Gst 1 cra1102.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL REVISION APPLICATION NO. 1102 OF 2010. M/s.Bharat Gears Limited .... .... .... ....Applicant. V/s M/s.D.Drukkar & Co. (India) Pvt. Ltd. .... ...Respondent. Mr.A.Y.Sakhare, Sr.Counsel with Mr.Ranjeet Thorat, Mr.Mittal and Mr.D.Udeshi i/by Mr.Pramesh Vakil, Adv. For the applicant. Mr.K.J.Preswalla with Mr.R.M.Pardiwalla i/by Mulla & Mulla & CBC, Adv. For the respondent. CORAM: B.R. GAVAI, J. 10th January, 2011 Oral Judgment: By way of present revision application the applicant challenges the judgment and order passed by the learned Division Bench of the Small Causes Court dated 29.10.2000 thereby allowing the Appeal No.196/07 filed by the respondent arising out of the judgment and order passed by the learned Judge of the Small Causes Court thereby dismissing the T.E. & R. Suit No.252/299 of 2000 filed by the respondent. 2. The respondent-landlord had filed a suit seeking decree of ejectment in respect of flat No.C/62, 6th floor along with open garage in the building named “Meherina Apartments, situated on plot No.C/51, Nepean Sea Road, Mumbai-400 006. The case of the plaintiff was that the premises in question were given on leave and licence vide agreement dated 15.6.1972 in favour of Gst 2 cra1102.10.sxw the defendant, for a period between 10.6.1972 to 9.5.1973. It is the case of the plaintiff, that the defendant-company had become deemed tenant of the plaintiff in respect of suit premises. However that since paid up share capital of the defendant-company was more that Rs.1 crore it was exempted from the protection of Maharashtra Rent Control Act (hereinafter for brevity referred to as “the Act”). It is the case of the plaintiff that vide notice dated 22.8.2000 the tenancy of the defendant was terminated and that they were also entitled to mesne profits. Accordingly a decree of possession was also sought. 3. The suit was resisted by the defendant-applicant on the ground that the suit was not tenable in view of the provisions of the said act. It was also the contention of the defendant that in the meeting between the parties it was agreed that the defendant would bear costs, charges and expenses incurred towards the replacement, repair, and renewals of interior decoration and all other work and that the plaintiff was not entitled to recover those expenses and that the tenancy shall automatically be renewed for a further period of thirty years. It was further averred on behalf of the defendant that the plaintiff has been receiving rent even after the alleged termination of the tenancy under notice dated 22.8.2000 and as such they had waived and forfeited their right or otherwise estopped and as such the suit deserved to be dismissed. The learned trial Court held that the suit was tenable. It was further held that the plaintiff legally terminated the tenancy and that the notice of termination was illegal. However the learned trial Court held that the plaintiff received rent after notice Gst 3 cra1102.10.sxw of termination and as such it amounted to waiver. As such the suit came to be dismissed. Being aggrieved thereby an appeal was preferred by the non- applicant before the Division Bench of Small Causes Court. The learned Division Bench upheld the finding of the trial Court in so far as the maintainability of the suit and valid termination of the tenancy is concerned. However it was held that the finding of the learned trial Court in so far as waiver is concerned the same was not sustainable and as such allowed the appeal. Hence the present civil revision application. 4. Shri Sakhare, learned senior counsel appearing on behalf of the applicant submits that in view of the provisions of section 3(1)(b) and 7(15) of the said Act, since the applicant-defendant was not tenant but licensee, the provisions of the said Act were very much applicable and as such the suit was not tenable. He further submitted that the learned trial Court ought to have taken into consideration that the induction has to be as a tenant and not as a licensee. Learned counsel submits that in view of sub-section 15 of section 7 tenant is defined and that the said definition does not include a licensee. It is submitted that section 3(1)(b) of the Act also made it clear that for making the provisions of the Act inapplicable, the premises have to be let or sub-let. Learned counsel further submits that, the learned trial Court had given sound and cogent reasons in support of the finding that the respondent-plaintiff was not entitled to decree on the ground of waiver. He submitted that the respondent-plaintiff had accepted the rent after the notice was issued. He further submits that the Gst 4 cra1102.10.sxw applicant had spent huge amount on repairs and as such the appellate order is not sustainable. 5. Learned counsel for the defendant on the contrary submitted that in the written statement itself the defendant has admitted that the rent accepted by the plaintiff was without prejudice and as such the contention in that regard is without any substance. 6. In so far as the maintainability of the suit is concerned both the courts below have concurrently held that the suit was maintainable and that protection under the said act was not applicable to the present applicant. The main thrust of argument by the applicant, in this behalf, is that for excluding the applicability of the Act to the occupier, he has to be inducted as a tenant and not as licensee. Clause 3(1)(b) of the said act reads thus: “3(1)(b) to any premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation established by or under any Central or State Act, or foreign missions, international agencies, multinational companies, and private limited companies and public limited companies having a paid up share capital of rupees one crore or more.” From perusal of the aforesaid it will thus be clear that in case of premises let or sub-let to banks, or any Public Sector Undertakings or any Corporation etc. having a paid up share capital of Rs.1 crore or above the said Act would not be applicable. Therefore the only question that requires consideration is as to Gst 5 cra1102.10.sxw whether the contention with reference to sub-section 15 of section 7 deserves to be considered. Sub-section (ii) of section 15 reads as under: “(15) “tenant” means any person by whom or on whose account rent is payable for any premises and includes:- (a) such person,_ (i) xxxx xxxxx xxxxx xxxxx xxxxx (ii) who is a deemed tenant, or It can be clearly seen from the definition of tenant as provided under sub- section 15 of section 7 of the Act, it would also include a deemed tenant. In this respect it would be necessary to refer to Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which reads thus: “15A. Certain licensees in occupation on 1st February 1973 to become tenants__(1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation. (2) The provisions of sub-section (1) shall not affect in any manner the operation of sub-section (1) of section 15 after the date aforesaid.” Gst 6 cra1102.10.sxw It can thus be clearly seen that in view of the aforesaid provision the applicant has become deemed tenant in respect of the premises in their occupation. 7. In that view of the matter the concurrent findings of both the courts below that the applicant was not entitled to protection under the said Act warrants no interference. 8. Now that leaves me to decide the contention of the Applicant regarding waiver. It can be seen from para 11 of the written statement that the defendant himself has admitted that the plaintiff had accepted the rent after issuance of notice without prejudice. It can further be seen that the defendant’s version that the tenancy was extended for a further period of 30 years was accepted by the learned trial Court only on the basis of evidence of defence witness No.1. However the appellate Court has found that the defence witness No.1 categorically stated in the evidence that he had no knowledge as to on which date a meeting took place and that the alleged agreement was entered into between the parties. The learned Appellate Court has found that admittedly minutes of the so called meeting were not recorded. Learned Appellate Court has found that if there had really been such a meeting, then defendant would have atleast obtained the signature of the representatives of the Directors who were present in the meeting. It can further be clearly seen that the learned Appellate Court has found that in the letters addressed by the defendant to the plaintiff at Exs.5 and 6 there is no whisper about repairs carried on by the defendant, neither there is any reference that the tenancy was agreed to be Gst 7 cra1102.10.sxw renewed for a period of 30 years. In that view of the matter I find that the learned trial Court’s finding in that respect was only on conjectures and surmises and the learned appellate court has rightly held that the defendant had failed to prove that the tenancy was extended for a period of 30 years. In so far as acceptance of rent is concerned as already pointed out hereinabove, in the written statement the defendant has himself admitted that the rent was accepted without prejudice. Apart from that the learned Appellate Court relying upon judgments of the Apex Court in the cases of Shanti Prasad Devi & Anr. Vs. Shankar Mahto & Ors., AIR 2005 SC 2905 and Sarup Singh Gupta Vs. Jagdish Singh & Ors., (2006) 4 SCC 205 and various judgments of this Court has held that the acceptance of rent by the landlord on expiry of period of lease would not amount to an extension or continuation of lease. In that view of the matter no error also could be found with the finding of the learned Appellate Court in that respect. 8. In the result, Civil Revision Application is found to be without any merit. Hence the application stands rejected.