1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.554 OF 2008 Central Bank of India ....Petitioner Versus Naranbhai G. Patel & Ors. ....Respondents Mr.R. L. Shethia for the Petitioner. Mr.P. K. Dhakepdhalkar, Senior Counsel with Mr.Divyakant Mehta for Respondent Nos.1 to 3. CORAM : S.J. VAZIFDAR, J. DATE : 14TH NOVEMBER, 2008. P.C. : 1. The concurrent findings of fact warrant absolutely no interference. The judgment of the lower Appellate Court has analysed the entire evidence and law in detail and come to the only possible conclusion. 2. On merits the Petitioner has no case whatsoever. The only point that was urged before me is that the Respondents had waived their rights in respect of the 2 notice to quit dated 4.9.2000. 3. In support of this contention, the Petitioner relied upon the account of the Respondents being credited with the rent amount after the notice to quit. It is pertinent to note that several accounts of the Respondents are maintained with the Petitioner bank itself. It is even more important to note that the Petitioner bank directly credited the said amounts to the said account. 4. Added to this is the fact that there is absolutely nothing on record which even remotely suggests that the Respondents had waived their rights under the said notice to quit. The mere fact that the Petitioner had credited the Respondents' account with the amount of rent would make no difference. Nor would it make any difference that the account was operated by the Respondents. 5. The law in this regard has been satisfactorily analysed by the lower Courts. Suffice it? only to refer to the observations of the Supreme Court in the case of Sarup Singh Gupta v. S.Jagdish Singh & Ors., AIR 2006 SC 1734. “6. The learned Senior Counsel also relied upon a decision of a learned Single Judge of the 3 Calcutta High Court in Manicklal Dey Chaudhuri v. Kadambini Dassi (AIR 1926 Calcutta High Court, 763) wherein it was held that where rent is accepted after the notice to quit, whether before or after the suit has been filed, the landlord thereby shows an intention to treat the lease as subsisting and, therefore, where rent deposited with the Rent Controller under the Calcutta Rent Act is withdrawn even after the ejectment suit is filed, the notice to quit is waived. In our view, the principle laid down in the aforesaid judgment of the High Court is too widely stated, and cannot be said to be an accurate statement of law. A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111 clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative.” 6. In the present case there is absolutely no evidence which indicates even remotely waiver on the part of the Petitioner. It is vital to note that in reply to the notice to quit dated 4.9.2000, the Petitioner had addressed a letter dated 2.5.2001. By this time the Petitioner had 4 credited certain amounts to the Respondents' account as aforesaid. The Petitioner did not mention in the letter dated 2.5.2001 that the Respondents had waived their rights. 7. In the circumstances, the Civil Revision Application is dismissed. The time to vacate the suit premises is extended upto and inclusive of 31.12.2008 subject to the Petitioner filing on or before 15.12.2008 the usual undertaking to vacate by that date. 8. After the order was dictated on behalf of the Petitioner an application was made for a longer time to vacate the premises. It was stated that if a sufficiently long period is granted, they would vacate the premises unconditionally and without challenging the order of eviction. 9. In view thereof, the time to vacate is extended upto and inclusive of 30.11.2009. This is subject to the Petitioner filing on or before 31.12.2008 an unconditional undertaking to vacate the premises as aforesaid on or before 30.11.2009. Needless to add that this is without prejudice to the rights of the Petitioner to claim mesne- profit.