Delhi District Court
Kalanidhi International Pvt. Ltd vs Ravinder Pal Singh on 9 October, 2024
IN THE COURT OF Ms. NAINA GUPTA, ACJ CUM CCJ-
CUM ARC DISTRICT: SOUTHEAST, SAKET COURTS,
NEW DELHI
DLSE03-001513-2020
RC ARC/30/2020
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. RAVINDER PAL
SINGH
M/s Kalanidhi International Pvt. Ltd.,
Having its Regd. Office at
15th Floor, Mohan Dev Building,
13, Tolstoy Marg, New Delhi-110001
Through its authorized representative/
Signatory Mr. Vinod Surha .....PETITIONER
VERSUS
Shri Ravinder Pal Singh (since deceased)
Through his Lrs.
1. Gaurav Singh (son)
2. Isha Baweja (daughter)
3. Karamvir Singh (son)
All C/o Shop no. 13/2, Ground Floor,
Jor Bagh Market, New Delhi-110003.
All R/o 4, Channan Singh Park,
Delhi Cantt., Delhi-110010. .....RESPONDENT
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14(1) (e) READ WITIH SECTION 25B OF THE DELHI RENT
CONTROL ACT, 1958.
RC ARC/30/2020 Digitally signed
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by NAINA
GUPTA
RAVINDER PAL SINGH GUPTA 2024.10.09
Date: Page no. 1 of 29
16:01:12 +0530
DATE OF INSTITUTION :29.09.2020
DATE OF ARGUMENTS :17.09.2024
DATE OF DECISION :09.10.2024
JUDGMENT
1. This is a petition for seeking eviction of the respondent from property Shop no. 13/2, together with garage forming part of the shop situated on the Ground Floor, Jorbagh Market, New Delhi- 110003 (hereinafter referred to as tenanted premises). The petitioner is a private limited company and has filed the present petition through its authorised representative Sh. Vinod Surha who has been authorised vide resolution dt. 04.11.2019 passed by the board of directors of the petitioner company. The petitioner company is the owner of the entire built up property bearing no. 13 in Block no. 172, measuring 591.7 sq yards (the entire building is referred to as suit property hereinafter). This plot of land measuring 591.7 sq yards was allotted to Dr. Rajender Singh and his wife Smt. Sukhwans Kaur by the President of India through L&DO, Nirman Bhawan, New Delhi, vide agreement for lease dt. 10.01.1955 duly registered on date 04.06.1995. They had constructed shops on the ground floor and residential flats on the first floor of this plot after getting the RC ARC/30/2020 Digitally signed by M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA NAINA GUPTA Date:
GUPTA 2024.10.09 RAVINDER PAL SINGH 16:01:21 +0530 Page no. 2 of 29 plan sanctioned from the Municipal Authority and a completion certificate was granted by the NDMC.
2. It is stated that Dr. Rajinder Singh and Smt. Sukhwans Kaur had let out the tenanted premises to Smt. Bhajan Kaur w/o Late Surjit Singh and S. Ravinder Pal Singh s/o late Surjit Singh vide lease deed dated March, 1975 for a period of 12 months w.e.f. 26.09.74 to 25.09.75. It is stated that after the death of Smt. Bhajan Kaur, respondent Sh. Ravinder Pal Singh is the sole tenant in the tenated premises. The monthly rent of the tenanted premises is Rs.250/- per month only exclusive of electricity charges.
3. Dr. Rajender Singh and his wife Smt. Sukhwans Kaur agreed to sell the suit property to the petitioner for a total sale consideration of ₹65,00,000 and executed a receipt dated 29.11.1994. After the petitioner became owner of the suit property, the erstwhile landlords had addressed letter dt. 07.03.1995 to the respondent wherein the petitioner was attorned as the landlord w.e.f. 01.04.1995 and there were further directions to pay the rent @ Rs. 350/- per month. Dr. Rajinder Singh died on 29/01/2003 leaving behind Smt. Sukhwans Kaur and his son Mr Prabhjot Singh as his sole surviving legal heirs.
Mr Prabhjot Singh relinquished his undivided share in the entire property in the favour of his mother Smt. Sukhwans Kaur by virtue of registered relinquishment deed dated 25.07.2003. In RC ARC/30/2020 Digitally signed by NAINA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA GUPTA RAVINDER PAL SINGH GUPTA Date:
2024.10.09 Page no. 3 of 29
16:01:30 +0530
the year 2006, the property was mutated in the name of Smt. Sukhwans Kaur vide letter dt. 26.04.2006. Smt. Sukhwans Kaur executed agreement to sell on 13.03.2007 in favour of the petitioner company and the same was registered on the same date. It is stated that the petitioner had received the physical and peaceful possession of the vacant portions of the entire suit property and symbolic proprietary possession of the rented portions with the attornment of tenancy rights in its favour during the lifetime of Dr. Rajendra Singh itself immediately after executing the receipt dated 29.11.1994 after having received the entire sale consideration from the petitioner.
4. The petitioner has stated that the tenanted shop has been sub let by the respondent to M/s Frigo India which represents itself to be a partnership firm with the respondent/tenant as one of the partners. It is stated that the said sub letting has not been done with written consent of the petitioner and the erstwhile owners. The petitioner sent notice on 26.12.2017 to the respondent informing that petitioner requires the tenanted premises for its own commercial needs. Separate petition has been filed by the petitioner on the grounds of subletting against the respondent.
5. The present petition has been filed on the ground of bonafide requirement. It is stated that the directors in the petitioner company have a vast and enriched experience in restaurant business. The petitioner company wants to open an unique RC ARC/30/2020 Digitally signed by NAINA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA GUPTA RAVINDER PAL SINGH GUPTA Date:
2024.10.09 Page no. 4 of 29
16:01:38 +0530
family restaurant-cum-coffee house in a strategic location in New Delhi and it has decided to use ground floor of this entire built property situated on plot no. 13 in Block no. 172 at Jorbagh measuring 591.7 sq yards including the tenanted shop to open this restaurant. The restaurant proposed would be providing services of offerings of seafoods, steak houses, family restaurant, casual dining restaurant, ethnic restaurant, pizzeria, coffee shop and bakery house. It is stated that the entire space of the ground floor in this property would be required as a separate portion would be carved out for each of such services so as to provide at one place a variety of cuisine for the connoisseurs of good quality food. Accordingly, the petitioner has filed separate eviction petitions seeking eviction of respective tenants from shops bearing no. 13/2 to 13/8, Jorbagh Market, New Delhi- 110003.
6. It is stated that the petitioner has already carried out and completed its entire homework including laying out design of proposed family restaurant-coffee house to be brought up on the entire ground floor of the property and copy of the entire layout plan is annexed with the petition as Annexure D. It is stated that shop no. 13/3, shop no. 13/4, Shop no. 13/5, Shop no. 13/6 and Shop no. 13/7 and the front portion of shop no. 13/2 and shop no.13/3 has been demarcated as restaurant area where provisions would be made to provide different types of cuisine RC ARC/30/2020 Digitally signed by M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA NAINA Date:
GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 16:01:47 Page no. 5 of 29 +0530 and dining facilities. A substantial portion of shop no. 13/8 has been demarcated in the plan for setting up of the kitchen and remaining portion of shop no. 13/8 and the rear portion of shop no. 13/2 and 13/3 has been demarcated in the plan for setting up the store room.
7. It is stated that the petitioner does not have any other suitable reasonable alternative commercial accommodation in the territory of Delhi except the tenanted premises and the tenanted shops on the ground floor of the property which as a whole would be required bonafidely by the petitioner for it's project as detailed above.
8. With the abovesaid averments it is prayed that eviction orders be passed in the present matter.
9. To succeed in the case U/s 14 (1) (e) of DRC Act the petitioner is required to prove the following ingredients:
(a) Ownership in respect of tenanted premises
(b) Relationship of landlord and tenant between the parties;
(c) Petitioner bonafidely requires the tenanted premises;
(d) Petitioner does not have any other suitable alternative accommodation with him/her.
10.Under Section 25 (B) of Delhi Rent Control Act a summary procedure has been laid down for landlords requiring the premises for bonafide use for himself or for any member of his family dependent on him. The tenant shall be granted leave to RC ARC/30/2020 Digitally signed by NAINA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA GUPTA RAVINDER PAL SINGH GUPTA Date:
2024.10.09 Page no. 6 of 29
16:01:54 +0530
contest the application if the affidavit filed by the tenant discloses such facts as would dis-entitle the landlord from obtaining an order for the recovery of possession of the premises. It has been held by the Hon'ble Supreme Court of India in the case of Charandas Duggal Vs. Bhramanand 1983, 1SCC 301 that the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that should be sufficient to grant leave therefore the test is that of a triable issue and not of the final success in the action.
11.It is also a settled position of law that once landlord pleads his bonafide requirement and non-availability of an alternative suitable accommodation, the onus shifts to the tenant to show that a triable issue which if proved would non-suit the landlord has been pleaded in the application seeking leave to defend. The Supreme Court in the case of Abid-Ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30 has given guidelines as to when presumption may be raised in favour of landlord and when can the same be considered to be rebutted by the tenant. The paragraphs from the judgment are reproduced for ready reference as follows.
"18. For availing the leave to defend as envisaged under Section 25B(5), a mere assertion per se would not suffice as Section 14(1)
(e) creates a presumption subject to the satisfaction of the learned Rent Controller qua bona fide need in favour of the landlord which is obviously rebuttable with some material of substance to the extent of raising a triable issue. The satisfaction of the Rent Controller in deciding on an application seeking leave to defend is RC ARC/30/2020 Digitally M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA signed by NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Page no. 7 of 29 Date:
16:02:03 +0530 obviously subjective. The degree of probability is one of preponderance forming the subjective satisfaction of the Rent Controller. Thus, the quality of adjudication is between a mere moonshine and adequate material and evidence meant for the rejection of a normal application for eviction.
19.Before a presumption is drawn, the landlord is duty bound to place prima facie material supported by the adequate averments. It is only thereafter; the presumption gets attracted and the onus shifts on the tenant. The object of Section 14(1)(e) vis a vis Section 25B has to be seen in the light of yet another provision contained under Section 19. Section 19 gives a right to the dispossessed tenant for repossession if there is a non-compliance on the part of the landlord albeit after eviction, to put the premises to use for the intended purpose. Such a right is available only to a tenant who stood dispossessed on the application filed by the landlord invoking Section 14(1)(e) being allowed. Thus, Section 19 inter alia throws more light on the legislative objective facilitating a speedy possession. The object is also reflected in the proviso to Section 25B(8), denying a right of appeal."
12.With the above principles of law in mind, it is for this court to examine whether the respondents have raised any triable issues or not.
13.In view of the judgment of the Hon'ble Supreme Court in the case of Satyawati Sharma (dead) by LRs vs. Union of India & Anr. (2008) 5 SCC 287 section 14 (1) (e) is also now made applicable to commercial properties and therefore the present petition is maintainable.
GROUNDS ON WHICH LEAVE IS SOUGHT AND WHETHER THE SAME ARE TRIABLE ISSUES RC ARC/30/2020 Digitally signed by NAINA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA GUPTA Date:
RAVINDER PAL SINGH GUPTA 2024.10.09
16:02:11 Page no. 8 of 29
+0530
14.The respondent has filed an application seeking leave to defend within time. The leave is sought by the respondent on the following grounds :-
i. That the present petition is not maintainable. ii. That the petitioner has filed the present petition against wrong party.
iii. That the petitioner does not have the bonafide requirement of the tenanted premises iv. That the company has alternate suitable accommodation v. That the petitioner has not filed the sanction from the MCD vi. That the petitioner is not the owner of the tenanted premises In the following paragraphs, the grounds on which leave is sought are discussed and findings are given when they amount to triable issues or not.
15.That the present petition is not maintainable : It is stated that the petitioner is a private limited company and is not entitled to take recourse for eviction of tenants by filing petition U/s 14 (1) (e) of the DRC Act. It is submitted that a reference is pending before the Hon'ble High Court in the case of KS Bandari Vs. M/s International Security Printers Pvt. Ltd., RC Rev. 18/2016. It is submitted that the company being a juristic person, there is separate provision U/s 22 of DRC Act and therefore Section 14 RC ARC/30/2020 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by Digitally signed NAINA GUPTA RAVINDER PAL SINGH GUPTA Date:
2024.10.09 Page no. 9 of 29 16:02:22 +0530 (1) (e) is not available to the company. It is stated that Section 14 (1) (e) is meant for natural persons.
16.On the other hand, it is submitted on behalf of the petitioner that the petitioner company being of juristic person has a right to maintain the petition for eviction of the tenant on the ground of bonafide need and cannot be held to be not at par with a natural person. It is stated that the definition of landlord U/s 2 (e) of DRC Act does not make any distinction between a juristic person and natural person and defines landlord as a person who for the time being is receiving or is entitled to receive rent of the tenanted premises. It is further stated that provisions U/s 22 of DRC Act deal with right of a company to seek eviction of the tenant on the grounds which are in the form of special provisions and it does not debar a company from filing its petition for eviction on the ground of bonafide need as there is no rider embodied in the statue on the ground of bonafide need.
17.During arguments, Ld counsel for the petitioner has submitted that in the matter of K.S. Bhandari supra, the reference is confined to whether a Company as landlord requiring the premises for use of its employees would have a choice, whether to invoke Section 14(1)(e) or Section 22 of the Act. It has been asserted that the present petition is very much maintainable and reliance has been placed upon the judgment of the Hon'ble High Court of Delhi in the case of Satnam Kaur v. Ashlar Stores RC ARC/30/2020 Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Date:
Page no. 10 of 29 16:02:32 +0530 P. Ltd. CM No.14903/2008, wherein the following observations have been made:-
"To my mind, whenever any such type of landlord requires the premises for use of its employees, it is section 22 alone which would be applicable and not section 14(1)(e). This does not mean that the other provisions of section 14 cannot be invoked by such a landlord. As held in Chuni Lal‟s case (supra), the grounds under section 14 are addition to the grounds under Section 22. This is because section 22 is concerned only with specific type of cases namely, where premises are required by a company for use of its employees.
Section 22 is not concerned with the other grounds which are available under section 14. It may be that some circumstances may exist where a company may require premises, not for its employees, but still for its residence. In such a case section 14(1)(e) can also be invoked.".
18.In the case of Chuni Lal v. University of Delhi 1970 RCR Rent 742 it has been held by the Hon'ble High Court that a landlord falling under section 22 DRC Act may avail of the grounds stated there in, in addition to the grounds given in section 14 (1)
(e) of the DRC Act. In view of the discussion above, it is held that the present petition is maintainable.
19. That the petitioner has filed the present petition against wrong party: It is submitted that the tenancy of the shop is with Frigo India a partnership firm. It is averred that the tenanted premises have been under the tenancy and in possession of the respondent's family since 1963. The business being operated RC ARC/30/2020 Digitally signed by NAINA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA GUPTA Date:
RAVINDER PAL SINGH GUPTA 2024.10.09
16:02:41 Page no. 11 of 29
+0530
from the tenanted premises was allotted sales tax number L/98/023450/1265 since 1965 under it's previous name Chick Fish Stores. This was subsequently renamed to Frigo India in 1981. The tenanted premises has been in the tenancy of the respondent's father since 1963. The respondent has specifically denied the lease deed dated March 1975 placed on record by the petitioner. It is stated that the respondent originally with his father and later on with his son and thereafter with his sons has been continuing the business under the same sales tax number which was allotted in the year 1965 and therefore there is no question of sub letting.
20.It is stated that the fact of the respondent operating his business under the partnership firm from the tenanted premises was well within the knowledge of the original landlord who had acknowledged the same by receiving the rent from the respondent as partner of its business name and issued receipts accordingly. It is submitted that the petitioner has also received the rent from the account of the partnership business and has never objected to the same. The petitioner has also issued receipts to the respondent in the capacity of partner of its business name. In view thereof it is submitted that there is no question of subletting by the respondent. It is also stated that the petition is not maintainable as the same has not been filed against the partnership firm.
RC ARC/30/2020 Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Date:
Page no. 12 of 29 16:02:49 +0530
21.In reply it is stated that as per the lease deed of March 1975 the tenancy was created in favour of Bhajan Kaur and Ravinder Pal Singh. Therefore it was joint tenancy in favour of 2 individuals who are shown as lessee. The lessee is not the partnership firm. Shri Ravinder Pal Singh vide letter dated 24.02.2015 has accepted to be an individual tenant. Ld. counsel for the petitioner has advanced arguments that mere acceptance of rent from the account of the partnership would not amount to estoppel against the petitioner to accept the partnership firm as a tenant. Reliance has been placed upon judgment in the case of Ram Saran v. Pyare Lal, (1996) 11 SCC 728. It has been observed by the Hon'ble Supreme Court that, " Acceptance of rent paid by sub tenant does not constitute estoppel against the landlord that the sub tenant was accepted as a tenant in the property. Mere acceptance of rent does not mean that a valid tenancy has been constituted. Written consent of the landlord is required for creation of a valid sub tenancy."
22.The Ld. counsel for the petitioner has also advanced arguments that even if it is alternatively considered that the partnership firm is a tenant in the tenanted premises, the respondent represents the other partners in the firm who are his sons. It is contended that a partnership firm is not a legal entity, and all the partners are deemed to be tenants. In this regard reliance has been placed upon the judgments in the cases of Bharat RC ARC/30/2020 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. Digitally signed NAINA by NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Date: Page no. 13 of 29 16:02:57 +0530 Insulation Company v. Suraj Parkash, 2015 SCC OnLine Del 9955 and Amar Nath Agarwalla v. Dhillon Transport Agency, (2007) 4 SCC 306.
23.I have perused the documents placed on record by both the parties and have given due consideration to the arguments advanced on their behalf. Perusal of the documents of the respondents shows that the Sales Tax Number was allotted in favour of Sh. Ravinder Pal Singh w.e.f. 11.09.1974 and his son Sh. Karamvir Singh was added as a partner w.e.f. 16.10.1990. Thereafter Sh. Gaurav Singh became partner w.e.f. 01.04.2003. The respondent has denied the lease deed of March 1975 placed on record by the petitioner. The respondent has not placed on record any document to show that the tenancy was in the name of partnership firm. When a partnership firm is a tenant, it is the partners of the firm who are tenants in the property. From the documents filed by the respondent, it appears that earlier the tenancy was in favour of his father who applied for registration in the name of M/s Chick Fish Stores in 1966. Thereafter, the partnership firm got reconstituted and after the death of the respondent's father, sons of the respondent were inducted as tenants.
24.This is not a petition on the ground of subletting. This court need not go into the question of whether reconstitution of the partnership firm amounts to sub-letting or not. This is a petition RC ARC/30/2020 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by Digitally signed NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Date: Page no. 14 of 29 16:03:06 +0530 for eviction on the ground of bonafide requirement of the petitioner company to run business from the suit property. The question before the court is whether the non joinder or mis joinder of parties in the present case is a triable issue or not. Arguments have been advanced on behalf of the respondent that since a separate petition on the ground of sub-letting is already pending, this petition should also go to trial. I find it difficult to accept this contention. If this contention is accepted, the very purposes of having a summary procedure for eviction of tenants u/s 25 B of the DRC Act would stand defeated.
25.At the risk of repeating, it is reiterated that the question of sub tenancy is not before this court. Whether there is a requirement to implead the alleged sub tenant as a party in this petition is. The law is settled on this point that a sub tenant is not a necessary party but a proper party only. A sub tenant is always bound by the order of eviction passed against the original tenant. Reliance is placed upon the judgment of the Hon'ble Supreme Court in the case of Silverline Forum Pvt. Ltd vs Rajiv Trust And Another, AIR 1998 SUPREME COURT 1754.
26.After considering the pleadings and arguments advanced by both the parties, I have reached the conclusion that the issue raised is not a triable issue that requires adducing of evidence by the parties. There is no denial that the respondent Sh. Ravinder Pal Singh was a tenant in possession of the tenanted RC ARC/30/2020 Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Date: Page no. 15 of 29 16:03:15 +0530 premises. After his death, the alleged other partners i.e. his sons have also been added as parties as his LRs. Therefore, the defence of the respondent is now only technical in nature that the partnership firm has not been made a party to the present petition. At present all the partners of the alleged firm are arrayed as parties.
27.No document has been placed on record by the respondent to show that a fresh tenancy was entered into between the erstwhile landlords or the present petitioners and the partnership firm. It is only stated that the tenancy is with a partnership firm. Apart from the payment of the rent and a few letters addressed by the petitioner to the respondent as a partner of Frigo India, there is nothing to show that a fresh agreement was entered into with the alleged firm. Further, in a case of tenancy with partnership firm, all the partners are joint tenants. Thus, even if the contention of the respondent is accepted, all partners being joint tenants, one of the partners who is impleaded as a party in the present case represents all of them. After the death of Ravinder Pal Singh, all the alleged partners are also a party to the present petition.
28.The respondent was admittedly in possession of the tenanted premises and was also a tenant in the same. Further, his sons have inherited the tenancy and are also partners of the firm Frigo India who have been made a party to the present petition.
RC ARC/30/2020 Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Page no. 16 of 29 Date:
16:03:24 +0530 In view of the reasons explained above, no triable issue arises in this regard.
29.That the petitioner does not have the bonafide requirement of the tenanted premises:- It is stated that the petitioner is having net worth of over 100 crores for 03 years i.e. as on 31.03.2017, 31.03.2018 and 31.03.2019. It is stated that a company whose net worth is over 100 crores, does not have bonafide requirement as contemplated as per legislature U/s 14 (1) (e) of DRC Act particularly in relation of a small shop in a cluster of shops. It is stated that summary proceedings are available only for immediate need of the landlords where the landlords have no alternative place of business or residence. The petitioner company engaged in various business activities in association with many other corporate entities including Escort Hotels & Pvt. Ltd. Escort Pvt. Ltd., Karamyogi Finlease Pvt. Ltd., Panipat Properties Pvt. Ltd. besides others which can be categorised as sister concerns and cumulatively take up several business ventures worth several hundred crores including construction, real estate, malls, constructions and management of studio and service appartment.
30.It is stated that the business of the petitioner company along with several others is in fact owned by one Mr. Vikram Bakshi who is Director in 35 companies including the petitioner. It is stated that taking possession of a small shop under the premises RC ARC/30/2020 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA Digitally signed by NAINA GUPTA RAVINDER PAL SINGH GUPTA 16:03:31 +0530 Page no. 17 of 29 Date: 2024.10.09 of bonafide requirement by way of summary proceedings is nothing but a fanciful desire and cannot be categorized as a bonafide requirement. It is submitted that the word 'requires' implies need rather than desire of the landlord. It is submitted that when the company is having such a large network it could not have requirement of the tenanted premises U/s 14 (1) (e) of DRC Act.
31.In reply, the petitioner has stated that just because the networth of the petitioner company is over 100 crores it does not mean and imply that the petitioner company would not have a bonafide requirement as contemplated in the legislature U/s 14 (1) (e) of the DRC Act. It is stated that the petitioner company has every right to carry out the business of a restaurant from the suit property and seek eviction of the tenants from the suit property for its requirement.
32.Apart from the mere presumption that the petitioner company does not have bonafide requirement of the suit property because it has a net worth of more than 100 crores, no other contention has been raised by the respondent in this regard. Once, the landlord pleads that it has bonafide requirement of the tenanted premises, there is a presumption in favour of the landlord. The respondent is required to rebut the presumption by bringing on record some material in support of the averments made by him. In the present case there isn't anything on record to disbelief the RC ARC/30/2020 Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA GUPTA by NAINA RAVINDER PAL SINGH GUPTA Date:
2024.10.09 16:03:38 +0530 Page no. 18 of 29 case of the petitioner. Merely because, the petitioner company is successfully running its businesses, it does not mean that it does not have any requirement to start a new business from the tenanted premises. Infact, successful running of other businesses supports the case of the petitioner that the company has the wherewithal to start the present business from the suit property.
33.It also needs to be appreciated that the petitioner purchased the suit property in the year 1995 for a sale consideration of Rs. 65 lakhs. If the intention of the petitioner was to evict the tenants by hook or crook only, it would have filed for eviction petitions as soon as it became legally eligible after five years of sale. The petitioner company became owner of the suit property about 3 decades ago and prior to the present eviction petitions, there has been no attempt to evict the tenants. This goes on to support the case of the petitioner that it has bonafide requirement of starting business from the tenanted premises. In view of the discussion above it is held that no triable issue regarding bonafide requirement of the petitioner company arises.
34.That the company has alternate suitable accommodation: It is stated that in the legal notice dt. 26.12.2017 the petitioner company has stated, "that it is further matter of record that my client's company is having only this idle commercial property which can be used for its needs." It has been argued that it RC ARC/30/2020 Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Page no. 19 of 29 Date:
16:03:47 +0530 implies that the petitioner company has other properties that it owns. It is stated that when the company is having networth of more than 100 corers it is unbelievable that it does not own any other immovable property in NCR of Delhi. It is stated that petitioner must be called upon to lead evidence to this effect and the respondent must be given permission to cross-examine the petitioner on this ground.
35.In reply, the petitioner has reiterated that it owns only the property no. 13 in block no. 172 situated at Jor Bagh, New Delhi in which the ground floor is totally commercial, and first floor is totally residential. It is stated that the respondent has taken a presumptuous plea that petitioner company owns other properties in NTC of Delhi. Apart from the presumption there is nothing on record to delve into an inquiry on an assumption by the respondent.
36.In the application seeking leave to defend there is no mention of any property which is alternatively available and suitable to the petitioner. Leave to defend cannot be granted on vague plea of the respondent that the petitioner company must have other properties because it has high net worth. The respondent is required to make the necessary averments and place materials in support of them to rebut the presumption in favour of the petitioner. In my view, no triable issue has been raised with respect to availability of alternate suitable accommodation.
RC ARC/30/2020 Digitally signed
by NAINA
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA GUPTA Date:
RAVINDER PAL SINGH GUPTA 2024.10.09
16:03:54
Page no. 20 of 29
+0530
37.That the petitioner has not filed the sanction from the MCD: It is submitted that petitioner intends to start a new business venture of a multi cuisine restaurant after removing the partition walls and create a big hall having an eating and dining area for large number of guests. It is submitted that what has been proposed by the petitioner requires a massive alteration and construction and it cannot be done without prior sanction and approval from NDMC. It is submitted that NDMC would not grant permission for demolishing of internal walls especially of a property which was constructed way back in the early 1950s that is about 70 years back so as to create a large hall and therefore subject matter is premature. It is submitted that the premises is situated in posh and quite neighborhood of Jor Bagh and the local resident's association may also oppose to the opening of the restaurant in the area. It is stated that the building is built upon load bearing walls and not by column and beam structure as in the modern times and therefore the internal walls cannot be removed by merely calling it "dismantling and rearranging" of walls.
38.It is stated that the petitioner has not placed on record the following documents:-
a. Permission to Demolish Internal/Partition Walls so as to amalgamate the entire premises in a large hall b. Seek Permission of Appropriate Authority for running a RC ARC/30/2020 Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Date: Page no. 21 of 29 16:04:04 +0530 Large Restaurant having seating capacity of about 100 guests c. Having Permission from the Traffic Wing of Delhi Police regarding regulating traffic movement of outsiders into a residential colony.
d. Consent of RWA (Residents Welfare Association) of Jorbagh
39.In reply, the petitioner has submitted that within the bylaws of MCD the petitioner has right to carry out such an addition and alteration which does not require prior permission. Removal of partition wall and re-aligning them without altering the basic structure and without touching the load bearing walls are such addition and alteration which does not require the permission from NDMC. It is submitted that belief of the respondent that NDMC would not grant permission is merely a presumption and that too on the premise that the petitioner would be required to take prior permission. It is reiterated that the petitioner has every right to make addition and alteration within the building bylaws and does not require permission of the NDMC.
40.It is stated that there is no restriction upon the opening of a restaurant in the commercial area on the ground floor. It is also contended that the respondent has not placed on record anything to show that the law prohibits the petitioner from setting up a large restaurant in the ground floor of the property. It is stated that as per layout plan filed by the petitioner all the partition walls are not required to be removed. It would be discretion of RC ARC/30/2020 Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by NAINA GUPTA RAVINDER PAL SINGH GUPTA 16:04:13 +0530 Page no. 22 of 29 Date: 2024.10.09 the petitioner to carry out such minor additions and alterations to give a proper shape and effect of the restaurant area as well area earmarked for kitchen of the restaurant. It is also submitted that since the property is situated in the commercial area having adequate parking space there is no requirement of the petitioner to seek prior permission of the Traffic Wing of the Delhi Police and consent of RWA. The respondent has not placed on record any cogent and reliable evidence on record to show that there are any rules and regulation for petitioner to take prior permission from NDMC, Traffic Wing of the Delhi Police and RWA for starting its multicuisine restaurant.
41.This court while assessing the requirement of the petitioner, must consider whether there is bonafide requirement of the petitioner to start the business of a restaurant from the ground floor of the suit property. There is no weight in the contention of the respondent that the layout plan filed by the petitioner is impractical and infeasible. The whole building is owned by the petitioner. The petitioner is already using the first floor of the suit property for its residential and office use. The ground floor is being used for commercial purposes and the petitioner also intends to put it to use for a commercial purpose only. There is no reason to assume that the petitioner will carry out such construction that would cause damage to the suit property. The petitioner only wants to remove some of the partition walls to RC ARC/30/2020 Digitally signed by NAINA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA GUPTA RAVINDER PAL SINGH GUPTA Date:
2024.10.09 Page no. 23 of 29
16:04:23 +0530
make a big hall. Whether a permission for the same is required from the NDMC is not the concern of the respondent. The petitioner has submitted that if a permission is required it will seek the same from the NDMC. Before, this court of rent jurisdiction, such an argument is of no bearing.
42.Reliance in this regard is placed upon judgment of the Hon'ble High Court of Delhi in the case of Gulshan Rai v. Samrendra Bose Secy, 2012 SCC OnLine Del 444. In this case the ground on which leave was being sought was that the requirement for which eviction was being sought was against the Building bye laws. The court of Ld. ARC had granted leave observing that since the property was heritage property and the guest house was being run without permission, a triable issue had been raised. The order of the Ld. ARC was set aside by the Hon'ble High Court, and it was held that the tenant had no locus standi to challenge the illegality of the landlord in running a guest house from the premises. It was also observed that whether a permission is to be granted or not is inter se arrangement between the landlord and the MCD. This case is squarely applicable to the facts at hand also. The petitioner has proposed only the removing of the partition walls and there is no legal bar against the same. The respondent has made presumptuous claims that it would involve demolition of the entire building and will cause damage to the building. Further it has also been RC ARC/30/2020 Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA by NAINA GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 Date:
16:04:32 +0530 Page no. 24 of 29 claimed that the proposed layout plan requires permission from the MCD and the same has not been placed on record. The tenant cannot raise such pleas.
43.The basic principle attracted here is that the respondent cannot dictate its terms to the petitioner. The petitioner is the best judge of his requirement and the respondent or this court cannot direct the petitioner on to how to use the suit property. In the case of Ranjit Singh Sethi v Gurmeet Singh Chawla R.C.R. No. 209/2011, the landlord had averred that the intervening wall between the tenanted premises and the shop already in possession of the landlord shall be broken and the entire area of the shop shall be increased. The Hon'ble High Court rejected leave to defend and allowed eviction in favour of the petitioner. Thus, removal of partition walls between shops does not mean that there is reconstruction of the building. In the judgment of the Hon'ble Supreme Court in the case of Balwant Singh v. Sudarshan Kumar 2021 (1) RCR (Rent) 146 the landlord had sought eviction from shops on the ground floor and averred that the building shall be renovated as per the requirements of the proposed business. The Hon'ble Supreme Court set aside the order of the High Court granting leave to defend and allowed the eviction in favour of the landlord.
44.In my view, the court need not assess the need of the landlord with a magnifying glass. Once the landlord satisfies the court RC ARC/30/2020 Digitally signed by NAINA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA GUPTA RAVINDER PAL SINGH GUPTA Date:
2024.10.09 16:04:40 +0530 Page no. 25 of 29 that there is genuine requirement for the landlord to start business, no dispute regarding its alleged requirement can be raised by the tenant in terms of feasibility of the business plan. The landlord has freedom to start or expand its business in whatever manner it may like. The tenant cannot say that the requirement is not genuine because the proposed business plan is not feasible. The landlord is not even bound to set up its business in the same manner as stated in the petition. If for some reason there is an impediment in the way of the petitioner from starting the restaurant from the tenanted premises as per the layout plan given, it is free to make changes to its plan and use the suit property for carrying on business which confirms to the legal requirements.
45.Reliance in this regard is placed upon the judgment of the Hon'ble High Court of Delhi in the case of Sunder Singh Talwar v. Kamal Chand Dugar, 2018 SCC OnLine Del 8376. It was observed, "It is settled legal position in this regard that a landlord while filing an eviction petition for bona fide need, need not specify the exact business which is proposed to be carried out from the tenanted premises for which the eviction has been sought. In fact, even if in the eviction petition a particular purpose is stated, the landlord is not bound by the said purpose and after an eviction order, can change his mind and use the premises for a different kind of business. It is RC ARC/30/2020 Digitally signed by M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA NAINA Date:
GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 16:04:51 Page no. 26 of 29 +0530 settled by a catena of judgments that the landlord has not to give an elaborate description of the business or the nature of business that he seeks to carry out in the premises."
46.In view of the above, the defence that the tenanted premises cannot be utilized for the bonafide need and that no permission will be granted by the MCD, is not tenable. It is for the petitioner to procure the appropriate permissions. The remedy in case of non use/ occupation of the tenanted premises by the petitioner within the stipulated time is available to the respondent under section 19 DRC, however the tenant cannot be permitted to travel beyond that and interfere in the execution of the proposed business plan.
47.That the petitioner is not the owner of the tenanted premises: It is stated that the petitioner has no title documents to the property as there is only agreement to sell executed in the year 2007 based upon the payment of money and receipt dt. 29.11.1994 in the favour of the petitioner. It is stated that the respondent started paying rent to the petitioner after receiving the letter dt. 1995 from the erstwhile owner of the suit property who had sold the property to the petitioner. However, it was not in the knowledge of the respondent that the petitioner did not have any title documents in his favour. Therefore, it is stated that petitioner is not the owner of the suit property.
48.In reply, the respondent has stated that while disputing the RC ARC/30/2020 Digitally signed by M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA NAINA Date:
GUPTA RAVINDER PAL SINGH GUPTA 2024.10.09 16:04:58 Page no. 27 of 29 +0530 ownership of the petitioner, the respondent has not disclosed who else is the owner of the tenanted shop. Therefore, the contention of the respondent that petitioner is not the owner of the tenanted premises is false.
49.It is settled law that in petition under DRC Act the petitioner need not prove his absolute ownership and the petitioner only needs to show that he is something more than a tenant. The erstwhile owners have attorned the tenancy in favour of the petitioner. The respondent has been admittedly paying rent to the petitioner. The respondent being tenant cannot challenge the title of the petitioner being estopped U/s 116 of Indian Evidence Act. Reliance is placed upon Shanti Singh Vs. Ved Prakash, 1986, 208.
50.In view thereof it is held that the landlord - tenant relationship and the ownership of the petitioner stands proved. FINAL FINDING
51.No other ground for seeking leave to defend has been raised by the respondent in the application. In view of the discussion above, this court reaches the conclusion that the application for seeking leave to defend filed on behalf of the respondent is without any merits and same is liable to be dismissed. Accordingly, application seeking leave to defend of respondents is dismissed and the petition U/s 14 (1) (e) r/w Section 25B on behalf of petitioner is allowed. The respondent is directed to RC ARC/30/2020 Digitally M/S KALANIDHI INTERNATIONAL PVT LTD Vs. signed by NAINA RAVINDER PAL SINGH NAINA GUPTA Page no. 28 of 29 GUPTA Date:
2024.10.09 16:05:06 +0530 vacate the tenanted premises i.e. Shop no. 13/2, together with garage forming part of the shop situated on the Ground Floor, Jorbagh Market, New Delhi-110003 (as shown in red in the site plan filed by the petitioner). The petitioner shall not file the execution petition for eviction of the tenanted premises before the expiry of period of six months from today.
52.File be consigned to Record Room after due compliance.
Digitally signed by NAINA NAINA GUPTA
Announced in the open Court GUPTA Date:
2024.10.09
On 9th October, 2024 16:05:12 +0530
(NAINA GUPTA)
ACJ-cum-CCJ-cum-ARC (South - East)
Saket Courts, New Delhi
RC ARC/30/2020
M/S KALANIDHI INTERNATIONAL PVT LTD Vs.
RAVINDER PAL SINGH Page no. 29 of 29