Delhi District Court
Anil Kumar Bansal vs Gbvm Healthcare Llp on 4 March, 2024
IN THE COURT OF SH. VIDYA PRAKASH
DISTRICT JUDGE (COMMERCIAL COURT)-02
NEW DELHI DISTRICT, PATIALA HOUSE COURTS
NEW DELHI
CS (COMM.) No. 818/2022
CNR NO. DLND01-008214-2022
IN THE MATTER OF:-
(1) SH. ANIL KUMAR BANSAL,
S/O LATE SH. BRIJ MOHAN BANSAL,
MOB NO. 9910656324
E-MAIL: [email protected]
(2) SMT. KUSUM BANSAL
W/O SH. ANIL KUMAR BANSAL
AADHAR NO. 425992741858
MOB NO. 9910656324
BOTH RESIDENT OF:
RZ-136, GROUND FLOOR,
GALI NO. 9, SHIV BLOCK, PANKHA ROAD,
RAGHU NAGAR, NEW DELHI-110045.
......PLAINTIFFS
VERSUS
(1) GBVM HEALTHCARE LLP,
SHOP NO. 147, NANAKPURA MARKET,
SOUTH MOTI BAGH,
NEW DELHI-110021.
(2) SH. PANKAJ ARORA,
S/O LATE SH. AVINASH ARORA,
R/O 37/1, OLD RAJINDER NAGAR,
NEW DELHI-110060.
MOB: 9811212126.
......DEFENDANTS
ORDER
1. Vide this common order, I shall dispose off three CS (COMM.) 818/22 Page 1 of 11 applications i.e., an application under Order VII Rule 11 r/w Section 151 CPC dated 26.11.2022 moved by defendant no. 1, similar application under Order VII Rule 11 CPC dated 26.11.2022 and third application dated 05.08.2023 raising additional grounds in support of previous application under Order VII Rule 11 CPC, both moved on behalf of defendant no. 2, seeking rejection of the plaint.
2. Brief facts relevant and necessary for disposal of the these applications are that the plaintiffs have filed the present suit seeking decree of possession against defendant no. 1in respect of suit shop bearing No.147, area measuring 13.18 sq. mtrs. Approx. situated at Nanakpura Market, South Moti Bagh, New Delhi (hereinafter referred to as the "Suit premises"), recovery of arrears of rent for the period from 18.04.2022 till 19.09.2022 @ 90,000/- per month alongwith interest @12% per annum and arrears of electricity charges amounting to Rs. 1,97,590/-, besides mesne profits @ Rs. 1,25,000/- per month w.e.f., October, 2022 till receipt of vacant possession of the suit premises. The case as set up by the plaintiffs are that they are the owners and landlords of Suit premises, having purchased the same from Sh. Pankaj Arora (defendant No.2), vide registered Agreement to Sell and GPA both dated 18.04.2022 and registered Sale Deed dated 18.08.2022. The defendant No.2 had inducted defendant No.1 as a tenant in the Suit premises vide unregistered Lease Agreement dated 30.07.2020 at a monthly rent of Rs.90,000/-with 15% increase after a period of three years. After purchasing the suit premises by the plaintiffs, they stepped into the shoes of erstwhile owner namely Sh. Pankaj Arora and in view thereof, CS (COMM.) 818/22 Page 2 of 11 the defendant No.1 became the tenant under the plaintiffs and became liable to pay the rent to them. It is the case of the plaintiffs that since the lease Agreement was unregistered and insufficiently stamped, the tenancy of the defendant No. 1 is a monthly tenancy. It is averred that defendant No.1 has defaulted in making the payment of monthly rent since 18.04.2022 to the plaintiffs and it was learnt that he was tendering rent to the previous owner i.e., defendant No.2. Hence, the plaintiffs filed suit bearing no. 337/2022 for specific performance and recovery of arrears of rent for the period till July, 2022 against both the defendants which is separately pending before the Court of Ld. ADJ, Patiala House Courts, New Delhi. It is claimed that since the defendant no. 1 is unauthorizingly withholding the lawful dues of the plaintiffs, it is liable to pay interest @ 12% per annum, besides arrears on account of electricity charges. Further, the plaintiffs terminated the tenancy of defendant no. 1 in respect of suit premises vide Legal Notice dated 01.09.2022 and called upon said defendant to vacate and handover peaceful possession thereof after midnight of 17.09.2022, to which defendant no. 1 sent false reply dated 09.09.2022. However, defendant no. 1 failed to vacate the suit premises and also to pay the arrears of rent and electricity charges. It is claimed that both the defendants colluded with each other and raised false and frivolous defence in their respective written statement filed in previous suit no. 337/2022 (supra) that lease deed dated 30.07.2022 of defendant no. 1 stood further extended for a period of 10 years by defendant no. 2 vide registered lease deed dated 04.07.2022. It is claimed that after execution of title documents dated 18.04.2022 by defendant no. 2 in favour of the plaintiffs, he could not have CS (COMM.) 818/22 Page 3 of 11 executed registered lease deed dated 04.07.2022 in favour of defendant no.1in respect of the suit premises.
3. Now adverting back to the applications under consideration. Firstly, I shall deal with the application filed by the defendant no. 1. By way of said application, the applicant/defendant no. 1 has claimed that the plaintiffs have neither properly valued the relief of possession of suit premises nor paid the requisite Court fees thereupon, in the light of fact that sale consideration of Rs. 45,00,000/- is mentioned in the registered sale deed filed by the plaintiffs on record. Further, rejection of plaint is sought on the ground that plaint does not disclose any cause of action as the sale deed dated 18.08.2022 is registered during pendency of suit no. 337/2022 (supra) and also that the plaintiffs could not have exercised any right concerning title of the suit premises during pendency of the said suit and also on the ground that the defendant no.2 never assigned tenancy of defendant no.1 in favour of the plaintiffs and thus, there was no question of payment of any rent by said defendant to the plaintiffs.
4. The aforesaid application is strongly opposed by the plaintiffs on the ground that none of the grounds raised in the application, entails rejection of the plaint. It is stated that the relief of possession has been properly valued and proper Court fees in terms of Section 7 (xi) (cc) of Court Fees Act, 1870 has been duly paid by the plaintiffs. Further, it is claimed that sale deed was got registered in favour of the plaintiffs in accordance with law and the plaint discloses valid cause of action against the CS (COMM.) 818/22 Page 4 of 11 defendant no. 1 and therefore, the application is liable to be dismissed.
5. The defendant no. 2, in his separate two applications, is seeking rejection of the plaint on the grounds that despite interim order dated 08.08.2022 passed by the Court in Suit No. 337/2022 (supra), the plaintiffs could not have got the sale deed dated 18.08.2022 executed in their own favour on the basis of GPA dated 18.04.2022; the suit is liable to be dismissed for want of compliance of Section 12A of The Commercial Courts Act, 2015; the relief of possession being neither properly valued nor proper Court fees having been paid thereupon by the plaintiffs and in view of non-determination of rights of the parties in previous suit no. 337/2022 (supra), the plaintiffs do not have any right to file the present suit seeking relief of possession and arrears of rent/electricity charges/mesne profits.
6. I have already heard Ld. Counsels for the parties and have also perused the material available on record including the written submissions filed on behalf of the plaintiffs and the authorities cited at the Bar.
7. Ld. Counsels appearing on behalf of defendants had argued on the lines of averments made in the applications under consideration. They vehemently argued that the plaintiffs did not exhaust pre-institution-mediation as envisaged by Section 12A of The Commercial Courts Act, 2015, without which the present suit cannot proceed and thus, same is liable to be dismissed. They further argued that the sale deed dated 18.08.2022 relied by CS (COMM.) 818/22 Page 5 of 11 plaintiffs in order to maintain the present suit, is illegal and nonest as the plaintiffs were not justified to execute the said sale deed in their own favour on the basis of GPA dated 18.04.2022 and also that, the relief of possession has not been properly valued and proper Court fees has not been paid by the plaintiffs. Ld. Counsel of defendant no. 2 further argued that the contents of plaint are contrary to the contents of sale deed dated 18.08.2022. For the said purpose, he referred to Clause nos. 3 and 10 of the said sale deed and urged that the plaint is liable to be rejected.
8. On the other hand, Ld. Counsel for plaintiffs vehemently argued that for the purpose of deciding these applications, the averments made in the plaint and the documents filed therewith by the plaintiffs, alone are to be considered. It was argued that since the plaintiffs had sought urgent reliefs while instituting the present suit and have also moved an application seeking exemption to take recourse to Section 12A of the Commercial Courts Act, 2015, therefore, there is no reason or any ground whatsoever disclosed by either of the defendants which calls for rejection of the plaint. In support of his submissions, Ld. Counsel for plaintiffs also placed reliance upon the following authorities:-
(a) Riveria Commercial Developers Ltd. Vs.
Brompton Lifestyle Brands Pvt. Ltd. 2022 SCC
OnLine Del 4624;
(b) Gavrill Metal (P) Ltd. vs. Maira Fabricators
(P) Ltd., 2023 SCC OnLine Cal 2443;
(c) Maulavi Abdur Rub Firoze Ahmed & Co. v.
Jay Krishna Arora (1976) 1 SCC 295;
(d) Virender Kumar Kanostia vs. Gaurav
CS (COMM.) 818/22 Page 6 of 11
Gossain, 2010 SCC OnLine Del 2879;
(e) Godawaribai vs. Siddhagopal, 1960 SCC
OnLine Bom 91.
9. Before dealing with the rival submissions made on behalf of both the sides, it would be apposite to discuss the legal position on the point in hand. It is trite law that the objections regarding rejection of the plaint are to be decided on a demurrer, i.e., by considering the averments/statements made in the plaint to be correct. In other words, for the purpose of deciding an application under Order VII Rule 11 CPC, the averments made in the plaint and the documents filed therewith by the plaintiff, alone are relevant and to be considered under the law.
10. In D. Ramachandran v. R.V. Janakiraman: (1999) 3 SCC 267, Hon'ble Supreme Court observed as under:
"...It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averiments disclose a cause of action or a triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter."
11. In subsequent decision in the case of Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I & Anr.:
(2004) 9 SCC 512, Hon'ble Supreme Court observed as under:
"139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the CS (COMM.) 818/22 Page 7 of 11 averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in its entirety, a decree would be passed."
12. In Exphar Sa and Anr. v. Eupharma Laboratories Ltd. and Anr.: (2004) 3 SCC 688, Hon'ble Supreme Court reiterated the above proposition in the following words:
"9. Besides, when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct."
13. Similar view has been taken by Division Bench of Hon'ble Delhi High Court in the case of M/s RSPL Limited vs. Mukesh Sharma and Anr.: (2016) SCC OnLine Del4285. The relevant portion of the said judgment is extracted as under:-
"11. It must be stated that it is a settled proposition of law that the objection to territorial jurisdiction in an application under Order 7 Rule 10 CPC is by way of a demurrer. This means that the objection to territorial jurisdiction has to be construed after taking all the averments in the plaint to be correct. In Exphar SA v. Eupharma Laboratories Limited: (2004) 3 SCC 688, the Supreme Court observed that when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts, as pleaded by the initiator of the impugned procedure, are true. The Supreme Court further observed that the objection as to jurisdiction in order to succeed must demonstrate that granted those facts, the Court does not have jurisdiction as a matter of law. It is also a settled proposition of law that while considering a plaint from the standpoint of Order 7 Rule 10 CPC, it is only the plaint and the documents filed along with it, that need to be seen. The written CS (COMM.) 818/22 Page 8 of 11 statement is not to be looked into at all."
14. Similar view has been again retreated and reaffirmed by Division Bench of Hon'ble High Court in the case of 'Rukhmani Keshwani Trading as Viswas Agarbatti Store vs. Raju Agarbatti Works & Anr.' FAO (COMM.) 188/2022 & CM APPL.
53098/2022 (stay), decided on 24.05.2023.
15. Now adverting back to the facts of the present case. There is absolutely no substance in the contention raised on behalf of both the defendants that the plaintiffs have neither properly valued nor paid proper Court fees qua the relief of possession. As already noted above,the plaintiffs have sought the relief of possession as against defendant no. 1by claiming that defendant no. 1 was initially a tenant under defendant no. 2 and later on, became a tenant under them since after they purchased the suit premises from defendant no. 2 by virtue of general set of documents i.e., registered agreement to sell and registered GPA dated 18.04.2022, followed by registered sale deed dated 18.08.2022. In view of provision contained in Section 7 (xi) (cc) of The Court Fees Act, 1870, the relief of possession is to be valued while taking into consideration the annual rent of the tenanted premises. The sale consideration amount, as mentioned in the sale deed, has no relevance so far as the valuation of such relief and payment of Court fees thereupon is concerned. There is no direct or inherent contradiction as such found appearing in Clause nos. 3 and 10 of the sale deed dated 18.08.2022 vis a vis the relevant averments made in the plaint. Hence, Court is of the view that said additional ground raised by defendant no. 2 in the CS (COMM.) 818/22 Page 9 of 11 application dated 05.08.2023, is misconceived and misfounded. Indeed, the plaintiffs are found to have moved an application seeking exemption from exhausting the remedy of pre- institution-mediation as envisaged by Section 12A of The Commercial Courts Act,2015 alongwith the plaint and after due consideration thereof, summons of the suit and notice of the accompanying applications were directed to be issued to the defendants vide order dated 19.10.2022 passed by Ld. Predecessor of this Court. The relevant averments appearing in the plaint, as already noted in the preceding paras, would demonstrate that the plaint discloses cause of action against both the defendants herein. All other contentions raised on behalf of defendants in these applications are not at all germane or even relevant to the grounds mentioned in Clause (a) to (f) of Rule 11 of Order VII CPC. All such contentions cannot be decided at this stage and can only be dealt with at the appropriate stage. It is needless to mention that Court is not required to examine the merits of the averments made in the plaint and to evaluate as to whether or not the plaintiffs would be able to prove or establish the same, at the time of considering the application under Order VII Rule 11 CPC.
16. Having considered the facts of the present case on the touch stone of the principles of law as discussed by Hon'ble Apex Court and by Hon'ble Delhi High Court in the above referred decisions and in view of the foregoing reasons, this Court is of the view that all the applications under consideration are bereft of any merit and consequently, same are hereby dismissed with costs of Rs. 5,000/- each, out of which part cost CS (COMM.) 818/22 Page 10 of 11 of Rs. 2,500/- each shall be payable to the plaintiffs and remaining cost of Rs. 2,500/- each shall be deposited with NDBA Members Welfare Fund of New Delhi District Bar Association, having Account no.18580110013847 and receipts regarding deposit of costs be placed on record by next date of hearing.
VIDYA PRAKASH District Judge (Commercial Court)-02 Patiala House Court, New Delhi.
04.03.2024(v) CS (COMM.) 818/22 Page 11 of 11