Kulkarni
Patterns Pvt. Ltd. & Ors Vs. Vasant Baburao Ashterkar & Ors [1992] INSC
13 (17 January 1992)
Kasliwal, N.M. (J) Kasliwal, N.M. (J) Patnaik, R.C. (J)
CITATION:
1992 AIR 1097 1992 SCR (1) 227 1992 SCC (2) 46 JT 1992 (1) 194 1992 SCALE (1)96
ACT:
Transfer
of Property Act-Section 106-Termination notice-Sent by post-Service-Presumption
and rebuttal-When arises.
Bombay Rents, Hotel and Lodging House
Rates Control Act, 1947-Section 13 (1) (b)- Applicability of.
HEAD NOTE:
The
Respondents-landlords filed a suit for possession of the suit premises against
the appellants on the ground of default in payment of rent, amongst other, The
7th Additional Small Causes Judge, dismissed the suit holding that the service
of notice dated 7-8-1980 on the defendants terminating the tenancy was not
proved, even though one out of the three acknowledgments due, had been received
duly signed. As regards the question of default in payment of rent, the learned
Judge took the view that the case did not fall under Section 12(3)(b) of the
Act, as the defendants had paid Rs. 55,800 on 16.1.1984 and thereafter made
regular payment of Rs. 600 every month. On appeal by the respondent- landlords,
the learned additional District Judge reversed the findings of the trial Court
and decreed the suit. The learned Additional District Judge held that when the
notices are sent by registered post, it is presumed to have been served and
mere denial by the tenants had no value, unless they proved some extraordinary
happenings or events which prevented following of usual course of business. On
the question of default in payment of rent the learned Judge held that as the
defendants did not deposit the entire arrears on the first date of hearing and
did not deposit the further rent during the pendency of the appeal, they
persistently committed defaults during the pendency of the suit and also the
appeal. The appellants thereupon filed a writ petition in the High Court
challenging the validity of the aforesaid order of the learned Additional
District Judge. The High Court dismissed the writ petition and affirmed the
order passed by the learned Additional District Judge. Hence this appeal by the
appellants, after obtaining special leave.
Dismissing
the appeal, this Court, 228
HELD:
The notice under Section 106 T.P. Act can be sent by post to the party who is
intended to be bound by it. Thus the notice sent by registered post in the name
of the defendant company who is the tenant is fully in accordance with the
requirement of section 106 of the Transfer of Property Act.[232H-233A] The
plaintiffs had sent a copy of the notice to all the three defendants by
registered post. Three postal receipts Exhs. 52,53 and 54 have been filed in
the present case Exh. 51, one acknowledgment receipt. As regards Exh. 51, the
defendants No.2 has appeared in the witness box and has denied his signatures.
However, it has not been shown that this acknowledgment receipt was related to
which of the three notices sent vide postal receipts Exhs. 52,53 and 54.
[231E-F]
The rebuttal, if any, made by defendant No.2 can be related only with regard to
Exh. 51 for one notice but not with regard to all the three notices sent by
registered post vide Exhs. 52 to 54.[232D] The service of notice shall have to
be presumed so far as defendant company is concerned and there is no rebuttal
to presumption by the defendant appellants. [232E] The finding recorded by the
learned Additional District Judge that the defendants were defaulter in the
payment of rent as full amount of rent was not paid or deposited on the first
date of hearing and no rent was paid month by month during the pendency of the
appeal could not be assailed.
[233B]
Green View Radio Service v. Laxmibai Ramji and Anr., [1990] 4 SCC 497, referred
to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 4134 of 1991.
From
the Judgment and Order dated 30.8.1991 of the Bombay High Court in Writ
Petition No 3580 of 1991.
J.P.Pathak
and P.H. Parekh for the Appellants.
A.M. Khanwilkar
and S.K. Parshankar for the Respondents.
The
Judgment of the Court was delivered by 229 KASLIWAL, J. This appeal by grant of
special leave is directed against the judgment of the Bombay High Court dated 30th August, 1991 in a suit for possession under the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter
referred to as the Act). The suit was dismissed by the 7th Additional Small
Causes Judge. On appeal the learned 10th Additional District Judge, Pune by
Judgment dated 25.4.1991 set aside the order of the trial court and decreed the
plaintiff's suit for possession. The tenants filed the writ petition in the
High Court challenging the order of the Additional District Judge, But the same
was dismissed and the decree for possession passed by the Additional District
Judge was affirmed.
The trial
court held that the service of notice dated 7.8.1980 on the defendant-tenants
was not held proved. The plaintiffs were unable to prove that the postal
acknowledgement Exhibit 51 Contained the signatures of defendant no 2 or 3. It
was held that on the point of service of notice the case of the plaintiff was
rather confusing and not clear. It was held that even assuming that the notice
had been served yet the case did not fall under Section 12(3) (a) of the Act.
The trial court also held that the case did not fall under Section 12(3) (b) of
the Act as the defendants had paid Rs. 55,800 on 16.1.1984 and thereafter made
regular payment of Rs. 600 every month.
According
to the learned trial court the issues were framed on 26.8.1985 and before that
the defendants had made full payment as demanded in the notice and as such no
decree can be passed under Section 12(3)(b) of the Act.
Learned
Additional District Judge reversed the above finding of the trial court and
held that the evidence of the plaintiff showed that the copy of the notice was
sent to all the defendants by registered post. The postal receipts have been
filed as exhibits 52, 53 and 54. Learned Additional District Judge further held
that when the notices are sent by registered post it is presumed to have been
served and mere denial by the tenants had no value, unless they proved some
extraordinary happenings or events which prevented following of usual course of
business. Learned Additional District Judge further held that the notice was
sent on the address given in the plaint and it was admitted by the defendant in
his statement that it contained the correct address. A presumption of service
of notice was drawn under Section 27 of the General Clauses Act and Section 114
of the Evidence Act. Learned additional District Judge though affirmed the
finding of the trial court that the case is not covered under section 12(3)(a)
of the Act, but the plaintiffs were entitled to a decree under Section 12(3)
(B) of the Act. In this regard learned Additional District Judge recorded the
finding that the entire arrears of rent amounted to Rs. 71,088 but the
defendant-tenant only 230 deposited Rs 66.000 till the first date of hearing
and thus remained in arrears of Rs. 5,088. It was also held that the provisions
of 12(3)(b) of the Act are mandatory provisions and those are required to be
strictly complied with by the tenants during the pendency of the suit and also
appeal when the landlord-claims possession of the suit premises on the ground
of Section 12(3)(b) of Act. The defendant-tenant did not deposit the entire
arrears on the first date of hearing and did not deposit the further rent
during the pendency of the appeal. Thus the defendant persistently committed
defaults during the pendency of the suit and also the appeal in paying the
rent.
We
have heard learned counsel for the parties and have thoroughly gone through the
record. It is important to note that M/s Kulkarni Patterns Pvt. Ltd/. (defendant
No.1) Was the tenant, defendant No 2 Shri D G. Kulkarni was the Chairman of the
company and defendant No 3 Mrs M.D. Kulkarni was the wife of defendant No 2 and
Director of defendant No 1.
The
plaintiffs sent a notice dated 7.8.1980 to all the defendants vide postal
receipts Exhibit 52,53 and 54.
Exhibit
51 is only one acknowledgement receipt which has been produced on record.
It has
been contended on behalf of the appellants that the learned Additional District
Judge was wrong in drawing presumption of service of service of notice in the
facts of the present case. It was submitted that the plaintiff initially stated
that the acknowledgement receipt Exhibit 51 contained the signatures of
defendant NO.3, but subsequently admitted that it contained the signature of
defendant No. 2.
It was
further argued that defendant No.2. had appeared in the witness box and clearly
denied his signatures on Exhibit
51. It
was thus contended that the presumption of service of notice was rebutted and
thereafter the burden lay on the plaintiffs to prove the service of notice by
examining the postman or by other evidence and the plaintiffs having failed to
do so, the service of notice having not established, the suit was liable to be
dismissed. Reliance in support of the above contention was placed on a decision
of this Court to which one of us was a party in Green view Radio Service v. Laxmibai
Ramji And Another., [1990] 4 S.C.C. 497. Reliance was placed on the following
observations made in the above case.
"In
this connection, we may also point out that the provisions of section 106 of the
Transfer of Property Act require that notice to quit has to be sent either by
post to the party or be tendered or delivered personally to such party or to
one of his family members or servants at his residence or if such tender or
delivery is not practicable, affixed to a conspicuous part of the 231 property.
The service is complete when the notice is sent by post. In the present case,
as pointed out earlier, the notice was sent by the plaintiff's advocate by
registered post acknowledgement due.
The
acknowledgement signed by the party was received by the advocate of the
plaintiff. Thus in our view the presumption of service of a letter sent by
registered post can be rebutted by the addressee by appearing as witness and
stating that he never received such letter. If the acknowledgement due receipt
contains the signatures of the addressee himself and the addressee as a witness
states that he never received such letter and the acknowledgement due does not
bear his signature and such statement of the addressee is believed then it
would be a sufficient rebuttal of the presumption drawn against him. The burden
would then shift on the plaintiff who wants to rely on such presumption to
satisfy the court by leading oral or documentary evidence to prove the service
of such letter on the addressee. This rebuttal by the defendant of the
presumption drawn against him would of course depend on the veracity of his
statement. The court in the facts and circumstances of a case may not consider
such denial by the defendant as truthful and in that case such denial alone
would not be sufficient. But if there is nothing to disbelieve the statement of
the defendant then it would be sufficient rebuttal of the presumption of
service of such letter or notice sent to him by registered post." In the
present case the plaintiffs had sent a copy of the notice to all the three
defendants by registered post.
Three
postal receipts Exhibits 52, 53 and 54 have been filed in the present case and
Exhibit 51, one acknowledgement receipt. As regards Exhibit 51, the defendant
No.2 has appeared in the witness box and has denied his signatures.
However,
it has not been shown that this acknowledgement receipt was related to which of
the three notices sent vide postal receipts Exhibits 52,53 and 54. The
plaintiffs have clearly proved that three notices were sent by registered post
and which is clearly born out from the three postal receipts. Admittedly the
premises were taken on rent in the name of the defendant No.1 namely Kulkarni
Patterns. Pvt. Ltd. and it is proved that one of the notices by registered post
was also sent to the company. It has been admitted by the defendant No.2 in his
statement that the notice was sent on the correct address. The defendant No.2
in his statement has nowhere stated that no notice has bee received by the
company. The only denial is in respect of the acknowledgment receipt Exhibit 51
and the only inference which could legitimately be drawn is that in respect of
one notice, it was not proved as 232 to who acknowledged the receipt of the
notice. We do not approve the following statement of law made by the learned
Additional District Judge "that the evidence of the defendant did not show
any extraordinary happenings or the events which prevented the following of
usual course of business and thus, his mere denial has no value". However,
in the present case three notices were sent by registered post and one of which
was sent in the name of the defendant company who was the tenant, a presumption
can legitimately be drawn that the notice dated 7.8.1980 had been served on the
company. There is no rebuttal on behalf of the defendant as regards the notice
served on the company and in the facts and circumstances of the present case we
hold that notice dated 7.8.1980 sent by registered post was served on the
defendant company, In Green View Radio Service (supra) it was held that the
acknowledgement due receipt contained the signature of the addressee himself
and the addressee as a witness stated that he never received such letter and the
acknowledgement due did not bear his signature and such statement of the
addressee if believed then it would be a sufficient rebuttal of the presumption
drawn against him.
The
burden will then shift on the plaintiff who wants to rely on such presumption
to satisfy the court by leading oral or documentary evidence to prove the
service of such letter on the addressee. Even applying this statement of law in
the facts of the present case, the rebuttal, if any, made by defendant No.2 can
be related only with regard to Exhibit to Exhibit 51 for one notice but not
with regard to all the three notices sent by registered post vide exhibits 52
to 54 Thus, in the facts of the case in hand before us we are fully convinced
that the service of notice shall have to be presumed so far as defendant
company is concerned and there is no rebuttal to such presumption by the
defendant appellants.
The
requirement of sending notice under Section 12(2) of the Act is to be done in
the manner prescribed under paragraph two of Section 106 of the Transfer of
Property Act which reads as under.
"Every
notice under this Section must be in writing signed by or on behalf of the
person giving it and either be sent by post to the party who is intended to be
bound by it or be tendered or delivered personally to such party, or to one of
his family or servants, at his residence, or (if such tender or delivery is not
practicable ) affixed to a conspicuous part of the property." The reading
of the above provision clearly shows that the notice can be sent by post to the
party who is intended to be bound by it. Thus, the notice sent by registered
post in the name of the defendant company who 233 is the tenant is fully in
accordance with the requirement of section 106 of A the Transfer of Property Act.
So far
as the finding recorded by the learned Additional District Judge that the
defendants were defaulter in the payment of rent and full amount of rent was
not paid or deposited on the first date of hearing and no rent was paid month
by month during the pendency of the appeal could not be assailed by the learned
counsel for the appellants.
Thus,
the learned Additional District Judge as well as High Court was right in
passing a decree for possession under section 12(3)(b) of the Act. As a result
of the above discussion and findings recorded by us, we find no force in this
appeal and the same is dismissed with costs.
Y.L
Appeal dismissed.
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