Delhi District Court
Unknown vs M/S Bata India Ltd on 30 November, 2010
IN THE COURT OF JITENDRA KUMAR MISHRA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 12, TIS
HAZARI COURTS, DELHI.
Civil Suit no.: 103/2008
Unique case ID no. : 02401C0086472002
1 M/s Anupam Towers P. Ltd.
A company incorporated under
the Companies Act, having
its registered office at
23A, Najafgarh Road,
New Delhi110 015.
2 M/s Delhi Buildwell Pvt. Ltd.
A company incorporated under
the Companies Act, having
its registered office at
23A, Najafgarh Road,
New Delhi110 015.
3 M/s Sunglow Overseas Pvt. Ltd.
A company incorporated under
the Companies Act, having
its registered office at
23A, Najafgarh Road,
New Delhi110 015.
4 M/s Shalimar Town Planners P. Ltd.
A company incorporated under
Civil Suit no.: 103/2008 Page 1 of 23
the Companies Act, having
its registered office at
23A, Najafgarh Road,
New Delhi110 015.
5 M/s Sunaina Towers Pvt. Ltd.
A company incorporated under
the Companies Act, having
its registered office at
25/15, Punjabi Bagh (Esat),
New Delhi110 015.
6 M/s GAG Constructions Pvt. Ltd.
A company incorporated under
the Companies Act, having
its registered office at
25/15, Punjabi Bagh (Esat),
New Delhi110 015.
..........Plaintiffs
Versus
M/s Bata India Ltd.,
A company incorporated under
the Companies Act, having
its registered office at
6A, S.N. Banerjee Road,
P.S. Taltala,
Calcutta700 013.
Civil Suit no.: 103/2008 Page 2 of 23
And also at:
23A, Najafgarh Road,
New Delhi110 015.
Services to be effected through
its Secretary or any of its
Principal Officer.
.........Defendant
Date of institution of the suit : 06.11.2000
Date of filing of application U/O 12 Rule 6 CPC : 13.12.2010
Reserved for judgment on appl. U/O 12 R. 6 CPC : 30.11.2010
Date of pronouncement of judgment : 30.11.2010
JUDGMENT (Oral)
1 This is an application under Order 12 Rule 6 read with Section 151 CPC filed by the plaintiffs for passing of decree on the basis of admissions contained in the written statement. 2 For the disposal of this application, let facts of the suit as mentioned in the plaint be referred. Briefly stated the facts of the case are:
(a) Plaintiffs are the companies incorporated under the Companies Act and the defendant is also a company incorporated under the Companies Civil Suit no.: 103/2008 Page 3 of 23 Act;
(b) Plaintiffs no. 1 to 4 being owners and landlords of the property bearing no. 23A, Najafgarh Road, New Delhi110 015, vide unregistered lease agreement dated 06.1.1999 entered into with the defendant, agreed to let out to the defendant half portion of the second floor having an area of 3825 sq. ft. approximately on a monthly rent of Rs. 6,000/ which was liable to be increased to Rs. 6,720/ p.m. w.e.f. 01.9.2000 ; (c ) Defendant accordingly had been in possession of the suit premises as a tenant under the plaintiffs till such time the tenancy was terminated by the plaintiffs on the basis of unregistered lease agreement dated 06.1.1999 ;
(d) During the pendency of the tenancy, plaintiffs no. 1 to 4 vide agreement to sell have agreed to sell the entire suit property to plaintiffs no. 5 and 6 and accordingly directed the defendant to attorn plaintiffs no. 5 and 6 as their landlords Civil Suit no.: 103/2008 Page 4 of 23 and to pay rent from 01.4.2000 to them ;
(e) Since the lease deed was not got registered before the SubRegistrar therefore, in law it is to be treated as a monthly tenancy starting on 1st day of each English calender month and ending with the last day of every month determinable at any point by giving 15 days notice under the provisions of Section 106 of Transfer of Property Act ;
(f) Since the plaintiffs did not desire to retain the defendant as their tenant, notice dated 03.10.2000 was issued to the defendant for termination of the tenancy of the defendant w.e.f. 31st October, 2000. Notice was given to the defendant by all the six plaintiffs so as to avoid any possible dispute regarding relationship of landlord and tenant ;
(g) The said notice was duly served upon the defendant on 6th October, 2000 at its Delhi Office. Thus, the defendant is bound/liable to Civil Suit no.: 103/2008 Page 5 of 23 vacate and handover the physical vacant possession of the suit premises ;
(h) By this suit, the plaintiff is seeking decree for possession and mesne profits/damages. 3 It is submitted by the plaintiffs in the application that since the defendant had made categorical admission in the written statement therefore, by this application, the plaintiff is seeking decree/judgment on admission.
4 Reply to the application is filed by the defendant wherein it is stated that the contents of the application are frivolous. It is further denied that the occupation of the defendant is illegal or unauthorized or that of a rank trespasser.
5 Written statement of the defendant is perused wherein the relationship of the defendant with plaintiffs no. 1 to 4 is admitted though attorney of plaintiffs no. 5 and 6 is disputed by the defendant. It is stated that the defendant is a tenant under the unregistered lease deed dated 06.1.1999 as well as terms and conditions contained therein.
6 Thus, it is the admitted case of the defendant that the defendant is a tenant at the suit property in pursuance of lease agreement dated Civil Suit no.: 103/2008 Page 6 of 23 06.1.1999. During the course of arguments, ld. counsel for the defendant relied upon copy of letter dated 09.11.1998 which was written by attorney of the Directors of the plaintiff wherein it is mentioned:
"With reference to leasing of our premises at 52 B, Rama Road, New Delhi and 20A / 23A, Najafgarh Road, New Delhi, we hereby accept the terms and conditions offered by you, subject to the condition that the premises leased out to you will be used only for the purpose mentioned in agreement"
Along with this letter, the terms and conditions are also enclosed. Ld. counsel for the defendant during the course of arguments submitted that no reply to this letter was given by the defendant to the plaintiffs but only a lease deed dated 06.1.1999 was executed. It is further stated that this lease deed bears the signatures of the plaintiffs and also of Vice President of the defendant. 7 Admittedly, this lease deed was not registered. This lease deed also executed on Rs. 10/ stamp paper. However, on the record, photocopy of this document is available but copy of the back side of the stamp paper is not available so that this court could ascertain who had purchased this stamp paper.
Civil Suit no.: 103/2008 Page 7 of 23 8 During the course of arguments, it is contented by ld. counsel for the plaintiffs that since this lease deed was not registered in accordance with the law or the plaintiffs did not take steps to get it registered or to pay necessary stamp duty upon this document therefore, this lease deed cannot be looked into as a matter of evidence.
9 Original of this document is not available on the record as it is stated by the parties that pertaining to this document, other litigations are also pending and that document might be filed in some other case. However, no certified copy of this document is available on the record as admitted by the parties themselves present in the court. This document is Mark A, as available in the file. 10 During the course of arguments, it is further stated by ld. counsel for the plaintiffs that since this document was not executed in accordance with the law therefore, no rights have been created with the defendant in pursuance of this document. 11 Ld. counsel for the plaintiffs relied upon Section 107 of the Transfer of Property Act, 1882 which states:
"107. Lease how made. A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, Civil Suit no.: 103/2008 Page 8 of 23 can be made only by a registered instrument"
12 On the other hand, ld. counsel for the defendant relied upon Section 17 (2) (v) of the Registration Act, 1908 and submits that any document which creates a right to obtain another document, does not cover under Section 17 (1) of the Registration Act, 1908. 13 This court does not agree with the contention raised by ld. counsel for the defendant as document mark A is not an another document but it was document itself upon which the defendant exercised rights over the suit property. Letter dated 09.11.1998 is a document which was issued prior to the lease deed upon which the lease deed Mark A was executed but upon letter dated 09.11.1998, the parties are not exercising their rights but only upon document Mark A i.e. lease deed and in my considered opinion, this is not a document which is covered under Section 17 (2) (v) of the Registration Act, 1908.
Moreover, it is the defendant who did not proceed further to get registered this document. During the course of arguments, it is contended by ld. counsel for the defendant that it was the plaintiffs who have to pay the necessary stamp upon this document and only thereafter this document had to be registered after payment of Civil Suit no.: 103/2008 Page 9 of 23 necessary stamp along with registration charges. Section 29 of the Indian Stamp Act, 1899 states: "29. Duties by whom payable.In the absence of an agreement to the contrary, the expenses of providing the proper stamp shall be borne,"
"(c) in the case of a conveyance (including a reconveyance of mortgaged property)by the grantee; in the case of a lease or agreement to leaseby the lessee or intended lessee;"
According to this provision of law, it was the defendant who was liable to pay the necessary stamp as he was/is a lessee upon the suit property.
14 At this stage, counsel for the defendant relied upon the terms and conditions enclosed with letter dated 09.11.1998 where it is mentioned.
"(c) The rent will continue to be at the existing rate as per the twenty one years' lease, which is valid till 2015 AD. There will be no change in the terms and conditions of the present lease. BIL will not be responsible for any cost outside the existing lease agreement with the landlord."Civil Suit no.: 103/2008 Page 10 of 23
Ld. counsel for the defendant submitted that the defendant was not responsible for any cost outside the existing lease agreement with the landlord and for this reason, it was the plaintiffs who had to pay necessary stamp charges as well as the registration charges. 15 As per the document referred by ld. counsel for the defendant himself, it is mentioned that the defendant was liable to pay the cost of the lease agreement with the landlord. In accordance with this document also, it was the duty of the defendant to pay the stamp duty as well as the registration charges. The registration charges was not paid by the defendant. Stamp duty was also not paid by the defendant. In these circumstances, it was the defendant who did not come forward to get registered the lease deed after making payment of necessary stamp as well as necessary charges required for registration. It is not the case of the defendant during the course of arguments that the defendant at any time called the plaintiff to come and registered the lease deed in accordance with the law.
16 At this stage, ld. counsel for the plaintiffs relied upon Section 23 of the Registration Act, 1908 and submitted that this document should have been registered within four months from the date of its execution. Section 23 of the Registration Act, 1908 states: Civil Suit no.: 103/2008 Page 11 of 23
"23. Time for presenting documents.Subject to the provisions contained in section 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution:"
17 Thus, in these circumstances, the plea was not available to the defendant that it was the plaintiffs who did not come forward to get registered the documents but it was only the defendant who did not get registered this document and thus, lease deed is not the document which is executed in accordance with the law. 18 It is submitted by ld. counsel for the plaintiff that Section 49 of the Registration Act, 1908 does not confer any power to the plaintiff in pursuance of lease deed which was not registered in accordance with the law.
19 During the course of arguments, ld. counsel for the defendant relied upon case R.F.A. No. 1995/2005 titled as Sri. J.C. Umashankar Vs. M/s Bata (India) Limited and MANU/SC/0013/2004 titled as Food Corporation of India and Ors. Vs. Babulal Agarwal and submitted that in view of the law laid down in these judgments, the defendant is having a right over the suit Civil Suit no.: 103/2008 Page 12 of 23 property in terms of lease deed. During the course of arguments, it is submitted by ld. counsel for the defendant that since the defendant is exercising the rights over the suit property upon an unregistered lease deed. But in view of the law laid down in these judgments, it was not a case where upon the same document which is not a registered one the parties were exercising their rights. Therefore, the facts of these judgments are not applicable to the facts of the present case. 20 Now a contention is raised by ld. counsel for the defendant that in the written statement, the service of notice upon the defendant has been denied.
21 However, para 14 of the written statement on merits is perused. In the entire paragraph, it is not disputed by the defendant that the address as mentioned on the envelope was incorrect. Service of notice is disputed as it is stated that the AD cards either do not bear the stamp of the post office or necessary entry number but it has not disputed by ld. counsel for the defendant that those AD cards do not bear the correct address of the defendant. Moreover, on the record postal receipts are also available where it is mentioned that the same were dispatched to New Delhi office as well as Kolkatta office of the defendant. On one of the AD card, there is even stamp of the Civil Suit no.: 103/2008 Page 13 of 23 defendant which was of the Kolkatta office. It is submitted by ld. counsel for the defendant that it does not bear the signature of any person on behalf of the defendant. However, it is not disputed by ld. counsel for the defendant that this AD card does not bear the correct address of the defendant. In these circumstances, when the address of the defendant is not disputed then presumption has to be drawn that the postal department which is a public authority, carried out its function in accordance with the law and in due discharge of the public duties. Therefore, dispute of the service of notice as raised by ld. counsel for the defendant is not going to help the defendant. Moreover, ld. counsel for the plaintiffs relied upon case 2009 VIII AD (DELHI) 535 titled as Jindal Dyechem Industries Pvt. Ltd. Vs. Pahwa International Pvt. Ltd. where in para 13 it has been observed:
"13. In my considered view all the requirement of Order XII Rule VI C.P.C. are satisfied, as far as the factum of landlord and the tenant relationship; and the factum of amount of rent is above Rs. 3,500/ both is undisputedly admitted by the defendant and in view of the documents placed on record by the plaintiff, the denial o service of termination of notice is sham and false denial, it was observed by this court that such Civil Suit no.: 103/2008 Page 14 of 23 kind of bald denial should be ignored in such kind of circumstances."
It has been further observed in para 15 of this judgment:
"15. It is apparent from the reading of the section that service shall be deemed to be effectuated by properly addressing, prepaying and posting by registered post, a letter containing the notice. The presumption is no doubt rebuttable but unless it is disproved, dispelled or rebutted, the court can treat the presumption as tantamounting to proof."
Moreover, Section 106 the Transfer of Property Act, 1882 cast a duty to serve the notice in case there is existing lease as it is very much clear by Section 111 (a) of the Transfer of Property Act, 1882 that a lease of immovable property determines by efflux of the time limited thereby. Since in this case there is a lease deed which has not been registered or executed in accordance with the law therefore, it was a tenancy starts from start of every month and determines on the expiry of the month. Moreover, this suit was filed in the year 2000 and the defendant itself got a notice of the pendency of this suit and therefore, accordingly it was the duty of the defendant to vacate the suit premises as the defendant has no right to stay in the suit property upon a document which has not been executed in accordance with the Civil Suit no.: 103/2008 Page 15 of 23 law.
22 Ld. counsel for the defendant further relied upon case AIR 2010 SUPREME COURT 1890 titled as M/s. Jeevan Diesels & Electricals Ltd. v. M/s. Jasbir Singh Chadha (HUF) and submitted that in view of this judgment, the plaintiffs are not entitled for judgment on admission as there is no clear and unambiguous admission.
23 In a judgment 155 (2008) DELHI LAW TIMES 431 titled as P.S. Batra v. S. Anoop Singh & Anr., it was observed by our own Hon'ble High Court in paras 7 to 10 :
"7. At the outset, it is necessary to highlight the object of including Rule 6 to the provision of Order 12 in the CPC, by way of an amendment. The said provision is reproduced below for ready reference :
Order 12. Admission Rule 6.(1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for Civil Suit no.: 103/2008 Page 16 of 23 the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whether a judgment is pronounced under Subrule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date of which the said judgment was pronounced."
8. The scope and ambit of Order 12 Rule 6, CPC was discussed by the Supreme Court in the case of Uttam Singh Duggal & Co. Ltd. v.
United Bank of India, reported as VI (2000) SLT87=III (2000) CLT 299 (SC)= AIR 2000 SC 2740. In the aforesaid case, the supreme Court observed as under :
"Para 12. As to the object of the order 12 Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that 'where a claim is admitted, the Civil Suit no.: 103/2008 Page 17 of 23 Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled'. We should not unduly narrow down the meaning of this rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the fact of which, it is impossible for the party making such admission to succeed."
9. In the case of ITDC Ltd. v. M/s. Chander Pal Sood & Son reported in 84 (2000) DLT 337 DB, a Division Bench of this Court interpreted the provisions of Order 12 Rule 6, CPC by holding :
"Para 17.......Order 12 Rule 6 of Code gives a very wide discretion to the Court. Under this rule the Court may at any stage of the suit either on the application or any party or of its own motion and without Civil Suit no.: 103/2008 Page 18 of 23 determination of any other question between the parties can make such order giving such judgment as it may think fit on the basis of admission of a fact made in the pleadings or otherwise whether orally or in writing......"
10. Another Division Bench of this Court had the occasion to interpret the expression 'otherwise' as used under Order 12 Rule 6, CPC in the case of Rajiv Srivastava v. Sanjiv Tuli and Anr., reported as 119 (2005) DLT 202 (DB). It was observed as below :
"Para 10. The use of the expression 'otherwise' in the aforesaid context came to be interpreted by the Court. Considering the expression the Court had interpreted the said word by stating that it permits the Court to pass judgment on the basis of the statement made by the parties not only on the pleadings but also de hors the pleadings i.e. either in any document or even in the statement recorded in the Court. If one of the parties' statement is recorded under Order 10 Rules 1 and 2 of the Code of Civil Procedure, the same is also a statement which elucidates matter in controversy. Any Civil Suit no.: 103/2008 Page 19 of 23 admission in such statement is relevant not only for the purpose of finding out the real dispute between the parties but also to ascertain as to whether or not any dispute or controversy exists between the parties. Admission if any is made by a party in the statement recorded, would be conclusive against him and the Court can proceed to pass judgment on the basis of the admission made therein............."
24 In another judgment 154 (2008) DELHI LAW TIMES 237 titled as Pooja Aggarwal v. Sakata Inx (India) Ltd., it was observed by our own Hon'ble High Court in para 7 :
"7. In the instant case, the admission regarding relationship of landlord and tenant is not in dispute. The rate of rent is above Rs. 3,500/. The service of notice has been amply shown by the plaintiff by placing the documents on record and the denial by the defendant is a sham and false and the Court can always disregard such sham and false denials. All conditions of passing an order under Order 12 Rule 6 of CPC being satisfied, the trial Court wrongly dismissed the application under Order 12 Rule 6 of the CPC."
25 In another case RFA (OS) No. 1/2005 titled as Mr. Prem Narain Misra Vs. Faire Brothers Export and Import Ltd. decided Civil Suit no.: 103/2008 Page 20 of 23 on July 12 2007, it was observed by our own Hon'ble High Court in para 17 :
"The very objective and purpose of enacting the provision like Order 12 Rule 6 CPC is to enable the Court to pronounce the judgments on admission when the admissions are sufficient to entitle the plaintiff to get a decree. Such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case".
26 In another case C.R.P. No. 119/2007 titled as Mr. P. L. Verma Versus State Bank of India and Anr. decided on September 10, 2008, it was observed by our own Hon'ble High Court in para 4 :
"4. In order to pass a decree of possession in Civil Suit no.: 103/2008 Page 21 of 23 respect of tenanted premises, the Court has only to ensure that the tenancy of the tenant stands terminated either by a valid notice or by efflux of time and there was relationship of landlord and tenant, nothing else is required to be proved."
27 Counsel for the plaintiff relied upon judgment Special Leave Petition (C) No. 20914 of 2004 titled as Charanjit Lal Mehra and Ors. Vs. Smt. Kamal Saroj Mahajan and Anr. decided on 11.03.2005 wherein it is observed by the Hon'ble Supreme Court of India in para 12 :
"12 CPC it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on Admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the" relief to which according to the admission of the defendant, the plaintiff is entitled."
The Supreme Court should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment"
Therefore, in the present case, as appearing to us, there is a clear admission on behalf of the defendants that there existed a relationship of landlord and tenants, the rent is more than Rs. 3500/ and the tenancy is joint and composite one.Civil Suit no.: 103/2008 Page 22 of 23
As such on these admitted facts, there is no two opinion in the matter................."
28 In view of the discussion and observations made herein above, this application under Order 12 Rule 6 read with Section 151 CPC moved by the plaintiffs is partly allowed and the plaintiffs are entitled for judgment regarding the relief of possession of the suit property on admission made by the defendant. Thus, the plaintiffs are entitled for possession of the suit premises against the defendant whereby the defendant is directed to handover and deliver the actual, physical, vacant and peaceful possession of the premises comprising of half portion of the second floor having an area of 3825 sq. ft. approximately of property bearing No. 23A, Najafgarh Road, New Delhi along with all the fittings, fixtures, apparatus, electric fittings etc. annexed thereto and therein to the plaintiffs. For the remaining reliefs as prayed in the suit, the plaintiffs have to prove their case in accordance with the law during the trial.
29 Decree sheet shall be drawn in accordance with this judgment passed by this court.
Announced in the Open Court today on : 30.11.2010 (Jitendra Kumar Mishra) ADJ (Central)12, Delhi Civil Suit no.: 103/2008 Page 23 of 23 Civil Suit No.: 103/2008 30.11.2010 Present Ms. Babita Seth, counsel for the plaintiff.
Sh. Arun Aggarwal, counsel for the defendant. In compliance of previous order, counsel for the plaintiff files documents annexed with list of documents. Copy supplied.
Defendant files reply to application under Order 12 Rule 6 read with Section 151 CPC. Copy supplied.
Arguments heard at length as advanced by counsels for both the parties.
Previous cost is paid by the defendant to the plaintiff. By separate judgment (oral) dictated and pronounced in the open court, application under Order 12 Rule 6 read with Section 151 CPC moved by the plaintiffs is partly allowed and the plaintiffs are entitled for judgment regarding the relief of possession of the suit property on admission made by the defendant. Thus, the plaintiffs are entitled for possession of the suit premises against the defendant whereby the defendant is directed to handover and deliver the actual, physical, vacant and peaceful possession of the premises comprising of half portion of the second floor having an area of 3825 sq. ft. Civil Suit no.: 103/2008 Page 24 of 23 approximately of property bearing No. 23A, Najafgarh Road, New Delhi along with all the fittings, fixtures, apparatus, electric fittings etc. annexed thereto and therein to the plaintiffs. For the remaining reliefs as prayed in the suit, the plaintiffs have to prove their case in accordance with the law during the trial. Decree sheet shall be drawn in accordance with this order passed by this court.
Now to come up for PE on 23.3.2011 in view of the order passed by this court today for remaining reliefs prayed in the suit.
(Jitendra Kumar Mishra) ADJ (Central)12, Delhi 30.11.2010 rk Civil Suit no.: 103/2008 Page 25 of 23