Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judg. In Misc. Appeal No.171/2019
MHCC010132692019
Received on : 20.12.2019
Registered on : 20.12.2019
Decided on : 20.07.2022
Duration : Y:02 M:07 D:00
Exhibit7
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
MISC. APPEAL NO. 171 OF 2019
(CNR No. MHCC010132692019)
1A. Mrs. Shakuntala Shankar Toraskar
Age above 65 years,
1B. Mr. Abhishek Shankar Toraskar
Age above 40 years,
1C. Ms. Nutan Shankar Toraskar
Age above 37 years,
1D. Ms. Bhakti Shankar Toraskar
Age above 35 years,
(Legal heirs of Mr. Shankar Laxman Toraskar)
(since deceased)
All of them residing at
439D/20, Rambharose Estate,
N.M. Joshi Marg, Mumbai 400 011. ..Appellants
Versus
1. Life Insurance Corporation of India
A statutory Corporation established
under Central Act No.XXXI of 1956
having its Western Zonal Officers
at Yogakshema, Jeevan Bima Marg,
Mumbai – 400 021.
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2. The Estate Officer,
Life Insurance Corporation of India
having office at Yogakshema,
Jeevan Bima Marg,
Mumbai – 400 021. ..Respondents
Ld. Adv. Mr. Vaibhav Ghogre a/w Adv. Anita Patil for appellants.
Ld. Adv. Darryl B. Pereira a/w Adv. Natasha Kasad and Adv. Vidhi Gosar
for respondent No.1/LIC.
CORAM : H.H. THE PRINCIPAL JUDGE
SMT. V.V. JOSHI
(Court Room No.19)
DATE : 20th July, 2022.
J U D G M E N T
( Delivered on 20th July, 2022 )
Being aggrieved by the order passed by the Estate Officer in Case
No.105 & 105A of 2017 dated 26th November 2019, the appellants have
preferred this appeal.
2. The respondent/LIC has filed Case No.105 & 105A against the
legal heirs of Late Mr. Shankar Laxman Toraskar for an order directing
the appellants to vacate and handover the peaceful possession of the
alleged premises i.e. Bombay Mutual Building, 3rd Floor, Sir. P.M. Road,
Fort, Mumbai 40 0001 and for arrears of rent with interest and taxes for
the period 01.08.2002 to 31.07.2016 amounting to Rs.2,92,46,323/.
The respondents further asked for damages @ Rs.1,71,537/ per month
from 01.09.2016 till the date of handing over possession.
3. It is the case of respondents that a portion of premises
admeasuring 785 sq.ft. Carpet and passage of 30 sq.ft. in Bombay
Mutual Building, 3rd Floor, Sir. P.M. Road, Fort, Mumbai 400 001 was
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let out to Mr. Shankar Laxman Toraskar as a commercial premises at
monthly compensation of Rs.34,868/ per month.
4. According to the respondents, the rate of compensation was
fixed @ Rs.42/ per sq. ft. for 785 sq.ft. carpet and Rs.30/ per sq.ft. for
passage area w.e.f. October 1999 for a period of 5 years with renewals
as mutually agreed with increase in the basic rent of 25% every 3 years.
Said Shankar Toraskar was a L.I.C. agent and he was in possession of
the premises since 14.10.1999. He has paid rent for 12 months as an
advance in 3 installments. He had deposited said amount in 3
installments and he promised to execute the Tenancy Agreement in due
course. The agreement was not executed by said Toraskar though
reminders were given. As per the agreed terms, he was liable to pay
rent in advance and in default he was liable to pay 15% p.a. Mr.
Toraskar has paid 12 months rent for the period from 14.10.1999 to
30.09.2000, which is Rs.4,15,044/.
5. Thereafter, said Shankar Toraskar failed to pay rent towards the
premises and there is outstanding towards the rent from 01.08.2002.
The respondents came to know that Shankar Toraskar died on
14.11.2014 and thereafter notice of termination was issued to the legal
heirs on 06.06.2016. According to the appellants, they did not receive
any reply to their notice and therefore, Eviction Application is filed for
possession of premises and recovery of rent. The respondents have not
taken any action against Toraskar in his life time. Though Toraskar
died in year 2014, the eviction proceedings were filed in year 2017.
Three Show Cause Notices were issued to Legal Heirs of Mr. Toraskar
on residential address. They were returned unserved, but the copy of
notice was pasted on scheduled premises on conspicuous place and
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Appellant No.1B appeared in proceedings. He has failed to file written
statement. The proceeding before the Estate Officer was initiated
against legal heirs and by names specific persons were not made party
to said proceeding, therefore, after appearance of Appellant No.1B
Abhishek Toraskar, the details of legal representatives were called and
then all the legal heirs were added as a party, thereafter they filed
written statement.
6. The appellants have stated that they have not received the
termination notice dated 06.06.2016, on the basis of which they have
filed the proceeding against Estate Officer. They were not in possession
of said premises, therefore, the question of handing over possession of
the said premises does not arise.
7. The appellants have stated that Appellant No.1A is the
housewife, Appellant No.1B is working as a tailor and Appellant Nos. 1C
& 1D are unmarried sisters, who are dependent on Appellant No.1B.
They have a hand to mouth existence and the entire family is struggling
to make ends meet. Appellant No.1B is the only earning member of the
family and the entire family is dependent on him. Due to the financial
constraints, Appellant Nos. 1B, 1C & 1D are still unmarried. The
appellants were not at all aware about the transaction between the
respondents and said Shankar Toraskar. They have no concern with the
application premises and therefore, not liable to pay any rent. As the
appellants have not received any eviction notice, they have not filed any
reply to said notice. They were serious with the eviction proceeding.
They have filed their reply before Respondent No.2. The Estate Officer
after considering the evidence on record, passed order for eviction and
arrears of rent and damages. Being aggrieved by the said order,
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appellants have filed this appeal on following grounds.
i) That the Estate Officer has erroneously passed the
impugned order dated 29.11.2019, directing the eviction of
the appellants from the application premises.
ii) The Estate Officer has not considered the case made out by
the appellants.
iii) The respondents have not produced any document to show
that the premises were allotted to late Mr. Shankar
Toraskar.
iv) The Estate Officer has failed to consider that the
documents relied upon by the respondents are blank
documents.
v) The procedure for allotment of the premises has not been
followed by the respondents.
vi) Though payment was made by the deceased Toraskar in
December 1998, the possession of the premises was
handed over in October 1999.
vii) There is no any document to prove that the area of 785
sq.ft. was allotted to the deceased Toraskar. Only 400 Sq.ft.
space is allotted, is not considered by the Estate Officer.
viii) The Estate Officer has wrongly held that the premises ad
measure 978 sq.ft. Built up area. It was never allotted to
the said deceased.
ix) The Estate officer failed to consider the receipts produced
by the respondents.
x) The Estate officer failed to consider that the appellants are
not in possession of the application premises.
xi) The Estate officer has not considered the fact that no action
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was initiated by the respondent against the said deceased
during his life time even though according to the
respondents he was in arrears from 2002.
xii) Though the deceased expired in 2014, the proceedings
were initiated in 2017.
xiii) The Estate Officer has not considered the amount of
Rs.29,58,002/ was withheld by the respondents towards
the commission payable to said deceased which was much
more than the rent payable by the said deceased.
xiv) The Estate Officer erred in holding that the appellants are
liable to pay the alleged amount and that too on the basis
of the valuation report when admittedly the premises was
not inspected by valuer.
xv) The Estate officer erred in directing the appellants to evict
the premises when the appellants are not in possession of
the same.
8. Heard Learned Advocate for appellant. He has argued in detailed.
He has argued that recovery of arrears of rent is barred by limitation.
The respondents relied on the documents which were not received by
Mr. Toraskar. There was no any agreement executed between both the
parties. Therefore, the conditions in the blank proforma are not
applicable. The possession of the application premises was not with the
appellants, the respondents have already taken it. Therefore, there is no
question of eviction or giving possession to the respondents. The
calculations about the arrears and damages are not correct. The
measurement of the premises is not correct and not proved. On the
basis of said measurement the respondent has calculated the arrears and
damages, which is not correct. It is submitted that on the basis of above
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grounds, order of the Estate Officer directing the appellants to vacate
the application premises and eviction is to be declared bad in law and
liable to be set aside.
9. On the other hand, Learned Advocate for Respondent no.1 has
filed written arguments at Exh.6 and argued that the premises was
allotted to Mr.Shankar Laxman Toraskar as commercial premises on
monthly rent w.e.f. October 1999 for a period of 5 years. He also paid
an advance rent of 12 months in 3 installments total amount of
Rs.2,10,480/ to the respondents. The original appellant has failed to
execute the Lease Agreement inspite of various reminders. As per the
letter dated 9th July 1998 issued by respondent to original appellant for
confirming the allotment of space and terms were duly accepted by
appellant. The original appellant paid twelve months rent to the
Respondent No.1. The original appellant was called upon to pay the
arrears of rent and other outgoings w.e.f.14.10.1999 as agreed and
thereafter reminders were given by the respondents, however he failed
to pay the same. The Lease period for 5 years was expiring in October
2004.
10. It is further argued by the Respondent No.1 that on 16.12.2014
Original appellant Mr.Shankar Laxman Toraskar expired. Legal heirs of
deceased appellant were called by the respondents to discuss terms for
continuation of tenancy but none of them attended the meeting.
Notices were issued to the Legal heirs of original appellant for
termination of the rental agreement and also informed about
outstanding rent. The notices were issued to the Legal heirs at the
premises as also to the last known residential address and the native
place address of the original appellant. The respondent no.1 stated that
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the appellants are liable to pay damages/compensation calculated by
valuer and prayed to dismiss the suit.
11. After hearing both the sides following points arise for my
consideration and I answer the same as follows:
POINTS FINDINGS
1. Whether appellants prove that S.L. Toraskar failed
to execute lease agreement ?
It is proved
that no
agreement
was executed
between both
the parties.
2. Whether the Notice of Termination dated
06.06.2016 is legal and valid ?
No
3. Whether appellants prove that the application
dated 26.04.2017 is illegal, bad in law and
deserves to be dismissed with costs ?
Yes
4. Whether appellants prove that the application
dated 26.04.2017 filed by the appellants is barred
by limitation ?
Yes
5. Whether appellants prove that the Estate Officer
has no jurisdiction to decide the application dated
26.04.2017 ?
No
6. Whether respondents prove that S.L. Toraskar was
in arrears of rent and taxes and the appellants
continue to be in arrears of rent and taxes and are
liable to pay the same with interest ?
No
7. Whether the appellants are in unauthorized
occupation of the scheduled premises ? If
unauthorized, from what date ?
No
8. Whether the appellants are liable to be evicted
from the scheduled premises ?
Does not
arise
9. Whether the appellants are liable to pay damages
with interest ? If so, at what rate and from which
date ?
No
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10. Whether the order passed by the Estate Officer
calls for any interference?
Yes
11. What order ? As per final
order.
R E A S O N S
AS TO POINT NO. 4 :
12. Composite application under Section 5 and 7 of Public Premises
Act is filed against the appellants for eviction and recovery of arrears of
rent from 01.08.2002 to 31.07.2016, as Mr. Toraskar was in arrears of
said rent and as the appellants failed to comply the notice issued on
06.06.2016, they are liable to be evicted from said premises and pay
arrears of rent and damages with interest.
13. The appellants have stated that the respondent's claim of arrears
of rent is barred by limitation and is not recoverable. The respondents
contended that as per Sec. 7 of Public Premises Act, there is no
limitation and Limitation Act is not applicable for recovery under
Section 7 of Public Premises Act. The respondents relied on Judgment of
Hon'ble Supreme Court in support of his arguments in the case of L.S.
Nair Vs. Hindustan Steel Ltd., Bhilai and Others, [1980 M.P.L.J.],
wherein it is held that
“The Limitation Act has no application to proceedings
before the Estate Officer who is not a Court and the Act cannot be
inferentially applied. As the Limitation Act does not apply and
jurisdiction of Civil Court is barred, it cannot be contended that
there is any period of limitation for recovery of damages. Award
of damages beyond three years is therefore not without
jurisdiction.”
14. He further relied on judgment of Hon'ble Supreme Court in the
case of G.R. Gupta Vs. Lok Sabha Secretariat, AIR 2016 Del 214,
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wherein it is held that
“Government is entitled for more than rupees one crore
from the petitioner – Petitioner was allotted Bungalow –
Petitioner was repatriated from Lok Sabha Secretariat –
Superannuated from Government Service on 31.12.1993 – Estate
Officer of Lok Sabha Secretariat issued notice to under S. 4 of the
Act of 1971 – Relied upon a decision rendered by SC in New
Delhi Municipal Committee, (1976) 3 SCC 407 – There is nothing
in S.7(2) of the Act which authorises the Estate Officer to assess
the damages – Court opined that limitation prescribed under
Limitation Act, 1963 has no application to recovery of damages
under S. 7(2) of the Act – Court upheld the damages as
determined by the District Judge.”
15. The respondent/LIC have filed the application dated 26.04.2017
under Public Premises Act against appellants, who are the legal heirs of
deceased Shankar Laxman Toraskar, to whom the premises was given
on rent by the respondents in year 1999. According to respondents, the
deceased Toraskar has paid rent till 2002 and from 1.8.2002 he failed to
pay the rent. There was correspondence in between both of them. It
appears from the record that the agreement was not executed and
without any agreement the government is claiming damages and arrears
of rent.
16. Admittedly, the agreement was not executed between Mr.
Toraskar and the respondents. It is the contention of respondents that
the respondents by issing letter to Mr. Toraskar demanded rent, but
there is no any proof to state that communication was received by him.
There is no acknowledgement on the letter on which the respondent is
relied. The respondents by relying on the agreement which was not
executed between the parties, filed the eviction proceeding and recovery
of arrears of rent on said unexecuted agreement. Though respondent
has stated that they sent the reminders to Mr. Toraskar, it is not proved
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by the respondents that said letters were received by Mr. Toraskar. The
respondents have stated that though the letters were issued for arrears
of rent to Mr. Toraskar, he had not replied it and even not paid the
arrears of rent. As he was the LIC agent, the commission of agency was
withheld and said amount was taken as an amount of rent. Thereafter,
in year 2015, the respondents came to know from the office itself that
Mr. Toraskar died in November 2014. Though they came to know about
it in year 2015, but no action was taken by the respondents till 2017.
17. The appellants have issued the notice to the legal heirs for the
first time on 06.06.2016. The notices were issued to legal heirs on the
address of the public premises and their postal residential address. It
was returned as unclaimed and therefore, the proceedings before Estate
Officer were initiated against legal heirs without mentioning the names.
Legal Representative of Mr. Toraskar 1B appeared before proceeding
and thereafter by way of amendment, all legal heirs are added as party
and filed their say. Their say was that they were not knowing that Mr.
Toraskar was the tenant of respondents and they were not even
knowing that the said premises was in possession of said Mr. Toraskar.
The legal heirs are the wife, one son and two daughters of Mr. Toraskar.
The daughters are unmarried and wife is house wife. The son of Mr.
Toraskar is the only earning member of their family. He is doing
tailoring business. He has stated in his evidence that he was not having
good terms with his father. He is only earning member. He never went
to the premises, which was according to the respondents, was in
possession of Mr. Toraskar. The notices were pasted on the door of said
premises. The appellants have stated that they never went to the said
premises and therefore, they were not aware, whether the notice was
pasted on the door. The respondents are claiming the arrears of rent of
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Rs.2,97,04,084/ from year 2002. Nothing is brought on record that the
respondents issued notice about settlement of arrears to Mr. Toraskar.
Though the correspondence between them is filed on record, nothing is
there to prove that said correspondence was received by Mr. Toraskar.
Moreover, after receiving the information about the death of Mr.
Toraskar in year 2014, till 2017 the respondents have not taken any
action.
18. Cause of action for recovering the rent accrued to Mr. Toraskar
after 01.08.2022, it was the period when the rent become payable, once
the period of limitation started running, it would not stop, therefore, the
claim of recovery of rent from 2002 to 2016 and from 06.06.2016 to
31.06.2016 till handing over possession is barred by limitation and not
legally recoverable. It is observed by Hon'ble Supreme Court in the
case of Kamala Bakshi Vs. Khairati Lal, (2000) 3 SCC 681 that
“Rent Control and Eviction – Arrears of Rent – Rent legally
recoverable – Limitation – Period for which rent recoverable on
pain of eviction, held is subject to threeyear limitation under
Art.52 of Limitation Act, 1963 – Transaction of tenancy
camouflaged as relationship between employer and employee –
Declaration by Court as to real nature of relationship being one of
landlordtenant held, will relate back to the date on which the
parties entered into the arrangement or agreement whereby the
suit premises were put in possession of the purported employee –
But three year limitation period prescribed under Art. 52 of the
Limitation Act, 1963 would be applicable to recovery of arrears of
rent – Delhi Rent Control Act, 1958 (59 of 1958), S.14(1)(a) –
Rent legally recoverable – Limitation Act, 1963, Art. 52”
19. The respondent has stated that the authority is not helpful, as in
the said case the possession was already handed over and then there
was delay in recovery of arrears which is not in the case in hand, the
appellants were in possession till filling of appeal.
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In the case in hand the respondents claims the arrears of rent
which is legally recoverable, therefore, as per the guidelines, Limitation
Act is applicable. Similarly, it applies to 'amount due'. The appellants
relied on judgment of Hon'ble Supreme Court in the case of State of
Kerala and Ors. Vs. V.R. Kalliyanikutty and Anr., (1999) 3 SCC 657.
It is also observed by Hon'ble Supreme Court in the case of New
Delhi Municipal Committee Vs. Kalu Ram and Anr. (1976) 3 SCC
407 that
“Limitation – Public Premises (Eviction of Unauthorized
Occupants) Act, 1958 – Section 7 – Held, does not create a right
to realize arrears of rent without any limitation of time
“Payable” means legally recoverable – Rent Control and Eviction”
Word 'Payable' in Sec. 7 in context in which it occurs means
'legally recoverable'. The respondents are claiming the amount of
Rs.2,97,04,084/ as arrears of rent due from Mr. Toraskar since 2002 to
2016. Said amount was not claimed during the lifetime of Mr. Toraskar.
No proceeding for recovery was initiated in his lifetime. Therefore, the
order of recovery of rent for Rs.2,97,04,084/ is barred by limitation. It
is also observed by Hon'ble Supreme Court in the case M/s Automobile
Association of Eastern India & Ors. Vs. The Board of Trustees of the
Port of Kolkata & Ors., 2008 SCC Online Cal 393, wherein the
Hon'ble Supreme Court has observed that Limitation Act is applicable to
Sec. 7 of Public Premises Act.
20. The respondents have calculated the arrears from year 2002 to
2014. The exorbitant amount is calculated by the respondents on their
own. It was not informed even to Mr. Toraskar. The law of limitation is
certainly applicable to the Public Premises Act as per the authorities.
The respondents have failed to file the proceeding immediately after
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they came to know about the death of Mr. Toraskar, demand of arrears
from year 2002 that from when the appellants were not knowing about
it, is not proper. It is barred by limitation, hence, I answer this point in
affirmative.
AS TO POINT NO.1 :
21. The respondents and Mr. Toraskar orally agreed for giving the
premises on rent and possession was also handed over to him as he
promised to execute the agreement within few days. According to
respondents, as per the letter of Mr. Toraskar dated 14.10.1999, he
promised to execute the Lease Agreement in due course but did not
execute the same in spite of various reminders from the respondents.
Therefore, according to respondents Mr. Toraskar is liable for non
execution of agreement. The respondents have filed the letters dated
27.11.2000, 27.12.2000, 16.08.2002, 09.12.2006 and 13.02.2009 to
prove that the respondents have reminded to execute the Lease
Agreement.
22. The appellants are legal heirs of Mr. Toraskar. They have
denied about the tenancy of Mr. Toraskar. They denied that the said
premises was allotted to Mr. Toraskar and he was in possession of said
premises. The respondents relied on the blank proforma of the
agreement and had applied the conditions mentioned in said blank
proforma of agreement. Since 1999 the respondents failed to get the
agreement executed from Mr. Toraskar. The respondents on the basis
of the documents i.e. Proforma has stated that the conditions in said
proforma are binding on Mr. Toraskar. The respondents have treated
said document as valid agreement. In the proforma, the name is not
mentioned, it is not signed by anybody. The blank proforma cannot be
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considered as an agreement between Mr. Toraskar and the respondent.
23. In absence of any agreement, the respondents cannot claim the
arrears of rent. The appellants relied on judgment of Hon'ble Supreme
Court in the case of Indian Oil Corporation Ltd. Vs. Nilofer Siddiqui
and Ors., (2015) 16 SCC 125. The respondents themselves have stated
that no such agreement was executed and though Mr. Toraskar has
promised to execute the agreement, agreement was not in existence.
Therefore, the claim of the respondents that Mr. Toraskar was aware of
the said standard agreement, is not susceptible in law. There is nothing
on record to show that the appellants were having any knowledge about
said agreement. Therefore, the agreement which is not executed by the
parties cannot be legally enforcible against appellants. Therefore, as per
the guidelines in the authority, the standard agreement cannot be said
to be legally binding upon the appellants which was not executed
between Mr. Toraskar and the respondents.
24. The Estate officer has relied on the proforma of the agreement
and the communication which does not bears endorsement of Mr.
Toraskar. On the basis of said communication, the Estate Officer has
come to the conclusion that Mr. Toraskar has failed to execute the
agreement. The reminders of execution of agreement is not sufficient to
prove that Mr. Toraskar failed to execute the agreement, as the
agreement was not in existence. On the basis of said agreement, the
proceeding initiated by the respondents is not lawful. It is proved from
the documents on record that no such agreement is executed between
Mr. Toraskar and the respondents. Hence, I answer this point
accordingly.
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AS TO POINT NO.2 & 3 :
25. Mr. Toraskar delayed the payment of rent and avoided to
execute the Lease Agreement, though several reminders were issued by
the respondents. They called upon Mr. Toraskar to pay interest on the
outstanding rent, however, there was no response, therefore, they
warned Mr. Toraskar that apart from penal interest, the appellants
would be constrained to initiate legal action and take back the premises.
The respondents calculated the outstanding of rent from 01.08.2002 to
31.07.2016 which is Rs. 2,92,46323/. After the death of Mr. Toraskar
the notice was issued on 06.06.2016 to the legal heirs of Mr. Toraskar
by registered post on 3 addresses. The notice sent to scheduled
premises, has been returned with the postal remark as “Died”,
“Unclaimed” in respect of N.M. Joshi Marg premises and “Incomplete
Address” in respect of Kolhapur address. The copy was pasted on the
conspicuous part of the scheduled premises on 21.06.2016. The
appellants have denied about receiving any notice dated 06.06.2016.
They have stated that they never visited the scheduled premises during
the life time of Mr. Shankar Toraskar, nor after his demise. Therefore,
they were not aware about the pasting of so called notice on the
scheduled premises. After going through the acknowledgement and the
envelopes, I found that names of the appellants were not mentioned on
the envelope. It is mentioned that legal heirs of S.L. Toraskar and they
treated it as unclaimed. The notice issued is not in the specific names of
the legal heirs and as the legal heirs have stated that they never visited
the premises and they are not aware about the notice which was pasted
on the premises, this service of notice cannot be treated as valid service
of notice. Hence, I answer Point No.2 in negative.
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26. There is no agreement between Mr. Toraskar and respondents.
Notices were served to the appellants, is not proved, as notice issued to
Mr. Toraskar was returned as 'died' and the notice to legal heirs was
treated as 'unclaimed' and the proceedings were initiated. The notice
which was issued for eviction and recovery of arrears itself is not legal. I
have already observed that recovery of arrears of rent is time barred.
The application for eviction, recovery of arrears with interest is illegal.
Hence, I answer Point No.3 in the affirmative.
AS TO POINT NO.5 :
27. The scheduled premises is a public premises. It is well settled
that the Public Premises Act is to be attracted, therefore, the Estate
Officer has jurisdiction to decide the matters, which are mentioned in
Public Premises Act. It was for recovery of arrears of rent and damages
with interest, which comes under the jurisdiction of the Estate Officer.
Therefore, Estate Officer has jurisdiction to try and entertain the
application. Hence, I answer this point in negative.
AS TO POINT NO. 6 :
28. According to respondents, as per the terms agreed, Mr. Toraskar
was liable to pay rent to the respondents in advance every month and in
the event of default, was liable to pay penal interest thereon @ 15% per
annum. In addition, he was further liable to pay water charges as levied
by the Mumbai Municipal Corporation, electricity, gas and other cesses
or taxes which may be levied or imposed by the government or local
authority. The respondents have stated that Mr. Toraskar delayed and
avoided payment of rent, therefore, the respondents have sent several
letters calling upon Mr. Toraskar to pay interest on the outstanding rent.
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On 24.04.2001, Mr. Toraskar wrote a letter to the respondents and
requested to grant him a period of 12 months during which period he
promised to clear the outstanding rent in four equal installments.
Thereafter, he failed to comply it. The arrears of rent which was
outstanding from 01.08.2002 to 31.07.2016 aggregates to
Rs.2,92,46,323/. The respondents further state that vide Notice dated
06.06.2016, the appellants were called upon to pay the arrears of rent.
This act of appellants of not paying the rents constitutes gross breach of
the terms and conditions of tenancy which inter alia provides that a
tenant shall not keep rent in arrears for more than 21 days. The
respondent has relied on the letters dated 27.11.2000, 27.12.2000,
16.08.2002, 18.12.2002, 24.04.2001 and 09.12.2006, the statement of
arrears of rent to their application in support of their case.
29. Admittedly, there is no any agreement between the parties,
therefore, there is no question of breach of terms and conditions of the
tenancy mentioned in agreement. The appellants who are the legal
heirs of Mr. Toraskar, denied the correspondence between the
respondents and Mr. Toraskar. Though in the life time of Mr. Toraskar,
he was in arrears of said huge amount, the respondents have not taken
any action and in absence of any agreement they continued his
occupancy for additional terms, which creates doubt about the case of
respondents.
30. The calculation of the arrears of rent is for the carpet area of
978 sq.ft. The documents which are filed on record by the respondents
viz. Letter dated 09.07.1998 and 16.07.1998 it clearly proves that the
area which was allotted to Mr. Toraskar was 400 sq.ft. As per the letter
of Mr. Toraskar for allotting the premises and he has specifically
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19 Judg. In Misc. Appeal No.171/2019
mentioned the area 400 sq.ft. The respondents relied upon the
documents which according to them, they have issued letter to Mr.
Toraskar about allotment of 785 sq.ft. Carpet area and passage of 30
sq.ft. and they have calculated the rent per sq. ft. The calculation itself
is not correct. The documents on which the respondents have relied,
are not proved by the respondents. They have not proved that said
documents were received by Mr. Toraskar. There is no any
acknowledgement of said documents. The documents i.e. letters issued
by Mr. Toraskar and the letter received and issued by Mr.Toraskar,
said letters shows that the area of 400 sq.ft. was allotted.
31. The respondent relied on one more letter issued to Mr. Toraskar
dated 27.11.2000, which was addressed by respondent to Mr. Toraskar
and in said letter, area 815 sq.ft. is mentioned and the monthly rent of
Rs.34,868/ is mentioned. The respondents have stated that as by letter
dated 01.12.2000 Mr. Toraskar has requested for time to pay said
amount in installments. He has admitted said rent for 815 sq.ft. Only
because said letter is issued by Mr. Toraskar, it cannot be presume that
he has accepted said area and the rent in said letter. Even he has shown
his displeasure when he met with one of the officers in connection with
said arrears of rent with Mr. Toraskar and disclosed his grievance about
exorbitant rent and interest on it and therefore, he could not pay the
rent amount, which shows that he had mentioned the grievance with
one of the office bearer of the respondents. Only because he has
responded said letter and asked for the installment, it cannot be said to
be proved that the calculations were correct one. Therefore, the
respondents have failed to prove through documentary or oral evidence
that Mr. Toraskar was in arrears of said rent amount, which is
mentioned and the appellants are liable to pay said rent amount. Hence,
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20 Judg. In Misc. Appeal No.171/2019
I answer this point in negative.
AS TO POINT NO.7 & 8 :
32. The appellants have stated that though they are the legal heirs
of Mr. Toraskar, they were not knowing about the agreement or the
correspondence between Mr. Toraskar and the respondents. The
premises was locked when the person visited there. After the death of
Mr. Toraskar, they were not aware about visit or the notice on the
premises, as they never went there. The relation between Mr. Toraskar
and legal heirs were not cordial. It is proved from the record that only
appellant No.1B is the earning member and all the appellants are
dependent upon him. None of them is married due to their financial
crises. It proves that Mr. Toraskar was not having concern with the
family and therefore, it can be considered that the appellants have no
concern with said premises. The premises is already taken in possession
by the respondents and circumstance proves that they were not in
unauthorized occupation of the scheduled premises. In view of this,
there is no question of eviction from the scheduled premises. Hence, I
answer both the points accordingly.
AS TO POINT NO.9 :
33. The damages calculated by the respondents at Rs.1,71.537/ per
month with interest w.e.f. 01.08.2016. According to respondents, the
appellants have not abided by the Notice of Termination dated
06.06.2016 and they are liable and responsible to pay damages and
service tax as applicable from termination of tenancy till vacant and
peaceful possession of the scheduled premises to be handed over to the
appellants. The respondents have claimed the damages at Rs.1,71,537/
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21 Judg. In Misc. Appeal No.171/2019
per month from 01.08.2016 till vacant and peaceful possession of the
scheduled premises is restored with compound interest at 9% per
annum on the basis of Valuation Report dated 26.09.2016. The
respondent's valuer has arrived at the market rate of Rs.1,71,537/ per
month for a built up area of 978 sq.ft. The said valuer was also
examined by the respondents. The appellants have stated that they are
not liable to pay damages and service tax as they were not in possession
of said premises. They have hand to mouth existence and the entire
family is struggling to make ends meet. The witness, Valuer (PW3) in
his cross examination has stated that when he visited the premises on
22.09.2016, it was locked. He has also admitted during his cross
examination that he has not taken actual measurement of the scheduled
premises, as it was locked and he has admitted in his cross examination
that he was not knowing the actual area of scheduled premises and
same was taken from the records provided by the respondents. Only
because the respondents have stated that the area of 815 sq.ft. was
allotted to Mr. Toraskar and on said communication, which was not
acknowledged or received by Mr. Toraskar, respondents presumed that
it is the same area and on the presumption that said area is admitted by
Mr. Toraskar as he has admitted the rent amount arrears in one of his
letter and therefore, the valuation report is accepted and as per said
valuation report the damages are calculated. There is variance in
calculations of area. According to letters dated 09.07.1998 and
16.07.1998 it is 400 sq.ft. Thereafter, it is mentioned as 815 sq.ft. + 30
sq.ft. and the valuer has calculated the damages for 978 sq.ft. without
even measuring and it is not proved on which record he relied.
Therefore, the area and calculation of damages are not correct and the
appellants are not liable to pay said damages. Hence, I answer point
No.9 in negative.
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22 Judg. In Misc. Appeal No.171/2019
AS TO POINT NO.10 :
34. There is no question of eviction as the appellants are not in
possession and the respondents have already taken the possession of
said premises. As I do not agree with the observations made by the
Estate Officer, interference at the hands of this Court is necessary.
Hence, I answer Point No.10 in affirmative.
Considering these circumstances, the appeal deserves to be
allowed. Hence, I proceed to pass following order :
ORDER
1. Misc Appeal No.171 of 2019 is hereby allowed with costs.
2. Order passed by the Estate Officer on 26.11.2019 in Case
No.105 and 102A of 2017, is hereby set aside.
3. R & P be returned back to Respondents/LIC.
Date: 20.07.2022 (V.V. Joshi)
Principal Judge,
City Civil Court,Gr.Bombay.
Dictated on : 20.07.2022
Transcribed on : 21.07.2022
Signed on : 28.07.2022
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23 Judg. In Misc. Appeal No.171/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers : Mrs. K.S. Jadhav
Upload date and time : 28.07.2022 (At 2.57 pm)
Name of the Judge H.H.THE PRINCIPAL JUDGE
SMT. V.V. JOSHI (C.R.No.19)
Date of Pronouncement of Judgment 20.07.2022
Order signed by P.O. on 28.07.2022
Order uploaded on 28.07.2022
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