Delhi District Court
Sh. Jainender Kumar Jain vs Sh. Hari Nath Rastogi (Since Deceased) on 12 September, 2018
BEFORE DISTRICT & SESSIONS JUDGE (HQs)
RENT CONTROL TRIBUNAL
TIS HAZARI COURTS, DELHI
CNR No.: DLCT010001722008
RCT No. 30327/2016
Sh. Jainender Kumar Jain
(Since deceased through his LRs)
a) Chitra Jain (wife)
b) Anurag Jain (son)
Both R/o 6/171, Farash Bazar
Shahdara, Delhi110032.
c) Kalpna Jain (daughter)
R/o 45/86, Mool Ganj
Kanpur208001, Uttar Pradesh.
d) Tara Jain (daughter)
R/o 48B, Narain Singh Park
Panipat, Haryana.
e) Charu Jain (daughter)
R/o A22, Green Park,
New Delhi110016. .....Appellants
Versus
Sh. Hari Nath Rastogi (since deceased)
Through his LRs.
RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 1 of 24
1. Deepa Rastogi (daughter)
2. Madhu Bala Rastogi (widow)
Both R/o 45, Prithvi Raj Road,
New Delhi110011. .....Respondents
Date of filing of Appeal : 30.08.2008 Date of reserving Order : 24.08.2018 Date of Order : 12.09.2018 ORDER ON APPEAL UNDER SECTION 38 OF DELHI RENT CONTROL ACT, 1958 AS WELL AS ON APPLICATIONS UNDER ORDER XLI RULE 27 CPC Present appeal has been filed against impugned judgment dated 24.07.2008 passed by Ld. ARC, Delhi whereby eviction petition filed under Section 14(1)(b) of the Delhi Rent Control Act (hereinafter referred to as "DRC Act") by the landlord Hari Nath Rastogi through his legal heirs was allowed.
2. Two applications under Order XLI Rule 27 CPC have also been filed on behalf of the appellants for leading additional evidence. I proceed to decide these applications first.
3. First application under Order XLI Rule 27 CPC is dated 16.07.2009, which was earlier dismissed by my Ld. Predecessor vide RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 2 of 24 her order dated 21.10.2009 and against that order, the tenant had filed CM(M) No. 1301/2009 in Hon'ble High Court of Delhi and matter was remanded back vide order dated 11.12.2009 with directions to decide application under Order XLI Rule 27 CPC first alongwith the appeal.
4. Vide this application, the appellant had sought to file certain share certificates on record. The tenant Sh. Jinender Kumar Jain (in short "J.K.Jain") was a minority share holder of 4% in the company M/s Sangam Associates Pvt. Ltd. when the eviction petition was filed in 1986. By way of placing these documents on record, the appellant wants to bring on record the fact that on 28.02.2006 Sh.Anurag Jain, son of late tenant J.K. Jain, had purchased more shares and his share holding had considerably arisen in M/s Sangam Associates Pvt. Ltd. and he was no longer to be considered as minority share holder. Counsel for the respondent/landlord has argued that subsequent purchase of shares by a tenant will not affect the cause of action on the basis of which present eviction petition was filed and I agree with his contention. For examble if there is sub tenancy in the property in dispute on the date when petition was filed under section 14(1)(b) of the DRC Act and immedidately on receipt of notice of petition, the tenant throws out the subtenant; even then if the landlord has been able to prove that subtenancy was subsisting in RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 3 of 24 the premises on the date when petition was filed, the eviction order has to be passed against the tenant. I rely on judgment of Hon'ble Supreme Court in case of Gajanan Dattatraya vs Sherbanu Hosang Patel and others 1975 RCJ 672 on this point. Para 17 of this judgent is reproduced hereinunder:
"The provsions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 indicate that a tenant is disentitled to any protection under the Act if he is within the mischief of the provisins of Section 13(1)(e), namely, that he has sublet. The language is that if the tenant has sublet, the protection ceases. To accede to the contention of the appellant would mean that a tenant would not be within the mischief of unlawful subletting if afer the landlord gives a notice terminating the tenancy on the ground of unlawful sub letting the subtenant vacates, the landlord will not be able to get any relief against the tenant in spite of unlawful subletting. In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of subletting every time by getting the subtenant to vacate the premises. The tenant's liability to eviction arises once the fact of unlawful sub letting is proved. At the date of the notice, if it is proved that there was unlawful subletting, the tenant is liabe to be evicted."
5. Same analogy applies here. If in the year 2006 when original petition was filed, the tenant Sh. J.K. Jain had 4% share holding in the company "M/s Sangam Associates Pvt. Ltd." and he RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 4 of 24 was also a director then the subsequent acquisition of shares either by tenant Sh. J.K. Jain or by his son Sh. Anurag Jain would have no effect on this case as Ld. ARC had to decide the eviction petition on the basis of situation prevailing on the date when eviction petition was filed and subsequent events like acquisition of more shares by the tenant in the company alleged to be subtenant are to be ignored.
6. Admittedly, the eviction petition was filed in the year 1986 and till 2006 share holding of the deceased tenant and his LRs remained at the same level and it was only in February, 2006 that Sh. Anurag Jain, LR of original deeased tenant, had purchased further shares in M/s Sangam Associates Pvt. Ltd. The said shares were purchased during pendency of the eviction petition before Ld. ARC and it does not affect the cause of action which had arisen when the subtenancy was noticed, a legal notice given and further thereto when the eviction petition was filed. I am conscious of the fact that in the legal notice the fact regarding creation of subtenancy in favour of M/s Sangam Associates Pvt. Ltd. has not been mentoned but in the eviction petition it has been clearly mentioned that apart from M/s S.K. Jain & Sons, there are 23 other subtenants and tenant was not allowing the landlord to enter the premises. In para 18(a) of the eviction petition, it has been mentioned that for the last 34 years, the tenant had sublet, assigned or otherwise parted with the possession of RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 5 of 24 the whole of the tenanted premises without obtaining the consent of the petitioner in writing to M/s S.k. Jain & Sons, Film Distributor and other portions had been sublet to other 23 concerns. It is further mentioned that the tenant did not allow the petitioner to enter the premises and therefore description and particulars of other concerns were not given.
7. In the written statement, there is bald denial of the contents of para 18(a) of the petition and it has been specifically denied that tenant had sublet, assigned or parted with the possession of the tenanted premises. Tenant claims that telephoe installed in the premises is in his name and apart from other businesses, the tenant was also looking after work of film distribution and exhibition business of one M/s S.K. Jain & Sons on commission basis. It has been emphatically denied that the premises has been sublet to 23 other concerns or that landlord was never allowed to enter the premises in question. The tenant did not intentinally mention anything about the private limited company under the name and style of "M/s Sangam Associates Pvt. Ltd.", although he was fully aware that said company had registered office at the tenanted premises.
8. In the amended written statement (filed in view of order of Ld. Rent Controller dated 19.04.2002), in response to para 18(a)(ii) of the petition, it has been mentioned that poseession and control over RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 6 of 24 the premises had always remained with the tenant. It has been added that deceased tenant (this amended written statement was filed by LRs of deceased tenant) was running one firm M/s Jen Sons Insulators Pvt. Ltd. and he was also running one Picture Hall in the name of Jyoti Cinema and its proprietor is M/s Sangam Associates Pvt. Ltd. and its office was also situated at the tenanted premises. Deceased tenant was stated to be one of the Directors of the said company and no third person had any concern whatsoever with the premises. The deceased tenant was looking after the business of M/s S.K. Jain & Sons on commission basis and he had received a sum of Rs.75,000/ from M/s S.K. Jain & Sons as commission. Telephone No.238065 was installed in the premises in the name of deceased tenant and another telephone No.2919761 was in the name of M/s Jen Sons Insulators Pvt. Ltd. and late Sh. S.K. Jain was the Managing Director of M/s Sangam Associates Pvt. Ltd.; the deceased tenant was doing his business and running a firm under the name and style of M/s Jen Sons Insulators Pvt. Ltd. and said firm was having its sales office in the premises in dispute. It is further mentioned in amended written statement that there was another office of M/s Sangam Associates Pvt. Ltd. in the premises in dispute. The deceased tenant was the Managing Director of M/s Jen Sons and the Director of M/s Sangam Associates Pvt. Ltd. Sh. S.K. Jain was the cousin of the deceased tenant he was Managing RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 7 of 24 Director of M/s Sangam Associates Pvt. Ltd. The entire premises continued to be in possession of the tenant/respondents and they had never parted with or sublet it to any person.
9. While deciding the eviction petition, Ld. Trial Court rightly observed that respondent/tenant had failed to show that he had been actively participating in daytoday affairs of M/s Sangam Associates Pvt. Ltd. or that he was having any effective control over the affairs and activities of M/s Sangam Associates Pvt. Ltd. In his cross examination recorded before pronouncing the initial judgment, an admission is there by the said tenant that he was director of M/s Sangam Associates Pvt. Ltd. but he was not attending its daytoday affairs nor earlier he did so. Even if it is taken that substantial shares were transferred in the name of Sh. Anurag Jain on 28.02.2006, it does not help the tenant in any way and the facts have to be seen as on the date when subtenancy was noticed, legal notice was given or thereafter when the eviction petition was filed in the year 1986 and on the said date original tenant Sh. Jainender Kumar Jain was holding only 800 shares out of total 20,000 shares in M/s Sangam Associates Pvt. Ltd. He was not a promoter of M/s Sangam Associates Pvt. Ltd. and there were only two subscribers in the said company, namely, Sh. K.C. Gupta and Sh. Ajay Gupta, who were not at all related to the tenant and registered office of the said company was shifted to the RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 8 of 24 suit property in the year 1981 from Sector9, R.K. Puram and tenant was given only 800 shares as minimal share holding in the company. Sh. S.K. Jain was holding 3000 shares; Ms. Anita Chhabra was holding 1000 shares; Sh. P. Anand was holding 1400 shares and another shareholder Ms. Kaushal Devi held 2000 shares. Under these circumstances, no fruitful purpose will be served by placing on record the additional share certificates. Hence, this application is liable to be dismissed and same is accordingly dismissed.
10. By way of subsequent application under Order XLI Rule 27 CPC, the appellant wants to bring on record the original bank Pass Book of Canara Bank belonging to tenant Sh. J.K. Jain and a deposit slip counterfoil showing an entry in the year 1987 where a sum of Rs.75,000/ was alleged to have been paid by M/s S.K. Jain & Sons to the tenant Sh. J.K. Jain as commission. Copy of the page of said Pass Book was already on record and only original was not produced alongwith deposit slip. Counsel for the appellant has drawn my attention to the Income Tax Return of Sh. J.K. Jain for the relevant year in which this entry of Rs.75,000/ is duly reflected. As per the appellant, a sum of Rs.75,000/ is commission of tenant which he had earned for rendering services to M/s S.K. Jain and Sons. On the other hand, counsel for the respondent has argued that this sum represents consideration paid by subtenant M/s S.K. Jain & Sons to the tenant RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 9 of 24 for subletting the premises. None of the parties is denying payment of Rs.75,000/. Placing on record original Pass Book will not help this Court to decide as to whether said payment was made for commission earned by the tenant or whether the same is consideration for subletting of the premises. Moreover, there is considerable delay in moving present application. It has been pointed out by Ld. Counsel for the respondent that when present appellant Sh. Anurag Jain was crossexamined in the year 2007, he was specifically put question regarding original Pass Book and copy of the same already on record was shown to him, so he was aware that he had to either produce the original Pass Book or he could have summoned record of the Canara Bank. But the present application has been moved in the year 2018 i.e. after expiry of more than 11 years. The appellant has tried to explain this delay on the basis of some interse dispute/partition of properties among the family members but that ground is not very convincing. If the original Pass Book was not available and appellant was serious to pursue his defence, he could have summoned record from Canara Bank; hence, deleay in filing original Pass Book has not been sufficiently explained and appellant ought to have been vigilent and diligent in filing the documents. But the appellant did not produce documents during trial and he has sought to file the same at the stage of appeal. In his examinationin RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 10 of 24 chief conducted on 08.02.1991 Sh. J.K. Jain had stated that he was working on commission basis with M/s S.K. Jain & Sons and he had received Rs.75,000/ as commission. In his furtherexaminationin chief conducted on 19.05.1994, Sh. J.K. Jain stated that terms of commission for working as commission agent for M/s S.K. Jain & Sons were orally settled but he did not specify any such terms. He did not verify that M/s S.K. Jain & Sons was registered from the address of suit premises with Motion Pictures Association. He volunteered to add that this fact was not in his knowledge. He went to the extent of even denying his participation in the proceedings under Section 19 of the Slum Areas Act, which was contested on merits. Even a Local Commissioner was appointed, who found the posters and other evidence of presence of M/s S.K. Jain & Sons in suit premises. Tenant admitted that he did not obtain any written consent of landlord regarding M/s S.K. Jain & Sons. This receipt of Rs.75,000/, even if placed on record, cannot lead us anywhere as to how it is related to alleged commission or this amount was paid in consideration for allowing M/s S.K. Jain & Sons to run their office from the premises in question.
11. In the present case, no compelling circumstances exist, hence, the aplication filed by the appellant seeking to place on record original Pass Book and deposit slip of Rs.75,000/ is hereby RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 11 of 24 dismissed on the above grounds as being not relevant and application being filed at belated stage without sufficiently explaining the delay.
12. I have heard Ld. Counsel for the parties on appeal and perused the record.
13. Ld. Counsel for the appellants has submitted that impugned judgment is against the facts and evidence. Ld. ARC has failed to appreicate that tenant was a Director of M/s Sangam Associates Pvt. Ltd.; he was also a commission agent of M/s S.K. Jain & Sons and there was no subletting in the tenanted premises; tenant was not attending the daytoday business of M/s Sangam Associates Pvt. Ltd. due to loss of his vision but this fact was ignored by Ld. ARC; findings of Ld. ARC are beyond pleadings of the parties and judgment is based on surmises and cojectures. It is submitted that impugned judgment is liable to be set aside. Reliance has been placed on the following judgments by appellant:
(1) Maj. Genl. A.S. Gauraya and Anr. v. S.N.Thakur and Anr. AIR 1986 SC 1440 wherein it has been held that decision of Supreme Court is binding in nature and law laid down by the Apex Court applies to all pending proceedings even with retrospective effect.RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 12 of 24
(2) Sarla Goel & Ors. v. Kishan Cand 160 (2009) DLT 687 (SC). However, this judgment is on the point as to how the rent is to be paid or deposited when landlord refuses to receive the rent.
(3) Harro Devi vs. Ram Gopal 146 (2008) DLT 524, wherein it has been held that where trial Judge does not consider impact of all evidence brought on record, it is open to 1 st Appellate Court to reappreciate evidence and consider full impact of evidence brought on record. There is no dispute with regard to ratio laid down in this judgment, but this judgment was pronounced on the basis of unamended Section 38 of DRC Act. The amended DRC Act under Section 38 of the DRC Act only allows appeals on the question of law. The said amended Section 38 of the DRC Act is reproduced herein below:
"38. Appeal to the Tribunal. (1) An appeal shall lie from every order of the Controller made under this Act [only on questions of law] to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette."
(4) Akash Ganga Builders & Engineers Pvt. Ltd. vs. G.P. Seth, HUF and another AIR 1999 Delhi 362 wherein it has been held that when letter sent by landlord to tenant showing his inention to terminate the tenancy was not placed on record, but receipt of letter RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 13 of 24 was admitted by tenant, letter could be placed on record and additional evidence should be allowed. That judgment was pronounced in the facts and circumstances of the said case but the facts and circumstances are different as explained in the above paras and additional evidence cannot be allowed in this case. The ratio of this judgment is not applicable to the facts of this case.
(5) Vinod Kumar Arora vs. Smt. Surjit Kaur AIR 1987 SC 2279 wherein it has been held that pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. There is no dispute to the ratio of this judgment but pleadings have to be concise and evidence has to be elaborated. Entire evidence cannot be mentioned in pleadings. In the present case, there is mention of 23 other subtenants in petition and in evidence their names have been disclosed; that the evidence is not beyond pleadings.
(6) Ramesh Kumar & Anr. vs. Furu Ram & Anr. VI (2011) SLT 419 wherein it has been held that no amount of evidence contrary to pleadings can be relied on or accepted. There is no dispute to the ratio laid down in this judgment but here in this case there is no evidence on record which is contrary to the pleadings as explained above.
RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 14 of 24(7) Tola Ram & Sons & Anr. vs. State Bank of India & Anr. 215 (2014) DLT 5 (DHC) wherein it has been held that unimpeachable documents can be allowed to be filed; counter foils of deposit slips of defendant/respondent No.1 bank are unimpeachable documents can be allowed to be filed and proved. In the case in hand, no useful purpose will be served by taking the passbook and counterfoil of deposit slip on record, so ratio of this judgment is not applicable and the application U/o XLI Rule 27 CPC has been accordingly dismissed.
14. On the other hand, it has been argued by Ld. Counsel for respondents that when the landlord had proved that there was sub tenancy in the tenanted premises, the onus shifted to the tenant to disprove subtenancy which they failed to disprove; tenancy was in the individual name of the tenant and not firm; the tenant failed to prove that he was commission agent of M/s S.K. Jain & Sons; even tenant has failed to prove as to how the two telephone connections were installed in the name of Sh. Sanjay Jain, proprietor of M/s S.K. Jain & Sons, when the tenant was only a commission agent; tenant has failed to prove that he was attending daytoday affairs of M/s Sangam Associates Pvt. Ltd., moreover, he was a minority share holder and only 4% shares were in the name of the tenant and RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 15 of 24 majority share holders were some other persons. There is nothing wrong in the impugned judgment and appeal is liable to be dismissed.
15. When the evidence was again led after remanding back of the case, LR of the deceased tenant, Sh. Anurag Jain had reiterated that they were in actual physical possession of the premises in question and premises was never sublet to anyone and the landlord wanted to take undue advantage of a display board of M/s S.K. Jain & Sons found on the premises. The said board was displayed for expanding the business of M/s S.K. Jain & Sons for whom the tenant was working as commission agent and one time commission of Rs.75,000/ was received. It has been further mentioned that all the official records of M/s Sangam Associates Pvt. Ltd. filed with Income Tax Department and Registrar's Office were having signatures of deceased tenant Sh. J.K. Jain as Director and after his death, his LRs are in legal and actual possession of the premises in dispute.
16. In his crossexamination conducted on 25.09.2007, RW1 Anurag Jain admitted that his father had a manufacturing factory at B20, Jhilmil colony for the last 2526 years in the name and style of Bhari Tar Udhyog. Said business was carried out at the aforesaid address till death of father of Anurag Jain. RW1 also admitted that said business was never carried out by deceased tenant from the premises in dispute. He denied the suggestion that his father was not RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 16 of 24 carrying on any business in the premises in dispute for the last 24 years prior to his death. As far as commission business with M/s S.K. Jain & Sons is concerned, RW1 admitted that same was being run in the premises since 198081. He admitted that Sh. Sanjay was son of Late Sh. Santosh Kumar Jain but he denied that after death of Sh. Santosh Jain, Sh. Sanjay Jain, his son, used to run the aforesaid business in the premises in dispute. He reiterated that there was no agreement (i.e. written agreement) between his father and M/s S.K. Jain & Sons to carry on the said business on commission basis. He did not know when said business started or when it was closed. He reiterated that payment of Rs.75,000/ was made by M/s S.K. Jain & Sons to his father in commission account. He did not know as to whether M/s S.K. Jain & Sons used to maintain account books or whether they were filing Income Tax Returns. He denied that M/s S.K. Jain & Sons were carrying on busienss from the suit property but he could not say as to from where the busienss of M/s S.K. Jain & Sons was being carried out. He admitted that M/s Sangam Associates Pvt. Ltd. was runnning its business from a portion at disputed premises. After death of his father, this business is still being carried out by M/s Sangam Associates Pvt. Ltd. from the premises in question and he is one of the directors in the said firm.
RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 17 of 2417. Prior thereto, Sh. Ashok Kumar Shrivastava was examined as AW1 on behalf of appellant. He was a clerk in the office of Registrar of Companies. He brought record of M/s Sangam Associates Pvt. Ltd. He had proved certifies copies of documents pertaining to said company as AW1/1 to AW1/5. In his cross examination, AW1 stated that the company (firm) was started on 13.06.1977 and was having its address (registered office) at United Building, F Block, Connaght Circus, New Delhi. The address was changed to one Mangal Building (premise in dispute) w.e.f. 16.01.1981. In the said firm (company), Sh. J.K. Jain was shown to be one of the Directors. When annual return was filed on 28.09.1985, name of Sh. J.K. Jain was shown as one of the Directors and said practice remained in vogue till 30.09.1999. Name of Sh. J.K.Jain also appeared as one of the Directors on 15.06.1977 and he expired on 20.01.1988.
18. AW2 Sh. Har Nath, was a Sr. Account Officer of MTNL, who had brought the bills in repect of two telephone Nos.3864782 and 3864792 existing in the name of Sh. Sanjay Jain, which were installed at the premises in dispute.
19. Landlord Sh. Hari Nath Rastogi was examined as AW3. He had reiterated the contents of the petition. In para 3 of his affidavit, AW3 stated that besides M/s S.K. Jain & Sons, the tenant RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 18 of 24 respondent had also sublet, assigned or otherwise parted with possession of other portions of the tenanted premises to (i) M/s Jain Sons Insulators Pvt. Ltd. and (ii) M/s Sangam Assciates Pvt. Ltd. without written consent of the petitioner.
20. Ld. Counsel for the respondent No.1 had taken an objection that evidence led by the landlord was beyond pleadings and same cannot be read. In the pleadings in para 18(a)(ii), it has been mentioned that tenant had sublet the premises to M/s S.K. Jain & Sons, a film distributor and other portions were sublet to 23 concerns and since the tenant did not allow the landlord to enter the premises, their description and particulars were not given. Now in evidence, description and particulars of those two firms have been given as M/s Jen Sons Insulators Pvt. Ltd. and M/s Sangam Associates Pvt. Ltd. It is a case of giving full, complete and better particulars of subtenants and it can not be said that evidence adduced by the landlord is beyond pleadings.
21. In his crossexamination, AW3 denied the suggestion that there was no board of M/s S.K. Jain & Sons at the said premises in the year 2004 when crossexamination was conducted. He reiterated in his crossexamination that M/s Sangam Associates Pvt. Ltd. and M/s Jen Sons Insulators Pvt. Ltd. and Jyoti Jain Investment & Finance were also operating from the premises in question.
RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 19 of 2422. In this case, an eviction petition was filed by the landlord Hari Nath Rustogi through his LRs against tenants Jainender Kumar Jain etc. under Section 14(1)(a)(b) & (j) of the DRC Act in respect of property bearing private no.16, in Municipal No.17381741, Bhagirathi Place, Chandni Chowk, Delhi and vide judgment dated 12.07.1995 said eviction petition was dismissed. Said judgment was challenged before the Rent Control Tribunal which dismissed the petition on the ground under Section 14(1)(j) of the DRC Act being not pressed. The eviction petition was allowed by the tribunal under Section 14(1)(a) of the DRC Act and benefit of Section 14(2) of the DRC Act was given to the tenant. As regards the ground of subletting, the matter was remanded back to the Rent Controller; allowing the tenant to file amended written statement and both the parties were permitted to lead evidence afresh on the ground of subletting. Thus, the eviction petition was confined to the ground of subletting only and vide judgment of Ld. ARC dated 24.07.2008 the eviction petition was allowed and an eviction order under Section 14(1)(b) of the DRC Act was passed. According to the landlord M/s Sangam Associates Pvt. Ltd. was a subtenant and the tenant Jainender Kumar Jain had claimed himself to be a Director of the said company. As per documents Ex. AW1/1 to AW1/5 there were only two original subscribers in this company namely Sh. K.C. Gupta and RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 20 of 24 Sh. Ajay Gupta who were not at all concerned with the tenant Jainender Kumar Jain and the registered office of the said company was shifted from R.K. Puram to the suit property in the year 1981. Ex. RW1/5 shows that out of total 20,000 equity shares, respondent/tenant had only 800 shares in his name and thus he was a minority share holder in the company. The documents relied upon by the tenant do not show that Sh. Jainender Kumar Jain had effective control over affairs and activities of M/s Sangam Associates Pvt. Ltd. as all the documents Ex. RW3/A to RW3/P pertained to Jen Sons Insulator Pvt. Ltd. and not to M/s Sangam Associates Pvt. Ltd. Though documents proved on record show that Jainender Kumar Jain was one of the Directors of M/s Sangam Associates Pvt. Ltd. but no document is on record to show that he participated in daytoday affairs of the company. In the crossexamination of the tenant (before initial judgment was passed), he had admitted that he was still Director of M/s Sangam Associates Pvt. Ltd. He also stated that he was not attending day to day affairs of M/s Sangam Associates Pvt. Ltd. nor ever earlier he did so. This admission of the tenant makes it clear that the tenant was not actively participating in the affairs of M/s Sangam Associates Pvt. Ltd. during his lifetime and that the tenanted premises had been sublet to this company but to shield the subletting, the tenant is shown to be one of the Directors holding only minority RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 21 of 24 shares in the company. Moreover, it is duty of the court to lift the veil of such company to find out the real nature of transaction. As the tenant holds only minority shares i.e. 4% and as per his own admission he was never participating in day to day affairs of the company, certainly there was a subletting in favour of M/s Sangam Associates Pvt. Ltd. It was also alleged by the petitioner/landlord that M/s Jen Sons Insulator was also one of the subtenants but the documents proved on record show that tenant himself is the Managing Director of this company and he has been actively participating in its affairs. Thus, it cannot be said that this company was a sub tenant in the premises in dispute. The petitioner had also alleged that M/s S.K. Jain & Sons was also a sub tenant in the tenanted premises. AW2 - a witness from MTNL had proved that telephone bearing no. 3864782 and 3864792 were installed in the name of Sanjay Jain in the said premises. Sh. Sanjay Jain is the sole proprietor of M/s S.K. Jain & Sons after death of his father Sh. S.K. Jain. RW1 (tenant) in his crossexamination admitted that he was working as commission agent of the firm M/s S.K. Jain & Sons but the possession was claimed to be with him. The tenant had relied upon an entry of Rs.75,000/ in his account as one time commission received from M/s S.K. Jain & Sons but except from income tax return Ex. RW3/A showing income of Rs.75,000/ as commission, no RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 22 of 24 other document has been placed on record by the tenant either in the form of his accounts books, balance sheets or an entry in the passbook to show the receipt of Rs.75,000/ as commission from M/s S.K. Jain & Sons. An attempt has been made to place on record a passbook and a counterfoil of deposit slip to prove that Rs.75,000/ was received from M/s S.K. Jain & Sons as one time commission. This application has been dismissed by a speaking order in preceding paras. Even if it is proved that a one time payment of Rs.75,000/ was received from M/s S.K. Jain & Sons but neither the terms and conditions of such agency agreement are on record nor it has been explained as to how only one payment was received instead of regular commission payments. Even if it is presumed that the tenant is a commission agent of M/s S.K. Jain & Sons, but there is no explanation on record from the side of the tenant as to why the two telephones in the tenanted premises were installed in the name of Sh. Sanjay Jain proprietor of M/s S.K. Jain & Sons. This also shows that the tenanted premises was sublet to M/s S.K. Jain & Sons. There is specific clause No.6 in Rent Deed dated 07.12.1973 executed between the tenant Jainender Kumar Jain and landlord Sh. Hari Nath Rastogi that tenant shall not sublet, assign or part with the whole or any portion of the demises premises to anybody without the written consent of the landlord or his heirs. The tenant has violated the said clause in RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 23 of 24 addition to losing his protection under Delhi Rent Control Act due to subletting proved on record. Thus, it was rightly held by Ld. ARC that tenanted premises were sublet not only to one but to couple of subtenants and eviction order under Section 14(1)(b) of the DMC Act was rightly passed.
23. In view of above discussion, I hold that there is no illegality or impropriety in the impugned judgment. Same is accordingly dismissed. TCR alongwith copy of this order be sent to Ld. Trial Court.
File be consigned to record room.
Digitally signed by TALWANT TALWANT SINGH
SINGH Date: 2018.09.12
16:36:48 +0530
Announced in the open Court (TALWANT SINGH)
Dated: 12th September 2018 District & Sessions Judge (HQs)
Rent Control Tribunal
Tis Hazari Courts : Delhi
RCT No. 30237/16 Jinendra Kumar Jain v. Hari Nath Rastogi & Ors. Page 24 of 24