Sanjanabai Suwalal Bafana vs Bank Of Baroda A Nationalised Bank
2021 Latest Caselaw 16014 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                           SECOND APPEAL NO.310 OF 2021


                                   SAJANBAI SUWALAL BAFNA
                                          VERSUS
                                      BANK OF BARODA
                                             ...
                       Mr. S.P. Shah, Advocate for the appellant
                  Mr. P.N. Kalani, Advocate for the sole respondent
                                             ...

                                        CORAM :    SMT. VIBHA KANKANWADI, J.
                                        RESERVED ON :        22nd OCTOBER, 2021
                                        PRONOUNCED ON : 18th NOVEMBER, 2021


ORDER :

1 Present appeal has been filed by the original plaintiff challenging

the Judgment and Decree passed by learned District Judge-4, Dhule in Civil

Appeal No.172/2012 on 24.04.2015, whereby the appeal filed by the present

respondent came to be allowed and the Judgment and Decree passed by

learned Civil Judge Senior Division, Dhule in Special Civil Suit No.83/1999

on 25.06.2009 was set aside. The Special Civil Suit was then dismissed.

2              The present appellant-original plaintiff had filed Special Civil





                                            2                                      SA_310_2021

Suit No.83/1999 for recovery of unpaid rent and damages along with interest

from tenanted bank-defendant. The said suit was decreed and the

defendant-bank was directed to pay sum of Rs.2,88,099.75 ps. together with

interest @ 6% per annum from the date of the suit till realization of the

decreetal amount. As aforesaid, the First Appellate Court reversed the

decree.

3 Heard learned Advocate Mr. S.P. Shah for the appellant and

learned Advocate Mr. P.N. Kalani for the sole respondent.

4 It has been vehemently submitted on behalf of the appellant-

plaintiff that the First Appellate Court has not appreciated the evidence

properly. When, in fact, the learned Trial Judge had appreciated the evidence

properly and had arrived at the conclusion that the plaintiff has shown the

loss or the damages as well as the arrears of rent went there; yet, without

adhering to the principles laid down in the case of Santosh Hazari vs.

Purushottam Tiwari, deceased by L.Rs., 2001(2) Mh.L.J., 786 the Judgment

has been rendered by the First Appellate Court. The Trial Court held that the

plaintiff had proved the damages. She had not proved that the

disappearance of the southern wall was attributable to the defendant-bank.

Further, it was wrongly held that the defendant-bank was ready and willing

3 SA_310_2021

to hand over the possession of the tenanted premises to the plaintiff on

31.10.1997. No doubt, the suit premises were given to the defendant-bank

on rent and the defendant communicated it to the plaintiff that they would

be handing over the possession on a particular date; yet, when the plaintiff

went to take possession on that day, she found that the damages were caused

to her property. It was specifically written in the rent agreement that the

tenant would hand over the tenanted premises to the landlord in the same

position as it was when it was given for rent. That means, if any repairs were

required to be done, it ought to have been carried out by the defendant-bank.

A list was prepared of those things, which were found damaged, when the

plaintiff had gone there to take possession on 31.10.1997. Thereafter, the

bank did not take positive steps to carry out those repairs and ultimately the

suit premises remained in the possession of the defendant till 01.02.1999.

No rent was paid for that period by the defendant and taking into

consideration the evidence that was adduced by the plaintiff herself as well

as the expert, who estimated the damages, the learned Trial Judge had come

to the conclusion that the defendant has done the tortuous act and, therefore,

duty bound to make the damages good to the plaintiff and accordingly decree

was passed in respect of sum of Rs.2,88,099.75 ps. The substantial questions

of law are, therefore, arising, in view of the fact that a totally contradictory

view has been taken by the First Appellate Court.

                                          4                                      SA_310_2021



5              Per contra, the learned Advocate appearing for the respondent-

bank supported the reasons given by the First Appellate Court and submitted

that the Trial Court had erred. The defendant had approached the First

Appellate Court, who had taken a right view. It was the defendant, who had

given intimation to the plaintiff that they would vacate the premises on a

particular day, therefore, the plaintiff should remain present to take the

possession. When the plaintiff did not remain present, the bank had issued

telegrams on each and every day of such attempt to hand over the

possession. Still there was no positive reply till 01.02.1999. The expert, who

has been examined in this case, had no personal knowledge about the

position of the tenanted premises prior to taking possession by the defendant

and as on the date on 31.10.1997 which was conveyed as the date on which

the defendant would hand over the possession to the plaintiff. The terms of

the tenanted agreement were admitted to the defendant-bank, however, the

evidence adduced by the plaintiff was very much short to prove that the said

damages were caused by the defendant-bank. There is no merit in the

present case, much less raising substantial question of law and, therefore, the

Second Appeal deserves to be dismissed.

6 At the outset, it can be seen that the Courts below have not given

concurrent findings, rather the findings given are contrary to each other. It

5 SA_310_2021

has come on record that defendant had given notice dated 30.09.1997 to the

plaintiff stating that they would vacate the premises by the end of

31.10.1997. In fact, there was still period of tenancy remained but when the

defendant was not requiring any immovable property, it had decided to hand

over the possession of the suit premises to the plaintiff. The possession was

not taken by the General Power of Attorney of the plaintiff Mr. Pravin Bafna

on 31.10.1997. Thereafter, they demanded the arrears of rent out of

proportion. It was then stated by the defendant in the written statement that

plaintiff as well as Bafna Investment Corporation had demolished the

southern side wall on their own and had given the possession of the southern

side to the defendant to run the bank. The defendant was not duty bound to

re-construct the same. It can be seen that voluminous documents were pre-

used. The crucial question is, whether on the day of handing over which was

intimated by the defendant, whether the suit premises was destroyed or had

become damaged, so that the plaintiff could ask for damages as well as

arrears of rent. If the defendant was ready to hand over the premises but the

plaintiff had not taken under the pretext that the premises was not habitable

or was not in the same position as it stood when it was given on record;

whether the plaintiff would be entitled to recover the rent as well as the

damages in the same suit. Definitely, substantial questions of law are arising

in this case, when there is contrary findings and, therefore, the Second

6 SA_310_2021

Appeal stands admitted. Following are the substantial questions of law.

1 Whether the First Appellate Court was right in holding that plaintiff had refused to take the possession of the suit premises on 31.10.1997, without any reasonable and lawful cause ?

2 Whether the plaintiff was entitled to recover the arrears of rent from 01.11.1997 to 01.02.1999 ?

3 Whether the plaintiff had proved that defendant-bank had caused damages to the tenanted premises and, therefore, the plaintiff was entitled to recover the damages from the defendant ?

7 Issue notice to the respondent, after admission. Learned

Advocate Mr. P.N. Kalani waives notice for the respondent.

8                Call Record and Proceedings.




                                                 ( Smt. Vibha Kankanwadi, J. )




agd