Delhi District Court
In Re vs Smt. Pushpa Devi Bagrodia on 10 August, 2020
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE/RCT: WEST DISTRICT
TIS HAZARI COURTS: DELHI
RCT No. 05/2016
CNR No. DLWT01-000082-2012
In re:
Sh. Jatinder Pal Singh
S/o Late Sh. Jagdev Singh
R/o 8/34, Kirti Nagar
New Delhi - 110015. . . . . . . Appellant
Versus
1. Smt. Pushpa Devi Bagrodia
W/o Sh. Nand Kishore Bagrodia
R/o ED-81, Tagore Garden
New Delhi - 110027.
2. High Purity Chemicals Pvt. Ltd.
C/o B-21, Ashok Vihar, Phase-I
New Delhi - 110052.
3. Smt. Harjit Kaur
W/o Late Sh. Jagdev Singh
C/o 8/34, Kirti Nagar
New Delhi - 110015.
4. Smt. Gurminder Singh
S/o Late Sh. Jagdev Singh
C/o 8/34, Kirti Nagar
New Delhi - 110015. . . . . Respondents
Date of filing of Eviction Petition : 14.12.1989
Date of impugned judgment : 29.09.2012
Date of filing of the appeal : 06.11.2012
Date of arguments advanced
through Video Conferencing : 30.07.2020
Date of judgment : 10.08.2020
RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 1 of 41
Appearances:
Mr. Rajiv Duggal, Advocate for the appellant and proforma respondents
no. 3 & 4
Mr. Ravi Bassi, Advocate for the respondent no.1/landlady
None for respondent no. 2 company
JUDGMENT
1. This judgment shall decide an appeal preferred under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act') whereby the appellant, who was respondent no.2 in the main petition and in whose favour possession of the tenancy premises has been held to have been parted with the main tenant/respondent no.1 Company in the main petition, has assailed the impugned judgment dated 29.09.2012 in Eviction Petition No. 127/2011 titled 'Smt. Pushpa Devi Bagrodia vs. High Purity Chemicals Pvt. Ltd. & Ors.', decided by Mr. Rakesh Kumar-III, Ld. ACJ/ARC (West), THC, Delhi (in short, 'Ld. ARC'), whereby an order of eviction has been passed under section 14(1)(b) of the DRC Act in respect of the tenancy premises against the respondent no. 2 company in this appeal as also the appellant survived through his legal heirs.
BRIEF FACTS PLEADINGS OF THE PETITIONER/LANDLADY
2. Briefly stated, it was the case of the petitioner/landlady, who filed and signed the present Eviction petition and at the same time appointing her husband as a Special Attorney to pursue this case, namely Sh. Nand Kishore Bagrodia, that she is the owner and landlady of the premises bearing factory plot No. 8/34, Kirti Nagar Industrial RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 2 of 41 Area, New Delhi - 110015, which was admittedly let out by the erstwhile owner to respondent no.1 M/s. High Purity Chemicals Pvt. Ltd. Comprising of an area of about 300 Sq. meters containing one big hall, eight rooms, one big shed, three small sheds, one lobby, one security room, three W.C. and one urinal, one staircase, two mezzanine halls with passage and corridor, as shown in the site plan Ex. PW-1/2 at a monthly rent of Rs. 780/- excluding water and electricity charges besides payment of misuse charges as levied by MCD and House Tax Department from time to time.
3. The grievance of the petitioner/landlady was that the tenancy premises, which was of course let out for non-residential purposes, has been sub-let, assigned or otherwise its possession parted with in favour of one Sh. Jagdev Singh, respondent no.2 in the main petition being in the capacity of Proprietor of M/s. Just Machine Tools since April, 1988, without obtaining her written consent. It was also stated that the respondent no.1 company has closed its business and has shifted its business to CGF-7, Dilkush Industrial Estate, G.T.K. Road, Delhi-110033 and B-210, Ashok Vihar Phase-I, New Delhi- 110052; and that at the time of filing of the Eviction petition, the employees of the respondent no.2, namely Ram Ashis, Samajit, Vergese, Thomo Mathew, Joginder Singh, Hirdey Rampal, Rishi Pal, Vijay Tyagi, Vimal Kumar, Ajay Kumar, Mirza Mustkassam Khan, Balwant Singh, Jahan P., Ram Murti and Vidhi Chand were occupying the premises. The landlady also claimed that respondent no.1 company has been in arrears of rent since 01.05.1988 plus misuse RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 3 of 41 charges and as per the latest amendment in the DRC, it sought increase @ 10% so as to claim rent Rs.858/- per month w.e.f. 01.04.1989 plus misuse charges. In the said broad facts and circumstances, the petitioner/landlady claimed Eviction of the respondents u/s. 14(1)(b) of the DRC Act.
PLEADINGS-WRITTEN STATEMENT
4. The Eviction petition was contested by the respondents by filing a joint written statement which is dated 03.09.1991. However, it may be noted that respondent no.2 Jagdev Singh signed for and on behalf of M/s. High Purity Chemicals Pvt. Ltd. as authorized signatory / competent Officer/Principal Officer/Managing Director besides the same being signed by Mr. S. D. L. Sadana (RW-2) for respondent no.1 tenant Company. The respondents in their joint written statement inter alia took preliminary objections to the effect that the petition was without any cause of action and the sole motive of the petitioner landlady was to harass respondent no.1 and seek enhancement of rent to Rs. 5,000/- per month; and the main defence of the respondents was that the tenancy premises had been let out to respondent no.1 company by Sh. Chuni Lal Bakshi, the then owner/landlord of the premises who vide his letter dated 14.08.1987 (Ex. RW-2/1) had given written consent to the respondent no.1 tenant company thereby intimating that he had no objection if, interalia, the portion of the premises are assigned to or parted with in favour of any one of the Directors of respondent no.1 including Sh. Jagdev Singh. It was stated that acting on the said representations, the respondent no.1 parted with RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 4 of 41 a portion of the tenancy premises comprising of five rooms plus main hall in favour of its Director Sh. Jagdev Singh on or about 21.08.1987 about which the then owner was duly notified as per the mandate of the DRC Act. It was stated that since the petitioner/landlady purchased the premises from the erstwhile owner Sh. Chuni Lal Bakshi subsequent to the grant of such written approval for parting with possession in favour of its director, she stepped into shoes of the previous owner ,and thus, estopped from resiling or withdrawing the permission granted to the respondent no.1 to sub-let/assign/part with the possession of the premises in favour of one of its Directors.
5. On merits, the respondents denied that it had shifted its registered office to any other place or office and it was asserted that it continues to conduct its business from the tenancy premises; and it was stated that the company had no concern with the premises at Dilkush Industrial Estate, G.T.K. Road, Delhi or for that matter at Ashok Vihar Phase-I, New Delhi. The respondents denied the correctness of the site plan but it is pertinent to mention that no site plan of its own has been filed till date or proven on the record. It was further stated that the respondent no.2 became a Director of respondent no.1 since 19.05.1987; and that respondent no.1 company was however not functioning well and its business was becoming non-profitable making it an unviable unit; and therefore, respondent no.1tenant company intended to set up his own unit in a portion of the premises in question, and accordingly, in the month of July 1987, the Directors of respondent no.1/tenant company approached the then owner/landlord Sh. Chuni RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 5 of 41 Lal Bakshi and requested him to give his written consent for parting with a portion of the premises in suit in favour of respondent no.2, which was given vide his letter dated 14.08.1987. It was reiterated that on the purchase of the property by the petitioner / landlady in the month of October 1987, the respondent tenant company was intimated to attorn in favour of the petitioner w.e.f. 01.11.1987, which was done. It was further clarified that the address B-210, Ashok Vihar Phase-I, New Delhi is the residential address of one of the Directors of respondent no.1, namely Sh. Shiv Darshan Lal Sadana while M/s. Sadana Bros., a partnership concern is carrying on its business from the premises bearing CGF-7, Dilkush Industrial Estate, G.T.K. Road, Delhi The respondents, therefore, jointly prayed for dismissal/rejection of the Eviction petition.
DEATH OF JAGDEV SINGH AND IMPLEAIDNG OF HIS LRS
6. It is pertinent to take note that respondent no.2 Jagdev Singh passed away on 17.10.1991 ,and thereafter, on an application moved under Order XXII rule 4 CPC, vide order dated 17.08.1993, his legal heirs were brought on the record and the wife of the deceased Smt. Harjit Kaur filed a separate written statement dated 10.01.1994. However, in her separate written statement, the legal heir of the deceased respondent no.1 reiterated the same line of defence and assertions as in the joint written statement filed earlier by respondent no.1 and her deceased husband except that her attempt at a belated stage to amend her pleadings and claim that the letter dated 14.08.1987 allowed the parting of possession of the tenancy premises RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 6 of 41 to deceased Jagdish Singh in his individual capacity was declined vide order dated 28.05.2010 and the said order was assailed before the ld. RCT, which upheld the order passed by the ld.ARC vide order dated 21.05.2011 and ultimately the said order was even confirmed on further revision to the Hon'ble High Court vide order dated 04.11.2011.
7. Needless to point out that the petitioner/landlady filed replication consequent to the joint written statement earlier filed by the respondents and later the separate written statement filed by the wife of deceased respondent no.1 and in the same, she reiterated and reaffirmed the averments in the main petition.
TRIAL-WITNESSES EXAMINED
8. PE: During the course of trial, the petitioner/landlady examined her husband and Special Power of Attorneyholder Sh. Nand Kishore as PW1 and they also examined PW2 Sh. V. C. Mishra, Hand Writing and Forensic Expert. It is pertinent to mention that in the impugned order/Judgment, the Ld. ARC has inadvertently or otherwise committed an oversight failing to mention that PW2 was also examined on behalf of the petitioner. Suffice to state that the said expert examined the documents viz. letter dated 14.08.1987 Ex. RW2/1, Form 'E' dated 10.09.1987 Ex. RW2/2 under the DRC Rules, and affidavit dated 11.08.1993 of the erstwhile owner Sh. Chunni Lal Bakshi Ex. RW2/3 so as to verify whether the same had been signed by Sh. Chunni Lal Bakshi and the same were compared with the admitted writings and signatures of Sh. Chunni Lal Bakshi in the letters RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 7 of 41 addressed to the petitioner/landlady dated 01.01.1993, 09.08.1993, 16.08.1993 and 03.12.1993. Suffice to state that PW-2 V. C. Mishra proved on the record his detailed report giving an opinion to the effect that the signatures of Sh. Chunni Lal Bakshi had been forged on the documents Ex. RW-2/1 and RW-2/2. However, with regard to the affidavit dated 11.08.1993 Ex. RW-2/3, he gave an opinion that the signature on the same appeared to be that of Sh. Chunni Lal Bakshi in terms of writing and signatures on the other four letters referred above, which are marked Ex. PW-2/2 to PW-2/5. It goes with saying that the two witnesses were subjected to a rigorous cross-examination and I shall dwell into it lateron in the present judgment.
9. DE: On the other hand, for the respondents were examined as many as five witnesses - RW1 was Smt. Harjeet Kaur, wife of Late Sh. Jagdev Singh, respondent no.2; RW2 was Sh. S. D. L. Sadana and both the witnesses testified in unison that since the business of the company was not running well, Jagdev Singh and RW- 2 went to Calcutta and took written consent of Sh. Chunni Lal Bakshi Ex. RW-1/2 (RW-2/1 as well) pursuant to which, the possession of five rooms plus a main hall had been parted with favour of its Director Sh. Jagdev Singh. Likewise, RW3 was Gurminder Singh, son of Late Jagdev Singh, also supported the case put forth by his mother as well as RW-2 for the company. RW4 was Sh. Kamal Kant Khandelwal, Handwriting and Finger Prints Expert. This witness examined the letters dated 14.08.1987 and 10.09.1987 i.e. Ex. RW2/1 and RW2/2 respectively besides the signatures on the affidavit of Sh. Chunni Lal RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 8 of 41 Bakshi Ex. RW-2/3 dated 11.08.1993 and he gave a report Ex. RW- 4/13 that all these documents bore the signatures of the erstwhile owner Sh. Chunni Lal Bakshi. The last witness for the respondent was RW-5 Sh. V. K. Jain, Chartered Accountant and Company Secretary of respondent no.1 since 1976. There are various documents which were tendered in his evidence but most pertinently he deposed that Jagdev Singh was a shareholder and became Director of the company on 19.05.1987, on which date, he acquired 170 shares in M/s. High Purity Chemicals Pvt. Ltd. There is no gain in saying that all the witnesses were prodded vigorously in their cross-examination by the ld. Counsel for the petitioner/landlady and again, I shall reflect as well dwell into their evidence lateron in the present judgment.
IMPUGNED JUDGMENT
10. The Ld. ARC in the detailed impugned judgment dated 29.09.2012 on appreciation of evidence brought on the record came to the conclusion that the document dated 14.08.1987 Ex. RW-2/1 only allowed parting of possession of whole or part of the tenancy premises in favour of anyone in the capacity as Director of such company and such permission was never given to induct anyone in its individual capacity. The Ld. ARC observed that in the written synopsis filed on behalf of the respondent no.2, a new plea had been taken contrary to the pleadings and evidence on record that the permission for sub- letting or parting with possession was in fact given to respondent no.2 in his individual capacity and not as a Director, and thus casting aside the said plea as contradictory, Ld. ARC held that the respondents failed RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 9 of 41 to prove that as on the date when the letter was issued, or earlier thereto, or for that matter thereafter to that date i.e. 14.08.1987, the deceased respondent no.1 was a Director of the company. It was found that Jagdev Singh was not holding any "qualification shares" in terms of Clause 12 of the Articles of Association of the respondent no.1 company, and therefore, he was not even a Director or Executive Director or Ex-Officio Director on such date.
11. In order to understand the reasoning given by the Ld. ARC in passing the impugned eviction order, it would be expedient to reproduce the relevant paragraphs in extenso, that goes as under:-
"Keeping in view bye laws of the company, in para no. 12 of Article of 1 Association of the company i.e. the qualification of the Director to be appointment in the company(respondent no. 1) should have shares of minimum value of Rs.5000/- and as per list of documents filed by respondents on 14.01.1995 but no as such documents with regard to transfer of share, however it is contended that respondent no. 2 has become director of respondent no. 1 since 19.05.1987, as alleged in para no. 18 of WS of respondent and WS of Harjeet Kaur, LR of respondent no.2 as it is clear from photocopies of documents i.e. register of share holders which is Ex.RW5/2 wherein surprisingly there is no as such date of transfer to Jagdev Singh, the Director has been mentioned, moreover transfer of shares in favour of respondent no. 2 which is otherwise contrary to the document Ex.RW1/1 & RW1/2 as Filed before Registrar of Companies on 15.10.1987 and 14.09.1988 respectively which further contrary to other entries in which date of transfer has been mentioned. Further, as per document (share certificate) Ex.RW3/1 qualify share of respondent no. 2 i.e. 5000 equity share of Rs.100/- each was issued on 08.09.1988. Moreover, transfer of share in favour of respondent no. 2 as well as Smt. Harjeet Kaur wife of LRs of respondent no. 2 were issued on 08.09.1988 as per documents Ex.RW3/4, RW3/5, RW3/6 & RW3/7.
8. So, I am of the considered view that it is established that Ex.RW2/1 vide dated 14.08.1987 i.e. permission given by the RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 10 of 41 previous landlord to the company to part with possession of any its Directors as is clear from document itself and the contention and the interpretation as submitted by Counsel for respondent cannot be sustainable in the eyes of law that permission is also given to respondent no. 2 alone or in individual capacity also because all the contents of the documents has to be read and considered as a whole. The intention of previous owner is that only permission was to handover and part with possession by respondent no. 2 to any of its Directors and not by any independent person. Moreover, it is not out of stretch of imagination why landlord allowed particular tenant to part with possession of tenanted premises to anyone or third party who does not have any interest in the tenanted premises. Further, it has also come upon record that at the time of giving permission to the respondent no. 1, respondent no. 2 was not the Director of the company but during cross examination she admitted that the document Ex.RW2/1 and Ex.RW2/2 had not signed by Sh. Chunnai Lal Bakshi in her presence.
9. Moreover, bare perusal of documents Ex.RW1/1(colly.), certified copy of the form-32 having been filed by respondent no. 2 on 15.10.1987 before the Registrar of Companies but surprisingly there is no as such name of respondent no. 2 has been mentioned except Sarvan Singh son of late Sh. Jagat Singh showing brief of particulars changes as Ex-Officio Director appointment on 24.04.1987 and bare perusal of entries in certified copies of form no. 32 which is Ex.PW 1/2 having been filed by the company on 14.09.1988 wherein date of appointment of respondent no. 2, has been shown after cutting 20 to 19 May in the year 1988 after overwriting 1987 and brief particulars of changes of appointment as Executive Director which prima facie caste doubt on the plea that at the time of permission to respondent no. 1 in respect of handing over possession of the tenanted premises to respondent no. 2 was Director of the company. However, respondent no. 2 qualifies transfer of shares of Rs.5000/- on 08.09.1988. It is well settled law by the Hon'ble Supreme Court of India titled S.P. Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1, wherein it has been held that "court of law are meant for imparting justice between parties. One who comes to court must come with the clean hands. A person whose case is based on false suit has no right to approach the court. He can be summarily thrown out at any stage of litigation and further held that a fraud is an act of deliberate deception with design of securing something by taking unfair advantage of another. It is deception to gain by anthers' loss. It is cheating intending to get an RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 11 of 41 advantage. A litigant who approached the court is bound to produce all the documents executed by him which are relevant to the litigation. However, he withheld a false documents in order to gain advantage over the other side then he would be guilty of playing fraud on the court as well as on the opposite party." Meghmala Vs. G. Narasimha Reddy (2010) 8 SCC 383, wherein it has been held that "Suppression of a material fact/document amounts to fraud on court", Mayar (H.K. )Ltd. Vs. Owner & Parties & Parties, Vessel M.V. Fortune Express (2006) 3 SCC 100, wherein it has been held that "As held in S.J.S. Business Enterprises Case, (2004) 7 SCC 166, suppression of material fact by a litigant disqualifies such litigant from obtaining any relief This rule has been evolved out of need of the deter a litigant from abusing the process of court by deceiving it.
10. So, I am of the further considered view that the contention is not maintainable in respect of fact that Defendant no. 1 had sublet the property in question to Defendant no. 2 in individual capacity as well as averments made in WS and deposition of RWs because the documents Ex.RW2/1, RW1/1, RW1/2, RW1/4, RW3/1 to RW3/7 are self contradictory and appears to have been filed to mislead the court or suppress the material fact for that particular time upon which document related, it is established that the Defendant no. 2 himself was not Director when alleged permission of subletting was given vide letter dated 14.08.1987 which is Ex.RW2/1 and also appears that respondent no.2 had not approached to the court with clean hands, hence contention cannot be considered keeping in view the judgment captioned above."
GROUNDS OF APPEAL
12. The impugned judgment passed by the Ld. ARC has been assailed in the present appeal inter alia on the grounds: that the Ld. Trial Court erred in law in overlooking the testimony of PW-2 Sh. V.C. Mishra, Handwriting Expert examined by the petitioner/landlady, who in his affidavit tendered in evidence dated 22nd January, 2003 Ex.P-2/1 proved his opinion vide report Ex.PW-2/1 that on his examination of signatures on the affidavit dated 11.08.1993 of erstwhile owner Sh. Chuni Lal Bakshi Ex.RW-2/3, he opined that it bore signatures of late RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 12 of 41 Sh. Chuni Lal Bakshi commensurating with the sample handwriting and signatures on the letters relied upon by the petitioner/landlady dated 01.01.1993, 09.08.1993, 16.08.1993 and 03.12.1993 Ex. PW 2/2 to Ex.PW2/5 respectively that had been written by Sh. Chuni Lal Bakshi to the petitioner's husband. and thus, it has been proved on the record that "written consent" was given for subletting or parting with the possession in favour of Jagdev Singh, Director of respondent No.1 company vide letter dated 14.08.1987 Ex.RW2/1; and that the ld. Trial Court erred in law while recording in the impugned judgment that RW-1 Harjeet Kaur in her evidence identified the signatures of Mr. Sadana on letter Ex.RW-1/1, which fact was never stated by the witness nor the document bore signatures of Mr. Sadana; and that the ld. Trial Court committed an error in not applying the principle of pith and substance while interpreting the letter dated 14.08.1987 Ex.RW-2/1 granting permission to part with possession of the premises in favour of Jagdev Singh even in the alternative in his individual capacity, which letter was without any condition or unqualified; and that the ld. Trial Court wrongly assumed that deceased Chuni Lal Bakshi would not have granted permission to a person who was not a Director of the tenant company, which assumption was contrary to the tone and tenor of affidavit of the erstwhile owner dated 11.08.1993 Ex.RW-2/3; and the ld. Trial Court passed the order of eviction despite the fact that it had not disbelieved either the letter dated 14.08.1987 Ex.RW-2/1 nor the affirmation of such permission granted to respondent No.1/tenant company in terms of affidavit dated 11.08.1993 Ex.RW-2/3; and that the ld. Trial Court erred in ignoring the documents viz. share certificates RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 13 of 41 Ex.RW-3/1 to RW-3/6 and certified copy of Form No.32 issued by the Registrar of Companies Ex.RW-1/7 that conclusively showed that Sh. Jagdev Singh had been appointed as Executive Director of respondent/tenant company w.e.f. 19.05.1987; and that the ld. Trial Court fell in error in holding that Jagdev Singh had not subscribed nor holding any qualification in terms of Clause 12 of the Articles of Association, which clause did not apply to Jagdev Singh; and that the ld. Trial Court failed to ignore that the appearance of late Jagdev Singh as Director of the the respondent No.1 company had been recorded in the AGM meeting on 30.12.1987.
LEGAL SUBMISSIONS BY THE COUNSEL FOR THE PARTIES
13. Sh. Rajiv Duggal, ld. Counsel for the appellant vehemently urged that the petitioner/landlady in the eviction petition wrongly averred in paragraph (18) that the business of tenant company had been closed and that it had shifted its operation elsewhere; and that the petitioner/landlady vide paragraph (19) in the petition conceded that rent had been paid by the Company uptill April-1988 and the cheques towards payment of rent had been paid by late Jagdev Singh in the capacity as Director of the tenant company. It was urged that petitioner/landlady has failed to prove that letter dated 14.08.1987 Ex.RW-2/1, whereby the permission was granted to part with the possession of substantial part of the premises was forged and fabricated or that it had been ante dated in collusion with erstwhile owner Sh. Chuni Lal Bakshi. It was urged that in any case the affidavit of Chuni Lal Bakshi dated 11.08.1993 Ex.RW-2/3 has affirmed that RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 14 of 41 written consent was granted for subletting or parting with the possession of the part of premises in favour of its Director Sh. Jagdev Singh vide letter dated 14.08.1987 Ex.RW-2/1 by the erstwhile owner i.e., Sh. Chuni Lal Bakshi.
14. Challenging the testimony of PW-1, husband of the petitioner/landlady on the ground that he was not competent to represent her and depose on her behalf, it was urged that petitioner/landlady had become owner of the premises sometimes in November-1987 and she was legally bound by the written consent given by the erstwhile owner for parting with the possession by the tenant company in favour of its Director regarding which due notice was given to the erstwhile owner as per Form 'E' prescribed in DRC Rules which is dated 10.09.1987 Ex.RW-2/2. Mr. Duggal, the ld. Counsel for the appellant took this Court through the testimony of five witnesses examined on behalf of the appellant and it was repeatedly urged that Sh. Jagdev Singh was Director of the Company w.e.f. 19.05.1987 as per the certified copy of Form No.32 Ex.RW-1/7. Mr. Duggal further referred to the provisions of Section 9, 256, 270 to 273 and 290 of the Companies Act, 1956 besides Section 79 of the Indian Evidence Act to canvass the point that precondition of holding qualification shares was not binding upon Sh. Jagdev Singh since such condition was inapplicable in case of a private limited Company. During the course of arguments, I was taken through share certificate, income tax returns as also the minutes of meeting of the AGM. In his submissions, Mr.Duggal has relied upon decisions in Shrimati Jain v. Delhi Flour Mills RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 15 of 41 Company Ltd. & Ors., ILR 1973 Delhi 322 with regard to implication of Section 290 of the Companies Act, 1956 to the effect that notwithstanding any irregularity or legal infirmity in the appointment of Jagdev Singh as Director, acts done by him in the capacity of a Director stood validated. Reliance was placed on Birla DLW Ltd. v. Prem Engineering Works decided by Hon'ble Delhi High Court cited in MANU/DE/0590/1999 on the issue as with reference to Section 85 of the Evidence Act regarding the competency to depose in a matter. Reference was made in Janki Vashdeo Bhojwani v. Indus Bank Ltd., 2005 (2) SCC 217; Man Kaur (Dead) by LRs v. Hartar Singh Sangha, (2010) 10 SCC 512; and lastly on the issue of conclusiveness of certified copy of Form No. 32 Ex. RW1/6 and RW1/7 (also Ex. RW1/1 and RW1/2 respectively) in terms of Section 610 of the Companies Act, 1956 reliance was placed in Registrar of Companies & Ors. v. Dharmendra Kumar Garg & Ors., (2012) ILR 6 Delhi 499.
15. Per contra Sh. Ravi Bassi, the ld. Counsel for the respondent/petitioner / landlady urged that the joint written had not been signed on behalf of the company but only by respondent No.2 Jagdev Singh that showed collusion between the Company and deceased Sh. Jagdev Singh. While challenging the genuineness of the letter dated 14.08.1987 Ex.RW-2/1, it was urged that even otherwise the appellant has miserably failed to prove that Sh. Jagdev Singh was one of its Directors as on the date when the possession was parted in his favour. It was vehemently urged that despite service of notice under Order XII Rule 8 CPC, the tenant company as also the RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 16 of 41 respondent No.2 Jagdev Singh failed to produce the minutes of the Board of Directors whereby Jagdev Singh was introduced or appointed as its Executive Director; and it was pointed out that even in the Annual Returns of the Company for December-1987, the name of Jagdev Singh was not mentioned or indicated as one of its Directors.
16. It was vehemently urged that Form No. 32 Ex.RW-1/6 was having unexplained and doubtful cuttings and in any case it was filed with the Registrar of Companies on 14.03.1991 w.r.t Jagdev Singh becoming a director that was contrary to the stipulated period of 30 days under of the Companies Act, 1956. It was urged that the documents have been fabricated and manipulated by deceased Jagdev Singh to show him as Director without any actual proof that he ever discharged duties on or on behalf the tenant company for running its business affairs. Mr. Ravi Bassi, the ld. Counsel for the petitioner/landlady pointed out that as per CC of Form No. 32 Ex.RW- 1/6 (also Ex. RW1/1) one Swaran Singh was inducted as a Director on 01.06.1987 and if the case of the tenant company is believed that Jagdev Singh had also been inducted as a Director in the month May 1987, why his name was not indicated in Form No. 32 submitted on 01.06.1987. Lastly, it was submitted that Jagdev Singh was not Director of company as he was not holding qualification shares as on the date of his alleged induction as Director and RW-5 V.K. Jain, the Chartered Accountant and Company Secretary failed to depose as to when share were allocated to deceased Jagdev Singh. Mr. Ravi Bassi, the ld. Counsel for the petitioner/landlady relied upon Judgments in Chunni RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 17 of 41 Lal v. Vidya Devi, 138 (2007) DLT 224; Jagdish Kumar Aggarwal v. Agra Aerial Taxi Service, 23 (1983) DLT 251; New India Traders & Ors. v. Satish Swarup Gupta, 35 (1988) DLT 229; Narain Singh v. Shanti Devi, 2010 (115) DRJ601; Union Bank of India v. Vee Jay Enterprises, (2014) 173 (1) PLR 246; Pawan Kumar Dalmia v. HCL Infosystem Ltd., MANU/DE/1162/2012; Anil Bhasin v. Imarti Devi, MANU/DE/4524/2017; A. R. Balakrishan v. CIJ, (1973) ILR 3 Mad 458; and Aruna Suresh Mehra v. Jifcon Tools Pvt. Ltd., (1999) 1 CompLJ 163 (CLB).
DECISION
17. I have given my thoughtful consideration to the submissions made by Ld. Counsel for the parties who addressed arguments on being affording hearing through video conferencing. I have also meticulously perused the instant appeal filed as also the Trial Court Record. I have also gone through the written submissions filed on the record by the parties after conclusion of their submissions at the Bar sent through e-mails.
SECTION 14(1)(b) of the DRC ACT
18. Section 14 (1) (b) of the DRC Act provides as under:-
"Section 14 (1) (b): that the tenant has, on or after the 9th day of June 1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;"
19. The import and effect of the expressions "subletting" or "assignment" or "parting with possession" in various rent restriction RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 18 of 41 laws in India has been the subject of consideration of the courts for a long time now. In the context of similar provision in Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Supreme Court in its decision reported as Gopal Saran v. Satyanarayana, (1989) 3 SCC 56, while referring to its various previous decisions including Associated Hotel of India Ltd. Delhi v. S.B Sardar Ranjit Singh, AIR 1968 SC 933; Dr. Vijay Kumar v. Raghbir Singh Anokh Singh, (1973) 2 SCC 597; and Shalimar Tar Products Ltd. v. H.C Sharma, (1988) 1 SCC 70, inter alia, held thus:
"...to constitute a sub-letting, there must be a parting of legal possession i.e, possession with the right to include and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact.
xxx ...parting with possession is understood as parting with legal possession by one in favour of the other by giving him an exclusive possession to the ouster of the grantor...
xxx ...the question whether there is a tenancy or licence or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient, in our opinion, to infer either sub-tenancy or parting with possession..."
20. The case of Bharat Sales Ltd. v. Life Insurance Corporation of India, (1998) 3 SCC 1 had arisen out of a ground for eviction provided under Section 14(1)(b) of DRC Act. The Hon'ble Supreme Court interpreted the law thus:
"4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 19 of 41 in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let."
(emphasis supplied)
21. In Nirmal Kanta v. Ashok Kumar, (2008) 7 SCC 722, the law was explained in the following words:
"16. What constitutes sub-letting has repeatedly fallen for the consideration of this Court in various cases and it is now well established that a sub-tenancy or a sub-letting comes into existence when the tenant inducts a third-party stranger to the landlord into the tenanted accommodation and parts with possession thereof wholly or in part in favour of such RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 20 of 41 third party and puts him in exclusive possession thereof. The lessor and/or a landlord seeking eviction of a lessee or tenant alleging creation of a sub-tenancy has to prove such allegation by producing proper evidence to that effect. Once it is proved that the lessee and/or tenant has parted with exclusive possession of the demised premises for a monetary consideration, the creation of a sub-tenancy and/or the allegation of sub-letting stands established."
22. Referring interalia to NirmalKanta (supra), in CelinaCoelho Pereira v. Ulhas Mahabaleshwar Kholakar, (2010) 1 SCC 217, the law was reiterated and summarized by the Supreme Court as under:-
"25. The legal position that emerges from the aforesaid decisions can be summarised thus:
(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established, (one) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent.
(ii) Inducting a partner or partners in the business or profession by a tenant by itself does not amount to sub-
letting. However, if the purpose of such partnership is ostensible and a deed of partnership is drawn to conceal the real transaction of sub-letting, the court may tear the veil of partnership to find out the real nature of transaction entered into by the tenant.
(iii) The existence of deed of partnership between the tenant and alleged sub-tenant or ostensible transaction in any other form would not preclude the landlord from bringing on record material and circumstances, by adducing evidence or by means of cross-examination, making out a case of sub-
RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 21 of 41letting or parting with possession in tenancy premises by the tenant in favour of a third person.
(iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.
(v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.
(vi) In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted."
23. Thus, a stranger coming into possession of the tenanted premises wholly or partly without the consent of the landlord, constitutes the core element of the ground of subletting, assignment or parting with possession etc. The ingredient of "parting with possession wholly or partly" is inherent in all the three limbs. The primary burden of proving the presence of a stranger in the tenanted premises and he being in exclusive possession of the whole or part of the tenancy premises is upon the landlord. Once the landlord has proven that the tenant stands excluded from the tenancy premises the fundamental facts to show that the tenants stands excluded from the tenanted premises or that he has forfeited the "right to repossess" of the whole or part thereof, that an inference of subletting, assignment or parting with RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 22 of 41 arises thereby shifting the onus on the tenant to explain the legal status of the stranger in the tenancy premises.
STRANGER IS INDEED IN POSSESSION OF WHOLE OF THE TENANCY PREMISES-SHIFTING ONUS OF PROOF
24. In the light of the said proposition of law, reverting to the instant case the challenge to the testimony of the attorney of the petitioner PW-1 Nand Kishore is misconceived. Though he deposed as attorney but a bare perusal of his testimony would show that he was personally aware of the relevant facts and circumstances surrounding this case. In the light of admitted position that the tenancy premises had been let out to the respondent Tenant Company, PW-1 categorically deposed that the tenant company took premium from respondent Jagdev Singh and parted with the possession in favour of the latter; and that the tenant company shifted its business "lock, stock and barrel" to another Industrial location and it has ceased to do any work and business from the tenancy premises. Testimony of PW-1 that has closed its business for all practical purposes finds corroboration from the testimony of RW-2 S.D.L.Sadana who stated that there was a fire in the tenancy premises in the year 1983 which resulted in stoppage of business and they stopped running its affairs from the end of 1983. RW-2 further conceded that tenant company was not a working concern since 1983 but then RW-2 did a somersault trying to wriggle out of his admission and volunteering that the company stopped its business since 1988. His further deposition that the company was revived in the year 1985 is RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 23 of 41 not palatable considering his acknowledgment in his cross-examination that he started doing his own business in the name of M/S Sadana Brothers after 1983. The record bears testimony to the effect that the photocopies of the minutes of the AGM from the year 1986 till 1996 as also the certified copies Annual returns filed on 30th December, 1986 and 30th December, 1987, which are Ex. RW-1/3 & RW-1/4 respectively on the record "tell its tale" that no business of the company was being run from the tenancy premises and RW-2 conceded that the last income tax returns were filed for the assessment year 1985-86. Infact, the widow of late Jagdev Singh RW-1 Ranjit Kaur as also their son RW-3 Gurminder Singh also acknowledged the fact that the respondent tenant company had ceased to operate any business from the tenancy premises from the year 1987.
25. The sum total of the aforesaid discussion is that the petitioner/landlady has been able to demonstrate that the possession of the tenancy has been parted with by the tenant company in favour of respondent no. 2 Jagdev Singh, now survived his Legal Representatives(LRs) viz., the appellant (s) before us and the deceased had been in exclusively occupation thereof in his life time and his LRs after his death. In other words, the tenant company has ceased to have any business form the tenancy premises in question and there is no iota of evidence that deceased Jagdev Singh or for that matter his LRs have been doing any business for or behalf of the tenant company. That being the case, the onus shifts upon the appellant(s) that the parting of possession in favour of deceased Jagdev Singh was RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 24 of 41 by virtue of written approval as per letter dated 14 th August, 1987 Ex. RW2/1, which reads as under:
"August 14, 1987 M/s. High Purity Chemicals Private Limited, 8/34, Kirti Nagar, Industrial Area, New Delhi Dear Sirs, Ref: My property 8/34, Kirti Nagar, Industrial Area, New Delhi Sub: Request for No Objection letter:
This is with reference to your request on the above cited subject, regarding the above mentioned premises rented to you. I confirm that I shall have no objection if at any time, the controlling interest of your company, i.e. M/s. High Purity Chemicals Pvt. Ltd., comes in the hands of your any director / directors, appointed by your board of directors. I shall also have no objection if any company/firm owned by your director/ directors is conducting any other business in the same premises. Further, I have no objection for the portions being assigned to parted with in favour of your any director/directors, including your recently appointed director Sh. Jagdev Singh for doing business with whatsoever name and constitution.
Thanking you, Yours faithfully, (CHUNI LAL BAKSHI) 642, Block 'O', New Alipore, CALCUTTA"
IS LETTER DATED 14TH AUGUST, 1987 GENUINE?
RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 25 of 4126. The aforesaid letter has been "the bone of contention"
between the parties not only as to its genuineness and admissibility but also as regards its import or scope of application. At the cost of repetition, there are two diverse opinions of the expert witnesses examined from both sides about its genuineness. The testimony of RW-2 S.D.L.Sadana that since the business of the tenant company was in doldrums, he along with deceased Jagdev Singh visited Calcutta and met erstwhile owner/landlord Chuni Lal Bakshi and on being persuaded to accord consent to allow parting of the possession of the premises in favour of Jagdev Singh, Chuni Lal Bakshi agreed and signed the letter dated 14th August, 1987 Ex. RW-2/1 at point 'A' in their presence, was corroborated by RW-1 Ranjit Kaur. The testimony of is RW-1 and RW-2 are in chorus that after obtaining such consent, possession of five rooms and a hall was parted with in favour of Jagdev Singh followed by a notice as per Form 'E' under the DRC Rules dated 10th September,1987 Ex. RW-2/2 that was served upon Chuni Lal Bakshi; and that RW-2 S.D.L. Sadana along with Jagdev Singh went to Calcutta again to serve such notice and it was acknowledge by Chunni Lal Bakshi by signing at point 'B'.
27. The relevancy and admissibility of letter dated 14th August, 1987 Ex. RW-2/1 is challenged on the ground that it was not proved by summoning and examining its author who was alive at the time of leading of evidence by the respondents/ tenant or possessor Jagdev RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 26 of 41 Singh. Section 45 and 47 of the Indian Evidence Act provides as under:
"45. Opinions of experts.- When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting, the opinions upon that point of per- sons specially skilled in such foreign law, science or art, are relevant facts. Such persons are called experts. "47. Opinion as to handwriting, when relevant.--When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not writ- ten or signed by that person, is a relevant fact."
28. In the case of Rajinder Bajaj v. Indian Tanning Industries, 2007 SCC OnLine Del 1669, in a challenge targeting to the Trial Court making naked observation with respect to certain documents and holding the same to be forged and fabricated, the Hon'ble Judges reiterated the legal view that the opinion of the handwriting expert is not a conclusive piece of evidence and it is incumbent upon the Court to examine the questioned documents and reach conclusion of its own. Their lordships referred to the case of Murari Lal v. State of M.P. ((1980) 1 SCC 704 : AIR 1980 SC 531), where the Hon'ble Supreme Court considered the approach to be adopted and the caution to be observed while considering the opinion evidence of handwriting expert under Section 45 of Indian Evidence Act, 1872. The Supreme Court observed that while corroboration may not be insisted upon as an invariable rule, the approach of a court while dealing with opinion of handwriting expert should be to proceed cautiously, probe the reasons of opinion, consider all other relevant evidence and decide finally to accept or reject it. In paras 11 and 12 of the said judgment it was observed:
RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 27 of 41"we are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted. The cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this court are often flaunted. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid that it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert, (emphasis supplied) Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the courts own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence........."
29. In the cited case of Rajinder Bajaj v. Indian Tanning In- dustries(supra) reference was also made to decision of the The RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 28 of 41 Supreme Court again in Lalit Popli v. Canara Bank ((2003) 3 SCC 583 : AIR 2003 SC 1796) held:
"It is to be noted that under Sections 45 and 47 of the Evi- dence Act, the court has to take a view on the opinion of oth- ers, whereas under Section 73 of the said Act, the court by its own comparison of writing can form its opinion. Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both un- der Section 45 and 47 the evidence is an opinion. In the for- mer case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the court can compare the admitted writ- ing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible un- der Section 73 of Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwrit- ing Expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts evidence is not there, Court has power to compare the writings and decide the matter."
30. In the light of the said tenet of the law, reverting to the instant case, the testimony of RW-2 S.D.L.Sadana that Chuni Lal Bakshi used to sign rent receipts in his presence and he was acquainted with his handwriting and signatures, is on a slippery grounds since on being challenged in his cross-examination, the witness failed to produce any rent receipts signed and issued by Chuni Lal Bakshi except one photocopy marked Ex. RW-2/X-1, which is dated 26.04.1988, i.e, the period after the petitioner/landlady became the owner /landlord of the premises. Reverting to the expert opinion, a meticulous naked- examination of the purported signatures at point 'A' & 'B' would support the observations of PW-2 in his report Ex. Pw2/1 RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 29 of 41 that " the unnatural combination of thick and thin strokes & ink feathering in A& B signatures proves that there is absence of proper oxidation and natural absorbing process of ink and there is no natural intermingling of ink & paper as found in genuine handwriting. The presence of different thickness of strokes in Type written words "New Alipore " below'A' signature is again a highly suspicious circumstances and the similar color of signatures marked A & B is highly suspicious circumstance." In my opinion, there is a clear impression on examining the questioned signatures that the findings that the signatures at point 'A' & 'B' rather show slow pen execution and the words not aligned and embossed or absorbed on the paper, can not be brushed aside. The alphabet 'C' while signing Chunni Lal is visibly containing an overwriting and rest of the alphabets are not having in continuous flow, nor aligned cohesively; and it is interesting to note that such signatures of Chunni Lal in a photocopy on the record at page 779 marked XYZ under my initials today appear to be quite embossed, prominent and deceptively dissimilar to the original one Ex. RW-2/1.
31. On the other hand, the report Ex. RW-4/13 of RW-4 examined by the appellant is not inspiring confidence since the observation of the Expert witness vide paragraph (D) at page'3' that :"the LINE QUALITY is smooth, flowing and continuous in all signatures " and further paragraph (F) that " there are also found similarities in the slant, alignment, rythem. Connections, angle , spacing, sizing and in Pictorial aspects in all the signatures" are RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 30 of 41 not palatable. The said observations in RW-4/13 are too wild, and sweeping assertions that belie common sense. In the said view, I find that the signatures of the erstwhile owner on the letter dated 14 th August, 1987 Ex. RW-2/1 as also notice dated 10 th September, 1987 are not proved as per the law and the said letters appear to be not genuine.
32. I may hasten to add that even in the alternative if the letter dated 14th August, 1987 Ex. RW-2/1 is held to be genuine, particularly in view of opinion expressed that signatures of Chunni Lal Bakshi appeared to be genuine at Point 'A' & 'B' on his purported affidavit dated 11th August, 1993 Ex. RW-2/3, the fact remains that even the latter i.e., RW-2/3 has not be proven by its author as per section 47 of the Indian Evidence Act. Testimony of RW-1 Ranjit Kaur that she requested Chunni Lal Bakshi to execute an affidavit in her favour acknowledging grant of permission to sut-let or part with tenancy premises vide letter dated 14th August,1987 and then she visited Calcutta to collect the affidavit 11th August, 1993 Ex. RW-2/3 is not proved as per the law. Mere opinion of PW-2 his report Ex. PW-2/A that purported signatures of the deponent i.e, Chunni Lal Bakshi tallied with his writings/s signatures on four above referred letters written by Chunni Lal Bakshi Ex. PW-2/2 to PW-2/4 does not prove its execution. It goes in the same vain that it is not palatable that Jagdev Singh along with RW-2 S.D.L.Sadana took the extreme trouble of going all the way to Calcutta to deliver the notice as per Form 'E' dated 10 th September, 1987 in the absence of any cogent or credible proof of such traveling to RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 31 of 41 and fro.
ALTERNATE PLEA: LETTER DATED 14TH AUGUST, 1987 IF CONSIDERED TO BE GENUINE 33 All said and done, assuming for the sake of convenience and as an alternative route to appreciate the whole controversy, that the genuineness of the letter dated 14th August, 1987 Ex. RW-2/1 has been clinched by virtue of the affidavit dated 11th August, 1993 Ex. RW- 2/3, we need to have a re-look at such two documents and decipher the "pith and substance" of the two. In order to appreciate the real intention of the parties, assuming for the sake of convenience such documents to be true, genuine and admissible in evidence, we need to reproduce the contents of the affidavit Ex. EW-2/3, which reads as under:
"AFFIDAVIT Affidavit of Shri Chuni Lal Bakshi, aged 83 years, occupation retired son of Late Sh. Moti Ram Bakshi R/o House No. 642, Block 'O', New Alipore, Calcutta - 700053 I, Chuni Lal Bakshi, the above named dependent to hereby solemnly affirm and declare as under:-
1) That I was the owner and landlord of the property bearing No. 8/34, Kirti Nagar Industrial, New Delhi -1100 015
2) That M/s. High Purity - Chemicals Private Ltd., 8/3, Kirti Nagar Industrial Area New Delhi was my tenant on a monthly rent of Rs. 780/-
3) That M/s. High Purity- Chemicals Private Ltd., approached me in August, 1987 through their managing Director/Directors that the company wanted to part with possession to the concern/firm of one of the directors namely Sardar Jagdev Singh and wanted my consent.
4) That I had given written consent vide my letter dated 14.8.1987 that the company M/s. High Purity Chemicals Private Ltd. could let out the portion of the rented premises to any of its director or to his concerned and I would not have any objection RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 32 of 41 to this effect.
5) That Sh. Jagdev Singh started his business/manufacturing activities in the name and style of M/s.
Just Machine Tools being director of M/s. High Purity Chemicals Pvt. Ltd., New Delhi and I never raised any objection to this sub-letting/parting of possession to the same concern M/s. Just Machine Tools, New Delhi
6) That I have sole the above property bearing No. 8/34, Kirti Nagar Industrial Area, New Delhi to Smt. Pushpa Devi wife of Sh. Nand Kishore Bagrodia ED-81, Tagore Garden, New Delhi on October, 1987
7) That I have no interest, right and title in the said property No. 8/34, Kirti Nagar Industrial Area, New Delhi after its sale to Smt. Puspa Devi.
sd
Place: Calcutta Deponent
Date: 11.8.93
Verification
I, Chuni Lal Bakshi the above named deponent to hereby verify that the content of paragraph 1 to 7 of my above affidavit are correct and true to the best of my knowledge and no part of its false and nothing has been concealed therefrom.
Verified at Calcutta on 11th day of August,1993 sd Deponent"
34. Without further ado, on reading the contents of the said two documents in its plain and grammatical meaning, there could be no two opinion that the letter dated 14th August, 1987 Ex. RW-2/, firstly gave permission to occupy and be in possession of the whole or part of the tenancy premises to any one who acquired "controlling interest of the Company" ,and secondly for or in connection with the business of the tenant company to someone in the capacity of a director duly appointed by the Board of Directors; and further stipulating for "no objection" in the alternative if it was sublet or parted with in favour of RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 33 of 41 Jagdev Singh, newly appointed director of the tenant company. The same pre-condition that only a person as director of the tenant company, whether doing business in his own name or otherwise, was entitled to occupy and remain in possession of the tenancy premises was reiterated in the affidavit dated 11th August, 1993. The pith and substance was manifest that the tenancy premises could only be parted with wholly or partly in case of change in "controlling interest" of the Company in favour of one or more of its directors duly appointed by the Board of Directors including Jagdev Singh, newly appointed Director. A fortiori the letter letter dated 14th August, 1987 never expressly or by implication accorded approval to sublet or part with possession or assign the interest in the tenancy premises in favour of Jagdev Singh in his individual capacity.
WAS DECEASED JAGDEV SINGH REALLY A DIRECTOR ?
35. The moot question now is: whether deceased Jagdev Singh had become a director, or as pleaded by the appellant and the Tenant Company, an Executive Director, when the possession of the tenancy was parted with in his favour. Well, to cut the long chase short, the answer is an emphatic "NO". The appellant deceased Jagdev Singh and the tenant Company fail miserably fail to substantiate that Jagdev Singh had been duly appointed as its director w.e.f 19 th May, 1987, prior to obtaining the written permission on 14th August, 1987. First thing first, the joint written statement filed by the two directors was not supported by any resolution of the Board of Directors thereby authorising Shri S.D.L.Sadana, its Director or for that matter deceased Jagdev Singh to RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 34 of 41 defend the eviction petition, sign and verify the pleadings on behalf of the company. Well, even if such aspect is brushed under the carpet, the second most glaring omission is the failure of the Company as also deceased Jagdev Singh and/or his LRS during the course of trial to comply with notice u/ Order XII Rule 8 C.P.C dated 9 th September, 1995 and thereby deliberately not placing on the judicial record any decision or minutes of the Board of Directors appointing Jagdev Singh as the Executive Director w.e.f 19.05.1987. The version of RW-2 S.D.L.Sadana that some of the documents were misplaced by their Chartered accountant is self serving and sham defense that does not cut any ice.
36. Thirdly, I find substance in the plea of Shri Ravi Bassi, Ld. Counsel that as per the own document of the tenant company, one Shri Swaran Singh was appointed as ex-officio director of the Company w.e.f 27th April, 1987 and Form 32 under the Companies Act Ex. RW- 1/6 {also marked RW-1/1} was filed with the Registrar of Companies (ROC) on 15th October, 1987; and it that so, it belies common sense that if Jagdev Singh had been appointed as the Executive Director on 19th May, 1987, why Form no.32 Ex. RW-1/6 did not have his name. Form no. 32 with respect to deceased Jagdev Singh Ex. RW-1/7{also marked RW-1/2} as per the stamp impression for payment of prescribed fee and receipt with ROC appears to have been filed on 19TH February 1991, that is after more three years and nine month. There is further a dark cloud over the genuineness of this document i.e, Form No. 32 Ex. RW-1/7 as it appears that initially the date of RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 35 of 41 appointment of Jagdev Singh is written in handwriting as "20-5-1987"
and then the numeral '20' is struck off and '19' is written. Further, it appears the numeral '7' in 1987 is overwritten over earlier recorded year "1988". Interestingly, there is a certified copy of Form No. 32 on the record Ex. RW-1/2 where the numeral "seven" in 1987 could be seen without any overwriting. It was for the appellant/tenant company to prove such documents in case of such patent infirmities and they can not take shelter behind section 610(3) of the Companies Act, 1956 particularly when the marking of exhibits on the same were "objected to" in the cross examination of RW-1 as also other witnesses for the respondents.
37. In view of the aforesaid discussion, I have no hesitation in agreeing with the plea of Mr. Bassi ld counsel for the petitioner/landlady that the Form no. 32 Ex. RW-1/7 (also Ex. RW-1/2)referred above is not inspiring confidence and appears to be a forged and fabricated document. There is more to the story than to meet the eyes and the appellant and the tenant company keep treading precariously on in an unscrupulous manner relying on fabricated documents in their defense. It is pertinent to mention that Clause 12 of the Articles of Association of tenant company provided - "The qualifications of every Director shall be his/her holding and continuing to hold in his/her own name shares in the capital of the company of the nominal value of Rs. 5,000/- only". Clause 14 of the Articles of Association further provided - "If any Directors, being willing, shall be called upon to perform extra services in going or residing away from his place of residence for any of the RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 36 of 41 purposes of the Company or to give special attention to the business as members of a Committee of Directors or to hold any office in the company or to work as contractor, agent, purchaser, or to perform any other duty for any purpose of the company, the company may remunerate the Directors of so doing by paying his expenses and by a fixed sum or by percentage on profits or by fixing monthly allowance or otherwise as may be determined by the Directors and such remuneration nay either be in addition to or in substitution of his shares in the remuneration from time to time provided for Directors, subject to section 314 of the Companies Act, 1956".
38. I am afraid the tenant company or for that matter the appellant deceased Jagdev Singh survived by his legal heirs miserably fail to show that as on 19.05.1987, deceased Jagdev Singh was either holding or for that matter within two months of his appointment as a Director or Executive Director as the case may be, he acquired shares in his own name in the capital of the tenant company of the nominal value of Rs. 5,000/-. It is pertinent to mention that the share certificates evidencing allotment of shares in favour of deceased Jagdev Singh, which are Ex. RW3/1 to RW3/7 would reveal that the same were issued on 08.09.1988. It would bear repetition that despite service of notice dated 09.09.1995 under Order XII rule 8 CPC, the appellant and for that matter the tenant company failed to produce the "Members Share Holding Register" ending with the year December, 1987 nor the Director's Register was produced, and it stares on the face of the record that no resolution of the Board of Directors or for that matter the RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 37 of 41 ratification of any decision taken by the Board of Directors inducting Jagdev Singh as Director or Executive Director w.e.f. 19.05.1987 in the tenant company has been placed or proved on the record. RW5 V. K. Jain, Chartered Accountant and Company Secretary of the tenant company on being prodded on this aspect in his cross-examination was unable to say as to when deceased Jagdev Singh acquired shares in the company either. Further, as pointed out by Mr. Ravi Bassi, ld. Counsel for the petitioner/landlady/respondent no.1 in the present appeal, the name of deceased Jagdev Singh does not find any mention in the Director's report dated 31.12.1987 Ex. RW1/5, which bears signatures of Mr.S.D.L. Sadana and Mr. Nand Kishore Sadana. In this regard, the testimony of RW5 V. K. Jain, Chartered Accountant and Company Secretary of tenant company assumes significance that no meetings of the Board of Directors had taken place from 30.12.1986 to 30.12.1987.
39. The plea by Mr. Ravi Duggal, ld. Counsel for the appellant that provisions of the Companies Act, 1956 have an overriding effect with regard to anything provided in the Memorandum of Association and/or Articles of Association vide Section 9 of the Companies Act and that the qualification shares as on the date of appointment on 19.05.1987 was not enforceable in view of Section 270 (1) of the Companies Act, does not cut much ice either. The said stipulation was not applicable to a private company unless it is subsidiary of a public Company in terms of Section 273 thereof. Moreover, the decision in the case RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 38 of 41 of A. R. Balakrishan v. CIJ (supra) and Aruna Suresh Mehra v. Jifcon Tools Pvt. Ltd. (supra) clinch the issue that in case of a private company, the Directors may continue to have a Clause in the Articles of Association for holding of qualification shares via any Director as on the date of his appointment or within two months of his induction as a Director.
40. There is no mention or acknowledgment of Jagdev Singh as Director or Executive Director of the tenant company in the annual return dated 30.12.1987 Ex. RW1/4. In the minutes of Annual General Meeting held on 30.12.1987, which is Ex. RW5/P-2 though the attendance of Jagdev Singh for the purpose of quorum has been marked and a resolution was passed that Jagdev Singh, Director of Company retired by rotation and on being eligible for re-appointment, was re-appointed as a Director of the company. However, such document is shaky foundation in view of non-mentioning of name of Jagdev Singh as Director or Executive Director in the annual general report for the year ending 30.12.1987 Ex. RW1/4. Moreover, the writer of the minutes of the AGM as on 30.12.1987 Ex. RW5/P-2 has not been produced and the minutes of the AGM for the preceding year on 30.12.1986 Ex. RW5/P-1 and the other minutes upto the year 1994 were conceded by RW5 V. K. Jain to have been written by his Associate Mr. Avtar Singh. In any case, the minutes for the date 30.12.1987 Ex. RW5/P-2 also fail to record that deceased Jagdev Singh became Director w.e.f. 19.05.1987, and, there is no ratification of the alleged appointment therein.
RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 39 of 4141. In view of the aforesaid discussion, I have no hesitation in holding that the respondent no.2/tenant company as well as the appellant in the present appeal miserably failed top prove that Jagdev Singh had been lawfully appointed and otherwise acting for or on behalf of the tenant company in the capacity as a Director or a Executive Director. At the costs of repetition assuming that the written approval vide letter dated 14.08.1987 Ex. RW-2/1 had been executed and signed by Late Chuni Lal Bakshi, the real intention or the pith and substance of the letter was to allow any Director or even Jagdev Singh in the capacity of a Director of the tenant company to occupy or hold any part of the tenancy premises. The underline idea to allow to sub-letting or parting with the possession of whole or part of the tenancy premises in favour of its Director was to have a real connection with the operation or business affairs of the tenant company. Considering the speed and anxiety with which the letter dated 14.08.1987 and the notice vide Form 'E' dated 10.09.1987 was issued, that too by visiting all the way to Calcutta and visiting the erstwhile owner Chuni Lal Bakshi, it is not fathomable that the deceased Jagdev Singh and/or for that matter the other Directors of the company in particular Mr. S. D. L. Sadana omitted to observe the time lines with regard to various compliances about Jagdev Singh becoming a Director of the company w.e.f. 19.05.1987. Thus, I have no hesitation in agreeing with the submission of ld. Counsel for the petitioner/landlady that the deceased Jagdev Singh in collusion with the Directors of the tenant company, who had virtually abandoned "the ship" have manipulated the entire documents upon which their defence is based. Hence, this is a befitting case where RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 40 of 41 exemplary costs must be imposed upon the appellant as also the tenant company.
FINAL ORDER
42. The sum result of the aforesaid discussion is that the appeal filed by the appellant/tenant is hereby dismissed. The impugned order/judgment dated 29.09.2012 passed by Ld. ARC is upheld albeit with additional reasons that may be culled out from the oral and documentary evidence brought on the record. In the facts and circumstances of the case, the appellant/tenant survived by his legal heirs as well as respondent no.2/company are imposed upon with costs of Rs. 1,00,000/- each.
43. Accordingly, the Eviction order dated 29.09.2012 passed in favour of the petitioner/landlady in respect of property bearing factory No. B/34, Kirti Nagar Industrial Area, New Delhi-110015 comprising of an area of 300 Sq. meters as shown in the site plan Ex. PW1/2 and against the appellant Jagdev Singh survived by his LRs and the respondent no.2/tenant company is sustained.
44. The Trial Court record along-with copy of Judgment be sent back to the Court of Ld. ARC. Copy of this order be sent to the ld. Counsel for the parties through their e-mail address for their information. The appeal file be consigned to Record Room.
Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2020.08.11 21:24:26 +0530 Announced in the open Court (DHARMESH SHARMA) on 10th August, 2020 District & Sessions Judge/RCT (West) Tis Hazari Courts: Delhi RCT-05/2016 Jatinder Pal Singh vs. Pushpa Devi Bagrodia Page 41 of 41