Delhi District Court
Sh. Amit Bhambri vs M/S Tech-Mech Engineers on 20 April, 2012
IN THE COURT OF SH. AJAY GOEL:SCJ CUM
RC(CENTRAL):DELHI
E- 7/12
Sh. Amit Bhambri,
s/o late Sh. B.S. Bhambri,
r/o 3-Park Area, Karol Bagh,
New Delhi-110005
..... ..... Petitioner
VERSUS
1. M/s Tech-Mech Engineers,
Shop at no. 46, (Ground Floor),
G.B. Road,
Delhi-110006, through its Sole Proprietor
Sh. Babu Lal Sethia
2. Sh. Babu Lal Sethia,
s/o Sh. Jeth Mal Sethia,
Sole Proprietor of M/s Tech-Mech Engineers,
Shop at no. 46,(Ground Floor)
G.B. Road, Delhi-110006
............ Respondents
Date of filing of petition:- 15.3.12
Date of assignment to this court:- 15.3.12
Date of arguments:- 18.4.12
Date of decision:- 20.4.12
JUDGMENT
1. Vide this judgment I shall dispose off the leave to defend application filed by the respondents in the instant eviction petition filed u/s 14(1)(e) r/w Section 25-B of DRC Act.
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2. In the petition it was stated that petitioner is the sole and absolute owner of the suit shop situated on the ground floor of property no. 4, G.B. Road, Delhi by virtue of a memorandum of family settlement executed on 2.10.10. As stated originally the property no. 46-G.B.Rodad, Delhi was acquired by Sh. B.N. Bhambri and on his demise the property was mutated in the records of the authorities concerned in the joint names of late Sh. B.S. Bhambri and late Sh. R.S. Bhambri and on their demise the property was got mutated in joint names of Sh. Amit Bhambri, Rajiv Bhambri,Tripta Bhabri, Smt. Sucheta Bhambri and Sh. Biren Bhambri. All the owners of the property being member of one family entered into an oral family settlement thereby distributing the question families properties including the suit property and in terms of the said settlement the property in question fell to the sole ownership of the petitioner herein. As stated respondents were inducted into the premises in question as a tenant for using the same for commercial use on a monthly rent of Rs.225/- exclusively of electricity charges and with the passage of time the rent was increased from time to time and as on date the rent of the premises is Rs.1250/- per month exclusive of electricity charges and house tax charges. It was stated that the suit shop is required bonafide by the petitioner for his own use and occupation since the petitioner does not own any other suitable E 7/12 Page2/19 accommodation for his use as well as for the use and occupation of his family members dependent upon him. It was stated that the petitioner is running his business under the name and style of M/s B.S.B. Enterprises from a tenanted shop at Nai Sarak, Chandni Chowk at a monthly rent o Rs. 11,000/- and since petitioner does not have any other alternative accommodation to accommodate himself to allow him to run his business from the shop in question in as much as he is facing threat of eviction from his landlords and is likely to face a lot of problems, inconvenience and hardships and his business is likely to suffer in the even of continuing with shifting of his business from one place to another. As stated petitioner wants to settled down his business in the suit shop. As stated wife of petitioner is also running her own business in the name and style of M/s Fashion N Style from the abovesaid tenanted premises and is an income tax assessee/payee. Therefore it was prayed that eviction order for the property in question be passed in favour of the petitioner and against the respondents.
3. Leave to defend application supported by affidavit was filed on behalf of respondents wherein relationship of landlord and tenant was disputed and even the ownership of the petitioner was disputed. Memo of oral partition dated 4.10.10 was challenged on many grounds and same was stated to be E 7/12 Page3/19 no settlement in the eyes of law and even same was never informed to the respondents. As stated last rent receipt has been issued in the name of Smt. Tripta Bhambri and Smt. Suchita Bhambri. It was stated that bare perusal of the alleged memorandum of oral partition it is clear that besides the property no. 46, G.B. Road, Delhi petitioner is also the owner of property no. 47, G.B. Road, Delhi and property no. 3 Parkview, Karol Bagh, New Delhi. As stated shops and portions i.e. mezzanine floor comprising of one room of property no. 46, G.B. Road, first floor and second floor bearing flat no. 4 of property no. 47, G.B.Road, mezzanine floor of property no. 47 and first floor of property no. 3, Parview, Karol Bagh also came in the share of petitioner. It was stated that petitioner admittedly is running his business from Chandani Chowk which is main hub for persons dealing in whole, retail, distributorship of fabrics, dress material, garment etc. whereas on the other hand G.B. Road is the main hub of electrical and machinery merchants and Sanitary, thus it is beyond imagination that the petitioner will shift his business of fashion fabrics to the suit shop. It was further stated that petitioner has also negotiated the deal for purchase of shop no. 883, First Floor, Nai Sadak, Chadni Chowk and is now the owner of the said property as well as is also owner of two shops in Katra Mahesh Dass and one in Katra Neel. As stated property no. 46 and 47 G.B. Road is E 7/12 Page4/19 having 19 tenants in total including the respondents and petitioner and other signatories of memorandum of oral partition issued legal notices to all the tenants and negotiated for higher rent and for payment of a huge sum of pagri and since respondents showed their inability to pay the same, the petitioner filed the instant petition. It was also stated that in September, 2011 petitioner got vacated one shop on the ground floor in the property no. 46, G.B.Road, Delhi and has again re-let the same on higher rent and thus the only motive of the petitioner in seeking eviction of the suit shop is to again re-let the suit shop on higher rent. It was stated that the present petition is also barred u/s 53-A of Transfer of Property Act asthe respondents had come in possession of the suit shop in pursuance tot he oral agreement to sell dated 1.2.1985 and a rent agreement on the same date was executed only as a security to be given to the respondents. It was stated that there is no real, genuine and bonafide need of petitioner and accordingly it was prayed that instant petition be dismissed or in alternative respondents be granted leave to defend to contest the petition.
4. Reply to leave to defend application was filed by the petitioner in which contents of leave to defend were denied and those of the petition were reiterated.
5. Rejoinder to leave to defend application was also filed by the respondents E 7/12 Page5/19 in which contents of the leave to defend were reiterated and those of the reply were denied.
6. I have heard Ld. Cl. for both parties and perused the record.
7. To make out a case here u/s14(1) (e) of DRC Act the landlord has to prove the following:-
➢ That he is owner/landlord of the suit premises;
➢ That the suit premises were let out for particular purpose; ➢ That he has no other reasonably suitable alternative accommodation and ➢ That the premises are required bonafide by him for occupation for himself or for any member of his family dependent upon him.
8. The aforesaid is dealt as follows:
i. In the instant case relationship of landlord and tenant between the parties is disputed as well as the ownership of the petitioner is challenged. As far as question of ownership/landlordship is concerned it is admitted case of respondents that the rent was being tendered to Tripta Bhambri and Smt. Suchita Bhamri meaning thereby they have admitted them as landlord. On the other hand the petitioner relied upon memorandum of oral partition dated 4.10.10 whereby as per mutual settlement between LRs of Sh. R.S. Bhambri and Sh. B.S. Bhambri, the suit property fell in the E 7/12 Page6/19 share of the petitioner. Respondents have raised many objections regarding the said memorandum of oral partition stating that the same to be not signed by all the legal heirs, is not an unregistered document, is forged and fabricated, same is disputed by some of the legal heirs of late Sh. B.S. Bhamri and R.S. Bhambri and same is prepared in back date just before filing of the eviction petition. The copy of the said memorandum of oral partition is on record and same bears signatures of all the parties named therein and it is argued by the Cl. for petitioner that names of all LRs of Sh. B.S. Bhamri and R.S. Bhamri are mentioned in the said memorandum except for Smt. Bhawna d/o late Sh. R.S. Bhambri who has relinquished all her rights in the said properties as per duly registered relinquishment deed dated 22.7.92 which is on record. Certain discrepancies were also pointed out by the respondent in the said memorandum of partition and reply filed by the petitioner to leave to defend application to which petitioner has argued that inadvertently some portions were wrongly mentioned in the partition deed but factum that suit property fell in the share of petitioner is correct and correct description of other portions/properties were correctly mentioned in the reply. It is also stated by the respondents that the said partition is disputed by some of the LRs of Sh. B.S. Bhamri and R.S. Bhambri. Though it is correct that description of portions in property no.
E 7/12 Page7/19 47 G.B. Road are different in memorandum of partition and reply but fact remain that the suit property is correctly mentioned in the said memorandum of partition and even if some portions of other property are wrongly mentioned in the said memorandum of partition the same has been clarified by the petitioner in his reply and even otherwise it is between the petitioner and his other relatives and respondent has nothing to do with it.
It is also to be considered that if other LRs of late Sh. B.S. Bambri and late Sh. R.S. Bambri had any objections they might have come to this court raising the said objections which has not been done neither respondents have produced any document or proceedings before any court of law whereby the said memorandum was challenged by the LRs of late Sh. B.S. Bhamri and Sh. R. S. Bhambri, hence the said objection of the respondent is rejected. As far as registration of the same and stamp duty, concerned it is settled law that family arrangement and partition are not necessarily be registered and stamp duty is not payable on the same. Petitioner has rightly relied upon AIR 2007 Delhi 219 Nitin Jain Vs. Anuj Jain and Ors. wherein it was held that " Oral partition in case of joint families is not an instrument as envisaged u/s 2(15) and no stamp duty is payable on the oral partition." Reliance is also placed upon AIR 1988 SC 881 Roshan Singh & Ors Vs. Zile Singh & Ors. wherein it was held that "Partition of E 7/12 Page8/19 ancestral properties and subsequent memorandum of partition embodying factum of partition was only a family arrangement and its registration was not necessary" . Hence the objections raised by the respondents regarding the registration or stamp duty of said memorandum of oral partition are rejected. Respondents have also averred that the petitioner has failed to give any particulars as to how the property was acquired by late Sh. B.N. Bhambri and Sh. R.S. Bhambri. Respondents admittedly were tendering the rent to Tripta Bhambri and Sucheta Bhambri who were wifes of late Sh. B.S. Bhambri and late Sh. R.S. Bhambri and if they had any doubt regarding the ownership or landlordship of late Sh. B.S. Bhambri and late Sh. R.S. Bhambri then should have raised the same much prior or even could have initiated some legal proceedings against them which is not the case here and now it does not lie in their mouth to raise objection regarding the same. It is also averred by the respondent that if petitioner became the landlord of the suit premises then why he has been issuing rent receipts in the name of Tripta Bhambri and Smt. Suchita Bhambri. Certain rent receipts are also placed on record by the respondents in support of said contention. Legal notice dated 23.12.11 sent by petitioner to the respondents is admitted by the respondents and copy of reply to the said notice is also placed on record by the respondents.
E 7/12 Page9/19 In the said reply it was admitted by the respondents that petitioner had conveyed to them they he had become the owner of the suit property and it is not surprising if petitioner had issued rent receipts under his signatures for an on behalf of Smt. Tripta Bhambri and Suchita Bhambri and has not substituted his name since those two ladies were none other than his own mother and aunty and admittedly they were landlord/owner earlier and even after the memorandum of partition they still remained the landlord and the receipts issued in their name will not dis-entitle the petitioner from his status. Reliance is placed upon 157(2009)DLT 450 Ramesh Chand Vs. Uganti Devi in which Hon'ble High Court wherein it was held that " If landlord has been receiving rent for his own benefit and not for and on behalf of someone else, the requirement of law that he is owner as well as landlord is fulfilled." It has been further held that " he shall be considered as owner howsoever imperfect his title over the premises may be and that will not come in the way of eviction petition u/s 14(1)(e) of DRC Act and even otherwise Section 116 of Indian Evidence Act create estoppel against such a tenant and in these circumstances the tenant should surrender the possession of the premises otherwise the tenant if denies the title of the landlord qua the premises to whom he is paying rent acts dishonestly". Further, support for this view has been E 7/12 Page10/19 taken from Shanti Sharma Vs. Ved Prabha and other AIR 1987 SC 2028 in which Hon'ble Supreme Court has held that "ownership is not to be understood as absolute ownership but only as a title better than a tenant". Documents relied upon by the petitioner have duly supported the claim of ownership/landlordship of petitioner whereas respondents themselves have not disclosed as to who is the owner of the premises in question if not the petitioner and except for the bald assertion nothing has been placed on by the respondent in support of his contention and mere bald assertion will not held the case of respondent. Accordingly in view of the above it is held that petitioner is the owner/landlord of the property in question and there exist relationship of landlord and tenant between the parties and petition is maintainable.
ii. Though the purpose of letting the tenanted premises as mentioned by both the parties is commercial but it is averred by the respondents that Section 14(1)(e) of DRC Act is not applicable to the commercial premises. However I disagree with the said contention of respondents since now it is not material whether the property is residential or commercial as both of them can be got evicted for bonafide requirement. Reliance is placed upon 148(2008) DLT 705(SC) Satyawati Sharma & Anr. vs. UOI wherein the commercial property has also been allowed to be evicted on the ground of bonafide need E 7/12 Page11/19 as the arbitrary classification between residential and commercial tenancy has been done away with. Thus in view of the above the question raised by the respondents herein has become irrelevant.
iii. As far as third ingredient is concerned respondent has contended that petitioner is also owner of mezzanine floor comprising of one room in property no. 46, G.B.Road, first floor, second floor( flat no. 4), mezzanine floor of property no. 47, G.B. Road, Delhi as well as first floor(left side), Main Building comprising of three rooms, one covered verandah, one drawing-dining, kitchen and three bathrooms with servant quarters on the terrace floor of property no. 3, Parkview, Karol Bagh. On the other hand petitioner submitted that portions/ properties which fell in the share of petitioner in property bearing no. 46 and 47 G.B. Road as mentioned in the oral memorandum of partition are all under the tenancy of various tenants and are not in vacant possession and property at Karol Bagh is being used by the petitioner for residential use for him and his family. Respondent themselves in para no. H. of the leave to defend application have stated that "properties no. 46 & 47 G.B. Road is having 19 tenants in total including them and petitioner alongwith other signatories of memorandum of oral partition issued legal notices to all the tenants and negotiated for higher rent with them and the tenants were still continuing with them" meaning E 7/12 Page12/19 thereby they themselves have supported/admitted the contention of the petitioner that the said properties are under tenancy of various tenants. When the various portions of property no. 46 and 47 G.B. Road are under tenancy and are not vacant then it cannot be said that they are available with the petitioner to fulfill his requirement and hence the said plea of the respondent is hereby rejected. As far as property at Karol Bagh is concerned the same is stated by the petitioner to be a residential property and except for the mere denial nothing has been produced on record by the respondent to show that the said property is not residential or is used as a commercial property by the petitioner. Hence the said plea is also rejected. It is also averred by the respondents that petitioner is also the owner of property no. 883, First Floor, Nai Sadak, Chandni Chowk whereas it was stated by the petitioner that he is a tenant in respect of the said shop. Copy of registered lease deed of the said property is also on record wherein it is mentioned that the lease will expire on 31.45.12 which duly support the contention of the petitioner whereas nothing has been brought on record by the respondents to show that the said property is owned by the petitioner. Even in para no. F of the leave to defend application respondents themselves have mentioned that 883, First Floor, Nai Sadak, Chandni Chowk, Delhi is being used as sales office by the petitioner. Thus E 7/12 Page13/19 respondents themselves have contradicted their stand and mere denial will not help the case of the respondents and hence their plea with respect to the said property is hereby rejected. It is also contended that respondents have come to know that petitioner has brought two more shops in Katra Neel and Katra Mahesh Dass but except for the said bald assertion nothing has been placed on record in support of the said contention. It is also averred by the respondents that the relinquishment deed of Smt. Bhawna Kalra dated 24.7.92 as filed by the petitioner has also got certain properties mentioned in it which are available to the respondent. However petitioner in reply to the said contention stated that those properties are residential property and cannot be used for commercial purpose. When petitioner has stated that said properties were residential property and have been sold off and there is nothing to show on record that they are commercial property, hence this argument also does not exist. Respondents have relied upon Vijay Nayyar Vs. Om Prakash 2011(126) DRJ 323 and Jatinder Singh Nanra Vs. Sarita Rane 2011(124) DRJ 574 and argued that where tenant has been able to show prima facie that landlord was having sufficient accommodation, leave to defend was granted to the tenant. There is no dispute regarding the ratio of law laid down by the said authorities, however the same are not applicable in the instant case since in the instant E 7/12 Page14/19 case respondents have failed to show that petitioner are in possession/occupation of sufficient accommodation with him. Hence in view of the above, it is held that petitioner has no suitable alternative accommodation available with him to meet out his requirements. iv.As far as bonafide need of the petitioner is concerned the only contention raised by the respondents is that petitioner is running the registered office of his company from property no. 4755, Roshanara Road, Delhi and sales office from 883, First Floor, Nai Sadak, Chandni and it is well known fact that Nai Sadak and Chandni Chowk is the main hub for the persons dealing in wholesale, retail and distribution ship of fabrics whereas G.B. Road is the main hub of electrical and machinery merchants. I disagree with the said contention of respondents since suitability of the accommodation is to be seen by the landlord and tenant cannot dictate terms, even otherwise when petitioner himself is running his business from a tenanted premises then it is quite likely for him to desire running his business from his own shop. There is also no bar on running of a cloth shop in the vicinity where shops of electrical goods are there and rather the same will increase the versatility of the locality if different types of goods and material are available in the same locality. Hence the said plea of the respondents is also rejected. No other ground is raised to challenge the E 7/12 Page15/19 need of petitioner on any specific ground and it is merely denied that the need of the petitioner is not bonafide. On the other hand petitioner has specifically stated that the tenanted premises is required by him since he wish to shift his business as he is facing threat of eviction at the hands of his landlord. In support of the said plea copy of lease deed of his shop is on record which clearly shows that lease is about to expire on 31.5.12 and hence need of petitioner seems justified. On the other hand respondents relied upon Liaq Ahmed & Ors Vs. Habeeb Ur Rehman decided on 28.4.00 and argued that if the tenant discloses any ground or plead a cause which prima facie is baseless, unreal and unfounded controller is obliged to grant him leave to defend. However the said authority is not applicable in the instant case since in view of the above findings respondents have failed to show prima facie that need of petitioner is not bonafide. Accordingly in view of above it is held that the requirement of the petitioner seems to be well justified and respondents cannot dictate terms to the landlord and landlord is best judge of his requirements. For this reliance is placed upon :-
➢ Prativa Devi Vs. TBN Krishnan (1996)5 SCC 353 wherein it was held that " The landlord is the best judge of his residential requirements. It is not concern of the court to dictate to the landlord how and in what E 7/12 Page16/19 manner he should live or to prescribe for him a residential standard for their own. There is no law which deprives the landlord of the beneficial enjoyment of his property."
➢ Sarla Ahuja Vs. United Insurance Company 1998(8) SCC 119 wherein it was held that it is not for the tenant to dictate terms for the landlord as to how and when he can adjust himself without getting possession of the tenanted premises. It was further held that when the landlord asserts that he required his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bonafide.
➢ (1996) 5 Supreme Court Cases 344 Meenal Eknath Kshirsagar Vs. Traders & Agencies and Another wherein it was observed that " It is for the landlord to decided how and in what manner he should live and he is the best judge of his residential requirement. If the landlord desires to beneficially enjoy his own property when the other property occupied by him as a tenant or on any other basis is either insecure or inconvenient it is not for the courts to dictate to him to continue to occupy such premises."
9. Further, the respondent has also raised the contention that the site plan filed by the plaintiff is not correct, however respondent himself has not E 7/12 Page17/19 filed any site plan on his behalf to show as to how the site plan filed by the plaintiff is not correct and hence the said objection of respondents is hereby rejected.
10.It was further argued on behalf of the respondent that petitioner wants to get the premises in question evicted for his ulterior motives and would misuse the same after eviction. The said apprehension is already taken care of in the DRC Act itself by our legislative fore fathers while enacting the laws who have already considered possibility of misuse in the hands of unscrupulous landlords and thereby inserted Section 19 of DRC Act according to which " Where a landlord recovers possession of any premises and the premises are not occupied by the landlord or by the person for whose benefit the premises are held, within two months of obtaining such possession, or the premises having been so occupied are, at any time within three years from the date of obtaining possession, re-
let to any person than the evicted tenant without obtaining the permission of the Controller such tenant can be put back to the premises or can be paid such compensation as the Controller thinks fit." For the abovesaid reliance is also placed upon 2000 Rajdhani Law Reporter 83 wherein it was observed that "if the requirement of landlord is not bonafide and if a landlord abuses the process of the court, obtains an E 7/12 Page18/19 order of eviction, subsequently lets out the property or sells the same, the tenant can always apply for restitution u/s 19 of the Act."
11. In view of the above it is held that respondent has not been able to show existence of any triable issue whereas petitioner has been able to show that he has no alternative places available with him for meeting out his requirement and the suit property is bonafidely required by him. Accordingly leave to defend application of respondent is hereby declined and eviction order against the respondent and in favour of petitioner is passed with respect of suit shop situated at ground floor forming part of the property bearing no. 46 G.B Road, Delhi as shown in red colour in the site plan now Ex. C-1. However this order shall not be executable before the expiry of period of six months which time is granted to the respondents to vacate the premises. No order as to cost. File be consigned to record room.
Announced in open court (Ajay Goel)
on 20.4.12 SCJ cum RC(Central)/Delhi
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