*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5852/2009 The Maharashtra State Co-operative Bank Limited. ..Petitioner -VERSUS- Adiwasi Griha Nirman Sahakari Society Ltd.. ..Respondent ............... Mr.D.S.Sabnis, Advocate for the Petitioner. Mr.R.V.Govilkar, Advocate for the Respondent. ............... CORAM: A.P.DESHPANDE, J. Dated 05th November, 2009. PC:- 1 Rule. Rule made returnable forthwith by consent of the parties. 2 The Petitioner is the tenant/original Defendant against whom the decree for eviction has been passed by the Small Causes Court. The Respondent is the landlord/original Plaintiff. After terminating the tenancy by issuing notice under Section 106 of the Transfer of Property Act from the end of May, 2001, the Plaintiff instituted a suit as the possession as demanded was not handed over by the present Petitioner consequent upon termination of tenancy. The Trial Court passed the decree and an appeal directed against the said judgment and decree having been dismissed by the Appellate Bench of the Small Causes Court, this Writ Petition has been filed. *2* 3 Twofold contentions are raised by the present Petitioner/tenant assailing the impugned judgment and decree and the submissions are:- (a) that the suit for eviction and possession is not maintainable against the present Petitioner in the absence of the notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960. The present Petitioner is a Co-operative Bank which is also a co-operative society; and (b) that the notice of termination of tenancy issued by the Respondent/landlord has been waived on account of acceptance of rent after termination of tenancy. 4 Few relevant dates need to be noted to properly deal with the second contention which are narrated herein below:- The termination notice is dated 31st March, 2001 which was duly received by the Petitioner in the month of April, 2001 and replied by the Petitioner on 24th July, 2001. The suit was filed on 08th August, 2001. 5 Touching the first contention about non maintainability of the suit in the absence of notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960, suffice it to state that such a notice is a condition precedent provided that the suit is in respect of any act touching the business of the co-operative society. As observed herein above, the business of the society is banking business and it is not the business of the Petitioner to obtain premises on lease. Thus, the notice under Section 164 of the *3* Maharashtra Co-operative Societies Act, 1960 cannot be a condition precedent for instituting a suit for ejectment and possession. 6 So far as the other contention about waiver is concerned, it is relevant to note that the tenancy has been terminated from expiry of May, 2001, the notice was replied by the Petitioner in July, 2001 and the suit has been filed in August, 2001. The intention on the part of the Petitioner is to proceed further in the matter after termination of tenancy. No intention of the Respondent-landlord to waive the notice of termination of tenancy is revealed. The waiver cannot be inferred solely because of payment of rent without there being anything more in that direction. In the present case, the fact remains that the Respondent was having Saving Bank Account in the Petitioner Bank and after termination of tenancy, the Petitioner unilaterally deposited the rent in the account of the Respondent-landlord. This unilateral act of the Petitioner in depositing the rent in the account of the Respondent by itself does not amount to waiver of the notice of termination of tenancy. The Respondent was not even aware about the deposit of amount of rent by the Petitioner. Both the Courts below have concurrently found on facts that the Respondent/ Plaintiff did not waive the notice of termination of tenancy by accepting the rent. I agree with the said findings recorded by the Courts below and hold that there is no waiver. In that view of the matter, the present Writ Petition is devoid of any merit and substance. 7 At this stage, the learned counsel for the Petitioner/Defendant contends that the Petitioner is a co-operative bank and it would not be convenient for the Petitioner to *4* immediately shift from the suit premises wherein it is operating the Bank. It is, as such, contended that the Petitioner be granted one year’s time to vacate the suit premises. In all fairness, the learned counsel for the Petitioner also agrees to pay the amount of compensation/damages as awarded by the Courts below from the date of termination of tenancy till date, which is admittedly not paid. 8 Responding to this submission touching grant of time, the learned counsel for the Respondent/Plaintiff submits that time as prayed for by the Petitioner may be granted, however, subject to condition that the Petitioner files an undertaking in this Court that it would vacate the tenanted premises on or before 05th November, 2010 and would deposit arrears from the date of termination of tenancy at the rate of Rs.30/- per square/feet. 9 In that view of the matter, I pass the following order:- (a) Writ Petition stands dismissed. Rule is discharged. (b) However, the Respondent/Plaintiff shall not execute the decree for ejectment and possession for a period of one year from today subject to the condition that the Petitioner shall file an undertaking in this Court that the Petitioner shall vacate the tenanted premises and hand over vacant and peaceful possession to the Respondent on or before 05th November, 2010. The undertaking to be filed within three weeks from today. (c) The Petitioner shall also deposit/ pay the amount of compensation/damages to the Respondent from the date of termination of tenancy till date at the rate of Rs.30/- *5* per square feet as awarded by the Courts below within a period of eight weeks from today. (d) The Petitioner shall continue the payment of compensation till delivery of possession. (A.P. Deshpande, J)