{"id":108955,"date":"2010-01-19T00:00:00","date_gmt":"2010-01-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bata-shoes-ltd-vs-smt-reba-gorain-ors-on-19-january-2010"},"modified":"2015-06-20T20:43:23","modified_gmt":"2015-06-20T15:13:23","slug":"bata-shoes-ltd-vs-smt-reba-gorain-ors-on-19-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bata-shoes-ltd-vs-smt-reba-gorain-ors-on-19-january-2010","title":{"rendered":"Bata Shoes Ltd. vs Smt.Reba Gorain & Ors. on 19 January, 2010"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Bata Shoes Ltd. vs Smt.Reba Gorain & Ors. on 19 January, 2010<\/div>\n
     IN THE HIGH COURT OF JHARKHAND AT RANCHI\n                  Civil Revision No. 32 of 2008\n\n\n     BATA Shoes Limited, a Public Limited Co.,\n     having its office at 6A, S.N. Banerjee Road,\n     Post Box No. 8913, Kolkata-700013            ...      Petitioner\n                                Versus\n     Smt. Reba Gorain and others                  ...     Opposite Parties\n                                ----\n     For the Petitioner                : Mr. P. K. Mukhopadhyay,\n                                         Advocate\n\n     For the Opposite Parties          : M\/s. R. S. Mazumdar,\n                                         Rohit Roy & Rajesh Kumar,\n                                         Advocates\n\n     CORAM        : HON'BLE MR. JUSTICE R. K. MERATHIA\n                                ----\n     C.A.V. on 24.11.2009              Pronounced on     19.1.2010\n                                ----\n19. 19.1.2010<\/pre>\n
:    This civil revision application has been filed under
\n           Section 14(8) of the Bihar Building (Lease, Rent & Eviction)
\n           Control Act, 1982 (the Act for short) against the judgment and
\n           decree dated 17.6.2008 passed in Eviction Suit No. 8 of 2001
\n           by learned Sub Judge- VI, Dhanbad, whereby the suit for
\n           eviction filed on behalf of the plaintiff- opposite parties
\n           (hereinafter referred as the landlord) has been decreed.\n<\/p>\n
           2.     The case of the landlord, in short, is as follows. The
\n           husband of the Plaintiff No. 1 and father of Plaintiffs No. 2 to 4,
\n           late D.C. Gorain inducted the petitioner- tenant under a Lease
\n           Deed dated 20.7.1987 w.e.f 1st March 1987 for 10 years in
\n           respect of the shop-suit premises. The lease was renewed for
\n           another 5 years. The tenant has kept the shop closed since
\n           March, 2000. It did not opt for renewal before the lease expired
\n           on 28.2.2002 (Para-4 of the Plaint). D.C. Gorain died on
\n           30.11.2001 which was informed to the tenant by letter dated
\n           31.12.2001. The tenant acknowledging the said letter though
\n           requested the landlord to comply with certain formalities so that
\n           rent could be paid to them, being the heirs of D.C. Gorain; but it
\n                             2<\/span><\/p>\n
did not exercise option for renewal; and as such on expiry of
\nlease the tenant has became liable for eviction. The tenant has
\nalso not paid rent from January, 2002. The landlord also prayed
\nfor leave under Order II Rule 2 of the Code of Civil Procedure
\nfor filing a fresh suit for recovery of rent.\n<\/p>\n
3.     In reply to Para-4 of the Plaint, only this much was said
\nthat the tenant got prepared a Draft for rent for the period from
\n1.1.2002 to 31.3.2002 and sent it to the landlord, but due to
\ndemise of the landlord- D.C. Gorain, it could not be encashed
\nand when the death was informed by his heirs- the landlords,
\nthey were asked to perform certain formalities and on fulfilling
\nthem the tenant issued draft dated 28.4.2002 against rent
\npayable from 1.1.2002 to 30.6.2002 which was returned by the
\nlandlord. The landlord never intended or informed to vacate the
\npremises and the shop was not closed. After death of D.C.
\nGorain, the tenant asked the landlord to fulfill the formalities i.e.
\npreparation of lease deed and execute it and the tenant was
\nwaiting in good faith for the response.\n<\/p>\n
       Thus, the assertion of the landlord, that the tenant did not
\nopt for renewal before expiry of lease, was not denied and
\ndisputed by the tenant. However, it was said that in terms of
\nclause III of the original lease, the lease continued on month to
\nmonth basis, even if the tenant did not opt for renewal.\n<\/p>\n
4.     The trial court framed 7 issues. Issue No. 4 was whether
\nthe lease dated 20.7.87 expired on efflux of time and Issue No.
\n5 was whether the plaintiffs are entitled for eviction on the
\nground of expiry of the lease dated 20.7.87. Both these main
\nissues were taken up together. The trial court decided them as
\nalso the other issues in favour of the landlord and the suit was
\ndecreed with costs directing the tenant to vacate the suit
\npremises within four months.\n<\/p>\n
5.     The only question to be decided in this case is whether
\nthe landlord is entitled to a decree of eviction on the ground of
\nexpiry of lease?\n<\/p>\n
6.     Exhibit-1 is the letter dated 19.11.2001 issued by late
\nD.C. Gorain to the tenant which reads as follows:-\n<\/p>\n
                              3<\/span><\/p>\n
IMMEDIATE              \"From: D.C. Gorai.\n                       Land-Lord (Chirkunda Bata Shop)\n                       At & P.O.: Chirkunda\n                       Dist. Dhanbad (Jharkhand)-828202\n                       Date: 19.11.2001\nTo,\nThe Manger,\nLease and Rent Department,\nBata India Limited,\n6A, S. N. Banerjee Road,\nPost Box No: 8913\nPin. Kolkata: 700013\n\n\nDear Sir,\n<\/pre>\n
              Sub: Retail Shop of M\/s. Bata India Limited, located at
\n              Chirkunda, Main Market, G.T. Road.\n<\/p>\n
       It is with utmost oteslation that I draw your personal attention
\nto the following details on the above subject requesting for a line of
\nfor the immediate reply.\n<\/p>\n
1.     For a considerable long period of the above shop have been
\nkept closed by you. It has affected seriously on me as the front
\nspaces of the shop is being gradually occupied by the hawkers and
\nother Ferry business man. Taking into consideration of the unslable
\nlaw and order problems it is not possible for me to involve myself in
\nquarrel with such trespassers and from the realistic point of view you
\nare solely responsible for such calamities and difficulties. If your
\nshop remains closed in this way the vacant spaces in front of the
\nshop will be out of may hand and it will be possible to evict the
\ntrespassers. If there is no possibility for you to re-open the shop
\nimmediately it is requested that the shop should be vacated and
\nhanded over to me immediately. I request again also to note that my
\nabove shop was leased out to you for the purpose of your business
\nonly and not for keeping it closed sine die.\n<\/p>\n
2.     By a reference to clause I of your lease deed bearing the Office
\nNo. LR\/Chirkunda\/522\/13 dt. the 5th February 1997 it may kindly be
\nseen that the lease period of 5 years will expire on 28th February, 2002
\nwith your option for further renewal.\n<\/p>\n
3.     If the shop is kept in the closed condition it will not be possible
\nfor me to do further renewal as the closure of the shop is totally
\nagainst public interest.\n<\/p>\n
       In view of the foregoing to details I request for your positive
\nreply within a period of 30 days from the receipt of this letter.\n<\/p>\n
                               4<\/span><\/p>\n
For this I will remain grateful.\n<\/p>\n
                                   Your faithfully<\/p>\n
                                   (D.C. Gorain)
\n                                   Land-Lord
\n                                   Bata India Ltd.\n<\/p>\n
                                   Chirkunda Retail Shop.”\n<\/p>\n
7.      By the said letter, the landlord expressed displeasure
\nabout the problems created due to keeping the shop closed by
\nthe tenant and informed that the lease was going to expire on
\n28.2.2002 with option for further renewal, but if the shop was
\nkept closed, landlord was not agreeable to renewal.\n<\/p>\n
        It appears from Exhibit-A produced by the tenant that in
\nreply to a said letter dated 31.12.2001 sent by the landlord
\ninforming about the death of D.C. Gorain, the tenant asked the
\nlandlord for completing certain formalities so that the rent is
\npaid to the widow in future, but the tenant did not say anything
\nabout renewal of lease. Therefore, by another letter dated
\n11.2.2002 (Ext. 1\/a), the landlord again expressed displeasure
\nthat the tenant was keeping silent on the said letter dated
\n19.11.2001 (Ext.-1) and then it was said that if the tenant is not
\ninterested to continue the business, the shop be vacated as the
\nlease was going to expire on 28.2.2002 otherwise, the lease be
\nrenewed, before it’s expiry; without fail, without which the
\ntenancy will not be continued.\n<\/p>\n
        The tenant has not brought on record any document to
\nshow that option for renewal was exercised by it after receipt of
\nthe said letters-Exhibit-1 and Exhibit-1\/a. Exhibit-B is a letter
\nsent by tenant simply intimating that the tenant will arrange the
\nrent.\n<\/p>\n
        Thus it is clear that the tenant failed to exercise option for
\nrenewal of the lease before its expiry.\n<\/p>\n
8.      Now it is to be seen, whether the tenant can be allowed
\nto rely on clause III of the original lease deed (Ext.-3) to
\ncontend that the lease continued on month to month basis
\neven if option of renewal was not exercised by it.\n<\/p>\n
                              5<\/span><\/p>\n
      Clause-II and III of the original lease deed (Ext.-3) reads
\nas follows:-\n<\/p>\n
      “II      If the Lessee shall be desirous of taking a new lease of
\n      the said premises after expiration of the said term hereby
\n      granted and shall at lease one month before the expiration
\n      thereof signify such intention by a notice in writing to the
\n      Lessor the Lessor shall at or before the expiration of the said
\n      term make and execute at the cost of the Lessee a new and
\n      effectual lease of the said premises hereby demised for a term
\n      of 5 (five) years to commence from and after the expiration of
\n      the term hereby granted at the rent to be mutually settled
\n      between the parties then and subject to like covenants as are
\n      herein contained.\n<\/p><\/blockquote>\n
      III      After the expiry of the lease in case the Lessee does not
\n      exercise its right of entering into a new Lease and also does
\n      not give any intimation of its future intention the tenancy shall
\n      be continued on monthly basis terminable by either party by
\n      giving a calendar month’s notice in writing.”\n<\/p><\/blockquote>\n
9.    From the combined reading of the said clauses it is clear
\nthat the lease could be renewed if the lessee exercised option
\nbefore the expiry of lease , but it could be renewed for a term of
\n5 years; and if the option was not exercised the tenancy could
\nbe continued on monthly basis terminable by either party by
\ngiving a calendar month’s notice in writing. Thus the intention of
\nthe parties was to renew the tenancy up to a period of 5 years
\nafter expiry of the original period of 10 years. It appears from
\nExt.-1 that the original lease was renewed under a lease deed
\nbearing No. LR\/Chirkunda\/522\/13 dated 5.2.1997. It was for the
\ntenant to bring on record the aforesaid renewed lease deed
\ndated 5.2.1997 to show that even after expiry of lease, it
\ncontinued on month to month basis. Secondly, even if it is
\nassumed that such clauses like clause II and III continued in the
\nrenewed lease, such clause III will be contrary to clause II and
\nwill make clause II redundant. It could not be the intention of
\nthe parties that the lease for fixed term will become a monthly
\nlease even when the lessee does not opt for renewal, in terms
\nof renewal clause.\n<\/p>\n
                             6<\/span><\/p>\n
10.    The landlord made their intention clear that they are not
\nwilling to renew the lease as the shop in question was kept
\nclosed from March 2000, causing serious problem to the
\nproperty, but even then, they asked the tenant repeatedly
\nwhether it wanted to renew the lease or not, but the landlord did
\nnot reply to these letters and did not exercise option for renewal
\nin writing before the expiry of lease, in terms of the lease. Even
\nthe plea taken in this suit that the lease became a month to
\nmonth lease, was not taken by replying to the said letters sent
\nby the landlord.\n<\/p>\n
11.    The case, reported in (2005) 5 SCC 543-Shanti Prasad
\nDevi and another v. Shankar Mahto and others, is relevant
\nin the facts and circumstances of this case. It was held, inter
\nalia, as follows:-\n<\/p>\n
       “18. We fully agree with the High Court and the first appellate
\n       court below that on expiry of period of lease, mere acceptance
\n       of rent for the subsequent months in which the lessee
\n       continue to occupy the lease premises cannot be said to be a
\n       conduct signifying “assent” to the continuance of the lease
\n       even after expiry of lease period. To the legal notice seeking
\n       renewal of lease, the lessor gave no reply. The agreement of
\n       renewal contained in clause (7) read with clause (9) required
\n       fulfillment of two conditions: first, the exercise of option of
\n       renewal by the lessee before the expiry of original period of
\n       lease and second , fixation of terms and conditions for the
\n       renewed period of lease by mutual consent and in absence
\n       thereof through meditation of local Mukhiya or Panchas of the
\n       Village. The aforesaid renewal clauses (7) and (9) in the
\n       agreement of lease clearly fell within the expression ”
\n       agreement to the contrary” used in Section 116 of the Transfer
\n       of Property Act. Under the aforesaid clauses option to seek
\n       renewal was to be exercised before expiry of the lease and on
\n       specified conditions.\n<\/p><\/blockquote>\n
       19.     The lessor in the present case had neither expressly nor
\n       impliedly agreed for renewal. The renewal as provided in the
\n       original contract was required to be obtained by following a
\n       specified procedure i.e. on mutually agreed terms or in the
\n       alternative through the meditation of Mukhiyas and Panchas.
\n       In the instant case, there is renewal clause in the contract
\n       prescribing a particular period and mode of renewal which was
\n       “an agreement to the contrary” within the meaning of section
\n       116 of the Transfer of Property Act. In the face of specific
\n       clauses (7) and (9) for seeking renewal there could be no
\n       implied renewal by “holding over” on mere acceptance of the
\n       rent offered by the lessee. In the instant case, option of
\n       renewal was exercised not in accordance with the terms of the
\n       renewal clause that is before the expiry of lease. It was
\n       exercised after expiry of lease and the lessee continue to
\n       remain in use and occupation of the leased premises. The rent
\n       offered was accepted by the lessor for the period of lessee
\n       overstayed on the leased premises. The lessee, in the above
\n       circumstances, could not claim that he was “holding over” as a
\n                            7<\/span><\/p>\n
      lessee within the meaning of Section 116 of the Transfer of
\n      Property Act.\n<\/p><\/blockquote>\n
      20.    So far as the cross-suit for specific performance of
\n      agreement of renewal of lease filed by the lessee is
\n      concerned , there are concurrent findings of all the courts that
\n      the option for renewal was exercised after the expiry of the
\n      lease period. The Option of renewal exercised was, therefore,
\n      contrary to the terms of clause (9) of the lease agreement. The
\n      clauses of renewal requiring fixation of the terms and
\n      conditions for renewed period of lease mutually or in the
\n      alternative through Village Mukhiya and Panchas are uncertain
\n      and incapable of specific performance. After legal notice of
\n      renewal, the lessor did not send any positive reply and instead
\n      filed a suit for ejectment, therefore, there was no mutual
\n      consent for renewal . The forum agreed to for deciding dispute
\n      was through local Mukhiya and Panchas of the Village. The
\n      renewal clause of the agreement were vague and incapable of
\n      specific performance. The Mukhiya and Panchas were not
\n      named in the agreement and the method of choosing either of
\n      the two forums was not specified.”\n<\/p><\/blockquote>\n
12.   Furthermore in the case, reported in AIR 1959 Patna 1,
\nDigamber Narain Chaudhary v. Commissioner of Trihut
\nDivision and others, the Full Bench, inter alia, considered the
\ncombined effect of Section 11 and 12 (equivalent to section 18
\nof the present Act) of the Bihar Building (Lease, Rent and
\nEviction) Control Act, 1947 and held that unless the period
\nlimited by the lease is extended in accordance with the
\nprovisions of Section 12, the tenant is liable to be evicted on the
\nexpiry of the period of tenancy under Section 11; and where
\ntherefore a tenant occupies a building by virtue of a lease for a
\nfixed term and does not obtain extension of the time in
\naccordance with the provisions of Section 12 he cannot legally
\nresist the application of the landlord for his eviction on the
\nexpiry of the term of the tenancy. It was also held therein that
\nwhen a tenancy for a fixed period is determined by efflux of
\ntime and the tenant holds over without the consent of the
\nlandlord, the possession of such a tenant becomes wrongful
\nfrom the date of the termination of the lease and he becomes
\ntrespasser and has no right to remain in the premises and the
\nlaw gives the landlord a right to enter upon the premises
\nimmediately after expiration of the term of lease without any
\nfurther notice. It was further held in the said judgment that the
\ncombined effect of Section 11 and Section 12 (now Section 18)
\nis that where the tenant has not served the landlord a notice
\n                                      8<\/span><\/p>\n
         before expiry of lease intimating his intention to extend the time,
\n         he has no defence to an action of his ejectment.\n<\/p>\n
         13.    In the present case also, there is no overt act indicating
\n         the landlord’s assent to the continuance of the tenancy rather,
\n         the landlords made their intention clear that they are not willing
\n         to renew the lease, but even then asked the tenant repeatedly
\n         whether it opts for renewal or not. There is nothing to show that
\n         the tenant opted for renewal. Merely sending rent without any
\n         clear notice in writing exercising option for renewal; in terms of
\n         the lease, will not convert the lease for fixed period, into a
\n         month to month lease and the landlord was justified in returning
\n         the rent.\n<\/p>\n
                It may be noted here that it is not disputed that the tenant
\n         has kept the shop locked from March, 2000. It is also not
\n         denied by the tenant that due to such closure, the condition of
\n         the building has materially deteriorated and several problems
\n         have been created on the property by the Hawkers, etc. by
\n         occupying the front portion of the shop.\n<\/p>\n
         14.    After hearing the parties, going through the records and
\n         considering the legal position, I am satisfied that the trial court
\n         has considered the respective cases of the parties and the
\n         materials brought on the record by them and has recorded the
\n         findings, correctly while decreeing the suit. I am also inclined to
\n         grant leave to the landlord in terms of prayer (b) of the plaint for
\n         filing the fresh suit for recovery of rent, etc.
\n                In the facts and circumstances, noticed above, I find no
\n         merit in this civil revision application, which is, accordingly,
\n         dismissed with costs of Rs. 50,000\/- besides the cost awarded
\n         in the impugned judgment and decree. The petitioner is
\n         directed to handover vacant possession of the suit premises the
\n         landlord within 30 days from today.\n<\/p>\n
                                                   (R. K. Merathia, J)<\/p>\n
MK\/AFR\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Bata Shoes Ltd. vs Smt.Reba Gorain & Ors. on 19 January, 2010 IN THE HIGH COURT OF JHARKHAND AT RANCHI Civil Revision No. 32 of 2008 BATA Shoes Limited, a Public Limited Co., having its office at 6A, S.N. Banerjee Road, Post Box No. 8913, Kolkata-700013 … Petitioner Versus Smt. Reba Gorain […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-108955","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nBata Shoes Ltd. vs Smt.Reba Gorain & Ors. on 19 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bata-shoes-ltd-vs-smt-reba-gorain-ors-on-19-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bata Shoes Ltd. vs Smt.Reba Gorain & Ors. on 19 January, 2010 - 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