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1998 DIGILAW 297 (DEL)

CANARA BANK v. SHANTI VAISH

1998-04-15

ARUN KUMAR, M.S.A.SIDDIQUI

body1998
M. S. A. Siddiqui, J ( 1 ) THIS is directed against the judgment dated 27. 2. 1997 passed by the ADJ Delhi in Civil Suit No. 53/95 decreeing the respondents suit for appellant s eviction from suit premises and also for recovery of mesne profits. ( 2 ) THE backdrop of facts is this. By lease dated 18. 12,1990, the respondents leased to the appellant suit premises for five years commencing from 6. 10. 1989. Clause (2) of the lease deed (Ex. Public Witness. I/ 2) provided for a renewal of the lease and was in the following terms. THE lessee shall, however, have the option to continue the lease thereafter for a further period of provided the option is exercised by servicing a registered notice in writing 6 months prior to the expiry of the lease period. " ( 3 ) ON 9th May, 1994, the appellant Bank sent to the respondents the notice (Ex. Public Witness. 1/d-1) exercising its option for renewal of the lease for a period of 5 years from 6. 10. 1994 till 5. 10. 1999. On 23. 7. 1994, respondents sent a registered notice (Ex. P. W. 1/3) to the appellant Bank terminating its tenancy w. e. f. 5. 10. 1994. Despite service of the notice to quit (Ex. P. W. 1/3), appellant did not vacate the suit premises. Thereafter, respondents filed the present suit for appellant s eviction from the suit premises. ( 4 ) THE appellant/defendant contested the respondents/plaintiffs claim on various grounds. The defendant pleaded, inter alia that it had exercised the option of renewal of lease by serving the notice dated 9. 5. 1994 upon the respondents as a result whereof the lease was renewed for a period of 5 years w. e. f. 6. 10. 1994 till 5. 10. 1999 and the respondents had also accepted rent from the defendant for periods subsequent to the said notice in accordance with the terms and conditions of the lease deed dated 18. 12. 1990. The defendant further pleaded that the respondents are not entitled to terminate the lease prior to the expiry of the period of 5 years for which the renewal was promised and agreed to by the respondents under the terms and conditions of the lease deed dated 28,12. 1990 and as such the alleged termination of the lease by the respondents vide notice dated 23. 7. 1990 and as such the alleged termination of the lease by the respondents vide notice dated 23. 7. 1994 is illegal and of no consequence. ( 5 ) THE learned ADJ upheld the respondents claim that the lease had been validly determined by service of a quit notice u/s 106 of the TPA and accordingly decreed their suit. ( 6 ) TEAMED counsel for the appellant convassed the following contentions before us : I) the appellant having exercised the option of renewal within the time limited by Clause (2) of the lease deed dated 18. 12. 1990 is entitled to a renewal of lease and as such an action in ejectment is not maintainable; (ii) the notice to quit dated 23. 7. 1994 is invalid and ineffective as it did not expire with the end of the tenancy month of the appellant (iii) the ADJ has erred, in awarding damages/mesne profits @ Rs. 30. 000. 00 p. m. by ignoring the terms and conditions of the lease deed dated 28. 12. 1990; ( 7 ) ON a persual of the impugned judgment, it appears that the ADJ has confined his attention to the question whether any valid quit notice u/s 106 of the TPA had been served upon the appellant without entering into the controversy whether such a notice was necessary or not. The ADJ completely overlooked the fact that the lease was lor a term of 5 years with a covenant for renewal for another 5 years i. e. a lease for definite duration. It needs to be highlighted that lease deed is regd. and ADJ has erroneously held that it is an unregistered document. The lease deed (Ex Public Witness 1/2) shows that the respondents, in consideration of the rent reserved, and the conditions contained therein, demised unto the appellant Bank the tenement of the suit premises for 5 years w. e. f. 6. 10. 19x9, with option on the part of the appellant for renewal and subject to its exercising the said option by serving a registered notice in writing 6 months prior to the expiry of the lease period. Relevant clauses of the lease deed (Ex Public Witness 1/2) are (I) The lease for purpose of payment of rent and period of lease shall, be deemed to have commenced from 6. 10. 1989. Relevant clauses of the lease deed (Ex Public Witness 1/2) are (I) The lease for purpose of payment of rent and period of lease shall, be deemed to have commenced from 6. 10. 1989. (2) "this lease shall be in force for a period of 5 years certain from 6. 10. 1989. The leasee shall however, have the option to continue the lease thereafter a further period of 5 years provided the option is exercised by serving a registered notice in writing 6 months prior to the expiry of the lease period. " ( 8 ) THUS, the lease deed (Ex Public Witness. 1/2) makes it clear that the lease was to expire on 5-10-1994 and the appellant was required to exercise the option for renewal of lease 6 mondis prior to the expiry of the lease period. Admittedly, on 9. 5. 1994, the appellant made a written request for the renewal. Learned counsel for the respondents contended that the notice for renewal (Ex-PW 1/d-l) being made out of time was ineffective and that there was no ground for excusing the delay. In the instant case, the lease fixes a time within which the option for renewal of. ease is to be exercised. It is an admitted position that the appellant had not exercised the said option within the stipulated time. In our opinion, the stipulation as to time in clause (2) of the lease deed (Ex Public Witness 1/2) should be regarded as of the essence of the contract. Thus, the appellant not having exercised the option of renewal within the time limited by the clause is not entitled to a renewal. In this connection, we may usefully excerpt the following observations of their Lordship of the Supreme Court in Caltex (India) Vs. Bhagwan Devi AIR 1969 SC 405 :- "in the present case, the lease fixes a time in which the application for renewal is to be made. The time so fixed is of the essence of the bargain. The tenant loses his right unless he makes the application within the stipulated time. Equity will not relieve the tenant from the consequences of his own neglect which could well be. avoided with reasonable diligence. "it is equally clear as provided by Section 111 of the TPA that the lease of immovable property determines by various modes therein prescribed. The tenant loses his right unless he makes the application within the stipulated time. Equity will not relieve the tenant from the consequences of his own neglect which could well be. avoided with reasonable diligence. "it is equally clear as provided by Section 111 of the TPA that the lease of immovable property determines by various modes therein prescribed. Now, if the lease of immovable property determines in any one of the modes prescribed u/s 111, me contract of lease comes to an end, and the landlord can exercise his right of re-entry. It has to be borne in mind that Section 111 (a) of the TPA, which deals with determination of a lease by efflux of time has to be read with Section 116 of the TPA. But in the present case, there is no everment in the written statement that the appellant was a tenant holding over within the meaning of Section 111 of the TPA. There is nothing on the record to show that me defendant remained in possession of me suit premises after the determination of the lease by efflux of time and the plaintiffs had expressly or by necessary implication assented to its continued possession. There being no such plea of holding over, the matter falls to be governed by Section 111 (a) of the TPA. In the instant case, the contract of lease expired by efflux of time. There is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed u/s 111 of the TPA. There is, therefore, no question of giving a notice to quite u/s 106 of the TPA (Pooran Chand Vs. Motilal AIR 1964 SC 461 ; Sardari Lal Vishwa Nath Vs. Pritam Singh AIR 1978 SC 1518 ; Shanti Devi Vs. Amal Kumar AIR 1981 SC 1550 ). ( 10 ) LEARNED counsel for the appellant attempted to scuttle the merits of the case by attempting to take the stand that the respondents had not sought the appellant s eviction from the suit premises on the ground of determination of lease by efflux of time but their specific case is that the contract of tenancy had been terminated by the notice to quit u/s 106 of the TPA and as such the ejectment suit is not maintainable. We are not impressed by the-said submission of the learned counsel for the appellant. In Shanti Devi Vs. Amal Kumar (Supra), it was held that the panics cannot by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations following therefrom. In the instant case, the lease was a lease for a definite term and, therefore, expired by efflux of time u/s 11 l (a) of the TPA. That being so, the service of notice u/s 106 of the TPA was not necessary. On 5-10-1994, the relationship of landlord and tenant ceased, and the defendant became trespasser. Therefore, both on principle and authority the contention of the learned counsel for the appellant cannot be accepted. ( 11 ) LASTLY, it was contended that the learned ADJ has committed a grave error in awarding mesne profits @ Rs. 30,000. 00 p. m. which is contrary to the terms and conditions of the lease deed. The plaintiffs have claimed mesne profit @ Rs. 40. 000. 00 p. m. Plaintiffs witness Smt. Indra Vaish (PW2) deposed that at the time of institution of the suit, market rate of rent of the suit premises was Rs. 40,000. 00 p. m. The appellant has not adduced any evidence to rebut the said statement of Smt. Indravaish (PW2 ). Learned ADJ, relying on the said unrebutted statement of Smt. Indra Vaish (PW2), has awarded mesne profits @ Rs. 30,0007- p. m. There is nothing on the record to show or suggest that award of mesne profits @ Rs. 30,000. 00 is either excessive or unreasonable. Consequently, we are not inclined to take a different view of this point. ( 12 ) LEARNED ADJ has also awarded mesne profits @ Rs. 30,000. 00 p. m. amounting to Rs. 1,20,0007- for periods prior to the date of filing of the suit. Learned counsel for the respondents has fairly conceded that respondents are not entitled to mesne profits @rs. 30,000. 00 p. m. for the said period. In our opinion, the plaintiffs are entitled to recover arrears of rent for the said period @ Rs. 15,0007- p. m. in accordance with the terms and conditions of the lease deed. The judgment of the ADJ must, therefore, be modified so as to direct the appellant to pay to the respondents Rs. 60,0007- instead of Rs. In our opinion, the plaintiffs are entitled to recover arrears of rent for the said period @ Rs. 15,0007- p. m. in accordance with the terms and conditions of the lease deed. The judgment of the ADJ must, therefore, be modified so as to direct the appellant to pay to the respondents Rs. 60,0007- instead of Rs. 1,20,0007-, as arrears of rent for the aforesaid period.