Delhi District Court
Archana Memgain @ Archana Chadha vs State Bank Of India on 6 August, 2013
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADJ01
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 337/13
In the matter of :
Archana Memgain @ Archana Chadha
.... Plaintiff
Versus
State Bank of India
..... Defendant
06.08.2013
ORDER :
1 Vide this order, I shall dispose off the application under Order 12 Rule 6 CPC.
2 Plaintiff has filed the present suit for possession and damages with respect to the suit property i.e. entire property bearing no. A5, Friends Colony, New Delhi.
3 In para 1 of the plaint, plaintiff has submitted that she is the owner and landlady of suit property. Para 1 of the plaint has been admitted to be correct in para 1 of reply on merits in the WS by the defendant, the same being a matter of record.
Contd....P..1 of 10 : 2 : 4 In para 2 of the plaint, plaintiff has submitted that the suit property was taken by the defendant for a period of five years from the plaintiff w.e.f. 16.11.2000 at a monthly rent of Rs. 59,255/ vide registered lease deed dated 03.10.2001. Para 2 of the plaint has been admitted to be correct in para 2 of reply on merits in the WS by the defendant, the same being a matter of record.
5 Plaintiff has submitted that after expiry of term of the said registered lease deed, when the defendant did not vacate the suit premises, the plaintiff filed the suit for possession and mesne profits bearing suit no. 63/06 against the defendant which was compromised and the defendant pursuant to the same enhanced the rate of rent to Rs. 1,20,000/ per month w.e.f. 16.11.2005 and the said suit was withdrawn vide order dated 24.09.2007. Defendant has admitted about the said compromise. However, the defendant bank has submitted that a settlement was arrived at between the plaintiff and the defendant which was duly recorded in the shape of minutes of meeting dated 27.01.2007 which was attended by officials of defendant bank as well as by the plaintiff and it was agreed by the plaintiff that defendant bank will be given a fresh lease period of 6 years w.e.f. 16.11.2005 and monthly rent will be increased from Rs. 59,255/ to Rs. 1,20,000/. It is also submitted that arrears of enhanced rent was also cleared and it was thereafter that the suit was withdrawn as compromised.
Contd....P..2 of 10 : 3 : Defendant bank has submitted that it has been following up the matter with the plaintiff regarding execution of the fresh lease deed in its favour, however, plaintiff has been delaying the matter on one account or the another. 6 Plaintiff in para 8 of the plaint has submitted that the plaintiff vide legal notice dated 09.03.2009 followed by corrigendum notice dated 24.03.2009 terminated the tenancy of the defendant. Plaintiff in para 11 of plaint has submitted that although tenancy was terminated vide notice dated 09.03.2009, the tenancy was again determined vide notice dated 16.06.2010 which was sent through registered post and UPC at correct address of defendant. The defendant was duly served with the said notice and a reply dated 19.07.2010 was given by defendant stating that the tenancy is for a period of six years on the basis of minutes of meeting recorded between the plaintiff and the defendant. The defendant further alleged in the reply that the lease should automatically renewed w.e.f. 16.11.2005 for a period of six years on the basis of said minutes. Defendant bank in reply to para 8 has denied the submissions of the plaintiff made in para 8 of plaint with respect to notice dated 09.03.2009 followed by corrigendum notice dated 24.03.2009. However, bank has admitted the receipt of the notice dated 16.06.2010 and also the reply dated 19.07.2010 and the contents thereof. Defendant has submitted that in pursuance of the settlement dated 27.01.2007 it has been continuously paying enhanced rent of Rs. 1,20,000/ and it entitles the Contd....P..3 of 10 : 4 : defendant bank to a decree of specific performance in its favour and against the plaintiff for execution of lease deed for a period of six years w.e.f. 16.11.2005 upto 15.11.2011. Defendant has submitted that the lease stood automatically renewed w.e.f. 16.11.2005 for a period of six years on the basis of said minutes.
7 Plaintiff has submitted that defendant has admitted the relationship of landlord and tenant between the parties and the rent of the suit property to be above Rs. 3500/ as well as the receipt of notice of termination dated 16.06.2010 and accordingly has prayed for passing a decree of possession on the basis of admissions.
8 The defendant in reply has submitted that the tenancy was never terminated legally as by minutes of meeting dated 27.01.2007 agreed between the plaintiff and the defendant, the lease stood automatically renewed for a period of six years w.e.f. 16.11.2005. Defendant has prayed for dismissal of the present application.
9 Detailed arguments were advanced by Ld. counsels for both the parties. Arguments heard. Record perused carefully. 10 For passing a judgment of possession on admissions in the facts Contd....P..4 of 10 : 5 : of the present 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.
11 Defendant has admitted the relationship of landlord and tenant
and also the rate of rent to be above the Rs. 35,000/. What remains to be decided is whether there is valid termination of tenancy and there is an admission of the same by the defendant or not.
12 In the matter of Puran Chand Packaging Ind. P. Ltd. vs. Sona Devi and others, 154 (2008) DLT 111 (DB), Hon'ble High Court of Delhi held as :
''Before passing judgment on admission, document to be read as a whole and court is not to take out one or two sentences so as to treat it as admission."
13 In the matter of Surjit Sachdev vs. K I S Pvt. Ltd. and Others, 66 (1997) DLT54 (DB), Hon'ble High Court of Delhi held that :
"Admission need not be made expressly in the pleadings. Even on constructive admissions, court can proceed to pass a decree in plaintiff's favour."
Contd....P..5 of 10 : 6 : 14 The plaintiff has pleaded that the tenancy was terminated by efflux of time and there is no mandatory requirement of notice of termination. However, plaintiff has given a notice dated 09.03.2009 followed by corrigendum notice dated 24.03.2009 terminating the tenancy of defendant and calling upon it to hand over vacant and peaceful possession of the suit property within 15 days of receipt of the notice. The defendant has denied the receipt of the same. Plaintiff has filed the original registry and UPC receipt as well as original AD Card showing the service of corrigendum notice as well as the reply dated 01.04.2009 alongwith its envelop. A perusal of the reply dated 01.04.2009 clearly establishes that notice of termination dated 09.03.2009 was duly received by the defendant. The defendant in reply has contended that after expiry of lease period reserved under registered lease deed dated 03.10.2001 and during the pendency of the suit for possession and damages, a settlement was arrived between the defendant and the plaintiff which was duly recorded in the shape of minutes of meeting dated 27.01.2007 duly attended by officials of defendants as well as by plaintiff and as per the terms of those minutes plaintiff had agreed to the defendant that it shall be given a fresh lease period of six years w.e.f. 16.11.2005 and the monthly rent was increased from Rs. 59,255/ to Rs. 1,20,000/ per month. Similar is the reply of the defendant dated 19.07.2010 to the notice of termination dated 09.03.2009. It is pertinent to mention here that without going into the correctness of the minutes of meeting dated Contd....P..6 of 10 : 7 : 27.01.2007, that the minutes are unregistered document. Under Section 107 of Transfer of Property Act, a lease of immovable property for a period of more than one year can be made only by a registered instrument. Since the defendant has pleaded that by virtue of those minutes, the tenancy was extended for further period of six years w.e.f. 16.11.2005, the said contention is not tenable in view of Section 107 of Transfer of Property Act in absence of registration of minutes of meeting.
15 In similar facts in the matter of Modern Food Industries(India) Ltd. Vs I.K. Malik & Ors, 98(2002) DLT 593(DB) where the defendant had relied upon the clauses of renewal of lease deed for a period of more than one year in two letters dated 01.06.1992 and 03.07.1992, Hon'ble High Court of Delhi held that two letters to be in admissible in evidence as they were unregistered and hit by Section 17(1) and Section 49 of Registration Act. It was also held that at best those letters could be used for purpose of proving the nature of possession but it does not create any right in favour of the tenant to continue as a tenant for a year or more. Similar are the observations of Hon'ble High Court of Delhi in the matter of M/s ASEA Brown Boveri Ltd. Vs Chiranjeev Lal Sharma, 75(1998) DLT 773. In view of law laid down in the cited judgments read with Section 107 of TPA, the minutes of meeting dated 27.01.2007 can not by any stretch of imagination be said to renew the lease deed dated 03.10.2001. Thus at best Contd....P..7 of 10 : 8 : the tenancy of the defendant after expiry of statutory period can be said to be month to month tenancy terminable by notice of 15 days for termination. The said notices dated 09.03.2009 alongwith corrigendum notice dated 24.03.2009 was duly received as proved by its reply dated 01.04.2009. Similarly the second notice dated 16.06.2010 has been duly replied by reply dated 19.07.2010 and the defendant has only taken one defence of extension/ renewal of lease because of minutes of meeting dated 27.01.2007. As observed earlier, the minutes of meeting cannot be relied upon by defendant as they are unregistered and thus hit by Section 17(1) and 49 of Registration Act. 16 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 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 Contd....P..8 of 10 : 9 : 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 09.03.2009 and suit is filed on 12.10.2010 and thus 15 days period had expired prior to the filing of the suit. Further, defendant was served on 27.10.2010. 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.
17 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. 18 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 exist in favour of the plaintiff, there is no requirement for her to go through the rigmarole of a protracted trial. Accordingly a decree of Contd....P..9 of 10 : 10 : possession in favour of plaintiff and against defendant is passed and defendant is directed to handover peaceful vacant possession of the suit property to the plaintiff by 15.09.2013. Application of the plaintiff under Order 12 Rule 6 CPC is disposed of as allowed. Decree sheet be drawn accordingly.
Dictated and announced in the open court on 06.08.2013 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 06.08.2013 Contd....P..10 of 10