Delhi High Court (May 3, 2002) 2002 (TLS)127203 2002-AD (Del)-4-725 STATE BANK OF PATIALA Vs. Anant Raj Agencies Properties USHA MEHRA ( 1 ) THE short question that arises for consideration in this appeal is; whether notice of termination under Section 106 of the Transfer of Property Act (hereinafter called the Act) stood waived because amount equivalent to rent was accepted by the respondent/plaintiff after the termination of tenancy. ( 2 ). The question whether respondent accepted it as rent after the termination of tenancy is a question of fact. A perusal of the judgment under challenge shows that the learned Additional District Judge took note of the intention of the respondent while considering this issue, and hence, rejected the defence of the appellant. ( 3 ). In order to better appreciate the challenge, we may have a quick glance to the facts of the case. Respondent/plaintiff is the owner/landlord of the premises bearing No. C-31 and 32, Connaught Place, New Delhi. First floor of the premises No. C-32 was let out to the appellant/defendant for a period of five years with effect from 8th April, 1981 with one renewal option for another 5 years on 10% enhancement of rent. It was agreed between the parties that the appellant would pay rent Rs. 11/- per sq. ft. totalling at Rs. 21,065/- for the initial period of 5 years. After the expiry of initial period of 5 years, if appellant exercised the option then renewal was to be at 10% enhanced rent. Appellant exercised option, accordingly the lease was renewed from 8th April, 1986 to 7th April, 1991 on a monthly rent of Rs. 23,171. 50 paise. It was the case of the respondent that tenancy expired by efflux of time and even otherwise the same was terminated vide notice dated 31st January, 1991 Exhibit, p1. The appellant was asked to deliver the vacant possession of the premises by the midnight of 7th April, 1991. Despite the termination notice when the premises was not vacated by the appellant, the respondent filed the suit for possession as well as for mesne profits Rs. 67,025/- per month on 15th April, 1991. In its written statement, appellant took number of pleas namely firstly that tenancy was not terminated as per Section 106 of the Act. Secondly having accepted the rent for the month of April, 1991 notice of termination stood waived. 67,025/- per month on 15th April, 1991. In its written statement, appellant took number of pleas namely firstly that tenancy was not terminated as per Section 106 of the Act. Secondly having accepted the rent for the month of April, 1991 notice of termination stood waived. He denied that the market rate of rent was Rs. 67,025/- per month. Issues were framed. Challenge by the appellant pertains only to issues No. 2 and 7, which are under our consideration and reproduced as under:- issue No. 2 whether the tenancy of the defendant has been duly terminated? OPD issue No. 7 whether the tenancy itself has been renewed by the plaintiff by accepting rent and the notice stand waived? OPD ( 4 ). By the impugned judgment both these issues have been decided in favour-of the respondent/landlord. As already pointed out above, main thrust of argument at the Bar by the appellant was against decision on issue No. 7. Mr. Vishnu Mehra contended that notice terminating the tenancy stood waived because respondent/landlord accepted the rent even for the month of April, 1991. This proves the intention of the respondent to have the tenancy subsisting. After the rent was accepted without any reservation and protest it proves the intention of the respondent to continue with the tenancy. On this short ground the suit ought to have been dismissed. To support his contentions that in such eventuality notice stood waived he placed reliance on the following decisions (i) Mahomed Syedol Ariffin bin mahomed Ariff Vs. Yeoh Ooi Gark, AIR 1916 Privy Council, 242. (ii) Bengal Nagpur railway Company Limited Vs. Firm Bal Mukunda Biseswar La//, Al R 1923 Calcutta 663. (iii) Manicklal Dey Chaudhuri Vs. Kadambini Dassi, AIR 1926 Calcutta, 763. (iv) Kapur chand Vs. Kanji, AIR 1959 Andhra Pradesh 346. (v) Jumma Masjid, Mercara Vs. Kodimaniandra Deviah and others, AIR 1962 Supreme Court 847 (V 49 C 119 ). (vi) Ram dayal Vs. Jawala Prasad, AIR 1966 Allahabad, 623. (vii) Tayabali Jaferbhai Tankiwala vs. M/s. Asha and Co. And Anr. , 1970, Vol. 2, Supreme Court Reports, 554. (viii) Smt. Kanta manocha Vs. M/s Hindustan Paper Corpn. , 74 (1998) Delhi Law Times 493. ( 5 ). On the other hand, Mr. Harish Malhotra while refuting these arguments of Mr. Vishnu mehra contended that on facts of this case decisions relied by the appellant are distinguishable. And Anr. , 1970, Vol. 2, Supreme Court Reports, 554. (viii) Smt. Kanta manocha Vs. M/s Hindustan Paper Corpn. , 74 (1998) Delhi Law Times 493. ( 5 ). On the other hand, Mr. Harish Malhotra while refuting these arguments of Mr. Vishnu mehra contended that on facts of this case decisions relied by the appellant are distinguishable. Secondly no intention can be inferred if casual amount equivalent to rent was accepted by the respondent for use and occupation of the premises by the appellant. Moreover, no intention to continue with the tenancy can be inferred rather the facts of this case show that respondent had no intention to keep the appellant as tenant. This is so clear from the fact that tenancy was terminated w. e. f. 7. 4. 91 and suit for possession was immediately filed on 15. 4. 91. This action of the respondent clearly show that he had no intention to let the lease subsist. To support his arguments that in such circumstances intention to continue with lease does not arise he placed reliance on the following decisions; (i) Vijayshree Commercial (P) Ltd. Vs. Tika Jagjit Singh Bedi, 1996 (38) DRJ (DB), 66; (ii) Ram Pistons and Rings Ltd. Vs. Dr. Banwari La/, 1998 (46) DRJ (DB), 175; and (iii) Bank of Rajasthan Ltd. Vs. Ml s. Sarin and Co. , 83 (2000) Delhi Law Times 79 (DB ). ( 6 ). Before we deal the judgments relied by the respective counsel, it would be convenient and relevant to go through the evidence led by the parties and as available on record. Pankaj Nakra, Manager of the respondent appearing as PW-1 stated that after termination of the tenancy no rent was accepted by the plaintiff. He further testified that whatever amount was received it was without prejudice to plaintiff s rights and was accepted as damages for use and occupation of the premises by the Bank. This part of Pankaj Nakra s testimony remained unrebutted on record. It was neither subjected to cross-examination nor challenged. Mr. O. P. Kaith, DW-1, however, did say that the rent of the disputed property was paid upto date but when subjected to cross-examination, Mr. O. P. Kaith (DW-1) could not say whether the amount paid was rent or damages. This part of Pankaj Nakra s testimony remained unrebutted on record. It was neither subjected to cross-examination nor challenged. Mr. O. P. Kaith, DW-1, however, did say that the rent of the disputed property was paid upto date but when subjected to cross-examination, Mr. O. P. Kaith (DW-1) could not say whether the amount paid was rent or damages. He even could not produce the covering letters alleged to have been issued while giving cheques by the Bank to the respondent/landlord. When asked to produce those covering letters he changed his statement and said that cheques used to be collected by the representative of the respondent/plaintiff. When questioned further, he could not say whether those cheques were towards rent or not nor could say for what period the increased rent was paid nor could produce any letter to show that rent was paid for the month of April, 1991. From the testimony of Mr. Kaith (DW-1), it cannot be inferred that rent was paid what to talk of rent for the month of April, 1991. The bank in fact failed to produce any document to substantiate this assertion nor could prove that respondent had the intentions to allow the subsisting of tenancy. In fact the Bank kept back the best evidence i. e. the covering letters along with which the cheques were given to the respondent. From the facts on record it is not established that amount as rent was accepted by the respondent after the termination of the tenancy. Even otherwise to attrad the provision of Section 113 of the Act, it was for the appellant to prove that respondent had the intention to keep the tenancy alive. The facts on record suggests otherwise. Hence, no presumption of existing of tenancy can be inferred. The notice terminating the tenancy was to take effect from the midnight of 7th April, 1991 whereas the suit for possession was filed on 15th April, 1991. This fact in itself indicate that the respondent had no intention to continu with the tenancy in question. ( 7 ). In view of the facts we have to appreciate the legal submissions made at the Ba therefore, have to have glance to the relevant provisions of the Act namely Sections 100 111 (h) and 113 which are reproduced as under; "section 106. Duration of certain leases in absence of written contract or local usage. ( 7 ). In view of the facts we have to appreciate the legal submissions made at the Ba therefore, have to have glance to the relevant provisions of the Act namely Sections 100 111 (h) and 113 which are reproduced as under; "section 106. Duration of certain leases in absence of written contract or local usage. In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing, signed by or on behalf of the person giving it, and [either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party], or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. " "section 111 (h) On the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. " "section 113. Waiver of notice to quit. A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting. " ( 8 ). Keeping in view the facts and provision quoted above, we may now examine the authorities relied by the counsel for the parties. So far as the case of Mahomed Syedol Ariffin (supra) and of Jumma Masjid (Supra) are concerned, there canrot be any quarrel with proposition that the illustrations to Section is not to be rejected in constructing the text. Case of Bengal Nagpur Railway Company Limited (Supra) is distinguishable on facts. So far as the case of Mahomed Syedol Ariffin (supra) and of Jumma Masjid (Supra) are concerned, there canrot be any quarrel with proposition that the illustrations to Section is not to be rejected in constructing the text. Case of Bengal Nagpur Railway Company Limited (Supra) is distinguishable on facts. In that case the tenancy was terminated by notice effective from 1st June, 1917, however, the tenant in response to the said notice remitted Rs. 90/- to the railway company vide his letter dated 16th July, 1917 with the intimation that this amount was paid as occupation fee for the land for one year from 1st January, 1917 to 21st December, 1917. The chief auditor of the railway company sent a receipt having received the amount of Rs. 90/- on account of occupation fees of land from January to December, 1917. It is in this background that the court observed:- "the acceptance of rent due after forfeiture from the lessee - and this notwithstanding the protest of the lessor that such acceptance is without prejudice to his right to insist upon his forfeiture - operates as a waiver of the notice. " But that is not the case in hand. ( 9 ). In Manicklal Dey Chaudhuri V. Kadambini Dassi s case (Supra), Calcutta High Court relying on the intention of the landlord treated the lease as subsisting. But no such intention can be inferred from the facts in hand. Similarly the case of Kapur Chand (Supra) is distinguishable on facts. As regard Ram Dayal s case (Supra) that decision is also of no help to the appellant. The court in that case came to the conclusion that the acceptance of the rent by the landlord is to be seen in reference to his intention. Whether the landlord wanted the relations of landlord and tenant to subsist and unless that intention is inferred from the conduct, the acceptance of rent would not be a waiver. (Underlining is ours ). ( 10 ). Tayabali Jaferbhai Tankiwala s case (Supra) is also of no help to appellant because in that case landlord demanded arrears of rent arid in the second notice called upon the tenant to vacate the premises. The tenant thereafter tendered the amount of arrears as due. However, landlord rejected to accept that. (Underlining is ours ). ( 10 ). Tayabali Jaferbhai Tankiwala s case (Supra) is also of no help to appellant because in that case landlord demanded arrears of rent arid in the second notice called upon the tenant to vacate the premises. The tenant thereafter tendered the amount of arrears as due. However, landlord rejected to accept that. The landlord thereafter filed suit for ejectment on default of payment of arrears of rent and for personal use and occupation. In that case arrears as claimed in the first notice were paid after the expiry of the period of one month as given in the notice. It was in this backdrop the Apex Court while interpreting the provision of section 111 (h) and 113 of the Act observed that there was no intention to treat the lease subsisting. While dismissing the appeal, it was observed; "under Section 113 of the Transfer of Property Act a notice given under Section 111, clause (h) is waived with the express or implied consent of the person to whom it is given by any act on the part of the person giving it showing an intention to treat the lease as subsisting. The section does not in terms appear to indicate that for bringing about a waiver under the section a new tenancy by an express or implied agreement must come into existence. All that has to be seen is whether any act has been proved on the part of the appellant which shows an intention to treat the lease as subsisting provided there is an express or implied consent of the person to whom the notice is given. " ( 11 ). In the case of Bank of Rajasthan Ltd. (Supra) after the expiry of the period of notice of termination of tenancy suit was instituted within a period of 2 months. However, the landlord kept on accepting the rent for the subsequent period for about 12 months. It was in this background the court drew the inference that landlord had the intention to renew the lease. ( 12 ). Therefore, to prove waiver of notice the appellant had to prove express or implied consent of the respondent which as already mentioned above appellant miserably failed to prove. ( 13 ). In Smt. Kanta Manocha s case (Supra), notice was not valid nor it validly terminated the tenancy. ( 12 ). Therefore, to prove waiver of notice the appellant had to prove express or implied consent of the respondent which as already mentioned above appellant miserably failed to prove. ( 13 ). In Smt. Kanta Manocha s case (Supra), notice was not valid nor it validly terminated the tenancy. Beside rent was accepted for couple of months after termination of tenancy. Tenancy was terminated in that case vide notice dated 20th February, 1990. But the landlord kept on receiving the rent till November, 1990 i. e. almost for 9 months thereafter. It was in this background court observed that landlord had the intention to allow the lease to continue, whereas in the present case the notice of termination took effect on the midnight of 7th April, 1991, whereas suit was filed on 15th April, 1991. From this sole action of the respondent inference of intention to allow the appellant to continue with the tenancy cannot be inferred. Moreover, it has not been proved conclusively that the amount paid was rent rather Mr. O. P. Kaith, DW-1 admitted that he could not tell whether the amount paid was rent or damages? ( 14 ). In contrast, the authorities relied by the respondent fully apply to the facts of the present case. Division Bench in the case of Vijayshree Commercial (P) Ltd. (Supra) was dealing with almost identical facts and question of Law. In that case the amount was accepted after termination of tenancy. It was contended the notice stood waived. While repelling this argument, the Court observed:- "in order to constitute waiver of notice, there must be consent - express or implied of the person to whom the notice is given and there must be an act on the part of the person giving the notice which shows an intention to treat the lease as subsisting. " ( 15 ). Merely by accepting an amount equivalent to one month s rent for a period subsequent to the date of termination of tenancy would not amount to waiver of notice. In that case in the body of the letter tendering the amount it was not specifically stated that the amount paid was on account of rent. Therefore, the court held that inference of notice of termination having been waived by that plaintiffs could not be drawn. In that case in the body of the letter tendering the amount it was not specifically stated that the amount paid was on account of rent. Therefore, the court held that inference of notice of termination having been waived by that plaintiffs could not be drawn. To arrive at this conclusion reliance was placed on the decision of Supreme Court in the case of Basaheshar Nath Vs. C/t Delhi and rajasthan, AIR 1959 SC 149 wherein their Lordships observed:- "to constitute waiver , there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. " But that inference in the facts of this case cannot be drawn. ( 16 ). The Allahabad High Court in the case of Smt. S. Sharma Vs Gulab Devi, AIR 1972 Allahabad 435 summed up the law of waiver thus; "to constitute a waiver- of notice to quit under section 113 the tenant has to prove that the landlord by accepting the rent for the period subsequent to the termination of tenancy had an intention to treat the lease as subsisting. In the absence of any such intention on the part of the landlord being proved, mere acceptance of an amount tendered by the tenant during the pendency of the suit for ejectment against him cannot amount to waiver. " (underlining is ours ). ( 17 ). By this decision the Allahabad High Court over-ruled the law laid down in Ram Dayal s (Supra ). Madras High Court in the case of C. Sundaram Vs. V. T. Abdul Ghani, AIR 1977 madras 122 observed that :- "the acceptance of rent by the lessor merely as a "prudential act without the necessary animus to nullify the notice of termination given earlier will not constitute an act on his part with the express or implied consent of the lessee to treat the lease as subsisting. Further there must also be evidence to show that the lessee construed the act of receipt of rent by the lessor as an intention to treat the lease as subsisting and then made further payment of rant to manifest his express or implied consent to continuance of the lease. " ( 18 ). Further there must also be evidence to show that the lessee construed the act of receipt of rent by the lessor as an intention to treat the lease as subsisting and then made further payment of rant to manifest his express or implied consent to continuance of the lease. " ( 18 ). In the above decisions, emphasis is laid on the intention of the Landlord in accepting the rent after termination of tenancy. If the intention is to treat the tenancy subsisting then notice stood waived but if the amount was merely accepted as damages or occupation charges without expressly or impliedly intending to continue the tenancy then notice will not stand waived. Keeping in view the facts of this case and as already narrated above it cannot be said that the respondent accepted the amount as rent with the intention to treat the tenancy subsisting or alive, rather his conduct in filing the suit of eviction on 15th April, 1991 shows that he. never wanted the tenancy to subsist nor wanted to hold over. Appellant in this case, to our mind, miserably failed to prove that Bank paid the rent even for the month of april, 1991. No covering letter produced to prove that amount was paid as rent. Even otherwise use of the word "rent" is not decisive of the fact that the amount tendered was to keep the tenancy alive. To reach this conclusion reference can be made to Vijayshree commercial. (P) Ltd. s case (Supra) wherein it is observed that:- "use of the word rent by the tenant is not by itself decisive of his having tendered the amount as evidence of demise between the landlord and tenant remaining alive. Nor can it be inferred that the landlord having accepted the rent tendered along with the letter was necessarily accepting tendered amount so as to revive or create a demise by the landlord to the tenant. " ( 19 ). We are of the considered view that Landlord having terminated the tenancy cannot be deprived of the use and occupy charges particularly when the tenant has not surrendered the possession. Tenant cannot be allowed to use the premises without paying occupation charges. Tenant is bound to make the payment for the use of premises in its occupation. We are of the considered view that Landlord having terminated the tenancy cannot be deprived of the use and occupy charges particularly when the tenant has not surrendered the possession. Tenant cannot be allowed to use the premises without paying occupation charges. Tenant is bound to make the payment for the use of premises in its occupation. The word "rent" in that eventuality may well have been descriptive of the amount tendered by the tenant in lieu of using the premises in question. The amount may well have been accepted by the landlord in that sense. To support this view reference can be made to the decision of ram Piston and Rings Ltd. (Supra) and of Sardari Lal Vishwar Nath Vs. Preetam Singh, AIR 1978 SC 1518 wherein the Apex Court observed; "that mere acceptance of rent from a lessee would not manifest the intention of the lessor to renew the lease. Something more than mere payment and acceptance of rent would be necessary to assert that the lessor has assented to the lessee continuing in possession and the lessor intended renewal of the lease. " ( 20 ). The above observation fully apply to the facts in hand. The intention of the respondent to continue with the subsistence of the lease which has to be proved before the question of waiver could be reached is missing in the facts of this case. Now turning to issue No. 2 the appellant has not been able to point out any Infirmity in the notice terminating the tenancy. Even otherwise no fault can be found in the reasoning of the learned trial court in holding that it was a valid notice by which tenancy stood terminated. For the reasons stated above, we find no merit in the contention of the appellant. ( 21 ). For the reasons stated above, we find no merits in the appeal. The same is accordingly dismissed but with no order as to costs. --- *** --- .