Union Bank of India v. Sushila Goela

SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 1 Thursday, October 03, 2024

Printed For: Koustubh Sharma, Himachal Pradesh National Law University
SCC Online Web Edition: https://www.scconline.com
© 2024 Delhi Reported Judgments.
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2005 SCC OnLine Del 1151 : (2005) 85 DRJ 318 (DB) : (2005)
125 DLT 161 (DB) : (2006) 1 CCC 107
In the High Court of Delhi

(BEFORE MARKANDEYA KATJU, C.J. AND MADAN B. LOKUR, J.)
Union Bank of India … Appellant;

Versus
Sushila Goela & Ors … Respondents.
RFA 699/2005
Decided on November 7, 2005
Civil Procedure Code, 1908

Order 12 Rule 6—Suit for possession of premises filed by lessor seeking
possession on the basis of expiry of lease—Receipt of notice admitted by
the lessee—Suit filed immediately after expiry of lease—No question of
holding over the tenancy can arise—Impugned judgement affirmed.
Page: 319
Cases Referred:
Capital Boot House v. Intercraft Limited 1999 (51) DRJ 245 (DB)
Rajiv Srivastava v. Sanjiv Tuli 119 (2005) DLT 202 (DB)
Satish Chand Makhan v. Goverdhan

Dass Byas AIR 1984 SC 143
Uttam Singh Duggal & Co. Ltd. v. United

Bank of India 2000 (7) SCC 120
V. Kamalaksha Pai v. Keshava Bhatia AIR 1972 Kerala 110
PRESENT: Mr. Ravinder Sethi, Sr. Advocate with Mr. Aditya Madan,
Adv. for the Appellant.
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Mr. A S Chandhiok, Sr. Advocate with Mr. Sanjeev Sindhwani & Ms.
Swaty, Advs. for the Respondent.
MARKANDEYA KATJU, CJ.:— This appeal has been filed against the
judgment of the Additional District Judge Delhi in Suit No. 560/04/01.
2. Heard learned counsel for the parties and perused the record.
3. The Plaintiff/respondent filed a suit for ejectment, recovery of Rs.
58000/- and damages of Rs. 29,000/- per day w.e.f. 1.7.2001 in
respect of premises No. 625-632, Ward VI, Chandni Chowk, Delhi
against the defendant on 2.7.2001.
4. The Plaintiff/respondent are owners of the suit premises. They
inducted the defendant bank as a tenant of the said premises in an
area of 5528 sq.ft.
5. The lease deed executed on 10.9.1990 between the lessors and
the appellant bank (lessees) stated that the lease is for 10 years
commencing from 1.7.1986 i.e. ending on 30.6.1996. There was a
clause in the lease deed which stated that the lessee shall have the
right to renew the lease of the premises for another period of five years
after 30.6.1996 on the same terms and conditions except increase of
rent by 20%. The initial rate of rent was Rs. 47520/- per month. The
tenancy of the appellant bank was to expire on 30.6.1996, but the
defendant bank (the appellant) exercised its option of renewal beyond
30.6.1996 for five years vide letter dated 14.6.1996.
6. The plaintiff/respondent had by letters dated 6.10.2000 and
25.1.2001 informed the defendant bank about the expiry of the lease
and called upon the bank to hand over peaceful and vacant possession
of the suit property on 30.6.2001.
7. The defendant filed a written statement in the suit stating that
the lease was for 10 years from 1.7.1986 which expired on 30.6.1996.
Thereafter no registered lease deed was executed and the tenancy
became a monthly tenancy. The defendant took the plea that notices
dated 6.10.2000 and 25.1.2001 were never served upon it. They
further stated that these notices did not conform to Section 106
Transfer of Property Act.
Page: 320
8. The plaintiff in their replication stated that the extended terms of the
lease expired on 30.6.1996 and no further lease deed was executed.
However, by letter dated 14.6.1996 the bank opted for renewal of the
lease for another five years, as per the lease deed. It was further stated
that after the letters dated 6.10.2000 and 25.1.2001 another letter
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dated 31.5.2001 was addressed to the defendant bank categorically

stating that the tenancy was to expire at the end of June 2001 and the
bank was called upon to hand over possession of the premises on the
expiry of 30.6.2001. Yet another letter dated 20.6.2001 was addressed
to the bank again stating that the tenancy was coming to an end on
30.6.2001 and pointing out that thereafter remittance of any rent
would be on account of compensation for overstay. By letter dated
20.6.2001 the defendant acknowledged the receipt of letters, dated
31.5.2001 and 20.6.2001 but insisted that it was a lawful tenancy and
refused to vacate the premises even after 30.6.2001.
9. The plaintiff filed documents in support of the case, but the

defendant did not file any documents. The defendant during
admission/denial admitted the letters dated 31.5.2001 and 20.6.2001
of the plaintiff which were marked as Exhibit P5 and P6. The defendant
also admitted its own reply dated 27.6.2001 which was marked as
Exhibit P7.
10. Issues were framed and the case was fixed for evidence. The
plaintiff filed an application under Order 12 Rule 6 CPC which was
contested by the defendant but the court vide judgment and order
dated 25.7.2005 passed a decree in favour of the plaintiff.
11. Learned counsel for the appellant submitted that the case does
not fall within the ambit of Order 12 Rule 6 CPC. However the trial court
referred to the provisions of Order 12 Rule 6 CPC and has also referred
to the judgment of the Supreme Court in Uttam Singh Duggal & Co.
Ltd. v. United Bank of India, 2000 (7) SCC 120. A Division Bench of this
Court in Rajiv, Srivastava v. Sanjiv Tuli, 119 (2005) DLT 202 (DB) while
dealing with the suit for possession has relied on the aforesaid
judgment of the Supreme Court in Uttam Singh's case (supra) and has
held that the expression “otherwise” allows the court to pass judgment
on the basis of the statement made by the parties not only in the
pleadings but also de hors the pleadings i.e. either in any document or
even in the statement in the court. Admittedly in the present case the
defendant during admission/denial of documents admitted the
documents in question. In our opinion, therefore Order 12 Rule 6 CPC
does apply in this case. At any event, the defendant has not disputed
that notice dated 31.5.2001 was received by the bank on 31.5.2001
itself.
12. In our opinion even if it is assumed that there existed a
contractual tenancy in favour of the bank it expired with efflux of time
on 30.6.2001 and as such no notice in law was necessary. The present
suit was filed on 2.7.2001
Page: 321
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(first day of the re-opening of the court) and hence in our opinion the
concept of holding over cannot apply.
13. Moreover, even assuming that the contention of the learned

counsel for the appellant that notice under Section 106 was necessary
giving 15 days clear notice, admittedly the notice dated 31.5.2001 was
received by the defendant on 31.5.2001 itself. This notice called upon
defendant to hand over the possession of the suit premises on the
expiry of 30th June, 2001. This is a clear 30 days period which is more
than 15 days.
14. In law the object of a notice is to inform the other party as to
the intention of the person issuing the notice i.e. that he wants the
premises back. In our opinion, this intention was clearly communicated
to the defendant bank. This is evident from the bank's letter which
stated “it (bank) does not intend to vacate the same at your whims:”
nor the bank is liable to pay any compensation.” This is also obvious
from the reply of the bank dated 27.6.2001 Exhibit P7 that the
defendant clearly understood that the landlord wanted it to vacate the
premises and hand over peaceful vacant possession on the expiry of
30th June, 2001. Thus the intention was clearly conveyed by the notice.
It is settled position of law that notice under Section 106 Transfer of
Property Act is not to be scrutinized by hair splitting precision. It is not
a pleading but a mere communication of the intention to the recipient.
15. A Division Bench of this court in Capital Boot House v. Intercraft
Limited, 1999 (51) DRJ 245 (DB) while dealing with a similar notice
held that the idea of a notice is only to communicate the intention of
the owner and the object of the notice is to give sufficient time to
vacate. Such notice is to be liberally construed. The court further held
that the real point in such cases was that the person on whom the
notice is served should understand that his tenancy has been
terminated and he should vacate at the end of the period of tenancy
16. Similarly in V. Kamalaksha Pai v. Keshava Bhatia, AIR 1972 Ker
110 it was held that as long as the notice does not mislead it is valid in
law.
17. Moreover in this appeal the appellant's contention is that it was
a tenant holding over within the meaning of Section 116 of Transfer of
Property Act. No such plea was ever taken before the trial court and it
was not even pleaded in the written statement. The only pleas in the
written statement are that the tenancy was never terminated and that
the notices dated 6.10.2001 and 25.6.2001 was not received and that
the plaintiff continued to accept rent without objection and hence the
notice was waived.
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18. The defendant bank vide letter dated 14.6.1996 had exercised
its option of renewal beyond 30.6.1996 for five years and had started to
pay enhanced rent. Hence in our opinion Section 116 of the Transfer of
Property Act which provides for holding over does not apply at all. The
lease continued
Page: 322
till 30.6.2001 and the suit was filed immediately thereafter on

2.7.2001. Hence in our opinion there is no question of holding over.
19. Learned counsel for the appellant has relied on a decision of the
Supreme Court in Satish Chand Makhan v. Goverdhan Dass Byas, AIR
1984 SC 143. In our opinion that decision is clearly distinguishable.
20. A perusal of the facts of that case shows that in that case the
lease was executed for five years from 8.1.1965 and on the expiry of
that period the parties entered into an agreement to renew monthly
lease for a further period of nine years w.e.f. 1.6.1971. The plaintiffs in
that case served a notice dated 1.2.1976 upon the defendant
determining the tenancy on the ground of forfeiture under Section 111
(g) of the Act complaining of the breach of the terms of the lease, and
on 27.3.1976 the plaintiff filed a suit for ejectment and mesne profits.
The defendant filed a reply that they were tenant holding over from
month to month under Section 116 of the Transfer of Property Act and
since there had been no determination of the lease by service of a
notice under Section 106 of the Transfer of Property Act, the suit as
framed was not maintainable.
21. A perusal of the facts of that case show that the facts were very
different from the present case. In the present case the lease was
initially from 1986 to 30.6.1996 and there was a provision for renewal
for five years which was exercised by the tenant. Hence the lease
expired on 30.6.2001. The suit was filed on 2.7.2001. Hence there is no
question of holding over in the present case and the decision in Satish
Chand Makhan (supra) has no application to the facts of the present
case.
22. There is no force in this appeal and it is accordingly dismissed.
———
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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Thursday, October 03, 2024

In the High Court of Delhi

Union Bank of India … Appellant;

Civil Procedure Code, 1908

Rajiv Srivastava v. Sanjiv Tuli 119 (2005) DLT 202 (DB)

Satish Chand Makhan v. Goverdhan

Uttam Singh Duggal & Co. Ltd. v. United

V. Kamalaksha Pai v. Keshava Bhatia AIR 1972 Kerala 110

dated 31.5.2001 was addressed to the defendant bank categorically

9. The plaintiff filed documents in support of the case, but the

13. Moreover, even assuming that the contention of the learned

till 30.6.2001 and the suit was filed immediately thereafter on

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