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TMI Blog2010 (12) TMI 1369X X X X Extracts X X X X X X X X Extracts X X X X ..... ncrease to Rs 14950/- p.m. after three years. The total rent, thereby became Rs. 1,02,000/- per month. The Defendant also agreed to pay a sum of Rs. 3,56,000/- as interest free security deposit, which was to be refunded at the time of vacating the premises, subject to the all adjustments. The rent was payable on or before the 10th day of each month. The Defendant, however, did not pay or tender the rent w.e.f. October, 2008. It has been alleged in the plaint that though the tenancy expired with afflux of time on 14th November, 2008, the plaintiff as a matter of abundant precaution terminated the tenancy of the Defendant by giving 15 day notice dated 11th November, 2009 w.e.f the midnight of 14th December, 2009. The notice sent by courier was received back with the remarks "shifted", whereas the notice sent by registered post at the suit premises was received back with the remarks "on repeated visits, premises found locked". The notice sent at the registered office of Defendant company was also received back with the remarks "left without instructions". The notice dated 11.11.2009, according to the plaintiff thus stood served upon the Defendant. Since the Defendant has neither vacat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % and thereby become Rs 102350 per month. The rent was payable in advance before the 10th day of each month. The total lease period was fixed at 9 years and the rent was to become Rs 117702.50 per month on expiry of 6 years from the date of commencement of tenancy. This document also provided that the lessor would be entities to terminate the agreement after giving three months written notice only in the events specified in Clause 9. One of the grounds on which the lease could be terminated by giving three months notice was default in payment of lease amount for more than two months. It also provided that if the lessee fails to deliver the vacant peaceful possession of the premises to the lessor, it shall pay damages to the tune of Rs. 10,000 /- per day to the lessor till the date of handing over the vacant possession. 5. The supplementary lease agreement Ex. PW-1/3 provides for payment of additional rent of Rs. 13,000/- per month w.e.f 1st February, 2008 till 14th November, 2008 and, thereafter, at the rate of Rs. 1,4950/- per months for next three years, which was to further increase to Rs. 17,192.50 after three years from the date of the first increase. Thus, the total rent pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt it is relevant provides that in the absence of a contract or local law or usage to the contrary, a lease of immovable property, for any purpose other than agricultural or manufacturing purposes, shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee by 15 days notice. The above-referred provision of Section 106 of Transfer of Property Act would apply only if there is no contract to the contrary between the parties. The question which comes up for consideration is as to whether the term of tenancy stipulated in the lease deed Ex.PW-1/2 and supplementary deed Ex.PW-1/3 can be looked into, despite the fact that these documents, though compulsorily registrable, were not got registered. 10. The proviso to Section 49 of Registration Act provides that an unregistered document affecting immovable property and required by that Act or the Transfer of Property Act to be registered may be received as evidence of any collateral transaction not required to be effected by registered instrument. The next question which therefore comes up for consideration is as to whether the term of tenancy stipulated in the lease deed Ex.PW-1/2 and supplementary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) DLT 434, where this Court, disagreeing with the view taken by the Allahabad High Court in Lala Fateh Chand v. Mst. Radha Rani and Ors. 1956 Allahabad Law Journal, 625 held that the term of the lease cannot be looked at to find out the period of notice to quit to determine the tenancy. It was held that the term regarding notice of eviction is a term which affects immovable property and, therefore, cannot be said to be a collateral transaction. During the course of judgment, it was observed that the main purpose of the term regarding notice of eviction is as to when the tenant can be required to deliver the possession of the tenancy premises. In that case, one of the terms of the lease deed provided that the lease was for a period of 11 months with two years option with the lessee and could be terminated or extended by giving two months' notice by either side after expiry of lease or option period if exercised. The contention before the Court was that the lease could be terminated by giving two months' notice by either side in terms of the aforesaid clause and for this purpose the aforesaid term in the lease deed could be looked into. This contention was expressly rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of General Clauses Act. It was further observed that a tenant can so many manipulate the matters that the notice gets returned to the sender with vague endorsement such as "not found" "not in station", "addressee has left" and so on. It was contended before the Court that a landlord knowing that the tenant is away from the station for some reasons, could go through the motions of posting a letter to him which he knows will be served. Recognizing such a possibility, the Court was of the view that if a registered letter, addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct and that if he is compelled to be away for some time, all that he has to do is leave necessary instructions with the postal authorities either to detain the letters addressed to him for some times until he returns or to forward them to the address where has gone or to deliver them to some other person authorized by him. 17. In K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. (1999) 7 SCC 510, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anr. 2004 8 SCC 774, dealing with a case where the notice could not b served on account of the fact that the door of the house of the drawer was found locked, Supreme Court held that the principle incorporated in Section 27 of General Clauses Act will apply to a notice sent by post and it would be for the drawer to prove that it was not really served and he was not responsible for such non-service. In State of M.P. v. Hiralal and Ors. 1996 (7) SCC 523, the Respondent managed to have the notice returned with postal remarks "not available in the house", "house locked" and " shot closed". It was held that the notices had been served on the Respondents. In C.C. Alavi Haji v. Palapetty Muhammed and Anr. 2007 6 SCC 555, a Three-Judges Bench of Supreme Court was called upon to re-consider an earlier decision of Two-Judges Bench in the case of D. Vinod (supra), Supreme Court reiterated that where the payee despatches the notice by registered post with correct address of the drawer of cheque, the principle incorporated in Section 27 of General Clauses Act would be attracted. During the course of the judgment, the Court, inter alia, observed as under: Section 27 gives rise to a presumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by registered post cannot be denied to the plaintiffs. 20. I, therefore, have no hesitation in holding that by sending the notice dated 11th November, 2009 which was returned back with the remarks "shirted" "on repeated visits premises found locked" and "left without instructions" the plaintiffs have duly complied with the requirement of Section 106 of Transfer of Property Act. 21. Since the tenancy of the Defendant stands validly terminated, the plaintiff is entitled to a decree for possession of the suit premises. The evidence produced by the plaintiff also proves that in view of the lease agreement Ex.PW-1/2 read with supplementary agreement Ex.PW-1/3, the rent payable by the Defendant was Rs. 1,02,000/- per month with effect from 1st February, 2008 and stood increased to Rs. 1,17,300/- w.e.f 15 November, 2008. The evidence produced by the plaintiff also proves that the arrears of rent payable by the Defendant to the plaintiff come to Rs. 16,42,200/-. The plaintiffs are entitled to recover that amount from the Defendant. 22. The plaintiff has also claimed mesne profit/damages at the rate of Rs. 10,000/- per day from the date of filing of the suit. It has come in the affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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