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2018 DIGILAW 318 (ALL)

State Bank of India v. Ram Niwas Verma

2018-02-06

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard Sri S.K. Kakkar, learned counsel for the defendants-petitioners/tenants and Sri Narendra Kumar Chaturvedi, learned counsel for the plaintiffs-respondents No. 1 to 4. 2. This petition under Article 227 of the Constitution of India has been filed praying for the following relief: "(i) To call for the record of the court below of JSC case No. 5 of 2016 and to set aside the impugned order dated 13.9.2017 passed by Additional District Judge, Court No. 4, Gorakhpur rejecting Application No. 37 Ga and 50 Ga respectively of the defendant filed in S.C. Case No. 5 of 2016, Ram Niwas Verma and Others v. State Bank of India and Another. (ii) To issue an order/direction thereby directing the court below to allow the Application No. 50 Ga dated 22.05.2017 of the defendant-petitioner for handing over the possession and keys of the premises in question to the plaintiffs-respondents in order to avoid futile increase of rent/damages of the premises in question after 22.5.2017." 3. Briefly stated facts of the present case are that undisputedly the plaintiffs-respondents are the owner and landlord of the disputed building "Kedar Khand" C/161/123, Mohalla-Shekhpur, City-Gorakhpur. They have let out certain portion of the building to the defendants-petitioners/tenants measuring 1971.65 sq. feet. According to the plaintiffs- respondents the tenancy started from 2.8.2013. The plaintiffs-respondents issued a notice dated 15.9.2015 under section 106 of the Transfer of Property Act whereby they terminated the tenancy on account of default in payment of rent by the defendants-petitioners. They also demanded arrears of rent. According to the plaintiffs-respondents neither the disputed accommodation was vacated by the defendants-petitioners/tenants nor the arrears of rent was paid and as such they filed SCC Suit No. 5 of 2016, Ram Niwas Verma and Others v. State Bank of India and Another. The defendants-petitioners filed a written statement in that suit on 14.9.2016. However, neither the arrears of rent demanded was paid nor month to month rent was paid and as such the plaintiffs-respondents filed an application 37Ga on 4.11.2016 praying to strike off the defence under Order 15, Rule 5 C.P.C. A reply to the said application was filed by the defendants-petitioners/tenants on 21.12.2016. However, neither the arrears of rent demanded was paid nor month to month rent was paid and as such the plaintiffs-respondents filed an application 37Ga on 4.11.2016 praying to strike off the defence under Order 15, Rule 5 C.P.C. A reply to the said application was filed by the defendants-petitioners/tenants on 21.12.2016. By the impugned order dated 13.9.2017 the application 37Ga was allowed on the admitted fact that the defendants-petitioners/tenants have complied with the provision of order XV Rule 5 C.P.C. Thus, the defence of the defendants-petitioners was striked off. 4. In the mean time the defendants-petitioners/tenants moved an application dated 22.5.2017 being paper No. 50Ga in which it was stated that they are ready to hand over vacant possession of the disputed accommodation to the plaintiffs-respondents but the plaintiffs-respondents are taking the possession, therefore, either a direction may be issued to the plaintiffs-respondents to take the possession of the disputed accommodation or keys of the disputed accommodation may be collected from the Bank by the Amin appointed by the Court and the same may be handed over to the plaintiffs-respondents. This application was rejected by another impugned order of the same date i.e. 13.9.2017 on the ground that there is no whisper in the application 50Ga regarding payment of arrears of rent. The question of payment of arrears of rent shall still survives which can be decided only after the evidence are led by the parties. Consequently, the application was rejected. Aggrieved with these two orders the defendants-petitioners/tenants have filed the present petition under Article 227 of the Constitution of India. 5. Learned counsel for the defendants-petitioners states that the prayer No. 1 with respect to the application 37Ga has been incorrectly made and, therefore, it may be permitted to be deleted. He states that the defendants-petitioners are pressing their relief only with respect to rejection of their application 50Ga and, therefore, the relief in this petition may be confined only to the order dated 13.9.2017 rejecting the application 50Ga. He refers to paragraph 9-A of the petition which is reproduced below: "9A. That the defendant Bank on 10.8.2017 gave Banker's cheque No. 170587 dated 3.8.2017 for Rs. 17,80,656/- in the joint names of the plaintiff towards arrears of rent after deducting the amount of TDS of Rs. He refers to paragraph 9-A of the petition which is reproduced below: "9A. That the defendant Bank on 10.8.2017 gave Banker's cheque No. 170587 dated 3.8.2017 for Rs. 17,80,656/- in the joint names of the plaintiff towards arrears of rent after deducting the amount of TDS of Rs. 1,97,850/- but the plaintiff-respondents returned the same, thereby moving application before the Trial Court, thereby praying that the defendants be directed to issue four cheques separately in the four different names of the plaintiff of equal amount. Thereafter the defendant-petitioner gave four cheques of equal amount of Rs. 4,45,164/- dated 18.8.2017 each in the separate names of said four plaintiffs/ respondents but the plaintiffs refused to take the same. True copies of the cheque No. 170587 dated 3.8.2017 for Rs. 17,80,656/- in the joint names of Ram Niwas Sarraf and 3 others towards of arrears of rent, cheque No. 170558 dated 3.8.2017 for Rs. 1,97,850/- in respect of TDS deduction, Application dated 18.8.2017 moved by plaintiff before the Trial Court and four cheques dated 18.8.2017 for Rs. 4,45,164.- each in the names of each plaintiff are attached hereto as Annexure No. 5, 6, 7, 8, 9, 10 and 11 forming part of this petition." 6. On the basis of the afore-quoted averments in paragraph 9-A of the petition, learned counsel for the defendants-petitioners states that the entire arrears of rent have been paid to the plaintiffs-respondents and even if there remains any arrears in accordance with law, the defendants-petitioners undertakes to pay the same on proper determination by the court below or on mutual agreement. 7. Learned counsel for the plaintiffs-landlords/respondents states that 8.2.2018 is the date fixed for arguments and, therefore, the suit itself may be decided by the court below either on the date fixed or expeditiously, in accordance with law. 8. Considering the admitted facts of the case that the defendants-petitioners have neither disputed the arrears of rent on the first date of hearing nor paid monthly rent and as such protection of order XV Rule 5 C.P.C. was not available to him. Consequently, the court below has not committed any error of law in allowing the application 37Ga and striking off the defence of the defendants-petitioners/tenants. Consequently, the court below has not committed any error of law in allowing the application 37Ga and striking off the defence of the defendants-petitioners/tenants. So far as the rejection of application 50Ga is concerned, I find that as per statement made by learned counsel for the plaintiffs- respondents before this Court and not disputed by learned counsel for the defendants- petitioners, the date 8.2.2018 is fixed before the court below for arguments. Therefore, I find it appropriate to request the court below to decide the aforesaid SCC Suit No. 5 of 2016, Ram Niwas Verma and Others v. State Bank of India and Another in accordance with law, expeditiously, preferably within eight weeks from the date of presentation of a certified copy of this order, without granting any unnecessary adjournment to either of the parties. 9. Petition is disposed of.