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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN
M/s.Singer India Limited, Chennai represented by power of attorney agent R.Gunasekaran
Versus
Christ Church rep by Secretary Pastorate Committee Chennai
A.S.No.42 of 2002
Decided on : 30-09-2008
Tamil Nadu Buildings (Lease and Rent Control) Act - Recovery of Possession - 18 of 1960 - Summary: The plaintiff filed a suit for recovery of vacant possession of the property from the defendant and for past and future mesne profits and damages for illegal use and occupation. The defendant contended that the suit was not maintainable, the notice to quit was not valid, and the plaintiff had waived the notice of termination. The trial Judge decreed the suit. The defendant appealed against the judgment.
Fact of the Case:
The plaintiff filed a suit for recovery of vacant possession of the property from the defendant and for past and future mesne profits and damages for illegal use and occupation. The defendant contended that the suit was not maintainable, the notice to quit was not valid, and the plaintiff had waived the notice of termination. The trial Judge decreed the suit. The defendant appealed against the judgment.
Finding of the Court:
The Court found that the relief granted by the trial Court for recovery of possession was maintainable and that the notice under Section 106 of the Transfer of Property Act was valid. The Court also held that the decree and judgment of the trial Judge did not need to be set aside.
Issues: 1) Whether the trial Court is correct in law to pass a judgment for delivery of vacant possession in lieu of the ratio laid down by the Honourable Apex Court in AIR 1985 (1) SCC 290 and 1989 (3) SCC 293? 2) Whether the notice to quit under Section 106 of the Transfer of Property Act issued by the plaintiff is valid under law? 3) Whether the decree and judgment of the learned trial Judge in O.S.No.1497 of 1998 on the file of the VI Additional Judge, City Civil Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal?
Ratio Decidendi: The Court held that the relief granted by the trial Court for recovery of possession was maintainable and that the notice under Section 106 of the Transfer of Property Act was valid. The Court also found that the decree and judgment of the trial Judge did not need to be set aside.
Final Decision: The appeal was dismissed, confirming the decree and judgment of the trial Judge in O.S.No.1497 of 1998 on the file of the VI Additional Judge, City Civil Court, Chennai. No costs were awarded.
This appeal has been directed against the decree and judgment in O.S.No.1497 of 1998 on the file of the VI Additional Judge, City Civil Court, Chennai. The defendant in O.S.No.1497 of 1998 on the file of the VI Additional Judge, City Civil Court, Chennai, is the appellant herein. The plaintiff has filed the suit for recovery of vacant possession in respect of the plaint schedule property from the defendant and also for past and future mesne profits and also for damages for illegal use and occupation of the premises.
2. The averments in the plaint sans irrelevant particulars are as follows:-
The plaintiff is the owner of the plaint schedule property bearing Door No.55, Anna Salai, Chennai-2. The plaint schedule property is exempted from the scope and purview of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended under G.O.Ms.No.2000, Home, dated 18. 1976. The defendant is the tenant under the plaintiff in respect of the plaint schedule property for a monthly rent of Rs.10,000/-. The tenancy being from month to month according to English calendar, a sum of Rs.1 lakh has also been paid by the defendant to the plaintiff towards advance. The plaintiff has terminated the tenancy under the suit notice dated 30.6.1997 by the expiry of 8. 1997. Even after the receipt of the said notice the defendant has failed to quit and deliver the vacant possession of the plaint schedule property. Since the rent fixed by the parties for the plaint schedule property was very low, the plaintiff at the first instance negotiated with the defendant for the payment of a reasonable rent according to the prevailing rent in the locality. Since the negotiation failed, the plaintiff has decided to start a computer centre in the plaint schedule property not only for the benefit of the children studying in the school but also for the general public. Therefore, the plaintiff had terminated the said tenancy of the defendant, calling upon the defendant to pay a sum of Rs.1 lakh per month as damages for the illegal use and occupation of the plaint schedule property by the defendant after the termination of the said tenancy from 8. 1997. The defendant is still continuing to pay a sum of Rs.10,000/- only to the plaintiff every month, and as such after giving credit to the sum of Rs.1,00,000/-paid as advance and a further sum of Rs.60,000/- from 8. 1997 to 22. 1998 @ Rs.10,000/-per month total aggregating to Rs.1,60,000/- there is still a balance to the plaintiff towards the said total damages of Rs.7,00,000/- (from 8. 1997 to 22. 1998 @ Rs.1 lakh per month), and which too the defendant has failed and neglected to pay. Hence, the suit.
3.The defendant in their written statement would contend that the defendant M/s.Singer India Limited is a company incorporated under the Companies Act, 1956, represented by its Law Officer and Power of Attorney Mr.R.Gunasekaran. The present suit field by the plaintiff is not maintainable. The notice issued by the plaintiff is not in accordance with Section 106 of the Transfer of Property Act, 1882, as the same does not expire with the end of the month of tenancy. The suit is not maintainable and is liable to be dismissed as the same is not in accordance with the provision under Order 29 Rule 2 of CPC. No service was effected at the Registered Office of the defendant company. The suit is not maintainable since the plaintiff after the issuance of the notice has been accepting the rent and thereby has waived the notice of alleged termination. The defendant is now having its branch office at Chennai at Door No.17-A, Muthiyal Naidu Street Little Mount, Saidapet, Chennai-15. The defendant became a tenant of the suit property in the year 1952. At the request of the plaintiff the rent was increased to Rs.2,500/-. Now the rent has further been increased and the defendant is paying the rent at the rate of Rs.10,000/- per month at present. The plaintiff is still holding the advance amount of Rs.1 lakh paid by the
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