Shree Ram Trust and Others vs United Bank of India

Patherya, J.—This is an application filed under Chapter XIII A of the Original Side Rules.

Counsel for the petitioner submits that the basic rent payable by the respondent to the petitioner was Rs. 28,876/- and after deduction of tax at source a sum of Rs. 26,873/- was payable. As the rent exceeds Rs. 10,000/- per month a notice u/s 106 of the Transfer of Property Act (said Act) was issued on 4th April, 2008 and suit filed on 19th September 2008. The writ of summons was served on 3rd November 2008 and upon entering of appearance by the respondent on 12th November 2008 this application has been filed on 5th January 2009. As the lease deed dated 3rd June 2004 is not registered the respondent is a lessee month by month. No reply has been given to the notice dated 4th April 2008 and therefore the termination of tenancy accepted. For all the said reasons a decree for eviction be passed as sought.

Counsel for the respondent opposes the said application and submits that by the agreement dated 30th June 2004 a lease was granted for a period of 10 years. In case the monthly rent was not paid the lessor would be entitled to determine the tenancy and take over possession. One of the grounds on which the notice has been issued is failing to keep the interiors in good tenantable condition. This is also evident from the pleadings in the plaint therefore u/s 114A of the said Act as the respondent has not been given an opportunity to close the breach the notice is bad. In a case of forfeiture u/s 111 of the said Act a notice u/s 106 of the said Act will have no application as such notice can only be given for breach in payment of rent. Therefore, Section 114A of the said Act is applicable and notice thereunder ought to have been issued.

Counsel for the petitioner in reply submits that Section 111(g) of the said Act deals with forfeiture and notice which has been issued is not by virtue of Section 111(g) of the said Act but Section 111(h) of the said Act. In the affidavit filed by the respondent on 3rd February 2009 it has been accepted that the notice has been issued u/s 106 of the Act. Reliance is placed on AIR 1976 Supreme Court 588. As no reply has been given to the notice dated 4th April 2008 a decree for eviction be passed.

Having considered the submissions of the parties although the case of forfeiture was argued by Counsel for the defendant, no such pleading can be found in the affidavit filed by it. In fact the defendant has disputed the applicability of the provisions of the said Act, therefore, recourse taken to its provisions cannot arise. Non-registration of a lease deed will render it to be a lease month by month and thereby a monthly tenancy and makes the notice issued u/s 106 of the said Act valid. The defendant has also admitted that a monthly lease can be terminated by issuance of notice u/s 106 of the said Act.

The instant suit was filed on 19th September, 2008. Thereafter on 24th September, 2008 T.S. 4183 of 2008 has been filed by the defendant before the VIIth Judge, City Civil Court. In the plaint filed in T.S 4183 of 2008 no case of forfeiture has been made out. The defendant therein has sought for declaration that it is a bona fide tenant.

Therefore, the defence taken by the defendant does not raise a triable issue and is nothing but sham and a moonshine defence. This entitles the plaintiff to a decree in terms of prayer (a) of the Masters Summons.

For purposes of determination of mesne profits Mr. Sabyasachi Choudhury, Advocate, is appointed Special Referee at an initial remuneration of 1000 Gms. Report be submitted by the Special Referee within three months. Let the suit be listed before the appropriate Court six months hence.

In view of the Order passed let the decree in terms of prayer (a) of the Master''s Summons be drawn up. With the aforesaid direction this application is disposed of.

Special Referee, Department and all parties to act on a signed copy of the operative portion of this judgement on the usual undertakings.

Urgent xerox certified copy of this judgement be made available to the parties, if applied for, upon compliance of all requisite formalities.