Delhi High Court
State Bank Of India vs Pushpa Arora on 1 September, 1996
Equivalent citations: 1996VAD(DELHI)207, 64(1996)DLT557
JUDGMENT Devinder Gupta, J.
(1) Defendant appellant has preferred this an appeal under Section 96 of the Code of Civil Procedure against the judgment and decree passed on 18.10.1993 by Shri Shiv Charan, Additional District Judge, Delhi in Suit No. 478/91 decreeing the suit of the plaintiff respondent for possession in respect of the suit premises and also for damages at the rate of Rs. 8,000.00 p.m. w.e.f. 1.9.1991 till delivery of possession.
(2) In November 1970 one room in the ground floor of property bearing L-71, Malviya Nagar, New Delhi was let out by the plaintiff to defendant-Bank. The tenancy of the room was renewed. Rent which initially was Rs. 700.00 p.m. was also increased. On additional space being provided to the defendant-Bank, rent was increased to Rs. 2,700.00 p.m. On 19.7.1986, letter, Ext. D-1, was sent by the Branch Manager of the defendant-Bank to the plaintiff, with reference to the discussion held amongst the parties on 28.5.1986, conveying the approval of the Regional office of the defendant-Bank to the plaintiff for renewal of lease for a further period of five years in respect of the premises which were in occupation of the defendant. The proposal was that the rent of the premises will be raised from Rs. 2,758.25 to Rs. 4,100.00 p.m. from 28.11.1985 and that the same will be released only after the plaintiff withdraws her eviction petition filed against the defendant-Bank. The letter further stated that the lease initially will be for a period of five years with further option of five years of one yea r each in favour of the Bank with 25% increase after completion of the initial lease period of five years. Bank also reserved the right to vacate the premises within the period of lease by giving one month's notice to the plaintiff. This letter was followed by another letter dated 2.9.1986 Ext. D-3 making some clarification, in response to the plaintiff's letter dated 21.7.1986 which the plaintiff intended were to be incorporated. On 17.9.1986 through letter Ext. D-2 plaintiff responded to the defendant's letter dated 2.9.1986 conveying her acceptance to the terms and conditions for renewal of the lease stating that the eviction suit will be withdrawn on the next date of hearing, namely, 1.10.1986.
(3) The suit which has now given rise to the instant appeal was instituted on 20.9.1981 by the plaintiff alleging that the defendant was inducted as a tenant in ground floor of the property bearing No. L-71, Malviya Nagar, New Delhi on a rental of Rs. 4,100.00 p.m. Tenancy was terminated by the plaintiff through notice dated 17.7.1991. The defendant was called upon to deliver possession by 31.8.1991 when tenancy came to an end on its expiry. Defendant failed to deliver back possession to the plaintiff and as such the possession of the defendant on and from 1 9.1991 was not authorised. Defendant was liable to vacate the premises and hand over its vacant possession to the plaintiff. The plaintiff also claimed mesne profits/damages at the rate of Rs. 20,000.00 p.m. w.e.f. 1.9.1991 and also claimed interest at the rate of 15% p.a. on the amount found due as mesne profits.
(4) Suit was resisted by die defendant on numerous grounds. It was alleged that the amendment in the Delhi Rent Control Act; whereby tenants paying rent above Rs. 3,500.00 p.m. had lost the protection under the Act; is not retrospective in nature and since the defendant was a tenant prior to coming into force of the amendment, the same would not apply and thus the suit was barred under Section 50 of the Delhi Rent Control Act. Constitutional validity of Section3(c) of the Delhi Rent Control Act was also challenged. On merits it was alleged that as per agreement entered into between the parties, lease initially was for a period of five years w.e.f. 28. 11.1985 with an option of five years renewal, of one year, each in favour of the defendant-Bank with 25% increase in rent after completion of initial lease period of five years. After 28.11.1990 the plaintiff had accepted rent, which resulted in extending the lease period at least for one year upto November, 1991, therefore, termination of lease prior to November, 1991 is bad and suit is pre-mature. The lease could not have been terminated on31.8.1991. Defendant also pleaded that after the alleged termination of tenancy by notice dated 17.7.1991 the plaintiff had accepted rent and that the defendant was not liable to pay mesne profits/damages.
(5) On the pleadings of the parties a the trial Court framed the following issues: "1. Whether the tenancy of the defendant was validly terminated vide notice dated 17.7.91? Opp (Onus object) 2. Whether relationship of landlord and tenant is still subsisting between the parties as alleged? Opd (onus objected to) 3. Whether the plaintiff is entitled to mesne profits, if so at what rate and for what period and to what amount? Opp 4. Whether the plaintiff is entitled to interest, if so at what rate and to what amount? Opp 5. Whether the plaintiff is entitled to relief of possession of the suit property as prayed? OPP"
(6) Plaintiff examined her husband and attorney S.S. Arora as Public Witness 1 in support of her case. In addition Girish Kumar, Public Witness 2, Upender Singh, Clerk Canara Bank, Malviya Nagar PW3 and Shiv Charan Goyal, Public Witness 4 were also examined by the plaintiff. Defendant examined only Gulshan Bhayana, Shopkeeper, as Dw 1.
(7) The Trial Court held that after the expiry of the period of the lease there has been no renewal thereof. Had the defendant been interested in renewal of the lease for a further period of one year nothing prevented the defendant to pay to the plaintiff rent at the increased rate by 25% and, thus, the plaintiff was with in her right to terminate the lease through notice dated 17.7.1991. Tenancy being from month to month it was held that notice Ext. Public Witness 1/3dated 17.7.1991 had validly terminated the defendant's tenancy. On the basis of the oral and documentary evidence the Trial Court further held that the rate of damages, which can reasonably be claimed by the plaintiff, keeping in view the locality of the adjoining area would be Rs. 8,000.00 p.m. which is almost double of the rent payable by the defendant. The plaintiff was also held entitled to interest at the rate of 15% p.a. It is this judgment and decree which is under challenge by the defendant-Bank.
(8) It has been contended that the defendant-Bank is entitled to protect its possession on the doctrine of part performance under Section 53A of the Transfer of Property Act. Even if no valid agreement was executed or got registered the plaintiff will be entitled to have the benefit of the doctrine of part performance and on the expiry of the period of five years on 28.11.1990 the tenancy will be deemed to have been renewed for a further period of one year expiring on 28.11.1991 and as such service of notice of termination, during the continuation of the tenancy would be bad in law. The plaintiff is not entitled to decree for possession and on the findings of mesne profits it was urged that there was no cogent evidence adduced by the plaintiff in support of the plea of damages at the rate of Rs. 20,000.00 and decree at the rate of Rs. 8,000.00 cannot be sustained.
(9) On behalf of the plaintiff-respondent it was contended that in the absence of any plea of part performance under Section 53A of the Transfer of Property Act it will not be permissible for the defendant-Bank to raise this plea in first appeal. Otherwise also ingredients of Section 53A of the Transfer of Property Act are not fulfillled. There is no readiness and willingness on the part of the defendant-Bank which is one of sine qua non for the applicability of the doctrine of part performance.
(10) Admittedly no formal lease deed was executed. It was only on the basis of exchange of letters that there has been renewal of lease in 1985-86. Letter Ext. D-1 dated 19.7.1986 was sent by the defendant-Bank to the plaintiff conveying the approval of its Regional Office for continuing with the tenancy on the terms and conditions stated in the said letter. Terms and conditions with respect of the period and rent being: "(i) The rent of the premises will be raised from Rs. 2758.25 to Rs.4,100.00 per month from 28.11.85. However, it will be released only after the eviction suit filed by you in the Court is withdrawn. (ii) The lease will be initially for 5 years with further option of 5 years of one year each in favour of the Bank with 25% increase after completion of the initial lease period of 5 years. Bank also reserves right to vacate the premises should it choose to within a period of 5 years by giving one month's notice to you."
(11) As noticed above, the terms of Ext. D-1 and subsequent letter of defendant Ext. D-3 were accepted by the plaintiff through letter Ext. D-2. The defendant, thus, was treated as a tenant by the plaintiff with effect from 28.11.1985 for a period of five years on payment of Rs. 4,100.00 p.m. as rent. According to defendant, as per terms of Ext. D-l, lease for five years came into being which contains a renewal clause.
(12) A lease of immovable property from year to year or for any term exceeding one year or reserving an yearly rent under Section 107 of the Transfer of Property Act can be made only by a registered instrument. Admittedly no registered lease deed came into being. In the absence of a registered lease deed the terms contained in letter, Ext. D-1, cannot be made use of by the defendant. It is a void document for want of registration. In Biswabani Pvt. Ltd. v. Santosh Kumar Dutta and Others, , it was held that if the lease is void for want of registration neither party to the indenture can take advantage of any of the terms of the lease. At best the provisions contained in Section 53A of the Transfer of Property Act, which incorporates the doctrine of part performance, can, if the terms thereof are satisfied, be relied upon to protect possession for the period reserved under such a void lease. But no other term of such an indenture, inadmissible for want of registration, can be the basis for a relief.
(13) At the most on the applicability of the doctrine of part performance, the period of lease, in case both parties have acted on the terms of the lease, expired on 28.11.1990. The question which now arises for consideration would be that whether the lease stood renewed for a further period of one year after 28.11.1990. Answer obviously would be in the negative. Lease could be renewed for a further period of one year with 25% increase, after completion of the initial period of five years. Admittedly there has been no request on behalf of the defendant for renewal of lease and there has been no payment of rent over and above the agreed amount of Rs. 4,100.00 Plea of part performance under Section 53-A of the Transfer of Property Act was not specifically taken by the defendant in written statement though it was taken during the course of arguments before the Trial Court, which was negatived on facts. Plea of part performance, which necessarily involves questions of fact cannot be permitted to be raised in appeal, when it was not taken in the written statement in the Trial Court. The question will be different in a case when a defendant in written statement states all the facts on which he can base his defense, without stating the effect of those facts and his plea cannot be rejected merely on the ground that there is no specific mention of Section 53-A in written statement and that also will not debar the defendant from raising such a plea in appeal. However, from reading of the entire written statement of the defendant it is clear that there is no plea of part performance raised therein in any form. The stand taken by the defendant in the written statement is also not compatible with the plea of part performance. Necessary conditions for the applicability of Section 53-A are : (a) there is a contract to transfer immovable property for consideration; (b) the contract is signed by and on behalf of the transferor; (c) the terms can be ascertained with reasonable certainty from the document; (d) the transferee is put in possession or if he has already been in possession continues in possession; (e) he has done some act in furtherance of the contract; and (f) the transferee has performed or is willing to perform his part of contract. In case these necessary conditions are not fulfillled the right given under Section 53A cannot be invoked. There is neither any plea nor evidence nor any material on the record of the case that the defendant has done some act in furtherance of the term for renewal contained in Ext. D-1 for a further period after 28.11.1990 or that the defendant has performed or was willing to perform his part of contract by enhancing rent by 25%. In the absence of this, the Trial Court was also justified in rejecting this plea which was sought to be raised by the defendant during course of arguments. This is apart from the findings recorded above that in terms of the ratio in Biswabani Pvt. Ltd. 's case (supra), renewal Clause being a term in an admissible document Ext. D-1, for want of registration cannot form the basis of relief.
(14) The tenancy being from month to month, notice Ext. Public Witness 1/3 dated 17.7.1991 terminating the defendant's tenancy on the close of the month of August, 1991 was valid and the Trial Court rightly held that defendant's possession on and from 1.9.1991 is unauthorised and defendant-Bank is liable to pay mesne profits or damages for use and occupation of the property.
(15) We have examined the statements of PWs, 1,2,3 and 4. Though the claim of the plaintiff was for damages at the rate of Rs. 20,000.00 p.m. but in view of the statements and other material on record we find no ground to interfere with the findings recorded by the Trial Court that the plaintiff would be entitled to double the amount of rent as damages for use and occupation. The locality is such in which there has been rise in the rates of rent and in case in 1985 the agreed rent was Rs. 4,100.00 p.m., it will not be unreasonable to assume that in the year 1991 the plaintiff would have been in a position to realise an amount not less than Rs. 8,000.00 p.m. as rent for the premises in question.
(16) The judgment and decree, in view of the above is not liable to be interfered with. We need not say anything on the other pleas, which had been raised by the defendant in the written statement, which rightly were not discussed by the Trial Court in its judgment in view of the decision of the Supreme Court in D.C. Bhatia and Others v. Union of India and Another, , upholding the validity of the Delhi Rent Control (Amendment) Act, 1988 holding that fixation of cut off point at Rs. 3,500 .00 is not arbitrary and that Section 3(c) would apply even to the tenancies created prior to 1.12.1988.
(17) Resultantly, the appeal is dismissed with costs.