Delhi District Court
M/S Bansal Trading Corporation vs Sh. Pravin Mehta on 28 September, 2012
IN THE COURT OF SH. PITAMBER DUTT; AD&SJ (CENTRAL)-17,DELHI
Suit No. 46/2011/1997
Unique Case ID No.02401C003191995
M/s Bansal Trading Corporation
2, Ram Chander Lane
Civil Lines,
Delhi- 110054
.....Plaintiff
Versus
Sh. Pravin Mehta
Prop. Of M/s Vap Enterprises
H-24, Green Park Extension
New Delhi- 110016
.....Defendant
Date of Institution of Suit : 05.05.1995
Date when reserved for orders : 18.09.2012
Date of Decision : 28.09.2012
JUDGMENT
1. Vide this judgment I shall decide the suit for recovery of immovable property, arrear of rent and damages/mesne profits against the defendant. The brief facts necessitated in filing the present suit are given as under:-
2 That plaintiff is a partnership firm duly registered with the Registrar of Firms under the provision of Indian Partnership Act. In December 1985, plaintiff let out a portion of the front hall having covered area of about 900 sq ft. alongwith left hand drive way and part of the lawn in front portion of Hall situated on the ground floor of the property Suit no. 46/2011/1997 Page 1/33 ( Hereinafter called the suit premises). The tenancy of the defendant was on month to month basis as per English calendar month. The defendant has been paying rent @ Rs. 8,050/- per month. He was an habitual defaulter in paying the rent and had never paid rent in time. The defendant has paid the rent up till 31.03.1993 and rent w.e.f 1.04.1993 is due and recoverable. The plaintiff did not like to keep the defendant as its tenant, accordingly plaintiff terminated the tenancy of the defendant vide legal notice dated 11.07.94. The said notice was duly served upon the defendant, however, despite service of the legal notice defendant has failed to comply with the demand made by the plaintiff in the said notice.
3 The defendant has not paid the rent from 01.04.1993 to 31.07.1994 till the termination of his tenancy. Thus a sum of Rs. 1,28,000/- is due and recoverable towards arrear of rent. As per the plaintiff the occupation of the defendant in the suit property from 1.8.1994 is unauthorised for which defendant is liable to pay Mesne Profit @ 1000/- per day. On the basis of the above averment present suit has been filed for adjudication.
4 Pursuant to the summons defendant appeared and filed has written statement making averment that one Mr. Shyam Charan Gupta ( since deceased) had let out the suit premises to the defendant in December, 1985. The said Shyam Charan Gupta had represented at that time that the rent of the premises be paid in the name of a firm known as M/s Bansal Trading Corporation, of which he was one of the nine partners. It is further averred that the premises was let out to the defendant in December 1985 by Sh. Shyam Charan Gupt and it was on his representation a lease agreement dated 18.12.1985 was executed between M/s Bansal Trading Company and the defendant. The rent of Suit no. 46/2011/1997 Page 2/33 the premise used to be paid by the defendant to M/s Bansal Trading Corporation as desired by Sh. Shyam Charan Gupta. As per defendant the lessor of the premises was Mr. Shyam Charan Gupta and after his death in about February 1992 his heirs and legal representatives became the lessor of the premises qua the defendant, even though the rent was still continue to be paid by the defendant through cheques in the name of M/s Bansal Trading Corporation. There was no relationship of land lord and tenant between the defendant and the then existing earlier firm M/s Bansal Trading Corporation. It is denied that plaintiff is a partnership firm. It is also denied that it is registered with Registrar of firm under the provision of Indian Partnership Act 1932.
5 It is stated that M/s Bansal Trading Corporation was the partnership firm and the said partnership should dissolved on the death of Mr. Shyam Charan Gupta in February 1992. In spite of the repeated requests of the defendant, Mr. Pradeep Kumar and Mr. Parveen Kumar two ex-partners of the dissolved firm had been visiting the premises after the death of Mr. Shyam Charan Gupta, did not intimate the defendant about the names and other particulars of all real and lawful lessors of the premises qua the defendant. It is further stated that even if earlier firm M/s Bansal Trading Corporation was named as lessor of the premises qua defendant yet in fact the lessor of the premises qua the defendant would be the nine partners of the said earlier from in their individual capacity and after the death of Sh. Shyam Charan Gupta the remaining partners of the said dissolved firm alongwith the heirs and legal representative of the deceased Shyam Charan Gupta became the lessors of the premises qua the defendant and plaintiff firm cannot be treated as the lessor of the premises qua the defendant.
Suit no. 46/2011/1997 Page 3/336 It is further averred that tenancy of the defendant was never terminated. It is denied that occupation of the defendant from 1.08.1994 is unauthorised or illegal. Notice dated 11.07.1994 was never served upon the defendant. It is denied that plaintiff is entitled to recover damages for the use and occupation of the premises. It is also denied that defendant is liable to pay a sum of Rs. 2,73,800 or any other amount on account of charges for use and occupation of the premises till the filing of the suit. It is stated that defendant has been legal possession of the premises and he is liable to pay rent and that, too, to the real and lawful lessors of the premises. All other averments have also been denied. It is prayed that suit be dismissed with cost.
7 The plaintiff filed replication to the written statement thereby reiterating the averment made in the plaint and denied the averment made in the written statement.
8 On the basis of the pleadings of the parties the Ld. Predecessor of this court vide order dated 14.05.1997 framed the following issues for adjudication:
1. Whether the plaintiff firm is registered with the Registrar of firms and the suit has been signed, filed and instituted by competent person? OPP
2. Whether the plaintiff has not locus-standi to file the present suit? OPD
3. Whether the defendant was served with the legal notice dated 11.07.94, if so its effect? OPP
4. Whether defendant is not liable to pay Rs. 1,28,000/- on account of arrears of rent as claimed? OPD
5. Whether the defendant is liable to pay damages as claimed, if Suit no. 46/2011/1997 Page 4/33 so at what rate? OPP
6. Whether plaintiff is entitled for relief of possession and of recovery of rent & damages as claimed? OPP
7. Relief
9 Thereafter an application under Order 14 Rule 5 CPC was filed by the defendant. The said application was disposed off by the Ld. Predecessor or this court vide order dated 09.08.2000 and the following additional issue No. 2A has been framed.
Addl. Issue
2A. Whether the suit is bad for non-joinder and mis-
joinder of parties? OPD
10 In order to prove its case, plaintiff has examined Shri
Pradeep Kumar Gupta as PW-1 who reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited the certificate of Registration as Ex. PW-1/1, certified copy of form A issued by Registrar of Firms as Ex. PW-1/2, Site Plan Ex. PW-1/3, Copy of legal notice Ex. PW-1/4, Postal receipt Ex. PW-1/5, A.D card Ex. PW-1/6, the Partnership Deed dated 01.04.1988 as Ex. PW-1/7, Re-constructed Partnership Deed dated 12.03.1991 as Ex. PW-1/8.
11 During cross-examination PW-1 briefly deposed that they are four brothers, namely, Yashpal Gupta, Parveen Gupta, Yogender Gupta and himself. When the tenancy of the defendant commence he was about 16 years of age. Again said 26 years of age. He was not present when the premises was let out to the defendant. At that time his father was dealing with the property. He admitted that his father used to talk to the tenants. He volunteered that he used to act as one of the partners of Suit no. 46/2011/1997 Page 5/33 Bansal Trading Corporation. He does not know when the firm M/s Bansal Trading Corporation was constituted. His father had handed over partnership deed of Bansal Trading Corporation which was constituted for the first time. He further stated that at the time of institution of the present suit the partnership deed which he had seen after the death of his father was in his possession and even till today it is in his possession. He admitted that copy of the same is not on record. He further stated that he cannot tell about the name of the bank where the account of M/s Bansal Trading Corporation was in the year 1980-85. The tenancy was commenced from December 1985, it may be 19.12.1985 as he remember. There was agreement in writing regarding the tenancy. He has original tenancy agreement in his possession. He cannot tell without going through the document whether period of tenancy has not been mentioned in lease agreement. He does not remember whether he was served with legal notice for production of original documents including lease agreement and partnership deed etc. His father has signed as lessor and Parveen Mehta had signed the same as Lessee. He volunteered that his father had signed the lease deed as one of the partners of M/s Bansal Trading Corporation. He further stated that his father had executed document for leasing out the suit property in the name of M/s Bansal Trading Corporation before 1985. It was leased out to M/s Bansal Trading Corporation prior to the year 1985. He further stated that M/s Bansal Trading Corporation is paying the rent as on date to the owner of the suit property. He further stated that he has brought the original lease agreement which is filed on record. Partnership dated 12.03.1991 is in his possession but he has not brought the same. The lease deed filed by him bears his father's signatures at point X which is Ex. PW-1/X1. He denied that plaintiff firm has nothing to do with the tenancy of the suit premises. He further stated that he alongwith Suit no. 46/2011/1997 Page 6/33 advocate and accountant etc of the firm went to the office of Registrar of firms for the registration of the partnership firm in the year 1985. He had gone for the registration of the firms once or twice. He has not brought the original partnership deed Ex. PW-1/7 and Ex. PW-1/8. He denied that original partnership has not been filed because the photocopy of the partnership deeds Ex. PW-1/7 and Ex. PW-1/8 are forged documents. He admitted that partnership firm was not registered in the year 1985. He admitted that his father was a busy person and therefore, he had employed the person to collect rent. In the year 1985 as well as in the year 1991 there were about 13-14 tenants in premises No. H-24, Green Park Extn. He admitted that after the death of his father employees continuously collecting rent from the respective tenants. Most of the time they used to collect the rent from the premises of the defendant except one or two times when defendant himself would have sent the rent at their place either through post or through person. He admitted that there is a clause in lease agreement Ex. PW-1/X1 that on increase of rent @ 15% after every three year the lease may be extended or renewed. He further admitted that after three years the rent was increased by 15% and the tenancy of defendant was renewed for another three years in accordance with lease deed. He denied that plaintiff firm was created only to file the present suit. He denied that for the first time the plaintiff firm was constituted and registered in the year 1995. He further stated that notice was given to the defendant prior to filing of the suit through speed post. He denied that no notice was sent to the defendant through speed post. Again said notice would not have sent through Speed post, it was sent through registered A.D. He denied that neither defendant received any notice nor he was served with the notice through any other mode. He denied that A.D Ex. PW-1/6 is not related to Ex. PW-1/5. He further denied that it was Sh. Shyama Charan Gupta who leased out the Suit no. 46/2011/1997 Page 7/33 property to the defendant. He also denied that tenancy of the defendant was perpetual with a clause that after every three years the rent would be increased @ 15% and the tenancy shall be automatically stands renewed. He denied that plaintiff firm has no connection with the firm, Bansal Trading Corporation which existed as on 18.12.85. He also denied that defendant never paid the rent to the plaintiff firm at any point of time till the institution of the suit.
12 In order to answer the claim of the plaintiff, the defendant examined himself as DW-1 and reiterated the averment made in the written statement in his examination in chief. He exhibited the letter of MCD as Ex. DW-1/1.
13 During cross-examination DW-1 briefly deposed that he first paid the rent of the suit property in December 1985 to late Shri Shyam Charan Gupta. He admitted that rent deed with respect to the suit premises was signed between him and Shri Shyam Charan Gupta. He had seen the document Ex. PW-1/X1, this was the agreement in reference. He denied that M/s Bansal Trading Corporation was the lessor and M/s Vap Enterprises was the lessee. He admitted that he always paid the rent to M/s Bansal Trading Corporation. He volunteered that he mean the M/s Bansal Trading Corporation of 1985. He did not see the constitution of M/s Bansal Trading Corporation ever. At the time of signing agreement, Shri Shyam Charan Gupta told him that Bansal Trading Corporation is a namesake entity created for saving taxes. He denied that M/s Bansal Trading Corporation is a registered firm. He further stated that he is not able to recollect whether he had written any letter that he does not accept Bansal Trading Corporation as his lessor as Sh. Shyam Charan Gupta is his landlord. He can neither admit or deny Suit no. 46/2011/1997 Page 8/33 his signatures on letter dated 18.03.1989. The document is Ex. DW-1/P2. He denied that Shri Pradeep Gupta was one of the partner of Bansal Trading Corporation on the day execution of lease deed. He denied that M/s Bansal Trading Corporation was a tenant in premises bearing No. H-24, Green Park Extn. New Delhi who has sublet the premises to him. He has seen notice Ex. PW-1/4 but the same was never received by him. He cannot say whether the seal at point B on Ex. PW-1/6 of his firm Vap Enterprises. He further stated that document Ex. PW-1/6 bears his correct address at point C. He is not aware whether Shri Pradeep Gupta is the son of Shri Shyam Charan Gupta. For the first time, he came to know about the death of Shri Shyam Charan Gupta in March 1993 from Hitesh, Yashpal etc. He is not able to remember whether any person had written any letter to him claiming rent after the death of Shri Shyam Charan Gupta. He had seen the letter dated 24.07.1993 shown to him by the ld. counsel. He has not received this letter Ex. DW-1/P3. He has seen the postal receipt Ex. PW-1/P3. It does not bears his correct address. He is not aware whether he filed any inter- pleader suit before any court of law stating that many persons are claiming rent from him and he is not aware who is entitled to receive the rent so that it may be determined by the court to whom he has to pay the rent. He admitted that rent has always been paid by them in the name of M/s Bansal Trading Corporation of 1985. He does not have any document to show that prior to 1985, M/s Bansal Trading Corporation was some other entity and after 1985 it became some other entity. He has not gone into the aspect that what can be the current market rent of the premises in question. He cannot say whether the current rental market value of the premises in question is much more than Rs. 1000/-. He has not written any letter to Shri Shyam Charan Gupta saying that he did not recognize M/s Bansal Trading Corporation was his landlord or Suit no. 46/2011/1997 Page 9/33 that he only recognize Shri Shyama Charan Gupta as his landlord. He denied that M/s Bansal Trading Corporation was his landlord. Nobody wrote any letter to him claiming the rent or asking him not to pay the rent to M/s Bansal Trading Corporation.
14 I have heard, ld. counsel for the parties and perused the pleadings, evidence and other material placed on record. My issuewise findings is as under:
Issue No. 1: Whether plaintiff firm is registered with the Registrar of firms and the suit has been signed, filed and instituted by competent person? OPP
15 Plaintiff has averred in para 1 of the plaint that plaintiff is a partnership firm duly registered with the Registrar of firms under the provisions of Indian Partnership Act. It is further averred that Sh. Pradeep Kumar Gupta is one of the registered partner who is authorised and competent to sign, verify, institute and prosecute the suit on behalf of the plaintiff firm. The defendant has denied the very existence of the plaintiff firm in corresponding para of written statement. He has also denied that plaintiff is duly registered firm with the Registrar of Firms under the Indian Partnership Act 1932.
16 In order to prove their case, both the parties have led their respective evidence.
17 An examination of the pleadings and evidence placed on record clearly shows that plaintiff has placed on record a copy of partnership deed Ex. PW-1/8 as well as certified copy of Form A & and copy of form B Ex. PW-1/1 & Ex. PW-1/2 issued by Registrar of Firms. A perusal Ex. PW-1/1 & Ex. PW-1/2 clearly shows that plaintiff is a Suit no. 46/2011/1997 Page 10/33 registered partnership firm consisting five partners and Sh. Pradeep Kumar Gupta who has filed the instant suit is a registered partner of the said partnership concern.
18 Ld. Counsel for the defendant contented that plaintiff has not placed on record the original of the partnership deed as well as registration certificate, therefore, plaintiff has failed to prove that it is a registered partnership firm under the Partnership Act 1932.
19 The above contention of ld. Counsel for the defendant cannot be accepted for the simple reason that plaintiff has placed on record certified copy of form A and copy of form B as Ex. PW-1/1 & 2 which clearly shows that plaintiff firm is a registered partnership firm. It is also relevant to point out that at the initial stage the defendant had filed an application under Order 11 Rule 12 & 14 CPC for seeking direction to the plaintiff to produce the original record of partnership deed of Bansal Trading Corporation from the year 1985 till date as well as Registration certificate issued by the Registrar of Firms under Partnership Act. The said application was heard by ld. Predecessor of this court and same was dismissed vide order dated 09.01.2004 holding that the document regarding ownership are not required to be produced in court neither the registration certificate/partnership deed of Bansal Trading Corporation is required to be proved because the rent even after the death of Sh. Shyam Charan Gupta was being paid to the present plaintiff and the tenancy continued vis-a-vis the present plaintiff. For the same reason, the sale deed is also not required to be produced.
20 The ld. Predecessor of this court further held that none of the documents asked for by the defendant is necessary and relevant in Suit no. 46/2011/1997 Page 11/33 this case. The said order passed by ld. Predecessor of this court was challenged by the defendant before the Hon'ble High Court by filing C.M.Main No. 106 of 2004 however the said petition was dismissed by the Hon'ble High Court vide order dated 16.02.2006 thus the order passed by the Ld. Predecessor has attained finality. In view of the aforesaid order passed by the ld. Predecessor of this court the contention of ld. Counsel for the defendant that plaintiff has not proved on record that it is a registered partnership firm is not tenable.
21 It is also relevant to point out that by way of present suit plaintiff is seeking enforcement of his statutory right under transfer of Property Act because after the determination of the tenancy by issuing legal notice under Section 106 of Transfer of Property Act, the defendant was under a statutory obligation to deliver back the possession of the premises but he failed to do so as per the plaintiff. In such case the landlord cannot physically throw out such tenant by force. It must got adjudicated its claim through a competent court as per the relevant law. The status of the erstwhile tenant has to be treated as a tenant at sufferance akin to a tress pass having no independent right to continue in possession. In a suit by landlord against the erstwhile tenant claim for possession by itself has nothing to do with the contract of tenancy which has already come to an end, therefore, the present suit has not arisen out of contract of tenancy which has already come to an end after service of legal notice Ex. PW-1/4, therefore, the present suit is not hit by Section 69 of the Partnership Act.
22 In view of the above facts and circumstances, I am of the considered view that plaintiff has proved on record that it is a partnership firm duly registered with the Registrar of Firms under Partnership Act Suit no. 46/2011/1997 Page 12/33 1932. The plaintiff has further proved that Sh. Pardeep Kumar Gupta, who has filed the present suit is one of the registered partner of the plaintiff firm thus he is competent to sign and institute the present suit on behalf of the plaintiff and present suit has been filed by the competent person. The plaintiff has successfully discharged the onus of issue no. 1, same is accordingly decided in favour of the plaintiff.
Issue no. 2 : Whether the plaintiff has not locus-standi to file the present suit? OPD Issue no. 2A:Whether the suit is bad for non-joinder and mis-joinder of parties? OPD Issue no. 3: Whether the defendant was served with the legal notice dated 11.07.94, if so its effect? OPP 23 Issue no. 2, 2A and 3 are taken together as they are inter- connected. The plaintiff has taken a plea that in December 1985 plaintiff let out the suit premises to the defendant on month to month basis as per English Calender. The defendant has been paying rent @ Rs. 8050 p.m. As per the plaintiff defendant was an habitual defaulter in paying rent and he lastly paid the rent of the month ending on 31.03.1993 and thereafter he has failed to pay the rent. The plaintiff did not wish to keep defendant as his tenant, therefore it terminated the tenancy of the defendant vide legal notice dated 11.7.1994. The said legal notice was duly served upon the defendant, however, despite the service of the legal notice the defendant has failed to comply with the same. As per the plaintiff the occupation of the defendant in the suit premises w.e.f 01.08.1994 is unauthorised and illegal.
24 The defendant has taken a plea that he was inducted as a tenant in the suit premises by one Sh. Shyama Charan Gupta in December 1985. The said Sh. Shyama Charan Gupta represented that Suit no. 46/2011/1997 Page 13/33 the rent of the premises be paid in the name of firm known as M/s Bansal Trading Corporation of which he was one of the nine partners. The lease agreement was also executed in the name of said firm through Mr. Shyama Charan Gupta. He has further taken a plea that even otherwise when defendant took premises there were nine partners in the firm M/s Bansal Trading Corporation. The said partnership was at will which was dissolved on the death of Sh. Shyama Charan Gupta in February 1992, therefore, the remaining eight partners of the said dissolved firm alongwith the heir and legal representative of deceased Sh. Shyama Charan Guupta become his lessor and plaintiff firm cannot be termed as lessor of the defendant. As per the defendant, their exist no relationship of landlord and tenant between the plaintiff and the defendant and the legal notice was neither served upon him nor same was issued by an authorised person.
25 In order to prove their respective case, both the parties have led their respective evidence.
26 An examination of the pleadings and evidence placed on record shows that it is an admitted case of the parties that defendant was inducted as a tenant in the suit premises in December 1985. It is also not in dispute that last paid rent of the suit premises was Rs. 8050/- per month. As per the plaintiff the defendant was inducted as a tenant in the suit premises by M.S. Bansal Trading Corporation, but the defendant was habital defaulter in paying rent due to which his tenancy was terminated vide legal notice the Ex. PW-1/4 whereby tenancy of the defendant was terminated on the expiry of 31.07.1994. However, despite the service of legal notice, defendant has failed to vacate the suit premises thus made himself liable for the decree.
Suit no. 46/2011/1997 Page 14/3327 The defendant has admitted that he was inducted as a tenant in the suit premises, but has taken a plea that he was inducted as a tenant by Sh.Shyama Charan Gupta and there exists no relationship of landlord and tenant between M/s Bansal Trading Corporation and the defendant. As per the defendant his lessor was Sh. Shyama Charan Gupta, and on his representation he paid rent to M/s Bansal Trading Corporation since inception of the tenancy.
28 The plea put forth by the defendant to the extent that M/s Bansal Trading Corporation was not his lessor is not acceptable for the simple reason that since the inception of the tenancy, the defendant has been paying rent to M/s Bansal Trading Corporation and not Sh. Shyama Charan Gupta. It is also admitted fact that at the time when the suit premises was let out to the defendant a lease agreement was executed between the the parties. Defendant himself has admitted in the written statement as well as during his cross-examination that said lease was executed between M/s Bansal Trading Corporation through Sh. Shyama Charan Gupta and defendant.
29 The defendant has not led any evidence on record which can show that his lessor was Sh. Shyam Charan Gupta and not M/s Bansal Trading Corporation. Moreover defendant himself admitted that he has been paying rent since the inception of the tenancy to M/s Bansal Trading Corporation and not in the name of Shyam Charan Gupta. He has also not made any communication to the effect that his lessor was Shyam Charan Gupta and not M/s Bansal Trading Corporation. The aforesaid fact thus clearly shows that defendant was inducted in the suit premises as a tenant by M/s Bansal Trading Corporation through its partner Sh. Shyama Charan Gupta thus there existed a relationship of landlord and Suit no. 46/2011/1997 Page 15/33 tenant between M/s Bansal Trading Corporation and the defendant.
30 The defendant has further taken a plea that said M/s Bansal Trading Corporation was a partnership firm consisting nine partners and after the demise of Sh. Shyama Charan Gupta in February, 1992 the said Bansal Trading Corporation stood dissolved and his remaining eight partners and the L.Rs of late Sh. Shyama Charan Gupta become the lessor. He further pleaded that there exist no relationship of landlord and tenant between the plaintiff and the defendant. The plaintiff has controverted the said plea of the defendant in the replication.
31 A perusal of the material placed on record shows that although defendant has sought to raise a dispute with regard to the relationship of landlord and tenant between the plaintiff and the defendant, however, he has not placed any material whatsoever on record which can show or suggest that M/s Bansal Trading Corporation was consisting of nine partners as pleaded by him or that M/s Bansal Trading Corporation who let out the suit premises to the defendant was different from the plaintiff. DW-1 during his cross-examination has admitted that he has always paid rent in the name of Bansal Trading Corporation of 1985. He does not have any document to show that prior to 1985 M/s Bansal Trading Corporation was some other entity and after 1985 it become some other entity.
32 The plaintiff has produced on record partnership deed Ex. PW-1/7 which was executed on 01.02.1988 during the life time of Sh. Shyama Charan Gupta. A perusal of Ex. PW-1/7 shows that the said partnership was consisting of five partners namely, Sh. Shyama Charan Gupta, Sh. Yoginder, Smt. Poonam Gupta, Smt. Madhu Gupta and Smt. Suit no. 46/2011/1997 Page 16/33 Sushila Gupta. The aforesaid five persons has been shown as partners in firm M/s Bansal Trading Corporation. The said partnership deed further shows that initially M/s Bansal Trading Corporation was consisting ten partners out of which six partners namely Smt. Ratan Bala, Smt. Kusum Lata, Kumari Promilla Gupta, Kumari Rachna Gupta, Shri Anjul Kumar Gupta and Shri Chetan Prakash Gupta retired from the partnership and thereafter the said partnership was re-constituted on 01.04.1988 of which above said five partners become the partners of M/s Bansal Trading Corporation. Admittedly the defendant has paid rent to M/s Bansal Trading Corporation after April 1988 till March 1993. As per the plaintiff after the demise of Sh. Shyama Charan Gupta the said partnership was reconstituted and a partnership deed was executed on 12.03.1991 Ex. PW-1/8. Vide said partnership deed Sh. Pradeed Kumar Gupta S/o Late Shri Shyam Charan Gupta was substituted in place of Sh. Shyama Charan Gupta.
33 A perusal of Ex. PW-1/7 & 8 clearly shows that earlier firm was having five partners and after the death of Sh. Shyama Charan Gupta the said firm was re-constituted vide partnership deed Ex. PW-1/8 and Sh. Pradeed Kumar Gupta was made partner in place of Sh. Shyam Charan Gupta and rest of the partners of the firm remained same.
34 It is also relevant to mention that the defendant in the written statement has averred that, "The defendant states that so far as he is concerned, the lessor of the premises was Mr. Shyam Charan Gupta( since deceased), and that after his death in about February, 1992, his heirs and legal representatives became the lessor of the premises qua the defendant, even though the rent was still continued to be paid by the defendant's concern M/s Vap Enterprises, through cheques, in the Suit no. 46/2011/1997 Page 17/33 name of M/s Bansal Trading Corporation. There was no relationship of tenant and landlord between the defendant and even the then existing earlier firm M/s Bansal Trading Corporation.
35 The aforesaid averment made in the written statement by the defendant clearly shows that defendant has been making payment of rent to M/s Bansal Trading Corporation before the demise of Sh. Shyam Charan Gupta and he continue to make the payment of rent to the plaintiff even after the demise of Shyam Charan Gupta. It is well settled law that where the tenant with full knowledge of fact either expressly in writing or impliedly by acts, such as the payment of rent, attorns tenancy to a person other than his original landlord or one who is claiming the estate or interest of such original landlord by assignment, succession or otherwise, he is ordinarily estopped from questioning the title of the person to whom he has so attorned.
36 The Hon'ble Supreme Court of India in Anar Devi Vs Nathu Ram, 1994 (4) Supreme Court Cases 250 has held that "Doctrine of tenant 's estoppel" which governs the relationship of landlord and tenant is founded on a contract of tenancy into by them. This doctrine finds statutory recognition in Section 116 of the Indian Evidence Act, 1872. In a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116. That section applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had derived title from the former landlord, cannot be permitted to deny Suit no. 46/2011/1997 Page 18/33 the latter's title, even when he is sought to be evicted by the latter on a permitted ground.
37 The aforesaid pronouncement clearly shows that a tenant is precluded from denying the title of his landlord as contemplated under Section 116 of Indian Evidence Act. In the instant case the defendant has continuously paid rent to the plaintiff even after the demise of Sh. Shyam Charan Gupta up till March 1993. Since the defendant has paid the rent to the plaintiff after the demise of Sh. Shyam Charan Gupta he accepted the plaintiff as his landlord on such payment, therefore, he cannot be allowed to deny the relationship of landlord and tenant between the plaintiff and the defendant.
38 Ld. Counsel for the defendant contended that defendant paid the rent to the plaintiff under the belief that same firm is accepting the rent. He further contended that as soon as defendant came to know about the demise of Sh. Shyam Charan Gupta, he stopped paying the rent to the plaintiff. Therefore, payment of rent by the defendant under mis-conception cannot be considered as attornment.
39 The said contention of ld. Counsel for the defendant is not acceptable for the simple reason that in para 2 & 3 of written statement the defendant has not averred a single word that he paid rent to the plaintiff after the demise of Sh. Shyam Charan Gupta under some mis- conception. On the contrary the defendant has categorically mentioned in the written statement that rent was continued to be paid by the defendant in the name of M/s Bansal Trading Corporation after the death of Sh. Shyam Charan Gupta in February 1992. The aforesaid averment made in the written statement by the defendant is sufficient to discard the Suit no. 46/2011/1997 Page 19/33 contention of Ld. Counsel for the defendant that rent was paid under some mis-conception.
It is also relevant to mention that defendant sought to dispute the ownership of the plaintiff at the early stage of this suit. But ld. Predecessor of this court vide order dated 14.10.2003 had not allowed the defendant to dispute the ownership of the plaintiff. While passing the said order the Ld. Predecessor of this court has held as under:-
" the defendant continue to pay rent from 27.02.1991 for 25 months in the name of Bansal Trading Corporation. That would show that the tenancy between plaintiff and defendant continued in the name of BTC with its changed constitution even after death of Sham Charan Gupta. In case the defendant had thought that his tenancy had come to an end after death of Shyam Charan Gupta, he would have vacated the premises or he would have entered into a new agreement, put the defendant continued to occupy the premises and continued to pay rent in the name of BTC. I, therefore, consider that the issue of ownership of premises is irrelevant in this case as the tenancy was terminated by the firm, to whom the defendant was paying rent right upto the service of notice."
40 The aforesaid finding given by the Ld. Predecessor of this court vide order dated 14.10.2003 were assailed by the defendant before the Hon'ble High Court by filing C.M. No. 106/04, the said petition filed by the defendant was dismissed by the Hon'ble High Court vide order dated 16.02.2006. The defendant has not assailed the said finding before the Hon'ble Supreme Court of India thus the order/finding of ld. Predecessor of this court that there existed a relationship of landlord and tenant between the plaintiff and the defendant and the question of ownership is irrelevant has attained finality.
Suit no. 46/2011/1997 Page 20/3341 The Hon'ble Delhi High court in National Textile Corporation Ltd & Anr. Vs Ashval Vaderaa reported in 167 ( 2010) DLT 602, has held that, " The principle of res judicata, as is well known, would not only apply in different proceedings arising out fo the same cause of action but would also apply in different stage of the same proceedings so that if an issue has been decided at an earlier stage against a party it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceedings".
42 In view of the above legal preposition the question of landlord and tenant relationship between the plaintiff and the defendant has already been decided by the ld. Predecessor of this court vide order dated 14.10.2003. The said order has been up held in the Hon'ble High court vide order dated 16.02.2006. The defendant had not assailed the said order before the Hon'ble Supreme Court of India, therefore finding given by the ld. Predecessor of this court has attained finality. Consequently defendant cannot be allowed to re-agitate the said issue afresh at this stage.
43 It is also relevant that defendant stopped paying rent on the pretext that he was not aware about the true lessor of the suit premises. However, defendant has not filed any inter pleader suit in this regard and has not taken any proceedings to ascertain the real owner of the suit property. DW-1 during his cross-examination has deposed that he is not aware whether he filed any inter-pleader suit before any court of law stating that many persons are claiming rent from him and he is not aware who is entitled to receive the rent so that it may be determined by the court to whom he has to pay the rent. He further stated that nobody wrote any letter to him claiming the landlord or owner. The aforesaid Suit no. 46/2011/1997 Page 21/33 testimony of DW-1 thus clearly shows that neither anybody approached him demanding the rent from him claiming himself as owner of the suit premises nor anybody asked him not to pay the rent to the plaintiff till date nor the defendant has filed any inter pleader suit to know as to who is the actual owner of the suit premises.
44 The Hon'ble Delhi High Court in Bharat Bhushan Vij Vs Arti Techchandani, 153 (2008) Delhi Law Times 247 has held that, " If on the death of the original owner the tenant has any doubt as to who was the owner of the premises, he is supposed to file an inter-pleader suit impleading all the legal heirs of the deceased and ask the court to decide as to who shall be the landlord /owner after the death of the original owner. Where no inter-pleader suit is filed by the tenant and the tenant continues in possession after death of the original owner without demur and without raising an objection against the person, who claims to have inherited the property under the Will, he later on cannot challenge the ownership of such a person.
45 In the instant case defendant has been paying rent to the plaintiff even after the demise of Sh. Shyam Charan Gupta up till March 1993 and all of a sudden he stopped paying rent and refuse to recognize plaintiff as his landlord. The defendant has stopped paying the rent on the pretext that plaintiff is not his landlord, however, he has not filed any inter pleader suit to seek adjudication about the real lessor of the suit premises nor he has taken any step to ascertain as to who is the real lessor of the suit property. Moreover the defendant has attorned himself to the plaintiff by paying the rent after the demise of Sh. Shyam Charan Gupta till 1993 thus he cannot be allowed to dispute the landlord and tenant relationship between the plaintiff and the defendant.
Suit no. 46/2011/1997 Page 22/3346 The defendant has further taken a plea that his tenancy was for an indefinite period and initially rent was Rs. 7,000/- per month which was to be increased 15% after every three years on the last increased rent. The said plea of the defendant cannot be accepted for the simple reason that defendant has not placed any material whatsoever on record which can show or suggest that tenancy of the defendant was for an indefinite period. As per Section 107 of Transfer of Property Act the tenancy for a year or more can only be created through a registered lease deed. Admittedly defendant was inducted as a tenant in the suit premises vide lease agreement Ex. PW-1/X which was un-registered instrument. In the absence of any registered lease deed having executed between the plaintiff and the defendant the tenancy of the defendant deemed to be of month to month basis determinable by giving 15 days legal notice as contemplated under Section 106 of the Transfer of Property Act and tenancy of the defendant cannot be treated as tenancy for in definite period as sought to be pleaded by the defendant.
47 The plaintiff has taken a plea in Para 5 & 6 of the plaint that it terminated the tenancy of the defendant with the expiry of 31.07.1994 vide notice dated 11.07.1994 but despite the service of the legal notice, the defendant has failed to comply the demand made by the plaintiff. The defendant in the corresponding para of written statement denied the receipt of the legal notice. It has also taken plea that said notice was issued unauthorisedly. The legal notice Ex. PW-1/4 was sent through registered A.D receipt of which is Ex. PW-1/5, A.D card was also received which is Ex. PW-1/6.
48 An examination of the material placed on record clearly shows that defendant has sought to dispute the receipt of the legal notice Suit no. 46/2011/1997 Page 23/33 on the ground that the address 205, Haus Khas Apartment, SFS, Haus Khas, New Delhi was not his address but address of his brother in law. However, defendant has not placed any material on record to show that said address does not belongs to him nor he has examined his brother in law in support of his plea. The legal notice Ex. PW-1/4 was also sent at the address of the suit premises of which A.D card Ex. PW-1/6 was received with seal of the defendant company bearing signature of one Vergees. The defendant has though deposed that no such person is working at his factory, however, he has not placed on record the list of workers employed by him during the relevant period. Moreover he admitted that A.D Ex. PW-1/6 bears his correct address. The legal notice Ex. PW-1/4 which was sent through registered post at the correct address of the defendant and the A.D card also received back with the seal of the defendant firm.
49 The requirement of Section 106 of Transfer of Property Act is that the notice must be in writing, it must be signed by the person giving it, it must be sent by post or delivered personally or to one of the family member. In this case notice was sent by registered post at the correct address of the defendant. Under Section 27 of General Clause Act and 114 illustration ( f) of the Indian Evidence Act, the court may presumes that the common course of business has been followed in particular case. In other words if the question is whether the notice was served, it may be shown to have posted and in the common course of business the notice would he deemed to have delivered to the addressee. This raises a presumption of fact which however rebutable. In the present case, the notice Ex. PW-1/4 has been sent in registered cover containing correct address of the defendant so it is presumed to have delivered at tenant's address. The court is justified to presume the Suit no. 46/2011/1997 Page 24/33 delivery of the notice to the defendant unless this presumption is rebutable by the tenant.
50 A Division Bench of Hon'ble Delhi High Court in Rail India Technical and Economic Services Ltd. Vs. I.M. Puri and others as 2000 DRJ 538 has held that " the requirement of Section 106 of Transfer of Property Act is duly met in the facts and circumstances of this case in so much as there is proof of notice being correctly address to the defendant/appellant and there is further proof of the notice having been sent by registered post this raises a presumption under Section 27 of the General Clause Act about the service of the notice. The defendant has not led any evidence to rebut this presumption".
51 The Hon'ble Supreme Court of India, in CC Alavi Haji Vs Palapetty Muhammed and anothers reported as 2007 ( 6) Supreme Court Cases 55 has held that " Section 27 gives rise to presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time the letter would have been delivered in the ordinary course of business. This court has already held that when a notice is sent by registered post and is returned with a postal endorsement" refused" or "not available in the house" or " house locked"
or "shop closed" or " addressee not in station: due service has to be presumed."Suit no. 46/2011/1997 Page 25/33
52 In view of the above well settled principle of law if the notice is sent at the correct address through registered post then the said notice is presumed to have been served upon the defendant.. In such cases a Presumption of due service arises as per Section 114 ( F) of Indian Evidence Act and Section 27 of General Clause Act, which would not be rebutted by mere denial of the defendant. The defendant must produced some other cogent evidence to show that usual course of post was interrupted by disturbances. He must prove other circumstances to show that the notice never received by him. The defendant has examined himself as DW-1, however, beside mere denial of the service, the defendant has not led any other evidence which can dispel the presumption of due service of the legal notice. Therefore, I am of the considered view that notice Ex. PW-1/4 was duly served through registered post of which A.D Ex. PW-1/6 was also received . The said legal notice was duly served upon the defendant. However, despite the service of legal notice, defendant has neither replied the same nor complied the legal notice.
53 The aforesaid fact, thus clearly shows that plaintiff has proved on record that defendant was inducted as a tenant in the suit premises on month to month basis and the last paid rent was Rs. 8050 per month i.e more than Rs.3500/- p.m. The plaintiff has further proved on record that defendant stopped paying rent w.e.f April 1994 consequently tenancy of the defendant was terminated vide legal notice Ex. PW-1/4 which was sent through registered post and the A.D Ex. PW-1/6 was also received. Despite the service of legal notice defendant has neither reply the same nor comply the same thus made himself liable for the decree.
Suit no. 46/2011/1997 Page 26/3354 In view of my above discussion my issuewise findings is as under:-
55 Issue no. 2 :Whether the plaintiff has not locus-standi to file the present suit? OPD The defendant has failed to prove on record that plaintiff has no locus standi to file the present suit against the defendant. On the other hand plaintiff has proved on record that there existed a relationship of landlord and tenant between the plaintiff and defendant and the tenancy of the defendant was terminated by the plaintiff vide legal notice Ex. PW-1/4, however, despite the service of the legal notice, defendant failed to vacate the suit premises therefore, plaintiff was constrained to file the present suit. The plaintiff thus has locus standi to file the present suit against the defendant. The defendant has failed to discharge the onus of issue no. 2, same is accordingly decided against the defendant.
56 Issue no. 2 A: Whether the suit is bad for non-joinder and mis-joinder of parties? OPD The defendant has taken a plea that suit is bad for non- joinder and mis-joinder of parties, however, defendant has failed to prove on record as to which of the necessary parties has not been impleaded in the instant suit. The defendant himself accepted the plaintiff as his landlord by paying rent after the demise of Shyama Charan Gupta till March 1993, therefore, the defendant has admitted the plaintiff as his landlord after the demise of Sh. Shyam Charan Gupta. The instant suit has been filed by the plaintiff against the defendant and all the necessary parties have been duly impleaded. The defendant has failed to point out as to which of the necessary party has not been impleaded due to which suit is bad for mis-joinder or non-joinder of the necessary parties. The defendant has thus failed to discharge the onus of issue no. 2A, same is accordingly decided against the defendant.
Suit no. 46/2011/1997 Page 27/3357 Issue no. 3: Whether the defendant was served with legal notice dated 11.7.1994, if so, its effect? OPP In view of my above discussion, I am of the considered view that plaintiff has proved on record that he has served legal notice dated 11.07.1994 Ex. PW-1/4 upon the defendant as per the law. The defendant has failed to prove on record that said legal notice was not served upon him or that same was issued by an unauthorised person. The plaintiff has discharged the onus of issue no. 3, same is accordingly decided in favour of the plaintiff.
58 Issue no. 4:Whether defendant is not liable to pay Rs.1,28,000/- on account of arrears of rent as claimed? OPD The plaintiff has taken a plea in para 7 of the plaint that defendant is in arrear of rent for the period commencing from 01.04.1993 to 31.07.1994 which he failed to pay despite repeated requests and reminders. As per the plaintiff a sum of Rs. 1,28,000/- is due and recoverable from the defendant on account of rent @ Rs. 8050/- per month. The defendant has not disputed the said fact in the corresponding para of written statement and has simply said that defendant is ready and willing to pay the rent of the premises but to the real and lawful lessor of the premises qua the defendant. 59 In order to prove its plea plaintiff has examined PW-1 who has reiterated the said fact in para 5 and 8 of his examination in chief. PW-1 has been throughly cross-examined by the defendant, however, the aforesaid deposition of PW-1 made by him in his examination in chief remained unrebutted and un-controverted because defendant has not carried out any cross-examination, moreover defendant himself has admitted in his written statement that he has not paid the said rent and shown his willingness to pay the same to the real lessor.
Suit no. 46/2011/1997 Page 28/3360 While deciding issue no. 2 I have already held that there existed a landlord and tenant relation between the plaintiff and the defendant, therefore, defendant was not justified in not paying the rent to the plaintiff on the pretext that plaintiff is not the real lessor. The defendant has not paid the rent of the premises in question for the aforesaid period despite service of legal notice thus made himself liable for decree.
61 In view of the above facts and circumstances, I am of the considered view that plaintiff has proved on record that defendant is liable to pay a sum of Rs. 1,28,000/- to the plaintiff on account of arrear of rent from 01.04.1993 to 31.07.1994. The plaintiff has successfully discharged the onus of issue no. 4, same is accordingly decided in favour of the plaintiff.
62 Issue no. 5: Whether the defendant is liable to pay damages as claimed, if so at what rate? OPP The plaintiff has claimed damages for the use and occupation of the defendant in the suit premises w.e.f 01.08.1994 onwards. The defendant has controverted the plea of the plaintiff and pleaded that he has taken in lawful occupation of the suit premises as a tenant.
63 While deciding issue no. 2 & 3, I have already held that there existed relationship of landlord and tenant between the plaintiff and defendant, but the said relationship of landlord and tenant came to an end when plaintiff terminated the tenancy of the defendant vide legal notice Ex. PW-1/4 w.e.f 31.07.1994. The said legal notice was duly served upon the defendant, however, despite service of the legal notice defendant has not vacated the premises in question and continue to occupy the same.
Suit no. 46/2011/1997 Page 29/3364 The occupation of the defendant in the suit premises after 01.08.1994 is thus unauthorised and illegal for which defendant is liable to pay damages/mesne profit. The plaintiff has, however, sought inquiry to be conducted to ascertain the quantum of damages as contemplated under Order 20 Rule 12 CPC, therefore, quantum of damages to be paid by the defendant to the plaintiff shall be ascertain after the conclusion of the inquiry as prayed for.
65 In view of the above facts and circumstances, I am of the considered view that plaintiff is entitled for damages for illegal and unauthorised occupation of the defendant in the suit premises w.e.f 01.08.1994 till the actual delivery of the physical possession of the suit premises but the quantum of mesne profit shall be ascertained after the conclusion of the inquiry under Order 20 Rule 12 CPC. The plaintiff has discharged the onus of issue no. 5, same is accordingly decided in favoaur of the plaintiff.
66 Issue no. 6: Whether plaintiff is entitled for relief of possession and of recovery of rent & damages as claimed ? OPP The plaintiff has taken a plea that it inducted the defendant as tenant in the suit premises in December, 1985. The defendant has paid rent lastly @ Rs. 8050/- per month. As per the plaintiff, defendant was a habitual defaulter in paying the rent, therefore, it did not like him to continue as its tenant, consequently, plaintiff terminated the tenancy of the defendant vide legal notice dated 11.07.1994 whereby the tenancy of the defendant was terminated on the expiry of 31.07.1994. The said legal notice was duly served upon the defendant but despite the service of legal notice the defendant has failed to comply the same, thus, made himself liable for the decree.
Suit no. 46/2011/1997 Page 30/3367 The defendant has taken a plea that he was inducted as a tenant in the suit premises by Sh. Shyam Charan Gupta and there existed no relationship of landlord and tenant between the plaintiff and the defendant. He further pleaded that the lease of the defendant was for an indefinite period and was not on month to month basis. As per the defendant he has been occupying the suit premises as a tenant.
68 While deciding issue no. 2 & 3, I have already held that there existed a landlord tenant relationship between the plaintiff and the defendant. I have further held that tenancy of the defendant was on month to month basis which has been terminated by the plaintiff vide legal notice Ex. PW-1/4 which was duly served upon the defendant as per law. Despite service of the legal notice Ex. PW-1/4, defendant had neither replied the same nor complied the same.
69 The Hon'ble High Court in "Kalu Ram Vs. Sita Ram"
reported as 1980 RLR (N) 44 has held:- "If plaintiff before filing suit makes serious assertions in a notice to defendant, then, defendant must not remain silent by ignoring to reply. If he does show then addressee inference may be raised against him."
70 In the present case, the plaintiff before filing the suit served legal notice Ex. PW-1/4 upon defendant which was sent through registered post of which A.D card Ex. PW-1/6 was also received. Vide legal notice Ex. PW-1/4, the plaintiff terminated the tenancy of the defendant on the expiry of 31.07.1994 and defendant was called upon to deliver the possession to the plaintiff. The said legal notice has been duly served upon the defendant as per the law. However, despite service of same, the defendant has failed to give any reply of the said legal Suit no. 46/2011/1997 Page 31/33 notice. Thus an adverse inference is required to be drawn against the defendant.
71 It is also relevant that while deciding issue no. 4 & 5, I have also held that defendant is liable to pay arrear of rent as prayed as well as damages for his un-authorised use and occupation w.e.f 01.08.1994 till the actual delivery of the physical possession to the plaintiff.
72 In view of the above facts and circumstances, I am of the considered view that plaintiff has proved on record that plaintiff inducted the defendant as a tenant in the suit premises. The said tenancy was on month to month basis and the last paid rent of the suit premises was Rs. 8050/- per month. The plaintiff has further proved on record that said tenancy of the defendant was terminated vide legal notice Ex. PW-1/4 whereby the defendant was called upon to deliver the possession of the suit premises on the expiry of 31.07.1994. The said legal notice has been duly served upon the defendant, however, despite the service of the legal notice defendant has failed to comply the same, thus, made himself liable for the decree for possession. The defendant is also liable to pay arrear of rent as well as damages, however, the quantum of damages to be paid by the defendant shall adjudicated upon after conducting an inquiry under Order 20 Rule 12 CPC as prayed for. Plaintiff has thus successfully discharged the onus of issue no. 6, same is accordingly decided in favour of the plaintiff.
73 Relief In view of the above, the suit filed by the plaintiff for recovery of possession, arrear of rent and damages is decreed.
A decree for possession is passed in favour of plaintiff and Suit no. 46/2011/1997 Page 32/33 against the defendant with respect to premises comprising of a portion of the front hall ( left portion having covered area of about 900 sq. ft.) alongwith the left hand drive way and part of the lawn in front of such portion of the hall situated on the ground floor of property bearing No. H-24, Green Park Extension, New Delhi as shown red in the Site Plan.
A decree for recovery of arrear of rent of Rs. 1,28,000/- is also passed in favoaur of the plaintiff and against the defendant.
The plaintiff is also held entitled to recover damages against the defendant for his unauthorised use and occupation over the suit premises w.e.f 01.08.1994 till the actual delivery of the physical possession to the plaintiff. However, in order to ascertain the quantum of damages I ordered that an inquiry be conducted under Order 20 Rule 12 CPC to ascertain the amount of the Mesne Profit accrued prior to the institution of suit i.e from 1.8.1994 till filing of the suit and from the date of filing of the suit until the delivery of possession of the suit premises as prayed for. Preliminary decree be drawn accordingly. File be consigned to record room after due compliance.
Announced in the open court ( PITAMBER DUTT)
28th September, 2012 Additional District Judge
Delhi
Suit no. 46/2011/1997 Page 33/33
Suit no. 46/2011/1997 Page 34/33