Delhi High Court
Sanjay Gupta vs Krishna Hospitality & Anr on 8 May, 2018
Equivalent citations: AIRONLINE 2018 DEL 1649
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 8th May, 2018
+ CS(COMM) 646/2017
SANJAY GUPTA ..... Plaintiff
Through: Mr. Manish Vashisht, Mr.
Sameer Vashisht, Ms. Astha
Gupta and Mr. Manashwy Jha,
Advs.
versus
KRISHNA HOSPITALITY & ANR ..... Defendants
Through: Ms. Priya Hingorani and Mr.
Sarvesh Chowdhry, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.3711/2018 (of the defendants u/O IX Rule 13 CPC).
1. This order is in continuation of the earlier order dated 16th
March, 2018.
2. The plaintiff instituted this suit for ejectment of the defendants
from property no.6-A, Anandlok, New Delhi after determination of
tenancy at a rent in excess of Rs.3,500/- per month of the defendants
with respect to the said premises and for recovery of arrears of rent of
Rs.61,00,000/- and for recovery of mesne profits.
3. The suit was entertained and summons thereof issued. The
defendants appeared in response to the summons and filed a written
statement verified on 24th January, 2018. The suit was thereafter
posted before the Court on 6th February, 2018, when none appeared
for the defendants and the defendants were proceeded against ex parte
CS(COMM) No.646/2017 Page 1 of 10
and for the detailed reasons given in the order dated 6 th February,
2018, an ex parte decree for ejectment of the defendants from the
premises and for recovery of Rs.61,00,000/- with interest and for
recovery of mesne profits at the same rate as at which the defendants
were claimed to be paying rent, was passed in favour of the plaintiff
and against the defendants.
4. The defendants filed IA No.3711/2018 for setting aside of the
said ex parte decree and which application came up first before this
Court on 16th March, 2018, when finding that the defendants in the
written statement filed had admitted the relationship of landlord and
tenant with the plaintiff and though had disputed the rate of rent to be
Rs.6,00,000/- per month but had admitted the rate of rent to be
Rs.3,00,000/- per month, it was enquired from the counsel for the
defendants/applicants as to what was the defence of the
defendants/applicants to the suit insofar as the decree for ejectment
was concerned. However, time was given on that date to the counsel
for the defendants to prepare on the said aspect and the application
posted for further hearing to today.
5. The counsel for the defendants, on the aspect of setting aside of
the ex parte decree insofar as for ejectment, has argued (i) that the
plaintiff claims to have terminated tenancy for the reason of the
defendants having not paid the rent but the defendants in fact have
paid the rent and were not in arrears of rent; (ii) that the defendants
have to be given a proper opportunity to defend the suit; (iii) that all
provisions of the Code of Civil Procedure, 1908 (CPC) have to be
CS(COMM) No.646/2017 Page 2 of 10
complied with and the defendants cannot be called upon at this stage,
to state what their defence is to the claim of decree for ejectment; (iv)
that the defendants should be given an opportunity to place documents
in support of their defence to the claim of decree for ejectment;
(v) that the plaintiff has locked one of the rooms in the property in
which all the documents of the defendants are lying and the
defendants are thus unable to access the said room; and, (vi) that
though there is no registered Lease Deed between the parties but the
understanding of the parties and on which the parties have been acting,
is that the defendants shall continue to remain as tenants in the
premises forever and the defendants should be given an opportunity to
prove the same.
6. The counsel for the defendants at this stage of dictation states
that her argument is not that the understanding was of the defendants
continuing in tenancy forever but of the defendants being entitled to
remain in the premises till mutually agreed between the parties.
7. I have enquired from the counsel for the defendants that the
defendants having admitted the relationship of landlord and tenant
between the parties and the rent to be in excess of Rs.3,500/- per
month and having also admitted non-existence of any registered Lease
Deed whereunder the defendants can have any right to continue in the
premises, what purpose will be served in giving opportunity to the
defendants to lead evidence to prove the plea of 'understanding
between the parties' when such plea has no basis in law.
CS(COMM) No.646/2017 Page 3 of 10
8. The counsel for the defendants states that the 'due process of
law' has to be followed.
9. The due process of law does not entitle a litigant to force the
Court to blindly put all suits through the process of trial when the
defendants in their pleading have been unable to disclose any defence.
A suit in which the defendants in the written statement have not
disclosed any defence or raised any substantial question of law or fact
which if decided in favour of the defendants, can defeat the suit claim,
does not require any issues to be framed and the suit has to be decreed
forthwith. In the name of 'opportunity', 'compliance of provisions of
CPC' and 'observing due process of law', the time of the Court is not
to be wasted.
10. I reiterate that in view of the admissions already existing in the
written statement of the defendants and in the reply of the defendants
to the legal notice, the defendants have not disclosed any defence to
the claim, insofar as for ejectment and ex parte decree for ejectment is
not to be set aside when no purpose would be served by setting aside
thereof and when the fate, even after hearing the counsel for the
defendants and for which also opportunity has been given today, has
to be the same.
11. Per Section 107 of the Transfer of Property Act, 1882, a lease of
immovable property for any term exceeding one year can be made
only by a registered instrument and all other leases may be made
either by registered instrument executed by the lessor and lessee or by
oral agreement accompanied with delivery of possession. The
CS(COMM) No.646/2017 Page 4 of 10
defendants in their written statement have pleaded lease agreement
dated 23rd November, 2015, for a period of three years, executed by
plaintiff and defendants and whereunder claim to be entitled to occupy
premises till 31st October, 2018. The same is not registered and is
admitted to be not registered. The same thus, under Section 49 of
Registration Act 1908, cannot be received in evidence of any
transaction effecting such property. Per Section 106 of Transfer of
Property Act, in the absence of registered lease deed, a lease of
immovable property for any purpose other than agricultural or
marketing, is deemed to be a lease from month to month, terminable
by a fifteen days' notice. Supreme Court in Nopany Investments (P)
Ltd. Vs. Santokh Singh (2008) 2 SCC 728 held that filing of an
eviction suit under general law itself is notice to quit upon tenant. The
said dicta was followed by Division Bench of this Court in Shri Ram
Pistons and Rings Ltd. Vs. C.B. Agarwal HUF ILR (2009) III Delhi
249. Thus, even if suit for ejectment is filed without notice
determining lease, after the same has remained pending for over
fifteen days, it cannot be defeated on ground of non service of notice.
Moreover, the defendants herein have in their written statement
admitted service of notice of determination of tenancy. Upon
amendment of Section 106 of Transfer of Property Act with effect
from 31st December, 2002, a notice of determination of tenancy shall
not be invalid merely because the period mentioned falls short of
period specified thereunder, as long as the suit has been filed after
specified period.
CS(COMM) No.646/2017 Page 5 of 10
12. However, as far as the claim of the defendants for setting aside
of the decree insofar as for recovery of Rs.61,00,000/- is concerned,
the said claim of Rs.61,00,000/- has been made on the basis of the rate
of rent being of Rs.6,00,000/- per month. The defendants, in the reply
to the legal notice preceding the suit and even in the written statement,
have disputed the rate of rent to be Rs.6,00,000/- per month and
claimed rate of rent to be Rs.3,00,000/- per month and have further
pleaded that up-to-date rent has been paid.
13. The counsel for the defendants, on enquiry states that rent has
been paid till the month of April, 2018 @ Rs.3,00,000/- per month and
has been paid by cheques which have been encashed.
14. The counsel for the plaintiff states that the cheque has been
encashed without prejudice to the rights and contentions of the
plaintiff.
15. In this view of the matter, insofar as the decree for recovery of
monies is concerned, it is deemed appropriate to set aside the same for
the reasons stated for non-appearance on 6th February, 2018.
16. Accordingly IA No.3711/2018 for setting aside of the ex parte
decree, though is dismissed insofar as to the extent of setting aside of
the ex parte decree for ejectment, which shall stand, but is allowed
insofar as the decree for recovery of Rs.61,00,000/- with interest is
concerned.
17. On the condition that the defendants, till further orders, without
prejudice to the rights and contentions of the parties, continue to pay
CS(COMM) No.646/2017 Page 6 of 10
Rs.3,00,000/- per month to the plaintiff, in advance for each month
by the 10th day of the English calendar month, IA No.3711/2018 is
disposed of.
CS(COMM) 646/2017.
17. The counsel for the plaintiff, on enquiry states that the plaintiff does not want
to file replication to the written statement and issues can be framed.
18. Needless to state, the ex parte decree for recovery of future
mesne profits having been set aside, the plaintiff though had on 6th
February, 2018 confined the relief for mesne profits @ Rs.6,00,000/-
per month, shall be entitled to mesne profits at a higher rate if proved
in law.
19. On the pleadings of the parties, the following issues are framed
qua the claim of the plaintiff for recovery of arrears of rent and for
future mesne profits.
(i) Whether the Agreement of the defendants with the
plaintiff of enhancement of rent of the property from
Rs.5,00,000/- per month to Rs.6,00,000/- per month was
subject to finalisation of the deal between the defendants
and the State of Uttarakhand / Uttaranchal and did not
come into effect and remained at Rs.3,00,000/- per
month only? OPD
(ii) To mesne profits/damages for use and occupation at what
rate, with effect from the date of institution of suit till the
CS(COMM) No.646/2017 Page 7 of 10
date of ejectment, is the plaintiff entitled to from the
defendants? OPP
(iii) If the plaintiff is found entitled to any arrears of rent,
whether the plaintiff is entitled to any interest thereon and
if so, at what rate and for what period? OPP
(iv) Relief.
20. No other issue arises or is pressed.
21. The parties to file their list of witnesses within 15 days.
22. The counsel for the defendants has at this stage contended that
an issue be also framed as to 'whether the plaintiff has paid
appropriate court fees on the plaint'. It is stated that the plaintiff has
pleaded the value of the property of over Rs.50 crores but paid court
fees on the annual rent only for the relief of ejectment.
23. I have enquired from the counsel for the defendants, the
provision of the Court Fees Act, 1870, which governs the court fees of
a suit for ejectment.
24. The counsel for the defendants seeks adjournment to show.
25. Attention of the counsel for the defendants is invited to Section
7 (xi) (cc) of the Court Fees Act which provides that on a suit between
landlord and tenant including by a landlord against a tenant holding
over after determination of tenancy, the court fees is to be on the value
of the annual rent payable for the year next after the determination of
CS(COMM) No.646/2017 Page 8 of 10
the tenancy. The plaintiff is thus found to have valued the suit for the
relief of ejectment in accordance with the Court Fees Act. As per
Section 8 of the Suits Valuation Act, 1887, the valuation for the
purposes of jurisdiction has to be the same as for the purpose of court
fees.
26. The counsel for the defendants has also contended that the suit
has to be sent to the District Court on the basis of the valuation as per
the annual rent.
27. The plaintiff, besides valuing the suit at Rs.72,00,000/- for the
purposes of ejectment has also valued the suit for the purposes of
recovery of arrears of rent of Rs.61,00,000/- and the total valuation is
in excess of Rs.1,00,00,000/- and the suit being a commercial suit has
been filed in this Court. Thus, there is no merit in the said contention
also.
28. The plaintiff to file affidavits by way of examination-in-chief of
all his witnesses qua the issues, burden of which is on the plaintiff,
within six weeks.
29. Option of having the evidence recorded before the Court
Commissioner has been accepted by the counsel for the plaintiff but
not by the counsel for the defendants.
30. The counsel for the plaintiff states that the plaintiff will bear the
entire costs of commission subject to final order as to costs.
CS(COMM) No.646/2017 Page 9 of 10
31. Accordingly, Mr. B.B. Chaudhary, Additional District Judge
(Retd.) (Ph. No. 9910384611) is appointed as the Court Commissioner
to record evidence in the suit.
32. The fee of the Court Commissioner, besides out of pocket
expenses is tentatively fixed at Rs.1,00,000/-, to be borne initially by
the plaintiff subject to final order as to costs in the suit.
33. The Court Commissioner is requested to record the evidence
within the Court Complex and to complete the same within one year
of the date of first appearance of the parties before him. He is granted
liberty to have the matter placed before the Court if any of the parties
are found delaying recording of the evidence.
34. The Registry is directed to send the file of the suit at the place
and time fixed by the Court Commissioner for recording of evidence.
35. The parties to, with prior appointment, appear before the Court
Commissioner within eight weeks for commencing recording
evidence.
36. List after the recording of evidence is completed.
RAJIV SAHAI ENDLAW, J.
MAY 08, 2018 'pp'..
CS(COMM) No.646/2017 Page 10 of 10