Delhi District Court
M/S Manglani Investments Pvt. Ltd vs Sh. Parvesh Matta on 16 October, 2018
In the Court of Sh. Puneet Pahwa : Additional Rent Controller-02, Central
District, Tis Hazari Courts, Delhi.
E-143/17/16
New no. 80050/16
In the matter of:
M/s Manglani Investments Pvt. Ltd.
Through its Director Sh. Kapil Manglani,
Having its registered office At B-28,
Jhilmil Industrial Area,
Shahdara, Delhi-32. ............... petitioner
VERSUS
1. Sh. Parvesh Matta
S/o Late Sh. Ram Lal Matta
R/o BH-33, Shalimar Bagh, (Poorvi), Delhi-88.
2. Sh. Suresh Matta
S/o Late Sh. Ram Lal Matta
R/o BH-27, Shalimar Bagh, (Poorvi), Delhi-88.
3. Sh. Jugesh Matta
S/o Late Sh. Ram Lal Matta
R/o BH-33, Shalimar Bagh, (Poorvi), Delhi-88.
4. Sh. Gulshan Matta
S/o Late Sh. Ram Lal Matta
R/o BH-27, Shalimar Bagh, (Poorvi), Delhi-88.
5. Smt. Veena Gulati
D/o Late Sh. Ram Lal Matta
W/o Sh. Yash Pal Gulati,
R/o AE-33, Shalimar Bagh, (Poorvi), Delhi-88.
6. Smt. Anita Dua
D/o Late Sh. Ram Lal Matta
W/o Sh. Tarun Dua,
R/o B-2/44, Phase-2,
Ashok Vihar, Delhi-52. ..................respondents
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Date of Institution : 01.03.2016
Date of Arguments : 01.06.2018
Date of Order : 16.10.2018
ORDER:
1. This order shall decide the question whether the respondents be granted leave to contest the present application under clause (e) of proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as ''DRC Act'').
2. The brief facts for the decision of the application as per the petition is that the petitioner is owner of suit premises i.e. shop situated at ground floor in the property no. 1890-91, Chandni Chowk, Delhi having purchased the same vide conveyance deed dt. 27.10.1975. The petitioner is a company dealing in investment/finance and cloth printing business since its inception i.e. since 18.10.1973. The petitioner company is running a brand namely Rang Rachna at its registered office i.e. B-28, Jhilmil Industrial Area, Shahdara, Delhi-32 which was created on 10.02.1975. The petitioner company is engaged in manufacturing and textile printing of cloth under its own brand name Rang Rachna and selling the same in the open cloth market. The petitioner company now wants to set up its own showroom enabling the petitioner to sell its own products manufactured under its brand Rang Rachna. That for setting up a showroom, Chandni Chowk, Delhi is the most appropriate place as the Asia's Biggest Cloth market is situated in Chandni Chowk, Delhi thus the petitioner company requires the tenanted premises for opening its own showroom over there to enable to sell its own products manufactured by the petitioner under its own brand namely Rang Rachna in the cloth market.
The petitioner company owns the following immovable properties:-
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(i) B-28, Jhilmil Industrial Area, Shahdara, Delhi-32.
(ii) Shop no. 18, New Market (Bhamashah Market), Kamla Nagar, Delhi.
(iii) 1889, Chandni Chowk, Delhi.
(iv) 1890-92 (Part), Chandni Chowk, Delhi.
3. The property no. B-28, Jhilmil Industrial Area, Shahdara, Delhi is occupied by the petitioner where the petitioner is manufacturing and carrying textile printing of cloths under its brand name Rang Rachna, which are sold in open cloth market. The property no. 18, New Market, Kamla Nagar, Delhi is already occupied by tenant since 1974 and is not in the possession of the petitioner. The property no.
1889 is in the occupation of tenant namely M/s Saree Sansar retail store, a partnership concern having Sh. Vishnu Manglani, Sh. Kapil Manglani and Sh. Bhagwan Jagtani as its partners since 1972 under the erstwhile owners, however, the petitioner has purchased the same on 01.05.1974.
4. The suit shop is situated on the ground floor in the property no. 1890- 92 (part), Chandni Chowk, Delhi which is built up in ground floor, first floor and second floor and stairs to the one floor built in 1892 (part). The entire second floor i.e. 3 khokhas rooms are in the possession of the sub-tenants since period unknown to the petitioners for which eviction proceedings are stated to be pending. The accommodation is not in the possession of the petitioner as the same is occupied illegally by sub tenants. It has been submitted that three rooms on the first floor have been vacated by the tenant on 03.12.05 whereas the one room is still in the possession of the sub tenant. The petitioner also requires the other portions of the said property for its bona-fide need i.e. 3 Tin sheds and one room on the first floor of the aforesaid property so that the petitioner can store its goods which it intends to sell from the showroom to be set up at the suit shop. The petitioner wants the suit shop for its own bona-fide need for setting up its own showroom to sell its own product manufactured under its own brand Rang Rachna. It has further been E-143/17/16 M/s Manglani Investments Pvt. Ltd. Vs Parvesh Matta & Ors. Page no.3/13 submitted that the two directors of the petitioner company are also running a wholesale shop on rent in their individial capacity situated at 5647, Building Haji Ali Jan, Nai Sarak, Delhi. The third director of the petitioner company is also running a retail shop on rent in her individual capacity situated at 1852 Chandni Chowk, Delhi. Hence this petition.
5. By filing leave to defend application filed by respondent no.1 and 6, it has been contended by applicant/respondent that the petitioner is just the landlord and not the owner of the demised premises. The petitioner is a private limited company and the petitioner has got no right to file a petition for eviction on the ground of Sec. 14 (1) (e) r/w Sec. 25B of the DRC Act in respect of commercial premises. The private limited company has got no right to file a petition for eviction on the ground of Sec. 14 (1) (e) r/w Sec. 25B of the DRC Act as the said provision is applicable only to the individuals and not to a private limited company. The private limited company is required to resort to the provisions of Sec. 22 of DRC Act for filing a petition for eviction in respect of the commercial premises and, therefore, no petition can be filed in respect of a commercial premises by a private limited company. Moreover, the petition has not been signed, verified and filed by an authorized person. Sh. Kapil Manglani is not authorized to sign, verify and file the present petition for eviction.
6. The petitioner has not come to the court with clean hands. It has been alleged that the property no. 1889-91, Chandni Chowk, Delhi consists of two shops on the ground floor, the entire first floor and the second floor. One shop on the ground floor portion of the said property is already in occupation of the petitioners. The shop no. 1889 is in occupation of the petitioner. The allegation that shop no. 1889 is in occupation of tenant namely Saree Sansar Retail Store, a partnership firm consisting of S/Shri Vishnu Manglani, Kapil Manglani and Bhagwan Jagtani since 1972 is a frivolous, false and baseless allegation. The alleged third partner namely E-143/17/16 M/s Manglani Investments Pvt. Ltd. Vs Parvesh Matta & Ors. Page no.4/13 Sh. Bhagwan Jagtani is not a partner in the said concern namely Saree Sansar Retail Store. He is none else but an employee of the petitioner company. The allegation made in the petition for eviction that shop no. 1889 is in occupation of Saree Sansar Retail Store is a frivolous, false and baseless allegation when the said shop is in occupation of the directors of the petitioner themselves. That besides being in occupation of shop no. 1889 on the ground floor portion of the said property, the petitioner is also in occupation of the entire first floor of the said property. The first floor is clearly commercial in nature and is being used for commercial purposes by the petitioner. The first floor does not have any alleged room as is being alleged by the petitioner. The first floor has got four shops, which are in occupation of the petitioner. The entire second floor portion of the said property is also in occupation of the petitioner.
7. The petitioner has got another premises no. 5647, Building Haji Ali Jan, Nai Sarad, Delhi. The petitioner is basically a finance company and are into the business of finance of immovable properties. The petitioner has filed the present petition for eviction also with the sole intention of getting the same vacated as they are finance company and want to get the demised premises vacated and then to sell the same to a third person as the petitioner is a finance company and is not carrying on any business activity of Saree Dyeing etc. That S/Sh. Kapil Manglani, Vishnu Manglani, Mohini Mangalani and Anjum Manglani, directors of the petitioner company are carrying on their business in the name and style of Meena Bazar at property no. 1852-53, Chandni Chowk, Delhi. The petitioner has also not disclosed before the court that S/Sh. Kapil Manglani, Vishnu Manglani, Mohini Mangalani and Anjum Manglani, directors of the petitioner company are carrying on their business in the name and style of Meena Bazar at 18, New Market, Kamla Nagar, Delhi. The petitioner has also got the property no. B-28, Jhilmil Industrial Area, Shahdara, Delhi. The petitioner is also carrying on its business of Manglani Investments Pvt.
E-143/17/16 M/s Manglani Investments Pvt. Ltd. Vs Parvesh Matta & Ors. Page no.5/13 Ltd in property no. B-28, Jhilmil Industrial Area, Shahdara, Delhi. The petitioner has also got another property no. 87, Banrasi Dass Estate Lucknow Road, Timar Pur, Delhi. It has been wrongly alleged by the petitioner that the petitioner company is running a brand namely Rang Rachna, whereas M/s Rang Rachna is the proprietorship concern of Sh. Vishnu Manglani. The petitioner has got another property at Chandni Chowk, Delhi where the business in the name and style of Rang Rachna Saree Shop is being carried on, which fact has also been intentionally, willfully and deliberately concealed from the court. As the need of the petitioner is not bonafide & genuine, the respondents have, therefore, requested that the application be allowed.
8. The application is contested by the petitioner by way of a written reply and counter affidavit, wherein the contents of the petition have been re-iterated and re-affirmed and the petitioner prayed for the dismissal of the application for the want of triable issues.
9. To the reply of the petitioner, rejoinder / affidavit has been filed on behalf of the respondent wherein the contentions raised by way of the application for leave to defend have been reiterated and re-affirmed.
10. I have heard counsel for the parties and gone through the material on record carefully. I have given my thoughtful consideration to the submissions made on behalf of the parties.
As per the law laid down by the Hon'ble Supreme Court in Satyawati Sharma v. Union of India and another, 148 (2008) DLT 705 (SC) clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958 is also applicable to the premises let out for purpose other than residential purpose The present petition for eviction is under clause (e) of proviso to sub- section (1) of section 14 of Act 59 of 1958 which after the judgment of Hon'ble Supreme Court in Satyawati Sharma's case reads as under :-
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14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: * * *
(e) that the premises are required bona fide by the landlord for occupation for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation :
11. It is now well settled that while deciding the question of the grant of leave to contest under the provisions of section 25B of Act 59 of 1958, the Rent Controller should see the affidavit filed by the tenant and the counter affidavit filed by the landlord. It is also now well settled that while deciding the question of the grant of leave, the Controller is not required to conduct a full fledged trial and should only see that if the affidavit of the tenant raise any triable point the decision on which may disentitle the landlord from recovering possession of the premises. At the time of the decision on the question of leave, the Controller is not required to seek the proof of the defence of the tenant.
12. Now coming to the facts of the present case under consideration. So far as the relationship of landlord and tenant between the parties is concerned, the same has not been denied by the respondents.
Although, the respondents have denied the ownership of the petitioner qua the demised premises yet they have admitted the petitioner to be their landlords. It is now well settled that once a tenant admits the relationship of landlord and tenant, he is estopped from disputing the ownership of the landlord qua the demised premises. Otherwise also, in an eviction petition, the petitioner need not to prove his absolute ownership over the demised premises and he has to prove only that his interest is more than that of the respondents which the petitioner has been able to prove by bringing cogent documentary evidence on record.
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13. Therefore, in the light of the pleadings of the parties and other material placed before this court, in so far as the purpose of clause (e) of sub-section (1) of section 14 of Act 59 of 1958 is concerned, the petitioner is found to be the owner of the premises and it is also found that there exists relationship of landlord and tenant between the parties.
14. According to the respondents, the petitioner is in possession of sufficient alternate accommodation more than its requirements. However, the respondents have failed to support their averments with any supporting document.
On the other hand, the petitioner has very categorically denied the availability of any alternative accommodation as alleged by the respondent. The petitioner has been able to bring supporting documents on record to discard the grounds raised by the respondents in their leave to defend application whereas the respondents have failed to file any supporting documents so as to disbelieve the bona-fide need of the petitioner.
15. Basically, the defence of the respondents is that already sufficient alternative accommodation is available with the petitioner as it is in possession of various properties as disclosed by the respondents in their leave to defend application. It has been alleged on behalf of the respondents that the property no. 1889-91, Chandni Chowk, Delhi consists of two shops on the ground floor, the entire first floor and the second floor. One shop on the ground floor is already in possession of the petitioner. The petitioner has denied availability of any such shop as the said shop is already being occupied by a tenant namely M/s Saree Sansar retail store. As per their own submissions, the respondents have themselves stated that the said shop is in possession of M/s Saree Sansar retail store which is a partnership firm. Ld. Counsel for the respondents have alleged that if the corporate veil is lifted it would be noticed that two partners in the said firm are the directors of petitioner company as well, however, it cannot be said to a triable issue. Even if the directors of E-143/17/16 M/s Manglani Investments Pvt. Ltd. Vs Parvesh Matta & Ors. Page no.8/13 petitioner company and partners of the partnership namely M/s Saree Sansar retail store are same persons still it does not raise any triable issue as it is clear that from the said shop business of Saree Sansar retail store is already being run and thus the said shop cannot be said to be available to the petitioner. Otherwise also, there is no bar upon any person to be a partner in one firm and a director in any other company at the same time.
16. So far as the first floor and second floor of the property no. 1889 is concerned, the petitioner has stated that the second floor is already in possession of sub-tenants against which eviction proceedings are already pending. On the first floor one room is still in possession of sub-tenant against whom eviction proceedings are pending and so far as other three rooms on the first floor are concerned, the said three rooms are not sufficient for the bona-fide need of the petitioner as the petitioner intends to use the same for storage purposes. In the considered opinion of this court, this also does not raise any triable issue as it is now well settled that premises on the ground floor are more suitable for commercial purposes especially when the petitioner has very categorically stated that the premises in question are required to open a showroom for the retail business. For the purpose of showroom, premises on the ground floor are undoubtedly more suitable than the premises at first floor of the property. So far as second floor is concerned no document in support of the same has been filed to controvert the submissions made by the petitioners in the petition and otherwise also ground floor premises are more suitable than the premises at the second floor as already observed above. Thus, this is no ground to grant leave to defend application to the respondents.
17. The respondents have also stated that the property no. 5647 Building Haji Ali Jan, Nai Sarak, Delhi is also owned by the petitioner, however, as per their own submissions the petitioner is carrying on its business from the said property. The petitioner has also stated that two directors of the petitioner company are E-143/17/16 M/s Manglani Investments Pvt. Ltd. Vs Parvesh Matta & Ors. Page no.9/13 running a wholesale shop in their own capacity from the said premises. Thus, the said premises are not cannot be said to available to the petitioner so far as the present petition is concerned.
18. The respondents further stated that Kapil Manglani, Vishnu Manglani, Mohini Mangalani and Anjum Manglani, directors of the petitioner company are carrying on their business in the name and style of Meena Bazar at property no. 1852-53, Chandni Chowk, Delhi and also from property no. 18, New Market, Kamla Nagar, Delhi. Even if it is assumed to be correct it is not understandable as to how this averment raises any triable issue for the purpose of present petition. The petitioner has no where stated that these persons are not doing any business.
19. So far as the property at B-28, Jhilmil Industrial Area, Shahdara, Delhi- 32 is concerned, is quite far away from the demised premises, which is situated at Chandni Chowk, Delhi. In the considered opinion of this court this not a triable issue for the purpose of present petition. The respondents have further alleged that one property at 87, Banrasi Dass Estate Lucknow Road, Timar Pur, Delhi is also available with the petitioner. However, as per their own submissions, the petitioner is carrying on its business of Manglani Investments from the said premises. Thus, as per their own submissions the said property is not available so as to make it a triable issue.
20. It is pertinent to mention here that the properties as disclosed by the respondents to be allegedly available with the petitioner, has already been disclosed by the petitioner in the petition and petitioner has already very clearly stated that the said properties are not at all available as some of the properties are occupied by sub- tenants and some properties business is already being conducted from the said premises. The respondents have failed to file any supporting documents to contradict the submissions putforth by the petitioner.
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21. The respondents have stated that there is no bona-fide need of the petitioner as already sufficient alternative occupation is available.
It is now well settled law that it is the petitioner himself, who is the best person to explain as to what is his/ her bona-fide necessity. As per the petitioner, in the case in hand, the suit premises are required bonafidely, it is not having any other suitable and reasonable accommodation available throughout Delhi.
Moreover, it is also now well settled that the leave to defend not to be granted to the tenant on the basis of bald affidavit and bald averments and assertions. Only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material.
A bald statement without supporting material does not give rise to a triable issue entitling tenant for leave to defend.
22. In my considered opinion, the plea of the respondents is without merit and cannot be sustained as the petitioner is the owner and landlord of the premises. In so far as the question of necessity is concerned, the law is well settled that the landlord is the best judge of his necessity and he has got complete freedom in the matter. Therefore, a tenant cannot dictate the terms to the landlord regarding his necessity.
The respondents have further raised an issue that the petitioner being a company is not entitled to file a petition u/s 14 (1) (e) r/w Sec. 25-B of DRC Act as the said provision is applicable only to the individuals and not to a private limited company. The private limited company is required to resort to the provisions of Sec. 22 of DRC Act for filing a petition an eviction petition. Ld. Counsel for the respondent has argued that this issue has already been referred to the Division Bench of Hon'ble High Court which is already pending.
23. I have gone through the judgment and order dt. 29.01.18 vide which the order has been referred to a Larger Bench by the Hon'ble High Court. In the E-143/17/16 M/s Manglani Investments Pvt. Ltd. Vs Parvesh Matta & Ors. Page no.11/13 considered opinion of this court, neither directly nor there is any inference in the order passed by Hon'ble High Court of Delhi that the matters filed by a private limited company u/s 14 (1) (e) DRC Act shall be stayed till decision on the reference is made by the Hon'ble Division Bench of High Court.
24. In the considered opinion of this court and as there is no stay in the proceeding further with the present petition and the law which is applicable as on date shall apply according to which a private company can file a petition u/s 14 (1)
(e) of DRC Act. Thus, it cannot be said to raise any triable issue.
25. In the absence of any substantial material brought before the court or pointed out by the respondent in the affidavit, it cannot be said that the present application for eviction is actuated by mala fide and has not been made with bona fide intention. Merely stating in the affidavit that the application for eviction has been made with mala fide intention is not sufficient to sustain the contention of the respondent. The court is satisfied that there is no triable point between the parties.
26. As per the provisions of section 25-B of Act 59 of 1958 a tenant shall be entitled to leave to contest the petition for eviction if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the grounds specified in clause (e) of proviso to sub-section (1) of section 14 of Act 59 of 1958.
27. In view of above discussion and the documents filed by the parties, this court is of the considered view that there is no triable issue between the parties which entitles the respondent for leave to contest the present application for eviction. The application for leave to contest is without merit and the same is dismissed.
28. As an off shoot of the dismissal of the application for leave to contest made by the respondents, the petitioner is found entitled to recover the possession of Shop situated on the ground floor of property no. 1890-91, Chandni Chowk, Delhi as shown in red colour in the site plan annexed with the application for eviction.
E-143/17/16 M/s Manglani Investments Pvt. Ltd. Vs Parvesh Matta & Ors. Page no.12/13 The application for eviction is allowed. In the facts and circumstances of the case there shall be no order as to costs.
In view of the provisions of sub-section (7) of section 14 of Act 59 of 1958 this order for recovery of possession of premises shall not be executed before the expiration of a period of six months from this date.
Digitally
signed by
PUNEET
PUNEET PAHWA
PAHWA Date:
2018.10.16
15:34:05
+0530
(Puneet Pahwa)
Announced in the open court Additional Rent Controller-02
on this 16th October, 2018 Central/Tis Hazari Courts/Delhi
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