Delhi District Court
M/S. Appl Industries Ltd vs Shri Tirath Ram P. Sahni on 23 April, 2010
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, DISTRICT JUDGE-II CUM
ADDL. RENT CONTROL TRIBUNAL (NORTH) TIS HAZARI
COURTS, DELHI
ARCT No. 03/2010
Date of institution: 19.09.2009
Judgment reserved on: 12.04.2010
Judgment pronounced on: 23.04.2010
M/s. APPL Industries Ltd.,
A company incorporated
under the Companies Act, 1956
Having its registered office at
D-114, Mansarovar Garden,
Kirti Nagar, New Delhi-110015 ......... Appellant
Versus
1. Shri Tirath Ram P. Sahni
S/o Shri Pishori Lal Sahni
2. Shri Ascharaj Lal P. Sahani
S/o Shri Pishori Lal Sahni
3. Shri Krishan Amla
S/o Shri Tirath Ram Amla
4. Shri Charanjeet Singh A Sodhi
S/o S. Amarjeet Singh
Trustees of S.P. Sahni Trust
42, DLF Industrial Area,
New Delhi .....Respondents
--------------------------
ORDER
This is an appeal under Section 38 of Delhi Rent Control Act against order dated 01.09.2009, passed by learned Additional Rent Controller (West), Delhi.
ARCT-03/2010 Page 1 of 17 -: 2 :-2. Succinctly, stated the facts giving rise to the present appeal are that respondents herein filed a petition under Section 14 (1) (b) of Delhi Rent Control Act against the appellant. The case of the respondents is that premises consisting of ground floor, first floor and second floor forming part of 42, DLF, Industrial Area, Moti Nagar, Najafgarh Road, New Delhi were let out to M/s. AALEKH POLYMERS PVT. LTD at a monthly rent of Rs.266.20 Paisa, excluding of other charges. Said firm M/s. AALEKH POLYMERS PVT. LTD amalgamated with the respondent under the Scheme of Amalgamation sanctioned by the Hon'ble High Court vide order dated 10.01.2006 and the appellant is in possession of the premises in question. The tenant M/s. AALEKH POLYMERS PVT. LTD parted with the possession of the premises in question and assigned the suit premises to the appellant under the scheme of amalgamation. The respondent sent cheque for Rs.1597.20 Paisa, the respondent No.2 herein called upon the appellant to explain as to why said cheque was sent. Then, the appellant sent copy of order of amalgamation dated 10.01.2006. The respondent, for the first time, came to know about the said amalgamation on receipt of said copy. The tenant M/s. AALEKH POLYMERS PVT. LTD parted with the possession of premises in dispute and assigned the premises in dispute to the appellant under the scheme of amalgamation sanctioned on 10.01.2006, without obtaining consent in writing of the respondents and appellant is liable to be evicted.
ARCT-03/2010 Page 2 of 17 -: 3 :-3. The appellant contested the petition by filing written statement on the grounds interalia that the respondents have no locus standi to file the present petition, no cause of action arose in favour of respondents and the petitioner has not come to the Court with clean hands. The lease agreement was executed between Shri Sanjay Kumar Setia and M/s. AALEKH POLYMERS PVT. LTD on 30.12.1989. On merits, it is stated that premises in question were let out to M/s. AALEKH POLYMERS PVT. LTD vide lease agreement dated 30.12.1989 executed between Shri Sanjay Kumar Setia and M/s. AALEKH POLYMERS PVT. LTD, lessor Shri Sanjay Kumar Setia was tenant vide lease agreement dated 01.12.1988. The tenant M/s. AALEKH POLYMERS PVT. LTD merged with the appellant vide order dated 10.01.2006, passed by Hon'ble High Court in a Company Petition, the appellant is nothing but the authorized company who has succeeded all the rights and liabilities of M/s. AALEKH POLYMERS PVT. LTD. The appellant issued cheque No. 262712 for Rs.1597.20 Paisa towards rent w.e.f. February-2007 to July-2007 and another cheque No. 179943 dated 01.08.2007 from August-2007 to January- 2008, said cheques were not deposited by the respondents in their account for the reasons best known to them. The factum of amalgamation was duly conveyed to the respondent on telephone immediately after the order was passed by Hon'ble High Court and copy of the order dated 10.01.2006 was also delivered to the respondents. It is also stated that tenant M/s. AALEKH POLYMERS PVT. LTD was authorized to sublet the property to any third party as per clause 4 of the lease deed and the premises in question were not ARCT-03/2010 Page 3 of 17 -: 4 :- sublet by M/s. AALEKH POLYMERS PVT. LTD. The petitioner filed replication to the written statement, denied the allegations and reiterated the plea taken in the petition.
4. An application under Order XII Rule 6 CPC and Section 151 CPC dated 05.05.2008 was filed on behalf of respondents. The appellant file reply to the said application. After considering the pleas taken by both the parties, an order of eviction was passed by learned trial Court vide impugned order dated 01.09.2009.
5. Feeling aggrieved by the said order, the appellant has preferred the present appeal. During pendency of the appeal, an application under Order 41 Rule 27 CPC and Order VI Rule 17 CPC dated 19.03.2010 was filed on behalf of appellant. The respondents filed reply to the said application.
6. I have heard Shri Sudhir K. Sukhija Advocate, learned counsel for the appellant and Shri Kalka Prasad Aggarwal Advocate, learned counsel for respondents on the application under Order 41 Rule 27 CPC and Order VI Rule 17 CPC as well as on appeal at length. I have also carefully gone through material on record.
7. Firstly, I will take up application under Order 41 Rule 27 CPC and Order VI Rule 17 CPC. Learned counsel for the appellant submitted that provisions of Order XII Rule 6 CPC are not mandatory and respondents cannot claim Judgment under Order XII Rule 6 CPC ARCT-03/2010 Page 4 of 17 -: 5 :- as a mater of right. In support of his submission, he has relied upon Judgments in case titled as Balraj Taneja & Anr. Vs. Sunil Madan & Anr reported as (1999) 8 Supreme Court Cases 396 and another case titled as State Bank of India Vs. M/s. Midland Industries & Ors reported as AIR 1988 Delhi 153.
8. Learned counsel for the appellant submitted that the lease deed dated 01.12.1988 was executed between M/s. Sahni Industrial Estate and Shri Sanjay Kumar Setia, according to para 4 of the lease deed, the lessee was permitted to sublet the property in dispute and according to para 16 of the said lease deed in case of any dispute, same was required to be referred to Delhi Courts for arbitration by any retired High Court Judge whose decision shall be binding on the lessor and the lessee as well. He pointed out that earlier appellant was represented by some other Advocate who could not mention the real facts and legal preposition in the written statement.
9. Mr. Sukhija Advocate, learned counsel for the appellant submitted that the appellant wants to amend the written statement as mentioned in para 10 of the application. As per para 10 of the application, the appellant wants to add preliminary objections that the lease deed dated 01.12.1988 was executed between M/s. Sahni Industrial Estate and Shri Sanjay Kumar Setia, as per para 4 of the lease deed, the lessee was entitled to sublet the said property in dispute and as per para 16 of the said lease deed dated 01.12.1988 in case of any dispute, same shall be referred to Delhi Courts for ARCT-03/2010 Page 5 of 17 -: 6 :- arbitration by any retired High Court Judge, whose decision shall be binding on the lessor and the lessee as well. The suit is not maintainable because there is an arbitration clause. The petitioner has no power to sign, verify and file any suit against any person as no resolution was passed by the trust or any GPA in the eyes of law. There is no direct relationship as landlord and tenant between the appellant and the respondents because the appellant took possession from Shri Sanjay Kumar Setia, who has not been impleaded in the petition and the petition is bad for non-joinder of necessary parties. The appellant also wants to incorporate in the end of para 18 (a) (i) of the written statement that the respondent paid whatever rent on account of Shri Sanjay Kumar Setia because there is no relationship between landlord and tenant and there is no relationship between owner and the tenant as the respondents are not owner of the suit property.
10. Learned counsel for the appellant has relied upon Judgments in case titled as Rajesh Kumar Aggarwal & Ors Vs. K.K. Modi & Ors reported as (2006) 4 Supreme Court Cases 385 and case titled as Baldev Singh & Ors Vs. Manohar Singh & Anr reported as (2006) Supreme Court Cases 498.
11. On the contrary, learned counsel for the respondents urged that application is malafide and has been filed to delay the disposal of the appeal. The amendment, now sought by the appellant, is aimed at withdrawing admission made in the written statement, which is not permissible.
ARCT-03/2010 Page 6 of 17 -: 7 :-12. Learned counsel for respondents submitted that amendments seeking withdrawal of admission in the written statement is not permissible and relied upon Judgments in case titled as Heera Lal Vs. Kalyan Mal & ors reported as AIR 1998 Supreme Court 618 and Claridges Hotel Vs. M.N. Bhagat Co. reported as 2001 RLR 459.
13. Mr. Aggarwal Advocate, learned counsel for the respondents also submitted that lease agreement dated 01.12.1988 is for a period of nine years and is on a stamp paper of Rs.50/- only. Similarly, agreement dated 30.12.1989 is for a period of nine years and same is on a stamp paper of Rs.10/- only. Said lease agreements are neither sufficiently stamped nor registered and same cannot be considered.
14. I have carefully considered the submissions made on behalf of both the parties. I have also gone through the Judgments relied upon by learned counsel for appellant. In Rajesh Kumar Aggarwal's case (supra) it was held that it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. In Baldev Singh' case (supra), the principles applicable to the amendment of written statement have been explained. It was held that adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action Therefore, inconsistent defences can be raised in the written statement although the same may not be permissible in case of the plaint.
ARCT-03/2010 Page 7 of 17 -: 8 :-15. As per proviso to Order VI Rule 17 CPC the amendment of pleadings shall not be allowed when the trial of the suit has already commenced, unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
16. The legislature amended the Code of Civil Procedure and provided that Courts should be careful while allowing amendment applications and normally amendment should not be allowed, once the trial has started. The legislature intended that while the Courts have to administer justice, Courts should be careful in exercise of judicial discretion and Court should consider that provision should not be allowed to be used as a tool to deny justice by prolonging the litigation.
17. In case titled as Nisha Somaia Vs. Outlook Publishing (India) Ltd. reported as 2008 (103) DRJ 331, it was held that general rule is that pretrial amendments are allowed more liberally than those which are sought to be made after the commencement of trial as question of prejudice may arise in cases of amendment sought at a post trial stage. In the present case, the appellant has not stated in the application regarding due diligence exercised by him.
18. In case titled as Manmohan Vs. Shamlal reported as 2000 Rajdhani Law Reporter 119, it was held that plaintiff cannot seek amendment of plaint to retract admissions made by him or introduce false facts in order to prolong litigation. In the said case, application was dismissed on the ground that it was highly belated and seeks to set up a contrary and new case.
ARCT-03/2010 Page 8 of 17 -: 9 :-19. In the instant case, the petition has already been decided by learned trial Court. Hence, the application is barred by proviso to Order VI Rule 17 CPC.
20. Secondly, the respondents mentioned in para 3 (a) of the petition that they are the landlords, in para 5 of the petition it was mentioned that appellant is in possession of premises in dispute and same were not denied in the written statement. The appellant cannot be permitted to withdraw the admission, as per law laid down in Manmohan's case (supra) and Claridges Hotel's case (supra). A similar view was taken in case Heera Lal Vs. Kalyan Mal & Ors (supra).
21. Moreover, the appellant has already taken the plea regarding lease deed dated 30.12.1989 between Shri Sanjay Kumar Setia (Lessor) and M/s. AALEKH POLYMERS PVT. LTD (lessee) and clause regarding permission to sublet to any 3rd party, in the written statement. The appellant has also taken a plea that clause 4 of the lease deed permits the tenant to sublet the premises in question. The appellant has also mentioned in para 18 (a) (iv) of written statement that the tenant was authorized to sublet the premises in question to any third party, as per clause 4 of the lease deed. The application has been filed at a highly belated stage. The other proposed amendment are not necessary for effective adjudication of the present case.
ARCT-03/2010 Page 9 of 17 -: 10 :-22. As regards, Order 41 Rule 27 CPC it may be mentioned that it provides for production of additional evidence, whether oral or documentary, under three circumstances namely, (1) where the trial Court had refused to admit the evidence though it ought to have been admitted, (2) the evidence was not available to the party despite exercise of due diligence, and (3) the appellate Court requires the additional evidence so as to enable it to pronounce Judgment or for any other substantial cause. In the present case, the evidence was not recorded and the petition was decided under Order XII Rule 6 CPC. There is no question of permitting the appellant to adduce additional evidence. Thus, the application under Order 41 Rule 27 CPC and Order VI Rule 17 CPC is dismissed.
23. On merits, the first submission of learned counsel for the appellant is that premises in question were let out by Shri Sanjay Kumar Setia to M/s. AALEKH POLYMERS PVT. LTD., vide lease deed dated 30.12.1989 and as per clause 4 of the said lease deed, the lessee was entitled to sublet the property to any third party and the lessor will have no objection to the same. He also pointed out that as per clause 15 of the said lease deed if any dispute arises out of said lease deed shall be referred to Delhi Courts for arbitration by any retired High Court Judge, whose decision shall be binding on the lessor and lessee. He further submitted that the premises in dispute were not sublet, assigned or parted with by tenant M/s. AALEKH POLYMERS PVT. LTD but the said Company was merged with the appellant under scheme of amalgamation sanctioned by Hon'ble High Court vide order dated 10.01.2006.
ARCT-03/2010 Page 10 of 17 -: 11 :-24. Mr. Sukhija Advocate, learned counsel for the appellant further submitted that even if it is assumed that tenant has sublet the premises in question to the appellant, the tenant M/s. AALEKH POLYMERS PVT. LTD was permitted by lessor to sublet the premises to any person as per clause 4 of the lease deed. Hence, the ground of subletting is not made out.
25. Another submission of learned counsel for the appellant is that as per clause 15 of the lease deed dispute is liable to be referred to the Arbitrator but the respondents did not refer the dispute to the Arbitrator and present petition cannot be proceed.
26. Yet another submission of learned counsel for appellant is that provision of Order XII Rule 6 CPC are discretionary. In support of his submission he has relied upon Judgment in case titled as Balraj Taneja & Anr. Vs. Sunil Madan & Anr. reported as (1999) 8 SCC 396 and State Bank of India Vs. M/s. Midland Industries and Ors reported AIR 1988 Delhi 153.
27. In Balraj Taneja's case (supra) suit was decreed under Order VIII Rule 10 CPC and no written statement was filed. It was held that Court ought to be cautious and only on being satisfied that there is no fact which needs to be proved despite deemed admission, should proceed to pass a Judgment. In State Bank of India's case (supra), it was held that order XII Rule 6 CPC has been couched n a very wide language. However, before a Court can act under Rule 6, it must be ARCT-03/2010 Page 11 of 17 -: 12 :- clear, unambiguous, unconditional and unequivocal. Furthermore a Judgment on admission by the defendant under Order 12 Rule 6 is not a matter of right and rather is a matter of discretion of the Court, no doubt such discretion has to be judiciously exercised.
28. The last submission of learned counsel for the appellant is that petition has not been signed and verified by the competent person. He referred to the copy of General Power of Attorney dated 20.08.2004 filed by the petitioner and submitted that no specific power has been given to Shri Ascharajlal Peshori Lal Sahni to institute the petition.
29. Per contra, learned counsel for respondents contended that Shri Ascharajlal Peshori Lal Sahni is duly authorized by the respondents to sign, verify and institute the petition vide General Power of Attorney dated 20.08.2004, copy of which was filed along with the petition. He drew my attention to page 2 of the said Attorney, which reads as under:-
"To sigh, file, verify and present pleadings, applications, appeals, cross-objections or petitions for execution, review, revision, restoration, withdrawal, compromise or other petitions, replies, objections or affidavits or other documents as may be deemed necessary or proper for due prosecution of the case/cases".
30. In support of his submission, learned counsel for the respondents has relied upon Judgment in case titled as Bajaj Auto Ltd. Vs. Beharilal Kohli reported as 1989 Rajdhani Law Reporter 386 (SC) ARCT-03/2010 Page 12 of 17 -: 13 :-
31. Mr. Aggarwal Advocate, learned counsel for respondents submitted that lease deed dated 30.12.1989 is for a period of nine years, same is on a stamp paper of Rs.10/- only and same is unregistered. Hence, the same cannot be considered for any purpose. In support of his submission he has relied upon Judgment in case titled as Shalimar Tar Products Ltd. Vs. H.C. Sharma reported as 1987 Rajdhani Law Reporter (SC) 658.
32. In the instant case the copy of General Power of Attorney dated 20.08.2004 is already on record and as per clause 3 at page 2 Shri Ascharajlal Peshori Lal Sahni has been authorized to sign, verify and present the pleadings. Hence, he was competent to sign, verify and institute the petition.
33. As regards permission to sublet, it may be mentioned that lease deed dated 30.12.1989 is neither registered nor properly stamped. Hence, clause 4 regarding permission to sublet cannot be considered. In this regard reliance can be placed on Bajaj Auto Ltd.'s case (supra). In the said case there was unregistered lease deed which permits subletting only to associate firms. It was held that if a document is inadmissible for non registration, all its terms are inadmissible including the one dealing with landlord's permission to sublet.
34. In another case titled as K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd. reported as (2008) 8 SCC 564, it was ARCT-03/2010 Page 13 of 17 -: 14 :- held that if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
35. The Apex Court in case titled as Avinash Kumar Chauhan Vs. Vijay Krishna Mishra reported as I (2009) CLT 157 (SC) observed that a document which is not sufficiently stamped shall not be admissible for any purpose. It was also observed that registration of document has nothing to do with validity thereof as provided under the provisions of Registration Act.
36. In view of the law laid down in the aforesaid Judgment, lease deed dated 30.12.1989, which is insufficiently stamped and unregistered, cannot be considered. The clause regarding permission to sublet is also inadmissible in evidence.
37. Even if the clause 4 of lease deed is considered, it may be mentioned that said clause provides that the lessee shall be entitled to sublet the property to any third party. The permission to sublet is not to any specific person. A similar question cropped up in case titled as South Asia Ind. Vs. S. Sarup Sigh reported as AIR 1966 SC 346. In para 11 of the Judgment it was held that:-
"I notice that the lease gave no express right to the lessee to assign with or without the consent of the lessor. The lessee no doubt had that right under the Transfer of Property Act. It may be that under the ARCT-03/2010 Page 14 of 17 -: 15 :- clause the lessee's assignee would be included in the expression "lessee" as used in the lease; that is the entire effect of the clause. But this would be so whether the lessor had consented to the assignment or not. Therefore, this clause does not lead to the conclusion that the lessor had consented to the assignment. It is of no assistance in the present case. I am also inclined to the view that the consent contemplated assignment to a particular assignee. See Regional prop. Vs. Frankenshwerth (1951 1 ALL ER 178). Clearly the clause in the case relied upon could not be a consent of this kind.
38. The said Judgment was relied upon in case titled as Shalimar Tar Products Ltd. Vs. H.C. Sharma reported as 1987 RLR (SC) 658 and it was held consent to sublet under Section 14 (1) (b) must be in writing and must to be specific sublet.
39. The Judgment in Shalimar Tar Products Ltd.'s case (supra), was relied upon by the Apex Court in Bajaj Auto Ltd.'s case (supra) and it was held that subletting in order to be lawful must be to a specific sub tenant.
40. In the instant case clause 4 of lease deed dated 30.12.1989 contains consent to sublet in general term without giving any specific name of the appellant M/s. APPL Industries Ltd.
41. The other submission of learned counsel for the appellant that there is an arbitration clause in the lease deed and the petition is ARCT-03/2010 Page 15 of 17 -: 16 :- not maintainable is without any substance. Section 14 of Delhi Rent Control Act commences with a non-obstante clause viz. notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant. The general rule is that no order of eviction can be passed against any tenant but the exception to this rule is provided by proviso to Section 14 of the Act. The scope of the words no order for the recovery of possession shall be made is limited by the proviso to sub-Section (1) of Section 14 of the Act.
42. The provisions of Section 14 of the Delhi Rent Control Act mandates to a Rent Controller that it shall not travel beyond the statutory grounds of eviction provided in the Act and the parties cannot contract out of those statutory grounds is inherent in the public policy built into the statute. Unless, the requirement of various sub clauses of Section 14 (1) of the Act are satisfied, the Controller would have no power to pass order of eviction of a tenant and any order that may be passed otherwise than on such satisfaction, whether as a result of compromise or by way of consent order will be nullity. The Section makes it clear that the eviction of tenant is controlled by this Section and not by the contract between the parties.
43. Undisputedly, M/s. AALEKH POLYMERS PVT. LTD was tenant and the said company has been merged with the appellant company vide Scheme of Amalgamation approved by Hon'ble High ARCT-03/2010 Page 16 of 17 -: 17 :- Court vide order dated 10.01.2006. In this regard it may be mentioned that law is settled that if the tenant company is amalgamated into another company, the same amounts to subletting. In this regard, reliance can be placed on a Judgment in case titled as M/s. General Radio & Appliances Co. Ltd. Vs. M.A. Khadar reported as 1986 (2) RCR (Rent) 283 (SC) and case titled as Singer india Ltd. Vs. Chander Mohan Chadha and ors reported as 2004 (2) RCR (Rent) 271 (SC)
44. As a result of above discussion, the application under Order 41 Rule 27 CPC and order VI Rule 17 CPC dated 19.03.2010 filed on behalf of appellant is dismissed. The appeal also fails, same deserves to be dismissed and same is hereby dismissed.
45. Trial Court record along with copy of this Judgment be sent back. File of appeal be consigned to Record Room.
Announced in open Court (V.P. VAISH)
on this 23rd day of April 2010 District Judge-II cum Addl.
Rent Control Tribunal
(North), Delhi
ARCT-03/2010 Page 17 of 17