Document Fragment View

Matching Fragments

(Emphasis supplied) 9.4. In Uberoisons (Machines) Ltd. v. Samtel Color Ltd., 2003 (69) DRJ 523, the tenant terminated the lease and called upon the landlord to take the possession of the tenanted premises. The Company Secretary of the landlord visited the tenanted premises on the notified date but found the premises not restored to the condition in which the premises were taken. The tenant thereafter restored the premises and again called upon the landlord to take over the possession and refund the security deposit. The landlord was not willing to refund the security deposit and therefore, the possession continued with the tenant. The landlord filed a suit for possession, recovery of rent, mesne profits and damages against the tenant. During the pendency of the suit, the tenant handed over the possession to the landlord. This Court held that the tenant cannot withhold the possession until security amount is refunded to him. This Court further held that the tenant has an independent remedy to recover the security amount and if the tenant chooses to withhold the premises, he shall be liable to pay the rent upto the date of handing over of the possession. The relevant portion of the judgment is reproduced hereunder:

"33. ... However, neither of these two judgments apply to the facts of the case before this Court, since there is no evidence or even allegation that the Plaintiff company was insisting on refund of the security deposit before handing over possession of the tenanted premises to the Defendant though, vide letter dated 16th December, 1998 (Exhibit PW1/1 and PW1/2) terminating the tenancy with effect from 15th June, 1999, receipt of which has been denied by the Defendants, the Plaintiff had requested the Defendants to take possession against refund of security deposit. While writing the letter dated 29th September, 1999, the Plaintiff company did not insist of refund of the security deposit as a pre-condition of handing over possession to Defendant though it did demand the refund of security lying with the Defendants. This is not the case of the Defendants that when they went to take possession of the tenanted premises, the Plaintiff company refused to hand over possession to them on the ground that the security deposit had not been refunded to it. There is no averment to this effect even in the letter dated 19th February, 2000 (Exhibit P-7) written by them to the Plaintiff company. Seeking refund of the security while asking the lessor to take possession of the tenanted premises is altogether different from insisting upon payment of security deposit before handing over possession of the tenanted premises. Had the Plaintiff company insisted on refund of the security deposit before handing over possession of the tenanted premises to the Defendants, it would certainly have been liable to pay rent to the Defendants till the time possession was actually delivered to them but, the evidence on record does not make out any such insistence on the part of the Plaintiff company. In fact, since the security deposit agreement (Exhibit P-11) with respect to security deposit provided that the security would be refundable on expiry of the lease or on vacation of the premises by the lessee, whichever be earlier against handing over peaceful vacant possession of the flat, furnishing and fittings in good conditions and after deducting dues, if any, the Plaintiff company, in my view, could have insisted on simultaneously refund of the security deposit while handing over possession of the tenanted premises to the Defendant, though it could not have insisted on the security being refunded to it before handing over possession to the Defendant. In fact, the evidence on record does not indicate even that the Plaintiff company was insisting on refund of the security simultaneous with handing over possession to the Defendants. It transpired during arguments that rent upto September, 1999 stands paid to the Defendants. In view of the above discussion, I hold that the Plaintiff company was not required to pay rent after September, 1999."
"19. From the aforesaid correspondence between the plaintiff and the defendant, the admitted position that emerges is that the plaintiff terminated the lease there upon calling the defendants to take possession of the demised premises and refund the balance security amount. The offer to vacant possession of the demised premises was always there from the side of the plaintiff company and it was the duty of the defendant thereafter to act on the same and take possession after notice of termination of the lease. It is the therefore defendant company who has failed to comply with the same. It may also be seen that during this period the plaintiff even communicated to the defendants about their shifting to another premises which the defendants did not take note of. Thus as far as handing over of the possession of the demised premises is concerned, it may be said that constructive possession was handed over to the defendants by the plaintiff upon termination of the lease with an offer to take over actual possession upon payment of the balance security deposit, which was sufficient to fulfill the requirement of clause 8 of the lease agreement. Following circumstances would lend support to inferences/findings:
10.8. Remedy of tenant in case of non-refund of security deposit by the landlord - The tenant cannot refuse to hand over the possession till the security deposit is refunded. In the event of non-

refund of security deposit by the landlord, the remedy of the tenant is to sue the landlord for refund of security deposit after handing over the possession.

11. Findings 11.1. The period of registered lease deed dated 27 th April, 1998 in respect of the suit property expired on 14th April, 2001. However, the parties, vide letters dated 26th March, 2001 and 27th June, 2001 mutually extended the lease upto 30th September, 2001. The extended lease determined by efflux of time on 30th September, 2001 when the tenant was obliged to handover the possession of the suit property to the landlord under Section 108(q) of the Transfer of Property Act.