Delhi District Court
Nilima Thakur vs Kumar Jai Singh on 14 February, 2024
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO 57 OF 2020
NILIMA THAKUR vs KUMAR JAI SINGH
14.02.2024
Present: Mr. Arunav Patnaik, Ms. Aanchal Tikmani, Mr.
Nirbhay Nitya Nanda, Ms. Anju Rani and Mr. S.
Gopal Krishna, Ld. Counsels for plaintiff along with
plaintiff.
Mr. Ashutosh Dubey and Mr. Amit Kumar, Ld.
Counsels for defendant.
JUDGMENT (ORAL)
1. The defendant has filed an application u/s. 8 of the Arbitration and Conciliation Act for reference of the dispute in the suit to arbitration.
2. Ld. Counsel for the defendant submits that although the defendant had earlier also filed an application u/s.8 of the Arbitration and Conciliation Act, the same was not pressed by the defendant and was dismissed. It is submitted that the defendant did not press the earlier application u/s. 8 of the Arbitration and Conciliation Act inasmuch as it was the case of the plaintiff in the reply to the first application u/s. 8 of the Arbitration and Conciliation Act that the lease agreement stood extinguished by the efflux of time and was no longer valid and that there was no arbitration agreement which remained in place. It is submitted that the earlier application was withdrawn on the basis that in the reply to the application u/s. 8 of the Arbitration and CS NO 57 OF 2020 page no. 1 of 23 NILIMA THAKUR vs KUMAR JAI SINGH Conciliation Act, the plaintiff had stated as follows:
"1. That the present application of the plaintiff deserves dismissal with exemplary cost on the sole ground that the first and foremost requirement of section 8 of the Arbitration and Conciliation Act, is an exitance of valid arbitration agreement, whereas in the present matter, the agreement by and between the parties, have admittedly had matured by efflux of time on 30.10.2017 and the same is evenly admitted by the defendant in their reply to the legal notice dated 15.11.2019, in para 5 of the para wise reply to the legal notice, wherein, it is categorically admitted that the lease deed was extended from year after year till 30.10.2017. Thus, the aforesaid agreement which had matured by efflux of time, cannot be held to be valid, when the main agreement has no validity in the eyes of law, as been terminated by efflux of time and thus the present application is not maintainable in the present matter.
2. That the present application of the plaintiff deserves dismissal with exemplary cost on the sole ground that agreement dated 08.01.2018 is a disputed amendment agreement by the plaintiff as has been signed under force, coercion and relied upon by the parties. Even otherwise the same overrules and supersedes all the previous agreed terms and conditions, being an amendment agreement detailing the conduct of the parties from 1st Nov 2017 to 30 June 2018, more specifically the way and the date by which the defendant shall hand over the physical and vacant possession of the subject flat. Not to mention, admittedly the amended agreement does not have any arbitration clause."
3. Ld. Counsel for the defendant submits that now that the CS NO 57 OF 2020 page no. 2 of 23 NILIMA THAKUR vs KUMAR JAI SINGH plaintiff has filed an application under Order XII Rule 6 CPC on the basis of the lease deed, the defendant has filed the present application u/s.8 of the Arbitration and Conciliation Act for reference to arbitration in terms of the arbitration clause in the lease deed. It is submitted that the dispute may be referred to arbitration in terms of the arbitration clause. It is submitted that when there is an arbitration clause, then it would be mandatory to refer the dispute to arbitration. In this regard, Ld. Counsel for defendant has relied on the following judgments: Suresh Shah vs Hipad Technology India Private Limited (2021) 1 SCC 529 and Rani Suri vs Swarantech Information Systems Pvt. Ltd. 2018 SCC OnLine Del 11470 : (2019) 1 RCR (Rent) 101.
4. On the other hand, Ld. Counsel for the plaintiff has submitted that once the defendant had already not pressed the application u/s. 8 of the Arbitration and Conciliation Act and the same came to be dismissed as not pressed, and thereafter, the pleadings in the suit have been completed and issues have already been framed, at this stage, the defendant cannot again seek reference to arbitration. It is further submitted that now the suit is at the stage of recording of evidence and the defendant cannot now seek any arbitration. It is submitted that once proceedings in court have progressed to the stage of recording of evidence, at this stage, an application u/s. 8 of the Arbitration and Conciliation Act would not lie. In this regard, Ld. Counsel for plaintiff has also referred to the CS NO 57 OF 2020 page no. 3 of 23 NILIMA THAKUR vs KUMAR JAI SINGH decision of the Hon'ble High Court of Delhi in SPML Infra vs. Trisquare Switchgears 2022 SCC OnLine Del 1914. It is further submitted that the conduct of the defendant in withdrawing the application u/s. 8 of the Arbitration and Conciliation Act and moving forward to the stages of framing of issues and recording of evidence shows that the defendant has submitted to the jurisdiction of this court. It is submitted that it is only now when the plaintiff has filed the application under Order XII Rule 6 CPC for judgment on admission, that the defendant has moved the application seeking reference to arbitration which would not be permissible at this stage. Ld. Counsel for plaintiff has further submitted that the withdrawal of the application u/s. 8 of the Arbitration and Conciliation Act was unconditional as can be seen from the order dated 24.01.2023 dismissing the application as not pressed.
5. In rejoinder, the Ld. Counsel for defendant has submitted that the plaintiff has now in the application under Order XV-A CPC, the application under Order XXXIX Rules 1 and 2 CPC and the application under Order XII Rule 6 CPC relied on the lease deeds which the plaintiff had earlier claimed to have been terminated by efflux of time and no longer valid as seen from the reply to the earlier application u/s. 8 A&C Act. It is submitted that now that the plaintiff was basing his case on the lease deeds, then the dispute ought to be referred to arbitration under the arbitration clause in the lease deed.
CS NO 57 OF 2020 page no. 4 of 23 NILIMA THAKUR vs KUMAR JAI SINGH
6. I have considered the submissions of the Ld. Counsels of the parties on the application u/s. 8 of the Arbitration and Conciliation Act.
7. The fact of the matter is that the present suit has proceeded beyond the stage of pleadings and framing of issues and is now at the stage of recording of evidence. Although the defendant had earlier also filed an application u/s. 8 of the Arbitration and Conciliation Act, the same was dismissed as not pressed vide order dated 24.01.2023. Thus, the defendant has clearly submitted to the jurisdiction of this court and at this stage, the defendant cannot seek reference to arbitration. There is no dispute as to the principles set out in the judgments cited by the Ld. Counsel for the defendant that when there is an arbitration clause the matter ought to be referred to arbitration. However, these decisions are inapplicable to the present case since the facts are clearly distinguishable as these were not cases in which the application u/s. 8 of the Arbitration and Conciliation Act was not pressed by the defendant and dismissed as such and subsequently when the matter proceeded to the stages of framing of issues and recording of evidence then a fresh application was filed, as is the case in the present suit. Section 8 of the Arbitration and Conciliation Act itself provides that the party seeking reference to arbitration has to apply not later than the time of submitting his first statement of defence. In the present case, although the defendant had filed such an application, however, the same was not pressed and dismissed as such CS NO 57 OF 2020 page no. 5 of 23 NILIMA THAKUR vs KUMAR JAI SINGH and the suit has now proceeded to the stage of recording of evidence. The defendant cannot now again seek to turn the clock back and seek reference to arbitration.
8. Accordingly, the second application u/s. 8 of the Arbitration and Conciliation Act filed by the defendant is dismissed.
9. Now, coming to the application under Order XII Rule 6 CPC filed by the plaintiff.
10. The Ld. Counsel for the plaintiff has submitted that the defendant was inducted into the suit property being Flat No. 198, Munirka Enclave, New Delhi-110067 as a tenant through lease deed dated 23.12.2011 and subsequent extensions/amendments to the lease. It is submitted that the lease dated 08.01.2018 was the last document of lease executed between the parties and the lease expired by efflux of time on 30.06.2018. It is submitted that with the expiry of the lease, the defendant was liable to be vacated and the defendant had no right to remain in possession of the suit property. It is further submitted that the defendant has in his written statement admitted the documents of lease between the parties and has admitted that he had been inducted into the suit property as a tenant through a lease deed which was periodically extended. It is submitted that the defence taken by the defendant in the suit was that there was also an oral agreement to sell between the parties under which an alleged part payment CS NO 57 OF 2020 page no. 6 of 23 NILIMA THAKUR vs KUMAR JAI SINGH of Rs. 25 lacs was paid by cash and the total alleged sale consideration was Rs. 1.72 crores. It is submitted that even as per the own case of the defendant, there is no document in writing and registered with respect to the alleged agreement to sell. It is further submitted that the defendant has not filed any document in support of the allegation that part-payment of Rs. 25 lacs was made in cash. Ld. Counsel for the plaintiff has submitted that when the defendant has admitted that he had been inducted into the suit property as a tenant and admittedly the lease has expired, there is no basis that the defendant can seek to remain in possession on the basis of an alleged oral agreement to sell. Ld. Counsel for the plaintiff has referred to the decision in Mohd. Raza vs Geeta (2022) 13 SCC 756, particularly to paragraphs 11, 12 and 13, and has submitted that even if the defence taken by the defendant was of an agreement to sell, the defendant could at best only file a suit for specific performance and could not seek to protect his possession in the suit for possession filed by the plaintiff. Ld. Counsel for plaintiff has further referred to the decision in Jagdambey Builders vs. J.S. Vohra 2016 SCC OnLine Del 765, particularly to paragraphs 10, 11, 17 to 26, and has submitted that a mere agreement to sell of immovable property would not create any right in the property save the right to enforce the agreement. It is further submitted that the defendant cannot seek to protect his possession even under the doctrine of part-performance under Section 53A of the Transfer of Property Act CS NO 57 OF 2020 page no. 7 of 23 NILIMA THAKUR vs KUMAR JAI SINGH inasmuch as admittedly even as per the own case of the defendant there was no agreement to sell in writing and registered. Ld. Counsel for plaintiff has in this regard also relied on the decision in Uma Hada vs Sunil Gupta 2021 SCC OnLine Del 3009. Reliance is also placed on Payal Vision Ltd. vs Radhika Choudhary, (2012) 11 SCC. It is further submitted that when the lease deeds had been reduced in writing, no evidence of any alleged oral agreement to sell to the contrary could be admitted and even as such the defence of the defendant regarding the oral agreement to sell cannot also stand. In this regard, Ld. Counsel for the plaintiff has referred to Sections 91 and 92 of the Evidence Act and has also referred to the decisions in Sharex Acting vs Sudershan Suri, 2010 SCC OnLine Del 2233 and Abbot India Ltd. vs Rajinder Mohindra and Ors. 2014 SCC OnLine Del 231. It is submitted that when there had been repeated extensions since the original lease agreement of 23.12.2011 and admittedly there was a lease extension agreement dated 08.01.2018 extending the lease till 30.06.2018, the defence taken of an alleged oral agreement to sell in October 2014 would not stand and is impermissible in light of Sections 91 and 92 of the Evidence Act. It is further submitted that by way of the application under Order XII Rule 6 CPC, the plaintiff is only seeking a judgment on admission to the extent of relief of possession and that the remaining issues of arrears of rent, damages and mesne profits etc. would remain. On this basis, Ld. Counsel for plaintiff has submitted that the CS NO 57 OF 2020 page no. 8 of 23 NILIMA THAKUR vs KUMAR JAI SINGH plaintiff is entitled to a judgment on admission to the extent of relief of possession.
11. On the other hand, the Ld. Counsel for defendant has vehemently opposed the application under Order XII Rule 6 CPC for judgment on admission. It is submitted that the plaintiff cannot approbate and reprobate. It is submitted that the plaintiff had in the reply to the earlier application u/s. 8 of the Arbitration and Conciliation Act, stated that the lease had expired by efflux of time and was no longer valid and had also disputed the lease extension agreement dated 08.01.2018 on the basis that it was allegedly got signed from the plaintiff through force and coercion. It is submitted that when it is the own case of the plaintiff that the lease extension dated 08.01.2018 was got signed through force and coercion, the plaintiff could not rely on the same to claim any relief in the application under Order XII Rule 6 CPC. It is further submitted that the defendant has been continuing in possession of the suit property by virtue of the oral agreement to sell between the parties in respect of which a part-payment of Rs. 25 lacs has already been made by the defendant to the plaintiff. It is submitted that the parties had orally agreed that till the time the sale deed was executed, the defendant could remain in the suit property by paying nominal rental charges. It is submitted that on the basis of this oral agreement, the rental charges were also not increased @ 10% annually and that the rental charges were in fact reduced to Rs. 50,000/- from Rs. 61,000/-. It is further submitted that the issues in the CS NO 57 OF 2020 page no. 9 of 23 NILIMA THAKUR vs KUMAR JAI SINGH suit have already been framed vide order dated 05.08.2023. It is submitted that the defendant has also filed a suit for specific performance of the oral agreement to sell being CS No. 854/2019 which is also pending in this court and that the suits are at the stage of evidence now and the suits have been clubbed for the purpose of evidence. It is further submitted that an oral agreement to sell is a valid agreement and the defendant can seek specific performance of an oral agreement to sell also and that an agreement to sell need not be only in writing. In this regard, Ld. Counsel for the defendant has relied upon the following judgments: Devender Singh vs M/s Malik Buildcon 2018 SCC OnLine Del 10920, Kollipara Sriramulu vs T. Aswatha Narayana (1968) 3 SCR 387:
AIR 1968 SC 1028, Aloka Bose vs Parmatma Devi (2009) 2 SCC 582, K. Nanjappa vs R.A. Hameed (2016) 1 SCC 762, Nathulal vs Phoolchand (1969) 3 SCC 120, and Brij Mohan vs Sugra Begum (1990) 4 SCC 147. It is further submitted that the plaintiff in the present suit has also filed an application under Order XV-A CPC for deposit of occupation charges which was allowed vide order dated 11.04.2023 and that the defendant has also been making payment of occupation charges subject to the order dated 09.05.2023 of the Hon'ble High Court of Delhi in FAO No. 114/2023 which was an appeal filed by the defendant against the order directing for payment of occupation charges by this court. It is further submitted that the nature of relief sought in the application under Order XII Rule 6 CS NO 57 OF 2020 page no. 10 of 23 NILIMA THAKUR vs KUMAR JAI SINGH CPC is of final relief since the plaintiff is seeking decree for possession. It is submitted that the plaintiff cannot bifurcate the reliefs and seek decree for part of the relief only. On this basis, Ld. Counsel for defendant has submitted that the application of the plaintiff under Order XII Rule 6 CPC deserves to be dismissed.
12. I have considered the submissions of the ld. Counsels for the parties.
13. The plaintiff has filed the suit on the basis that the defendant was inducted as a tenant in the suit property vide lease deed dated 23.12.2011 which was extended from time to time, and that the lease extension agreement dated 08.01.2018 was the last document of lease executed between the parties and the lease ultimately expired by efflux of time on 30.06.2018. In his written statement, the defendant has admitted the lease agreements and has also admitted that he was inducted into the suit property as a tenant. It is the case set up by the defendant that in October 2014, the plaintiff had offered the defendant to sell the tenanted suit property and that consequently an oral agreement to sell was entered into between the parties for sale of the suit property for total sale consideration of Rs.1,72,00,000/- and in respect of which the defendant had also paid an amount of Rs.25,00,000/- in cash towards part performance of the oral agreement to sell. I have wondered as to how the defendant could seek to protect his possession merely on the basis of an oral agreement to CS NO 57 OF 2020 page no. 11 of 23 NILIMA THAKUR vs KUMAR JAI SINGH sell. An oral agreement to sell could at best only give the defendant a right to sue for specific performance and nothing more. An oral agreement to sell cannot help the defendant in holding on to the possession.
14. In Md. Raza vs Geeta (2022) 13 SCC 756, the Hon'ble Supreme Court of India held as under:
"11. Thus from the aforesaid, it is clear that the defendants are claiming the ownership of the suit property. Defendant 2 is claiming to be in possession as an owner and claiming to be the owner. It can also be seen that the plaintiff has filed the suit as an owner. It is not in dispute and even it is the case on behalf of the defendants that Defendant 2 had instituted the suit for specific performance against the plaintiff with respect to the suit property, meaning thereby there is a clear cut admission that the plaintiff is the owner.
12. It is to be noted at this stage that Defendant 2 cannot be said to be the owner as her suit for specific performance is yet to be decided by the learned trial court. Unless and until there is a decree passed in her favour and the decree for specific performance is passed and/or the sale deed is executed pursuant to such a decree, she cannot be said to be the owner of the suit property. Till the suit for specific performance is decided, the plaintiff-
CS NO 57 OF 2020 page no. 12 of 23 NILIMA THAKUR vs KUMAR JAI SINGH respondent herein continues to be the owner and Defendant 1-appellant herein continues to be the tenant. In the written statement in para 1, it is specifically stated by the defendants that the defendants are not "now" the tenant of the plaintiff but the actual owner of the suit property. As observed hereinabove, till the suit for specific performance is decided in favour of the defendants, more particularly Defendant 2, she cannot be said to be the owner and that therefore the plaintiff- respondent herein continues to be the owner and Defendant 1 continues to be the tenant. Therefore, the aforesaid is rightly treated as an admission on behalf of the defendants with respect to the ownership of the plaintiff and that Defendant 1 is a tenant. Therefore, the High Court as such has rightly passed the decree on admission under Order 12 Rule 6CPC which in the facts and circumstances of the case cannot be said to be erroneous.
13. However, at the same time, when the substantive suit filed by Defendant 2 against the plaintiff for specific performance is pending, it is to be observed that the decree passed by the High Court by the impugned judgment and order [Geeta v. Mohd. Raza, 2019 SCC OnLine Del 11385] shall always be subject to the outcome of the said suit filed by Defendant 2 against the plaintiff and if ultimately she succeeds in the suit, and a decree for specific CS NO 57 OF 2020 page no. 13 of 23 NILIMA THAKUR vs KUMAR JAI SINGH performance is passed and the learned trial court passes the decree for possession (if prayed), then necessary consequences shall follow and the plaintiff, subject to filing the appeal, shall have to abide by the decree that may be passed in the suit for specific performance. It also goes without saying that any injunction granted by the learned trial court in the suit filed by Defendant 2 for specific performance of the contract shall also not be affected unless subsequently the order of injunction if any in favour of Defendant 2 is modified by the learned trial court."
(Emphasis supplied by me)
15. In Jagdambey Builders vs. J.S. Vohra 2016 SCC OnLine Del 765, the Hon'ble High Court of Delhi held as under:
"10. The first question for adjudication is whether the nature of possession of the appellant of the premises, would in law change from that of a tenant to that of a purchaser upon the appellant agreeing to purchase the premises, so as to deny the respondent/landlord the right to eject the appellant from the premises as a tenant.
11. Section 108 of the Transfer of Property Act, 1882 provides for the rights and liabilities of the lessor and lessee in the absence of a contract or legal usage to the contrary. Clause (B)(q) thereof CS NO 57 OF 2020 page no. 14 of 23 NILIMA THAKUR vs KUMAR JAI SINGH provides that the lessee, on the determination of the lease, is bound to put the lessor into possession of the property.
... ... ...
17. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondent/plaintiff is found to have agreed to sell the property let out to the appellant to the appellant, the appellant/defendant would not get any right to occupy that property as an agreement purchaser. This Court in Jiwan Das v. Narain Das AIR 1981 Delhi 291 has held that in fact no rights enure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed. Thus in law, the appellant has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour.
18. Section 53A of the Transfer of Property Act, 1882 codifies the doctrine of part performance. A purchaser of immovable property, who in pursuance to an agreement to sell in writing has been put into possession of the property, is entitled to so remain in possession. However, the writings relied upon by the CS NO 57 OF 2020 page no. 15 of 23 NILIMA THAKUR vs KUMAR JAI SINGH appellant in this regard, even if were to be looked into (notwithstanding the contention of the counsel for the respondent that the same were not brought before the Trial Court), do not record the possession of the premises having been delivered to the appellant in pursuance to or in part performance of the agreement to sell. The writings do not even state that the appellant shall be entitled to continue in the premises free of rent as has been pleaded.
19. Even otherwise, the Stamp Act, 1899 and the Registration Act, 1908 as applicable to Delhi were amended w.e.f. 24th September, 2001. After the said amendment, an agreement to sell of immovable property, where-under the possession of the premises is delivered in part performance, can only be by a registered document bearing the prescribed stamp duty i.e. on 90% of the total agreed sale consideration. Section 49 of the Registration Act was also amended. A plea of part performance, in the absence of a registered document, cannot thus be taken. The appellant/defendant cannot thus in the absence of a registered agreement to sell, protect his possession in part performance of the agreement to sell or take such a plea.
20. What follows is that even if the appellant/defendant were to succeed in his suit for specific performance of agreement to sell, till the execution of a conveyance deed in pursuance to the CS NO 57 OF 2020 page no. 16 of 23 NILIMA THAKUR vs KUMAR JAI SINGH decree, if any in favour of the appellant, the appellant has no ground in law to save his possession of the premises. The status of the appellant would continue to be as before i.e. of a tenant whose tenancy has been determined.
21. I have in Sunil Kapoor v. Himmat Singh 167 (2010) DLT 806 (SLP No. 6010/2010 preferred whereagainst was dismissed in limine on 12th March, 2010), ASV Industry v. Surinder Mohan and in Sanjiv Pathak v. Som Nath 204 (2013) DLT 667 dealt exhaustively with this aspect.
22. It was again so dealt by me in Abbot India Ltd. supra.
23. I however elaborate further. Once it is found that the appellant was not delivered possession of the premises in his tenancy in part performance of the agreement to sell or that owing to the agreement to sell being not registered, the plea of being in possession of the premises in part performance is not open to the appellant for the reason of there being no registered agreement to sell, the only inference is of the appellant having continued in possession of the premises as a tenant.
24. Section 108B(q) of the Transfer of Property Act as aforesaid imposes an obligation on the tenant to deliver possession to the landlord. Only if the landlord after inducting a person as a tenant in the CS NO 57 OF 2020 page no. 17 of 23 NILIMA THAKUR vs KUMAR JAI SINGH premises thereafter agrees to sell the premises to the tenant and in part performance of the said agreement to sell delivers possession of the premises to the tenant, will it be deemed that the tenant had delivered back possession of the premises to the landlord for the landlord to thereafter put the tenant into possession of the premises in part performance of the agreement to sell. Once, there is no delivery of possession of the premises in part performance of the agreement to sell, the only inference is that the person continues in the same status as earlier i.e. as a tenant.
25. The principle, "once a tenant always a tenant"
can also be invoked in this respect. This Court in M.R. Sawhney v. Doris Randhawa AIR 2008 Delhi 110 (SLP No. 13820/2008 whereagainst was dismissed on 22nd October, 2010) held "ex-facie, once a tenant always remains tenant, unless the status changes by contract or by operation of law". As far back as in Abdul Hakim Mia v. Pana Mia Miaji AIR 1919 Calcutta 293 (DB) also it was held that the lessee cannot alter the character of his possession and that if the plaintiff inducted the tenant into possession, obviously the character of the possession could not be altered, without the consent of the plaintiff. Similarly, in M. Mujibar Rahaman v. Isub Surati AIR 1928 Calcutta 546 followed in Sanapathi Sitharamiah v. Nandarapu CS NO 57 OF 2020 page no. 18 of 23 NILIMA THAKUR vs KUMAR JAI SINGH Ramaswamy AIR 1938 Madras 73 it was held that estoppel under Section 116 of the Evidence Act, 1881 continues, even after the expiration of the period of the lease and unless the tenant openly surrenders possession he is esstopped from contesting the title of the landlord. The High Court of Punjab & Haryana also in Gurcharan Singh v. Mukhtiar Singh 2010 SCC OnLine P&H 4757 held that a tenant in possession of the property cannot set up title by adverse possession in view of Section 116 of the Evidence Act, challenging the title of the owner/landlord of the property in dispute and that the principle of "once a tenant always a tenant" would apply. I may mention that the position of a tenant in this regard is the same as that of a licensee qua which it was held by the Supreme Court in Sant Lal Jain v. Avtar Singh (1985) 2 SCC 332:
"the respondent was a licensee and it must be deemed to be always a licensee. It is not open to him, during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property CS NO 57 OF 2020 page no. 19 of 23 NILIMA THAKUR vs KUMAR JAI SINGH subsequently".
26. Mention may also be made of Raptakos Brett & Co. Ltd. v. Ganesh Property (1998) 7 SCC 184 where it was held that in the absence of any contract to the contrary, Section 108B(q) of the Transfer of Property Act remains fully operative by force of Statute itself. It was reiterated that if the tenant wants to show that he is not bound to hand over the vacant possession to the landlord as he has paid the market value of the construction put in by him on the leased premises, there should be an express term to the contrary in the contract of tenancy which would override Section 108B(q) obligation. Naturally, such express term has to be in a contract in accordance with law and the law with effect from 24th September, 2001, as far as Delhi is concerned, requires a contract as pleaded by the appellant to be by a registered document and in the absence of such a registered document, prohibits a plea as sought to be taken by the appellant. It has thus but to be held that there is no contract to the contrary and thus Section 108B(q) has to be given effect to."
(Emphasis supplied by me)
16. In Uma Hada vs Sunil Gupta 2021 SCC OnLine Del 3009, the Hon'ble High Court held as under:
CS NO 57 OF 2020 page no. 20 of 23 NILIMA THAKUR vs KUMAR JAI SINGH "24. Hence to seek relief under Section 53-A of the Transfer of Property Act, the documents relied upon to evidence an agreement to sell must be registered. The so-called receipts which are relied upon by the defendant to claim an agreement to sell dated 8-9- 2019 and 5-3-2020 are unregistered documents. The defendant cannot rely upon the same to take any advantage of Section 53-A of the Transfer of Property Act. There is no merit in the said plea raised by the defendant."
(Emphasis supplied by me)
17. The ratio in the aforesaid decisions would apply on all fours in the present case. Merely because the defendant relies on an oral agreement to sell, the same would not assist the defendant in hanging on to the possession when it is the own case of the defendant that he had been inducted into the suit property as a lessee. The defendant has already filed a suit for specific performance on the basis of the oral agreement to sell which suit will have its own destiny, however, mere filing of the suit for specific performance on the basis of an oral agreement to sell cannot help the defendant in resisting a judgment on admission in the suit for possession filed by the plaintiff landlord. It is only on the basis of the doctrine of part performance under an agreement to sell under section 53A of the Transfer of Property Act, 1882 through which a defendant could perhaps seek to protect his possession, CS NO 57 OF 2020 page no. 21 of 23 NILIMA THAKUR vs KUMAR JAI SINGH however, even that necessarily requires an agreement to sell in the form of a document in writing and registered. In the present case, admittedly there is no agreement to sell in writing and registered. As such, I find that the defence taken by the defendant of an oral agreement to sell cannot help the case of the defendant in remaining in possession. It being the position that the defendant has admitted that he had been inducted into the property as a lessee and the term of the lease having expired, the plaintiff is entitled to get the possession, notwithstanding the defence taken by the defendant of an oral agreement to sell. Power under Order XII Rule 6 CPC can be exercised at any stage and it is immaterial that the issues have already been framed and the matter is at the stage of evidence. It is also immaterial that an order has already been passed under Order XV-A CPC for deposit of occupation charges. Power under Order XII Rule 6 CPC can be exercised to grant the relief of possession even if the issues of arrears of rent and mesne profits remain.
18. Accordingly, the application filed by the plaintiff under Order XII Rule 6 CPC is allowed. Decree is passed in favour of the plaintiff and against the defendant for possession in terms of the prayer clause (a) of the plaint which is to the following effect:
"(a) Pass an order for the eviction of the suit property bearing no. 198, Munirka Enclave, Munirka, New Delhi-110067, in favour of the CS NO 57 OF 2020 page no. 22 of 23 NILIMA THAKUR vs KUMAR JAI SINGH plaintiff and as against the defendant directing the defendant thereby to hand over the vacant and peaceful possession of the property bearing no.
198, Munirka Enclave, Munirka, New Delhi- 110067."
19. Let the decree sheet be prepared accordingly.
20. Re-list for consideration of the other pending applications on 04.05.2024.
(SATYABRATA PANDA)
Additional District Judge-04
Judge Code- DL01057
PHC/New Delhi/14.02.2024
CS NO 57 OF 2020 page no. 23 of 23
NILIMA THAKUR vs KUMAR JAI SINGH