Dismissed

Union Bank of India and Ors. v. Savitri Baruah and Anr.

Gauhati HC26 Apr 2022RSA/135/2007

Case brief

AI extract

What is this about?

In this second appeal challenging a decree in favor of landowners for vacant possession and rent arrears, the High Court examined whether an internal communication admitted by the tenant constituted a valid agreement for rent enhancement. The Court held the communication was permissible evidence and dismissed the appeal.

What did the court decide?

Appeal dismissed; lower court decree affirmed; order of stay of execution vacated.

Union Bank of India and Ors. Vs Savitri Baruah and Anr. — Landlord and Tenant | Gauhati HC (2022)

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Page No.# 1/9

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GAHC010138872007

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA/135/2007

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UNION BANK OF INDIA and ORS. REGD. OFFICE AT 239, BACKBAY RECLAMATION, MUMBAI AND CARRYING ON BUSINESS AT ITS DIVERSE BRANCHES AND IN PARTICULAR AT A BRANCH AT JAGI BHAKATGAON, MORIGAON, ASSAM, REP. BY THE BRANCH MANAGER OF ITS JAGI BHAKATGAON BRANCH.

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2: REGIONAL MANAGAER

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UNION BANK OF INDIA NODAL REGIONAL OFFICE GNB ROAD GUWAHATI-3 KAMRUP ASSAM.

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3: ASSTT. GENERAL MANAGER

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UNION BANK OF INDIA P.N.S.S.-11 PREMISES 230 BACKBAY RECLAMATION MUMBAI-1400021

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VERSUS

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SAVITRI BARUAH and ANR. W/O LATE DULAL CH. BARUAH.

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2:MANOJ KUMAR BARUAH

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W/O LATE DULAL CH. BARUAH BOTH ARE RESIDENT OF JAGI BHAKATGAON DIST. MORIGAON ASSAM

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Advocate for the Petitioner : MR.R K BHATRA

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Advocate for the Respondent : MR. SUKUMAR SARMA

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT & ORDER (ORAL)

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Date : 26-04-2022

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Heard Mr. R.K. Bhatra, learned counsel for the appellants and Mr. Sukumar Sarma, learned counsel appearing on behalf of the respondents.

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The instant appeal under Section 100 of the CPC is directed against the judgment and decree dated 20.04.2007 passed in Title Suit No. 9/2006 by the Court of Civil Judge (Senior Division), Morigaon whereby the said appeal was dismissed thereby affirming the judgment and decree dated 05.09.2006 passed by the learned Munsiff No. 1, Morigaon in Title Suit No. 29/2006.

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The instant second appeal was admitted for hearing by this Court vide an order dated 23.05.2008 on the following substantial question of law:

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“ Whether the Ext. 10 document could be termed as agreement between the parties for enhancement of rent?”

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For the purpose of deciding as to whether the said substantial question of law is involved in the instant appeal, it would be relevant to take note of the brief facts of the instant proceedings. One Dulal Ch. Baruah (since deceased) was the owner and possessor of a plot of land measuring 3 bighas, 1 katha and 2 lessas covered by K.P. Patta No. 244, Dag No. 792 of Village- Bhakatgaon, Mouza- Manaha in the District of

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Page No.# 3/9

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Morigaon, Assam. The plaintiffs/the respondents herein are the successors-in-interest of late Dulal Ch. Baruah.

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Over the said plot of land, late Dulal Ch. Baruah during his lifetime constructed an Assam type house in the year 1975 having constructed area of approximately 1200 sq. feet. On 20.12.1977, late Dulal Ch. Baruah had offered the defendants to let out the said Assam type house on a monthly rent for starting/opening their Jagi-Bhakatgaon Branch. On receipt of the proposal of late Dulal Ch. Baruah, the negotiation regarding the rent and other accommodations were started between late Dulal Ch. Baruah and the defendants. It is relevant to mention herein that the Regional Manager of the appellant No. 1 Bank had issued a communication dated 17.04.1978 whereby it was intimated that the premises so offered, the appellant No.1 Bank was agreeable to take up an approximate area of 1200 sq. feet on the ground floor for opening of the Jagi-Bhakatgaon Branch on the various terms and conditions stated in the said communication. The said communication was exhibited before the trial Court as Ext. No. 2. Pursuant thereto, late Dulal Ch. Baruah accepted the terms and conditions offered and from 01.05.1978, the appellants herein started running their branch over the land and the house of late Dulal Ch. Baruah.

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Subsequent thereto, the appellants demanded to increase the area of the tenanted premises thereby increasing the area from 1200 sq. feet to 1490 sq. feet. On the basis thereof, the area of tenancy was enhanced from 1200 sq. feet to 1490 sq. feet. The appellants/defendants continued to enjoy the lease of the tenanted premises. The first tenancy agreement expired in the year 1987 but thereupon, as per the plaintiffs

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that the defendants did not renew the tenancy agreement by enhancing the monthly rent. Vide a letter dated 01.04.1993 (Ext. 4), the Manager (P&D) of the Regional Officer of the appellant No. 1 informed the plaintiff No. 1 that the Regional Office of the Union Bank of India had advised the Jagi-Bhakatgaon Branch to inform the terms and conditions of approval and vide the Ext. 4, the various terms and conditions were duly mentioned. Vide the said communication dated 01.04.1993, the tenancy was extended for a further period of 10 years w.e.f. 01.06.1987 by enhancing the monthly rent @ Rs. 1/- per sq. feet per month. However, the appellant did not pay the enhanced monthly rent to the plaintiff w.e.f 01.07.1987 and as such, it was alleged in the plaint that the defendants/appellants herein were defaulter in payment of rent. After the expiry of the tenancy agreement w.e.f. 01.06.1997, the plaintiffs wrote a communication on 11.07.1997 to the defendant No. 2 demanding, inter alia, for the renewal of the lease agreement and enhancement of the monthly house rent. The increase which was sought for by the plaintiffs was Rs. 2.50/- per sq. feet. The plaintiff continued to make such demands but the defendants/the appellants did not pay any heed.

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Subsequent thereto, on 03.06.2003, although the plaintiff’s demand was for Rs. 2.50/- per sq. feet w.e.f. 01.07.1997 till shifting but it was amicably resolved that the rate would be fixed @ Rs. 1.70/- per sq. feet. On the basis of such negotiation, the Regional Manager vide a communication dated 09.06.2003 (Ext. 10) intimated the Assistant General Manager, P&SSII, Premises Section, C.O., Mumbai, intimating that the Regional Manager had negotiated with the landlady and she

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agreed to accept Rs. 1.70/- per sq. feet and was of the opinion that the landlady’s demand was justified. However, in spite of the said communication, the appellants/defendants continued to occupy the premises and did not increase the rent, for which the suit was filed for ejectment of the defendants, servants, agents, employees and workmen from the Schedule B suit premises and recovery of khas for the possession of the same after eviction of the defendants; for realization of arrear rent of Rs. 96,999/- being the arrear rent @ Rs. 0.70/- per sq. feet per month w.e.f. 01.07.1997 till March, 2005 and for realization of future rent of the B schedule premises w.e.f. the month of April, 2005 till eviction of the suit of the defendants from the suit premises. The said suit was registered and numbered as Title Suit No. 29/2006.

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The appellants herein who were the defendant Nos. 1, 2 and 3 had submitted a joint written statement whereby the claim of the plaintiff was denied. It was the specific stand in the written statement that the defendant No. 2 communicated to the defendant No. 3 vide letter dated 09.06.2003 (Ext. 10) about increasing of the rent from Rs. 1/- to Rs. 1.70/-. But the higher authority of the defendant No. 3 had not approved the same. It was mentioned that the higher authority considering the genuineness of the landlady’s request acceded within the framework of the premise policy to extend an increase by 15% to the existing rent. It is noteworthy to mention that the said written statement was filed through the Branch Manager of the appellant Bank. On the basis of the said pleadings as many as 7(seven) issues were framed which were:

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(i) Whether there is any cause of action for the suit?

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(ii) Whether the suit is maintainable in its present form?

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(iii) Whether the suit is bad for non-joinder of necessary parties?

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(iv) Whether there was any relationship in between the landlord (plaintiffs) and the tenant being the defendant Bank in respect to the suit premises?

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(v) Whether the plaintiffs are entitled to get arrear rent as claimed for? (vi) Whether the plaintiffs are entitled to get the decree of eviction of the defendant Bank from the suit premises?

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(vi) To what reliefs the plaintiffs are entitled to?

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The plaintiffs examined one witness i.e. the respondent no. 2 herein and exhibited various documents marked as Exhibit-1 to Exhibit11(2) all inclusive. The defendants examined one witness i.e. one Manik Ch. Sen who was the Branch Manager of the Union Bank of India JagiBhakatgaon Branch and the defendants exhibited 3 documents which were marked as Exhibit A, Exhibit B and Exhibit C.

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The trial Court vide a judgment and decree dated 05.09.2006 decreed the suit in favour of the plaintiffs. In doing so, while deciding the issue No. (v), which pertain to as to whether the plaintiffs were entitled to get arrear rent as claimed, the trial Court came to a finding that the defendants/appellants were in possession of the Schedule B premises till December, 2005 and Ext. 10 was not denied. On the basis of the evidence, oral as well as documentary, the trial Court came to the finding that the plaintiffs’ claim was genuine and as such, the plaintiffs were entitled to the rent @ Rs. 1.70 per sq. feet per month w.e.f. 01.07.1997. As regards the issue No. (vi) which pertain to as to whether the defendants were liable to be evicted from the suit premises, the trial Court came to the finding that the defendants were liable to be evicted

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from the suit premises as they were defaulters. On the basis of the said findings, the trial Court decreed the suit holding, inter alia, that the plaintiff was entitled to realize the due rent of Rs. 96,999/- till March, 2005 @ Rs. 1.70/- per sq. feet w.e.f. 01.07.1997 after adjusting the rent @ Rs. 1/- per sq. feet. It was further decreed that as from the evidence of the DW1 has been proved that the defendants vacated the suit premises, the trial Court, therefore, directed that the plaintiffs are further entitled to rent @ Rs. 1.70/- per sq. feet per month over 1490 sq. feet of the suit premises from the month of April, 2005 to December, 2005 which amounts to Rs. 22,797/-. As the defendants have already vacated the suit premises, it was held that there was no order necessary for eviction of the defendants.

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The appeal was filed by the appellants herein challenging the said judgment and decree dated 05.09.2006. The said appeal was registered and numbered as Title Appeal No. 9/2006. The First Appellate Court vide a judgment and decree dated 20.04.2007 dismissed the appeal by affirming the findings and conclusion of the trial Court.

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Being aggrieved, the present appeal has been filed under Section 100 of the Code of Civil Procedure and this Court vide an order dated 23.05.2008, as already stated herein above, had admitted the appeal on the substantial question of law as to whether Ext. 10 document could be termed as the agreement between the parties for enhancement of rent.

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I have perused the materials on records including the evidence led by the parties. A perusal of Ext.2 stipulates that the Regional Manager of the appellant Bank had issued a communication to the predecessor in interest of the respondents herein dated 17.04.1978 whereby they

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agreed to take an approximate of 1200 sq. ft. on the ground floor on the various terms and conditions stipulated therein. It further appears that vide Ext.4 another communication was issued by the Manager (P&D) of the Regional Office of the appellant Bank whereby the Regional Office of the appellant Bank intimated the Plaintiff No.1, the various terms and conditions of the approval. It is noteworthy to mention that the total area of the house taken on rent was 1490 sq. ft. for the purpose of use as a branch premises and Branch Manager’s residence and the rent to be paid was Rs.1 per sq. ft. for the carpet area 1490 sq. ft. as per the joint measurement certificate. The entire evidence placed on record shows that correspondences of the plaintiffs were with Regional Office of the appellant Bank. In the said background, it is therefore relevant to take note of the Ext.10.

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A perusal of Ext.10 categorically shows that the Regional Manager have written a communication to the Assistant General Manager P & S.S.II Premises Section C/O Mumbai dated 09.06.2003. The Regional Manager had categorically stated in the said communication that though the land lady have requested for enhancement of the monthly at Rs.2.50 per sq. ft. with effect from the date of expiry of the lease i.e. from 01.07.1997 till it shifted but the Regional Manager had negotiated with the landlady and she had agreed to accept Rs.1.70 per sq. ft. and that the landlady’s demand is justified. From a perusal of the said Ext.10, it therefore discloses the admission on the part of the Regional Office of the appellant Bank that they had agreed with the plaintiff that they would increase the rent to Rs.1.70 per sq. ft. This aspect of the matter has been concurrently accepted by the Court below and this Court does

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not find any infirmity in the same.

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Consequently, this Court therefore, does not find the said question of law so framed as a substantial question of law involved in the instant proceedings for which the instant appeal stands dismissed.

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The Registry is directed to return the LCR to the Court below.

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In view of the dismissal of the appeal any order of stay of the execution proceedings stands vacated.

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JUDGE

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Comparing Assistant

Union Bank of India and Ors. v. Savitri Baruah and Anr.

Case brief

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Union Bank of India and Ors. v. Savitri Baruah and Anr.

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