Delhi District Court
Ashok Gupta vs Gaurav Wasan on 16 April, 2021
IN THE COURT OF M. P. SINGH, ADDITIONAL DISTRICT JUDGE03,
(EAST), KARKARDOOMA COURTS, DELHI
CS 647/2019
1. Ashok Gupta, s/o Sh. Satya Prakash Gupta
R/o 68, Bank Enclave,
Laxmi Nagar, Delhi92
2. Ankita Gupta, d/o Ashok Gupta
R/o 68, Bank Enclave,
Laxmi Nagar, Delhi92
(through her attorney Ashok Gupta) ...........Plaintiffs
Versus
1. Gaurav Wasan, s/o Late B. K. Wasan
R/o 41, Ground Floor
J Extension, Laxmi Nagar,
Delhi92
2. Deepika Wasan, w/o Gaurav Wasan
R/o 41, Ground Floor
J Extension, Laxmi Nagar,
Delhi92 ......... Defendants
JUDGMENT
(on plaintiffs' application under Order XII Rule 6 read with Order XV and section 151, CPC)
1. The two plaintiffs are father and daughter duo. Ashok Gupta (plaintiff no.1) is the attorney of his daughter Ankita Gupta (plaintiff no.2) vide a regis tered General Power of Attorney (GPA) dt. 23.08.2019. Plaintiff Ankita is stated to be residing in USA since March 2013.
2. Relevant facts, as set out in the plaint, are as follows: Plaintiff Ankita owns property bearing no. 41, Ground Floor, JExtension, Laxmi Nagar, Delhi - 92 in terms of registered title documents dt. 25.07.2008. In July 2012 she let out, in presence of her father Ashok, the suit property to the defendants jointly at CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 1 of 13 monthly rent of Rs. 11,500/ excluding electricity and water charges. Monthly rent was payable in advance on or before 7th day of each English calendar month. Defendants have allegedly not paid the rentals since December 2016. Vide legal notice dt. 12.11.2019 the tenancy was terminated and the defendants were called upon to vacate the suit property within 15 days of its receipt and also to pay up the rentals arrears. But the legal notice returned unserved with remarks 'no such person'. On these averments, the instant suit was filed on 25.11.2019 seeking fol lowing reliefs: (a) recovery of possession of the suit property, (b) permanent in junction to restrain the defendants from creating third party interest and/or part ing with possession of the suit property, (c) recovery of rental arrears to the tune of Rs. 4,02,500/ with effect from December 2016 to November 2019, (d) mesne profits/ damages of Rs. 1,000/ per day from the date of filing of suit till recovery of possession, (e) interest of 18% per annum on the amount found due against the defendants, (f) cost of the suit, and (g) any other relief.
3. Defendants filed their joint written statement on 29.01.2020. They admit that plaintiff Ankita is the owner of the suit property. On the point of tenancy, they state that plaintiff Ashok had inducted defendant no.1 Gaurav as a lessee in the suit property in 2012 at monthly rent of Rs. 8,500/, excluding electricity/ other charges and which monthly rent was subsequently enhanced to Rs. 9,500/ in 2015. However, on 15.11.2017, it is stated, plaintiff Ashok had entered into an agreement to sell with defendant no.1 Gaurav qua the suit property for a total sale consideration of Rs. 32 lacs, out of which Rs. 15 lacs in cash was paid to him on 15.11.2017 itself and balance Rs. 17 lacs had been agreed to be paid on or before 20.02.2020. They go on to state that as per terms of the agreement to sell no rent was agreed to be charged, for Rs. 15 lacs had already been paid. On this basis, it is claimed that status of defendant no.1 Gaurav now is not that of a tenant, but of CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 2 of 13 an intending purchaser. This line of defendants' defence/assertion, which is set out in paragraph no.3 of the reply on merits of the written statement, is repro duced verbatim is as follows: "It is submitted that in the year2012 the defendant No. 1was inducted as a tenant in the suit property by the plaintiff [Ashok Gupta] and rate of rent was fixed as Rs. 8500/ per month excluding electricity and other charges and thereafter in the year2015, the rate of rent was enhanced to Rs. 9500/ per month and since then the defendant No.1 regularly paying the rent @ Rs. 9500/ per month to the plaintiff. However, it is further submitted that the plaintiff [Ashok Gupta] intended to sell out the suit property and ap proached the defendant No.1 for selling the suit property and proposal of the plaintiff [Ashok Gupta] was accepted by the defendant No.1 and in this re gard, an agreement to sell was executed on 15.11.2017 between the plaintiff [Ashok Gupta] on behalf of his daughter namely Ms. Ankita Gupta and the defendant No.1 in presence of marginal witnesses vide which the plaintiff [Ashok Gupta] agreed to sell out the suit property to the defendant No.1 for a total sale consideration amount of Rs. 32 lacs out of which the defendant No.1 paid an amount of Rs. 15 lacs in cash to the plaintiff [Ashok Gupta] on 15.11.2017 at the time of execution of agreement to sell and remaining amount of Rs. 17 lacs was agreed to be paid by the defendant No.1 to the plaintiff [Ashok Gupta] on or before 20.02.2020 because at that time, the daughter1 of the plaintiff [Ashok Gupta], who is actual owner of the suit property, was in abroad and she happened to return back to India in the month of February, 2020 and upon execution of the agreement to sell, the status of the defendant No.1 became intended purchaser and in terms of agreement to sell, no rent was agreed to be charged by the plaintiff since the defendant No.1 paid an amount of Rs. 15 lacs as earnest money. Photocopy of the agreement to sell is annexed herewith and original of the same was retained by the plaintiff [Ashok Gupta]. It is further submitted that the date of performance of the said agreement to sell is 20.02.2020 but prior to that, the plaintiff has filed the present suit against the defendants which shows the malafide of the plaintiff. However, the defendant No.1 is ready and will ing to perform his part of agreement to sell dated 15.11.2017 by paying the remaining amount of Rs. 17 lacs and hence the defendant No.1 is filing the counterclaim against the plaintiff. It is further submitted that at the time of execution of the agreement to sell dated 15.11.2017, the plaintiff [Ashok Gupta] handed over the photocopies of complete chain of documents in re spect of suit property to the defendant No.1. It is further submitted that after receiving the summon of the suit, the defendant No.1 tried to contact the 1 Reference here is to plaintiff no.2 Ms. Ankita Gupta.
CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 3 of 13plaintiff [Ashok Gupta] but the plaintiff [Ashok Gupta] avoided to meet with the defendant No.1.
4. Besides the above, defendants state that Ankita Gupta was never in the picture at the time of letting out the suit property in year 2012 and plaintiff Ashok Gupta was the landlord; that defendant no.2 Deepika has no concern with the suit property and she is living therein in her capacity as the spouse of defen dant no.1 Gaurav; that the suit is thus bad for misjoinder of parties; that no rental arrears are due; that legal notice dt. 12.11.2019 was never received; that they are not liable to pay any mesne profits and that no cause of action ever arose to insti tute the instant lis. Denying other averments, defendants seek dismissal of the suit.
5. In the replication, filed on 19.10.2020, averments made in the plaint have been reiterated and those of the defendants as set out in their pleadings are re futed. In addition thereto, it is stated that no agreement to sell, as is being pro pounded by defendants, was ever executed; that the said agreement to sell dt. 15.11.2017 is a forged and fabricated document and that it bears no signatures of plaintiff Ashok Gupta.
6. Now to the application under Order XII Rule 6 read with Order XV and section 151 of CPC. It is stated that on the basis of defendants' admissions in their written statement, a judgment and decree qua the relief of possession of the suit property be passed. Provisions of Transfer of Property Act, Indian Stamp Act and Registration Act are invoked to contend that the agreement to sell, which is unregistered and not duly stamped, would not suffice to confer any right, title and interest qua the suit property upon defendant(s).
7. Defendants, in their reply to the application, have reiterated their aver ments as set out in their pleadings. Denying other averments, they seek dismissal CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 4 of 13 of the application.
8. Arguments heard. Record perused.
9. Under Order XII Rule 6 of CPC, admissions on which the court wishes to pass a decree have to be unambiguous, clear and unconditional. Certainly, no fault can be found with this line of contention of defendants' counsel. It would be apt to take a note of the object behind this provision. Whole object of incorpo rating the procedure of Order XII Rule 6 CPC is to grant a quick relief to litigants whenever the court finds any legally enforceable admission and that in such situ ations the court will help the litigations to get quick relief. (Prabitra Kumar Basu & Anr. v. Calcutta Municipal Corporation, 2000 AIHC 2101). In Karam Kapahi & Ors. v. Lal Chand Public Charitable Trust & Anr. (2010) 4 SCC 753 it was held that the object behind Order XII Rule 6 CPC is to give the plaintiff a speedy judgment. Further, in Uttam Singh Duggal & Co. Ltd. v. United Bank of India, AIR 2000 SC 2740, Apex Court made the following ob servations: 'We should not unduly narrow down the meaning of this rule, as the object is to enable a party to obtain speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also whereever there is a clear admission of fact in the face of which it is impossible for the party making such admission to succeed."
10. On the point of landlordtenant relationship, it is plaintiffs' assertion that the suit property had been let out by Ms. Ankita Gupta jointly to both the defen dants. Thus, as per the plaintiffs, Ms. Ankita Gupta stands in the position of land lord/landlady and the two defendants are her joint tenants. On the other hand, the defendants state that though Ms. Ankita Gupta is the owner, the suit property had been let out by plaintiff Ashok. Now, it hardly matters as to which of the two CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 5 of 13 plaintiffs is the landlord, for defendants admit that plaintiff Ankita is the owner of the suit property and that plaintiff Ashok had let out the same. This defence is hardly tenable.
11. Now whether defendant no.1 Gaurav individually or both the defendants jointly were inducted as tenant(s) is again of no relevance so far as the issue of possession is concerned. If defendant Gaurav alone was the tenant, then as re gards possession of the tenanted premises defendant no.2 Deepika has no indi vidual status of her own. In that event, she was/is in occupation of the premises only as the spouse of defendant no.1. If both the defendants were inducted as the tenants jointly then the status of the defendant no.2 would be no better than that of a tenant.
12. Next, the argument of defendants' counsel is that defendant Gaurav is no longer the tenant of the premises inasmuch as plaintiff Ashok entered into an Agreement to Sell with him for a valid consideration. He thus urged that on ac count of the Agreement to Sell, the tenancy ceased to have any effect whatsoever and that defendant Gaurav stands in the position of an agreement purchaser and as such he is not liable to be evicted. Plaintiffs vehemently deny execution of the Agreement to Sell. They term the Agreement to Sell as forged and fabricated and state that the signature purporting to be that of plaintiff Ashok thereon is fabri cated. They also vehemently deny taking any earnest money from the defendant. Let this issue be looked at entirely from the point of view of what the defendants state. Let their averment about execution of Agreement to Sell and advancement of earnest money be accepted as the truth. Accepting this standpoint of the defen dants, this court proceeds to discover the truth about his status qua the premises. The moot question that therefore arises is whether execution of Agreement to Sell qua the premises, wherein the defendant(s) was/were inducted as tenant(s), CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 6 of 13 would alter his/their status. The answer is emphatically in the negative. There are many judicial rulings to negate this contention of defendants. The law is well set tled that status of a tenant would not alter even if he enters into an Agreement to Sell qua the tenanted premises; so much so that he cannot avoid his ejectment even if a decree for specific performance stands passed in his favour.
13. I shall first take note of a judgment reported as Sunil Kapoor v. Himmat Singh & Ors., 167 (2010) DLT 806 = MANU/DE/0203/2010. This was a suit with similar facts as in the present one. The tenant sued the landlord for specific performance of an unregistered Agreement to Sell. The landlord thereafter filed a suit for his ejectment. The tenant's plea that he could not be ejected in view of the Agreement to Sell was negatived by observing, "10. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as purchaser. This court in Jiwan Dass Rawal v. Narain Das AIR 1981 Delhi 291 has held that in fact no rights enure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereof is executed. Thus, in law the petitioner has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour."
14. This was followed by judgment dated 06 th August, 2013 of Hon'ble Delhi High Court in RFA No. 324/2013 titled as Sanjiv Pathak v. Somnath, the facts whereof were exactly similar to the instant case. The landlords sued the tenant for his eviction, but the defendanttenant on the strength of an Agreement to Sell pleaded that the landlords had agreed to sell the tenanted premises to him and his possession was thus as an agreement purchaser. This contention was negatived. It was observed, CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 7 of 13 "9. The only point addressed by the senior counsel for the appellant is that the respondents landlords had agreed to sell the tenanted premises to the appellant and the possession of the appellant is thus as an agree ment purchaser.
10. It is not as if the learned ADJ has not dealt with the said aspect. Relying on Section 17(1A) of the Registration Act, 1908 and several judgments of this Court, it has been held that since the Agreement of Sale is not registered, the benefit of Section 53A of the Transfer of Property Act, 1882 is not available to the appellant.
11. The senior counsel for the appellant has sought to carve out a dis tinction. He has contended that the possession of the premises has not been delivered by the respondents to the appellant in pursuance to the Agreement to Sell but the Agreement to Sell records that the appellant has been in possession of the premises as a tenant since the year 2000. He has thus contended that Section 17(1A) of the Registration Act would not apply.
12. I am unable to agree. The possession of the appellant of the premises can either be as a tenant or as an agreement purchaser. If the possession is as a tenant, then the tenancy has been determined and the appellant has to go out of the possession. On the contrary, if the possession is as the agreement purchaser, an agreement purchaser can protect such possession only under Section 53A of the Transfer of Property Act and not otherwise. The benefit of Section 53A is not available to the appellant for the reason of the Agreement to Sell un der Section 17(1A) being required to be compulsorily registered and the agreement claimed by the appellant being not registered. This Court in Jiwan Dass Rawal v. Narain Das, AIR 1981 Delhi 291 has held that an agreement purchaser has no right in the premises, not only till a decree for specific performance of the said agreement is passed but also till the Conveyance Deed in pursuance thereto is executed. Thus, the rights of the appellant if any, as an agreement purchaser without the benefit of Section 53A, cannot be intertwined with the ejectment of the appellant from the premises as a tenant and the appel lant if in the proceedings for specific performance of the Agreement of Sale is found to have a prima facie case, the appellant can obtain the relief therein of restraining the respondents from dealing with the premises. "
15. The next judgment in this context is that of Sanjay Singh v. M/s Corpo rate Warranties Pvt. Ltd. 204 (2013) DLT 12: MANU/DE/3099/ 2013. It was observed therein, CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 8 of 13 "17. Thus the status of the appellant/defendant even if the execution of Agreement to Sell were to be believed, remained as that of a tenant and did not change to as that of a purchaser. The only rights of an agreement purchaser (as discussed by me in detail in the recent judg ment dated 06th August, 2013 in RFA No. 324/2013 titled Sanjiv Pathak vs. Somnath and attention to which of the appellant/defendant was drawn during the hearing on 26.08.2013 and which the counsel for the appellant/defendant has failed to distinguish) are of specific performance of the said agreement. ............. I have enquired from the counsel for the appellant/defendant whether the appellant/defendant has taken any steps for specific performance. The counsel fairly ad mits that no steps have been taken. A tenant in the property, even if he enters into an agreement for purchase thereof, cannot avoid his/her ejectment therefrom as a tenant and only has a remedy of specific per formance of the agreement to sell in his favour."
16. To similar effect is the decision reported as Dr. N. P Tripathi v. Daya manti Devi & Anr., AIR 1988 Pat 123, wherein it was observed:
"So far the suit for specific performance of the contract is concerned it has got nothing to do with the question with regard to the relationship of landlord and tenant between the parties or even with regard to the ownership claimed under the deed of agreement of specific perfor mance of contract for sale. Merely filing a suit for specific perfor mance of contract does not confer or is founded upon a fact that a title has accrued in the property in question under the deed of agreement or contract for sale."
17. Therefore, the legal position that emerges is that the status of defendant(s), even if execution of Agreement to Sell were to be believed, remained as that of tenant and did not change to as that of a purchaser. A mere agreement to sell of immovable property does not create any right in the property save the right to en force the said agreement. The question of an agreement to sell the property to the tenant becomes irrelevant in a suit for his ejectment. Agreement to sell does not invest any title in the tenant; nor does it divest the title of the landlord. Conse quently, defendants' contention about tenancy being no longer in vogue in view of the Agreement to Sell is liable to be rejected.
CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 9 of 1318. Defendants' counsel relied on S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287 in support of his arguments. However, this judgment is of no help to the defendants. In Shiv Kumar v. Sumit Gulati, MANU/DE/287/2015 the judgment of S.M. Asif (supra) has been distinguished by observing, "The aforesaid aspect of amendment of the law has not been noticed by the Courts be low, and does not even appear to have been brought to the notice of the Supreme Court when it decided S.M. Asif (supra). The aforesaid aspect is a purely legal issue, which arises on the admitted factual position disclosed on record. The le gal position obtaining post the aforesaid amendment, in the law leaves no triable issue to be decided by the court, and consequently, the present is a fit case for pronouncement of judgment and passing a decree for ejectment in favour of the respondent/landlord under Order 15 Rule 1 read with Order 12 Rule 6 CPC." The 'amendment of the law' spoken of in Shiv Kumar (supra) are the amend ments to Registration Act, Transfer of Property Act and Indian Stamp Act brought about in September 2001 by virtue of The Registration and Other Re lated Laws (Amendment) Act, 2001.
19. Next, section 54, Transfer of Property Act mandates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property.
20. Furthermore, defendants do not have the benefit of section 53A of Trans fer of Property Act inasmuch as the Agreement to Sell which they rely upon is admittedly unregistered. Reason being that under section 17(1A) of Registration Act on the strength of an unregistered Agreement to Sell, an agreement purchaser cannot seek to protect his possession on the basis of doctrine of part performance of contract as provided under section 53A, Transfer of Property Act.
CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 10 of 1321. There is another angle from which this issue can be looked at. Defendants contend that Agreement to Sell superseded the tenancy. Determination of lease by merger is provided under section 111 (d) of Transfer of Property Act, which reads as follows, "A lease of immovable property determines - (d) in case the in terests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right." It is clear that merger takes place when tenant himself becomes the absolute owner of tenanted premises, which is not the case here (see Arun Kumar Tandon v. Akash Telecom Private Lim ited & Anr., MANU/DE/0545/2010).
22. Therefore, what transpires is that defendant(s) continue to be tenant in the premises. A tenant cannot question the title of his landlord, howsoever, defective it may be, in view of section 116 of Evidence Act. The Privy Council had way back in the year 1915 in Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 98 observed, "A tenant who has been let into possession cannot deny his land lord's title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord."
23. Similar view has been expressed by Apex Court in Atyam Veerraju and Others v. Pechetti Venkanna and Others, AIR 1966 SC 629. It has been fur ther reiterated in Tej Bhan Madan v. II Additional District Judge and Others, AIR 1988 SC 2413 in which it was held that a tenant was precluded from deny ing the title of the landlady on the general principles of estoppel between land lord and tenant. It was held that the principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a per son to approbate and reprobate.
24. It was the argument of defendants that issue regarding title of the premises CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 11 of 13 is to be settled and therefore the aspect of possession should be decided only af ter a fullfledged trial. It would be very much evident from a discussion in the preceding paragraph(s) that the issue of title is wholly irrelevant in the present proceedings. That apart, in this suit for ejectment of a tenant, this court cannot venture to return a finding and decide the title of the parties qua the premises. Therefore, this contention of the defendants is turned down.
25. It is also undisputed that tenancy is not covered within the ambit of Delhi Rent Control Act, monthly rent being more than Rs. 3,500/. That is to say, it is none of the case of defendant(s) that he/they has/have protection of Delhi Rent Control Act.
26. Now comes the question of termination of tenancy. This question is not of much relevance in view of the ratio decidendi of in Nopany Investments (P) Ltd. v. Santokh Singh, (2008) 2 SCC 728 and followed by Shrif Ram Pistons & Rings v. C. B. Agarwal, MANU/DE/2381/2008, Jeevan Diesels & Electri cals Ltd. v. M/s Jasbir Singh Chaddha (HUF), 182 (2011) DLT 402, Ra bindra Nath Saha v. Sushma Jain, 182 (2011) DLT 456, Shri Radhakrishan Temple Trust Maithan, Agra v. M/s Hindalco Rotatron Pvt. Ltd., (2012) II AD (Delhi) 429 and Sky Land International Pvt. Ltd. s. Kavita P. Lalwani 191 (2012) DLT 594. Under the extant law, service of summons of the suit for possession upon tenant(s) itself operates as a notice to quit.
27. All the necessary ingredients for the grant of relief of possession qua the premises into which the defendant(s) was/were inducted as tenant exist. The de fence that defendant(s) is/are no longer tenant(s) in view of the Agreement to Sell is no legal defence in the light of the settled legal position as taken note of here inabove.
CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 12 of 1328. Having considered the case at hand, I am satisfied that on a complete and meaningful reading of the written statement in the backdrop of the extant law as propounded in various cases noted hereinabove, there is an unqualified, unam biguous and clear cut admission of liability qua the relief of possession. The de fence of the defendants visavis the Agreement to Sell superseding the rent agreement is no legal defence. Therefore, it is my view that it is a fit case for this court to invoke its jurisdiction under Order XII Rule 6 CPC coupled with that un der Order XV Rule 1 and section 151 CPC. Therefore, under the exercise of powers under Order XII Rule 6 read with Order XV Rule 1 and section 151 CPC this court directs the defendants to vacate the premises bearing no. 41, Ground Floor, JExtension, Laxmi Nagar, Delhi - 92. This suit of plaintiffs qua the relief of possession stands decreed. Decree sheet be prepared.
29. Conclusion - This court directs defendants to vacate premises bearing no. 41, Ground Floor, JExtension, Laxmi Nagar, Delhi - 92. This suit qua the relief of possession of aforesaid premises stands decreed in favour of plaintiffs. Decree sheet be prepared.
Digitally signed by MURARI PRASAD SINGH MURARI Location: Court PRASAD No.7, Karkardooma SINGH Courts, Delhi Date: Announced through 2021.04.16 15:36:21 +0530 video conference on 16.04.2021 M. P. Singh ADJ03 (East) Karkardooma Court, Delhi CS 647/2019 Ashok Gupta & Anr. v. Gaurav Wasan & Anr. Page 13 of 13