IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.02.2010 CORAM THE HON'BLE MR.JUSTICE G.RAJASURIA,J., C.S.No.582 of 2006 1. Lakshmi Subrahmanyam 2. Padmini Balagopal 3. Dr.Nanditha Krishna (Plaintiffs 1 to 3 rep.by their Power of Attorney holder Mr.A.T.Krishnakumar) 4. A.T.Krishnakumar .. Plaintiffs vs 1. Indian Oil Corporation Ltd., rep.by its Chief General Manager 2. The Chief Divisional Retail Sales Manager, M/s. Indian Oil Corporation Ltd., 3. M/s.ICICI Bank, rep.by its Manager-Retail Channel Infree Group .. Defendants This is a suit filed for a direction to the defendants (i) to quit and deliver peacefully vacant possession of the suit schedule described property to the plaintiffs; (ii) to direct the first defendant to pay past mesne profits towards damages for use and occupation in a sum of Rs.24,00,000/- from the date of the suit to the plaintiffs together with interest thereon at 18% p.a.,(iii) to direct the first defendant to pay future mesne profits of Rs.2,00,000/- per month or at such other rate as this Hon'ble Court may frix from the date of plaint till the date of delivery of vacant possession of the suit schedule described property to the plaintiffs together with interest thereon at 18% p.a and (iv) to pay costs. For Plaintiffs : Mr. K.Ramu For D1 & D2 : Mr.T.Rajagopalan, Senior Counsel for M/s Anand Abdul and Vinodh Associates For D3 : No appearance JUDGMENT This is a suit for obtaining delivery of vacant possession and for recovery of a sum of Rs.24,00,000/- as damages for use and occupation of the suit property and for other incidental reliefs. 2. Broadly but briefly, narratively but precisely, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: The immovable property described in the schedule of the plaint belongs to the plaintiffs and their propositus viz., C.R.Pattabhiraman leased it out in favour of the defendants several decades ago and lastly, on 14.08.1985 the lease was renewed by stipulating that the lease shall be for 20 years. The said original lessor C.R.Pattabhiraman died intestate on 19.06.2001 leaving behind the plaintiffs' as his only legal heirs. The defendants have been operating a retail petrol out let in the suit property. As per the clause in the said lease deed referred to supra, long before the expiry of the lease period of 20 years, the plaintiffs' by their letter dated 24.03.2004 expressed their desire not to renew the lease for another period of 20 years or for the extension of the lease period any further. They also issued one other notice. There were subsequent correspondences between them as the defendants expressed their desire to purchase the suit property; but that did not get fructified. Ultimately the plaintiffs' made their view amply clear that they were not willing for renewal of the lease and they wanted the possession of the suit property. The attempt on the part of the defendants to thrust the rents on the plaintiffs after the expiry of the lease period was resisted by the plaintiffs and at no point of time, they agreed to the continuance of the defendants' tenancy in the premises. Hence, the suit seeking the following reliefs: - for a direction (i) directing the defendants to quit and deliver peacefully vacant possession of the suit schedule described property to the plaintiffs; (ii) directing the first defendant to pay past mesne profits towards damages for use and occupation in a sum of Rs.24,00,000/- from the date of the suit to the plaintiffs together with interest thereon at 18% p.a., (iii) directing the first defendant to pay future mesne profits of Rs.2,00,000/- per month or at such other rate as this Hon'ble Court may frix from the date of plaint till the date of delivery of vacant possession of the suit schedule described property to the plaintiffs together with interest thereon at 18% p.a and (iv) for costs. 3. Per contra, refuting and remonstrating, impugning and gain saying the allegations/averments in the plaint, the defendants filed their written statement, the gist and kernel of them would run thus: The defendants have been paying the rent regularly without any default. Initially the lease period was for 10 years commencing from 27.03.1965 and lastly it was renewed as per the lease deed dated 14.08.1985 (registered document No.769/1985) w.e.f 01.04.1985 for a period of 20 years, expiring by 31.03.2005 with the option for automatic renewal of the lease for a further period of 20 years. The defendants erected Petrol and High Speed Diesel Oil Pump Retail Out let and constructed a building also on the said area,from out of the defendants' own funds. The defendants requested the plaintiffs' to renew the lease for 20 more years as per the terms and conditions contemplated in the said registered sale deed. However in utter disregard of the same, the plaintiffs' refused to renew the lease for 20 more years. The proposal to purchase the property did not get fructified because of the plaintiffs' conduct only. The plaintiffs' have not terminated the tenancy of the defendants, but they have chosen to describe the defendants as trespassers. The defendants are entitled to the benefits under the Madras City Tenants Protection Act (hereinafter referred to as 'the Act'). The suit is not maintainable and as per Section 9 of the said Act, they are entitled to purchase the said property for the price to be fixed by this Court. The acts of the plaintiffs' initially in accepting the proposal of the defendants' for purchasing the property subsequent to the termination notice would constitute waiver of the termination notice by the plaintiffs' as per Section 113 of the Transfer of Property Act; Accordingly, he prayed for the dismissal of the suit. 4. Based on the pleadings my learned predecessor framed the following issues: "1. Are not the plaintiffs entitled to the relief of recovery of possession of the suit property? 2. Are the plaintiffs estopped from seeking recovery of possession of suit property, in view of the offer, before suit? 3. Are the plaintiffs entitled to mesne profits as claimed in the suit? 4. Whether the termination notice dated 24.03.2004 is deemed to be waived under Section 113 of the Transfer of Property Act in view of subsequent act of the plaintiffs? 5. To what relief, are the parties, entitled?" 5. The gist and kernel of the additional written statement filed by D1 and D2 would run thus: Indian Oil Corporation Limited is a tenant in respect of the schedule property within the meaning of the Madras City Tenants Protection Act and it is entitled to notice under Section 11 of the said Act, before the landlord filing any suit, but in this case, no such notice was given. In fact, the plaintiffs also has not offered compensation for the building erected by the Indian Oil Corporation over the said property. Even if there is any clause in the agreement contrary to the statutory provisions, such a clause can have no binding effect on the parties. Accordingly, the Indian Oil Corporation prays for dismissal of the suit. 6. The summation and summarisation of the averments in the reply statement filed by the plaintiffs would run thus: The defendants are not entitled to any benefits under the Madras City Tenants' Protection Act for the reason that D1 and D2 have not been in actual physical possession of the suit property ever since prior to 1985, but they had put M/s Kamadhenu Co-operative Society in physical possession of the suit property. The third defendant is in physical possession of a small portion of 150sq.ft. in the suit property, by running their ATM therein as a sub lessee of D1 and D2. The defendants have forfeited their right, if any, under the said Act by virtue of their conduct by accepting the termination notice and in coming forward to purchase the suit property from the plaintiffs and that the plaintiffs refused to extend the lease also. After issuance of notice terminating the lease in favour of the defendants, the plaintiffs did not accept any rent. However, the defendants filed suit C.S.No.45 of 2008 for specific performance for renewal of lease and that too after admitting the termination of lease. As such, the lease got validly terminated by 31.03.2005. The plaintiffs therefore pray for decreeing the suit as prayed for. 7. Based on the above, I framed the following additional issues: (1) Whether the suit is bad for want of a statutory notice under Section 11 of the Madras City Tenants Protection Act by the plaintiffs in favour of the defendants and in the absence of pleadings, whether this issue is capable of being framed legally and considered? (2) Whether Ex.P2-the pre suit notice could be taken as statutory notice issued under Section 11 of the Madras City Tenants Protection Act? (3) Whether the Kamadhenu Co-operative Society and the ICICI are in physical possession of the suit property and if so, whether the defendants are entitled to the benefits of the Madras City Tenants' Protection Act? 8. Issue No.4 and Additional issue Nos.1 to 3 are taken together for discussion, as they are inter linked and inter woven with one another. 9. Tour d'horizon of the learned counsel for the plaintiffs, placing reliance on the pleadings and documents would run thus: (a) The defendants 1 and 2 took on lease the suit property described in the schedule of the plaint from the ancestor of the plaintiffs several decades ago and on 14.08.1985, the said lease was renewed for a period of twenty years. The said renewal as found set out in the plaint refers to a fresh lease only for twenty years which got expired by 31.03.2005. (b) The defendants 1 and 2 are not entitled to any protection under the Madras City Tenants Protection Act in view of the fact, that D1 and D2 are not in actual physical possession of the suit property, but the said Kamadhenu Co-operative Society is in actual physical possession of the suit property and doing business in conducting retail petrol outlet and that in a portion of the suit property, D3 is running ATM as a sub-tenant of D1 and D2. (c) The defendants 1 and 2 therefore cannot be termed as tenants within the meaning of Sub Section 4 of Section 2 of the Madras City Tenants Protection Act and consequently, they are not entitled to any notice under Section 11 of the said Act and consequently, Section 9 of the Act has no application. Alternatively, it can also be taken that the Ex.P2-Notice which was issued on 24th March 2004, even a year before the expiry of twenty years lease period by 31.03.2005, as one issued under Section 11 of the Act. The lease deed also contains stipulation that the defendants 1 and 2 would remove the building put up by them without claiming any compensation. Accordingly, the learned counsel for the plaintiffs prays for decreeing the suit. 10. The summation and summarisation of the arguments as put forth by the learned Senior Counsel for the defendants 1 and 2 would run thus: (a) The first defendant/Indian Oil Corporation being a tenant within the meaning of the said Act is entitled to the benefits contemplated under it. (b) No notice under Section 11 of the Act was given offering compensation. (c) There could be no estoppel against law. (d) Admittedly, as per the plaint averments, the lease entered into several decades ago, continued without any interruption and there is no whisper about fresh lease. The object of the Act is to confer benefits on the tenant who had put up structure on the land. In the event of the plaintiffs giving proper Section 11 notice and filing a suit afresh, the tenant would file a proper application under Section 9 of the Act. Accordingly, the learned Senior Counsel for the defendants 1 and 2 prayed for the dismissal of the suit. 11. Indubitably and indisputably, unarguably and unassailably, Ex.P1, the agreement dated 14th August 1985, emerged between the propositus of the plaintiffs and the first defendant and that would highlight and spotlight the fact that for a period of twenty years the lease was agreed so as to enable D1 to run a retail petrol outlet and clause (j) of it runs as under: "(j) The lessees shall at the expiration or sooner determination of the said term yield up and deliver peaceful and vacant possession of the demised premises and in the event of any installation, erection, alteration or substitution having been made thereon or underneath the surface restore the same to their original state and condition in which the same has been demised. All buildings structures, installations fittings, fixtures and erections of whatsoever kind and nature whether in, upon or underneath the demised premises shall during the said term and at the expiry thereof entirely belong to and revert to the Lessees who shall be entitled to take away the same provided that the demised premises are restored in their original state and condition and subject only to the lessor's lien over the erection for any amount due to the lessor by the lessees. (emphasis supplied) PROVIDED ALWAYS AND IT IS HEREBY AGREED AND DECLARED that if the rent hereby reserved or any part thereof shall be in arrears for a period to three months after becoming payable and after being demanded or it the lessee shall commit breach or foil or neglect to perform or observe any of the covenants, conditions or agreements  herein contained and on the part of the lessees to be observed and performed or if the Lessees shall go into liquidation whether voluntarily or compulsorily then in any of the above cases it shall be lawful for the lessor at any time thereafter to re-enter upon the said premises or any part thereof in the name of the whole and to take action to repossess and enjoy as in all their former estate and interest PROVIDED ALWAYS AND IT IS AGREED AND DECLARED that the power of re-entry hereinbefore contained shall not be exercised unless and until the lessor shall have given to the lessees a notice in writing of his intention to re- enter and of the specific breach or breaches of the covenants in respect of which the re-entry is intended to be made and default shall have been made by the lessees in remedying such breach or breaches within a reasonable time being however not less than three months after the giving of such notice PROVIDED ALWAYS AND IT IS AGREED AND DECLARED that at the exiration of the said term of 20 years this lease will be automatically and without any further act of any of the parties here to be renewed for a further term of 20 years from the expiration of the said term hereby granted unless the lessor or the lessees shall prior to the expiration of the last mentioned term give to the other party on calendar month's previous notice in writing of their intention not to take any renewed lease. The renewed lease will be on such terms as may be agreed upon then." The said clause would highlight that the tenant agreed not to claim any compensation regarding the superstructure . It is an admitted fact that the landlords, viz., the plaintiffs, issued notice Ex.P2 dated 24th March 2004 calling upon the first defendant to vacate the premises by the end of 31.03.2005, so to say on the expiry of twenty years lease period. This notice, according to the learned counsel for the plaintiffs even for argument sake is taken that the said Act is applicable in favour of the first defendant, it would amount to a notice under Section 11 of the Madras City Tenants' Protection Act; nonetheless it is not specifically mentioned therein, it is one under Section 11 of the Act. The learned counsel also would submit that in view of the fact that under Section 9 of the Act there is no application within one month from the date of receipt of the suit summons, the first defendant is having no right to claim any right under Section 9 of it. However, the learned counsel for the plaintiffs would make it clear that such an argument on the part of the plaintiffs is only by way of alternis visibus and that the plaintiffs are not in any way accepting that D1 is entitled to any benefit or protection under the Act. 12. It is therefore, just and necessary to analyse at the first instance, as to whether the Act is applicable in favour of the first defendant. For determining the same, it has to be found out as to whether Ex.P1 could be termed as a fresh lease or continuation of the old lease. 13. The plaint averments in paragraph 3 would read thus: "The plaintiffs state that the suit schedule described property originally belonged to Late C.R.Pattabhiraman, father of the Plaintiffs 1 and 2 and grand father of Plaintiffs 3 and 4. The said Late C.R.Pattabhiraman leased out the Schedule described property to the defendants for several decades by means of lease deeds as such, the last of the lease deed executed by Late C.R.Pattabhiraman was dated 14.08.1985 for a period of 20 years upto 31.03.2005, in and by which the monthly lease rent was fixed initially at Rs.4000/- pm., with periodic rise in rent and thus the first defendant was liable to pay a sum of Rs.5,290/- pm., for a period of 10.04.2000 to 31.03.2005, ie., till the expiry of lease." The learned Senior Counsel for D1 and D2, placing reliance on the aforesaid excerpt, would delineate and set forth that Ex.P1 did not create a fresh lease, but only a renewal of lease and there were also no variations in the terms and conditions of the lease. 14. However, the learned counsel for the plaintiffs would submit thus: (a) The nomenclature 'renewal' or 'fresh' does not matter, but the substance should be looked into. (b) Whenever a fresh lease deed emerges, even if it is termed as renewal lease, it should be taken as commencement of a fresh lease as per law. (c) Simply because D1 continued in possession as a tenant for a pretty long time even anterior to emerging of Ex.P1, it would not in any way enure to the benefit of the plaintiffs to claim that he is a tenant under the said Act. (d) In the wake of Ex.P1 dated 14.08.1985, the lease should be construed only as a fresh lease not attracting the provisions of the Madras City Tenants Protection Act, because as per the Amendment Act (II of 1980) only lease or tenancy emerged anterior to the cut off date, ie., 03.03.1980 alone can be taken as lease/tenancy covered by the said Act. (e) As per the said Act, fresh tenancies commenced after the cut off date, ie. 03.03.1980 in the city of Madras within which the suit property is situated, would not be covered by it. (f) Here, Ex.P1 the fresh lease deed emerged on 14.08.1985, long after the cut of date and as such D1 is not entitled to claim any benefit under the said Act. 15. Whereas, the learned Senior Counsel for the defendants 1 and 2 would submit that such a lease referred to under Ex.P1 cannot be termed as fresh lease and it is only in continuation of the lease which emerged several decades anterior to the emergence of Ex.P1. At this juncture, it is just and necessary to refer to the decisions emerged in this regard. 16. The learned counsel for the plaintiffs cited the decisions of the Hon'ble Apex Court and other various High Courts. I would like to place reliance on the Hon'ble Apex Court's decisions, among the bunch of decisions cited on the side of the plaintiffs, because the following two Hon'ble Apex Court's judgments are squarely covering the point in issue. (i) (1973) 2 SCC 825  DELHI DEVELOPMENT AUTHORITY V. DURGA CHAND KAUSHISH, an excerpt from it would run thus: "7. If the plaintiff was not entitled initially to a lease of 90 years for the rent agreed upon but the rent was liable to be increased within that period, as appeared to be the real case of the defendants in the High Court, there was no question of grant of a fresh lease. A renewal of a lease is really the grant of a fresh lease. It is called a "renewal" simply because it postulates the existence of a prior lease which generally provides for renewals as of right. In all other respects, it is really a fresh lease. (ii) (2007) 5 SCC 614  HARDESH ORES (P) LTD. V. HEDE AND COMPANY, certain excerpts from it would run thus: "29. ......It was also urged relying upon the decision of this Court in Ambica Quarry Works v. State of Gujarat that the grant of renewal is a fresh grant and must be consistent with law. The respondents relied on the decision of this Court in Provash Chandra Dalui v. Biswanath Banerjee wherein this Court considered the difference between "extension" and "renewal" of a lease. This Court observed thus: (SCC p.496 para 14) "14. It is pertinent to note that the word used is 'extension' and not 'renewal'. To extend means to enlarge, expand, lengthen, prolong, to carry out further than its original limit. Extension, according to Black's Law Dictionary, means enlargement of the main body; addition to something smaller than that to which it is attached; to lengthen or prolong. Thus extension ordinarily implies the continued existence of something to be extended. The distinction between 'extension' and 'renewal' is chiefly that in the case of renewal, a new lease is required, while in case of extension the same lease continues in force during additional period by the performance of the stipulated act. ..... 31. Having regard to these decisions we must hold that in order to give effect to the renewal of a lease, a document has to be executed evidencing the renewal of the agreement or lease, as the case may be, and there is no concept of automatic renewal of lease by mere exercise of option by the lessee. It is, therefore, not possible to accept the submission urged on behalf of the appellant- plaintiffs that by mere exercise of option claiming renewal, the lease stood renewed automatically and there was no need for executing a document evidencing renewal of lease. 39. ...As notice earlier, the law is well settled that the renewal of an agreement or lease required execution of a document in accordance with law evidencing the renewal. The grant of renewal is also a fresh grant." A perusal of those judgments would unassailably and unarguably, highlight and spotlight the fact that once fresh lease deed emerges between the parties, it would amount to fresh commencement of lease. 17. The learned counsel for the plaintiffs placing reliance on the decision of the Division Bench of this Court reported in 1937 MWN 1315A RANGANATHAM CHETTY AND OTHERS V. M.ETHIRAJULU NAIDU, which was confirmed by the decision of the Privy Council reported in The Indian Law Reports 1940 page 172, would develop his argument that a fresh lease deed entered into between the landlord and the tenant incorporating the increased rent would tantamount to fresh lease and such a lease cannot be taken as continuation of the earlier lease for the purpose of the Madras City Tenants Protection Act. 18. The learned Senior Counsel for D1 and D2 would try to highlight that even though the said Privy council decision was followed by this Court, the Hon'ble Judges subsequently distinguished the said decision on factual basis. A mere perusal of the decisions cited on the side of the defendants 1 and 2 and certain excerpts from them extracted supra would highlight that the decision of the Privy Council was adhered to and over and above that the decision of the Hon'ble Apex Court