Delhi District Court
Sh. Darshal Lal Verma vs Sh. Vijay Chopra on 25 February, 2015
Suit No.19/14
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL DISTRICT JUDGE03, WEST,
TIS HAZARI COURTS, DELHI.
Suit No. 19/14
In re:
Sh. Darshal Lal Verma
S/o Late Sh. Ram Sarup Verma,
R/o A2192, Gate No.5,
Green Field, Faridabad,
Haryana ...Plaintiff
Versus
Sh. Vijay Chopra,
S/o Sh. S.R. Chopra,
R/o J7/86, Rajouri Garden,
New Delhi ......Defendant
Date of institution of suit : 04.06.2010
Date of order : 25.02.2015
ORDER:
1. By this common order, I shall decide the following three applications:
(i) an application under Order VII Rule 11(b) read with Section 151 CPC dated 15.09.2011 preferred by the defendant for rejection of plaint;
Darshan Lal Verma v. Vijay Chopra Page No. 1/13 Suit No.19/14(ii) an application under Section 151 CPC filed on behalf of the defendant on 05.12.2014 for dismissal of the suit; and
(iii) an application under Order XII Rule 6 CPC moved by the plaintiff seeking decree of possession on the basis of admissions.
2. The brief background relevant for the disposal of all the above applications is as under:
2.1 The plaintiff instituted this suit for possession, recovery of arrears of rent and damages in respect of property no. J7/86, Ground Floor, Rajouri Garden, New Delhi (hereinafter referred to as 'suit premises') averring that he is the owner/landlord thereof and had let out the same to the defendant in the year 2001 at a monthly rent of Rs. 8800/ exclusive of water and electricity charges; that since no registered lease deed had been executed between the parties, the tenancy of the defendant was a month to month tenancy; that the period of lease was extended from time to time with enhancement of rent and the defendant lastly paid rent at the rate of Rs. 11,000/ per month; that with the passage of time, the defendant started committing defaults in payment of rent; that vide legal notice dated 10.10.2009, the Darshan Lal Verma v. Vijay Chopra Page No. 2/13 Suit No.19/14 tenancy of the defendant was terminated and he was asked to hand over the vacant and peaceful possession of the suit premises but he refused to accept the notice; that as an abundant precaution, again a legal notice dated 07.03.2010 under Section 106 of Transfer of Property Act was sent to the defendant calling upon him to vacate the suit premises failing which he would be liable to pay damages at the rate of Rs. 35,000/ per month w.e.f. 01.04.2010; that despite being served with the notice on 11.03.2010, the defendant failed to vacate the suit premises and thus the plaintiff was constrained to file the suit.
2.2. In his written statement, though the defendant admitted that the suit premises had been let out to him by the plaintiff at the monthly rent of Rs. 8800/ and that the rate of rent had been enhanced to Rs. 11,000/ per month w.e.f April, 2008 but he claimed that he is now in possession of the suit premises not as a tenant but in the capacity of purchaser. According to the defendant, the brother in law of the plaintiff, who used to collect rent from him, had entered into an agreement to sell the suit premises with him on behalf of the plaintiff and had also received the total sum of Rs. 31,00,000/ from him against receipts dated 24.08.2008, 22.12.2008 and 24.04.2009. He Darshan Lal Verma v. Vijay Chopra Page No. 3/13 Suit No.19/14 denied the receipt of legal notices dated 10.10.2009 and 07.03.2010 and alleged that the present suit had been filed by the plaintiff to avoid the execution of sale deed.
3. I have heard the counsel for both the parties and perused the record.
4. Firstly, I shall take up the application under Order VII Rule 11(b) read with Section 151 CPC preferred by the defendant. In the application, it has been averred that the market value of the suit property is Rs. 75,00,000/ and therefore the plaintiff was required to pay advalorem court fees on the plaint. According to the defendant, since the suit has been undervalued by the plaintiff and the court lacks the pecuniary jurisdiction to try and entertain the suit, the plaint is liable to be rejected. It is a settled law that in order to determine the issue of court fees, the plaint as a whole has to be read in order to see the allegations made and to ascertain the reliefs claimed and the decision of this issue can not be influenced either by the plea taken by the defendant or by the final decision of the suit on merits. A bare reading of the plaint shows that it is a landlordtenant dispute wherein the plaintiff/landlord seeks to recover possession of the tenanted premises from the defendant/tenant. In view of the case set up Darshan Lal Verma v. Vijay Chopra Page No. 4/13 Suit No.19/14 by the plaintiff, it is clear that the present suit falls within the purview of Section 7 (xi)(cc) of the Court Fees Act which requires the plaintiff/landlord to value the suit at the annual rent of the premises. Admittedly, the rent was lastly paid by the defendant at the rate of Rs. 11000/ per month. In para no. 19 of the plaint, the plaintiff has valued the relief of possession at Rs.1,32,000/ (Rs.11,000 x 12) for the purpose of court fees and jurisdiction and has affixed the advalorem court fees thereon. Thus, the suit has been rightly valued by the plaintiff. The application under Order 7Rule 11 (b) preferred by the defendant is completely without merits and is accordingly dismissed.
5. In his application under Section 151 CPC filed on 05.12.2014, the defendant has sought dismissal of the suit on the ground that the plaintiff, who is a resident of England and has acquired British Citizenship, has voluntarily given up the citizenship of India and therefore, a foreigner can not invoke the jurisdiction of Indian court. Besides the fact that the counsel for the defendant has failed to cite any legal provision on the above aspect, the present suit is governed by the provisions of the Transfer of Property Act, 1882. This Act deals with the various modes of transfer of immovable properties and extends over the whole of Darshan Lal Verma v. Vijay Chopra Page No. 5/13 Suit No.19/14 the territory of India. It is not the nationality of the litigant but the location of the subject matter which is the determining factor. The very fact that the property in question is situated within the local limits of the territorial jurisdiction of this court, the suit for possession in respect thereof is very much maintainable before this court. The application under Section 151 CPC is therefore dismissed.
6. Now coming to the application under Order XII Rule 6 CPC filed by the plaintiff, it is trite that in order to be entitled to a decree for possession against the tenant, the landlord/plaintiff must show that there exist clear and unambiguous admissions of the following facts by the tenant/defendant:
a) relationship of landlord and tenant between the parties;
b) rate of rent of the premises is more than Rs. 3,500/ per month so as to bring the case out of the purview of the Delhi Rent Control Act; and
c) tenancy of the tenant has either expired by efflux of time or stands terminated by a notice under Section 106 of the Transfer of Property Act, 1882.
In the present case, induction of the defendant as a tenant in the Darshan Lal Verma v. Vijay Chopra Page No. 6/13 Suit No.19/14 suit premises by the plaintiff is not in dispute. Admittedly, no registered lease deed had been executed between the parties. Thus, the defendant was only a month to month tenant in respect of the suit premises. It is also admitted that the rate of rent of the suit premises stood enhanced to Rs.11,000/ in April, 2008. The counsel for the plaintiff has submitted that in view of the above admissions by the defendant coupled with the termination of his tenancy vide notice dated 07.03.2010, the plaintiff is entitled to a decree of possession under Order XII Rule 6 CPC. The application has been vehemently opposed by the counsel for the defendant. Her arguments are two fold. Firstly, that the termination notice dated 07.03.2010 was not served upon the defendant and secondly, that the possession of the defendant is protected under Section 53A of the Transfer of Property Act being the purchaser of the suit premises. A perusal of the record shows that the plaintiff has placed on record the copy of the legal notice dated 07.03.2010 and the signed AD card stated to have been received from the defendant. Though the original postal record has not been produced but proposition of law on this score is well settled. While relying upon the judgment in Nopany Investments (P) Ltd. V. Santokh Singh (HUF), 146 (2008) DLT 217 (SC), it has been held by the Hon'ble High Darshan Lal Verma v. Vijay Chopra Page No. 7/13 Suit No.19/14 Court of Delhi in Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Anr., 183 (2011) DLT 712 that even if it is not proved that a termination notice was served prior to the filing of the suit, service of the summons of the suit can be taken as a notice under Section 106 of the Transfer of Property Act and the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. In the light of the above pronouncement, it follows that even if the defendant did not receive the termination notice dated 07.03.2010, his tenancy stood terminated upon expiry of 15 day's from the service of the summons on 21.07.2011. In support of her second contention that the defendant is in possession of the suit premises in the capacity of owner and that the plaintiff can not seek possession as he had agreed to sell the suit premises to the defendant and had also received a total amount of Rs. 31,00,000/ from the defendant, the counsel for the defendant has drawn the attention of the court to the photocopy of the receipts dated 24.08.2008, 22.12.2008 and 24.04.2009 alleged to have been issued by one Sh. Sunil Kumar, (i.e. the partner of the plaintiff) to the defendant. For the sake of convenience, the contents of the said receipts as reproduced as under:
Darshan Lal Verma v. Vijay Chopra Page No. 8/13 Suit No.19/14" Recd. Rent from Vijay Chopra for the month of 20 th April to 20th May and 20th May to 20th June Rs. 19,000/ (Rs. Nineteen Thousand only) and Rupees Eleven lakh (Rs. 11 lac) only against the sale of above floor as advance.
(Dated) 24.08.2008".
" Recd. Rs. 11,000/ Eleven Thousand Only from Vijay Chopra, rent for the month of 22.11.2008 to 22.12.2008 of J7, 86, G/F, Rajouri Garden, New Delhi and Rs. Ten lac (Rs. 10 lac) against sale of above floor as advance.
(Dated) 22.12.2008".
" Recd. Rs. 11,000/ Eleven Thousand Only from Vijay Chopra, rent for the month of 20.03.2009 to 20.04.2009 of J7, 86, G/F, Rajouri Garden, New Delhi and Rs. Ten lac only (Rs. 10 lac) against sale of above floor.
(Dated) 24.04.2009".
Besides the fact that the genuineness of the above receipts has been disputed by the plaintiff, no agreement to sell in writing between the parties has been produced on record. Further, the question which arises for consideration is whether the defence of agreement to sell, as raised by the defendant, is a legal defence available to a tenant in a suit for ejectment filed by the landlord. In this regard reference may be made to Sunil Kapoor v.
Darshan Lal Verma v. Vijay Chopra Page No. 9/13 Suit No.19/14Himmat Singh & Ors., 167 (2010) DLT 806, wherein it was observed by the Hon'ble High Court of Delhi as under:
"11. 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 respondents/plaintiffs are found to have agreed to sell the property, the petitioner/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 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 petitioner 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.
12. Section 53A of the Transfer of Property Act 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, in the present case, there is not agreement to sell in Darshan Lal Verma v. Vijay Chopra Page No. 10/13 Suit No.19/14 writing.
15. What follows in that even if the petitioner/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 decree, if any, in favour of the petitioner, the petitioner has no ground in law to save his possession of the premises. The status of the petitioner would continue to be as before i.e. of a tenant whose tenancy has been determined.
16. Once that is found to be the position in law, the defence of the agreement to sell is not a legal defence available to the petitioner in the suit for ejectment..............."
The above legal position has also been reiterated and followed by the Hon'ble High Court in Kasturi Lal Mehra v. Narshi Pharmaceutical & Surgical Pvt. Ltd., 2014 (141) DRJ 596. In view of the law laid down in the above cited judgments, it is clear that the defence of agreement to sell is not a legal defence available to the defendant. Here, it is also pertinent of mention that though the defendant had filed a suit for specific performance bearing no.2791/12 titled as 'Vijay Chopra & Anr.
Darshan Lal Verma v. Vijay Chopra Page No. 11/13 Suit No.19/14Vs. Darshan Lal Verma & Anr.' against the plaintiff herein before the Hon'ble High Court of Delhi but had withdrawn the same on 05.03.2014.
Reference may be made to P.P.A. Impex Pvt. Ltd. Vs. Mangal Sain Mittal, 166 (2010) DLT 84 (DB) wherein with regard to the approach to be adopted by the courts under Order XII Rule 6 CPC, it has been observed thus:
" It appears to us that the approach to be taken under Order XII Rule 6 CPC is akin to what has been enunciated by the Supreme Court in Mechalac Engineers & Manufacturers Vs. Basis Equipment Corporation, 13 (1977) DLT 90 (SC)=(1976) 4 SCC 687, in the context of Order 37 of the CPC with regard to granting leave to defend a summary suit.
This is that if a defence amounting to moonshine has been presented, it should be summarily dismissed by not granting leave to defend and by decreeing the suit forthwith. The Courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial"
Darshan Lal Verma v. Vijay Chopra Page No. 12/13 Suit No.19/14Following the above approach and keeping in view the clear and unambiguous admission of the defendant with regard to the creation of tenancy, rate of rent being Rs. 11,000/ per month coupled with its termination upon the service of summons of the suit, the plaintiff is entitled to a decree for possession in respect of the suit premises under Order XII Rule 6 CPC.
In the light of above discussion, the application under Order XII Rule 6 CPC filed by the plaintiff is allowed and a decree of possession in respect of the suit premises bearing no. J7/86, Ground Floor, Rajouri Garden, New Delhi is passed in favour of the plaintiff and against the defendant. Preliminary decree sheet for possession be prepared accordingly.
7. All the above applications stand disposed of accordingly.
Announced in the open court (Smita Garg)
on 25.02.2015 Addl. District Judge03 (West)
Tis Hazari Courts, Delhi.
Darshan Lal Verma v. Vijay Chopra Page No. 13/13