Delhi District Court
Shri Sat Pal Vohra vs M/S. Bat Bro Engineering And General on 11 July, 2014
IN THE COURT OF Ms. ANU MALHOTRA
DISTRICT & SESSIONS JUDGE / ARCT (WEST) : DELHI
ARCT103/13
Unique ID No. 02401C0510302012
1. Shri Sat Pal Vohra
2. Shri Rajinder Pal Vohra
Both sons of Late Sh. Chunni Lal Vohra
R/o 15, Rose Avenue, Maqbool Road,
Amritsar, Punjab.
At present:
92 D, Mall Road,
Amritsar, Punjab. ..... Appellants
Versus
M/s. Bat Bro Engineering and General
Manufacturers,
1/25, Vohra House,
Asaf Ali Road, New Delhi. . . . . . Respondent
Date of Institution : 30.10.2012
Date of reserving the judgment : 23.01.2014
Date of pronouncement of : 11.07.2014
Judgment
JUDGMENT
This Judgment shall dispose off an appeal instituted on 30.10.2012 by the appellants Shri Sat Pal Vohra and Shri Rajinder Pal ARCT No. 103/13 Page 1/13 Vohra against the respondent M/s. Bat Bro Engineering and General Manufacturers assailing the impugned judgment dated 22.09.2012 of the ld. CCJcumARC (Central) in Eviction Petition No. E61/2008 whereby the said Eviction petition instituted on 04.02.2004 bearing initial No. E80/04 and ultimately renumbered as E61/08 filed by the petitioners therefrom (the present appellants) against the respondent under Section 14(1)(b) of the Delhi Rent Control Act, 1958 as amended (hereinafter referred to as "the DRC Act") seeking eviction of the respondent from the tenanted premises comprising of two halls, three baths and two stores as shown in red in site plan annexed to the petition on the second floor of the H. No. 1/25, Vohra House, Asaf Ali Road, New Delhi, was dismissed.
The said appeal relates to the Central District and has been taken up by the undersigned, in view of proceedings dated 28.11.2013 in RCT No. 72/2012 of the ld. Rent Control Tribunal, Delhi transferring the appeal to this ARCT (West).
Notice of the appeal in the instant case had been issued by the ld. RCT, Delhi to the respondent, who was put in appearance and contested the petition.
Written submissions were submitted on behalf of either side i.e. by the ld. counsel Shri Nitin Sharma for the appellants and by ARCT No. 103/13 Page 2/13 ld. counsel Shri Ashish Pratap Singh for the respondent, in terms of order dated 03.12.2013.
The records of the ld. CCJcumARC (Central)in Eviction petition No. E61/2008 have been requisitioned and perused.
ANALYSIS A perusal of the records of Eviction Petition No. E61/2008 brings forth that the relationship of landlord and tenant between the appellants herein and the respondent of the demised premises is admitted. Whereas it is the categorical assertion of the appellants that the respondent has sublet, assigned or has parted away with the whole of the tenanted premises which was let out to the respondent on 01.02.1976 which premises comprise of two halls, three baths and two stores as shown in red in site plan annexed to the petition on the second floor of the H. No. 1/25, Vohra House, Asaf Ali Road, New Delhi to Shri Neeraj and Shri K. S. Dagar without the written consent of the landlords in writing four months prior to the institution of the eviction petition and that Shri Neeraj and Shri K. S. Dagar had opened an office in the name and style of M/s. Brilliant Credit Inc. in the same and were doing the business of financing of motor cars as Direct Sales ARCT No. 103/13 Page 3/13 Associates for the HDFC Bank Limited and that the premises were exclusively occupied by Shri K. S. Dagar and Shri Neeraj, who were doing their business there at the aforesaid premises, the respondent denied the said contention and denied that any office in the name and style of M/s. Brilliant Credit Inc. was being run in the tenanted premises and denied that the respondent had sublet the premises to Shri Neeraj and Shri K. S. Dagar about four months prior to the institution of the Eviction petition and also denied that M/s. Brilliant Credit Inc. was doing any business of financing of motor cars as Direct Sales Associates of HDFC Bank Limited in the tenanted premises.
Vide the impugned judgment, the ld. CCJcumARC (Central) has held that the petitioners (the appellants herein) had failed to establish that the respondent had sublet, assigned or has parted with the possession of the tenanted premises without the consent of the petitioners. The records of the ld. CCJcumARC (Central) indicate that six witnesses were produced by the appellants and the respondent was represented by RW1 Shri G. L. Batra, Proprietor of M/s. Bat Bro Engineering & General Manufacturers.
Through the appeal and written submissions submitted, the appellants have submitted that there has been a misappreciation of the evidence led by the appellants by the ld. CCJcumARC (Central) and ARCT No. 103/13 Page 4/13 that the testimonies of witnesses produced by the appellants and the testimony of RW1 G. L. Batra established the claim and contention of the appellants that the respondent has sublet the tenanted premises without the written consent of the appellants.
A perusal of the testimonies of witnesses produced by the appellants indicates that the appellant No.2 i.e. the petitioner No.2 to the Eviction petition Shri Rajinder Pal Vohra through his affidavit Ex.P1 and his testimony has categorically asserted that the tenanted premises have been sublet to Shri Neeraj and Shri K. S. Dagar, who were running the business of financing of motor cars under the name and style of M/s. Brilliant Credit Inc. at the tenanted premises, which was situated on the back portion of the premises No. 1/25, Vohra House, Asaf Ali Road, New Delhi. The testimony of Shri Rajinder Pal Vohra also brings forth that there was a sign board / hoarding put up by Shri Neeraj and Shri K. S. Dagar in the front side of the tenanted premises and the photographs of the same are Ex. PW1/4 (colly) with the negatives thereof being Ex. PW1/5. The said witness has categorically also stated that no written permission was accorded to the respondent nor sought by the respondent from the appellants before subletting the tenanted premises. Significantly, Shri Rajinder Pal Vohra examined as AW1 has categorically stated that he had himself ARCT No. 103/13 Page 5/13 visited the tenanted premises occupied by Shri Neeraj and Shri K. S. Dagar, who informed that they were doing the finance business.
The testimony of Shri Vijender Kumar, Phone Mechanic, Darya Ganj Telephone Exchange, New Delhi brings forth that there was one telephone bearing No. 23217471 in the name of Bat Bro Engineering at the tenanted premises but that the telephone No. 23217472 in the name of the respondent had been shifted to M/s. Bar Bro, Shed No. 7, PhaseI, Badli Industrial Area, Delhi.
PW3 examined by the petitioners was Shri Arvind Kumar, Assistant Manager (Legal), HDFC Bank, whose testimony brought forth that he had brought the original agreement between HDFC Bank Limited and Brilliant Credits Inc., (copy of which is Ex. PW3/A on the record) and that he was an Authorized Representative of the HDFC Bank Limited and had brought the GPA on behalf of the HDFC Bank Limited authorizing him to represent the bank in the count. He further stated that he had no personal knowledge regarding the execution of the document Ex. PW3/A i.e. the original agreement between HDFC Bank Limited and M/s. Brilliant Credits Inc. The testimony of AW4 Shri Ashley D'Souza, Manager (Personnel & Administration), Rediff.com India Ltd. brings forth vide Ex. PW4/A that the Company Secretary and Manager (Legal) of ARCT No. 103/13 Page 6/13 Rediff.com India Ltd. issued Ex. PW4/A informing that the email id bci hdfc @rediffmail.com had been issued in the name of Brilliant Credits Inc. on 04.11.2001 with the telephone number there being 23217471, though the said email had expired due to nonusage as on the date 21.08.2006, the date of issuance of Ex. PW4/A. The testimony of PW 5 Shri Anil Singh Bisht, Process Server, Nazarat Branch, Tis Hazari Courts is not being taken into consideration for the reasons it relates to Eviction Petition No. E 993/2006, which is presently not before this Court.
The testimony of PW 6 Shri Sambhu Kumar Jha, Area Legal Manager, HDFC Bank Ltd. indicates that he had filed the certified copies of :
1. letter of authority for acting as a Direct Agent Sales on behalf of the HDFC Bank,
2. deed of partnership executed between Shri K. S. Dagar and Shri Neeraj Nanda,
3. the Direct Sales Associate application form duly filled in by Shri Neeraj Nanda and Shri K. S. Dagar, and
4. Direct Sales Associate Sourcing Agreement duly signed on behalf of Brilliant Credits Inc., ARCT No. 103/13 Page 7/13 photocopies of which were collectively exhibited as Ex. PW6/A, the originals of the same are however stated to be lying at the Head Office situated in Mumbai.
On being crossexamined, the witness PW6 categorically denied that the partnership deed filed by him was forged and fabricated and stated that only the photocopy of the said partnership deed was supplied to the bank by the Brilliant Credits Inc., though the same was duly verified with the original. He further denied that the said partnership deed has not been verified by the bank but admitted that there was no agreement executed between the respondent and the bank. He further denied however that the documents brought by him were forged and fabricated.
The testimony of RW1 Shri G. L. Batra, Proprietor of the respondent through his affidavit and crossexamination denies the contention of the appellants of subletting the premises to Shri Neeraj and Shri K. S. Dagar without the written consent of the appellants but admits that he is running a factory at Shed No. 7, Phase1, Badli Industrial Area and admits that Ex. RW1/P1, the computer generated copy of the MTNL bill of telephone No. 23217472 has indicated that the said phone has been subscribed by him from the MTNL and that the said telephone number had been shifted to his factory, which ARCT No. 103/13 Page 8/13 address is Shed No. 7, Phase1, Badli Industrial Area. The respondent through the testimony of RW1 has admitted the receipt of the notice dated 05.08.2011 under Order 12 rule 8 of the CPC i.e. Ex. RW1/P2 as received from the counsel of the appellants for production of the following documents :
1. all original electricity and telephone bills installed in the tenanted premises bearing No. 1/25, Vohra House, II Floor, Asaf Ali Road, New Delhi - 110 002 since the inception of tenancy and upto date,
2. all the papers, documents etc. concerning and showing the commencement and continuance of the business run in the name and style of M/s. Bar Bro Engineering and General Manufacturers from the tenanted premises bearing No. 1/25, Vohra House, II Floor, Asaf Ali Road, New Delhi - 110 002 since the inception of tenancy, and ARCT No. 103/13 Page 9/13
3. All income tax returns / sales tax receipts / statement of affairs, etc. showing the business being run from the tenanted premises bearing No. 1/25, Vohra House, II Floor, Asaf Ali Road, New Delhi - 110 002 since the inception of tenancy, which were not produced by the respondent stating that the documents were very old and were not in possession of RW1.
Interalia, RW1 stated that the income tax returns filed by him since the institution of the tenancy were also not in his possession nor the statement of receipts nor electricity or telephone bills and that he was not maintaining any accounts of his firm and could not produce the same nor did he have any bank account in the name of M/s. Bat Bro Engineering and General Manufacturers.
Significantly, RW1 has admitted that the address mentioned in Ex. PW6/A i.e. the documents produced by the Area Legal Manager, HDFC Bank Limited in relation to the deed of partnership, direct sales associate application, direct sales associating agreement signed on behalf of Brilliant Credits Inc. gave the address of the tenanted premises. Equally significant is the fact that RW1 has admitted that he has not taken any legal action, neither civil or criminal against the HDFC Bank Limited, Rediff.com or against Shri ARCT No. 103/13 Page 10/13 Neeraj and K. S. Dagar for using the address of the tenanted premises his telephone numbers in their visiting cards, hoardings or on Ex. PW6/A or for obtaining the email address.
CONCLUSION Taking the totality of the circumstances of the case into account, it is apparent that the respondent M/s. Bat Bro Engineering and General Manufacturers has inducted Shri Neeraj and Shri K. S. Dagar of Brilliant Credits Inc. into the tenanted premises as tenants to carry on a financial business without the written consent of the landlord / petitioners i.e. the appellants herein. The aspect of the back portion of the premises No. 1/25, Vohra House, Asaf Ali Road, New Delhi i.e. the tenanted premises comprising of two halls, three baths and two stores as shown in red in site plan annexed to the petition having not been so mentioned as the 'back portion' in the Eviction petition, is set at naught, in view of the site plan of the tenanted premises Ex. PW1/A on the record and the factum that the respondent through the testimony of RW1 through crossexamination has admitted that the respondent has also not mentioned second floor and back side in the address of the suit property in Ex. RW1/P4, which is the ARCT No. 103/13 Page 11/13 certified copy of the application under Section 27 of the DRC Act instituted on 08.03.2004 by the respondent seeking to deposit rent of the period 01.11.2003 to 31.03.2004 in relation to the office premises No. 1/25, Vohra House, Asaf Ali Road, New Delhi i.e. the tenanted premises comprising of two halls, three baths and two stores as shown in red in site plan annexed to the petition has admittedly not made any mention of the back portion of the said tenanted premises. Taking the same into account, as the pleadings of the parties and documents on the record establish the extent of the demised premises vide Ex. PW1/A and through the testimonies of the witnesses of the petitioners and the testimony of the Authorized Representative of the respondent, it is held that mere nonmention of the words 'back portion' in relation to the said tenanted premises situated at second floor at the back portion of the tenanted premises do not suffice to disbelieve the submissions made by the appellants of the respondent having sublet the tenanted premises to Shri Neeraj and Shri K. S. Dagar of Brilliance Credits Inc. without the written consent of the landlord / petitioner / appellants.
In view thereof as the appellants are held to have established their contentions as raised in the Eviction petition No. E 61/08 and as made in the appeal, the impugned judgment dated ARCT No. 103/13 Page 12/13 22.09.2012 of the ld. CCJcumARC (Central) in Eviction Petition No. E61/08 is thus set aside and the Eviction Petition No. E61/08 is thus allowed in terms of Section 14(1)(b) of the DRC Act, 1958, as amended and the respondent is directed to be evicted from the tenanted premises No. 1/25, II Floor, Vohra House, Asaf Ali Road, New Delhi comprising of two halls, three baths and two stores as shown in red in site plan annexed to the petition i.e. in relation to the back side of the property as shown in site plan Ex. PW1/A. The appeal ARCT No. 103/2013 is allowed accordingly. Decree sheet be prepared accordingly. In the circumstances of the case, the parties are left to bear their own costs. The records of the ld. CCJcumARC (West) in Eviction Petition No. E61/08 be returned alongwith a copy of the judgment.
Announced in the Open Court (Anu Malhotra)
today this the 11th day of District & Sessions Judge/ ARCT
July, 2014 (West) Delhi
ARCT No. 103/13 Page 13/13