Delhi High Court
Raj Gopal (Huf) vs State Bank Of India on 6 April, 1999
Equivalent citations: 1999IIIAD(DELHI)14, 79(1999)DLT229, 1999(49)DRJ285
ORDER Dr. M.K. Sharma, J.
1. The present suit was instituted by the plaintiffs against the defendant for recovery of possession of the suit property being No.22/90, Connaught Circus, New Delhi, and also for recovery of mesne profits/damages for use and occupation and for recovery of arrears. It is stated in the plaint that the plaintiffs are the owners of the entire mezzanine floor and the entire ground floor of suit property No.22/90, Connaught Circus, New Delhi and the plaintiff is acting through its Karta Shri Raj Gopal. The defendant bank is a tenant to the extent of 1544.01 Sq. Ft. on the Mezzanine floor and to the extent of 1623.07 Sq. Ft. on the ground floor, thus making a total of 3167.08 Sq. Ft. of the said suit property. The said property was let out to the defendant bank in the month of February 1981 on a monthly rent of Rs.23,878.40 in terms of the communication of the defendant bank dated 15.5.1979 read with the letter dated 11.5.1981 for a period of 5 years. A lease deed was required to be executed between the parties. But it is an admitted position that no lease deed was either executed or registered between the plaintiff and the defendant bank. On 27.4.1991 a meeting was held between the plaintiff and the officials of the defendant bank wherein it was agreed that lease deed would be executed for an initial period of 5 years i.e. from 1981 to 1986 and from 1986 the bank would increase the rent by 25% and a fresh lease deed will be executed relating to period 1986 to 1991 with options for renewal. Subsequent thereto also several other meetings took place between the plaintiff and the defendants wherein also it was agreed that the defendant bank would enhance the monthly rent and that fresh lease deed would be executed between the parties. However, in pursuance of the aforesaid discussions no lease deed came to be executed between the parties nor the rent for the suit premises came to be enhanced. The plaintiff however, issued legal notice to the defendant terminating the tenancy of the bank and requiring the defendant bank to handover and convey vacant and peaceful possession of the suit property.
The defendant bank having failed to do so the present suit was instituted by the plaintiff.
2. The suit is contested by the defendant by filing a written statement. The suit is contested mainly on two counts namely - that the plaintiff is neither the owner nor the landlord of the suit property and therefore, the suit could not have been instituted by the plaintiff. The next defense which is taken by the defendant in the written statement is that the legal notice served by the plaintiff is premature and issued by a third party and the same is also not properly and validly served. It is also stated that pursuant to the agreement arrived at between the parties the defendant is entitled to renewal of the lease and therefore, no decree for eviction could be passed against the defendant.
3. On the pleadings of the parties the six issues were framed on 21.8.1997. Subsequent to the aforesaid position the plaintiff filed an application under Order 12 Rule 6 of the Code of Civil Procedure seeking for a decree for possession of the suit property on the basis of admission contained in the written statement filed by the defendant. The aforesaid application is opposed by the defendant on the ground that no admission has been made by the defendant in its written statement. It is also stated by the learned counsel for the defendant that the written statement does not contain any admission also for passing a decree for the remaining prayers including that of payment of mesne profits, and therefore, the plaintiff is not entitled to a decree and the suit is required to be put up for trial, particularly when issues have already been framed in the suit.
4. I have heard the learned counsel appearing for the parties and have also gone through the entire records and the pleadings. The suit is founded on the statement that the plaintiff is the owner of the property. It is contended by the counsel appearing for the defendant as also in the written statement that the plaintiff is not the owner of the suit property for the initial lease agreement with the defendant was entered into with Smt. Pannu Dewan Charitable Trust and, Shri Raj Gopal, Smt. Sushma and Master Rajiv Dewan and therefore, the legal notice issued and the present suit instituted on behalf of Raj Gopal (HUF) is not maintainable and the legal notice is neither valid nor legal and the suit is liable to fail on that count alone.
5. On the aforesaid issue raised before me I have also heard Mr. Arvind Nigam, learned counsel appearing for the plaintiff.
6. Mr. Nigam has placed on record copy of the cheque dated 8.3.1995 issued by the defendant in favour of the plaintiff which is a payment towards rent of the suit premises. A copy of the TDS certificate issued by the defendant is also placed on record which indicates that the said TDS certificate for the rent paid for the suit premises is in the name of the present plaintiff. A statement of account maintained by the defendant bank in respect of the bank account of the plaintiff is also placed on record. A perusal of the entries made in the said statement of account clearly indicates that sum of Rs.23,878.40 was credited by the defendant bank in favour of the plaintiff on different dates towards monthly rental of the premises. These records therefore, make it crystal clear that the defendant recognised the plaintiff as the owner of the suit property and also as its landlord and thus the authority of the plaintiff either to issue the legal notice or to institute the present suit cannot be challenged by the defendant. This fact is clear and apparent on the face of the record which indicates that there is a clear admission on the part of the defendant that the plaintiff is the landlord of the defendant in respect of the suit property. The defendant has also denied service of legal notice on the defendant by the plaintiff. The plaintiff has placed on record copy of the legal notice, the AD card as also the certificate of the postal authority which are at pages 53, 56 & 57 respectively. On close scrutiny of the said documents I have no hesitation in my mind to hold that the legal notice issued by the plaintiff to the defendant terminating the tenancy and calling upon the defendant to handover possession of the suit property was duly and validly served on the defendant as is required under the provisions of of the Transfer of Property Act. So far as the issue with regard to the renewal of the tenancy is concerned, it is an admitted position in the present suit that no registered lease deed was executed between the parties in respect of the suit premises at any point of time. Counsel appearing for the defendant however, sought to rely on the minutes of the meeting held on 30.10.1992 which is Ex.'D'. The said document records certain decisions that the monthly rent be raised by 25% from February 1986 and further raise of 25% from February 1991 and that the arrears on account of enhancement of rent would be payable to the landlord provided lease deed w.e.f. 1.11.1992 for two blocks of 5 years each with renewal clause is executed by the landlord and the cost for execution of the lease deed would be borne by the landlord and the bank equally. There is a clause in the said minutes that as the total rent of the premises would exceed Rs.2 lacs per annum necessary sanction/approval of the local Board would also be sought for. Counsel for the plaintiff states that no such approval was received nor any lease deed was executed between the parties as stipulated in the said minutes and therefore, the said decisions recorded therein were not given effect to by the parties and have no have no relevance to the facts and circumstances of the present case.
7. Counsel for the defendant however, stated at the bar that a sanction/approval was received from the local Board. Be that as it may, the fact remains and is proved that no registered lease deed was executed between the parties in respect of the suit premises. Thus the tenancy between the parties is a monthly tenancy effective from month to month. The minutes of the meeting held between the parties on 30.10.1992 cannot in any manner change the nature and character of the tenancy which was monthly tenancy. The said minutes were not given effect to and cannot be relied upon for the purpose of this case. The same does not in any manner create any tenancy nor does it bestow any right of renewal of lease. In the facts and circumstances of the present case the tenancy was a month to month tenancy and could be terminated by the landlord by giving 15 days notice in terms of the provisions of Section 106 of the Transfer of Property Act. I have already held that such a notice was issued by the plaintiff to the defendant which was also found to have been duly served on the defendant & the lease was validly determined.
8. The purport of Rule 6 of Order 12 of the Code of Civil Procedure is to enable the party to obtain speedy judgment atleast to the extent of the relief which, according to the admission of the other party, he is entitled to. The Division Bench of this court in Surjit Sachdev Vs. Kazakhastan Investment Services Pvt. Ltd. & Others, has held that admission on which judgment could be claimed must be clear and unequivocal one and that such an admission made in the suit or even for a part of the claim enables a party to get a decree passed to the extent of the admission. The aforesaid proposition of law laid down by the Division Bench of this Court is well settled that in case of clear and unequivocal admissions the suit could be decreed which may be whole or in part for one of the reliefs. In the aforesaid case the Division Bench also laid down the factors which deserve to be taken into consideration to enable the court to pass a decree in plaintiff's favour as regards possession in such like suit which are - (a) existence of relationship of lessor and lessee or entry in possession of the suit property by defendant as a tenant; and (b) determination of such relation in any of the contingency, as envisaged in Section 111 of the Transfer of Property Act. It was also held that an unequivocal admission of the above two factors would entitle the plaintiff to a decree for possession and that such admission need not be made expressely in the pleadings. Even on constructive admissions the court can proceed to pass a decree in plaintiff's favour.
9. On appreciation of the facts and circumstances delineated above both the aforesaid factors as elucidated by this court have been found to be satisfied and therefore, on the basis of such constructive admissions this court can pass a decree in favour of the plaintiff decreeing the suit for recovery of possession of the suit property by the plaintiff, which I hereby do. The application accordingly, stands allowed to the aforesaid extent. A decree is passed in favour of the plaintiff and against the defendant decreeing the suit for recovery of possession in respect of the suit premises. The defendant accordingly, is directed to put the plaintiff in possession of the suit property within a period of 2 months from today. Decree be drawn in accordance with law.
10. Insofar the remaining issues with regard to ascertainment of mesne profits and payment of arrears of rent etc. are concerned I am of the considered opinion that there is no admission in respect of the said reliefs. The said reliefs are to go for trial and shall be considered by appointing a Local Commissioner for determination of the amount of mesne profits from the date of the claim till the date of delivery of possession, for which necessary orders will be passed on the next date. Re-notify on 27.7.1999.