Delhi District Court
Harish Nagpal vs M/S. Berry Glass Company on 14 July, 2015
E No. 75/14 1 14.07.2015
IN THE COURT OF MS. KIRAN GUPTA, SENIOR CIVIL
JUDGECUMRENT CONTROLLER, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
E75/14
Unique ID No. 02403C0230162014
1.Harish Nagpal
S/o. Late Sh. M R Nagpal
R/o. B3/463, Paschim Vihar
New Delhi - 110063
2.Rajini Nagpal
W/o. Sh. Harish Nagpal
R/o. B3/463, Paschim Vihar
New Delhi - 110063 .....Petitioners
Versus
1. M/s. Berry Glass Company
Through its proprietor
Sh. J P Berry
57/1 (2930 , block No. 80)
Rear Court Yard, Punchkuian Road
New Delhi - 110 001
Also at
M/s. Berry Glass Company
Through its proprietor
34, Bhai Veer Singh Marg
D.M.R.C Shopping Complex
New Delhi 110 001 .....Respondent
Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 1 of 39
E No. 75/14 2 14.07.2015
Date of institution : 05.12.2014
Date of conclusion of arguments : 05.06.2015
Date of order : 14.07.2015
ORDER
1 Vide this order, I shall decide the application U/s 25(B) of the DRC Act (hereinafter referred as "the Act"), filed by respondent /tenant through its proprietor against petitioners praying therein that he be allowed to contest the eviction petition u/s 14(1)(e) r/w sec. 25B (4) (5) of the Act in respect of the tenanted premises, i.e. portion measuring 25'. 6" X 24'.6" at ground floor in property bearing no. 57/1 (2930, Block No. 80), Rear Court Yard, Punchkuian Road, New Delhi as shown red in the site plan (hereinafter referred as tenanted premises). The entire property bearing no. 57/1 (2930, Block No. 80), Punchkuian Road, New Delhi hereinafter shall be referred as the ' suit property'.
2 Brief facts of the case as stated by petitioners are that they purchased the suit property jointly with undivided interest and share vide two independent sale deeds dt.
Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 2 of 39E No. 75/14 3 14.07.2015 06.12.2005. Respondent was already existing tenant at the rear court yard of the property which measures approximately 25'.6"X 24'.6" and the factum of tenancy is duly incorporated in the sale deed. The tenancy duly stands attorned in favour of respondent and he is paying rent @ Rs. 66/ per month 2.1 Petitioner no. 1 who is working as Vice President Production and Quality with HT Media Ltd. is on verge of retirement and his wife is a house wife. Their both sons are working out of Delhi . Since both the petitioners are senior citizens, it has become difficult for them to stay alone, therefore, they had decided and intend their son to start his own business and use the tenanted premises. The petitioners want to start business for their son related to the furniture industry as the property is located in the heart of furniture market. They require tenanted premises for starting business related to furniture for themselves and their family.
2.2 Half portion at ground floor of the suit property is rented out to an NGO known as Wealth to Waste and the Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 3 of 39 E No. 75/14 4 14.07.2015 remaining half portion is with the respondent. The remaining properties are not available as they are already rented out to different tenants and further not suitable for petitioners for meeting their requirement.
2.3 The entire first and second floor of suit property is also rented out and is not available for use at present with the petitioners. Moreover the proposed business requires the place to work at ground floor only. Petitioners jointly own other properties in Delhi which are detailed in para X of the petition. It is stated that these properties are not available for self use as they are rented out to third parties and moreover are not suitable for the proposed business of petitioners and their family members. Property bearing no. B 3/463, Paschim Vihar is a residential property where petitioners are residing with their children.
2.4 It is stated that tenanted premises is required bonafide for personal use of petitioners family for the purpose of commencing the furniture related business as there is no other reasonably suitable accommodation for the Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 4 of 39 E No. 75/14 5 14.07.2015 said purpose except the tenanted premises, hence the present petition.
3 After the notice of petition, which was received by respondents on 11.12.2014 respondent has filed the application for leave to contest the present eviction petition on 02.01.2015, alongwith the affidavit of its proprietor.
3.1 In the application for leave to defend filed by respondent with the accompanying affidavit, it is stated that petitioners have concealed material and relevant facts and the details of the property owned and possessed by them. In para no. 6 of the application, the respondent has detailed following accommodations available with the petitioners:
i. Commercial property bearing no. B1/9, Janakpuri, New Delhi;
ii. Property No. 61, Poorvi Marg, Vasant Vihar, New Delhi;
iii. Property No. B3/282, Paschim Vihar, New Delhi; iv. Property No A 247, Defence colony, New Delhi.Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 5 of 39
E No. 75/14 6 14.07.2015
v. Commercial property no. 57/1 (2930 Block No.
80) front portion, Ground Floor, Panchkuian Road, New Delhi 110001 vi. Commercial property no. 57/1 (2930 Block No.
80) First Floor, Panchkuian Road, New Delhi 110001 vii. Commercial property no. 57/1 (2930 Block No.
80) Second Floor, Panchkuian Road, New Delhi 110001 viii. Commercial property No. 2C/3, New Rohtak Road, Karol Bagh, New Delhi ix. Commercial property No. 156A, Lenin Sarain, 3rd Floor, Kolkatta, West Bengal.
3.2 It is stated that these alternate, reasonable and suitable accommodations are available with the petitioners which have been deliberatly concealed by them, hence they are not entitled for any relief. It is alleged that petitioners have falsely averred that ground floor of the suit property is rented out to an NGO Wealth to Waste. Infact, petitioners and their two sons namely Sh. Vipul Nagpal & Sh. Vishesh Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 6 of 39 E No. 75/14 7 14.07.2015 Nagpal are running a Private Limited Company under the name and style of RNH Trading Pvt. Ltd. from the suit property. The said company is incorporated on 31.07.2008 and registered with the Registrar of Companies, Delhi having authorized share capital of Rs. 3,000,000/ and its paid up capital of Rs. 2,840,000/. There are four Directors namely Harish Nagpal, Rajini Nagpal, Vipul Nagpal and Vishesh Nagpal and the status of all the Directors is Active.
3.3 Petitioner no. 1 is also Director in two other companies namely Star Devsoft Pvt. Ltd and Saraswati Plaza Pvt. Ltd. having its registered offices at New Delhi and Kolkata respectively and he is running the businesses from two other commercial premises/offices. Petitioners are also the owner in possession of commercial property no. 57/1 (2930 Block No. 80) front portion , ground floor, Punchkuian Road i.e. suit property and are running Indian Newsprint Manufactures Association Secret from the said premises. Even the land line number is in the name of petitioners who are running the family business of paper and allied products from the said premises.
Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 7 of 39E No. 75/14 8 14.07.2015 3.4 The petitioners are in possession of reasonable
accommodation from where they can do business i.e. front portion at ground floor of the suit property. Also the first floor of suit property is lying locked under the possession of petitioners. The first floor is not rented out and is in possession of petitioners and they have not willfully disclosed the status of said property in the petition. Similarly, the commercial property at second floor is also lying locked under the possession of petitioners. The aforesaid two properties are lying locked and under nonuse and are available to the petitioners and reasonably suitable , from where they can start their projected business.
3.5 The petitioners have deliberately concealed the alternate accommodation in their possession ie. the entire commercial property no. 57/1, Panchkuain at ground floor (front portion), first floor and also second floor. Petitioners have another commercial property bearing no. B1/9 Janakpuri, New Delhi, therefore the appropriateness of additional accommodation already available with petitioners Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 8 of 39 E No. 75/14 9 14.07.2015 raises triable issue.
3.6 There is no boanfide requirement of petitioners as they have failed to prove their personal requirement. Petitioner no. 1 has failed to prove his present need. He has failed to establish the need for setting up a business for his sons as falsely alleged in the petition and therefore it raises a triable issue. Petitioner no. 1 himself is not sure as to why the tenanted premises is required, either for his need or the need of his sons. The need of petitioners is not bonafide but merely a fanciful desire. It is prayed that since respondent has raised triable issue regarding the bonafide requirement of petitioners and alternate suitable accommodation available to them, his application seeking leave to defend be allowed accordingly.
4 In the reply filed on behalf of petitioners, they while denying all the averments and allegations in the application seeking leave to defend accompanied with the counter affidavit, have reiterated all the facts as stated in the petition. It denied that petitioners own or possess the Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 9 of 39 E No. 75/14 10 14.07.2015 property no. 2C/3, New Rohtak Road, Karol Bagh, New Delhi. It is further stated that the details of all the properties including the suit property have been detailed in the petition and petitioners do not own any other property . The ground floor, front portion of the suit property stands rented out to Wealth and Waste Society. The entire first and second floor of suit property is under tenancy of M/s. Saraswati Plaza Pvt. Ltd and the last renewed rent agreement has been placed on record separately. It is stated that the sons of petitioners have no concern with M/.s. RNH Trading Co. Pvt. Ltd as they have already resigned from the Directorship on 19.06.2014 and 31.10.2013 respectively. Both the sons are settled out of city and are working there. The employment letter and pay slip in this regard have been placed on record.
4.1 It is denied that NGO or any other business of petitioners is having any relevance to the present petition which has been filed for the bonafide requirement i.e for the use of one of the son of petitioners for carrying out his independent business. The first floor of the suit property is neither vacant nor lying locked but is under tenancy of M/s.
Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 10 of 39E No. 75/14 11 14.07.2015 Saraswati Plaza Pvt. Ltd. Also the said first floor cannot be used for furniture outlet and is otherwise also not suitable to the petitioners for meeting their requirement.
4.2 It is stated that petitioners jointly own the commercial property no. B 1/.9 Janakpuri, the ground floor and second floor of which is rented out to Indus Bank Ltd. The first floor stands rented out in favour of M./s GD Foods Pvt. Ltd and third floor is under tenancy of M/s. Agricultural Finance Corporation, separately and independently. It is denied that there exists any alternate accommodation lying vacant and unused to meet their bonafide requirement. It is denied that the requirement of petitioners is for additional accommodation . It is stated that petitioners have not concealed any material facts from this court and the exact position of possession and occupation of each and every part of suit property as well as that of B 1/9, Janakpuri, has been duly stated in the petition and nothing has been concealed therein. It is reiterated that the petitioners want and intend their son to work independent in life and they require the tenanted premises for the purpose of starting independent Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 11 of 39 E No. 75/14 12 14.07.2015 business related to furniture for themselves and their family , more specifically their son.
4.3 It is further stated that it is the respondent who has already obtained an alternate accommodation from authority at 34, Bhai Veer Singh Marg, DMRC Shopping complex New Delhi, where he is continuing his permissible activities of manufacturing and retailing the furniture items. The tenanted premises is merely being used by him for storage purpose only ie furniture goods. It is prayed that since no triable issue is raised , application of respondent seeking leave to defend be dismissed accordingly.
5 In the rejoinder filed by respondent, he has reiterated the facts as stated in the application and counter affidavit and denied the facts as stated in the reply by petitioners.
6 It is argued by the counsel for petitioners that there is no dispute of relationship of landlord and tenant between the parties. The tenanted premises is required by the Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 12 of 39 E No. 75/14 13 14.07.2015 petitioners for starting the business for their son as both their sons are employed out of Delhi and they wish that their sons should live with them in this old age. Further, even their son has shown his willingness to start his own independent business of furniture, for this purpose they require the tenanted premises. There is no other alternate suitable accommodation available with the petitioners to meet their bonafide requirement as the other commercial properties available with them are under tenancy of various other tenants and further tenanted premises is the most suitable accommodation to meet their requirement of starting the furniture business as it is located at the ground floor and also in the famous furniture market. The counsel for petitioners in support of her contentions has relied upon following judgments:
a. Jaswinder Singh Vs. Surinder Kaur 204 (2013) DLT 716 b.Raj Kumar Khanna Vs. Parduman Singh 204 (2013) DLT 312 c.Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383 d. Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1996) 6 SCC 222 Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 13 of 39 E No. 75/14 14 14.07.2015 e. M L Prabhakar Vs. Rajiv Singal (2001) 2 SCC 355 f. Silvertoe Mfg. Co. Vs. Usha Sai 1995 RJR 24.
g. Sarup Chand Vs. Siri Chand CR No. 3015 of 1999, P & H h. Sudesh Kumari Soni & Anr. Vs. Prabha Khanna & Anr. 153 (2008) DLT 652.
i.Vinod Kumar Verma Vs. Manmohan Verma & Anr. 148 (2008) DLT 580 j. Viran Wali Vs. Kuldeep Rai Kochhar 174 (2010) DLT 328 k.Sanjay Mehra & Ors. Vs. Sunil Malhotra & Anr. 170 (2010) DLT 797.
l.Kharati Ram Khanna & Sons Vs. Krishna Luthra 172 (2010) DLT Times 551 m.Labhu Lal Vs. Sandhya Gupta 173 (2010) DLT 318 n.Adarsh Electricals & Ors Vs. Dinesh Dayal 173 (2010) DLT 518 o. Bhupinder Singh Bawa Vs. Asha Devi 214 (2014) DLT 745.
7 Per contra, it is argued by Ld. counsel for respondents that there is no requirement of petitioners qua the tenanted premises. The alleged requirement is fanciful and not bonafide as petitioner no. 1 is already having sufficient alternate suitable accommodation to meet his requirement, if any. Further petitioner no. 1 is already working and even his sons are working and have no requirement as such qua the tenanted premises. During Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 14 of 39 E No. 75/14 15 14.07.2015 arguments Ld. counsel for respondent has placed reliance upon the various documents and it is argued that petitioners are Directors of RNH Trading Pvt. Ltd. along with their sons. It is argued that the documents described as form 32 of RoC pertaining to the sons of petitioners are incorrect and false documents. The sons of petitioners continue to be Directors of RNH Trading Pvt. Ltd and this fact has been deliberately concealed by the petitioners. The entire front portion of ground floor of suit property is in possession of petitioners.
7.1 It is further argued that the extent of tenanted premises as per the rent agreement dt. 31.10.2013 is to the effect of office space only and the said rent agreement is only for a period of 18 months executed between petitioner no. 2 and M/s. Saraswati Plaza Pvt. Ltd through its Director Sh. Ajay Jain and petitioner no. 1. Petitioner no. 1 himself is the tenant as well as Director of said company and petitioner no. 2 is the landlady. The said rent agreement is expiring in March, 2015 and that space could be available as an alternate additional accommodation to petitioners. It is further argued that petitioner no. 1 is the Chairman of NGO Waste to Wealth.
Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 15 of 39E No. 75/14 16 14.07.2015 Petitioner no. 1 is also Director in two companies namely Star Devsoft Pvt. Ltd. And Saraswati Plaza Pvt. Ltd. having its registered offices at New Delhi and Kolkatta. It is argued that ample alternate suitable accommodation is available with the petitioners to meet their requirement, if any. Further the requirement of petitioners as alleged is not bonafide but malafide and fanciful. He in support of his arguments has placed on record the following judgments:
a. Chaman Lal Vs. Batuk Parasad Jaitly, 2014 (1) RCR (Rent) 18 b. Prahlad Rai Mittal Vs. Rita Devi, 196 (2013) DLT 703 c. Liaq Ahmed & Ors. Vs. HabeebuUrRehman (2000) 5 SCC 708 d. Santosh Devi Soni Vs. Chand Kiran 2001 (1) SCC 255 e. Charan Dass Duggal Vs. Brahma Nand (1983) 1 SCC 301 f. Feroze Enterprises Vs. Mohd. Iqbal 2013 Law Suit ( Del) 3405 g. Khem Chand Vs. Arjun Jain 2002 (2013) DLT 613 h. S K Seth & Sons Vs. Vijay Bhalla 2012 (191) DLT 722 i. Sukhdev Raj Sharma Vs. Kuljeet Singh Jass 195 (2012) DLT 56.
j. Kishore Vs. Prabodh Kumar 2012 (132) DRJ 562 k. Jagdish Lal Khorana Vs. Hemant Arora 2013 (1) AD (Delhi ) 404 Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 16 of 39 E No. 75/14 17 14.07.2015 l. Vijay Nayyar Vs. Om Prakash Malik 2011 (126) DRJ 323 m. Aggarwal Papers Vs. Mukesh Kumar 194 (2012) DLT 605 n. Jawahar Lal Vs. Ravinder Kumar Khanna 195 (2012) DLT 239 o. Rakesh Kumar Vs. Pawan Khanna 195 (2012) DLT 341 p. Kiran Sachdeva Vs. Pushpa Devi 2013 (133) DRJ 725 q. Gopal Dass & Sons Vs. Dineshwar Nath Kedar 2013 (133) DRJ 468 r. Harcharan Singh Vs. Neerja Sahu 190 (2012) DLT 625 s. Inderjeet Singh Vs. Harish Chander Bhutani 192 (2012) DLT 124 t. Arjun Uppal Vs. Seth & Sons. Pvt. Ltd 193 (2012) DLT 115 u. Hindustan Zinc Ltd. Vs. Col. Satyapal Wadhwa & Anr. 194 (2014) DLT 244 v. Vinod Ahuja Vs. Anil Bajaj 194 (2012) DLT 203 w. Inderjeet Kaur Vs. Nirpal Singh (2001) 1 SCC 706 x. Nariender Kumar Manchanda Vs. Hemant Kumar Talwar 197 (2013) DLT 171.
8 Heard counsels for the parties and perused the complete record file.
9 Under section 14 (1) (e) of the Delhi Rent Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 17 of 39 E No. 75/14 18 14.07.2015
Control Act, a landlord/land lady will be entitled to an order of eviction, if, he/she is able to show that
(a) the premises in question were let out for residential purpose or commercial purposes [as per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC),]
(b) he/she is the landlord/land lady and owner of the suit premises,
(c) the premises is required bona fide by him/her for occupation as residence for himself/herself or any member of his family dependent upon him/her for residence and for any person for whom the premises are held, and
(d) the landlord/land lady or such person has no other suitable residential accommodation.
10 In the present case there is no dispute regarding the relationship of landlord and tenant between the parties. There is also no dispute regarding the status of petitioners as owners of the suit property, of which the tenanted premises forms part. Thus no triable issue is raised on the aspect of Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 18 of 39 E No. 75/14 19 14.07.2015 ownership or relationship between the parties by the respondent.
11 Now coming to the other aspect as to whether the premises is bonafide required by the petitioners and as to whether they have any other suitable alternate accommodation. These are twin requirements which are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) of the Act i.e the bonafide requirement coupled with the reasonably suitable accommodation, are to be satisfied together and collectively.
12 Now coming to the plea of boanfide requirement, it is stated by petitioners that they want to start the business for their son related to furniture industry in the tenanted premises which is located in the heart of furniture market. It is further stated that both the petitioners are senior citizens, hence it has become difficult for them to stay alone, therefore, they intend that their son should start his own business in the tenanted premises and even their son who at present is working out of Delhi wants to start his own Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 19 of 39 E No. 75/14 20 14.07.2015 independent business of furniture.
12.1 The bonafide requirement of petitioners is challenged by respondent on the ground that petitioner no. 1 is well settled in his job and his both sons are already working out of Delhi and further the petitioners have sufficient alternate reasonable accommodation to meet their requirement, if any.
12.2 It is argued by the counsel for respondent that both the sons of petitioners are already Directors with them in RNH Trading Pvt. Ltd. , which is being run by them in the front portion of the tenanted premises. It is further contented that none of the sons of petitioners have any intention to settle in Delhi .
12.3 The main contention of counsel for respondent is that the sons of petitioners are already the Directors of the company which is in existence in the suit property, hence there is no bonafide requirement and further the front portion of suit property, which is in possession of RNH Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 20 of 39 E No. 75/14 21 14.07.2015 Trading Pvt. Ltd can be used by them for meeting their requirement.
12.4 It is no more resintegra that it is perfectly open to the landlord to choose a more suitable premises for carrying on the business by himself or his dependent and the landlord cannot be dictated by the tenant as to from which shop his son should start the business ( Reliance placed on the judgment of Anil Bajaj & Anr. Vs. Vinod Ahuja 2014(6) SCALE 572).
12.5 Also in Sh. Bhupinder Singh Bawa Vs. Smt. Asha Devi , decided by Hon'ble Mr. Justice Valmiki J. Mehta in RC Rev. 245/2014, decided on 28.07.2014, it has been held as follows:
"5. So far as the aspect that the son is the Director in the family company M/s. Jayshree Granite Pvt. Ltd is concerned, this cannot mean that as a young enterprenure, the son cannot start his own business of sanitary and hardware. It is not the law that if a family member of a landlord / landlady requires the premises for starting of the business of his / her young son who is an MBA , there can be lacking bonafides for the eviction petition and that Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 21 of 39 E No. 75/14 22 14.07.2015 the son must continue as a director in the family company and not branch out as a young enterprenure. There is no law that a family member of the landlord can be prevented from opening a new business. Therefore, merely because the son Sh. Vaibhav Maheshwari is presently a Director in the company M/s. Jayshree Granite Pvt. Ltd., the same cannot mean that there is no need of bonafide necessity of the tenanted premises for starting of a fresh business of sanitary and hardware by the son Sh. Vaibhav Maheshwari. The argument that the Son Sh. Vaibhav Maheshwari is already a Director in a family company and therefore, there is no bonafide need of tenanted premises is a misconceived argument and the same is therefore, rejected."
12.6 The argument of Ld. counsel for respondent in the present matter is also on the same lines that since the sons of petitioners are already Director in the family business, they have no bonafide requirement as such and further the said premises where the family company is being run , can be used for meeting the requirement, if any. Merely because the sons of petitioners are also the Directors in the family company / business, the same does not mean that there is no need of bonafide necessity of the tenanted premises for starting of business of furniture by the son of petitioners. The Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 22 of 39 E No. 75/14 23 14.07.2015 composition of the family of petitioners that they have two sons who are settled outside Delhi is not disputed by the respondent. Even the age of the petitioners is not disputed by the respondent.
12.7 In Jaswinder Singh Vs. Surinder Kaur, 204 (2013) DLT 716 , in para no. 14, it has been held as follows:
"14. . As per law, bonafide requirement has to be seen and considered from the perspective of the landlord and tenant cannot be allowed to dictate the terms in which portion the landlord should reside."
12.8 In Sarla Ahuja Vs. United India Insurance Company Ltd. AIR 1999 SC 100, it was held that ".....The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 23 of 39 E No. 75/14 24 14.07.2015 conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
12.9 In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta , 1999 (6) SCC 222 it has been observed that " ............ The judge of facts should place himself in the arm chair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural , real , sincere, honest . If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or , in a given case, positive material brought on record by the tenant enabling the court drawing an inference that the reality was to the contrary and the landlord is merely attempting at finding out a pretence or pretext for getting rid of the tenant , would be enough to Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 24 of 39 E No. 75/14 25 14.07.2015 persuade the court certainly to deny its judicial assistance to the landlord.
12.10 In Sudesh Kumar Soni & Anr. Vs. Prabha Khanna &Anr. 153 (2008), DLT 652 it was held that :
"it is not for the tenant to dictate the terms to the landlord as to how else he can adjust himself without getting possession of tenanted premisessuitability has to be seen for convenience of landlord and his family members and on the basis of circumstances including their profession, vocation , style of living , habit and background".
12.11 In Sait Nagjee Purushotham & Co. Ltd. Vs. Vimlabai Prabhulal & Ors, (2005) 8 SCC 252 , it has been held in para 4 as follows:
" . It is always the prerogative of the landlord that if, he requires the premises in question for his bonafide use for expansion of business, this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not a genuine need. It is not the tenant who can dictate the terms to the landlord and advice him what he Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 25 of 39 E No. 75/14 26 14.07.2015 should do or what he should not. It is always the privilege of the landlord to choose the nature of business and the place of business. ".
13 From the above judgments, it is evident that landlord is the best judge of his premises. It is well settled law that the requirement or need not be fanciful or unreasonable. It cannot be a mere desire and must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. It may be a need in praesenti or within a reasonable proximity in the future. Petitioners have reasonably explained that the tenanted premises is required by them for starting the business for their son related to furniture industry in the tenanted premises.
14 It is argued by Ld. counsel for respondent that the sons of petitioners are gainfully employed outside Delhi and have no intention to settle in Delhi. It is further argued that the sons of petitioners have no experience to start the business of furniture as alleged by them. As regards the argument of Ld. counsel for respondent that the petitioners Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 26 of 39 E No. 75/14 27 14.07.2015 have no intention to start any business for their son in the tenanted premises is concerned, the tenant is provided with remedy u/s. 19 of the Act for restitution of premises, if, the landlord does not uses the premises for meeting his bonafide requirement within the stipulated period. As regards the contention that the sons are gainfully employed, there are plethora of judgments on this point that the person for whose requirement the premises is required, need not be unemployed or lose his existing job. Some of the said judgments are discussed as under:
14.1 Hon'ble Supreme Court in Raghunath G Panhale (dead) by Lrs V Chagganlal Sundarji & Co. (1999) 8 SCC 1 held that:
" a landlord need not lose his existing job , nor resigned it , nor reached a level of starvation to contemplate that he must get possession of his premises for establishing a business. . One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 27 of 39 E No. 75/14 28 14.07.2015 is not a condition precedent for seeking to get back ones premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the longdrawn litigation he started some other temporary water business to sustain himself, that would not be an indication that his need for establishing a grocery shop was not a bonafide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property".
14.2 In Ram Babu Aggarwal Vs Jay Kishan Das 2009 (2) RCR 455 It was held that "we are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business and some times they are Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 28 of 39 E No. 75/14 29 14.07.2015 successful in the new business also".
15 From the said judgments it is evident that joblessness is not the precondition to prove the bonafide requirement, hence the argument of Ld. Counsel for respondent in this regard is misconceived and not tenable. Petitioners have categorically stated that they require the tenanted premises for setting up the business of furniture for their son and wants to settle him in his life.
15.1 In Joginder Pal Singh Vs. Naval Kishore Behal AIR 2002 SC 2256:
"24.......... Keeping in view the social or 'socioreligious milieu and practices prevalent in a particular section of society or a particular region, to which the landlord belongs, it may be obligation of the landlord to settle a person closely connected with him to make him economically independent so as to support himself and / or the landlord. To discharge such obligation the landlord may require the tenancy premises and such Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 29 of 39 E No. 75/14 30 14.07.2015 requirement would be the requirement of the landlord . If the requirement is of actual user of the premises by a person other than the landlord himself the court shall with circumspection inquire: (i) whether the requirement of such person can be considered to be the requirement of the landlord, and (ii) whether there is a close interrelation or identify nexus between such person and the landlord so as to satisfy the requirement of the first query. Applying the overlaid tests to the facts of the present case it is clear that the tenancy premises are required for the office of the landlord's son who is a chartered accountant. It is the moral obligation of the landlord to settle his son well in his life and to contribute his best to see him economically independent.
16 It is submitted by the counsel for petitioners that the petitioners want to settle their son as he is interested in starting his own business of furniture and settle in Delhi, hence require the tenanted premises. The respondent in the entire application for leave to defend has not disputed that the son of petitioners is not dependent upon them for the purpose of accommodation. The respondent has not brought Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 30 of 39 E No. 75/14 31 14.07.2015 on record any fact contrary to what has been stated by the petitioners. In the present case, the premises is required by the petitioners for starting the business for their son, hence any business which is being done by petitioner no. 1 at present is of no relevance as the requirement is for setting up a business for the son of petitioners.
17 In the absence of any substantial material brought before the court or pointed out by the respondent in the affidavit, it cannot be said that the present petition for eviction is actuated by malafide or has not been made with bonafide intention. On the face of it and from the above discussion, the case of bonafide requirement is made out. No triable issue has been raised by the respondent in this regard.
18 Now coming to the plea regarding alternate accommodation. It is argued by the counsel for respondent that petitioners have concealed the fact of being in possession of the front portion ground floor, first and second floor of the suit property and the said fact is also not mentioned in the petition, hence triable issue is raised Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 31 of 39 E No. 75/14 32 14.07.2015 regarding the alternate suitable accommodation available with the petitioners.
18.1 In Surinder Singh Vs. Jasbir Singh , 172 (2010) DLT 6117, it has been held that:
"25. the mere fact that , respondent did not disclose the accommodation of basement and first floor available with him in the eviction petition, would not prove fatal to the present case, since the same cannot be said to be an alternative suitable accommodation for the purpose of business."
18.2 The respondent has stated that petitioners have front portion ground floor, first floor and second floor of suit property as alternate suitable accommodation along with property bearing no. B1/9, Janakpuri, New Delhi for meeting their requirement, if any.
18.3 There is no dispute to the fact that tenanted premises is located in the heart of furniture market of Delhi Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 32 of 39 E No. 75/14 33 14.07.2015 ie. Punchkuian Road. As far as the property of Janakpuri is concerned, petitioners have categorically stated that same is under tenancy of M/s. G D Foods Pvt. Ltd., Indus Bank Ltd. and M/s. Agricultural Finance Corporation separately and independently. The said property not being in a market area , cannot be said to be an alternative suitable premises for carrying on the business of furniture, for which the tenanted premises which is located in the heart of furniture market is ideally suitable.
18.4 As regards the front portion, the first and second floor of suit property is concerned, petitioners have categorically stated that they are under the tenancy of NGO Waste to Wealth and Saraswati Plaza Pvt. Ltd. The factum of tenancy of NGO and Saraswati Plaza Pvt. Ltd is not disputed by respondent, however it is argued that petitioners themselves are either the Chairman or Directors in the said NGO/company. There is no dispute to the fact that these premises are not vacant and are under the tenancy of NGO Waste to Wealth and Saraswati Plaza Pvt. Ltd. Merely because petitioner no. 1 is the Chairman of NGO Waste to Wealth and Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 33 of 39 E No. 75/14 34 14.07.2015 one of the Director of Saraswati Plaza Pvt. Ltd. , it cannot mean that he should vacate and close down both the venues for opening the shop of furniture for his son.
18.5 It is no more resintegra that a tenant cannot dictate or force the family member of the landlord to stop his business to meet his requirement, so that the tenant in the tenanted premises is not affected. It is not the law that a petition for bonafide necessity does not lie because petitioner who is carrying on a business in a premises must stop that business for a son who wants to open a new business, moreso when the tenanted premises are more suitable being at the ground floor and in the heart of furniture market. The argument that the front portion is in possession of the NGO of which petitioner no. 1 is the Chairman can be used as alternate accommodation is not tenable and misconceived. Further, the argument that already a family company under the name of RNH Trading Pvt. Ltd is also being run in the tenanted premises and can be used as alternate accommodation is not tenable and misconceived and as such Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 34 of 39 E No. 75/14 35 14.07.2015 does not raises any triable issue.
19 It is further argued by Ld. counsel for respondent that the first and second floor are under the tenancy of M/s. Saraswati Plaza Pvt. Ltd and tenancy in its favour shall expire in March 2015, hence the petitioners have said alternate accommodation at their disposal to meet their requirement. It is argued by Ld. counsel for petitioners that the said tenant has not vacated the premises despite expiry of the lease agreement and further the first and second floor is not suitable for the petitioners to meet their requirement of opening the furniture shop for their son. No document has been placed on record by respondent that the first and second floor of the property have been vacated by the tenant M/s. Saraswati Plaza Pvt. Ltd and is at disposal of the petitioners to meet their requirement. Once the first and second floor are not lying vacant and are being used by the tenant M/s. Saraswati Plaza Pvt. Ltd of which petitioner no. 1 is one of the Director, this property cannot be said to be an alternative suitable property for dismissing the bonafide necessity of petitioners. It cannot be urged that the first and Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 35 of 39 E No. 75/14 36 14.07.2015 second floor of the suit premises which are being used by the company, should be vacated by the company for opening of the business by the son of the petitioners.
19.1 In Mukesh Kumar Vs. Rishi Prakash , 2009 (2) RCR, 485 it was held that :
" A landlord, while seeking the eviction of a tenant on the ground of bonafide requirement for himself or his family members dependent upon him, is not expected to disclose the manner in which he is utilizing the accommodation available with him, if the accommodation with the tenant in respect of which he files the eviction petition is required by him for a purpose different from the purpose he is occupying and using the accommodation available with him . For instance the extent of residential accommodation available with the landlord who seeks the eviction of the tenant from a purely commercial or industrial premises, is wholly irrelevant .
20 Thus from the above discussion, it is evident that respondent has made preposterous claims in respect of accommodation available with the petitioners. It is settled Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 36 of 39 E No. 75/14 37 14.07.2015 law that landlord is the best judge of his requirement and has complete freedom in the manner of beneficial enjoyment of his property, once it is not disputed that his requirement is bonafide. The petitioners have specifically pleaded that they need the tenanted premises for starting the business of furniture for their son . They have specifically stated that they have no other suitable commercial accommodation for opening the said business. From the above discussion, this court is satisfied that need of petitioners is bonafide and appears to be sincere and honest and not a mere pretext to evict the respondent/ tenant. The tenanted premises i.e. portion measuring 25'.6" X 24'.6" at ground floor in property bearing no. 57/1 (2930, Block No. 80), Rear Court Yard, Punchkuian Road, New Delhi is the most suitable to meet the requirement of petitioners for opening the business for their son.
21 The Ld. counsel for respondent has relied upon certain judgments in support of his arguments, which are not discussed herein for the sake of brevity as in view of the above discussion, the judgments relied upon by the counsel Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 37 of 39 E No. 75/14 38 14.07.2015 for respondent are not applicable in the present matter.
22 From the above discussion and in the given facts and circumstances, petitioners are able to show that they are the owner and landlord of the tenanted premises. They have no other alternate accommodation, the tenanted premises is the only most suitable commercial shop available to them for starting the business of furniture for their son. There is no triable issue raised by the respondent to allow its application to contest the present eviction petition. The application for leave to contest is accordingly dismissed. As a result of the dismissal of the application for leave to contest, the petitioners are entitled to recover the possession of the tenanted premises i.e. portion measuring 25'.6" X 24'.6" at ground floor in property bearing no. 57/1 (2930, Block No.
80), Rear Court Yard, Punchkuian Road, New Delhi as shown red in the site plan attached with the petition. The eviction petition is allowed. No order as to costs. File be consigned to record room.
23 In view of provisions of sub section 7 of Section Harish Nagpal & Anr Vs. M/s. Berry Glass Company Page 38 of 39 E No. 75/14 39 14.07.2015
14 of the Act, this order for recovery of possession of premises shall not be executed before the expiration of the period of six months from this date. The respondent is further restrained not to sublet or create any third party interest during the aforesaid period of six months.
ANNOUNCED IN OPEN ( KIRAN GUPTA )
COURT ON 14.07.2015 SCJCUMRENT CONTROLLER
PATIALA HOUSE COURTS
NEW DELHI
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