IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU C.C.C.A.NO.28 OF 2006 Between : Andhra Bank rep.by its General Manager ... APPELLANT A N D Premlatha and others. …RESPONDENTS THE HON'BLE SRI JUSTICE K.C. BHANU C.C.C.A.NO.28 OF 2009 JUDGMENT: This C.C.C.A., under Section 96 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the judgment and decree, dated 17.10.2005 in O.S.No.1230 of 1998, on the file of X Additional Senior Civil Judge (Fast Track Court), City Civil Court, Hyderabad, whereunder and whereby, the suit filed for recovery of amount, was decreed with costs. 2. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The case of plaintiff is that they are landlords of the first to third floors of a house at Gulzar House, Hyderabad. They let out the first and second floors to the defendant-Bank on monthly rent of Rs.24,214/- till the expiration of the first term of lease. The said lease expired on 03.10.1991. Thereafter, the tenancy was extended till 04.10.1996 at the enhanced rate of 25% on the existing rent. The lease is valid till 03.10.1996 and the plaintiffs extended the lease enhancing the rent for first floor at Rs.10/- per square feet and second floor at Rs.6.50 ps. per square feet. Property tax had to be borne by the defendant. The defendant vacated the premises on 31.12.1997, without payment of arrears of enhanced rent, in spite of plaintiffs issuing legal notice, dated 16.02.1998, and as such the present suit for recovery of Rs.4,73,189.70 ps. is filed. 4. The case of the defendant is that they agreed to pay rent at Rs.5.00 per square feet to the first floor and Rs.3.50 per square feet to the second floor. The defendant after receipt of plaintiffs letter, dated 27.08.1996, enhancing the rent, approached the first plaintiff to accept the old rents or to reduce the enhanced rents, failing which the defendant is going to vacate the premises. The defendant addressed a letter, dated 26.05.1997, stating that they are going to vacate the premises and ultimately vacated the premises on 31.12.1997 and possession was delivered to the plaintiffs. The defendant also informed the plaintiffs in their letter, dated 26.05.1997, to refund the advance rent of Rs.12,108.30ps. It is the further case of the defendant that they never agreed for the enhanced rent; and that since the plaintiffs permitted the defendant to continue in the premises, till it gets a alternative accommodation; the occupation of the premises by the defendant is authorized and valid. Therefore, the plaintiffs are not entitled for any interest. There is a sum of Rs.72,649.50 ps. outstanding in the loan account from 16.04.1997. The rent for the months of November and December, 1997 for a sum of Rs.60,541.20 ps. was already adjusted to the plaintiffs loan account and thus the defendant paid an excess amount of Rs.12,108.30 ps. by mistake and as such the plaintiffs are liable to return the said amount. Therefore, the defendant is entitled for the counter claim of Rs.12,108.30 ps. along with interest amounting to Rs.16,255.38 ps. 5. On the basis of above pleadings, the following issues have been framed for trial: “1. Whether the plaintiffs are entitled for the suit amount and interest? 2. Whether the defendant is entitled for the counter claim? 3. To what relief”? 6. During trial on behalf of the plaintiffs P.W.1 was examined and Exs.A.1 to A.8 were got marked. On behalf of the defendant, D.W.1 was examined and Exs.B.1 to B.4 were got marked. 7. Now the points for determination are:- 1) Whether the plaintiffs are entitled for suit amount? and 2) To what relief? 8. Heard. 9. The factual matrix is not in dispute. The respondents/plaintiffs are the owners of the property relating to first to third floors in Gulzar House, Hyderabad. They let out the first and second floors of the building to the appellant/defendant on a monthly rent of Rs.24,214/- and the lease expired by 03.10.1991. Thereafter, the lease was extended till 04.10.1996 at the enhanced rate of 25% on the existing rent. 10. The contention of the respondents/plaintiffs is that they have sent a proposal, under Ex.A.2 letter, dated 27.08.1996, to the appellant Bank for enhancing the rent for the first floor @ Rs.10/- per square feet per month for the area of 3807 square feet and the second floor @ Rs.6.50 ps. per square feet per month for the area of 1479 square feet. Admittedly, the appellant/defendant vacated the premises on 31.12.1997, without paying the arrears on the existing rent, in spite of legal notice, dated 16.02.1998. The evidence of P.W.1 would clearly go to show that the appellant/defendant has given an offer for renewal of the lease through a letter, dated 27.08.1996, which was marked as EX.A.2, and in pursuance of that letter an oral discussion took place between the Manager of the appellant Bank and the respondents. As per the oral agreement, the appellant Bank continued in the said premises till 31.12.1997. 11. It is not in dispute before this Court that the respondents used to accept the rent at the old rate. Except the oral testimony of P.W.1, there is no other evidence to show that the respondents accepted the rent under protest. At any point of time, the respondents raised their little finger to produce the rent receipts that were being given by the appellant Bank prior to the end of the lease period. Except the oral evidence of P.W.1, there is no other evidence that the appellant Bank accepted the proposal of the respondents with regard to enhancement as claimed by plaintiff. Further more, admittedly there was no endorsement made on Ex.A.2 to the effect that the appellant Bank accepted or agreed for the terms and conditions of Ex.A.2. Even P.W.1 also admitted that the appellant only acknowledged the receipt of Ex.A.2. Mere acknowledging the receipt of letter it does not mean the appellant accepted the terms and conditions of Ex.A.2. In the absence of any acceptance by the appellant for the proposal sent by respondents under Ex.A.2, the question of agreeing to the terms and conditions of Ex.A.2 does not arise. Admittedly, the appellant bank has not accepted terms and conditions in Ex.A.2. D.W.1 is the Branch Manager of the appellant Bank. No doubt, he admitted that only on the basis of Ex.A.2 letter, the appellant Bank occupied the premises till the date of vacation. But, that does not mean the Bank agreed for the terms and conditions of Ex.A.2, with regard to the enhancement of rent. When a specific suggestion was given to D.W.1 that Bank is continuing to occupy the premises in pursuance of Ex.A.2 letter, the Bank is liable to pay the enhanced rent mentioned in Ex.A.2, the same was denied by D.W.1. That shows the appellant Bank officials have not accepted the proposal sent by the respondents with regard to the enhancement of rent. The unilateral offer made by the respondents basing on Ex.A.2 cannot be a basis for determining the rent payable and the oral assertion cannot be accepted. The trial Court has not given cogent reasons in decreeing the suit. Therefore, the impugned judgment is liable to be set aside and is accordingly, set aside. 12. Regarding issue No.2 in the trial Court whether the defendant is entitled for the amount under the counter claim, as per Ex.B.4 the appellant/defendant addressed a letter to the respondents/plaintiffs stating that the appellant has paid Rs.72,649.50 ps. and the appellant adjusted Rs.60,541/- from the rents payable from November and December, 1997 and, therefore, the respondents/plaintiffs have to pay an amount of Rs.12,108.30 ps. In what way the excess amount has been paid to the respondents has not been specifically mentioned or stated by the appellant in the evidence. Further more, all the documents with regard to payment of amount to the respondents towards rents would be available with the appellant, but the appellant Bank has not filed any statement showing about the excess payment, if any, paid to the respondents. Under Section 114(g) of the Indian Evidence Act, 1872, the Court may presume that the evidence which could be that is not produced would, if produced, be unfavourable to the person who withholds it. The best evidence rule, which governs the production of evidence in Courts, requires that the best evidence of which the case in its nature is susceptible should already be presented. If the Bank wrongfully withholds material evidence which will substantiate the counter claim, the Court can draw every presumption to its disadvantage consistent with the facts admitted or proved. Therefore, this point is answered against the appellant Bank. 13. Accordingly, the C.C.C.A is allowed to the extent indicated above. There shall be no order as to costs. ________________ K.C.BHANU, J JANUARY 31, 2011. YVL/MD THE HON'BLE SRI JUSTICE K.C.BHANU 31.01.2011