THE COMMISSIONER OF INCOME-TAX vs. M/S CANARA BANK

M/S NATIONAL TELE MOBILES (A REGISTERED PARTNERSHIP FIRM) NO.131, S.P ROAD, BENGALURU-560002 REPRESENTED BY ITS PARTNERS, SRI M ASLAM SHARIFF

MR M ASLAM SHARIFF S/O LATE HAKIM MASTAN SHARIFF, AGED ABOUT 59 YEARS,

MR FIRDOSE SHARIFF S/O LATE HAKIM MASTAN SHARIFF, AGED ABOUT 39 YEARS,

MR VINOD K CHAWLA S/O MR.KISHANDAS JETHNAND, AGED ABOUT 60 YEARS,

MR AMAR G CHAWLA S/O MR GOBINDRAM K CHAWLA, AGED ABOUT 52 YEARS,

MRS.USHADEVI S CHAWLA W/O K SHYAMLAL CHAWLA, AGED ABOUT 67 YEARS,

MRS. SHEETAL N CHAWLA W/O NARAIN K CHAWLA, AGED ABOUT 59 YEARS,

MRS. NEETA M CHAWLA W/O MAHESH K CHAWLA, AGED ABOUT 58 YEARS,

Facts in brief which are utmost necessary for disposal of the present appeal are as under:

Even after expiry of lease period, the defendants did not vacate and therefore, they must be treated as tenant from month to month.

Further allegations in the plaint would go to show that the defendants were in arrears of rent and therefore, the plaintiffs issued legal notice terminating the lease of the defendants under Section 106 of the Transfer of Property Act.

Even though legal notice is served, there was no compliance, resulting the plaintiffs filing the suit.

Upon receipt of the suit summons, defendants appeared and filed written statement.

According to the written statement of the defendants, the defendants were never in arrears of rent and they have been paying rents regularly. It is also contended that it is the first plaintiff who was receiving the rents regularly and thereafter used to pass receipts.

It is also contended that the suit is bad in law and sought for dismissal of the suit.

Based on the rival contentions of the parties, Trial Court raised the following issues: “1. Whether plaintiffs proves that the defendant on 01.06.2011 execute the agreement of lease with respect to suit schedule premises agreeing to pay the monthly rentals of Rs.10,000/- and to deposit advance amount of Rs.1,00,000/- and enhance the rentals by 5% for every 11 months?

Whether they further proves that the defendant failed to pay the rentals in spite of request demands?

Whether they further proves that they have duly terminated the tenancy by issuing the notice on 22/2/2013 to the defendants?

Whether suit suffers from non-joinder of necessary parties and mis-joinder of parties?

What order or decree?”

In order to prove the case of the plaintiffs, first plaintiff got examined himself as P.W.1 and placed on record ten documents comprising of certified copy of sale deed, attested copy of khata extract, khatha extract, tax paid receipt, copy of the legal notice, postal acknowledgements statement of accounts, certified copy of the power of attorney and letter

In order to prove the case of the defendants, the third defendant got examined himself as D.W.1 and placed on record 49 documents of which Exs.D.1 to P.44 are the rental receipts, Ex.D.45 is the statement of accounts, Ex.D.46 is the accounts issued by the Yes Bank, Ex.D.47 to 49 are the income tax returns.

In the cross-examination of D.W.1, he admits that he was a tenant at a given point of time and the lease agreement was for a period of 11 months.

Thereafter, the learned Trial Judge heard the parties and noting the fact that tenancy was duly terminated by issuance of the legal notice as is contemplated under Section 106 of the Transfer of Property Act and also noted that there was no reply to Ex.P.5 – legal notice, passed an order of

Being aggrieved by the same, defendants are in the present appeal on the following grounds:  The Judgment and Decree passed by the court below are not sustainable in law and facts of the case. Hence the same is liable to be set aside.  The Court below failed to appreciate the evidence let in by the parties to the suit both oral and documentary in proper perspective and arrived wrong conclusion. Hence the Judgment and Decree is not sustainable in law.  It is submitted that the notice to quit issued by the plaintiff itself is not sustainable in law and unjustified and hence the suit filed without there being any valid quit notice is not sustainable in law.  It is submitted that the main contention of the plaintiff in the plaint was regarding arrears of rent which though pleaded was never a ground in the legal notice and the court below found that there

Sri Maskoor Hashmi M.D., learned counsel for the appellants, reiterating the grounds urged in the appeal memorandum contended that the contention of the plaintiffs that to terminate the tenancy that the defendants were chronic defaulters of the rent having not been properly proved, the judgment and decree of the Trial Court is incorrect and sought for allowing the appeal.

Per contra, Sri N. Jai Prakash Rao, learned counsel for the respondents/plaintiffs, supports the impugned judgment.

He also pointed out that in a matter of this nature, the only issue that is to be looked into is whether there is proper termination of tenancy or not which has been held in favour of the plaintiffs and sought for dismissal of the appeal.

Having heard the parties, this Court perused the material on record meticulously.

On such perusal of the material on record, following points would arise for consideration: (i) Whether the tenancy of the defendants has been properly terminated?

Regarding Point Nos.1 to 3: In the case on hand, the relationship of the landlord and tenant is not in dispute so also the lease agreement which is a period of 11 months executed on 01.06.2011 is also not in dispute. With regard to the payment of rents, there are disputes among the parties.

Nevertheless, the prime issue that is to be looked into by this Court is, whether there was a proper termination of the lease of the defendants as the defendants were holding the property as monthly tenant.

In that regard, the important document is Ex.P.5 – legal notice, which is the termination notice.

Admittedly, the same is served on the defendant vide postal acknowledgements marked at Exs.P.6 and P.7.

It is pertinent to note that there is no compliance to the legal notice nor any reply to the legal notice issued by the defendants. What prevented the defendants to issue reply notice is not explained by the defendants.

With regard to the averments of rent is concerned, the rent receipts filed at Exs.D.1 to D.44 are for undisputed period. Therefore, this Court need not delve upon other aspects of the matter in the operative portion.

The only order that has been passed by the Court below is for eviction of the appellants from the suit schedule property.

Under such circumstances, the question of arrears of rents and all other aspects will get into insignificance.

Since there is a proper termination of the lease of the defendants by issuing a necessary notice as is contemplated under Section 106 of the Transfer of Property Act, the contentions urged on behalf of the appellants that there is no proper termination of the tenancy cannot be countenanced in law.

In view of the foregoing discussion, point No.1 is answered in the affirmative, point Nos.2 and 3 in the negative.

Regarding point No.4: In view of findings of this Court on point Nos.1 to 3 as above, following order is passed: ORDER (i) Appeal is meritless and is hereby dismissed. (ii) No order as to cost. (iii) Time is granted till 31st October, 2024 to vacate and hand over the possession.