Delhi District Court
Banwari Lal Charitable Trust Regd vs M/S. Asia Feature (India) Pvt. Ltd on 4 December, 2014
IN THE COURT OF MS. SALONI SINGH, CIVIL JUDGE - 02, PATIALA
HOUSE COURTS, NEW DELHI DISTRICT,
NEW DELHI
Case No. 51/13
Unique Case ID No. 02403C0119582013
1.Banwari Lal Charitable Trust Regd.
Through its Chairman, 1/1, Rani Jhansi Road, New Delhi - 110001.
2. Sh. Vinay Kumar Aggarwal, S/o, Late Sh. Laxmi Chand, 1, Jain Mandir Road, Behind Coffee Home, Connaught Place, New Delhi.
3. Sh. Lalit Kumar Goel, S/o, Sh. Arjun Dev Goel, 8, Shaheed Bhagat Singh Marg, Gole Market, New Delhi.
4. Sh. Vivek Aggarwal, S/o Sh. V K Aggarwal, B-12, New Agra, Agra, Uttar Pradesh
5. Sh. Surender Kumar Goel, S/o, Sh. Sita Ram, H.No. 287, Sector-7, Panchkula, Haryana.
6. Sh. Vimal Mahipal, S/o, Late Sh. M P Mahipal, R/o, E-273, Greater Kailash-II, New Delhi.
7. Sh. Mohit Goel, S/o, Sh. Lalit Kumar Goel, 16, Todar Mal Lane, Bengali Market, New Delhi - 110001.
...Plaintiffs CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 1/35 Vs. M/s. Asia Feature (India) Pvt. Ltd.
Through its Director Sh. Anil Kumar Bhasin, Having its registered office at, 8, Shaheed Bahgat Singh Marg, 2nd Floor, Doctor's Lane.
...Defendant Suit for recovery of Rs. 1,71,174/- (Rupees One Lakh Seventy One Thousand One Hundred and Seventy Four Only) Date of institution : 07.09.2013 Date of Reserving Judgment/Order : 28.11.2014 Date of decision : 04.12.2014 Judgment:-
In the present suit, the plaintiff prays for recovery of Rs. 1,71,174/- (Rupees One Lakh Seventy One Thousand One Hundred and Seventy Four Only) from the defendant on account of house tax in respect of the suit property (defined below) along with pendent lite and future interest @ 18% per annum.
1. The brief facts, as given in the plaint, are as follows:-
i. The plaintiff no.1 is a registered trust and the plaintiffs no. 2 to 7 are its trustees. The plaintiff no. 2 is the chairman of plaintiff no.1, appointed vide resolution dated 29.06.1997, who is authorized and empowered by resolution dated 01.09.2010, passed by all the trustees, inter alia, to file, sign, verify, defend etc., any case for or on behalf of and against the trust before any Court/authority.
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 2/35 ii. The defendant is a tenant of plaintiff no. 1 and is occupying an area measuring 900 square feet, comprising of one hall and two bathrooms with exclusive terrace, in the second floor of the property at Dr. Lane, Shahid Bhagat Singh Marg, 8 Gole Market, New Delhi-110001 (hereinafter referred to as, "suit property"), for non- residential purposes, at a monthly rent of Rs. 2,402.40 (Rupees Two Thousand Four Hundred and Two and Forty Paise Only) inclusive of service tax.
iii. The plaintiff no. 1 initially used to pay the house tax in respect of the suit property to the concerned authority calculable on the basis of its rent. However, from the past two assessment years i.e., 2011-2012 and 2012-2013 onwards, the basis of calculating house tax in respect of rented premises/land or buildings etc., within the territorial limits of New Delhi Municipal Council (NDMC), has changed from rent to unit area/user basis. The plaintiff no. 1 requested the defendant to pay the excess house tax (as claimed/calculated) in respect of the suit property, however, despite assurance he failed to pay the house tax, which in turn has been paid by the plaintiff no.1 to NDMC.
iv. The house tax, if calculated on the basis of the annual rent of the suit property amouting to Rs. 26,184/- (Rupees Twenty Six Thousand One Hundred and Eighty Four Only) @ Rs. 2,182/- (Rupees Two Thousand One Hundred and Eighty Two Only) per month, would be Rs. 4173/- (Rupees Four Thousand One Hundred and Seventy Three Only). However, the total house tax, when CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 3/35 calculated on the basis of unit area of the suit property, measuring 83.61 square meter/ 900 square feet, comes to Rs. 90,300/- (Rupees Ninety Thousand and Three Hundred Only), and after deducting the said amount of Rs. 4173/- (Rupees Four Thousand One Hundred and Seventy Three Only), the excess house tax comes to Rs.
85,587/- (Rupees Eighty Five Thousand and Five Hundred and Eighty Seven Only), which the plaintiff is entitled to recover from the defendant under Section 67 of the New Delhi Municipal Council Act, 1994 (for short, "NDMC Act").
v. The plaintiff no.1 has deposited a consolidated house tax of Rs. 10,76,346/- (Rupees Ten Lakh Seventy Six Thousand Three Hundred and Forty Six Only), in respect of the property at Dr. Lane, Shahid Bhagat Singh Marg, 8 Gole Market, New Delhi - 110001, with NDMC for the assessment year 2011-12 and Rs.10,76,346/- (Rupees Ten Lakh Seventy Six Thousand Three Hundred and Forty Six Only) for the assessment year 2012-13. The said consolidated house tax is inclusive of the house tax of the amount of Rs. 90,300/- (Rupees Ninety Thousand and Three Hundred Only) in respect of the suit property. Thus, the defendant is liable to pay a total sum of Rs. 1,71,174/- (Rupees One Lakh Seventy One Thousand One Hundred and Seventy Four Only) to the plaintiff towards the excess house tax in respect of the suit property for the assessment years 2011-12 and 2012-13.
2. Summons of the suit were issued, vide order of this Court dated 09.09.2013 returnable on 26.09.2013. The defendant was served and CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 4/35 written statement was filed on behalf of the defendant on 23.10.2013.
3. In the written statement, the defendant has raised several objections, namely, that the suit is not maintainable in light of Section 7 (2) of the Delhi Rent Control Act, 1958 (for short, "DRC Act") and that the provisions of DRC Act, being a special legislation, would override Section 67 of the NDMC Act; sthat a registered lease deed dated 05.05.1995 (hereinafter referred to as, "Lease Deed") was executed between the parties for a term of 9 years and as per clause 11 of the Lease Deed, the liability to pay house tax is that of the plaintiff. It is stated that in the absence of any subsequent lease deed executed/agreed upon between the parties, the terms and conditions of the said Lease Deed would continue to govern the parties, despite expiry of its term of lease; that the manner in which the house tax has been calculated is vague, unspecific and incorrect; and that the suit has been filed by the plaintiff no.1 de hors the provisions of the Indian Trusts Act, 1882 (hereinafter referred to as, "Indian Trusts Act" ) and the plaintiffs no. 2 to 7 are not the competent persons to institute/verify/sign the present suit. Further, it is alleged that the defendant is not liable to pay the house tax in respect of the suit property and even otherwise, as per Section 67 (1) of the NDMC Act, the landlord is entitled to recover from the tenant only the difference between the amount of property tax levied upon him and the amount which would be chargeable, if the tax is calculated on the amount of the rent payable to him. It is further stated that in any case, the rateable value of the suit property cannot be in excess of the standard rent and as per Section 66 of the NDMC Act, the liability to pay the tax in respect of the tenanted premises is that of the owner and not the tenant.
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 5/35
4. Replication was filed on behalf of the plaintiff on 15.11.2013, denying the allegations/averments made by the defendant in his written statement.
5. On completion of the pleadings and on the basis thereof, this Court framed the following issues:-
1. Whether the plaintiff is entitled to recover a sum of Rs. 1,71,174/-
[Rupees One Lakh Seventy One Thousand One Hundred and Seventy Four only] from the defendant on account of house tax, in respect of the leased premises? [OPP]
2. Whether the plaintiff is entitled to a decree for interest @ 18 % per annum from the date of filing of the suit till realization of the amount? [OPP]
3. Whether the present suit is barred under Section 7 (2) of the Delhi Rent Control Act, 1958? [OPD]
4. Whether the present suit is not maintainable in view of the registered lease deed dated 05.05.1995? [OPD]
5. Whether the present suit is defective for having been filed without proper authority? [OPD]
6. Relief
6. Both the parties were given an opportunity to lead their evidence. The plaintiff proceeded to lead evidence.
7. In order to substantiate their case, the plaintiff no. 2 stepped into the witness box as PW-1 and tendered his examination-in-chief, by way of an CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 6/35 affidavit, and placed on record the following documents in support thereof:-
- Copy of the resolution dated 01.09.2010, passed by the trustees of plaintiff no. 1, Exhibit PW-1/1 (OSR);
- Copy of the minutes of the meeting of plaintiff no. 1 held on 29.06.1997, Exhibit PW-1/2 (OSR);
- Copy of the payer's copy of the receipt of payment of the house tax, for the year 2010-2011 and 2011-2012, bearing no. 245831 and 427751 respectively, Exhibit PW-1/3 (OSR) and Exhibit PW-1/4 (OSR);
- Copy of the order issued under Section 72 of the NDMC Act, dated
08.06.2012, Exhibit PW-1/5 (OSR);
- Sheet of paper containing the calculation of the house tax, in respect of the suit property, payable by the defendant, Exhibit PW-1/6; and
- Client copy of the legal notice dated 17.06.2013, Exhibit PW-1/7.
8. In his affidavit, PW-1 deposed on the same lines as stated in the plaint and was cross-examined by the Learned Counsel for the defendant. Thereafter, the plaintiff summoned the concerned official/clerk from NDMC to produce the record file of Shop No. 2 and the suit property situated at Dr. Lane, Shahid Bhagat Singh Marg, 8 Gole Market, New Delhi -110001 and to produce the record of the receipts of house tax for the years 2010-2011 and 2011-2012 i.e., of Exhibit PW-1/4 and Exhibit PW-1/5 respectively. Mr. R K Pal, Head Assistant, Tax Department, NDMC appeared before the Court, who was examined as PW-2. PW-2 produced and placed on record the following documents, pertaining to the said Shop No. 2 which includes the suit property:-
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 7/35
- Copy of the property tax return (self-assessment form) for the year 2011-12, Exhibit PW-2/1 (OSR);
- Copy of the assessment order no. 3200/DD Tax/2012, dated 08.06.2012, issued under Section 72 of the NDMC Act, Exhibit PW-2/2 (OSR); and
- Copy of the statement of accounts for the years 2011-12, 2012-13 and 2013-14, Exhibit PW-2/3 (OSR).
No other witness was examined by the plaintiff. The Learned Counsel for the plaintiff closed plaintiff's evidence by way of a separate statement.
9. In defence, the defendant stepped into the witness box and tendered his evidence by way of an affidavit and placed on record the following documents in support thereof:-
- Copy of the certificate of incorporation of the defendant, Exhibit DW-1/1 (OSR); and
- Copy of the extract of the minutes of the meetings of the Board of Directors of the defendant dated 02.05.2014, Exhibit DW-1/2 (OSR).
DW-1 deposed on the same lines as stated in the written statement and was cross-examined by the Learned Counsel for the plaintiff. No other witness was examined by the defendant. The Learned Counsel for the defendant closed defendant's evidence by way of a separate statement.
10. Arguments were advanced by the Learned Counsel for both the parties reiterating the averments/contentions raised in their respective pleadings CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 8/35 and also relied upon relevant judgments/case law in support thereof.
11. The submissions made on behalf of the both the parties have been considered and the record of the case has been thoroughly perused. The issue-wise findings of this Court are as follows:-
Issue No. 1:-
1. Whether the plaintiff is entitled to recover a sum of Rs. 1,71,174/-
[Rupees One Lakh Seventy One Thousand One Hundred and Seventy Four only] from the defendant on account of house tax, in respect of the leased premises? [OPP]
12. The burden of proving this issue is on the plaintiff. The case of the plaintiff is that under Section 67 (1) of the NDMC Act, he is entitled to recover from the defendant the excess house tax of Rs. 85,587/- (Rupees Eighty Five Thousand and Five Hundred and Eighty Seven Only) each, for the assessment years 2011-2012 and 2012-2013, in respect of the suit property. The plaintiff claims the said amount from the defendant on account of the change brought about in the mode/manner of assessment of property tax, in respect of the lands and buildings falling in the NDMC jurisdiction, from property tax being calculated on the basis of rent to unit/user area basis. The plaintiff has relied upon the order dated 08.06.2012 i.e., Exhibit PW-1/5, issued under Section 72 of the NDMC Act, as per which the rateable value of the Shop 2 & Others, Lady Harding Road, New Delhi (hereinafter referred to as, "consolidated property") of the plaintiff no. 1 has been shown to be revised from Rs. 26,57,700/- (Rupees Twenty Six Lakh Fifty Seven Thousand and Seven Hundred Only) to Rs. 54,23,700/-
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 9/35 (Rupees Fifty Four Lakh Twenty Three Thousand and Seven Hundred Only) with effect from 01.04.2010 under the new annual rent laws, 2009 and also wherein, the proposed rateable value of Rs. 45,19,800/- (Rupees Forty Five Lakh Nineteen Thousand and Eight Hundred Only) has been finalized by the assessing authority with effect from 01.04.2010 for the consolidated property of the plaintiff. The said order dated 08.06.2012, also Exhibit PW-1/5, has been proved by PW-2, who produced the said order and placed a copy of it on record as, Exhibit PW-2/2.
13. From the above, firstly the plaintiff has been able to show that the rateable value of the consolidated property of the plaintiff was revised by the order of NDMC, Exhibit PW-1/5. Further, it is averred and deposed by PW-1 that owing to the change in the mode/manner of assessment of property tax from rent to unit area basis, the plaintiff consequently deposited a consolidated property tax of an amount of Rs. 10,76,346/- (Rupees Ten Lakh Seventy Six Thousand Three Hundred and Forty Six Only) each, in respect of the consolidated property, for the assessments years 2011-2012 and 2012-2013, in both the cases inclusive of the property tax (of Rs. 90,300/-) paid/payable in respect of the suit property. The plaintiff has placed on record the receipts issued by NDMC against deposit of the said consolidated property tax amounts for each of the said assessment years 2011-2012 and 2012-2013, which are Exhibit PW-1/3 and Exhibit PW-1/4 respectively. Learned Counsel for the defendant raised an objection as to the mode of proof of the said receipts at the time of tendering of evidence by PW-1. The fact that the amount of Rs. 10,76,346/- (Rupees Ten Lakh Seventy Six Thousand Three Hundred and Forty Six Only) has been deposited by the plaintiff is not disputed by the defendant.
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 10/35 However, the said receipts could only have been proved by summoning the NDMC records in respect of the same. Now, PW-2, who was summoned to produce certain documents, also placed on record the statement of accounts of the plaintiff, as maintained by NDMC, which is Exhibit PW-2/3, which shows an amount of Rs. 10,76,346/- (Rupees Ten Lakh Seventy Six Thousand Three Hundred and Forty Six Only) in the column of payments for the years 2011-2012 and 2012-2013. Learned Counsel for the defendant pointed out by questioning PW-2, during his cross-examination, that Exhibit PW-2/3 also shows a balance of Rs. 4,29,036/- (Rupees Four Lakh Twenty Nine Thousand and Thirty Six Only) as excess tax, to which PW-2 responded stating that the question pertained to the recovery section of NDMC. Therefore, from the above, it can be stated that only to the extent of receipt of the amount of Rs. 10,76,346/- (Rupees Ten Lakh Seventy Six Thousand Three Hundred and Forty Six Only) by NDMC from the plaintiff for the assessment years 2011-2012 and 2012-2013, towards the consolidated property tax in respect of the consolidated property, is corroborated by the statement of accounts produced and placed on record by PW-2. Accordingly, it can be stated that the plaintiff has shown that the plaintiff has paid/deposited the consolidated property tax of 10,76,346/- (Rupees Ten Lakh Seventy Six Thousand Three Hundred and Forty Six Only) each for the assessment years 2011-2012 and 2012-2013 in respect of the consolidated property of the plaintiff.
14. The issue that now arises is whether the plaintiff is entitled to recover the suit amount from the defendant under Section 67 (1) of the NDMC Act. Section 67 (1) of the said Act reads as under:-
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 11/35 "If any land or building assessed to property tax is let, and its rateable value exceeds the amount of rent payable in respect thereof to the person upon whom under the provisions of Section 66 the said tax is leviable, that person shall be entitled to received from his tenant the difference between the amount of the property tax levied upon him and the amount which would be leviable upon him if the said tax was calculated on the amount of rent payable to him."
15. The consolidated property tax is shown to have been paid in respect of the consolidated property of the plaintiff, which comprises of a tenanted building, of which the suit property forms a part/portion. Under Section 66 (1) (a) of the NDMC Act, the incidence of the property tax in respect of tenanted premises falls primarily on the lessor. Admittedly, the plaintiff is the landlord/lessor of the suit property, which forms a part/portion of the said consolidated property. The rate of property tax levied under the said Act cannot exceed thirty percent of the rateable value of the land/buildings amenable to NDMC jurisdiction and assessable to property tax. Section 63 of the NDMC Act provides for the determination of the rateable value of such lands and buildings. For the purposes of Section 63 (1) of the NDMC Act, the rateable value of the land/building is to be determined in accordance with the New Delhi Municipal Council (Determination of Annual Rent) Bye-laws, 2009 (hereinafter referred to as, "Bye-laws 2009"). In respect of the consolidated property (of which the suit property is a part) the rateable value was finalized by NDMC at Rs. 45,19,800/- (Rupees Forty Five Lakh Nineteen Thousand and Eight Hundred Only) with effect from 01.04.2010. It appears that the said amount/rateable value has been finalized by NDMC after considering the objection raised in this CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 12/35 regard by the plaintiff against the proposed revision in the rateable value and after filing of the property tax return (PTR) by the plaintiff for the year 2011-2012. It is pertinent to note here that it is on the basis of this rateable value (as finalized by the authority) that property tax is to be calculated as per the rateable value slab. The said slab is mentioned in Part-III of the PTR. The PTR for the assessment years 2011-2012 and 2012-2013, in respect of the consolidated property, has been placed on record and proved by PW-2 as Exhibit PW-2/1 and Exhibit PW-2/4 respectively, according to which the tax calculated and payable is shown to be Rs. 10,76,346/- on the rateable value of Rs. 45,19,800/- (Rupees Forty Five Lakh Nineteen Thousand and Eight Hundred Only). The case of the plaintiff is that as the rateable value of the suit property exceeds the amount of rent paid to him in respect thereof, his case is squarely covered by Section 67 (1) of the NDMC Act. However, the defendant's case is that the property tax of Rs. 10,76,346/- (Rupees Ten Lakh Seventy Six Thousand Three Hundred and Forty Six Only) deposited by the plaintiff is the consolidated property tax in respect of the consolidated property and not of the suit property and it is not shown on what basis/calculation, the property tax payable by the defendant in respect of the suit property would come to Rs. 90,300/- (Rupees Ninety Thousand and Three Hundred Only) for each of the said assessment years. PW-2 has also deposed that the property tax shown in the PTRs is the consolidated property tax for the property mentioned therein and measuring a total of 837 square meters.
16. On perusal of the PTRs, Exhibit PW-2/1 and Exhibit PW-2/4, the PTR form provides that particulars as to the list of tenants and rent paid by them may be filled in separate sheets and the particulars of the floor wise area of CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 13/35 the property in question being assessed may also be added by the assessee in/with the PTR. The said details/particulars as to area covered by separate tenants and rent actually received from them has not been furnished by plaintiff in/with each of the PTRs. Further, on being inquired from PW-2, during his cross-examination, PW-2 reiterated that property is assessed on the consolidated area, which includes all the floors in the property in question and the property tax is the consolidated amount for the entire property. Reference here is made to Section 78 of the NDMC Act, which provides that premises owned by or let to two or more persons in severalty to be ordinarily assessed as one property. From the order issued under Section 72 of the NDMC Act, Exhibit PW-2/2, it can be presumed that the consolidated property of the plaintiff (of which the suit property is a part) is being assessed as one property. Further, it is not the case of the defendant that the suit property was to be assessed as a single or as a separate unit. Therefore, assuming that the entire consolidated property is being assessed as one property, what the plaintiff appears to have done is that he has calculated the proportional rateable value of the suit property, by taking into account the area of the suit property as 83.61 square meters to the area of the entire property as 837 square meters and the rateable value of the consolidated property as Rs. 45,19,800/- (Rupees Forty Five Lakh Nineteen Thousand and Eight Hundred Only). Simply put, it can be calculated/illustrated as follows:- If the rateable value of the entire consolidated property of an area of 837 square meters is Rs. 45,19,800/- (Rupees Forty Five Lakh Nineteen Thousand and Eight Hundred Only) then what will be rateable value of the suit property of an area of 83.61 square meters. On calculation, it would amount to Rs. 4,51,494/- (Rupees Four Lakh Fifty One Thousand Four Hundred and Ninety Four Only).
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 14/35 Thereafter, the property tax has been calculated upon this amount of Rs. 4,51,494/- (Rupees Four Lakh Fifty One Thousand Four Hundred and Ninety Four Only) in accordance with the method/rateable value slab provided in the PTR itself. As per the said Part III of the PTR or in the slab, the rate of tax for a rateable value upto Rs. 10,00,000/- (Rupees Ten Lakh Only) is 20%, therefore, the property tax of the suit property has been calculated at 20% of the rateable value, which would come to Rs. 90,298.88, rounded off to Rs. 90, 300/- (Rupees Ninety Thousand and Three Hundred Only). This amount of Rs. 90, 300/- (Rupees Ninety Thousand and Three Hundred Only), calculated as the proportional rateable value of the suit property, exceeds the rent payable in respect of the suit property. Therefore, it is stated and shown that the plaintiff can recover from the defendant the difference in house tax between Rs. 90,300/- (Rupees Ninety Thousand and Three Hundred Only) and Rs. 4173/- (Rupees Four Thousand One Hundred and Seventy Three Only), amounting to Rs. 85,587/- (Rupees Eighty Five Thousand and Five Hundred and Eighty Seven Only).
17. From the above, this Court is of the view that the plaintiff has been able to show/establish that he is entitled to recover the suit amount from the defendant towards the excess house tax in respect of the suit property under Section 67 (1) of the NDMC Act. Here, it is pertinent to note that there is no method prescribed in the NDMC Act or its rules/bye-laws as to the manner of calculating the proportionate house tax, payable by each of the tenant to the lessor, where the assessable land/building comprising of several parts is let to more than one tenants. Further, no such method has been shown by the defendant which should have been applied in CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 15/35 accordance with the provisions of any law and was not applied. Learned Counsel for the defendant argued that the Bye-laws, 2009 cannot override the substantial provisions of the statute. He referred to Kelsen's pure theory of law and submitted that there is a hierarchy of laws and that the rules and regulations/bye-laws cannot override the statute. On the other hand, Learned Counsel for the plaintiff argued that there is no conflict between the bye-laws and the principal sections of the statute. He referred to Section 60 (3) of the NDMC Act, contained in Chapter VIII titled Taxation, which reads as follows:- "The taxes specified in sub-section (1) and sub-section (2) shall be levied, assessed and collected in accordance with the provisions of this Act and the bye-laws made thereunder." On perusal of the provisions of the NDMC Act and its bye-laws, there appears to be no conflict between them. Where on one hand, Section 67 (1) of the NDMC Act provides an option to the lessor to recover the excess property tax from its tenant, the Bye-laws 2009 regulates the procedure/mode for calculating the rateable value of lands/buildings amenable to property tax. The substantive right of the lessor is contained in Section 67 (1) of the NDMC Act and is not governed and/or altered or affected by the Bye-laws 2009. Therefore, Kelsen's pure theory of law referred and relied upon by the Learned Counsel for the defendant does not apply to the present case. The methodology shown to be adopted by the plaintiff to calculate the property tax, payable on the suit property, on the basis of the proportional rateable value (as calculated and illustrated above) cannot be said to be vague or faulty. It has been calculated on the basis of the mathematical principle of proportionality by first determining the proportional rateable value of the suit property from the rateable value of the consolidated property (as finalized by NDMC) and then on that amount calculating the CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 16/35 property tax as per the rateable value slab given in the PTR form itself. It cannot be said that the method of calculation is without any reasonable basis.
18. In light thereof, this Court is of the view that the plaintiff has been able to show that he is entitled to recover the suit amount from the defendant under Section 67 (1) of the NDMC Act. Accordingly, the first issue is decided in the affirmative.
Issue No. 2:-
Whether the plaintiff is entitled to a decree for interest @ 18 % per annum from the date of filing of the suit till realization of the amount? [OPP]
19. The question as to award of pendente lite and future interest in a suit for a money decree is at the discretion of the Court. This is to be decided after giving a finding on the remaining issues. Therefore, no finding on this issue is given at this stage.
Issue No. 3:-
Whether the present suit is barred under Section 7 (2) of the Delhi Rent Control Act, 1958? [OPD]
20. The burden of proving this issue is on the defendant. The case of the defendant is that suit is barred by Section 7 (2) of the DRC Act. Learned Counsel for the defendant argued that the DRC Act, being a special legislation, would override the provisions of the NDMC Act. In support of CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 17/35 his contention, Learned Counsel for the defendant referred to the decision of the Hon'ble Supreme Court in Suhas H. Pophale (DR) v. Oriental Insurance Co. Ltd., II (2014) SLT 687, wherein the Hon'ble Supreme Court dealt with the question as to whether the provisions of the Public Premises (Eviction of Unauthorized Occupants) Act, 1958 would override the provisions of the Bombay Rent Control Act.
21. For sake of reference, Section 7 (2) of the DRC Act is reproduced as under:-
"Where a landlord pays in respect of the premises any charge for electricity or water consumed in the premises or any other charge levied by a local authority having jurisdiction in the area which is ordinarily payable by the tenant, he may recover from the tenant the amount so paid by him; but the landlord shall not recover from the tenant whether by means of an increase in rent or otherwise the amount of any tax on .building or land imposed in respect of the premises occupied by the tenant."
22. Where on one hand, the lessor is enabled to recover excess of the house tax under Section 67 (1) of the NDMC Act from the tenant, on the other hand, under Section 7 (2) of the DRC Act, the lessor/landlord is barred from recovering from the tenant amount of any tax on buildings/land, imposed in respect of the premises occupied by the tenant. In such a situation, the question which arises is which out of the two statutes would apply to the present case. A similar issue/question in respect of Section 7 (2) of the DRC Act and the corresponding section of the Delhi Municipal CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 18/35 Corporation Act, 1957 (for short, "MCD Act")came up for consideration before the Hon'ble High Court of Delhi, recently in the case of M/s. Atma Ram Properties (P) Ltd. v. Delhi Transport Corporation., 206(2014)DLT237., wherein the law in this regard, as stated by the Full Bench of the Hon'ble High Court in Ganga Ram v. Mohd. Usman, ILR 1978 (1) Delhi 139., was reiterated. The relevant observations in the aforesaid jdugment are reproduced as follows:- "...14. For the foregoing reasons, our answer to the second question mentioned by B.C.Misra J. is in the affirmative and we accordingly hold that the land lord is entitled to recover under S. 121(1) of the Corporation Act the enhanced amount of house tax from the tenant not withstanding the contract of tenancy and the provisions of S. 7 (2) and Section 4 of the Delhi Rent Control Act. No other point or question was urged before us in the Civil Petition." It is important to mention the reasoning given by the Hon'ble Full Bench, while answering the question before it. It was observed that the bar created by the provision in the Rent Control Act pertains to 'normal tax on a building' occupied by a tenant, while Section 121 (1) of the Delhi Municipal Corporation Act dealt with a particular contingency, where the property tax levied for the tenanted premises is more than the amount which would have been levied had the assessment been made on the basis of the rent payable by the tenant to the landlord. It was stated that it was the MCD Act, which was the later and special provision and not vice versa. Here it is pertinent to reproduce Section 121 (1) of the MCD Act, which reads as follows:- "121. Appointment of liability for property taxes when the premises assessed are let or sub-let:- (1) If any land or building assessed to property taxes is let, and its rateable value exceeds the amount of rent payable in respect thereof to the person upon whom under the provisions of section 120 the CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 19/35 said taxes are leviable, that person shall be entitled to receive from his tenant the difference between the amount of the property taxes levied upon him and the amount which would be leviable upon him if the said taxes were calculated on the amount of rent payable to him." Evidently, both Section 121 (1) of the MCD Act and Section 67 (1) of the NDMC Act are verbatim the same and only their applicability is different in terms of the areas to which they apply, one falls under the jurisdiction of MCD and the other falls under the jurisdiction of NDMC. Now, applying the dictum of the aforesaid decision of the Hon'ble High Court of Delhi to the present case, the bar under Section 7 (2) of the DRC Act would similarly not apply or affect the right of the landlord/plaintiff to recover the excess house tax under Section 67 (1) of the NDMC Act from the tenant. Thus, this Court is of the view that the present suit is not barred under Section 7 (2) of the DRC Act. Accordingly, this issue is decided in the negative.
Issue No. 4:-
Whether the present suit is not maintainable in view of the registered lease deed dated 05.05.1995? [OPD]
23. The burden of proving this issue is on the defendant. The plea of the defendant is that as per clause 11 of the registered lease deed dated 05.05.1995 (already defined above as Lease Deed), entered into between the parties, it is the sole liability of the plaintiff/lessor to pay the house tax in respect of the suit property. It is the contention of the defendant that notwithstanding the expiry of the lease period, the parties continue to be governed and bound by its terms and conditions. Therefore, in light of the covenant in the Lease Deed, as agreed by the parties themselves, it is CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 20/35 submitted that the suit is not maintainable and that the defendant has no liability to pay the house tax as levied/paid in respect of the suit property and the liability to pay house tax remains on the plaintiff. Learned Counsel for the defendant has relied upon the decision of the Hon'ble High Court of Delhi in Abaskar Construction v. Pakistan International Airlines., 2011 II AD (Delhi) 478., wherein it has been held that even after the expiry of the lease period, if the tenant continues in possession of the property, he continues on same terms and conditions as contained in the lease deed. On the other hand, the plea of the plaintiffs is that notwithstanding the agreement between the parties, as per Section 67 (1) of the NDMC Act, the landlord/plaintiff is entitled to receive from his tenant the difference between the amount of the property tax levied upon him and the amount which would be leviable upon him if the said tax was calculated on the amount of rent payable to him, where the rateable value of the property exceeds the amount of rent payable in respect thereof. Learned Counsel for the plaintiff submitted that any agreement between two parties cannot supersede the provisions of law and must conform to the law of the land and in support thereof has referred to decision of the Hon'ble Supreme Court in Shivdev Singh and another v. Sucha Singh and another., AIR 2000 SC 1935, where the Court was dealing with the question as to whether the mortgagor's legal and statutory right of redemption can be extinguished by any agreement.
24. It is not in controversy between the parties that the plaintiff and the defendant are in a landlord tenant relationship and that they had entered into a registered lease deed dated 05.05.1995 for a term of 9 years at a monthly rent of Rs. 1,500/- (Rupees One Thousand Five Hundred Only) CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 21/35 for commercial purpose. Further, it is not in controversy that the lease came to an end by efflux of time and that the defendant continues to occupy the suit premises. The law laid down in the decision of the Hon'ble High Court in Abaskar's case (supra) is squarely applicable to the facts and circumstances of the present case, in light of which so long as the defendant is a tenant holding over the suit property, the terms and conditions of the Lease Deed would continue to govern and bind the parties. Having come to the said finding, attention is drawn to clause 11 of the Lease Deed, which reads as follows:- "That the house tax for the premises shall be paid by the lessor and there shall be no liability of the lessee in this regard." Evidently according to the covenant, it is the duty of the defendant to pay the house tax in respect of the suit property. It is pertinent here to refer to Section 66 (1) (a) of the NDMC Act, which also casts the primary liability to pay house tax on the lessor. Therefore, clause 11 of the Lease Deed appears to be in sync with Section 66 (1) (a) of the said Act and there appears to be no apparent conflict between the agreement and the statutory provision. It is also an admitted position that prior to the assessment year 2011-2012, the plaintiff has been paying the property tax in respect of the suit property. So, the issue of recovery of excess property tax under Section 67 (1) of the NDMC Act from the tenant seems to have arisen only because of the revision in the rateable value of the property/tenanted premises under the new Bye-laws 2009, which is also the case of the plaintiff. It is in such contingencies that the special provision of Section 67 (1) of the NDMC Act comes into play. However, the contention of the defendant is that in light of an express agreement between the parties, under which the liability to pay house tax has been put on the lessor/landlord/plaintiff, the right to recover excess house tax under CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 22/35 Section 67 (1) of the NDMC Act stood waived. Waiver means the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession or avoidance if the right is thereafter asserted, and is either express or implied from conduct. A right can be waived by the party for whose benefit certain requirements or considerations had been provided by a statute. Though there is absolute bar for waiver of fundamental right, there is no such bar for waiver of any statutory right. In order to constitute waiver, there must be voluntary and intentional relinquishment of a right and the waiver is question of conduct and must necessarily be determined on the facts of each case. There could be no waiver unless the person against whom waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights. In the present case, there are no specific pleadings in the written statement as to the plea of waiver. Further, no such question or fact was put to the plaintiff's witness during his examination and there is no such evidence to show that the plaintiff had knowingly or intentionally waived his statutory/legal right. Therefore, in the absence of specific pleadings in this regard, the plea of waiver cannot be considered or entertained.
25. Further, attention is once again drawn to the law laid down by the Hon'ble High Court of Delhi in Ganga Ram's case (supra) and recently reiterated in the decision of Atma Ram's case, that "...the land lord is entitled to recover under S. 121(1) of the Corporation Act the enhanced amount of house tax from the tenant not withstanding the contract of tenancy and the provisions of S. 7 (2) and Section 4 of the Delhi Rent Control Act...". Applying the said dictim, it would mean that notwithstanding a contract of CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 23/35 tenancy between the parties and Section 7 (2) of the DRC Act, the landlord is entitled to recover the excess property/house tax from the tenant in the circumstances specified in Section 67 (1) of the NDMC Act. In light of the aforesaid legal position, this Court is of the view that the suit is maintainable notwithstanding the terms and conditions of the Lease Deed. Accordingly, the issue is decided in the negative and against the defendant.
Issue No. 5:-
Whether the present suit is defective for having been filed without proper authority? [OPD]
26. The burden of proving this issue is also on the defendant. On one hand, the plea of the plaintiffs is that the plaintiff no. 2 has been authorized/empowered, vide resolution dated 01.09.2010, passed in his favour by the trustees of plaintiff no. 1, inter alia, to file/defend suits and other proceedings for and/on behalf of and against the trust/plaintiff no.1 before any Court etc. On the other hand, the contention raised by the defendant is that the suit has not been signed and verified by all the trustees of the plaintiff no. 1 and is not maintainable in light of the provisions of the Indian Trusts Act, which bars delegation of powers to a single trustee/co- trustee. It is alleged that the plaintiff no. 2 does not have authority to institute the present suit and, thus, the suit is defective and is liable to be dismissed. In support thereof, Learned Counsel for the defendant has relied upon the decision of the Hon'ble High Court of Delhi in Duli Chand v. M/s. Mahabir Pershad Trilok Chand Charitable Trust, Delhi, AIR 1984 Delhi 145. In this case, the question that arose for consideration was whether the suit by co-trustees on the basis of resolution passed by all CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 24/35 other co-trustees unanimously authorising that trustee to file the suit for recovery of possession of the premises from a person who claims to have acquired rights of tenancy. In this connection, Learned Counsel for the defendant referred to the relevant observations made therein, which are reproduced as follows:- "16. ...There is, therefore, a very grave doubt in our mind as to whether a single trustee can must and whether he can sue in the name of the Trust. It is also very doubtful whether a resolution can be passed authorising only some of the trustees to file a suit. But, that resolution had not been proved. It was also observed : 'But the trust is not a legal person and the description of the petitioner is, therefore, wrong. It could have been amended, if necessary. But that question does not now arise.' While referring to decision in Atmaram Ranchhodbhai v. Gulamhusain Gulam Mohiyuddin , the Supreme Court held : 17. . . . On the second question, namely, as to whether a single trustee could maintain the suit, it was found that there was a unanimity amongst all the High Courts on this question and the conclusion of the Full bench was as follows (at p. 117) :- "We are, therefore, of the view that unless the instrument of trust otherwise provides, all co-trustees must join in filing a suit to recover possession of the property from the tenant after determination of the lease. No one single co-trustee, even he be a managing trustee unanimously chosen by co-trustees, can maintain such a suit against the tenant without joining the other co-trustees..."
27. The simple issue that arises for consideration is whether the plaintiff no. 2 can institute the present suit on behalf of the plaintiff no. 1 trust on the basis of the authorization given to him by all the trustees by way of the resolution dated 01.09.2010, Exhibit PW-1/1. The legal position CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 25/35 applicable to execution of trusts is that as a matter of general rule, all the trustees muct act jointly, however, this rule is not absolute and is subject to certain exceptions, as held by the Hon'ble Supreme Court in the case of J.P. Srivastava & Sons (P) Ltd. and others v. Gwalior Sugar Co. Ltd. and others., (2005) 1 SCC 172. The relevant observations in paragraph no. 29 of the said decision are reproduced as follows:- "29. ...Therefore, although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co- trustee is in the regular course of the business, (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly...". It is pertinent to note here that the Court in this regard made no distinction between a private and a public trust in terms of its applicability. Further, the Indian Trusts Act itself recognizes the aforesaid principle and incorporates or provides for the said exceptions to the general rule, which is that trustees must act jointly. In light of the aforesaid legal position, one of the exceptions to the general rule is that one trustee may act for all, where the trust deed allows the trusts to be executed by one or more or a majority of trustees. The question is whether the present case is covered under this exception or any of other exceptions. Before answering or giving a finding on this point, it is imperative to consider the factual data on record as to plaintiff no.1 trust itself and the deed, if any, creating/governing it. Learned Counsel for the defendant argued and CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 26/35 contended that it is not clear as to whether the plaintiff no. 1 is registered under the Societies Registration Act, 1860 or under the Indian Trusts Act or as to whether it is a public or private trust. In the plaint, it is averred that plaintiff no. 1 is a registered trust. PW-1 has also deposed that the plaintiff no. 1 is a registered trust, however, he has stated that it is not known to him as to whether it is a public or private charitable trust, though he mentioned that the plaintiff no. 1 is meant for the public and that its objects are mentioned in the trust deed. Here, it must be noted that it is not the case of the plaintiffs that the trust is registered as a society under the Societies Registration Act, 1860 or that it is a private trust. Further, in light of the aforesaid legal principles governing execution of trusts, private or public trusts, it is not relevant to delve into the question as raised by the Learned Counsel for the defendant as to whether the provisions of the Societies Registration Act or the Indian Trusts Act are attracted or applicable to the facts of the present case. Lets now draw our attention to the trust deed, if any, of the plaintiff no. 1. The plaint or the affidavit of PW-1 finds no mention of a trust deed and no trust deed has been placed on record by the plaintiff. Further, PW-1 has deposed stating that he does remember if he has the original trust deed with himself or not. Here it must be noted that a notice under Order XII Rule 8 of the Code of Civil Procedure, 1908 was served on the defendant for production of the original trust deed and the declaratory/supplementary trust deed. Admittedly, no documents were produced by the defendant in pursuance thereof. It was only during cross- examination of PW-1 that copy of the declaratory/ supplementary trust deed dated 31.01.1986 (hereinafter referred to as, "Supplementary Deed") was put to PW-1, which was admitted and exhibited as Exhibit PW-1/D1. On perusal, the recital of the Supplementary deed itself mentions that the CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 27/35 plaintiff no. 1 was created as a trust, vide a trust deed dated 28.04.1969, which was duly registered with the Sub-Registrar, New Delhi. PW-1 was not questioned/cross-examined as to the said details of the trust and its registration as given in the recital of Supplementary Deed/Exhibit PW-1/D1. Therefore, from the above, it can be stated that the plaintiff no. 1 is a trust created by a trust deed dated 28.04.1969 and is registered under the provisions of the Registration Act. Now, it is not the case of the defendant that the Supplementary Deed does not govern the functioning of the plaintiff no. 1 trust and cannot be looked into in the absence of the trust deed itself. Further, it is not their case that the said Supplementary Deed does not authorize or provide for execution of the trust and its functions by one or more of the trustees or by majority of trustees. The Supplementary Deed is an admitted document. Thus, in the absence of the original trust deed, the articles of the Supplementary Deed/Exhibit PW-1/D are being looked into to determine the manner of execution of the plaintiff no. 1 trust. The relevant clauses of the Supplementary Deed are reproduced below:-
"...And Whereas vide resolution dated 15th day of December, 1985, the Trustees have desired that the aforesaid Trust Deed 28.04.1969, in respect of Banwari Lal Charitable Trust be suitably amended and modified so as to elaborate specifically the objects of the Trust with clarity as also to cover other aspects including defining of the powers of the Trustees for the proper functioning of the said Trust and achievements of its objects;...
(2) That the entire property belonging to the Trust shall continue to vest in the Trustees as here-to-fore. ...
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 28/35 (8) That the funds of the Trust, as well as properties shall continue to vest in the Trustees who shall hold, maintain and administer the same in accordance with the terms and conditions set out herein-below:-
(a) There shall not be less than thee or more than seven trustees at any time, who together shall constitute the Board of Trustees. It is declared that the present Board of Trustees is comprised of all the Trustees named hereinabove.
(b) ... (c) ... (d) ... (e) ...
(f) The Board of Trustees may, by a resolution passed by majority of the total membership of the Board, remove a Trustee from the Board on the ground of misconduct or moral turpitude found after enquiry to be conducted therefor by a committee to be set up by the Board or on the ground of unsoundness of mind or insolvency.
(g) Any question arising in respect of or concerning the terms and conditions of the trust shall be decided by the majority of the trustees acting for the time being.
28. There is no specific clause/article in the Supplementary Deed, Exhibit PW-1/D1, authorizing any person/trustee or prescribing any mode for execution for the purposes of instituting or defending suits/legal proceedings on behalf of and/or against the trust. Article 8 of the said deed provides that the trustees shall hold, maintain and administer the funds and the properties of the trust in accordance with the terms and conditions CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 29/35 mentioned in the said article. As per Article 8 (g) of the deed, any question concerning the trust or in respect of the terms and conditions of the trust is to be decided by the majority of the trustees acting for the time being. Thus, what appears from the Supplementary Deed is that the execution of the trust and its functions is carried out or decided by the majority of the trustees. Therefore, a resolution passed by majority of the trustees of the plaintiff no. 1, authorizing any co-trustee to take all steps necessary for purposes of institution and prosecuting of legal proceedings for and against the trust, would amount to a decision taken as per the terms of the Supplementary Deed.
29. PW-1/plaintiff no.2 has placed on record and proved the resolution dated 29.06.1997, Exhibit PW-1/2 (OSR), under which it was resolved that he shall be the chairman of the plaintiff no. 1. Further, PW-1 has also placed on record and proved the resolution dated 01.09.2010, Exhibit PW-1/1 (OSR), under which he was authorized and empowered by and on behalf of the plaintiff no. 1, "...inter alia, to issue notice and/or to file, commence, institute, present, prosecute and/or defend any case, Civil, Criminal and/or otherwise, in/before any Court, Forum and/or Authority of competent jurisdiction, etc., and to sign and/or verify all the papers and documents, including plaints...". From the above, the plaintiff no. 2/PW-1 is shown to be authorized by all trustees to institute/defend all legal proceedings including civil suits on behalf of the trust, which decision/act cannot be said to be not in accordance with the Supplementary Deed. As already stated above, any decision made by majority of the trustees in respect of and concerning the terms and conditions of the trust is as per the Supplementary Deed. Further, it is pertinent to note here that the Lease CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 30/35 Deed, on which the defendant has relied upon, has been executed between the defendant and the plaintiff no. 1, through the plaintiff no. 2, the then Secretary, stated to be authorized to do so. Therefore, where on hand the defendant challenges the authority of the plaintiff no. 2 to institute the present suit, in respect of which the plaintiff no. 2 has been authorized by all the trustees to do so, on the other hand, the Lease Deed has been admitted as a legally valid document, wherein with similar authority, the plaintiff no. 2 has executed the agreement on behalf of the plaintiff no. 1 trust. This is one example of a deviation from the general rule/principle govering trusts that all acts towards execution of the trust must be done jointly by all the trustees. In view thereof, the contention of the defendant that the trustees cannot delegate their functions to one or more trustees is a weak argument and suffers from contradiction.
30. The burden of proving that the plaintiff no. 2 did not have the authority to institute the present suit was placed on the defendant. During the cross- examination of PW-1, Learned Counsel for the defendant raised objections as to the manner of maintainance of the minutes book of the trust and as to its authenticity. Firstly, PW-1 was questioned as to the signatures with different dates appearing on the resolution dated 29.06.1997, Exhibit PW-1/2, to which PW-1 replied stating that there is one signature with a different date in the said resolution, which is not of a trustee but of an income tax official, who had authenticated the minutes book of the plaintiff no. 1. According to the Supplementary Deed, there cannot be more than seven trustees of the plaintiff no.1 at one time. That means that there should have been at least 7 signatures on the said resolution. There appears to be eight signatures on the copy of the said resolution, Exhibit PW-1/2.
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 31/35 Even if, the resolution has been signed by eight persons, it does not mean that the resolution itself is defective or that not all the trustees have signed the resolution. Further, it is not the case of the defendant that the resolution was not signed by all the trustees of the plaintiff no. 1 at that point in time or that the plaintiff no. 2 is not the chairman of the plaintiff trust. Therefore, this contention of the defendant does not carry much weight.
31. The next contention raised by the Learned Counsel for the defendant was that certain resolutions in the minutes book are pasted and that resolutions as pasted in the minutes book after the resolution dated 01.09.2010 are not dated. PW-1 answered stating that the resolutions were passed by way of circulation therefore, they are pasted in the minutes book and not written by hand. Further, PW-1 stated that there are other resolutions in the minutes book, which are handwritten and have no date mentioned on them. He denied that the minutes book was prepared at the fag end for the purposes of the present suit and is manipulated. Learned Counsel for the defendant argued that there is a duty upon the officers/members etc., of any company, organization etc., to maintain their minutes books in accordance with the provisions of law. He referred to Section 193 of the Companies Act, 1956 and certain clarifications/instructions issued thereunder, which provide for the manner/form to be adopted by the companies to maintain the minutes books of their generel meetings and of the Board meetings etc. A trust is principally governed by the terms and conditions mentioned in its trust deed. The provisions of the Companies Act, 1956 would not be applicable to trusts. It would be pertinent to reproduce here certain articles/clauses of the Supplementary Deed, which are relevant for ascertaining the manner/form/mode, if any presecribed, for maintainance CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 32/35 of the minutes books of meetings of trustees:-
"(19) The Trustees may for the time being meet at least once in every Calendar year at a time and placed to be decided for the purposes of transacting the business of the Trust and the decision of the majority of the Trustees shall regulate such business Provided Alaways that it shall be open to the Trustees to mae rules and regulations relating such meeting and conduct of their business...
(20) ...
(21) Any resolution signed by the majority of the Trustees on circulation to all the Trustees shall be as good as passed in meeting of the Board of Trustees.
(22) The decision of the majority shall be final; In case of difference of opinion amonst the Trustees, the Chairman of the Board of Trustees in the event of equality of votes, will have the casting vote. (23) The minutes of proceedings of every meeting of Board of Trustees shall be recorded in the Minutes Book to be kept for the purpose and signed by the Chairman of such meeting or the following meeting."
32. On perusal of the Supplementary Deed and from the above articles, there appears to be no specific form or manner provided or prescribed for maintaining the minutes book of the meetings of the trustees of plaintiff no.
1. It provides though that resolutions signed by majority of the trustess on circulation to all the trustees shall be as good as if passed in the meetings. Thus, the resolutions/minutes of the meetings of the trustees pasted on the minutes book after being signed by majority of the trustees on circulation cannot be said to be bad or contrary to the clauses of the trust deed of the CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 33/35 plaintiff trust i.e., the Supplementary Deed. Further, the said deed provides that any question as to the manner of conducting the meetings and busines of the trustees can be regulated by rules and regulations made by the trustees. Therefore, what is evident is that the Supplementary Deed gives wide powers to the trustees to frame their own rules and regulations pertaining to the manner of conducting meetings and business of the trustees. Further, there is no such article in the Supplementary Deed, which renders illegal or void any resolution owing to defect in its procedure. The power to make decisions pertaining to its business and meetings is that of the trustees and the decision is to be taken by majority. Therefore, even assuming that the minutes book may not appear to be maintained in the best possible manner, in light of the said articles/clauses of the Supplementary Deed, it cannot be concluded that the minutes book is manipulated. Further, it is not the case of the defendant that any of the trustees of the plaintiff have or had ever challenged the validity of the resolutions passed by the majority of trustees or that any doubt has been shown to have been raised by any trustee or even its beneficiary regarding the authenticity of the minutes book. Therfore, the contentions/objections raised by the Learned Counsel for the defendant are without much substance. From the above, this Court is of the view that the defendant has not been able to show any such defect in the authority of the plaintiff no. 2 to institute/file the present suit on behalf of plaintiff no. 1, which renders the suit as not maintainable. Accordingly, this issue is decided in the negative.
33. Having decided all the issues framed by this Court in favour of the plaintiff and against the defendant, this Court is of the view that plaintiff is entitled CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 34/35 to the relief as sought for i.e., of recovery of Rs. 1,71,174/- (Rupees One Lakh Seventy One Thousand One Hundred and Seventy Four Only) from the defendant towards the excess house tax in respect of the suit property for the assessment years 2011-2012 and 2012-2013. Since the transaction between the parties cannot be termed as a purely commercial transaction, pendent lite and future interest @ 18% per annum sought for by the plaintiff apppears unreasonable and exorbitant.
34. Accordingly, a decree for a sum of Rs. 1,71,174/- (Rupees One Lakh Seventy One Thousand One Hundred and Seventy Four Only) along with pendent lite interest @ 6% per annum and costs of the suit is passed in favour of the plaintiff and against the defendant.
35. Accordingly, the suit is disposed of. Decree sheeet be prepared. File be consigned to record room after due compliance.
Pronounced in Open Court
today December 04, 2014 (SALONI SINGH)
Civil Judge-03/PHC/NEW DELHI
04.12.2014
CS No.51/13 Banwari Lal Charitable Trust & Ors v. Asia Features India Pvt. Ltd. 35/35