Delhi High Court
Nirmal Gupta & Ors vs M/S Ganton India Pvt Ltd & Anr on 22 October, 2013
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI + I.A. No. 4335/2013 (O.XII R.6 CPC) in CS(OS) 3131/2012 % Reserved on: 3rd October, 2013 Decided on: 22nd October, 2013 NIRMAL GUPTA & ORS ..... Plaintiffs Through: Mr. R.S. Chauhan and Mr. D.K. Thakur, Advocates. versus M/S GANTON INDIA PVT LTD & ANR ..... Defendants Through: Mr. Gaurav Mitra, Mr. Gaurav Chandhok and Ms. Samreen, Advocates for Defendant No. 2. Coram: HON'BLE MS. JUSTICE MUKTA GUPTA 1.
By this application the plaintiff seeks a decree in favour of the plaintiff and against the defendant in terms of the admissions made by the defendant.
2. Learned counsel for the plaintiffs contends that the defendants have clearly admitted the relationship of a landlord and tenant qua the suit property. The defendants have further admitted the rate of rent and lease agreement dated 15th February, 2010 vide which suit property was leased out ON a monthly rent of Rs. 3 lakhs to M/s. GT Telecom Pvt. Ltd. The defendants have admitted that defendant No.2 is staying in the suit property in her capacity as Director of defendant No.1 as she was put into the premises pursuant to the said lease dated 15 th February, 2010. The defendants have admitted that lease deed is not registered and therefore the I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 1 of 11 tenancy has to be on month-to-month basis. The rent of the premises being more than 3,500/- per month, the provisions of Delhi Rent Control Act do not apply. The defendants have also admitted that notice in terms of Section 106 of the Transfer of Property Act (in short the TP Act) has been issued and the tenancy has been validly terminated. Further M/s Ganton India Pvt. Ltd. vide its reply dated 22nd September, 2012 to the plaintiffs have admitted that the execution of the amendment agreement was without consent or knowledge of the Board of Directors of M/s Ganton India Pvt. Ltd. Further on coming to know of the demenour of defendant No.2, the Board of Directors of Ganton India Pvt. Ltd. have decided to take appropriate action to cancel the lease of the property as the property was taken on lease in company's name illegally and without authorization from the company, return the property immediately to plaintiffs and utilize the deposits paid towards lease of the property for settlement of the outstanding rent due to the plaintiffs. The only dispute raised by the defendant No.2 is that the defendant No.2 in her written statement claims that the plaintiff No.2 entered into an oral agreement to sell the suit property to defendant No.2. Further no document in this regard has been filed and thus the plea is wholly false, irrelevant and unsubstantiated. Reliance is placed on Uttam Singh Duggal & Co. Ltd. Vs. United Bank of India and Ors. (2000) 7 SCC 120; Brig. H.S. Cheema & Anr. Vs. State Bank of India 80 (1999) DLT 117; Bai Chanchal and Ors. Vs. Syed Jalaluddin and Ors. AIR 1971 SC 1081; Kesho Lal Kapur & Ors. Vs. Vinod Kumar & Anr. 81 (1999) DLT 20; Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. & Ors. 66 (1997) DLT 54 (DB); R.N. Sachdeva Vs. Ram Lal Mahajan Charitable Trust 1997 (3) AD(Delhi) 997; Surjit Singh Vs. H.N. Pahilaj (Decd.) Through LRs 65 (1997) DLT 22;
I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 2 of 11Charanjit Lal Mehra & Ors. Vs. Smt. Kamal Saroj Mahajan and Ors. AIR 2005 SC 2765; PPA Impex Pvt. Ltd. Vs. Mangal Sain Mittal 166 (2010) DLT 84 (DB) and M/s. Mechelec Engineers & Manufacturers Vs. M/s. Basic Equipment Corporation (1976) 4 SCC 687.
3. Learned counsel for the defendant No.2 on the other hand contends that a perusal of the written statement filed by the defendant No.2 does not make out an unequivocal or unambiguous admission and in the absence thereof no decree on admissions can be passed against the defendant No.2 in terms of the decision of the Supreme Court in Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Anr. (2010) 6 SCC 601. During the subsistence of the lease agreement with the defendants, the plaintiffs and defendant No.2 entered into an oral agreement to purchase the property for a consideration of Rs. 50 crores out of which Rs. 72 lakhs has been paid as consideration. It is for this reason that the lease deed executed was not registered. Further the agreement to sell or the sale deed was not executed as all the parties did not agree on behalf of the plaintiffs and the plaintiff No.2 later on informed that other parties were also agreeable to the sale to the defendant No.2 and thus received periodic payments. The receipts for the consideration paid in relation to the sale of the suit property are worded differently which clearly show that the said amount was not given as rentals but for some other reason. Further, the receipts in relation to the sale consideration are signed by the Directors of the companies of which defendant No.2 is the only common Director. The rent receipts are admittedly signed by plaintiff No.2 whereas the receipts for maintenance have been acknowledged by Ujjwal Enterprieses and Neeraj Enterprises.
I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 3 of 11The defendant No.2 was willing to perform her part of the agreement and got prepared the bank drafts which were got cancelled and cash was paid in lieu thereof. The defendant No.2 is actually a purchaser of the suit property and the lease continued only to protect the possession of defendant No.2 pending the final sale consideration and execution of the sale deed.
4. Heard learned counsel for the parties. By the present suit the plaintiffs who are admittedly the owners of suit property being Farm No.2, Mall Road, forming part of Khasra Nos. 39/4, 36/17, 36/24 Village Kishan Garh, Vasant Kunj, New Delhi 110070 popularly known as 'Gupta Farms' comprising of constructed house and open land measuring 3 acres (in short the suit property) have, inter alia, sought relief of eviction/ recovery of possession, arrears of rent/ damages, mesne profit from the defendants. The case of the plaintiffs is that the plaintiffs agreed to lease out the suit property to M/s GT Telecom Pvt. Ltd. vide its lease agreement dated 15 th February, 2010 for a monthly rent of Rs. 3 lakhs payable every three months. The lease agreement dated 15th February, 2010 was for a period of six years out of which the first three years were agreed as lock-in period and it further provided that the rent shall be increased by 20% after the expiry of first two years, by 15% for the next two years and by 10% thereafter every two years. The company was also directed to keep a security deposit with the plaintiffs amounting to Rs. 18 lakhs as interest free security deposit which amount was to be refunded in full on the date of expiry of lease or if the lease was terminated after adjusting the dues/ damages, if any. However, this lease agreement could not be registered on account of default on the part of M/s GT Telecom Pvt. Ltd. During the subsistence of said lease the lessee M/s I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 4 of 11 GT Telecom Pvt. Ltd. assigned its lease right in respect of suit property in favour of M/s Ganton India Pvt. Ltd, defendant No.1 and sought the consent for the said assignment. The plaintiffs consented for assignment of the lease and accordingly an amended agreement was executed on 1st April, 2011 between the plaintiffs, M/s GT Telecom Pvt. Ltd and defendant No.1 whereby defendant no.1 became the new tenant and stepped into the shoes of said M/s GT Telecom Pvt. Ltd. The new agreement was also not registered and hence the lease agreement is to be treated on month-to-month basis. Though the rent was to be paid in advance for a period of three months @ Rs. 3 lakhs per month, however the defendant No.1 started defaulting in making the regular payment and after 31st March, 2012 did not pay any rent in respect of the suit property to the plaintiffs. The defendants continued to be in possession of the suit property and have not vacated the same. The defendant No.2 who is the Director of defendant No.1 has been residing and is in possession of the suit property. The plaintiffs further came to know that the defendant No.1 started using the suit property for commercial purposes by operating its office from the suit property in breach of the terms and conditions of the lease deed. On 15th August, 2012 one Mr. Vikki Chaudhary claiming to be the Director of defendant No.1 approached the plaintiffs and informed that the defendant No.1 was no longer desirous of continuing tenancy and the vacant possession be taken over. Accordingly, plaintiff No.3 accompanied the said Mr. Vikki Chaudhary to the suit property, however instead of giving the vacant peaceful possession of the suit property to the plaintiffs, some officials/ employees of defendant No.1 and agents of defendant No.2 got a false and frivolous FIR registered against the plaintiffs under Section 341/452/506/34 IPC read with Section 27 Arms I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 5 of 11 Act at PS Vasant Kunj. In view of the regular default of payment of the agreed rent and the conduct of the defendant No.2 and her husband, the plaintiffs were not interested in continuing the tenancy/ lease of the suit property and thus terminated the same with effect from 30 th September, 2012 vide notice dated 5th September, 2012 sent on 6th September, 2012 and duly received by defendant No.1. However, despite the said notice the defendant No.1 failed to hand-over peaceful vacant and physical possession of the suit property after 30th September, 2012 and is thus an unauthorized occupant in the suit property and is liable to pay mesne profit, damages etc.
5. Before adverting to the facts further, two relevant documents are required to be noted; one is the initial lease deed dated 15 th February, 2010 between the plaintiffs and GT Telecom Pvt. Ltd. a company registered under the Companies Act and the amendment of the lease agreement dated 1 st April, 2011 between the plaintiffs, GT Telecom Pvt. Ltd. and Ganton India Pvt. Ltd. thereby assigning the lease rights to the defendant No.1 Ganton India Pvt. Ltd. The execution of the amended lease deed is not denied by defendant No.2 and the defendant No.1 M/s Ganton India Pvt. Ltd. is already ex-parte. The plaintiffs gave a notice of termination to M/s Ganton India Pvt. Ltd. defendant No.1 which notice was replied by Shri Vikki Chaudhary, Director of Ganton India Pvt. Ltd. In the said reply dated 22nd September, 2012 it is stated that the execution of the amended agreement was without consent or knowledge of the Board of Directors of the company i.e. Ganton India Pvt. Ltd. It is further stated that the fact of Ms. Anca Maria Neacsu 'defendant No.2" demeanour with regard to lease of property had come to the attention of the Board of Directors of the company now and in its special I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 6 of 11 meeting held on 11th August, 2012 they had decided to take appropriate action to cancel the lease of the property, as the property was taken on lease in the name of the company illegally and without authorization from the company, return the property immediately to the plaintiffs and utilize deposits towards lease of the property and for settlement of outstanding dues.
6. Defendant No.1 is already ex-parte and it may be thus deemed to have admitted the facts of the plaintiff. In the written statement filed, defendant No.2 has pleaded that the defendant No.2 is in legitimate occupation of the suit property and the plaintiffs have deliberately and willfully concealed that not only they have agreed to sell the suit property to the defendant No.2 but also have received periodic payments towards oral agreement to sell. Thus, the plaintiffs are estopped from dispossessing the defendant No.2 from the suit property. With regard to the oral agreement it is stated that the plaintiff No.2 Shri Ravi Gupta had offered to sell the suit property to the defendant No.2 who informed that he was re-modelling/ renovating his own property at Greater Kailash and was in the process of purchasing some other properties and therefore was in need of money. When the defendant No.2 asked the plaintiff No.2 whether he was acting on behalf of his family or was capable of entering into agreement to sell qua the suit property, the plaintiff No.2 suggested that there were certain family disputes going on inter-se the families regarding the shares in the property, therefore it would not be possible for him to enter into any written agreement to sell but assured that he just needs some time to sort out the differences in his family and will bring around his family members once the re-modelling/ renovating of the property in Greater kailash is complete. Plaintiff No.2 further suggested that I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 7 of 11 he could not commit an exact date of concluding the sale and the exact price. Plaintiff No.2 further suggested to defendant No.2 that she need not make the entire payment in one go at that time and she could make small payments in installments. For this purpose plaintiff No.2 opened two fictitious company i.e. Neeraj Enterprises and Ujjwal Enterprises, companies shown to be involving in providing maintenance and other housekeeping services and payments were collected in the name of these two companies showing these to be providing maintenance and other housekeeping services qua the said property. Thus, defendant No.2 paid a sum of Rs. 72 lakhs. After a period of one year the said M/s GT Telecom Pvt. Ltd was replaced by M/s Ganton India Pvt. Ltd. vide amended agreement dated 1st April, 2011 and the terms and conditions of the lease deed continued to be the same. At that time defendant No.2 again asked about the proposed deal to sell the suit property when the plaintiff No.2 again requested for some time. Subsequently, the defendant No.2 once again requested the plaintiff No.2 to enter into an agreement to sell, however he stated that there was no need to enter into an agreement to sell and he assured that the sale deed will be executed very soon. Somewhere around April, 2012 the plaintiff No.2 informed the defendant No.2 that the other two plaintiffs have finally agreed to sell the suit property. The sale price was decided at Rs. 50 crores and the sale was to be concluded within six months. It was further suggested by the plaintiffs that as the defendant No.2 was already living in the suit property there was no need of entering into written agreement to sell, as such the defendant No.2 got two drafts made in the April, 2012 in the name of plaintiff No.2 totaling to Rs. 2,40,00,000/- and gave the same to the plaintiffs. Plaintiff No.2 suggested that they could not accept payment in the form of drafts but I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 8 of 11 needed cash and thus on their demand the defendant No.2 arranged cash amount and paid the same to the plaintiff No.2 personally. The defendant No.2 further paid a sum of Rs. 8 lakhs to plaintiff No.2 vide cheque for starting formalities of obtaining stamp papers and other documents. However, thereafter the defendant No.2 got married and disputes arose between the defendant No.2 and the Directors of defendant No.1 and since then the defendant No.2 is in judicial custody with her husband.
7. It may be noted that the lease deed was entered into between the plaintiff and M/s GT Telecom Pvt. Ltd which was further assigned to M/s Ganton India Pvt. Ltd. defendant No.1. Defendant No.1 has already been proceeded ex-parte and thus the averments on behalf of defendant No.1 are deemed to be admitted. The defendant No.2 claims to be an occupier from defendant No.1, however the defendant No.1 which is the lessee has accepted the notice of the plaintiff dated 5th September, 2012 and have also terminated the lease. The defendant No.2 in her defence has set up a totally new case. The defendant No.2 is not a lessee and at best can claim herself to be a licensee of defendant No.1. The defendant No.1 having agreed by way of reply to the notice to vacate the premises, the defendant No.2 has no right to occupy the same as a licensee as well. Further, the case of the defendant No.2 is that there is an oral agreement only in relation to the plaintiff No.2 on whatever he has represented. Admittedly, plaintiff No.1 & 3 have never been a party to this oral agreement or receipt of any money. In the absence of an agreement to sell with all the owners of the suit property, it cannot be said that a concluded contract was entered into between the plaintiffs and defendant No.2 with regard to sale of the suit property for a consideration of I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 9 of 11 Rs. 50 crores. In the absence of a concluded contract of sale between the plaintiffs and the defendant No.2, the defendant No.2 does not get a right to stay in the house on the basis of oral agreement to sell with the plaintiff No.2 only.
8. There can be no doubt as laid down in Jeevan Diesels (supra) that the admissions have to be clear and unambiguous to pass a judgment on admission. However, in the present case the facts relating to the creation of the tenancy and the termination thereof are not disputed by the defendant. The defendant has set up a totally new case, and going into the facts stated by defendant No.2 it cannot be said that a concluded contract was entered into between the plaintiffs and defendant No.2 for agreeing to sell the suit property. Hence the right to possession of defendant No.2 as a licensee of defendant No.1 extinguishes on the termination of the lease deed by a notice dated 5th September, 2012 sent by the plaintiffs, further accepted by the reply dated 22nd September, 2012 by the defendant No.1.
9. In Uttam Singh Duggal & Company Ltd. Vs. Union of India (2007) 7 SCC 120 the Supreme Court laid down that the Court has power to pass a preliminary decree under Order 12 Rule 6 CPC not only on the basis of admission in the pleadings but on admissions made otherwise. Such admissions may be made either expressly or constructively. It was further held that the meaning of this rule should not be unduly narrowed down as the object of the rule is to enable a party to obtain speedy judgment. Applying the ratio laid down by the Supreme Court it may be noted that the facts in the present case are that there is an admission of the execution of the amendment to lease agreement dated 1st April, 2011, entering into possession of suit I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 10 of 11 property by defendant No.1, occupation of suit property by defendant No.2 as a Director of defendant No.1, payment of security and rent by cheques by defendant No.1 to the plaintiffs, defendant No.1's reply to the plaintiff that the lease stood terminated and the possession of the suit premises be handed over to the plaintiffs.
10. In the light of the facts discussed above, I am of the considered opinion that the application is required to be allowed and a preliminary decree in favour of the plaintiff and against the defendants is required to be passed. Consequently, a preliminary decree is passed in favour of the plaintiff and against the defendants directing the defendants to vacate the suit property and hand-over the vacant and peaceful possession of the suit property to the plaintiffs. However, with regard to damages and mesne profits, interest etc., the parties would have to lead evidence and thus the suit is required to proceed thereon on the said count.
11. Application is disposed of.
(MUKTA GUPTA) JUDGE OCTOBER 22, 2013 'ga' I.A. No. 4335/2013 in CS(OS) 3131/2012 Page 11 of 11