Sections 409, 418, 423 and 425 read with Section 120-B of the IPC - whether Criminal Case No. 0800009/SW/08, pending in the Court of Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Mumbai, is liable to be quashed or not?= we are of the considered opinion that there was suppression of facts by both the Banks and the State Bank of Travancore was duty bound to inform the respondent-Company about the Assignment dated 29.03.2006. As regards the appellants herein, appellant No.1 herein has claimed to have joined the State Bank of Travancore on 11.05.2006 i.e. subsequent to the assignment deed dated 29.03.2006 whereas appellant No.2 was the signatory to the said deed.There is no denying the fact that both the appellants were responsible for day to day functioning of the State Bank of Travancore. Furthermore, admittedly, appellant No.1 was in employment of the State Bank of Travancore at the time of the execution of the deed of assignment and the appellant No.2 was the signatory to it. On a bare perusal of the complaint, it creates an iota of doubt as to why the respondent-Company was kept in dark by the State Bank of Travancore at the time of alleged Assignment Deed dated 29.03.2006However, from the admitted position, it is evident that the complainant-respondent Company in its wisdom had withdrawn the complaint against the two persons, who were the officers of the Kotak Mahindra Bank Ltd. from a common complaint made against four persons. However, we do not find any reason as to why the remaining two persons, being the present appellants, who were the officers of the State Bank of Travancore at the relevant time, are being prosecuted. Hence, the complaint against the present appellants does not survive and in the interest of justice the same is liable to quashed and is accordingly quashed.

                                      REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 2285 OF 2011



K. Sitaram & Anr.                                  .... Appellant(s)

            Versus

CFL Capital Financial Service Ltd. & Anr.         .... Respondent(s)















                         J U D G M E N T


R.K. Agrawal, J.
1)    This appeal has been  filed  against  the  judgment  and  order  dated
07.01.2011 passed by the High Court of  Judicature  at  Bombay  in  Criminal
Writ Petition No. 1279 of 2010 whereby learned  single  Judge  of  the  High
Court dismissed the writ petition filed by the appellants herein.
2)    Brief facts:
(a)   The complainant-respondent Company borrowed a sum  of  Rs.  900  lakhs
comprising Rs. 180 lakhs through cash credits from the consortium  of  Banks
(of which the State Bank of Travancore was the lead bank) and a sum  of  Rs.
720 lakhs being working capital demand Loan.   Due  to  non-payment  of  the
loan amount, the account became Non-Performing Asset.  In order  to  recover
the amount against the borrower, the State Bank of Travancore filed  OA  No.
96 of 2003 before the Debts Recovery Tribunal (DRT), Mumbai. On  22.07.2005,
the DRT passed a partial decree awarding a sum of Rs. 812.26 lakhs  with  12
per cent interest.
(b)   On 29.03.2006, the State Bank of Travancore  assigned  the  debts  due
from the complainant-Company to the Kotak Mahindra Bank  together  with  all
the securities through an Assignment Deed.  On 11.01.2007, the  borrower-the
respondent Company assigned to Kotak Mahindra Bank the debt due  towards  it
from one Ravishankar Industries Pvt. Ltd. of more than Rs.  32  crores  with
an agreement that any excess recovery over  and  above  Rs.  90  lakhs  from
Ravishankar Industries Pvt. Ltd. would be shared equally between  the  Kotak
Mahindra Bank and the complainant-Company. It is pertinent to  mention  here
that the fact of the alleged Assignment Deed  came  to  the  notice  of  the
complainant-Company only on 17.01.2007 when the Kotak Mahindra  Bank  handed
over a copy of the application  for  substituting  themselves  in  place  of
State Bank of Travancore to the respondent-Company.
(c)   The Kotak Mahindra Bank initiated process for  substituting  its  name
in  place  of  the  assignor-State  Bank  of  Travancore  in  the   recovery
application  and  also  withdraws  two  criminal  complaints  filed  by  the
respondent-Company against Ravishankar  Industries  Pvt.  Ltd.  without  any
information to the respondent-Company.  On 28.04.2007,  the  Kotak  Mahindra
Bank moved an application before the Recovery  Officer-I  for  appropriating
Rs. 67.5 lakhs due towards the complainant-Company, being  50  per  cent  of
the amount of Rs. 135 lakhs received in excess of  Rs.  90  lakhs  from  the
Ravishankar Industries Pvt. Ltd., against the claim towards the  State  Bank
of Travancore.
(d)  On 16.05.2007, the complainant-respondent  Company  filed  a  complaint
against the Kotak Mahindra Bank and its officers being No.  18/SW/07  before
the Metropolitan Magistrate, Bandra, Mumbai under Sections  409,  418,  read
with 120-B of the  Indian  Penal  Code,  1860  (in  short  ‘the  IPC’).   On
25.06.2007, the Additional Chief  Metropolitan  Magistrate,  Bandra,  Mumbai
issued process against all the accused in the  complaint  dated  16.05.2007.
The accused therein preferred  Criminal  Revision  Applications  being  Nos.
1024-1026 of 2007 before the Court of Sessions for Greater Bombay.   Learned
Additional Sessions Judge,  vide  order  dated  03/05.04.2008,  allowed  the
revision applications while setting aside the  order  of  issue  of  process
dated 25.06.2007.
(e)    A  fresh  complaint  being  No.  0800009/SW/08  was  filed   by   the
complainant-the respondent Company before the Additional Chief  Metropolitan
Magistrate, 8th Court, Esplanade, Mumbai under Sections 409,  418,  423  and
425  read  with  Section  120-B  of  the  IPC  against  the  State  Bank  of
Travancore, Kotak Mahindra Bank Limited and its officers.  The  Metropolitan
Magistrate, I/C  ACMM,  8th  Court,  Esplanade,  Mumbai,  vide  order  dated
25.01.2008, issued process  against  the  officers  of  the  State  Bank  of
Travancore  and  Kotak  Mahindra  Bank  Limited.   On  11.05.2008,   learned
Magistrate excluded the officers of the Kotak Mahindra Bank Limited in  view
of an application filed by the respondent-Company to withdraw the  complaint
against them.
(f)   Being aggrieved, the  appellants  herein  preferred  a  Criminal  Writ
Petition being No. 1279 of  2010  before  the  High  Court.  On  07.01.2011,
learned single Judge of the High Court, dismissed the  writ  petition  filed
by the appellants herein for setting aside the order of issue of process  by
learned Magistrate dated 25.01.2008 against the appellants.
(g)    Aggrieved  by  the  order  dated  07.01.2011,  the  appellants   have
preferred this appeal by way of special leave.
3)    Heard the arguments advanced by Mr. T.R. Andhyarujina, learned  senior
counsel for the appellants and Mr. Aniruddha P. Mayee, learned  counsel  for
the State and perused the records.
Point for consideration:
4)    The  only  point  for  consideration  before  this  Court  is  whether
Criminal Case No. 0800009/SW/08, pending in the Court  of  Additional  Chief
Metropolitan Magistrate, 8th Court,  Esplanade,  Mumbai,  is  liable  to  be
quashed or not?
Rival contentions:
5)    Learned senior counsel for the appellants  vehemently  contended  that
the appellants were not the employees of the State Bank of  Travancore  when
the alleged Deed of Assignment was entered into between the  State  Bank  of
Travancore and the Kotak Mahindra Bank.  He further contended that the  Deed
of Assignment dated 29.03.2006 is a valid  and  equitable  assignment.   The
decision in  respect  of  execution  of  the  assignment  is  taken  by  the
Executive Committee of the State Bank of Travancore and the same is not  the
individual decision  of  the  appellants  herein.   Learned  senior  counsel
further contended that since the State Bank of Travancore had  no  knowledge
about  the  transactions  between  the  respondent-Company  and  the   Kotak
Mahindra Bank, the State Bank of Travancore  cannot  be  said  to  have  any
intention to defraud anyone.  There is no wrongful gain  to  the  appellants
or the State Bank of Travancore  and  the  accusation  that  they  acted  in
collusion and connivance with the officers of the  Kotak  Mahindra  Bank  to
commit the criminal  breach  of  trust,  cheating  and  dishonest/fraudulent
execution of deeds of transfer is baseless.  He further  submitted  that  as
the complainant-respondent Company had withdrawn the complaint  against  the
co-accused, i.e.,  the  officers  of  the  Kotak  Mahindra  Bank  Ltd.,  the
complaint made against the appellants herein cannot proceed  and  is  liable
to  be  quashed  as  the  allegations  against  them  are  also  same.   The
complainant-respondent Company cannot be allowed to blow  hot  and  cold  in
the  same  breath.   Learned  senior  counsel  for  the  appellants  finally
contended that the appellants are in no way related to the said  transaction
and the complaint also has not specifically  set  out  any  offence  against
them.
6)    On the other hand, learned counsel for the State  submitted  that  the
appellant No. 1 herein was the  Managing  Director  of  the  State  Bank  of
Travancore at the relevant time and was responsible  for  the  business  and
day to day affairs of the Bank.  Similarly, appellant No. 2 herein  was  the
Deputy General Manager and Principal Officer, who  had  signed  the  alleged
Assignment Deed dated 29.03.2006 on behalf of the State Bank of  Travancore.
He further submitted that in such a scenario, the appellants  herein,  being
the principal perpetrators, actively connived and colluded  with  the  Kotak
Mahindra Bank and its officers  with  a  common  intention  to  deceive  the
respondent-Company  in  order  to  make  wrongful  gains.   Learned  counsel
further submitted that the active collusion and conspiracy between both  the
Banks hatched together deliberately with a view to deceive  the  respondent-
Company is also evident from the fact that in the  alleged  assignment  deed
dated 29.03.2006, there was  a  clear  undertaking  under  Clause  2.3  that
simultaneously with the execution of  the  said  deed,  the  State  Bank  of
Travancore must send a notice addressed  to  the  respondent-Company  herein
informing it of the assignment  of  the  alleged  debts  and  the  financial
instruments to the Kotak Mahindra Bank.
7)    Learned counsel for the State further submitted that  the  State  Bank
of Travancore was duty bound to protect  the  interest  of  the  respondent-
Company as the Bank was entrusted with certain properties of the respondent-
Company.   By  entering  into  such  alleged  assignment   with   deliberate
suppression and concealment of material facts with dishonest intention,  the
appellants herein, who were responsible for the day to day  affairs  of  the
Bank, have committed the offence of criminal breach of trust  and  cheating.
Learned counsel for  the  State  finally  submitted  that  the  order  dated
25.01.2008 passed by the Metropolitan Magistrate for  issue  of  process  as
well as the order dated 07.01.2011, passed by the learned  single  Judge  of
the High Court, dismissing the writ petition filed by the appellants  herein
for setting aside the order of issue of  process  dated  25.01.2008  against
the appellants are justified and do not call for any interference.
Discussion:
8)    The present appeal has been filed for quashing of  Criminal  Case  No.
0800009/SW/08  pending  in  the  Court  of  Additional  Chief   Metropolitan
Magistrate, 8th Court, Esplanade, Mumbai and for  setting  aside  the  order
dated 25th January 2008,  by  which  process  was  issued  against  all  the
persons accused in the complaint.  Appellant No. 1  herein  was  working  as
Managing Director with the State Bank of Travancore during the  period  11th
May 2006 to 30th June 2007.  Appellant No. 2 herein worked with the Bank  as
the Deputy General Manager during the period from January 2005  to  November
2006.
9)    The respondent-Company filed a complaint alleging  offence  punishable
under Sections 409, 418, 423 and 425 read with  Section  120-B  of  the  IPC
against the appellants herein.  The Bank had  in  December  1995  sanctioned
loan of Rs. 180 lakhs by way of cash credit facility and Rs.  720  lakhs  by
way of working capital demand loan, totaling to  Rs.  900/-  lakhs  and  the
complainant-Company executed various documents in favour of  the  Bank.   As
the respondent-Company was unable to pay its dues to the Bank, the Bank  had
filed recovery proceedings before the Tribunal wherein a partial decree  for
a sum of Rs.812.26 lakhs had been passed.
10)   In  the  said  proceedings,  Kotak  Mahindra  Bank  Limited  filed  an
application for substituting its name in place of State Bank  of  Travancore
claiming all the dues and charge on the immovable  properties  mortgaged  in
favour  of  State  Bank  of  Travancore  vide  an  Assignment   Deed   dated
29.03.2006.  The respondent-Company claimed that no notice  of  the  alleged
assignment dated 29.03.2006 had  been  given  to  it.   On  11.01.2007,  the
respondent–Company  entered  into  a  Deed  of  Assignment  with  the  Kotak
Mahindra Bank Limited, wherein all the dues of Ravishankar  Industries  Pvt.
Ltd. of more than Rs. 32 crores were assigned to the  Kotak  Mahindra  Bank.
Under the agreement, it was agreed that any amount received over  and  above
Rs.  90  lakhs  from  the  Company  would  be  shared  equally  between  the
respondent–Company  and  Kotak  Mahindra  Bank.   The  Kotak  Mahindra  Bank
withdrew the proceedings filed by the respondent–Company under  Section  138
of the Negotiable Instruments Act against the  Ravishankar  Industries  Pvt.
Ltd and also  settled  an  amount  of  Rs.  225  lakhs  without  giving  any
information to it as to the terms of settlement and  the  mode  of  payment.
It is the  allegation  of  the  complainant  that  if  the  complainant  was
informed about the alleged Assignment Deed dated 29.03.2006,  it  would  not
have entered into the assignment agreement  on  11.01.2007  with  the  Kotak
Mahindra  Bank.  It  is  alleged  that  the   suppression   of   facts   and
surreptitious execution of the  deed  of  assignment  dated  29.03.2006  was
deliberately done with a dishonest  intention  to  induce  the  complainant-
Company and to make wrongful losses and to deceive it.
11)    Learned  senior  counsel  for  the  appellants  contended  that   the
allegations against the appellants in their  personal  capacity  are  vague.
He further contended that Appellant No. 1 herein joined the  State  Bank  of
Travancore on 11.05.2006  i.e.  subsequent  to  the  Assignment  Deed  dated
29.03.2006.   He  was,  however,  admittedly  working  with  the   Bank   on
11.01.2007,  when  the  complainant  Company  entered  into  the   Deed   of
Assignment with the  Kotak  Mahindra  Bank.   As  regards  Appellant  No.  2
herein, though he was signatory to the Deed of Assignment dated  29.03.2006,
he submitted that he was not in service of State Bank of Travancore  on  the
date on which Deed of Assignment dated 11.01.2007, was executed between  the
complainant-Company and the Kotak Mahindra Bank and hence he claims to  have
no connection whatsoever with the offence  alleged.   He  further  contended
that the  IPC  does  not  contain  any  provision  for  attaching  vicarious
liability on the part of the Chairman and General Managers  of  the  Company
when the accused  is  the  Company.   When  the  Company  is  the  offender,
vicarious liability of the directors cannot  be  imputed  automatically,  in
the absence of any statutory provisions to this effect.
12)   In support of his claim, learned  senior  counsel  for  the  appellant
cited a decision of this Court in Maksud Saiyed vs.  State  of  Gujarat  and
Others (2008) 5 SCC 668 wherein it was held as under:-
      “13. Where a jurisdiction is exercised on a complaint  petition  filed
      in terms of Section 156(3) or Section 200  of  the  Code  of  Criminal
      Procedure, the Magistrate is required to apply  his  mind.  The  Penal
      Code does not contain any provision for attaching vicarious  liability
      on the part of the Managing Director or the Directors of  the  Company
      when the accused is the Company. The learned Magistrate failed to pose
      unto himself the correct question viz. as  to  whether  the  complaint
      petition, even if given face value and taken  to  be  correct  in  its
      entirety, would lead to the conclusion  that  the  respondents  herein
      were personally liable for any offence. The Bank is a body  corporate.
      Vicarious liability of the Managing Director and Director would  arise
      provided any provision exists in that behalf in the statute.  Statutes
      indisputably must contain provision fixing such vicarious liabilities.
      Even for the said purpose,  it  is  obligatory  on  the  part  of  the
      complainant to make requisite  allegations  which  would  attract  the
      provisions constituting vicarious liability.”

13)   In support of his claim that the transactions between the  complainant
and the State Bank of Travancore were purely civil in  nature  and  criminal
court has nothing to do with it, learned senior counsel for  the  appellants
further relied upon a decision of this Court  in  Sardar  Trilok  Singh  and
Others vs. Satya Deo Tripathi (1979) 4  SCC  396  wherein  it  was  held  as
under:-

   “5…..The question as to what were the terms of the settlement and whether
   they were duly incorporated in the printed  agreement  or  not  were  all
   questions which could be properly  and  adequately  decided  in  a  civil
   court. Obtaining signature of a person on blank sheet of papers by itself
   is not an offence of forgery or the like. It becomes an offence when  the
   paper is fabricated into a  document  of  the  kind  which  attracts  the
   relevant provisions of the Penal Code making it an offence or when such a
   document is used as a genuine document. Even assuming that the appellants
   either by themselves or in the Company of some others went and seized the
   truck on July 30, 1973 from the house of the respondent  they  could  and
   did claim to have done so in exercise of their bona fide right of seizing
   the  truck  on  the  respondent’s  failure  to  pay  the  third   monthly
   installment in time. It was, therefore, a bona fide civil  dispute  which
   led to the seizure of the truck. On the face of  the  complaint  petition
   itself the highly  exaggerated  version  given  by  the  respondent,  the
   appellants went to his house with a mob armed  with  deadly  weapons  and
   committed the offence of dacoity in taking away the  truck  was  so  very
   unnatural and untrustworthy that it could take  the  matter  out  of  the
   realm of civil dispute. Nobody on the side of the  respondent  was  hurt.
   Even a scratch was not given to anybody.
      6. In our opinion on the facts and in the circumstances of  this  case
   criminal prosecution deserves to be quashed. On behalf of the  respondent
   it was argued that the appellants’ filing a petition in  the  High  Court
   for quashing the proceeding before issuance of the summons was  premature
   and the High Court could not have quashed it. In our opinion the point is
   so wholly without  substance  that  it  has  been  stated  merely  to  be
   rejected. Since the parties during the course  of  the  hearing  in  this
   appeal showed their inclination to settle up and end all  their  disputes
   and quarrels in relation to the matter in question after we indicated our
   view that we are going to allow the appeal and quash the proceedings,  we
   have not thought it  necessary  to  elaborately  give  other  reasons  in
   support of our order”.


14)   Learned senior counsel for the appellants further  relied  upon  Sunil
Bharti Mittal vs.  Central  Bureau  of  Investigation  2015  (1)  SCALE  140
wherein it was held that a corporate entity is an  artificial  person  which
acts through its officers, directors, managing director, chairman  etc.   If
such a Company commits an offence involving mens rea, it would  normally  be
the intent and action of that individual who would  act  on  behalf  of  the
Company.  It would be more so, when the criminal act is that of  conspiracy.
 However, at  the  same  time,  it  is  a  cardinal  principle  of  criminal
jurisprudence that there  is  no  vicarious  liability  unless  the  statute
specifically provides so.
15)   As the appellants herein have challenged the legality of the order  of
issue of process, it would be worthwhile to recapitulate the  law  regarding
issue of process.  The relevant point that arises for consideration at  this
stage is whether the material available is sufficient enough  to  constitute
a prima facie case against the accused.

16)   When a person files a complaint and supports  it  on  oath,  rendering
himself liable to prosecution  and  imprisonment  if  it  is  false,  he  is
entitled  to  be  believed  unless  there  is  some  apparent   reason   for
disbelieving him; and he is entitled to have the persons,  against  whom  he
complains,  brought  before  the  court  and  tried.   The  only   condition
requisite for the issue of process  is  that  the  complainant’s  deposition
must show some sufficient ground for proceeding.  Unless the  Magistrate  is
satisfied that there is sufficient ground for proceeding with the  complaint
or sufficient material to justify the issue of process, he should  not  pass
the order of issue of process.  Where the complainant,  who  instituted  the
prosecution, has no personal  knowledge  of  the  allegations  made  in  the
complaint, the magistrate should satisfy himself upon proper materials  that
a case is made out for the issue of process.  Though under the law,  a  wide
discretion is given to magistrate  with  respect  to  grant  or  refusal  of
process, however, this discretion should be exercised with proper  care  and
caution.

17)   The respondent-Company came to know about the  Assignment  Deed  dated
29.03.2006 only  on  17.01.2007  when  the  Kotak  Mahindra  Bank  moved  an
application  for  substituting  themselves  in  place  of  State   Bank   of
Travancore on the basis of that alleged document i.e. Assignment Deed  dated
29.03.2006.  It is also pertinent to mention here  that  neither  the  State
Bank of Travancore nor the Kotak  Mahindra  Bank  informed  the  respondent-
Company regarding the alleged Assignment Deed either  before  or  after  the
alleged assignment.   It  is  also  on  record  that  vide  agreement  dated
01.10.1999, the Kotak Mahindra Bank, which was earlier a financial  services
Company, entered into an agreement with the respondent-Company to act as  an
advisor  and  to   provide   necessary   assistance   for   the   successful
restructuring of  the  respondent-Company  and  to  provide  follow  up  and
support services to the complainant-Company in  recovery  from  its  various
defaulters.
18)   Under the above terms and conditions, when  the  Kotak  Mahindra  Bank
was already  in  an  agreement  with  the  respondent-Company  in  order  to
safeguard its interest, the fact of the Assignment Deed  between  the  State
Bank of Travancore and the  Kotal  Mahindra  Bank  with  regard  to  alleged
rights  of  the  State  Bank  of  Travancore  pertaining  to  the  immovable
properties allegedly mortgaged in its favour, must be  communicated  by  the
State Bank of Travancore to the respondent-Company. More  so,  the  fact  of
such assignment deed must also  be  brought  to  the  notice  by  the  Kotak
Mahindra Bank to the respondent-Company when it was responsible  to  provide
necessary assistance to the respondent-Company.
19)   In view of the above, it is pertinent to mention here  Clause  2.3  of
the Assignment Deed dated 29.03.2006, which reads as under:
      “Simultaneously with the execution of this Deed,  the  Assignor  shall
      send a notice addressed by the  Assignor  to  the  clients  and  other
      related persons at their last known addresses informing  them  of  the
      assignments of Debts and the Financial Instruments to the Assignee and
      instructing them to pay all amounts  constituting  the  Debts  to  the
      Assignee and a copy of the said  notice  shall  be  delivered  to  the
      Assignee.”

      It is very much clear from the above that the  Assignment  Deed  dated
29.03.2006 specifically contains one clause which requires that the  clients
and other related persons shall be informed about  the  alleged  Assignment.
But this fact was not brought  to  the  notice  of  the  respondent-Company.
Primarily, it was the duty of the State Bank of  Travancore  to  inform  the
respondent-Company about the said assignment and  secondly,  Kotak  Mahindra
Bank was to inform the same to the respondent-Company.  If the intention  of
the Assignor and the assignee to the Assignment Deed  dated  29.03.2006  was
clear, then why the facts of the same were not  brought  to  the  notice  of
respondent-Company that too when Clause 2.3  of  the  Assignment  Deed  very
clearly states so.
20)   The position becomes more clear from the  fact  that  even  after  the
alleged assignment, in a proceeding before the appellate tribunal,  none  of
the representative of the State  Bank  of  Travancore  mentioned  about  the
factum of such assignment.  The respondent-Company came to  know  about  the
alleged Assignment after a lapse of 9 months i.e.  on  17.01.2007,  when  an
application was moved by the Kotak Mahindra Bank for substituting  its  name
in place of State Bank of Travancore.  In the absence of such knowledge,  on
11.01.2007, the respondent-Company entered into a deed  of  Assignment  with
the Kotak  Mahindra  Bank  wherein  all  the  dues  of  a  defaulter,  viz.,
Ravishankar Industries Pvt. Ltd., of more than Rs. 32 crores  were  assigned
to the Kotak Mahindra Bank. The Kotak Mahindra Bank was under an  obligation
to inform the respondent-Company about the  earlier  Assignment  Deed  which
was not done.  More so, the Kotak Mahindra Bank received a sum  of  Rs.  225
lakhs in March 2007  from  Ravishankar  Industries  Pvt.  Ltd.  but  without
giving any information as to  the  terms  of  settlement  and  the  mode  of
payment to the complainant-Company, approached the  Recovery  Officer-I  for
appropriating the same.
21)   With regard to the  contention  of  learned  senior  counsel  for  the
appellants herein that there can be no  vicarious  liability  attributed  to
the Director, Deputy Director of a Company unless the  Statute  specifically
creates so, no doubt, a corporate entity is an artificial person which  acts
through its officers, Directors, Managing Director, Chairman, etc.  If  such
a company commits an offence involving mens rea, it would  normally  be  the
intent and action of that individual who would act on behalf of the  company
that too when the criminal act is that of conspiracy.  Thus,  an  individual
who has perpetrated the commission of an offence on behalf  of  the  company
can be made an accused, along with  the  company,  if  there  is  sufficient
evidence of his active role coupled with criminal intent.  Second  situation
in which an individual can  be  implicated  is  in  those  cases  where  the
statutory regime itself attracts the doctrine  of  vicarious  liability,  by
specifically invoking such a provision.
22)   In view of the above, we are of the considered opinion that there  was
suppression of facts by both the Banks and the State Bank of Travancore  was
duty bound to inform  the  respondent-Company  about  the  Assignment  dated
29.03.2006.  As regards the appellants herein,  appellant  No.1  herein  has
claimed to have joined the State  Bank  of  Travancore  on  11.05.2006  i.e.
subsequent to the assignment deed dated 29.03.2006  whereas  appellant  No.2
was the signatory to the said deed.
23)    There  is  no  denying  the  fact  that  both  the  appellants   were
responsible for day to day functioning of  the  State  Bank  of  Travancore.
Furthermore, admittedly, appellant No.1 was in employment of the State  Bank
of Travancore at the time of the execution of the  deed  of  assignment  and
the appellant No.2 was the signatory  to  it.  On  a  bare  perusal  of  the
complaint, it creates an iota of doubt as to why the respondent-Company  was
kept in dark by the  State  Bank  of  Travancore  at  the  time  of  alleged
Assignment Deed dated 29.03.2006
24)    However,  from  the  admitted  position,  it  is  evident  that   the
complainant-respondent Company in its wisdom  had  withdrawn  the  complaint
against the two persons, who were the officers of the  Kotak  Mahindra  Bank
Ltd. from a common complaint made against four persons. However, we  do  not
find any reason as to why the  remaining  two  persons,  being  the  present
appellants, who were the officers of the State Bank  of  Travancore  at  the
relevant time, are  being  prosecuted.  Hence,  the  complaint  against  the
present appellants does not survive and in the interest of justice the  same
is liable to quashed and is accordingly quashed.


25)   In view of the above discussion, the appeal succeeds and  is  allowed.
However, there shall be no order as to costs.





                            ………….………………………J.


                                 (R.K. AGRAWAL)








                            .…....……..………………………………J.


                             (ADARSH KUMAR GOEL)


NEW DELHI;
MARCH 21, 2017.

rejecting the prayer of the appellant/plaintiff/decree-holder (for short, hereinafter to be referred to as “the appellant”) to eschew evidence of the respondent/defendant/judgment-debtor (for short, hereinafter to be referred to as “the respondent”) in a proceeding under Section 47 of the Code of Civil Procedure, 1908 (as amended) (hereinafter to be referred to as “CPC/Code”), as well as to dismiss such application as not maintainable.= Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric . This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: “A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.”- the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. None of the above eventualities as recognised in law for rendering a decree inexecutable, exists in the case in hand. For obvious reasons, we do not wish to burden this adjudication by multiplying the decisions favouring the same view.- Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected. 24. On a consideration of all relevant aspects in the entirety, we are thus disinclined to sustain the impugned orders and hereby set-aside the same. The appeals are allowed. The Executing Court would proceed with the execution proceedings and take it to the logical end with utmost expedition. No costs.

                                                                  REPORTABLE

                             IN THE SUPREME COURT OF INDIA

                             CIVIL APPELLATE JURISDICTION

                    CIVIL  APPEAL NOS.  4313-4314   OF 2017
             (ARISING OUT OF S.L.P (C) NOS.20745-20746 OF 2016)


M/S. BRAKEWEL AUTOMOTIVE COMPONENTS
(INDIA) PVT. LTD.                                        .…APPELLANT


                                   VERSUS

P.R. SELVAM ALAGAPPAN                         ....RESPONDENT

                              J U D G  M E  N T

AMITAVA ROY,J.

            Leave granted.
2.    The subject  matter  of  impeachment   is  the  order  dated  3.6.2016
rendered in CRP (NPD)  1499 of 2016 and CMP No. 8225 of  2016  by  the  High
Court of  Judicature  at  Madras,  thereby   rejecting  the  prayer  of  the
appellant/plaintiff/decree-holder (for short, hereinafter to be referred  to
as     “the     appellant”)     to      eschew      evidence     of      the
respondent/defendant/judgment-debtor (for short, hereinafter to be  referred
to as “the respondent”)  in a proceeding under Section 47  of  the  Code  of
Civil Procedure, 1908  (as  amended)  (hereinafter  to  be  referred  to  as
“CPC/Code”),  as well as to dismiss such application  as  not  maintainable.
By the order impugned,  the High Court has affirmed  the determination  made
to the same effect  by the Executing Court.
3.    We have heard Mr. J.S. Bakshi, learned counsel for the  appellant  and
Mr. M.P. Parthiban, learned counsel for the respondent.
4.    The genesis of the present lis  is traceable to  Civil Suit  (OS)  No.
1690 of 2010 instituted before the High Court of Delhi at New Delhi  by  the
appellant  against  the  respondent  arrayed   as  the  proprietor  of  M/s.
Kargaappa  Auto Products and M/s Paans Auto Products for  recovery  of   Rs.
20,94,953/- arising from business transactions between  the  parties.  While
the appellant  described  itself  to  be  a  company  registered  under  the
Companies Act, 1956 and engaged in the business of manufacture  and sale  of
auto components/parts,  the  respondent  was  introduced as  the  proprietor
of the afore-named proprietorship firms. According to  the  appellant,   the
respondent approached it  in the month of  November,  2002  for  a  business
deal and on the basis  of  the  bargain  entered  into,   it  supplied  auto
components  and  parts  to   the  respondent,  as  per  the   specifications
mentioned  and raised bills in connection therewith.
5.    As per the books of  account  maintained  in  the  regular  course  of
business, at the relevant time i.e. 15.10.2007, Rs. 8,01,708/-  was due  and
outstanding  against the respondent in the accounts of M/s.  Kargaappa  Auto
Products and Rs. 4,93,952/- as on 6.6.2008,   in the account of  M/s.  Paans
Auto  Products, thus totalling Rs. 12,95,660/-.   As  this  amount  was  not
paid  inspite  of  repeated  demands,  and   the   ultimate   notice   dated
28.12.2009, addressed by the appellant  to  the  respondent,  the  suit  was
filed for realisation  of  the aforementioned amount together with  interest
@ 24% p.a. for an aggregate sum of Rs. 20, 94,953/-.
6.    Though on the receipt of the summons  in  the  suit,   the  respondent
arranged for his representation, he eventually failed to submit his  written
statement and accordingly, his defence was  struck  off  vide   order  dated
20.10.2011, in view of his persistent default to that  effect.    Subsequent
thereto,  the appellant filed  the affidavit of  one  of  its  directors  in
endorsement  of  its pleaded case, who proved, amongst  others,  the  copies
of various invoices authenticating the supply of  goods  to  the  respondent
and also the statement of accounts pertaining thereto.    This  witness  too
was not cross-examined on behalf of the respondent, though  opportunity  was
granted and eventually the Trial Court, on a consideration of  materials  on
record, decreed the suit for Rs. 18,95,077/- by allowing the interest @  18%
p.a. in lieu of 24%, as claimed.
7.          As the records would reveal,  a defective appeal was filed    on
behalf of the respondent  thereafter only to be  withdrawn  in  due  course.
The appellant launched the  execution  and  the  application  in  connection
thereto was   registered as E.P. No. 11787 of 2014  to  execute  the  decree
as aforementioned.   It was thereafter that  an application for  review  was
filed by the respondent    before the  High  Court  seeking  to  recall  the
judgment and order dated 16.12.2011.  It was pleaded by the respondent  that
the suit was  not maintainable  on  account  of  non-joinder/mis-joinder  of
proper and necessary parties.  Though  he  had  admitted  that  he  was  the
proprietor of Paans Auto products, he asserted that  he was not so  of  M/s.
Kargaappa Auto Products and that instead his wife Mrs. A. Kamalla  being  so
was the proper and necessary party and that in  view  of  this  defect,  the
suit was liable to be dismissed.  He also pointed  out  that   the  name  of
this firm  is M/s. Karpaga   Auto  Products  and  not  M/s.  Kargaappa  Auto
Products, as recited in the plaint.   The respondent alleged fraud  as  well
 and contended that  the appellant was guilty  of  suppression  of  material
facts of rejection of its goods.  Further,  he also  alleged  collusion  and
connivance  between his counsel  and the  appellant  for  which  the  former
deliberately  abstained from taking necessary steps to ensure his  effective
representation in the suit,  thus resulting in the ex-parte decree.
8.    He pleaded that on  receiving  the  summons  in  the  suit,  necessary
instructions  were  conveyed  to  his  counsel  at  Delhi  to  appropriately
contest  the proceeding,  but  the latter   refrained  from   either  filing
the written statement or from  taking  necessary  steps   resulting  in  his
default for which ultimately, the  suit  was  decreed.   According  to  him,
though  he was  in touch with his counsel at Delhi through  his  counterpart
at Chennai,  he was being  given the impression that there was  no  progress
in the suit and that  he  would  be  duly  informed  about  any  substantial
development  therein  whenever  the  same  would  occur.   The    respondent
contended that it was in  February/March,  2014,  when   he  and  his  local
counsel  grew suspicious of the evasive replies  given  by  his  counsel  at
Delhi, that  the records of the suit were  consulted,  which  revealed  that
his defence had been  struck  off  on  20.10.2011  and  the  suit  had  been
decreed on 16.12.2011.   The records of the suit also divulged  that  though
an opportunity to him for cross-examination of the  witnesses  by  appellant
had been afforded, it was not availed of due to  the  sheer  dereliction  of
the professional  duties of his counsel.
9.          Noticeably, the respondent in his review application   disclosed
 that  his said counsel however did prefer an appeal  against  the  ex-parte
decree, which eventually was returned  in view  of  the  attendant  defects.
The appeal  was  however  not  re-filed  and   that  in  the  meanwhile,   a
complaint had been lodged against the counsel with the Bar Council of  Tamil
Nadu at Channai, was mentioned as well.
10.         It is worthwhile to note that  no  interim order was  passed  on
this review application, which eventually was  dismissed   on  15.4.2015  on
account of unexplained delay of three years.
11.         Meanwhile, however the  respondent filed  his  counter-affidavit
in the execution proceedings and also followed it  up  with  an  application
under Section 47 of CPC to resist the  execution of  the  decree.    Suffice
it would be to state  that   the  demurrals   in  these  pleadings   are  in
substance a replication of those narrated in  the  review  application  and,
therefore  are not being re-traversed.
12.          In  refutation,  the  appellant  did  file  a  common  counter-
affidavit asserting that  the respondent had  placed orders  for  automobile
components, which were accordingly dispatched and as  on  the  date  of  the
institution of  the  suit,  the   payments   in  connection  therewith  were
outstanding, a  suit was filed to recover the same and  eventually,  it  was
decreed on 16.12.2011 for a sum of  Rs.   18,95,077/-  along  with  pendente
lite and future interest @ 18%  p.a.   Apart  from  highlighting   that  the
respondent had  after the  receipt  of  the  summons/notices  in  the  suit,
continuously abstained himself  from  contesting  the  same  by  filing  his
written statement or taking further  initiatives  and  that,  therefore  the
decree passed was valid in law, the appellant  maintained that the suit  had
been filed against the respondent, as he represented both the firms and  had
  participated in the transactions in that capacity for  which   either  the
mistake in the name of M/s. Kargaappa Auto Products instead of  M/s  Karpaga
Auto Products or  non-impleadment of  his  wife  as  the  sole  proprietress
thereof was wholly inconsequential qua the aspect of  executability  of  the
decree.  The allegation of suppression of any material fact, as alleged  was
denied. The accusation of collusion   between the learned  counsel  for  the
respondent and the appellant was  stoutly denied as well.   It  was  pointed
out that  the fact of  filing of   appeal  preferred  by  the  same  counsel
against the  decree  belied  the   allegation  of  dereliction  of  duty  as
unfounded.   Underlining the inexplicable delay and inaction of three  years
on the part of  the  respondent  in  filing  the  review  petition,  it  was
contended that  the resistance to the executing proceedings was  only   with
the  objective  of  protracting the proceedings to his advantage  on  flimsy
and frivolous grounds.
13.         The respondent next  filed an affidavit on  the  same  lines  as
narrated in his counter and the application under Section 47 CPC and  sought
to supplement the same by producing documents  to  that  effect  by  way  of
oral and documentary  testimony of the pleaded  facts.   The   appellant  in
its rejoinder did object to this initiative on the part  of  the  respondent
as impermissible, being beyond the purview of Section 47 CPC and prayed  for
obliteration  of such evidence.   The  appellant   pleaded  that  after  the
counter-affidavit  had been  filed   by  the  respondent  in  the  execution
proceedings, arguments on  behalf  of  the  decree-holder  were  heard   and
though the proceedings were deferred  for the arguments  on  behalf  of  the
respondent, an application by him  under  Section  47  CPC  was  filed,  the
maintainability whereof was questioned  by the appellant  and  that  it  was
at that  belated  stage  that   the  respondent  sought  to  introduce   the
documentary evidence.
14.         The  Executing  Court  however  by  its  order  dated  8.2.2016,
dismissed the objection of the appellant by taking note principally of   the
fact that the respondent was not the proprietor  of  Karpaga  Auto  Products
and that  it was necessary to examine as to how  he was related to the  said
 proprietorship firm, a question  to be decided  in  the  proceedings  under
Section 47 CPC.
15.         By the  impugned  order,   the  High  Court  has  affirmed  this
determination of the Executing Court by observing  that  though  the   issue
of maintainability of the application under Section 47 CPC had  been  raised
by the appellant, it was  within  the  right   of  the  respondent  to  lead
evidence, both oral and documentary  pertaining  to  all  questions  arising
between the parties to the suit.   It was of the view that the  question  of
maintainability of the application under Section 47 CPC ought to be  decided
along with the objections raised with regard to  the  executability  of  the
decree.
16.         Learned counsel for the appellant, in the  above  backdrop,  has
argued  that the impugned order  is clearly  unsustainable  in  law  and  on
facts having regard to  the established contours of scrutiny  under  Section
47 CPC and is thus  indefensible.   Not  only  the   grounds  urged  in  the
counter-affidavit to  the  execution  petition  and  the  application  under
Section 47 CPC do have any factual foundation and  are  thus   non-existent,
these are  liable  to  be  rejected  in  limini   and  do  not  warrant  any
verification thereof.  Not only are these  objections frivolous on the  face
of record,  these have been resorted to only for protracting  the  execution
proceedings.  He urged  that  the impugned order  has the effect  of   going
behind and reopening the decree, which is impermissible in law.    According
to him,  neither the  decree suffers from any jurisdictional error nor is  a
nullity and is thus executable in law.


17.         In reply, the learned counsel for the respondent   has  insisted
that in the  teeth  of   incorrect  name  of  one  of  the  firms  and  non-
representation thereof by its rightful  proprietor,   the  decree  which  is
composite in nature, has been rendered inexecutable. He further argued  that
as the decree is an  yield  of  fraud  and  collusion  between  the  learned
counsel for the respondent and the appellant,  it is  non  est  in  law  and
thus the impugned order which only permits an inquiry in these aspects,   is
well within the purview of Section  47  CPC  and  therefor  no  interference
therewith is called for.
18.         The materials on record and the  arguments  based  thereon  have
received our due consideration.   To  recapitulate,   the  plaint  discloses
that the respondent  had represented before the  appellant to be  authorised
 to act on behalf of both the firms and in that  capacity  had  participated
in the transactions that  followed.   In  that  perspective,  even  assuming
that the name of  one of the firms was wrongly  mentioned and that in  fact,
 it is the wife of the respondent, who is the  proprietress   thereof,  with
whom there is no conflict of interest, these in our  comprehension  per  se,
would not render the decree void or  inexecutable.   Such  errors,  even  if
exist,  would not  infest the decree with any  jurisdictional  infirmity  or
reduce it to a nullity.   Noticeably, there is no  dispute  with  regard  to
the  identity  of  the  firms  involved  and  their  representation  by  the
respondent in the suit transactions. The allegation of fraud  and  collusion
between the learned  counsel  for  the  respondent   and  the  appellant  is
visibly self-serving,  omnibus, speculative  and  unauthentic    and  cannot
therefore, after so many years, ipso facto  render the  decree   invalid  on
account thereof.  Visibly, the respondent had been the center figure in  all
the transactions between the parties on  behalf   of  the  firms,  as  stand
proved in the suit and the resistance to the  execution  of  the  decree  is
neither on  behalf  of   M/s.  Kargaappa  Auto  Products/M/s.  Karpaga  Auto
Products   nor its proprietress, his wife  contending  that  the  decree  is
neither binding on the firm nor on her.   For all  practical  purposes,  the
said firm is still being represented by the  respondent  in  the  subsisting
proceedings.  The sequence  of  events  disclose  that  the  suit  had  been
instituted in the year 2010 and was decreed on  16.10.2011.  The  persistent
default on the part of the respondent  has  been  adverted  to  hereinabove.
Though a defective appeal had been filed on his behalf in the year 2012,  it
was withdrawn and  was not  re-filed  by  removing   the  defects.       The
Execution Petition though lodged in the year 2014 has not seen the fruit  of
the decree as on date. The Review Petition filed by the respondent has  also
been dismissed. Significantly,  in all  the  proceedings  initiated  by  the
respondent  to stall the execution of the decree,  the same pleas have  been
reiterated.
19.         It is no  longer  res  integra  that  an  Executing   Court  can
neither  travel behind the decree nor sit in appeal over the same  or   pass
any order  jeopardizing the rights of the parties thereunder. It is only  in
the limited  cases  where  the   decree  is  by  a  court  lacking  inherent
jurisdiction  or is a nullity that the same is rendered non est and is  thus
inexecutable. An erroneous decree cannot  be  equaled  with one which  is  a
nullity.  There are no intervening developments  as well as  to  render  the
decree  inexecutable.
20.         As it is,  Section 47 of the Code mandates  determination by  an
  executing  court,   questions  arising  between  the  parties   or   their
representatives  relating to the execution,  discharge  or  satisfaction  of
the decree and does not contemplate   any  adjudication   beyond  the  same.
A decree of court of law being sacrosanct  in nature, the execution  thereof
 ought not to  be   thwarted   on  mere  asking    and  on   untenable   and
purported  grounds  having no bearing  on the validity or the  executability
thereof.

21.   Judicial precedents to the  effect   that   the  purview  of  scrutiny
under Section 47 of the Code  qua a decree  is  limited  to  objections   to
its executability  on the ground of jurisdictional  infirmity   or  voidness
are plethoric . This Court, amongst others in Vasudev  Dhanjibhai  Modi  vs.
Rajabhai Abdul Rehman and others  1971 (1) SCR  66   in  essence  enunciated
that  only a decree  which is a  nullity   can  be  the  subject  matter  of
objection   under Section 47 of the Code  and not  one  which  is  erroneous
either in law or on facts.   The  following  extract  from   this   decision
seems apt:
“A Court executing a decree  cannot  go  behind   the  decree   between  the
parties  or their representatives; it must take the decree according to  its
tenor, and cannot entertain any objection that the decree was  incorrect  in
law or on facts.  Until it is set aside  by  an  appropriate  proceeding  in
appeal or revision, a decree even  if  it  be  erroneous  is  still  binding
between the parties.

When  a decree which is a nullity, for instance, where it is passed  without
bringing the legal representatives on the record  of a person who  was  dead
at  the  date  of  the  decree,  or  against  a  ruling  prince  without   a
certificate, is sought  to be executed an objection in that  behalf  may  be
raised in a proceeding for execution.  Again, when the decree is made  by  a
Court which has no inherent jurisdiction to make it,  objection  as  to  its
validity may be raised in an execution proceeding  if the objection  appears
on the face of the record: where the objection as  to  the  jurisdiction  of
the Court to pass the decree does not appear on the face of the  record  and
requires examination of the questions raised and decided  at  the  trial  or
which could have been but have not been raised, the  executing  Court   will
have no jurisdiction to entertain an objection as to the  validity   of  the
decree  even on the ground of absence of jurisdiction.”

22.         Though this view has echoed  time  out  of  number   in  similar
pronouncements of this Court, in Dhurandhar Prasad  Singh  vs.  Jai  Prakash
University and others,  AIR 2001 SC 2552, while dwelling  on  the  scope  of
Section 47 of  the  Code,  it  was  ruled  that  the  powers  of  the  court
thereunder  are  quite  different  and   much   narrower   than   those   in
appeal/revision or review.  It was reiterated that  the  exercise  of  power
under Section 47 of the Code is  microscopic  and  lies  in  a  very  narrow
inspection  hole  and  an  executing  court  can  allow  objection  to   the
executabilty of the decree if it is found that the same is  void  ab  initio
and  is a nullity,  apart  from  the  ground  that  it  is  not  capable  of
execution under the law, either because the same was passed in ignorance  of
such  provision  of  law  or  the  law  was  promulgated  making  a   decree
inexecutable  after  its  passing.   None  of  the  above  eventualities  as
recognised in law  for rendering a decree inexecutable, exists in  the  case
in hand. For obvious reasons, we do not wish to burden this adjudication  by
multiplying the decisions favouring the same view.
23.         Having regard  to  the  contextual  facts  and   the  objections
raised by the respondent, we are of the unhesitant opinion   that   no  case
has been made out  to entertain the  remonstrances  against  the  decree  or
the application under Section 47 CPC. Both  the  Executing   Court  and  the
High Court, in our comprehension, have not only erred   in  construing   the
scope and ambit of scrutiny under Section 47 CPC, but have  also  overlooked
the fact that the decree does not  suffer  either  from  any  jurisdictional
error or is otherwise invalid in  law.  The  objections  to  the   execution
petition as well as to the application under Section 47 CPC  filed   by  the
respondent do not either disclose any substantial defence to the  decree  or
testify the same to be  suffering   from  any  jurisdictional  infirmity  or
invalidity.  These are therefore rejected.
24.         On a consideration of all relevant aspects in the entirety,   we
are thus disinclined  to sustain  the impugned orders and  hereby  set-aside
the same.  The appeals are allowed.    The  Executing  Court  would  proceed
with the  execution proceedings  and take it to the logical end with  utmost
expedition.  No costs.



............................................J.
                                                (ARUN                MISHRA)



….........................................J.
                                  (AMITAVA ROY)
      NEW DELHI;
MARCH 21, 2017.

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 = a suit for eviction of a tenant can be maintained by one of the co-owners and it would be no defence to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. ;That a tenant during the continuance of the tenancy is debarred on the doctrine of estoppel from denying the title of his landlord through whom he claims tenancy, as is enshrined in Section 116 of the Indian Evidence Act, 1872, is so well-settled a legal postulation that no decision need be cited to further consolidate the same.; default in payment of rent and sub-letting, both statutorily recognized grounds for eviction of a tenant under Section 20 of the Act, it is considered inessential to dilate on the ground of bona fide requirement and comparative hardship. In the wake up of the above, the impugned judgments and orders of the High Court are set-aside and the suit of the appellants is decreed in full. The respondents would vacate the suit premises at the earliest and in no case later than three months from today. The appeals are allowed. No costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 4309  OF 2017
                 (ARISING OUT OF SLP (C) NO. 17414 of 2015)

OM PRAKASH & ANR.                          …..APPELLANTS

                                   VERSUS

MISHRI LAL (DEAD) REPRESENTED
BY HIS LR.  SAVITRI DEVI                     ....RESPONDENT


                                    WITH

                      CIVIL APPEAL NO. 4310     OF 2017
                 (ARISING OUT OF SLP (C) NO. 20758 of 2015)


RAJENDRA PRASAD & ANR.               …..APPELLANTS

                                   VERSUS

MISHRI LAL (DEAD) REPRESENTED
BY HIS LR. SAVITRI DEVI & ANR.                ..…RESPONDENTS


                               J U D G M E N T

AMITAVA ROY, J.

Delay condoned.

2.    Leave granted.

3.    The appellants/plaintiffs (for short, hereinafter to  be  referred  to
as “the appellants”)  are aggrieved by the dismissal of their suit  and  the
application under the Uttar Pradesh Urban Buildings (Regulation of  Letting,
Rent and Eviction) Act, 1972 (for short, hereinafter to be  referred  to  as
“the Act”) for eviction of the respondents from the  suit  premises  on  the
ground, amongst others of default and bona fide requirement.  The  suit  and
the application filed under Section 21 of the Act  have  been  dismissed  in
two separate proceedings by the High Court vide orders dated  25.02.2014  in
W.P.(C) No. 26732 of 2010 and Civil Miscellaneous Writ Petition No.31855  of
1998.

4.    Both these petitions were  analogously  heard  and  thus  the  present
adjudication would address collectively the issues involved.

5.    We have heard  Mr. Anand Varma, learned  counsel  for  the  appellants
and Mr.  R.D. Upadhyay, learned counsel for the respondents.

6.    The appellants as plaintiffs instituted Suit No. 252 of  1989  in  the
Court of Small Causes, Allahabad against  Mishri  Lal,  the  predecessor-in-
interest of the present respondents  seeking  his  eviction  from  the  suit
premises on the ground of default in payment of rent and sub-letting of  the
suit premises without the knowledge and approval of the landlords  i.e.  the
appellants. The appellants claimed themselves to be the joint owners of  the
suit premises since the death of their grand- mother Chameli Devi, widow  of
late  Mahabir  Prasad  on  30.07.1985.   They  referred  to  a  will   dated
28.12.1976 executed by their afore-named grand-mother in  support  of  their
claim of joint ownership.  They averred that the predecessor-in-interest  of
the respondents was a  tenant  of  the  suit  premises  since  1968  against
payment of monthly rent of Rs. 96/- and the  same  was  rented  out  on  the
clear understanding that the tenant would vacate the  same  on  one  month’s
notice.  The appellants alleged that the  tenant  i.e.  the  predecessor-in-
interest of the respondents paid rent  till  October,  1979  and  thereafter
persistently failed to make payment thereof in spite  of  repeated  demands.
Due to such default, the  relationship  between  the  landlords  and  tenant
became strained,  and as claimed by the appellants, he without offering  the
rent to the landlords, made deposits thereof under Section 30  of  the  Act,
which was invalid and  non  est  in  law.   Situated  thus,  the  appellants
addressed a notice  dated  18.08.1989  terminating  the  tenancy,  demanding
payment of the arrears of rent within the  statutory  period  of  one  month
with the clear indication that in case of failure to respond to  the  notice
and the request for rent, the tenancy would stand determined  and  that  the
tenant would be liable  for  eviction.   According  to  the  appellants  the
notice was served on 26.08.1989, but despite the same,  rent  was  not  paid
and consequently the tenancy stood terminated.

7.   It was further alleged that the tenant also sub-let the  suit  premises
to one Moti Chand for conducting his business therein.  It was thus  averred
that on this ground as  well,  as  the  sub-letting  was  done  without  the
knowledge and consent of the landlords, the tenant was liable for  eviction.
 The suit was thus filed for recovery of arrears of rent,  eviction  of  the
tenant/ defendant and for damages for unauthorised use or occupation of  the
tenanted premises as well as for interest.

8.   The original defendant/tenant in his written statement though  admitted
the tenancy under Smt. Chameli Devi, the grand- mother  of  the  appellants,
he refused to acknowledge the appellants as his landlords.  He claimed  that
the tenancy had commenced from 1957 and that he had  paid  rent  up  to  the
month of September, 1989  to  the  landlord,   Bhola  Nath  (father  of  the
appellants) and that on his refusal to accept the same  thereafter,  he  had
deposited  the  rent  in  court  under  Section  30   of   the   Act.    The
defendant/tenant admitted Smt. Chameli Devi to be the landlady who  used  to
realize the rent till her life time and after her death,   Bhola  Nath,  her
eldest son used to collect the same.  He admitted the receipt of the  notice
dated 18.08.1989, but denied that he was a defaulter in payment of  rent  or
that he was liable for eviction from the suit premises.

9.     According to him,  Motichand  was  his  nephew  and  partner  in  his
business and that as he was like his own son, the allegation of  sub-letting
was unfounded.  Elaborating on the facts preceding the deposit  of  rent  in
Court, the tenant reiterated that after the refusal by Shri  Bhola  Nath  to
accept the rent subsequent to September, 1989, he remitted the rent for  the
month of October and November, 1989 by money order dated 04.12.1989 but  the
same was refused again.  He stated that thereafter, for the second time,  he
dispatched the rent for the months of October, November and  December,  1989
on 26.12.1989 by money order but similarly the same was  refused.  According
to the tenant, he again on 12.01.1990 remitted the rent for  the  months  of
October, 1989 to January, 1990 by money order and as the  same  was  refused
again, he started depositing the rent in  Court,  the  first  deposit  being
vide Misc. Case No.41 of 1990 for the months of October,  1989  to  January,
1990.

10.   He denied the execution of the will dated 28.12.1976 by  Smt.  Chameli
Devi, who had two sons  Bhola Nath and Bacchanlal,  but  admitted  that  the
eldest son Bhola Nath used to realize  rent from him.

11.   Parallelly the appellants also filed an application under  Section  21
of  the  Act  before  the  Prescribed   Authority   against   the   original
defendant/tenant seeking  release of the suit  premises  on  the  ground  of
bona fide and  genuine  need  therefor  to,  amongst  others  conduct  their
business therein.   This application was contested as well by  the  original
defendant by filing his objection questioning the  bona  fide  need  of  the
appellants.

12.    The Trial Court, on the basis of the  pleadings,  framed  issues  and
the parties adduced evidence, both oral and documentary.  The appellants  in
particular examined their father  Bhola Nath as PW2, who admittedly used  to
collect rent from the defendant/tenant till September, 1979, as  claimed  by
them.

13.   The Trial Court decreed the suit, both on the  ground  of  default  in
payment of rent and sub-letting of the  suit  premises.   In  reaching  this
conclusion, it amongst others took note of the testimony of Bhola Nath,  son
of Smt. Chameli Devi, who supported the pleaded case of the  appellants  and
endorsed the factum of execution of will by Smt. Chameli Devi on  the  basis
of which they (appellants) claimed joint ownership  of  the  suit  premises.
It also noticed that  such  joint  ownership  had  not  been  questioned  or
disputed by any quarter.  It also referred to a  compromise  decree  between
the heirs of  Bhola Nath and his brother Bachan Lal,  rendered  in  Original
Case No. 95 of 1986 qua the will, which too authenticated the claim  of  the
appellants of the suit premises.  Noticing the  admission  of  the  original
defendant/tenant of having paid rent to   Bhola  Nath,  the  father  of  the
appellants, the Trial Court negated his challenge to their  claim  of  joint
ownership and their status of landlord vis-a-vis the suit premises.

14.  While upholding the allegation of sub-letting, the Trial Court as  well
held that the deposit of rent made by the  original  defendant  was  not  in
terms of the Act and therefore he was not entitled to  the  protection  from
eviction.  It held the view that though disputed, even if the rent  for  the
months of October, 1989 to January, 1990 had been sent to  Bhola  Nath  vide
money order, it did not amount to offering thereof to  the  appellants,  the
landlords, and thus the deposit in Court was not as mandated by  Section  30
of the Act.  According to the Trial Court,  Bhola Nath was only a  collector
of rent on behalf of the appellants and therefore, offer  thereof  ought  to
have been made to them (appellants) for a valid deposit under Section 30  of
the Act.  The suit was thus decreed  in full, as prayed for.

15.  This  verdict  was  challenged  by  the  original  defendant/tenant  in
revision before the District Judge, Allahabad, who reversed the same on  the
ground that the appellants have not been able to prove that  they  were  the
exclusive landlords owners of the suit premises.

16.   The appellants thereafter  filed  a  writ  petition  before  the  High
Court, which remanded the matter to the Revisional  Court  by  noticing,  in
particular the compromise decree dated 05.04.1989 in Original  Case  No.  95
of 1986, in which  the  joint  ownership  of  the  appellants  in  the  suit
premises had been decreed.

17.   The Revisional Court, on remand,  however  maintained  that  the  will
dated 28.12.1976, on  the  basis  of  which  the  appellants  claimed  joint
ownership had not been proved, as required under Section 63  of  the  Indian
Succession Act, 1925 and Section  68  of  the  Indian  Evidence  Act,  1872.
Besides, it also expressed its reservation with regard to  the  authenticity
and genuineness of this document.  The suit was thus dismissed by  upturning
the decree of the Trial Court.  Consequently, the Revisional Court  did  not
examine the other issues on merits.

18.  By the impugned judgment and order  as  well,  the  High  Court,  while
limiting itself to the aspect of the proof of the will, concurred  with  the
Revisional Court and dismissed the suit  of  the  appellants.  Apropos,  the
proceedings based on the application under Section 21 of  the  Act  for  the
eviction of the original defendant on the ground of bona  fide  requirement,
the High Court, by the impugned verdict, upheld the  rejection  thereof,  as
recorded by the Prescribed Authority by negating their status of that  of  a
landlord.  In reaching this conclusion, the  High  Court  noted  that  Bhola
Nath, the father of the appellants used to collect rent  from  the  original
defendant throughout and that they did not at any point of time claim to  be
the owners/landlords of the suit property, pursuant to the will executed  by
Smt. Chameli Devi.  It also concurred with  the  findings  recorded  by  the
Prescribed Authority and the Appellate Court on the issue of bona fide  need
and comparative hardship.  The High Court was of  the  view  that  the  will
dated 28.12.1976 on the basis of which  the  appellants  had  claimed  joint
ownership was not proved as required in law and thus, the mere  registration
thereof did not either suggest its genuineness or  its  validity  so  as  to
provide the locus standi to them to maintain the application.

19.   The learned counsel for the appellants  has  emphatically  urged  that
the issue of their joint ownership having been settled finally  in  view  of
the compromise decree dated 05.04.1989 rendered in Original Case No.  95  of
1986 and their status  as  the  heirs  of  Smt.  Chameli  Devi  having  been
conclusively  established,  the  suit  filed  for  the   eviction   of   the
predecessor-in-  interest  of  the  respondents   in   that   capacity   was
maintainable, more particularly in the absence  of   any  dispute  of  title
inter se the other legal heirs.  In the  alternative,  it  has  been  argued
that in any view of the matter, the appellants   being  the  sons  of  Bhola
Nath, who admittedly used to collect rent and was a landlord under the  Act,
they were entitled to receive rent qua the suit property from the tenant  as
landlords under the statute and,  therefore  not  only  the  predecessor-in-
interest of the respondents were  estopped  from  denying  their  status  as
such, but had made himself  liable  for  eviction  therefrom  by  persistent
default in payment of rent.  The learned  counsel  for  the  appellants  has
submitted that the High Court in this factual background had  grossly  erred
in dismissing the suit and the application for release of the suit  premises
filed under Section 21 of the Act on the  sole  purported  ground  that  the
will executed by Smt. Chameli Devi  on   28.12.1976  had  not  been  proved.
Additionally, as the appellants have proved that  the  original  tenant  had
continuously defaulted in payment of  rent  and  had  sub-let  the  premises
without the knowledge and approval of the landlords,  the  Trial  Court  was
justified in decreeing the suit for his eviction, he urged.  It was  further
argued that the suit premises being required bone  fide  by  the  appellants
for their genuine need for business, the impugned judgments and  orders,  if
allowed to stand would result in serious miscarriage of justice.

20.    As  against  this,  the  learned  counsel  for  the  respondents  has
maintained that the appellants in the attendant facts and circumstances  are
neither the landlords nor the owners of the suit premises, which is  clearly
borne out by the fact that the rent  therefor  was  initially  collected  by
Smt. Chameli Devi and thereafter, by their father  Bhola  Nath,  during  his
lifetime.  It has been argued that as  Bhola Nath refused to  receive  rent,
it was offered to him and thereafter was deposited in  court  under  Section
30 of the Act and thus the original defendant/tenant  by  no  means  can  be
branded as defaulter.  It was reiterated that  Motichand was the  nephew  of
the original tenant as well as a partner in his business and thus  his  stay
in the suit premises did not amount to  sub-letting  thereof.   The  learned
counsel for the respondents also endorsed the finding of  all the forums  on
the absence of bona fide need or requirement of the appellants of  the  suit
premises.

21.   The competing assertions and the materials on record  have  been  duly
taken note of.   Before  adverting  thereto,  it  would  be  appropriate  to
undertake a brief survey of the relevant provisions of  the  Act,  which  as
the title suggests, is a legislation for regulation of letting and  rent  of
and the eviction of tenants from certain classes of  building,  situated  in
the urban areas and for  matters  connected  there  with.   The  expressions
“tenant” and “landlord” are defined as hereunder:

3(a) “tenant”  in relation to a building, means a person by  whom  its  rent
is payable, and on the tenant's death, his heirs.

3(j) “landlord”, in relation to a building, means a  person   to  whom   its
rent is or if the building were let would be, payable, and includes,  except
in clause (g), the agent or attorney, or such person.


22.   It would be apparent from hereinabove that a “tenant” in  relation  to
a building is a person by whom rent is payable and on his death, his  heirs.
  “Landlord” vis-a-vis a building, as defined, means a person  to  whom  its
rent is or if the building was let, would be  payable  and  or  include  the
agent or attorney of such person.  The  definition  of  “Family”  being  not
relevant in the present context qua the expression “landlord” is  not  being
dilated upon.  In terms of Section 20 of the Act, a suit for eviction  of  a
tenant  for  building  after  the  determination  of  his  tenancy  may   be
instituted on one or more of the grounds as enumerated in  sub-section  (2),
clauses (a) to (g) which includes:



(i) arrears of rent for not less than four months and  failure  to  pay  the
same to the landlord within one month from the date of service upon  him  of
a notice of demand; and



(ii) sub-letting of the suit premises by the tenant in contravention of  the
provisions of Section 25 of the whole or any part of the building.

23.   Sub-section 4 of Section 20 provides that if at the first  hearing  of
the suit, the tenant unconditionally pays or tenders to  the  landlord,  the
entire amount of rent and damages for use and  occupation  of  the  building
due from him (such damages for use and occupation being  calculated  at  the
same rate as rent) together with interest thereon at  the  rate  of  9%  per
annum and  the  landlord’s  cost  of  the  suit  in  respect  thereof  after
deducting therefrom any amount already deposited by the  tenant  under  sub-
section 1 of Section 30, the court may in  lieu  of  passing  a  decree  for
eviction, pass an order relieving  the  tenant  against  his  liability  for
eviction, on that ground.  The proviso thereto being not of any  consequence
in the present case is not being referred to.

24.   Section 21 authorises the Prescribed Authority to order  the  eviction
of a tenant from the building under tenancy or any specified  part  thereof,
if it is satisfied, on an application by the landlord, that, amongst  others
the building is bona fide required either in  its  existing  form  or  after
demolition and raising of new construction by the  landlord  for  occupation
by himself or any member of its family or any person for  whose  benefit  it
is held by him, either for residential  purposes  or  for  purposes  of  any
profession, trade or calling or  if the landlord is a trustee  of  a  public
charitable trust, for the objects of the trust.

25.    Sub-section  4  clarifies  that   such   an   order   may   be   made
notwithstanding that the tenancy has not been determined with the  exception
that no such order would be made in the case of tenancy created for a  fixed
term by registered lease, before the expiry of such term.

26.   Section 30 of the Act permits deposit of  rent  in  court  in  certain
circumstances.  It predicates that if any person claiming to be a tenant  of
a building tenders any amount as rent in respect  of  the  building  to  its
alleged landlord and the alleged landlord refuses to accept the  same,  then
the tenant may deposit such amount in the prescribed manner and continue  to
deposit any rent which he alleges to be due for  any  subsequent  period  in
respect of such building until the landlord in  the  meantime  signifies  by
notice in writing to the tenant, his willingness to accept it.   Sub-section
2 elaborates that where any bona fide doubt or dispute has arisen as to  the
person who is entitled to receive any rent in respect of any  building,  the
tenant may likewise deposit the rent stating the circumstances  under  which
such deposit is made and may until such doubt  has  been  removed  or   such
dispute has been settled by the  decision  of  any  competent  court  or  by
settlement between the parties,  continue  to  deposit  the  rent  that  may
subsequently become due in respect of such building.

27.    Whereas sub-sections (4) and (5) provide for issuance  of  notice  of
the deposit to the alleged landlord or the  person/persons  concerned,  sub-
section (6) mandates that in respect of such a deposit being made, it  would
be deemed that the person depositing it has paid it  on  the  date  of  such
deposit to  the  person  in  whose  favour  it  is  deposited.   Section  38
proclaims that the provisions of that Act would have effect  notwithstanding
anything inconsistent therewith contained in the Transfer of  Property  Act,
1882 or in the Code of Civil Procedure, 1908.

 28.        It is a matter of  record  that  Smt.  Chameli  Devi,  widow  of
Mahabir Prasad was the grand-mother of the appellants.  As  the  verdict  in
original Case No. 95 of 1986, consistently referred to by  all  the  Forums,
would divulge,   Mahavir Prasad and Chameli Devi had  two  sons  Bhola  Nath
and Bachhan Lal.  As noted hereinabove,  the  appellants  are  the  sons  of
Bhola Nath.  Incidentally, Radha Devi, wife of  Bacchan  Lal  and  her  sons
instituted the afore-mentioned suit i.e. Original Case No.95 of 1986 in  the
Court of the Additional Civil Judge- VI, Allahabad  seeking  declaration  of
title in respect, amongst others of the suit premises.  This  was  contested
by  Bhola Nath and the appellants and in course  of  the  adjudication,  the
will dated 28.12.1986 executed by Chameli Devi surfaced  for  scrutiny.   On
the basis of this document, the appellants claimed  ownership  of  the  suit
premises.  As the  decision  rendered  in  that  suit  on  05.04.1989  would
reveal, a compromise was arrived at between the parties  having  due  regard
to the said will, whereby the ownership of the suit premises of the sons  of
Bhola Nath and Bacchan Lal was declared and a  decree  to  that  effect  was
passed.  This decree, indisputably, has become  final,  in  absence  of  any
challenge thereto before any forum.  In the face of this compromise  decree,
 in our comprehension, the dismissal of the suit and the  rejection  of  the
application for the release under Section 21 of the Act by  the  High  Court
on the sole ground that the appellants had no locus to maintain the same  in
absence  of  formal  proof  of  the  will  dated  28.12.1976   was   grossly
misdirected and thus cannot be sustained, more particularly in view  of  the
definition of the “landlord” provided in the Act.

29.     Noticeably,  the  predecessor-in-interest  of  the  respondents  had
admitted the tenancy under Smt. Chameli Devi.  He has admitted as well  that
during her lifetime, rent used to be paid to her and  thereafter  her  elder
son, Bhola Nath, father of the appellants used to receive the rent.   It  is
his pleaded case that as was the arrangement, he paid  rent  to  Bhola  Nath
upto  September,  1979,  whereafter  he  refused   to   accept   the   same.
Incidentally, even assuming that the  plea  of  the  original  defendant  of
having paid rent to Bhola  Nath  up  to  September,  1989  is  correct  (the
allegation of the appellants is that the default  is  from  October,  1979),
the default from October 1989  is incidentally subsequent to the  compromise
decree, as afore-mentioned whereunder the sons of Bhola Nath and Bachan  Lal
were held to be the owners of the suit premises.  It is a matter  of  record
that the appellants by   notice  dated  19.08.1989  had  demanded  from  the
original defendant the  arrears  of   rent  from  October,  1979  which  was
admittedly received by him but not acted upon.  In spite thereof,  according
to the original defendant, he offered rent to Bhola Nath for the  months  of
October, 1989 to January, 1990 by remitting the same by money-orders and  on
the alleged refusal thereof, eventually deposited the rent  in  court  under
Section 30.

30.      In  view  of  the  categorical   disclosure  in  the  notice  dated
18.08.1989,  issued on behalf of the appellants, requiring payment  of  rent
in arrears to them as the landlords and  also  indicating  determination  of
tenancy in case of failure in payment, we  are  of  the  view  that  the  so
called offer of rent for the months of October, 1989 to   January,  1990  to
Bhola Nath by money-orders and thereafter deposit in Court under Section  30
of the Act would be of no avail to the original defendant and on his  death,
  the  present  respondents.   The  original  defendant  in  terms  of   the
aforementioned  notice was fully aware of the  compromise  decree   and  the
status of the appellants as the joint owners/landlords and  thus  his  offer
of rent to Bhola Nath, who ceased to be the landlord, was not in  compliance
either of  sub-section 4 of Section  20 or Section  30  of  the  Act  to  be
availed as a defence against his/their  eviction  from  the  suit  premises.
The original defendant and consequently the respondents  has/have  therefore
rendered   himself/themselves  as defaulters within the meaning of  the  Act
and are liable to be  evicted  thereunder.  It  is  more  so  as  admittedly
neither the original defendant nor the respondents had ever  endeavoured  to
offer rent to the appellants after the compromise decree dated 05.04.89.

31.   Viz-a-vis the aspect of sub-letting, we are inclined  to  concur  with
the finding of the Trial Court that Motichand, who was  the  nephew  of  the
original defendant, had been inducted  in  the  suit  premises   as  a  sub-
tenant.  Further as it is a matter of record  that  the  original  defendant
had constructed his own house elsewhere where he has been residing with  his
wife, the accommodation of his nephew Motichand in  the  suit  premises  did
amount to sub-letting and the same having been done  without  the  knowledge
and approval of the landlords,  this too provided a ground for his  eviction
therefrom. Additionally, even if the deposit of  arrears of rent in full  by
the original defendant at the time of institution of the suit  is  construed
to be valid, in the face of his own house elsewhere, he is not  entitled  to
the protection from eviction under the proviso to sub-section 4  of  Section
20.  To be elaborate, under sub-section 4 of  Section  20,  as  referred  to
hereinabove,  if  a  tenant,  at   the   first   hearing    of   the   suit,
unconditionally pays or tenders  to the landlord  the entire amount of  rent
and damages for use and  occupation of the building due  from  him  together
with  interest thereon  @  9% per annum and  the  landlords'  costs  of  the
suit in respect  thereof,  after  deducting  therefrom  any  amount  already
deposited by the tenant under sub-section1 of Section 30,   the  court  may,
in lieu of passing a decree for eviction  on  that  ground,  pass  an  order
relieving the tenant against his liability for eviction  on  the  ground  of
default.  The proviso thereto predicates that  this  benefit  would  not  be
available to a tenant who or any member of  his  family  has  built  or  has
otherwise acquired in a vacant state, or has got vacated after  acquisition,
 any residential building in the same city, municipality, notified area   or
town area.  Apart from the fact that no evidence is  forthcoming  to  attest
that the requirements  of  sub-section  4  of  Section  20  had  been  fully
complied with, the construction of his own house elsewhere,  as  is  evident
from the record,   did dis-entitle the   original  defendant  and  now   the
respondents to avail the benefit of such  protection,  as  contemplated   by
the Act.

32.   It is no longer res integra and is settled by this Court in  Sri   Ram
Pasricha  vs.  Jagannath  and  Ors.,  (1976)  4  SCC  184,   Dhannalal   vs.
Kalawatibai and Ors. (2002) 6 SCC 16 and India Umberalla  Manufacturing  Co.
and Ors. vs. Bhagabandei  Agarwalla (dead) by Lrs. Savitri Agarwalla  (Smt.)
and Ors. (2004) 3 SCC 178 that  a suit for  eviction  of  a  tenant  can  be
maintained  by one of the co-owners and  it  would  be  no  defence  to  the
tenant to  question  the maintainability of the suit on the ground that  the
other co-owners were not joined as  parties to  the  suit.   The  judicially
propounded proposition is that when the property forming the subject  matter
of eviction proceedings is owned by several co-owners, every  co-owner  owns
every part and every bit of the joint property along with  others  and  thus
it cannot be said that he is only a part owner or a fractional owner of  the
property and that he can alone maintain a suit for eviction  of  the  tenant
without joining the other co-owners if such other co-owners do  not  object.
In the contextual facts, not only the compromise decree, as  aforementioned,
has declared the appellants to be the joint owners  of  the  suit  premises,
their status as such  has  not  been  questioned  at  any  stage  by  anyone
interested in the title thereto.

33.  Further, the original defendant having accepted Smt.  Chameli  Devi  as
his landlady and thereafter continued to pay rent to  her  son  Bhola  Nath,
the father of the appellants, in terms of the definition  of  “landlord”  in
Section 3(j) of the Act, he during  his life time and after his demise,  the
respondents are estopped under Section 116 of the Indian Evidence Act,  1872
to dispute the status of the appellants as their landlord in a suit for  his
eviction from the tenanted premises.

34.   That a tenant during the continuance of the  tenancy  is  debarred  on
the doctrine of estoppel from denying the  title  of  his  landlord  through
whom he claims tenancy, as  is  enshrined  in  Section  116  of  the  Indian
Evidence Act, 1872,    is  so  well-settled  a  legal  postulation  that  no
decision need be cited to further consolidate the same.   This  enunciation,
amongst others  is  reiterated  by  this  Court  in  S.  Thangappan  vs.  P.
Padmavathy (1999) 7 SCC 474 and  Bhogadi  Kannababu  and  Ors.  vs.  Vuggina
Pydamma and others (2006) 5 SCC 532.    In  any  view  of  the  matter,  the
appellants, being the son of Bhola Nath, who at all relevant time,  was  the
landlord vis-à-vis the original defendant and the respondents  in  terms  of
Section 3(j) of the Act, their  status  as  landlords  for  the  purpose  of
eviction under the Act, could not have been questioned so  as  to  non  suit
them for want of locus.

35.        To reiterate, the High  Court  by  the  decisions  impugned,  had
dismissed the suit and the application for  release  of  the  suit  premises
under Section 21 of the Act,  principally on the ground of want of  standing
of the appellants.  In the face of the determination made  hereinabove,  the
said conclusion is unsustainable on facts and in law and  are   thus  liable
to be set aside, which we hereby  do.   Having  regard  to  the  conclusions
recorded on the aspect of default in payment of rent and  sub-letting,  both
statutorily recognized grounds for eviction of a tenant under Section 20  of
the Act, it is considered inessential to dilate on the ground of  bona  fide
requirement and comparative hardship.   In the wake up  of  the  above,  the
impugned judgments and orders of the High Court are set-aside and  the  suit
of the appellants is decreed in full.   The  respondents  would  vacate  the
suit premises at the earliest and in no case later than  three  months  from
today.   The appeals are allowed.  No costs.




............................................J.
                                              (ARUN                  MISHRA)



….........................................J.
                             (AMITAVA ROY)
      NEW DELHI;
 MARCH 21, 2017.