Bank Of Madura Limited vs Isherdas Sahni And Bros.
2011 Latest Caselaw 1354 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             Review Petition No.12/2011 in RFA No.291/97

%                                                 8th March, 2011

BANK OF MADURA LIMITED                                      ...... Appellant
                              Through:      Mr. Puneet Aggarwal, Advocate.
                          VERSUS


ISHERDAS SAHNI AND BROS.                                     ...... Respondent
                                Through:    Mr. V.K. Sharma, Advocate.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.            In spite of opportunities given, no reply has been filed by the

appellant. By means of this review petition, the respondent/review petitioner

seeks review of the judgment of this Court dated 9.12.2010 whereby the

appeal was accepted by setting aside the impugned judgment and decree

passed against the appellant bank. The decree for recovery was passed with

respect to payment of mesne profits for the premises in occupation of the

appellant bank after termination of the tenancy.


2.            The relevant discussion in the judgment of this Court dated

9.12.2010 shows that reliance was placed by the appellant upon Section 106

Review Petition No.12/2011 in RFA No.291/97                         Page 1 of 4
 of the Transfer of Property Act, 1882 as existing prior to the amendment

brought about in Section 106 by Act 3 of 2003. As per the paras 4 to 6 of the

judgment of this Court dated 9.12.2010, the appeal was accepted and the

impugned judgment and decree was set aside on the ground that the notice

of termination of tenancy did not terminate the tenancy at the end of the

tenancy month being the english calendar month.         Section 106 of the

Transfer of Property Act, 1882 was however amended by Act 3 of 2003 w.e.f.

31.12.2002. This Act contains Section 3 which reads as under:-


     "3. Transitory provisions:-         The provisions of section 106
     of the principal Act, as amended by section 2, shall apply to-

     (a)  all notices in pursuance of which any suit or proceeding is
     pending at the commencement of this Act; and

     (b    all notices which have been issued before the
     commencement of this Act but where no suit or proceeding has
     been filed before such commencement."

            The provisions of Section 106 after amendment reads as under:


      "[106.             Duration of certain leases in absence of
      written contract or local usage.--(1) In the absence of a
      contract or local law or usage to the contrary, a lease of
      immovable property for agricultural or manufacturing purposes
      shall be deemed to be a lease from year to year, terminable, on
      the part of either lessor or lessee, by six months' notice; and a
      lease of immovable property for any other purpose shall be
      deemed to be a lease from month to month, terminable, on the
      part of either lessor or lessee, by fifteen days' notice.
            (2)   Notwithstanding anything contained in any other law
      for the time being in force, the period mentioned in sub-section
      (1) shall commence from the date of receipt of notice.

           (3)    A notice under sub-section (1) shall not be deemed to
      be invalid merely because the period mentioned therein falls
      short of the period specified under that sub-section, where a suit


Review Petition No.12/2011 in RFA No.291/97                      Page 2 of 4
       or proceeding is filed after the expiry of the period mentioned in
      that sub-section.

            (4)   Every notice under sub-section (1) must be in writing,
      signed by or on behalf of the person giving it, and either be sent
      by post to the party who is intended to be bound by it or be
      tendered or delivered personally to such party, or to one of his
      family or servants at his residence, or (if such tender or delivery
      is not practicable) affixed to a conspicuous part of the property.]"

            It is quite clear that the benefit of amendment in Section 106

brought about by Act 3 of 2003 was to apply even to the pending

proceedings. The effect of the amended Section 106 was that no technical

defences were permitted with respect to the requirement of termination of

tenancy notice ending at the end of the tenancy month, as long as a period

of 15 days was given to the tenant to vacate prior to the filing of the suit for

possession. It is an admitted fact that the suit in this case has been filed

more than 15 days after the tenancy was terminated by notice Ex.PW1/8

dated 26.7.1990. The suit was filed on 24.9.1990 i.e. well after the period of

15 days.


3.          The aforesaid discussion shows that there is an error apparent on

the face of the record and interest of justice requires review of the judgment

dated 9.12.2010 of this Court inasmuch as the counsel for the respondent

did not at that stage rely upon Act 3 of 2003 and which is now brought to

the notice of the Court. In the opinion of this Court not only there is an error

apparent on the face of the record but the facts of the case are such that

there are other good and sufficient reasons in the interest of justice which

require review of the judgment dated 9.12.2010.


Review Petition No.12/2011 in RFA No.291/97                         Page 3 of 4
 4.           I have therefore heard the counsel for the parties afresh. The

last notice by which the tenancy was terminated is the notice dated

26.7.1990, Ex.PW1/8.     As per this notice, tenancy was terminated w.e.f.

14.8.1990.   Tenancy will therefore stand determined w.e.f. 31.8.1990.        In

law, once this notice Ex.PW1/8 dated 26.7.1990 was served earlier notices

Ex.PW1/7 dated 1.5.90 and Ex.PW1/9 dated 27.6.90 would stand waived.

The respondent/landlord will therefore be entitled to mesne profits from

1.9.1990 till filing of the suit on 24.9.1990 as awarded by the trial Court. I

also do not agree with the contention of the counsel for the appellant that no

interest is payable on the mesne profits inasmuch as interest was not

claimed. The Court can always grant a consequential relief under Order 7

Rule 7 CPC and therefore, interest would be payable as granted by the

impugned judgment and decree.


5.           Accordingly, the appeal is partially allowed by holding that the

appellant/defendant will be liable to pay mesne profits as awarded by the

trial Court alongwith interest @ 18% per annum simple as granted by the

trial Court from 1.9.1990 to 24.9.1990.       Parties are left to bear their own

costs. Decree Sheet be prepared. Trial Court record be sent back.




MARCH 08, 2011                                          VALMIKI J. MEHTA, J.

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