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2000 DIGILAW 556 (PNJ)

Bank Of Maharashtra v. Mahesh Chander And Ors.

2000-05-24

R.L.ANAND

body2000
Judgment R.L.Anand, J. 1. This is a defendants appeal and has been directed against the judgment and decree dated 3.12.1998, passed by the Additional District Judge, Ambala, who affirmed the judgment and decree dated 31.6.1997 passed by the Court of Civil Judge (Jr. Division), Ambala Cantt. who decreed the suit of the plaintiffs for possession against the present appellant. 2. Some facts can be noticed in the following manners. The case set up by the plaintiff before the Trial Court was that they are the owners of the building bearing House Tax No. 6269, 6269/2 situated at Sanjay Gandhi Marg, Ambala Cantt. The defendants were in need of the premises for their Branch Office at Ambala Cantt. They requested the plaintiffs to give them premises on lease on the ground floor of the three storeyed building to be constructed by them after demolishing the aforesaid old building for a period of five years with option to renew the lease for further period of four years at the rate of Rs. 2.50 per square feet of the carpet area. The plaintiffs requested the defendants to grant finance for construction of building. Defendants agreed to do so. An agreement to that effect dated 9th April, 1981 was reduced into writing. Plaintiffs agreed to give the possession of the said premises to the defendant within six months or by 15th August, 1981 whichever was earlier. 3. The defendants advanced loan of Rs. 2 lacs to the plaintiffs to raise construction. In order to secure the repayment of loan plaintiffs mortgaged their property with the defendants. 4. The plaintiffs raised the construction in the shape of three storeyed building and let out the premises on the ground floor to the defendants as -per agreement. Plaintiffs could not hand over the possession by 15th August, 1981 as agreed. Defendants wrote a letter to the plaintiffs dated 16.11.1981 to expedite the delivery of the possession. The plaintiffs assured to the defendants that the possession for the ground floor will be delivered by 10.1.1982. Ultimately, the possession was handed over to the defendants on 5.2.82. According to the plaintiffs, the possession could not be delivered in time because the construction could not be completed by the agreed time. After the expiry of five years period, the defendants wanted to extend the lease agreement for a period of four years w.e.f. 1.7.1989 at the rate of Rs. According to the plaintiffs, the possession could not be delivered in time because the construction could not be completed by the agreed time. After the expiry of five years period, the defendants wanted to extend the lease agreement for a period of four years w.e.f. 1.7.1989 at the rate of Rs. 2.87 per square feet carpet-area to which the plaintiffs did not agree. Plaintiffs terminated the tenancy by serving the defendants with a notice under Section 106 of the Transfer of Property Act. Hence this suit was instituted on 3.11.1991. 5. The suit was contested by the defendants mainly on the ground that the building was an old one; it was not a case of new construction. Rather it was a case of renovation. 6. On the pleadings of the parties the trial Court framed the following issues:- 1. Whether the plaintiff is entitled to the possession of the suit property by ejecting the defendant from the same on the grounds as alleged in the plaint? OPP 2. Whether the suit is not maintainable in the present form and the Haryana Rent Act is applicable to the suit property as alleged in para No. 1 of the P.O. in the W.D. ?OPD 3. Whether the suit is not maintainable on the grounds as alleged in para No. 2 of P.O. in the W.S. ?OPD 4. Whether the suit is bad for non Joinder of necessary parties? OPD 5. Relief. The parties led oral as well as documentary evidence in support of their case and on the conclusion of the trial, it was observed that it was a case of new building and the suit has been instituted with in ten years from the date of the completion of the building. Resultantly, the suit of the plaintiff was decree. 7. Aggrieved by the judgment and decree of the trial Court, the defendant-Bank filed the appeal before the first appellate Court and the appeal was also dismissed for the reasons, given in para No. 12 of the judgment. "From the evidence led by the plaintiffs and the documents placed on the file it is established that the new building was constructed by the plaintiffs after demolishing the old one which was a single storey building. "From the evidence led by the plaintiffs and the documents placed on the file it is established that the new building was constructed by the plaintiffs after demolishing the old one which was a single storey building. The parties for the first time entered into an agreement dated 9.4.81 Ex.P.10 In clause 1 of that agreement it was specifically mentioned that a triple storeyed building was to be constructed on a piece of land bearing House Tax. No. 6269(portion) and 6269. The possession of the new building was also to be handed over to the defendant by 15th August, 1981. The plaintiffs could not complete the construction by that date. Therefore, defendants wrote a letter dated 16.11.1981 Ex. P.1 to the plaintiffs insisting upon them to complete the construction without any further delay and to hand over the possession by 15th of December, 1981. In response of that letter, plaintiffs assured to complete construction by 10th of January, 1982. But they completed the construction on 7.2.1982 and as soon as the construction was complete, they intimated that fact to the defendants vide letter dated 7.2.1982 Ex.P.3 and requested them to take over possession of the building on 15.2.1983. Before raising the construction, the plaintiffs had got sanctioned site plan from the Municipal Committee which was sanctioned on 11.6.81. Although the copy of the site plan has not been placed on the file but that is not fatal for the plaintiffs. Sh. Manmohan Banerjee who was the owner of the remaining portion of property No. 6269 had also got the site plan sanctioned from the Municipal Committee to raise new construction over his portion. His site plan was also sanctioned same day i.e. on 11.6.1981. His son has placed on the file the coy of the site plan Ex. P11 sanctioned by the Municipal Committee. It was not possible for Manmohan Banerjee to raise construction independently, because the portion which had fallen to his share was interconnected with the portion which had fallen to the share of the plaintiffs in family partition. Therefore, the plaintiffs as well as Manmohan Banerjee raised construction simultaneously and he also offered the possession to the defendants vide letter dated 9.2.1982 Ex.P.14. In that letter defendants were requested to take the possession of his portion w.e.f. 15.2.1982. Therefore, the plaintiffs as well as Manmohan Banerjee raised construction simultaneously and he also offered the possession to the defendants vide letter dated 9.2.1982 Ex.P.14. In that letter defendants were requested to take the possession of his portion w.e.f. 15.2.1982. All these circumstances lead to no other conclusion except that new building was constructed by the plaintiffs and Manmohan Benerjee after demolishing the old one. The old Building was single storey whereas the new building was triple storeyed building. The present suit was filed on 13.11.1991 i.e. within the ten years of the date of construction and completion of the premises in dispute and as such the same is exempted from the provisions of the Haryana Urban Control of rent and Eviction) Act. 1973. Findings of the learned trial Court on issues No. l and 2 are thus affirmed." 8. In this manner, the present Regular Second Appeal has been filed by the defendants. 9. I have heard Shri A.P. Jagga, Advocate, for the appellants and Shri Ashok Gupta, Advocate, for the respondents and with their assistance have gone through the paper book of this case. 10. In the view of the Court both the courts below have rightly held that it was a case of new building which was completed on 7.2.1982. The very conduct of the defendant bank shows that it was a case of new construction. So much so defendant bank advanced loan to the plaintiffs in order to raise the construction. On the completion of the construction, the possession was delivered to the defendants. It was not a case of renovation. On this, there are concurrent findings of fact which, in my opinion, are based on proper appreciation of evidence and no substantial question of law arises in this case. 11. Faced with this difficulty, learned counsel Shri Jagga drew my attention to a judgment reported as A.I.R. 1997 S.C. 2291. Suresh Kumar Jain v. Shanti Swarup Jain and Ors., and submitted that it was obligatory on the part of the owner to prove the exact date of the, completion of the building and since there is no satisfactory evidence led on behalf of the plaintiffs to prove this fact, therefore, the plaintiffs cannot take the benefit of the exemption provided under Section 3(1) of the Haryana Urban Control of Rent and Eviction Act, 1973. 12. 12. I am not in a position to subscribe to the argument raised by the learned counsel for the appellant. In the opinion of this court, the building was completed on 7.2.1982 and earlier to that the possession could not be delivered to the defendant who was craving for all the times for the delivery of the possession. In these circumstances, the suit has been instituted within ten years from the date of the completion of the building and, therefore, the provisions of Rent Act are not applicable in this case. 13. The suit has been rightly decreed by the Courts below. I do not see any illegality or impropriety in the impugned judgment. Dismissed. 14. However, defendant appellant is granted three months time to vacate the demised premises failing which it will always be open for the plaintiffs to take the possession of the property through Court of law.