Delhi District Court
Som Nath & Ors vs Sanjiv Pathak on 31 May, 2013
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADJ01
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 320/12
In the matter of :
Som Nath & Ors. .......Plaintiffs
Vs
Sanjiv Pathak ......Defendant
31.05.2013
ORDER :
1 Vide this order, I shall dispose off the present application filed by the plaintiff under Order 12 Rule 6 CPC.
2 Plaintiff has filed the present suit for possession and recovery of arrears of rent/ mesne profits.
3 Through the present application, plaintiff has prayed for passing a decree of possession on the basis of admissions made by defendant. For passing a judgment of possession on admissions in the facts of the present Contd....P..1 of 11 : 2 : matter, admission required to have been made by the defendant to the effect of three essential requirements are :
(1) There must be a landlord and tenant relationship between the parties;
(2) The rent of the suit property must be above Rs. 3,500/; and (3) Valid termination of tenancy.
4 Plaintiffs in para 1 of the plaint have submitted that plaintiff no.1 is the landlord of the suit property bearing no. M48A, 2 nd Floor, Malviya Nagar, New Delhi and he had let out the suit property to the defendant. It is further submitted that plaintiffs no. 2 and 3 are the owners of the suit property. Plaintiffs in para 2 have submitted that plaintiff no.1 is appointed and authorised by the owners to manage, to look after the suit property on behalf of owners including to let out the subject property to the tenant and to deal with tenant. It is further submitted that plaintiff no.1 initially let out the suit property to the defendant for a period of 11 months commencing from 01.09.2000 at a monthly rent of Rs. 6700/ exclusive of water and electricity charges. The said tenancy has been extended from time to time increasing the rate of rent.
5 Defendant in reply to para 1 and 2 of plaint has submitted that plaintiff no.1 has all through being representing and holding himself out as the owner of the suit property. Plaintiff no.1 has been dealing with the defendant in his capacity of owner and has always represented that he has all the authority to Contd....P..2 of 11 : 3 : deal with the property including sale/ transfer etc. Rest of the averments of para 1 are matter of record. Both the plaintiffs as well as defendants have filed copy of the rent agreement dated 01.09.2000 executed between plaintiff no.1 as lessor and defendant as lessee. Copies of the lease deed subsequently executed between plaintiff no.1 and the defendant have also been filed by defendant. In none of the lease deeds, plaintiff no.1 has been described as owner of the suit property. Thus admittedly the relationship of landlord and tenant existed between the plaintiff no.1 and defendant in view of the aforementioned pleadings and copies of lease deeds executed on different dates creating and thereafter extending the period of lease. The submission of the defendant that plaintiff no.1 had represented himself to be the owner of the suit property stands falsified by the observations made herein before and admittedly plaintiff no.1 was the landlord and defendant has been the tenant in respect of suit premises and defendant estopped from challenging the title of plaintiff no.1 with respect to suit property at the time of commencement of tenancy by virtue of Section 116 of Indian Evidence Act. Accordingly, there is admission on part of defendant that there existed a relationship of tenant and landlord between him and the plaintiff no.1.
6 The monthly rent of the suit premises in terms of lease deed dated 01.09.2000 is Rs. 6700/ and with each subsequent lease deeds the rent was enhanced in terms of clause 1 of the respective lease deeds. Thus admittedly the Contd....P..3 of 11 : 4 : monthly rent is above Rs. 3500/.
7 With respect to valid termination of tenancy, plaintiffs in para 8 has submitted that they served upon the defendant a legal notice dated 05.05.2012 sent through Speed post vide postal receipt no. ED647393258 IN dated 07.05.2012 through counsel terminating the tenancy of the defendant asking the defendant to quit and deliver peaceful and vacant possession of the suit property on expiry of 31.05.2012 besides calling upon the defendant to pay the arrears of rent alongwith interest @ 18% p.a. Plaintiffs in para 9 of the plaint have submitted that defendants are in arrears of rent as well as damages. 8 Defendant in reply to para 8 and 9 has submitted that the allegations leveled in para 8 and 9 except the fact of issuance of notice is wrong and denied. It is further denied that the defendant/ counter claimant is liable to pay any rent/ mesne profits or damages as alleged. Thus the defendant has categorically admitted the fact of issuance of notice of termination dated 05.05.2012.
9 Plaintiff in para 10 of the plaint has submitted that the legal notice dated 05.05.2012 was duly served upon the defendant on 08.05.2012 whereby the defendant was asked to vacate and handover peaceful vacant possession of the suit property to the plaintiffs and also pay the damages for unauthorized use Contd....P..4 of 11 : 5 : and occupation. However, defendant failed to comply with the legal notice. 10 Defendant in reply has submitted that contents of para 10 is matter of record. Thus again admitting the service of notice of termination on him. Defendant has submitted that he is not in unauthorized occupation of the suit property as plaintiff no.1 had offered to defendant to purchase the suit property to which he agreed and the terms and conditions of the proposed sale purchase transaction were done between him plaintiff no.1 where plaintiff no.1 was acting on behalf of plaintiff no.2 and 3. It was also agreed that the plaintiff no.1 would get the property converted into free hold and then sale deed shall be executed on or before 29.01.2012. Defendant has also submitted that a formal agreement to sell have also executed between hi m and plaintiff no.1 on behalf of plaintiff no.2 and 3 on 29.01.2011. However, no sale deed has been executed till date. Defendant has claimed that accordingly his possession is not unauthorized and plaintiffs have permitted him to remain in property till execution of the sale deed without paying any rent. Defendant has filed original agreement to sell on record, however the same is executed on stamp paper of 50 rupees and further it is an unregistered document thus hit by provisions of Indian Stamp Act as well as Registration Act and cannot be admitted into evidence as it has been alleged to have been executed on 29.01.2011.
Contd....P..5 of 11 : 6 : 11 In Sunil Kapoor Vs. Himmat Singh & Ors, 167 (2010) DLT
806.I It was held by Hon'ble High Court of Delhi that "With effect from 24th September, 2001, an agreement to sell of immovable property whereunder the possession is delivered in part performance can only be by a registered instrument bearing the prescribed stamp duty, i.e. on 90% of the total agreed sale consideration."
"...., the defence of an agreement to sell is not a legal defence available to the petitioner in the suit for ejectment."
12 Similar are the observations of Hon'ble High Court of Patna in the matter of Ashok Goenka vs. Chandra Bhushan Singh, 2010 (1)PLJR3317, wherein it has been held that "20. It is evident from the impugned orders that the court below has not at all taken into account the effect of Section 17 (1A) of the Registration Act,1908 as inserted by the amending Act 48 of 2001. The said provision is quoted below :
Section 17 (1A) The documents containing contracts to transfer for consideration any immovable property for the purpose of Section 53 A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and other related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53A.
It is evident from the said provision that any document containing contracts to transfer for consideration, any immovable property for deriving the benefit under Section 53 A of the Transfer of Property Act, must be registered if it has been executed after the commencement of the Contd....P..6 of 11 : 7 : Amending Act of 2001 and in case, such document is not registered on or after such commencement, it will have no effect for the purpose of invoking the doctrine of partperformance under Section 53 A. The doctrine of part performance protects the rights of a transferee of an agreement for sale, if he has been put in possession or continues in possession in part performance of the contract or has done in furtherance of the contract. Prior to the Amending Act of 2001, a party could claim the benefit of such possession on the basis of the doctrine of partperformance even if the agreement for sale was not registered but the same has now been specifically debarred by the Amending Act. That being the position, it is not open to the courts of law to permit any such plea of possession on the basis of any unregistered document. In the present matter, despite the legal provision being to the contrary by the impugned orders of injunction, the court below has put a stamp of legality over the alleged possession claimed by the plaintiffs on the basis of an unregistered agreement for sale dated 27.3.2002. The same is clearly not permissible under the law."
13 In the matter of Earthtech Enterprises Vs Kuljit Singh Butalia 199(2013) DLT 194, Hon'ble High Court of Delhi held that benefit of Section 53A of Transfer of Property Act is not available to appellant on plea of part performance and appellant cannot be permitted to hold on possession under the garb of alleged oral agreement. Appellant cannot resist his ejectment as protection is not available to him. It was further observed that protection against dispossession under Section 53 A of Transfer of Property Act is available only if it is armed with registered document. Even on basis of written agreement, possession cannot be protected.
Contd....P..7 of 11 : 8 : 14 In the present case also the agreement to sell has been executed after the commencement of the Amending Act of 2001 and consequently of no consequence to save the possession of the defendant. The law laid down in Sunil Kapoor vs. Himmat Singh and others (Supra) makes it abundantly clear that plea of part performance cannot be taken by defendant, even if defendant succeeds in suit for specific performance till execution of conveyance deed, in his favour. As per the law laid down in Ashok Goenka vs. Chandra Bhushan Singh (Supra), Earthtech Enterprises Vs Kuljit Singh Butalia (supra) and Sunil Kapoor vs. Himmat Singh and others (Supra), defendant has no ground in law to save his possession and the defence of an agreement to sell is not a legal defence available to the defendant in the suit for ejectment. 15 Thus, the contention of the defendant that his possession is not unauthorized even after receipt of legal notice of termination is unsustainable in view of law laid down in the cited judgments.
16 Defendant has relied on the law laid down in M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha(HUF) & anr, reported in AIR 2010 SC 1890, and has argued that there is no admission on part of defendant in WS of receipt of the notice and therefore, judgment on admission cannot be passed against him. Defendant has referred to para 6,7 and 8 of the Contd....P..8 of 11 : 9 : said judgment. In that case para 5 of the WS was "That the contents of para 5 of the plaint are matter of record. It is submitted that tenancy has neither expired by efflux of time nor it has been terminated." Para 6 of WS read as: "That in reply to the contents of para 6 of the plaint, it is submitted that defendant is in possession of the premises. There has been no determination of tenancy." However, in the present suit defendant has not denied termination of tenancy in any of the paras and has no where stated that there has been no determination of tenancy. Rather, the defendant has submitted that he is the statutory tenant which implies that tenancy in his favour expired by efflux of time and his tenancy is terminable by notice u/s 106 of T.P. Act which was given by the plaintiff to the defendant on 05.05.12 and was admittedly served on him. Accordingly, the judgment relied upon by defendant does not apply to the facts of the case. 17 Even otherwise, in the matter of M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha(HUF) & Anr, RFA 179/2011 decided on 25.03.11; it had been held by Hon'ble High Court of Delhi that even service of summons in a suit can be treated as a notice under Section 106 of the Transfer of Property Act, 1882. It had been further held that along with the suit, copy of the notice terminating tenancy as a document is served upon the defendant, and which once again can be treated as a notice terminating tenancy. Accordingly taking aid of Order 7 Rule 7 CPC, it had been held that in suits for possession by a landlord, technical defences with respect to notices should not Contd....P..9 of 11 : 10 : be permitted as long as the 15 day period expires prior to the filing of the suit. This decision of Hon'ble High Court of Delhi was challenged by way of SLP and the same has been dismissed by the Hon'ble Supreme Court of India bearing SLP NO. 15740/2011 on 07.07.2011. In the present case also, the notice for vacation of suit property was given on 05.05.12 and suit is filed on 18.07.12 and thus 15 days period had expired prior to the filing of the suit. Further, defendant was served in the present matter on 01.08.12. In view of the law laid down in M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha(HUF) & Anr, RFA 179/2011 decided on 25.03.11; there is valid termination of tenancy as 15 days period had expired prior to the filing of the suit as well as because service of summons in a suit can be treated as a notice under Section 106 of Transfer of Property Act.
18 In Pooja Aggarwal vs. Sakata Inx (India) Ltd., 2008 X AD (Delhi) 846, Hon'ble High Court of Delhi has held that in order to invoke the provisions of Order 12 Rule 6 CPC, the court has to scrutinize the pleadings in their totality and ignore the evasive and unspecific denials either as to the relationship or as to the service of the notice or as to the nature of tenancy.
19 After careful perusal and examination of the documents placed on record, I am of the considered opinion that all the ingredients of Order 12 Rule 6 are satisfied. As the necessary ingredients for passing a decree for possession Contd....P..10 of 11 : 11 : exist in favour of the plaintiffs, there is no requirement for them to go through the rigmarole of a protracted trial. Accordingly a decree of possession in favour of plaintiffs and against defendant is passed and defendant is directed to handover peaceful vacant possession of the suit property to the plaintiffs by 15th July, 2013. Decree sheet be drawn accordingly.
Dictated and announced in the open court on 31.05.2013 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 31.05.2013 Contd....P..11 of 11