Sunday, 23 July 2017

Whether there can be valid demand notice if copy of notice is sent to other side?

The question is: whether merely because copy of demand notice, which was addressed to defendant Nos. 1 and 2, was “forwarded” to defendant No. 3, fulfils the mandatory requirement of due service of a demand notice on the defendant No. 3 within the meaning of section 12(2) of the Act. By now, it is well established position that, unless a notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act, 1882, no suit for recovery of possession can be maintained by the landlord against the tenant. The fact that defendants 1 and 2 have been duly served with the said demand notice would be of no avail, in the fact situation of the present case. In law, defendant No. 3 would become the direct tenant of the plaintiff in terms of section 5(1l)(aa) of the Act, soon after the determination of tenancy of defendant Nos. 1 and 2. On acquiring such status the plaintiff was obliged to serve the defendant No. 3 with a notice in writing about the demand of the standard rent and permitted increases in the manner provided in section 12(2) of the Act. It is not in dispute that the demand notice dated 22-10-1982 Exhibit 59 has been addressed to only defendants 1 and 2 and at the end of the notice it is mentioned that copy is marked to defendant No. 3 (i.e. C.C. sent for information). There is a marked difference between the requirement of sending a demand notice-which is necessarily required to be addressed to a person then merely forwarding a copy of such communication. The latter, at best is in the nature of apprising the recipient of that communication of the fact of issuance of a legal notice to the addressee (i.e. defendant Nos. 1 and 2) by the sender (plaintiff). On the other hand, the legal requirement is of sending or addressing a notice in writing of the demand to the tenant, which postulates putting him to notice about non-payment of the rent and permitted increases which is due, and “calling upon him to pay” the same forthwith, In other words, where the tenant happens to be an assignee, who is in possession of the suit premises in his own rights on account of a valid assignment and is allegedly in arrears of rent, a demand notice under section 12(2) must be given to him as well. In absence of such a notice to the assignee, the question of instituting ejectment suit against him on the ground of arrears of rent does not arise at all. In that, section 12(2) is a statutory bar for institution of suit against the tenant until a demand notice is issued to him and is duly served 
upon him in the manner provided for therein. The fact that the assignee may become aware about the contents of the demand notice sent to the original or head tenants does not extricate the landlord of his obligation to issue or address a valid demand notice to the assignee, if he wants to proceed even against the assignee along with the head-tenant for ejectment from the suit premises on the ground of arrears of rent. The fact that the plaintiff in this case was not aware that the defendant No. 3 (petitioner) was lawful transferee/assignee in the suit premises does not take the matter any further. The requirement of section 12(2) is not a mere formality. It is a mandatory provision and only on compliance of the said obligation, the cause of action to sue the tenant on the ground of arrears of rent would accrue to the landlord. Non-compliance of the said mandatory requirement in any manner would result in dismissal of the suit for want of cause of action-as the bar placed by sub-section (2) of section 12 of the Act is not lifted. A priori, even though respondent No. 1 (plaintiff) may have succeeded in getting ejectment decree against the defendants 1 and 2-the head tenants, that decree (insofar as the ground of default) will be of no avail against the assignee (defendant No. 3) unless it is shown that lawful demand notice was addressed also to transferee/assignee (defendant No. 3) and in spite of that notice he failed to pay the outstanding amount demanded in the said notice or file application for fixation of standard rent within a period of one month from the date of service of the notice.
Bombay High Court
Bombay Rent Act, Section 12(2) and (3)
(Before A.M. Khanwilkar, J.)
Shankar Vishnu Sonar (Lohokare) 
Kusum Gajanan Pawar
W.P. No. 3794 of 1991
Decided on April 4, 2009.
Citation: 2009 Bom R C486
Read full judgment here:Click here
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