Delhi District Court
Smt. Shashi Sharma vs M/S V.D Autowheels on 21 March, 2014
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IN THE COURT OF SH. LAL SINGH ADDL. DISTRICT JUDGE03,
DWARKA COURTS, NEW DELHI.
Suit No.174/12
1. Smt. Shashi Sharma
W/o Sh. Kirpal Chand Sharma
2. Sh. Aditya Sharma
S/o Sh. Kirpal Chand Sharma
Both R/o J11/106, Rajouri Garden,
New Delhi110027.
Plaintiffs through Attorney
Sh. Kirpal Chand Sharma
.......Plaintiffs
Versus
1. M/s V.D Autowheels
Through its partner
1. Sh. Prashant Godara
S/o Sh. Rajinder Singh Godara
Premises bearing no. F638, Sector7,
Dwarka Palam Extension, New Delhi
Also at
F637, Sector7, Dwarka Palam
Extension, New Delhi.
2. Sh. Vikash Godara
S/o Sh Rajinder Singh Godara
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3. Sh. Prashant Godara
S/o Sh. Rajender Singh Godara
Both R/o F637/F638,
Sector7, Dwarka Palam Extension,
New Delhi.
.....Defendants
O R D E R
1. By this order I shall dispose of an application under Order XII rule 6 read with section 151 CPC filed on behalf of plaintiff.
2. Plaintiff have filed the suit for possession and mesne profits against the defendants stating therein that the plaintiffs gave the premises consisting of ground floor and basement of the building constructed on plot no. F637 and F638, situated at sector7, Dwarka Palam Extension, New Delhi, at the agreed rent @ Rs.1,00,000/ per month to M/s V. D. Auto Wheels vide the lease deed dated 13.05.2011. It is averred in the application that due to accounting and tax purposes the plaintiffs agreed to sign and execute two lease deeds, though the tenancy was one and the rent was paid by the same tenant M/s V. D. Auto Wheels. It is contended that a legal notice dated 19.11.2011 was issued by the plaintiffs through their counsels in -3- which defendants were categorically informed that the tenancy of the premises has expired by efflux of time on 31.12.2011 and that the defendants shall handover the vacant physical possession of the suit premises to the plaintiff or their authorized representative on or before 31.12.2011. It is further contended that the relationship of landlord and tenant, rate of rent @ Rs.1,00,000/ per month and service of legal notice dated 19.11.2011 has been admitted by the defendants in their written statement and in view of this plaintiffs are entitled to a decree of possession of the suit premises bearing No. F637 and F638, situated at Sector7, Dwarka Palam Extension, New Delhi and prayed that a decree in favour of the plaintiffs and against the defendants thereby directing the defendants to handover the vacant physical possession of the suit premises as shown in red colour in the site plan, to the plaintiff.
3. Reply to the application has been filed by the defendants. It is contended by the defendants that the application is liable to be dismissed on the ground that the plaintiffs had miserably failed to demonstrate admission by the defendants in respect of the suit property. It is further contended that the plaintiffs have already -4- received rent after 31.12.2011 and as such the present application is not maintainable. It is further contended that the lease agreement is for initially valid for a period of five years as per unregistered lease agreement dated 02.06.2007, which was effective from 01st July, 2007 and the agreement per se is void ab initio on the ground that stamp duty has not been paid on the consolidated amount of rent for a period of five years. It is further contended by the defendant in the reply that there was no occasion to terminate the lease through legal notice dated 19.11.2011 when the lease was valid for a period up to 30.06.2012 and in fact the 2nd lease deed dated 30.05.2011 was for the purpose of increasing the rent. Defendant in reply denied of any admission being made by the defendants regarding the tenancy which is in itself in dispute, owing to the fact that the original lease deed of 01st July 2007 was for a period of five years. It is further contended by the defendant that the legal notice dated 19.11.2011 was issued when the tenancy was valid till 30.06.20012 and the intervening agreement was for the purpose of increase of rent. Defendants prayed that the application be dismissed with heavy cost.
4. I have heard the arguments on behalf of the learned -5- counsels of both the parties.
5. Sh. Rajiv Duggal, ld. counsel for the plaintiff argued that defendants have admitted in their written statement the material conditions such as existence and admission of the relationship of landlord and tenant; secondly, the rate of rent being Rs.1,00,000/ per month; thirdly, the legal notice under Section 106 T P Act. He further submitted that the defendant in their written statements have taken a false and frivolous plea that the tenancy between the parties is perpetual tenancy. He further argued that the perusal of lease deed between the parties clearly shows that there is no clause in the said lease deed where the landlord is bound to extend the lease deed on the demand of tenant rather there is a clause no. 20 in the lease deed dated 30.05.2011, which empowers the landlord to terminate the contract at any point of time in case of any violation of any kind whatsoever committed by the lesee and the termination can be done by 15 days prior notice. Ld. counsel for the plaintiff further argued that there is no waiver of notice issued under Section 106 T P Act by plaintiffs. He further submitted that defendant had played a fraud upon the plaintiffs and has deposited almost six cheques on the same -6- day i.e. on 30.03.2012 in the bank account of the plaintiff without the knowledge and consent of plaintiff. Ld. counsel for the parties also contended that the plaintiffs filed the present suit on 22.02.l2 on the basis of the said notice terminating the tenancy and the rent has been deposited on 30.03.12 by the defendants in the account of the plaintiffs and, hence, there is no question of considering any waiver of notice under Section 106 of T P Act by the plaintiff. Ld. counsel for the plaintiff also vehemently argued that as per the provisions of section 116 of Indian Evidence Act, defendants are barred from taking the plea or challenging the title of the landlord i.e. plaintiff in the instant case. He also argued that it is the law of the land that if the lease deed which is covered under Section 17 of Registration Act, and should have been registered, and if it is unregistered, then the same shall be treated as monthly tenancy and it is terminable by giving one month's notice. He further argued that unregistered lease deed does not give any right to the lessee. Ld. counsel for the plaintiff further argued that the perpetual lease cannot be created orally. Ld. counsel for the plaintiff prayed that the application under Order XII R. 6 CPC may be allowed in favour of the plaintiff and -7- against the defendants. Ld. counsel for the plaintiffs have also relied upon following judgments:
i) Sky land International Pvt. Ltd. Vs. Kavita P. Lalwani 191 (2002), Delhi Law Times 594
ii) Bhogadi Kannababu & Ors. Vs. Vuggina Pydamma & Ors. AIR 2006 Supreme Court 2403.
iii) Bansraj Laltaprasad Mishra Vs. Stanley Parker Jones AIR 2006 Suprme Court 3569.
iv) Precision Steel (M/s) Vs. Reeta Salwal 2014 II AD (Delhi) 472
v) Jotindra Steel & Tubes Ltd. Vs. Kiran Kandhari decided by Hon'ble Delhi High Court on 18.04.2012 in RFA No. 575/2006.
vi) DLF Ltd. Vs. Emirates 2010 (169) DLT 604.
vii) Ashwani Bhatia Vs. Suresh Rastogi 2012 (4) AD (Delhi) 315.
viii) Rakesh Basra Vs. Satsagar Gupta 2012 (186) DLT 129
ix) Abhinav Outsourcing Pvt. Ltd. vs. Sunita Seth 2012 (186) DLT 689
x) Bank of Rajasthan Ltd. Vs. M/s Sarin & Co.2000 1 AD (Delhi)
699.
6. On the other hand, Sh. Kuldeep Mansukhani, ld. counsel -8- for the defendants argued that it is the settled law for the grant of decree on admission under Order XII rule 6, that the defendants have to make unequivocal and unambiguous admissions and in the instant matter the defendants have not made any such admission either in the pleadings or in reply to the application under Order XII rule 6 CPC, hence, the application of plaintiffs ought to be dismissed at the very outset. Ld. Counsel for the defendants vociferously argued that the plaintiff has deliberately not mentioned the existence of agreement dated 02.06.2007 which was effective from 01.07.2007 for a period of 5 years. He submitted that as per clause of agreement dated 02.06.2007, it is amply clear that the intention at the time of signing of the agreement was to extend the same for a further period of five years and as such agreement was valid up to 30.06.2012. He also argued that in order to increase the rent during the subsistence of the agreement, another unregistered agreement was prepared on 30.05.2011 for a period of 11 months which was effected from 01.02.2011 and was to expire on 31.12.2011 and the plaintiff did not mention the subsistence of previous agreement which was valid even after the expiry of the subsequent agreement. Ld. counsel for the -9- defendant also submitted that the security deposit was given in the year 2007 and possession was also given in the year 2007 and as such the plaintiff have no right to issue any legal notice when the first lease agreement was still subsisting. Counsel for the defendants also argued that both the agreements as mentioned above are unregistered and, therefore, notice as contemplated under Section 106 of T P Act is not applicable and the claim of the plaintiffs that admissions have been made in respect of the notice and in respect of tenancy does not hold good, as the notice itself is void ab initio. Ld. counsel for the defendants also argued that the plaintiffs have not filed even a single document in respect of title of the suit property, when the agreement claimed that the lessor are owner of the property. He submitted that there is no merit in the application and the same is liable to be dismissed. Ld. counsel for the defendants have relied upon the following judgments:
i) Radha Lal Vs. Jessop and Company 1992 AIR (Del) 331.
ii) M/s Jeevan Diesels & Electricals Vs M/s Jasbir Singh Chadha (HUF) & Ors 2011 (183) DLT 172
iii) Pieco Electronics & Electricals Ltd. Vs. Smt. Tribeni Devi AIR -10- 1990 Calcutta 135.
iv) Delhi Motor Co. & others Vs. U.A.Basrurkar (dead) by legal representatives & Ors. AIR 1968 Supreme Court 794 (V 55 C 161).
7. I have considered the rival submissions of the Ld. counsels for the parties and also carefully gone through the file.
8. It is the contention of the plaintiff that defendants in their written statement has admitted the relationship of landlord and tenant between the parties, rate of rent of Rs.1 lac per month and further defendants have admitted the service of legal notice dated 19.11.2011. As per the contention of the counsel for the plaintiff for decree under order XII rule 6 CPC three things have to be seen i.e the existence and admission of landlord and tenant relationship between the parties, the rate of rent shall be more than Rs.3500/ per month, which is admittedly Rs.1 lac per month in the present case and the legal notice under section 106 of D.P.Act. As per the plaintiff, defendant has admitted all the above facts in their WS. However, the defendants contended that merely because there is an existence of agreement of tenancy, it cannot concluded that there is an admission of other facts as well. Defendants have relied upon the unregistered lease agreement -11- dated 02.06.2007 which was effective from 01.07.2007 stated to be valid for a period initially for five years. As per the defendants, there was no occasion to terminate the lease through a legal notice dated 19.11.2011 when the lease was valid up to 30.06.20012. It is the contention of defendants that in fact the second lease dated 30.05.2011 was for the purpose of increasing the rent. Defendants also contended that moreover the plaintiffs have already received a rent after 31.12.2011 and as such application is not maintainable.
9. Perusal of written statement of the defendants, it is apparent that the defendants in their WS admitted that the possession in respect of ground floor and basement of the property pursuant to an unregistered lease deed dated 30.05.2011 which was given at Rs. 1 lac per month, to be paid @ Rs. 50,000/ per month to each of the plaintiffs. Defendants further in their WS admitted that the lease deed dated 30.05.2011 was executed by Kirpal Chand Sharma in favour of Prashant Godara in his capacity as the lessor of the property and further the second lease deed has been executed by plaintiff No.1 Smt. Shashi Sharma in favour of M/s V.D. Auto Wheels. Defendants in WS also categorically admitted that the second lease deed was -12- signed by Prashant Godara in capacity of a partner of M/s V.D Autowheels. Defendants further in their WS specifically admitted that the legal notice dated 19.11.2011 was served through their counsel. Hence, it is clear that the defendants have admitted the relationship of landlord and tenant between the parties, the rate of rent of Rs.1 lac per month, as well as service of legal notice dated 19.11.2011.
10. As per the plaintiff the tenancy between the parties cannot be treated as perpetual tenancy because the perusal of lease deed between the parties clearly shows that there is no clause in the lease deed that the landlord is bound to extend the lease deed on the demand of tenant, rather as per clause 20 of lease deed dated 30.05.2011, empowers the land lord to terminate the contract at any point of time giving 15 days prior notice. From perusal of clause 20 of the lease deed dated 30.05.2011, it is stated that in case of any violation of any kind whatsoever committed by lessee of the terms and conditions of the agreement contained, the lessor shall have right to terminate his agreement by giving 15 days prior notice. As per the defendants the plaintiff has deliberately not mentioned the existence of an agreement dated 02.06.2007 which was effective from -13- 01.07.2007 for a period of five years. It is the contention of the defendant that agreement/lease deed dated 30.05.2011 was executed for enhancement of rent. But from perusal of agreement/lease deed dated 30.05.2011 there is no mention that the lease deed dated 30.05.2011 was executed between the parties only for enhancement of the rent, as claimed by the defendant. Hence, there is no substance in the contention of defendants that the lease deed dated 30.05.2011 was entered into between the parties just to enhancement of the rent. It is also the contention of the defendant that the first lease deed was initially for the period of five years and was valid till 30.06.20012 and before expiry of first lease deed, a legal notice dated 19.11.2011 was issued by the plaintiff without mentioning the first/previous lease deed. When the lease deed dated 30.05.2011 was executed between the parties for the period initially for 11 months and also in the said lease deed there is no mention of any condition of the previous lease deed, therefore, the contention of the defendant about the validity of previous lease deed, even after the execution of the lease deed dated 30.05.2011 for 11 months, is having no force and hence, same is also not tenable. If the previous lease deed was valid for five years i.e. till -14- 30.06.20012, then where was the occasion for executing the second lease deed dated 30.05.2011 for 11 months, that also without mentioning about the previous lease deed in the lease deed dated 30.05.2011.
11. Defendants have also raised objection regarding the ownership of the plaintiff qua the suit property. It is the contention of the defendants that the plaintiff has not filed a single document in respect of title of the property, particularly when the agreement claimed that the lessors are owner of the property. Further both the plots F637 and F638 were allotted to economically backward classes, with a rider that same cannot be sold or transfer to anyone. However, the plaintiff's contention is that two lease deeds i.e lease deed of the year 2007 and lease deed of the year 2011, were admitted by the defendants which clearly shows that the plaintiff are the owners of suit property and said fact has been accepted by the defendants for the entire period of tenancy when the defendant had been paying the rent to the plaintiff without any objection. Section 116 of Indian Evidence Act mandates that a tenant whose tenancy has been created by the landlord has no right to raise objection or -15- challenge or dispute the ownership of the landlord. In the judgment titled as Precision Steels (M/s) Vs. Reeta Salwan 2014 II AD Delhi 472, it was observed by the Hon'ble High Court that, As far as plea, challenging the ownership of respondent/plaintiff is concerned, it is the settled position in law that in a suit between a landlord and tenant, it is only title as landlord which is relevant and not the title as owner.
12. Further in the judgment of Sky Land International Pvt. Ltd. Vs Kavita P. Lanwani, 191 (2012) Delhi Law Times 594, it was observed that, Under Section 116 of Indian Evidence Act, the lessee is estopped from denying the titled of the transferee landlord. Section 116 of Indian Evidence Act provides that no tenant of immovable property shall, during the continuous of tenancy, be permitted to deny the titled of the landlord meaning thereby that so long as the tenant has not surrendered the possession, he cannot dispute the title of the landlord. Howsoever, defective the title of the land lord may be, a tenant is not permitting to dispute the same unless he has surrendered the possession of his landlord. -16-
Therefore, in view of the above judgments it is amply clear that the defendants cannot dispute the title of the landlord/plaintiffs.
13. The another contention raised by the defendants is that both the agreements referred to are unregistered therefore notice as contemplated under section 106 of Transfer of Property Act is not applicable and the claim of the plaintiffs that admission had been made in respect of the notice and in respect of tenancy does not hold good as notice in itself is void abnitio. However, on this aspect, Ld. counsel for the plaintiff contended that if lease deed is covered under section 17 of Registration Act and should have been registered, if unregistered, then the same shall be treated as monthly tenancy and it is terminable by giving one months notice. In the judgment of Ashwani Bhatia Vs. Suresh Rastogi 2012 (4) A.D Delhi 315, wherein it was observed that, the relationship of landlord and tenant is admitted and the rate of rent is also admitted to be more than 3500/ i.e. 14,200/ per month. Dehors the issue of termination of tenancy, the period of lease has also expired on 05.07.2011. I have in the recent judgment reported as M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha (HUF) & Anr. 2011 (183) DLT -17- 712 held that even if it is not proved that legal notice was served prior to filing of the suit, the service of summons of the suit can be taken as a notice under section 106 of the Act.
14. As per plaintiffs there is also no waiver of notice under section 106 of T.P.Act by the plaintiffs, as claimed by the defendants. Plaintiffs contended that defendants have played a fraud upon the plaintiffs and has deposited almost six cheques on the same date i.e on 30.03.2012 in the bank account of the plaintiffs without the knowledge of plaintiffs. There is no averment on behalf of the plaintiffs wherein it can be said that the plaintiffs have waived notice under 106 T.P.Act. In the case of Bank of Rajasthan Ltd. Vs. M/s Sarin & Co. 2000 I AD (Delhi) 699, wherein it was observed that, Plain reading of section 113 of T.P.Act shows that it consists of two essential components: (a) the express or implied consent of person to whom the notice is given and (b) act of person giving notice showing the intention to treat the lease subsisting. In order or constitute waiver, both the ingredients must conclusively exists, which means the act of acceptance of rent by itself without reference to the intention of the lessor, cannot be deem to be the waiver. -18-
Hence, the contention of the defendants regarding notice under section 106 of T.P Act is having no force and is not tenable.
15. In order to pass a decree under order XII rule 6 CPC in the suit like a present one, the material which has to be seen is that, the relationship of the landlord and tenant between the parties, the rate of rent being more than 3500/ per month and termination of lease by notice. In the instant matter, there is no dispute between the landlord and tenant relationship, further the rent is admittedly Rs.1 lac per month paid by the defendants to the plaintiffs and service of the legal notice is also admitted. Therefore, the present suit is liable to be partly decreed qua the relief of recovery of possession. The suit qua relief of recovery of damages and mesne profit would proceed.
16. Therefore, the application under order 12 rule 6 CPC is allowed. A Decree of possession is passed in favour of the plaintiffs against the defendants directing the defendants to hand over the vacant and peaceful possession of the suit premises i.e entire ground floor and basement built up upon plot No. F637 and F638 situated at sector7, Dwarka, Palam Extension, New Delhi, as shown in red colour in the site plan, to the plaintiffs.
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17. The suit is partly decreed in the aforesaid terms under order XII rule 6 CPC.
18. The part decree sheet be prepared accordingly.
ANNOUNCED IN THE OPEN
COURT ON 21st March, 2014
(LAL SINGH)
ADDL. DISTRICT JUDGE03,(SW)
DWARKA COURTS, NEW DELHI
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Suit No.174/12
Shashi Sharma & Ors. Vs M/s V.D Autowheels & Ors.
21.03.2014
Present : None.
Vide my separate order of even date, the application under order 12 rule 6 CPC is allowed.
A Decree of possession is passed in favour of the plaintiffs against the defendants directing the defendants to hand over the vacant and peaceful possession of the suit premises i.e entire ground floor and basement built up upon plot No. F637 and F638 situated at sector7, Dwarka, Palam Extension, New Delhi, as shown in red colour in the site plan, to the plaintiffs.
The suit is partly decreed in the aforesaid terms under order XII rule 6 CPC.
The part decree sheet be prepared accordingly.
Now to come up on 12.05.2014 for framing of issues.
( LAL SINGH) ADJ/ DWARKA COURTS 21.03.2014 -21-