Kuljit Singh Butalia vs Firstcorp International Ltd on 30 November, 2012

[Cites 58, Cited by 0]

Delhi District Court

Kuljit Singh Butalia vs Firstcorp International Ltd on 30 November, 2012

                                                                          :  1  :



    IN THE COURT OF DR. NEERA BHARIHOKE  :  ADDITIONAL DISTRICT JUDGE01  : 
                             SOUTH DISTRICT  :  SAKET COURTS  :  NEW DELHI




Suit no.184 / 2011

In the matter of:

Kuljit Singh Butalia
S/o S. Jagjit Singh Butalia
R/o 39, Sadhna Enclave,
New Delhi110017                                                                                       .........Plaintiff



Versus

Firstcorp International Ltd.
Having its registered office at 
504, Adishwar Building
34, Feroze Shah Road,
New Delhi110017                                                                                    ........Defendant

Date of Institution: 06.11.2008
Date reserved for orders: 01.11.2012
Date of pronouncement of Judgment: 30.11.2012


                       SUIT FOR POSSESSION AND MESNE PROFITS / DAMAGES

JUDGMENT:

1 Vide this judgment, I shall decide the present suit filed by the plaintiff for possession and mesne profits / damages.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...1 of 96 : 2 :

Brief facts of the case are as under:

2 The plaintiff has filed the present suit for recovery of possession, mesne profits / damages against the defendant in respect of third floor of property bearing no. 39, Sadhna Enclave, New Delhi (hereinafter referred to as suit property). Plaintiff has averred that Earthtech Enterprises Ltd., a company and sister concern of the defendant company, was the tenant in respect of second floor of property bearing no. 39, Sadhna Enclave, New Delhi acting through Sh. O.P. Aggarwal.

3 At request of O.P. Aggarwal, plaintiff agreed for raising a construction over the second floor which he agreed that he will take on rent. Plaintiff had agreed to the same subject to some funds being paid in advance to him towards raising a temporary structure. On Sh. O.P. Aggarwal agreeing for the same and paying the same, plaintiff started construction in early part of 2003 and completed the same by March 2004. 4 On completion of structure, plaintiff asked Sh. O.P. Aggarwal to take possession and also told him that he shall not charge any rent for first two years in lieu of advanced money. However, at request of Sh. O.P. Aggarwal, third floor i.e. suit property was let out to defendant company. Plaintiff has averred that the defendant company is a tenant in the third floor of the suit property since 1.04.2006 @ Rs. 15,000 per month after deducting TDS.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...2 of 96 : 3 :

5 The tenancy has been terminated vide notice dated 07.08.08 under section 106 of Transfer of Property Act asking the defendant to vacate the suit property on or before 31.08.08. The plaintiff has alleged that the possession of the defendant is thereafter unauthorized.

6 The defendant has failed to vacate the suit property despite service of notice of termination. Plaintiff has submitted that defendant has claimed to have agreed with the plaintiff to purchase the suit property and has filed a false and frivolous suit against the plaintiff. Plaintiff has submitted that protection of Delhi Rent Control Act is not available to the defendant as the premises are outside the purview, scope and ambit of the DRC Act and as there is no registered lease deed by virtue of which the defendant can protect his tenancy. 7 Plaintiff has averred that premises in the vicinity of the suit property can fetch monthly rental of Rs.75,000/. The plaintiff has claimed damages for the suit property at the said rate or at any other rate to which plaintiff is entitled after holding an enquiry u/o 20 Rule 12 CPC from the defendant beyond 31.08.2008 i.e. from 01.09.2008. The plaintiff has claimed that he is entitled to a sum of Rs.1.50 lacs towards damages for the month of September and October, 2008 @ Rs.75,000/ per month. The plaintiff has filed the TDS certificates issued by the defendant to substantiate his case to the fact that plaintiff never agreed to enter into any transaction or agreed to sell the suit property to the defendant. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...3 of 96 : 4 :

8 The defendant filed the WS and averred that the present suit has been filed as a counterblast to the claim of the defendant as the issues in the present suit are directly and substantially the same to the previous suit bearing CS (OS) No. 1861 of 2008 filed on 14.08.2008 which was filed against the plaintiff for specific performance, mandatory and perpetual injunction. The notice of the said suit was issued to the plaintiff and the plaintiff and his legal representatives were restrained from creating any third party interest in the suit property.

9 Defendant has submitted that plaintiff has not annexed any document to prove ownership of the suit premises and to the best of its knowledge, the first floor of the suit premises is in possession and occupation of daughter of plaintiff who is running a firm by the name of Art Forum. The defendant has denied the submissions of the plaintiff. 10 It is submitted by defendant that Defendant company was never a tenant in the suit premises. Defendant has submitted that in the Month of October 2002, the plaintiff approached the sister concern of the defendant i.e. Earth Tech Enterprises Ltd. who is in possession of second floor of the same property, to sell the roof rights of second floor as he was facing some financial problem. It is further submitted that Earthtech Enterprises Ltd. told the plaintiff that it is interested in purchasing the same for its sister concern i.e the defendant but expressed the inability to pay the entire sale consideration in lump sum and the plaintiff suggested that Earthtech Enterprises Ltd. would pay in installments. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...4 of 96 : 5 :

11 It has been further submitted by defendant that plaintiff impressed upon Earthtech Enterprises Ltd. that even he could not keep large amount in his bank account as there was apprehension that his bank account may be attached in the proceedings pending with Debt Recovery Tribunal.

12 Defendant has alleged that an oral agreement was entered into between Earthtech Enterprises Ltd. and the plaintiff with respect to the suit property on sale consideration of Rs. 60,00,000/ and Earthtech Enterprises Ltd. was to make payment in installment of Rs. 11,000/ per month w.e.f. 14.10.2002 in the name of M/s Art Forum as the same was a firm of his daughter and he wanted to help her which will be adjusted towards part payment of sale consideration but possession of roof of second floor will continue with plaintiff. It is also submitted by defendant that Earthtech Enterprises Ltd. paid the amount of Rs. 11,000/ per month accordingly which was later increased to Rs. 20,000/ per month from April 2003 till July 2008.

13 Defendant has contended that there was a clear understanding between Earthtech Enterprises Ltd. and plaintiff that the defendant could start construction of the third floor after some material payment was made by defendant to the plaintiff. Defendant has submitted that it made a payment of Rs.5,00,000/ in cash on 29.04.2005 to the plaintiff under a valid cash receipt signed and executed by plaintiff and plaintiff handed over physical possession of roof of second floor to defendant for construction over the said roof. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...5 of 96 : 6 :

14 Defendant has submitted that the construction work was started in May 2005 and in terms of the oral agreement, the plaintiff executed a formal agreement to sell on cash receiptcumagreement dated 15.09.05 when another sum of Rs.10,00,000/ was paid by the defendant. However, agreement to sell was not executed because of pending proceedings in Debt Recovery Tribunal. Defendant submitted that construction was completed in the end of November 2005 and defendant further paid a sum of Rs.5,00,000/ vide cash receipt dated 24.11.2005 duly signed by the plaintiff. Defendant has also alleged that interior decoration of third floor was completed in March 2006 and defendant started using third floor as its office. Thus the total amount alleged to be paid to the plaintiff and the said Art Forum towards the part payment is stated to be Rs.36,21,000/. Defendant has alleged that however, plaintiff has not executed the formal agreement to sell in favour of plaintiff.

15 Defendant has submitted that he is in continuous and uninterrupted possession of the suit premises w.e.f. 29.04.2005 and he relied on an order dated 28.01.2004 passed by Debt Recovery Tribunal vide which Debt Recovery Tribunal had allowed Bank of Maharashtra to sell the mortgaged property bearing No. A140/1, Okhla Industrial Estate, PhaseII, New Delhi belonging to the plaintiff company and in case of failure of the plaintiff to pay the outstandings to the bank, the bank was authorized to sell the suit premises and had also attached the alleged rent amount being paid to the plaintiff. The defendant also relied on a letter dated 09.03.2004 written by Bank of Maharashtra and addressed to Earthtech Enterprises Ltd whereby the defendant was advised to deposit the amount which it had been Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...6 of 96 : 7 :

paying to the plaintiff with the said bank in compliance of the order of Debt Recovery Tribunal dated 28.01.2004. Defendant has submitted that on being informed about this fact, the plaintiff assured that he would take steps for the vacation of the said order and that he had filed the new lease deed of Earthtech Enterprises Ltd. Dated 31.03.2003 with his application in Debt Recovery Tribunal.

16 The defendant denied that the payment of Rs.15,000/ per month was towards rent and also denied that it started paying rent for the suit premises @ Rs.15,000/ per month after deduction of TDS. The defendant also denied that it became a month to month tenant of the suit premises i.e. 3rd floor for maintaining a guest house i.e for purely residential purpose and denied that it was a tenant. Defendant also submitted that deduction of TDS from the installments being paid towards sale consideration was at the insistence of the plaintiff. Defendant further submitted that it paid the said TDS deductions in cash to the plaintiff which were duly accepted by the plaintiff.

17 The defendant denied the termination of the lease of the defendant by a notice on 07.08.2008 whereby the defendant was asked to vacate the tenanted premises on or before 31.08.2008. Defendant categorically denied that it had received the alleged notice of termination of the plaintiff on 07.08.2008 and reiterated that the defendant was never a tenant and became a prospective buyer from 14.10.2002 on an oral agreement between the parties though physical possession was handed over on 29.04.2005. Defendant has prayed for dismissal of the present suit.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...7 of 96 : 8 :

18 The plaintiff filed the replication. Plaintiff has denied the submissions of the defendant. Plaintiff has submitted that he never agreed to sell the suit property or any part of the suit property to the defendant orally or otherwise. That defendant filed a false and frivolous and baseless suit before the Hon'ble High Court of Delhi which is being contested by him. Plaintiff has submitted that the intention of the defendant was to grab the suit property and his claim is untenable in the eyes of law. However, the plaintiff denied that the present suit is a counterblast to the suit of the defendant. Plaintiff has submitted that the defendant in order to delay the proceedings had filed an application u/s 10 CPC which was dismissed vide order dated 24.01.2009 and accordingly, the claim of the defendant is untenable. The plaintiff reiterated that he terminated the tenancy of the defendant by issuing legal notice u/s 106 of Transfer of Property Act. The plaintiff denied the remaining averments of the defendants. Plaintiff has submitted that the lease deed dated 31.03.2003 was unregistered lease deed and in the absence of any registered lease deed, the tenancy of the defendant was month to month.

19 Summons of the suit were issued to the defendant and the defendant appeared. Thereafter, the defendant filed an application under section 10 CPC which was dismissed vide order dated 24.01.2009. Thereafter the defendant filed WS along with an application under section 5 & 14 of Limitation Act. The said application was allowed and WS was taken on record vide order dated 28.04.09. Thereafter, application was filed by the plaintiff under Order 39 Rule 10 CPC. The defendant filed the reply to the application under Order 39 Rule 10 CPC, however, the same was dismissed vide order dated 22.07.2009. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...8 of 96 : 9 :

20 On completion of the pleadings, following issues were framed by Ld. Predecessor Court vide order dated 18.12.2009:

1. Whether the defendant is not a tenant in respect of 3 rd floor of 39, Sadhna Enclave, Panchsheel Park, New Delhi? OPD

2. If issue No.1 is proved against the defendant, whether the tenancy has been validly terminated? OPP

3. Whether the plaintiff is entitled to a decree for recovery of possession in respect of the suit property? OPP

4. Whether the plaintiff is entitled to damage / mesne profits in respect of the suit property? If so, at what rate and for which period? OPP

5. Relief.

21 Thereafter matter was listed for plaintiff's evidence.

Applications:

22 The defendant's right to crossexamine PW1 was closed on 31.07.10. However, on filing of application under section 151 CPC by the defendant, the said order was recalled on 25.12.10. Thereafter, PW1 was crossexamined. PW2 was examined in chief and cross examined. PE was closed in affirmative.

23 Since defendant did not file evidence, DE was closed on 20.12.10. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...9 of 96 : 10 :

24 The defendant filed two applications, one under section 151 CPC and the other under Order VI Rule 16 CPC on 06.01.11. Thereafter, the case file was transferred to this court.

25 Thereafter, the plaintiff filed reply to the application under Order VI Rule 16 CPC and u/s 151 CPC. Rejoinder to both the applications was filed by the defendant. The application u/s 151 CPC was allowed vide order dated 15.02.11. The application under Order VI Rule 16 CPC was dismissed vide order dated 12.05.2011. 26 Thereafter, the plaintiff moved an application under Order XXXIX Rule 10 read with Order XVA CPC and Section 151 CPC for payment of arrears of rent. Reply to the said application was filed by the plaintiff which was dismissed vide order dated 06.08.11. 27 Thereafter, the application under Order XI Rule 14 CPC moved by the defendant was dismissed vide order dated 19.08.11. The plaintiff had moved an application u/o XII Rule 6 on the same date. The defendant filed the reply to the application u/o XII Rule 6 CPC and the same was allowed vide order dated 16.12.11 and the matter was fixed up for remaining DE.

28 Defendant filed an appeal against the order dated 16.12.11 and Hon'ble Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...10 of 96 : 11 :

High Court of Delhi remanded the matter to this court with direction to complete final arguments in the suit within six months of date of receipt of the order and thereafter to proceed to hear and dispose of the suit. The said order also specified that defendant will be given only three opportunities for recording of evidence. The suit could not be disposed of within six months because of various applications filed on behalf of defendant and also because of adjournments having been sought by the parties.

29 DW1 was crossexamined and discharged. Thereafter, the defendant moved an application u/s 151 CPC for summoning the entire court file of Civil Suit (O.S.) NO. 1861 of 2008 titled M/s Firstcorp International Ltd. Vs. Kuljit Singh Butalia from Hon'ble High Court which was allowed and the same record was summoned. Thereafter, the plaintiff moved an application u/s 151 CPC for summoning the entire file of CS (OS) No. 1828 of 2008 titled M/s Earthtech Enterprises Ltd. Vs. Kuljit Singh Butalia and the record was summoned.

30 Thereafter, the plaintiff moved an application under Order XIII Rule 3 read with section 17(1A) of Registration Act, Article 23(A) of Schedule 1(A) of Stamp Act and section 151 CPC. Reply to the said application was filed by the defendant. However, the applications were kept pending as there was only one intervening day between the hearing of the arguments and the next date of hearing. This application was, however, disposed off as being not pressed for because Ld. Counsel for plaintiff did not press for the same. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...11 of 96 : 12 :

31 DW2 to DW5 were examined and defendant closed its evidence and plaintiff seeking the leave of the court led evidence in rebuttal whereby one Shanti Dave was examined as PW3. Plaintiff filed his affidavit of evidence in rebuttal but did not press for the same. The matter was then fixed up for final arguments. However, defendant filed an application u/s 151 CPC on 09.08.12 which was dismissed on 17.08.12. Defendant again filed an application under Order XVI Rule 1 (3) CPC which was dismissed vide order dated 24.08.12. Further arguments were heard in part on various dates and the matter was fixed for orders on 01.11.2012.

Plaintiff's Evidence 32 In support of his case, plaintiff himself appeared in the witness box and deposed as PW1. Affidavit of evidence of PW1 is placed on record. In his affidavit PW1 reiterated the facts of the plaint and has placed reliance on the documents Exb. PW1/1 to PW1/5, and plan of suit property, Exb.PW1/A details of which are as under:

d Exb. PW1/1(colly) are TDS certificates for the period 01.04.2006 to 31.03.2007 and 01.04.2007 to 31.03.2008.

d Exb. PW1/2 is the copy of notice of termination.

d Exb. PW1/3 is the postal receipt in support of notice.

d Exb. PW1/4 is the acknowledgment card in original.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...12 of 96 : 13 :

Exb. PW1/5 is the copy of UPC receipt.

33 In crossexamination of PW1, order of Debt Recovery Tribunal dated 28.01.2004 was proved as Exb.PW1/D1.

34 Sh. Maninder Pal Singh Kohli deposed as PW2 and his testimony was recorded. He placed reliance on the documents Exb.PW2/1 to 2/2 which are certified copies of two registered lease deeds.

35 Plaintiff's evidence was then closed in affirmative and the matter was listed for defendant's evidence.

Defendant's Evidence:

36 In support of its case, defendant examined five witnesses. Sh. Avdhesh Kumar Singh was examined as DW.1 and his Affidavit of evidence is placed on record as Exb.DW1/A. In his affidavit DW1 reiterated the facts of the Written Statement with respect to various alleged payments made by defendant to the plaintiff with respect to purchase of suit property and has placed reliance on the documents Ex. DW1/1 to DW1/4 and Mark A to Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...13 of 96 : 14 :

Mark C. Exb. DW1/1 is the Certificate of Incorporation dated 09.01.1995. Exb. DW1/2 is the Certificate of commencement of business dated 23.02.1995 Exb. DW1/3 is the authorization letter dated 29.09.2000.

Exb.DW.1/4 is the schedule of payment made to Art Forum.

Mark A is the Form 32 filed with ROC evidencing appointment of DW1. Mark B is the form 32 filed with ROC dated 22.10.1997 Mark C is the copy of bank certificate dated 13.03.2009.

37 However, since Exb.DW1/4 was a photocopy, it was deexhibited and was marked as Mark D. 38 Sh. Mahavir Pd. Mishra was examined as DW.2 and his Affidavit of evidence is placed on record as Exb.DW2/A. In his affidavit DW.2 deposed with respect to various alleged payments made by defendant to the plaintiff with respect to purchase of suit property and has placed reliance on the documents Exb.DW2/1 to DW.2/3. Exb.DW2/4 Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...14 of 96 : 15 :

which is schedule of payments made to plaintiff was a photocopy and was marked as Mark E. Further Exb.DW2/1 to Exb.DW2/3 since they were photocopies were marked as Mark 'A' & Mark 'X' while the receipt dated 29.04.2005 was not even marked and Mark 'D' which is change of address of defendant company dated 23.09.2005. DW2 was confronted with copy of Form No. 16A of the period 01.04.2003 to 31.03.2004 and 01.04.2004 to 31.03.2005 to 01.04.2005 to 31.03.2006 and 01.04.2006 to 31.03.2007; 01.04.2007 to 31.03.2008 and 01.10.2002 to 31.03.2003 and were proved as Exb.DW.2/X1 to X6. Hire Charges Agreement was proved as Exb.DW.2/X7 and vouchers of different dates were proved as Exb.DW.2/8 to 2/13. The receipt dated 15.09.2005 was deexhibited from Exb.DW.2/2 to Mark 'A' and receipt dated 24.11.2005 was marked as Mark 'X'.

39 Sh. Laxman Bhatt was examined as DW.3 and his Affidavit of evidence is placed on record as Exb.DW3/A. In his affidavit DW.3 deposed with respect to various alleged payments made by defendant to the plaintiff with respect to purchase of suit property and has placed reliance on the documents Exb. DW3/1 to DW.3/2 which are certified copies of Form 32 dated 20.08.1997 and copy of receipt dated 10.07.2008 and relevant form 32. Exb.DW3/2 was a photocopy and was marked as Mark F. 40 Sh. Anil Sharma was examined as DW4 and his Affidavit of evidence is placed on record as Exb.DW4/A. In his affidavit DW4 deposed with respect to various Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...15 of 96 : 16 :

alleged payments made by the defendant to the plaintiff towards purchase of suit property and has placed reliance on the documents Ex. DW4/1 which is certified copy of receipt dated 27.09.2005 and Form 32 filed with ROC. However, since the same was photocopy, it was marked as Mark G. DW.4 has also placed reliance on Mark 'A' & Mark 'X'.

41 Sh. Sanjeev Bhutani was examined as DW5 and his Affidavit of evidence is placed on record as Exb.DW5/A. In his affidavit DW.5 deposed with respect to various alleged payments made towards construction of suit property and has placed reliance on the documents Ex. DW5/1 to DW.5/16 which are all copies of cash receipts and were therefore, not allowed to be exhibited but were marked as Mark H1 to H16. 42 Defendant's evidence was then closed and plaintiff examined one Sh. Shanti Dave as PW.3.

Evidence in rebuttal:

43 Affidavit of evidence of PW.3 is placed on record as Exb.PW 3/A. In his affidavit PW.3 deposed about selling his paintings to Sh. O.P. Aggarwal through plaintiff. Plaintiff also filed his affidavit of evidence in rebuttal but did not press for the same and matter was listed for final arguments.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...16 of 96 : 17 :

44 Detailed arguments were advanced by both the sides.

45 Parties also filed their written submissions.

46 Ld. Counsel for plaintiff referred to Para No.3 of plaint wherein it is stated that on 01.04.2006, the defendant started paying rent for the suit property @ Rs. 15,000/ per month after deducting tax at source. Attention was also drawn to TDS certificates filed with the plaint for two financial years i.e. 01.04.2006 to 31.03.2007 and 01.04.2007 to 31.03.2008. Both these certificates have been admitted by defendant and have been exhibited as Exb. PW.1/1 (Colly).

47 Ld. Counsel for plaintiff argued that these TDS certificates are conclusive proof of the status of the defendant to be that of tenant as the same are issued under Chapter XVII of Income Tax Act which provides for collection and recovery of tax. TDS certificates show that TDS was paid under section 194(I) of Income Tax Act which defines rent in its explanation (i) and mention of the same in TDS certificates means Tax was paid by defendant in respect of tenancy. It was also argued that under section 198 of Income Tax Act, the said amount is deemed to be income received by the landlord and section 199 mandates that credit for the same should be given to landlord. Section 200 provides that tax should be deducted and deposited with Central Government to credit of landlord. Section 201 & 271(c) were referred to by Ld. Counsel for plaintiff as section 201 provides consequences of nondeduction of tax against assessee in default and section 271(c) Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...17 of 96 : 18 :

provides penalty. Section 203 provides that TDS certificate needs to be issued for tax deducted.

48 Ld. Counsel for plaintiff referred to Rule 31 of Income Tax Rules which prescribes that certificate of TDS u/s 196(i) shall be in Form 16A for rent. Section 203A of Income Tax Act provides that tax deduction account Number of deductor has to be procured by assessee. Ld. Counsel for plaintiff submitted that the same had been procured by assessee and is specifically mentioned in the said exhibits. Similarly, PAN number of deductor is also to be mentioned and that also has been mentioned in the said exhibits.

Nature of payment has been shown as rent and section 194(I) is mentioned in the two exhibits marked as Exb.PW1/1 (colly). Ld. Counsel for the plaintiff submitted that entries in the TDS certificates for 01.04.2006 to 31.03.2007 i.e. deduction of tax in the capacity of rent, name and address to whom it is credited is that of plaintiff, mentioning of PAN number of payee along with the period 01.04.2006 to 31.03.2007 (where first payment is that of Rs. 30,000/ and rest are of Rs.15,000/ each as on 06.04.2006, two months rent @ Rs.15,000/ per month was paid by defendant and therefore no payment made in May, 2006.) and total tax deposited is Rs.27,675/, all these prove that defendant is a tenant in respect of the suit property. Similar entries were referred to in the TDS certificate of 01.04.2007 to 31.03.2008 to again establish that possession of defendant is that of tenant. 49 Ld. Counsel for plaintiff argued that in view of these TDS certificates, as Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...18 of 96 : 19 :

per section 91 and 92 of Evidence Act, no evidence of any oral agreement or statement is admissible for the purpose of contradicting, varying, adding to or subtracting from its terms. Ld. Counsel for plaintiff also argued that under section 92 of Evidence Act, TDS certificate is also a document which is required by law to be reduced to a form of document.

50 In view of section 91 & 92 of Evidence Act, since nature of payment in TDS certificates is shown to be rent, ld. Counsel for plaintiff argued that no evidence can be given by defendant to vary its terms. Attention was drawn to crossexamination conducted on 02.05.2011 of DW.1, Sh. Avdhesh Kumar Singh wherein he had stated that "It is wrong to suggest that Firstcorp International Limited has been tenant in respect of third floor, 39, Sadhna Enclave @ Rs.15,000/ per month." Ld. Counsel for plaintiff argued that this submission of Sh. Avdesh Kumar is not admissible in view of Sections 91 & 92 of Evidence Act. Attention was drawn to crossexamination of DW.1 of the same date when after seeing Exb.PW.1/1 (colly), he stated that "It is correct that after seeing Exb.PW.1/1, that the defendant company i.e. Firstcorp International Ltd., was paying rent of Rs.15,000/ per month after deducting tax at source which was deposited with Income Tax Authorities and certificates were issued by the said defendant company to the plaintiff. It is also correct that the nature of payment shown in this certificate is mentioned as rent." 51 Ld. Counsel for plaintiff contended that it is conclusively proved by Exb. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...19 of 96 : 20 :

PW.1/1 (colly) that defendant is a tenant. It was also argued that defendant company cannot enter into sale agreement as referred by defendant in its Written Statement as section 209 of Companies Act mandates for a proper book of account to be maintained for amount received and expended by a company and also to specify matters in respect of which amount has been received or expended as defendant is a Public Limited Company. If defendant had invested money in purchase of immovable property, it was mandatory to show that in their books of account. Section 292 of Companies Act was referred which provides in Clause B that powers to invest funds of company can be exercised only by a Board of Directors at its meeting and not by circulation. It was argued that there are no such averments of convening of any Board meeting with respect to purchase of suit property or investing money in its purchase nor the defendant has filed any document for the same.

52 Attention was also drawn to the fact that DW3 was asked if he has original of authorization letter dated 29.09.2000 filed with his affidavit and he denied to be in possession of the same and submitted that there are two cases pending in the Hon'ble High Court of Delhi between the parties and he may have filed the original in one of them. However, he did not call record from Hon'ble High Court of Delhi in support of case of defendant and he denied to have any such authorization letter in his possession when he was crossexamined on 01.05.12.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...20 of 96 : 21 :

53 Attention was drawn to Mark 'A' dated 15.09.05 as well as Mark'X' dated 24.11.05 wherein rubber stamp of defendant company has been embossed / super imposed on the name of plaintiff written in hand and it was argued that these two exhibits have been altered by the defendant since both the exhibits specifically mention in the column of PARTICULARS as Gallary Account in its column of Debit whereas defendant has relied on Exb.DW.2/2 as receipt of part payment received by plaintiff for agreement for sale of roof of second floor, 39, Sadhna Enclave, New Delhi i.e. suit property. Attention was drawn to crossexamination of PW.1 conducted on 08.10.2010 and 15.11.2010. On 08.10.10, PW.1 in his crossexamination had submitted that "It is correct that from 14th October, 2002 till March 2003, a sum of Rs.11,000/ were paid by M/s Earth Tech Enterprises to M/s Art Forum. Vol. these were by way of hire charges for fitting and fixtures. M/s Art Forum belongs to my daughter. It is correct that from April, 2003 till July, 2008, the sum was enhanced to Rs. 20,000/ per month. Vol. the cheque received was less as TDS had been deducted. It is incorrect to suggest that the payment made by M/s Earth Tech to M/s Art Forum was by way of sale consideration." In his crossexamination on 15.11.10, PW.1 had stated "It is correct that this amount of Rs.10 lakhs was paid to me in cash by Mr. O.P. Aggarwal as he has been dealing with me in the gallery account. When O.P. Aggarwal paid me this amount, his accountant was also present. The signature of the accountant is at Point O. There was no noting on mark 'A' as reflected from point B to B. The amount of Rs.10 lakhs was paid to me for sale of a painting by Shanti Dave. Vol. I can produce him in the court. I did not enter into any agreement with the defendant company on receipt of Rs.10 lakhs. mark 'X' bears my signatures only at point A. Vol. This has been fabricated subsequently as there was no Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...21 of 96 : 22 :

stamps of the defendant company at point 1. The witness has been asked to mark the material which existed on this document. He has marked the same as M to M, N, F to F, X1 to X1, Y to Y and Z to Z. Other than this, all other material has been interpolated. I do not remember who handed over the amount of Rs.5 lakhs to me but it was on behalf of Sh. O.P. Aggarwal in his office. I do not remember who all were present in his office at that time but his accountant was present there. This amount was handed over to me in the office of M/s Earthtech in the chamber of Sh. O.P. Aggarwal. The amount of Rs.5 lacs was not paid to me by the defendant company. Amount was paid to me for paintings. It is incorrect to suggest that this amount was paid to me by the defendant company as sale consideration for the 3 rd floor."

54 Ld. Counsel for plaintiff argued that payment made to gallery account cannot be considered to be sale consideration of suit property. Attention was drawn to cross examination of DW.2, Sh. Mahavir Pd. Mishra on 01.05.12. A question was put to him as "Please tell the court that what is meant by the word gallary in Exb.DW.2/2 and Exb.DW.2/3?"

to which he replied "It was for the purposes of remembrance that the word 'Gallary' was mentioned as separate payments were being made for the 2nd and 3rd floor of 39, Sadhna Enclave. The word Gallary referred to payment for 3rd floor only. I am not sure whether the word Gallary was only mentioned for payment made for roof of the 2nd floor." Another question was put to him "I put it to you that the word Gallary is also mentioned in receipts pertaining to 2nd floor of 39, Sadhna Enclave in Exb.DW.2/X8 to Exb.DW.2/X14" to which he Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...22 of 96 : 23 :

replied "It is quite possible that I may have used the word Gallary for payment of 2nd floor also." Ld. Counsel for plaintiff argued that the receipt dated 15.09.05 which has been relied upon by the defendant as original receiptcumagreement with respect to suit property cannot be considered as Agreement to Sell and is inadmissible because of its nonregistration as well as due to insufficiency of stamp duty in view of Section 17(1A) of Registration Act and provisions of Stamp Act. Reliance was placed on the decision of Hon'ble High Court of Delhi in the matter of Sunil Kapoor Vs. Himmat Singh & Ors, 167 (2010) DLT 806. It was also argued that the receipt dated 15.09.05, Exb.DW.2/C is otherwise a fabricated document and cannot be read in evidence.

55 Ld. Counsel for plaintiff argued that the possession of defendants cannot be protected under section 53A of Transfer of Property Act as there is no evidence of part payment toward sale consideration and receipts dated 29.04.2005, 15.09.05, Mark 'A' and 24.11.2005, Mark 'X' have to be eliminated in absence of registration, insufficiency of stamp duty and also because the same are forged.

56 It was also argued that payment schedule filed by the defendant is not an extract from any account book and is inadmissible u/s 34 of Evidence Act and the same is not a document maintained in ordinary course of business. Ld. Counsel for plaintiff contended that it is incorrect that after deduction of tax at source, amount was paid back to Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...23 of 96 : 24 :

plaintiff in cash as deposed by DW.2 in para 2 of his affidavit of evidence. Attention was drawn to crossexamination of DW.2 conducted on 01.05.12 where he had stated that the CBI confiscated the records of the company and the raid was conducted by CBI at the office of the defendant. He had also submitted that he has a copy of the seizure memo prepared by CBI while confiscating the records. He also stated that the same is available and he can produce the same. Ld. Counsel for plaintiff argued that records can only be seized by CBI and not confiscated and otherwise also when DW.2 was asked to bring the seizure memo prepared by CBI while confiscating the records, he could not produce the same. Attention was also drawn to crossexamination of DW.2 where he had stated that TDS was deducted and was paid in cash to the plaintiff. At that point, DW.2 was shown Exb.DW.2/X1 i.e. TDS certificate and he stated that "It is correct that the signatures on document, Exb.DW.2/X1 bears the signatures of Mr. Ravi Sahani at point A and of Mr. Avdhesh Kumar at point B. It is correct that the nature of payment in Exb. DW.2/X1 is shown as rent. Volunteer but the same was not towards the rent." Ld. Counsel for plaintiff argued that submission of DW.2 that 'The same was not towards the rent' becomes inadmissible in view of section 91 of Evidence Act.

57 Attention was drawn to crossexamination of DW.2 wherein he had stated that the payment of Rs.20,000/ in Exb.DW.2/X7 was made on behalf of defendant company for purchase of roof rights of second floor of 39, Sadhna Enclave. He had also stated that the payment of an amount of Rs.20,000/ to M/s Art Forum was made by cheque and the said amount was not debited to the defendant company. Ld. Counsel for plaintiff Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...24 of 96 : 25 :

submitted that payment of Rs.20,000/ was made to M/s Art Forum towards Hire Purchase Agreement filed by plaintiff and it nullifies the submission of DW.2 and is, therefore, not reflected in the account of defendant company. He argued that if the said payment would have been towards purchase of suit property, defendant company is bound to debit the same in its books of account as required u/s 230A of Income Tax Act and section 230A does not require any tax to be paid towards payment made for sale consideration. It was argued that the defence raised by the defendant that the amount of Rs.20,000/ was paid towards sale consideration is false.

58 Ld. Counsel for plaintiff referring to rule 31 of Income Tax Rules read with Form 16A issued under the Income Tax Rules submitted that TDS certificate are statutory documents and u/s 92 of Evidence Act, no term of that document can be contradicted or varied and any statement to the contrary is inadmissible. 59 Ld. Counsel for plaintiff argued that the payment of Rs.20,000/ by the defendant was towards Hire Purchase agreement attention was drawn to crossexamination of DW1 Sh. Avdhesh Kumar Singh conducted on 24.01.2012 wherein he had admitted that he had admitted his signatures on the Hire Purchase agreement. He had submitted that "I had signed certain blank pages which were used by the plaintiff to make the said agreement. I never signed any hire charge agreement. I never made any complaint to anyone that my Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...25 of 96 : 26 :

signatures were obtained on blank papers which have been converted into agreement." Attention was also drawn to his crossexamination on the same day wherein he had stated "I have not prepared the payment schedule but it was prepared at my instance. It is correct that the payment schedule reflects the payments made to Art Forum and not to Mr. Kuljit Singh Butalia. Vol. The said payments were made at the asking of Mr. Kuljit Singh Butalia in presence of Mr. Ravi Sahani and Mr. Laxman Dutt and myself. It is correct that there is nothing on record in writing to show that Kuljit Singh Butalia had ever instructed to make payment to Art Forum. Vol. these payments were made towards adjustment of 3rd Floor. It is incorrect to suggest that the payments made in the schedule were towards hire charges of fitting and fixtures supplied by Art Forum to Earthtech Enterprises on the 2 nd Floor of 39, Sadhna Enclave, New Delhi." Ld. Counsel for plaintiff argued that the submission of DW1 that he had not signed on the hire purchase agreement is incorrect as the Hire Purchase agreement was executed on 31.03.2003 and crossexamination was conducted on 24.01.2012 and DW1 had not filed any police complaint that he had signed blank pages which were used by the plaintiff. It was argued that Hire Purchase agreement was executed by DW1 in the capacity of Director of Earthtech Enterprises. It was also argued that TDS certificates in support of payment to Art Forum show tax deduction under Section 194 (C) and have been admitted by defendant.

60 With respect to validity of termination of tenancy Ld. Counsel for plaintiff referred to Para 7 of affidavit of evidence of PW1 where it is stated that "I therefore got a Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...26 of 96 : 27 :

formal notice of termination issued and sent to the defendant by registered post acknowledgment due, at its registered office, which at that time was 504, Adishwar Apartments, 34 Ferozeshah Rd., New Delhi110001. A copy of the notice is Ex. P2. The same has been issued on my behalf by my advocate on my instructions. The postal receipt is Exb. PW1/3 showing payment of requisite postal charges. The acknowledgment card showing receipt of the letter containing the notice of defendant's office is Exb. P4. A copy of the notice was also sent to the defendant under certificate of posting photocopy whereof is Exb. P5." Attention was drawn to copy of notice, postal receipt and AD cards in support of the legal notice dated 07.08.2008. Ld. Counsel for plaintiff argued that the defendant in its WS has denied the receipt of the same, however, no single question was put to PW.1 regarding notice and none of defendants' witness denied the receipt of notice. No witness stated that the notice has not been received. Reliance was placed on M/s. Madan and Co. vs. Wazir Jaivir Chand, AIR 1989 Supreme Court 630 and Hill Elliott and Company Ltd. Vs. Bhupinder Singh, 2011 (121) DRJ 438 (DB). Ld. Counsel for plaintiff argued that the defendant got the case remanded on the false plea of nonreceipt of notice while no evidence has been advanced to that effect. Reliance was also placed on Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF), (2008) 2 SCC 728; in support of the arguments that filing of a suit for eviction is in itself a notice of termination. It was argued that defendant has not denied the signatures on AD card to be not of that of defendant. Ld. Counsel for plaintiff argued that the tenancy was legally terminated by legal notice dated 07.08.2008. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...27 of 96 : 28 :

61 With reference to issue No.3 i.e. "Whether the plaintiff is entitled to a decree of possession in respect of the suit property.", Ld. Counsel for plaintiff referred to section 111(h) of Transfer of Property Act and submitted that the tenancy terminated on 31.08.2008 as per legal notice dated 07.08.2008. In the alternative, it was argued that the tenancy stood terminated when the suit was filed on 05.11.2008 and thereafter the plaintiff becomes entitled to recover the possession of the suit property. 62 With respect to Issue No. 4 of plaintiff's entitlement to damage / mesne profits in respect of the suit property, it was argued that the same is allowed u/o 20 Rule 12(1)

(a) and Order 20 Rule 12(1)(c) which contemplates an enquiry as to when on mesne profits from the institution of the suit till delivery of possession. Attention was drawn to evidence of PW.2, Maninder Pal Singh Kohli, a person dealing in leasing and sales of properties in Panchsheel Limited Park and Sadhna Enclave who threw light on these issues and who deposed that the rent of three bedroom apartment in Sadhna Enclave in August, 2008 was not less than Rs.1 lac per month and if facilities like lift, etc are provided, then the rent is about Rs.1.50 lacs. He had also brought the certified copies of two registered lease deeds negotiated by him and were marked as Exb.PW.2/12. Ld. Counsel for plaintiff argued that though plaintiff has claimed Rs.75,000/ per month towards mesne profits, yet plaintiff rests his claim to Rs.20,00,000/ in total towards mesne profits / damages. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...28 of 96 : 29 :

63 Ld. Counsel for plaintiff also argued that heavy costs should be imposed on the defendant as the conduct of the defendant with respect to the proceedings in the present matter is alleged to have been frivolous. Reliance was placed on observations made with respect to imposition of cost in the matter of Salem Advocate Bar Association Vs. Union of India, AIR 2005 SC 3353 and Punjab National Bank Vs. Virendra Prakash, 188 (2012) DLT 48. Ld. Counsel for plaintiff argued that heavy cost should be imposed on the defendant.

64 Ld. Counsel for defendant submitted that Ld. Predecessor court framed an issue that "Whether the defendant is not a tenant in respect of the suit property?" and the onus was placed on the defendant. He argued that onus should not have been placed on the defendant as it is the case of the plaintiff that the defendant is in possession of suit property in the capacity of a tenant and he should have proved the same. 65 Attention was invited to Para No.2 of plaint which reads as "That on 1st October, 2002, Earth Tech Enterprises Ltd a company acting through Sh. O.P. Aggarwal took on rent the 2nd floor of the plaintiff's property No. 39, Sadhna Enclave, New Delhi. Sometime in December, 2002, the said Sh. O.P. Aggarwal requested the plaintiff that if a temporary construction is made on the roof of the 2 nd floor he will take the same on rent and use the same as a guest house of Earthtech Enterprises Ltd. The plaintiff agreed to the proposal on Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...29 of 96 : 30 :

the condition that some funds are advanced to him for raising a temporary structure to meet a part of finances required. The said O.P. Aggarwal having agreed to meet a part of the expenses, the plaintiff started construction in early part of 2003 and completed the same by March, 2004. When the temporary structure was completed, the plaintiff asked the said O.P. Aggarwal to take possession and also told him that he shall not charge any rent for first two years in return of his having advanced some money to meet the cost of construction. The said O.P. Aggarwal then wanted the newly constructed temporary structure on 3 rd floor to be let out to the defendant company of which the said O.P. Aggarwal was the real controlling figure but managed through some junior employees who had no stake in its business, a dummy directors. The said defendant took possession of the structure on or about 1st April, 2004." Attention was then drawn to Para No.3 where it is stated that on 01.04.2006, the defendant started paying rent for the suit premises @ Rs.15,000/ per month after deducting TDS and became a month to month tenant. Ld. Counsel for defendant argued that there is discrepancy in the date of letting out of suit property by the plaintiff in the plaint. It was argued that in Para No.2, defendant is said to have taken possession of suit property on or about 01.04.2004 while the rent is stated to have been started to be paid from 01.04.2006. It was argued that plaintiff has not explained as to what was the status of the defendant from 2004 to 2006.

66 Attention was drawn to Para No.6 of the plaint where it is stated that defendant started making false claims of having agreed with the plaintiff to purchase the suit Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...30 of 96 : 31 :

property and is also stated to have filed a false and frivolous suit for specific performance of an alleged Agreement of Sale. Ld. Counsel for defendant argued that without any claims of purchase by defendant as a defence, plaintiff has submitted about the same in his plaint. It was argued that on 14.08.2008, defendant had already filed a suit for specific performance before Hon'ble High Court of Delhi but it was concealed in the present plaint and the plaintiff has concealed the material facts when the present suit was filed on 05.11.2008. It was also argued that in Para No.2 it is stated that possession was given to the defendant on 01.04.2006 while in Para No.11 of the plaint, it is stated in the cause of action Para in the plaint that cause of action accrued on 01.04.2006 when the defendant was put in possession of the suit property and it arose when the defendant started paying rent @ Rs.15,000/ per month to the plaintiff. Thus, there is discrepancy with respect to the date of taking of possession of suit property by the defendant.

67 Ld. Counsel for defendant referred to Paras A & B in the Preliminary objections of Written Statement where the facts of filing of suit for specific performance and the restraint order against the plaintiff from creating third party interest in the suit property have been mentioned. It was also argued that it was for the first time in the replication that mention has been made about the other transactions between the parties in the replication. It was also argued that it was the plaintiff who approached the defendant to purchase the suit property and it was because of order dated 28.01.2004, Exb.PW1/D1 of Debt Recovery Tribunal which had allowed Bank of Maharashtra to sell another property of the plaintiff's Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...31 of 96 : 32 :

company / firm and if the outstanding claim was not recovered, then bank was authorized to sell the suit premises and had also attached the alleged rent amount being paid to the plaintiff. Defendant has also relied on a letter dated 09.03.2004 addressed to Earthtech Enterprises Limited enclosing the said order of Debt Recovery Tribunal whereby Earthtech Enterprises Limited was advised to deposit the amount being paid to the plaintiff with the said bank in compliance of order dated 28.01.2004, Exb.PW1/D1. Ld. Counsel for defendant referred to Para No.2 of Written Statement and argued that plaintiff handed over vacant possession of suit property on 29.04.2005 and a formal Agreement to Sell was executed and payment of Rs.5 lacs was made to the plaintiff by a receipt which is Exb.DW2/1. The second installment of Rs.10 lacs is stated to have been made on 15.09.2005 which is referred to as receiptcumagreement by the defendant and is Mark 'A'. Attention was invited to proceedings of Debt Recovery Tribunal because of which no written Agreement to Sell was executed. Ld. Counsel for defendant argued that it was the plaintiff who suggested that Earthtech Enterprises Limited could pay a sum of Rs.11,000/ per month w.e.f. 14.10.2002 in the name of M/s Art Forum which was said to be run by his daughter and that it was agreed that the same would be treated as part payment of total consideration of Rs.60 lacs. It was also stated by ld. Counsel for defendant that the defendant and / or Earthtech Enterprises Limited had no privity of contract with the said Art Forum but Earthtech Enterprises Limited started paying Rs.11,000/ per month, as agreed by cheque to M/s Art Forum which was later increased to Rs.20,000/ per month from April, 2003 and payment continued till July, 2008 by Earthtech Enterprises Limited for and on behalf of defendant. Attention was invited to the order of DRT dated 28.01.2004, Exb.PW1/D1 referred to earlier as well as letter addressed Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...32 of 96 : 33 :

to Earthtech Enterprises Limited written by Bank of Maharashtra dated 09.03.2004. The third installment of Rs.5 lacs was made on 24.011.2005 vide cash receipt towards the part payment out of the balance sale consideration.

68 Ld. Counsel for defendant argued that when the defendant made a payment of Rs.5 lacs in cash on 29.04.2005 to plaintiff under a valid cash receipt, plaintiff handed over the physical possession of roof of second floor of the property to the defendant for construction over the said roof which was started in May, 2005. Ld. Counsel for defendant argued that the plaintiff executed a formal Agreement to Sell on cash receiptcum agreement dated 15.09.2005 after receiving a further sum of Rs.10 lacs as part payment but did not execute any Agreement to Sell due to pending proceedings before Debt Recovery Tribunal. When the construction was completed in the end of November, 2005, defendant further paid a sum of Rs.5 lacs vide cash receipts dated 24.11.2005, Mark 'X' towards sale consideration and payment of Rs.20,000/ per month by cheque was also being made by Earthtech Enterprises Limited to said Art Forum simultaneously till July, 2008. 69 Ld. Counsel for defendant argued that interior decoration of the third floor i.e. suit property was completed sometime in March, 2006 and the defendant started using third floor as his office. Defendant had been paying a sum of Rs.15,000/ per month by cheque to plaintiff w.e.f. 06.04.2006 till August, 2008 which was to be adjusted towards part Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...33 of 96 : 34 :

payment of total sale consideration of suit property. Ld. Counsel for defendant argued that time and again the defendant requested for execution of formal Agreement to Sell, however, plaintiff only kept on assuring that he would execute the same.

70 Ld. Counsel for defendant argued that defendant was never a tenant of the suit property and deduction of TDS from the installment being paid towards sale consideration was at the insistence of the plaintiff and the defendant paid the said deductions from the TDS in cash to the plaintiff. Ld. Counsel for defendant argued that in the replication, the plaintiff has not rebutted the averments of the defendant with respect to these payments and thus the said submissions of defendant stood proved as they were not traversed by the plaintiff in his replication and since order 8 Rule 5 is applicable to replication also, nontraversed part of Written Statement implies admissions on the part of plaintiff as he has given composite reply to Para No.1 to 3 of material part of Written Statement. Defendant has referred to three substantial payments besides the cheques and there is no specific denial by plaintiff and reference of security amount has been made for the first time in the replication while there is no mention of security amount in the plaint or WS. It was argued that plaintiff has given an evasive explanation that payment was received by him for procurement of art objects by the plaintiff on behalf of defendant. Ld. Counsel for defendant argued that construction work completed in November, 2005 and total amount of Rs. 36,21,000/ i.e more than 55% of total sale consideration had already been made to the plaintiff towards suit property and there was no relationship of landlord and tenant between Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...34 of 96 : 35 :

the parties.

71 Ld. Counsel for defendant argued that in Para 1 of the plaint, it is submitted by plaintiff that suit premises were let out on 01.04.2006 while in Para No.2 it is stated that to have been let out on 01.04.2004 and no evidence has been led as to when it was let out. Further, in Para No.2 of the plaint, plaintiff has submitted that some funds were advanced to him for raising a temporary structure but how much amount was paid is conspicuous.

72 Attention was drawn by ld. Counsel for defendant that in the replication, plaintiff has submitted that the defendant has referred to an understanding which is beyond the scope, ambit and definition of landlord and tenant. However, plaintiff has not elaborated about the understanding. Defendant has relied on Anant Construction (P) Ltd. Vs. Ram Niwas, 1994 IV AD (Delhi) 185; where it is stated that principle of Order VIII Rule 5 CPC has been extended to nontraverse in the replication of the averments made in the WS and this in case of denial being evasive in the replication, the kind of nontraverse has to be taken against the plaintiff. It was also held that replication if allowed by the court becomes a part of pleadings and attention was drawn to ordersheet dated 28.04.2009 when replication was ordered to be filed by Ld. Predecessor court. Reliance has also been placed on Pfizer Enterprises Sarl Vs. Cipla Ltd., 2009 (5) R.A.J. 474 (Del); where it was held that every Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...35 of 96 : 36 :

allegation in plaint if not specifically denied shall be taken to be admitted. Ld. Counsel for defendant argued that three payments have not been explained or referred in replication. It was also argued that there is no reference of submissions made in para 2 of the plaint about construction of suit property at request of O.P. Aggarwal in para 2 of the affidavit of the plaintiff i.e. PW.1.

73 Attention was drawn to crossexamination of PW.1 conducted on 08.10.10 where he admitted of some litigation pending since 1995. PW1 had also admitted that the order of Debt Recovery Tribunal i.e. Exb.PW1/ D1 was passed on 28.01.2004, Exb.PW1/D1. Ld. Counsel for defendant argued that there is no mention of the said order or letter written to Earthtech Enterprises Limited by Bank of Maharashtra dated 09.03.2004 in the replication. It was argued that due to bad financial position of plaintiff he could not have sold the suit property as it was attached by the bank but there was no mention of the same in the replication. It was also argued that it was because of the order of attachment that the payment through cheques was made to Art Forum which happens to be firm of daughter of plaintiff. Attention was drawn to crossexamination of PW 1 on 08.10.10 whereby he had stated that there was privity of contract between M/s. Earthtech Enterprises Limited and Art Forum. Attention was drawn to crossexamination of PW1 conducted on 15.11.2010 wherein the PW1 had stated that he could not say what was the fittings or fixtures provided by Art Forum to the Earthtech Enterprises Limited on the 2nd Floor as it had been leased out by his daughter and his daughter never dealt with the defendant or with Earthtech Enterprises Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...36 of 96 : 37 :

Limited.

74 Ld. Counsel for defendant argued that if there was no contact of daughter with the defendant or Earthtech Enterprises Limited, how could agreement of fitting and fixtures be concluded between the Art Forum and Earthtech Enterprises Limited. Ld. Counsel for defendant argued that how could be there privity of contract between Art Forum and Earthtech Enterprises Limited.

75 Ld. Counsel for defendant argued that in Para no.2 of the plaint, plaintiff has submitted that the construction was completed in March, 2004 but in his cross examination conducted on 15.11.2010 he submitted that it was complete on 01.04.2006. He also submitted that he had carried out the construction and stated that it is incorrect to suggest that the possession of roof of 2nd Floor was handed over to defendant company on 29.04.2005. Ld. Counsel for defendant argued that in Para 2 of the plaint, plaintiff has submitted that possession was handed over in 2004 but in crossexamination it is denied that the possession was handed over on 29.04.2005, thus there is contradiction about date of handing over of possession.

76 With respect to enhancement of payment toward fitting and fixtures from Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...37 of 96 : 38 :

Rs.11,000/ per month to Rs.20,000/ per month by Earthtech Enterprises Limited to M/s. Art Forum attention was drawn to crossexamination of PW1 where he had admitted that there was no additional facility added in the fitting and fixtures when the hire charges were enhanced. Ld. Counsel for defendant argued that the reason for enhancement was not explained by the plaintiff, thus it supports the submission of defendant that the payment made to Art Forum was actually part of sale consideration of suit property. 77 Ld. Counsel for defendant while referring to the order of attachment made by the bank submitted that in view of the said order of attachment, plaintiff had suggested the mode of payment in installments to screen the sale proceeds of the suit property from the bank. It was also argued that the rent of the property was attached, one of the properties of the plaintiff was attached but still in his crossexamination plaintiff stated on 08.10.10 that he had large amount lying in the bank.

78 Ld. Counsel for defendant also referred to the discrepancy of completion of construction of suit property as in the plaint it is submitted that construction was complete in March, 2004 but in the crossexamination of PW1 conducted on 15.11.2010 he submitted that construction was complete on 01.04.2006. In his crossexamination conducted on 15.11.2010, plaintiff stated that no one was using the 3rd floor i.e. the suit property in year 200405 as plaintiff was constructing it, however, in the plaint he has submitted that Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...38 of 96 : 39 :

construction was complete in 2004 and possession was handed over to the defendant in the year 2004. Ld. Counsel for defendant argued that construction work was actually carried on by the defendant after handing over of possession.

79 Ld. Counsel for defendant argued that in Mark 'A', plaintiff has admitted his signatures as well as amount of Rs.10 lakhs in his crossexamination conducted on 15.11.2010 and has denied rest of the contents of Mark 'A' and accordingly Mark 'A' stood proved. It was also argued that plaintiff has admitted his signatures on Mark 'X' as well as the receipt of Rs.5 lakhs in his crossexamination conducted on 15.11.2010 and accordingly Mark 'X' also stood proved.

80 Ld. Counsel for defendant argued that in his crossexamination conducted on 15.11.2010, PW1 stated that "Amount of Rs.5 lakh was not paid to me by the defendant company. Amount was paid to me for paintings." It was argued that there is no mention of receipt of the said amount either in the plaint or in the replication except that in Para no. 6 of replication it is stated that there were other transactions between the parties regarding procurement of art objects by plaintiff for and on behalf of defendant. It was argued that plaintiff has accepted the receipt of amount of Rs.20 lakhs the only controversy is that he says that it was paid by O.P. Aggarwal and defendant says it was paid by defendant.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...39 of 96 : 40 :

81 Ld. Counsel for defendant argued that notice of termination was given at 2nd floor while defendant had office at 3rd floor and the Lease deed was not proved nor stamped nor was registered and he also argued that fulcrum of plaintiff's case is TDS certificates and the defendant has explained the circumstances due to which TDS certificates were issued and in view of discrepancies referred to by the Ld. Counsel for defendant, defendant has been able to discharge the onus that defendant was not in possession of suit property as a tenant.

82 Ld. Counsel for defendant argued that the plaintiff summoned Shanti Dave as PW3 after closing of defendant's evidence whose name was conspicuous in the pleadings. Attention was drawn to Para no.4 of Affidavit of evidence where it is deposed that plaintiff introduced PW3 to O.P. Aggarwal who wanted to start an Art Gallery with the help of plaintiff. It was argued that plaintiff did not say so in his pleadings. In Para no.5 of Affidavit of evidence PW3 deposed that in the year 200405, PW3 sold the paintings at a highly discounted price to the plaintiff which were required by O.P. Aggarwal and was delivered by him to O.P. Aggarwal. Attention was also drawn to Para 6, where PW3 submitted that O.P. Aggarwal wanted to set up an Art Gallery for his daughter in law. Reference was made to crossexamination of PW3 conducted on 24.05.2012 where he stated that Geeta Art Gallery sold his paintings. It was also stated by him that the painting which was delivered by him to O.P. Aggarwal was not meant for being sold but was given to him in lieu of donation of Rs.10 lakhs in cash which he gave to me for constructing a temple in my village. He also stated on Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...40 of 96 : 41 :

the same date that he had disclosed about the facts of receipt of Rs.10 lakhs from O.P. Aggarwal to the Counsel for plaintiff. Ld. Counsel for defendant argued that the testimony of PW3 is under cloud as he demolished the testimony of plaintiff. 83 Ld. Counsel for defendant argued that out of the 3 payment of Rs.5 lakhs, Rs.10 lakhs and Rs.5 lakhs, one has been denied and 2 have been admitted by the plaintiff in his crossexamination although the documents are stated to be fabricated and forged.

84 Ld. Counsel for defendant invited attention to crossexamination of DW1 conducted on 24.01.2012 whereby he stated as :

"Without verifying the books of accounts of the defendant company, I cannot say whether the agreement of purchase of the suit property is recorded herein. There was written agreement of sale/purchase of the suit property between M/s. Firstcorp and Mr. Kuljit Singh Butalia. Apart from Mark 'A' dated 15.09.2005, there is not other agreement between the parties. It is correct that Mark 'A' has not been signed by me. This is in the hand writing of Mr. Mahavir Pd. Mishra who is Director in M/s. Earthtech Enterprises Ltd."

Ld. Counsel for defendant submitted that PW1 in his crossexamination conducted on 15.11.2010 admitted his signatures on Mark 'A' at point X as he stated "I identify my signatures on mark 'A' at point X" and "It is correct that the amount of Rs.10 lakh was written Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...41 of 96 : 42 :

at the time when I signed this document". It was argued that neither the replication nor the affidavit of evidence makes any mention of receipt of these Rs.10 lakhs or of the other 2 payment of Rs.5 lakhs each and payments through cheques made by Earthtech on behalf of defendant to Art Forum towards part payment of sale consideration of suit property nor anything has been put across to witnesses with respect to the said payment. 85 Attention was drawn to crossexamination of DW1 conducted on 24.01.2012, wherein he had submitted that the payment schedule reflecting payments made to Art Forum and not the plaintiff were made at the asking of the plaintiff and these payments were made towards adjustment of 3rd floor and it is incorrect to suggest that the payments were towards hire charges of fitting and fixtures supplied by Art Forum to Earthtech Enterprises Ltd. Attention to crossexamination of DW2 conducted on 01.05.2012 was also invited, where it was submitted that the payment of an amount of Rs.20,000/ was made to Art Forum by cheque. On the same date a question was put to DW2 as "I am putting to you that the physical possession of the roof of 2 nd floor of 39 Sadhna Enclave was handed over to you after payment of Rs.5 lakhs." and DW2 replied "It is correct." Ld. Counsel for defendant argued that none of these two statements has been rebutted.

86 Ld. Counsel for defendant again argued that plaintiff has been unable to establish as to when did the tenancy start in favour of defendant by referring to the Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...42 of 96 : 43 :

discrepancies mentioned earlier also in the plaint, WS, replication, affidavit of evidence of PW1 and his crossexamination.

87 It was argued on behalf of defendant that TDS certificates are not hit by Section 91 of Evidence Act in absence of there being any lease on record and also submitted that since the 3 payments of Rs.5 lakhs, Rs.10 lakhs and Rs.5 lakhs have been admitted by plaintiff they should be marked as exhibits and in view of plaintiff admitting the said 3 payments, plaintiff is barred by Section 91 of Evidence Act to make any oral submission to the contract.

88 It was also argued that the plaintiff has not placed any document in support of sale and purchase of paintings nor the Art Forum has been examined by the plaintiff to support its contention that these 3 payments were made towards purchase of paintings whereas Mark 'A' and Mark 'X' are documents of recital for payment of earnest money and are not hit by Section 49 of Registration Act.

89 Ld. Counsel for defendant argued that the plaintiff has withheld the best possible evidence which support his case that there was an alleged landlord tenant relationship between the parties as he has not confronted the witnesses of defendant Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...43 of 96 : 44 :

company with any question about the said relationship despite the defendant specifically pleading in the WS that they were in possession of the suit property on the basis of the oral agreement to sell and there was no landlord and tenant relationship between the parties. It was also argued that plaintiff has not produced his daughter to support his case that the amount being paid by Earthtech Enterprises Limited to Art Forum by cheque were towards hire purchase agreement and not towards sale consideration. It was argued that plaintiff has not pleaded the alleged hire purchase agreement in the plaint and has also not rebutted the cheque payments in the replication and accordingly the case of the defendant stands proved. Reliance was placed on the law laid down in Gopal Krishnaji Ketkar Vs. Mohd. Haji Latif, AIR 1968 SC 1418 where it was held that if a party in possession of best evidence which would throw light on the issue in controversy withholds it, court ought to draw and adverse incidence against him notwithstanding that onus of proof does not lie on him. Similar are the observations in the matter of K.M. Patel Vs. Firm Mohd. Hussan Rahim Bux, AIR 1981 SC 977 and Mohan Lal Shamji Soni Vs. Union of India & Anr., AIR 1991 SC 1346. It was argued that plaintiff has failed to prove his tenancy by any positive evidence and the suit deserves to be dismissed.

90 Ld. Counsel for defendant argued that TDS certificates were sham documents and can be relied upon only if they are part of Lease Agreement but the plaintiff in Para 5 of the plaint has categorically stated that there is / was nor registered lease deed reduced into writing between the parties and in the premises if an oral tenancy is pleaded Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...44 of 96 : 45 :

then there cannot be any bar of Section 9192 of Evidence Act in absence of any written document to show tenancy. It was also argued that plaintiff is trying to infer that TDS certificates show that there was a tenancy whereas the defendant company has proved the 3 money receipts. TDS certificates have been explained by defendant as sham documents and otherwise also are not contracts and therefore not hit by Section 91 of Evidence Act, whereas defendant has proved the receipt of money by the plaintiff from the defendant which is covered by explanation to Section 17 of Registration Act and reliance was placed on judgment reported as Gangabai Vs. Chhabubai, AIR 1982 SC 20 where it was held that the bar imposed by sub section (1) of Section 92 of Evidence Act is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is the sham. Similar are the observations in the matter of Ishwar Dass Jain Vs. Sohan Lal, AIR 2000 SC 426. 91 Reliance was also placed on the matter titled Sudesh Madhok Vs. Paam Antibiotics Ltd. & Anr., 174 (2010) DLT 594 where it was held that Section 91 is based on what is sometime describes as best evidence. Best evidence about the content of the document is the document itself and when the same is produced to prove its terms, provisions of Section 92 come into operation for the purpose of excluding of evidence of any oral agreement or statement for the purpose of contradicting, varying, adding to or subtracting from its terms. Similar are the observations in the matter of S. Saktivel Vs. M.V. Pillai and Ors., (2000) 7 SCC 104. It was argued that since the plaintiff has not filed nor has averred Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...45 of 96 : 46 :

any tenancy agreement in writing, bar of Section 91 and 92 of Evidence Act would not apply and defendant can raise defense of oral agreement to sell against the claim of tenancy raised by plaintiff.

92 Ld. Counsel for plaintiff in rebuttal argued that the plaintiff in the replication has traversed all the submissions made by the defendant in his WS and has also submitted that there is no contradiction with respect to starting of tenancy in favour of the defendant and has stated that it commenced in April, 2006 as stated in Para 1 of the plaint and reiterated in Para 3 of the plaint as well as in affidavit of evidence as well as cross examination of PW1.

93 It was also argued that TDS certificates are specifically covered under section 91 of Evidence Act as Section 91 of Evidence Act covers all cases in which any material required by law to be reduced to the form of a document and TDS is one of such documents which require to be reduced to a form of documents by provision of Section 202 and 203 of Income Tax Act. Attention was invited to crossexamination of DW1 conducted on 02.05.2011 where he stated "It is correct that after seeing Ex. PW1/1 colly, that defendant company was paying rent of Rs.15,000/ per month after deducting tax at source which was deposited with the Income Tax Authorities and certificates were issued by the said defendant company to the plaintiff. It is also correct that the nature of payment shown in the certificate Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...46 of 96 : 47 :

is mentioned as rent." In view of TDS certificates and the statement of DW1, it was argued that plaintiff has proved that defendant is in possession of suit property as a tenant by best evidence. It was also argued that Para No.11 of WS which talks of interior decoration having been completed in March, 2006 substantiates the pleading of the plaintiff that the tenancy started in April, 2006. It was also submitted by Ld. Counsel for plaintiff that Para 1 of the plaint where plaintiff has submitted that tenancy came into effect on 01.04.2006 has not been traversed by the defendant in its WS as it has submitted in reply on merits to Para 1 to the plaint that plaintiff has not annexed any document to prove ownership of the suit premises and to the best of the knowledge of the defendant, the 1st floor of the suit premises is in possession and occupation of his daughter who is running a firm by the name of Art Forum. 94 Ld. Counsel for plaintiff argued that under provisions of Order 8 Rule 5, non traversing amounts to admission on part of the defendant that the tenancy commenced from 01.04.2006. It was argued that even DW4 in his crossexamination conducted on 01.05.2012 admitted that TDS certificate was issued showing the nature of payment as rent and also that it is correct that under the provisions of Income Tax Act a company is bound to deduct income tax and deposit the same with the Income Tax Authority against the PAN no.

of the plaintiff. The benefit of the tax so deposited after deduction is claimed by the plaintiff. In view of these submissions of DW4 it again stood proved that the defendants were in possession of the suit property in the capacity of the tenant. It was argued that there is no force in the contention of defendants that they are not barred by Section 92 of Evidence Act Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...47 of 96 : 48 :

despite deduction of tax at source by them u/s 194 (I) of Income Tax Act. 95 It was also argued that Section 109 of Evidence Act says that when the question is whether the persons are landlord and tenant and it has been shown that they have been acting as such, the burden of proving that they do not stand to each other in the said relationship is on the person who affirms it. Since the defendant has been deducting TDS on the said payment of rent, it was for it to prove or to call for best evidence to prove that it is not the tenant. It was also argued that burden was rightly placed on the defendant and out of the 3 receipts, out of which one is alleged to be receipt cum agreement to sell, that receipt requires compulsory registration for protecting the possession of the defendant u/s 53 A of Transfer of Property Act read with Section 17 (1 A) of Registration Act. It was also argued that none of the 3 receipts is admissible in evidence as the defendant has not proved the same by summoning for original records of these receipts in the matters pending before Hon'ble High Court of Delhi. It was also argued that explanation to Section 17 of Registration Act does not dilute the effect of Section 17 (1 A) of Registration Act. Reliance was placed on Sunil Kapoor Vs. Himmat Singh & Ors., 167 (2010) DLT 806.

96 Ld. Counsel for plaintiff also argued that plaintiff has only admitted the signatures and the amount of payment mentioned on Mark 'A' and Mark ' X', however the admission is only with respect to Gallery account and PW1 in his crossexamination has Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...48 of 96 : 49 :

specifically stated that he has never agreed to sell the suit property and has also denied that the payment made by Earthtech Enterprises Limited to Art Forum was by way of sale consideration. Further PW1 has specifically stated that he identified his signatures on Mark 'A' but the same had been fabricated later on and stamp of the defendant had been put on his name later on at the point M and only gallery account was written at point A and everything else has been added later on. He had also stated that there was no noting on Mark 'A'. Further, he had deposed that Mark 'X' bears his signatures but Mark 'X' has been fabricated subsequently as there was no stamp of defendant company at point 1. Thus, these receipts were not proved on basis of admissions.

97 Ld. Counsel for plaintiff reiterated the provisions of Section 209 of Companies Act and submitted that the defendant has not complied with the same thus establishing that no agreement of sale was ever executed between the parties with respect to purchase of suit property. Attention was also drawn to TDS certificates in favour of M/s. Art Forum where tax has been deducted u/s 194 C of Income Tax Act showing payment to contractors towards fitting and fixtures and held that the same cannot be said to have been made to a seller. It was also argued that neither DW1 nor DW2 knew what is gallery account by inviting attention to their crossexamination conducted on 24.01.2012 and 01.05.2012 respectively.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...49 of 96 : 50 :

98 With respect to letter dated 09.03.2004 written by Bank of Maharashtra to Earthtech Enterprises Limited as well as the order of Debt Recovery Tribunal dated 28.01.2004, Exb.PW1/D1, it was argued that the said order was an order made in absence of the plaintiff who was defendant no.2 in that matter. Attention was drawn to the order dated 04.10.2006 in the same matter where it has been specifically recorded that bank has already received entire compromise amount in full and final satisfaction to its claim and bank had already filed a letter dated 19.09.2003 to the effect that entire compromise amount has been received. It was argued that therefore it stands established that the plaintiff was not in any financial bad condition on 28.01.2004, Exb.PW1/D1 or any date prior or after that and there is no force in the submissions of the defendant that plaintiff did not execute the formal agreement to sell as he was trying to save the suit property or sale consideration because of the pending litigation in Debt Recovery Tribunal or had ever agreed to sell the suit property to the defendant because of the aforestated reasons.

99 Ld. Counsel for plaintiff has also argued that no crossexamination has been conducted by the defendant with respect to non receipt of notice of termination and none of the witnesses has denied receipt of notice of termination and prayed for decreeing the suit in favour of plaintiff and against the defendants by imposition of heavy cost. 100 Arguments heard. Record perused carefully.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...50 of 96 : 51 :

ISSUE WISE FINDINGS :

Issue No.1 : "Whether the defendant is not a tenant in respect of third floor at 39, Sadhna Enclave, New Delhi? OPD"

101 Defendant has objected that onus of this issue should not have been placed on the defendant as it is the case of the plaintiff that the defendant is in possession of suit property in the capacity of a tenant and he should have proved the same. I concur with the arguments of Ld. Counsel for plaintiff that Section 109 of Evidence Act says that when the question is whether the persons are landlord and tenant and it has been shown that they have been acting as such, the burden of proving that they do not stand to each other in the said relationship is on the person who affirms it. Since the defendant has been deducting TDS on the said payment of rent, it was for it to prove or to call for best evidence to prove that it is not the tenant. Otherwise also the argument of the defendant that onus of proving this issue was wrongly placed on the defendant has lost its relevance in view of the fact that both the parties have led their evidence on this aspect.

102 Defendant has contended that it is not the tenant with respect to suit property. Attention was invited to Para 2 of the plaint where it is stated that the defendant took possession of the structure on or about 01.04.2004 and to Para no.3 of plaint where it is stated that defendant starting paying rent for the suit property @ Rs.15000/ per month after Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...51 of 96 : 52 :

deducting TDS and became a month to month tenant. It was argued that plaintiff has not explained as to what was the status of the defendant from 2004 to 2006. 103 A perusal of Para 1 of the plaint reveals that plaintiff has submitted that suit property was let out to defendant company w.e.f. 01.04.2006. In Para no.3 of plaint where it is stated that defendant starting paying rent for the suit property @ Rs.15000/ per month after deducting TDS and became a month to month tenant. Further in Para 11 of the plaint it is stated that cause of action accrued in favour of plaintiff and against the defendant on 01.04.2006 when the defendant put in possession of the 3rd floor of the property (i.e. the suit property) and it arose when the defendant started paying rent @ Rs.15000/ per month to the plaintiff. Thus there is consistency in the statement of the plaintiff that tenancy commenced from 01.04.2006 in Para 1, Para 3 and Para 11 of the plaint. The inconsistency or contradiction has been stated by defendant to that in Para 2 of the plaint, plaintiff has submitted that defendant took possession of the structure on or about 01.04.2004. However, the plaintiff has specifically elaborated in Para 2 itself that in December, 2002 at request of Sh. O.P. Aggarwal plaintiff agreed to his proposal for raising a temporary construction on 2 nd floor of property bearing no.39, Sadhna Enclave, New Delhi on the condition that some funds are advanced to him for raising the temporary construction to meet a part of finances required. Plaintiff has also stated that on the said O.P. Aggarwal agreeing to the same, plaintiff started construction in early part of 2003 and completed the same by March, 2004.

When the said O.P. Aggarwal was asked to take possession, plaintiff also told him that he Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...52 of 96 : 53 :

shall not charge any rent for first two years in return of the money advanced to him. It is also stated that the said O.P. Aggarwal, who was the real controlling figure of defendant company wanted the newly constructed temporary structure on 3rd floor i.e. the suit property to be let out to defendant company and defendant took possession of the structure on or about 01.04.2004. In my considered opinion, plaintiff has elaborated and explained that because of mutual understanding between the said O.P. Aggarwal and the plaintiff, no rent for the first two years was charged by the plaintiff from said O.P. Aggarwal as he had advanced the money for raising of the temporary structure i.e. the suit property. Possession of the suit property was handed over to defendant on or about 01.04.2004 at the request of said O.P. Aggarwal and it was between him and the plaintiff to have not charged anything from defendant company for the said possession of the property by defendant in view of the money received by the plaintiff as an advance from the said O.P. Aggarwal. In view of these submissions, taking of possession by defendant in itself does not amount to creation of tenancy in its favour from April, 2004 and as pointed out in Para 11 of the plaint that the tenancy was created when the possession of the defendant in the suit property was coupled with payment of rent of Rs.15000/ per month after deducting tax at source to the plaintiff by the defendant from 01.04.2006.

104 Plaintiff in his affidavit of evidence has also reiterated that suit premises were let out to defendant company in April, 2006. Plaintiff in his crossexamination conducted on 08.10.2010 has specifically stated that he had never agreed to sell the terrace right of the Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...53 of 96 : 54 :

2nd floor and no one had approached him for the same.

105 Defendant in its WS has submitted that in the month of October, 2002 the plaintiff approached its sister concern, Earthtech Enterprises Limited to sell the roof rights of 2nd floor of property bearing no.39, Sadhna Enclave, New Delhi. However, Earthtech Enterprises Limited told the plaintiff that it is interested in purchasing the roof right of the said 2nd floor for its sister concern i.e. the defendant but was not in a position to pay entire sale consideration in lump sum upon which the plaintiff suggested that Earthtech Enterprises Limited could pay in installments. Defendant has submitted that plaintiff impressed upon Earthtech Enterprises Limited that even he could not keep large amount in his bank account as there was apprehension that his bank account may be attached in the pending proceedings with the bank and subsequently defendant learnt that in the pending proceeding in Debt Recovery Tribunal in OA No.804/95 filed by Bank of Maharashtra, plaintiff had been arraigned as defendant no.2 and some company matters were also pending the High Court of Delhi.

106 Defendant has also submitted that thereafter on negotiations an oral agreement was entered into between Earthtech Enterprises Limited and the plaintiff and the consideration for the suit premises was fixed at Rs.60 lakhs alongwith construction cost and it was agreed that Earthtech Enterprises Limited shall start making payment in installments of Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...54 of 96 : 55 :

Rs.11,000/ per month by cheque to plaintiff which will be adjusted towards part payment of the sale consideration but possession of the roof of 2 nd floor would continue to remain with the plaintiff. A perusal of crossexamination of plaintiff on 08.10.2010 reveals that he has deposed that he never approached defendant on anyone else for selling the same. Plaintiff in his crossexamination conducted on 15.11.2010 has also stated that there was no sale consideration fixed by any agreement for the roof of 2nd floor.

107 Defendant in its WS has referred to an oral agreement of sale between Earthtech Enterprises Limited and the plaintiff and has submitted that therefore it is not in possession of the suit property as a tenant. However, defendant has not filed any document to show that Earthtech Enterprises Limited had entered into the said oral agreement on behalf of the defendant. The oral agreement, if any, was allegedly executed between Earthtech Enterprises Limited and plaintiff. It is not understandable as to how defendant could take benefit of the said alleged agreement. Defendant and Earthtech Enterprises Limited are two distinct and separate legal entities and in absence of any written agreement by Earthtech Enterprises Limited in favour of defendant, or any authorization by defendant in favour of Earthtech Enterprises Limited, defendant cannot rely on the alleged oral agreement between Earthtech Enterprises Limited and the plaintiff or the alleged payments made by Earthtech Enterprises Limited to plaintiff or M/s Art Forum.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...55 of 96 : 56 :

108 Defendant has submitted in its WS that there was a clear understanding between Earthtech Enterprises Limited and plaintiff that defendant could start construction of the 3rd floor after some material payment was made by defendant to the plaintiff. Defendant has submitted that plaintiff told the defendant that he wanted to help his daughter and suggested that Earthtech Enterprises Limited could pay a sum of Rs.11000/ per month w.e.f. 14.10.2002 in the name of M/s. Art Forum which was said to be run by his daughter and that it was agreed that the same would be treated as part payment of total consideration of Rs.60 lakhs. Defendant and / or Earthtech Enterprises Limited is contended to have no privity of contract with said Art Forum. Defendant has submitted that Earthtech Enterprises Limited agreed to the suggestion of the plaintiff and starting paying Rs.11,000/ per month w.e.f. 14.10.2002 by cheque to M/s. Art Forum which was later increased to Rs.20,000/ per month from April, 2003 till July, 2008 for and on behalf of defendant. Defendant in its arguments has referred at length about the Art Forum and to these payments of Rs.11,000/ and subsequently Rs.20,000/ to be a part of sale consideration for and on behalf of defendant. 109 Plaintiff has specifically denied of any such mutual understanding between him and the defendant in his replication. The objection taken by the defendant with respect to not explaining the understanding referred to in Para 13 of reply on merits in replication is unsustainable as plaintiff has denied to the said alleged mutual understanding of defendant with plaintiff with respect to payment of consideration amount of purchase of suit property in installments by the defendant. Rather plaintiff has specifically denied to have Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...56 of 96 : 57 :

executed any agreement to sell with respect to suit property and has also specifically relied on bar of estoppel against the defendant.

110 Plaintiff has submitted that the said payments were made towards hire charges of fitting and fixtures installed on 2 nd floor of the suit premises. Defendant has denied the same, however, plaintiff has filed certified copy of Hire Charges Agreement dated 31.03.2003 i.e. Exb.DW2/X7, which is executed between Earthtech Enterprises Limited and M/s. Art Forum and bears seal of Earthtech Enterprises Limited signed by Avdhesh Singh on behalf of Earthtech Enterprises Limited on each page and one Sumeet Maan Singh on behalf of Art Forum.

111 Defendant has argued that plaint or replication finds no mention of Hire Purchase Agreement. I find no reason for the said mentioning to have been made by the plaintiff. The said agreement has been signed between Earthtech Enterprises Limited and M/s Art Forum and the plaintiff has filed suit against the defendant company and the said Hire Purchase Agreement is not relevant for the same. Defendant has referred to cross examination of plaintiff conducted on 15.11.2010, where plaintiff has deposed that he cannot say what were the fitting and fixtures provided by Art Forum to Earthtech i.e. Earthtech Enterprises Limited on 2nd floor as it had been leased out by his daughter and has referred to the contradiction of plaintiff in the very next statement where he stated that his daughter Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...57 of 96 : 58 :

never dealt with the defendant or with Earthtech. However, I find no discrepancy in the said two statements as Agreement of Hire and Purchase has been signed by Sumeet Man Singh on behalf of Art Forum and in view of the same it can be believed that daughter of the plaintiff never dealt with the defendant or Earthtech Enterprises Limited as Art Forum is an entity separate from the daughter of plaintiff.

112 The TDS certificates with respect to these payments by cheques reflect that payment was made by Earthtech Enterprises Limited to Art Forum and nature of payment is shown as 194 C (Contractor). U/s 194 C of Income Tax Act, tax on payments to contractor is deducted and TDS certificates are statutory documents required by law of Income Tax to be reduced to the form of a document and any evidence of any oral agreement or statement for the purpose of contradicting, varying, adding to or subtracting from its terms is inadmissible u/s 92 of Evidence Act.

113 Payment of Rs.20,000/ was made to M/s Art Forum towards Hire Purchase Agreement filed by plaintiff and is admittedly not reflected in the account of defendant company. If the said payment would have been towards purchase of suit property, defendant company is bound to debit the same in its books of account as required u/s 230A of Income Tax Act and section 230A does not require any tax to be paid towards payment made for sale consideration. Defendant has not shown the debiting of the said amount in its Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...58 of 96 : 59 :

books of accounts thus the defence raised by the defendant that the amount of Rs.20,000/ was paid towards sale consideration is untenable.

114 Defendant has relied on judgment reported as Ishwar Dass Jain Vs. Sohan Lal, AIR 2000 SC 426 and Gangabai Vs. Chhabubai, AIR 1982 SC 20 where it was held that the bar imposed by sub section (1) of Section 92 of Evidence Act is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is the sham. However, in my considered opinion, the judgment reported herein does not apply to the facts of the case as TDS certificates are not the transactions between any individual parties but by a legal entity to the Income Tax Authorities and nobody can plead that statutory documents were executed without intending to rely upon the same and it will be travesty of justice, if courts of justice accept such submission that statutory documents were sham transactions.

Accordingly, the submissions of defendant with respect to payment made to Art Forum cannot be taken into consideration in view of Section 92 of Evidence Act. Further the said TDS certificates in any ways do not find mention of defendant and in absence of any document executed by Earthtech Enterprises Limited in favour of defendant or by defendant authorizing Earthtech Enterprises Limited to make payment on its behalf, the submissions of the defendant hold no water and are not tenable and accordingly the attention drawn to cross examination of PW1 and other witnesses with respect to payments made to Art Forum by Earthtech Enterprises Limited and the contradictions brought to the notice of the court, if any, Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...59 of 96 : 60 :

are not being considered in view of bar of Section 92 of Evidence Act. Accordingly, the objection of the defendant of not producing the best evidence by the plaintiff in support of payments made by Earthtech Enterprises Limited to the Art Forum in respect of purchase of paintings is not sustainable as the plaintiff has not filed the present suit against Earthtech Enterprises Limited but has filed the present suit against the defendant. 115 Defendant has submitted that it paid a material sum of Rs.5 lakhs in cash on 29.04.2005 to plaintiff under a valid cash receipt duly signed and executed by plaintiff and accordingly plaintiff handed over physical possession of roof of aforesaid 2nd floor to the defendant for construction over the said roof which it began in May, 2005. It is at this point that defendant has submitted that as agreed between the parties, the defendant started construction over the roof of 2nd floor and in terms of oral agreement, plaintiff executed a formal agreement to sell on cash receipt - cum - agreement dated 15.09.2005 when a further material sum of Rs.10 lacs was paid by the defendant towards the part payment of total sale consideration and the said receipt - cum - agreement has been duly signed by both the parties and the plaintiff has thus accepted the said sum of Rs.10 lacs as part payment out of balance sale consideration as plaintiff could not execute an agreement to sell due to pending proceedings in DRT. The defendant has submitted that plaintiff has admitted the receipt of these two payments in his crossexamination.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...60 of 96 : 61 :

116 Defendant argued that in Mark 'A', plaintiff has admitted his signatures as well as amount of Rs.10 lakhs in his crossexamination conducted on 15.11.2010 and has denied rest of the contents of Mark 'A' and accordingly Mark 'A' stood proved. It was also argued that plaintiff has admitted his signatures on Mark 'X' as well as the receipt of Rs.5 lakhs in his crossexamination conducted on 15.11.2010 and accordingly Mark 'X' also stood proved. Defendant submitted that PW1 in his crossexamination conducted on 15.11.2010 admitted his signatures on Mark 'A' at point X as he stated "I identify my signatures on Mark 'A' at point X" and "It is correct that the amount of Rs.10 lakh was written at the time when I signed this document". It was argued that neither the replication nor the affidavit of evidence makes any mention of receipt of these Rs.10 lakhs or of the other 2 payment of Rs.5 lakhs each and payments through cheques made by Earthtech on behalf of defendant to Art Forum towards part payment of sale consideration of suit property nor anything has been put across to witnesses with respect to the said payment. A perusal of the crossexamination reveals that plaintiff has only admitted the signatures and the amount of payment mentioned on Mark 'A' and Mark ' X', however the admission is only with respect to Gallery account and PW1 in his crossexamination has specifically stated that he has never agreed to sell the suit property and has also denied that the payment made by Earthtech Enterprises Limited to Art Forum was by way of sale consideration. Further PW1 has specifically stated that he identified his signatures on Mark 'A' but the same had been fabricated later on and stamp of the defendant had been put on his name later on at the point M and only gallery account was written at point A and everything else has been added later on. He had also stated that there was no noting on Mark 'A'. Further, he had deposed that Mark 'X' bears his signatures but Mark 'X' has Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...61 of 96 : 62 :

been fabricated subsequently as there was no stamp of defendant company at point 1. Thus, these receipts were not proved on basis of admissions and accordingly could not be marked as exhibits and required to be proved by the defendant. The claim of the defendant is based on receiptcumagreement dated 15.09.2005, however, defendant did not take steps for summoning of the original record from the Hon'ble High Court of Delhi filed in another matter between the same parties and thus the said agreement / receiptcumagreement was not proved by the defendant.

117 Defendant has argued that plaintiff has referred in Para 6 of the plaint about defendant making false claims of having agreed with the plaintiff to purchase the suit premises but has not referred to the filing of the suit by the defendant against the plaintiff for specific performance prior to filing of the present suit and the plaintiff had already been served with the notice of the said suit prior to filing of this suit. The said objection of the defendant is unfounded as plaintiff in Para 6 of the plaint has specifically stated that defendant has filed a suit of specific performance of an alleged agreement of sale. Thus, the plaintiff has not concealed about the filing of the suit for specific performance by the defendant.

118 Defendant in one part of Para 2 of reply on merits in WS has submitted that oral agreement with respect to sale of roof rights of aforesaid second floor was executed Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...62 of 96 : 63 :

between Earthtech Enterprises Limited and the plaintiff and in the next para has submitted that plaintiff executed a formal agreement to sell on cash receipt - cum - agreement dated 15.09.2005, mark 'A'. The said receipt bears the seal of the defendant. It is not understandable as to how and when the oral agreement, if any, between the Earthtech Enterprises Limited and plaintiff came to an end and how and when defendant executed another Agreement to Sell with the plaintiff with respect to the same property. 119 Further, all along the said receipt has been relied upon by the defendant as an Agreement to Sell and in view of section 17(1A) of Registration Act, the said receipt cannot be admitted into evidence by virtue of section 49 of Registration Act and as also observed in Sunil Kapoor Vs. Himmat Singh & Ors, 167 (2010) DLT 806. It was held by Hon'ble High Court of Delhi that "With effect from 24th September, 2001, an agreement to sell of immovable property where under the possession is delivered in part performance can only be by a registered instrument bearing the prescribed stamp duty, i.e. on 90% of the total agreed sale consideration."

"...., the defence of an agreement to sell is not a legal defence available to the petitioner in the suit for ejectment."

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...63 of 96 : 64 :

120 However, at the stage of final arguments, defendant argued that defendant has proved the receipt of money by the plaintiff from the defendant on the basis of admissions of the plaintiff which is covered by explanation to Section 17 of Registration Act and has argued that therefore this receipt is admissible. The court will not go into the merits of this argument as defendant has proved only receipt of money by plaintiff but not the receipt of money by the plaintiff on account of alleged sale transaction. Rather the plaintiff has specifically stated that the said receipts are forged and have been interpolated. Further, Mark 'A' as well as Mark 'X' speaks of Gallery Account but none of the witnesses of defendant has been able to explain as to what it meant by Gallery Account. Perusal of cross examination of DW.2, Sh. Mahavir Pd. Mishra on 01.05.12 reveals that a question was put to him as "Please tell the court that what is meant by the word gallery in Exb.DW.2/2 and Exb.DW.2/3?" to which he replied "It was for the purposes of remembrance that the word 'Gallary' was mentioned as separate payments were being made for the 2nd and 3rd floor of 39, Sadhna Enclave. The word Gallary referred to payment for 3 rd floor only. I am not sure whether the word Gallary was only mentioned for payment made for roof of the 2 nd floor."

Another question was put to him "I put it to you that the word Gallary is also mentioned in receipts pertaining to 2nd floor of 39, Sadhna Enclave in Exb.DW.2/X8 to Exb.DW.2/X14" to which he replied "It is quite possible that I may have used the word Gallary for payment of 2nd floor also." Thus, the said receipts besides being inadmissible cannot in any manner be said to have recorded any transaction of sale of suit property. The payments made to Gallary Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...64 of 96 : 65 :

account cannot be said to be payments towards sale consideration of suit property. 121 Ld. Counsel for defendant has argued that none of its witnesses was cross examined by the plaintiff with respect to the alleged landlord tenant relationship between the parties despite the defendant specifically pleading in the WS that they were in possession of the suit property on the basis of an oral agreement to sell. I find no force in the said objection as the plaintiff has asked at length the questions to the witnesses of defendant with respect to defendant being in possession of the suit property in the capacity of tenant as his evident from the cross examination of DW1, who on being shown the Exb.PW1/1 colly admitted that defendant was paying rent to the plaintiff. Even DW2 was confronted with the questions about the alleged payment of sale consideration by the defendant to the plaintiff to have been actually made to M/s. Art Forum reflected in TDS certificates Exb.DW2/X2, X3, X4, X5 and X6 to nullify the submission of the defendant that the said payment was towards sale consideration. Evidence of DW3 lost its relevance after he was unable to produce the original authority letter dated 29.09.2000 referred to in Para 3 of his affidavit of evidence.

Similarly DW4 was confronted with the TDS certificates by the plaintiff to prove that the nature of payment is rent and DW5 was specifically put questions with respect to who purchased the material for constructing the suit property to which he replied that the same was purchased by the plaintiff. Thus, the plaintiff has cross examined the witnesses of defendant to not only to disprove the submissions of the defendant but also to prove that defendant is in occupation of the suit property in the capacity of tenant. Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...65 of 96 : 66 :

122 The argument of the defendant that plaintiff has not traversed about the receipt of said payments for purchase of the suit property in the replication is also incorrect as plaintiff has specifically stated in the replication that at no point of time, the plaintiff ever agreed to sell the property or any part thereof to the defendant orally or otherwise and has specifically denied contents of para No.1 to 3 of reply to preliminary objections. Plaintiff in Para No.1 to 3 of reply on merits has specifically submitted that the payment was with respect to other transactions between the parties regarding procurement of art objects by the plaintiff for and on behalf of defendant and emphatically denied that the amount allegedly referred in Para under reply was received by the plaintiff being a part sale consideration or otherwise.

Defendant has relied on Anant Construction (P) Ltd. Vs. Ram Niwas, 1994 IV AD (Delhi) 185; where it is stated that principle of Order VIII Rule 5 CPC has been extended to non traverse in the replication of the averments made in the WS and this in case of denial being evasive in the replication, the kind of nontraverse has to be taken against the plaintiff. However, in view of specific denial by the plaintiff and explaining the reasons for the said payment by the plaintiff, the judgment referred herein does not support the submissions of defendant.

123 The defendant has referred to Debt Recovery Tribunal proceedings which is an order of DRT dated 28.01.2004, Exb.PW1/D1 and the letter dated 09.03.2004 written by Bank of Maharashtra to Earthtech Enterprises Limited. Exb.PW.1/D had allowed Bank of Maharashtra to sell another property of the plaintiff's company / firm and if the Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...66 of 96 : 67 :

outstanding claim was not recovered, then bank was authorized to sell the suit premises and had also attached the alleged rent amount being paid to the plaintiff. Defendant has also relied on a letter dated 09.03.2004 addressed to Earthtech Enterprises Limited enclosing the said order of Debt Recovery Tribunal whereby Earthtech Enterprises Limited was advised to deposit the amount being paid to the plaintiff with the said bank in compliance of order dated 28.01.2004, Exb.PW1/D1. In view of Exb.PW.1/D and letter dated 09.03.2004, defendant has argued that plaintiff had not executed an Agreement to Sell despite receipt of Rs.10 lacs on 15.09.2005 as recorded in Mark 'A' as well as after receipt of Rs.5 lacs on 24.11.2005.

Defendant has also submitted that plaintiff had agreed to accept sale consideration in installment to avoid receiving lump sum amount so as to save it from being attached in Debt Recovery Tribunal proceedings. However, it is observed that letter dated 09.03.2004 written by Bank of Maharashtra to Earthtech Enterprises Limited was written in pursuance of the order of DRT dated 28.01.2004, Exb.PW1/D1. The said order was passed in absence of the plaintiff who was defendant no.2 in that matter.

124 Attention of the court was drawn by ld. Counsel for plaintiff to the order of Debt Recovery Tribunal dated 4.10.2006 to controvert the submission of the defendant that plaintiff was in heavy debts and therefore payment was made in installments at request of plaintiff. In the said order Debt Recovery Tribunal has observed that:

"Bank's counsel submits that Bank had already received entire compromised amount in full and final satisfaction of its claim.... Record shows that the bank has Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...67 of 96 : 68 :

already filed a letter dated 19.09.2003 to the effect that entire compromise amount has been received."

125 It is observed from the order dated 04.10.2006 of Debt Recovery Tribunal in the same matter that bank had already received entire compromise amount in full and final satisfaction to its claim and bank had already filed a letter dated 19.09.2003 to the effect that entire compromise amount has been received. Thus, the plaintiff was not in any financial bad condition on 28.01.2004, Exb.PW1/D1 or any date prior or after that and there is no force in the submissions of the defendant that plaintiff did not execute the formal agreement to sell as he was trying to save the suit property or sale consideration because of the pending litigation in Debt Recovery Tribunal or had ever agreed to sell the suit property to the defendant because of the aforestated reasons. It might not have been in the knowledge of the defendant that plaintiff has already made the payment in the matter before Debt Recovery Tribunal however plaintiff obviously knew about the same and could not have therefore asked the defendant to make payment in installments. Plaintiff in his cross examination on 08.10.2010 has specifically stated that it is incorrect that because of any order of Debt Recovery Tribunal he could not accept any large amount by way of cheque and also stated that he had huge amount lying in his account. Thus, defendant has miserably failed to prove any of its submissions.

126 Defendant has brought to the notice of the court the discrepancies with regard to date of completion of construction and has also submitted that it was the defendant Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...68 of 96 : 69 :

who had constructed the suit property on the roof of 2nd floor. While plaintiff in Para 2 of the plaint has submitted that construction was completed by March, 2004, defendant in WS has submitted that defendant started construction over the roof of 2nd floor and in terms of the oral agreement in May, 2005. Defendant has referred to crossexamination of plaintiff conducted on 15.11.2010 whereby he has deposed that the construction was complete on 01.04.2006. He has also deposed that it is incorrect to suggest that the possession of roof of 2 nd floor was handed over to the defendant company on 29.04.2005 and deposed that he had carried out the construction. Defendant in Para 2 of reply on merits of WS has submitted that the interior decoration of the 3rd floor (suit property) was completed some time in March, 2006 and the defendant started using the said floor as its office. There is discrepancy with respect to date of completion of construction. DW5 in his affidavit of evidence has submitted that he was paid different amounts from DW2 Mahavir Pd. Mishra since May, 2005 till December, 2005 for carrying out the construction. A perusal of crossexamination of DW2 reveals that he had submitted that he had joined defendant company as Director from January, 2005 till September, 2005. It is not clear as to in which capacity did he continue to make payment till December, 2005 and DW5 in his affidavit has nowhere stated that these payments were made by DW2 on instructions of defendant company. He has deposed in the affidavit that he often met the plaintiff on the suit premises while carrying out the construction work. DW5 in his cross examination conducted on 01.05.2012 submitted that the defendant company was making the payment for material and labour. However, he had no record of those payments and in the later part he deposed that the material for constructing the roof of the 3 rd floor i.e. suit property was purchased by the plaintiff. He also stated that the work was started by Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...69 of 96 : 70 :

plaintiff and DW5 completed the job. In view of these observations, on preponderance of probability, in my considered opinion, the construction work was carried out at expenses of the plaintiff and discrepancies with respect to completion of construction work does not contradict the submission of the plaintiff that the suit premises were let out to the defendant company on 01.04.2006 more so in view of submission of defendant in the WS that the interior decoration of the 3rd floor (suit property) was completed some time in March, 2006 and the defendant started using the said floor as its office. Thus, defendant has failed to establish that it constructed the suit property.

127 Plaintiff has submitted that defendant is in possession of the suit property in the capacity of a tenant since 01.04.2006. Plaintiff has also submitted that defendant started paying rent for the suit property @ Rs.15000/ per month after deducting TDS and became a month to month tenant of the suit property. Plaintiff has filed copies of TDS certificates reflecting payment of Rs.15000/ per month by the defendant to the plaintiff and TDS has been deducted u/s 194 I of Income Tax Act showing the nature of payment as rent for the period 01.04.2006 to 31.03.2007, 01.04.2007 to 31.03.2008 @ Rs.15000/ per month, Exb.PW 1/1 colly.

128 Defendant has admitted Exb.PW.1/1 colly but has submitted that the said payment from 06.04.2006 to August, 2008 was to be adjusted towards the part payment Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...70 of 96 : 71 :

of the total consideration of the suit property and has also referred to schedule of the payments made to the plaintiff by the defendant. The said schedule of payments has been prepared by the defendant and the defendant has not proved the same and cannot be taken into consideration. Otherwise also, payment schedule filed by the defendant is not an extract from any account book and is inadmissible u/s 34 of Evidence Act and the same is not a document maintained in ordinary course of business.

129 Plaintiff in his affidavit of evidence has deposed that the said payment was made by defendant towards the rent and the amount of tax deducted by defendant company was deposited by with Tax Authority to credit of plaintiff against his PAN number in accordance with law. Plaintiff in his cross examination on 15.11.2010 deposed that the rent of Rs.15,000/ per month was paid to him by the defendant and the TDS certificate has been issued to them. He also denied that the amount of Rs.15,000/ was paid to him towards sale consideration.

130 DW1 in his cross examination conducted on 02.05.2011 has submitted that the suit property was purchased by the defendant and that he could not say if the said purchase has been reflected in the books of account of the defendant company. At first he denied that defendant company has been tenant in the suit property @ Rs.15,000/ per month, wherein he had stated:

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...71 of 96 : 72 :

"It is wrong to suggest that Firstcorp International Ltd. has been a tenant in respect of 3rd Floor, Sadhna Enclave, New Delhi at the monthly rent of Rs. 15,000/ (Rupees Fifteen Thousand only) per month."

131 However, after the witness made the above statement he was confronted with TDS Certificate on record. On seeing the said TDS Certificates, the DW1 stated as under: "It is correct that, after seeing Exb.PW1/1 colly that the defendant company i.e. Firstcorp International Ltd. was paying rent of Rs. 15,000/ ( Rupees Fifteen Thousand only) per month after deducting tax at source which was deposited with the Income Tax Authority and Certificates were issued by the said defendant company to the plaintiff. It is also correct that the nature of payment shown in these certificates is mentioned as "rent". Thus, after seeing TDS certificates i.e. Exb.PW1/1 colly he stated that it is correct that the defendant company was paying rent of Rs.15,000/ per month after deducting TDS which was deposited with Income Tax Authorities and the certificates were issued by the defendant company to the plaintiff. He also admitted that the nature of payment is mentioned as rent. DW1 in his cross examination on 24.01.2012 has also submitted that apart from Mark 'A' there is no agreement between the parties with respect to purchase of suit property and this court has already observed that the defendant has failed to prove Mark 'A'. DW4 in his cross examination conducted on 01.05.2012 submitted that the amount of Rs.30,000/ per month was being made by defendant company towards part payment of sale consideration Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...72 of 96 : 73 :

but TDS certificate was issued showing the payment as rent. He further admitted that under the provisions of Income Tax Act, a tenant company is duty bound to deduct income tax and deposit the same with the Income Tax Authority against the PAN number of the plaintiff and benefit of the tax so deposited after deduction if claimed by the plaintiff. Both DW2 and DW4 stated that they cannot say whether the entry of purchase of suit property was made in the books of accounts of the defendant company.

132 Defendant argued that sections 91 & 92 of Evidence Act cannot be relied upon by the plaintiff with respect to TDS Certificate as plaintiff has not produced any Lease Deed between the parties and if an oral tenancy is created, there cannot be any bar of sections 91 & 92 of Evidence Act and TDS certificates can only be relied upon or looked into if they are part of any lease agreement. TDS was deducted under section 194 (I) of Income Tax Act which defines rent in its explanation (i) and mention of the same in TDS certificates means Tax was paid by defendant in respect of tenancy. Under section 198 of Income Tax Act, the said amount is deemed to be income received by the landlord and section 199 mandates that credit for the same should be given to landlord. Section 200 provides that tax should be deducted and deposited with Central Government to credit of landlord. Section 201 provides consequences of nondeduction of tax against assessee in default and section 271(c) provides penalty. Section 203 provides that TDS certificate needs to be issued for tax deducted. In view of these provisions, I find no substance in the said submission of the defendant as TDS certificates are statutory documents required by law to be reduced in the Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...73 of 96 : 74 :

form of writing / document and are squarely covered u/s 91 & 92 of Evidence Act. 133 There are TDS Certificates for the period 1st October, 2002 till 31st March, 2008 which have been issued by the defendant company to the Art Forum which show nature of payment to be payment for contractor. TDS certificates in favour of M/s. Art Forum where tax has been deducted u/s 194 C of Income Tax Act show payment to contractors towards fitting and fixtures and the same cannot be said to have been made to a seller. The said TDS certificates reflect deduction of tax in respect of payment made to Art Forum by Earthtech Enterprises Limited and as held in earlier part of this judgment, these TDS certificates are irrelevant as Earthtech Enterprises Limited is a entity distinct and separate from the defendant company.

134 There are TDS Certificates issued by defendant company to the plaintiff from April 2006 to August 2008, Exb.PW 1/1 colly which show the nature of payment to be rent. TDS Certificates from April 2006 to August 2008 have been issued as required by Section 203 of the Income Tax Act, 1961. Section 194I of the Income Tax Act requires a tenant while paying rent to his landlord is required to deduct tax at source at the rate of 15.75% if payee (landlord) is an individual or a Hindu Undivided Family.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...74 of 96 : 75 :

135 After deducting the tax, the defendant is required to deposit the amount of tax so deducted with the Income Tax Authorities in accordance with the Rule 31 (1)(b) and issues a certificate to the landlord in which it should be mentioned the amount of tax deducted and deposited with a Central Government and also mention the "nature of payment" i.e. the amount out of which the tax is deducted and deposited. All these are in a statutory prescribed form namely 16A. In compliance with the requirements of Section 203, Rule 31(1)

(b) of Income Tax Rules. The defendant company furnished to the plaintiff each financial year a certificate in form 16A in which it is stated that the said defendant has been paying to the plaintiff each month a sum of Rs. 15,000/ as rent out of which they have been deducting a sum of Rs. 4725/ as tax and depositing the same with the Central Government account to the credit of the plaintiff, Kuljit Singh Butalia of 39, Sadhna Enclave, New Delhi. 136 At the cost of repetition, it is pertinent to mention that TDS Certificates specifically state the nature of payment to be rent and TDS certificates have been admitted by Defendant Company. The defendant company has also mentioned the PAN number of the plaintiff in the said certificate and have in some of the certificates mentioned in the column requiring the mentioning of nature of payment as "rent" and in some of the certificates they have also mentioned in Section 194I, showing that they are consciously paying 15,000/ per month on account of the "rent" to the plaintiff and deducting the tax at the rate of Rs. 15.75% amounting to Rs. 4725/ which has been deposited to his credit with the Central Government.

Thus tax deducted at source for these months has been deposited by the defendant against Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...75 of 96 : 76 :

the Permanent Account Number of the plaintiff and the Income Tax Authorities have given the plaintiff due credit for the same. These certificates therefore establish that the defendant company is a tenant under the plaintiff in respect of 3rd Floor of 39 Sadhna Enclave, New Delhi, and has been deducting tax as required by the Section 31(1)(b) of the Income Tax Act and depositing the same with the Central Government as required by Section 203 and Rule 31(1)(b) of the Income Tax Rules and have also been issuing certificates in statutory form 16A.

137 Defendant has relied on the receipts/vouchers for various amounts paid in cash to the plaintiff which have been denied by the plaintiff and have been alleged to be fabricated and receipt of any payment towards sale consideration has also been denied by the plaintiff. The defendant has alleged payments in cash, one of Rs.5,00,000 in cash on 29.04.2005 under allegedly a valid cash receipt, Rs.10,00,000 on 15.09.2005 on execution of receiptcumagreement dated 15.09.2005, Rs.5,00,000 on 24.11.2005 vide cash receipt and payments through cheques to Art Forum with which it alleges it has no privity of contract, totaling to Rs.36,21,000. With respect to payments made to Art Forum, this court has already observed in the earlier part of this order that the submissions made by defendant with respect to the same being part of sale consideration is inadmissible in view of Section 92 of Evidence Act and the 3 receipts on which the defendant has relied, the defendant has been unable to prove the same.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...76 of 96 : 77 :

138 The three alleged receipts of payment towards sale consideration reflect that payments were made to gallary account and accordingly payment made to gallery account cannot be considered to be sale consideration of suit property. In crossexamination of DW.2, Sh. Mahavir Pd. Mishra on 01.05.12, a question was put to him as "Please tell the court that what is meant by the word gallery in Exb.DW.2/2 and Exb.DW.2/3?" to which he replied "It was for the purposes of remembrance that the word 'Gallary' was mentioned as separate payments were being made for the 2nd and 3rd floor of 39, Sadhna Enclave. The word Gallary referred to payment for 3rd floor only. I am not sure whether the word Gallary was only mentioned for payment made for roof of the 2 nd floor." Another question was put to him "I put it to you that the word Gallary is also mentioned in receipts pertaining to 2 nd floor of 39, Sadhna Enclave in Exb.DW.2/X8 to Exb.DW.2/X14" to which he replied "It is quite possible that I may have used the word Gallary for payment of 2nd floor also." Thus, defendant has been unable to explain the word gallary account on the said receipts and the said receipts only substantiate the submission of the plaintiff in the replication that the payments reflected in the receipts were made towards other transactions between the parties regarding procurement of art objects by the plaintiff for and on behalf of the defendant. 139 Defendant has submitted that plaintiff has admittedly received Rs.15 lakhs but has not explained the same. During the cross examination of plaintiff he admitted the receipt of the payment of Rs.10,00,000 however he also stated that it was for sale of a painting by Shanti Dave and also stated that he can produce him in the court. Plaintiff Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...77 of 96 : 78 :

specifically said that he did not enter into any agreement with the defendant company on receipt of Rs. 10 lakhs. He admitted his signatures on the receipt of Rs. 10 lakhs at point A but stated that the same has been fabricated subsequently as there was no stamp of the defendant company at point I ands submitted that the receipt has been interpolated. Plaintiff has also admitted receipt of Rs. 5 lakhs but said that the same was received by him from Sh. O.P. Aggarwal in his office but categorically stated that the said amount was not paid by the defendant company.

140 Plaintiff in the plaint has also admitted having received money from O.P. Aggarwal and has submitted that at request of O.P. Aggarwal, plaintiff agreed for raising a construction over the second floor which he will take on rent. Plaintiff has submitted that he had agreed to the same subject to some funds being paid in advance to him towards raising a temporary structure. On Sh. O.P. Aggarwal agreeing for the same and paying the same, plaintiff started construction in early part of 2004 and completed the same by March 2004. On completion of structure, plaintiff asked Sh. O.P. Aggarwal to take possession and also told him that he shall not charge rent for first two years in lieu of advanced money. However, at request of Sh. O.P. Aggarwal, third floor i.e. suit property was let out to defendant company.

Defendant has not summoned O.P. Aggarwal to disprove the submissions of the plaintiff with respect to said O.P. Aggarwal, however, plaintiff summoned Shanti Dave, PW3, who in his cross examination conducted on 24.05.2012 specifically stated that the painting which was delivered to O.P. Aggarwal was not meant for being sold but it was given to O.P. Aggarwal in Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...78 of 96 : 79 :

lieu of donation of Rs.10 lakhs in cash which he gave to PW3 for constructing a temple in his village. Thus plaintiff has been able to substantiate his pleadings with respect to receiving the payment of Rs.10 lakhs from the defendant towards purchase of paintings. 141 With respect to another amount of Rs.5 lakhs, plaintiff in his cross examination on 15.11.2010 submitted that the same was not paid to him by the defendant company and it was paid to him for paintings. He specifically denied that the said amount was paid to him by the defendant company as sale consideration for the suit property. As the defendant has been unable to prove the said receipts reflecting the payment of Rs.5 lakhs in Mark 'X', the submission of the plaintiff that the said receipt has been interpolated cannot be disbelieved and the said amount can be believed to have been paid towards the gallary account only in view of the statements of plaintiff in his cross examination. 142 The said finding finds support from the fact that there is no statutory declaration by the defendant with the Registrar of Companies of having purchased any property. I concur with the arguments of the defendant that defendant company cannot enter into sale agreement as referred by defendant in its WS as section 209 of Companies Act mandates for a proper book of account to be maintained for amount received and expended by a company and also to specify matters in respect of which amount has been received or expended as defendant is a Public Limited Company. If defendant had invested money in Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...79 of 96 : 80 :

purchase of immovable property, it was mandatory to show that in their books of account. Section 292 of Companies Act provides in Clause B that powers to invest funds of company can be exercised only by a Board of Directors at its meeting and not by circulation. There are no such averments of convening of any Board meeting with respect to purchase of suit property or investing money in its purchase nor the defendant has filed any document for the same. The defendant's books of accounts as well as balance sheets, as admitted by the defendant too, nowhere reflect the payment of such cash towards consideration for purchasing the suit property although the defendant has alleged that plaintiff and defendant had reached an oral agreement/settlement for purchasing of the suit property by the defendant.

143 Ld. Counsel for the defendant has alleged that cash transactions are not reflected in the balance sheet. Explanation of the defendant for absence of the said entries is untenable and unacceptable and against the spirit of law. Under the provisions of Companies Act, the defendant company is required to make a statutory declaration with the Registrar of Companies of having purchased any immovable property but the defendant company has admittedly made no such declaration. Hon'ble High Court of Delhi in the suit filed by the defendant against the plaintiff and Art Forum vide its order dated 29.10.2009 while disposing off the application of the plaintiff herein asking for balance sheets of the First Corp, defendant herein, for the year ending on 31.03.2005 till 31.03.2008, has observed that:

"It is stated by Ld. Counsel for plaintiff that there was cash transaction Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...80 of 96 : 81 :

between the parties and cash transaction is not reflected in the balance sheet of the plaintiff company. Hence, it is stated that balance sheet for the period in question, which is being asked by the defendant does not reflect the transaction in question."

144 The quoted observation of Hon'ble High Court of Delhi reveals that defendant has been unable to establish its case of having made the payment to plaintiff towards sale consideration in view of the mandatory requirement of Companies Act to incorporate the payment made towards purchase of any immovable property in its balance sheet.

145 Defendant has relied on a judgment titled Sultan Ahmed Vs Rashid Ahmed, AIR 1990 All 47, wherein it was held that if both parties are in pari delicto, no party can take advantage of such transaction. It was observed that where sale deed was executed by the plaintiff for the purpose of saving the property from the creditors and in that conspiracy the defendant was also a party, then both parties being in pari delicto, neither the plaintiff nor the defendant could be permitted to take advantage of such transaction. Defendant has argued that defendant and plaintiff both have committed wrongs and accordingly, none of them can be permitted to take advantage of such transaction. However, in view of observations made above, the defendant has failed to establish that he was paying sale Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...81 of 96 : 82 :

consideration in installments at insistence of plaintiff since plaintiff was under heavy debts. The documents on record clearly establish that defendant was making payment of Rs. 15,000/ as monthly rent to plaintiff. Absence of entries of the alleged payments towards sale consideration in balance sheets and accounts books of defendant and absence of statutory declaration to ROC further fortifies the submissions of the plaintiff with respect to defendant being a tenant and the payment made to be rent. Thus, in my considered opinion, the parties are not in pari delicto.

146 The defence raised by the defendant company to the fact that it has purchased the roof rights of the second floor sometime in October, 2002 stands contradicted by the TDS certificates wherein payment towards rent is shown to be Rs. 15,000 per month and nature of payment is shown as rent. The only explanation forthcoming from the defendant as to why they keep on paying rent to the plaintiff is that they were paying so on the insistence of the plaintiff because of the pending proceedings before DRT against the plaintiff. Besides the bare averment in the written statement there is nothing else on record to show purchase of any immovable property or assets at any time during the relevant period. In case such a purchase of immovable property has been made by the defendant company this would have been reflected in the balance sheet showing addition in fixed assets as per the requirements of the Companies Act. No such material has been brought on the record by the defendant. As already stated above the TDS certificates establish that the defendant company became a month to month tenant under the plaintiff with effect from 1 st April, 2006 Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...82 of 96 : 83 :

and continued to be so till July 2008 when its tenancy was terminated by the notice dated 7th August, 2008. The defendant company has also contended that they have been making cash payments towards sale consideration for the roof right purchased by him and have also produced some vouchers set to have been signed by the plaintiff in receipt of having received the such cash amounts. The plaintiff has stated in Court that he has not received even a single penny on account of sale consideration either any part or otherwise and that the vouchers are forged and fabricated by the defendant for the purpose of this case. Besides admittedly these cash payments are not reflected in the books of account or in balance sheets of the defendant company as required by Section 209 of the Companies Act, 1956.

147 The plaintiff on the basis of his submissions and documents, more so statutory documents has unerringly been able to prove that status of the defendant is that of tenant. The observations made above read with the statutory documents of TDS certificates and absence of entries in the books of accounts with respect to the payment of cash to the plaintiff or through cheques to Art Forum, towards consideration for purchasing the suit property, both admitted by the defendant too establish that defendant is tenant in the suit property.

148 In view of these observations, issue no.1 is decided against the defendant and in favour of the plaintiff and it is held that defendant is a tenant in respect of Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...83 of 96 : 84 :

the suit premises.

Issue No.2 : If issue no.1 is proved against the defendant, whether the tenancy has been validly terminated?

149 The onus to prove this issue has been placed on plaintiff. As regards termination of tenancy by notice of termination, the plaintiff in para 4 of the plaint has mentioned of the same as well as the plaintiff in his affidavit dated 2422010 (examination in chief) has stated thus : Since May, June I have been asking the defendant to vacate the premises but to no avail. I therefore got a formal notice of termination issued and sent to the defendant by registered post acknowledgment due, at its registered office, which at that time, was 504, Adhishwar Apartments, 34 Ferozeshah Road, New Delhi110001. A copy of the notice is exhibit P2. The same has been issued on my behalf by my advocate on my instructions. The postal receipt is exhibit PW1/5 showing payment of requisite postal charges. The acknowledgment card showing receipt of the letter containing the notice at defendant's office is exhibit P3. A copy of the notice was also sent to the defendant under certificate of posting photocopy whereof is Exb.P5.

150 The defendant has denied the receipt of notice of termination and has also argued that since it was not in possession of suit property as tenant, the issue of termination of tenancy does not arise.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...84 of 96 : 85 :

151 The plaintiff as his own witness appeared in Court as PW1 and was subjected to crossexamination by the learned counsel for the defendant but no question was put to him in respect of the notice of termination sent by him and proved by him in his examination in chief. Thus there is no rebuttal to his contention about termination of tenancy of the defendant by notice dated 7th August, 2008. Notice and its service on defendant by the registered post have been proved beyond doubt.

152 Apart from this assuming that the notice was served thereof on defendant is not proved, in the matter of M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha(HUF) & Anr, RFA 179/2011 decided on 25.03.11; it had been held by Hon'ble High Court of Delhi that even service of summons in a suit can be treated as a notice under Section 106 of the Transfer of Property Act, 1882. It had been further held that along with the suit, copy of the notice terminating tenancy as a document is served upon the defendant, and which once again can be treated as a notice terminating tenancy. Accordingly taking aid of Order 7 Rule 7 CPC, it had been held that in suits for possession by a landlord, technical defences with respect to notices should not be permitted as long as the 15 day period expires prior to the filing of the suit. This decision of Hon'ble High Court of Delhi was challenged by way of SLP and the same has been dismissed by the Hon'ble Supreme Court of India bearing SLP NO. 15740/2011 on 07.07.2011. In the present case also, the notice for vacation of suit property was given on 7.08. 2008 and suit is filed on 6.11.2008 and thus 15 days period had expired prior to the filing of the suit. Further, defendant was served on Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...85 of 96 : 86 :

11.11.2008. In view of the law laid down in M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha(HUF) & Anr, RFA 179/2011 decided on 25.03.11; there is valid termination of tenancy as 15 days period had expired prior to the filing of the suit as well as because service of summons in a suit can be treated as a notice under Section 106 of Transfer of Property Act.

153 In Hill Elliott & Co. Ltd. Vs. Bhupinder Singh, Vol. 1212011 DRJ, Page 438(DB), it has been held that service of notice of termination has to be presumed where it has been sent by registered post A.D. or by Speed Post or UPC or by Courier service. In the present case, the plaintiff has proved that he had sent the notice dated 7 th August, 2008 to the defendant company terminating the tenancy by the registered post A.D. as well as by under the certificate of posting.

154 It has been observed by Hon'ble High Court of Delhi in Atma Ram Properties(P) Ltd. vs. Pal Properties(India) Pvt. Ltd. and others, 91(2001) DLT438, "Coming to the service of the notice, the plaintiff has placed on record the copy of the notice sent to the defendants under section 106 of Transfer of Property Act. The plaintiff has also placed on record the postal receipts in original by which notice were sent by registered post to the defendants. The plaintiff has also produced on record the original acknowledgement received back which is addressed to Pal Properties (India) Pvt. Ltd. Address is rightly Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...86 of 96 : 87 :

mentioned as H72, Connaught Circus, New Delhi. It bears stamp and is signed by some person acknowledging the receipt of the letter. In view of these documents on record, it cannot be said that the notice was not received by the defendants. Bare denial will not serve any purpose."

155 Ld. Counsel for plaintiff argued that when this court had passed judgment on admissions in favour of the plaintiff with respect to relief of possession, the matter has been remanded back to this court on false plea of the defendant that it did not receive the notice of termination. It was contended that defendant has led no evidence to prove the nonreceipt of the notice. Ld. Counsel for plaintiff argued that defendant has made a bare denial of receipt of notice. Address of the defendant is not stated to be incorrect nor evidence has been led to show that the signatures on AD Card with respect to receipt of the notice are not that of any employee of the defendant company and there is no denial of signatures on AD Card. I find force in the said submissions of the plaintiff. The defendant has been unable to establish that he did not receive the notice of termination. 156 As per Section 27 of General Clauses Act, if the notice is addressed at the correct address then the same is deemed to have been duly served/ delivered to the addressee. In the present matter also, Copy of notice, original postal receipts of UPC and speed post, AD card in original acknowledging receipt of notice is on record. Thus in view of Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...87 of 96 : 88 :

law laid down in defendant was duly served with notice of termination and the tenancy came to an end on 31.08.2008 and thereafter the defendant has become unauthorized occupant of the suit property thereafter. In view of these observations, issue no.2 is decided in favour of the plaintiff and against the defendant and it is held that tenancy has been validly terminated. Issue No.3: "Whether the plaintiff is entitled to a decree for recovery of possession in respect of the suit property?"

157 The onus to prove this issue has been placed on plaintiff. This court has already decided issue no.1 against the defendant. Defendant has relied on an oral agreement to sell with respect to the suit property. In my considered opinion, it is important to analyse the impact of alleged agreement to sell on the said relationship. 158 Defendant has cited Aloka Bose Vs Parmatma Devi, AIR 2009 SC 1527 to plead that even an oral agreement to sell is valid and another judgment S. Kala Devi Vs V.R. Soma Sundram, AIR 2010 SC 1654, wherein it was held that an unregistered sale deed is admissible in evidence of contract in a suit for specific performance of contract. 159 Even if it be deemed that plaintiff entered into agreement to sell with the defendant, the same is unregistered and in itself does not change the status of the defendant Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...88 of 96 : 89 :

from tenant to be the owner of the siuit property. In the matter of Sunil Kapoor vs. Himmat Singh and others, 167 (2010) DLT 806, Hon'ble High Court of Delhi, has held that:

"With effect from 24th September, 2001, an agreement to sell of immovable property where under the possession is delivered in part performance can only be by a registered instrument bearing the prescribed stamp duty, i.e. on 90% of the total agreed sale consideration."

"...., the defence of an agreement to sell is not a legal defence available to the petitioner in the suit for ejectment."

"The jurisdiction, if any, to stay eviction pending a suit for specific performance is of the court where the suit for specific performance is pending and the court where the suit for ejectment/possession is pending ought not to restrain its hands merely because the suit for specific performance is pending."

160 In view of the law discussed in the matter of Sunil Kapoor vs. Himmat Singh and others(Supra), the relationship of landlord and tenant, in the facts of the present matter, continues between the parties.

161 Similar are the observations of Hon'ble High Court of Patna in the matter of Ashok Goenka vs. Chandra Bhushan Singh, 2010 (1)PLJR3317, wherein it has been held that Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...89 of 96 : 90 :

"20. It is evident from the impugned orders that the court below has not at all taken into account the effect of Section 17 (1A) of the Registration Act,1908 as inserted by the amending Act 48 of 2001. The said provision is quoted below :

Section 17 (1A) The documents containing contracts to transfer for consideration any immovable property for the purpose of Section 53 A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and other related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53A.

It is evident from the said provision that any document containing contracts to transfer for consideration, any immovable property for deriving the benefit under Section 53 A of the Transfer of Property Act, must be registered if it has been executed after the commencement of the Amending Act of 2001 and in case, such document is not registered on or after such commencement, it will have no effect for the purpose of invoking the doctrine of partperformance under Section 53 A. The doctrine of part performance protects the rights of a transferee of an agreement for sale, if he has been put in possession or continues in possession in part performance of the contract or has done in furtherance of the contract. Prior to the Amending Act of 2001, a party could claim the benefit of such possession on the basis of the doctrine of partperformance even if the agreement for sale was not registered but the same has now been specifically debarred by the Amending Act. That being the position, it is not open to the courts of law Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...90 of 96 : 91 :

to permit any such plea of possession on the basis of any unregistered document. In the present matter, despite the legal provision being to the contrary by the impugned orders of injunction, the court below has put a stamp of legality over the alleged possession claimed by the plaintiffs on the basis of an unregistered agreement for sale dated 27.3.2002. The same is clearly not permissible under the law."

162 In the present case also the receipt cum agreement which have been claimed by the defendant to be agreement to sell have been executed after the commencement of the Amending Act of 2001 and consequently of no consequence to save the possession of the defendant, more so when the defendant has been unable to prove the said receipt. The law laid down in Sunil Kapoor vs. Himmat Singh and others (Supra) makes it abundantly clear that plea of part performance cannot be taken by defendant, even if defendant succeeds in suit for specific performance till execution of conveyance deed, in his favour. As per the law laid down in Ashok Goenka vs. Chandra Bhushan Singh (Supra) and Sunil Kapoor vs. Himmat Singh and others (Supra), defendant has no ground in law to save his possession and the defence of an agreement to sell is not a legal defence available to the defendant in the suit for ejectment.

163 Section 111 (h) of the Transfer of Property Act provides that when a tenancy has been terminated by a notice, the tenant has to vacate the premises and has to deliver peaceful possession to the landlord. Since it has been established that the tenancy Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...91 of 96 : 92 :

has been terminated by a notice u/s 106 of the transfer of property act, the defendant company is bound to vacate the premises and deliver peaceful possession to the plaintiff. In view of these observations, issue no.3 is decided in favour of the plaintiff and against the defendant and it is held that plaintiff is entitled to a decree for recovery of possession in respect of the suit property. Vide order dated 14.05.2009, in the matter of Firstcorp International Ltd. Vs. Kuljit Singh Butalia, CS (OS) No. 1861/2008, Hon'ble High Court of Delhi in IA No.10748/2008 ordered that the defendant i.e. plaintiff herein shall not dispossess the plaintiff i.e. defendant herein from the suit property without due process of law and shall not create third party interest without prior permission of Hon'ble High Court of Delhi during the pendency of CS (OS) No. 1861/2008. The present order of this court for asking the defendant to handover the peaceful and vacant possession of the suit property to the plaintiff is in conformity with the order dated 14.05.2009 of Hon'ble High Court of Delhi. As per the same order, plaintiff herein has been restrained from alienating, transferring or creating third party interest in the suit property during the pendency of CS (OS) No. 1861/2008. In view of the said order, plaintiff is restrained from alienating, transferring or creating third party interest in the suit property during the pendency of CS (OS) No. 1861/2008. Issue no. 4: "Whether the plaintiff is entitled to damages / mesne profits in respect of the suit property? If so, at what rate and for which period? "

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...92 of 96 : 93 :

164 The onus to prove this issue was on plaintiff. The plaintiff vide his notice of eviction dated 07.08.2008 to the defendants had informed that on their failure to vacate the premises on the date of expiry of the termination notice ,they shall be liable to pay damages @ Rs. 1 lac per month. However, in the present suit, the plaintiff has claimed mesne profits / damages at the rate of Rs. 75,000/ per month from September, 2008 till the actual delivery of vacant possession of suit property by the defendant to the plaintiff. 165 The plaintiff has produced one witness, PW.2, Sh. Mahinder Pal Singh Kohli who is a property dealer, dealing in sale and leasing of properties in the vicinity of the suit property. He has deposed that minimum rental value of the premises similar to the suit property is not less than Rs.1 lac per month. He has supported his deposition by producing certified copies of two registered Lease Deeds in respect of similarly situated properties, fetching rent of Rs.1.50 lacs per month, Exb.PW2/1 & 2/2.

166 The defendant has denied the claim of mesne profits in para 12 of reply on merits of WS. The defendant company, however, has not produced any evidence on this issue.

167 The Hon'ble High Court of Delhi in the case of Bakshi Sachdev (Dead) Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...93 of 96 : 94 :

by L.R.S. v/s Concord (I), 1993 RLR 563, had held that the mesne profits or damages for use and occupation after termination of tenancy can be substantially more than the agreement. The Hon'ble Supreme Court in the case of Bhagwati Prasad v/s Chandramaul, AIR 1966 SC 735) observed that:

"Once it is held that the plaintiff is entitled to eject the defendant. It follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by direction for payment of the future mesne profits or damages."

168 In the instant case, the plaintiff terminated the lease with effect from 31.08.2008 and the same has been upheld by this Court. The defendant is unauthorized occupant thereafter.

169 In view of the aforesaid observations, In view of these observations, issue no.4 is decided in favour of the plaintiff and against the defendant and it is held that the plaintiff is entitled for mesne profit @ Rs. 75,000/ per month from September 2008 to the date of handing over the vacant and peaceful possession of the suit property by the defendant to the plaintiff. However, in view of submission of the plaintiff resting his claim to maximum of Rs.20 lacs with respect to mesne profits / damages, the plaintiff shall be entitled Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...94 of 96 : 95 :

to an amount of Rs.20 lacs in total in case the claim of mesne profits / damages allowed exceeds Rs.20 lacs.

Issue 5: Relief

170 In view of my above findings on the issues, the plaintiff's suit is decreed in his favour and against the defendant, as follows:

a) Decree of possession is passed in favour of the plaintiff and against the defendant and defendant is directed to handover peaceful and vacant possession of the suit property to the plaintiff on or before 10th January, 2013. However, plaintiff is restrained from alienating, transferring or creating third party interest in the suit property during the pendency of CS (OS) No. 1861/2008.

b) Decree of mesne profits/damages @ Rs. 75,000/ per month is passed in favour of the plaintiff and against the defendant from September 2008 to the date of handing over of the vacant possession of the suit property. The plaintiff shall be entitled to an amount of Rs.20 lacs in total in case the claim of mesne profits / damages allowed exceeds Rs.20 lacs.

c) It is abundantly clear to this Court that the defendant has left no stone unturned in harassing the plaintiff and avoiding payment of rental and other dues.

Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...95 of 96 : 96 :

The Hon'ble Apex Court has been emphasizing that precedence needs to be set for wrong doers not to take advantage of their wrongs and prevent the misuse of the process of law to deny one what rightfully belongs to the one. To strengthen the pillars and foundation of the legal system this court has no hesitation to inflict an exemplary cost of Rs. 20,000/ in favour of the plaintiff over and above the aforesaid decreetal amount plus the interest at the rate of 10% per annum from the date when money fell due till the date of realization.

171 The suit is accordingly decreed with cost in favour of the plaintiff against the defendants subject to filing of deficit court fees by the plaintiff, if any, on the amount decreed. Decree sheet be prepared accordingly.

172 Decree sheet be drawn after deposit of deficit court fee, if any. File be consigned to record room after necessary compliance.

Dictated and announced in the open court on 30.11.2012 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 30.11.2012 Kuljit Singh Butalia Vs. M/s Firstcorp International Ltd. Contd.........P...96 of 96

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Kuljit Singh Butalia vs Firstcorp International Ltd on 30 November, 2012