UNITED BANK OF INDIA Vs. RAJEEV KUMAR GARG

JUDGEMENT

(1.) A suit for rent and ejectment was filed by the plaintiff respondent R.K. Garg against the applicant. It was alleged that U.P. Act No. 13 of 1972 is not applicable to the building in dispute, the rent being Rs. 8,073.00. The tenancy of the applicant was terminated by a notice dated 8.4.2002. The damages were sought @ Rs. 30,000.00 p.m. The plaintiff respondent received on 18.5.2002 a reply notice dated 15.5.2002 sent by the defendant along with a pay order of Rs. 56511/- as rent from Aug., 2001 to Feb., 2002 on the copy of which the Counsel for the plaintiff made endorsement that rent was being received without waiving the notice terminating tenancy. The defence was that the notice under Sec. 106 of the Transfer of Property Act was illegal, that the suit was premature and that the damages sought were excessive. The plaintiff Rajiv Kumar Garg examined himself as PW1, Gulshan Kumar Sachdeva, Advocate, PW2 and Anil Kumar Agarwal PW3 while the defendant examined Ravinder Kumar Saluja, DW. The J.S.C.C. found that the notice terminating tenancy was served upon the applicant and that Act No. 13 of 1972 was not applicable to the building in dispute in view of the provisions of Sec. 2 (g) of the Act where under buildings of which the rent exceeds Rs. 2,000.00 are exempt. It was found that the suit was not premature. The defendant's case was that an agreement dated 19.9.1994 was entered into between the parties providing that the lease was operative from 1.8.1991 up to 31.7.2000 with a right to extend the lease for a further 5 years. The JSCC found that only a photo copy of the agreement was filed which was inadmissible and there was no evidence to prove the agreement and even DW1 did not prove it. The JSCC decreed the suit and awarded damages @ Rs. 11/- per square foot. Aggrieved against the decree, the applicant United Bank of India has preferred this revision.

(2.) I have heard Sarvashri Jayant Banerji and V.K. Srivastava Counsel for the applicant and Sri. P.K. Jain Counsel for the respondent landlord. Sri P.K. Jain Counsel for the respondent landlord states that he does not want to file any counter affidavit and the revision may be disposed of at the admission stage itself. This revision is therefore, being disposed of finally at this stage.

(3.) Sri Jayant Banerji has advanced two contentions. The first is that the notice under Sec. 106 of the Transfer of Property Act, 1882 has been waived as after the service of notice the landlord has accepted rent. The second submission is that the damages awarded @ Rs. 11/- per square foot are arbitrary and excessive and actually the damages ought to have been awarded at the rate of the rent.