# P.N.B Earlier Oriental Bank of Commerce Revisionist v. Sanjeevani Shiksha Samiti

- **Citation:** (2024) 5 ILRA 1078
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/p-n-b-earlier-oriental-bank-of-commerce-revisionist-v-sanjeevani-shiksha-samiti-51950
- **Pages:** 6

## Headnote

A. Tenancy Law - UP Regulation of Urban
Premises Tenancy Act, 2021 - Tenancy was
terminated by notice u/s 106 of Transfer of
Property Act Act, 1872 - Effect - How far
Act of 2021 is applicable to the suit filed in
2008 - Held, suit was filed in the year 2008
and on that date, the Act of 2021 was not
in existence, therefore, any provision of Act
would not be applicable. (Para 8)

B. Tenancy Law - UP Regulation of Urban
Premises Tenancy Act, 2021 - Mesne
profit, determination thereof - No mesne
profit beyond 7% was claimed under the
Act 2021 - Permissibility - By service of
notice u/s 106 of Transfer of Property
Act, 1882, tenancy was terminated -
Effect - Held, in light of notice u/s 106 of
Transfer of Property Act, 1882, tenancy is
to be terminated, the status of tenant
would be trespasser and he cannot take
any benefit or advantage of any provision
of Act, 2021 - Mesne profit shall be
determined based upon market rate
prevailing in the area. Provisions of Rent
Control Act would not be applicable.
(Para 10, 12 and 15)

Revision dismissed. (E-1)

List of Cases cited:

## Text

1078 INDIAN LAW REPORTS ALLAHABAD SERIES
plea that their lawyer on a wrong advise
made the endorsement. If this is condoned,
then
in
every
case
a
litigant
will
unscrupulously come forward with this plea
and get the case reopened on one pretext or
the other. The subsequent engagement of a
counsel who has a better understanding of
law cannot be a ground to plead that the
earlier
counsel
was
incompetent,
particularly,
in
this
case
where
an
endorsement in writing has been made by
the lawyer that he does not wish to file any
additional written statement. "

18. In the light of law laid down by
the Courts, change of counsel cannot be a
ground to file amendment application
bypassing the rigorous conditions of due
diligence. In fact, to meet out any mistake,
no advantage can be given to litigant due to
change of counsel.

19. In present case, facts are
undisputed that due to typographical error as
well as change of counsel, amendment
application under Order VI Rule 17 of CPC
has been filed to withdraw the admission
earlier made in written submissions, which
cannot be permitted in the light of law laid
down by the Courts from time to time,
therefore, I found no illegal or infirmity in
the impugned order.

20. Revision lacks merit, hence
dismissed.

21. No order as to costs.
----------
(2024) 5 ILRA 1078
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.
S.C.C. Revision no. 76 of 2024

P.N.B Earlier Oriental Bank of Commerce
 ...Revisionist
Versus
Sanjeevani Shiksha Samiti ...Respondent

Counsel for the Revisionist:
Saurabh Kumar Pandey, Sr. Advocate

Counsel for the Respondent:
Utkarsha Birla

A. Tenancy Law - UP Regulation of Urban
Premises Tenancy Act, 2021 - Tenancy was
terminated by notice u/s 106 of Transfer of
Property Act Act, 1872 - Effect - How far
Act of 2021 is applicable to the suit filed in
2008 - Held, suit was filed in the year 2008
and on that date, the Act of 2021 was not
in existence, therefore, any provision of Act
would not be applicable. (Para 8)

B. Tenancy Law - UP Regulation of Urban
Premises Tenancy Act, 2021 - Mesne
profit, determination thereof - No mesne
profit beyond 7% was claimed under the
Act 2021 - Permissibility - By service of
notice u/s 106 of Transfer of Property
Act, 1882, tenancy was terminated -
Effect - Held, in light of notice u/s 106 of
Transfer of Property Act, 1882, tenancy is
to be terminated, the status of tenant
would be trespasser and he cannot take
any benefit or advantage of any provision
of Act, 2021 - Mesne profit shall be
determined based upon market rate
prevailing in the area. Provisions of Rent
Control Act would not be applicable.
(Para 10, 12 and 15)

Revision dismissed. (E-1)

List of Cases cited:

1. St. of Maharashtra & anr. Vs Super Max
International Pvt. Ltd. & ors.; (2009) 9 SCC
772

2. Writ A No. 2853 of 2024; Smt. Anguri Devi &
ors. Vs Smt. Sampatti Devi & ors. decided on
26.2.2024
5 All. P.N.B. Earlier Oriental Bank of Commerce Vs. Sanjeevani Shiksha Samiti
1079
3. Atma Ram Properties (P) Ltd. Vs M/s. Federal
Motors Pvt. Ltd.; 2005 (2) ARC 936

4. U.O.I.& anr. Vs Smt. Suman Gupta & ors.;
2004 (1) ARC 330

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri P.K. Jain, learned Senior
Advocate assisted by Sri Saurabh Kumar
Pandey, learned counsel for the revisionist
and Sri Atul Dayal, learned Senior Advocate
assisted by Mr. Utkarsh Birla, learned
counsel for the opposite party.

2. By way of present revision,
revisionist is assailing the impugned order
dated 27.2.2024 passed in S.C.C. Suit No. 7
of 2008 by the Judge, Small Causes
Court/ADJ Court No.7, Ghaziabad.

3. Case was heard on 17.5.2024,
Court has passed the following order:-

"1. Heard Sri P.K. Jain, learned
Senior Advocate assisted by Sri Saurabh
Kumar Pandey, learned counsel for the
revisionist and Sri Atul Dayal, learned
Senior Advocate assisted by Mr. Utkarsh
Birla, learned counsel for the opposite
party.
2. Sri P.K. Jain, learned Senior
Advocate assisted by Sri Saurabh Kumar
Pandey, learned counsel for the revisionists
submitted in the present revision impugned
order is having two parts; first about the
vacation of commercial house in question
occupied by the Punjab National Bank
Earlier Oriental Bank Of Commerce and
second about the decretal amount and
enhancement of mesne profit at the rate of
15% per annum.
3. So far first part is concerned, he
is ready to vacate the commercial house in
question within one year and also pay the
monthly rent of Rs. 3,27,000/- for the same
period, which is not objected by Mr. Atul
Dayal, learned Senior Advocate appearing
on behalf of petitioner.
4. So far second part is concerned,
he is having no objection to the decretal
amount,
but
he
is
challenging
the
enhancement of mesne profit at the rate 15%
per annum.
5. Heard learned counsel for both
the parties on this issue.
6. Judgement reserved.
7. Put up this case for order on
27.5.2024.
8. Till the delivery of judgment,
parties shall maintain status quo as on
date."

4. Considering the submission
made by learned counsel for the revisionist
in aforesaid order dated 17.5.2024, he is
granted one year time to vacate the
commercial accommodation from today
with following condition;

(i) Revisionist is directed to file
affidavit within two weeks from today
before
learned
Judge,
Small
Causes
Court/ADJ Court No.7, Ghaziabad to vacate
the commercial accommodation in question
within the time given by the Court.
(ii) Revisionist is directed to deposit
all decretal amount within four weeks from
today before learned Judge, Small Causes
Court/ADJ Court No.7, Ghaziabad. In case,
any amount is already deposited, same shall
be adjusted against the decretal amount.
(iii) Revisionist is also directed to
pay Rs. 3,27,000/- as monthly rent of
commercial accommodation in question per
month on month to month basis on or before
7th day of every month till the vacation of
house.
(iv) In case of failure of fulfilment
of any conditions so imposed by the Court,
this order would lost the effect and plaintiff-
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent is at liberty to proceed against
the defendant-revisionist in accordance with
law.

5. Accordingly, the revision is
disposed of so far it relates to vacate the
commercial accommodation in question
only.

6.

Learned
Senior
Counsel
submitted that in the year 2021 by enactment
of
State
Legislation,
Uttar
Pradesh
Regulation of Urban Premises Tenancy Act,
2021 (hereinafter referred to as Act, 2021)
came into force, which provides maximum
enhancement of mesne profit at the rate of
7% per annum for non residential building,
therefore, in all eventuality, mesne profit
may not be enhanced beyond 7%. In the
present case, it has been enhanced to the
tune of 15% per annum. In support of his
contention he has placed reliance upon the
judgment of Apex Court in the cases of State
of Maharashtra and another vs. Super
Max International Private Limited and
others reported in (2009) 9 SCC 772 and
Smt. Anguri Devi Since Deceased and 10
others vs. Smt. Sampatti Devi and 10 others
passed in Writ-A No. 2853 of 2024 decided
on 26.2.2024.

7. Per Contra, Sri Atul Dayal,
learned Senior Advocate assisted by Mr.
Utkarsh Birla, learned counsel for the
opposite party has vehemently opposed and
submitted that present impugned order has
been passed pursuant to S.C.C. Suit No. 7 of
2008 and at that point of time Act, 2021 was
not in force. Even U.P. Act No. 13 of 1972
was also not applicable. He firmly submitted
that only way to fix the enhancement of
mesne profit is market rate. He has produced
the market rate through affidavit before the
SCC Court, which was neither denied nor
controverted by any affidavit contrary to
that and considering the same mesne profit
alongwith enhancement of 15% has been
fixed. In support of his contention, he has
placed reliance upon the judgment of Apex
Court as well as this Court in the cases of
Atma Ram Properties (P) Ltd. Vs. M/s.
Federal Motors Pvt. Ltd. reported in 2005
(2) ARC 936 & Union of India and another
vs. Smt. Suman Gupta and others reported
in 2004 (1) ARC 330.

8. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
judgment relied upon. The submission of
learned counsel for the petitioner is that Act,
2021 provides for enhancement of mesne
profit only at the rate of 7% in case of non
residential accommodation beyond that no
enhancement can be made. There is no doubt
on the issue that suit was filed in the year
2008 and on that date Act No. 2021 was not
in existence, therefore, any provision of Act
would not be applicable.

9. Apart that I have also perused the
Section 9 of Act, 2021, which provides
Revision of Rent. Same is being quoted
herein below:-

"8. Rent Payable. The rent payable
in respect of a premises shall be the rent
agreed to between the landlord and the
tenant in accordance with the terms of the
tenancy agreement or as revised under
Section 9 or determined under Section 10.
9. Revision of Rent.-(1) The revision
of rent between the landlord and the tenant
shall be in accordance with the terms of the
tenancy agreement.
(2) Where, after the commencement
of tenancy, the landlord has entered into an
agreement in writing with the tenant prior to
the commencement of the work and has
incurred expenditure for carrying out
5 All. P.N.B. Earlier Oriental Bank of Commerce Vs. Sanjeevani Shiksha Samiti
1081
improvement,
addition
or
structural
alteration in the premises occupied by the
tenant, which does not include repairs
necessary to be carried out under Section
15, the landlord may increase the rent of the
premises by an amount as agreed to between
the landlord and the tenant, and such
increase in rent shall become effective from
one month after the completion of such
work.
(3) Subject to any agreement in
writing, where the premises have been let
out before the commencement of this Act, the
rent thereof shall be liable to be revised for
a further period of two years from the
commencement of this Act, according to the
formula indicated below-
(a) where the premises have been let
out prior to 15.07.1972, it shall be deemed
to have been let out on 15.07.1972;
(b) where the premises have been let
out on or after 15.07.1972, the date for
revision of rent shall be one year after the
date of commencement of tenancy.
The rate of rent payable in above
cases shall be liable to be increased at the
rate of 5% per annum in case of residential
accommodation and 7% per annum in case
of non-residential premises, and the rate of
increase of rent shall be compounded on an
yearly basis. The amount of rent so arrived
at shall again be liable to be increased at the
aforesaid rates per annum in similar manner
up to the commencement of this Act.
Notwithstanding
anything
mentioned above, if rent of premises had
been revised during continuance of tenancy
after 15.07.1972, the formula of revision of
rent mentioned above shall be applicable
from the date of such revision of rent:

Provided
that
notwithstanding
anything mentioned above, the revised rent
payable as per formula indicated in
aforesaid provision, shall be payable as
below from the date of commencement of
this Act:
(i) in the first year, half of the rent so
computed; and
(ii) in the second year, full amount
of rent so computed.
(4)
Notwithstanding
anything
contained in sub-section (1) of Section 3
wherein any premises referred to, has been
let out to a tenant, the landlord of such
premises shall also be entitled for revision of
rent in accordance with provisions of clause
(3) and the relevant provisions of this Act
shall apply to such cases.
(5) In the case of tenancy entered
into before the commencement of this Act the
landlord shall, by notice in writing to the
tenant, demand the enhanced rate of rent as
specified under sub-section (3) and the rate
of rent so enhanced shall be payable within
30 days of the service of notice. In such event
the tenancy agreement shall be deemed to be
amended and enhanced rate of rent shall be
the rent payable under Section 8:
Provided that if there was no
tenancy
agreement
before
the
commencement of this Act, the landlord and
the tenant may mutually agree to execute
tenancy agreement for enhanced rate of rent
failing which the rent authority shall
determine the enhanced rent subject to the
provisions of Section 10.
(6) No arrears of aforesaid enhanced
rent shall be payable or recoverable for the
period prior to commencement of this Act."

10. From perusal of the heading of
section, it is apparently clear that it deals
with revision of rent and has nothing to do
with the mesne profit. In the present case, in
light of notice under Section 106 of Transfer
of Property Act, 1882, tenancy is to be
terminated, the status of petitioner would be
trespasser and he cannot take any benefit or
advantage of any provision of Act, 2021. It
1082 INDIAN LAW REPORTS ALLAHABAD SERIES
is not the case of payment of rent, but mesne
profit, therefore, even in case Act, 2021 is
applicable, petitioner is not entitled for
benefit of Section 9 of Act, 2021.

11. The similar issue was before
this Court in the matter of Smt. Suman
Gupta (Supra). Relevant paragraph of the
said judgment is quoted hereinbelow:-

"6.
Learned
counsel
for
the
applicants relied upon Dwarka Prasad vs.
Central Talkies, Collectorganj, Kanpur (AIR
1956 All 187). In that case the defendant
was paying Rs.550/- per month as rent. The
plaintiff landlord demanded Rs.1500/- per
month as rent in the notice and also claimed
damages at the rate of Rs.1500/- in the suit.
It was held that the damages in the suit
should be equal to such amount, which the
defendant could have realized as rent of the
premises the amount which the landlord can
be said to get from the premises in suit would
be equal to the maximum permissible rent
under the Control of Rent and Eviction Act,
and he is not entitled to anything more under
the guise of damages on the alleged basis of
high offers of rent to him by persons who
may not have any chance of getting an
allotment made in their favour. This Case is
entirely distinguishable. In that case the
Rent Control Act was applicable to the
building in dispute. In cases where the Rent
Act applies the rate of rent is regulated by
statute. On termination of tenancy by notice
under Section 106 Transfer of Property Act
the tenant in such cases still continues to
enjoy the protection of the Rent Control Act
as a statutory tenant and his tenancy comes
to end only after the order of eviction. The
measure of damages in such cases is
therefore at the rate of rent permissible
under the Rent Act in cases where the Rent
Control Act does not apply there is no
statutory restriction and the measure of
damages after termination of tenancy by
notice under Section 106 of Transfer of
Property Act would be the market rent."

12. This Court has taken view that
in case of termination of tenancy by notice
under Section 106 of Transfer of Property
Act, 1882, enhancement of mesne profit
shall be determined on the basis of market
rate not on the basis of provision of any
statutory provision.

13. The Apex Court has considered
the very same issue in the matter of Atma
Ram (Supra). Relevant paragraph of the
said judgment are quoted hereinbelow:-

"In Shyam Sharan Vs. Sheoji Bhai
& Anr., (1977) 4 SCC 393, this Court has
upheld the principle that the tenant
continuing in occupation of the tenancy
premises after the termination of tenancy is
an unauthorized and wrongful occupant and
a decree for damages or mesne profits can
be passed for the period of such occupation,
till the date he delivers the vacant
possession to the landlord. With advantage
and approval, we may refer to a decision of
the Nagpur High Court. In Bhagwandas Vs.
Mst. Kokabai, AIR 1953 Nagpur 186, the
learned Chief Justice of Nagpur High Court
held that the rent control order, governing
the relationship of landlord and tenant, has
no relevance for determining the question of
what should be the measure of damages
which a successful landlord should get from
the tenant for being kept out of the
possession and enjoyment of the property.
After determination of the tenancy, the
position of the tenant is akin to that of a
trespasser and he cannot claim that the
measure of damages awardable to the
landlord should be kept tagged to the rate of
rent payable under the provisions of the rent
control order. If the real value of the
5 All. Commissioner Commercial Tax U.P. Vs. M/S Pan Parag India Ltd.
1083
property is higher than the rent earned then
the amount of compensation for continued
use and occupation of the property by the
tenant can be assessed at the higher value.
We find ourselves in agreement with the view
taken by the Nagpur High Court."

14. The Apex Court has held that
after determination of tenancy, the position
of tenant is akin to that of a trespasser and
he cannot claim that the measure of
damages, should be awarded under the
provision of Rent Control Order. In case the
real property is higher than the rent earned,
amount of compensation for use and
occupation of property can be assessed at the
higher value.

15. In light of discussion made
hereinabove as well as law laid down by the
Court, this Court is also of the view that
once after service of notice under Section
106 of Transfer of Property Act, 1882,
tenancy is terminated, the status of tenant
would only be tresspasser and mesne profit
shall be determined, based upon market rate
prevailing in the area. Provisions of Rent
Control Act would not be applicable.

16. In the present case, the facts are
entirely same, notice was served, tenancy
was terminated and status of petitioner
became trespasser. Mesne profit with the
enhancement at the rate of 15% per annum
is based upon the market rate produced by
the plaintiff respondent not controverted or
denied by the petitioner-defendant.

17. Therefore, under such facts and
circumstances, law laid down by this Court
as well as Apex Court, I found no illegality
or irregularity in the impugned order.

18. Accordingly, the revision is
dismissed, affirming the judgment of trial
Court so far it relates to payment mesne
profit at the rate of 15%.
----------
(2024) 5 ILRA 1083
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Sale/Trade Tax Revision No. 30 of 2023

Commissioner Commercial Tax U.P.
 ...Petitioner
Versus
M/S Pan Parag India Ltd. ...Respondent

Counsel for the Petitioner:
Sri Bipin Kumar Pandey, Addl. C.S.C.

Counsel for the Respondent:
Sri Shubham Agarwal

U.P. Value Added Tax Act, 2008 - Section 58
-
Double
taxation
-
franchise
of
a
trademark - Issue before the Court was
whether the franchise of a trademark
constitutes a transfer of the right to use
goods, thereby making it subject to VAT ?
- In the case license was given by the
respondent for the use of his brand name.
Said franchise agreement granted only
representational right and not an exclusive
right to the licensees to sell/manufacture
goods. Permission granted by the dealer
under the agreement was a non-exclusive
right given to the licensees, as it was not to
the exclusion of others. Held: Franchise
agreement in the present case grants a
non-exclusive
license
rather
than
a
transfer of the right to use goods. As such,
the transaction does not attract Value
Added
Tax
under
the
UPVAT
Act.
Respondent received royalty amounts from
various
dealers
under
the
franchise
agreement, and service tax at a rate of
15% was already paid by the respondent
on the amount of royalty received by them
from the licensees under the franchise