Delhi High Court
Ved Pinkash Khultar And Ors. vs Genelec Ltd. on 20 January, 1993
Equivalent citations: 49(1993)DLT491, 1993(25)DRJ92
Author: Arun Kumar
Bench: Arun Kumar
JUDGMENT Arun Kumar, J.
(1) This is a suit for possession of Property No.11, Communality Centre, Basant Lok, Vasant Vihar, New Delhi. The tenant has not been paying any rent for years. It neither wants to vacate the premises nor it wants to pay anything towards rent. It claims that these privileges are conferred on it by the Sick Industrial Companies (Special Provisions) Act,1985. The case is a glaring example of abuse of the provisions of the said Act.
(2) Vide lease deed dated 25th November,1981, the defendant company took on lease the suit property comprising of ground floor, first floor, basement, loft and mezzanine floor and projector on a monthly rent of Rs.29,686.00 . The lease deed is dated 25th November,1981 and was registered with the Sub-Registrar, New Delhi onllthMarch,1982. The plaintiff has filed the plan of the property comprised in the tenancy of the defendant. The lease deed was initially for a period of three years w.e.f. 1st March, 1982 and contained an option for the defendant to extend it for a further period of two years on enhancement of rent at 10%. The tenant exercised the option and as such the period of tenancy under the lease deed expired on the mid night between 28th February,1987 and 1st March,1987. The defendant company continues to occupy the premises even thereafter.
(3) The plaintiff has alleged that there have been defaults in payment of rent by the defendant for which claim has been made in the plaint on account of arrears of rent and also for mesne profits after the termination of tenancy of the defendant by the plaintiff.
(4) The plaintiff served a notice of demand and termination of tenancy dated 24th May,1991 on the defendant -terminating the tenancy w.e.f. the mid night of 30th June,1991. The defendant was requested to vacate the premises on termination of tenancy and to handover its vacant possession. However, the defendant did not comply with the notice and did not handover possession of the premises to the plaintiffs. The defendant replied to the notice through letter dated 28th June,1991 issued by counsel for the defendant on behalf of the defendant. The plaintiff has placed on record office copy of the notice dated 24th May,1991 Along with A/D cards regarding delivery of notice to the defendant at one of its addresses. The plaintiff has also placed on record an envelope containing the same notice addressed to another address of the defendant which returned undelivered. Thus one of the original notice is also on record. Besides this, the plaintiff has filed the original reply to the said notice received from counsel for the-defendant. Thereafter, the plaintiff filed the present suit for recovery of possession of the tenanted property and arrears of rent and damages mesne profits for the use and occupation of the premises. Along with the plaint, the plaintiff filed certain documents as per the list. It will be seen from the said list that the plaintiff filed a photocopy of a registered general power of attorney dated 7th November,1981 executed by plaintiffs 2 to 5 in favor of the plaintiff No.1 to institute the present suit and sign and verify pleadings on their behalf. The plaintiff also filed photocopy of the registered lease deed dated 25th November,1981, letter of defendant dated 9th January,1985 exercising option for continuing the lease for another period of two years, besides the original registered postal envelope returned undelivered containing the notice dated 24th May,1991 addressed to one of the address of the defendant and the A/D receipt regarding delivery of notice to the defendant at its another address. The original reply dated 28th June,1991 received from counsel for the defendant as well as plan of the tenanted property were also filed Along with these documents. The plaintiff was aware of the fact that the defendant company had been declared a sick unit and proceedings were going on under the Sick Industrial Companies (Special Provisions) Act, 1985. Plaintiffs, therefore, moved the Board constituted under the said Act for permission to institute the present proceedings. However, the Board was of the view that for institution of proceedings of eviction against the defendant company, no permission was required under the Act. This view was confirmed by the Appellate Authority for Industrial and Financial Reconstruction vide its order dated 31st July, 1992. For this view, reliance was placed on a judgment of the Supreme Court in Shri Chamundi Mopeds Ltd. Vs. Church of South India Assn., . Copies of these orders have also been placed on record.
(5) The defendant moved an application being I.A. 1395/92 for directions to the plaintiff to supply copies of the documents filed by the plaintiff. The said application was allowed on 11th February,1992 and the plaintiff undertook to supply copies of the documents to the defendant same day. The defendant filed its written statement on 23rd May, 1992 i.e. much after the copies of all the documents filed by the plaintiff were supplied to its counsel. The defendant has not filed any document at all inspite of the legal requirement in this behalf under Order 8 Rule I of the Code of Civil Procedure and an opportunity specifically granted by this Court for this purpose vide its order dated 15th September, 1992.
(6) After the defendant bad filed its written statement, counsel for the plaintiff submitted that there was no need for him to file replication and the matter could straight away be considered for framing of issues if at all and for passing of a decree for possession in favor of the plaintiff and the case need not go for trial by way of recording of oral evidence etc. On 15th September,1992, after going through the pleadings and hearing counsel for the parties, this Court framed the following issues :- 1. Whether the amendment of Delhi Rent Control Act w.e.f. December 1, 1988 by which premises let out at a rent which is more than Rs.3,500.00 per month is illegal, void, discriminatory and violative of Articles 14 and 19 of Constitution of India and as such liable to be struck down ? 2. Whether the tenancy of the defendant is for indefinite period and if so, to what effect ? 3. Whether the defendant is protected under Section 53-A, of Transfer of Property Act? 4. Whether the proceedings before this Hon'ble Judge are liable to be stayed, in view of the proceedings before Bifr ? 5. Whether the alleged termination of tenancy is illegal and not binding ? 6.Whether the suit of the plaintiff is false, frivolous and has been filed only to coerce and pressurise the defendant to increase the rent or in the alternative to vacate the premises? 7. Whether the defendant is holding over the premises as a tenant at sufferance ? 8. Whether a sum of Rs.4,20,225.52 is due to the plaintiff and is legally payable ? 9. Whether the tenancy has expired by efflux of time ? 10. Whether the plaintiff is entitled to get interest @ 24% per annum or at any other rale? 11. Relief.
(7) It was further observed in the said order that on the issue No.8 and 10 which relate to recovery of arrears of rent and mesne profits etc. anj interest on the said amount as claimed by the plaintiff, evidence would be required. Other issues could be decided on the basis of pleadings of the parties and documents on record and no oral evidence was required for their decision and in view of the provisions of Order 20 Rule 12 of the Code of Civil Procedure in suits for possession, rent and mesne profits like the present one, a decree for possession of the property can be passed independently even if an enquiry regarding rent and mesne profits bad to be held. Therefore, the suit was posted for arguments on issues other than issues No.8 and 10 and parties were granted further time to file documents, it any. The plaintiff alone filed originals of certain documents which it had already filed on record initially Along with the suit except one fresh document which is the order of the Appellate Authority' for Industrial and Financial Reconstruction.
(8) At the time of final bearing of arguments, counsel for the defendant moved two applications in Court. 'The first one is an application under Order 6 Rule 17 of the Code of Civil Procedure for permission to amend the written statement so as to take up the pica regarding the suit not having been filed, instituted, signed and verified by a competent person, since plaintiff No. 1 is nof. fully authorised nor competent to do so on behalf of plaintiffs 2 to 5. This application is totally without any\merit and is even otherwise malafide and is only intended to stall the bearing of the case. "The plaint filed by the plaintiff shows that it has been signed by plaintiff No.1 on behalf of himself and as general attorney of defendants 2 to 5. This is indicated on the last page of the plaint. The defendant has made a grievance that copy of the plaint sullied to the defendant does not contain the endorsement "for self and as general attorney of plaintiffs 2 to 5". It is interesting to note that photocopy of the general power of attorney in favor of plaintiff No.1 executed by plaintiffs 2 to 5 was filed by the plaintiffs Along with the suit and a copy thereof was supplied to counsel for the defendant as per order of this Court dated 11th February 1992 referred to herein before. If the defendant had bothered to look at these documents, the defendant would have been put on guard to find out as to how the suit had been instituted. The defendant has inspected the Court file on 20th November,1991, 7th December,1991, 18th Fruary,1992, 23rd July,1992 and 19th March,1992 as per inspection slips which are on record. Three inspections are before filing of the written statement since the written statement was filed in May,1992. These inspections would have indicated to the defendant bow the suit had been instituted. It also follows from this that the defendant felt satisfied from the endorsement on the original plaint as well as from a copy of the general power of attorney which was in its possession that there was no substance in that objection. Therefore, no plea in this connection was taken in the written statement. At this stage, I can not permit the defendant to amend the written statement and that too on such an untenable and frivolous ground. The application is malafide being solely intended to thwart the proceedings in the suit. The same is dismissed.
(9) The second application moved at the commencement of final hearing of the suit by the defendant is under Section 151 Civil Procedure Code for directions to the plaintiff to furnish to the defendant documents filed by the plaintiff in pursuance of the order dated 15th September, 1992. As already noticed the documents which the plaintiff filed after the order dated 15th September,1992 are the originals of some of those documents which were already filed earlier and copies whereof were already supplied to the defendant. Therefore, the application is totally misconceived. Counsel for the defendant inspected the file on 19th September,1992 and ought to have known all the documents the plaintiff bad filed after the order dated 15th September,1992. It appears that before moving the present application, defendant has not even cared to look at the documents and the application has been moved in a mechanical manner to somehow stall the proceedings in the case. The only new document filed after 15th September,1992 by the plaintiff is the order of the Appellate Authority for Industrial and Financial Reconstruction which was made available to the counsel for the defendant for perusal during the course of hearing of the case. Non supply of copy of this document earlier, to my mind, does not prejudice the defendant in any manner. This brings me to the decision on issues framed in the Suit.
(10) Issue No.1 : This issue pertains to vires of amendment to the Delhi Rent Control Act, w.e.f. 1st December 1988 and to the legality and validity thereof. So far as this Court is concerned, this matter stands concluded vide the judgment of-a Division Bench of this Court in the case of D.C. Bhatia etc. Vs. Union of India, 1991(1) Delhi Lawyer 292. It has been submitted by counsel for,the defendant that the said judgment has been challenged in the Supreme Court and the matter is pending there. As at present the said judgment holds the field and is binding. Therefore, issue No.1 is decided against the defendant.
(11) Issue No.2 : The lease deed dated 25th November,1981 is an admitted document. The plaintiff has filed photocopy as well as original of the said registered lease deed. The defendant in its written statement admitted execution of the said lease deed. During the course of hearing, doubt has been sought to be created by urging that the original lease may be some different document since the one which is placed on the record has not been proved through statement of any of the parties to the. suit. As already observed the plaintiff has filed the original lease deed. The defendant has not filed any other document to suggest that that was the lease deed between the parties and not one filed by the plaintiff. The onus of the issue is on the defendant. Therefore, the plea of the defendant regarding identity of the lease deed is not sustainable. The lease deed was for a period of three years effective from 1st March,1985 with option to the defendant for its extension of two years as per para 4 of the lease deed. The defendant exercised the option as per its original letter placed on record by the plaintiff which the defendant has not disputed. Therefore, the lease expired on the expiry of five years from 1st March,1982. In the face of this provision in the lease deed and the defendant's own letter dated 9th January,1985 exercising option for extension of the lease for a further period of two years, this issue has to be decided against the defendant.
(12) Issue No.3 : The defendant has failed to say anything to substantiate the issue. A bare perusal of section 53A of the Transfer of Property Act shows that the said provision is not applicable to a case of 'the present type. Therefore, Section 53A of the Transfer of Property Act is not at all attracted and the issue is decided against the defendant.
(13) Tissue No.4 : Counsel for the defendant has strongly urged that the present suit is liable to be stayed in view of the provisions of sections 22(1) and (2) of the Sick Industrial Companies (Special Provisions) Act,1985. As already noticed the Board for Industrial and Financial Reconstruction has already ordered that the Act does not debar institution of the proceedings of the present suit. The Appellate Authority of the Board has also given similar opinion and has relied on the judgment of the Supreme Court reported as Shri Chamundi Mopeds in . Copies of the orders of the Bifr as well as the Appellate Authority have been placed on record. To get out of the said orders of the Authority under the Sick Industrial Companies (Special Provisions) Act,1985, counsel for the defendant has particularly relied on provisions of Section 22(3) thereof. He submits that the stage under Section 16 and 17 is already over so far as the defendant company is concerned and, therefore, operation of all contracts etc. is liable to be suspended.
(14) According to him lease deed being a contract is covered under the said provisions. Counsel, however, fairly conceded that the Board has not passed any order or declaration as envisaged in Sub-Section 3 of Section 22. In view of this, no reliance can be placed on the' said provision. The result of this is that the present suit is not liable to be stayed. The issue is decided against the defendants.
(15) Issue No.5 : Issue No.5 relates to validity of termination of tenancy of the defendant. The defendant has replied to the notice. The reply of notice of termination of tenancy has not been disputed. The onus of the issue is on the defendant. Counsel for the defendant did not say anything on the question of validity of the notice or regarding validity of termination of tenancy as per the said notice. The only argument that was advanced was that the plaintiff has not proved the notice on record and, therefore, the Court can not come to any conclusion on this issue in the absence of the notice. In this connection, it will be recalled that the plaintiff has placed office copy of the notice on record as well as the original returned envelope sent to the defendant at one of its addresses which contains one of the original notice addressed to the defendant 'by the plaintiff. On the contrary if the notices placed on record by the plaintiff were not ones which were served on the defendant, the defendant ought to have placed the "actual" notice received by it and which ought to be in its possession. The defendant has not cared to file the original notice on record. This is obviously intentional. The onus of the issue is on the defendant and the defendant has done nothing to discharge the same. During the course of hearing, the original reply to the notice of the plaintiff sent by counsel for the defendant was shown to the plaintiff and be admitted that the same was sent by him. The said reply also refers to the notice dated 24th May,1991. The defendant can not get away by simply raising a doubt about the identity of the actual notice served on it. It was for the defendant to show that the notice received by it does not validly terminate the tenancy of the defendant. The defendant can not be permitted to take advantage of its own default in not producing the original notice. Inspite of opportunity granted, the defendant has not filed any documents. Therefore, this issue has to be decided. against the defendant.
(16) In fact, the learned counsel for plaintiffs has relied on Puran Chand Vs. Motilal & others in 1964 S.C. 461 to the effect that when the tenancy expired by efflux of time, no notice is required to terminate the tenancy. I need not go into this, because I find that the defendant has failed to urge anything to show that the notice dated 24th May, 1991 served on the defendant on behalf of the plaintiff is in any manner defective or invalid.
(17) Issue No.6 : Issue No.6 is to the effect as to whether the suit of the plaintiff is false, frivolous and has been filed only to coerce and pressurise the defendant' to increase the rent or in the alternative to vacate the premises. This plea of the defendant is totally baseless, misconceived and untenable. The defendant has admittedly defaulted in payment of rent. Therefore, there is no question of coercion or pressure to increase rent. On the contrary, it is a case where the defendant is not paying any rent at all and is. continuing to occupy the premises of the plaintiffs thereby causing grave hardship to the plaintiffs. The issue is decided against the defendant.
(18) Issue No.7 : Counsel for the defendant has said nothing in support of this issue. The onus of the issue is on the defendant. Even if the defendant is holding over the premises as a tenant at sufferance on the tenancy being validly terminated, it has no right to continue in possession of the premises. Therefore, this issue is decided against the defendant.
(19) Issue No.9 : On this issue, counsel for the defendant has argued that if the tenancy expired by efflux of time on the expiry of the lease on 28th February,1987 and the defendant continued in possession of the premises thereafter, the tenancy becomes indefinite and will continue so long as the defendant continues to pay rent. Nothing has been shown to support such a plea. At best after the expiry of the period of lease the tenancy becomes one from month to month and could be terminated by notice. I have already held that the tenancy was duly terminated through a valid notice. Therefore, nothing survives in this issue.
(20) In this context counsel for the defendant has also urged that if the tenancy expired on 28th February,1987 the tenancy from month to month would be deemed to have commenced w.e.f. 29th February,1987 and the month of tenancy will thereby be 29th of each month to 28th of the next month. He goes on to say that thereby the notice in the present case terminating the tenancy w.e.f. night between 30th Junc,1991 and 1st July,1991 will be invalid. For this he relies on D.G. Devakate Vs. V. Marutirao in 1975 S.C.1111. To say the least, the argument is preposterous. If in the year 1987 there was no date as 29th February how could the tenancy be taken to have commenced w.e.f. 29th February, 1987?" The next calendar date after 28th February,1987 was 1st March,1987 and, therefore, the month of tenancy will remain as from 1st of each month up to last date of the month. The issue is decided against the defendant.
(21) The result of the above discussion is that the suit of the plaintiff for possession of the property bearing No.11, Community Centre, Basant Lok, Vasant Vihar, New Delhi and as per the tenancy terms comprising of the ground floor, first floor, basement, loft and mezzanine floor and projector as per the plan filed by the plaintiff is decreed with costs.
(22) So far as issue No.8 and, 10 are concerned, parties are granted time to file further documents, if any, within four weeks Along with their respective lists of witnesses and the matter be listed before the Joint Registrar for admission/ denial of documents. He will fix the suit thereafter before Court for fixing dates of trial for decision on the said issues.