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1996 DIGILAW 651 (PAT)

Sachidanand Das v. Sandhya Rani Dutta

1996-09-29

GURUSHARAN SHARMA

body1996
Judgment Gurusharan Sharma, J. 1. This appeal at the instance of the defendant has been preferred against a decree of eviction passed under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as "the Act"). 2. Smt. Sandhya Rani Dutta, widow of Late Har Govind Dutta, a resident of P.N. Bose Compound, Lalpur, Ranchi, claiming to be the absolute owner of the premises detailed in the schedule annexed to the plaint filed Title Suit No. 273 of 1983 in the court of the Special Subordinate Judge, Ranchi, against Sri Sachidanand Das, the sole proprietor of Maa Kali Engineering Works at 6-D, R.N. Mukherjee, Road, Calcutta for a decree of eviction from the suit premises and after such eviction to be put in Khes possession thereof. 3. According to the plaintiff, after having purchased the land bearing Municipal Survey Plot No. 2321, corresponding to Chhaparbandi Jamabandi No. 642 at Purulia Road, Ranchi, the constructed building and structures over it with a plan to start cinema business therein. Subsequently be registered deed of lease dated 29.11.1971, she demised the said premises in favour of M/s. Amalgamted Films for a period of 51 years commencing from 1.12.1971 and ending on 31.11.2022. Monthly rent for the premises was fixed and was made payable on or before 15th day of each and every following month. The lessee was to pay 2.3rd of the existing and future municipal taxes from the date of commencement of the cinema show as also to pay the entire amount of all other taxes and impositions for the demised premises. If monthly rent reserved remained unpaid for a period of three consecutive months, then it was made lawful for the lessor at any time thereafter to treat the demise at an end and to re-enter into the premises and enjoy the same without prejudice to every right which lessor may be entitled to against the lessee. The lessee was entitled to charge or mortgage or transfer its lease-hold interest in the demised premises or to under let or part with the possession thereof. 4. The lessee was entitled to charge or mortgage or transfer its lease-hold interest in the demised premises or to under let or part with the possession thereof. 4. By letter dated 30.11.1971, the lessee, M/s. Amalgamated Films acknowledged to have been put in possession of the property with the following description : "Three contiguous plots of vacant land together with partly built Cinema Building; R.C.C. Columns, initials in the first floor complete, but R.C.C. roof slab only done in the part of the foyer; Brick work in the ground floor almost complete; some walls to be errected in the lounge portion. No roofing done over he auditorium and stage. A few walls in the foyer already phastered." 5. The original lessee paid monthly rent upto 5.2.1981 as also 2/3rd share of Municipal Tax and thereafter assigned the lease-hold interest to the defendant, Sri Sachindanand Das. The defendant neither paid the monthly rent w.e.f. 6.2.1991 nor the 2/3rd share of the Municipal Tax. The petitioner sent a notice dated 20.7.1981 to the defendant through her lawyer terminating the lease w.e.f the end of August, 1981 and requiring the defendant to quit and vacate the building and premises so that the plaintiff could get vacant possession of the some from 1.9.1981. The defendant sent a reply enclosing there-with a bank draft dated 25.7.1981 for Rs. 29, 10.00 paise. It was alleged in the reply that earlier three cheques dated 7.5.1981, drawn on Indian Oversees Bank, were handed over to the plaintiff, but in fact, no such cheque was ever given by the defendant to the plaintiff. 6. The plaintiff filed Title Suit No. 192 of 1981 against the defendant. The defendant in his written statement alleged that the property originally let out to the original lessee consisted of vacant land with construction upto plinth level and some walls on part thereof. Subsequently the defendant represented that he would strictly abide by the terms of the lease and thereupon the plaintiff agreed to compromise the dispute. Accordingly the suit was disposed of on the following terms of the compromise petition dated 16.8.1983 : (a). Defendant shall at all time during subsistance of the lease grant four free passes for the highest class to the plaintiff and the plaintiff shall requisition the passes in writing. (b). Accordingly the suit was disposed of on the following terms of the compromise petition dated 16.8.1983 : (a). Defendant shall at all time during subsistance of the lease grant four free passes for the highest class to the plaintiff and the plaintiff shall requisition the passes in writing. (b). The defendant shall make the Cinema Hall with its fixtures, fittings, electricity and other accessories including the services of the member of the staff available free of charges to the plaintiff for her use whether for her own purposes or otherwise for six days in calender year to be notified for each occasion by the plaintiff to the defendant in writing at least 15 days in advance. It shall be responsible of the plaintiff to obtain the necessary permission from the concerned authorities. The defendant will in no case be responsible for entertainment tax for holding any show or functions in the Cinema Hall in the said six days. (c). If the defendant to any time during subsistence of the lease intends to transfer his entire or part of his interest in Sandhya Cinema premises to any person or body of persons then the defendant shall intimate to the plaintiff in writing of the said intention and the plaintiff may within thirty days of the receipt of the said notice resume from the defendant his such interest. In case the plaintiff fails to exercise her option to resume such interest within the period reserved hereby then the defendant shall be at liberty to transfer his such interest to any person or body of persons of his own choice. (d). The arrears of rent from October, 1982 to August, 1983 is Rs. 59, 683.17 paise and the dues on account of the Municipal Tax from 6.2.1981 to 31.3.1983 is estimated at Rs. 19, 927.96 paise which the defendant shall pay to the plaintiff within 45 days from the date of this compromise petition. Failure to make payment within this stipulated period by the defendant shall be deemed as defaulter within the meaning of the law. (e). Other terms and conditions as contained in the deed of lease dated 29th November 1971 shall remain unaltered and the relation between the plaintiff and the defendant as the lessor and the lessee with regard to the lease-hold property being Sandhya Cinema Hall shall be governed by the said deed of lease. (f). (e). Other terms and conditions as contained in the deed of lease dated 29th November 1971 shall remain unaltered and the relation between the plaintiff and the defendant as the lessor and the lessee with regard to the lease-hold property being Sandhya Cinema Hall shall be governed by the said deed of lease. (f). The parties agreed to execute and register the necessary deed and instrument within 30(thirty) days incorporating the aforesaid modification to the original lease and cost and expenses of such deed will be borne and payable in equal one-half shares. (g). For the broach of any of the convenants reserved hereby by the defendant, the plaintiff shall be entitled to initiate appropriate legal proceedings as provided under the law. 7. Since the defendant did not pay the arrears of rent as also arrears of Municipal Tax as aforesaid within the period reserved in the compromise petition, the plaintiff sent a notice to the defendant through her lawyer on 11.10.1983 asking him to vacate the premises by 31st October, 1983 and pay the arrears. On this, although there was clear understanding that the plaintiff would not accept the rent and Municipal Tax by cheque, the defendant sent two cheques, one for Rs. 59, 683.17 paise and Anr. for Rs. 19, 927.96 paise along with forwarding letter dated 29.9.1983 which was posted on 6.10.1983. The defendant again sent a letter to the plaintiff on 19.10.1983 and a bank draft of Rs. 19, 927.96 paise with a request to hand over the aforesaid cheque for Rs. 19, 927.96 paise to his agent. The plaintiff received the bank draft without prejudice and returned the said cheque. In reply to the said letter, the plaintiff sent a letter to the defendant again informing him that the payment of rent by cheque would not be acceptable by her and asked the defendant to collect the cheques either personally or by any authorised person. Inspite of the said instruction, the defendant again sent two cheques for Rs. 5500.00 each along with forwarding letters dated 29.10.1983 and 14.11.1983. Thereafter the plaintiff had to lodge Execution Case No. 7 of 1983 for realisation of the aforesaid decreetal amount of Rs. 59, 683.17 paise and in that process got the machines of the defendant, fixed in the cinema hall, attached therein. 5500.00 each along with forwarding letters dated 29.10.1983 and 14.11.1983. Thereafter the plaintiff had to lodge Execution Case No. 7 of 1983 for realisation of the aforesaid decreetal amount of Rs. 59, 683.17 paise and in that process got the machines of the defendant, fixed in the cinema hall, attached therein. The defendant appeared in the said Execution proceeding, deposited the decreetal amount and got the machinaries repaired. 8. The plaintiff filed the present suit for eviction of the defendant, as he failed to pay the arrears of rent within the period reserved as per the compromise decree and also the subsequent rent within the time reserved in the deed of lease. 9. The defendant appeared in the Suit, filed written statement and contested the suit According to the defendant, the suit was barred under Sec. 47 of the Civil Procedure Code. The plaintiff already realised the said amount of Rs. 59, 683.17 paise vide Execution Case No. 7 of 1983. The plaintiff thereafter filed another Execution Case No. 1 of 1984. She cannot be allowed to take recourse of two parallel proceedings in respect of the same subject matter. The suit was also barred by doctrine of actual and/or constructive res judicata, as a separate suit would not lie for execution of a compromise decree. The terms of a registered lease deed cannot be altered by means of subsequent correspondence. The accepted and established mode of payment since the time of the original lease deed had all along been by way of cheque and the plaintiff always accepted the same. The relief with respect to the arrears of rent as per the compromise decree was, therefore, barred by principle of estoppel, accord and satisfaction. The rent for the months of September to November, 1983, as per the regular and accepted mode of payment were sent through cheques in due time of the plaintiff through registered post, which were duly received by her. The defendant likewise has been sending the monthly rent for the months of December, 1983 and onwards through registered post along with the forwarding letters and the plaintiff has been continuously accepting those cheques sent through registered post. The defendant, therefore, pleaded that the plaintiff was not entitled to any relief and the suit was liable to be dismissed with costs. 10. The defendant, therefore, pleaded that the plaintiff was not entitled to any relief and the suit was liable to be dismissed with costs. 10. While decreeding the suit the trial court held that the defendant neither paid nor tendered the decreetal amount of Title Suit No. 192 of 1981 within the time as agreed in the compromise and as such became defaulter in payment of rent and taxes and committed breach of the terms of the said compromise decree. The terms of the lease (Exhibit 8) that unless there was default in payment of rent for three consequitive months, the Lessor cannot re-enter the premises stood superceaded by the statutory provision of Sec. 11 of the Act, whereunder the defendant became liable to be evicted for default in payment of rent for two months only. The rent for the subsequent period, i.e. September and October, 1983 was not paid in time and thereby default was committed in payment of rent by the defendant for these two months. Accordingly, in view of the provisions of Sec. 11 of the Act the defendant was held to be liable for eviction on account of default in payment of rent for these two months. The contention raised on behalf of the defendant that the lease hold was not a building within the meaning of the Act at the time of commencement of leases and as such the provision of the Act were not applicable; rather the provisions of the Transfer of Property Act were applicable, was not accepted and held that the suit in the present form was maintainable. The trial court also held that the defendant committed breach of the terms of tenancy rendering himself liable for eviction. 11. Against the said judgment and decree for eviction the defendant has preferred this Appeal. 12. Mr. The trial court also held that the defendant committed breach of the terms of tenancy rendering himself liable for eviction. 11. Against the said judgment and decree for eviction the defendant has preferred this Appeal. 12. Mr. N.K. Prasad, senior counsel for the defendant-appellant, submitted that in view of the express description of the suit premises in the original deed of lease as also in view of the fact that the building was to vest in the lessor on the expiry of the period of 51 years, the trial court has gravely erred in holding that the suit premises fall within the definition of the term "building" and as such the provisions of the Act would be applicable and that the provisions of the Transfer of Property Act had no application to the facts of this case. Further, in terms of the lease deed (Exhibit-9), only in case of default in for three consecutive months by the lessee, the lessor could have the right to re-enter the demised premises and as such the trial court has erred in holding the lessee to be liable for eviction on default in payment of rent for the months only. According to Mr. Prasad, the tenancy was being governed under the terms of the lease and the provisions of Sec. 11 of the Act could not have superceaded the name. The judgment and decree under Appeal, therefore, is fit to be set aside and the suit be dismissed. 13. On the other hand, Mr. N.M. Banerjee, counsel for the plaintiff-respondent, submitted that as per the description in the lease deed the demised premises with three continguous plots of land together partly constructed cinema building were let out for the purpose of completing construction of the cinema hall and for carrying on business by giving public exhibition of cinema and all other business and, as such the provisions of the Act were applicable. It was further contended that since the defendant committed default in payment of rent for two consecutive months, i.e., September and October, 1983, under the provisions of Sec. 11 of the Act, he rendered himself liable for eviction and, therefore, the trial court has rightly decreed the suit. 14. Admittedly the Respondent is the landlady and she leased out the suit premises to M/s. Amalgamated Films, was assigned its leasehold interest to the Appellant. 14. Admittedly the Respondent is the landlady and she leased out the suit premises to M/s. Amalgamated Films, was assigned its leasehold interest to the Appellant. The Respondent filed Title Suit No. 192 of 1981 against the Appellant, which was disposed of in terms of compromise, whereby the Appellant who required to pay arrears of rent to the tune of Rs. 59, 683.17 paise and Municipal Tax dues of Rs. 19, 927.95 pased within 45 days from the date of the said compromise petition. The Appellant paid the decreetal amount towards Municipal tax on 19.10.1983 by Bank draft which was duly received by the Respondent. The Respondent deposited the decreetal amount of arrears of rent in Execution Case No. 7 of 1985 to the credit of the Respondent. The Appellant sent the rent for the month of September and October, 1983 on 29.10.1983 and 14.11.1983 respectively by cheque, which were received by the Respondent. 15. On the question as to whether prior to execution of the lease, the premises in question was vacant land or building within the meaning of the Act, the parties have led evidence. On behalf of the plaintiff, P.W.I in his examination-in-chief as well as in course of cross-examination in paragraph 14 stated that the Cinema Hall was partly constructed. Its ground floor including the stage, green rooms and stairs cases complete and on the first floor walls upto the lintel level and the Auditorium walls had already been constructed and only the roofs thereof as well as of the foyer portion were to be constructed. As per P.W. 5 the construction was started by the plaintiffs husband in the year 1968 and earlier to the lease in question construction of the ground floor was complete. The auditorium, stage and foyer portion of the Cinema Hall were already constructed. P.W. 6 deposed to the effect that the ground floor including the roof of the waiting rooms and stairs were already constructed and only the roof of the auditorium was to be constructed. The plaintiff (P.W. 7) stated that the construction of ground floor including waiting hall, both sides stairs, green rooms, audotorium (except its roof) managers room, toilet, booking counter etc. were complete. Besides this, the plaintiff brought on record certain documentary evidence to prove constructions made prior to the lease in question. The plaintiff (P.W. 7) stated that the construction of ground floor including waiting hall, both sides stairs, green rooms, audotorium (except its roof) managers room, toilet, booking counter etc. were complete. Besides this, the plaintiff brought on record certain documentary evidence to prove constructions made prior to the lease in question. Exhibit 1 is the letter dated 30.11.1971 of the original lessee-M/s. Malgamated Films giving full details of existing constructions as on the date of lease, Exhibits I/A and 1/B are correspondence dated 13.1, 1969 and 14.1.1969 between the plaintiffs husband and one Sri Lalit Sen Gupta, who was supervising the construction, Exhibit 2 is the order of assessment of Income Tax of the plaintiff wherein the claims of expenditure towards construction of the cinema building right from the financial year 1968-69 have been dealt with. Exhibit 3 to 3/k are the twelve vouchers of the expenditure incurred in the said construction in 1969-70. Exhibits 4 to 4/c are the four bills of January, 1970, relating to the construction expenses of the cinema building and Exhibit 5 is the valuation report dated 3.1.1972 showing constructions done to the tune of Rs. 1, 24, 500.00. The aforesaid documents proved that at the time of commencement of Lease (Exhibit 9), the cinema building was partly constructed. On the other hand D.Ws. 1 and 2 deposed to have no knowledge about the constructions made by the husband of the plaintiff earlier to the execution of the Lease in question. D.W. 3 admitted that constructing were started in the year 1968 and were completed in the year 1972. It appears that none of the defendants witnesses had any idea of the constructions made prior to the execution of the Lease. The defendants witnesses, therefore, have not been able to contribute any thing to the defendants contention that the building standing on the land comprised within three continguous plots had been constructed by the original lessee and that the construction, if any, done by the plaintiffs husband prior to the lease cannot be termed as "Building" within the meaning of the Act. Although full details of the constructions made prior to the lease were not mentioned in the Lease deed (Exhibit 9) but the description of the demised premises as given therein shows that three contiguous plots of vacant land together with partly built cinema hall were leased out and the dominent intention of the parties was to let out the premises for being used as a cinema theatre. 16. "Building" as defined under the Act, means any building, or hut or a part of the building or hut, let or to be let separately for residential or non-residential purposes and includes grade, grounds and out-houses, if any, appurtenant thereto. According to the dictionary meaning, building means edifice created by art and fixed upon or over the soil composed of stone, bricks, marble or wood or other proper substance connected together and designed for in the position in which it, is so fixed. In ordinary course building comprise, not only the fabric of building but also land upon which it stands. The word "building" is more general and wider than "house", a building need not be roofed but a house must be roofed. Building includes premises also with entire furnitures, fittings and electrical installations and is not restricted to residential house only. Building also denotes a structure of the nature of premises intended for human habitation or for non-residential purposes, such as business. Building need not be completed structure. In etymological sense it means anything built. In Md. Shan Alam V/s. Abdul Hamid 1984 PLJR 102, this Court pointed out that the definition of "building" is very wide and court should also give it widest application. 17. Having regard to the terms of the lease and sorrounding circumstances, I find that the trial court rightly held that the lease hold was a constructed building and it was let out as such and the provisions of the Act were applicable. Accordingly, I hold that the premises in suit was a building within the meaning of the Act and the suit was maintainable. 18. It is true that under Clause (g) of the terms of compromise in Title Suit No. 192 of 1981, for breach of any of the convenants reserved therein, by the defendant, the plaintiff was entitled to initiate appropriate legal proceeding as provided under law. The arrears of rent for the period October, 1982 to August 1983, amounting to Rs. 18. It is true that under Clause (g) of the terms of compromise in Title Suit No. 192 of 1981, for breach of any of the convenants reserved therein, by the defendant, the plaintiff was entitled to initiate appropriate legal proceeding as provided under law. The arrears of rent for the period October, 1982 to August 1983, amounting to Rs. 59683.17 paise as well as the Municipal tax from 6.2.1981 to 31.3.1983 to the tune of Rs. 19927.96 paise, as per the said compromise decree was payable by the defendant to the plaintiff within 45 days from 16.8.1983, the date on which the compromise petition was filed in court, i.e., by 30.9.1983. The defendant admittedly on 27.9.1983 sent two cheques for Rs. 59683.17 paise and Rs. 19927.96 paise to the plaintiff, but she did not in cash those cheques and asked the defendant by a notice dated 11.10.1983 to vacate the premises by 31.10.1983 on account of the alleged breach of the terms of the aforesaid compromise decree. Thereafter on 19.10.1983 the defendant got back his cheque dated 29.9.1983 for Rs. 19927.96 paise and paid the said amount to the plaintiff by a bank draft and deposited Rs. 59683.17 paise in Execution Case No. 7 of 1983. In this manner the plaintiff realised the aforesaid amount from the defendant and the part of the compromise decree passed in Title Suit No. 192 of 1981 relating to the arrears of rent and Municipal tax was satisfied. In my opinion, the delay, if any, in payment of the aforesaid amount cannot be a cause of action for eviction of the defendant from the premises in suit under the provisions of the Act and the plaintiff is not entitled to a decree for eviction in this suit on that account. The plaintiff, therefore, cannot get any relief in the present suit against the defendant for alleged non-compliance or breach of the terms, if any, of the aforesaid compromise decree. 19. The plaintiff has claimed a decree for eviction also on the ground that the defendant failed to pay rent for the months September to November, 1983 within the time reserved in the deed of lease Exhibit 9 and thereby made himself liable for eviction on account of the said default. 19. The plaintiff has claimed a decree for eviction also on the ground that the defendant failed to pay rent for the months September to November, 1983 within the time reserved in the deed of lease Exhibit 9 and thereby made himself liable for eviction on account of the said default. It is true that the tenancy in question in governed by the said registered deed of lease dated 25.11.1971, whereby and whereunder monthly rent was payable on or before 13th day of each and every following month. The defendant sent a cheque dated 29.10.1983 for Rs. 5500.00 by way of rent for the month of September, 1983 and Anr. cheque dated 14.11.1983 for the same amount being rent for October, 1983 and both cheques were duly received by the plaintiff but she did not encash them on the ground that payment of rent by cheque was not acceptable to her and that those two cheques were received much after the due date fixed in the Lease. So far as the rent for the month of November, 1983 was concerned, according to the Lease it was payable on or before 15.12.1983, but I find that the suit was filed on 6.12.1983, i.e., earlier to the said due date and as such there was no occasion of any default on the part of the defendant in payment of rent for November, 1983 upto the date of filling of the suit. The plaintiffs grievance, if any, regarding the rent for the month of November, 1983 could not have been the subject matter of the present suit and so the trial court rightly did not consider the same. The question for consideration in the present suit, therefore, was an to whether the defendant was liable for eviction for the alleged non-payment of the amount of rent for the month, September and October, 1983 within the time fixed in the Lease deed. 20. A perusal of the Lease deed (Exhibit 9) reveals that monthly rent was payable on or before 15th day of each and every following months and if the monthly rent for three consecutive months remained unpaid, the decree was to be treated to have come to an end and the Lessor (plaintiff) acquired right to re-enter into the premises. 20. A perusal of the Lease deed (Exhibit 9) reveals that monthly rent was payable on or before 15th day of each and every following months and if the monthly rent for three consecutive months remained unpaid, the decree was to be treated to have come to an end and the Lessor (plaintiff) acquired right to re-enter into the premises. So the Lessee (defendant), according to the Lease cannot be held to be liable for eviction merely for default in payment of rent for a particular month, a few days after the date reserved/fixed, unless there was default on his part for non-payment of rent of three consecutive months. There, is a delay of 14 days in sending the rent for the month of September, 1983 and the rent for October, 1983 appears to have been sent within due time and on the date of filling of the suit there was no occasion of accumulated arrears of rent for three consecutive months and as such the plaintiff had no cause of action to evict the defendant. 21. I do not find any specific mode of payment of rent prescribed in the deed of Lease (Exhibit 9). The defendant claimed regular and accepted mode of payment of rent by cheque, whereas the plaintiff claimed to have informed the defendant by letter, more than once, that payment through cheques would not be acceptable to her and directed payment in cash or by bank draft. Payment of rent by cheque is not prohibited in law. If the plaintiff for her convenience wanted payment of rent either in cash or by bank draft, the proper course was to negotiate and get consent of the defendant in this matter. The plaintiff on her own accord could have not forced the defendant for payment either in cash or by bank draft under the threat that payment by cheque shall not be accepted by her. In such circumstances, the defendant cannot be said to have not paid the rent for the months September and October, 1983 at all and is not liable for eviction of this score. 22. In the result, this Appeal is allowed, the impugned judgment and decree passed by the trial court is set aside and the suit is dismissed. However, there will be no order as to costs.