Delhi District Court
Sh. Vidya Sagar Gupta vs M/S Shefali on 27 March, 2012
IN THE COURT OF SH. VINOD KUMAR GAUTAM:
ADMINISTRATIVE CIVIL JUDGEcum ADDITIONAL RENT
CONTROLLER : (NORTH) DELHI.
In Re : E. No. 29/2010
Unique ID No. 02401C0073412010.
Sh. Vidya Sagar Gupta,
S/o late Sh. Gopi Chand Gupta,
R/o 1G, Jawahar Nagar,
Delhi110007 ...............Petitioner.
Versus.
M/s Shefali
through Mr. Shashi Arora,
Partner/Prop.
R/o 1G, Jawahar Nagar,
Delhi110007 ...............Respondent.
Date of Institution of Petition : 23/02/2010
Date on which Order was reserved : 24/03/2012
Date of Pronouncement of Order : 27/03/2012
O R D E R.
1. By this order, I shall dispose of an application for Leave to Defend under Section 25B (5) of the Delhi Rent Control Act, 1958, E. No. 29/10 1 of 14 moved on behalf of the respondent.
2. The brief facts relevant for the disposal of the present application are that the petitioner has filed the present eviction petition under section 14 (1) (a) (e) read with section 25 B of DRC Act on the ground that he is one of the coowners and also sole landlord of the property bearing municipal no.1G, Jawahar Nagar, Delhi110007. In the month of May, 1973 one shop at the ground floor of the aforesaid property (hereinafter referred to as the "tenanted property") was let out to the respondent by the late father of the petitioner Sh. Gopi Chand Gupta. The tenanted property is required bonafidely by the petitioner for himself and for his other family members dependent upon him for the purpose of accommodation and for the purpose of their business and for whom the petitioner has got no other alternative suitable accommodation. The family of the petitioner consists of himself and his four sons all of whom are majors and are married. The elder son of the petitioner Sh. Dinesh Gupta is aged 40 years and is having his wife and two sons aged 15 and 13 years respectively and is running ready made garments shop in the name E. No. 29/10 2 of 14 and style of M/s Teen Queen for the last about 6 years in the shop of the ground floor of the suit property. The petitioner alongwith Smt. Seema Gupta, wife of Sh. Dinesh Gupta has been running business of artificial jewellery and sale of ladies purses etc for the last about six months in the name and style of M/s Silver Leaf in the shop on the ground floor of the suit property which is shown in yellow colour in the site plan and the adjoining shop of the said shop as shown in orange colour in the site plan, is being used for storage of stock of garments, jewellery and other allied articles related to the business. It is averred that the said shops shown in the yellow and orange colour are not suitable for the business of the petitioner which is being run under the name and style of M/s Silver Leaf. Sh. Manish Gupta, son of the petitioner who is aged 37 years also wants to start business of fancy lights in the suit property as he has got experience in the said business as earlier he used to assist the petitioner when the petitioner was running fancy lights business at Bhagirath Place, Delhi in a rented shop in tenancy of the petitioner which was closed about 10 years ago, thereafter, the business of the firm M/s. Royal Lights was shifted at first floor in one of the rooms of the aforesaid property but E. No. 29/10 3 of 14 on account of sealing activities of the MCD on first floor, the same was discontinued and presently Sh. Manish Gupta is doing liaison work of M/s Sterlite Technologies Ltd., having office at Noida (U.P.). Sh. Amit Gupta, youngest son of the petitioner aged 34 years is also not having any independent business and he also wants to start business of sale of hosiery goods and allied items. The shops shown in yellow and orange colour in the site plan are not suitable for running the business by the petitioner as well as his sons as the same are located on extreme end of the suit property facing Chandrawal Village Delhi as there is a big garbage site (Khatta) of MCD about 40 sq. yds away from the said shop on the road side and the residents of the locality throw their waste in the said Khatta and thereafter the same is removed by MCD trucks and there is no other road or Gali for reaching the said garbage site except the road in front of the said shops. The customers do not like to visit the shop of the petitioner due to location and foul smell being spread around the shop, therefore, the petitioner wants to shift his business to the said shop which is in occupation of the respondent and is most suitable for running the business of M/s Silver Leaf and for the business of his E. No. 29/10 4 of 14 other two sons Sh. Manish Gupta and Sh. Amit Gupta.
3. Upon service of summons upon the respondent, he filed his leave to defend application along with supporting affidavit alleging and deposing therein that the petitioner is not the owner of the tenanted property and Sh. Gopi Chand Gupta was the owner of the tenanted property and the present petition is not maintainable for non joinder of the necessary parties as all the legal heirs of the late Sh. Gopi Chand Gupta have not been impleaded in the arrays of the parties.
4. It is further deposed that the petitioner has not disclosed the correct description of the accommodation available with him as the petitioner has not disclosed in the petition that besides two shops, the petitioner is also in possession of one more shop which is bigger in size which is shown in the red colour in the site plan filed by the respondent and the petitioner is in possession of three shops as shown in red colour in the site plan filed by the respondent. It is further deposed that besides three shops, the petitioner is also in E. No. 29/10 5 of 14 possession of one hall measuring 500 sq. ft. situated on the ground floor as shown in blue colour in the site plan filed by the respondent which is also available to the petitioner and a hall / godown is also available to the petitioner for running any commercial activities. It is further deposed that the petitioner is aged about 70 years and thus it cannot be assumed that at this stage of his life the petitioner is required any accommodation for running any commercial activity. It is further deposed that besides the aforesaid three shops and one hall / godown and the tenanted shop occupied by the respondent, there are two more shops as shown in green colour in the site plan in the suit property which are being occupied by separate tenants. It is further deposed by the respondent that the petitioner with ulterior motives has refused to accept the rent and the respondent has deposited the rent in the Court.
5. The respondent has further deposed that Sh. Dinesh Gupta is already in use and occupation of one shop and running the same under the name and style of M/s. Teen Queen and the other shop is being run by the daughterinlaw of the petitioner under the name and E. No. 29/10 6 of 14 style of M/s. Silver Leaf in the adjacent shop to the tenanted shop and another one shop / godown is still available to the petitioner. It is further deposed that the petitioner has intentionally concealed the fact that his other son Sh. Manish Gupta is financially well to do and is engaged with M/s. Sterlite Technology Ltd. since long and has been residing separately and maintaining a luxurious life style from the income accrued from the said firm besides he is also having rental income from the commercial property which is in his use and occupation at Noida and that the other two sons of the petitioner namely Sh. Amit Gupta and Sh. Sudesh Gupta are having independent agency of Zinc and they are engaged in the business of chemicals and they both are married and are residing at Jallandhar and they off and on visit Delhi to meet the petitioner and all four sons of the petitioner are very well settled and they do not require any accommodation for running any business activities. The respondent has further deposed that one of the sons of the petitioner namely Sh. Manish Gupta is residing with the petitioner in property bearing no. 1 G, Jawahar Nagar, Delhi07 and has possession of approximate 500 sq. yds. accommodation at the first floor and second floor of the said E. No. 29/10 7 of 14 property. The respondent has further deposed that the garbage site/Khatta of MCD is on a separate road and at a distance from the shops in use and occupation of the petitioner as is clear from the site plan filed by the respondent and the site plan filed by the petitioner does not depict the true and correct accommodation available to the petitioner. It is further deposed that there are lot of triable issues involved in the present case which cannot be decided without affording opportunity to the respondent to lead evidence.
6. Reply to the leave to defend application along with counter affidavit was filed by the petitioner deposing therein that the suit property was let out by Sh. Gopi Chand Gupta, father of the petitioner to the respondent and the respondent is estopped from challenging the title of Mr. Gopi Chand Gupta and after the death of Sh. Gopi Chand Gupta, the petitioner became coowner and also the sole landlord of the respondent and the respondent attorned in favour of the petitioner and started paying rent and even the deposit of rent under Section 27 DRC Act by the respondent is in the name of the petitioner alone. The petitioner has denied that besides the three E. No. 29/10 8 of 14 shops, he is in possession of one hall measuring 500 sq. yds. or the same is available to the petitioner for any commercial activities. The petitioner has deposed that the said hall was in the tenancy of Sh. Duli Chand Gupta and after his death his son Sh. Nagesh Goel is keeping the same locked and is paying the rent for the same. The petitioner has denied that the M/s Silver Leaf is adjoining to the tenanted shop. The petitioner has further deposed that Sh. Manish Gupta is residing at Roop Nagar Delhi but he wants to start his own business and he does not have any commercial property in Delhi and the rental income from the property at Noida is irrelevant as far as the requirement of the tenanted property for carrying the business. The petitioner has further deposed that his son Sh. Sudesh Gupta is having agency of Zinc and is residing at Jalandhar and the petitioner has not claimed any accommodation for him, however, his other son Sh. Amit Gupta is not having any independent business and is only helping his brother Sh. Sudesh Gupta in the said Zinc business and he wants to start business of hosiery goods and allied items in the tenanted property. The petitioner has further deposed that he is residing at 1G, Jawahar Nagar, Delhi and no business activities can E. No. 29/10 9 of 14 be carried out from there. The petitioner has denied the averments made by the respondent in the present application and has prayed that the present application be dismissed with heavy costs in the interest of justice.
7. The rejoinder alongwith an affidavit has been filed by the respondent to the reply filed by the petitioner deposing therein that during the pendency of the present case, there is subsequent development as one of the shop which was in the possession of the petitioner earlier has been let out by the petitioner to M/s Unique Creation in the month of August, 2010. It is further deposed that all the sons of the petitioner are assessed to income tax and they are filing Income Tax Return showing handsome income. The respondent has denied that Sh. Amit Gupta is not having any business or he is only helping his brother. The respondent has denied the other averments made in the reply and has reaffirmed and reiterated the averments of the leave to defend application.
8. I have given my thoughtful consideration to the submissions E. No. 29/10 10 of 14 advanced by the learned counsel for the parties and have perused the records of the case carefully and authorities relied on behalf of the petitioner and the written submissions filed on behalf of the respondent.
9. One of the grounds taken by the respondent is that the garbage site / khatta of MCD is on a separate road and at a distance from the shops in use and occupation of the petitioner and that the site plan filed by the petitioner does not show the exact position of the site. The respondent has also filed a site plan showing the locations of the shops at the ground floor of the suit property and of the garbage site / khatta. The other ground taken by the respondent is that all the sons of the petitioner are major and married and they have their own independent business and are not dependent upon the petitioner. It is further submitted that Sh. Dinesh Gupta is running readymade garments shop in the name and style of M/s. Teen Queen and Sh. Manish Gupta is engaged with M/s. Sterlite Technology Ltd. for a long period and Sh. Amit Gupta and Sh. Sudesh Gupta are having independent Agency of Zinc and are engaged in the business E. No. 29/10 11 of 14 of chemicals and are residing at Jallandhar and all the sons of the petitioner are financially sound. The petitioner in his petition has not disclosed this fact of his other two sons Sh. Amit Gupta and Sh. Sudesh Gupta are having business of chemicals though in the counter affidavit, the petitioner has admitted about the same but it is contended that the petitioner has not claimed any accommodation for his son Sh. Sudesh Gupta and his younger son Sh. Amit Gupta is helping his brother Sh. Sudesh Gupta in the Zinc business. The respondent has filed the photographs of residence at Jallandhar and the copies of Income Tax Returns of Sh. Amit Gupta and Sh. Manish Gupta to show that they are not dependent upon the petitioner and are having independent means of livelihood and are well settled in their business and they alongwith the petitioner are having 25 percent shares each in the partnership business carried on in the name and style of Laxmi Metal Udyog at Jalandhar, Punjab. The contention of the learned counsel for the respondent is that the petitioner has not disclosed in his petition the fact of running of partnership business at Jallandhar. The other ground taken by the respondent is that the requirement of the petitioner for the tenanted property is not genuine E. No. 29/10 12 of 14 as the petitioner during the pendency of the present case has let out two shops which were in his use and occupation to different tenants, out of which one shop has been let out to M/s. Unique Creation and the other shop has been let out to M/s TTwenty Casuals. The respondent has also filed the photographs showing the creation of fresh tenancy by the petitioner with M/s. Unique Creation and with M/s. TTwenty Casuals. The petitioner has not denied the letting out by him of the two shops during the pendency of the present case. However, the contention of the learned counsel for the petitioner is that the shops which have been let out are not suitable for running the business and that the tenanted property is more suitable for running the shop for business purpose of the petitioner. The aforesaid contentions raise a triable issues with regard to the bonafide requirement of the petitioner and the suitability of the tenanted property for running the business by the petitioner.
10. Therefore, in view of my aforesaid discussions, the respondent has been successful to raise triable issues as discussed above which requires trial. Hence, the present application filed by the E. No. 29/10 13 of 14 respondent for leave to defend under Section 25B (5) of the Delhi Rent Control Act is hereby allowed.
Put up for filing of the Written Statement by the respondent for 05/06/2012.
Announced in the open court on this 27 Day of March, 2012 th (VINOD KUMAR GAUTAM) ADMINISTRATIVE CIVIL JUDGE cum ADDL RENT CONTROLLER (NORTH) DELHI E. No. 29/10 14 of 14