of time, it is subject to provisions of T.P. Act and other statute. The defendant cannot derive any right or benefit in this suit either because of written notice dated 25.07.2012 to the plaintiff to execute fresh lease deed as per clause 1 of original lease deed dated 31.01.2006 nor any right accrues in favour of defendant merely by filing suit for specific performance (221/04.10.2012). The plaintiffs have opted process of law for possession of suit, therefore, defendant has no avail of section 53A of T.P. Act while reading it with section 17(1)A of Indian Registration Act (which reads as "The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and other Related Laws (Amendment) Act, 2001, and if such documents are not registered on or after such commencement them, they shall have no effect for the purposes of the said section 53A.). Thus there does not subsist tenancy after operation of notice dated 04.10.2011 and tenancy stand determined on 30.10.2011. The plaintiff is held entitled for judgment of possession.
CS No. 338/11 Page 23 Sh. Vijender Kumar & Anr vs Punjab National Bank
7. Accordingly, plaintiffs' application under order XII rule 6 is allowed in their favour and against the defendant. Plaintiffs' suit for possession is decreed in their favour and against the defendant while directing the defendant to vacate and hand over the suit property i.e., entire first floor ad measuring 3142.25 sq. feet (super area 4200 sq. feet) bearing No. A4, Sarvodya Enclave, Sri Aurobindo Marg, New Delhi, consisting a large hall having a pantry/kitchen, and toilet (more specifically shown in site plan, now P1) to the plaintiff. Since the defendant is in operational commercial Bank therefore, two months time (i.e., to 17.01.2013) is given to the defendant to vacate the suit property. The proportionate cost of suit is also allowed in favour of plaintiff and against the defendant. Decree sheet be drawn accordingly.
Announced in open Court (INDER JEET SINGH)
on 26th Kartika, Saka 1934 Addl. District Judge03, South District,
Saket/17.11.2012
CS No. 338/11 Page 24
Sh. Vijender Kumar & Anr vs Punjab National Bank
CS No. 338/11
17.11.2012
Appearance: Counsel for plaintiffs.
Proxy counsel for defendant.
Vide separate judgment announced today, plaintiffs' application under order XII rule 6 is allowed in their favour and against the defendant. Plaintiffs' suit for possession is decreed in their favour and against the defendant while directing the defendant to vacate and hand over the suit property i.e., entire first floor ad measuring 3142.25 sq. feet (super area 4200 sq. feet) bearing No. A4, Sarvodya Enclave, Sri Aurobindo Marg, New Delhi, consisting a large hall having a pantry/kitchen, and toilet (more specifically shown in site plan, now P1) to the plaintiff. Since the defendant is in operational commercial Bank therefore, two months time (i.e., to 17.01.2013) is given to the defendant to vacate the suit property. The proportionate cost of suit is also allowed in favour of plaintiff and against the defendant. Decree sheet be drawn accordingly.
The pleadings are complete. The following issues emerge for determination, in respect of other points of suit:
1. Whether the plaintiffs are entitled for decree of Rs. 1,09,978.75p, being rent of notice period of October 2011, against the defendant? OPP
2. Whether the plaintiffs are entitled for decree of Rs. 66,664/, being mesne profit for use and occupation charges w.e.f 01.11.2011 to 04.11.2011, date of filing of the suit, against the defendant? OPP CS No. 338/11 Page 25 Sh. Vijender Kumar & Anr vs Punjab National Bank
3. Whether the plaintiff is entitled for decree of Rs. 5,00,000/ per month from the date of filing of the suit, in respect of mesne profit for use and occupation charges, against the defendant? OPP
4. Whether the suit is without cause of action? OPD
5. Relief.
List the case for plaintiffs' evidence, in respect of aforementioned issues, as right to begin is given to the plaintiffs. Advance copy of affidavit may be forwarded to the defendant/defendant's counsel two weeks before the next date of hearing i.e., 27.02.2013.
(Inder Jeet Singh)
Addl. District Judge03, South District,
S Saket/17.11.2012
CS No. 338/11 Page 26