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PETITIONER: KULKARNI PATTERNS PVT. LTD. AND ORS.

       Vs.

RESPONDENT: VASANT BABURAO ASHTERKAR AND ORS.

DATE OF JUDGMENT17/01/1992

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) PATNAIK, R.C. (J)

CITATION:  1992 AIR 1097            1992 SCR  (1) 227  1992 SCC  (2)  46        JT 1992 (1)   194  1992 SCALE  (1)96

ACT:      Transfer   of  Property   Act-Section   106-Termination notice-Sent    by post-Service-Presumption and rebuttal-When arises.      Bombay  Rents,  Hotel and Lodging House  Rates  Control       Act, 1947-Section 13 (1) (b)- Applicability of.

HEADNOTE:      The  Respondents-landlords filed a suit for  possession of the suit premises against the appellants on the ground of default   in  payment  of  rent,  amongst  other,  The   7th Additional  Small Causes Judge, dismissed the  suit  holding that the service of notice dated 7-8-1980 on the  defendants terminating the tenancy was not proved, even though one  out of  the  three acknowledgments due, had been  received  duly signed.  As  regards the question of default in  payment  of rent, the learned Judge took the view that the case did  not fall  under Section 12(3)(b) of the Act, as  the  defendants had paid Rs. 55,800 on 16.1.1984 and thereafter made regular payment of Rs. 600 every month. On appeal by the respondent- landlords,  the learned additional District  Judge  reversed the  findings of the trial Court and decreed the  suit.  The learned Additional District Judge 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.  On  the question  of  default in payment of rent the  learned  Judge held  that  as  the defendants 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,  they persistently  committed defaults during the pendency of  the suit  and also the appeal. The appellants thereupon filed  a writ petition in the High Court challenging the validity  of the  aforesaid  order  of the  learned  Additional  District Judge.  The  High  Court dismissed  the  writ  petition  and affirmed the order passed by the learned Additional District Judge. Hence this appeal by the appellants, after  obtaining special leave.              Dismissing the appeal, this Court,                                                        228

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    HELD: The notice under Section 106 T.P. Act 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 section 106 of  the  Transfer  of Property Act.[232H-233A]      The plaintiffs had sent a copy of the notice to all the three  defendants by registered post. Three postal  receipts Exhs. 52,53 and 54 have been filed in the present case  Exh. 51,  one  acknowledgment receipt. As regards  Exh.  51,  the defendants  No.2  has appeared in the witness  box  and  has denied  his signatures. However, it has not been shown  that this  acknowledgment  receipt was related to  which  of  the three  notices sent vide postal receipts Exhs. 52,53 and 54. [231E-F]      The  rebuttal,  if any, made by defendant No.2  can  be related  only with regard to Exh. 51 for one notice but  not with regard to all the three notices sent by registered post vide Exhs. 52 to 54.[232D]      The service of notice shall have to be presumed so  far as  defendant company is concerned and there is no  rebuttal to presumption by the defendant appellants. [232E]      The finding recorded by the learned Additional District Judge  that the defendants were defaulter in the payment  of rent as 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. [233B]      Green  View Radio Service v. Laxmibai Ramji  and  Anr., [1990] 4 SCC 497, referred to.

JUDGMENT:      CIVIL  APPELLATE  JURISDICTION:  Civil Appeal  No. 4134  of 1991.      From  the  Judgment and Order dated  30.8.1991  of  the Bombay High Court in Writ Petition No 3580 of 1991.      J.P.Pathak and P.H. Parekh for the Appellants.      A.M.   Khanwilkar   and   S.K.   Parshankar   for   the Respondents.      The Judgment of the Court was delivered by                                                        229      KASLIWAL,  J. 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 set aside the order of  the  trial court  and decreed the plaintiff’s 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.      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 acknowledgement  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 Section 12(3) (a) of the Act. The trial court also held that

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the case did not fall under Section 12(3) (b) of the Act  as the  defendants  had  paid  Rs.  55,800  on  16.1.1984   and thereafter  made  regular payment of Rs.  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 Section 12(3)(b) of the Act.      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 Section 27 of the General Clauses Act and Section 114 of the Evidence  Act.  Learned  additional  District  Judge  though affirmed the finding of the trial court that the case is not covered   under  section  12(3)(a)  of  the  Act,  but   the plaintiffs were entitled to a decree under Section 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                                                        230 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 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 Section 12(3)(b) of 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 committed defaults during the pendency of the suit and  also the appeal in paying the rent.      We have heard learned counsel for the parties and  have thoroughly gone through the record. It is 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.D. Kulkarni was the wife of defendant No 2 and Director of defendant  No 1.      The plaintiffs sent a notice dated 7.8.1980 to all  the defendants  vide  postal  receipts  Exhibit  52,53  and  54. Exhibit  51  is only one acknowledgement receipt  which  has been produced on record.      It has been contended on behalf of the appellants  that the  learned Additional District Judge was wrong in  drawing presumption of service of service of notice in the facts  of the  present  case.  It was  submitted  that  the  plaintiff initially stated that the acknowledgement receipt Exhibit 51 contained the signatures of defendant NO.3, but subsequently admitted that it contained the signature of defendant No. 2. It  was further argued that defendant No.2. had appeared  in the witness box and clearly denied his signatures on Exhibit 51. It was thus contended that the presumption of service of notice  was  rebutted and thereafter the burden lay  on  the plaintiffs  to prove the service of notice by examining  the

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postman  or  by  other evidence and  the  plaintiffs  having failed   to  do  so,  the  service  of  notice  having   not established,  the suit was liable to be dismissed.  Reliance in support of the above  contention was placed on a decision of  this Court to which one of us was a party in Green  view Radio  Service  v.  Laxmibai Ramji And  Another.,  [1990]  4 S.C.C.   497.   Reliance  was  placed   on   the   following observations made in the above case.           "In  this connection, we may also point  out  that          the  provisions of section 106 of the  Transfer  of          Property Act require that notice to quit has to  be          sent either by post to the party or be tendered  or          delivered personally to such party or to one of his          family  members or servants at his residence or  if          such tender or delivery is not practicable, affixed          to a conspicuous part of the                                                        231           property. The service is complete when the  notice          is  sent by post. In the present case,  as  pointed          out earlier, the notice was sent by the plaintiff’s          advocate  by registered post  acknowledgement  due.          The   acknowledgement  signed  by  the  party   was          received by the advocate of the plaintiff. Thus  in          our  view  the presumption of service of  a  letter          sent  by  registered post can be  rebutted  by  the          addressee by appearing as witness and stating  that          he    never   received   such   letter.   If    the          acknowledgement due receipt contains the signatures          of  the  addressee himself and the addressee  as  a          witness  states that he never received such  letter          and  the  acknowledgement  due does  not  bear  his          signature  and such statement of the  addressee  is          believed then it would be a sufficient rebuttal  of          the presumption drawn against him. The burden would          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. This rebuttal  by          the defendant of the presumption drawn against  him          would  of  course  depend on the  veracity  of  his          statement. The court in the facts and circumstances          of  a  case  may not consider such  denial  by  the          defendant as truthful and in that case such  denial          alone  would  not be sufficient. But  if  there  is          nothing   to  disbelieve  the  statement   of   the          defendant  then it would be sufficient rebuttal  of          the presumption of service of such letter or notice          sent to him by registered post."      In  the present case the plaintiffs had sent a copy  of the  notice to all the three defendants by registered  post. Three postal receipts Exhibits 52, 53 and 54 have been filed in  the  present case and Exhibit  51,  one  acknowledgement receipt.  As  regards  Exhibit 51, the  defendant  No.2  has appeared  in the witness box and has denied his  signatures. However,  it  has not been shown that  this  acknowledgement receipt was related to which of the three notices sent  vide postal  receipts Exhibits 52,53 and 54. The plaintiffs  have clearly  proved that three notices were sent  by  registered post  and  which is clearly born out from the  three  postal receipts. Admittedly the premises were taken on rent in  the name  of the defendant No.1 namely Kulkarni  Patterns.  Pvt. Ltd. and it is proved that one of the notices by  registered post  was also sent to the company. It has been admitted  by the defendant No.2 in his statement that the notice was sent on the correct address. The defendant No.2 in his  statement

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has  nowhere stated that no notice has bee received  by  the company. The only denial is in respect of the acknowledgment receipt  Exhibit  51  and the  only  inference  which  could legitimately  be drawn is that in respect of one notice,  it was not proved as                                                        232 to  who  acknowledged the receipt of the notice. We  do  not approve  the following statement of law made by the  learned Additional   District  Judge  "that  the  evidence  of   the defendant did not show  any extraordinary happenings or  the events  which  prevented the following of  usual  course  of business  and thus, his mere denial has no value".  However, in  the present case three notices were sent  by  registered post and one of which was sent in the name of the  defendant company  who was the tenant, a presumption can  legitimately be  drawn that the notice dated 7.8.1980 had been served  on the company. There is no rebuttal on behalf of the defendant as regards the notice served on the company and in the facts and  circumstances of the present case we hold  that  notice dated  7.8.1980 sent by registered post was  served  on  the defendant  company, In Green View Radio Service  (supra)  it was held that the acknowledgement due receipt contained  the signature  of the addressee himself and the addressee  as  a witness  stated that he never received such letter  and  the acknowledgement  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 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 appellants.      The  requirement of sending notice under Section  12(2) of  the  Act is to be done in the  manner  prescribed  under paragraph two of Section 106 of the Transfer of Property Act which reads as under.           "Every  notice  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  tendered  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 the property."      The  reading 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                                                        233      is   the  tenant  is  fully  in  accordance  with   the requirement  of  section 106 of A the Transfer  of  Property Act.      So   far  as  the  finding  recorded  by  the   learned Additional District Judge that the defendants were defaulter in the payment of 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

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not  be assailed by the learned counsel for the  appellants. Thus, the learned Additional District Judge as well as  High Court  was  right in passing a decree for  possession  under section  12(3)(b)  of  the Act. As a  result  of  the  above discussion and findings recorded by us, we find no force  in this appeal and the same is dismissed with costs. Y.L                                         Appeal dismissed.