Delhi District Court
M/S P. D. Jewellers Pvt. Ltd. & Another vs . Cherry Bahl on 4 December, 2014
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
Suit No. 70/14
Case ID No. 02406C0022592014
1. M/s P. D. Jewellers Pvt. Ltd.
C34, Duggal Colony, Devli Road,
Khanpur, New Delhi110080.
Through its Director Pankaj Soni
2. Brij Mohan Jain
S/o Sh. Chander Sain Jain
R/o C61, Duggal Colony,
Devli Road, Khanpur,
New Delhi110080.
...............Plaintiffs
Versus
Cherry Bahl
W/o Sh. Sudhir Bahl
R/o M64, Second Floor,
Saket, New Delhi110062.
Also at
109/6, Ground Floor,
Gautam Nagar, New Delhi110049.
..............Defendant
Date of Institution : 29.01.2014
Date of reserving the Judgment : 01.12.2014
Date of pronouncement : 04.12.2014
Decision : Decreed
SUIT FOR RECOVERY OF POSSESSION AND DAMAGES/MESNE
PROFITS FOR USE AND OCCUPATION OF THE PROPERTY
Suit No.70/14 Page 1 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
JUDGMENT (UNDER ORDER XII RULE 6 OF THE CODE OF CIVIL
PROCEDURE, 1908)
1. This order shall dispose off an application under Order XII
Rule 6 of the Code of Civil Procedure, 1908 moved on behalf of
plaintiffs.
2. Following relief has been prayed in the application:
"It is, therefore, prayed that without
waiting for the determining of question
of recovery of damages for use and
occupation of the suit property, a
Judgment and decree for possession be
passed in favour of the plaintiffs and
against the defendant directing the
defendant to handover vacant possession
of second floor portion of property
no.M64, Saket, New Delhi110017 to
the plaintiffs and as shown in red colour
in the site plan to be marked as Ex.P1
filed with the plaint."
3. In addition thereto, Learned counsel for plaitniffs orally submits
that the rate of damages/user and occupation charge, was also
stipulated in the admitted contract of tenancy between the parties.
Hence, the plaintiffs are entitled for a decree under Order XII Rule
6 of the Code of Civil Procedure, 1908 on that count also.
CASE OF PLAINTIFF
4. The brief relevant facts necessary for disposal of the
application are that the plaintiffs filed the suit for recovery of
possession and damages/mesne profits for use and occupation of
the property. It is averred that the plaintiffs are the
Suit No.70/14 Page 2 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
owners/landlords of the entire second floor of property No.M64,
Saket, New Delhi17. The plaintiffs let out the second floor of the
property consisting of 4 rooms with attached latrine+bathroom,
one living/dinning hall, one store room and kitchen to the
defendant w.e.f. 01.09.2012 at a rent of Rs.40,000/ per month
excluding other charges for a period of 12 months. The tenancy of
the defendant was month to month and used to commence on the
1st day of the month and expires on the last day of the month
according to English calender.
5. It is averred that a lease agreement dated 29.08.2012 was
also executed between the plaintiffs and the defendant which was
duly registered with SubregistrarVA vide document No.709 in
Addl. Book No.1 Volume No.35 on page No.168 to 174 on dated
29.08.2012. It is the grievance of plaintiffs that after the expiry of
fixed period of 12 months, the tenancy of the defendant came to
an end by efflux of time. However the defendant had not
delivered the vacant possession of the suit property to the
plaintiffs as agreed between the parties despite repeated requests.
The plaintiffs issued a notice dated 29.11.2013 to the defendant
through their counsel but to no avail. Hence the present suit
praying for a decree of possession and mesne profit to the tune of
Rs.7,40,000/ for use and occupation of the property from
01.09.2013 to 26.01.2014 and mesne profit @ Rs.5,000/ per day
from 27.01.2014 till delivery of possession along with interest @
15% per annum from the date of suit till payment of the amount
of damages.
Suit No.70/14 Page 3 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
CASE OF DEFENDANT
6. In her written statement, defendant, apart from other
preliminary objections/submissions, has stated that the lease
agreement dated 29.08.2012 was made for a period of 12 months
conmmencing from 01.09.2012 to 31.08.2013 and it was orally
decided between the parties that the lease agreement would be
continued for next two years. It can be understood by the act of
the plaintiffs as they had received the rent up to December, 2013.
It is stated that plaintiffs used to sent two persons namely Sh.
Desh Bandhu Jain and Sh. Ram Avtar to collect the rent through
cheque. But these persons did not turn up to collect the rent for
the month of October and plaintiffs started demanding that the
defendant should pay the rent in cash. On 07.11.2013, the
husband of defendant sent a text message to plaintiffs requesting
them to collect the rent and reimburse the expenses incurred by
defendant on plumber work. Again on 15.11.2013 defendant
called Sh. Ram Avtar to collect the rent. On 03.12.2013, Sh. D. B.
Jain and Sh. Ram Avtar came at the suit premises and collected
the rent of Rs.1,00,000/ and when defendant asked for rent
receipt, they replied that the rent receipt would be issued in the
month of January.
7. It is further stated that on 06.01.2014, the aforesaid persons
sent a boy to collect the rent of Rs.40,000/ but when defendant
asked for rent receipt, Sh. D. B. Jain and Sh. Ram Avtar did not
respond. On 01.02.2014, defendant received the notice from the
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
court. It is stated that defendant removed garbage, mud and
stones etc, carried out renovation work in the suit premises like
fencing, flooring, alarm on tank, cleared the previous electricity
and water bills, installed water motor and made it habitable.
8. On merits, it is denied that the tenancy was terminated on
31.08.2013 and it is rather stated that plaintiffs had orally
renewed the lease deed for the next two years and plaintiffs had
received rent of Rs.1,00,000/ from the defendant till December,
2013. It is stated that no legal notice is served upon the defendant
from the counsel for plaintiffs till date and the plaintiffs never
requested the defendant to vacate the suit premises as per
agreement, so question of avoiding the same does not arise. It is
further denied that plaintiffs are entitled for recovery of Rs.
7,40,000/ from defendant on account of damages/mesne
profit/unauthorised occupation charges. However, it is submitted
that the defendant had deposited Rs.80,000/ with the plaintiffs as
security and defendant has prayed that the suit of the plaintiffs be
rejected with exemplary cost under Section 35A CPC.
ADMITTED FACTS:
9. (1) A registered lease deed dated 29.08.2012 was executed
between the parties qua the suit premises with following main
stipulations:
(a) The tenancy of defendant would commence w.e.f.
01.09.2012 to 31.08.2013 on rent @ Rs.40,000/ per
month to be payable on or before the 7th day of each English
Suit No.70/14 Page 5 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
Calender month in advance.
(b) After expiry of the lease on 31.08.2013 both the parties had
an option to get the lease renewed with mutual consent and
at mutual terms and conditions and a fresh lease deed
would be executed in that regard. That it was agreed that if
the parties do not mutually agree to extend the said lease
deed, the tenancy would terminate by efflux of time on
31.08.2013.
(c) That it was agreed between the parties that after the
termination of tenancy by any mode (either by efflux of
time or by notice), if the lessee does not vacate the premises
then he shall pay to the lessor user and occupation
charges @ Rs.5000/ per day till the time vacant possession
is handed over to the lessor. That it was further agreed that
in the eventuallity lessee does not handover the vacant
possession of the premises to the lessor on the
expiry/termination of the lease, the lessor shall get the same
vacated through procedure established by law along with
use and occupation charges/profits/damages at the rate of
Rs.5,000/ per day from the lessee (for the period of
unauthorized occupation after the termination/expiry of
lease).
(2) No written lease agreement/deed was executed between the
parties after the expiry of registered lease deed dated 29.08.2012.
SUBMISSIONS QUA APPLICATION UNDER ORDER XII RULE 6
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
OF THE CODE OF CIVIL PROCEDURE, 1906
10. Sh. C. M. Goyal, Learned counsel for plaintiffs has submitted
that in order to succeed in the suit for possession, plaintiff was
required to prove following ingredients:
(a) That there exists a landlord and tenant relationship between
the parties.
(b) That defendant is not protected under the Rent Control
Laws i.e. the rate of rent is more than Rs.3,500/ (Rupees
Three Thousand Five Hundred Only) and the provisions of
Delhi Rent Control Act, 1958 are not applicable to the facts
of case.
(c) That the tenancy of defendant was validly terminated under
law.
11. It is submitted on behalf of plaintiffs that on satisfying the
aforementioned requirements of law, the plaintiffs are entitled to a
decree of possession and damges in their favour.
12. Learned counsel for plaintiffs submits that defendant has
admitted the relevant pleadings and documents in the plaint and
no further proof of the same is necessary. Hence, plaintiffs are
entitled for a decree under Order XII Rule 6 of the Code of Civil
Procedure, 1906.
REPLY OF DEFENDANT FOR SUBMISSIONS ON APPLICATION
UNDER ORDER XII RULE 6 OF THE CODE OF CIVIL
PROCEDURE, 1906
13. Learned Sh. Dhillon, counsel for defendant has submitted
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
that plaintiffs have not filed any proof of the ownership of the suit
property and the application under disposal as well as suit filed by
the plaintiffs is liable to be rejected on this ground alone.
14. Learned Sh. H. S. Dhillon, counsel for defendant further
submits that the application under Order XII Rule 6 of the Code of
Civil Procedure, 1906 is not maintainable as there are several
issues which are required to be proved by parties by leading their
respective evidence. It is submitted by him that the defendant
never admitted that the tenancy was terminated by the plaintiffs
and in fact the tenancy is still in existence as the plaintiffs have
received the rent even after the expiry of lease agreement and no
legal notice was ever received by defendant. It is further stated
that defendant made payment of Rs.1,00,000/ to Sh. D. B. Jain
and Sh. Ram Avtar and heavy amount of Rs.60,000/ to Rs.
70,000/, spent by defendant for renovation of the suit premises is
still to be adjusted by the plaintiffs. It is submitted by him that the
defendant has further taken a stand that the parties mutually
agreed to extend the lease for further period of 2 years. It is
further submitted by him that the defendant did not even receive
any notice of termination.
RELIANCE
15. Learned Sh. C. M. Goyal, counsel for plaintiff has relied
upon judgments of Hon'ble High Court of Delhi tilted as Rajpal
Singh vs. Deen Dayal Kapil Appeal No.129/2013, 10223/2013
and 10224/2013 and Davinder Kaur & Another vs. Kulbir Kaur
Suit No.70/14 Page 8 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
& Another 204 (2013) DLT 279.
FINDINGS
16. The court has considered the rival contensions advanced by
both the parties and has carefully gone through the pleadings and
documents available on record.
17. The contention of Learned Sh. Dhillon that the plaintiffs
have not filed the proof of ownership of suit property is not
required to be adjudicated in the present case. This is a case
between landlord and tenant. Creation of tenancy in favour of
defendant by the plaintiffs is admitted. Section 116 of the Indian
Evidence Act, 1872 estops the defendant from raising title dispute
against the plaintiffs. Hence, this contention is not at all relevant
in the present proceedings.
18. The case of the parties revolves around the admitted lease
deed dated 29.08.2012 of the suit premises. The lease was
executed for 12 months commencing w.e.f. 01.09.2012 and came
to an end by efflux of time on 31.08.2013.
19. The claim of the plaintiffs is that the defendant was
supposed to vacate the suit premises after expiry of the said lease
deed, which was not done by him. Thereafter, the plaintiffs have
sent a notice dated 29.11.2013 to the defendant through his
counsel Sh. C. M. Goyal by registered post and courier requiring
him to hand over the vacant and physical possession of the
tenanted premises to the plaintiffs and also to pay damages for
unauthorized use and occupation of the premises @ Rs.5000/ per
Suit No.70/14 Page 9 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
day as agreed vide aforesaid registered lease deed, from
01.09.2013 till the time of delivery of vacant possession of the
premises to the plaintiffs but to no avail. Hence, the suit.
20. The claim of the defendant is that after expiry of the said
lease deed, both the parties orally agreed to further extend the
lease of suit premises for next 2 years.
21. Section 107 of the Transfer of Property Act, 1882 provides
the manner in which the lease of immovable property from year to
year can be made:
"107. Leases how made. A lease of
immovable property from year to year or
for any term exceeding one year or
reserving a yearly rent, can be made only
by a registered instrument.
(All other leases of immovable property
may be made either by a registered
instrument or by oral agreement
accompanied by delivery of possession.
(Where a lease of immovable property is
made by a registered instrument, such
instrument or, where there are more
instruments than one, each such
instrument shall be executed by both the
lessor and the lessee:)
Provided that the State Government may
from time to time, by notification in the
Official Gazette, direct that leases of
immovable property, other than leases
from year to year, or for any term
exceeding one year, or reserving a yearly
rent, or any class of such leases, may be
made by unregistered instrument or by
oral agreement without delivery of
possession.)"
Suit No.70/14 Page 10 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
22. A bare reading of Section clarifies that lease of immovable
property for more than one year is not only requied to be
documented but the same has to be further registered. There
cannot be any unregistered lease deed of the immovable property
for any term exceeding one year. Hence, the stand of the
defendant that after expiry of the lease deed dated 29.08.2012, it
was orally agreed between the parties that the lease agreement
would be further extended for 2 years next after 31.08.2013, is
not tenable because the said lease agreement or lease deed was
never executed between the parties, what to talk about its
registration.
23. Moreover, the court is in agreement with the submissions of
Learned counsel for plaintiffs that acting upon such submissions of
defendant would be contrary to Section 91 & 92 of Indian
Evidence Act, 1872, which provide as follows:
"91. Evidence of terms of contracts,
grants and other dispositions of
property reduced to form of
documents. When the terms of a
contract, or of a grant, or of any other
dispostion of property, have been reduced
to the form of a document, and in all cases
in which any matter is required by law to
be reduced to the form of a document, no
evidence shall be given in proof of the
terms of such contract, grant or other
disposition of property, or of such matter,
except the document itself, or secondary
evidence of its contents in cases in which
secondary evidence is admissible under the
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
provisions hereinbefore contained.
92. Exclusion of evidence of oral
agreement. When the terms of any such
contract, grant or other disposition of
property, or any matter required by law to
be reduced to the form of a document,
have been proved according to the last
section, no evidence of any oral agreement
or statement shall be admitted, as between
the parties to any such instrument or their
representatives in interest, for the purpose
of contradicting, varying, adding to or
subtracting from, its terms:
Proviso (1). Any fact may be proved
which would invalidate any document, or
which would entitle any person to any
decree or order relating thereto; such as
fraud, intimidation, illegality, want of due
execution, want of capacity in any
contracting party, (want or failure) of
consideration, or mistake in fact or law:
Proviso (2). The existence of any separate
oral agreement as to any matter on which
a document is silent, and which is not
inconsistant with its terms, may be proved.
In considering whether or not this proviso
applies, the Court shall have regard to the
degree of formality of the document:
Proviso (3). The existence of any separate
oral agreement, constituting a condition
precedent to the attaching of any
obligation under any such contract, grant
or disposition of property, may be proved.
Proviso (4). The existence of any distinct
subsequent oral agreement to rescind or
modify any such contract, grant or
disposition of property, may be proved,
except in cases in which such contract,
Suit No.70/14 Page 12 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
grant or disposition of property is by law
required to be in writing, or has been
registered according to the law in force for
the time being as to the registration of
documents:
Provisio (5). Any usage or custom by
which incidents not expressly mentioned in
any contract are usually annexed to
contracts of that description, may be
proved:
Provided that the annexing of such
incident would not be repugnant to, or
inconsistent with, the express terms of the
contract:
Proviso (6). Any fact may be proved
which shows in what manner the
language of a document is related to
existing facts."
24. It is already seen that lease of immovable property from
year to year or any term exceeding one year is required by law to
be reduced in the form of a document and registered. Therefore,
under Section 91 of the Indian Evidence Act, 1872, the defendant
is debarred from taking a stand that he is entitled to hold the
property for two years on the basis of some oral assurance or
agreement.
25. Furthermore, the admitted lease deed dated 29.08.2012 for
12 months, was compulsarily registerable and has been proved by
admission of the parties. The parties cannot be allowed to lead
any evidence of any oral agreement or statement, which
contradicts, varies, add to or subtract from the terms of that lease.
The lease deed dated 29.08.2012, clearly stipulates that if the
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
parties intended to extend the lease after 31.08.2013, a fresh lease
agreement was to be executed with mutual consent and at mutual
terms and conditions. It is a matter of fact that no such agreement
was executed till date. Neither party can now be allowed to take a
stand that the lease deed was orally extended for two years
because the same would be contrary to the terms, conditions and
contents stipulated in the lease agreement.
26. The stand of the defendant is not covered in either of the
exceptions, provisios or illustractions of Secton 92 of the Indain
Evidence Act, 1872.
27. In Karan Madaan vs. Nageshwar Pandey 209 (2014) DLT
241, the Hon'ble High Court of Delhi held that when the terms of
conveyance of immovable property are set out in the admitted
document, in view of bar contained in Section 91 of the Indian
Evidence Act, 1872, it is not open to defendant to take pleadings,
contrary to the terms of the document.
28. Hence, it can be safely said that court cannot act upon the
pleadings and submissions of the defendant that there was some
oral agreement between the parties to extend the lease for further
period of 2 years after its expiry on 31.08.2013.
29. Now coming back to the dispute as to whether the tenancy
has been validly terminated or not. Section 111 of the Transfer of
Property Act, 1882 is reproduced hereinbelow:
"111. Determination of lease. A lease of
immovable property determines
(a) by efllux of time limited thereby;
(b) where such time is limited
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
conditionally on the happening of
some eventby the happening of such
event;
(c) where the interest of the lessor in
the property terminates on, or his
power to dispose of the same
extends only to, the happening of
any eventby the happening of such
event;
(d) in case the interests of the lessee and
the lessor in the whole of the
property become vested at the same
time in one person in the same right;
(e) by express surrender; that is to say,
in case the lessee yields up his
interest under the lessee to the
lessor, by mutual agreement between
them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in
case the lessee breaks an express
condition which provides that, on
breach thereof, the lessor may re
enter or (2) in case the lessee
renounces his character as such by
setting up a title in a third person or
by claiming title in himself; (or (3)
the lessee is adjudicated an insolvent
and the lease provides that the lessor
may reenter on the happening of
such event); and in (any of these
cases) the lessor or his transferee
(gives notice in writing to the lessee
of) his intention to determine the
lease;
(h) on the expiration of a notice to
determine the lease, or to quit, or of
intention to quit, the property
leased, duly given by one party to
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
the other."
30. Under clauseA of the abovementioned section, it is made
categorically clear that a lease of immovable property can be
determined by efflux of time limited under the said lease. In the
case in hand, the admited lease deed dated 29.08.2012 has
limited the period of tenancy uptill 31.08.2013 only. It is,
therefore, rightly submitted by Learned counsel for plaintiffs that
on expiry of such period, the lease of the suit premises has come
to an end by efflux of time.
31. The bare reading of the lease deed/agreement dated
29.08.2012 amply clears the intention of the parties that time was
considered the essence of the lease agreement, otherwise there
would have been no reason to write it so specifically and to
further stipulate that if the parties intend to extend the lease
further, they had to enter into a fresh agreement after 31.08.2013.
32. In Rajiv Saluja vs. Bhartia Industries Limited 2002 (2)
RCR (IA 255/2002 in Suit No.2646 of 2000 D/d 7.5.2002), Hon'ble
High Court of Delhi held as under:
"16. Though in the instant case the service
of notice under Section 106 of the Act was
not at all necessary because the tenancy
had expired by efflux time by virtue of
Section 111A of the T. P. Act but to be on
the safer side the plaintiff served notice
under Section 106. Mere denial of receipt
of such notice cannot come to the rescue of
defendant No.2. Denial is far outweighed
by not only postal receipts proving the
despatch at all the addresses of the
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
defendant but also through a certificate
from the postal authorities as to the receipt
of the notice by the defendants at the suit
premises.
17. I have taken a view in Rama Ghai v. UP
State Handloom Corporation, 2001 IV AD
(Delhi) 471:2001(2) RCR (Rent) 469
(Delhi) that in order to invoke the
provisions of Order 12 Rule 6 CPC the
Court has to scrutinise the pleadings in
their totality and ignore the evasive and
unspecific denials either as to the
relationship or as to the service of notice or
as to the nature of tenancy.
18. If the landlord either under the legal
advice or by way of abundant precaution
sends notice for termination of tenancy
under Section 106 of the T. P. Act after the
expiry of tenancy by way of efllux of time
his intention is not to terminate the
tenancy but to insist and impress upon the
tenant to hand over the possession after
the expiry of agreed period of tenancy."
33. Even for the sake of arguments, it is presumed that the
plaintiffs accepted the rent from the defendant after the expiry of
the term of lease on 31.08.2013, the tenancy of defendant became
month to month, terminable on service of 15 days notice, as
required under Section 106 of the Transfer of Property Act, upon
the defendant.
34. In the present case the plaintiffs have filed the receipt of
sending the notice to defendant through prepaid post as well as
through courier. The assignment tracking report has also been
filed by them which reflects that the article booked was actually
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
received by the addressee on 30.11.2013. This prima facie reflects
that the notice of termination was duly served upon the
defendant. Even if for the sake of arguments, it is presumed that
the notice of termination was not served upon the defendant,
Hon'ble High Court of Delhi in Jeevan Diesels & Electricals Ltd.
vs M/s Jasbir Singh Chadha (HUF) 182 (2011) DLT 402, while
dealing with similar arguments about nonservice of legal notice
of termination of tenancy held as follows :
"The second argument that the legal
notice dated 15.07.2006 was not received
by the appellant, and consequently the
tenancy cannot be said to have been
validly terminated, is also an argument
without substance and there are many
reasons for rejecting this argument. These
reasons are as follows:
(i) The respondent s/ plaintiffs
appeared in the trial Court and exhibited
the notice terminating tenancy dated
15.07.2006 as Ex.PW1/3 and with respect
to which the registered receipt, UPC and
AD card were exhibited as Ex.PW1/4, to
Ex.PW1/6. The notice admittedly was
sent to the correct address and which
aspect was not disputed before the trial
Court. Once the respondents/plaintiffs
led evidence and duly proved the service
of legal notice, the appellant / defendant
was bound to lead rebuttal evidence to
show that the notice was not served
although the same was posted to the
correct address. Admittedly, the
appellant /defendant led no evidence in
the trial Court. In fact, even leading of
evidence in rebuttal by the appellant
Suit No.70/14 Page 18 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
would not have ordinary helped the
appellant as the notice was sent to the
correct address. In my opinion, therefore,
the trial Court was justified in arriving at a
finding that the legal notice dated
15.07.2006 was duly served upon the
appellant resulting in termination of the
tenancy.
(ii) The Supreme Court in the case of
Nopany Investments (P) Ltd. v. Santokh
Singh (HUF), 146 (2008) DLT 217 (SC)=I
(2008) SLT 195=2008 (2) SCC 728 has
held that the tenancy would stand
terminated under general law on filing of
a suit for eviction. Accordingly, in view of
the decision in the case of Nopany (supra)
I hold that even assuming the notice
terminating tenancy was not served upon
the appellant (though it has been served
and as held by me above) the tenancy
would stand terminated on filing of the
subject suit against the appellant/
defendant......."
35. It was further held :
"in suit for possession filed by landlords
against the tenants where the tenancy is a
monthly tenancy and which tenancy can be
terminated by means of a notice under
Section 106 of the Transfer of Property Act.
Once we take the service of plaint in the
suit to the appellant/defendant as a notice
terminating tenancy, the provision of Order
7 Rule 7, CPC can then be applied to take
notice of subsequent facts and hold that
the tenancy will stand terminated after 15
days of receipt of service of summons and
the suit plaint. This rationale ought to
apply because after all the only object of
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M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
giving a notice under Section 106 is to give
15 days to the tenant to make alternative
arrangements. In my opinion, therefore,
the argument that the tenancy has not
been validly terminated, and the suit could
not have been filed, fails for this reason
also. In this regard, I am keeping in view
the amendment brought about to Section
106 of the Transfer of Property Act by Act 3
of 2003 and as per which Amendment no
objection with regard to termination of
tenancy is permitted on the ground that
the legal notice did not validly terminate
the tenancy by a notice ending with the
expiry of the tenancy month, as long as a
period of 15 days was otherwise given to
the tenant to vacate the property. The
intention of Legislature is therefore clear
that technical objections should not be
permitted to defeat substantial justice and
the suit for possession of tenanted premises
once the tenant has a period of 15 days for
vacating the tenanted premises. Court."
36. Hence, it can be safely said that even if, for the sake of the
arguments, it is presumed that the defendant was not served with
the legal notice for termination of tenancy, the service of notice of
plaint, accompanied with the notice dated 29.11.2013, amounts to
a valid service of termination of tenancy in favour of defendant.
Even if, the service of notice of termination of tenancy is taken
with effect from the service of summons of suit, it took place on or
before 03.02.2014. Hence at the most the time of 15 days from
service of notice, could have expired on 18.02.2014 and in view of
the judgment of Hon'ble High Court of Delhi in Jeevan Diesels &
Suit No.70/14 Page 20 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
Electricals Ltd. vs M/s Jasbir Singh Chadha (HUF) (supra) and
Sharvan Aggrawal vs. Kailash Rani, RFA No. 19/2012, decided
on 09.01.2012, this court is obliged to take notice of this aspect
under Order 7 Rule 7 CPC.
37. From the aforesaid discussion, following facts can be safely
inferred:
1. There was a relationship of landlord and tenant between the
parties.
2. The lease of the defendant is determined latest by
18.02.2014.
3. No protection under rent control laws is available to
defendant.
4. The defence taken by defendant is contrary to the terms and
conditions of the written agreement between the parties.
38. In Karan Madaan vs. Nageshwar Pandey (Supra), while
examining the scope of Order XII Rule 6 CPC in paragraphs 66 &
68, Hon'ble High Court of Delhi observed that:
"66. With the defence/case of the defendant
having been held to be not tenable in law, the
question that arises for consideration is whether
the present is a fit case for passing of a decree in
favour of the plaintiffs under Order 12 Rule 6,
CPC and, whether the counter claim of the
defendant is liable to be rejected under Order 7
Rule 11, CPC. In Parivar Seva Sansthan (supra),
a Division Bench of this Court held as follows:
"9. Bare perusal of the above rule
shows, that it confers very wide
powers on the Court, to pronouce
judgment on admission at any stage
Suit No.70/14 Page 21 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
of the proceedings. The admission
may have been made either in
pleadings, or otherwise. The
admission may have been made
orally or in writing. The Court can
act on such admission, either on an
application of any party or on its
own motion without determining the
other questions. This provision is
discretionary, which has to be
exercised on well established
principles. Admission must be clear
and unequivocal; it must be taken as
a whole and it is not permissible to
rely on a part of the admission
ignoring the other part; even a
constructive admission firmly made
can be made the basis. Any plea
raised against the contents of the
documents only for delaying trial
being barred by Section 91 and 92 of
Evidence Act or other statutory
provisions, can be ignored. These
principles are well settled by catena
of decisions. Reference in this regard
be made to the decisions in Dudh
Nath Pandey (dead by L.Rs') v.
Suresh Bhattasali (dead by L. Rs')
MANU/SC/0382/1986: AIR 1986 SC
1509; Atma Ram Properties Pvt. Ltd.
v. Air India, MANU/DE/1151/1996:
65 (1997) DLT 533; Surjit Sachdev v.
Kazakhastan Investment Services Pvt.
Ltd., 1997 2 AD(Del) 518; Abdul
Hamid v. Charanjit Lal & Ors.,
74(1998) DLT 476 and Lakshmikant
Shreekant v. M. N. Dastur & Co.,
MANU/DE/0524/1998: 71 (1998)
DLT 564."
Suit No.70/14 Page 22 of 25
M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl
.......
68. In Express Towers P. Ltd. & Another v. Mohan Singh & Others, 133 (2006) DLT 2602007 (97)DRJ 687 (DB), the Division Bench held that a decree can be passed by the Court under Order 12 Rule 6, CPC when admissions are clear and unambiguous and no other interpretation is possible. The power to pass a decree on admission is discretionary, and not mandatory under Order 12 Rule 6, CPC. The Court observed that it may not be safe and correct to pass a judgment under Order 12 Rule 6, CPC when a case involves disputed questions of fact and law which require adjudication and decision. Even when a party has made an admission, the Court need not act on the same. There can beno quarrel with the aforesaid proposition laid down in para 10 of Parivar Seva Sansthan (supra) and Express Towers P. Ltd. (supra). However, where the relief sought by the plaintiff is squarely made out in view of unstatable/untenable defence, it is equally wellsettled, that the Court shall not unnecessarily drag the action for a pointless trial. In the present case, the defendant is precluded, in law, from pleading, much less proving his defence."
39. In view of aforesaid discussion, all ingredients for a decree of possession in favour of plaintiffs, have been satisfied and there is no need for any further proof of either of the same.
40. In the case in hand, it is rightly submitted by Learned Sh. C. M. Goyal, counsel for plaintiffs that even the user and occupation charges payable after expiry of lease deed were decided by the parties through lease agreement. The relevant clause of the lease agreement is provided as follows:
Suit No.70/14 Page 23 of 25M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl "That it is agreed between the parties that after the termination of tenancy by any mode (either by afflux of time or by notice) the lessee does not vacate the premises then the lessee shall pay to the lessor use and occupation charges @ Rs. 5000/ per day till the time vacant possession is handed over to the Lessor. That it has been specifically agreed that in the eventuality lessee does not handover the vacant physical possession of the premises to the Lessor on the expiry/ termination of the lease the Lessor shall get the same through procedure/ established through law along with use and occupation charges / profits/ damages at the rate of Rs.5000/ per day from the Lessee (for the period of unauthorized occupation after the termination / expiry of lease).
41. Learned Sh. Dhillon has submitted that lease agreement has already expired and therefore, the same cannot be looked upon for deciding the rate of damages claimed by plaintiffs.
42. Such submission of Learned Sh. Dhillon that the lease agreeent cannot be looked upon after the expiry of the term of lease, is not having any force. This particular clause in the lease agreement becomes operational only on the termination of the lease deed or the expiry of the term of lease. In the case in hand, the court has already held that the lease in favour of defendant was terminated latest by 18.02.2014.
43. In view of the aforesaid discussion, the court is in agreement with the submissions of Learned counsel for plaintiffs that there is Suit No.70/14 Page 24 of 25 M/s P. D. Jewellers Pvt. Ltd. & Another vs. Cherry Bahl a clear, categorical, unambiguous admission on the part of the defendant which entitles the plaintiff for a decree under Order XII Rule 6 CPC.
44. No disputed question of fact or law is involved so far as the fulfilment of requirements for a decree of possession and damages/mesne profit w.e.f. 18.02.2014, on termination of tenancy is concerned. Therefore, in the opinion of court, the plaintiffs are entitled for outright decree of possession of suit premises i.e. second floor of property No.M64, Saket, New Delhi17 as shown red in the site plan under Order XII Rule 6 CPC along with a decree of reovery of rent/user charges @ Rs.40,000/ per month w.e.f. January, 2014 to 18.02.2014 and damages @ Rs. 5000/ per day w.e.f. 19.02.2014 till the possession of vacant premises is handed over to plaintiffs.
45. So far as the claim of plaintiffs for damages of remaining period is concerned, the same may be adjudicated upon on the basis of evidence to be led by the parties.
46. Decree sheet be prepared accordingly. File be put up for further proceedings as per short order of even date.
Announced in the open (AJAY PANDEY)
Court on 04.12.2014 ADJ05 (SOUTH DISTRICT)
(Judgment contains 25 pages) SAKET COURTS, NEW DELHI
Suit No.70/14 Page 25 of 25