Supreme Court of Mauritius, 26 février 2020, 2020 INT 35 – A R Hosanee v/s D R Teeluck

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A R Hosanee v/s D R Teeluck

2020 INT 35

ABDOULA RASHID HOSANEE V/S DILALL RABINDRANATH TEELUCK THE INTERMEDIATE COURT OF MAURITIUS CN: 862/2015 In the matter of:- Abdoula Rashid Hosanee Plaintiff

v/s Dilall Rabindranath Teeluck Defendant

JUDGMENT

Plaintiff is the owner of a dwelling house situated at Pereybere. In virtue of a lease agreement, dated 31 st of August 2007, Plaintiff leased to the defendant the dwelling premises for a period of 5 years starting from September 2007 in consideration of a monthly rent of Rs 10,000. Defendant has without the consent of the plaintiff caused extensive changes to be made to the premises by converting same into a commercial one. On the 17 th of May 2012, the plaintiff caused a mise en demeure to be served upon he defendant calling upon him, to restore the said premises to its original state by latest the 31 st of August 2012 and to quit and leave the premises at the end of the period mentioned in the lease. In October 2012, plaintiff applied for a writ habere facias compelling the defendant to quit, leave and vacate the premises. The defendant was ordered to quit, leave and vacate by the end of April 2014. The defendant left the premises in a dilapidated condition and the plaintiff had to perform works to reinstate in

to its previous condition after a survey was conducted. The cost of reinstatement is Rs 350,000 . Plaintiff also suffered a “manque a gagner” in the sum of Rs 100,000 since he was unable to rent the property.

A plea in limine was raised that since Health Dynamics Ltd was allowed to step in the shoes of the defendant, a novation came into operation following the plaintiff’s acceptance of the payment of rent from Health Dynamics Ltd as from January 2011 and Health Dynamics Ltd should have been put into cause.

In the plea, defendant has denied paragraphs 1,2 and 3 of the proecipe. It is averred that defendant dealt in fact with plaintiff’s father who passed away in August 2012 and that when the defendant signed the lease agreement, it was the plaintiff’s father who was present and that he had no dealings with the plaintiff. When defendant took over the premises, it was in a derelict state. Plaintiff’s father gave the defendant consent to carry out all repairs or modifications. The said consent was also granted to Health Dynamics Ltd. All the modifications were carried out :au vu and su” of the plaintiff and his father. In December 2009, the defendant intimated to late Mr Hosanee that he intended to put an end to the agreement. Health Dynamics Ltd agreed to lease the property subject to modifications to be made to accommodate the trade of the company. There was no objection from the plaintiff.

Plaintiff’s case

The main features of plaintiff’s testimony are as follows;

He leased to the defendant by virtue of a lease agreement the premises situated at Royal road, Pereybere for a period of 5 years as from August 2007 for consideration of a monthly rent of Rs 10,000 by virtue of a lease agreement. He produced a copy of the agreement. When he visited the premises in July 2011, he noticed that extensive modifications had been carried out, that all the walls had been pulled down and the lay out had been changed. He never gave permission to the defendant to carry out extensive changes. In May 2012, he served a mise-en-demeure on the defendant requesting him to restore the premises in its original state. He retained the services of Mr Mooslaya to carry out an inspection. He produced a report to the effect that it will cost Rs

350,000 to restore the premises to its original state. He also suffered a “manque a gagner” since he could not rent the premises during that time. He is also claiming Rs 100,000 which represents a “manque a gagner”. He is praying for a judgment ordering the defendant to pay him Rs 465,000.

What was elicited under cross-examination is that a lease agreement was made between the plaintiff and the defendant. However, the plaintiff did not meet the defendant at the time he signed the lease agreement since he signed the agreement afterwards. Between September 2007 and August 2010, it is plaintiff’s father who was collecting rent. Plaintiff met Mr Teeluck once after his father’s death and the latter informed him that Health Dynamics Ltd was going to take up a new lease and that it was going to be the new tenant after the expiry of the lease agreement. It is only on the 23 rd

of July 2011 when he proceeded to inspect the property following a complaint from the first-floor owner that he saw that extensive works had been carried out. All the walls had been demolished The works had been done without his knowledge and consent and Mr Tulsidas was in fact in the premises at the time. He had to lodge a case to evict Mr Teeluck. The ground for eviction was that Mr Teeluck had acted in breach of contract and had subletted the property without his permission. Since the plaintiff was faced with a “fait accompli”, he met Mr Tulsidas with a view to negotiating a new agreement on new terms but the negotiations failed and the deal never materialized. Defendant also informed him that he was not going to renew the lease. He did object verbally to the refurbishment made to the premises to Mr Teeluck. It is admitted that after the demise of plaintiff’s father, rent was being paid to him by standing order by Health Dynamics Ltd. He was not aware that Mr Tulsidas was occupying the premises and it was following an arrangement between Mr Teeluck and Heath Dynamics Ltd that payment was made by Health Dynamics Ltd. After the eviction order, he had to spend a lot of money to rebuild the place and has been unable to rent the premises. The main reason for the eviction order was because of the extensive modifications which were carried out without his consent and because the defendant had subletted the premises. In re-examination , he stated that the eviction order was against Mr Teeluck.

The gist of Mr Mooslaya’s testimony is that his services were retained by the plaintiff to inspect the property situated at Royal road, Pereybere. He submitted his report on the 14 th of April 2015. He observed that the property was in a dilapidated condition. The floor

tiles had been damaged, the partition and walls pulled down. He produced his report which reveals several items which have to be repaired including general painting and plumbing work which would cost Rs 350,000. He was also paid a fee in the sum of Rs 15,000. In cross-examination, he could not say whether the defendant vacated the premises in July 2014 and could not say in what state the premises were when it was rented out.

Defendant’s case

The main features of the defendant’s testimony are as follows;

Late Mr Hosanee contacted the defendant in 2007 and he and late Mr Hosanee signed a lease agreement. The building was in a derelict state and he had to renovate the premises. Mr Tulsidas, the director of Health Dynamics Ltd started occupying the property about 1 year before the demise of plaintiff’s father. Under cross-examination, he stated that it is the plaintiff’s father who gave permission to Mr Tulsidas to occupy the premises and to improve the premises. He stated that everything was done verbally but when they were preparing the contract to be signed by Mr Tulsidas and plaintiff’s father, the latter became sick and stated that after the surgery, he would sign the contract. The rent was being paid by Health Dynamics Ltd. He added that the plaintiff carried out negotiations with Mr Tulsidas but that he was not present at the time. He stated that he did not carry out modifications but only cleaned the premises and it is Dr Tulsidas who carried out the modifications. Plaintiff was not aware of the modifications. He conceded that he and the plaintiff signed the lease agreement. He stated that he presumed that the signature of Mr Aboo Hosanee was on the document and that he did not know who signed it. When he was informed that as per the lease agreement it is in fact the plaintiff who is the landlord, he stated that he did not know since he is not the one who prepared the lease agreement. When he was informed that he had no right to sublet the property, he stated that he did not know the plaintiff and that he knew only the plaintiff’s father. He stated that Dr Tulsidas obtained authorization to carry out the modifications but conceded that he never obtained written authorization to carry out any modifications to the premises. He added that everything was done verbally. He denied that it costs Rs 350,000 for the “remise en état” of the property. He denied that the plaintiff suffered a

“manque a gagner” because the premises had to be restored to its original state. He denied that he has to pay the sum of Rs 465,000 to the plaintiff.

Analysis and findings

I shall first consider the plea in limine that there was “novation” following the plaintiff’s acceptance of the payment of rent from Health Dynamics Ltd which was allowed to step in the shoes of the defendant and that the defendant was no longer the tenant as from 2009.

It is appropriate to refer to clause 9 of the tenancy agreement which specifically provides : « le locataire ne pourra céder son droit au présent louage ou sous louer les dits locaux sans autorisation au préalable du bailleur ». The question which arises is whether the plaintiff has acquiesced to a “cession” and has accepted Health Dynamics Ltd as his tenant.

The evidence discloses that the defendant informed the plaintiff that he did not intend to renew the lease and that the plaintiff consequently met Mr Tulsidas on the 8/02/2011 with a view to negotiating a deal but that the deal did not materialize. It must be pointed out that the plaintiff made it clear that it was a new agreement after the expiry of the lease agreement which he tried to negotiate. At no time, he referred to any possible agreement with Mr Tulsidas during the period August 2007 – July 2012 when the lease agreement between plaintiff and defendant was in force. I bear in mind that the plaintiff had been receiving rent from Health Dynamics Ltd without any protest and the submissions of Learned Counsel for the defendant that the fact that the plaintiff was receiving rent from Health Dynamics Ltd implies that he has accepted Mr Tulsidas as a tenant. I am unable to agree with the tenor of his submissions. I find it appropriate to refer to the following note from Dalloz, Baux en General, Novation, Preuve , Perception de loyer- Civ 3, 21 JAN 1976 which was quoted in the case of Black River District Council v/s Labonne; [2000] SCJ 2013 ; « La perception d’un terme de loyer par un tiers n’établit pas l’acceptation par le bailleur de la substitution de ce tiers au preneur dans les obligations nées du bail. »

The following notes make it clear that there must be unequivocal and clear evidence to establish novation.

I find the following note from Jurisclasseur Civil Code, Article 1708-1762 – Fasc .335: Bail d’habitation- Cession et sous-location to be pertinent Note 23; La novation ne se présumant pas, la preuve devrait être rapportée par écrit ou de façon non équivoque. Le simple fait de la part du bailleur de délivrer des reçus de loyer au cessionnaire n’étant généralement pas considéré comme suffisant.

Notes 17 and 29 from Article 1708-1762- Fasc 87 : Bail d’habitation –Généralités ; – Preuve du contrat de bail read L’occupation des lieux n’est efficace que si elle manifeste sans équivoque la volonté du bailleur. Il a été jugé qu’est sans valeur probante l’occupation des lieux ; quand cette occupation résulte, en l’absence d’un acte explicite de la volonté des parties, de la simple passivité du propriétaire, même prolongée pendant plusieurs années. Une simple tolérance n’est en effet pas créatrice de droits.

Note 34 of Jurisclasseur Code Civil, Article 1708-1762 – Fasc 2636 : Bail d’habitation- Droit du locataire ; cession et sous location. La renonciation à un droit ou la novation par changement de locataire ne se présume pas et ne peut résulter que d’actes non équivoques. Dans le même sens, une cour d’appel a légalement justifié sa décision en retenant que la cession du bail à une société civile , était inopposable au bailleur , les clauses du bail n’ayant pas été respectées, en l’absence d’un écrit mentionnant cette cession et que le fait de percevoir des loyers payés par le cessionnaire n’impliquant pas une acceptation sans équivoque de la cession par le bailleur , le simple libellé d’un virement bancaire ne suffisant pas à établir un changement de locataire, faute de preuve d’un accord exprès du créancier des loyers pour accepter un changement de débiteur. [ Cass 3 civ, R 4 Mars 1992, Juris data no 1992]

In the light of the above legal principles, the mere fact that the plaintiff was receiving rent from Mr Tulsidas without protest or that the latter was occupying the property is not sufficient to prove novation or that there has been cession of the bail. Defendant had to

bring written or unequivocal evidence of an “accord exprès” from the plaintiff that the latter had accepted Mr Tulsidas as his tenant and this, he has failed to do.

It is significant to note that even if this court was to accept the version of the defendant that the plaintiff and Mr Tulsidas came to an agreement during the period when the lease agreement was in force, it would still fall short of amounting to “novation” since the case for the defendant is that the agreement was made subject to structural modifications which are new terms which cannot be found in the initial agreement.

I find the following note from Jurisclasseur Code Civil, Article 1708-1762- Fasc 2636 :Bail d’habitation-Droit du locataire; cession et sous location to be pertinent Note 4 ; “En cas de doute, il y a lieu d’appliquer le critère suivant pour distinguer entre la cession et sous-location ; si la convention intervenue modifiait sur un point quelquonque les conditions du bail primitif, on est en présence d’une sous-location car la cession suppose essentiellement le transmission sans réserve des droits du cédant. »

For the above reasons, the plea in limine is set aside.

Turning now to the merits of the case, the case for the plaintiff is that the defendant has caused extensive changes to be made to the plaintiff’s property without his consent and has acted in breach of the tenancy agreement and that such breach has resulted in prejudice to the plaintiff who had to disburse money to restore the building to its original state.

The defence on the other hand is that the building was in a derelict state when it was rented out and that the defendant is not liable since all the modifications were carried out with the consent of plaintiff’s father and “au vu et su” of the plaintiff and plaintiff’s father. There is no cogent evidence that the property was in a derelict state when it was rented out.

Defendant has admitted in cross-examination having signed the lease agreement which is on record and has remained unchallenged. Defendant’s insistence during his testimony that he signed the lease agreement without knowing who the landlord is

simply untenable. Although the agreement was not signed in the presence of the plaintiff, his name is specified in the agreement wherein he is referred to as the landlord. It stands to reason that one does not sign an agreement without reading the terms of the agreement. I have borne in mind the submission of Counsel for the defendant that there is a discrepancy in the name of the tenant and such discrepancy is a material one which puts into question the identity of the person who signed the agreement. I am unable to agree with such submission since this has not been pleaded. More crucially, the defendant himself admitted in court having signed the lease agreement. I therefore find that the discrepancy cannot affect the legal implications of the agreement which was made between the plaintiff and the defendant.

After having duly considered the testimonies of the plaintiff and the defendant, I prefer the version of the plaintiff to that of the defendant since the latter’s evidence is not in line with the defence which was put in. The plaintiff was genuine enough to concede that he met Mr Tulsidas to negotiate a new deal which however did not materialize. The defendant on the other hand contradicted himself when he mentioned in cross- examination that he simply cleaned the property which was in a derelict state whilst in examination in chief he stated that he carried out a renovation. I note that the defendant came up with a belated version that a written contract was being prepared between Mr Tulsidas and late Mr Hosanee but that the latter became sick and the contract could not be finalized. I have no hesitation in rejecting such version which is not in concordance with the plea.

On the issue whether the modifications were carried out “au vu et au su” of the plaintiff and his father, it must be pointed out that the defendant himself conceded that the plaintiff was not aware of the modifications which had been carried out. As for his version that it was the plaintiff’s father who gave verbal authorization for modifications to be carried out, suffice it to say that plaintiff’s father is not the tenant and that verbal authorization for modifications to be carried out is not contemplated under the lease agreement. I find it apposite to refer to clause 3 of the lease agreement which governs the rights and obligations of the parties in respect of any changes and improvements which can be made to the premises and which provides; « It is an express term of the agreement that “ le locataire ne pourra faire dans les lieux loués aucune construction ni démolition, aucun percement de murs, cloisons ou planchers, ni aucun changement de

distribution sans le consentement exprès et par écrit du bailleur.”. When Defendant was confronted with such clause in cross-examination, he gave an incoherent answer.

Defendant who was bound by the terms of the tenancy agreement by virtue of article 1134 of the Code Civil Mauricien ought to have obtained the express written consent of the plaintiff to be able to carry out the necessary modifications. I therefore reject as unfounded the defence that consent was given for the modifications to be carried out. By failing to obtain the written consent from the plaintiff to carry out modifications, the defendant has acted in flagrant breach of the tenancy agreement.

For the above reasons, I find that the plaintiff has proved on a balance of probabilities that the defendant acted in breach of the tenancy agreement by carrying out extensive modifications without the consent of the plaintiff.

The next question is whether the claim of Rs 465,000 is warranted. The report which has been produced by Mr Mooslaya has not been contradicted by any other expert report. Mr Mooslaya gave a breakdown of the items which have to be repaired and same has not been challenged in cross-examination. I bear in mind that the plaintiff waited for 9 months before carrying out an inspection of the premises. I am of the view that the fact that he left the property in an abandoned state for a period of 9 months could have contributed to further deterioration of the premises and that he had a duty to mitigate his loss as soon as possible. In the circumstances, I find the sum of Rs 265,000 to be a fair and reasonable amount for the reinstatement of the premises. I also find that the plaintiff did suffer from a “manque a gagner” in the sum of Rs 100,000 since he was unable to rent the property for several months due to the dilapidated condition of the property.

For the above reasons, I order the defendant to pay to the plaintiff the sum of Rs 365,000.

With costs and interests from the date of the lodging of the plaint until the final date of payment.

[Delivered by N Senevrayar-Cunden, Magistrate of Intermediate Court, Civil Side]

[Delivered this 26 th of February 2020]