- (1.) THIS first appeal was filed by the appellant (plaintiff- landlord) T.C. Parihar, under Section 96 of Code of Civil Procedure, 1908, in this Court on 11.05.2002 against the respondent-defendant, State Bank of Bikaner & Jaipur (for short, hereinafter referred to as 'SBBJ'), being aggrieved by the judgment and decree dated 04.02.2002 of learned trial court of Additional District Judge No.3, Jodhpur in Civil Original Suit No.78/94- T.C. Parihar Vs. S.B.B.J., which was filed on 21.10.1994 for recovery of arrears of rent in respect of suit premises, which was let out to the defendant- SBBJ Bank, however, the learned trial court dismissed the suit.
(2.) THE plaintiff, T.C. Parihar, has since expired during the pendency of the present first appeal before this Court, and he is now represented by his legal representatives, viz. Smt. Bhanwari Devi and others. The suit premises, situated at Main Road, Paota, Jodhpur initially was let out to the defendant- Bank in the year 1972 but after repair and renovation of the entire suit premises, the same was again let out to the same defendant- SBBJ Bank, on fresh terms under Agreement Ex.2 dated 18.09.1989 on 28.08.1990. Both he learned counsels for the parties submitted that in a subsequent development, the vacant and peaceful possession of the suit premises has been handed over back to the plaintiff-landlord on 30.09.2011 and, therefore, the controversy involved in the present first appeal is narrowed down to the payment of arrears of rent only for the period of occupation by the defendant- Bank between 28.08.1990 to 30.09.2011. Mr . Jitendra Chopra, learned counsel for the appellants- plaintiff urged that the learned trial court has grossly erred in dismissing the suit because under the agreed terms and conditions between the parties under Ex.2 dated 18.09.1989 only, the plaintiff- landlord had reconstructed and renovated the suit premises and handed over the possession of the premises again to the defendant- Bank on 28.08.1990 on the monthly rent of Rs.10,000/-; and only possession of one underground room for making a locker/strong room for the Bank, measuring 20' x 14' = 280 sq. ft. could not be given to the defendant, Bank and as against the agreed monthly rent of Rs.10,000/-, the defendant- Bank provisionally agreed to pay only Rs.7000/- per month towards the rent by crediting the same in the loan account of the plaintiff-landlord, since the defendant- Bank had advanced a loan to the plaintiff-landlord for such reconstruction and renovation. He further submitted that even if the proportionate rent of Rs.10,000/- is reduced to the extent of 280 sq. ft. of strong room (reducing Rs.529/- from Rs.10,000/-) @ 1.75/- per sq. ft., the defendant- Bank was liable to pay monthly rent @ Rs.9471/- per month and, therefore, the difference amount of Rs.9471 � Rs.7000 i.e. Rs.2471/- per month, provisionally agreed by the defendant- SBBJ Bank to credit in the loan account of landlord, deserves to be now paid to the present appellants, the legal representatives of plaintiff-landlord. He further submitted that the loan account has since been squared up and, therefore, the money decree for the arrears of rent in this regard deserves to be given to the plaintiff. He submitted that at the time of filing of the present suit in the year 1994, the arrears of such different rent was Rs.1,19,000/-, which the learned trial court has wrongly refused to decree. He also prayed that the said difference along-with increase in the rent as stipulated in the letter Ex.2 dated 18.09.1989 @ 15% after expiry of five years, also deserves to be awarded to the plaintiff-landlord; and even the rent control law permits an increase as per agreement between the parties and if nothing is provided, then 5% increase is envisaged in the rent control law in the new 2001 Act. He thus prayed that 15% increase in the claimed different amount of Rs.2471/- per month deserves to be awarded to the plaintiff-landlord. On the other hand, Mr. O.P. Pungalia, learned counsel appearing on behalf of respondent-defendant- SBBJ Bank submitted that agreed amount of Rs.10,000/- per month was subject to giving the full and complete possession of the entire accommodation of 4884 sq. ft. including the additional covered area of 1400 sq. ft. and open cycle/scooter parking space and underground strong room and, therefore, the complete rent of Rs.10,000/- could not be paid to the plaintiff-landlord. He drew attention of the Court towards the letter Ex.3 dated 28.08.1990 of the Bank written to the plaintiff-landlord, T.C. Parihar, on the date of taking possession and also Ex.A/1, letter dated 03.09.1990, in which certain incomplete work of premises handed over to the Bank were also pointed out by the defendant- SBBJ Bank. He, therefore, submitted that the present appeal of landlord deserves to be dismissed.
(3.) I have heard learned counsels for the parties at length and carefully perused the impugned judgment and decree of the learned court below and record of the case. For the purposes of ready reference, the three letters, relied upon by both the sides are quoted below hereunder. The recitals contained in Ex.2 letter dated 18.09.1989 reads as under: "Shri T.C. Parihar Opposite Pareek Petrol Pump Mandore Road, JODHPUR 18th September, 1989. Dear Sir, ALTERATION/ADDITIONS IN THE EXISTING BRANCH PREMISES OF OUR BRANCH. With reference to your offer dated 16th February, 1989 and mutual discussion time to time, we convey our approval to make alterations/additions as per Bank's approved plan in the existing Branch Premises on the following terms and conditions: - 1. The additions/alterations will be in accordance with the Bank's approved plan (mutually discussed with Premises Committee on 24.5.1989), you will provide the total area of 4884 sq. ft. (Approx.) including an additional covered area of 1400 sq. ft. (Approx.) and open cycle/scooter parking space of about 650 sq. ft. This also includes one Locker Room in the basement to be modified as per bank's SPECIFICATIONS. 2. The premises as per above-stated (modifications/renovations) approved plan will be taken on monthly rent of Rs.10,000/- (Rupees Ten Thousand only) inclusive of all present and future taxes. 3. Since the lease deed has already expired on 29.4.89, the revised monthly rent of the premises will be paid @ Rs.3,500/- (Rupees Three Thousand and Five Hundred only) for the entire interim period i.e. from 30.4.89 till the date of delivery of additional altered accommodation as per plan proposed. The renovation period should not exceed 3/4 months from the date of acceptance by the bank. 4. The principal amount of rent arrears has already been paid in September, 1987 to you. The consequential relief in respect of interest which works out to Rs.18,578/35p. (Rupees Eighteen Thousand Five Hundred Seventy Eight and Paisa Thirty five only) will be paid in full and final Settlement upon your withdrawing the Suit finally which is pending in the Court. 5. You will execute a Lease Deed for a period of five years with one option of 3 (THREE) years in favour of Bank on the same terms and conditions except that the monthly rent will be increased by 15% for the second period. 6. A construction Loan upto 80% of the estimated cost of renovations subject to the maximum of Rs.2/- lacs only will be provided to you with interest 15% per annum will be repaid by you and for the purpose the entire rental will be credited to the Loan Account. In any case, the entire loan be repaid within the first lease period. This loan will be disbursed in three equal installments- First on Equitable Mortgage, Second on completion of structural work and final on delivery of the modified premises to the Bank. 7. Stamp duty will be share equally by you and the Bank. 8. Water and Electric connections will be provided by you and will bear the meter charges and other charges if any, except the actual consumption charges will be paid by the Bank as per meter reading. 9. Periodical maintenance including white washing/Distempering/ Oil painting etc. will be done by you at least once in thre years; failing which the Bank will arrange the periodical maintenance and the cost there of i.e. equal to two months lease amount will be recovered from you in lieu thereof. 10.Strong Room door/Grill Gate for the Locker room in the basement will be provided by the bank and the same will be got fitted by you on your cost. However, these will remain the Bank's property and will be dismantled and removed by the Bank when the premises are vacated by the Bank. 11.The Bank will have an option to vacate the premises at any time during the currency of the lease period including the option exercisable by it, upon giving two month's notice and in that event, the loan will be repayable @ Rs.10,000/- per month with interest till it is fully repaid with interest and till such full repayment the property will continue to remain Mortgaged to the Bank. 12.Pleases note that all the above mentioned Terms and Conditions shall be enforceable subject to the withdrawal of Suit against Bank pending in the Court. This letter is in duplicate and you are advised to return one copy of it as a token of your acceptance of above mentioned Terms and Conditions to enable us to proceed in the matter further. Yours faithfully, Sd/- BRANCH MANAGER Encl: as above." ;