Delhi High Court
Madhav Leasing Finance (P) Ltd. And Anr. vs Erose Educational Infotech Pvt. Ltd. on 20 August, 1997
Equivalent citations: 1997VAD(DELHI)627, 68(1997)DLT846, (1997)117PLR39
Author: K.S. Gupta
Bench: K.S. Gupta
JUDGMENT K.S. Gupta, J.
(1) This order will govern the disposal of I.As. No. 912/97 and 4510/97.
(2) Plaintiffs have filed I.A. 912/97 under Order Xii Rule 6 read with Section 151, Civil Procedure Code alleging that they have filed a suit for recovery of possession etc. against the defendant. Registered lease deed dated January 15,1992 in respect of property No. C-4/17, Safdarjung Development Area, New Delhi, executed for a period of three years expired on January 14, 1995, by afflux of time. Thereafter, defendant- tenant has become liable to hand over vacant and peaceful possession of the said property and also the fitments and fixtures to plaintiffs 1 & 2 respectively. It is alleged that the defendant-Company in the written statement has taken the plea that lease-deed as well as the hire agreement both dated January 15, 1992 were orally renewed for a further period of two years which is strongly repudiated by the plaintiffs, It was prayed that a partial decree as claimed in prayer Clauses (a) & (f) of the plaint be passed on the basis of the admissions madein the written statement without going into other controversial issues against the defendant-Company.
(3) In the reply on the affidavit of S.A.S. Kirmani, Chairman of the defendant- Company, it is stated that both the plaintiffs entered into an agreement with the defendant to extend the lease & hire agreement for a further period of five years with effect from January 15, 1995; that the defendant signed an unregistered agreement dated December4,1994, on the assurance held out by the plaintiffs that the same would be transformed into a registered lease-deed by them. Original agreement is in .possession of the plaintiffs. Copy of the agreement although was in possession of the defendant but at the time of filing of the written statement the same was not available and, therefore, the said fact could not be brought into the written statement. It is emphatically denied that the plaintiffs are entitled to a decree under Rule 6 of Order Xii, Civil Procedure Code as claimed.
(4) In the rejoinder filed to the reply, the plaintiffs have stated that the alleged agreement dated December 4, 1994, has been fabricated by the defendant- Company.
(5) I have heard the learned Counsel for both the parties and have been taken through the record.
(6) Admittedly, property No. C-4/17, Safdarjung Development Area, was let out to the defendant-Company for a period of three years under a registered lease- deed dated January 15,1992 (Annexure-ll) executed inbetweenplaintiffNo.l and the defendant-Company. Clause 2 of this lease-deed which is relevant provides as under: "That the agreement shall be effective for a period of three years commencing on 15th January, 1992. However, the same may be renewed for a maximum period of an additional two years only at the option of the LESSEE. In the event of the Lessee exercising the option of renewing the lease for the said additional two years the rent for such extended period of two yeas shall 25 per cent higher per month and a fresh lease deed shall be executed."
Needless to say that the case of plaintiff No. 1 is that the aforesaid lease-deed came to an end by afflux of time on January 14, 1995 and as no fresh lease-deed was executed before January 14,1995, as required by said Clause 2, she became entitled to recover possession of the aforesaid property from the defendant-Company under Rule 6 of Order Xii, CPC. At die cost of repetition it may be stated that in the reply defendant-Company alleged that under an unregistered agreement dated December 4, 1994, entered into with plaintiff No. 1 lease was mutually agreed to be extended for a further period of five years with effect from January 15,1995 and the defendant was assured that the unregistered agreement would be transformed into a registered lease-deed and the enhanced rent after the expiry of January 15, 1997 would be 50% of the total rent. It is further alleged in the reply that the original agreement dated December 4, 1994, is in possession of the plaintiffs and a copy thereof was in possession of the defendant-Company but the same was not available at the time of filing of the written statement with the result the failure of renewal of lease in writing could not be pleaded in the written statement. It will not be out of place to mention here that in the written statement plea taken is that the defendant-Company intimated plaintiff No. 1 for extension of the lease period by another period of two years on December 4, 1994 and plaintiff No. 1 was requested on December 4, 1994 and January 15, 1995 for preparing a fresh lease- deed /rent note and to get the same registered before the Sub-Registrar. It is settled law that a decree under Order Xii Rule 6, Civil Procedure Code can be passed only where the admission made is clear and unambiguous. In the face of the pleas to the aforesaid effect raised in the reply and the written statement, it cannot be said that the option for renewal of lease within the meaning of the aforementioned Clause 2 was not exercised before January 14, 1995, by die defendant-Company thereby entitling plaintiff No. 1 to recover possession of the tenanted property under the aforesaid provisions. It is not the stage to go into the merits of the aforesaid pleas taken in the reply and the written statement which obviously involve adducing of evidence by both the parties. Thus, it is not a fit case where a decree as claimed in (a) & (f) of the prayer clause made in the plaint can be passed against the defendant-Company under Rule 6 of Order Xii, CPC. Decision in Bajaj Auto Limited v. Behari Lal Kohli, 39 (1989) Dlt 55, relied on behalf of the plaintiff is of no relevance in the matter. I.A. No. 912/97 is, therefore, dismissed.
(7) I.A. No. 4510/97 under order Viii Rule6A read with Section 151,CPC has been filed by defendant-Company alleging that in the written statement Company has raised counter-claim against the plaintiffs for which requisite Court-fee is to be paid. It was prayed that the defendant-Company may be allowed to pay the requisite Court-fee on the counter-claim.
(8) Needless to say that the plaintiffs have contested the application by filing reply.
(9) Admittedly, written statement was filed by the defendant-Company on October 30, 1995 while the present I.A. was moved on May 16, 1997. In the application defendant-Company has not pointed out any circumstance which prevented it from paying the requisite Court-fee earlier. No discretion can be exercised in favour of a party who has not been bona fide, that is. Who is not under any honest mistake or doubt or has not made any honest attempt to comply with the law. Therefore, after a time gap of more than 1" years the defendant-Company cannot be permitted to pay the requisite Court-fee on the counter-claim raised in the written statement. Application is, thus, dismissed.