Delhi High Court
Singer India Ltd. vs Amita Gupta on 29 September, 2000
Equivalent citations: 2000VIIAD(DELHI)1076, 88(2000)DLT186, 2000 A I H C 4805, (2001) 1 RENTLR 166, (2001) 1 RENCJ 444, (2000) 2 RENCR 664, (2000) 88 DLT 186
Author: Arun Kumar
Bench: Arun Kumar, A.K. Sikri
ORDER Arun Kumar, J.
1. The appellant has filed the present appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 23rd December, 1998 passed by Sh. P. S. Teji, Additional District Judge. Tis Hazari, Delhi in Suit No. 11/95. By the said judgment and decree, suit of the plaintiff/respondent herein for recovery of possession of suit premises bearing Flat Nos. 331-B, 331-C and 331-D, third floor, 6, Devika Tower, Nehru Place, New Delhi having a total area of 495 sq. feet has been decreed.
2. This suit came to be filed by the plaintiff/respondent against defendant/appellant in the following factual background:
3. The defendant was a tenant of the plaintiff and in respect of the suit property as mentioned above on monthly rent of Rs. 14304/-. The plaintiff had let out the premises to the M/s. Indian Shaving Machine Company Ltd. now known as Singer India Ltd. on 1st September, 1985. The tenancy of the defendant was monthly commencing from 1st day of every English calendar month and ending with last date of the same month. The plaintiff by means of notice dated 9th December, 1994 terminated the tenancy of the defendant and called upon the defendant to deliver the vacant and peaceful possession by the end of 31st January, 1995 the notice was duly served on the defendant and the defendant sent the reply dated 16th January, 1995 duly received by the plaintiff. The defendant did not vacate the premises on the ground that the tenancy of the defendant stood renewed every three years on the escalations of rent by 15 per cent without having any registered lease deed in his favour. The lease deed was neither stamped nor registered. The defendant sent rent for the month of February 1995 and the same was not accepted by the plaintiff. Consequently the suit was filed by the plaintiff for possession of the suit premises. The defendant filed written statement to the plaint taking preliminary objection to the effect that the tenancy of the defendant is protected under the provision of Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to as "TP Act"). Another objection taken was that suit was liable to be stayed as the defendant had already instituted a suit being suit No. 321/95 in which the matter in issue was directly and substantially the same. The suit was instituted prior to the present suit. On merit the defendant submitted, that the defendant company was a registered company under the Companies Act and in order to permanently shift its registered office at Delhi, the present accommodation was taken for the period of three years and after the expiry of every three years on enhancing the existing rent by 15 per cent it got the lease extended for further three years. The defendant was therefore entitled to remain in possession and continued on the same terms and conditions mentioned in the original lease deed executed in the year 1985.
4. Plaintiff filed replication to the written statement controverting the averments made in the written statement. After the pleadings were complete, issues were framed. The matter went on trial and issuewise findings returned by the trial Court are as under:
FINDINGS:
1. Whether the suit of the plaintiff is within limitation.
Suit within limitation.
2. Whether the suit is properly valued for the purposes of court fee and jurisdiction?
Suit properly valued for the purposes of court fee and jurisdiction.
3. Whether the plaintiff is entitled for the possession as prayed for?
Plaintiff held entitled to possession.
4. Whether the tenancy of the defendant was legally terminated?
Tenancy legally terminated.
5. Whether the suit is barred by and the defendant is entitled to protection U/S 53A of the Transfer of Property Act?
Protection of Section 53A of the TP Act not available to the defendant.
6. Whether the plaintiff is entitled for the relief claimed for?
Plaintiff entitled to relief and suit was not liable to be stayed under Section 10 of CPC.
7. Relief.
Suit decreed.
5. In the present appeal filed by the appellant, the appellant has confined his arguments based on the provisions of Section 53A of the TP Act.
The plea of the appellant is that the possession of the suit property was taken on 1st September, 1985. Lease Agreement dated 1st September, 1985 was entered into between the parties which was for a period of three years. As per the lease agreement after expiry of every three years on enhancing the rent by 15 per cent of the existing rent, appellant had a right to renew the lease for another three years. After the expiry of initial period of three years, the appellant enhanced the rent by 15 per cent for another three years and paid the rent to the respondent in this manner w.e.f. 1st September, 1988. This period expired on 31st August, 1991. In accordance with contract between the parties, the appellant requested the respondent to renew the lease for another three years commencing on 1st September, 1991 vide its letter dated 8th August, 1991 by enhancing the rent by 15 per cent of the last paid rent. It started paying the revised rent w.e.f. 1st September, 1991 and the respondent herein started accepting the rent. In this way, according to the appellant, the period of tenancy stood extended upto 31st August, 1994. Thereafter appellant vide letter dated 17th August, 1994 requested the respondent to renew the lease for another three years commencing on 1st September, 1994 by enhancing the rent by 15 per cent on the last paid rent. From 1st September, 1994 the appellant started paying the enhanced rent which the respondent landlord accepted. Thus by virtue of Section 53A of the TP Act, due to this part performance of contract, the term of the tenancy got extended by another three years i.e. upto 31st August, 1997. Therefore, respondent landlord had no right to terminate the tenancy by giving notice under Section 106 of the TP Act and notice dated 9th December, 1994 was invalid. It was submitted that even if the lease agreement was unregistered, the appellant would get benefit of Section 53A of the TP Act inasmuch as aforesaid term of the agreement offering enhanced rent was accepted by the respondent. Thus the argument is that appellant is a tenant in perpetuity and for this purpose reliance is placed on a clause in the lease deed stipulating renewal of lease after three years by enhancing the rent by 15 per cent of the last rent. Admittedly the lease deed is an unregistered document. The learned counsel for appellant submits that proviso to Section 49 Registration Act permits use of unregistered documents for collateral purpose. Therefore, term regarding renewal of lease can be taken into consideration. Secondly it is submitted that under Sec-
tion 53A of TP Act, the agreement can be used as a shield and, therefore, appellant can press into service the term regarding renewal of lease.
6. This submission appears to be attractive but an indepth scrutiny thereof would shatter this myth and expose the hollowness thereof. There are two other statutory provisions which stare at the face of the appellant's argument. One is contained in Section 107 of the TP Act as per which every lease of immovable property from year to year, or for a term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. According to the appellant term of three years lease in perpetuity is contained in the lease deed and will enure for his benefit every three years. But any lease for a year or more would require compulsory registration as per the provisions of Section 107 of the TP Act. Therefore, it is to be determined as to whether the appellant can get the benefit of Section 53A of the TP Act and contend that due to the so-called part performance of paying enhanced rent after the expiry of original period of lease, the tenancy got extended by another three years, even when there was no instrument executed between the parties creating lease for another three years, what to talk of a registered instrument.
7. If the contention of the appellant is accepted, the mandate contained in Section 107 of the TP Act is clearly violated. The effect would be that even if, as per Section 107 of the TP Act, the lease of period exceeding one year (three years in this case) can be made only by a registered instrument, Section 53A of the TP Act would create a lease of three years period and give benefit/protection to the appellant. Can Section 53A of the TP Act be construed in a manner which would negate the provisions of Section 107 of the TP Act? Section 107 of the TP Act, states the manner in which lease of immovable property from year to year or for term exceeding one year etc. is to be created. When legislature has intended a particular act to be done in a particular manner it has to be done in that manner or not at all. Therefore, no such interpretation to Section 53A of the TP Act can be given which nullifies the condition prescribed by Section 107 of the TP Act. Section 53A and Section 107 are to be read harmoniously so that both the provisions are given their proper effect. For this purpose, one will have to read down the provisions of Section 53A to exclude such types of situations (like the present one) which would otherwise have the effect of nullifying the provisions of Section 107 of the TP Act. Reading in this manner, effect of offering enhanced rent after the initial expiry of the lease period, would only be to legitimatize the possession. Otherwise, after the expiry of initial period of lease, appellant would have become unauthorised occupant of the demised premises. From that, however, it would not follow that, appellant acquires right to stay in the leased premises for another period of three years. This three years period can be available only if the lease is evidenced by written instrument which is duly stamped and registered and not otherwise. Therefore, in such a case tenancy would become month to month tenancy so long as the lessee enhances rent and lessor accepts the same. However, lesson shall have right to terminate such a tenancy in accordance with the provisions of Section 106 of the TP Act treating it as lease of immovable property from month to month.
8. There is yet another reason to take this view. Here we mention another statutory provision which comes in the way of the appellant namely Section 49 of the Registration Act. As per the provisions of Section 49 of the Registration Act, a document which is compulsorily registrable and is not registered cannot be read into in evidence. Original lease deed executed between the parties is admittedly unregistered. The appellant is relying upon the clause of this very lease deed, which relates to renewal of the lease agreement by offering enhanced rent at the rate of 15 per cent over the original rent. When the lease deed is unregistered the aforesaid term in the lease deed is not admissible in evidence. The appellant cannot rely upon the same and contend that merely by offering enhanced rent after the expiry of original period, lease got extended by a period of three years. Accepting the contention of the appellant would amount to ignoring the provisions of Section 49 of the Registration Act. In fact by claiming renewal for another period of three years, appellant is trying to invoke the aforesaid term of unregistered lease. This is not permissible. Invoking such a term of lease cannot be said to be looking at a lease for collateral purpose. Such a case cannot be brought under the proviso to Section 49.
9. An objection was raised on behalf of respondent that Section 53A is not applicable to leases. However, learned counsel for appellant relied on various judgments to the effect that Section 53A will be available in cases of leases. For purposes of the present appeal we assume that Section 53A applies in cases of leases. However, it has to be seen as to what extent Section 53A will enure for the benefit of the lessee with an unregistered lease. No authority says that the benefit of Section 53A will flow to the extent of enforcing terms of an unregistered lease. It was held by the Supreme Court in Delhi Motor Company & Ors. Vs. U.A. Basrurkar (dead) by his legal representatives & Ors. that Section 53A of the TP Act is only available as a defense to a lessee. It does not confer rights on the lessee sought to be derived from an unregistered agreement.
10. No doubt the possession is already with the lessee i.e. appellant herein and he wants protection thereof. The protection would be available to him only to the extent that he can justify his possession. i.e. he is not a trespasser. Section 53A will not enable him to press into service terms of a document which is unregistered though required by law to be registered. Allowing the appellant to enforce the terms of an unregistered lease would be illegal. Section 53A when used as a shield will at best enable the appellant to show that his possession is that of a tenant and not that of an unauthorised occupant or trespasser. It cannot take him any further. For going further, i.e., to show that he is a tenant in perpetuity, the tenant has to invoke a term of the lease deed which on account of being part of an unregistered document cannot be looked into. Section 53A can at best make him a tenant from month to month and nothing more. This can be the only harmonious construction of the provisions of Sections 53A and 107 of the TP Act. A lease from month to month will survive so long as notice under Section 106 of the TP Act terminating the lease is not served. Extending protection for another period of three years means creation of three years lease which under the law can be only through a registered lease deed. You cannot do that indirectly what you cannot do directly. The appellant cannot be permitted to invoke terms of an unregistered lease by invoking Section 53A of the TP Act.
11. We find a detailed discussion on this aspect in the judgment of the trial Court. Various judgments cited by the appellant before the trial Court were discussed and the trial Court came to the conclusion that none of these judgment help the appellant to establish that its possession was protected for three years by virtue of Section 53A of the TP Act. The trial Court relied upon the judgment of this Court in the matter of Shukla Malhotra Vs. Vyasa Bank reported as 1988 Rajdhani Law Reporter 343 in support of his conclusions. In that case it was held:
"Para: 6 The exercise of option by the defendant for renewal in 1985 and 1990 or later did not ipso facto extend the term of lease beyond one year. At best it only entitled the lessee to obtain a fresh lease, which again required registration. No document of regular deed contemplated in clause 25 of the agreement or a fresh lease deed for the stated extensions was executed. Similarly no registered instrument has been placed on record to support defendants plea of further extension w.e.f. 1.2.95. The plaintiffs letter dated 13.4.91 agreeing to the said extensions not being a registered document cannot create a tenancy for five years. The requirements of Section 107 of the Act having not been complied with, the stated renewals were invalid and of no consequence and the tenancy continued to be a monthly tenancy right from inception on 1.2.80 eterminable u/s 106 of the Act by 15 days notice expiring by the end of a month of tenancy.
Para 16: Now reverting back to the main question, viz. assuming Section 53A of the Act were applicable to a case where a person entered into possession of the property pursuant to a lease agreement which was not registered, whether the presumption U/s 106 of the Act would be attracted I have no hesitation in holding it so. Though possession or the occupation of the property by that person may be lawful and permissive, but as regards duration of the tenancy, it will be governed by the provision of Section 106 of the Act and as in the present case, the tenancy would be deemed to be from month to month terminable by a notice of 15 days by either side.
12. Reliance was also placed on another judgment of this Court in the case of Goodyear India Ltd. Vs. B.B. Jain, reported as 1998 VII AD (Delhi) 95 particularly on the following part of the said judgment:
"The first question for consideration is that does this letter give rise to a lease for a period of 3 years, Section 107 of the Transfer of Property Act lays down that a lease for a period of one year or more has to be through a registered instrument. In view of this specific provision of Act. This letter or any oral evidence in support of this letter spelling out any understanding between the parties can not give rise to a lease. The period involved is 3 years and the lease has to be through a registered document. The Ld.counsel for the tenant tried to place reliance on Section 53A of the Transfer of Property Act can not be pressed into service in the facts of the present case in the absence of any writing signed by the landlords or on their behalf. The letter relied upon by the tenant is written by the tenant itself. It is addressed to one of the landlords therefore Section 53A is not attracted. Reference is invited to Biswabani Pvt. Ltd. Vs. Santosh Kumar ."
13. Supporting the aforesaid conclusion of the learned trial court, counsel for respondent before us put reliance on the following judgments as well:
1. Punjab National Bank Vs. Ganga Narain Kapur .
2. Burmah Shell Oil Distributing now known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor & Ors. .
3. Uptron Powertronics Ltd. Vs. G.L. Rawal .
14. There is yet another reason which prompts us not to interfere with the judgment and decree in the instant case. As per the appellant itself, on giving enhanced rent w.e.f. 1st September, 1994 the period of tenancy stood extended by another three years i.e. till 30th August, 1997. Admittedly clause in the unregistered deed relating to enhanced rent after 30th August, 1997 has not been given effect to and no part performance thereafter can be pleaded. Thus the period of tenancy which allegedly stood extended upto 30th August, 1997 even as per the stand taken by the appellant has also expired. In no case appellant could have continued after 30th August, 1997 in the suit premises. Therefore, this is an additional ground which disentitles the appellant any relief in the present appeal.
15. The result of the aforesaid discussion is that the conclusions and findings of the learned trial Court are upheld. The trial Court rightly passed the decree of possession. Present appeal is without any merit and therefore, fails. Hence, dismissed with costs quantified at Rs. 10,000/-.