Delhi District Court
M/S Kalanidhi International Pvt. Ltd vs Kanwarjit Singh Dhingra @ Kanwaljit ... on 9 October, 2024
IN THE COURT OF Ms. NAINA GUPTA, ACJ CUM CCJ-
CUM ARC DISTRICT: SOUTHEAST, SAKET COURTS,
NEW DELHI
DLSE030009382021
RC ARC/18/2021
M/S KALANIDHI INTERNATINM/S KALANIDHI
INTERNATINAL PVT LTD Vs. SH. KANWARJIT SINGH
DHINGRA @ KANWALJIT SINGH SINGH DHINGRA
M/S KALANIDHI INTERNATIONAL PVT. LTD.,
HAVING ITS REGD. OFFICE AT
15TH FLOOR, MOHAN DEV BUILDING,
13, TOLSTOΥ MARG, NEW DELHI-110001
THROUGH ITS AUTHORIZED REPRESENTATIVE/
SIGNATORY MR. VINOD SURHA ...PETITIONER
Versus
(memo of parties has been amended
vide order dt. 16.12.2023)
1. Shri Kuldip Shenker (Since Deceased)
Through Legal heirs
a. Smt. Frances Shenker
W/o Late Shri Kuldip Shenker
R/o C-548, Defence Colony New Delhi
Also C/o Shop No.13/8, Ground Floor,
Jor Bagh Market, New Delhi-110003.
b. Ms. Madhuri Shenker
D/o Late Shri Kuldip Shenker
RC ARC/18/2021 Digitally signed by NAINA GUPTA
NAINA GUPTA
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. Date: 2024.10.09 16:15:38 +0530
SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA
Page no. 1 of 38
C/o Shop No.13/8, Ground Floor,
Jor Bagh Market, New Delhi-110003. ...RESPONDENTS
APPLICATION FOR EVICTION OF TENANT UNDER SECTION
14(1) (e) READ WITIH SECTION 25B OF THE DELHI RENT
CONTROL ACT, 1958.
DATE OF INSTITUTION : 24.03.2021
DATE OF ARGUMENTS : 17.09.2024
DATE OF DECISION : 09.10.2024
JUDGMENT
1. This is a petition for seeking eviction of the respondent from property Shop no. 13/8, Ground Floor, Jorbagh Market, New Delhi-110003 along with garage forming part of the shop (hereinafter referred to as tenanted premises). The petitioner is a private limited company and has filed the present petition through its authorised representative Sh. Vinod Surha who has been authorised vide resolution dt. 04.11.2019 passed by the board of directors of the petitioner company. The petitioner company is the owner of the entire built up property bearing no. 13 in Block no. 172, measuring 591.7 sq yards (the entire building is referred to as suit property hereinafter). This plot of land measuring 591.7 sq yards was allotted to Dr. Rajender Singh and his wife Smt. Sukhwans Kaur by the President of RC ARC/18/2021 NAINA Digitally signed by NAINA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA GUPTA Date: 2024.10.09 16:15:47 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 2 of 38 India through L&DO, Nirman Bhawan, New Delhi, vide agreement for lease dt. 10.01.1955 duly registered on date 04.06.1995. They had constructed shops on the ground floor and residential flats on the first floor on this plot after getting the plan sanctioned from the Municipal Authority and a completion certificate was granted by the NDMC.
2. It is stated that Dr. Rajinder Singh and Smt. Sukhwans Kaur had let out shop no.13/8 together with garage jointly to Sh.Kanwarjeet Singh Dhingra and Sh. Kuldeep Shenkar on 02.12.1963 for a period of 11 months at monthly rent of Rs. 400/- exclusive of electricity and water charges and unregistered lease deed dt. 22.05.1964 was executed. It is stated that the tenants at the time of inception of the tenancy were partners in a partnership firm and started carrying out business from the tenanted premises under the name and style of M/s Steak House.
3. Dr. Rajender Singh and his wife Smt. Sukhwans Kaur agreed to sell the suit property to the petitioner for a total sale consideration of ₹65,00,000 and executed a receipt dated 29.11.1994. After the petitioner became owner of the suit property, the erstwhile landlords had addressed letter dt. 07.03.1995 to the respondent wherein the petitioner was attorned as the landlord w.e.f. 01.04.1995. Dr. Rajinder Singh died on 29/01/2003 leaving behind Smt. Sukhwans Kaur and his RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:15:56 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 3 of 38 son Mr Prabhjot Singh as his sole surviving legal heirs. Mr Prabhjot Singh relinquished his undivided share in the entire property in the favour of his mother Smt. Sukhwans Kaur by virtue of registered relinquishment deed dated 25.07.2003. In the year 2006, the property was mutated in the name of Smt. Sukhwans Kaur vide letter dt. 26.04.2006. Smt. Sukhwans Kaur executed agreement to sell on 13.03.2007 in favour of the petitioner company and the same was registered on the same date. It is stated that the petitioner had received the physical and peaceful possession of the vacant portions of the entire suit property and symbolic proprietary possession of the rented portions with the attornment of tenancy rights in its favour during the lifetime of Dr. Rajendra Singh itself immediately after executing the receipt dated 29.11.1994 after having received the entire sale consideration from the petitioner.
4. It is stated that the tenanted shop has been sublet by the respondent to 'M/s Steak House' which represented itself to be a partnership firm with Ms. Nini Dhingra and Late Sh. Kuldeep Shenkar as partners as per the partnership deed dt. 02.06.2015. It is stated that subletting has not been done with the written consent of the petitioner and predecessor in interest of the petitioner. A separate eviction petition has been filed by the petitioner against the respondent on the ground of subletting.
RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:16:06 +0530 Date: 2024.10.09 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 4 of 38
5. The present petition has been filed on the ground of bonafide requirement. It is stated that the directors in the petitioner company have a vast and enriched experience in restaurant business. The petitioner company wants to open an unique family restaurant-cum-coffee house in a strategic location in New Delhi and it has decided to use ground floor of this entire built property situated on plot no. 13 in Block no. 172 at Jorbagh measuring 591.7 sq yards including the tenanted shop to open this restaurant. The restaurant proposed would be providing services of offerings of seafoods, steak houses, family restaurant, casual dining restaurant, ethnic restaurant, pizzeria, coffee shop and bakery house. It is stated that the entire space of the ground floor in this property would be required as a separate portion would be carved out for each of such services so as to provide at one place a variety of cuisine for the connoisseurs of good quality food. Accordingly, the petitioner has filed separate eviction petitions seeking eviction of respective tenants from shops bearing no. 13/2 to 13/8, Jorbagh Market, New Delhi- 110003.
6. It is stated that the petitioner has already carried out and completed its entire homework including laying out design of proposed family restaurant-coffee house to be brought up on the entire ground floor of the property and copy of the entire layout plan is annexed with the petition as Annexure D. It is stated that RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:16:14 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 5 of 38 shop no. 13/3, shop no. 13/4, Shop no. 13/5, Shop no. 13/6 and Shop no. 13/7 and the front portion of shop no. 13/2 and shop no.13/3 has been demarcated as restaurant area where provisions would be made to provide different types of cuisine and dining facilities. A substantial portion of shop no. 13/8 has been demarcated in the plan for setting up of the kitchen and remaining portion of shop no. 13/8 and the rear portion of shop no. 13/2 and 13/3 has been demarcated in the plan for setting up the store room.
7. It is stated that the petitioner does not have any other suitable reasonable alternative commercial accommodation in the territory of Delhi except the tenanted premises and the tenanted shops on the ground floor of the property which as a whole would be required bonafidely by the petitioner for it's project as detailed above.
8. With the abovesaid averments it is prayed that eviction orders be passed in the present matter.
9. At the outset it is necessary to mention that originally the present petition was filed against the legal heirs of Sh. Kanwarjeet Singh Dhingra and the legal heirs of Sh. Kuldeep Shenkar. Separate applications seeking leave to defend were filed by Smt. Nini Dhingra wife of Late Sh. Kawarjeet Singh Dhingra and Smt. Frances Shenkar wife of Late Sh. Kuldeep Shenkar. In the application seeking leave to defend Mrs. Nini RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:16:22 +0530 Date: 2024.10.09 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 6 of 38 Dhingra had stated that she was a partner in the business of M/s Steak House until 23.04.2019. In her affidavit she stated that she adopts the stand taken by Smt. Frances Shenkar. However, on dated 16.12.2023 fresh affidavits were filed on behalf of all the legal heirs of Sh. Kawarjeet Singh Dhingra stating that they wish to withdraw their application seeking leave to defend as the matter has been settled with the petitioner with respect to one shop no. 13/7 in the suit property and also pertaining to the present tenanted premises i.e. shop no. 13/8 along with garage. After the settlement the petitioner has withdrawn the petition RC ARC no. 13/21 and RC ARC no. 17/21 with respect to shop no. 13/7. Further the petitioner also gave statement before the court that it wishes to delete respondent no. 1 A to 1 D from the array of parties in view of settlement arrived at between them. In view of the statement given, the respondent no. 1 A to 1 D were deleted from the array of parties and amended memo of parties was taken on record. Now the present petition is against the LRs of Sh. Kuldeep Shenker.
10.To succeed in the case U/s 14 (1) (e) of DRC Act the petitioner is required to prove the following ingredients:
(a) Ownership in respect of tenanted premises
(b) Relationship of landlord and tenant between the parties;
(c) Petitioner bonafidely requires the tenanted premises;
(d) Petitioner does not have any other suitable alternative RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. Date: 2024.10.09 GUPTA 16:16:31 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 7 of 38 accommodation with him/her.
11.Under Section 25 (B) of Delhi Rent Control Act a summary procedure has been laid down for landlords requiring the premises for bonafide use for himself or for any member of his family dependent on him. The tenant shall be granted leave to contest the application if the affidavit filed by the tenant discloses such facts as would dis-entitle the landlord from obtaining an order for the recovery of possession of the premises. It has been held by the Hon'ble Supreme Court of India in the case of Charandas Duggal Vs. Bhramanand 1983, 1SCC 301 that the tenant must make out such a prima facie case raising such pleas that a triable issue would emerge and that should be sufficient to grant leave therefore the test is that of a triable issue and not of the final success in the action.
12.It is also a settled position of law that once landlord pleads his bonafide requirement and non-availability of an alternative suitable accommodation, the onus shifts to the tenant to show that a triable issue which if proved would non-suit the landlord has been pleaded in the application seeking leave to defend. The Supreme Court in the case of Abid-Ul-Islam v. Inder Sain Dua, (2022) 6 SCC 30 has given guidelines as to when presumption may be raised in favour of landlord and when can the same be considered to be rebutted by the tenant. The paragraphs from the judgment are reproduced for ready reference as follows:-
RC ARC/18/2021 NAINA NAINA GUPTADigitally signed by M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:16:39 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 8 of 38 "18. For availing the leave to defend as envisaged under Section 25B(5), a mere assertion per se would not suffice as Section 14(1)(e) creates a presumption subject to the satisfaction of the learned Rent Controller qua bona fide need in favour of the landlord which is obviously rebuttable with some material of substance to the extent of raising a triable issue. The satisfaction of the Rent Controller in deciding on an application seeking leave to defend is obviously subjective. The degree of probability is one of preponderance forming the subjective satisfaction of the Rent Controller. Thus, the quality of adjudication is between a mere moonshine and adequate material and evidence meant for the rejection of a normal application for eviction.
19.Before a presumption is drawn, the landlord is duty bound to place prima facie material supported by the adequate averments. It is only thereafter; the presumption gets attracted and the onus shifts on the tenant. The object of Section 14(1)(e) vis a vis Section 25B has to be seen in the light of yet another provision contained under Section 19. Section 19 gives a right to the dispossessed tenant for repossession if there is a non-compliance on the part of the landlord albeit after eviction, to put the premises to use for the intended purpose. Such a right is available only to a tenant who stood dispossessed on the application filed by the landlord invoking Section 14(1)
(e) being allowed. Thus, Section 19 inter alia throws more light on the legislative objective facilitating a speedy possession. The object is also reflected in the proviso to Section 25B(8), denying a right of appeal."
NAINA Digitally signed by NAINA GUPTA RC ARC/18/2021 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:16:48 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 9 of 38
13.With the above principles of law in mind, it is for this court to examine whether the respondents have raised any triable issues or not.
14.In view of the judgment of the Hon'ble Supreme Court in the case of Satyawati Sharma (dead) by LRs vs. Union of India & Anr. (2008) 5 SCC 287 section 14 (1) (e) is also now made applicable to commercial properties and therefore the present petition is maintainable.
GROUNDS ON WHICH LEAVE IS SOUGHT AND WHETHER THE SAME ARE TRIABLE ISSUES
15.Application seeking leave to defend was filed by Smt. Frances Shanker within time. The leave is sought by the respondent on the following grounds :-
i. That the present petition is not maintainable. ii. That the petitioner has filed the present petition against wrong party.
iii. That the petitioner does not have the bonafide requirement of the tenanted premises and has alternate suitable accommodation iv. That the petitioner has not filed the sanction from the MCD v. That the petitioner is not the owner of the tenanted premises RC ARC/18/2021 NAINA by NAINA GUPTA Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:16:55 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 10 of 38 In the following paragraphs, the grounds on which leave is sought are discussed and findings are given when they amount to triable issues or not.
16.That the present petition is not maintainable : It is stated that the petitioner is a private limited company and is not entitled to take recourse for eviction of tenants by filing petition U/s 14 (1) (e) of the DRC Act. It is submitted that a reference is pending before the Hon'ble High Court in the case of KS Bandari Vs. M/s International Security Printers Pvt. Ltd., RC Rev. 18/2016. It is submitted that the company being a juristic person, there is separate provision U/s 22 of DRC Act and therefore Section 14 (1) (e) is not available to the company. It is stated that Section 14 (1) (e) is meant for natural persons.
17.On the other hand, it is submitted on behalf of the petitioner that the petitioner company being of juristic person has a right to maintain the petition for eviction of the tenant on the ground of bonafide need and cannot be held to be not at par with a natural person. It is stated that the definition of landlord U/s 2 (e) of DRC Act does not make any distinction between the a juristic person and natural person and defines landlord as a person who for the time being is receiving or is entitled to receive rent of the tenanted premises. It is further stated that provisions U/s 22 of DRC Act deal with right of a company to seek eviction of the tenant on the grounds which are in the form of special RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:17:03 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 11 of 38 provisions and it does not debar a company from filing its petition for eviction on the ground of bonafide need as there is no rider embodied in the statue on the ground of bonafide need.
18.During arguments, Ld counsel for the petitioner has submitted that in the matter of K.S. Bhandari supra, the reference is confined to whether a Company as landlord requiring the premises for use of its employees would have a choice, whether to invoke Section 14(1)(e) or Section 22 of the Act. It has been asserted that the present petition is very much maintainable and reliance has been placed upon the judgment of the Hon'ble High Court of Delhi in the case of Satnam Kaur v. Ashlar Stores P. Ltd. CM No.14903/2008, wherein the following observations have been made:-
"To my mind, whenever any such type of landlord requires the premises for use of its employees, it is section 22 alone which would be applicable and not section 14(1)(e). This does not mean that the other provisions of section 14 cannot be invoked by such a landlord. As held in Chuni Lal's case (supra), the grounds under section 14 are addition to the grounds under Section 22. This is because section 22 is concerned only with specific type of cases namely, where premises are required by a company for use of its employees. Section 22 is not concerned with the other grounds which are available under section 14. It may be that some circumstances may exist where a company may require RC ARC/18/2021 NAINA by NAINA GUPTA Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:17:12 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 12 of 38 premises, not for its employees, but still for its residence. In such a case section 14(1)(e) can also be invoked.".
19.In the case of Chuni Lal v. University of Delhi 1970 RCR Rent 742 it has been held by the Hon'ble High Court that a landlord falling under section 22 DRC Act may avail of the grounds stated there in, in addition to the grounds given in section 14 (1)
(e) of the DRC Act. In view of the discussion above, it is held that the present petition is maintainable.
20. That the petitioner has filed the present petition against wrong party: It is submitted that the respondent is the spouse of Late Sh. Kuldeep Shenker and partner of M/s Steak house, the business for which the lease deed in favour of Late Sh. Kuldeep Shenker and Late Sh. Kanwarjeet Singh Dhingra was executed on 22.05.1964. It is stated that business of M/s Steak House has always been a partnership where Mr. Kuldeep Shenkar and his legal heirs Mrs. Frances Shenkar have also been a partner. It is stated that lease deed dt. 22.05.1964 was executed by erstwhile owners in favour of Sh. Kanwarjeet Singh Dhingra and Late Sh. Kuldeep Shenker for the purposes of carrying on of business. Deed of partnership dt. 02.12.1963 was executed between Late Sh. Kuldeep Shenker and Late Sh. Kanwarjeet Singh Dhingra. Upon the passing away of Sh. Kanwarjeet Singh Dhingra on 21.05.2014 his wife Ms. Nini Dhingra entered the business of RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. Date: 2024.10.09 GUPTA 16:17:21 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 13 of 38 M/s Steak House with Sh.Kuldeep Shenker vide deed of partnership dt. 02.06.2015. On 02.04.2019 Ms. Frances Shenkar was inducted as partner vide supplementary agreement. Thereafter, vide further agreement dt. 03.02.2019 a deed of dissolution was executed and Ms. Nini Dhingra exited the partnership and Mr. Kuldeep Shenker and Francis Shenkar continued the partnership. Subsequently upon demise of Sh. Kuldeep Shenkar another deed of partnership dt. 25.01.2020 was entered into and since then Ms. Frances Shenkar, Dharam Shenkar and Mr. Harvinder Singh Bhatia have continued as partners for M/s Steak House.
21. It is stated that the petitioner has duly recognized the said partnership by conduct and accepted the rent paid by M/s Steak House for period 2020-2021 without raising any objections. It is submitted that there has been no subletting by the respondents and the business of M/s Steak House has always been run by a partnership wherein Sh. Kuldeep Shenkar or Ms. Frances Shenkar have always been a partner. It is submitted that the respondents through the partnership firm had also filed petition U/s 27 of the Act for depositing of rent in favour of the petitioner and the same have been allowed by the court.
22. In reply it is stated that the petitioner has already filed an eviction petition against the respondents on the grounds of subletting and the said petition is pending before this court. RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:17:29 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 14 of 38
23. This is not a petition on the ground of subletting. This court need not go into the question of whether change in the constitution of the partnership firm amounts to sub-letting or not. This is a petition for eviction on the ground of bonafide requirement of the petitioner company to run business from the suit property. The question before the court is whether the non joinder or mis joinder of parties in the present case is a triable issue or not. Arguments have been advanced on behalf of the respondent that since a separate petition on the ground of sub- letting is already pending, this petition should also go to trial. I find it difficult to accept this contention. If this contention is accepted, the very purposes of having a summary procedure for eviction of tenants u/s 25 B of the DRC Act would stand defeated.
24.On the other hand, Ld. counsel for the petitioner has advanced arguments that the lease deed has been executed between Late Sh. Kuldeep Shenker and Late Sh. Kanwarjeet Singh Dhingra as joint tenants and that the lessee is not the partnership firm. It is submitted that LRs of Sh. Kanwarjeet Singh Dhingra had already given up their tenancy rights. The Ld. counsel for the petitioner has also advanced arguments that even if it is alternatively considered that the partnership firm is a tenant in the tenanted premises, the respondent represents the other partners in the firm. It is contended that a partnership firm is not RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. Date: 2024.10.09 GUPTA 16:17:36 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 15 of 38 a legal entity, and all the partners are deemed to be tenants. In this regard reliance has been placed upon the judgments in the cases of Bharat Insulation Company v. Suraj Parkash, 2015 SCC OnLine Del 9955 and Amar Nath Agarwalla v. Dhillon Transport Agency, (2007) 4 SCC 306.
25. Mere acceptance of rent from the account of the partnership would not amount to estoppel against the petitioner to accept the partnership firm as a tenant. Reliance has been placed upon judgment in the case of Ram Saran v. Pyare Lal, (1996) 11 SCC
728. It has been observed by the Hon'ble Supreme Court that, "Acceptance of rent paid by sub tenant does not constitute estoppel against the landlord that the sub tenant was accepted as a tenant in the property. Mere acceptance of rent does not mean that a valid tenancy has been constituted. Written consent of the landlord is required for creation of a valid sub tenancy."
26. At the risk of repeating, it is reiterated that the question of sub tenancy is not before this court. Whether there is a requirement to implead the alleged sub tenant as a party in this petition is. The law is settled on this point that a sub tenant is not a necessary party but a proper party only. A sub tenant is always bound by the order of eviction passed against the original tenant. Reliance is placed upon the judgment of the Hon'ble Supreme Court in the case of Silverline Forum Pvt. Ltd vs Rajiv RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:17:43 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 16 of 38 Trust And Another, AIR 1998 SUPREME COURT 1754.
27.After considering the pleadings and arguments advanced by both the parties, I have reached the conclusion that the issue raised is not a triable issue that requires adducing of evidence by the parties. The respondent has not denied the lease dt. 22.05.1964 the relevant extract from the lease deed is reproduced for ready reference: - "This deed of lease is made this the 22nd day of May, 1964 between (1) Dr. Rajender Singh S/o S. Uttam Singh Gheba (2) Smt. Sukhwant Kaur W/o Dr. Rajender Singh.... (hereinafter in this deed called the landlords) of the one part and S. Kanwarjeet Singh.... and Sh. Kuldeep Shanker .... of the other part". In paragraph no. 8 of this lease deed it is stated "that the tenants shall carry on the business as contemplated in the deed of partnership dt. 02.12.1963 executed between the tenants they shall not make any change in the nature of business carried on and not use the premises for any other purposes without the consent in writing of the landlords previously obtained".
28. From the perusal of the leas deed it is clear that originally the lease deed was with the individuals namely Sh. Kanwarjeet Singh Dhingra and Sh. Kuldeep Shenker. Although a reference to the partnership has been made but it does not mean that the tenancy has been entered into with the partnership firm. The defence taken by the respondent is only technical in nature as all RC ARC/18/2021 NAINA by NAINA GUPTA Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:17:52 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 17 of 38 the legal heirs of Sh. Kanwanjeet Singh Dhingra and Sh. Kuldeep Shenker have been made party to the present proceedings. The respondents have not denied being tenants in possession of the tenanted premises and further, keeping in view the principle of agency in a partnership firm, the respondents represent any other partners who have not been made a party. In case of partnership the partners remain joint tenants, Smt. Frances Shenker represents any other partners who have not been impleaded in the present case. It is not the case of the respondent that after the reconstitution of the partnership firm any new agreement of tenancy was entered into with the petitioner or the erstwhile owners. Mere payment of rent from the account of the partnership firm does not mean that the tenancy has been created with the firm.
29. In view of the reasons explained above, no triable issue arises in this regard.
30.That the petitioner does not have the bonafide requirement of the tenanted premises and has alternate suitable accommodation:- It is stated that the petitioner is having net worth of over 100 crores and therefore it is stated that a company whose net worth is over 100 crores, does not have bonafide requirement as contemplated as per legislature U/s 14 (1) (e) of DRC Act particularly in relation of a small shop in a cluster of shops. It is stated that summary proceedings are RC ARC/18/2021 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 18 of 38 available only for immediate need of the landlords where the landlords have no alternative place of business or residence. The petitioner company engaged in various business activities in association with many other corporate entities including Escort Hotels & Pvt. Ltd. Escort Pvt. Ltd., Karamyogi Finlease Pvt. Ltd., Panipat Properties Pvt. Ltd. besides others which can be categorized as sister concerns and cumulatively take up several business ventures worth several hundred crores including construction, real estate, malls, constructions and management of studio and service apartment.
31.It is stated that the business of the petitioner company along with several others is in fact owned by one Mr. Vikram Bakshi who is Director in 35 companies including the petitioner. It is stated that taking possession of a small shop under the premises of bonafide requirement by way of summary proceedings is nothing but a fanciful desire and cannot be categorized as a bonafide requirement. It is submitted that the word 'requires' implies need rather than desire of the landlord. It is submitted that when the company is having such a large network it could not have requirement of the tenanted premises U/s 14 (1) (e) of DRC Act.
32. It is stated that the corporate veil of the petitioner company must be pierced to evaluate the magnitude and nature of the businesses run by the petitioner and its associated companies. It RC ARC/18/2021 NAINA by NAINA GUPTA Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:19:53 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 19 of 38 is contended that there is no impediment to the use of suitable properties held by the associated companies having over- lapping directors for purposes of its purported requirement for a multicuisine family restaurant-coffee house. The details of the associate companies and their directors have been given by the respondent as below:-
Sl.N COMPANY DIRECTORS
1 BEE GEE PROMOTERS PRIVATE VIKRAM BAKSHI
LIMITED AVANTIKA BAKSHI
2 ASCOT INNS PRIVATE LIMITED VIKRAM BAKSHI
VINOD SURHA
3 BRITE INDIA PRIVATE LIMITED VIKRAM BAKSHI
VINOD SURHA
4 ASCOT GTM MEHTAB COMPLEX VIKRAM BAKSHI
JALLANDHAR PRIVATE LIMITED VINOD SURHA
HARBIR SINGH
DHILLON
TRILOK CHAND
GUPTA
5 CRESENT PRINTING WORKS VIKRAM BAKSHI
PRIVATE LIMITED VINOD SURHA
6 BAKSHI VIKRAM VIKAS VIKRAM BAKSHI
CONSTRUCTION COMPANY PRIVATE VINOD SURHA
LIMITED
7 PENGUIN RESORTS PRIVATE VIKRAM BAKSHI
LIMITED VINOD SURHA
SEEMA VAID
RC ARC/18/2021 NAINA by NAINA GUPTA
Digitally signed
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09
16:20:01 +0530
SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 20 of 38 8 BAKSHI HOLDINGS PRIVATE VIKRAM BAKSHI LIMITED MADHURIMA BAKSHI TRILOK CHAND GUPTA 9 ASCOT ESTATES (MANESAR) VIKRAM BAKSHI PRIVATE LIMITED VINOD SURHA 10 KALANIDHI INTERNATIONAL VIKRAM BAKSHI PRIVATE LIMITED KAMAL RAI 11 VIKRAM BAKSHI AND COMPANY VIKRAM BAKSHI PRIVATE LIMITED VINOD SURHA 12 ASCOT HOTELS AND RESORTS VIKRAM BAKSHI PRIVATE LIMITED VINOD SURHA 13 KARMYOGI FINLEASE PVT. LTD. AVANTIKA BAKSHI VINOD SURHA 14 GOLDEN DIAMOND ESTATES PVT. VINOD SURHA LTD. VINOD SURHA 15 JUPITER ESTATES & BUILDING PVT. TRILOK CHAND LTD. GUPTA
33. It is stated that several of the above said companies operate in the field of food and hospitality. It is stated that the petitioner owns several other properties at strategic locations in Central Delhi. It is submitted that the petitioner has alternate accommodations available to him and has no bonafide requirement of the tenanted premises. The respondent has given the following details of the properties owned by the petitioner RC ARC/18/2021 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. NAINA Digitally signed by NAINA GUPTA GUPTA SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Date: 2024.10.09 16:20:10 +0530 Page no. 21 of 38 company. Along with the application seeking leave to defend, the supporting documents as mentioned in the last column have also been filed.
Sl.n. Details of Property Owned by Area Supporting
(Appro Document
x.)
1 14th Floor, Mohan Dev Vikram - Publicly available
Building, Tolstoy Bakshi records
Marg, New Delhi
2 15th Floor, Mohan Dev Vikram - Publicly available
Building, Tolstoy Bakshi records
Marg, New Delhi
3 44, Regal Building, Vikram 13.781 Agreement to Sell
Connaught Place, New Bakshi & sq. ft. dt. 16.11.2011
Delhi Company between T.R.
Anand and Mr.
Vikram Bakshi &
Company and Deed
of Surrender dt.
17.12.2020
between Vikram
Bakshi and
Company and
Merlin
Entertainment India
Pvt. Ltd.
4 N-11, Circus D, Vikram 1944 Sale Deed dt.
Ground Floor and Bakshi & sq. ft 02.05.2008
Mezzanine, Connaught Company between Mr. G.M.
Place, New Delhi Primlani and M/s
Vikram Bakshi &
Company Pvt. Ltd.
5 N-55, First Floor, Karmyogi 1944 Sale Deed dt.
Connaught Place, New Finlease Pvt. sq. ft. 02.05.2008
RC ARC/18/2021 NAINA Digitally signed by NAINA
GUPTA
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:20:18
+0530
SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 22 of 38 Delhi Ltd. between Mr. G.M. Primlani and M/s Vikram Bakshi & Karmyogi Finlease Pvt. Ltd.
6 N-56, First Floor, Brite India 1944 Publicly available Connaught Place, New Pvt. Ltd. sq. ft. records Delhi 7 N-88, Second Floor, Mr. Vikram 1944 Sale Deed dt.
Connaught Place, New Bakshi sq. ft. 02.05.2008
Delhi between Mr. G.M.
Primlani and M/s
Vikram Bakshi &
Mr. Vikram Bakshi
8 N-89, Second Floor, Mrs. 1944 Sale Deed dt.
Connaught Place, New Madhurima sq. ft. 02.05.2008
Delhi Bakshi between Mr. G.M.
Primlani and M/s
Vikram Bakshi &
Mrs. Madhurima
Bakshi
9 N-52, First Floor, Jupiter Estate 2633 Publicly available
Connaught Place, New & Builders sq. ft. records
Delhi Pvt. Ltd.
10 2nd Floor, 86, 86A & Karmyogi 7700 Publicly available
87, N-Block, Finlease Pvt. sq. ft. records
Connaught Place, New Ltd.
Delhi
11 52A, 54, 54A, N- Jupiter Estate 6800 Publicly available
Block, First Floor, & Builders sq. ft. records
Connaught Place, New Pvt. Ltd.
Delhi
12 N-7, Ground Floor, Golden 40 sq. Publicly available
Connaught Place, New Diamond ft. records
Delhi Estates
RC ARC/18/2021 NAINA Digitally signed by
NAINA GUPTA
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09
16:20:27 +0530
SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 23 of 38 Pvt.Ltd.
13 Open Terrace on Karamyogi 1500 Publicly available
Second Floor (N- Finlease Pvt. sq. ft. records
Block) Ltd.
34. It is further submitted that the petitioner is having alternate accommodation and has no bonafide requirement of the tenanted premises. The respondent is aged 74 years and is wife of late Shri Kuldip Shenker. The business of M/s Steak House is being run from the tenanted premises since 1963 and for over 55 years and it's goodwill is intrinsically linked to it's location. It is stated that at such an advanced age the respondent is unlikely to sustain a physical shift of business or find an alternate source of income. It is submitted that during his lifetime Mr Kuldeep Shenker attended to the business and its customers personally and as such subsequent to his death his wife has had to put immense efforts to gain the same momentum for their business. Proceeding against the respondents by allowing the present application filed by the petitioner which is an enormous corporation would leave the respondent without any source of livelihood.
35.In reply, the petitioner has stated that just because the networth of the petitioner company is over 100 crores it does not mean and imply that the petitioner company would not have a bonafide requirement as contemplated in the legislature U/s 14 RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:20:36 +0530 Date: 2024.10.09 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 24 of 38 (1) (e) of the DRC Act. It is stated that the petitioner company has every right to carry out the business of a restaurant from the suit property and seek eviction of the tenants from the suit property for its requirement.
36.The petitioner has also submitted that Master data of the petitioner company available on the website of Ministry of Corporate Affairs as placed on record by the respondent does not show that the immovable properties in respect of which charge has been created are owned and possessed by the petitioner company. The respondent has not placed on record particulars of title documents to show which property besides the suit property is owned by the petitioner company in NCR of Delhi. It is stated that respondent cannot take the plea that the petitioner company is primarily owned by Mr. Vikram Bakshi. Such a plea is contradictory to the law as the company being a juristic person has independent legal entity, therefore, if any of the Directors of the petitioner company has any immovable property acquired in his own name or is a Director in other companies who are owners of immovable properties then the same by no stretch of legal fiction would mean and imply that all such immovable properties would be said to be owned and possessed by the petitioner company.
37. It is stated that it is a matter of record that Sh. Vikram Bakshi and Sh. Vinod Surha are directors in the other companies as RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:20:44 +0530 Date: 2024.10.09 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 25 of 38 well. The details of the properties given by the respondent undisputedly show that none of the properties are owned and possessed by the petitioner company and therefore they cannot be construed and held to be alternative suitable accommodation available to the petitioner company. It is stated that merely because of the fact that some of the Directors of the petitioner company are also Directors in other companies and such directors and such companies being owners of the immovable properties would not itself mean or imply that the said properties are owned by the petitioner company and can have status of alternative accommodation available with the petitioner company.
38.In rejoinder the respondent has reiterated that Shri Vikram Bakshi who holds more than 99% of the shares of the petitioner is a promoter director in several other companies. It is submitted that the piercing of corporate veil in the present case is essential and if one goes behind the corporate veil ignoring the corporate personality of the companies it becomes clear that these are all extensions of the petitioner and its directors.
39. During arguments, Ld. Counsel for respondent has stressed upon alleged concealment by the petitioner and the additional accommodation available to the company. On the other hand, Ld. Counsel for petitioner has advanced arguments that the respondent has only made a bald contention that the petitioner is RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date:
SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA 2024.10.09 16:20:53 +0530 Page no. 26 of 38 owner of various immovable properties. It is stated that the respondent has not placed on record any document of title evidencing that the petitioner company owns these companies. It is also been argued that even in the documents filed by the respondent it is clearly shown that only property which the petitioner company has contended to be owned by it is property no. 13, Jor Bagh, New Delhi.
40.I have examined the records placed on record by the respondent and have considered the arguments led by both the parties. Once there is a clear averment by the petitioner that it has no other alternate suitable accommodation available to it, the burden is on the respondent to create a doubt regarding the same to seek leave to defend. The respondent must discharge this burden on the scale of preponderance of probabilities. The respondent has placed reliance on the records available in the public domain showing that the petitioner company has created charge over about 23 companies. The petitioner has denied owning any of these properties. There is no document produced by the respondent also to show that the petitioner owns these properties. Perusal of the documents filed shows that the associate companies or the sister companies of the petitioner company own several properties in the Delhi. However, it is also clear that none of the properties are owned by the petitioner company.
RC ARC/18/2021 NAINA Digitally signed
by NAINA GUPTA
M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09
16:21:02 +0530
SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 27 of 38
41. The documents placed on record nowhere support the case of the respondent that the properties mentioned above are owned and are available and suitable to the petitioner as alternative properties for the purposes of opening a restaurant. It has been pleaded that the corporate veil must be pierced, and the properties owned by the directors of the petitioner in their individual capacity or by the other companies of which they are also directors, be considered as the properties available to the petitioner. But such a contention is contrary to the law of corporate personality. It has already been discussed above that a company is entitled to sue for its bonafide requirement u/s 14 (1) (e) DRC Act. When it has been held so, what circumstances are there to lift the corporate veil by the court. No legal argument in support of this has been advanced by the ld. counsel for the respondent.
42.It is not a case where the petitioner company has been created only to create artificial scarcity of accommodation available to the directors of the company to seek eviction of the tenants from the suit property. The company is in existence for more than four decades and has owned this suit property for almost three decades now. The court would have considered it a ground to grant leave to defend, where it was evident that the company has been created only for the purposes of evicting tenants. However, that is not the case and nor has it been pleaded so by Digitally signed RC ARC/18/2021 NAINA by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:21:10 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 28 of 38 the respondent.
43.Section 14 (1) (e) requires that the petitioner must not have any other alternative suitable accommodation. The threshold is not of ownership of other properties but of an alternate suitable accommodation. It is not even averred by the respondent that any of the properties mentioned by him are available to the petitioner for opening of a restaurant as required by it. When the requisite averment and the supporting material itself is missing, no triable issue arises with respect to availability of alternate suitable accommodation.
44.Apart from the mere presumption that the petitioner company does not have bonafide requirement of the suit property because it has a net worth of more than 100 crores, no other contention has been raised by the respondent in this regard. Once, the landlord pleads that it has bonafide requirement of the tenanted premises, there is a presumption in favour of the landlord. The respondent is required to rebut the presumption by bringing on record some material in support of the averments made by him. In the present case there isn't anything on record to disbelief the case of the petitioner. Merely because, the petitioner company is successfully running its businesses, it does not mean that it does not have any requirement to start a new business from the tenanted premises. Infact, successful running of other businesses supports the case of the petitioner that the company RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. Date: 2024.10.09 GUPTA 16:21:18 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 29 of 38 has the wherewithal to start the present business from the suit property.
45.It also needs to be appreciated that the petitioner purchased the suit property in the year 1995 for a sale consideration of Rs. 65 lakhs. If the intention of the petitioner was to evict the tenants by hook or crook only, it would have filed for eviction petitions as soon as it became legally eligible after five years of sale. The petitioner company became owner of the suit property about 3 decades ago and prior to the present eviction petitions, there has been no attempt to evict the tenants. This goes on to support the case of the petitioner that it has bonafide requirement of starting business from the tenanted premises. In view of the discussion above it is held that no triable issue regarding bonafide requirement of the petitioner company arises.
46.The respondent has also taken the plea of comparative hardship by pleading that she will suffer hardship if an eviction order is passed. The Rent Controller need not compare the hardship suffered by the petitioner and the respondent. Hardship that the respondent might face is not a ground of grant of leave by the court.
47.That the petitioner has not filed the sanction from the MCD: It is submitted that petitioner intends to start a new business venture of a multi cuisine restaurant after removing the partition walls and create a big hall having an eating and dining area for RC ARC/18/2021 NAINA by NAINA GUPTA Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:21:26 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 30 of 38 large number of guests. It is submitted that what has been proposed by the petitioner requires a massive alteration and construction and it cannot be done without prior sanction and approval from NDMC. It is stated that under clause 1.4.3 of 2016 building bye laws necessary approval is required from the MCD. It is stated that as per clause 7.23.3 of the 2016 building byelaws for opening a restaurant the petitioner is required to obtain sanction of any of its plans. It is stated that the construction of the building is old with load bearing walls and not columns and beam structure. It is further submitted that removal of internal walls to consolidate the shops to make space for a restaurant is not structurally possible without substantially altering the premises and completely demolishing the building in question
48.The respondent has also placed on record a report by one Mr. Piyush Aggarwal, Principal Structure Consultant who has stated in the report that any kind of retrofitting work would compromise the structural integrity of the building.
49.In reply, the petitioner has submitted that within the bylaws of MCD the petitioner has right to carry out such an addition and alteration which does not require prior permission. Removal of partition wall and re-aligning them without altering the basic structure and without touching the load bearing walls are such addition and alteration which does not require the permission RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. Date: 2024.10.09 GUPTA 16:21:33 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 31 of 38 from NDMC. It is submitted that belief of the respondent that NDMC would not grant permission is merely a presumption and that too on the premise that the petitioner would be required to take prior permission. It is reiterated that the petitioner has every right to make addition and alteration within the building bylaws and does not require permission of the NDMC.
50.It is stated that there is no restriction upon the opening of a restaurant in the commercial area on the ground floor. It is also contended that the respondent has not placed on record anything to show that the law prohibits the petitioner from setting up a large restaurant in the ground floor of the property. It is stated that as per layout plan filed by the petitioner all the partition walls are not required to be removed. It would be discretion of the petitioner to carry out such minor additions and alterations to give a proper shape and effect of the restaurant area as well area earmarked for kitchen of the restaurant.
51.This court while assessing the requirement of the petitioner, must consider whether there is bonafide requirement of the petitioner to start the business of a restaurant from the ground floor of the suit property. There is no weight in the contention of the respondent that the layout plan filed by the petitioner is impractical and infeasible. The whole building is owned by the petitioner. The petitioner is already using the first floor of the suit property for its residential and office use. The ground floor RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. Date: 2024.10.09 GUPTA 16:21:42 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 32 of 38 is being used for commercial purposes and the petitioner also intends to put it to use for a commercial purpose only. There is no reason to assume that the petitioner will carry out such construction that would cause damage to the suit property. The petitioner only wants to remove some of the partition walls to make a big hall. Whether a permission for the same is required from the NDMC is not the concern of the respondent. The petitioner has submitted that if a permission is required it will seek the same from the NDMC. Before, this court of rent jurisdiction, such an argument is of no bearing.
52.Reliance in this regard is placed upon judgment of the Hon'ble High Court of Delhi in the case of Gulshan Rai v. Samrendra Bose Secy, 2012 SCC OnLine Del 444. In this case the ground on which leave was being sought was that the requirement for which eviction was being sought was against the Building bye laws. The court of Ld. ARC had granted leave observing that since the property was heritage property and the guest house was being run without permission, a triable issue had been raised. The order of the Ld. ARC was set aside by the Hon'ble High Court, and it was held that the tenant had no locus standi to challenge the illegality of the landlord in running a guest house from the premises. It was also observed that whether a permission is to be granted or not is inter se arrangement between the landlord and the MCD. This case is squarely RC ARC/18/2021 NAINA by NAINA GUPTA Digitally signed M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:21:50 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 33 of 38 applicable to the facts at hand also. The petitioner has proposed only the removing of the partition walls and there is no legal bar against the same. The respondent has made presumptuous claims that it would involve demolition of the entire building and will cause damage to the building. Further it has also been claimed that the proposed layout plan requires permission from the MCD and the same has not been placed on record. The tenant cannot raise such pleas.
53.The basic principle attracted here is that the respondent cannot dictate its terms to the petitioner. The petitioner is the best judge of his requirement and the respondent or this court cannot direct the petitioner on to how to use the suit property. In the case of Ranjit Singh Sethi v Gurmeet Singh Chawla R.C.R. No. 209/2011, the landlord had averred that the intervening wall between the tenanted premises and the shop already in possession of the landlord shall be broken and the entire area of the shop shall be increased. The Hon'ble High Court rejected leave to defend and allowed eviction in favour of the petitioner. Thus, removal of partition walls between shops does not mean that there is reconstruction of the building. In the judgment of the Hon'ble Supreme Court in the case of Balwant Singh v. Sudarshan Kumar 2021 (1) RCR (Rent) 146 the landlord had sought eviction from shops on the ground floor and averred that the building shall be renovated as per the requirements of the RC ARC/18/2021 NAINA NAINA GUPTADigitally signed by M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:21:59 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 34 of 38 proposed business. The Hon'ble Supreme Court set aside the order of the High Court granting leave to defend and allowed the eviction in favour of the landlord.
54.In my view, the court need not assess the need of the landlord with a magnifying glass. Once the landlord satisfies the court that there is genuine requirement for the landlord to start business, no dispute regarding its alleged requirement can be raised by the tenant in terms of feasibility of the business plan. The landlord has freedom to start or expand its business in whatever manner it may like. The tenant cannot say that the requirement is not genuine because the proposed business plan is not feasible. The landlord is not even bound to set up its business in the same manner as stated in the petition. If for some reason there is an impediment in the way of the petitioner from starting the restaurant from the tenanted premises as per the layout plan given, it is free to make changes to its plan and use the suit property for carrying on business which confirms to the legal requirements.
55.Reliance in this regard is placed upon the judgment of the Hon'ble High Court of Delhi in the case of Sunder Singh Talwar v. Kamal Chand Dugar, 2018 SCC OnLine Del 8376. It was observed, "It is settled legal position in this regard that a landlord while filing an eviction petition for bona fide need, need not specify the exact business which is proposed to be RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:22:06 +0530 Date: 2024.10.09 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 35 of 38 carried out from the tenanted premises for which the eviction has been sought. In fact, even if in the eviction petition a particular purpose is stated, the landlord is not bound by the said purpose and after an eviction order, can change his mind and use the premises for a different kind of business. It is settled by a catena of judgments that the landlord has not to give an elaborate description of the business or the nature of business that he seeks to carry out in the premises."
56.In view of the above, the defence that the tenanted premises cannot be utilized for the bonafide need and that no permission will be granted by the MCD, is not tenable. It is for the petitioner to procure the appropriate permissions. The remedy in case of non use/ occupation of the tenanted premises by the petitioner within the stipulated time is available to the respondent under section 19 DRC, however the tenant cannot be permitted to travel beyond that in interfere in the execution of the proposed business plan.
57.That the petitioner is not the owner of the tenanted premises: It is stated that the petitioner has no title documents to the property as there is only agreement to sell executed in the year 2007 based upon the payment of money and receipt dt. 29.11.1994 in the favour of the petitioner. It is stated that the respondent started paying rent to the petitioner after receiving the letter dt. 1995 from the erstwhile owner of the suit property RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA Date: 2024.10.09 16:22:20 +0530 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 36 of 38 who had sold the property to the petitioner. However, it was not in the knowledge of the respondent that the petitioner did not have any title documents in his favour. Therefore, it is stated that petitioner is not the owner of the suit property.
58.In reply, the respondent has stated that while disputing the ownership of the petitioner, the respondent has not disclosed who else is the owner of the tenanted shop. Therefore, the contention of the respondent that petitioner is not the owner of the tenanted premises is false.
59.It is settled law that in petition under DRC Act the petitioner need not prove his absolute ownership and the petitioner only needs to show that he is something more than a tenant. The erstwhile owners have attorned the tenancy in favour of the petitioner. The respondent has been admittedly paying rent to the petitioner. The respondent being tenant cannot challenge the title of the petitioner being estopped U/s 116 of Indian Evidence Act. Reliance is placed upon Shanti Singh Vs. Ved Prakash, 1986, 208.
60.In view thereof it is held that the landlord - tenant relationship and the ownership of the petitioner stands proved. FINAL FINDING
61.No other ground for seeking leave to defend has been raised by the respondent in the application. In view of the discussion above, this court reaches the conclusion that the application for RC ARC/18/2021 NAINA Digitally signed by NAINA GUPTA M/S KALANIDHI INTERNATIONAL PVT LTD Vs. GUPTA 16:22:26 +0530 Date: 2024.10.09 SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 37 of 38 seeking leave to defend filed on behalf of the respondent is without any merits and same is liable to be dismissed. Accordingly, application seeking leave to defend of respondents is dismissed and the petition U/s 14 (1) (e) r/w Section 25B on behalf of petitioner is allowed. The respondents are directed to vacate the tenanted premises i.e. Shop no. 13/8, Ground Floor, Jorbagh Market, New Delhi-110003 along with garage forming part of the shop (as shown in red in the site plan filed by the petitioner). The petitioner shall not file the execution petition for eviction of the tenanted premises before the expiry of period of six months from today.
62. File be consigned to Record Room after due compliance.
Digitally signedAnnounced in the open Court NAINA by NAINA GUPTA On 9th October, 2024 GUPTA Date: 2024.10.09 16:22:35 +0530 (NAINA GUPTA) ACJ-cum-CCJ-cum-ARC (South - East) Saket Courts, New Delhi RC ARC/18/2021 M/S KALANIDHI INTERNATIONAL PVT LTD Vs. SH. KANWARJIT SINGH DHINGRA @ KANWALJIT SINGH SINGH DHINGRA Page no. 38 of 38