Delhi District Court
Sh. Vijay Sharma vs Ms. Sudha Aggarwal on 24 May, 2010
In the Court of Suresh Kumar Gupta : Additional District Judge :
East District : Karkardooma Courts : Delhi.
Suit No. 50/2009
IN THE MATTER OF :
Sh. Vijay Sharma .....Plaintiff.
Versus
Ms. Sudha Aggarwal .....Defendant.
ORDER
1. This order shall dispose of an application under order 12 rule 6 CPC filed by the plaintiff.
2. The plaintiff has filed an application with an averment that he has filed a sut for possession by ejectment against the defendant of premises No. S-511/201, Second Floor, Friends Chamber, School Block, Vikas Marg, Shakarpur, Delhi besides recovery of arrears of rent, mesne profit alongwith pendentelite and future interest. The defendant has filed written statement and admitted the rate of rent as well as receipt of the notice. The execution of rent agreement also stands admitted. The defendant has got no defence to contest the suit. The possession of the defendant has become unauthorised so an order for ejectment be passed against the defendant.
3. The defendant filed the reply to the effect that application is not maintainable as plaintiff has not come to the court with clean hands as his motive is to harass the defendant and to delay the proceedings. The defendant has admitted the receipt of the notice which was duly Suit No.50/2009 Page No.1/5 replied. It is denied that tenancy has been terminated. It is denied that defendant is no more a tenant whose possession has become unauthorised and illegal.
4. The plaintiff has filed a suit for possession coupled with arrears of rent, mesne profit and pendentelite and future interest against the defendant with the averments that he is owner/landlord of shop No. S-511/201, Second Floor, Friends Chamber, School Block, Vikas Marg, Shakarpur, Delhi (hereinafter referred to as the suit property). The suit property was let out on rent for 11 months to the defendant on a monthly rent of Rs.4,250/- excluding other charges. The tenancy started from 10th day of each English Calendar month and ends on 9th day of subsequent English Calendar month. The defendant executed rent agreement dated 10.07.2007. A sum of Rs.12,750/- was given as security which was interest free. The defendant is carrying on the business under the name and style of M/s. Ankit Marketing Associates. The defendant has initially paid rent for one month but thereafter defendant avoided to make the payment of rent on one ground or the other. The suit property was let out for 11 months which expires on June, 2008. The tenancy has become from month to month. The defendant is liable to pay rent from August, 2007 to 9th November, 2008 @ Rs.4,250/- per month.
5. He served a notice dated 03.10.2008 vide which the tenancy was terminated from 10th November, 2008. He demanded a sum of Rs.63,750/- as arrears of rent, physical and vacant possession of the suit property after the expiry of notice and adjustment of security after taking into account electricity and water charges. The notice is duly served. The defendant did not hand over the possession of the suit property to him coupled with arrears of rent although a reply was given to the plaintiff on 01.11.2008. the possession of the defendant has become Suit No.50/2009 Page No.2/5 unauthorised and illegal after the termination of tenancy w.e.f. 10.11.2008.
6. The defendant contested the suit and filed the written statement wherein preliminary objections qua concealment of facts, cause of action, misjoinder and non-joinder of necessary parties, court fee and maintainability are raised. On merits, it is averred that she is a tenant of suit property at a monthly rent of Rs.4,250/-. It is denied that she has agreed and executed the rent agreement with free consent. The said agreement was got signed under influence, force and pressure so the agreement is illegal and void abinitio. The security was agreed to be refunded with interest. The rent has been paid till October, 2008. She has been paying the rent to the plaintiff without any default and plaintiff has deliberately and malafidely failed to issue any rent receipt. It is wrong that rent is due from August, 2007 to 09.11.2008. The plaintiff refused to receive the rent after October, 2008 and thereafter rent was sent through moneyorder at an increased rate of 10% but the same was returned back. The notice was received which was duly replied. No amount is due towards plaintiff. It is wrong that her possession has been unauthorised and illegal after 10.11.2008.
7. The plaintiff filed the replication and reiterated the stand taken in the plaint.
8. I have heard learned counsel for the parties and perused the record of the case.
9. Order 12 rule 6 CPC is intended to enable the court to grant a decree where defendant has made any admission in the written statement or otherwise, orally or in writing. The written statement as a Suit No.50/2009 Page No.3/5 whole has to be seen. An admission should be unambiguous, clear and unconditional. Reliance is placed on Uttam Singh Duggal & Co. v. Union Bank of India, AIR 2000 SC 2740 and Mangal Sain Mittal v. PPA Impex Ltd., 163 (2009) DLT 358.
10. In the instant case, certain facts are not in dispute. The plaintiff is admittedly the owner/landlord of the suit property. The defendant was inducted as tenant by the plaintiff in the suit property. The relationship of landlord and tenant stands admitted. The admitted rate of rent is Rs.4,250/- per month.
11. The rent agreement dated 10.07.2007 was executed in between the parties to the suit. The rent agreement was for a period of 11 months. The said agreement is unregistered as well as is not properly stamped. The said agreement cannot be looked into for any purpose. Section 105 of the Transfer of the Property Act (hereinafter referred to as the Act) defines a lease. Section 107 of the Act enunciates that a lease of immovable property for a period exceeding one year can be made only by a registered instrument. In PNB v. Ganga Narayan Kapoor, AIR 1994 Allahbad 221 and Bharat Petroleum Corporation Ltd. v. Khaja Midhar Noor & Ors., AIR 1988 Supreme Court 1470, it was held by their lordship that a fixed term lease for a period exceeding one year - oral or in writing, if not registered, will be deemed to be a tenancy from month to month terminable by 15 days notice. In Sudershan Sinha & Anr. v. Kuldeep Singh, 2006 VIII AD Delhi 75, it was held by their lordship in para 11 that 15 days notice commenced from the date of the receipt of the notice and it now relevant that suit should be filed after expiry of 15 days from the date of receipt of notice.
12. In the instant case, there is no registered instrument so the Suit No.50/2009 Page No.4/5 period of tenancy is from month to month terminable by 15 days notice. The plaintiff issued a notice dated 03.10.2008 to the defendant by which tenancy of the defendant was terminated. The said notice was duly received and replied by the defendant. The reply is dated 01.11.2008. The plaintiff has filed the suit on 07.01.2009. The suit is filed after expiry of 15 days from the receipt of the notice. The defendant did not hand over the vacant and peaceful possession of the suit property to the plaintiff after expiry of the notice period.
13. To sum up, there exists a relationship of landlord and tenant between the plaintiff and defendant. The rental is Rs.4,250/- per month. The tenancy is from month to month. The notice to terminate the tenancy is duly issued by the plaintiff which was received and replied by the defendant. There is no subsisting tenancy as envisaged under section 111 of the Act. The admission on the part of defendant is unambiguous, clear and unconditional.
14. Hence, in view of all the facts, the application under order 12 rule 6 CPC filed by the plaintiff is allowed. The plaintiff is entitled for decree of possession of the suit property. The suit of the plaintiff for possession is decreed and the plaintiff is entitled for the possession of the suit property bearing No. S-511/201, Second Floor, Friends Chamber, School Block, Vikas Marg, Shakarpur, Delhi from the defendant. Decree sheet be prepared accordingly. It be tagged with main case.
Announced in the open court. (Suresh Kumar Gupta) On 24th May, 2010. Additional District Judge, East District, KKD Courts, Delhi.
Suit No.50/2009 Page No.5/5 Suit No. 50/200924.05.2010 Present : None for the plaintiff.
Sh. V.K. Aggarwal, husband of the defendant in person. The application of the plaintiff under order 12 rule 6 CPC is allowed vide my separate order of even date on record. Decree sheet for possession be prepared.
Husband of the defendant wants to make the payment of balance amount but none from the side of plaintiff is present.
Let the file to come up for admission/denial of documents and framing of issues on 02.06.2010.
(S.K. Gupta) ADJ/KKD(East)-03 Delhi/24.05.2010 Suit No.50/2009 Page No.6/5