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P. Ramamoorthy and anr. Vs. N.R. Pattari Chettiar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1979)2MLJ485
AppellantP. Ramamoorthy and anr.
RespondentN.R. Pattari Chettiar
Cases ReferredMst. Bega Begum and Ors. v. Abdul Ahad Khan
Excerpt:
- securitisation & reconstruction of financial assets & enforcement of security interest act, 2002 [c.a. no. 54/2002]section 17; power of tribunal to impose condition relating to deposit for grant of stay of auction held, there is no specific provision made under section 17 of securitisation act or under any other provisions of the said act empowering the tribunal to pass any interim order. but under sub-section (12) of section 19 of the recovery of debts due to banks and financial institutions act, 1993, the tribunal has been empowered to pass various interim orders. if sub-section (7) of section 17 of securitisation act is read along with sub-section (12) of section 19 of recovery of debts due to bank is and financial institutions act, it would be clear that the tribunal also has..........is having a javuli business under the name and style of 'jupiter javuli hall' as well as a jewellery business under the name of 'thayalu jewellery mert'. finding it difficult and inconvenient to run both the businesses within an are a of 17' x 12' the respondent wanted the premises in the occupation of the petitioners as additional accommodation in order to conduct the jewellery business and the javuli business separately in a more convenient manner. in addition, the respondent also claimed that there was an intended partition and (sic) of jewellery business to his four sons end the jewellery business lad therefore to be kept separately from the javuli business. in may, 1976, the respondent informed the petitioner that the premises occupied by them is required by him as.....
Judgment:

V. Ratnam, J.

1. The tenants, who had lost in the Courts below, are the petitioners in this civil revision petition which arises out of an application filed by the respondent herein for eviction of the petitioners from the premises in their occupation under Section 10(3)(c) and (d) of the Tamil Nadu Buildings (Lease and Rent Control) Act, XVIII of 1960 as amended by Act XXIII of 1973.

2. The premises in the occupation of the petitioner bearing old door No. 9-1-108 and new door No. 16 is a portion of building on the western side of the entire building which belongs to the respondent. On 14th May, 1973, the petitioners took a lease of that premises for a period of 3 years for the purpose of running it coffee hotel. The lease had been entered into by the first respondent and on behalf of his brother, the second petitioner, and the rent fixed was Rs. 4,500 per annum and the period of tenancy was three years. The second petitioner is conducting the hotel business and the first petitioner occasionally visits and checks the accounts. On the easter portion of the entire building belonging to the respondent, the respondent is having a javuli business under the name and style of 'Jupiter Javuli Hall' as well as a jewellery business under the name of 'Thayalu Jewellery Mert'. Finding it difficult and inconvenient to run both the businesses within an are a of 17' X 12' the respondent wanted the premises in the occupation of the petitioners as additional accommodation in order to conduct the jewellery business and the javuli business separately in a more convenient manner. In addition, the respondent also claimed that there was an intended partition and (sic) of jewellery business to his four sons end the jewellery business lad therefore to be kept separately from the javuli business. In May, 1976, the respondent informed the petitioner that the premises occupied by them is required by him as additional accommodation and that they should vacate after the expiry of the lease on 14th May, 1976, but apart from a mere promise to do so, the petitioners continued to remain in occupation. Thereafter, the respondent issued a notice on 14th July. 1976, for which a reply was sent by the petitioners admitting the tenancy as well as the quantum of rent, but stating that the respondent was demanding enhanced rent and therefore the demand for vacating the premises was made. The respondent averred that he did not want to let out the building to any third party and that he was even prepared to give an undertaking to that effect, but wanted the premises only for the purpose of separately carrying or the jewellery business from the javuli business. Inasmuch as the petitioners did not surrender possession of the premises in response to the notice issued by the respondent, he filed R.C.O.P. No. 34 of 1976 under Section 10(3)(c) and (d) praying for an order for eviction.

3. The petitioners resisted that application contending that there is no contractual tenancy but that they were only statutory tenants. They claimed that they have been running the hotel business as tenants from. 14th May, 1964, and periodically there has been an enhancement of rent. While admitting that the rent was fixed at Rs 4,50o from 14th August, 1973, the petitioners claimed that the respondent wanted enhancement of the rent to Rs. 6,000 per annum from 15th May, 1976, and therefore, tie petitioner tendered the amount, but it was refused by the respondent. An attempt by the petitioners to send that amount by bank draft also failed, but, in the meanwhile, the respondent had caused a notice to be sent on 14th. July, 1976, which according to the petitioners, discloses the mala fide character of the respondents. Owing to the refusal of the respondent to receive the rent, the petitioners had to file R.C.O.P. No. 33 of 1976 under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act for deposit of the rent. According to the petitioners, the javuliand jewellery businesses are being done in the same premises for several years and even before the petitioners came into possession of the premises in question, it was so. It was further averred by the petitioners that the respondent had three more buildings on the east let to other persons all of which were situate in a very important locality whereas the building in the occupation of the petitioners is behind the building in which the jewellery business is done with an independent access on the western side. The requirement of the respondent on the ground of additional accommodation was denied. The petitioners stated that both the businesses could be run in the same premises by the respondent as was being done for the last 20 years. In the hotel business run by the petitioners, it was claimed that there was quite a number of employees subject to the provisions of the Shops and Establishments Act and it was not possible to get a similar building or any building for that matter in the locality to run a hotel business. It was therefore the case of the petitioners that the hardship resulting to them by ordering eviction would outweigh the advantage to the landlord and therefore, eviction should not be ordered.

4. The petitioners, as stated above, had also filed R.G.O.P. No. 33 of 1976 under Section 8(5) for depositing the rent. In the counter filed by the respondent, the case of the petitioners that there was a demand for enhanced rent was denied. It was further stated that since there is no renewal of tenancy after 14th May, 1976, the petitioners are persons holding over and therefore, not entitled to deposit any rent and that too for an aggregate period of one year. Both the applications R.C.O.P. No. 34 of 1976 filed by the respondent herein for eviction and the deposit application filed by the petitioners herein in R C O P. No. 33 of 1976 were heard together and evidence was recorded in R C O P No. 34 of 1976. In dealing with the requirement of the respondent of the premises in the Occupation of the petitioners by way of additional accommodation, the learned Rent Controller held that the respondent bona fide required the building as additional accommodation for jewellery business. The learned Rent Controller further found that he was not satisfied that the hardship caused to the petitioners should outweigh the advantage to the landlord. On these findings R C O P. No. 34 of 1976 was allowed directing the petitioners to vacate the premises and R.C O P. No. 33 of 1976 was dismissed. Aggrieved by that, the petitioners herein preferred C. M.A. No. 67 of 1977 against the order of eviction and the first petitioner preferred an appeal in C M A. No. 83 of 1973 against the dismissal of R.C.O. P. No. 33 of 1976. The appellate authority (Sub-Judge, Dindigul) held that the requirement of the respondent of the premises in the occupation of the petitioners as additional accommodation is bona fide and that the petitioners are liable to be evicted. On the question of relative hard-ship, the appellate authority referred to the finding of the Rent Controller that the hardship caused to the tenant would not outweigh the advantage to the landlord though he did not record any separate finding on this aspect. However, ultimately, the order of eviction was confirmed and that C M.A. was dismissed. Thereafter, the petitioners preferred C R P. No. 2495 of 1978 against the order of eviction confirmed in C.M.A. No. 67 of 1977. While disposing of that civil revision petition, Sathiadev, J., stated that there is a duty on the part of the appellate authority to consider and ascertain the relative hardship and advantage as per the proviso to Section 10(3)(c) of the Act and inasmuch as the appellate authority had not adverted to this vital aspect, it must be considered by the appellate authority and for this purpose, the matter was remitted giving liberty to the parties to adduce fresh evidence limited to this aspect. After the remit order, the appellate authority has found, that the hardship likely to be caused to the petitioners will not outweigh the advantage to the respondent and had confirmed the order of eviction. It is this order that is sought to be revised by the tenants in this civil revision petition.

5. After the remit order the petitioners examined R.Ws. 2 to 5 and the son of the respondent examined as P.W.I was recalled and examined in addition to the marking of Exhibits A-3 to A-6 and B-3 to B-51.

6. It must be mentioned that when the matter was remitted back to the appellate authority (Sub Judge, Dindigul) the fact that the respondent landlord required the premises in the occupation of the petitioner as additional accommodation was not disputed by the petitioners. Indeed, the appellate a authority has recorded this in paragraph 8 of its judgment. The only question that arises for consideration in this civil revision petition is whether the hardship that may be caused to the petitioners by ordering eviction will outweigh the advantage to the landlord-respondent.

7. It is true that the premises in the occupation of the petitioners is situate just opposite to the bus stand at Theni and the petitioners have been running the hotel business for several years past. It is claimed by the petitioners that there are seven permanent wokers and seven temporary workers and that they have invested Rs. 18,000 in the business. It is also their case that in the event of there being an order of eviction against them, they would be virtually obliged to close down the business because it is not possible to secure similar accommodation or other accommodation as convenient as the present premises. In addition, the further plea of the petitioner is that there is a likelihood of the workers being retrenched in the event of there being an order of eviction against the petitioners and compensation at the rat- of Rs. 2,000 per worker will have to be paid. According to the petitioner compared to the hardship that they are likely to suffer as a result of an order of eviction against them, the respondent might, as well, continue to conduct the cloth and jewellery business in the same premises, where such business had been carried on for the last 18 years.

8. The first petitioner is not running the business in the premises in question since, admittedly, he is running another hotel in Thanjavur. The earliest of the ledgers produced by the petitioners Exhibit R 4 relating to the period 1968-69 shows that the petitioners had invested only a sum of Rs. 3,706.04 and in Exhibit B-14 which is ledger or the period 1st April, 1973 to 31st March, 1974, this had been carried over from the previous ledgers and shown as Rs. 3,835. There has been an addition of a secondhand grinding machine for Rs. 1,300 on 23rd February, 1974, and a sum of Rs. 200 had been spent towards fitting and other incidental charges. Therefore, even as per the accounts relied on by the petitioners, the total amount invested comes to Rs. 5,335 and not Rs. 18,000 as R.W. 2 would have it. The ledger produced in respect of 1966-67 viz., Exhibit B-20 did not contain any entry with regard to the furniture vessel etc. with reference to the capital contribution, R.W. 2 would state that at the inception there Were four partrers each of whom had contributed Rs. 4,000 to Rs. 4,500 but there are no account books to substantiate this. The first petitioner has contributed only Rs. 950.56 as disclosed by the entries in Exhibit R.4. The profit and loss account is maintained in the last page of the ledgers except in Exhibit B-6 and a few of these pages had been cut and removed and this establishes that the accounts produced are not totally acceptable. It is also seen from the accounts that the business of the petitioners had been running at a loss except during the years 1970-71 and 1971-72 when a negligible profit; of Rs. 645.52 and Rs. 332.59 is shown. From 1972-73 till 1976-77, the business had been running at a loss. The investment of moneys in the business and the capital contribution as spoken to by R. Ws. 1 and 2 on behalf of the petitioners are certainly exaggerated and not made out by the accounts. From the register of wages Exhibit B-43, it is found that there are only 7 permanent employees and the pay of each one of these permanent employees ranges from 52.50 to Rs. 90 p.m. There is no proof with reference to the employment of seven temporary employees. The petitioners claimed that even if seven Permanent employees have to be thrown out of employment as a result of the order of eviction, they will be obliged to pay a compensation of Rs. 15,000 and therefore this would result in great hardship. The question of retrenchment does not arise if the petitioners are able to shift their business to some other premises in which the same employees could be engaged and all that the petitioners have to do is to secure another suitable premises for their business. P.W. 1 is definite that three buildings viz., door No. 39 at Madurai Road belonging to one Krishnarmorty Raja measuring 69' x 30', another building bearing door No 648 measuring 80' x 25' belonging to Thanga Pandian, and the third building bearing door No. 600 belonging to Arya Vysya Swgam, measuring 70' x 40' were all lying vacant, where a hotel could be conducted, but that the petitioners had not made any sincere attempt to secure alternative accommodation for the running of their hotel business. Indeed R.Ws. 2, 4 and 5 had also admitted that the building belonging to Arya Vysya Sangam was lying vacant and that it had been occupied only recently. RW. 3 is definite that the building belonging to Krishhnamoorthy Raja measuring 60' x 38' is close to the petition premises and was also lying vacant. From the foregoing discussion of the evidence it is clear that similar suitable accommodation for the purpose of running a hotel was available in the vicinity; but that the petitioners did not make any attempt whatever to secure for themselves such accomodation. The unwillingness of the petitioners to secure available alternative accommodation cannot be equated to such hardship to the tenants which will outweigh the advantage to the landlord within the meaning of proviso to Section 10(3)(c) so as to disentitle the respondent from asking for an order of eviction.

8. Exhibit A-4 which is a blue print of the shop in question shows that the building is 61'. 3' x 23' in which the cloth shop and the jewellery shop are situate on the eastern side within an area of 17' x 12' and the western portion is in the occupation of the petitioners. The respondent and his four sons have also entered into a partnership deed dated 12th December, 1958 for running a jewellery mart and a cloth shop. A perusal of Exhibit A-5, the Sales Tax Assessment order for the year 1977-78 shows that the turnover is nearly Rs. 2 lakhs. The son of the respondent had given evidence as P.W. 1 that the existing space of 17' x 12' for the carrying on of the cloth shop and the jewellery shop is inadequate and inconvenient and that they require the premises under the occupation of the petitioner for accommodating the jewellery business. Indeed, under Exhibit A-4 dated 17th January, 1979, the Inspector of Central Excise, Then I, had Issued a notice directing the shifting of the cloth shop from the premises where jewellery business is being carried on as the place is an approved premises for conducting gold dealers business. This is also pressed into service by the respondent for securing possession of the premises in the occupation of the petitioners. From the evidence available it is cleer that the business of the respondent in cloth and jewellery in a space of 17' x 12' cannot be carried on, especially in view of the notice from the Inspector of Central Excise that the cloth business should be shifted. It therefore becomes necessary for the respondent in order to continue to run his jewellery business in the approved premises, that the other business should be shifted from the existing place as required in the notice. The accommodation of 17' x 12' is hardly sufficient to accommodate both the businesses having regard to the turnover. The first petitioner is away in Thanjavur and no hardship would be caused to him by an order of eviction against him. Having regard to the investment that has been made by the petitioners in the business and the availability of alternative accommodation in the locality, it cannot certainly be said that the hardship to the petitioner by an order for eviction being made against them, will outweigh the advantage to the landlord in the instant case.

9. The learned Counsel for the respondent invited my attention to the decision in Shimji Rao v. Bhujanga Rao C.R.P. No. 3131 of 1973. Dealing with the situation similar to the one in the present case that if an order of eviction is passed, the tenants will go out of business, N.S. Ramaswami, J., observed thus:

Even assuming that some of the tenants are carrying on business in bullion, they need not necessarily go out of business if they are evicted from the present shop. It is not an impossibility for them to get alternative accommodation in the same locality. In any event, the evidence on record does not disclose that no other similar accommodation would be available in the same locality. The appellate authority has pointed out that from the admission of the tenants in the witness box it appeared that they had not made any attempt to find alternative accommodation. The mere fact that the tenants might have to pay higher rent for the alternative accommodation then what they are now paying to the present landlord for the shops in question or that they may be forced to pay what is called pagadi for getting such alternative accommodation is not such hardship which would outweigh the advantage to the landlord as contemplated under the above proviso.

10. These observations are apposite and are applicable to the instant case.

11. The learned Counsel for the respondent invited my attention to the judgment of the Supreme Court reported in Mst. Bega Begum and Ors. v. Abdul Ahad Khan [dead) by L.Rs. and Ors. : [1979]2SCR1 The Supreme Court has pointed out that in deciding the aspect of relative hardship, each party has to prove the relative advantages or disadvantages and that the entire onus cannot be thrown on the landlord to prove that lesser disadvantages will be suffered by the tenants and that they were remediable. The considerations to be taken into account in assessing to relative hard-ship have also been set out and in particular it has been pointed out that the inability to get similar accommodation anywhere in the city would be weighty consideration, but that to insist on getting alternative accommodation of a similar nature in the same locality will be asking for the impossible. Applying these tests, it is clear in the instant case that very close to the premises in the occupation of the petitioners, other buildings are available; but that the petitioners had not made any attempts whatever to secure them and having failed to do so, they cannot certainly be heard to complain that they are under a disadvantage by reason of the eviction order against them which will outweigh the advantage to the landlord and therefore, the application for eviction should be rejected. As the requirement of the premises in the occupation of the petitioners by the respondent as additional accommodation has been admitted by the petitioners, they cannot resist an order for eviction being made against them on the ground of relative hardship. A consideration of the circumstances as revealed by the evidence discloses that the tenants will not suffer any disadvantage at all by an order of eviction being passed against them since they can always shift their business to similar accommodation which is available in the locality and the securing of other accommodation cannot be considered to be a hardship that would outweigh the advantage to the landlord by an order for eviction in his favour. The view taken by the appellate authority is, therefore, perfectly correct and does not call for any interference in revision. The civil revision petition therefore fails and is dismissed with costs.

12. Learned Counsel for the petitioners prays for time to vacate the premises and the learned Counsel for the respondent has no objection to grant two months' time to vacate the premises. The petitioners are accordingly granted two months' time from today (24-7-1979) to vacate the premises.


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