Bombay High Court
Indian Oil Corporation Ltd. Thr. ... vs Prashant Pandurang Satav on 8 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-AS:22055
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.826 OF 2022
WITH
INTERIM APPLICATION NO.30109 OF 2022
IN
SECOND APPEAL NO.826 OF 2022
Indian Oil Corporation Ltd. ....Appellant/Applicant
V/S
Prashant Pandurang Satav ....Respondent
_________
Ms. Sindhu Kotian a/w Mr. Venkat Rao, Mr. Akash Gaonkar i/b
M/s. Legalserve & Associates for the Appellant/Applicant.
Mr. A.V. Anturkar, Senior Advocate a/w Mr. Yatin Malvankar for
Respondent.
_________
CORAM: SANDEEP V. MARNE, J.
DATE : 08 MAY 2024.
P.C.:
1 By this Appeal, Appellant-Indian Oil Corporation Ltd. has challenged
the decree dated 13 September 2022 passed by District Judge-1, Barshi, in
Regular Civil Appeal No.21 of 2018. The First Appellate Court has allowed
the Appeal and has modified the decree dated 16 November 2017 passed by
the Trial Court. The First Appellate Court has decreed Plaintiff's Special
Civil Suit No.78 of 2013 by directing Appellants/Defendants to put Plaintiff in
vacant possession of the suit properties. So far as the direction of the Trial
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Court for payment of interest at the rate of 6% per annum on the arrears of
payment of Rs.19,382/- for a period from 3 December 2010 to 30 July 2014 is
concerned, the said direction has been confirmed. In short, the First Appellate
Court has decreed Plaintiff's suit for eviction of Appellants/Defendants on
the ground of arrears of payment of rent.
2 There appears to be an arrangement of lease between the Plaintiff as
Lessor and Defendant as Lessees in respect of the suit property, where
Defendants has set up a retail outlet for sale of petroleum products. Plaintiff
instituted Special Civil Suit No.74 of 2009 for recovery of possession of the
suit property as well as for recovery of arrears of rent of Rs.47,31,570/-. The
Trial Court rejected the prayer for eviction on the ground that Plaintiff had
accepted rent amount from Defendant excluding the disputed portion during
pendency of the suit. The Trial Court therefore proceeded to partly decree
the suit directing Defendant to pay amount of Rs.41,76,570/- to Plaintiff with
interest. The controversy before the Trial Court in the first round of litigation
in Special Civil Suit No.74 of 2009 was about the defence raised by
Defendants of sub-lease of land admeasuring 6023 square meters by
Defendants to the Plaintiff for which Defendants were excluding/deducting
rent amount of Rs.19,382/-. The Trial Court held that such deduction was
improper and held Defendants liable for payment of the entire agreed amount
of lease even by taking into consideration the entire leased area of 6023 sq.
mts.
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3 Shortly after the judgment and order dated 2 August 2012, Plaintiff
served notice dated 2 March 2013 on Defendant for termination of lease on
the ground of arrears of lease rent. He filed Special Civil Suit No.78 of 2013 in
the Court of Civil Judge Senior Division, Barshi for recovery of possession
and arrears of rent, damages and interest. The Trial Court, this time held that
the prayer of Plaintiff for recovery of possession to be barred by res judicata on
account of rejection of the said prayer in Special Civil Suit No.74 of 2009.
The Trial Court recorded that during pendency of the suit, Defendant paid to
Plaintiff amount of Rs.18,25,529/- on 16 October 2004 and statement made by
Plaintiff that the earlier decree was satisfied on account of payment of arrears
of rent. The Trial Court therefore partly decreed Special Civil Suit No.78 of
2013 by only granting interest at the rate of 6% per annum to Plaintiff in
respect of arrears of payment of Rs.19,382/- from 3 December 2010 to 30 July
2013.
4 Plaintiff filed Regular Civil Appeal No.21 of 2018 before District Court,
Barshi, which has proceeded to reverse and modify the decree passed by the
Trial Court and granted the relief of eviction in favour of Plaintiff. Aggrieved
by the decree of the First Appellate Court dated 13 September 2022,
Defendant/Appellant has filed the present Appeal.
5 I have heard Ms. Kotian, the learned counsel appearing for Appellant,
Mr. Anturkar, the learned senior advocate appearing for Respondent/original
Plaintiff.
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6 After having considered the submissions canvassed by the learned
counsel appearing for parties, I am of the view that the Trial Court had erred
in holding that Plaintiff's prayer for recovery of possession in Special Civil
Suit No.78 of 2013 was barred by limitation. Plaintiff's suit for recovery of
possession was based on arrears of rent which included rent in respect of
period after 2 August 2012, when Special Civil Suit No.74 of 2009 was
decided. It is an admitted position that during 2 August 2012 to 3 December
2013, Defendant failed to pay rent to Plaintiff. This is why after service of
notice of termination, Special Civil Suit No.78 of 2013 was instituted on 3
December 2013. Once Defendant received suit summons alleging arrears of
rent, it ought to have deposited the arrears of rent so as to save forfeiture of
lease under section 114 of the Transfer of Property Act, 1882. However, it
appears that till the issues were framed on 4 July 2014, the Defendants failed
to pay the arrears of rent. An amount of Rs.18,25,529/- appears to have been
paid by Defendant to Plaintiff only on 16 October 2014 after hearing of the suit
had commenced.
7 Though the First Appellate Court has erroneously referred to the
provisions of Maharashtra Rent Control Act, which have no application to the
present case, in my view, even if provisions of section 114 of the Transfer of
Property Act are to be applied in the present case, the Defendant clearly failed
to avail an opportunity of depositing the arrears of rent before
commencement of hearing of the suit.
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8 Ms. Kotian's contention that the Trial Court has recorded satisfaction
on the part of Plaintiff with regard to the arrears of rent and that therefore
decree for recovery of possession could not have been passed does not cut any
ice. Plaintiff may have recorded satisfaction with regard to the arrears of rent,
but the same does not mean that he gave up his prayer for recovery of
possession. Recovery of arrears of rent is an independent and additional relief
than the relief of recovery of possession. Therefore, merely because arrears of
rent are accepted by him, such conduct did not mean that decree for recovery
of possession was not or could not be pressed. What ought to have been done
by the Defendant was to deposit the arrears of rent before 4 July 2014 when
issues were framed in the suit. In my view, therefore, the First Appellate
Court has rightly decreed the suit for recovery of possession. No substantial
question of law is involved in the Appeal. The Second Appeal is accordingly
rejected.
9 After the order is pronounced, Ms. Kotian would request for time of six
months for handing over possession of the suit property to the Plaintiff.
Considering the fact that the Appellant operated Retail Outlet for sale of
petroleum products at the suit property, time to vacate the suit property and
to handover possession thereof to Plaintiff shall stand extended by period of
six months from today, subject to payment of monthly compensation
equivalent to applicable rent.
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10 In view of rejection of Second Appeal, nothing would survive in the
Interim Application. The same is also disposed of.
(SANDEEP V. MARNE, J.)
