Delhi District Court
Sh. Rakesh Kumar Jain vs M/S Karol Bagh Masala on 4 April, 2019
In the Court of CCJ cum ARC, (Central District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Susheel Bala Dagar
Case No. E819/17
CIS No. 943/17
In the matter of :
Sh. Rakesh Kumar Jain
S/o Late Sh. Mangal Sain Jain
R/o H. No. 140, Katra Mashroo,
Dariba Chandni Chowk,
Delhi110006. ...........Petitioner
Versus
M/s Karol Bagh Masala
Through Sh. Dinesh Aggarwal
at Shop bearing No. 6020, Ward No. VI,
Naya Bans, Gali Arya Samaj, Khari Baoli,
Delhi110006. .......... Respondent
Date of institution : 01.11.2017 Date of reserved for judgment : 26.03.2019 Date of judgment : 04.04.2019 Decision : Petition allowed
1. An eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises, i.e.,Shop including mezzanine situated at ground floor of the property No. 6020, Ward No. VI, Naya Bans, Gali Arya Samaj, Khari Baoli, Delhi110006, as shown in red colour in the site plan annexed alongwith the petition, on the ground of bonafide requirement under Section 14 (1) (e) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').
2. The case of the petitioner is that the petitioner is the owner as well CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 1 of 28 as landlord of the property bearing No. 1394, 2937 (Old) 6020 (New), Ward No. VI, Naya Bans, Gali Arya Samaj, Khari Baoli, Delhi110006 up to ceiling level, without roof/terrace rights, having an area admeasuring 100 sq. yds. by virtue of sale deed duly registered on 16.05.1997. The copy of the Sale Deed is annexed as AnnexureA. After the sale deed dated 16.05.1997 executed in favour of the petitioner, the petitioner has applied for mutation of the property in his name before the Municipal Corporation of Delhi (MCD) and accordingly, the said property was mutated in the name of the petitioner. The copy of the orders of mutation in favour of the petitioner is also annexed as AnnexureB. The previous owner of the said property Sh. Manoj Kumar Sharma S/o Sh. Radhe Shyam Sharma had let out one shop including the mezzanine, and basement situated at ground floor of the suit property to the owner of the respondent, i.e., Dinesh Agarwal for commercial purpose. The factum of tenancy of the respondents is clearly mentioned in the sale deed. After the sale deed, the said tenant/respondents paid the rent to the petitioner. The copies of the counterfoil are annexed as AnnexureC (colly.). The copy of the site plan showing the tenanted premises in colour red is annexed as AnnexureD.
3. Further, it is submitted by the petitioner that the petitioner and his son Mayur Jain are jointly engaged in the business of wholesale trading of daily grocery items at one of the shops situated at suit property. The space available for carrying out the aforesaid business is not sufficient to accommodate the employees and the products. The petitioner is feeling CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 2 of 28 the constrain of space and he has been forced to limit the extent of his business and also limit the number of the employees. The petitioner is unable to display more products to prospective buyers and customers. The constraint of space and employees is having an ill effect on the business prospects of the petitioner as it is necessary to have nice ambiance to attract the customers. Otherwise also, the petitioner and son desire to expand the business by adding the products and or diversify the business for which the petitioner is in need of larger area/more space. Hence, the petitioner bonafide requires more space for expansion of his business activities.
4. It is further submitted by the petitioner that as the son of the petitioner has got married, the petitioner wants his son to stand on his own foot independently and for that his son needs separate space to start/commence his independent business and for that he needs a shop/space so that the same can be provided to the son of the petitioner for commencing his business. Moreso, as the competition is increasing and new varieties and products are coming into the market, the petitioner and his son wants to open an outlet for which more and more space is required for displaying and stocking the product so as to make them available to the customers. Due to the shortage of space, the petitioner and the son of the petitioner are unable to expand their business further and to commence the new business exclusively for the son of the petitioner. Besides the requirement of expansion of business activity, the petitioner and his family need to supplement additional income due to the CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 3 of 28 enlargement of family. The family of the petitioner consists of his wife, one son and daughterinlaw, one married daughter. The petitioner has no other reasonably suitable space/premises available in the territory of Delhi, except the tenanted premises.
On the above stated grounds, prayer is made for eviction of the respondent from the tenanted premises.
5. Summons were served upon the respondent, who appeared and filed leave to defend application which was allowed vide order dated 31.05.2018 and the respondent was granted leave to contest the present eviction petition. Thereafter, the respondent filed written statement denying the contentions made by the petitioner in his eviction petition raising various grounds. It is submitted that initially late Shri Ganga Ram was the owner of the premises in question, who died on 05101974 and on his death the premises in question was inherited by his wife Smt. Narbada Devi, who was his sole survivor. The premise in question was under the tenancy with the partnership firm Karol Bagh Masala Suppliers Company since 1983 under said Smt. Narbada Devi who was the owner / landlady of the premises in question at a monthly rent of Rs.100/, who used to take rent and issue rent receipts to / from the said respondent firm till her death i.e. 03061993. Late Smt Narbada Devi was issueless and as such after her death the premises in question did not devolve upon any other person. Said respondent firm continued in possession and in the circumstances when nobody had claimed any rights of any nature whatsoever qua the premises in question, the possession of the respondent CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 4 of 28 firm became a hostile possession against all persons who might have any interest in the property in question. Accordingly, being in continuous such possession since 1993 till date, the respondent has acquired ownership of the premises in question on the basis of adverse possession.
6. The premises in question was mutated only in the name of Smt. Narbada Devi alone, only because of the reason that Late Shri Ganga Ram had not left behind any other heir. Smt. Narbada Devi had died on 03.06.1993. At page no. 2 of the sale deed, it has been stated that the premises in question was mutated in the name of vendor i.e. Shri Manoj Kumar Sharma vide mutation letter dated 21.06.1995 i.e. after about 2 years from the death of Smt. Narbada Devi. Said Shri Manoj Kumar Sharma was not a heir of Smt. Narbada Devi in reality, who has been otherwise shown to be her grandson, being son of late Shri Radhey Shyam in the said sale deed. Said Radhey Shyam Sharma was not a biological son of late Shri Ganga Ram and Smt. Narbada Devi. The said mutation was manipulated mala fide by Manoj Kumar just to grab the property, finding that no other person had claimed it after the death of Smt. Narbada Devi. Even Manoj Kumar Sharma is not biological son of late Shri Radhey Shyam Sharma. The mutation letter is only for the purpose of payment of property taxes and does not devolve a legal title. Accordingly the said sale deed has been executed by Manoj Kumar Sharma who has no title or interest in the premises in question and has committed fraud in execution of the same in connivance with the purchaser of the premises in question namely Rakesh Kumar Jain, who is CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 5 of 28 the petitioner in the present petition.
7. The petitioner himself does not know the exact description of the property from which it wants to evict the respondent. At page 5 of the sale deed, the respondent is shown to be the tenant with respect to one small shop near main gate on ground floor, whereas the petitioner in the present case is seeking eviction of the respondent with respect to shop including mezzanine and the basement situated at ground floor of the suit property. Petitioner was running his shop in the same building till recently (the same has been rented to a third party post filing of this petition) where the premises in question is situated and thus must be aware about the correct nomenclature of name and style of the respondent firm. But as per the statement of the sale deed, the premises in question has been shown to be under the tenancy of 'Karol Bagh Masala Supplier', whereas the present petition has been filed against 'M/s Karol Bagh Masala', which is not the complete name and style of the partnership firm. Further in the 2 rent receipts filed as Annexure 'C (Colly)', the name of the tenant in receipt dated 15051998 has been shown as 'Karol Bagh Masala SC' and in receipt serial no. 14, which is undated 'Karol Bagh Masala' has been shown to be the tenant. The same has been shown in the title of the present petition also. Accordingly mention of such incomplete name and style of the firm clearly shows that the petitioner has no knowledge about the correct particulars of the partnership firm of the respondent.
8. Shri Manoj Kumar Sharma, the alleged vendor of the premises vide CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 6 of 28 forged sale deed dated 16.05.1997, did not make any effort to attorn the respondent as a tenant and did not collect any rent from the respondent as he knew that he is not the landlord of the premises in question. The petitioner too did not make any effort either to attorn the respondent as a tenant or to collect rent of the premises in question till date. Respondent, for the first time, has come to know about the existence of all such forged and fabricated documents only on receipt of copy of the present petition.
9. Petitioner has annexed two copies of rent receipts and the same has been shown to be countersigned by tenant i.e. signatures of 'Dinesh'. At the time of the dates alleged in the receipts i.e. 15051998 and the undated one, there was no person existing qua the respondent firm as 'Dinesh'. As per the record, the name of the respondent is Dinesh Kumar Aggarwal, which he has changed by adopting due process of law from the name Deen Dayal Aggarwal. This name was changed on 16122000. Prior to this a passport no. A4743694 issued on 05031998 and valid upto 04032008 was issued by the Regional Passport Office, Delhi. The same contained the previous name of the respondent i.e. Deen Dayal Aggarwal. For change of name, Gazette Notification dated 16122000 was issued. Thereafter with the change of name, his changed name Dinesh Kumar Aggarwal was recorded in the new passport bearing no. E0595475 issued on 02012002 and all other documents. The respondent is further annexing a complaint made to SHO Keshav Puram along with the respective NonCognizable Report dated 19032000 as lodged by the respondent under his earlier name and signature i.e. 'Deen Dayal CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 7 of 28 Aggarwal'. Further the respondent had vide intimation letter dated 1202 2001 intimated the Sales Tax Officer about his name change from 'Deen Dayal Aggarwal' To 'Dinesh Kumar Aggarwal'. The petitioner forged the rent receipts in the back dates in the name of 'Dinesh'. Not only this signatures on both the rent receipts have been forged and fabricated by the petitioner. The respondent has not paid any rent through any of such rent receipts. The respondent has already filed a police complaint bearing Daily Diary No. 16 PPTHC with the Chowki Incharge, Tis Hazari Police Chowki on 02.02.2018 against the petitioner for commission of various offences by execution of forged and fabricated documents and playing fraud and thereby cheating the respondent. The respondent has further already moved a separate application under Section 340 of CrPC against the petitioner. True copy of official Gazette Notification dated 1612 2000 is annexed herewith as Annexure 'R1'. True copy of passports are annexed herewith as Annexure 'R1' and 'R3'. True copy of the Criminal Complaint along with Non Cognizable Report dated 19032000 is annexed as Annexure 'R4'. True copy of the intimation letter to Sales Tax Officer dated 12022001 is annexed as Annexure 'R5'. True copy of the Police Complaint dated 02.02.2018 bearing Daily Diary No. 16 PP THC is annexed as 'Annexure - 'R6'. The two counterfoils of the rent receipts is also apparent from the fact that the respondent is wrongly described in these two receipts.
10. The firm M/s Mangal Sain & sons belongs to the petitioner. The petitioner by falsely claiming himself to be the owner of the said property CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 8 of 28 had filed two more eviction petitions in this Court having no. 941/17 titled as Rakesh Kumar Jain v. Rajiv Kumar Gulati and no. 942/17 titled as Rakesh Kumar Jain v. Naresh Kumar in which eviction orders have been passed on 02.05.2018. The petitioner by misrepresenting his position visavis the whole property sold the first and second floor of the whole premises. The petitioner has after filing the present eviction petition, rented out his current shop, as stated above to be under the tenancy of petitioner's firm M/s Mangal Sain & Sons, to a third person whose name is Dinesh. The said Dinesh is running his firm by the name of Dinesh Trading Company in the aforesaid petitioner's existing shop.
11. The petition filed by the petitioner is merely a way for him to sell the premises in question or rent it out further so as to earn quick money. It is submitted that Mr. Mayur Jain son of the petitioner herein is an insurance agent. It is submitted that the petitioner has sufficient accommodation available with him. The petitioner has mentioned his wrong address in the memo of parties as filed alongwith the eviction petition. A different address has been provided by the petitioner in his affidavit.
12. Replication to the written statement of the respondents was filed by the petitioner, wherein the petitioner has denied the contentions made by the respondents in their written statement, reaverring what was averred by him in the eviction petition. It is admitted that the petitioner has been running his shop in the same building; however, it is denied that the same has been tenanted to a third party post filing of this petition. The rent CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 9 of 28 receipts annexed with the petition has been counter signed by the respondent. It is denied that name and style of the respondent is incomplete, moreover, Shri Dinesh Aggarwal is controlling and managing the affairs of the said firm. M/s Karol Bagh Masala Supplier and M/s Karol Bagh Masala are the same firms and both the firms were closed long time back. It is further submitted that the respondent without the consent of the petitioner is currently running his business from the tenanted premises in the name and style of M/s KBM Spices Pvt. Ltd for the last 10 years. It is stated that the respondent used to represent himself as Dinesh and not Din Dayal Aggarwal even prior to the year 2000. One police official from the PS Lahori Gate has visited the shop of the petitioner and recorded his statement and collect the copies of the sale deed and also made inquiry from the other shopkeepers.
13. It is admitted that M/s Mangal Sain & Sons belonged to the petitioner but the said firm was closed in the year 2004. The averments regarding two more eviction petitions are matter of records. It is submitted that the petitioner in order to arrange finances for his medical aid and bills have sold the first and second floor of the property in the year 2005 but the allegations that the petitioner have sold this by misrepresenting his position vis a vis whole are wrong incorrect and denied. It is submitted that at the initial stage the son of the petitioner, Shri Mayur Jain, used to work as an insurance agent but due to ailing health of his father, he extended a supporting hand to his father in his business and since then he is continuously engaged with his father into CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 10 of 28 his business. It is submitted that the petitioner and his son Mayur Jain are jointly engaged in the business of wholesale trading of the daily grocery items which include potato chips, groundnuts, makai poha, sesame seeds (Til), spices, coriander and herbs etc. at one of the shops situated at suit property.
14. It is also submitted that the petitioner is in the process of taking the agency of the spices goods which will require the space of almost 800 900 sq. ft. and the rest of the two shops in which the eviction order is passed does not even fulfill the minimum space requisite for establishing the agency of spices/ kirana goods and the space required for achieving the purpose can only be obtained after evicting the respondent from the tenanted premises. The space for carrying out the aforesaid business is not sufficient to accommodate the employees and the products. The petitioner has been in the business of grocery and now want to expand and diversify his business and he has got a lot of goodwill. Expansion at the same premises shall be most beneficial to the petitioner and his family. The petitioner alongwith his family members have started residing at his Pitampura residence for medical reasons and it is because of this that he was unable to receive the copy of leave to defend.
15. During evidence, the petitioner himself stepped into the witness box as PW1 and deposed on the lines of his eviction petition. Further, he relied upon the following documents :
a) Copy of the sale deed dated 16.05.1997 : Ex. PW1/1
b) Copy of mutation letter dated 29.05.2000 from MCD in name of petitioner : Ex. PW1/2 CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 11 of 28
c) The copies of the counter foils of rent receipts : Ex. PW1/3 (Colly.)
d) Site plan of tenanted premises : Ex. PW1/4
e) Copy of the mutation letter dated 21.06.1995 issued by MCD in favour of the previous owner namely Manoj Kumar : Mark A
16. In his turn, the respondent through authorized representative Shri Dinesh Kumar Aggarwal entered into the witness box as RW1 and deposed on the lines of the written statement. Further, he relied upon the following documents :
a) True copy of the officials Gazette Notification dated 16.12.2000. : Ex. RW1/4
b) True copy of the passport in the name of Deen Dayal Aggarwal issued on 05.03.1998 : Ex. RW1/5
c) True copy of the passport in the name of Dineseh Kumar Aggarwal issued on 02.01.2002 : Ex. RW1/6
d) True copy of the criminal complaint alongwith non cognizable report dated 19.03.2000 : Ex. RW1/7
e) True copy of the intimation letter to sales tax officer dated 12.02.2001 : Ex. RW1/8
f) True copy of the police complaint dated 02.02.2018 bearing daily diary no. 16PPTHC : Ex. RW1/9
g) Ex. RW1/1 to Ex. RW1/3 & Ex. RW1/10 are deexhibited as the same are not taken on record.
17. I have heard the contentions of both the parties and have gone through the record.
Essential ingredients of Section 14(1)(e) of DRC Act, 1958.
i. Petitioner is the owner/landlord in respect of the tenanted premises;
ii. He requires the premises bonafidely for himself or for family members dependent upon him;
iii. He has no other reasonable suitable accommodation.
CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 12 of 28Ownership as well as existence of landlordtenant relationship :
18. In the present petition, the respondent has stated that petitioner is neither the owner nor the landlord of the suit property. Even Mr. Manoj Kumar Sharma, the purported vender as per the sale deed dated 16.05.1997 was never the owner of the said property. The sale deed relied upon by the petitioner is forged and fabricated and does not even contain the signature of the petitioner. Per contra, it is stated by PW1 that he is the owner as well as the landlord of the property, having an area admeasuring 100 sq. yards by virtue of registered sale deed Ex. PW1/1. After execution of the sale deed dated 16.05.1997 in his favour, PW1 applied for mutation of the property in his name before Municipal Corporation of Delhi and the property was mutated in his name vide letter dated 29.05.2000 Ex. PW1/2. He also relied upon the mutation letter dated 21.06.2000 Mark A in favour of the previous owner namely Shri Manoj Kumar. It is submitted that the previous owner had let out one shop including the built up mezzanine floor situated at ground floor of the suit property to the owner of the respondent which fact is mentioned in the sale deed. It is stated that after the sale deed the said tenant / respondent paid the rent to the petitioner upto 31.03.1999, the copies of the counterfoils are Ex. PW1/3.
19. During cross examination RW1 has admitted that his company M/s Karol Bagh Masala suppliers company is the tenant in the suit property since the year 1983 and is presently known as KBM Food Pvt. Ltd. RW1 also admitted to have paid the rent to Smt. Narbada Devi upto CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 13 of 28 the year 1993. RW1 further stated that after death of Narbada Devi in the year 1993 nobody contacted them for collecting the rent. He also stated not to have any knowledge that the petitioner Shri Rakesh Kumar Jain had purchased this property.
20. Perusal of the record shows that in order to prove his ownership over the premises in question, the petitioner has placed on record the copy of the registered Sale Deed dated 16.05.1997 Ex. PW1/1 by virtue of which he has purchased the suit premises from its erstwhile owner for lawful consideration. The said sale deed is duly registered with the office of SubRegistrar, authenticity of which cannot be disputed. The petitioner has also placed on record the copy of the orders of mutation in favour of the petitioner as Ex.PW1/2. On the other hand, the respondent has himself admitting that he entered into the suit premises as a tenant. The copies of the counterfoil are annexed as Ex. PW1/3 (colly.) by the petitioner. Perusal of the sale deed Ex. PW1/1 placed on record shows that Karol Bagh Masala Supplier is stated to be the tenant with respect to one small shop out side near main gate on ground floor of the suit property. The respondent has admitted it to be his company even though he has not placed on record any document of incorporation of the company/ firm. He has also admitted to have made payment of rent to erstwhile owner Narbada Devi to whom the petitioner has traced out the ownership. Thus, the respondent being a tenant, has no right to dispute the title of the petitioner over the premises in question under Section 116 of the DRC Act. Moreover, the Hon'ble Delhi High Court has rightly CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 14 of 28 held in M. R. Sawhey v. Doris Randhawa, AIR 2008 Delhi 110 and followed in Hari Gopal Manu v. B.S. Ojha (RFA No. 388/2015) decided on 10.02.2016 and other such cases that "Once a tenant always remains tenant, unless the status changes by contract or by operation of law" and the respondent has not filed any document to prove otherwise. Thus, the respondent/tenant has no right to question the ownership of the petitioner over the premises in question.
21. Further, as regards the contention raised by the respondent that the petitioner did not make any effort either to attorn the respondent as a tenant or to collect rent of the premises in question till date, it is immaterial that the respondent /tenant attorns to the petitioner/landlord as landlord or not, as law does not require any act of attornment. It is settled principle that in case respondent is admittedly tenant under earlier owner, and once Sale Deed is registered by the earlier owner in favour of petitioner/landlord, any attornment by the tenant to the petitioner/ landlord is not required. Reference may be made to : Sanjay Singh v. M/s Corporate Warranties Pvt. Ltd. (2013) 204 DLT 12; Harvinder Singh v. M/s. Paradise Tower Pvt. Ltd. (2013) 199 DLT (CN) 25; Ambica Prasad v. Mohd. Alam (2015) 13 SCC 13.
22. Another contention of the respondent is that the petitioner himself does not know the exact description of the property from which he wants to evict the respondent. Respondent has referred to page 5 of the sale deed, wherein the respondent is shown to be the tenant with respect to CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 15 of 28 one small shop near main gate on ground floor, whereas the petitioner in the present case is seeking eviction of the respondent with respect to shop including mezzanine situated at ground floor of the suit property. On the other hand, petitioner as PW1 stated that the area of the property in question is mentioned in the documents i.e. the sale deed. Even though PW1 has admitted that he does not know the exact description and measurements of the property in question, however, the respondent has nowhere denied the description as mentioned by the petitioner nor has filed any site plan of his own to contradict the site plan filed by the petitioner and hence, the site plan Ex. PW1/4 filed by the petitioner is deemed to be admitted. It has been held in R.K. Bhatnagar v. Sushila Bhargav 1986 RLR 232, Jagmohan Singh v. K.M. Bhatnagar 1995 RLR 527, V.S. Sachdeva v. ML Grover 67(1997) DLT 737, Harvansha Lal v. Madan Lal 1997 RLR 383 that if a tenant does not file any site plan, then site plan filed by the landlord is assumed to be correct. Thus, the description as stated by petitioner in site plan Ex. PW1/4 is deemed to be correct.
23. One more contention is raised by the respondent is that the petitioner is claiming to be running his shop in the same building, where the premises in question is situated. Hence, he must be aware about the correct nomenclature of name and style of the respondent firm. But as per the statement of the sale deed, the premises in question has been shown to be under the tenancy of 'Karol Bagh Masala Suppliers', whereas the present petition has been filed against 'M/s Karol Bagh Masala', which is CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 16 of 28 not the complete name and style of the partnership firm. Further in the two rent receipts filed as Annexure C (colly.), the name of the tenant in receipt dated 15.05.1998 has been shown as Karol Bagh Masala SC and in receipt serial no. 14, which is undated Karol Bagh Masala has been shown to be the tenant. The same has been shown in the title of the present petition also. It is stated that mentioning of such incomplete name and style of the firm shows that the petitioner has no knowledge about the correct particulars of the partnership firm of the respondent and the claims made in the petition are false to the knowledge of the petitioner. It is stated that the petitioner vide his replication is claiming that the partnership firm Karol Bagh Masala Suppliers Company was closed and that the respondent is running its business from the property in question in the name of the firm M/s KBM Spices Pvt. Ltd for last 10 years without the consent of the petitioner. It is alleged that the petitioner has not mentioned this fact either in his eviction petition or in his reply to the leave to defend application. Moreover, it is the petitioner who has impleaded the said partnership firm as the respondent and not M/s KBM Spices Pvt. Ltd in the present proceeding. It is stated that the petitioner is not running a shop beside the property in question and that present eviction petition has been filed on the basis of mere surmises and conjunctures. It is stated that M/s KBM Spices Pvt. Ltd had taken over all the rights and liabilities of the partnership firm Karol Bagh Masala Suppliers Company which was formed/ constituted on 21.04.1969 vide partnership deed of the same dated. RW1 stated that he was inducted as CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 17 of 28 a partner of the said partnership firm vide partnership deed dated 30.10.1995. RW1 stated that he was mentioned / represented as Deen Dayal Aggarwal in the said partnership deed dated 30.10.1995. All the assets and liabilities including all the movable assets and immovable assets of the said partnership firm was duly transferred to M/s KBM Spices Pvt. Ltd vide agreement of succession of business dated 23.01.2002. The name of the said company was changed to M/s KBM Foods Pvt. Ltd on 18.05.2015.
24. During crossexamination RW1 himself has admitted that his company M/s Karol Bagh Masala Suppliers Company is a tenant in the suit property since the year 1983, presently known as KBM Foods Pvt. Ltd. They have paid rent @ Rs. 100/ per month to Smt. Narbada Devi upto the year 1993. The respondent firm was converted into the company, i.e. KBM Foods Pvt. Ltd in the year 2001. Further RW1 voluntarily stated that initially the firm was converted into the company KBM Spices Pvt. Ltd and later on, in the year 2015, the name of the company was changed to KBM Foods Pvt. Ltd. Further, RW1 admitted not to have informed regarding the changes as above to the landlord/ owner of the suit property stating that as Smt. Narbada Devi had expired and after her demise no one came forward to collect the rent on her behalf to whom they could inform.
25. That being the case, once RW1 has himself admitted not to have informed about the change of name of the respondent firm and its conversion to company, the respondent cannot be allowed to take benefit CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 18 of 28 of its own concealment / not informing the landlord/ owner of the tenanted premises about these change. In case, it is alleged none came forward to collect the rent, the respondent could have deposited the rent by moving application under Section 27 of the DRC Act. Thus, the said contention of the respondent regarding change of name of the respondent firm is not found to be tenable. Moreover, no document of the alleged partnership, agreement of succession, copy of the incorporation certificate of change of name of said company from KBM Spices Pvt. Ltd to KBM Foods Pvt. Ltd and alleged MCD health licence of the respondent has been proved by respondent. Hence, the submissions of the respondent have remained bald assertions without being supported by any documentary proof. On the other hand, the rent receipt Ex. PW1/3 are on record mentioning the name of the respondent. The respondent has no where disputed that M/s Karol Bagh Masala Suppliers Company is one and the same firm/ company and he is the one through whom the said firm/ company is being represented.
26. It is contended by the respondent that the petitioner has annexed two copies of rent receipts as Ex. PW1/3(colly.), showing payment of rent in receipt bearing serial no. 3 dated 14.05.1998 for the period 01.04.1997 to 31.03.1998 for Rs. 1,200/ and the same has been shown to be countersigned by tenant, i.e. signatures of 'Dinesh'. Similarly, the receipt bearing serial no. 14 is undated which is for payment of rent from 01.01.1998 to 31.03.1999, bearing the same signature of 'Dinesh'. At the time of the dates alleged in the receipts, i.e. 15.05.1998 and the undated CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 19 of 28 one, there was no person existing qua the respondent firm as 'Dinesh'. It is submitted that as per the record, the name of the respondent is Dinesh Kumar Aggarwal, which he has changed by adopting due process of law. The name Deen Dayal Aggarwal was changed on 16.12.2000. Respondent has relied upon his passport issued on 05.03.1998 Ex.RW 1/5 to show that it contained the previous name of the respondent, i.e. Deen Dayal Aggarwal. For change of name, Gazette Notification dated 16.12.2000 Ex. RW1/4 was issued. It is stated that prior to 16.12.2000, the name of the respondent was Deen Dayal Aggarwal and thereafter with the change of name, his changed name Dinesh Kumar Aggarwal was recorded in the new passport Ex. RW1/6 issued on 02.01.2002. It is submitted that perhaps, the petitioner was not aware of these facts and that is why he forged the rent receipts in the back dates in the name of 'Dinesh'. It is stated that the respondent has not paid any rent through any of such rent receipts.
27. During crossexamination RW1 stated that no question arises to inform about the change of his name to the landlord because the premises under tenancy in the name of the firm/ company. Once, RW1 has admitted that the tenancy is in the name of the firm/ company then the change of name of RW1 remains of no consequence and there is no question of disputing the tenancy due to name change of RW1.
28. It is nowhere the contention of the respondent that prior to change of his name vide notification Ex. RW1/4, he never used to sign as Dinesh.
CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 20 of 2829. Similarly, the argument regarding description of the respondent in the two counter foils of the rent receipts disputing the name of the respondent remains of no consequence as the name of the respondent is duly mentioned in the sale deed. Moreover, the name of the respondent/ its partner/ director / authorized representative is required in order to identify the respondent correctly. Once, the identity of the respondent as a tenant is duly established in the tenanted premises, change of name by the respondent / its partner/ authorized representative who are duly identified remains of no consequence, more so when the said change of name was not communicated to the petitioner/ landlord/ owner and no efforts was made in this regard by the tenant.
30. Thus, from the documents filed on record by the petitioner as well as the above discussion, the ownership of the petitioner over the premises in question for the purpose of the DRC Act as well as existence of landlordtenant relationship between the petitioner and the respondent stands duly proved.
Bonafide requirement and availability of alternate suitable accommodation
31. It is submitted by the petitioner that the petitioner and his son Mayur Jain are jointly engaged in the business of wholesale trading of daily grocery items which includes potato chips, groundnuts, makai poha , sesame (til) seeds, spices, coriander and herbs etc at one of the shops situated at suit property. PW1 is in the process of taking the agency of the spices goods which will require the space of almost 800 CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 21 of 28 900 sq. ft. and the rest of the two shops in which the eviction order is passed does not even fulfill the minimum space requisite for establishing the agency of spices/ kirana goods and the space required for achieving the purpose can only be obtained after evicting the respondent from the tenanted premises. The space available for carrying out the aforesaid business is not sufficient to accommodate the employees and the products. The petitioner is feeling the constrain of space and he has been forced to limit the extent of his business and also limit the number of the employees as the space in which he is running the business is not sufficient to accommodate the employees and the petitioner is unable to display more products to prospective buyers and customers. The constraint of space and employees is having an ill effect on the business prospects of the petitioner as it is necessary to have nice ambiance to attract the customers. Otherwise also, the petitioner and son desire to expand the business by adding the products and or diversify the business for which the petitioner is in need of larger area/more space. Hence, the petitioner bonafide requires more space for expansion of his business activities.
32. It is further submitted by the petitioner that as the son of the petitioner has got married, the petitioner wants his son to stand on his own foot independently and for that his son needs separate space to start/commence his independent business and for that he needs a shop/space so that the same can be provided to the son of the petitioner for commencing his business. Moreso, as the competition is increasing CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 22 of 28 and new varieties and products are coming into the market, the petitioner and his son wants to open an outlet for which more and more space is required for displaying and stocking the product so as to make them available to the customers. Due to the shortage of space, the petitioner and the son of the petitioner are unable to expand their business further and to commence the new business exclusively for the son of the petitioner. Besides the requirement of expansion of business activity, the petitioner and his family need to supplement additional income due to the enlargement of family. The family of the petitioner consists of his wife, one son and daughterinlaw, one married daughter. The petitioner has no other reasonably suitable space/premises available in the territory of Delhi, except the tenanted premises.
33. Per contra it is stated by RW1 that the petitioner is malafide and falsely stating that he alongwith his son Mayur Jain is engaged in the business of wholesale trading of daily grocery items and that they need the suit premises bonafide so as to expand his business. The fact that the petitioner have recently rented out his own shop to a third person/ party who is running his firm from there and Mr. Mayur Jain being a professional insurance agent having no connection whatsoever with the alleged business of whole sale trading clearly shows that the statement with regards to the expansion of this alleged nonexistent business is blatantly false and wrong. The petitioner in his cross examination conducted on 05.12.2018 accepted that his son is an insurance agent currently. The respondent came to know about the extreme ill health of CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 23 of 28 the petitioner. The petitioner was not able to walk without external / another person's support due to paralysis and further he was not able to give answers put forth during his crossexamination clearly due to him suffering from throat cancer. The petitioner has deliberately suppressed material facts in his petition. The petitioner has attached no proof of his bonafide requirements visavis the property in question. The petitioner has attached no proof whatsoever which can show that he is running his business in the shop beside the property in question. The petitioner has attached no proof whatsoever to show that he wants to expand his business. Petitioner has not been able to produce any necessary license or document including MCD health trade license, GST registration, etc. with regards to the shop, which he is claiming to be running beside the property in question. It is submitted that the petitioner on the basis of false facts had filed two more eviction petitions having no. 941/17 titled as Rakesh Kumar Jain v. Rajiv Kumar Gulati and no. 942/17 titled as Rakesh Kumar Jain v. Naresh Kumar. These eviction petitions were filed against M/s Prem Sagar & Sons and Naresh Kumar Azad Kumar. Subsequent to the filing of this present petition that the petitioner sold the first and second floor of the whole premises. Further the petitioner has recently, after filing the present eviction petition, rented out his current shop under the tenancy of petitioner's firm M/s Mangal Sain & Sons, to a third person whose name is Dinesh. The said Dinesh is running his firm by the name of Dinesh Trading Company in the aforesaid petitioner's existing shop.
CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 24 of 2834. During crossexamination, RW1 stated that the petitioner was earlier doing business with his brother in the name of Mangal Sen Jain and Sons and presently he has let out his shop on rent. However, RW1 does not know the name of the person to whom the petitioner has let out his shop nor he can produce any document regarding the same. Further, RW1 stated that he does not have any proof to show that there are six tenants in the suit property as alleged by him in his affidavit Ex. RW1/A. Thus, from the own version of RW1 the respondent has not been able to proof that the petitioner is not doing any business from the suit property. Hence, the version of the respondent has remained a bald assertions. On the other hand, PW1 has admitted that he suffered ill health in the year 2002 and paralysis in the year 2011. It is nowhere stated that the petitioner is not able to do any work because of his diseases. Moreover, petitioner has admitted that his son became an insurance agent in the year 2004 and till date he is an insurance agent. However, being an insurance agent does not mean that the son of the petitioner cannot start his own business from the premises owned by his father. Further, PW1 has admitted to have sold the first and second floor of the property in the year 2002 when he had cancer. It is settled law that footfall of customers on the ground floor is far more than that on the first and second floor of any property and the said property has already been sold of in the year 2002. PW1 has further stated that he is doing the business of moongfali dana/ kiryana items in the shop near the tenanted premises by the name of Jainex and Company. There are two persons working in his firm and he CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 25 of 28 has told name of one of the employees as well. Further, as regards the eviction order the petitioner has admitted that he has obtained eviction order for two premises one of which is smaller and other is larger than the tenanted premises and he wants to sell spices from his shop.
35. It is not necessary for the petitioner to submit a project report of his business to the tenant in order to get evicted the premises in his ownership. Moreover, petitioner has categorically stated that he requires about 900 sq. ft. area for business of himself and his son. Filing of eviction petition against the other tenants of the suit property further point out that the requirement of the petitioner for the entire suit property for expansion of business of himself and his son is bonafide for which he is taking all possible steps. In Joginder Pal v. Naval Kishore Behl, 2002 (1) RCR Rent 583 (SC) it has been held that in bona fide requirement case, landlord is entitled to evict tenant from non residential premises for use of his family member or a person who is dependent on landlord or on whom the landlord is dependent It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent. If a landlord wants to start his own business in the premises owned by him then by no stretch of imagination, it can be said that the requirement of the landlord for the premises is neither bonafide nor genuine. The petitioner, being the landlord, is well within his right to expand his existing business in order to settle his children to enable them to stands on their own legs and to enhance his family income for his growing family. The respondent, being a tenant, cannot dictate CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 26 of 28 terms upon the petitioner/landlord in this regard. Moreover, in Sarla Ahuja v. United India Insurance Co. Ltd., AIR 1999 SC100", it was held that "...The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...". Thus, the bonafide requirement of the petitioner qua the tenanted premises for expansion of his business and to settle his children in the said business stands duly proved. It is also proved that there is no other alternate suitable accommodation available with the petitioner other than the suit property.
36. Thus, the petitioner has successfully proved all the essential ingredients of Section 14(1) (e) of the DRC Act. Accordingly, the eviction petition filed by the petitioner against the respondent under Section 14(1) (e) of the DRC Act is allowed. Petitioner is held entitled for recovery of the tenanted premises i.e. Shop including mezzanine situated CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 27 of 28 at ground floor of the property No. 6020, Ward No. VI, Naya Bans, Gali Arya Samaj, Khari Baoli, Delhi110006 as shown in red colour in the site plan Ex. PW1/4 annexed alongwith the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14(7) of the Act. Keeping in view the facts & circumstances of the case, no order as to costs.
Digitally signed by SUSHEEL SUSHEEL BALA DAGAR
BALA DAGAR Date: 2019.04.05
18:51:15 +0530
Announced in open Court (Susheel Bala Dagar)
on 04th Day of April, 2019 CCJ cum ARC(Central)
Tis Hazari Courts, Delhi.
(This judgment contains 28 pages.)
CIS No. 943/17 Rakesh Kumar Jain v. M/s Karol Bagh Masala Page 28 of 28