Delhi District Court
M/S Adroit Holdings Pvt. Ltd vs M/S Soma Exporters on 21 December, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE /
RENT CONTROL TRIBUNAL, NEW DELHI
In the matter of :
RCT No.17/19
M/s Adroit Holdings Pvt. Ltd.
203, Himgiri, 19 Rani Jhansi Road
New Delhi110 055
Presently at:
H108, Connaught Circus,
New Delhi110 001 ...Appellant
Versus
1. M/s Soma Exporters
Through its Partner
Mr. Gulshan Bajaj
G74, Sujan Singh Park
New Delhi110 003
2. M/s Shikha Construction Pvt. Ltd.
R/o 46, Regal Building
Connaught Place
New Delhi110 001
3. T.R. Anand & Associates
R/o 46, Regal Building
Connaught Place
New Delhi110 001
(Dropped vide order dated 13.05.2019)
RCT No.17/2019
M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 1 of 45
4. Sh. I.M. Garg
R/o 46, Regal Building
Connaught Place
New Delhi110 001
5. M/s Garg & Associates
R/o 46, Regal Building
Connaught Place
New Delhi110 001
6. M/s IMG Architects Pvt. Ltd.
R/o 46, Regal Building
Connaught Place
New Delhi110 001
...Respondents
Date of institution : 25.03.2019
Date of arguments : 21.12.2021
Date of judgment : 21.12.2021
JUDGMENT
1. Vide this judgment, I shall dispose of the appeal filed under Section 38 of The Delhi Rent Control Act,1958 ("DRC Act" in short) by the appellant challenging the impugned order dated 18.02.2019 whereby the Ld. Rent Controller ("RC" in short) dismissed the petition filed by the petitioner/appellant under Section 14(1)(b) of DRC Act for eviction of respondents RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 2 of 45 from the tenanted premises bearing Flat No.46, Regal Building, Connaught Place, New Delhi.
2. In brief, two petitions, one under Section 14(1)(b) of DRC Act and another under Section 14(1)(e) of DRC Act, were filed by the petitioner/appellant for eviction of respondents/ tenants from the demised premises. The premises in dispute was purchased by the petitioner from its erstwhile owner Ms. Amarjeet Kaur w/o late Sh. Daljit Singh, vide agreement to sell dated 27.09.1996 and registered sale deed dated 21.12.2009. It is alleged that the respondent no.1 was inducted as a tenant by the erstwhile owner/landlord late S. Daljit Singh, somewhere in the year 1974 vide an oral tenancy on 30.12.1996. At the time of purchase of the said premises, the respondent no.1 was in possession of the demised premises as tenant and was paying a monthly rent of Rs.650/. It was further alleged that respondent no.1 had illegally inducted the respondent no.2 M/s Shikha Construction Pvt. Ltd and respondent no.3 T.R. Anand & Associates, as a subtenant in the entire premises without any valid consent in writing from the previous owners/landlord. It was further alleged that the said illegal subtenants have further parted with the possession of the demised premises to respondent RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 3 of 45 no. 4,5&6 i.e. Sh. I.M. Garg, M/s Garg & Associates and M/s IMG Architects Pvt. Ltd. It is alleged that in the first instance, the respondent no.1 had no right or authority to create subtenancy in favour of or part with possession of the said premises or any part thereof to respondent no.2&3 and that the said act of the respondent no.1 is absolutely illegal in law. Petitioner issued a legal notice dated 20.05.2010 to respondent no.1&2 for vacation of the demised premises. The said notice was replied to by the respondent no.1 by its letter dated 10.07.2010 and the respondent no.2 had also tendered the rent for the last three years of Rs.23,400/ to the petitioner.
3. In the amended petition filed under Section 14(1)(e) of DRC Act, the petitioner had made similar averments, as alleged in the petition filed under Section 14(1)(b) of DRC Act.
4. The respondent no.1 in his written statement has stated that the petition filed against M/s Soma Exports/R1 is not maintainable on the ground of non existent entity. The summons in the name of M/s Soma Exports, impleaded as respondent no.1, has wrongly been delivered at the premises of respondent (M/s Soma Exporters). It is stated that respondent M/s Soma Exporters was initially a tenant under late Sh. Daljit Singh vide an oral RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 4 of 45 tenancy. Further, sale deed dated 21.12.2009 also recognizes the right of the tenant to create and set up a sub tenancy in the demised premises. Since, the sub tenancy has been created under the existing right of the tenant, creation of sub tenancy is rightful and within the right of the tenant. It is further stated that the demised premises is being occupied by the sub tenants under the permission and consent of the tenant M/s Soma Exporters, who in turn got the permission from the erstwhile owner of the demised premises Sh. Daljit Singh through Ms. Gulshan Bajaj, who is the partner of the firm namely M/s Soma Exporters. It is submitted that respondent no.1 is a legal tenant in the demised premises with an unhindered and unfettered right to sublet the same. The sub tenancy created by respondent no.1 is legal and valid in nature.
5. Respondent no.2 has also filed the written statement stating that petitioner is neither the owner of the suit premises nor has any right, title or interest in the suit premises. The entire property of which the suit premises forms part of, stands re entered upon by the original owner i.e. the President of India through Land and Development Officer as far back as on 13.04.1982. It was stated that the agreement to sell and the sale deed filed by the petitioner are forged and fabricated documents.
RCT No.17/2019M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 5 of 45 The premises in dispute also could not have been sold as all the legal heirs of Sh. Daljit Singh have not signed the documents and Sh. Pratapjit Singh is one of the legal heir of the property. It was further stated that Ms. Amarjeet Kaur has also no right, title and interest in the property after the death of Sh. Daljit Singh as the lease was already reentered. It was further stated that respondent never accepted the petitioner as its landlord at any point of time nor tendered any rent to the petitioner and as such, there is no relationship of landlordtenant between the parties. It was further stated that the tenancy of the premises has never been attorned to the petitioner nor the respondent no.2 has been informed about the creation of any such documents till date and any documents created between the petitioner and the respondent no.1 is a self serving documents, fabricated and manipulated documents, which under no circumstances bind the respondent no.2 qua the petitioner, who even otherwise has no right, title and interest in the suit property. It has further been stated that after the death of Sir Shobha Singh, Sh. Daljit Singh had become one of the co owner of the premises in question. Sh. Daljit Singh, being the partner in the firm and Ms. Gulshan Bajaj, being authorised attorney, has executed the indenture of sublease dated RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 6 of 45 25.05.1985 in favour of M/s T.R. Anand & Associates and M/s Shikha Construction Pvt. Ltd. at a monthly rent of Rs.2,000/ with the permission to sublease, sublet, assign or part with the possession of the whole or part thereof or handover the premises on the basis of leave and licence and the same shall remain vested in sub lessee. It has further been stated that the indemnity bond dated 25.05.1985 had already been executed by Sh. Daljit Singh, through his attorney Ms. Gulshan Bajaj and there has been no illegal subtenancy. The written consent dated 29.12.1989 has already been given by Ms. Gulshan Bajaj, attorney of Daljit Singh, who is also one of the partner of M/s. Soma Exporters. It has been admitted that the original owners/landlords are still holding the possession of the entire properties namely Regal Building. It has further been submitted that after the reentry of the property, none of them had any right, title or interest to create any further sale, transfer and charge over the property in any manner and that all the transactions subsequent thereto are void abinitio. It has further been submitted that there is no company by the name of M/s Adroid Holdings Pvt. Ltd. The petitioner has no right, title or interest in the property. The agreement to sell and sale deed filed by the petitioner are forged and fabricated RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 7 of 45 documents. It has further been submitted that the petitioner cannot purchase the property after the same is being reentered and without the permission as per Clause 11 of the lease deed dated 27.05.1937. No permission has been granted by the Chief Commission of Delhi for the execution of the agreement to sell or sale deed as the property stands reentered earlier to the execution of the alleged fraudulent sale deed. Moreover, the property has not been transferred in the name of Ms. Amarjit Kaur and the petitioner before the L&DO.
6. Respondent nos. 4, 5 & 6 have also filed their written statement and reasserted that subtenancy has been created in accordance with law. The right, title and interest of the petitioner has been denied. It has further been submitted that documents relied upon by the petitioner are forged and fabricated documents.
7. In the replication filed by the petitioner, averments made in the petition were reaffirmed and contentions made in the written statements have been denied.
8. The petitioner examined two witnesses i.e. PW1 Sh. Sanjiv Mittal and PW2 Sh. Narendra Kumar Jain, both the authorised representatives of the petitioner company. On the other hand, respondents in support of their case examined five RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 8 of 45 witnesses namely R2W1 Sh. Gaurav Garg, R2W2 Sh. N.S. Suri, R4W1 Sh. I.M. Garg, R5W1 Sh. Gagan Garg and R6W1 Sh. Anil Garg.
9. Ld. Trial Court after taking into account the pleadings, documents and evidence on record, dismissed the eviction petition under Section 14(1)(b) of the Act vide the impugned judgment dated 18.02.2019 and inter alia held as under :
"14. In view of the above, in the present proceedings, the initial burden of proof is upon the petitioner company and it has sufficiently discharged the burden upon it in as much as the respondents agree to subletting in their pleadings as well as in the correspondence between them and the petitioner company, already alluded to above. Moreover, the respondents have produced indentures of sublease to support their case. Whether these sublettings were done with the or without valid consent is another matter, but what it beyond any cavil of doubt is the fact that petitioner company is indeed not in possession of the demised premises because of such subletting to which the respondents also admit.
16. Simply put it is the case of the respondents, that when the demised premises was sublet by the respondent no. 1 to respondents no. 2&3, permission was inherent in the indenture of sublease Ex.R4W1/7 as the tenant subleasing to RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 9 of 45 the sublessees was a partnership firm, namely Soma Exporters, in which the erstwhile owner/landlord Sh. Daljeet Singh was himself a partner. Therefore, he was obviously aware of the subletting. As far as the sublease made by respondent no.2 in favour of respondents no. 4,5&6 is concerned, the letters Ex.R4W1/10 and R4W1/12 contain permissions from Soma Exporters (respondent no.1, again on the logic that Sh. Daljeet, the erstwhile owner/landlord was himself a partner in the said firm and hence a permission by the firm represents a permission by Sh. Daljeet also) to respondent no.2 and further, from respondent no.2 to respondents no. 4,5&6. The mandate of S.14(1)(b) read with s.16 of the Act is that consent of the "landlord" is required for any valid sublease to be made. The contention of the respondents as noted above, in essence is that since the partnership firm, Soma Exporters, respondent no.1, had one of the partners as the landlord himself, then a consent given by the said firm is a valid consent and can be construed as a consent by the landlord himself within the meaning of s.14(1)
(b) read with s.16 of the Act. More so, the respondents contend that these consents were given by Miss Gulshan Bajaj on behalf of the said firm, i.e. respondent no.1, as not only being a partner therein but also as a general power of attorney (Ex.R2W2/1) holder on behalf of the erstwhile owner/landlord Sh. Daljeet Singh."RCT No.17/2019
M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 10 of 45
10. The Ld. Trial Court further held that the consent given by the respondent no.1 firm, where landlord Sh. Daljeet Singh is partner himself, can indeed be considered a valid consent that flows from him and is attributable to him. Therefore, the consent contained in the indenture of the sublease Ex. R4W1/7 itself where the respondent no.1 firm sublets the demised premises to respondents no.2&3 constituted a valid consent as it is given by a firm in which the landlord himself is a partner, and such a consent by the firm is attributable to the landlord. Same will be the case with regards the consent contained in the letter Ex.R4W1/10 as the same is also given by the firm, Soma Exporters in which the landlord Sh. Daljeet was a partner.
11. The Ld. Trial Court further held that this court finds that specific consents were indeed obtained by the respondents for the sublesses. They are contained in the indenture of the sub lease Ex.R4W1/7 while respondent no.1 sublet the demised premises to respondents no. 2&3 (given by the firm respondent no.1, which is valid as per the question no.1 discussed above since the said firm consists of a partner who is the landlord himself, i.e. Sh. Daljeet Singh) and in the letter of consent RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 11 of 45 Ex.R4W1/10 where respondent no.1 gives permission to respondent no.2&3 with regards sublease to respondents no. 4,5&6 (contained in Ex.R4W1/12).
12. The Ld. Trial Court further held that due consents were validly obtained while subleases were made by the respondents within the meaning of Section 14(1)(b) read with Section 16 of the DRC Act. Ld. Trial Court further observed that what is also important to note in this behalf is that the factum of a valid partnership constituted under a valid partnership deed, i.e. respondent no.1 firm Soma Exporters Ex.R2W2/2 dated 01.07.1979 which gave the consents for subletting was nowhere challenged by the petitioner company in any which way. Whilst tendering of all kinds of documents by the respondents in their evidence, several objections were taken by the petitioner, but nowhere was any objection taken to the said partnership deed. It remained blemish free and unchallenged and hence the fact that the erstwhile owner/landlord Sh. Daljeet Singh was a partner in the said firm remained uncontroverted. Therefore, no fault can be found in the consents obtained by the respondents via the said firm. This fact alone dislodges the case of the petitioner company substantially and completely.
RCT No.17/2019M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 12 of 45
13. The Ld. Trial Court further held that an unregistered partnership deed, even when requiring registration under the Indian Registration Act, 1908 (and not under Partnership Act, 1932) is not so registered, still, it can be used for a collateral purpose i.e. to prove the existence of a partnership. There is no bar from reading such a document for this limited purpose. Hence, in the present case before this court also, similarly, there is no bar in reading a partnership deed into evidence which is unregistered under the Partnership Act, 1932, which does not mandatorily require registration. Unquestionably therefore, such an unregistered partnership deed can be safely relied upon and dismissed the petition under Section 14(1)(b) of the DRC Act.
14. It is pertinent to mention herein that the Ld. Trial Court also inter alia held that it is amply clear from the documents on record that a period of five years had not lapsed as on the date of institution of present eviction petitions since the day when the petitioner company acquired the demised premises by way of sale from the erstwhile owner/landlord and therefore eviction petition under section 14(1)(e) of DRC Act is clearly not maintainable. It was further inter alia held that no further deliberation was required in this behalf and hence the eviction petition filed under RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 13 of 45 section 14(1)(e) of DRC Act stands disposed of as dismissed. The appellant has not challenged the dismissal of the petition under Section 14(1)(e) of DRC Act, 1958.
15. The appellant has challenged the impugned order on the following grounds that :
i) the Ld. Trial Court has erred in holding that respondent no.1 had valid consent of the landlord to sublet the tenanted premises to respondent no.2&3 merely on the premise that the landlord being the partner in the respondent no.1 firm as such the indenture of sublease itself is the valid consent;
ii) the Ld. Trial Court has ignored the fact that respondent no.1 has failed to prove and produce any evidence in the form of documents evidencing the previous written consent in writing from the landlord with the tenant/respondent no.1 to sublet the premises in question to respondent no.2&3;
iii) the Ld. Trial Court had committed an error of law by not appreciating that the respondent no.1 did not lead any evidence on record to show otherwise RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 14 of 45 that the subletting in favour of the respondent no.2&3 has been created after taking the previous consent in writing from the landlord as the subletting is prohibited under the provisions of subsection (3) of Section 16 of the DRC Act. The respondent no.2 also in their entire evidence did not produce any document evidencing that the respondent no.1 had obtained and possess the written consent in writing to sublet the whole or any part of the demised premises in their favour.
iv) the Ld. Trial Court wrongly held that the execution of sublease dated 25.05.1985 (Ex.R4W1/7) was with the valid consent of the landlord/erstwhile owner attributable to him being one of the partner in the respondent no.1 firm;
v) the Ld. Rent Controller failed to appreciate that as per the scheme of the Act, the tenant cannot sublet the whole or part of the premises without the previous consent in writing of the landlord and therefore, the finding of the Ld. Rent Controller that the consent contained in the indenture of sublease Ex. R4W1/7 RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 15 of 45 itself where the respondent no.1 firm sublets the demised premises to respondent no.2&3 constitutes a valid consent is not only perverse but also illegal, as per the provisions of the Act;
vi) the Ld. Trial Court committed an error of law by not applying the provisions of Section 101 and 103 of the Evidence Act, 1872, while appreciating the evidence of the parties. The Ld. Trial Court failed to appreciate that respondent no.1 in their written statement did not take any plea that S. Daljit Singh is one of the partner in respondent no.1 firm and had also not pleaded that he had executed a General Power of Attorney in favour of Ms. Gulshan Bajaj.
The burden of proof lies on respondent no.1 to prove that they had previous written consent in writing to sublet the demised premises to respondent nos.2&3. Admittedly, the respondent no.1 did not lead any evidence in the matter nor they were summoned by the respondent no.2,4,5 and 6 to discharge their onus to prove that the demised premises had been sublet or assigned or parted with possession to them by their RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 16 of 45 tenant with prior written consent in writing from the landlord/owner.
vii) that the Ld. Trial Court had committed an error of law in considering that the demised premises was sublet by the respondent no.1 to respondents no.2&3 and permission was inherent in the indenture of sub lease Ex.R4W1/7 as the tenant subleasing to the sub lessees was a partnership firm, namely Soma Exporters, in which the erstwhile owner/landlord Sh. Daljeet Singh was himself a partner. Therefore, he was obviously aware of the subletting. As far as the sublease made by M/s Shikha Constructions Pvt. Ltd. in favour of respondents no.4,5&6 is concerned, the letters Ex.R4W1/10 and R4W1/12 contained permissions from Soma Exporters (respondent no.1, again on the logic that Sh. Daljeet, the erstwhile owner/landlord was himself a partner in the said firm and hence a permission by the firm represents a permission by Sh. Daljeet also) to respondent no.2 and further, from respondent no.2 to respondents no. 4,5&6. It is relevant to submit that above observation RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 17 of 45 and submissions on record is fallacious as S. Daljit Singh (HUF) who was partner with the respondent no.1 as per Ex.R2W2/2 date 01.07.1979 and not S. Daljit Singh.
viii) that the impugned order of the Ld. Trial Court is based on surmises and conjectures and is contrary to the evidence and documents on record.
16. The notice of the appeal was issued to the respondents and the trial court record was called.
17. It is pertinent to mention herein that the appellant has moved an application under Section 38 Rule (5) of the DRC Act read with Order 41 Rule 27 CPC seeking permission to produce on record the original minutes of meeting of the Board of Directors held on 19.02.2011 and 13.12.2011, for the purpose of fair adjudication of the matter in dispute.
18. In reply to the application under Order 41 Rule 27 CPC, it was stated by respondent nos. 2, 4, 5 & 6 that the said application is liable to be dismissed as the appellant has come with unclean hands and has pleaded incorrect and misrepresented RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 18 of 45 facts. It was stated that the appellant has admitted during the hearing before this court on 20.09.2021 that no resolution has been passed in favour of Sh. Amrit Pal, who instituted the eviction petition before the Ld. Trial Court, and therefore, filing of the petition is voidabinitio and is liable to be dismissed. By way of present application, the appellant cannot be allowed to fill in the lacunas in the case. It is further submitted that since appellant has never produced the said original minutes of meeting before the Ld. Trial Court i.e. since 2010 and now 11 years have elapsed and at this belated stage, these documents could not be allowed to be taken on record.
19. Sh. N.P. Singh, Ld. Counsel for the appellant has submitted that there are two tier of subletting and in both instances, the tenant had not obtained previous written consent in writing from the landlord as required under Section 14(1)(b) read with subsection (3) of Section 16 of the DRC Act. Ld. Counsel further submitted that the finding of the Ld. Rent Controller in respect of subletting is perverse and erroneous as Section 14(1)
(b) read with subsection (3) of Section 16 of the DRC Act require the previous written consent in writing of the landlord. The consent given by the respondent no.1/firm, where landlord S. RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 19 of 45 Daljit Singh is partner himself, cannot be considered a valid consent to sublet the demised premises to respondent no.2 and 3. It has further been argued that owner/landlord S. Daljit Singh indisputably inducted M/s Soma Exporters/respondent no.1 as a tenant in the demised premises in the year 1974 by an oral tenancy. The Appellant had purchased the demised premises from its erstwhile owner S. Daljit Singh vide Registered Agreement to Sell dated 27.09.1996 (Ex. PW1/2) and the sale deed was duly registered on 21.12.2009 (Ex PW1/3) and was handed over the symbolic possession of the demised premises, in which it was declared in recital clause (vi) of the agreement that the demised premises had been leased out to M/s Soma Exporters (Respondent No.1) and it is further been declared in clause (vii) that M/s Soma Exporters by way of an Indenture of Sublease dated 25.05.1985, sublet the demised premises to M/s T.R. Anand & Associates and M/s Shikha Constructions Pvt. Ltd. for a period of 11 months (Respondents No. 2 and 3). It is further declared in Clause (viii) of the agreement that M/s T.R. Anand & Associates and M/s Shikha Constructions Pvt. Ltd i.e. "tenant of M/s Soma Exporters" had illegally sublet and parted with possession to one Garg & Associates, a firm of Architect i.e "Shri I.M.Garg, M/s RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 20 of 45 Garg & Associates and M/s IMG Architect Pvt Ltd (Respondents No.4 to 6).
20. It has further been argued by the Ld. Counsel for the appellant that M/s Soma Exporters/Respondent No.1, had not led any evidence to prove its defense as set out in the written statement. M/s Soma Exporters/respondent no.1 in their written statement admitted that the demised premises was taken on oral lease in the year 1974 at a monthly rent of Rs. 650/. Ld. Counsel for the appellant further submitted that M/s Soma Exporters was inducted as a tenant in the suit premises by the erstwhile owner of the demised premises, namely Sh. Daljit Singh and that M/s Soma Exporters continues to occupy the demised property as a tenant.
21. The Ld. Counsel for the appellant has further argued that the respondent nos.2&3 were inducted as subtenants in the demised property by M/s Soma Exporters without the consent and permission of the erstwhile owner of the demised property.
22. Ld. Counsel for the appellant has further argued that the respondent no.1 vide its reply dated 21.03.2009, Ex PW1/6, stated the demised premises was let out by S. Daljit Singh to M/s Soma Exporters with permission to sublet it to M/s Shikha Construction Pvt. Ltd. on 25.05.1985 (Ex.R4W1/7) and since RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 21 of 45 then, M/s Shikha Construction Pvt. Ltd. is in possession of the demised premises. Thereafter, appellant issued another letter dated 20.05.2010 to demand arrears of rent @Rs. 650/ per month w.e.f. 1.05.2007 to 30.04.2010, which was replied to by the respondent no.1 vide letter dated 10.07.2010 (Ex PW1/13), vide which, the arrears of rent was tendered vide cheque bearing number No. 155775 dated 28.06.2010 in the sum of Rs. 23,400/ drawn on Karnataka Bank Ltd. Hence, there is no dispute qua the owner/landlord of the demised premises. Respondent no.2&3 were put in possession exclusively of the demised premises by virtue of sublease on 25.05.1985. Respondent no.1 admitted (vide Ex.PW1/6 and PW1/13) to have sublet the demised premises to M/s Shikha Construction Pvt. Ltd. vide lease deed (Ex.R4W1/7) on 25.05.1985. Ld. Counsel further argued that the use of the word 'previous' in subsection (3) of Section 16 before the word "consent in writing of the landlord" shows the intention of the legislature that the consent in writing should be obtained by the tenant before subletting the premises and relied upon the judgment of the Hon'ble Apex Court in the case of M/s Shalimar Tar Products Ltd. vs. H.C. Sharma (1988) 1 SCC 70.
23. Ld. Counsel for the appellant further argued that the RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 22 of 45 written statement, reply to legal notices (Ex. PW1/6), (Ex PW1/13) and (Ex.R4W1/7), proved on record that the respondent no.1 is the tenant of the demised premises and had sublet and parted with possession of the demised premises to M/s Shikha Construction Pvt. Ltd., on 25.05.1985. There is no averment in the written statement that the Landlord Sh. Daljit Singh was partner in the respondent no.1 firm and that he had authorized the respondent no.1 to sublet the demised premises. Ld. Counsel has relied upon the judgment of the Hon'ble Apex Court in the case titled Joginder Singh Sodhi Vs Amar Kaur (2005) 1 SCC 31, wherein, it was held that the appellant is entitled for the eviction under Section 14(1)(b) of the DRC Act against the respondents as the respondent no.1 has failed to discharge its onus that the sub letting is done after obtaining the previous consent in writing from the landlord or it is not a case of subletting.
24. With respect to the defence setup by the respondent nos. 2,4,5 & 6 (subtenants) in their respective written statements, it is stated that the respondent no.2 i.e. M/s Shikha Construction Pvt. Ltd. had admitted in the written statement that they have taken the demised premises by virtue of the Indenture of Sub Lease deed dated 25.05.1985 (Ex.R4W1/7), duly signed by RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 23 of 45 respondent no.1 through its partner Ms. Gulshan Bajaj, on a monthly rent of Rs.2000/ for a period of eleven months and after its expiry, the respondents no. 2 and 3 shall continue to enjoy the demised premises as statutory tenants. The written statement of respondent no.2 was filed under the signatures of Sh.Gaurav Garg S/o I.M.Garg i.e. respondent no.4. The respondent no.2 has also admitted in the written statement in reply to para 9 of the eviction petition that respondent no.2 is not in possession of any portion of the demised premises and had already subleased the demised premises to Sh. I.M. Garg, M/s Garg and Associates and M/s IMG Architect Pvt Ltd i.e. respondent nos. 4,5 and 6.
25. Ld. Counsel for the appellant has further argued that no document was produced in evidence, evidencing the written consent of the landlord/owner. The documents which are being relied upon by the respondent nos. 4 to 6 are being executed by the respondent no.1 and not by the Owner/Landlord.
26. It is submitted that S. Daljit Singh was the landlord/ owner prior to 27.09.1996, as such, it was incumbent upon the respondent no.2 and 3 to take previous written consent in writing from him as required under Section 14(1)(b) read with sub section (3) of Section 16 of DRC Act, 1958, to sublet the RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 24 of 45 demised premises to respondents no. 4 to 6. The respondent no.2 in their evidence failed to show that the indenture of sublease dated 25.05.1985 (Ex R4W1/7) was executed by the respondent no.1 after taking the previous consent in writing from the landlord. However, in the crossexamination and ROC return of the respondent no.2, it is proved that the family members of the respondent no. 4 to 6 have acquired the respondent no. 2 company from T.R. Anand and family, after creation of subtenancy in their favour by respondent no.2 vide indenture of sublease dated 30.12.1989 (Ex R4W1/9). Thus, if the corporate veil is lifted, the respondent no.2 company has been assigned to the respondent no. 4 to 6. This fact is admitted by R4W1 Shri I.M. Garg in his cross examination recorded on 24.08.2018 wherein it is stated that "Shikha Construction is now a part of our family".
27. Ld. Counsel submitted that the indemnity bond was not signed by S. Daljit Singh and Ex. R2W2/1 i.e. power of attorney by S. Daljit Singh in favour of Ms Gulshan Bajaj does not authorized to sublet the whole or any part of the premises or give consent in writing to the tenant on her behalf to sub let and in the absence of any specific power in the GPA to give written consent for sublet the premises to the attorney, it cannot do away with the RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 25 of 45 restrictions placed under subsection (3) of Section 16 of the DRC Act. Thus, the respondent no.2 had miserably failed to prove the onus that the subletting by the respondent no.1 in their favour in terms of Ex R4W1/7 is with the prior written consent in writing from the owner/landlord S. Daljit Singh.
28. The entire defence of the respondent nos.2,4,5&6 hinges upon the GPA dated 22.05.1985 Ex. R2W2/1 executed by S.Daljit Singh in favour of Ms. Gulshan Bajaj but from bare perusal of the same, it appears that there is no power or authority given to her for issuance of written consent in writing prior to sublet the demised premises to the respondents.
29. Ld. Counsel further argued that respondents have miserably failed to show the previous written consent in writing from the Landlord before the subletting or assignment of the demised premises as required under the provisions of Section 14(1)(b) read with Section 16(3) of the DRC Act. However, the Rent Controller in disregard of law laid in the DRC Act, treated the sublease and consent by the respondent no.1 through Ms. Gulshan Bajaj as a valid consent under Section 14(1)(b) of the DRC Act issued by landlord/S.Daljit Singh.
30. Sh. Bhupesh Narula, Ld. Counsel for the respondent RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 26 of 45 nos. 2,4,5&6 submitted that appellant had no locus standi to file the eviction petition and as such, the petition itself was not maintainable and was liable to be dismissed on this ground alone. It has been further submitted that appellant has failed to file the Board Resolution, authorising them to proceed with the case. The person who signed the petition was not authorised by the company to file the present petition.
31. With respect to the point of written consent, Ld. Counsel has submitted that the written consent for subletting the premises has been granted by the attorney of the Daljit Singh i.e. Gulshan Bajaj. The consent letter given by the attorney Ms Gulshan Bajaj of Daljit Singh on 29121989 to sublet the premises to IM Garg, Garg and Associates and IMG architects Pvt. Ltd, Ex. R4W1/10 reads as under:
"In pursuance of the request made by you to create sub tenancy of part of the premises i.e. about the floor area of first floor of 46, Regal Building New Delhi, measuring approximates 1900 Sq.ft. in favour of IM Garg, Garg and Associates and IMG Architect Pvt Ltd., 106, Connaught Place, New Delhi, is hereby approved and consented. The statutory notice of Section 17 of DRC Act is waived, this request is granted strictly as per our agreement of Sub RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 27 of 45 Tenancy dated May 20, 1985.
Yours faithfully For Soma Exporters Partner"
32. Ld. Counsel further argued that even Sh. Daljit Singh by his own signature has given Noobjection for taking the electricity connection vide Ex. R2W2/5, which shows that he had no objection for the subletting of the tenancy and there has been his consent through his attorney Ms Gulshan Bajaj.
33. Ld. Counsel for respondent no.2, 4 to 6 further argued that the appellant has initially filed the site plan, which is Ex.PW1/16. The said site plan was disputed by the respondents by filling the correct site plans Ex. R4W1/1, R5W1/1 & R6W1/1 with the correct description of the portion of the property, which has not been disputed by the appellant at any point of time.
34. With respect to the issue of ownership of the property, Ld. Counsel for the respondents has submitted that appellant is neither the owner of the suit premises nor has any right, title or interest in the suit premises. The entire property, of which the suit premises forms part of, stands reentered upon by the original RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 28 of 45 owner i.e. The President of India through Land And Development Office as far back as on 13.04.1982. The Agreement to sell and the sale deed filed by the appellant are forged and fabricated documents. No such permission has ever been granted by the Chief Commission of Delhi at any point of time for the execution of the agreement to sell or Sale Deed as the property stands re entered earlier to the execution of the alleged fraudulent Sale Deed, which could not have been executed otherwise. These documents have been created to usurp the property by illegal, fraudulent means for which the appellant has no right title or interest in the property. The Sale Deed is void abinitio, illegal, inadmissible in evidence and the appellant has no right, title or interest in illegal property. Moreover, the property has not been transferred in the name of the Amarjit Kaur and appellant before the L&DO. The Appellant cannot be said to be owner of the property. The property also could not have been sold as all the legal heirs of Sh. Daljit Singh have not signed the documents and Sh. Pratapjit Singh is one of the legal heir of the property. Ms Amarjeet Kaur has also no right, title and interest in the property after the death of Sh. Daljit Singh as the Lease was already re entered. Even in the order dated 01.05.2013 in E28/2010, the RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 29 of 45 appellant at the time of the withdrawal has stated that the there is an issue of ownership.
35. Ld. Counsel further argued that the respondent never accepted the appellant as its landlord at any point of time nor he has tendered any rent to the appellant and as such, there exists no relationship of landlord tenant between the parties to the present petition. Ld. Counsel further argued that the tenancy of the premises has never been attorned to the appellant. Any documents created between the appellant and the respondent no.1 is a self serving documents, fabricated and manipulated documents, which under no circumstances bind the respondent qua the appellant, who even otherwise has no right title interest in the suit property. There is no privity of contract between the respondent and the appellant, hence the present petition is not maintainable and is liable to be dismissed on this ground alone.
36. Ld. Counsel for the respondent further argued that there is no firm by the name of M/s Soma Exports. All the transactions of the respondents were with M/s Soma Exporters through Gulshan Bajaj. Sh Daljit Singh and Ms. Amarjit Kaur were the partners of M/s Soma Exporters. Sh. Daljit Singh has given the General Attorney to Ms Gulshan Bajaj to act on this behalf. Ld. RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 30 of 45 Counsel further argued that none of the judgments cited by the appellant are applicable to the facts of the present case and the appeal is liable to be dismissed.
37. I have heard Ld. Counsel for the parties and have perused the record carefully.
38. Before proceeding further, it is relevant to look at Section 38 of the DRC Act in order to examine the jurisdiction of this Court while deciding the appeal under Delhi Rent Control Act.
39. Section 38(1) of Delhi Rent Control Act provides as under : "An appeal shall lie from every order of the Controller made under this Act (only on questions of law) to the Rent Control Tribunal (hereinafter referred to as the Tribunal) consisting of one person only to be appointed by the Central Government by notification in the Official Gazette :
(Provided that no appeal shall lie from an order of the Controller made under Section 21)."
40. It is pertinent to mention here that Section 38 of the DRC Act was amended with effect from 01.12.1988. Perusal of RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 31 of 45 amended provision would indicate that an appeal shall lie from every order of the Controller made under this Act and the Rent Control Tribunal shall examine only the question of law. The Legislature in its wisdom excluded the jurisdiction of the Rent Control Tribunal to examine the cases on the facts. The amendment has possibly been made to curtail the delay. The effect of this amendment is that the Rent Controller has been adjudged the forum to return final findings on the facts. Therefore, this Tribunal is required to see that whether the Ld. ARC has committed any illegality on the point of law while deciding the question of subletting. Thus, in order to succeed in the appeal, the appellant has to put forward the legal infirmities or incorrectness having been committed by the Ld. Trial Court.
41. In view of the scope of jurisdiction, as laid down under Section 38 of the DRC Act and the judgment delivered in Kulwant Singh & Another Vs Arjun Singh, CM (Main) No.1063/2004 decided on 15.11.2006, Hon'ble Delhi High Court interalia held that under Section 38 DRC Act, the RCT is to act as an appellate court only on a question of law. Similarly, in Dr. Mrs. Sushil Puri And Ors. Vs Sh. Jai Gopal And Ors.,Cav. No.120/06 decided on 10.11.2006, Hon'ble Delhi High Court RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 32 of 45 interalia held as under: "An important aspect which cannot be lost sight of is that the legislature in its wisdom has amended the said Act whereby the appeal to the Tribunal under Section 38 of the said Act has been confined to only a question of law and second appeal to this Court has been abolished...."
42. In Smt. Kiran Sajjan And Ors. Vs Smt. Swarnkanta Mahajan decided on 25.08.2006, Hon'ble Delhi High Court inter alia held as under : "It cannot lost sight under the provisions of the said Act that the appeal lies to the Tribunal under Section 38 of the said Act only on a question of law. This was in terms of the legislative intent as a conscious decision was taken to amend the said provision in December 1988 prior whereto the appeal was both on a question of law and on a question of fact. Thus, the scope of scrutiny itself by the Tribunal was said to be restrictive and the Additional Rent Controller was construed to be a final Court for appreciation of evidence....."
43. Thus, a bare reading of the legislative provision and the judgments on the point, makes it clear that the court of RCT is required to restrict itself to the question of law. However, it is RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 33 of 45 pertinent to mention here that while deciding the question of law, it has also to be seen whether the evidence and the material on record has been appreciated correctly by the Ld. Trial Court in accordance with law.
44. Section 14(1)(b) of DRC Act provides as under:
"that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord".
45. In this regard, it is also necessary to reproduce Section 14(4) of DRC Act, which read as under :
"14. Protection of tenant against eviction (4) For the purpose of clause (b) of the proviso to subsection (1), any premises which have been let for being used for the purpose of business or profession shall be deemed to have been sublet by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person is a partner of the tenant in the business or profession but really for the purpose of subletting such premises to the person. "RCT No.17/2019
M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 34 of 45
46. In the cases of subletting, Section 16 and 17 of the DRC Act, are also relevant, which are also being reproduced as under :
"16. Restrictions on subletting. (1) Where at any time before the 9th day of June, 1952, a tenant has sublet the whole or any part of the premises and the subtenant is, at the commencement of this Act, in occupation of such premises, then notwithstanding that the consent of the landlord was not obtained for such subletting, the premises shall be deemed to have been lawfully sublet.
(2) No premises which have been sublet either in whole or in part on or after the 9th day of June, 1952,without obtaining the consent in writing of the landlord, shall be deemed to have been lawfully sublet.
(3) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord,
(a) Sublet the whole or any part of the premises held by him as a tenant; or
(b) transfer or assign his rights in the tenancy or in any part thereof.
(4) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub letting of the whole or any part of the premises held be the tenant.RCT No.17/2019
M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 35 of 45
17. Notice of creation and termination of subtenancy. (1) Whoever, after the commencement of this Act, any premises are sublet either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the subtenant to whom the promises are sublet may, in the prescribed manner, give notice to the landlord of the creation of the subtenancy within one month of the date of such subletting and notify the termination of such subtenancy within one month of such termination.
(2) XXX (3) XXX "
47. The sum and substance of law on subletting is that if the tenant continues to retain the legal possession of the demised premises and has merely allowed another person to use the demised premises, it will not amount to subletting. The basic test is whether the tenant continues to be in the legal and physical possession of the premises. The another test can be that it is necessary that the tenant remains in the legal possession and the tenant must have a right to oust another person from the demised premises. The Delhi Rent Control Act is piece of welfare legislation and has been enacted to afford protection to the landlord and tenant. The eviction order can be passed only if RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 36 of 45 there exists any of the grounds as mentioned in Section 14(1) of DRC Act. The general scheme of the Act is that subletting is prohibited. However, the exception is that after enactment of the Act, the subletting is permissible, if it has been done with the prior written permission of the landlord. It has also been held in catena of judgments that such permission has to be specific. Section 17 of the DRC Act requires that the tenant and the sub tenant are required to give notice in writing to the landlord of the creation of the subtenancy within one month of the date of such subletting. The scheme of the entire Act would suggest that intention of the Legislature is that premises which has been let out to the tenant must be enjoyed by the tenant himself. The tenant cannot sublet, assign or part with the possession of the premises to anybody without prior permission in writing of the landlord. The provision has been enacted in order to protect the interest of the landlord and to maintain the sanctity of the contract between landlord and tenant.
48. It is an admitted fact that the erstwhile owner late Sh. Daljeet Singh created an oral tenancy in favour of M/s Soma Exports in the year 1974. At that time, M/s. Soma Exporters had three partners namely Sh. Sardar Singh, Ms. Amarjeet Kaur w/o RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 37 of 45 late Sh. Sardar Daljit Singh and Ms. Gulshan Bajaj. In 1979, the partnership firm M/s Soma Exports was reconstituted and late Sh. Sardar Daljit Singh, HUF, was inducted as a partner and the said reconstituted firm had three partners namely Ms. Gulshan Bajaj, Ms. Amarjeet Kaur and Sh. Daljit Singh. On 22.05.1985, Sh. Daljit Singh executed a General Power of Attorney in favour of Ms. Gulshan Bajaj. Thereafter, the first Indenture of Sub Lease was executed on 25.05.1985 wherein M/s Soma Exporters sublet the premises in dispute to M/s Shikha Constructions Pvt. Ltd. and M/s T.R. Anand & Associates. Thereafter, some agreements took place between M/s Shikha Constructions Pvt. Ltd. and M/s T.R. Anand & Associates wherein M/s T.R. Anand & Associates surrendered its tenancy rights in favour of M/s Shikha Constructions Pvt. Ltd. In the year 1989, vide Indenture of SubLease dated 30.12.1989, M/s Shikha Constructions Pvt. Ltd. further sublet the premises in dispute to R4 Sh. I.M. Garg and R5 M/s Garg & Associates and R6 M/s I.M.G. Architects Pvt. Ltd. Ms. Gulshan Bajaj vide communication dated 29.12.1989 addressed to M/s Shikha Constructions Pvt. Ltd. gave the consent for subletting and also waived the notice under Section 17 of DRC Act. In the year 1996, late Daljit Singh RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 38 of 45 executed an agreement to sell in favour of M/s Nisha Properties Pvt. Ltd.
49. It is pertinent to mention herein that M/s Nisha Properties Pvt. Ltd. was later on converted into the petitioner company. In the said agreement to sell, recital nos. (vii) and (viii) are important. In the said agreement to sell, the factum of subletting was duly mentioned. Pursuant to this agreement, a sale deed was executed on 21.12.2009 and thereafter, the eviction petition was filed on 28.08.2010 under Section 14(1)(b)&(e) of the DRC Act. The Ld. Trial Court vide the impugned judgment dated 18.02.2019 dismissed the eviction petition under Section 14(1)(e) of DRC Act on the ground that five years have not lapsed of acquiring the ownership of the demised premises and therefore, the eviction petition on the ground of bonafide requirement was not made out. The eviction petition under Section 14(1)(b) of DRC Act was also dismissed inter alia holding that both the sub tenancies were created with the consent of the owner/landlord.
50. The appellant has assailed the impugned order predominantly on the ground that there was no previous consent in writing of the landlord/owner.
51. The gist of the submission of the Ld. Counsel for the RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 39 of 45 appellant is that the first Indenture of SubLease was signed by Ms. Gulshan Bajaj as partner of M/s Soma Exporters and therefore, it cannot be considered to be a consent given by late Sardar Daljit Singh. It has further been submitted that similarly the indemnity bond was also signed by Ms. Gulshan Bajaj and not by late Sardar Daljit Singh.
52. During the course of the submissions, Ld. Counsel for the appellant has submitted that these documents have actually not been proved in accordance with law by the respondents and therefore, the authenticity and genuineness of these documents are also under cloud.
53. In regard to the second tier of the subtenancy created in the year 1989 by M/s Shikha Constructions Pvt. Ltd. in favour of R4 to 6, it has been stated that this is also contrary to the law as late Sardar Daljit Singh had not consented to the further subletting and there is no previous consent in writing of late Sardar Daljit Singh.
54. Ld. Counsel for the appellant has also submitted that even in the General Power of Attorney, there is no authority given for subletting the tenanted premises. However, I consider that this argument has no force as the said GPA gives the entire power RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 40 of 45 to deal with the tenanted premises to Ms. Gulshan Bajaj. In fact by virtue of the said GPA, late Sardar Daljit Singh had given his hat to be worn by Ms. Gulshan Bajaj and practically for all purposes, Ms. Gulshan Bajaj was empowered to deal with the tenanted premises.
55. In the present case, the Ld. Trial Court after considering all the material on record has reached to a finding that both the subtenancies were created with the previous consent in writing of the landlord. The facts which are not disputed are that an oral tenancy was created in the year 1974 in favour of M/s Soma Exporters. Late Sardar Daljit Singh became the partner of M/s Soma Exporters in 1979 and thereafter, he executed a General Power of Attorney in favour of Ms. Gulshan Bajaj and further subtenancies were created with the consent in writing of Ms. Gulshan Bajaj.
56. It is pertinent to mention herein that vide document Ex.R2W2/5, late Sardar Daljit Singh gave his Noobjection for installation of water connection in favour of M/s Shikha Construction Pvt. Ltd., which also shows that he had the knowledge of the subtenancy being created in the tenanted premises. Further perusal of recital (vii) & (viii) of the agreement RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 41 of 45 to sell dated 27.09.1996 executed by late Sardar Daljit Singh, which are produced herein as under, also makes it clear that late Sardar Daljit Singh had the complete knowledge of the both the subtenancies :
"(vii) in terms of an Indenture of SubLease dated the 25th May 1985 executed between the said M/s soma Exporters as the Lessee thereof and M/s T.R. Aanand & Associates and Shikha Constructions Pvt. Ltd., having its Registered Office at E6 Anand Niketan, New Delhi as the SubLeasees thereof, the said Lessee/Tenant sublet the said Flat to the said SubLessees for an initial period of 11 (eleven) months and upon other terms and conditions as contained therein;
(viii) the abovenamed SubLessees have further unauthorisedly and illegally sublet, assigned and/or parted with possession of the said Flat to one Garg & Associates, a firm of Architects"
57. It is also pertinent to mention herein that Late Sardar Daljit Singh did not revoke the General Power of Attorney nor did challenge the Indenture of SubLease executed in the year 1985 and 1989 at any point of time.
RCT No.17/2019M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 42 of 45
58. The Delhi Rent Control Act is a piece of beneficial legislation aimed to protect the tenants. However, the law specifically prohibits subletting by the tenant except with the previous consent in writing of the landlord. Section 16 of the Act provides that if the tenanted premises has been sublet after the Act came into force in the year 1958, there has to be previous consent in writing of the landlord. Further, Section 17 of the Act also provides that a notice has to be given after the creation of subtenancy. It is also a settled proposition of law that these provisions are not mere procedural and are mandatory in nature and have to be strictly complied with by the subtenant. However, every case has to be seen on its peculiar facts and circumstances. The law has to be interpreted in a manner which complies with the intention of the legislation. The previous consent in writing of the landlord means that landlord approves the subtenancy by the tenant. This has to be understood by taking into account the entire material on the record. In the present case, late Sardar Daljit Singh, as a Karta of HUF, was inducted as partner of M/s Soma Exporters in the year 1979. The premises in dispute was initially let out by late Sardar Daljit Singh in the year 1974 to M/s Soma Exporters. The General Power of Attorney executed in RCT No.17/2019 M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 43 of 45 favour of Ms. Gulshan Bajaj has never been revoked and till date no proceedings have been filed by late Sardar Daljit Singh or any of his legal heirs, challenging the authenticity of the said GPA. The Indenture of Sublease and Indemnity Bond executed in 1980 have never been challenged by late Sardar Daljit Singh. Similarly, the Indenture of Sublease executed in 1989 by M/s Shikha Constructions Pvt. Ltd. in favour of R4 to 6 were not challenged. This is more important because late Sardar Daljit Singh knew about it as being revealed in the agreement to sell executed in the year 1996. The petitioner remained happily with this agreement to sell for 13 years and did not take any steps against the tenant/subtenants. The eviction petition was filed on 28.08.2010, i.e. only after the execution of the sale deed. All this shows that late Sardar Daljit Singh or his legal heirs had given their acquiescence to the creation of subtenancies. The evidence being produced by petitioner before Ld. Trial Court was also shaky in nature and do not inspire confidence of the court. I consider that the Ld. Trial Court has given a reasoned finding and there is no ground to interfere with the same. The appeal is therefore, dismissed.
RCT No.17/2019M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 44 of 45
59. In regard to the application under Order 41 Rule 27 CPC seeking permission to produce on record the original minutes of meeting of the Board of Directors held on 19.02.2011 and 13.12.2011, for proving the capacity of the person to instituting the eviction petition, I consider that since the appellant has failed to prove the ground of eviction, there would be no purpose of going into this issue. It is also a matter of record that the Ld. Trial Court has considered and has returned a finding that it found no infirmity in the capacity of the petitioner company in instituting the present eviction petitions. Even otherwise, it is a settled proposition that substantive rights of the parties may not be defeated on technical grounds of procedural irregularity. Reliance can be placed upon United Bank of India vs. Naresh Kumar and Ors. (1996) 6 SCC 660. I consider that in this regard, no further deliberations are required to be made in view of the discussions made hereinabove.
60. TCR be sent back along with copy of the judgment.
61. Appeal file be consigned to Record Room.
DINESH KUMAR Digitally signed by DINESH
KUMAR SHARMA
SHARMA Date: 2021.12.21 18:54:57 +0530
Announced through (DINESH KUMAR SHARMA)
electronic mode on Principal District & Sessions Judge/
on 21.12.2021. Rent Control Tribunal
New Delhi
RCT No.17/2019
M/s Adroit Holdings Pvt. Ltd vs. M/s Soma Exporters & Ors. Page No. 45 of 45