Delhi District Court
M/S. Simplex Infrastructures Ltd vs Sh. Mohinder Prakash Singh on 15 February, 2013
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADJ03 (CENTRAL) DELHI
MCA No. 05/2012
M/S. SIMPLEX INFRASTRUCTURES LTD.
FORMERLY : M/S. SIMPLEX CONCRETE
PILES (INDIA) LTD.
HAVING ITS REGD. OFFICE AT :
"SIMPLEX HOUSE", 27,
SHAKESPEARE SARANI,
KOLKATA 700017. ....APPELLANT
VERSUS
1. SH. MOHINDER PRAKASH SINGH,
S/O. SH. HAR PRAKASH SINGH,
R/O. 8/2, KALKAJI EXTENSION,
NEW DELHI 110019.
2. SH. SANJAY KUMAR AGGARWAL,
S/O. LATE SH. RAM PRAKASH AGGARWAL,
R/O. D190, SARITA VIHAR,
NEW DELHI 110076. ....RESPONDENTS
Date on which order was reserved : 16.01.2013
Date of decision : 15.02.2013
O R D E R
1. Vide this order, I shall dispose of the present appeal filed by the appellant (defendant) against the impugned decree and order dated 04.09.2012 passed u/o. 12 rule 6 CPC. Though this appeal had been registered as MCA, whereas MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 1/15 2 it is regular civil appeal filed against the decree dated 04.09.2012, therefore it be treated as RCA. (Parties are hereinafter being referred to by their respective status before the Trial Court).
2. The plaintiffs had filed a suit for recovery of possession and mesne profits / damages, claiming that defendant was the tenant of plaintiff in respect of property bearing Flat No. 202, (Vaikunth Building) 8283, Nehru Place, New Delhi (hereinafter referred to as the suit property) on a monthly rent of Rs. 3929/ excluding other charges and the covered area of the said flat i s 582 sq. ft, which was shown in the red colour in the site plan. The plaintiffs served a notice dated 09.03.2006 terminating the tenancy of the defendant and calling upon the defendant to quit the demised premises on 31.03.2006, which was duly served upon the defendant and a reply to the said notice was duly sent by the defendant dated 02.04.2006.
3. It was further stated that the defendant failed to vacate the premises and hence the suit for possession and mesne profit / damages was filed.
4. In the written statement filed by the defendant, the defence taken by the defendant was that the premises MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 2/15 3 were let out to the defendant by its owner M/s. Raja Towers Private Limited sometimes in the year 1978 and the plaintiffs were simply the rent collectors on behalf of above said M/s. Raja Towers Private Limited and there was no relationship of landlord and tenant between the parties. It is further stated that no valid notice u/o. 106 of The Transfer of Property Act, 1872, was served.
5. It is further stated that the suit property form part of a compact premises, comprising a super area admeasuring 2926 sq. ft. situated on the 2nd floor in the multistoreyed building known as "Vaikunth" House at 8283, Nehru Place, New Delhi, and tenancy of said compact premises was owned by M/s. Raja Towers Private Limited, which was one single indivisible holding and it was never split up in more than one holding that there was no termination of tenancy of that compact premises and therefore the defendant could not be evicted from the suit property in a piecemeal manner.
6. Vide detailed order dated 04.09.2012, the application filed by the plaintiffs u/o. 12 rule 6 CPC was allowed and a decree of possession was passed in favour of the plaintiffs and against the defendant in respect of the suit property. The defendant has challenged the aforesaid order in the MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 3/15 4 present appeal on the following main grounds :
(a). That the order has been passed without appreciation of facts and law and in contravention of law laid down by the Hon'ble High Court and Hon'ble Supreme Court.
(b). That the Trial Court could have only passed the decree on the basis of clear cut and unequivocal admissions, which have not been made by the defendant anywhere in the written statement.
(c). That the Ld. Civil Judge wrongly observed that the title of the plaintiffs was based on the agreement to sell duly registered dated 22.06.2011, whereas the correct position was that the plaintiffs have based their title on the purchase agreement executed by M/s. Raja Towers Pvt. Ltd. and the aforesaid agreement dated 22.06.2011 was only an interse transaction between the two plaintiffs.
(d). That the suit property forms part of a compact premises, comprising a super area admeasuring about 2926 sq. ft. situated on the 2nd floor in the multi sotoreyed building known as "Vaikunth House" at 8283, Nehru Place, New Delhi. It is stated that the said tenancy of the compact premises, owned by M/s. Raja Towers Pvt. Ltd. was one single indivisible holding, that it was never split up in more than one holding, that there was no termination of tenancy of that compact premises and that MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 4/15 5 therefore the appellant / defendant could not be evicted from the tenanted premises which formed only a part of the said compact premises.
(e). That the Ld. Civil Judge had failed to appreciate the order passed by the Hon'ble High Court in I.A. No. 5765/09 in CS(OS) No. 1216/08 and another judgments mentioned in the appeal.
(f). That the plaintiffs had also filed the site plan of the suit property along with their plaint and the said site plan does not show any demarcation, whereby so called demised premises could be identified, and therefore the impugned decree cannot be executed. It is settled law that a court cannot pass a decree which cannot be executed.
(g). That the plaintiffs have based their suit on the basis of an agreement executed by M/s. Raja Towers Pvt. Ltd., which was neither registered nor properly stamped and a bare perusal of the said agreement shows that the plaintiffs are only the nominees of M/s. Raja Towers Pvt. Ltd. and they are only the rent collectors of the same and there is no relationship of landlord and tenant between the respondents and the appellants.
(h). It is further stated that number of triable issues have arisen from the pleadings of the parties, which required leading of evidence and trial. It is further stated that the purchase agreement through which the plaintiffs are MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 5/15 6 claiming their ownership has not been properly stamped and same was liable to be impounded u/s 33 of the Indian Stamp Act.
7. Therefore, in these circumstances, it is stated that the order and decree dated 04.09.2012 is liable to be set aside.
8. I have heard Ld. counsel for the appellant / defendant Sh. P. P. Tiwari, Sh. Anil Sharma along with Sh. Gurpreet Singh, Ld. counsel for respondent no. 1 and Sh. P. K. Aggarwal, Ld. counsel for respondent no. 2 i.e. the plaintiffs and perused the record. Ld. counsel for the plaintiffs has relied upon the judgments :
1. 183 (2011) Delhi Law Times 712.
2. 191 (2012) Delhi Law Times 594
9. It is argued by Ld. counsel for the defendant that the Ld. Civil Judge had erred in observing that the title of the plaintiffs was based upon the agreement to sell executed between Sh. Sanjay Kumar Aggarwal and Sh. Mohinder Prakash Singh, vide registered document dated 22.06.2011, while correct position was that the plaintiffs had based their title on purchase agreement executed by M/s. Raja Towers Pvt. Ltd. The aforesaid agreement to sell dated 22.06.2011 was only an interse transaction between MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 6/15 7 the two plaintiffs, therefore there is no relationship of landlord and tenant between the parties, neither the defendant had any title in the property in question.
10.I have examined said plea taken by Ld. counsel for the defendant and perused the record. The plaintiffs have claimed that they had purchased the suit property from Smt. Kamla Singhvi, Abhilash Singhvi and Abhishek Manu Singhvi, vide letter dated 21.05.2005, the defendant was also advised to pay rent in future to the plaintiffs by the previous landlord of the suit property. The plaintiffs have relied upon a document, which is agreement to sell dated 22.06.2011 executed between the plaintiffs and M/s. Raja Towers Pvt. Ltd., which agreement to sell is duly registered . Ld. counsel for the defendant has argued that said document was not properly stamped and was liable to be impounded u/s 33 of the Indian Stamp Act, as no proper stamp duty has been paid. In any case, whether the said document was not properly stamped and was liable to be impounded, is the prerogative of Ld. Trial Court, therefore this court cannot sit in appeal over the said discretion to be exercised by the trial court at the appropriate stage, if the said document is found to be improperly stamped, it can always be impounded at the appropriate stage.
MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 7/15 8
11.It is the case of the defendants themselves that M/s. Raja Towers Pvt. Ltd. were the owners of the plot in question and plaintiffs are relying upon the the agreement to sell dated 22.06.2011, whereby they have purchased the suit property from M/s. Raja Towers Pvt. Ltd. In any case, the plaintiffs are relying upon number of documents filed on trial court record Ex.C1/1 (colly), which are letters sent by the defendant to the plaintiff, annexing therewith the rent with regard to the suit property for various months i.e. with respect to the month of November, December 2006, and January & February 2007. The said documents have been admitted by the defendant on 14.02.2008 during the admission and denial. Therefore, once the defendant had paid rent to the plaintiffs by way of cheques vide letters already placed on the record Ex.C1/1, which are admitted by the defendant, during admission and denial and once the rent has been paid by the defendant to the plaintiffs in terms of the letters written by the previous owners of the suit property dated 21.08.2005, there is a clear cut attornment by the defendant of the tenancy by payment of rent in favour of the plaintiffs by way of cheques.
12.The defendant has denied that the plaintiffs are the owners and landlords of the suit property. This plea taken by the defendant is only a bald plea. If the plaintiffs are MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 8/15 9 not the landlord, than who are the owners / landlords of the suit property, which has not been specified by the defendant. It is not the case of the defendant that any other person has claimed rent in respect of the suit property, besides the plaintiffs. Even otherwise, reply was sent by the defendant to the legal notice of the plaintiff dated 02.04.2006, which is admitted as per the pleadings of the defendant and the defendant has admitted therein that the plaintiff is rent collector of the previous owner. The said very admission on behalf of the defendant that the plaintiffs were rent collectors is itself sufficient to constitute a relationship of landlord and tenant between the parties.
13.Since the defendant has challenged the ownership of the plaintiff with respect to the suit property, however as per section 116 of the Indian Evidence Act, a tenant is estopped from challenging the title of his landlord during the continuance of the tenancy, he must first quit / surrender his tenancy, after that only he can be allowed to challenge the title of the landlord. In these circumstances, Ld. Trial Court has rightly held that there was a relationship of landlord and tenant between the parties.
14.Regarding the ground that the suit property forms part of MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 9/15 10 a compact premises, comprising a super area admeasuring about 2926 sq. ft. situated on the 2nd floor in the multi sotoreyed building known as "Vaikunth House"
at 8283, Nehru Place, New Delhi, and that the said tenancy of the compact premises, owned by M/s. Raja Towers Pvt. Ltd. was one single indivisible holding, that it was never split up in more than one holding, that there was no termination of tenancy of that compact premises and that therefore the appellant / defendant could not be evicted from the tenanted premises which formed only a part of the said compact premises. I have examined said plea taken by the defendant. The said plea does not appear to have any force, as discussed above in the documents i.e. regarding the payment of rent to the plaintiffs by the defendant Ex.C1/1, it is clearly mentioned by the defendant in the said letters that they were tendering the rent with respect to the flat no. 202, (Vaikunth Building) 8283, Nehru Place, New Delhi, they have nowhere specified in the said letters that the rent was for the one composite tenancy, which is the one of the ground taken in the present appeal.
15.In any case, defendant in his pleadings, has not denied the receipt of the notice dated 09.03.2006 and reply sent by the defendant to the same dated 02.04.2006, in which MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 10/15 11 also, the defendant has not disputed the extent of tenancy premises by taking a plea that the suit property was part of the composite tenancy and was not an independent tenancy, as the said reply dated 02.04.2006 is the earliest exchange of documents between the parties, after the disputes had arisen between them. Therefore the defendant cannot be allowed to take plea that the tenancy was in respect of the entire floor and not in respect of the flat in question.
16.In any case, regarding the further arguments that the suit property is not capable of any identification, therefore no decree can be passed in respect of the same. This argument of the defendant is also without any substance as the present suit property is clearly capable of identification having particular flat no. 202, in (Vaikunth Building) 8283, Nehru Place, New Delhi, in a particular building, therefore it cannot be said that no effective decree can be passed in these circumstances.
17.The rate of rent of Rs. 3929/ per month has not been disputed as the para no. 1 of the plaint has not been disputed in the corresponding para of the written statement in which rate of rent has been claimed by the plaintiff as Rs. 3929/ and also in the reply to the notice of MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 11/15 12 the plaintiffs dated 02.04.2006.
18.Regarding the notice to quit dated 10.03.2006, the defendant has not denied in the corresponding para no. 2 of his written statement that they had not received the legal notice dated 09.03.2006 sent by the plaintiffs, in fact the defendant sent the reply dated 02.04.2006, which also not disputed as nothing has been stated in para no. 2 of the written statement that no such reply was given by the defendant or no such notice was received by the defendant. Even if, for the sake of arguments, as pointed out by Ld. counsel for the defendant during the course of arguments that the said notice was not served upon them. Judgment 191 (2012) Delhi Law Times 594 (Supra) relied upon by Ld. counsel for the plaintiffs is squarely applicable to the peculiar facts and circumstances of the present case. It has been held in the said judgment as under : "The Learned Trial court has relied upon judgment titled as Nopany Investment P. Ltd. Vs. Santokh Singh (HUF) (Supra) wherein the Hon'ble Supreme Court has interalia held that : '22. In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 12/15 13 tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant.' The Court is of the considered opinion that law as relied upon by the learned Trial court with respect to presuming the service upon the appellant, does not suffer from any legal infirmity and illegality."
19.In view of the ratio of law laid down in the said judgment that filing of a suit under the general law is itself a notice to quit on the tenant. Therefore, it was held that no notice to quit was necessary under section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. In the present case also, after filing of the suit for eviction and consequent issuance of notice to the defendant of the present suit, no notice to quit was necessary u/s 106 of the Transfer of Property Act. In any case, the notice dated 10.03.2006, which has not been disputed by the defendant in the written statement, meets all the requirement of section 106 of the Transfer of Property Act, as the same has been given in writing, signed on behalf of the person giving it and it has been delivered to the defendant giving him 15 days notice to quit the tenanted premises.
MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 13/15 14
20.Further admittedly the original lease document dated 02.11.1979 between the defendant and the original landlord was never registered, therefore the said lease deed cannot be seen in view of the bar of section 49 of the Registration Act, therefore the tenancy of the premises has to be considered on month to month basis, which is determinable on the part of lesser and lessee with clear 15 days notice in writing.
21.Therefore in view of the aforesaid discussion, the defendant has failed to raise any triable issue(s), which have the potential of nonsuiting the plaintiffs after the trial. In any case, the admissions made by the defendant in pleadings and in the documents placed on the record are clear and unequivocal. Even otherwise, under order 12 Rule 6 CPC, admissions can either be made in the pleadings or otherwise i.e. admissions can be either gathered from the documents or other facts and circumstances of the case, therefore it is a fit case where a decree of possession should have been passed in favour of the plaintiff, as no trial was required with regard to relief of possession. The plaintiffs were not required to go through the rigours of the trial, in view of the clear cut and unequivocal admissions made by the defendant as discussed above. Further it is settled law that, where two MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 14/15 15 views are possible, than the view taken by the Trial Court has to be preferred, unless same is totally perverse and contrary to law. In the absence of same, the appellate court cannot substitute its own view in place of the view reached by the Trial court, if same is totally in conformity with the law. In view of the aforegoing discussion, there is no infirmity and illegality in the order and decree dated 04.09.2012 passed by Ld. Trial Court, which is well supported by the reasons given in support of the same. Consequently, the appeal preferred by the appellant has no merits, same is dismissed. Interim order stands vacated. TCR be sent back along with the copy of this order.
22.Appeal file be consigned to the record room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 15.02.2013 ADJ(Central03)/Delhi
15.02.2013
MCA No. 05/11 M/S. SIMPLEX INFRASTRUCTURES LTD. VS. MOHINDER PRAKASH SINGH & ORS. 15/15