Bank of Madura Limited vs Isherdas Sahni and Bros.

Valmiki J Mehta, J.—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.

The relevant discussion in the judgment of this Court dated 9.12.2010 shows that reliance was placed by the Appellant upon Section 106 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:

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 lesser 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 lesser 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 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.

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.

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.

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.