Delhi District Court
Smt. Bharti Jain W/O Sh.Varun Jain vs M/S. Jayco Advertisers on 22 September, 2021
//1//
IN THE COURT OF SH. MANOJ KUMAR, ARC-1, CENTRAL DISTRICT,
TIS HAZARI COUTS, DELHI
Eviction Petition No. E-101/2019 (New No.588/19)
Unique Case ID/CNR no. DLCT03-005668-2019
1. Smt. Bharti Jain W/o Sh.Varun Jain
R/o U-119, 2nd Floor, Shakarpur,
Delhi-110092.
2. Smt. Vandana Jain
W/o Sh. Vikas Jain
Prop. Of M/s. Sharp Trading Co.
1307, Gali Guliyan, Near Dariba,
Delhi-110006
Both through Sh. Vikas Jain
S/o Late Sh. Vinod Kumar Jain,
1307, Gali Guliyan, Near Dariba,
Delhi-110006
...Petitioners
VERSUS
1. M/s. Jayco Advertisers
Through its Partner(s),
1307, Ground Floor, (Western Side),
Gali Guliyan, Near Dariba, Delhi-110006.
2. Sh. Ajay Kumar Jain
S/o Sh. Subhash Chand Jain
Partner of : M/s. Jyco Advertisers
1307, Ground Floor, (Western Side),
Gali Guliyan, Near Dariba, Delhi-110006.
Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 1 of 17
//2//
3. Sh. Vijay Kumar Jain
S/o Sh. Mahender Kumar Jain
Partner of : M/s. Jayco Advertisers,
1307, Ground Floor, (Western Side),
Gali Guliyan, Near Dariba, Delhi-110006.
...Respondents
Date of Institution of Petition : 08.08.2019
Date on which order was reserved : 22.04.2021
Date of decision : 22.09.2021
Decision : Applications seeking leave to defend
filed on behalf of the respondents are
dismissed. Eviction order is passed.
ORDER
1. This order shall dispose of the applications seeking leave to defend filed by the respondents. This is a petition for eviction of tenant under Section 14 (1) (e) r/w Section 25 B of the Delhi Rent Control Act.
2. The petitioners claims to be the owners/landladies of the western side ground floor portion inter alia consisting of tenanted suit premises of property bearing no.1307, Ground Floor, Gali Guliyan, Near Dariba, Delhi-110006 by way of registered gift deed dated 16.09.2011 shown in red colour in the site plan filed along-with the eviction petition (hereinafter referred to as the 'tenanted premises'). The respondents are old tenants under the previous Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 2 of 17 //3// owners Smt. Laxmi Devi Jain who were duly informed vide legal notice dated 14.12.2011 regarding the transfer of the premises in question in favour of the petitioners. The rate of rent is stated to be Rs.400/- per month excluding electricity, water and other charges.
3. It is the case of the petitioners that the family of the petitioner no.1 consist of herself aged about 37 years, her husband Sh. Varun Jain aged about 37 years and school going daughter Ananya Jain aged about 10 years and son master Naman Jain aged about 3 years. The husband of petitioner no.1 was earlier doing the business of fabric and cloth in the name & Style of M/s. Digamber Fabrics from room no.1. However, he is also doing the business of Raxine from room no.2 after the same got evicted from the tenant. The business was being run earlier in the name & Style of M/s. Digamber Fabrics, but the name has now been changed to M/s. Digamber Enterprises.
4. The petitioner no.2 is running her old business of school bags, office bags, office files, stationery etc. in the name & style of M/s. Sharp Trading Co. Earlier the business was being run from room no.1 only, but after the eviction of tenant from room no.3 & 4, the said business was being run from room no.1, 3 & 4.
5. The petitioner no.1 required the tenanted premises for her business. Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 3 of 17
//4// The petitioner no.1 is doing the business of trophies, coffee mugs, badges, caps, t-shirts, dairies and other sales promotional items in the name of Sole Proprietary firm M/s. ATC and she wants to expand her business by running a shop/showroom from the tenanted premises. She is presently running her business from a tenanted place which is not suitable for her business. She has no other reasonable, suitable, commercial accommodation situated on the ground floor in or around the wholesale market of her business.
6. The petitioner has prayed that eviction order may be passed in respect of the tenanted premises in terms of under section 14 (1) (e) of the DRC Act.
7. Notice of the petition was served upon the respondents and the respondents filed applications seeking leave to defend. The respondent pleaded that both the petitioners brought eviction petition in respect of room no.2 claiming that the same is required for the husband of petitioner no.1 for making retail and whole sale showroom of fabric and cloth with sufficient varieties". The said room was vacated vide order dated 28.02.2017 passed in E-49/2017 titled as "Smt Bharti Jain & Ors. Vs. M/s. Bharat Iron Work & Ors.".
8. Similarly, room no.3 & 4 also got vacated for the requirement of husband of petitioner no.1 and for herself to open a multi brand retail-cum- Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 4 of 17
//5// wholesale showroom. The said rooms got vacated vide order dated 07.06.2017 passed in E-189/2017 titled as "Smt. Vandana Jain Vs. M/s. Duke Electrical Industries". It is further pleaded that the petitioners have not undertaken the assignment till date for which they got the vacation of the said rooms. It is averred that pleadings of the present petition does not show whether rooms so vacated are being utilized, which clearly shows apparent concealment of facts. So, the need of the petitioners are not bonafide one. It is also stated that petitioner no.1 alleged to be running a business of trophies, coffee mugs, badges, caps, t-shirts, diaries and other sale promotional items in the name of her sole proprietary firm in the name of M/s. ATC which apparently seems to only for the name sake. The alleged proprietor unit only seems to be on paper whereas even if, she wanted an accommodation in the present building, she could very well continue for room no.1 & 2. It is also pleaded that the running a proprietary unit in the name of M/s. ATC from a rented accommodation on the 2 nd floor of a house in Shakarpur apparently seems to be a fictitious pretext as no rent agreement or rent receipt stands annexed with the petition.
9. The petitioners filed reply to the application seeking leave to defend. The petitioner reiterated and reaffirmed the contents of their eviction petition. Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 5 of 17
//6// The petitioner has denied the fact that petitioners have not come to the Court with clean hands or suppressed any fact. In reply to the para 5 of the leave to defend application, it is submitted that rooms got vacated by the petitioners from the respective tenants and after receiving the possession, the same have been put to use/utilization for their business purposes, suitable to them as per prevailing business needs and circumstances, who are running their respective businesses duly registered with the government department i.e. Goods & Service Tax Department and the petitioners have also filed copies of the form GSTR 3B for December, 2019-2020 which shows the sales of the respective firms and the fact of running of business in the rooms no.1, 2, 3 & 4 is shown by the petitioner by filing photographs of the same and confirmed by the respondent. It is further submitted that the firm M/s. ATC of petitioner no.1 is registered with Goods & Service Tax Department of Govt. of India and the respondent also sold goods to the said firm vide GST Tax invoice no.340 dated 24.07.2009 of Rs.3540/-. It is further submitted that all the averments and the plea made by the respondents are self serving and bald averments which belies by the documents filed on record by the petitioners inter alia including GST registration certificate with respect to firm M/s. ATC in the name of petitioner no.1, current account bank statement of M/s. ATC, Jayco Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 6 of 17 //7// advertisers i.e. respondent no.1 own undisputed GST Tax invoice no.340 dated 24.07.2019 amounting to Rs.3540/- issued by respondents for business goods sold to M/s. ATC firm of petitioner no.1. It is further submitted that although no rent agreement or rent receipt was issued and delivered by the owner, however, the petitioner no.1 had been granted GST registration of the firm M/s. ATC on the basis of no objection of the owner. The petitioner no.1 has filed the same with GST returns and bank statement of the said firm. It is further submitted that husband of the petitioner no.1 Sh. Varun Jain is doing his business under the name & style of M/s. Digamber Enterprises "earlier known as Digamber Fabrics" from the suit property and have filed his GST registration certificate and form GSTR 3B showing sales of the moth of June, 2019-2020. Similarly petitioner no.1 have also filed her GST registration certificate, GST returns, bank statement of firm M/s. ATC which all clearly shows that the petitioner no.1 and her husband have been running their separate firms and businesses.
10. Rejoinder not filed by the respondents and consequently, last opportunity to file rejoinder was afforded vide order dated 12.01.2021 subject to cost of Rs.5,000/-. However, respondents chose not to file rejoinder.
11. I have heard the learned counsel for the petitioner and the learned Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 7 of 17 //8// counsel for the respondents and carefully gone through the record. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the Delhi Rent Control Act, the petitioner must establish that:
i. She is owner and landlord in respect of the tenanted premises. ii. That she requires the premises bonafide for herself or for any member of her family dependent upon her. iii. That she has no other reasonably suitable accommodation.
Ownership of tenanted premises and relationship of landlord-tenant between petitioner and respondents :
12. The petitioners became the owners of the rented property vide gift deed dated 16.09.2011. The said gift deed was duly registered. The donor of the gift deed namely Laxmi Devi also informed the respondent vide order dated 14.12.2011 regarding gift made by her of the tenanted property in favour of the petitioners. The respondents used to pay the rent to the earlier owner Laxmi Devi. Thereafter, they have been paying the rent to the petitioners @ Rs.400/- per month. The respondents lastly paid the rent w.e.f. 01.01.2019 to 30.06.2019 against issuance of rent receipts duly signed on counterfoil by two cheques (i.e. 50% of rent amount) in favour of each petitioner. The rent receipt from page no.42 to 48 shows the signature of the tenant. Copy of cheques from page no.49 to 51 in the list of documents of the Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 8 of 17 //9// petitioner shows that cheques were issued by respondent no.2.
13. The respondents in their leave to defend application specifically stated that father of both respondent no.2 & 3 was a tenant since the year 1961 in respect of premises in question, which he had been using for godown purposes and after his death, the respondent no.2 & 3 in the partnership capacity have stepped into his shoes. They have specifically stated that total rent of the godown is Rs.400/- per moth which is equally paid to both the respondents.
14. Thus, it is apparent that there is no dispute regarding ownership of property and that there is relationship of landlord and tenant between the parties.
Requirement of premises bonafide by the petitioner for herself and non- availability of any other reasonably suitable accommodation:
15. The petitioner no.1 required the tenanted premises for her business. The petitioner no.1 is doing the business of trophies, coffee mugs, badges, caps, t-shirts, dairies and other sales promotional items in the name of Sole Proprietary firm M/s. ATC. The petitioner no.1 wants to expand her business by running a shop/showroom from the tenanted premises. The petitioner no.1 Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 9 of 17 //10// presently running her business from a tenanted place which is not suitable for her business. She has no other reasonable, suitable, commercial accommodation situated on the ground floor in or around the wholesale market of her business/product.
16. Petitioners submitted in his eviction petition that they have earlier got evicted tenants from room no.2, 3 & 4 for bonafide need of petitioner no.2 and the husband of petitioner no.1. The petitioner no.2 is running her old business of school bags, office bags, office files, stationery etc. in the name & style of M/s. Sharp Trading Co. Earlier the business was being run from room no.1 only, but after the eviction of tenant from room no.3 & 4, now the said business was being run from room no.1, 3 & 4.
17. The husband of petitioner no.1 was earlier doing the business of fabric and cloth in the name & Style of M/s. Digamber Fabrics from room no.1. However, he is also doing the business of Raxine from room no.2 after the same got evicted from the tenant. The business was being run earlier in the name & Style of M/s. Digamber Fabrics, but the name has now been changed to M/s. Digamber Enterprises.
18. The respondent in his leave to defend application categorically submitted that the needs of the petitioner no.1 is not bonafide as earlier Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 10 of 17 //11// petitioners got eviction from room no.2 for the requirement of husband of petitioner no.1 "for making retail and whole sale showroom of fabric and cloth with sufficient varieties". The said room was vacated vide order dated 28.02.2017 passed in E-49/2017 titled as "Smt Bharti Jain & Ors. Vs. M/s. Bhart Iron Work & Ors.".
19. Similarly, room no.3 & 4 also got vacated for the requirement of husband of petitioner no.1 and for herself "to open a multi brand retail-cum- wholesale showroom". The said room got vacated vide order dated 07.06.2017 passed in E-189/2017 titled as "Smt. Vanadant Jain Vs. M/s. Duke Electrical Industries".
20. Ld. Counsel for the respondent vehemently argued that till date, the respondents have not undertaken the assignment for which they got the vacation of the said rooms. Thus, the Counsel for the respondents argued that the need of the petitioners are not bonafide one and moreover, they have not provided any rent agreement or rent receipt showing that M/s. ATC is being run from the 2nd floor of a house in Shakarpur.
21. The petitioner no.1 has filed the copy of the registration certificate of the proprietary firm M/s. ATC at page no.56 to 58 of the list of documents of the petitioner. Perusal of the same shows place of business as 2 nd floor, U- Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 11 of 17
//12// 119, Upadhyay Block, Shakarpur, Delhi-110092. The petitioner no.1 filed the copy of bank statement of account of the proprietary firm of petitioner no.1 for the period from 01.08.2018 to 31.12.2018 at page 59 of list of documents. Perusal of the same also shows the address of M/s. ATC at U-119, U-Block, East Delhi. Moreover, the said branch of Central Bank of India is also situated at Shakarpur, Delhi. The transactions in the said bank account shows that business is being run by M/s. ATC.
22. The more clinching document which shows that the business of M/s. ATC is being run from the rented accommodation at U-119, Shakarpur is the tax invoice dated 24.07.2019 issued by the respondent firm itself. Moreover, the respondent has not anywhere denied the fact of raising of above stated tax invoice.
It is not the case of the respondents that the said premises belongs to the petitioners. The respondents only stated that the said business is being run for evading tax. Though, rent agreement or rent receipt has not been produced by the petitioners, but in view of the above stated documents, I am satisfied that the petitioner no1 running a business in the name & style of M/s. ATC from a rented accommodation at U-119, Shakarpur, East Delhi.
23. The husband of petitioner no.1 namely Varun Jain is running a Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 12 of 17 //13// business M/s. Digamber Enterprises and the place of business is 1307, Gali Guliyan, Dariba Kalan, Chandni Chowk, Delhi-110006. Copy of GST registration certificate is filed at page no.61 & 62 of the list of documents of the petitioners. The copy of GST return also filed from page no.64 to 66. The photographs shows that the business of M/s. Digamber Enterprises is being run from room no.1 & 2. The room no.1 is shown with a glass door and both room no. 1 & 2 are adjacent to each other and there is board of Digamber Enterprises between both the doors.
24. The petitioner no.2 namely Vandana Jain is running a business in the name & style of M/s. Sharp Trading Co. and the place of business is 1307, Gali Guliyan, Dariba Kalan, Chandni Chowk, Delhi-110006. Copy of GST registration certificate is filed at page no.67 & 69 of the list of documents on the petitioners. The copy of GST return also filed from page no.70 to 72. The photographs of the room no.3 & 4 shows that the business of Sharp Trading Co. is being run from the said rooms.
25. The earlier room no.2 got evicted for the bonafide requirement of husband of petitioner no.1. The room no.3 & 4 got evicted for the bonafide need of petitioner no.2. However, the present petition has been filed for the bonafide need of petitioner no.1 to run her business from room no.5 which is Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 13 of 17 //14// situated on the ground floor and she has no other reasonable, suitable, commercial accommodation for running her business. The petitioner no.1 showed that she is running a business from a tenanted residential accommodation at Shakarpur. The said premises is neither a commercial one nor on the ground floor. The premises i.e. room no.5 suits the purpose of the petitioner no.1 as the same is on the ground floor and also a commercial property. The law is settled in this regard by the Hon'ble Superior Court in numerous judgments.
26. The Hon'ble High Court of Delhi relying on the judgment of the Hon'ble Supreme Court in "Baldev Singh Bajwa Vs. Monish Saini" (2005) 2 RCR (Rent) 470 held that "heavy burden lies on the tenant to prove that requirement is not genuine. To prove this fact, the tenant will be called upon to give all the necessary facts and particulars supported by documentary evidence, if available, to support his plea in the affidavit itself so that the controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord. The mere assertion on the part of the tenant would not be sufficient to rebut strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine".
Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 14 of 17
//15//
27. As far as the bonafide requirement of expansion of business is concerned, law is settled in this regard. The Apex Court has time and again noted that it is prerogative of the landlord to decide whether the premises are required for expansion of his business or not.
In this context, the observations of Apex Court in the case of "Sait Nagjee Purushottam & Co. Ltd. Vs. Vimalbai Prabhulal & Ors." (2005) 8 SCC 252 is relevant;
"It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."
28. The another contention of the respondents is that room no.2, 3 & 4 got evicted from earlier tenants, but these rooms were not put to use as per the requirement mentioned in the earlier eviction petitions. The petitioners had not open any wholesale showroom for which they got evicted the earlier tenants. Thus, the respondents contended that the requirements of the petitioners are malafide and there are triable issues. I am not satisfied with the arguments of Ld. Counsel for the respondent as law is settled in this regard.
Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 15 of 17
//16// In the case of "Rajkumar Khaitan & Ors. Vs. Bibi Zubeida Khatoon & Anr." AIR 1995 (SC) 576, the following was held :-
"It was not necessary for the appellants-landlords to indicate the precise nature of the business which they intended to start in the premises. Even if the nature of business would have been indicated nobody would bind the landlords to start the same business in the premises after it was vacated."
29. I am of the considered view that it is for the earlier respondents who got evicted to move appropriate application if the evicted rooms are not put to use as per the requirements mentioned in their respective petitions. The present petition is based on the requirement of the petitioner no.1 and is no way connected with the earlier petition. Moreover, it is not the case of the respondent that those rooms are lying vacant or being rented away.
30. The net result is that petitioners have been able to establish that the tenanted premises is required bonafide by petitioner no.1 for the expansion of her business and she has no other reasonably suitable alternative accommodation for this purpose. The respondents have failed to raise any reasonable triable issue. The applications for leave to defend are dismissed. Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 16 of 17
//17//
31. Since the applications seeking leave to defend have been dismissed, the petitioners are entitled for an eviction order. Accordingly, eviction order is passed in favours of the petitioners and against the respondent no.1 to 3 directing all the respondents to vacate the tenanted premises bearing no.1307, Ground Floor Gali Guliyan, Near Dariba, Delhi-110006 shown in red colour in the site plan filed by the petitioner, in terms of Section 14 (1) (e) r/w Section 25-B of the Delhi Rent Control Act. The owners, however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order. Digitally signed by Manoj Manoj Kumar Kumar Date:
2021.09.22 (MANOJ 16:54:23 KUMAR) +0530 ARC-I, Central District, Tis Hazari Courts, Delhi (Announced in open court on 22nd September, 2021) Eviction Petition No. 101/19 Bharti Jain & Ors. Vs. M/s. Jayco Advertisers & Ors. Page 17 of 17