Delhi District Court
Smt. Manju Seth vs M/S Autolite (India) on 16 September, 2011
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IN THE COURT OF SH. D.K.JANGALA:
ADDL. RENT CONTROLLER: NORTHWEST:ROHINI: DELHI
E. No. 72/2010
U/S 14(1) (e) of DRC Act
1. Smt. Manju Seth
W/o Late Sh. Vinod Gopal Seth
2. Sh. Binu Seth
S/o Late Sh. Vinod Gopal Seth
3. Sh. Anuj Seth
S/o Late Sh. Vinod Gopal Seth
All R/o 4A, Bhamashah Marg,
Pambari Road, Delhi 110009 ........... Petitioners
Versus
1. M/s Autolite (India)
4A, Bhama Shah Marg (Pambari Road)
Delhi 9, through its proprietor
Sh. Yash Bhatia
2. Sh. Yash Bhatia s/o Late Sh. Arjun Dass Bhatia
Prop. M/s Autolite (India)
R/o 72, Gujrawala Town, Part II
Delhi9 ........ Respondents
Date of filing the application: 18.08.2010
Date of decision of application: 16.09.2011
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O R D E R : (Application for leave to defend)
1. By this order I shall dispose of an application for leave to defend to contest the application for eviction moved by the respondent u/Sec. 25B (4) & (5) of the Delhi Rent Control Act.
2. The present eviction petition u/Sec. 14 (1) (e) of Delhi Rent Control Act was filed by all the three petitioners against the respondents. It is stated that petitioners are the owners and landlord of the suit premises i.e. Three room with common open front space on the Main Bhamashah Marg (Pambari Road) on the ground floor of building No. 4A, Bhamashah Marg (Pambari Road), Delhi9 as shown in red colour in the site plan. It is stated that the petitioners are the owners and landlord and the respondent is a tenant in the same. It is stated that the suit property was rented out for nonresidential purposes and rate of rent is Rs.650/ per month exclusive of all other charges.
3. It is stated that suit property was let out to the respondent about 35 years ago by Sh. Vinod Gopal Seth (now deceased) who 3 was husband of the petitioner no.1 and father of petitioner nos. 2 and 3 and no rent agreement was executed. It is stated that rent receipts were obtained by respondent whenever they paid rent to late Sh. Vinod Gopal Seth.
4. It is stated by the petitioners that building in question of which the suit property is a part was owned by Sh. Vinod Gopal Seth and he died on 17.09.2007 at Delhi and his legal heirs who are petitioner nos. 1 to 3 inherited all his movable and immovable properties including the suit property. Therefore, petitioner nos. 1 to 3 are joint owners of suit property since the death of Sh. Vinod Gopal Seth. It is stated that petitioner no.1 is the mother of petitioner nos. 2 and 3. It is stated that petitioner no. 2 is aged about 38 years and petitioner no.3 is aged about 35 years. It is further stated that petitioner no.2 has one son aged about three years and petitioner no.3 has also one son aged about six years. It is stated that petitioner nos. 2 and 3 are not in any government or private service. It is stated that Petitioner no.3 is doing his separate and independent business under the name and style of M/s Basic Chemical Industries and his brother i.e petitioner no.2 is helping him in his business. It is stated 4 that petitioners are of high status and their economic and financial conditions are very sound. It is stated that Petitioner no.1, petitioner no.2 and his wife and petitioner no.3 and his wife are also Income Tax Assessees.
5. It is stated that petitioners have no premises for their business, therefore, for want of business accommodation, they are using their residential accommodation for their business as well and petitioners are unable to expand and flourish their business according to the present modern trend due to nonavailability of business accommodation to them. Therefore, the petitioners urgently and immediately require the suit property for their business and its expansion and to modernise the same according to present circumstances.
6. The petitioners have raised other grounds but same are not relevant for disposal of application for leave to defend.
7. The respondent has filed his leave to defend application and submitted that the present petition does not fall in the ambit of 5 Delhi Rent Control Act, 1958 as respondent is not a tenant of petitioners because during the tenancy period, the respondent and deceased husband of petitioner no.1 and father of petitioner nos. 2 and 3 had entered into an oral agreement to sell in regard to the suit premises and the deponent had paid the substantial amount towards the same. It is stated that petitioners have preferred the present eviction petition after the long period of three years of death of deceased Vinod Gopal Seth. It is stated that respondents have ceased to be tenant of the petitioners in the year 1993 and the petitioners have deliberately concealed the material facts of sale and purchase of the suit property. It is further stated that respondent as the proprietor of M/s Autolite (India) was inducted as a tenant in the suit property by Sh. Vinod Gopal Seth, the owner of the suit property in the year 1975 on a long term sublease of 99 years by an oral agreement. It is stated that Sh. Vinod Gopal Seth refused to give anything in black and white since he was under a legal dispute with the local authorities for demarcation of his plot and the area under his possession was much larger than shown in his property documents. It is stated that the deceased Vinod Gopal Seth agreed to get into the written agreement once the entire property under his possession gets 6 demarcated and legalized by the local authorities. It is stated that respondent has paid a security amount of Rs.25,000/ as refundable security to be paid back at nominal interest rate of 14% compounded annually.
8. It is stated that it was mutually decided that respondent should get the electricity meter in his own name. It is stated that after few years of tenancy, respondent needs some more space for storage of his raw material and Sh. Vinod Gopal Seth had agreed to rent out a small room in the rear portion of the property on similar terms. It is admitted that respondent is having three room in his possession, two rooms in the front and one small room in the rear portion. It is stated that after few years, the respondents have shifted into a bigger room on the same terms for 99 years sublease and in the year 19881989, late Sh. Vinod Gopal Seth told the respondent that he has no money to pay his house tax dues and other taxes and his financial position is not secure. He told the respondent to help him financially, therefore, the respondent paid a security amount of Rs.75,000/ for the rear portion of entire 450 sq. ft. It is stated by the respondent that he was paying total rent of Rs.650/ per month in the year 19901991 on 7 behalf of M/s Autolite India and M/s Autometal Industries as per their respective enhancement for the same premises. It is stated that in the year 1992, Sh. Vinod Gopal Seth demanded a certificate for the rent payable for the financial year 199091 which was duly issued to him by the respondent for his income tax purposes. It is stated that in the year 1992, Sh. Vinod Gopal Seth proposed the respondent to purchase the entire front and rear portion under the possession of the respondent as he needed money to construct his property. However, the respondent stated that he is having lease of the property for 99 years and had paid a heavy security of Rs.1.00 lakh, therefore, there is no financial sense to buy the entire property on which Sh. Vinod Gopal Seth agreed to adjust the security of Rs.1 lakh with outstanding interest in the agreed sale consideration of the property and the respondent agreed to purchase the total property for a total sale consideration of Rs. 9 lacs. It is stated that in the year 1992, respondent agreed to buy the property at the rate of Rs.9 lacs in installments and Sh. Vinod Kumar Seth acknowledged the outstanding interest on the security amount alongwith principal amout towards the end of 1992 at about Rs.4,50,000/, hence the balance was fixed at Rs.4,50,000/. Then, the respondent offered to Sh. Vinod 8 Gopal Seth to take the metal scrap from them every year as raw material in his own business and the sale proceeds to be further adjusted towards the installments of the sale of the property. It is stated that Sh. Vinod Gopal Seth stopped issuing rent receipts and started taking scrap from Mr. Yash Bhatia & M/s Autolite and scrap was roughly of the value of Rs.25,000/ annually. Therefore, since 1993 to 2002, by this way the deponent/respondent paid Rs.2,25,000/. The respondent gave the various details regarding payment of sale consideration in his application for leave to defend.
9. It is further stated that in March 2007, Mr. Ranjan Bhatia spoke on phone with the petitioner no.1 Manju Seth to settle the matter because late Sh. Vinod Gopal Seth offered Rs.20 lacs to settle the same, but matter got dead locked by both the parties due to hospitalization of late Sh. Vinod Gopal Seth but as against the outstanding amount of Rs.29.69 lacs, the respondent did not agree to the said settlement as they had paid the scrap worth Rs.2.25 lacs towards sale of the property and now the value of the property has increased many folds. It is stated that as per the settlement, the respondent was asked to get the premises desealed and the 9 machines should be removed and then the settlement amount would be paid. It is stated that the petitioners got the settlement documents prepared and gave rough copy to the deponent for consideration. Thereafter, the respondent submitted the application with the MCD on 06.12.2007 alongwith the affidavit that landlord has permitted the deponent to break the side wall of the suit premises to take out all the machines from the front and rear portion of the property and at that time of application to deseal, the MCD desealed the front and rear portion for seven days and respondent removed all the machines in a peaceful environment. It is stated that thereafter, the petitioners again backed out from the settlement and refused to make the payment of settlement amount and filed the present petition for eviction without any justification. It is prayed that respondent may kindly be granted unconditional leave to defend to contest the eviction petition.
10. The petitioners filed the reply and counter affidavit to leave to defend application whereby they reaffirmed and reassert the contents of the application and denied all the submissions of the respondent. It is stated that oral agreement to sell does not create any interest or charge on the property not protects possession. It is 10 stated that respondent continued to be in possession after the service of quit notice of termination of tenancy. The petitioners denied the lease of 99 years or agreement to sell with the respondent. The payment of consideration amount under oral agreement to sell is also specifically denied by the petitioners.
11. I have carefully perused the material on record and gone through the submissions of both the parties.
12. It is submitted by counsel for respondent that they have taken the suit property on rent from Sh. Vinod Gopal Seth and before his death in the year 2007 the respondent has entered into an oral agreement to sell of the suit property for Rs.9 lacs in the year 1992 and also paid the consideration amount. It is stated that there exists no relationship of landlord and tenant once oral agreement to sell was entered into with the original owner and respondent, hence present petition is not maintainable.
13. On the other hand, it is submitted by counsel for petitioners that the contentions raised by respondent is not tenable in the eyes of 11 the law. It is stated that as per the provisions of Sec. 53A of Transfer of Property Act, an agreement to sell must be in writing and shall be signed by the seller and purchaser. However, in the present case, the respondent is allegedly relying upon the oral agreement to sell which is not tenable in the eyes of the law. It is stated that as per Sec. 54 of the Transfer of Property Act, any transfer of property of value of more than Rs.100/ is liable to be registered compulsoly. It is stated that even as per the provisions of Sec. 54 of Transfer of Property Act, the agreement to sell does not create any right, title or interest in the suit property. It is further stated that the respondent has nowhere disputed the bonafide requirement of petitioners in his leave to defend application, therefore, leave to defend may kindly be dismissed.
14. In the present case, the respondent has denied the existence of relationship of landlord and tenant between the parties. It is stated by the respondent that he has taken on rent the suit premises from Sh. Vinod Gopal Seth. However, during his lifetime he entered into an oral agreement to sell and paid a part consideration amount and after oral agreement to sell, the relationship of landlord and tenant comes to an end and he is in possession of suit property 12 as owner.
15. The respondent in support of his submissions has filed the letter dated 20.11.1992, 25.11.1992 and application dated 06.12.2007 for desealing the property 4A, Bhama Shah Marg (Pambari Road), Delhi 9 and has given the translated copy of telephonic conversation.
16. It is not disputed that respondent was inducted in the suit property as a tenant by husband of petitioner no.1 and father of petitioner nos. 2 and 3. Therefore, before proceeding further the court has to see whether the oral agreement to sell allegedly entered into between the original owner and the respondent has changed the status of the respondent from tenant to owner or not. I have perused the provisions of Sec. 53A and 54 of Transfer of Property Act. As per Sec. 54 of Transfer of Property Act, any document which transfer any right in immovable property of value of more than Rs.100/ is liable to be compulsoly registered. Even as per Sec. 53 of Transfer of Property Act, an agreement to sell must be in writing and shall be signed by seller and purchaser. On this issue, I have relied upon the 13 judgment of Hon'ble Bombay High Court reported as AIR 2007 Bombay 132 titled 'Revankumar R. Gaikwad vs. Bachchubhai P. Jethwa', wherein the Hon'ble Bombay High Court has held that "tenant cannot refuse to pay rent on the ground of agreement to sell executed by owner in his favour because mere agreement of sale does not create an interest in property and it cannot absolve him from paying the rent.
17.In view of the judgment (supra) and provisions of Transfer of Property Act, it is clear that oral agreement to sell allegedly executed between the parties does not confer or transfer any right, title or interest in the property in favour of the respondent/tenant. In view of the judgment (supra) of Hon'ble Bombay High Court, it is clear that even after execution of agreement to sell, the alleged oral agreement to sell does not create any interest in the property and the tenant cannot absolve himself from paying the rent. Therefore, it is clear that even after execution of the agreement to sell, the relationship of landlord and tenant does not comes to an end because agreement to sell does not confer any right, title or interest upon 14 the respondent .
18. I have also perused one letter dated 06.12.2007, written by the respondent to the MCD for desealing the property. The respondent has relied upon this document and also mentioned the same in his leave to defend application. The respondent in para 4 of this application dated 6.12.2007 has stated that "The applicant to remove machines like Lathe power press etc. one side wall (inside our premise) shall be demolished and rebuilt. Landlord has permitted the above action within seven days". The respondent has written this letter regarding the suit property and in para 1 of the said application, he claims himself in occupation of the suit property. The respondent nowhere claims himself as the owner of the suit property. Moreover, the respondent has claimed that he has taken the permission of landlord for desealing of the property for seven days. The respondent in his leave to defend application has also stated that he obtained the permission of the petitioners for desealing of the same from the MCD. This admission of the respondent in his leave to defend application and letter dated 06.12.2007 leaves no doubt on the status of the respondent that he was tenant in the suit property under the petitioners. It is also stated by the respondent that he has not 15 paid the rent since 9293 and the petitioners have not claimed the rent which gives presumption , that there exist no relationship of landlord and tenant. On this issue I have relied upon one judgment filed by the petitioner reported as AIR 1933 ,Patne 175 titled as Mohan Lal Jha Vs. Kameshwar Singh, in the said judgment it is held that : " Mere non payment of rent does not create any title".
In view of the judgment ( supra), I am of the considered opinion that non payment of rent since long time does not give presumption regarding non existence of relationship of landlord and tenant.
19. Therefore, in view of the above discussions, I hold that the alleged oral agreement to sell relied upon by the respondent does not confer any right, title or interest regarding the suit property which changed the relationship of landlord and tenant between the parties and the letter dated 06.12.2007 filed by the respondent also leaves no doubt and the corresponding submissions in the leave to defend application regarding the said letter leaves no doubt that there exists 16 relationship of landlord and tenant between the parties and once the relationship of landlord and tenant is established, the tenant is stopped from challenging the ownership of the landlord by virtue of Sec. 116 of Transfer of Property Act.
20. The respondent in his leave to defend application has heavily and solely relied upon on the oral agreement to sell and did not disclose any other ground for grant of leave to defend application. The respondent in para 10 in his counter affidavit filed alongwith the leave to defend has stated that four shops constructed by Sh. Vinod Gopal Seth are lying vacant but the petitioners want more space for their business purposes is a misrepresentation of facts. The petitioners in their counter affidavit has denied that Vinod Gopal Seth has constructed any shop during the period 19932002. It is stated that entire construction is very old and no shop is lying vacant. The petitioners have disclosed the names of the tenants also in the said shops. The submissions of the respondent regarding construction of four shops and the submissions that they are lying vacant is totally vague. No specific number or details of the shops is disclosed by the respondent. The petitioners have specifically, denied the submission 17 of respondent on this account and give the details of the tenants who are occupying the said shops. Therefore, the vague submission regarding the alternate accommodation available with the petitioners does not create a valid ground for grant of leave to defend.
21. In view of the above discussions, I am of the considered view that respondent has failed to disclose any ground on which the petitioners would not be entitled for grant of relief claimed U/S 14 (1)
(e) of DRC Act . The respondent has failed to disclose any triable issue in his leave to defend application. Accordingly, the leave to defend application moved on behalf of respondent is dismissed. Announced in the open court On 16.09.2011. (D.K.JANGALA) ARC/ROHINI COURTS/DELHI 18