Delhi District Court
M/S. Atma Ram Properties Pvt. Ltd vs M/S. Escorts Limited on 2 March, 2012
1
IN THE COURT OF SHRI H S SHARMA
DISTRICT JUDGE & ASJ/ARCT / NEW DELHI
RCA No. 04/12
M/s. Atma Ram Properties Pvt. Ltd.,
Office No.8, First Floor,
Atma Ram Mansion (Scindia House),
Connaught Circus,
New Delhi 110001
...... Appellant
Versus
M/s. Escorts Limited,
Show Room No. 11,
Atma Ram Mansion (Scindia House),
Connaught Circus,
New Delhi - 110001 ........ Respondent
Date of institution of the appeal : 17.02.2012
Date on which it was received : 17.02.2012
Date of hearing arguments : 21.02.2012
Date of announcement of order : 02.03.2012
Present: Sh Amit Sethi, Advocate for the appellant.
Notice of the appeal was not ordered to be issued to
the respondent.
Distt. Judge & ARCT/ND
2/3/2012
Atma Ram Properties vs m/s Escorts ltd Page No.1of 10
2
ORDER:
1 The respondent is a tenant under the appellant. Since the appellant did not accept the rent, therefore, the respondent moved an application u/s 27 of Delhi Rent Control Act (in short 'the Act') for permission to deposit the rent @ 770/ per month from 1/1/2006 to 31/7/2011 amounting to Rs. 51,519/. The respondent also sought permission to deposit the water charges @ Rs. 10/ per month for 67 months and holding site charges @ Rs. 280 per month for 67 months. Thus it had sought permission to deposit Rs. 71,020/ being the arrears of rent, water charges and holding site charges from 1/1/2006 to 31/7/2011. 2 The Ld. Rent Controller permitted the respondent to deposit the rent.
3 The appellant, being the landlord, filed the objections.
4 The Ld Rent Controller vide order dated 14/12/2011 disposed off the application u/s 27 of the Act by observing that the appellant shall be at liberty to withdraw the rent as per the law.
Distt. Judge & ARCT/ND 2/3/2012 Atma Ram Properties vs m/s Escorts ltd Page No.2of 10 3 5 The appellant / landlord has now impugned the order dated 14/12/2011.
6 The contention of the appellant is that property tax leviable on the premises in dispute is now payable by the respondent. The premises had been let out vide a registered lease deed dated 31/3/1973. U/s 67 of the NDMC Act the difference between the house tax on unit area basis and the tax on annual rent basis is nothing but arrears of rent which is liable to be paid by the tenant. Being part of rent, it has to be included in the rent. Once the property tax leviable on the premises in dispute is taken into account, the rate of rent would exceed Rs. 3,500/ per month. Therefore, ld. Rent Controller did not have the jurisdiction to accept the rent u/s 27 of the Act. 7 Ld. Counsel for the appellant has placed on record the property tax bill which shows that a demand of Rs. 5,60,61,960/ as property tax has been made by the NDMC. The bill has been issued in the name of the appellant. 8 Reliance has been placed on the following judgments: Distt. Judge & ARCT/ND 2/3/2012 Atma Ram Properties vs m/s Escorts ltd Page No.3of 10 4 1 ) Judgment Dt 28/4/2011 passed by Delhi High Court in RSA No. 251/2008 titled as United India Ass Co. Ltd., Vs. Smt. Anup Kaur.
2) AIR 1957 SC 309 (Karnani Prop Ltd. Vs. Miss Augustine).
3) AIR 2002 SC 2442 (Abdul Kader Vs.
G.D.Govindaraj).
4) 1998 (1) RCR 539 DHC (DB) (M/s. Roger
Enterprises (P) Ltd. Vs. Smt. Renu Vaish.
5) 2003 (1) RCR 709 DHC (Ms. Annick Chaymotty Vs Smt. Prem Mohini).
6) 2004(2) RCR 154 Cal. (DB) (Mayank Poddar Vs. Development Consultant Ltd)
7) 1993 (2) RCR 651 ( Auto Ancil Vs. Jamandas Vishnubhat Patel)
8) 1970 AIR CJ Mysore 27 (Senappa Vs. Shroff Puttappa)
9) 2001 (1) RCR P & H 225 (Harbans Lal Vs. Joginder Singh) Distt. Judge & ARCT/ND 2/3/2012 Atma Ram Properties vs m/s Escorts ltd Page No.4of 10 5 10 ) 2003 (1) RCR P & H 191 ( Lal Chand vs. Mohan Lal)
11) 2007 III AD (Delh) 225 (Continental Advertising (P) Ltd Vs. Pritpal Singh).
12 ) 2007 (97) DRJ 548 (West Coast Paper Mills Ltd. Vs. Asha Kapoor)
13) ILR (1978) I Delhi 139 (FB) (Ganga Ram Vs. Mohd Usman) 9 I have considered the submissions. 10 During arguments it was pointedly inquired from ld. Counsel for the appellant as to whether he had gone through the judgments cited by him to find out as to whether the facts of those cases and the matter in issue in those cases were similar to the facts of this case or not. Ld. Counsel for the appellant had submitted that he had gone through the judgements. 11 A judgment can't be relied in a mechanical manner. The Hon'ble Supreme Court in Kesar Devi Vs. Union of India 2003 VII AD (SC) 468 has held as under: " The judgment of a court is not to be interpreted like a Distt. Judge & ARCT/ND 2/3/2012 Atma Ram Properties vs m/s Escorts ltd Page No.5of 10 6 statute where every word, as far as possible, has to be given a literal meaning and no word is to be ignored. The observations made have to be understood in the context of facts and contentions raised." 12 First of all I shall take up the judgements. 13 In Anup Kaur's case (supra) a suit for possession and damages filed by Smt. Anup Kaur had been decreed by the Ld. Trial Court. The appeal was dismissed by the Appellate Court. Smt. Anup Kaur had alleged that the rate of rent was Rs. 3.50 per sq. ft. per month ie.., Rs. 1,596/ per month. It was alleged by the appellant in that matter that the rate of rent was less than Rs. 3,500/ per month, therefore, the suit was not maintainable. Before the Hon'ble High Court a legal question had been formulated. It was to the following effect: "Whether the maintenance charges payable by the appellant (the tenant in that case) do not form integral part of rent?"
14 The Hon'ble High Court, after referring clauseI of the lease deed of that particular case held that the parties had agreed to pay a particular sum towards the use and occupation of Distt. Judge & ARCT/ND 2/3/2012 Atma Ram Properties vs m/s Escorts ltd Page No.6of 10 7 the building which is inclusive of all taxes, rates and charges but exclusive of maintenance charges which were required to be paid by the tenant to the landlord in accordance with the stipulations of the lease deed. In para 14 of the judgment it was mentioned that the parties had specifically agreed in terms of agreement dated 15/1/1980 to treat the maintenance charges as distinct from the rent is not borne out from the documents itself. The agreement was for three years and it had expired in 1983, therefore, the tenant became a monthly tenant. The appeal was dismissed by the Hon'ble High Court. The judgment Karmani properties Ltd. (supra) was also referred in Anup Kaur's judgement (supra).
15 Since, it appears to me that the judgments have been cited without taking into account the factual matrix of those cases, therefore, I am not discussing the other judgements. Further the judgements cited by ld. Counsel for the appellant are distinguishable on facts. Therefore, they are not being discussed in detail.
16 Ld. Counsel for the appellant has referred clause 7 Distt. Judge & ARCT/ND 2/3/2012 Atma Ram Properties vs m/s Escorts ltd Page No.7of 10 8 of the lease deed. It reads as under:
" That in case any fresh cess or tax is levied by any authority which is required by law to be paid by Tenants of the property then the same shall be the liability of the tenant notwithstanding clause no. 3 above. Similarly should any increase in rent be authorised by the Government in respect of the demised property exceeding the said monthly rent of Rs. 820/ that all such increase will be paid by the tenant peacefully."
17 This clause itself negates the arguments of counsel for the appellant. The parties had had in mind as to who shall pay the charges. It was for this reason that those charges were not specifically intended to be included in the rent. In clause 3 of the lease deed it was incorporated as under: " That all rates, cesses and taxes due and payable in respect of the demised property during the currency of the lease hereby evidenced shall be the sole liability of the Landlords and similarly all amounts due and payable to the Land and Distt. Judge & ARCT/ND 2/3/2012 Atma Ram Properties vs m/s Escorts ltd Page No.8of 10 9 Development Officer, New Delhi the Head Lessor of the entire Scindia House property shall always be the sole liability of the Landlords."
18 If the argument of Ld. Counsel for the appellant is accepted, it would mean that the landlords of New Delhi area can make use of the self assessment scheme of property tax introduced by the NDMC for their benefit. They shall, in all the cases, assess the property tax of the portion in occupation of their tenants to be more than Rs. 3,500/ per month. 19 What section 67 NDMC Act lays down is that the property tax can be recovered from the tenant as arrears of rent. 20 The rent is always fixed by the landlord and tenant. It is a bilateral act. In my view the landlord can't be allowed to undergo a self serving exercise by assessing the property tax of the portion of the tenant to be more than Rs. 3,500/ per month.
21 I would like to add that this very appellant had earlier in RCTA No. 19/11 challenged the order dated 20/7/2011 of the Ld. Rent Controller, New Delhi and it had raised these very Distt. Judge & ARCT/ND 2/3/2012 Atma Ram Properties vs m/s Escorts ltd Page No.9of 10 10 contentions. That appeal was dismissed by me vide order dated 27/8/2011. It is not the case of the appellant that the order dated 27/8/2011 had been challenged by the appellant and has been set aside or modified by the Hon'ble High Court. 22 No point of law is involved in this appeal. 23 Viewed from any angle the appeal has no merit and is accordingly dismissed.
24 Appeal file be consigned to the record room.
Announced in open ( H.S.SHARMA)
court on 2/3/2012 Distt. JudgeIV/ARCT,ND
2/3/2012
All pages signed:
2/3/2012
Distt. Judge & ARCT/ND
2/3/2012
Atma Ram Properties vs m/s Escorts ltd Page No.10of 10