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2013 DIGILAW 1003 (MP)

State Bank of India v. Tasneem Hussain

2013-08-26

N.K.GUPTA

body2013
JUDGMENT 1. The appellant has preferred the present appeal against the judgment and decree dated 5.7.2005 passed by the 4th Additional District Judge, Bhopal in Civil Suit No.14-A of 2004 whereby a money decree of Rs.1,38,848/- along with the interest was given in favour of the respondent-plaintiff. 2. The admitted facts of the case are that the appellant-Bank was a tenant in the building “Sakina Villa” situated in Arera Colony, Bhopal since 12.10.1987 upto 28.2.2003. It is also admitted that the plaintiff and Kaneez Fatima were co-owners of suit accommodation. It is also admitted that initially the accommodation was let out for five years to the appellant-Bank at the rate of Rs.11,000/- per month as rent and thereafter in the year 1992 to 1997 the lease was renewed. 3. The plaintiff has filed a civil suit before the District Court, Bhopal that on 1.10.1997 a lease-deed was executed between the landlords and the appellant-Bank on 23.5.1996. Thereafter, talks took place for enhancement of the rent. Representative of the plaintiff participated in the various meetings for that purpose with the officers of the appellant. Vide letter dated 5.12.2000 the appellant gave a proposal that lease be renewed for three years from 1.10.1997 with enhancement of 30% in the rent and thereafter, on completion of three years an enhancement of 30% of rent was also proposed and it was informed that if no intimation was received upto 5.12.2000 then the proposal given by the Bank would be deemed admitted by the plaintiff. On 28.2.2003, the appellant vacated the suit premises. However, no enhanced rent was given to the plaintiff. A legal notice dated 27.9.2001 was given to the appellant. Thereafter, one telegram was also given. Again notices were given on 18.1.2003 and 19.2.2003 but, no enhanced rent was paid by the Bank and, therefore, the plaintiff-respondent claimed the arrears of enhanced rent along with interest in the civil suit and claimed a sum of Rs.1,86,313/- from the appellant-Bank. 4. The appellant-defendant in its reply denied the entire averments of the plaintiff. It was pleaded that several meetings were organized for considering the enhancement of the rent but Shri Abdul Hussain, husband of the plaintiff, attended those meetings. The Bank accepted the increase of rent subject to renovation and repairing works in the building. 4. The appellant-defendant in its reply denied the entire averments of the plaintiff. It was pleaded that several meetings were organized for considering the enhancement of the rent but Shri Abdul Hussain, husband of the plaintiff, attended those meetings. The Bank accepted the increase of rent subject to renovation and repairing works in the building. The plaintiff did not permit the officers of the Bank to carry out any repairing work by themselves and, therefore, no enhancement in the rent was agreed by them. No renewed lease-deed was executed and, therefore, there was no question of payment of enhanced rent. The plaintiff had accepted the vacant possession of the building and entire rent was paid to the plaintiff. It is also pleaded that there was no written agreement for enhancement of the rent and, therefore, suit was premature. Simultaneously by amendments in the pleadings the defendant took a plea that the suit was barred by limitation. 5. The learned Additional District Judge after considering the pleladings of the parties framed as many as six issues and one additional issue. After taking the evidence of both the parties, it was decided that the suit was not barred by limitation though registered lease-deed was not executed, the plaintiff was entitled to get the enhanced rent and, therefore, a decree for enhanced rent along with interest was accorded. 6. I have heard the learned counsel for the parties at length. 7. The learned counsel for the appellant has raised mainly three points. Firstly, that the suit was barred by limitation. Secondly, no repair or renovation was done by the plaintiff and, therefore, she was not entitled to get any enhanced rent in her favour and thirdly, no new lease-deed was executed or registered between the parties and, therefore, the respondent could not get any enhanced rent in absence of the registered lease-deed. In support of this contention judgments passed by Hon’ble the apex Court in the case of Delhi Motor Co. v. U.A. Basrurkar [ AIR 1968 SC 794 ], Satish Chand Makhan and others v. Govardhan Das Byas and others [ (1984)1 SCC 369 ], and Anthony v. K.C. Ittoop and Sons [ (2000)6 SCC 394 ], are referred. Therefore, it is prayed that the decree directed by the trial Court be quashed. 8. v. U.A. Basrurkar [ AIR 1968 SC 794 ], Satish Chand Makhan and others v. Govardhan Das Byas and others [ (1984)1 SCC 369 ], and Anthony v. K.C. Ittoop and Sons [ (2000)6 SCC 394 ], are referred. Therefore, it is prayed that the decree directed by the trial Court be quashed. 8. On the other hand the learned counsel for the respondent has invited the attention of this Court to provisions of section 4 of the Indian Contract Act that when a proposal is given to the opposite party and it is accepted then it takes the shape of contract and, therefore, a contract was complete between the parties. It was established that the tenancy was created between the plaintiff and defendant and, therefore, in absence oc the lease-deed the terms of contract could be changed by consent of both the parties. In support of this contention the learned counsel for the respondent has placed his reliance on the judgment passed by the Single Bench of this Court in the case of Agrawal Medical Agencies v. Govind Prasad [ 2012(2) MPLJ 147 ]. Therefore, it is prayed that the decree passed by the trial Court was acceptable. 9. After considering the submissions made by the learned counsel for the parties, looking to the facts and circumstances of the case, first of all the question of limitation is to be considered. Question of limitation should be decided on the basis of the facts. It is true that the plaintiff claimed enhanced rent from 12.10.1997 whereas, the suit was filed in December, 2003. The learned Additional District Judge had dealt with the point in detail. According to the pleadings of the plaintiff a registered lease-deed was executed on 23.5.1996 in which it was agreed that the rent will be increased from a sum of Rs.11,000/- to a sum of Rs.12,650/- from 12.10.1992. The Bank was in possession of the property since 12.10.1992 but, that lease-deed was executed in June 1996. According to the pleadings of the plaintiff a registered lease-deed was executed on 23.5.1996 in which it was agreed that the rent will be increased from a sum of Rs.11,000/- to a sum of Rs.12,650/- from 12.10.1992. The Bank was in possession of the property since 12.10.1992 but, that lease-deed was executed in June 1996. Similarly, a letter Ex.P-5 dated 5.12.2010 was sent by the officers of the appellant to the plaintiff relating to increase of rent in which it was mentioned that the plaintiffs was required to show her response up to 15.12.2000 if it was negative and, therefore, the rent which was due from 11.10.1997 was to be settled from 15.12.2000 and, therefore, cause of action for that previous rent arose from 15.12.2000 whereas the suit was filed on 15.12.2003 because on 14.12.2003, it was a holiday. The reason mentioned by the learned Additional District Judge appears to be appropriate. It is apparent that the appellant-Bank decided the enhancement of rent much after the period from which the tenancy initiated and, therefore, for present enhancement of rent as claimed by the plaintiff the cause of action arose on 15.12.2000 and, therefore, the suit was within the limitation. 10. Secondly, if the point of repairing and renovation is considered then the appellant could not produce any document to show that the proposal of the appellant was dependent upon the renovation or repairing. The appellant did not produce the minutes of the meetings held between the officers of the Bank and the husband of the plaintiff. By the bare reading of the letter Ex.P-5, it was apparent that 30% enhancement in rent for three years and thereafter, again an enhancement of 30% was proposed by the Bank without any condition and, therefore, at this stage it cannot be said that the appellant gave a conditional proposal to the plaintiff. Also rent of previous three years was under consideration which had no concern with the renovation. Secondly rent was proposed to be increased according to the increase of rental value of the property. 11. Also rent of previous three years was under consideration which had no concern with the renovation. Secondly rent was proposed to be increased according to the increase of rental value of the property. 11. After perusal of the language of the document Ex.P-5, it is apparent that the officers of the Bank gave a proposal of enhancement of rent in two parts without any condition and it is also proposed that if the plaintiff does not accept the proposal then an intimation be given upto 15.2.2000 and if no intimation is received up to that date then the officers of the Bank will presume that the proposal was accepted by the plaintiff. Under such circumstances, it was a proposal which was to be finalized. No denial is received from the side of the plaintiff up to 15.12.2000 and the plaintiff wrote a letter Ex.P-6 on 26.5.2001 in which the proposal was accepted but from October 2000, she claimed a rent of Rs.22,000/- per month. According to the provisions of section 4 of the Contract Act, if acceptance is communicated then the contract stands completed. In this case acceptance was not required from the side of the plaintiff but her denial was to be expected up to a given period. She did not give any denial up to that period and, therefore, the proposal of the appellant was accepted by the plaintiff. In the judgment passed by the Division Bench of the Kolkatta High Court in the case of Murlimal Santram and Co. v. Bata India Limited [AIR 2013 Calcutta 102], has directed that if the proposal is accepted then it was the rent agreed between the parties and the tenant was liable to pay the agreed rent. 12. The learned counsel for the appellant has raised the objection that new lease-deed was to be executed and, therefore, the plaintiff could not seek any enhanced rent in absence of a new lease-deed. In support of the contention if the judgment passed by Hon’ble the apex Court in the case of Delhi Motor Co. (supra), is considered then it deals with the various unregistered documents to prove the lease whereas in the present case there was a lease agreement between the plaintiff and her co-owner along with the appellant for lease of the suit accommodation. (supra), is considered then it deals with the various unregistered documents to prove the lease whereas in the present case there was a lease agreement between the plaintiff and her co-owner along with the appellant for lease of the suit accommodation. The previous lease-deed was registered in the year 1996 and, therefore, it was not a case of proving of lease. Hon’ble the apex Court in the case of Satishchand Makhan (supra), dealt the point of unregistered lease agreement concentrating on the point that whether the tenancy under section 107 of the Transfer of Property Act can be terminated if lease-deed was unregistered. That judgment does not consider about the payment of the enhanced rent. 13. Hon’ble the apex Court in the case of Anthony (supra), dealt the matter relating to non-registration of the lease-deed. However, in this matter it was laid that after commencement of Kerala Buildings (Lease and Land Control Act), 1965 such a person became a statutory tenant and could not be evicted except on a statutory application moved before the Rent Controlling Authority. In the present case the appellant was the tenant in the suit accommodation since long and his lease was renewed from time to time. Therefore, if the lease was not renewed then the appellant became a statutory tenant and, therefore, non-execution of a registered lease-deed makes no difference in the case. In the case of Agrawal Medical Agencies (supra), the Single Bench of this Court has observed that mere non-renewal of lease after the said period would not give up the right of the landlord to enhance the rent after a particular period as agreed by the defendant. Under such circumstances, where the appellant became a statutory tenant and for enhancement of rent, consent of both the parties was important. Non-execution of registered lease-deed has no role to play. Thereafter, in enhancement of the rent that was the formality of Bank so that the officers of the Bank could produce the matter before the higher authorities for payment of the rent. However, in the present case, it is proved that the proposal was given by the appellant itself which was accepted by the plaintiff and, therefore, the appellant is estopped to say contrary to that proposal whereas it enjoyed the suit accommodation for more than the term of three years and vacated it by its own will. 14. However, in the present case, it is proved that the proposal was given by the appellant itself which was accepted by the plaintiff and, therefore, the appellant is estopped to say contrary to that proposal whereas it enjoyed the suit accommodation for more than the term of three years and vacated it by its own will. 14. In this case, a plea was taken by the appellant in a written statement that the Bank was a tenant of joint landlords whereas the co-owner of the property was not made party in the case and only the husband of the plaintiff appeared in the various meetings. It is true that the co-landlord of the property was not made party in the case and it is no where shown that whether any consent of enhancement of rent was obtained from the co-landlord or not. However, no objection of misjoinder of the party was taken before the trial Court. If the co-landlord was not taking any active participation in getting the enhanced rent then it cannot be said that the plaintiff was not entitled to get the enhanced rent. It is accepted by the officers of the Bank that the husband of the plaintiff was appearing in the meeting on behalf of the landlords and, therefore, a proposal was given to the plaintiff because she was also representing the co-landlord. However, the plaintiff was co-owner and entitled for 50% of the rent and she was getting 50% of the rent from the very beginning when she became co-landlord and, therefore, it would not be necessary to consider the matter of the co-landlord with the appellant. In the present case there was no necessity to get a registered lease-deed to be executed where a statutory tenancy was created and the proposal of the enhancement of rent was free from any condition which was accepted by the plaintiff and, therefore, the contract was complete and the appellant was bound to pay enhanced rent from time to time according to the proposal. Under such circumstances, the learned Additional District Judge did not commit any mistake in granting money decree for 50% arrears of enhanced rent along with interest upon the arrears. The rate of interest granted by the trial Court appears to be appropriate. There is no reason by which any interference can be done in the rate of interest. 15. Under such circumstances, the learned Additional District Judge did not commit any mistake in granting money decree for 50% arrears of enhanced rent along with interest upon the arrears. The rate of interest granted by the trial Court appears to be appropriate. There is no reason by which any interference can be done in the rate of interest. 15. On the basis of the aforesaid discussion the appeal filed by the appellant has no basis. There is no illegality or perversity visible in the judgment and decree passed by the trial Court and, therefore, there is no reason by which the appeal filed by the appellant can be accepted. Consequently, the appeal filed by the appellant is hereby dismissed with costs. The appellant shall bear its own costs as well as the costs of the respondents. The appellate decree be drawn accordingly. Advocate’s fee be added at the rate of Rs.10,000/- if certified. 16. Copy of the judgment and decree be sent to the trial Court along with its record.