Delhi High Court
Indian Bank vs B D Aggarwal & Ors. on 21 October, 2019
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.10.2019
+ C.R.P. 159/2019 & CM APPL.33870/2019
INDIAN BANK ..... Petitioner
versus
B D AGGARWAL & ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr.Milind Garg, Adv.
For the Respondent: None.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns order dated 30.01.2019 whereby the
application of the petitioner under Order VII Rule 11 CPC has been
dismissed.
2. Subject Suit was filed by the respondent for recovery of
possession, mesne profits, damages and injunction. Case set up by the
respondent is that the respondents were the owners of the subject
property having purchased the same from his erstwhile owner. As per
the respondents, the petitioner bank was a tenant under the erstwhile
owner and after the purchase of the property, the erstwhile owner
informed the bank about the sale and requested the bank to attorn to
the respondent.
3. It is contended that initially the subject premises was let out by
its erstwhile owner for a period of five years commencing from
01.06.2009 and ending on 31.05.2014. It is contended that the lease
expired by afflux of time and even a letter was issued by the bank
informing the erstwhile owner that they were in the process of fixing
an alternative premises for their branch and would continue in the
existing premises as shifting to alternative premises would take three
to four months.
4. It is contended that since the petitioner bank failed to vacate the
premises, subject suit for ejectment and mesne profits was filed inter
alia claiming use and occupation charges with effect from 01.08.2014
at the then alleged rate of rent of Rs.5,05,660/-.
5. Subject application under Order VII Rule 11 CPC was filed by
the petitioner contending that the petitioner was a tenant holding over
and after the expiry of the term of tenancy as provided by the lease
deed dated 08.02.2010, petitioner bank became a month to month
tenant and tenancy could be terminated only by a statutory notice
under Section 106 of the Transfer of Property Act and as no notice
had been given, the Suit was without any cause of action.
6. The Trial Court has noticed that the admitted case of the parties
is that the term stipulated by the lease deed dated 08.02.2010 had
neither been extended nor renewed and admittedly as per the terms of
the lease the stipulated period was five years, the period expired by
afflux of time.
7. Trial Court has further held that since the tenancy expired by
afflux of time, petitioner was a tenant at sufferance and continued to
hold on to the premises till the premises were vacated by the petitioner
and accordingly the respondent was permitted to claim damages for
use and occupation at the market rate.
8. It is an admitted position that petitioner has surrendered the
possession of the tenancy premises in March, 2018. The Trial Court
has noticed the fact that since respondent had continued to prosecute
the suit shows that respondent had not accepted the petitioner as a
tenant and has neither withdrawn nor abandoned the relief of damages
after receiving possession.
9. While considering an application under Order VII Rule 11
CPC, the Court has to accept the plaint with a demur. The defence or
stand taken by the defendant in the written statement is not to be
considered.
10. In the plaint, the respondent has very categorically set up a case
that the petitioner bank was liable to hand over the possession of the
Suit property after the term of the lease expired by afflux of time and
since they have not done so, they were liable to pay damages for use
and occupation at the then prevailing rate of rent.
11. Filing of a Suit for ejectment amounts to a notice of termination
of tenancy. The Supreme Court of India in Nopany Investments (P)
Ltd. versus Santokh Singh (HUF) (2008) 2 SCC 728, has held that
filing of an eviction suit under general law itself is a notice to quit on
the tenant.
12. After termination of tenancy, a tenant who continues in
possession would be liable to pay use and occupation charges/mesne
profits, from the date of termination till he vacates the property.
Accordingly, claim for damages would be maintainable even without
issuance of a notice terminating tenancy.
13. Perusal of the plaint clearly shows that the plaint does disclose
a cause of action. I find no infirmity in the view taken by the Trial
Court in dismissing the application of the petitioner under Order VII
Rule 11 CPC.
14. I find no merit in the petition. Petition is accordingly dismissed.
SANJEEV SACHDEVA, J
OCTOBER 21, 2019
rk
