Delhi District Court
E-45/06 vs M/S Alembic Chemical Works Co. Ltd on 13 March, 2007
1
IN THE COURT OF SHRI SANJEEV AGGARWAL
RENT CONTROLLER, DELHI
1.E-45/06
Smt. Usha Jain
W/o Sh. Mahabir Pershad Jain
C/o Bharat Bhushan Jain Advocate
1, Ansari Road
Darya Ganj
New Delhi-110002 ...Petitioner
VS.
1. M/s Alembic Chemical Works Co. Ltd.
having its registered office at
Alembic Road
Baroda-3
And Branch Office at:-
4/18, Shashi Building
Asaf Ali Road
New Delhi-110002
2. M/s Ujjwal Ltd.
having its registered office at
4/18, Shashi Building
Asaf Ali Road
New Delhi-110002
3. Shri M. P. Singh
R/O House No.XI/4239-A/3
(Plot No.3), First Floor
Shri Raj Krishan Jain Street
1-Ansari Road
Darya Ganj
New Delhi-110002 ....Respondents.
DATE OF INSTITUTION:1.11.1999
DATE OF DECISION :13.3.2007
2.E-46/06
Ms. Vijay Jain
W/o Sh. Chakresh Jain
C/o Bharat Bhushan Jain Advocate
1, Ansari Road
2
Darya Ganj
New Delhi-110002 ...Petitioner
VS.
1. M/s Alembic Chemical Works Co. Ltd.
having its registered office at
Alembic Road
Baroda-3
And Branch Office at:-
4/18, Shashi Building
Asaf Ali Road
New Delhi-110002
2. M/s Ujjwal Ltd.
having its registered office at
4/18, Shashi Building
Asaf Ali Road
New Delhi-110002
3. Shri M. P. Singh
R/O House No.XI/4239-A/3
(Plot No.3), First Floor
Shri Raj Krishan Jain Street
1-Ansari Road
Darya Ganj
New Delhi-110002 ....Respondents.
DATE OF INSTITUTION:1.11.1999
DATE OF DECISION :13.3.2007
3.E-48/06
Ms. Vasundhara Jain
D/o Sh. Dharam Bhushan Jain
R/o Shakahar Building
XI/4239-A/1 (Plot No.2)
1, Ansari Road, Daryaganj
New Delhi-110002 ...Petitioner
VS.
1. M/s Alembic Chemical Works Co. Ltd.
having its registered office at
Alembic Road
Baroda-3
3
And Branch Office at:-
4/18, Shashi Building
Asaf Ali Road
New Delhi-110002
2.M/s Ujjwal Ltd.
having its registered office at
4/18, Shashi Building
Asaf Ali Road
New Delhi-110002
3.Shri M. P. Singh
R/O House No.XI/4239-A/3
(Plot No.3), First Floor
Shri Raj Krishan Jain Street
1-Ansari Road
Darya Ganj
New Delhi-110002 ....Respondents.
DATE OF INSTITUTION:1.11.1999
DATE OF DECISION :13.3.2007
JUDGMENT
Vide this common judgment, I will dispose off three connected eviction petitions bearing No. E-45/06, E-46/06 & E-48/06, as all the three eviction petitions have been filed against the same respondents on the same facts and common evidence has also been recorded in all the three cases and there arises common question of facts and law, and with eviction petition No. E-48/06 as the main case.
2 Brief facts, as stated in the eviction petition bearing No. E-48/06 are; it is stated that the petitioner is the landlord of the premises bearing House No. XI/4239-A, now numbered as XI/4239-A/3, (Plot No.3A), and the respondent No.1 is a tenant in respect of premises consisting of four 4 rooms, kitchen, store/bath, W.C, as shown in red colour in site plan with common use of staircase, as shown in green colour in site plan, which premises is stated to have been let out for residential purposes at a monthly rent of Rs.1210/- excluding electricity and water charges vide oral tenancy.
3 Now, the grievance of the petitioner is that the respondent No.1 has sub-let, assigned or otherwise parted with the possession of the demised premises to the respondents No.2 & 3 after 9th day of June, 1952 without obtaining the consent in writing of the petitioner or her predecessor in interest. It is alleged that the respondent No.3, who is the regional manager of respondent No.2 is in exclusive possession of the premises in question and is residing there alongwith his family members. Hence it is prayed that an eviction order be passed in favour of the petitioner and against the respondents.
4 Joint written statement has been filed on behalf of all the respondents in which relationship of landlord and tenant between the parties i.e. respondent No.1 and the petitioner is not disputed. However, the purpose of letting is stated to be for the purpose of providing accommodation to their managerial staff/representatives and employees i.e of respondents in the course of their employment for better discharge of their duties assigned to them by the company. The extent of premises are admitted to be correct subject to the contention that the said premises, i.e. barsati floor, first floor and garrage on the ground floor are part of the 5 whole of the premises bearing No.4239-A, now re-numbered as XI/4239- A/2 (Plot No.3), which is under the tenancy of the respondent No.1 as a whole, and it is stated that there are no separate tenancy agreements between the landlady and the respondent No.1 and it is stated that originally, the whole premises belonged to late Shri Prem Chand Jain and during his life time, the rent was disbursed for the entire premises in the manner that late Shri Prem Chand Jain was getting rent of the first floor, Smt. Usha Jain was getting rent for the garrage and Ms. Vijay Jain was getting rent for the barsati floor, as per their own internal arrangements, and after the demise of late Shri Prem Chand Jain, the rent of the first floor, which was being paid to late Shri Prem Chand Jain during his life time is now being paid to Ms. Vasundhra Jain, as per their own instructions to the respondent No.1. However, it is stated that the fact remains that the tenancy was one and indivisible as a whole in the name of the respondent No.1 and it is stated that in these circumstances, the separate eviction petitions for separate portions filed by the petitioners are not maintainable at all.
5 It is reiterated that the premises as a whole is is a single tenancy with the respondent No.1, including the barsati floor, first floor and garrage on the ground floor and they are in occupation of the employees, agents and managerial staff of the company in this manner that barsati floor is being used by the driver for the benefit of the company and managerial staff, garrage at the ground floor is also being used for parking 6 the personal cars belonging to the managerial staff and agents of the respondent No.1 company and the first floor is being used by the managerial staff of the respondent No.1, who is also the marketing agent and constituted attorney i.e the respondent No.3. It is further stated that the said use and occupation had always been within the knowledge of all the petitioners and they never objected to the same. It is stated that in the same manner barsati floor is in occupation of peon-cum-driver of the respondent No.1 company and garrage is being used for parking the car, without any charges, who are provided with such facilities in the course of their employment and discharge of their duties and working for the benefit of the respondent company as well as sales promotion of the company's product. Accordingly, it is denied that the respondent No.1 has sublet or parted with the possession of the disputed premises to the respondents No.2 & 3.
6 It is further submitted that the respondent No.2 is a sister concern and subsidiary of the respondent No.1, i.e respondent No.2 has four directors, out of which three directors were appointed and nominated by the respondent No.1 and by virtue of the provisions of the Companies Act, it is a subsidiary of the respondent No.1 and it is accordingly, stated that the premises in question have been given to the employees of the company for the better performance of their duties and it is stated that the respondent No.3 is the regional manager of the respondent No.2, but is acting as an agent and attorney for and on behalf of the respondent No.1 7 for which he had been provided the accommodation free of charge. Hence, it is denied that there is any subletting, assignment or parting with possession of the premises in dispute, as alleged.
7 Replication has been filed on behalf of the petitioner in which the averments made in the written statement have been vehemently denied and those made in the petition have been reaffirmed as correct. 8 In eviction petition bearing No. E-45/06, the allegations are same, as mentioned in eviction petition No.E-48/06. Though the premises number is House No. XI/4237/1 and the extent of tenancy premises is one garrage on the ground floor as shown red in the site plan and rate of rent is stated to be Rs.121/- per month excluding other charges. Rest of the allegations are same and they are accordingly, not being reproduced for the sake of brevity.
9 Similar joint written statement has been filed on behalf of all the respondents in which the same averments have been made as made in the written statement filed in E-48/06. Therefore, the same are not being reproduced for the sake of brevity. However, it is stated that the premises on the third floor i.e barsati floor, have been provided to peon-cum-driver, which is free of charge accommodation with free water and electricity for better performance as driver to the company with car to be garraged on the ground floor.
10 Similar replication has been filed on behalf of the petitioner in which the averments made in the written statement have been vehemently 8 denied and those made in the petition have been reaffirmed as correct. 11 In eviction petition bearing No. E-46/06, the allegations are same, as mentioned in eviction petition No.E-48/06. Though the premises number is House No. XI/4239-A, now numbered as XI/4239-A/2 (Plot No.3) and the extent of tenancy premises is one room on the third floor as shown red in the site plan and rate of rent is stated to be Rs.53.24 ps per month excluding other charges. Rest of the allegations are same and they are accordingly, not being reproduced for the sake of brevity. 12 Similar joint written statement has been filed on behalf of all the respondents in which the same averments have been made as made in the written statement filed in E-48/06. However, the same are not being reproduced again for the sake of brevity. However, it is stated that the peon cum driver Sh. Matwar Singh Rawat, who is provided residential accommodation in the barsati floor of the premises in dispute is in the employment of the respondent No.1 only and the said accommodation was provided to him for rendering better service by the said, peon -cum- driver.
13 Similar replication has been filed on behalf of the petitioner in which the averments made in the written statement have been vehemently denied and those made in the petition have been reaffirmed as correct. 14 An application U/S 15(2) of DRC Act was filed on behalf of the petitioner in all the aforesaid eviction petitions and vide order dated 19.10.2000, respondent was directed to pay or deposit rent @ Rs.121/- per 9 month in E-45/06, @ Rs.53.24 ps per month in E-46/06 and in E-48/06 @ Rs.1210/- per month w. e. f 1.1.99 within one month and also for future at the said rates.
15 Common evidence has been recorded in all the three cases by placing the copies of the evidence in other cases.
16 Petitioner's have examined their attorney Sh. Bharat Bhushan Jain as AW1. In rebuttal, respondents have examined Sh. P. N. Dewan, Manager (Admn.) of respondent No.2 company and attorney of respondnet No.1 as RW1. They have examined Sh. Matwar Singh Rawat, peon-cum- driver as RW2 and they have also examined Smt. Sudha Kapoor, Secretary to resident director as RW3. No other witness has been examined by either party.
17 An application U/O16 Rule 1(3)&1(A) and U/O 16 Rule 7 CPC was moved on behalf of the respondents in all the three cases for placing on record the attendance-cum-salary register of RW2. The said application was allowed in all the three cases vide common order dated 31.3.04, and the respondent No.1 was allowed to examine the witness to prove the attendance cum-salary register subject to costs of Rs.1500/- in each case. 18 I have heard ld. Counsel for the petitioners, ld. Counsel for the respondents and perused the evidence and documents on record. 19 To make out a case U/S 14(1)(b) of DRC Act, the petitioner has to prove that there is a relationship of landlord and tenant between the parties and that the respondent/tenant has sublet, assigned or otherwise 10 parted with the possession of the whole or any part of the premises without obtaining consent in writing of the landlord.
20 The relationship of landlord and tenant between the parties i.e, petitioners and the respondent No.1 is admitted. However, the counsel for the respondents has argued that the premises i.e barsati floor, first floor and garrage on the ground floor are part of the whole of the premises bearing No.XI/4239-A, now re-numbered as XI/4239-A/2 (Plot No.3), which is under the tenancy of the respondent No.1 as a whole and there are no separate tenancy agreements, between the landlady and the respondent No.1 and that in view of this fact the filing of the separate eviction petitions for separate portions by the petitioners are malafide and that the same are not maintainable, as per law. However, this contention of the counsel for the respondent is not tenable, simply for the reason as the respondents in para 8 of their written statement have themselves stated, that originally, the whole premises belonged to late Shri Prem Chand Jain and, during his life time, the rent was disbursed for the entire premises in the manner that late Shri Prem Chand Jain was getting rent of the first floor, Smt. Usha Jain was getting rent for the garrage and Ms. Vijay Jain was getting rent for the barsati floor, as per their own internal arrangements, and after the demise of late Shri Prem Chand Jain, the rent of the first floor, which was paid to late Shri Prem Chand Jain during his life time is now being paid to Ms. Vasundhra Jain, as per their own instructions to the respondent No.1. Accordingly, as the respondents are themselves paying the rent to different 11 petitioners, as stated by them in Para 8 of their written statement, this contention of the counsel for the respondents that separate eviction petitions have been filed for separate portions is not sustainable in law. 21 Counsel for the respondents has argued that the name of the respondent No.1 company has been changed to M/s Alembic Ltd., which fact was within the knowledge of the petitioner, yet the name was not changed by filing the correct memo of parties. Therefore, the evictions petitions are not sustainable. This contention of the counsel for the respondents is also not sustainable, as merely because, the name of the company has been changed during the pendency of the eviction petitions and that no amended memo of parties has been filed does not render the present eviction petitions as not maintainable, as it is only a procedural irregularity, which does not go to the root of the matter. 22 Counsel for the respondents has further argued that the respondent No.1 is a corporate body and it is having separate legal personality of its own and it is not a real person and it is only an artificial person and it works only through his employees and in this case, respondent No.2 is the subsidiary of the respondent No.1, i.e respondent No.2 has four directors, out of which three directors were appointed and nominated by the respondent No.1 and by virtue of the provisions of the Companies Act, it is a subsidiary of the respondent No.1. Accordingly, it cannot be said that there is any subletting in favour of the respondent No.2 company. This contention of the counsel for the respondents is not 12 sustainable in view of the settled law more specifically, as per the law laid in judgment reported as 1988 (2)RCJ 378, wherein it has been held as under:-
"Appellant No.1 company was incorporated in U. K and was carrying on business in India in the premises in dispute. After taking permission of the reserve Bank of India it transferred its business to appellant No.2 alongwith the premises. By virtue of an agreement appellant No.1 acquired equity capital to the extent of 40% of appellant No.2. One of the directors of appellant No.1 became the director of appellant No.2 also. It was contended that in view of the provisions of the Foreign Exchange Regulation Act, 1973, appellant No.1 could not possibly carry on any business in India without taking necessary permission of the Reserve Bank of India and thus the transfer of the premises in favour of appellant No.2 was involuntary. It was next contended that both the appellants should be treated as one legal entity in as much as the entire business of appellant No.1 had been taken over by appellant No.2 and appellant No.1 has taken up 40% equity shares in the capital of appellant No.2 and one of its directors had also been taken as Director of appellant No.2 and as such the control and possession of the premises remained with appellant No.1 Repelling the contents the High Court held:(1)The only effect of sec.29 of the Foreign Exchange Regulation Act, 1973 is that a foreign company cannot carry on any business in India without obtaining permission of the Reserve Bank of India, if that company has more than 40% interest of the non-residents. This appellant No.1 could easily dilute its shares reducing the foreign interest to about 40% or less. The provision does not require a foreign company to transfer or assign its assets and liabilities to another company. (2)The mere fact that appellant No.1 is holding 40% of share capital in appellant No.2 and one of their directors is common does not mean that the appellants are not separate legal entities. With one common Director being there does not mean that the premises continue to be under the control and in possession of appellant No.1".
Further in judgment reported as 1986(2)RLR 252 held as 13 under:-
"In M/s General Radio and Appliances Co. Ltd. & Ors. V. M. A. Khader (dead)by LR's, the order of amalgamation of the tenant company with another company was made by obtaining an order of the High Court. The Supreme Court held that it amounted to sub-letting with possession of the premises by the tenant company to the second company. It was further held that such an amalgamation of the companies was not an involuntary transfer".
And further even otherwise, the respondents have not lead any evidence on the record that respondent No.2 is a subsidiary or sister concern of respondent No.1 as no memorandum of association or articles of association etc. have been duly proved on the record. As per the settled law above, respondent No.2 is a separate entity even iff, it may be subsidiary of respondent No.1 and the respondent No.2 may be having common directors, yet it cannot be said that the respondents No.1 &2 are having same legal personality in law and they are separate legal entities in the eyes of law. Therefore, the transfer of tenancy in favour of the respondent No.2 by respondent No.1 falls foul U/S 14(1)(b) of DRC Act. 23 PW1 has appeared in the witness box and has reiterated the contents of eviction petitions. He has also proved the power of attorney executed in his favour, which is Ex.PW1/10. Once AW1 has appeared in the witness box and stated that there is subletting and assignment in favour of the respondents No. 2& 3, the onus shifted upon the respondents to prove to the contrary. In this regard RW1 Sh. P. L. Dewan, who has appeared as Manager (Admn.) of respondent No.2 and attorney of the 14 respondent No.1 company, has stated in his cross examination regarding the respondent No.3 as under:-
"It is correct that Sh. M. P. Singh was in the employment of respondent No.2 when this petition was filed. Vol. he was also the constituted attorney of respondent No.1. He however never remained an employee of respondent No.1."
He has further stated in his cross examination that "So far as I can recall, Sh. M. P. Singh came into occupation of suit premises in 1997-1998. It was given to him by respondent No.2 his employer, and also as attorney of respondent No.1." He has also further stated that "Sh. M. P. Gupta is alive, though he has left respondent No.2 and has joined another concern." These admissions made by the RW1, who has appeared as a star witness on behalf of the respondents clearly show that respondent No.3 Sh. M. P. Singh was never in employment of respondent No.1. Rather he was in employment of the respondent No.2 and the premises in question on the first floor was given to him by his employer i.e respondent No.2 and as already discussed above, the respondents No.1&2 are separate legal entities, therefore, as the possession was never given to the respondent No.3 by the respondent No.1, rather he was inducted into the tenancy premises by the respondent No.2, who is also his employer which is a separate legal entity, clearly shows that there is a subletting in favour of the respondent No.3 by the respondent No.1 company, and it is never the case of the respondents that the same was done with the 15 consent in writing of the landlord.
24 Regarding the possession of the barsati floor and the garrage, it is the case of the respondent No.1 that one Matwar Singh Rawat, who is the regular employee of the respondent No.1 and who is peon-cum-driver had been provided the accommodation in the barsati floor for rendering better service to the company, as he drives the car of the company, which has been garraged in the garrage on the ground floor. In this regard, the RW1 has stated in his cross examination that "There were two cars, one of which belonged to Sh. M. P. Singh and another to respondent No.2, which used to be parked in the said garrage", and RW2 has also appeared in the witness box and in his cross examination he has surprisingly stated that "respondent No.3 had his personal vehicle bearing regd. No. 0512. I do not know when had he purchased this vehicle. I have been driving this car since last 5-6 years till date." Further RW2 stated in his cross examination that he has been residing in Mohan Garden and barsati floor are lying locked. He has also proved his appointment letter, as Ex.RW1/12 in his examination in chief, and one witness RW3 Ms. Sudha Kapoor, who has produced the salary-cum- attendance register of Matwar Singh Rawat for the year January, 1995 to December, 1995 and for the period January, 2000 to December 2000, January, 2001 to December 2001, January 2002 to December 2002, January 2003 to December 2003 till date. However, only the salary-cum- attendance register from January 1995 to December 1995 is relevant as 16 the eviction petitions were filed on 1.11.99. The salary-cum-attendance register for the subsequent periods is not germane to the controversy in issue. However, the said salary-cum-attendance register produced by the RW3 has not been satisfactorily proved, as the RW3 has stated that the company was maintaining the employees register during the period January 1996 to 31st December, 1999", but only the register for the period January 1995 to December 1995 has been produced. But the salary-cum- attendance register for the period January 1996 to December 1999 has not been proved or produced. Though the same were in power and possession of the respondent No.1 company and it was further stated by RW3 that the salary paid to Matwar Singh Rawat was duly entered into the account books, which she has not brought and she has further stated that the person who has written those, salary-cum-attendance registers is still alive . But the said person has not been produced in the witness box, nor the account books by virtue of which the salary was being paid to Matwar Singh, has been produced on the record. As discussed above, only the salary cum attendance register for the period January 1995 to December 1995 has been produced and other registers have not been proved and even these registers were produced later on, as the respondent had moved an application U/O16 Rule 1(3)&1(A) and U/O 16 Rule 7 CPC, which was allowed vide order dated 31.3.2004. These facts cumulatively lead to suspicion that said documents were made later on to support the contention of the respondent No.1 that said Matwar Singh was the 17 employee of the respondent No.1 company. However, certain material admissions have been made by RW2 and RW1 in their cross examinations, namely, that only two cars were to be parked in the garrage, one belonged to Sh. M. P. Singh, respondent No.3 and other belonged to respondent No.2 company and RW2 has also admitted that he had been driving the car of respondent No.3 for the last 5-6 years. These facts demonstratedly militates against the fact that the said Matwar Singh was the still employee of the respondent No.1 company, though he may have been appointed in the said company initially vide appointment letter Ex.RW1/12.
25 From the aforesaid discussion, it is clearly proved by the petitioners in all the three eviction petitions, that the respondent No.1 has sublet, assigned or otherwise parted with the possession of the demised premises in favour of the respondent No.2 company and also in favour of respondent No.3 Sh. M.P Singh without any consent in writing of the landlord. Hence petitioners have been able to make out a case U/S 14(1)(b) of DRC Act in all the aforesaid three eviction petitions. Since the amended memo of parties was not filed, the same be filed within 7 days from the date of this judgment. If filed be placed on the record. Accordingly, an eviction order is hereby passed in all the three aforesaid eviction petitions in respect of demised premises in eviction petition No. E-45/06 bearing No.XI/4237/1, Shri Raj Krishan Jain Street, 1, Ansari Road, Darya Ganj, Delhi, in eviction petition No.E-46/06 bearing House No.XI/4239-A, 18 now re-numbered as XI/4239-A/2 (Plot No.3), Shri Raj Krishan Jain Street, 1, Ansari Road, Darya Ganj, Delhi and in eviction petition No.E-48/06 bearing House No.XI/4239-A, now numbered as XI/4239-A/3, (Plot No.3A), Shri Raj Krishan Jain Street, 1, Ansari Road, Darya Ganj, Delhi, as shown in red colour in site plan Ex.AW1/4 filed separately in all the above eviction petitions, in favour of the petitioners and against the respondents U/S 14(1)(b) of DRC Act.
Announced in open court (Sanjeev Aggarwal)
on 13.3.07 Rent Controller, Delhi
19
13.3.2007
Present : None
Vide common detailed judgment of even date, the eviction petitions bearing No. E-45/06 & E-46/06 & E-48/06 are held successful. Accordingly, an eviction order is hereby passed in all the three aforesaid eviction petitions in respect of demised premises in eviction petition No. E- 45/06 bearing No.XI/4237/1, Shri Raj Krishan Jain Street, 1, Ansari Road, Darya Ganj, Delhi, in eviction petition No.E-46/06 bearing House No.XI/4239-A, now re-numbered as XI/4239-A/2 (Plot No.3), Shri Raj Krishan Jain Street, 1, Ansari Road, Darya Ganj, Delhi and in eviction petition No.E-48/06 bearing House No.XI/4239-A, now numbered as XI/4239-A/3, (Plot No.3A), Shri Raj Krishan Jain Street, 1, Ansari Road, Darya Ganj, Delhi, as shown in red colour in site plan Ex.AW1/4 filed separately in all the above eviction petitions, is hereby passed in favour of the petitioners and against the respondents U/S 14(1)(b) of DRC Act. Amended memo of parties be filed within 7 days from the date of this judgment. If filed be placed on the record. File be consigned to record room.
(Sanjeev Aggarwal) Rent Controller, Delhi 13.3.2007