Case: Kulkarni Patterns Pvt. Ltd Vs. Shri Vasant Raburao Ashtekar

This appeal by grant of special leave is directed against the judgment of the Bombay High Court dated 30th August,1991 in a suit for possession under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act). The suit was dismissed by the 7th Additional Small Causes Judge. On appeal the learned 10th Additional District Judge, Pune by judgment dated 25-4-1991 se aside the order of the trial Court and decreed the plaintiffs suit for possession. The tenants filed the writ petition in the High Court challenging the order of the Additional District Judge, but the same was dismissed and the decree for possession passed by the Additional District Judge was affirmed.2. The trial Court held that the service of notice dated 7-8-1980 on the defendant tenants was not held proved. The plaintiffs were unable to prove that the postal acknowledgment Exhibit 51 contained the signatures of defendant No. 2 or 3. It was held that on the point of service of notice the case of the plaintiff was rather confusing and not clear. It was held that even assuming that the notice had been served yet the case did not fall under 12(3)(a) of the Act. The trial Court also held that the case did not fall under S.12(3)(b) of the Act as the defendants had paid Rs. 55,800/- on 16-1-1984 and thereafter made regular payment of Rupees 600 every month. According to the learned trial Court the issues were framed on 26-8-1985 and before that the defendants had made full payment as demanded in the notice and as such no decree can be passed under S. 12(3) (b) of the Act.3. Learned Additional District Judge reversed the above finding of the trial Court and held that the evidence of the plaintiff showed that the copy of the notice was sent to all the defendants by registered, post. The postal receipts have been filed as Exhibits 52, 53 and 54. Learned Additional District Judge further held that when the notices are sent by registered post it is presumed to have been served and mere denial by the tenants had no value, unless they proved some extraordinary happenings or events which prevented following of usual course of business. Learned Additional District Judge further held that the notice was sent on the address given in the plaint and it was admitted by the defendant in his statement that it contained the correct address. A presumption of service of notice was drawn under S. 27 of the General Clauses Act and S. 114 of the Evidence Act. Learned Additional District Judge though affirmed the finding of the trial Court that the case is not covered under @page-SC1098 S.12(3)(a) of the Act, but the plaintiffs were entitled to a decree under S. 12(3)(b) of the Act. In this regard learned Additional District Judge recorded the finding that the entire arrears of rent amounted to Rs. 71,088 but the defendant-tenant only deposited Rs. 66,000/- till the first date of hearing and thus remained in arrears of Rs. 5,088/-. It was also held that the provisions of S. 12(3)(b) of the Act are mandatory provisions and those are required to be strictly complied with by the tenants during the pendency of the suit and also appeal when the landlord claims possession of the suit premises on the ground of S. 12(3)(b) of the Act. The defendant tenant did not deposit the entire arrears on the first date of hearing and did not deposit the further rent during the pendency of the appeal. Thus the defendant persistently cornmitted defaults during the pendency of the suit and also the appeal in paying theis important to note that M/s. Kulkarni Patterns Pvt. Ltd. (defendant No. 1) was the tenant, defendant No. 2 Shri D. G. Kulkarni was the Chairman of the company and defendant No. 3 Mrs. M. P. Kulkarni was the wife of defendant No. 2 and Director of defendant No. 1.5. The plaintiffs sent a notice dated 7-81980 to all the defendants vide postal receipts EY.habits 52, 53 and 54. Exhibit 51 is only one acknowledgment receipt which has been produced on record.

Reasoning:
In Green View Radio Service (supra) it was held that the acknowledgment due receipt contained the signature of the addressee himself and the addressee as a witness stated that he never received such letter and the acknowledgment due did not bear his signature and such statement of the addressee if believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden will then shift on the plaintiff who wants to rely on such presumption to satisfy the Court by leading oral or documentary evidence to prove the service of such letter on the addressee. Even applying this statement of law in the facts of the present case, the rebuttal, if any, made by defendant No. 2 can be related only with regard to Exhibit 51 for one notice but not with regard to all the three notices sent by registered post vide Exhibits 52 to 54. Thus, in the facts of the case in hand before us we are fully convinced that the service of notice shall have to be presumed so far as defendant company is concerned and there is no rebuttal to such presumption by the defendant-appeal]ants.7. The requirement of sending notice under S. 12(2) of the Act is to be done in the manner prescribed under paragraph two of S. 106 of the Transfer of Property Act which reads asnotice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be cndered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of thereading of the above provision clearly shows that the notice can be sent by post to the party who is intended to be bound by it. Thus, the notice sent by registered post in the name of the defendant-company who is. the tenant is fully in accordance with the requirement of S. 106 of the Transfer of Property Act.8. So far as the finding recorded by the learned Additional District Judge that the defendants were defaulter in the payment of @page-SC1100 rent and full amount of rent was not paid or deposited on the first date of hearing and no rent was paid month by month during the pendency of the appeal could not be assailed by the learned counsel for the appellants.