Food Corporation of India,Delhi and Anr. vs Durgashakti Enterprises

D.C. Srivastava, J.—With the consent of the parties Counsel this revision is being disposed of finally at the admission stage.

The brief facts are that the opposite party of this revision is the landlord of the two godowns having 5000 metric tons capacity which were let out to the revisionist on monthly rent of Rs. 17,871. The rent fell due from the revisionist, which was not paid. Consequently a notice of demand of rent and terminating the tenancy was sent, which was served upon the revisionst. Despite service of notice neither the rent was paid nor the godowns were vacated, hence the suit for eviction, recovery of arrear of rent, mesne profits etc was filed. It was alleged in the plaint that the two godowns were constructed in the end of October, 1979 and the two godowns were first assessed in the Nagar Palika record on 301089 with effect from 1.11.89, hence the provisions of U.P. Act No. XIII of 1972 are not applicable. Previously the mesne profits were claimed at the rental rate of Rs. 17,871 per month, but subsequently the mesne profits were claimed at the rate of Rs. 35,000 per month after seeking amendment in the plaint.

The suit was resisted by the revisionisttenant on various grounds. It was denied that the godowns are not covered by U.P. Act No. XIII of 1972. The validity of notice was also challenged. It was also challenged that the suit is barred by Section 69 of the Partnership Act inasmuch as the landlord''s firm is unregistered. It was also denied that the mesne profits can be claimed at the rate of Rs. 35,000 per month. The two godowns are governed by U.P. Act No. XIII of 1972. Initially the agreed rate of rent was 48 paise per sq. feet, which was enhanced to 60 paise per sq. feet. The alleged arrears of rent were also denied.

The learned lower court decreed the suit observing that the godowns were not covered by U.P. Act No. XIII of 1972 and there was no invalidity in the notice of eviction. The mesne profits were awarded at the rate of Rs. 35,000 per month. The plea of bar of Section 69 of the Partnership Act was repelled by the lower Court. The plea of nonjoinder of necessary party was also repelled, so also the plea of the revisionists that they are entitled to the benefit of Section 20(4) of U.P. Act No. XIII of 1972. In this revision only four points were urged by the learned counsel for the revisionist. The first contention was that the go downs are not governed by U.P. Act No. XIII of 1972. This contention was repelled by the learned lower Court. I do not find any illegality in this finding. Annexure1 is the agreement between the parties dated 23.10.78. In this it was mentioned that the party No. 2 has agreed to construct the desired godowns. This shows that till 23rd October, 1978 the godowns were not constructed. The second agreement (Annexure2) is dated 16th February, 1979 in which the godowns were taken on rent at the rate of 48 paise per sq. feet. It was contended that in the notice (Annexure3) it is mentioned by the landlord that the godowns were constructed in August, 1979, but this seems to be a typographical error. Annexure1 was itself entered into on 23rd October, 1978, whereunder the landlord agreed to construct the godowns. It is, therefore, incorrect to hold that the godowns were constructed in August, 1979. Annexure4 is the copy of the plaint. In paragraph 3 of it there is mention that the godowns were completed in the end of October, 1979 and the first assessment was made with effect from November, 1979. The trial court also found that the first assessment was made in the end of October, 1979 which came into force from 1.11.1979. The suit was filed on 20.8.89. On the date neither from October, 1979 nor from November, 1979 ten years'' period was complete, hence there is no error in the finding of the court below that the godowns were not governed by U.P. Act No. XIII of 1972. Besides this factual finding, U.P. Act No. XIII of 1972 was amended and the Amending Act received the assent of the Governor of Uttar Pradesh on 15.2.95 and the same was published in the Gazette on 17.2.95. A provision has been inserted in Section 2 of the previous Act to the following effect:

"The following clauses shall be inserted, namely,

(g) any building, whose monthly rent exceeds two thousand rupees."

It is, therefore, clear that the building, whose monthly rent exceeds Rs. 2,000 per month, will not be covered under the provisions of U.P. Act No. XIII of 1972. Further it is admitted that the rate of rent was Rs. 17,871 that is in excess of Rs. 2,000 per month. As such the godowns will not be governed by U.P. Act No, XIII of 1972. I, therefore, do not find any error in this finding of the learned lower court.

The second point present was that the notice of eviction is invalid. Annexure3 is the copy of the notice. It was argued that the tenancy was terminated forthwith and presenti termination of tenancy renders for notice invalid. A similar question arose before the Hon''ble Supreme Court in "Bhagwan Das Agarwal v. Bhagwan Das, reported in A.I.R. 1977 S.C. 1120 in which it was held that the notice to quit requiring the tenant to vacate the premises within the month of October, 1962, otherwise he will be treated as trespasser from 1st November, 1962, made the intention of the author of notice of eviction that they were terminating the tenancy with effect from the end of the month of October, 1962 and not with effect from any earlier point of time during the currency of that month. The notice was held to be valid in these circumstances.

In the case before me the notice has not been happily worded, but mere recital in the notice that the tenancy is terminated, does not render the notice invalid nor such termination of tenancy in presenti can invalidate the notice. In subsequent paragraph of notice the landlord desired that within a month of receipt of notice the tenant should pay the entire rent and further after 30 days possession should be delivered. Third paragraph reads that if the above two acts are not done within two months of receipt of notice, the suit will be filed, the intention of the landlord from this notice is clear that he demanded that the rent should be paid within a month of receipt of notice and within 30 days thereafter the premises should be vacated. The word two months in one of the paragraphs, namely, paragraph 4 of Annexure3 indicates that clear 30 days notice was given and the notice under Section 106 of the Transfer of Property Act cannot be invalidated on this score. I am, therefore, of the view that the notice is perfectly valid. I do not find force in the contention that the notice is invalid because it was not given to the Regional Manager or the Senior Regional Manager, Lucknow. Since the tenant was the Food Corporation of India acting through its Senior Regional Manager or the Regional Manager, the notice was rightly given to the Food Corporation of India. If it was sent to the Head Office, New Delhi, it has not rendered the notice invalid.

The third contention was that even if U.P. Act No. XIII of 1972 is not applicable to the godowns, the tenant is entitled to relief against forfeiture as contemplated under Section 114 of the Transfer of Property Act. In support thereof a case reported in 1994 AWC VolI page 17 was referred. It was held in this case that in cases where U.P. Act No. XIII of 1972 does not apply and the lease has been terminated by a notice under Section 106 of the Transfer of Property Act, the benefit of Section 114 of the Transfer of Property Act can be given and the tenant can be relieved against forfeiture. In my opinion since there is no evidence on record that effective compliance of the requirements of Section 114 of the Transfer of Property Act has been made by the tenants, they are not entitled to protection under this section. Moreover, a contrary view has also been taken by this Court that when the tenancy is terminated through a notice under Section 106 of the Transfer of Property Act, the benefit of Section 114 of the Transfer of Property Act cannot be granted. In any case since it is not established that the amounts required to be deposited under Section 114 of the Transfer of Property Act, have actually been deposited no such benefit can be given to the tenant. Further no such plea was taken in the lower court nor was there any pleading in the written statement.

The last contention has been that the mesne profits at the rate of Rs. 35,000 per month could not be granted by the court below. It was contended that mesne profits exceeding the agreed rate of rent cannot be granted. In support of this contention the case of Mahesh Lalwani v. Sardar Uttam Singh, 1989 L.C.D. 1 was referred. In this case it was held that the damages for occupation of premises under tenancy should be equal to such amount which the plaintiff was realising as rent of the premises from the defendant. No excess amount could be awarded by way of penalty, even though the premises is not governed by the Rent Control Act. However, from the side of the opposite party, the decision of the Hon''ble Supreme Court reported in A.I.R. 1977 S.C. 2210 Shyam Charan v. Sheoji Bhai was cited and it was argued that in view of this decision damages can be awarded at enhanced rate. In view of this decision of the Hon''ble Supreme Court, Single Judge decision of this Court cannot be followed by another Single Judge of the same Court. It is, therefore, clear from the pronouncement of the Hon''ble Supreme Court that the damages can be awarded at the enhanced rate.

In this case mesne profits were claimed at the rate of Rs. 6,000 per month as against the agreed rate of Rs. 1,600 The Hon''ble Supreme Court confirmed that award of mesne profits at the rate of Rs. 4,000 per month.

The next point that has to be seen in this connection is whether the awarded mesne profits at the rate of Rs. 35,000 per month is justified or not. Initially in the plaint Annexure4 paragraphC of the relief clause damages were claimed at the agreed rate, namely, Rs. 17,871/ per month but subsequently the plaint was got amended vide Annexure6 and damages were claimed at the rate of Rs. 35,000 per month. Annexure7 is the additional written statement. In this additional written statement it was wrongly mentioned that the premises cannot fetch more than Rs. 2,000 If the agreed rent was Rs. 17,871 per month, it is difficult to reduce the amount of damages to Rs. 2,000 per month.

The evidence on record shows that the mesne profits at the rate of Rs. 35,000 per month cannot be said to be excessive or imaginary. The first lease was executed on 23rd October, 1978 Annexure1. In this the rent was agreed at the rate of 48 paise per sq. feet. This rate of rent was enhanced to 60 paise per sq. feet in the subsequent lease after five years. It means that 25% enhancement was made after five years. The suit was decreed on 20.10.95. It, therefore, follows that if in the year 1984 the rate of rent was 60 paise per sq. feet giving similar enhancement of 25% it will come to 75 paise in year 1989. Adding further enhancement of 25% the rent in the year 1994 would have been 95 paise per sq. feet. Thus the total enhancement from 48 paise to 95 paise comes to about double enhancement. In any case in the year 1994 the enhancement should have been to the tune of 95 paise per sq. feet. Further there is evidence on record that the State Sugar Corporation and Fertilizer Corporation made offer to the landlord of these godowns on the rent at the rate of Rs. 2/ per sq. feet. Bijnor is not a big town. It is averred by the landlord that there is no other godown in Bijnor having a large capacity of 5000 metric tons. Judicial notice can be taken that not only the value of the land and building is going up day by day, but also the rent is going up day by day. Hence keeping in view this fact and keeping in view the officer of Rs. 21 per sq. fet, the mesne profits should have exceeded than the amount awarded by the court below. The total area of two godowns comes to approximately 29785 sq. feet. The amount of mesne profits ascertained by the lower court in these circumstances at Rs. 35,000 per month does not appear to be exorbitant for this reason.

No other point was pressed before me in this revision. This revision is thus without merit and is liable to be dismissed.

The revision is dismissed. No order as to costs.

Revision dismissed.