Delhi District Court
M/S. Lok Sewak Auto Mobiles Pvt. Ltd vs Shri Sunny on 4 June, 2016
IN THE COURT OF MS. DEEPALI SHARMA, ADJ-14
(CENTRAL): TIS HAZARI COURTS: DELHI
CS-01/16
M/s. Lok Sewak Auto Mobiles Pvt. Ltd.
(Earlier known as M/s. BBB Auto Mobiles Pvt. Ltd.)
through its Director Shri Bharat Bhushan Batra,
757, Faiz Road, Karol Bagh,
New Delhi-110005.
.... Plaintiff/ Applicant.
Versus
Shri Sunny
S/o Sh. Nathu Ram,
R/o Property No.-XV/7923, Paharganj,
Central District,
New Delhi-110055
2nd Address: H. No. AB-39,
Street Tel Mil, Amar Puri, Ram Nagar,
Swami Ram Tirath Nagar,
Ara Kashan Road,
Paharganj, New Delhi.
...Defendant/Respondent
JUDGMENT:
1. Vide this judgment, I shall decide the application filed by the Plaintiff on 11.04.2016 under Order 12 Rule 6 and Section 151 of the Code of Civil Procedure, 1908 for passing a Decree on the basis of admissions made by the Defendant.
2.Briefly stated the facts of the case are that the Plaintiff M/s. Lok Sewak Auto Mobiles Pvt. Ltd. is the owner/ CS01/16) (Page 2 of 23 ) lessor of property No. XV/7923, Ara Kashan Road, Paharganj, New Delhi-110055, comprising ground floor, 1st floor, 2nd floor and 3rd floor with roof rights, constructed on an area admeasuring 108.69 Sq. Meters (equivalent to 120 Sq.Yards), comprising of 22 rooms with attached bath rooms, bath room fittings, Reception Hall, etc. (hereinafter referred to as the tenanted premises). It is averred that the plaintiff is the owner of the tenanted premises by virtue of a registered Sale Deed dated 07.03.2013.
3.The Defendant was inducted as a tenant/lessee on the tenanted premises by the plaintiff vide a Rent Agreement dated 19.09.2014, which was duly registered before the Registrar on 26.09.2014. A site plan in respect of the tenanted premises has also been filed.
4.It is stated that the last paid agreed rate of rent was Rs.1,60,000/- per month excluding/ in addition to electricity, water and other charges etc. It is stated that the Defendant paid rent in respect of tenanted premises for only one month for a period from 20.09.2014 to 19.10.2014, after execution of the Lease Deed. The Defendant had deposited a sum of Rs.50,00,000/- with the Plaintiff as security deposit (interest free) as against the tenanted premises in terms of the Lease Deed. The security deposit was refundable to the tenant/Defendant at the time of CS01/16) (Page 2 of 23 ) vacation and handing over of actual & physical possession of the tenanted premises by the tenant/ Defendant. It is also stated that the said amount was neither to be adjusted in monthly rent nor was to bear any interest. The Defendant paid the rent only for one month and thereafter, no further rent was paid by the Defendant despite repeated demands and reminders by the Plaintiff. The Plaintiff accordingly issued a notice dated 14.07.2015 to the Defendant under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the TP Act), thereby terminating the tenancy of the Defendant, calling upon him to pay the entire arrears of rent, also to handover the actual physical possession of the entire tenanted premises and to pay damages-mesne profits @ Rs.20,000/- per day w.e.f. the date of termination of tenancy till delivery of vacant and peaceful possession of the tenanted premises. However, despite service of the notice, Defendant failed to reply to the said notice and did not pay the arrears of rent as demanded in the notice.
5.The Defendant has filed its Written Statement and contested the suit, taking the plea that the Plaintiff has already mortgaged the suit premises with the Bank and as such, Plaintiff is not entitled to file the present suit against the Defendant. It has further been mentioned that the Defendant has transferred CS01/16) (Page 2 of 23 ) the suit premises on the instructions of the Plaintiff for further compliance of the Agreement executed between the Plaintiff and brother of Defendant Shri Sunil Kumar, who is presently in possession of the suit premises.
6.It has accordingly been contended by the Defendant that the Defendant had taken the tenanted premises on rent for a period of one month only and thereafter, the Plaintiff sold the tenanted premises (Hotel) to the brother of the Defendant, namely Sunil Kumar, vide Agreement to Sell dated 10.10.2014 and, therefore, no cause of action arises against the Defendant. The Defendant has averred that it was mutually agreed between the parties i.e. Plaintiff and the Defendant that the security amount of Rs.50 Lakhs will be adjusted in the sale consideration of the agreement entered into between the Plaintiff and brother of the Defendant namely Sunil Kumar. It has been denied that the Security amount deposited by the Defendant with the Plaintiff was refundable to the Defendant at the time of handing over of vacant and peaceful possession of the tenanted premises. The Defendant has further averred that the Defendant took the tenanted premises on rent for one month and has already paid one month's rent to the Plaintiff and he, therefore, is not liable to pay any amount to the Plaintiff.
CS01/16) (Page 2 of 23 )
7.The Defendant, in its reply to para 7 of the plaint has admitted the receipt of legal notice dated 14.07.2015. It is, however, stated that legal notice has been sent on the basis of false facts.
8.It has been averred by the Plaintiff that due to non- payment of rent by the Defendant after 19.10.2014, the Plaintiff was constrained to send a notice dated 14.07.2015 under Section 106 of the Transfer of Property Act, 1882, terminating tenancy of the Defendant and calling upon the Defendant to pay the entire arrears of rent, mesne profits and damages and handing over the possession of the tenanted premises.
9.The service of notice has been admitted by the Defendant. However, it has been contended by the Defendant that owing to the fact that the tenanted premises was sold by the Plaintiff to brother of Defendant, Shri Sunil Kumar, therefore, the Defendant stopped paying the rent to the Plaintiff who is presently not in possession of the tenanted premises. The Defendant has filed a copy of the Agreement to Sell dated 10.10.2014. In the said Agreement to Sell, it has been stated that the tenanted premises is on rent and in possession of Shri Sunny s/o Shri Nathu Ram R/o H.No. AB-39, Street Tel Mill, Amar Puri, Ram Nagar, Swami Ram Tirath Nagar, Central District, Paharganj, New Delhi-110055 as a tenant in terms of registered Rent Deed. The said tenanted premises was agreed to CS01/16) (Page 2 of 23 ) be sold for a sale consideration of Rs.2,40,00,000/-. It is further stated in the said Agreement to Sell that Plaintiff has received a sum of Rs.50,000/- in cash from said Shri Sunil Kumar and the balance sale consideration is payable by Shri Sunil Kumar within a period of three months from the date of execution of the Agreement to Sell dated 10.10.2014.
10. On the other hand, Ld. Counsel for the Plaintiff has stated that the plea of the Defendant that the tenanted premises has been sold by the Plaintiff to the brother of Defendant is absolutely false. It is further stated that the plea of the Defendant that the Security Amount of Rs.50,00,000/- was to be adjusted towards consideration amount as mentioned the Agreement to Sell dated 10.10.2019 executed between the Plaintiff and brother of the Defendant is without any basis.
11. It has also been averred that the alleged Agreement to Sell dated 10.10.2014 does not confer any right in favour of brother of the Defendant in view of the law laid down in Suraj Lamps (Suraj Lamp & Industries (P) Ltd. Thru. DIR Vs. State of Haryana & Anr. - (Order dated 15.05.2009) and Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr. - (Judgment dated 11.10.2011).
CS01/16) (Page 2 of 23 )
12. The Plaintiff has filed the instant application under Order XII Rule 6 of the CPC praying that a judgment be passed in its favour on the basis of the admissions made by the Defendant.
13. In its application under order XII Rule 6 CPC, it is contended by the Plaintiff that in the instant case, following facts are admitted between the parties:
1) That the parties entered into a registered Rent Agreement dated 19.09.2014 with regard to the tenanted premises;
2) That the monthly rent of the rented premises was Rs.1,60,000/- per month in terms of clause (1) of the Rent Agreement;
3) That the Defendant paid rent only for one month after commencement of the tenancy for the period from 20.09.2014 to 19.10.2014;
4) That the tenancy of the Defendant was duly terminated by service of legal notice dated
14.07.2015;
5) Despite service of notice, the Defendant neither handed over the vacant possession of the tenanted premises, nor paid the arrears of rent/ damages as demanded in the notice.
14. The Defendant has filed reply to the said application on the same lines as the Written Statement. The Defendant has however denied the assertions made in the application and that there is CS01/16) (Page 2 of 23 ) a relationship of landlord and tenant between the Plaintiff and the Defendant or that any arrears of rent are payable by the Defendant. Accordingly it is prayed that the Application filed by the Plaintiff be dismissed.
15. I have heard the submissions of the parties and perused the record.
16. Perusal of the record shows that the Plaintiff entered into a Rent Agreement in respect of tenanted premises with the Defendant on 19.09.2014, which was duly registered on 26.09.2014. As per clause 1 of the Rent Agreement, the tenancy commenced w.e.f. 20.09.2014 for a period of 09 years and was to expire on 19.09.2023. The agreed monthly rent of the tenanted premises was fixed at Rs.1,60,000/- as per clause 3 of the Rent Agreement. Clause 6 of the Rent Agreement acknowledges receipt of Rs.50 Lacs from the Defendant as Security, to be refunded to the Tenant/ Defendant at the time of vacation and handing over actual physical possession of tenanted premises to the Plaintiff. It was also mentioned therein that the security deposited is neither adjustable in the monthly rent nor shall bear any interest. Clause 17 of the rent agreement provides that the landlord shall serve three months prior written termination notice of tenancy to the CS01/16) (Page 2 of 23 ) tenant.
17. Perusal of the record shows that in reply to para 2 of the Plaint where the Plaintiff has asserted itself to be the owner of the tenanted premises have been replied to be matter of record in the Written Statement. Further, the contents of para 3 of the Plaint, wherein the Plaintiff has asserted that a the Defendant was inducted as a tenant in the tenanted premises by the Plaintiff vide a Rent Agreement dated 19.09.2014 have been stated to be matters of record in the Written Statement. The contents of para 4 of the Plaint, wherein the Plaintiff has asserted that the agreed rate of rent qua the suit property was Rs 1,60,000/- excluding /in addition to electricity, water and other charges payable as per consumption shown in the meters provided therein have been admitted to this extent in the Written Statement. In Para 3 of the Written Statement it has been averred by the Defendant that the Defendant has taken the hotel on rent for a period of one month only and thereafter the Plaintiff has sold the suit premises to the Brother of the Defendant. However, the execution of the Rent Agreement or the rate of rent have not been denied by the Defendant. Pertinently, it is averred in the Plaint that a Notice for termination of tenancy was sent to the Defendant by the Plaintiff on 14.07.2015. The CS01/16) (Page 2 of 23 ) receipt of the notice has been admitted by the Defendant in its Written Statement in reply to para 7 of the plaint.
18. Accordingly, the following facts stand admitted by the Defendant:
a) That the parties entered into a registered Rent Agreement dated 19.09.2014 with regard to the tenanted premises for a period of 9 years w.e.f. 20.09.2014;
b) That the monthly rent of the rented premises was Rs.1,60,000/- per month in terms of clause (3) of the Rent Agreement;
c) That the Defendant paid rent only for one month after commencement of the tenancy for the period from 20.09.2014 to 19.10.2014 since as per the Defendant the tenanted premises was thereafter sold by the Plaintiff to the brother of the Defendant.
d) That the notice for termination dated 14.07.2015 of the tenancy was duly served upon the Defendant.
e) Despite service of notice, the Defendant neither handed over the vacant possession of the tenanted premises, nor paid the arrears of rent/ damages as demanded in the notice.
19. The object of Order XII Rule 6 CPC has been elucidated by the Hon'ble Supreme Court in Uttam CS01/16) (Page 2 of 23 ) & Co. v. Union of India 2000 SC 2740 where the Hon'ble Supreme Court has held as under:
"As to the object of the Order XII Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the Defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment.
Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed."
20. A notice for termination of tenancy under Section 106 of the TP Act was sent to the Defendant and receipt thereof has been admitted by the Defendant in para 7 of its Written Statement. Admittedly, the CS01/16) (Page 2 of 23 ) tenancy in the instant case was for a period of 9 years w.e.f. 20.09.2014 till 19.09.2023. The Notice dated 14.07.2015 has however been sent under Section 106 of the TP Act. Section 106 of the TP Act is applicable to the cases where the lease period has not been determined by the parties. In the instant case, where the lease period has been provided in the lease deed in clause (1), Section 111 (h) of the TP Act would be applicable where under, a lease is determined on expiry of notice to determine the lease/ to quit/ intention to quit.
21. In Sky Land International Pvt. Ltd. v. Kavita P. Palwani, 2012 (4) CLJ 83 Delhi the Hon'ble Delhi High Court has held that the object of the termination notice under Section 106 of the Transfer of Property Act is to communicate the intention of the landlord that he wants the premises back and to give 15 days time to vacate. Such notice is not a pleading but a mere communication of the intention of the recipient. Such notice is to be liberally construed as the tenant's only right is to get notice of 15 days to vacate. The tenant is under a statutory obligation to vacate the subject property on the expiry of 15 days of the notice.
22. Para No. 9 of the legal notice dated 14.07.2015 provides that the tenancy shall stands terminated with effect from three months from the date of CS01/16) (Page 2 of 23 ) receipt of the legal notice (i.e., with effect from 14.10.2015). In the instant case the notice under section 106 dated 14.07.2015 can be treated as a notice under Section 111(h) of the TP Act since such notice of termination of lease is to be liberally construed as stated hereinabove as the tenant's only right is to get notice of 15 days to vacate (under Section 106 TP Act), where as in the instant case the said notice period was for three months after which the tenancy stood determined.
23. In this regard provisions of Section 108 (q) of the TP Act would also be relevant. Section 108 (q) read with Section 111 of the TP Act reads as under:
"Section 108. Right and liabilities of lessor and lessee. - In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:-
A - Right and Liabilities of the Lessor.
(a to (c) xxx xxx xxx xxx B. Rights and Liabilities of the lessee.
(d) to (p) xxx xxx xxx xxx
(q) On the determination of the lease, the CS01/16) (Page 2 of 23 ) lessee is bound to put the lessor into possession of the property."
24. According to Section 108(q) of the TP Act, it is the statutory obligation to the lessee to restore the possession of the leased property to the lessor on determination of the lease.
25. It has been held by the Hon'ble Supreme Court In M/s. Raptakos Brett & Col. Ltd. v. Ganesh Property, AIR 1998 SC 3085 as under:
"When a lease comes to an end by efflux of time, or by notice of termination, or if there be a breach and the lessee's rights are forfeited, the lessee becomes a tenant at sufferance, and it becomes the duty of the lessee under Section 108(q) of the Transfer of Property Act to restore possession to the lessor forthwith".
26. The Hon'ble Supreme Court has further held as under:
"22. .... Under law the erstwhile landlord is entitled to restoration of possession by enforcement of statutory obligation of the erstwhile tenant as statutorily imposed on him under Section 108(q) read with Section 111(a) of the TP Act.
27. The Defendant has further pleaded that he CS01/16) (Page 2 of 23 ) handed over the possession to the Brother of the Defendant owing to an Agreement to Sell dated 10.10.2014 entered into between the Plaintiff and Brother of the Defendant and the Plaintiff is no longer the owner of the tenanted premises. The Defendant has thus denied any landlord tenant relationship between him and the Plaintiff. Plaintiff has categorically refuted this submission of the Defendant.
28. The Plaintiff has contended that the Plaintiff is the Lessor/owner of the suit property, the Defendant was not entitled to hand over the possession of the suit property to a third party. In this context, provisions of Section 116 of the Indian Evidence Act are relevant and are reproduced herein below:
"Section 116. Estoppel of tenant; and of licensee of person in possession. - No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title of such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that such person had a CS01/16) (Page 2 of 23 ) title to such possession at the time when such licence was given."
29. In Shri Radhakrishnan Temple Trust Maithan, Agra vs. M/s. Hindco Rotatron Pvt. Ltd., (2012) II AD (Delhi) 429, the Hon'ble Delhi High Court, the Hon'ble Delhi High Court has held as under:
"Under Section 116 of the Indian Evidence Act, the Lessee is estopped from denying the title of the transferee landlord. Section 116 of the Indian Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy be permitted to deny the title of the landlord meaning thereby that so long as the tenant has not surrendered the possession, he cannot dispute the title of the landlord. Howsoever, defective the title of the landlord may be, a tenant is not permitted to dispute the same unless he has surrendered the possession of his landlord. It is based upon the salutary principle of law and justice that a tenant who could not have got the possession but for his contract of tenancy admitting the right of the landlord, cannot be allowed to CS01/16) (Page 2 of 23 ) dispute the title of his landlord after taking undue advantage of the possession that he got from the landlord. Of course, he can deny his title after he gives up the possession having thus restored the status quo ante.
30. In Shri Ram Pasricha v. Jagannath, AIR 1976 SC 2335 the Hon'ble Supreme Court has held that in a suit for eviction, the tenant is estopped from questioning the title of landlord. The relevant para 15 of the judgment has been reproduced as under:
"15. ...The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had titled to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co- owners as such."
31. The Hon'ble Supreme Court, in D. Satyanarayana v. P. Jagadish, AIR 1987 SC 2192 has held as under:
CS01/16) (Page 2 of 23 ) "3. ...Section 116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title of such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words "during the continuance of the tenancy' have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates een after the termination of the tenancy so that a tenant who had been let into possession, however, defective if may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy. ..."
32. In Vasu Deo v. Balkishan, (2002) 1 SCR 171 the Hon'ble Supreme Court has summed up the law as to estoppel of tenant and quoted the CS01/16) (Page 2 of 23 ) relevant para 6 of the judgment which reads as under:
"6. ... Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features : (I) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy;
(ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant.
The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case... the rule of estoppel ceases to have CS01/16) (Page 2 of 23 ) applicability once the tenant has been evicted. His obligation to restore possession to his landlord his fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by a paramount title-
holder...."
33. The Hon'ble Delhi High Court in the judgment of Sky Land International Pvt. Ltd. v. Kavita P. Palwani, 2012 (4) CLJ 83 Delhi has held that according to Section 116 of the Indian Evidence Act, the Lessee is stopped from denying the title of the transferee landlord. Section 116 of the Indian Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny the title of the landlord meaning thereby that so long as the tenant has not surrendered the possession, he cannot dispute the title of the landlord. However, defective the title of the landlord may be, a tenant is not permitted to dispute the same unless he has surrendered the possession to his landlord.
34. In the instant case, though the Defendant has pleaded that an Agreement to Sell was entered into by the Plaintiff and brother of the Defendant, however, he has no where pleaded that any communication was made by the Plaintiff to the CS01/16) (Page 2 of 23 ) Defendant directly informing him of the change in the ownership of the property. There was no surrender of the tenancy by the Defendant. The Defendant has, in its Written Statement, only mentioned that the brother of the Defendant is in possession of the tenanted premises, he has however, failed to state as to when and under what circumstances, the possession was handed over by him to his brother.
35. The judgment of Hon'ble Supreme Court in the matter of Vasu Deo v. Bal Kishan, Civil Appeal No. 5467 of 1998 decided on 11.01.2002 would also be relevant. The Hon'ble Apex Court has sum up a similar transaction in the following words:
"If A lets land to B and B enters into possession by the lease, B is bound to return possession to A on the expiry of the lease and he will not be allowed to set up the right or title of a third party C. If A directs B to surrender possession to C that might be a different matter.
But here there was no direct
communication between A and B.
What happened was that A told C that C could enter into possession when the lease expired but before that happened A changed his mind and demanded CS01/16) (Page 2 of 23 ) possession from lessee."
"In these facts it was held that once A demanded possession from B, then B cannot be heard to say in answer to that demand that C has right against A. A was held entitled to the decree for possession against B."
36. Hence in view of the settled law, once the Plaintiff has demanded possession from the Defendant, the Defendant cannot be heard to say in answer that his brother (third party) has right against the Plaintiff. There was no direct communication between the Plaintiff and the Defendant as regards the execution of Agreement to Sell and in view of Section 116 of the Indian Evidence Act, the Defendant cannot be permitted to deny the title of the Plaintiff i.e. the Landlord so long as the Defendant does not handover the possession of the tenanted premises to the Plaintiff. The Defendant is, accordingly, precluded from disputing the title of the Plaintiff unless he has surrendered the possession of the tenanted premises to the Plaintiff.
37. In view of the aforesaid, the Application under Order 12 Rule 6, moved by the Plaintiff, is allowed and the plaintiff is entitled for judgment with respect to the relief of possession of the suit CS01/16) (Page 2 of 23 ) property on admissions made by the Defendant. The Plaintiff is thus, entitled to the possession of the suit property from the Defendant and the Defendant is directed to handover and deliver actual, physical, vacant and peaceful possession of the suit property, bearing property No. XV/7923, Ara Kashan Road, Paharganj, New Delhi-110055, comprising Ground Floor, First Floor, Second Floor and Third Floor with roof rights, constructed on an area admeasuring 108.69 Square Meters (equivalent to 120 Square Yards), as shown in the site plan within one month from the date of this order, failing which the Plaintiff would be at liberty to seek execution. A decree sheet be prepared accordingly.
38. In so far as the other reliefs are concerned, the suit shall continue and the Plaintiff has to prove its case in accordance with law during the trial.
Announced in open court on 04.06.2016 ( DEEPALI SHARMA) Addl. District Judge-14 (Central):
Tis Hazari Courts, Delhi.
CS01/16) (Page 2 of 23 )