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2009 DIGILAW 2769 (ALL)

Shanti Devi v. State Bank of India

2009-08-04

PRAKASH KRISHNA

body2009
JUDGMENT Prakash Krishna, J. This revision has been filed by the plaintiff landlady, under Section 25 of the Provincial Small Cause Courts Act, 1887 against the judgment and order dated 17-2-2005 passed by the Additional District Judge exercising power of small causes courts in SCC suit no. 1 of 2001-Smt. Shanti Devi Vs. State Bank of India. The said suit was filed by the present applicant for ejectment against the defendant on the allegations that the possession of the ground floor of the building was delivered on 20-9-1991 and of the first floor on 1-1-1992 to the defendant Bank. It was let out at the rate of Rs. 2.45 per sq. metre. It was also agreed that there would be 25% of enhancement of rent after every five years. The tenancy was terminated by notice dated 25-6-2001, but the defendant Bank failed to vacate the disputed accommodation. A sum of Rs. 22,739/- per month was claimed as damages pendente lite. In defence, the Bank pleaded that the possession of the accommodation was delivered to it on 1-8-1993 and the Bank is depositing the rent in the account of the plaintiff landlady. It was further pleaded that the plaintiff landlady has taken a sum of Rs. five lacs as advance money for the purposes of raising constructions and part of the said amount is still outstanding. 2. On the basis of the pleadings of the parties, three issues were framed. Issue no. 1 was to the effect as to whether the possession of the ground floor and the first floor was delivered on 20-9-1991 and 1-1-1992, as pleaded by the plaintiff or on 1-8-1993, as pleaded by the defendant. Issue no. 2 was with regard to 25% increase of rent after every five years. Issue no. 3 was with regard to the relief which may be granted to the plaintiff. 3. The parties led evidence in support of their respective cases. 4. The suit has been dismissed by the impugned judgment dated 17-2-2005 on the ground that it is premature. The trial court has found that since it is an admitted case of the plaintiff landlady that she has taken an advance of Rs. five lacs, which was to be repaid by adjusting the monthly rent, still some amount is outstanding in that account, the suit is not maintainable and the plaintiff has no right to seek decree for eviction. The trial court has found that since it is an admitted case of the plaintiff landlady that she has taken an advance of Rs. five lacs, which was to be repaid by adjusting the monthly rent, still some amount is outstanding in that account, the suit is not maintainable and the plaintiff has no right to seek decree for eviction. Challenging the aforesaid judgment and decree, the present revision has been filed. 5. Heard Sri R.C. Shukla, learned counsel for the applicant and Sri Vipin Sinha, learned counsel for the respondent Bank. 6. The main thrust of the arguments of the learned counsel for the plaintiff landlady is that the trial court was not justified in holding that the suit is premature. Elaborating the arguments, it was submitted that even if, some money was outstanding, the plaintiff landlady cannot be denied her legal right to terminate the tenancy of the Bank. The submission is that the loan transaction and letting out of the disputed accommodation to the Bank are two separate and independent transactions. There being no such agreement between the parties that unless the loan amount is repaid, the plaintiff landlady would not be entitled to evict the Bank, the suit for eviction was maintainable. 7. Sri Vipin Sinha, learned counsel for the respondent Bank, on the other hand, supports the impugned judgment and submits that at the time of institution of the suit, certain amount was outstanding against the plaintiff landlady, the suit was premature. He further informed the Court that the plaintiff landlady has cleared all the dues in the year 2007. However, he submits that it is open to the plaintiff landlady to institute a fresh suit after giving a notice under Section 106 of the Transfer of Property Act. 8. Considered the respective submissions of the learned counsel for the parties and perused the record. 9. A perusal of the impugned judgment would show that the trial court has misdirected itself. It has unnecessarily laboured too much to record the findings as to whether the possession of the disputed accommodation was delivered to the respondent Bank on the dates as alleged by the plaintiff. However, it was found that the possession was delivered on 1-8-1993, as was claimed by the defendant. It has unnecessarily laboured too much to record the findings as to whether the possession of the disputed accommodation was delivered to the respondent Bank on the dates as alleged by the plaintiff. However, it was found that the possession was delivered on 1-8-1993, as was claimed by the defendant. The said issue was not at all germane for the disposal of the suit in as much as the plaintiff did not claim any arrears of rent for the period prior to 1-8-1993. The issue, though raised by the parties through pleadings, was wholly irrelevant. Similarly, the question of increase of rent by 25% after every five years was also not relevant issue. 10. The suit has been dismissed on the ground that it was premature. No such issue was framed by the trial court. The trial court was not justified in dismissing the suit on altogether a new ground. 11. The bone of contention of the defendant Bank is the lease agreement entered between the parties, a copy whereof has been filed as Annexure SA-1 to the supplementary affidavit by the Bank. 12. Pointedly, he was asked to point out the relevant clause, if any, in the said agreement which may bar filing of the suit for eviction against the Bank. Learned counsel for the Bank failed to point out the same. He, however, referred clauses 9,10 and 13 of the said agreement. For the sake of convenience, all the above three clauses are reproduced below:- "9. Borrower undertakes to deposit the title deeds in respect of the premises with the Bank with the intent to create security thereon in favour of the Bank by way or Mortgage by deposit of title deeds for securing due repayment of the amount due and payable by the Borrower to the Bank in respect of the loan with interest, cost charges and expenses. 10. The Borrower shall not during the subsistence of this Agreement and untill the loan to the Bank is repaid in full with interest, charges and expenses sell or dispose of or create or permit to be created any charge mortgage or any other encumberance on the said without the prior consent in writing of the Bank. 11. 10. The Borrower shall not during the subsistence of this Agreement and untill the loan to the Bank is repaid in full with interest, charges and expenses sell or dispose of or create or permit to be created any charge mortgage or any other encumberance on the said without the prior consent in writing of the Bank. 11. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 12. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 13. The rights & security is hereby created and/or granted in favour of the Bank shall remain irrevocable and come to an end only upon the full repayment of all the amounts payable by the Borrower to the Bank hereunder." 13. The attention of the Court was not drawn towards any other clause, except referred to above. None of the clauses, referred to above, do support the case of the Bank. There being no clause prohibiting or barring the right of the plaintiff landlady to institute a suit for eviction till full payment of the borrowed sum, the trial court was not justified to hold that the suit is premature. The agreement described as 'term loan agreement' in the deed, was a separate and independent agreement. Letting out of the premises to the Bank was another contract of tenancy, independent of 'term loan agreement'. The two contracts were independent to each other. The term loan agreement does not put any bar on the right of the plaintiff landlady to evict the Bank. Right of eviction given to a lessor to evict a lessee is a statutory right and unless curtailed by any statute or agreement remains intact. Even otherwise also, Sri Vipin Sinha, learned counsel for the Bank very fairly informed the Court that the term loan has been discharged fully by the plaintiff landlady. Even if, the suit was premature, though as a matter of fact it was not, the said fact can be taken into consideration now. No defect in the notice determining the tenancy was pointed out or pleaded by the defendant Bank. Even if, the suit was premature, though as a matter of fact it was not, the said fact can be taken into consideration now. No defect in the notice determining the tenancy was pointed out or pleaded by the defendant Bank. Admittedly, it is not the case of the defendant Bank that the suit is barred by any other statutory provision, such as Rent Control Act i.e. U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The rent being more than Rs. 2,000/- per month, the provisions of the said Rent Control Act will not be attracted. 14. Upshot of the above discussion is that the trial court committed illegality in holding that the suit is premature and wrongly dismissed the suit. 15. In the result, the revision succeeds and is allowed with costs throughout and SCC Suit No. 1 of 2001 stands decreed. 16. Three months' time is granted to the respondent Bank to vacate the disputed accommodation, provided it files an undertaking on affidavit before the trial court that it will handover its peaceful possession to the plaintiff landlady on or before the expiry of the aforesaid period. The Bank shall also clear all the dues of rent etc., if any, and shall deposit the costs within a period of one month, failing which it shall be open to the plaintiff landlady to put the decree into execution.