Delhi District Court
M/S Kalanidhi International Pvt Ltd vs Prakash Chand Sharma on 9 October, 2024
IN THE COURT OF Ms. NAINA GUPTA, ACJCUMCCJ-
CUMARC DISTRICT: SOUTHEAST, SAKET COURTS,
NEW DELHI
DLSE030010962020
RC ARC/20/2020
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. PRAKASH
CHAND SHARMA
M/s Kalanidhi International Pvt. Ltd.,
Having its Regd. Office at
14th Floor, Mohan Dev Building,
13, Tolstoy Marg, New Delhi-110001
Through its authorized representative/
Signatory Mr. Vinod Surha .....PETITIONER
VERSUS
Shri Prakash Chand Sharma
S/o late Shri Chhajju Ram
C/o Shop No.13/1, Ground Floor,
Jor Bagh Market, New Delhi-110003. .....RESPONDENT
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14(1) (e) READ WITIH SECTION 25B OF THE DELHI RENT
CONTROL ACT, 1958.
RC ARC/20/2020 NAINA Digitally signed by
NAINA GUPTA
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:04:26 +0530
Date: 2024.10.09
PRAKASH CHAND SHARMA Page no. 1 of 46
DATE OF INSTITUTION : 31.07.2020
DATE OF ARGUMENTS :17.09.2024
DATE OF DECISION : 09.10.2024
JUDGMENT
1. This is a petition for seeking eviction of the respondent from property Shop no. 13/1, Ground Floor, Jorbagh Market, New Delhi-110003 (hereinafter referred to as tenanted premises). The petitioner is a private limited company and has filed the present petition through its authorised representative Sh. Vinod Surha who has been authorised vide resolution dt. 04.11.2019 passed by the board of directors of the petitioner company. The petitioner company is the owner of the entire built up property bearing no. 13 in Block no. 172, measuring 591.7 sq yards (the entire building is referred to as suit property hereinafter). This plot of land measuring 591.7 sq yards was allotted to Dr. Rajender Singh and his wife Smt. Sukhwans Kaur by the President of India through L&DO, Nirman Bhawan, New Delhi, vide agreement for lease dt. 10.01.1955 duly registered on date 04.06.1995. They had constructed shops on the ground floor and residential flats on the first floor on this plot after getting the Digitally signed RC ARC/20/2020 NAINA by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:04:35 +0530 PRAKASH CHAND SHARMA Page no. 2 of 46 plan sanctioned from the Municipal Authority and a completion certificate was granted by the NDMC.
2. It is stated that Dr. Rajinder Singh and Smt. Sukhwans Kaur had let out shop no.13/1 on the ground floor to Sh. Chajju Ram, the father of the respondent vide Rent Deed dated 11.07.1957 at rent of ₹175 per month exclusive of electricity charges for the purposes of carrying on business of dairy, poultry and bakery products only. Sh. Chajju Ram expired on 27.11.1967 leaving behind his widow Smt. Kala Devi and two sons namely Prakash Chand Sharma and Shadi Lal Sharma and one daughter Ms. Sita. The daughter of late Sh. Chajju Ram expired in 1982 and his widow Smt. Kala Devi expired on 06.05.2007. It is stated that predecessor in interest of the petitioner recognised the respondent Mr Prakash Chand as the sole tenant in the tenanted premises who w.e.f. 01.04.1995 attorned to the petitioner as individual tenant. It is stated that the respondent has sublet the tenanted shop to M/s Fair Deal store and separate petition for eviction on the ground of sub-letting is filed by the petitioner against the respondent. It is stated that M/s Fair Deal store represents itself to be a partnership firm with the respondent as one of the partners.
3. The petitioner had sent a legal notice dated 10.01.2018 to the respondent notifying him of the requirement of the tenanted shop by the petitioner for its need. The respondent sent a reply dated NAINA Digitally signed by NAINA GUPTA RC ARC/20/2020 Date: 2024.10.09 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:04:43 +0530 PRAKASH CHAND SHARMA Page no. 3 of 46 07.02.2018 where it was pleaded that the tenancy is in favour of M/s Fair Deal a partnership firm.
4. Dr. Rajender Singh and his wife Smt. Sukhwans Kaur agreed to sell the suit property to the petitioner for a total sale consideration of ₹65,00,000 and executed a receipt dated 29.11.1994. After the petitioner became owner of the suit property, the erstwhile landlords had addressed letter dt. 07.03.1995 to the respondent wherein the petitioner was attorned as the landlord w.e.f. 01.04.1995 and there were further directions to pay the rent @ Rs. 350/- per month. Dr. Rajinder Singh died on 29/01/2003 leaving behind Smt. Sukhwans Kaur and his son Mr Prabhjot Singh as his sole surviving legal heirs. Mr Prabhjot Singh relinquished his undivided share in the entire property in the favour of his mother Smt. Sukhwans Kaur by virtue of registered relinquishment deed dated 25.07.2003. In the year 2006, the property was mutated in the name of Smt. Sukhwans Kaur vide letter dt. 26.04.2006. Smt. Sukhwans Kaur executed agreement to sell on 13.03.2007 in favour of the petitioner company and the same was registered on the same date. It is stated that the petitioner had received the physical and peaceful possession of the vacant portions of the entire suit property and symbolic proprietary possession of the rented portions with the attornment of tenancy rights in its favour during the lifetime of Dr. Rajendra Singh itself immediately RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:04:51 +0530 PRAKASH CHAND SHARMA Page no. 4 of 46 after executing the receipt dated 29.11.1994 after having received the entire sale consideration from the petitioner.
5. It is stated by the petitioner that the respondent has informed it that he entered into a partnership with his brother Shadi Lal Sharma on 16.04.1992 and the proprietorship concern in the name of M/s Fair Deal store was converted into a partnership firm and the respondent continued to carry out business from the tenanted shop under the name and style of M/s Fair Deal store. It is stated that the partnership was subsequently amended on 01.04.1997. However the tenanted shop continued to remain under the individual tenancy of the respondent Mr Prakash Chand Sharma. It is stated that the respondent has illegally and unauthorisedly encroached upon the common verandha abutting the tenanted shop and carried out additions and alterations there by illegally and unauthorisedly including the encroached portion as part and parcel of the tenanted shop. It is also stated that the respondent has changed the prescribed user of the shop by illegally and unauthorisedly putting the same to use as a chemist store. The petitioner has never accepted M/s Fair Deal store partnership firm as its tenant and has not condoned the act of illegal and unauthorised additions and alterations having been carried out in the tenanted shop by the respondent.
6. The present petition has been filed on the ground of bonafide requirement. It is stated that the directors in the petitioner RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:04:59 +0530 Date: 2024.10.09 PRAKASH CHAND SHARMA Page no. 5 of 46 company have a vast and enriched experience in restaurant business. The petitioner company wants to open an unique family restaurant-cum-coffee house in a strategic location in New Delhi and it has decided to use ground floor of this entire built property situated on plot no. 13 in Block no. 172 at Jorbagh measuring 591.7 sq yards including the tenanted shop to open this restaurant. The restaurant proposed would be providing services of offerings of seafoods, steak houses, family restaurant, casual dining restaurant, ethnic restaurant, pizzeria, coffee shop and bakery house. It is stated that the entire space of the ground floor in this property would be required as a separate portion would be carved out for each of such services so as to provide at one place a variety of cuisine for the connoisseurs of good quality food. Accordingly, the petitioner has filed separate eviction petitions seeking eviction of respective tenants from shops bearing no. 13/2 to 13/8, Jorbagh Market, New Delhi- 110003.
7. It is stated that the petitioner has already carried out and completed its entire homework including laying out design of proposed family restaurant-coffee house to be brought up on the entire ground floor of the property and copy of the entire layout plan is annexed with the petition as Annexure D. It is stated that shop no. 13/3, shop no. 13/4, Shop no. 13/5, Shop no. 13/6 and Shop no. 13/7 and the front portion of shop no. 13/2 and shop RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:05:08 +0530 PRAKASH CHAND SHARMA Page no. 6 of 46 no.13/3 has been demarcated as restaurant area where provisions would be made to provide different types of cuisine and dining facilities. A substantial portion of shop no. 13/8 has been demarcated in the plan for setting up of the kitchen and remaining portion of shop no. 13/8 and the rear portion of shop no. 13/2 and 13/3 has been demarcated in the plan for setting up the store room.
8. It is stated that the petitioner does not have any other suitable reasonable alternative commercial accommodation in the territory of Delhi except the tenanted premises and the tenanted shops on the ground floor of the property which as a whole would be required bonafidely by the petitioner for it's project as detailed above.
9. With the abovesaid averments it is prayed that eviction orders be passed in the present matter.
10.To succeed in the case U/s 14 (1) (e) of DRC Act the petitioner is required to prove the following ingredients:
(a) Ownership in respect of tenanted premises
(b) Relationship of landlord and tenant between the parties;
(c) Petitioner bonafidely requires the tenanted premises;
(d) Petitioner does not have any other suitable alternative accommodation with him/her.
11.Under Section 25 (B) of Delhi Rent Control Act a summary procedure has been laid down for landlords requiring the RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA Date: 2024.10.09 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:05:26 +0530 PRAKASH CHAND SHARMA Page no. 7 of 46 premises for bonafide use for himself or for any member of his family dependent on him. The tenant shall be granted leave to contest the application if the affidavit filed by the tenant discloses such facts as would dis-entitle the landlord from obtaining an order for the recovery of possession of the premises. It has been held by the Hon'ble Supreme Court of India in the case of Charandas Duggal Vs. Bhramanand 1983, 1SCC 301 that the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that should be sufficient to grant leave therefore the test is that of a triable issue and not of the final success in the action.
12.It is also a settled position of law that once landlord pleads his bonafide requirement and non-availability of an alternative suitable accommodation, the onus shifts to the tenant to show that a triable issue which if proved would non-suit the landlord has been pleaded in the application seeking leave to defend. The Supreme Court in the case of Abid-Ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30 has given guidelines as to when presumption may be raised in favour of landlord and when can the same be considered to be rebutted by the tenant. The paragraphs from the judgment are reproduced for ready reference as follows.
"18. For availing the leave to defend as envisaged under Section 25B(5), a mere assertion per se would not suffice as Section 14(1)
(e) creates a presumption subject to the satisfaction of the learned Rent Controller qua bona fide need in favour of the landlord which RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:05:54 +0530 Date: 2024.10.09 PRAKASH CHAND SHARMA Page no. 8 of 46 is obviously rebuttable with some material of substance to the extent of raising a triable issue. The satisfaction of the Rent Controller in deciding on an application seeking leave to defend is obviously subjective. The degree of probability is one of preponderance forming the subjective satisfaction of the Rent Controller. Thus, the quality of adjudication is between a mere moonshine and adequate material and evidence meant for the rejection of a normal application for eviction.
19.Before a presumption is drawn, the landlord is duty bound to place prima facie material supported by the adequate averments. It is only thereafter; the presumption gets attracted and the onus shifts on the tenant. The object of Section 14(1)(e) vis a vis Section 25B has to be seen in the light of yet another provision contained under Section 19. Section 19 gives a right to the dispossessed tenant for repossession if there is a non-compliance on the part of the landlord albeit after eviction, to put the premises to use for the intended purpose. Such a right is available only to a tenant who stood dispossessed on the application filed by the landlord invoking Section 14(1)(e) being allowed. Thus, Section 19 inter alia throws more light on the legislative objective facilitating a speedy possession. The object is also reflected in the proviso to Section 25B(8), denying a right of appeal."
13.With the above principles of law in mind, it is for this court to examine whether the respondents have raised any triable issues or not.
14.In view of the judgment of the Hon'ble Supreme Court in the case of Satyawati Sharma (dead) by LRs vs. Union of India & Anr. (2008) 5 SCC 287 section 14 (1) (e) is also now made applicable to commercial properties and therefore the present petition is maintainable.
Digitally signed by NAINA NAINA GUPTA
GUPTA Date:
2024.10.09
RC ARC/20/2020 16:06:02 +0530
M/S KALANIDHI INTERNATIONAL PVT LTD Vs.
PRAKASH CHAND SHARMA Page no. 9 of 46
GROUNDS ON WHICH LEAVE IS SOUGHT AND WHETHER THE SAME ARE TRIABLE ISSUES
15.The respondent has filed an application seeking leave to defend within time. The leave is sought by the respondent on the following grounds :-
i. That the present petition is not maintainable. ii. That the petitioner has filed the present petition against wrong party and no relationship of landlord and tenant exists.
iii. That the petitioner has filed wrong site plan. iv. That the petitioner does not have the bonafide requirement of the tenanted premises v. That the company has alternate suitable accommodation vi. That the petitioner has not filed the sanction from the MCD vii. That the petitioner is not the owner of the tenanted premises In the following paragraphs, the grounds on which leave is sought are discussed and findings are given when they amount to triable issues or not.
16.That the present petition is not maintainable: It is stated that the petitioner is a private limited company and is not entitled to take recourse for eviction of tenants by filing petition U/s 14 (1) (e) of the DRC Act. It is submitted that a reference is pending RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA Date: 2024.10.09 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:06:11 +0530 PRAKASH CHAND SHARMA Page no. 10 of 46 before the Hon'ble High Court in the case of KS Bandari Vs. M/s International Security Printers Pvt. Ltd., RC Rev. 18/2016. It is submitted that the company being a juristic person, there is separate provision U/s 22 of DRC Act and therefore Section 14 (1) (e) is not available to the company. It is stated that Section 14 (1) (e) is meant for natural persons.
17.On the other hand, it is submitted on behalf of the petitioner that the petitioner company being of juristic person has a right to maintain the petition for eviction of the tenant on the ground of bonafide need and cannot be held to be not at par with a natural person. It is stated that the definition of landlord U/s 2 (e) of DRC Act does not make any distinction between the a juristic person and natural person and defines landlord as a person who for the time being is receiving or is entitled to receive rent of the tenanted premises. It is further stated that provisions U/s 22 of DRC Act deal with right of a company to seek eviction of the tenant on the grounds which are in the form of special provisions and it does not debar a company from filing its petition for eviction on the ground of bonafide need as there is no rider embodied in the statue on the ground of bonafide need.
18.During arguments, Ld counsel for the petitioner has submitted that in the matter of K.S. Bhandari supra, the reference is confined to whether a Company as landlord requiring the premises for use of its employees would have a choice, whether RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:06:20 +0530 PRAKASH CHAND SHARMA Page no. 11 of 46 to invoke Section 14(1)(e) or Section 22 of the Act. It has been asserted that the present petition is very much maintainable and reliance has been placed upon the judgment of the Hon'ble High Court of Delhi in the case of Satnam Kaur v. Ashlar Stores P. Ltd. CM No.14903/2008, wherein the following observations have been made:-
"To my mind, whenever any such type of landlord requires the premises for use of its employees, it is section 22 alone which would be applicable and not section 14(1)(e). This does not mean that the other provisions of section 14 cannot be invoked by such a landlord. As held in Chuni Lal‟s case (supra), the grounds under section 14 are addition to the grounds under Section 22. This is because section 22 is concerned only with specific type of cases namely, where premises are required by a company for use of its employees. Section 22 is not concerned with the other grounds which are available under section 14. It may be that some circumstances may exist where a company may require premises, not for its employees, but still for its residence. In such a case section 14(1)(e) can also be invoked.".
19.In the case of Chuni Lal v. University of Delhi 1970 RCR Rent 742 it has been held by the Hon'ble High Court that a landlord falling under section 22 DRC Act may avail of the grounds stated there in, in addition to the grounds given in section 14 (1)
(e) of the DRC Act. In view of the discussion above, it is held that the present petition is maintainable.
20. That the petitioner has filed the present petition against wrong RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:06:29 +0530 PRAKASH CHAND SHARMA Page no. 12 of 46 party and no relationship of landlord and tenant exists:- It is submitted that the petition is not maintainable against the respondent as the premises are under the tenancy of partnership firm by the name of M/s Fair Deal Store of which respondent and his brother Sh. Shadi Lal Sharma are the partners and the partnership firm is not made party to the present proceedings. It is stated that the petitioner has been collecting and accepting rent from the partnership firm M/s Fair Deal Store. The respondent as well as his brother Shadi Lal Sharma being the legal heirs of late Sh. Chajju Lal Sharma have inherited the tenancy after his death and therefore Shadi Lal Sharma is also a necessary party to the present proceedings. It is stated that in the absence of partnership firm no effective order can be passed and the present petition is liable to be rejected on this ground alone.
21.It is stated that the petitioner has alleged that the respondent has sublet the tenanted premises to a partnership firm M/s Fair Deal Store, however, the petitioner has not made the alleged sub tenant party to the present proceedings. The respondent has submitted that the tenanted premises were let out to his father Shri Chajju Ram, father of Sh. Prakash Chand and Sh. Shadi Lal partners of the M/s Fair Deal Store. It is stated that Shri Chaju Ram established departmental store under the name and style of M/s Fair Deal Store in the premises in question which was a proprietorship firm. In the rent deed placed on record by the RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:06:38 +0530 Date: 2024.10.09 PRAKASH CHAND SHARMA Page no. 13 of 46 petitioner company also the name of fairdeal stores has been recorded. It is stated that after the death of Sh. Chhaju Ram the tenancy was inherited by his two sons namely Prakash Chand and Shadi Lal and thereafter they converted the said proprietorship firm being run by their father into a partnership firm with both the sons of Sh. Chhaju Ram being the partners. It is stated that the petitioner company has been accepting rent from the partnership firm and in the letter dated 07.03.1995 a reference has been made to the partnership firm M/s Fair Deal Store.
22.It is also submitted that since a separate petition for subletting and misuse has been filed by the petitioner and the issue of sub tenancy has been raised in the present petition also, the same can only be ascertained after trial and therefore the respondent is entitled to unconditional leave. It is stated that since the tenancy was inherited by both the sons of Sh. Chhaju Ram the other son Sh. Shadi Lal Sharma was a necessary party.
23.In reply the petitioner has stated that the partnership firm is not a tenant in the premises and therefore there was no requirement to implead the partnership firm. It is also stated that the a partnership firm could not inherit an individual tenancy which was admittedly in the name of the father of the respondent. Further, it is contended that the respondent has taken a contradictory stance wherein it has been pleaded that the tenant RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:06:47 +0530 PRAKASH CHAND SHARMA Page no. 14 of 46 is a partnership firm and it is also pleaded that the respondent and his brother are natural legal heirs of Sh. Chajju Ram, the original tenant. It is stated that letter dated 07.03.1995 was addressed to the respondent in his individual capacity. It is stated that it was the respondent only who has been recognised as a tenant in his individual capacity. It is not necessary that all the legal heirs of a tenant must succeed to the tenancy after his death. It is submitted that one amongst them may become an individual tenant after mutual agreement.
24. After considering the claims of the parties, it is an undisputed factual position that the original tenant was Sh. Chhaju Ram who was running a business in the name of M/s Fair Deal Store from the tenanted premises. It is but obvious that a partnership firm could not have inherited an individual tenancy. The respondent himself has stated that Sh. Chajju Ram was running business as sole proprietor of M/s Fair Deal Store. There is admittedly no fresh agreement of tenancy between the M/s Fair Deal Store, the partnership firm and the petitioner or the erstwhile owners.
25.This is not a petition on the ground of subletting. This court need not go into the question of whether running of the business from the shop by a partnership firm instead of the sole proprietorship amounts to sub-letting or not. This is a petition for eviction on the ground of bonafide requirement of the petitioner company to run business from the suit property. The question before the RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:06:56 +0530 PRAKASH CHAND SHARMA Page no. 15 of 46 court is whether the non joinder or mis joinder of parties in the present case is a triable issue or not. Arguments have been advanced on behalf of the respondent that since a separate petition on the ground of sub-letting is already pending, this petition should also go to trial. I find it difficult to accept this contention. If this contention is accepted, the very purpose of having a summary procedure for eviction of tenants u/s 25 B of the DRC Act would stand defeated.
26.On the other hand, Ld. counsel for the petitioner has advanced arguments that the original tenant was a proprietor ship firm. Mere acceptance of rent from the account of the partnership would not amount to estoppel against the petitioner to accept the partnership firm as a tenant. Reliance has been placed upon judgment in the case of Ram Saran v. Pyare Lal, (1996) 11 SCC
728. It has been observed by the Hon'ble Supreme Court that, "Acceptance of rent paid by sub tenant does not constitute estoppel against the landlord that the sub tenant was accepted as a tenant in the property. Mere acceptance of rent does not mean that a valid tenancy has been constituted. Written consent of the landlord is required for creation of a valid sub tenancy."
27. At the risk of repeating, it is reiterated that the question of sub tenancy is not before this court. Whether there is a requirement to implead the alleged sub tenant as a party in this petition is. The law is settled on this point that a sub tenant is not a RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA GUPTA Date: 2024.10.09 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. 16:07:05 +0530 PRAKASH CHAND SHARMA Page no. 16 of 46 necessary party but a proper party only. A sub tenant is always bound by the order of eviction passed against the original tenant. Reliance is placed upon the judgment of the Hon'ble Supreme Court in the case of Silverline Forum Pvt. Ltd vs Rajiv Trust And Another, AIR 1998 SUPREME COURT 1754.
28.In view of the discussion above, it is held that the partnership firm M/s Fair Deal Store is not a necessary party and there was no requirement to implead the same by the petitioner.
29.Now, the question that arises is whether the other brother Sh. Shadi Lal Sharma is a necessary party to the present petition? After the death of Sh. Chajju Ram, the legal heirs of Sh. Chajju Ram became joint tenants as they inherited the tenancy. Accordingly, his wife, one daughter and two sons inherited the tenancy. The daughter and the wife are no more and it is contended on behalf of the respondent that both Prakash Chand and Sh. Shadi Lal Sharma are the tenants beings legal heirs of Sh. Chajju Lal. On the other hand the petitioner has contended that the tenancy was inherited only by Sh. Prakash Chand and therefore there was no requirement to implead Sh. Shadi Lal Sharma.
30. In the facts of the present case, the respondent has admitted being in possession of the tenanted premises and has also admitted to running of the business from the premises. In view of the settled law that a joint tenant represents all other tenants RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:07:13 +0530 PRAKASH CHAND SHARMA Page no. 17 of 46 who had inherited the tenancy, it is held that there is no requirement to implead Sh. Shadi Lal Sharma as a party in the present proceedings. Reliance in this regard is placed upon the following judgments:-
31. Ashok Chintaman Juker v. Kishore Pandurang Mantri, (2001) 5 SCC 1: - It was held that when the plaintiff therein was not paying rent separately and was claiming to be paying rent through the tenant impleaded as a party, there was a joint tenancy and his interest was represented by the tenant impleaded in the case. Notice to a joint tenant is a valid notice and a suit impleading only one of them was maintainable.
32. Mohd. Usman v. Mst. Surayya Begum dated 23.7.1990 of Hon'ble Delhi High Court in C.M.(M.) Nos 288/89: While relying upon the judgment of the Hon'ble Supreme Court in the case of H.C. Pandey v. G.C. Paul, JT 1989 (2) SC 261 it was held that on the death of the original tenant, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as enjoyed by the original tenant. It is a single tenancy that devolves on the heirs and there is no division of the premises or of the rent payable. It was held that even if one of the legal heirs is not a party to the proceedings for eviction filed by the landlord against the legal heirs of the original tenant, the heir who has been left out cannot later on come forward and agitate his or her right in the tenancy. The RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:07:22 +0530 PRAKASH CHAND SHARMA Page no. 18 of 46 tenant who was not a party to the litigation has no right to object to the execution of the decree. This judgment was upheld by the honorable Supreme Court in Mst. Surayya Begum, Etc vs Mohd. Usman And Ors., Etc on 26 April, 1991 1991 SCC (3) 114.
33. Krishan Kumar Alag v. Jambu Prasad Jain Decd., 2008 SCC OnLine Del 1274:- Objection that other legal heirs were not made a party to the eviction proceeding u/s 14 (1) (e) was not considered by the court. It was held, "It was not necessary for the landlord to implead all the brothers of the petitioner as a party. It is well settled law that after death of the tenant, his legal heirs inherit the property as joint tenants and if one of them alone occupies the tenanted premises, it is considered that others have surrendered their rights in his favour. LRs are not considered tenants-in-common so as to have separate and severe rights in the tenanted premises. It is sufficient if the LR in occupation of the tenanted premises are made as a party and it is not necessary to bring on record each and every LR of deceased. Moreover, in this case the petitioner had been giving rent and he was being issued rent receipts continuously for years together, after death of his father and none of his brother raised in disputed premises. All these rent receipts were placed on record of ARC. Therefore, this plea was rightly rejected by the ARC."
34. Suresh Kumar Kohli v. Rakesh Jain, (2018) 6 SCC 708: - The Hon'ble Supreme Court upheld the order of Ld. ARC rejecting the objections filed the person claiming to be a joint tenant in the RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:07:30 +0530 PRAKASH CHAND SHARMA Page no. 19 of 46 execution proceedings. It was observed, "We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail."
35.In the facts of the present case, the rent is being paid from the account of the alleged partnership firm. The other LR Sh. Shadi Lal Sharma is not separately paying any rent to the petitioner. The respondent being a joint tenant represents the interest of the other joint tenant i.e. Sh. Shadi Lal Sharma. The respondent has not denied having sent letter dated 19.02.2015 to the petitioner where in the following has been stated, "It is stated that Shri Chhaju Ram was father of the undersigned. The tenancy in favour of the father of the undersigned was created in 1957 and the same continued till his death whereafter the tenancy rights RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA Date: 2024.10.09 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:07:39 +0530 PRAKASH CHAND SHARMA Page no. 20 of 46 were inherited by the undersigned and subsequent thereto receipts are being issued in the name of Mr Prakash Chand, the undersigned here in. Therefore, you are well aware as regard the possession of the undersigned, who is running a shop under the name of 'fair deal stores'. There is no subletting of the tenanted premises by the undersigned and the undersigned is in actual physical possession of the premises in question and is running his shop under the name and style of 'Fair deal stores'."
36.Perusal of this letter shows that the respondent himself has taken stand that he is the only person who is in the possession of the tenanted premises. Thus, there was no requirement to do implead other legal heirs of Sh. Chhaju Ram and the respondent represents the interest of all of them. In view of the reasons explained above, no triable issue arises in this regard.
37.That the petitioner has filed wrong site plan: It is stated that the site plan filed by the petitioner does not disclose the area of the premises in question. In paragraph number 8 of the petition the area of the shop is mentioned as 11' X 29' which is totally incorrect as the actual area of the shop is 12' X 20'. It is submitted that the petitioner has filed incorrect site plan without reflecting the true and correct position of the premises. It is stated that the width of the verandah has been wrongly shown as 6' whereas the actual width is 3'. Similarly on the West side of the plot number 13 is plot number 12 and not 50'wide road as RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA Date: 2024.10.09 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:07:50 +0530 PRAKASH CHAND SHARMA Page no. 21 of 46 shown in the site plan. Also behind the shop number 13/1 is garage number 13/3 and not 13/2 and there are no godowns behind shop number 13/8. Further, it is stated that there is no door or access point between shop number 13/1 and shop number 13/2 as shown in the site plan making it apparent that the site plan filed by the petitioner is totally incorrect. It is stated that there is no encroachment or unauthorised construction carried out by the respondent in the verandah as alleged. It is submitted that the unauthorised construction as alleged is in fact a display unit which is embedded in the partition wall or pillar separating plot number 13 from the other plot number 12.
38. In reply, the petitioner has submitted that the location of the tenanted shop is not disputed by the respondent. It is also not disputed that the shop abutting the tenanted shop is shop number 13/2 and that the tenanted shop is the corner shop. It is stated that to avoid any controversy regarding the measurements of the shop, the petitioner except the position taken by the respondent that the dimension of the tenanted shop is 12 * 20. It is stated that the respondent has disputed the width of the veranda. The petitioner has submitted that to avoid any controversy it accepts the contention of the respondent that the common veranda is 3 feet wide and not 6 feet wide. It is submitted that the site plan filed by the petitioner shows the location of the entire plot number 13 and it is submitted that on the West side of this plot is RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:07:59 +0530 PRAKASH CHAND SHARMA Page no. 22 of 46 plot number 12 and further West is 50 metres wide road leading to road lodhi road. It is not the case of the petitioner that immediately on the west side of the plot number 13 is the 50 meter wide road. The alleged incorrectness in the site plan will not give rise to any triable issue particularly when the location of the tenanted shop at the site has been shown correctly in the site plan and has not been disputed by the respondent. Whether the garage behind the tenanted shop is that of 13/2 or 13/3, it has nothing to do with the tenanted shop and its location. Even if there is an any error regarding the same it does not have any bearing on the controversy involved in the present case.
39.From the pleadings of the parties, it emerges that there is no real dispute about the position and the size of the tenanted premises. The petitioner has accepted all the contentions of the respondent. The purpose of a site plan is to identify the disputed property. In the present case all the shops have specific numbers. Only shop no. 13/1 has been let out to the respondent. In the site plan filed by the petitioner as well as the site plan filed by the respondent, this shop is shown to be the corner shop, having shop no. 13/2 next to it. Thus, evidently there is no dispute regarding the location of the shop. The petitioner has accepted all other discrepancies pointed out regarding the site plan including the measurement of the tenanted premises. Therefore, no triable issue arises regarding the same. Further, during arguments, Ld RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:08:07 +0530 PRAKASH CHAND SHARMA Page no. 23 of 46 counsel for the petitioner has submitted that the court may consider the site plan filed by the respondent to be correct, and that the petitioner has no reservation against the same.
40.That the petitioner does not have the bonafide requirement of the tenanted premises:- It is stated that the petitioner is having net worth of over 100 crores for 03 years i.e. as on 31.03.2017, 31.03.2018 and 31.03.2019. It is stated that a company whose net worth is over 100 crores, does not have bonafide requirement as contemplated as per legislature U/s 14 (1) (e) of DRC Act particularly in relation of a small shop in a cluster of shops. It is stated that summary proceedings are available only for immediate need of the landlords where the landlords have no alternative place of business or residence. The petitioner company engaged in various business activities in association with many other corporate entities including Escort Hotels & Pvt. Ltd. Escort Pvt. Ltd., Karamyogi Finlease Pvt. Ltd., Panipat Properties Pvt. Ltd. besides others which can be categorised as sister concerns and cumulatively take up several business ventures worth several hundred crores including construction, real estate, malls, constructions and management of studio and service appartment.
41.It is stated that the business of the petitioner company along with several others is in fact owned by one Mr. Vikram Bakshi who is Director in 35 companies including the petitioner. It is stated that RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:08:15 +0530 PRAKASH CHAND SHARMA Page no. 24 of 46 taking possession of a small shop under the premises of bonafide requirement by way of summary proceedings is nothing but a fanciful desire and cannot be categorized as a bonafide requirement. It is submitted that the word 'requires' implies need rather than desire of the landlord. It is submitted that when the company is having such a large network it could not have requirement of the tenanted premises U/s 14 (1) (e) of DRC Act.
42.In reply, the petitioner has stated that just because the networth of the petitioner company is over 100 crores it does not mean and imply that the petitioner company would not have a bonafide requirement as contemplated in the legislature U/s 14 (1) (e) of the DRC Act. It is stated that the petitioner company has every right to carry out the business of a restaurant from the suit property and seek eviction of the tenants from the suit property for its requirement.
43.Apart from the mere presumption that the petitioner company does not have bonafide requirement of the suit property because it has a net worth of more than 100 crores, no other contention has been raised by the respondent in this regard. Once, the landlord pleads that it has bonafide requirement of the tenanted premises, there is a presumption in favour of the landlord. The respondent is required to rebut the presumption by bringing on record some material in support of the averments made by him. In the present case there isn't anything on record to disbelief the RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:08:23 +0530 PRAKASH CHAND SHARMA Page no. 25 of 46 case of the petitioner. Merely because, the petitioner company is successfully running its businesses, it does not mean that it does not have any requirement to start a new business from the tenanted premises. Infact, successful running of other businesses supports the case of the petitioner that the company has the wherewithal to start the present business from the suit property.
44.It also needs to be appreciated that the petitioner purchased the suit property in the year 1995 for a sale consideration of Rs. 65 lakhs. If the intention of the petitioner was to evict the tenants by hook or crook only, it would have filed for eviction petitions as soon as it became legally eligible after five years of sale. The petitioner company became owner of the suit property about 3 decades ago and prior to the present eviction petitions, there has been no attempt to evict the tenants. This goes on to support the case of the petitioner that it has bonafide requirement of starting business from the tenanted premises. In view of the discussion above it is held that no triable issue regarding bonafide requirement of the petitioner company arises.
45.During arguments it is also submitted on behalf of the respondent that the petitioner has filed the present application in a casual manner without any kind of seriousness. It is stated that the address of the petitioner company is wrongly mentioned as 14th Floor, Mohan Dev Building, 13, Tolstoy Marg, New Delhi- 110001, however, as per the Master Data of the petitioner RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:08:31 +0530 PRAKASH CHAND SHARMA Page no. 26 of 46 company the correct address is at 15th floor. In reply the petitioner has submitted that the same is a typographical error and that address of the petitioner company is at 15 th floor. In my view, no triable issue arrises in this respect.
46.That the petitioner company has suitable alternative accommodation available: The respondent in his application seeking leave to defend has stated that the Mr. Vikram Bakshi and Mr. Vinod Surha i.e. Directors of the petitioner and are also Director/ Stake Holder in other companies as under:-
S.n Company Name Regd.Address Name of Directors o 1 Ascot Hotels and Resorts 15th Floor, Mohandev Mr. Vinod Surha Private Limited Building, 13, Tolstoy Mr. Vikram Bakshi Marg, New Delhi-110001 2 Brite India Pvt. Ltd. 15th Floor, Mohandev Mr. Vinod Surha Building, 13, Tolstoy Mr. Vikram Bakshi Marg, New Delhi-110001 3 Vikram Bakshi and Top Floor, Mohandev Mr. Vikram Bakshi Company Pvt. Ltd. Building, 13, Tolstoy Marg, New Delhi-110001 4 Jupiter Estates and 15th Floor, Mohandev Mr. Vinod Surha Buuilders Pvt. Ltd. Building, 13, Tolstoy Mr. Trilok Chand Marg, New Delhi-110001 Gupta 5 Goldern Diamond Estates 15th Floor, Mohandev Mr. Vinod Surha Private Limited Building, 13, Tolstoy Ms. Kanika Talwar Marg, New Delhi-110001 6 Karmyogi Finlease Pvt. 15th Floor, Mohandev Mr. Vinod Surha Ltd. Building, 13, Tolstoy Ms. Avantika Marg, New Delhi-110001 Bakshi NAINA Digitally signed by NAINA GUPTA RC ARC/20/2020 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:08:39 +0530 PRAKASH CHAND SHARMA Page no. 27 of 46
47.It is stated that the petitioner has following alternative accommodation available:-
i) H. No. 49, Block No. 10, Golf Link, Delhi
ii) 230 Jor Bagh, New Delhi
iii) N-5, Jeewanlal Building, Cannaught Place, New Delhi 110001
iv) N-6, 7, 7A,9,10,11,55,56,88,89,8A,8B, 86 and common areas of properties at Serial Number no. 7,8, & 9 of N Block Connaught Place, New Delhi
v) 157, Golf links, New Delhi
vi) 86 (2ND FLOOR), 86-A & 87, N Block, Connaught Place, Delhi,
vii) 52, 52-A, 54, 54-A, N Block, Connaught Place, Delhi
viii) Ground Floor, N-7 Connaught Place Delhi.
ix) A-79A, Sector 16, Noida - U.P. Plot no.12, Jor Bagh, New Delhi
xi) 44, Ground Floor Regal Building, Connaught Place, New Delhi
xii) N-11, Connaught Place, New Delhi (3814 Sq. Ft.)
xii) Property situated at Block-N, 6,7,8A- 8B, 9, 10, 11, 55, 56, 8889 (Total area 48456+3433 Sq. feet)
xiv) B-29, Sector 62, Noida, U.P. Digitally signed RC ARC/20/2020 NAINA byGUPTA NAINA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:08:46 +0530 Date: 2024.10.09 PRAKASH CHAND SHARMA Page no. 28 of 46
xv) Ansal Plaza, 1-C, Institutional Area, Destination Point, Greater Noida, U.P. xvi) R-75, Sector-1, IMT, Manesar, Haryana.
xvii) Grand Trunk Mall, Mehtab Complex, G.T. Road, Kote Kalan, Jalandhar, Punjab.
xviii) Plot No.13, Jorbagh, New Delhi (upper floor)
48. It is stated that as per information available on the website Mr. Vikram Bakshi is director in around 20 other companies out of which he is independent and non-executive director in two companies.
49. It is stated that the petitioner has deliberately and intentionally concealed the abovesaid information. It is stated that the petitioner owns more than 15 to 20 immovable properties both commercial and residential in Delhi. It is stated that as per Master data of petitioner company as available on the website of Ministry of Corporate Affairs a charge has been created by the petitioner company in respect of around 23 immovable properties. It is stated that petitioner company owns commercial properties at Connaught Place which is a commercial hub of Delhi and has more commercial viability and foot fall than any other property. In addition the respondent has also filed documents relating to additional properties available to the Digitally signed NAINA byGUPTA NAINA RC ARC/20/2020 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:08:55 +0530 Date: 2024.10.09 PRAKASH CHAND SHARMA Page no. 29 of 46 petitioner by way of separate application U/o 8 Rule 8 CPC which was allowed vide order dt. 03.10.2023. In the application it is mentioned that the petitioner company also owns " property bearing no. N7 and 7A Connaught Place, New Delhi- charge was registered with the ROC on 30.11.2015. Similarly, with respect to property no.86 (Second Floor), 86-A, 87, 52, 52A, 54, 54A and 7 (ground floor) N Block, Connaught Place, New Delhi- charge was registered with the ROC on 8.7.2016 and with respect to N-5, Jeevan Lal Building, Connaught Place, New Delhi- a charge was registered on 12.05.2006. The petitioner has further concealed about the properties N-6, 7, 7A,9,10,11,55,56,88,89,8A,8B, 86 and common areas of properties at Serial Number no. 7,8, & 9 of N Block Connaught Place, New Delhi in respect of which supplementary agreement in continuation of the principal agreement was entered on 14.02.2017".
50. In reply the petitioner has submitted that Master data of the petitioner company available on the website of Ministry of Corporate Affairs as placed on record by the respondent does not show that the immovable properties in respect of which charge has been created are owned and possessed by the petitioner company. The respondent has not placed on record particulars of title documents to show which property besides the suit property is owned by the petitioner company in NCR of Delhi. It is stated NAINA Digitally signed by NAINA GUPTA RC ARC/20/2020 Date: 2024.10.09 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:09:04 +0530 PRAKASH CHAND SHARMA Page no. 30 of 46 that respondent cannot take the plea that the petitioner company is primarily owned by Mr. Vikram Bakshi. Such a plea is contradictory to the law as the company being a juristic person has independent legal entity, therefore, if any of the Directors of the petitioner company has any immovable property acquired in his own name or is a Director in other companies who are owners of immovable properties then the same by no stretch of legal fiction would mean and imply that all such immovable properties would be said to be owned and possessed by the petitioner company.
51.It is submitted that in the list given by the respondent there are properties bearing no. H.no. 49, Block no.10, Golf Link, Delhi and property no. 230, Jor Bagh, New Delhi at S.no. (xix) and (xx) (shown as S.no. (i) and (ii) in the application). It is stated that these two properties are residential properties. Property no. H.no.49, Jor Bagh was jointly purchased by the petitioner company, M/s Vikram Bakshi & Company Pvt. Ltd. And Mr. Vikram Bakshi from the erstwhile owner Mrs. Harinder Sachdev by virtue of a registered Sale Deed dt. 14.09.2005. This property is completely residential property and the same was sold by registered sale deed dt. 06.01.2009 to M/s Delhi Golf Link Properties Pvt. Ltd. Copy of the sale deed along with registration has been attached by the petitioner.
Digitally signed
NAINA by NAINA
GUPTA
RC ARC/20/2020 GUPTA 16:09:14 +0530
Date: 2024.10.09
M/S KALANIDHI INTERNATIONAL PVT LTD Vs.
PRAKASH CHAND SHARMA Page no. 31 of 46
52. It is stated that the property 230, Jor Bagh is also completely residential property and was purchased asset of petitioner company from the erstwhile owner Madan Mohan Soni vide registered deed dt. 28.03.2001. The petitioner company vide sale deed dt.12.03.2015 sold the entire second floor with roof rights of this property to M/s Arrowline Plazza Pvt. Ltd. The petitioner company vide registered deed 12.02.2015 sold the entire basement along with ground floor of this property to M/s Callan Real Con India Pvt. Ltd. The petitioner vide registered sale deed dt. 01.06.2015 sold the entire first floor of this property to M/s RiverCity Construction and Developers Pvt. Ltd. Thus, this residential property stood completely sold by the petitioner company in June, 2025 itself. It is stated that the petitioner company is neither the owner nor having any right, title or interest over the property mentioned by the respondent. The petitioner is owner of the upper floor of plot no.13, Jor Bagh and this fact has been mentioned by the petitioner in the eviction petition. It is stated that the 1st floor of the property is totally residential.
53. Merely because of the fact that some of the Directors of the petitioner company are also Directors in other companies and such directors and such companies being owners of the immovable properties would not itself mean or imply that the said properties are owned by the petitioner company and can RC ARC/20/2020 NAINA Digitally signed by NAINA GUPTA Date: 2024.10.09 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:09:23 +0530 PRAKASH CHAND SHARMA Page no. 32 of 46 have status of alternative accommodation available with the petitioner company.
54.In rejoinder the respondent has stated that the plot no. 13 Jor Bagh and other adjacent plots are part of Local Shopping Centre as declared under the Master Plan of Delhi and being a commercial premises the entire property can be used for commercial purposes. It is stated that petitioner has alternative accommodation available to it in the first floor of the suit property.
55. It is stated that given the details of the property owned by the petitioner, the respondent has discharged his burden and now onus has shifted on the petitioner to show that these properties are not owned by it and for this purpose the petitioner could have placed on record the title documents of the said 15 properties but the petitioner has failed to do so thus leading to inevitable conclusion that the aforesaid properties are owned by the petitioner company and the properties situated at Connaught Place which is a Central Business District as defined under the Master Plan of Delhi are commercial properties. It is stated that in support of property bearing no. N7 and 7A Connaught Place, New Delhi- charge was registered with the ROC on 30.11.2015. Similarly, with respect to property no.86 (Second Floor), 86-A, 87, 52, 52A, 54, 54A and 7 (grounc floor) N Block, Connaught Place, New Delhi- charge was registered with the ROC on NAINA Digitally signed by NAINA GUPTA RC ARC/20/2020 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:09:32 +0530 PRAKASH CHAND SHARMA Page no. 33 of 46 8.7.2016 and with respect to N-5, Jeevan Lal Building, Connaught Place, New Delhi- charged was registered on 12.05.2006. It is stated that the petitioner has further concealed about the properties N-6, 7, 7A,9,10,11,55,56,88,89,8A,8B, 86 and common areas of properties at Serial Number no. 7,8, & 9 of N Block Connaught Place, New Delhi in respect of which supplementary agreement in continuation of the principal agreement was entered on 14.02.2017. It is stated that Master Data filed by the respondent company discloses creation of charge with ROC in respect of 23 properties. The petitioner has failed to disclose which are these properties. It is contended that non-disclosure of the identity of the aforesaid properties is in fact a tacit admission by the petitioner of the various other commercial properties owned by it. It is stated that doubt has been cast upon the bonafide requirement of the petitioner as well as alternative accommodation within Delhi and NCR Region entitling the respondent to an unconditional leave to defend.
56. During arguments, Ld. Counsel for respondent has stressed upon alleged concealment by the petitioner and the additional accommodation available to the company. On the other hand, Ld. Counsel for petitioner has advanced arguments that the respondent has only made a bald contention that the petitioner is owner of various immovable properties. It is stated that the respondent has not placed on record any document of title Digitally signed RC ARC/20/2020 NAINA by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:09:41 +0530 Date: 2024.10.09 PRAKASH CHAND SHARMA Page no. 34 of 46 evidencing that the petitioner company owns these companies. It is also been argued that even in the documents filed by the respondent it is clearly shown that only property which the petitioner company has contended to be owned by it is property no. 13, Jor Bagh, New Delhi.
57.I have examined the records placed on record by the respondent and have considered the arguments led by both the parties. Once there is a clear averment by the petitioner that it has no other alternate suitable accommodation available to it, the burden is on the respondent to create a doubt regarding the same to seek leave to defend. The respondent must discharge this burden on the scale of preponderance of probabilities. The respondent has placed reliance on the records available in the public domain showing that the petitioner company has created charge over about 23 companies. The petitioner has denied owning any of these properties. There is no document produced by the respondent also to show that the petitioner owns these properties. Perusal of the documents filed shows that the petitioner company along with other companies has obtained finance from banks and financial institutions. The documents filed show that the loans have been jointly procured by mortgaging immovable properties of the group companies. In the supplementary agreement filed in support of the loan obtained from Religare Finvest Limited, petitioner company is shown to NAINA Digitally signed by NAINA GUPTA RC ARC/20/2020 Date: 2024.10.09 GUPTA 16:09:49 +0530 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. PRAKASH CHAND SHARMA Page no. 35 of 46 be owner of only the suit property at page no. 90. Further on behalf of the petitioner company, Sh. Vikram Bakshi, its director has filed affidavit that the suit property is owned by the petitioner company.
58.From the documents placed by the respondent, the only thing that is evident is that the petitioner was a co borrower with other companies which owned the properties alleged above and accordingly a charge has been created in the MCA records. It nowhere supports the case of the respondent that the properties mentioned above are owned and are available and suitable to the petitioner as alternative properties for the purposes of opening a restaurant. It has been pleaded that the corporate veil must be pierced, and the properties owned by the directors of the petitioner in their individual capacity or by the other companies of which they are also directors, be considered as the properties available to the petitioner. But such a contention is contrary to the law of corporate personality. It has already been discussed above that a company is entitled to sue for its bonafide requirement u/s 14 (1) (e) DRC Act. When it has been held so, what circumstances are there to lift the corporate veil by the court. No legal argument in support of this has been advanced by the ld. counsel for the respondent.
59.It is not a case where the petitioner company has been created only to create artificial scarcity of accommodation available to NAINA Digitally signed RC ARC/20/2020 by NAINA GUPTA Date: 2024.10.09 GUPTA 16:09:58 +0530 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. PRAKASH CHAND SHARMA Page no. 36 of 46 the directors of the company to seek eviction of the tenants from the suit property. The company is in existence for more than four decades and has owned this suit property for almost three decades now. The court would have considered it a ground to grant leave to defend, where it was evident that the company has been created only for the purposes of evicting tenants. However, that is not the case and nor has it been pleaded so by the respondent.
60.Section 14 (1) (e) requires that the petitioner must not have any other alternative suitable accommodation. The threshold is not of ownership of other properties but of an alternate suitable accommodation. It is not even averred by the respondent that any of the properties mentioned by him are available to the petitioner for opening of a restaurant as required by it. When the requisite averment and the supporting material itself is missing, no triable issue arises with respect to availability of alternate suitable accommodation.
61.The respondent has also raised argument that the first floor of the suit property can also be used by the petitioner for opening the restaurant. In this regard the respondent has placed reliance upon the Master Plan of Jor Bagh which depicts that the suit property is a local shopping centre and is entirely commercial in nature. It is undisputed that the first floor has been constructed for residential use by the erstwhile owners and currently the first Digitally signed NAINA by NAINA RC ARC/20/2020 GUPTA GUPTA Date: 2024.10.09 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. 16:10:07 +0530 PRAKASH CHAND SHARMA Page no. 37 of 46 floor is being used for residential and office use. The respondent cannot dictate its terms to the petitioner that it should use the first floor instead of the ground floor. The ground floor is being used for a purely commercial purpose and the petitioner also wants to use it commercial purpose. Thus, it is evidently more suitable to the petitioner for opening a restaurant.
62.That the petitioner has not filed the sanction from the MCD: It is submitted that petitioner intends to start a new business venture of a multi cuisine restaurant after removing the partition walls and create a big hall having an eating and dining area for large number of guests. It is submitted that what has been proposed by the petitioner requires a massive alteration and construction and it cannot be done without prior sanction and approval from NDMC. It is submitted that NDMC would not grant permission for demolishing of internal walls especially of a property which was constructed way back in the early 1950s that is about 70 years back so as to create a large hall and therefore subject matter is premature. It is submitted that the premises is situated in posh and quite neighborhood of Jor Bagh and the local residents association may also oppose to the opeining of the restaurant in the area. It is stated that the building is built upon load bearing walls and not by column and beam structure as in the modern times and therefore the internal walls cannot be removed by merely calling it "dismantling and rearranging" of NAINA Digitally signed by NAINA GUPTA RC ARC/20/2020 Date: 2024.10.09 GUPTA 16:10:16 +0530 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. PRAKASH CHAND SHARMA Page no. 38 of 46 walls.
63.It is stated that the petitioner has not placed on record the following documents:-
a. Permission to Demolish Internal/Partition Walls so as to amalgamate the entire premises in a large hall b. Seek Permission of Appropriate Authority for running a Large Restaurant having seating capacity of about 100 guests c. Having Permission from the Traffic Wing of Delhi Police regarding regulating traffic movement of outsiders into a residential colony.
d. Consent of RWA (Residents Welfare Association) of Jorbagh
64.In reply, the petitioner has submitted that within the bylaws of MCD the petitioner has right to carry out such an addition and alteration which does not require prior permission. Removal of partition wall and re-aligning them without altering the basic structure and without touching the load bearing walls are such addition and alteration which does not require the permission from NDMC. It is submitted that belief of the respondent that NDMC would not grant permission is merely a presumption and that too on the premise that the petitioner would be required to take prior permission. It is reiterated that the petitioner has every right to make addition and alteration within the building bylaws and does not require permission of the NDMC.
65.It is stated that there is no restriction upon the opening of a Digitally signed RC ARC/20/2020 NAINA by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:10:25 +0530 PRAKASH CHAND SHARMA Page no. 39 of 46 restaurant in the commercial area on the ground floor. It is also contended that the respondent has not placed on record anything to show that the law prohibits the petitioner from setting up a large restaurant in the ground floor of the property. It is stated that as per layout plan filed by the petitioner all the partition walls are not required to be removed. It would be discretion of the petitioner to carry out such minor additions and alterations to give a proper shape and effect of the restaurant area as well area earmarked for kitchen of the restaurant. It is also submitted that since the property is situated in the commercial area having adequate parking space there is no requirement of the petitioner to seek prior permission of the Traffic Wing of the Delhi Police and consent of RWA. The respondent has not placed on record any cogent and reliable evidence on record to show that there are any rules and regulation for petitioner to take prior permission from NDMC, Traffic Wing of the Delhi Police and RWA for starting its multicuisine restaurant.
66.This court while assessing the requirement of the petitioner, must consider whether there is bonafide requirement of the petitioner to start the business of a restaurant from the ground floor of the suit property. There is no weight in the contention of the respondent that the layout plan filed by the petitioner is impractical and infeasible. The whole building is owned by the petitioner. The petitioner is already using the first floor of the NAINA Digitally signed by NAINA GUPTA RC ARC/20/2020 Date: 2024.10.09 GUPTA 16:10:33 +0530 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. PRAKASH CHAND SHARMA Page no. 40 of 46 suit property for its residential and office use. The ground floor is being used for commercial purposes and the petitioner also intends to put it to use for a commercial purpose only. There is no reason to assume that the petitioner will carry out such construction that would cause damage to the suit property. The petitioner only wants to remove some of the partition walls to make a big hall. Whether a permission for the same is required from the NDMC is not the concern of the respondent. The petitioner has submitted that if a permission is required it will seek the same from the NDMC. Before, this court of rent jurisdiction, such an argument is of no bearing.
67.Reliance in this regard is placed upon judgment of the Hon'ble High Court of Delhi in the case of Gulshan Rai v. Samrendra Bose Secy, 2012 SCC OnLine Del 444. In this case the ground on which leave was being sought was that the requirement for which eviction was being sought was against the Building bye laws. The court of Ld. ARC had granted leave observing that since the property was heritage property and the guest house was being run without permission, a triable issue had been raised. The order of the Ld. ARC was set aside by the Hon'ble High Court, and it was held that the tenant had no locus standi to challenge the illegality of the landlord in running a guest house from the premises. It was also observed that whether a permission is to be granted or not is inter se arrangement Digitally signed NAINA by NAINA GUPTA RC ARC/20/2020 GUPTA Date: 2024.10.09 16:10:42 +0530 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. PRAKASH CHAND SHARMA Page no. 41 of 46 between the landlord and the MCD. This case is squarely applicable to the facts at hand also. The petitioner has proposed only the removing of the partition walls and there is no legal bar against the same. The respondent has made presumptuous claims that it would involve demolition of the entire building and will cause damage to the building. Further it has also been claimed that the proposed layout plan requires permission from the MCD and the same has not been placed on record. The tenant cannot raise such pleas.
68.The basic principle attracted here is that the respondent cannot dictate its terms to the petitioner. The petitioner is the best judge of his requirement and the respondent or this court cannot direct the petitioner on to how to use the suit property. In the case of Ranjit Singh Sethi v Gurmeet Singh Chawla R.C.R. No. 209/2011, the landlord had averred that the intervening wall between the tenanted premises and the shop already in possession of the landlord shall be broken and the entire area of the shop shall be increased. The Hon'ble High Court rejected leave to defend and allowed eviction in favour of the petitioner. Thus, removal of partition walls between shops does not mean that there is reconstruction of the building. In the judgment of the Hon'ble Supreme Court in the case of Balwant Singh v. Sudarshan Kumar 2021 (1) RCR (Rent) 146 the landlord had sought eviction from shops on the ground floor and averred that Digitally signed RC ARC/20/2020 NAINA by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 2024.10.09 Date:
16:10:51 +0530 PRAKASH CHAND SHARMA Page no. 42 of 46 the building shall be renovated as per the requirements of the proposed business. The Hon'ble Supreme Court set aside the order of the High Court granting leave to defend and allowed the eviction in favour of the landlord.
69.In my view, the court need not assess the need of the landlord with a magnifying glass. Once the landlord satisfies the court that there is genuine requirement for the landlord to start business, no dispute regarding its alleged requirement can be raised by the tenant in terms of feasibility of the business plan. The landlord has freedom to start or expand its business in whatever manner it may like. The tenant cannot say that the requirement is not genuine because the proposed business plan is not feasible. The landlord is not even bound to set up its business in the same manner as stated in the petition. If for some reason there is an impediment in the way of the petitioner from starting the restaurant from the tenanted premises as per the layout plan given, it is free to make changes to its plan and use the suit property for carrying on business which confirms to the legal requirements.
70.Reliance in this regard is placed upon the judgment of the Hon'ble High Court of Delhi in the case of Sunder Singh Talwar v. Kamal Chand Dugar, 2018 SCC OnLine Del 8376. It was observed, "It is settled legal position in this regard that a landlord while filing an eviction petition for bona fide need, Digitally signed RC ARC/20/2020 NAINA by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:11:00 +0530 Date: 2024.10.09 PRAKASH CHAND SHARMA Page no. 43 of 46 need not specify the exact business which is proposed to be carried out from the tenanted premises for which the eviction has been sought. In fact, even if in the eviction petition a particular purpose is stated, the landlord is not bound by the said purpose and after an eviction order, can change his mind and use the premises for a different kind of business. It is settled by a catena of judgments that the landlord has not to give an elaborate description of the business or the nature of business that he seeks to carry out in the premises."
71.In view of the above, the defence that the tenanted premises cannot be utilized for the bonafide need and that no permission will be granted by the MCD, is not tenable. It is for the petitioner to procure the appropriate permissions. The remedy in case of non use/ occupation of the tenanted premises by the petitioner within the stipulated time is available to the respondent under section 19 DRC, however the tenant cannot be permitted to travel beyond that in interfere in the execution of the proposed business plan.
72.That the petitioner is not the owner of the tenanted premises: It is stated that the petitioner has no title documents to the property as there is only agreement to sell executed in the year 2007 based upon the payment of money and receipt dt. 29.11.1994 in the favour of the petitioner. It is stated that the respondent started paying rent to the petitioner after receiving the letter dt.
NAINA Digitally signed
by NAINA GUPTA
RC ARC/20/2020 Date: 2024.10.09
GUPTA 16:11:09 +0530
M/S KALANIDHI INTERNATIONAL PVT LTD Vs.
PRAKASH CHAND SHARMA Page no. 44 of 46
1995 from the erstwhile owner of the suit property who had sold the property to the petitioner. However, it was not in the knowledge of the respondent that the petitioner did not have any title documents in his favour. Therefore, it is stated that petitioner is not the owner of the suit property.
73.In reply, the respondent has stated that while disputing the ownership of the petitioner, the respondent has not disclosed who else is the owner of the tenanted shop. Therefore, the contention of the respondent that petitioner is not the owner of the tenanted premises is false.
74.It is settled law that in petition under DRC Act the petitioner need not prove his absolute ownership and the petitioner only needs to show that he is something more than a tenant. The erstwhile owners have attorned the tenancy in favour of the petitioner. The respondent has been admittedly paying rent to the petitioner. The respondent being tenant cannot challenge the title of the petitioner being estopped U/s 116 of Indian Evidence Act. Reliance is placed upon Shanti Singh Vs. Ved Prakash, 1986,
208.
75.In view thereof it is held that the landlord - tenant relationship and the ownership of the petitioner stands proved.
Digitally signed
NAINA by NAINA
GUPTA
RC ARC/20/2020 GUPTA Date: 2024.10.09
16:11:17 +0530
M/S KALANIDHI INTERNATIONAL PVT LTD Vs.
PRAKASH CHAND SHARMA Page no. 45 of 46
FINAL FINDING
76.No other ground for seeking leave to defend has been raised by the respondent in the application. In view of the discussion above, this court reaches the conclusion that the application for seeking leave to defend filed on behalf of the respondent is without any merits and same is liable to be dismissed. Accordingly, application seeking leave to defend of respondent is dismissed and the petition U/s 14 (1) (e) r/w Section 25B on behalf of petitioner is allowed. The respondent is directed to vacate the tenanted premises i.e. Shop no. 13/1, Ground Floor, Jorbagh Market, New Delhi-110003 (as shown in red in the site plan filed by the respondent). The petitioner shall not file the execution petition for eviction of the tenanted premises before the expiry of period of six months from today.
77.File be consigned to Record Room after due compliance.
Digitally signed by NAINA NAINA GUPTA
Announced in the open Court GUPTA Date:
2024.10.09
On 9th October, 2024 16:11:33 +0530
(NAINA GUPTA)
ACJ-cum-CCJ-cum-ARC (South - East)
Saket Courts, New Delhi
RC ARC/20/2020
M/S KALANIDHI INTERNATIONAL PVT LTD Vs.
PRAKASH CHAND SHARMA Page no. 46 of 46