Delhi High Court
Punjab National Bank vs Shri Mukul Gupta on 29 March, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.189/2011
% 29th March, 2011
PUNJAB NATIONAL BANK ...... Appellant
Through: Mr. Rajinder Wali, Advocate.
VERSUS
SHRI MUKUL GUPTA ...... Respondent
Through: Mr. Vijay Tandon, 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? Yes
3. Whether the judgment should be reported in the Digest? Yes
VALMIKI J. MEHTA, J (ORAL)
Caveat No.274/2011 in RFA No.189/2011
Since the counsel for the caveator appears, the caveat
stands discharged.
C.M. No.6440/2011 (Exemption) in RFA No.189/2011
Exemption allowed subject to just exceptions.
Application stands disposed of.
+ RFA No.189/2011 and C.M. No.6439/2011 (stay)
1. The challenge by means of this Regular First Appeal under
Section 96 of the Code of Civil Procedure, 1908 (CPC) is by a tenant
RFA No.189/2011 Page 1 of 6
bank to the impugned judgment and decree dated 10.1.2011 whereby
the suit of the respondent/landlord for possession has been decreed
under Order 12 Rule 6 CPC.
2. The fact that there is a relation of landlord and tenant
between the parties was/is an admitted fact. It is also not a disputed
fact that as per the original lease deed, the lease was for a period of
three years plus three years plus three year plus one year and which
period came to an end on 15.3.2010. I may note that the registered
lease was only for the original period of three years. There was an
earlier litigation between the parties and as per which a fresh lease
deed was to be executed for three years from 16.3.2006, which
however was not executed. The respondent/landlord had also
terminated the tenancy by notice dated 19.2.2010 which is admittedly
received by the appellant. The appellant/tenant/bank has thus as on
date overstayed its welcome in the suit premises by over one year,
assuming that there was a registered lease for 10 years, and in fact
the trial Court has been more than liberal in granting further time to
the appellant by the impugned judgment dated 10.1.2011 to vacate
the premises by 10.7.2011.
3. I do not find any illegality or perversity in the impugned
judgment and decree which calls for any interference by this Court
because there are no disputed questions of facts which required trial
as to either the existence of relationship of landlord and tenant or the
premises being outside the Delhi Rent Control Act, 1958 as the rent is
RFA No.189/2011 Page 2 of 6
more than Rs.3,500/- or the fact that the tenancy (even assuming it
was by a registered lease deed for ten years) would have come to an
end by efflux of time on 15.3.2010. In reality, the appellant was only a
monthly tenant as no registered lease deed was executed from
16.3.2006 and monthly tenancy was terminated by the notice dated
19.2.2010.
4. Learned counsel for the appellant sought to place reliance
upon a Division Bench decision of this Court in the case of Puran
Chand Packaging Industrial Pvt. Ltd. Vs. Sona Devi 2008 (154)
DLT 111 in which it was held that acceptance of rent after termination
of tenancy would or would not amount to a waiver of a notice to
terminate the tenancy is a disputed fact which requires trial and it was
therefore argued in this case on behalf of the appellant that since the
respondent/landlord has received rent for two months after 15.3.2010
consequently a fresh tenancy came into existence and which aspect
requires evidence to be led and therefore the impugned judgment
passed under Order 12 Rule 6 CPC cannot be sustained. I note that the
trial Court has relied upon a decision of the Supreme Court reported as
Sarup Singh Gupta Vs. S. Jagdish Singh & Ors. 128 (2006) DLT
534 (SC): 2006 (4) SCC 205 and as per which judgment, the
Supreme Court has held that merely and only because rent is received
after termination of tenancy will not imply creation of a fresh tenancy
and the landlord is very much entitled to take charges for use and
occupation after termination of tenancy and the rent paid by the
RFA No.189/2011 Page 3 of 6
tenant can be treated as paid towards charges for use and occupation.
Counsel for the respondent states that payment which was made by
the appellant, and that was for just two months, has been taken as
charges for use and occupation. Para 7 of the decision in the case of
Sarup Singh (supra) is relevant and the same reads as under:-
"7. In the instant case, as we have noticed earlier, two
notices to quit were given on 10th February, 1979 and 17th
March, 1979. The suit was filed on June 2, 1979. The tenant
offered and the landlord accepted the rent for the months of
April, May and thereafter. The question is whether this by
itself constitute an act on the part of the landlord showing
an Intention to treat the lease as subsisting. In our view,
mere acceptance of rent did not by itself constituted an act
of the nature envisaged by Section 113, Transfer of Property
Act showing an Intention to treat the lease as subsisting.
The fact remains that even after accepting the rent
tendered, the landlord did file a suit for eviction, and even
while prosecuting the suit accepted rent which was being
paid to him by the tenant It cannot, therefore, be said that
by accepting rent, he intended to waive the notice to quit
and to treat the lease as subsisting. We cannot ignore the
fact that in any event, even if rent was neither tendered nor
accepted, the landlord in the event of success would be
entitled to the payment of the arrears of rent. To avoid any
controversy, in the event of termination of lease the practice
followed by courts is to permit the landlord to receive each
month by way of compensation for the use and occupation
of the premises, an amount equal to the monthly rent
payable by the tenant. It cannot, therefore, be said that
mere acceptance of rent amounts to waiver of notice to quit
unless there be any other evidence to prove or
establish that the landlord so Intended. In the instant
case, we find no other fact or circumstance to support the
plea of waiver. On the contrary the filing of and prosecution
of the eviction proceeding by the landlord suggests
otherwise."
In the present case, it is noted that the only ground for
urging that a fresh tenancy had been created is the mere acceptance
of rent after the termination of the tenancy. The appellant has not
RFA No.189/2011 Page 4 of 6
pleaded any other facts or circumstances for creation of a fresh
tenancy except the payment of rent after termination of the tenancy.
Therefore, mere acceptance of rent, without pleading anything more
showing creating of fresh tenancy (and that too rent for mere two
months) will not amount to waiver of notice or creation of a fresh
tenancy in accordance with the decision in the case of Sarup Singh.
If the appellant would have pleaded other facts to show creation of a
fresh tenancy, then the same would be a disputed question of fact
requiring trial but the appellant has only alleged fresh tenancy on
account of mere acceptance of rent after the termination of tenancy
and which even if accepted cannot lead to creation of a fresh tenancy
in terms of the decision in the case of Sarup Singh.
5. I note that the Division Bench decision of this Court in the
case of Puran Chand does not refer to the binding decision of the
Supreme Court in the case of Sarup Singh and as per which judgment
simple acceptance of rent after termination of tenancy is in fact to be
taken as payment towards charges for use and occupation and not as
a fact for waiver of notice or creation of a fresh tenancy. Therefore in
accordance with Sarup Singh I hold that mere acceptance of two
months' rent without any further facts being pleaded cannot show that
there was a creation of a fresh tenancy between the parties and thus
there cannot be said to exist any disputed question of fact which
required trial.
RFA No.189/2011 Page 5 of 6
6. In view of the above, I do not find any merit in the appeal,
which is therefore dismissed, leaving the parties to bear their own
costs.
I must at this stage note that in the arguments as raised by
the counsel for the appellant it was submitted that the appellant is a
nationalized bank and therefore deserves liberal consideration. Not
only obviously there is no law to support such an argument, but in fact,
on the other hand the appellant as a nationalized bank and an arm of
the State is in fact failing in its legal duty to vacate the premises in
terms of an agreement as per which at the very best it would have
been entitled to stay upto 15.3.2010. Not only this, as I have already
observed above, the trial Court has granted further time till 10.7.2011
for vacation of the suit premises but the appellant bank is still not
satisfied. All this is very unfortunate to say the very least.
The appeal is therefore dismissed.
MARCH 29, 2011 VALMIKI J. MEHTA, J.
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