Delhi District Court
Dr. Ashok Kumar Aggarwal vs Sh. Ketan Patel on 8 June, 2012
In the court of Ms. Ina Malhotra, Additional District JudgeI
New Delhi District, Patiala House Courts, New Delhi
Suit No.20/12
Dr. Ashok Kumar Aggarwal
S/o Sh.D.C.Aggarwal
R/o V10/2, DLF PhaseIII, Gurgaon
(Karta of Dalip Chand & sons HUF) ........Plaintiff.
V E R S U S
Sh. Ketan Patel
S/o Sh. D.V.Patel
R/o EIII, White House,
10, Bhagwan Dass Road, New Delhi
Also at:
Ghelwad, Falia, Dabhel, DAMAN
PIN: 396210 ........Defendant
PLAINT PRESENTED On: 21.01.2012
ARGUMENT CONCLUDED On: 07.06.2012
JUDGMENT On: 08.06.2012.
J U D G M E N T
Arguments have been concluded in the plaintiff's application under Order 12 Rule 6 CPC.
2. The plaintiff's suit is for possession of his immovable property and for mesne profits/damages. The plaintiff, having Suit No.20/11 Page 1 of 12...
superannuated from Government service had to vacate the government accommodation alloted to him and required possession of his own house. While in service, he had leased out his flat no. EII, White House, 10, Bhagwan Dass Road, New Delhi to the defendant on a monthly rent of Rs.45,000/. A lease agreement dated 20.07.2009 was executed which was renewed on 02.07.2010 for another year. Having no roof over his head, he did not extend the lease and requested the defendant to vacate the premises. In addition to his oral requests, the plaintiff also wrote several letters and reminders but the defendant did not pay any heed. Though the tenancy of the defendant expired on 31.05.2011 by efflux of time and the defendant's continuance in the suit premises was at sufferance, to obviate any legal technicality, the plaintiff also took steps to terminate the monthly tenancy of the defendant vide legal notice dated 09.11.2011, calling upon him to vacate the suit premises by 30.11.2011. He also made it abundantly clear that failure to handover possession would make the defendant liable to pay mesne profits/damages @ Rs. 2,00,000/per month and initiation of legal proceedings would be at his costs and expenses.
3. As per the plaintiff, the defendant on receipt of the Suit No.20/11 Page 2 of 12...
notice assured the plaintiff that he would vacate and handover possession before 10th December 2011, but the plaintiff being in dire need of the premises for his own residence did not agree to give any time beyond 30.11.2011. He could not retain the government accommodation after 31.12.2011 even on payment of market rent.
The defendant was also in arrears of rent from 01.06.2011 till the filing of the suit.
4. The plaintiff has stated that after service of his legal notice dated 09.11.2011 terminating the tenancy, in December 2011 the defendant without any intimation, transferred a sum of Rs. 50 lakhs electronically through RTGS in his account maintained with Bank of India, Hauz Khas Branch. He was informed by his banker about the same. On his inquiry, the defendant's explanation was that he had intented to vacate, but as suitable accommodation was not found, this amount was sent to the plaintiff's account to show his bonafides and that the plaintiff could deduct the rent from the same. It is further the plaintiff's case that on 08.01.2012 when he visited the suit premises, he found the premises locked. Outside his flat, he found a property dealer with two persons negotiating the rent for his flat, stating Suit No.20/11 Page 3 of 12...
that it was available for rent. It appeared that the defendant was in the process of subletting the flat to create multiplicity of proceedings in getting the flat vacated. He therefore took steps to file the present suit.
5. The defendant in his written statement admits execution of the lease agreements dated 20.07.2009 and on 02.07.2010 and being inducted as lessee in the suit premises on a monthly rent of Rs.45,000/. Vide the renewal dated 02.07.2010, the lease was extended upto 31.05.2011. The defendant however states that the plaintiff expressed his desire to sell the flat and a deal was struck for a sale consideration of Rs.1.75 crores. He alleges that he handed a sum of Rs. Fifty Lakhs in cash and transferred another Rs. 50 lakhs to the plaintiff's account through RTGS. It is his case that he asked for a draft agreement which was sent to him by the plaintiff in his own handwriting.
6. The plaintiff has denied execution of any agreement or receipt of Rs. 50 lakhs in cash. He has stated that the defendant transferred Rs. 50 lakhs to his account through RTGS, without any authority or intimation. He has therefore taken steps to remit the amount vide pay orders in Court after adjusting his claim for arrears of rent. These pay orders in favour of the Suit No.20/11 Page 4 of 12...
defendant are on record as the defendant declined to accept them despite the Court's observation that he may do so without prejudice to his rights in the suit.
7. In the light of these facts, the plaintiff's application under order 12 Rule 6 CPC is taken up for adjudication.
8. For a suit for possession where the rent is over Rs. 3,500/ per month, the only requirement to decree it in favour of the plaintiff is a tenantlandlord relationship and its due determination. Besides admitting the tenantlandlord relationship in the written statement, the defendant in his examination under Order X CPC has admitted being a lessee in the premises at a rent of Rs. 45,000/ per month. He admitted execution of the two lease deeds. The legal notice terminating the lease is on record along with its postal record. As per a catena of judgments, there is nothing left to prove a legal notice at trial if the original postal receipts are on record.
9. Though the above facts entitle the plaintiff to a decree for possession under Order 12 Rule 6 CPC, the matter has been confounded by the defence put forth by the defendant. I am therefore dealing with the defence put forth by the defendant in this case to resist possession. What is therefore required to be Suit No.20/11 Page 5 of 12...
seen is whether the defence put forth is sustainable and legally tenable, or has merely been raised to protract trial. The defendant has stated that the plaintiff had agreed to sell the flat to him for consideration of Rs. 1.75 crores. He has stated that he had given Rs. 50 lakhs in cash, a fact categorically denied by the plaintiff. In his examination under Order X CPC, this Court asked him if he could produce any acknowledgment or receipt. The defendant admitted he had none. It is highly unbelievable that such a huge amount would have been given without seeking any receipt even on a plain piece of paper. Any other sort of oral testimony cannot be given credence to.
10. The plaintiff has stated that the defendant unauthorisedly transferred Rs. 50 lakhs to his account through RTGS. The particulars of the bank account were available with the defendant as he used to transfer the rent through RTGS. The defendant has admitted in the examination under Order X CPC that he used to transfer the rent to the plaintiff's account through RTGS.
11. The next point for consideration is the defendant's reliance on a draft agreement, photocopy of which is on record. This document does not bear any signature of either parties, nor Suit No.20/11 Page 6 of 12...
does it mention the sale consideration.
12. Given the facts of the case, the draft agreement relied upon by the defendant being an unsigned document, much less a registered one, cannot create any binding liability on either party. The plaintiff has attributed mischief to the defendant in using an unsigned draft bereft of any sale consideration. The document relied upon by the defendant cannot be said to create a contractual liability or a right enforceable under law.
13. Ld. Counsel for the defendant has argued that the relief under Order 12 Rule 6 CPC is a discretionary one and given the fact that a defence has been raised, due opportunity has to be given to the defendant to substantiate his case. Ld. Counsel for the defendant is right in so far as this proposition is concerned, but the Court cannot be blind to the evidenciary value of the defence taken. It has been opined by the superior courts time and again that frivolous litigation should see the end as soon as possible. The defence raised by the defendant is of having entered into a legally binding contract. I am unable to appreciate the enforceability of such a document as it is admitted that document is neither signed by the plaintiff nor mentions any sale consideration. The plaintiff has refuted receipt of any payment of Suit No.20/11 Page 7 of 12...
Rs. 50 lakhs in cash. The defendant is unable to produce even a simple receipt for the same. As observed earlier, any amount of oral evidence cannot corroborate his submission. The defendant was acquainted with the bank account of the plaintiff since he used to transfer the rent through RTGS. His deposit of Rs. Fifty Lakhs at one go to an account with which he was well acquainted, without showing any authorisation from the plaintiff or an agreement in this respect is a novel way of grabbing property.
14. Ld. Counsel for the defendant has also placed reliance on certain Judgments and has stated that decree on admission is not a matter of right. There is no doubt about it, but the discretion by the court has to be exercised judiciously and lack of exercising discretion itself is inequitable.
15. Reliance has been placed in the matter of Arun Kumar Jain & Another Versus Raghubir Saran Charitable Trust & others reported in 144 (2007) Delhi Law Times 43 (DB). The facts of this case are distinguishable from the facts of the present case, inasmuch as the lessor thereon had accepted a cheque upon execution of an agreement and had even taken steps to deposit the same in his account. In the present case, there is no Suit No.20/11 Page 8 of 12...
valid agreement on record. The submission of the tenant that he had paid Rs. Fifty Lakhs in cash is not corroborated by any receipt or acknowledgment. The transfer of Rs.Fifty Lakhs made by defendant is opposed by the plaintiff as being unauthorised, and the plaintiff has taken steps to return the same vide pay orders filed in court. In view of the aforesaid facts, I do not find the defence put forth is tenable. Mere transfer of an amount into someone's account without any corroboration of it being towards a sale consideration, is legally not sustainable.
16. On behalf of the plaintiff, Ld. Counsel has pointed out that notice terminating the tenancy was issued on 9.11.2011. The defendant has taken steps to deposit this amount in the plaintiff's account after termination of tenancy, He has stressed upon the fact that the plaintiff needed the residence for his own use having to vacate the Government accommodation on his superannuation from Government Service. Ld. Counsel for the plaintiff has also relied upon the decision of the Hon'ble Madras High Court in the matter of K Mani Vs. M.D. Jayavel and others reported in 2012 (1) RCR 111 wherein it has been held that an agreement for sale which is not registered does not entitle Suit No.20/11 Page 9 of 12...
a tenant the benefit of Section 53A of Transfer of Property Act and in view of Section 17 (1A) of Registration Act such an agreement to sale is unenforceable. A mere agreement for sale does not terminate the landlordtenant relationship and the tenant does not acquire any right in the property. A tenant is liable to be evicted if the tenancy has been validly terminated. In the matter of Abhinav Outsourcing Pvt Ltd. Vs. Sunita Seth reported in 186 (2012) DLT 689, the Hon'ble High Court of Delhi has held that the only relevant factors required are a tenant landlord relationship and determination of lease by a notice. The Hon'ble High Court of Delhi in various cases has also held that even the service of summons in a suit can always be treated as notice under Section 106 of Transfer of Property Act.
17. On hearing both the counsels, this court is of the view that given the facts of the case, even if an opportunity was to be granted to the defendant to lead evidence in the first instance on the document relied, i.e. photocopy of an unsigned alleged agreement with no sale consideration mentioned, it would not form the basis of continuing occupancy in the said premises. In any event, the relief of specific performance of an agreement is Suit No.20/11 Page 10 of 12...
different and distinct from the relief for possession, and as per Judgments of the Superior courts, the suit for possession cannot be curtailed merely on grounds of invoking specific performance.
18. On applying the law laid down in the judgments cited above, I find merit in the plaintiff's application under order 12 R 6 CPC. That facts relevant for granting possession exist loud and clear. The defence raised by the defendant of an agreement for sale remains a mere averment, legally unsustainable without any further corroboration. The defendant has not alleged that there are any other documents in his possession on which he would rely upon.
19. Given these facts, it is not always necessary that admission should be clear and categorical to decree a suit under Order 12 Rule 6 CPC. Admission of facts relevant to the issue, whether specific, express or constructive, are deemed sufficient to pronounce judgment thereon. As frivolous litigation should see its end at the earliest, there is hardly any need for the plaintiff to go through the rigmoral of a protracted trial. It would indeed be a travesty of justice if every tenant could get his way for a lengthy trial merely by transferring a fair enough amount on line to the owner's account and hold him at ransom for specific performance Suit No.20/11 Page 11 of 12...
for sale of his property. The action of the defendant only reeks of an attempt to create legal entangles.
20. Judicial notice is also being taken of the fact that the property sought to be purchased by the defendant is situated in a prestigious building and at a prime location for which the defendant alleges the sale consideration is Rs.1.75 crores only. Even a DDA flat, in far remoter colonies of Delhi, would fetch a much higher consideration!
21. Given the facts, a decree of possession under Order 12 Rule 6 CPC in respect of Flat No. EII, White House 10, Bhagwan Dass Road, New Delhi is passed in favour of the plaintiff and against the defendant. Decree sheet be prepared.
22. With respect to the plaintiff's entitlement for mesne profit and damages an issue shall be framed granting opportunity to both the parties to join in the inquiry.
Announced. (Ina Malhotra)
Addl.District JudgeI
New Delhi District PHC
New Delhi 8.06.2012
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