Delhi District Court
Courts vs Smt. Ram Chameli Sethi on 7 January, 2011
IN THE COURT OF SH. PRITAM SINGH, ARC (CENTAL) TIS HAZARI
COURTS, DELHI.
E485/09
07.01.11
Shri Chand Kohli
S/o Late Sh. Bhagat Raj Kohli
R/o H3/2 Model Town
...Petitioner
Versus
1. Smt. Ram Chameli Sethi
W/o Late Shri Madan Lal Sethi.
2. Sh. Rakesh Kumar Sethi
S/o Late Sh. Madan Lal Sethi.
Both Resident of
53C/83, New Rohtak Road,
Karol Bagh, New Delhi.
Also At
Shop in building bearing No. 2656,
Ajmal Khan Road
Karol Bagh, New Delhi.
...Respondents
Petition U/s 14 (1) (e) r/w Section 25B of Delhi Rent Control Act.
1. Date of institution of the case : 20.07.2009
2. Date of Judgment Reserved : 04.01.2011
3. Date of Judgment pronounced : 07.01.2011
JUDGMENT
The brief facts as stated in the petition are that the father of the petitioner, late Sh. Bhagat Raj Kohli, and one Sh. Sardar Chand Narang had jointly purchased the building bearing no. 2656 Ajmal Khan Road, Karol Bagh, New Delhi i.e the property in question. They then got the property constructed after demolishing the then constructed portion. They jointly let out the suit shop, jointly to the respondents vide registered lease deed dated 30.05.1977. The lease was for a fix period of five years. The rent was paid by the respondents in the name of Raj Building, jointly to the said owners. In 1982, vide a duly registered gift deed dated 01.01.1982 Sh. Bhagat Ram Kohli out of his share in the building in question, gifted his 5/6th undivided share in favour of his five sons, i.e the petitioner and his four brothers. He continued to remain the owner of 1/6th undivided share in this building in question. Thus the petitioner alongwith his father and four brothers became joint owner of 50% share in the building in question, with the other 50% of Sh. Sardar Chand. The respondents became joint tenants under them. A partition was effected between Sh. Bhagat Raj Kohli & Others and Sh. Sardar Chand Narang by way of a decree dated 27.03.2001 in suit No. 23/2000 passed by the Hon'ble High Court of Delhi. The petitioner is now the sole and absolute owner of the suit shop.
2. It is further stated that the whole of the building in question, bearing no. 2656 Ajmal Khan Road, Karol Bagh, New Delhi has construction on the ground, first and second floors. On ground floor there are three shops and one window shop. On the first floor there is one hall. Similarly, on second floor also there is one hall. It is further stated that the petitioner has been doing the retail business of sale and purchase of jewellery. He has 35 years of working career when he had been jointly doing retail jewellery business, in partnership from shop marked 'P' shown in yellow colour in the site plan, along with his four brothers. The business was run under the name and style of 'Raj Jewellers'. The petitioner was also having partnership in retail jewellery business being carried out from the shop on ground floor of property No. 2655, Ajmal Khan Road, Karol Bagh, New Delhi. The said business was being run under the name and style of 'Khazana Jewellers'. This shop is just one shop after the building in queston. In this other shop in building 2655, Ajmal Khan Road, Karol Bagh, New Delhi the son of the petitioner, Sh. Ashish was a joint tenant alongwith the other four brothers of the petitioner.
3. It is further stated that the petitioner has two sons viz. Mr. Ashish Kumar aged about 32 years and Mr. Abhishek aged about 28 yrars. Both the said sons of the petitioner are married. Ashish has two children and Abhishek has one child to support. Both Mr. Ashish and Mr. Abhishek, had earlier been in the employment of 'M/s Raj Jewellers'. It is further stated that ultimately differences arose between the petitioner and his four brothers who were doing joint business from the two shops referred in the preceding paragraphs. Because of the differences the petitioner was forced to file a suit for partition bearing no. CS (OS) 1714/2007 entitled 'Sh. Chand Kohli' & Others Vs. Vijay Kohli & Others'. The dispute with regard to the business between the brothers was finally settled on 12.05.2008 vide decree passed by the Hon'ble High Court of Delhi between the parties therein.
4. It is further stated that the by virtue of the above decree the petitioner became sole and absolute owner of the suit shop, window shop on the ground floor and the hall on the first floor. It is further stated that the other shops and the second floor in the building in question, alongwith goodwill and retail business of M/s 'Raj Jewellers' as also the retail business and goodwill, of 'Khazana Jewellers' alongwith tenancy rights of the shop No. 2655, Ajmal Khan Road, Karol Bagh, New Delhi, have all gone in favour of the other brothers of the petitioner. The son of the petitioner Aashish also had to surrender his tenancy rights in the said shop where 'Khazana Jewellers' was doing its business. Both sons of the petitioner had also to surrender their jobs with 'Raj Jewellers' and 'Khazana Jewellers'.
5. It is further stated that the petitioner immediately on becoming the owner of the suit shop, on passing of the above judgment and decree, wrote a letter to the respondent informing about his acquiring the status of sole owner of the suit shop and asked them to atorn in his favour as landlord and owner of the suit shop. The respondents admitted, accepted and atorned to the petitioner as owner and landlord of the shit shop. They have also started sending rent in respect of suit shop in favour of the petitioner since then. That since the date of the above partition effected between the petitioner and his four brothers with regard to their business, the petitioner and his two sons have been without any business whatsoever. In fact the petitioner had no place to start his own business.
6. It is further stated that in view of the fact that his father had to go into litigation for partition with Sh. Sardar Chad Narang and then seeing the fact that he also had to seek partition and dissolution of business with his brothers, the petitioner has clear intentions to provide separate place of business for both of his sons. This is possible only after the tenanted premises are vacated by the tenants. It is only then that the petitioner can think of having his own proper showroom and business on the ground floor and also try to provide some place for business to his sons. Neither the petitioner nor any of his two sons have any other suitable accommodation available with them for the said purpose.
7. It is further stated that the petitioner left with no other alternative started sitting on the said hall, on the first floor of the building in question and tried his level best for carrying on his retail business of sale and purchase of jewellery, but was not successful. It became impossible to run a proper retail business from first floor, without very huge resources and financial backup. The said hall portion on the first floor of the building in question is also not suitable for the purposes of running a full fledged retail show room for sale and purchase of jewellery. The petitioner left with no alternative then decided to give the said portion on rent. The first floor portion is now on rent with M/s DTC Ltd. The said tenant is a limited company and is doing its business from the said first floor hall.
8. It is further stated that the petitioner tried to get a reasonable showroom space on the ground floor. But no reasonable and suitable ground floor portion was available in any good commercial area in Delhi. The petitioner was again left with no choice but to try his luck on the first floor. He took a hall on the first floor of M50, Greater KailashI, New Delhi, on huge rent of about Rs. 70,000/ (Rs. Seventy thousand) per month, vide registered lease deed. However, even before the petitioner could start his business there from, there arose disputes with the said landlord and the petitioner had to withdraw from the said place of Greater KailashI, New Delhi. The petitioner suffered huge losses in the said deal.
9. It is further stated that the petitioner is fast losing his existing customers only because he has no proper place of business. The sons of the petitioner are also getting frustrated with no accommodation available to them on the ground floor of the building in question to run the said show room. In fact they have no such accommodation available in the whole of Delhi. The petitioner, left with no other alternative, is now looking for at least two proper shops in the ground floor area wherein he can start his retail business of sale and purchase of jewellery with the help and assistance of one of his son and another shop from where the other son is able to start his own independent business.
10. The sons of the petitioner have only done the business of sale and purchase of jewellery and no other business. They also have a career in the business of sale and purchase of jewellery only. Now since the goodwill in the business under the name and style of 'Raj Jewellery' and 'Khazana Jewellers' has also gone to the other brothers of the petitioner, he in his old age has to build up his business all over again. The same is not possible unless he gets a proper place for a showroom on the ground floor of this building which is only the suit shop with the respondent. The retail business of sale and purchase of jewellery can effectively be run only if one has a proper showroom on the ground floor. The petitioner is known in the area and has developed relations with his customers. Besides, this area is also a Jewellery Market, known as Bank Street.
11. It is further stated that the respondents are running their shop from the suit property under the name and style of Kala Mandir. The respondents have already acquired another shop bearing no. 2570, Ajmal Khan Road, Karol Bagh, New Delhi, which is only 15 shops away from the suit shop. They have another shop about 200 meters away from the suit shop in the basement portion in building no. 2666, Gali no. 3, Ajmal Khan Road, New Delhi. Altogether the respondents have 6/7 shops in Delhi and is comfortably settled in his business. On the other hand the petitioner with his sons is on the roads and has to start his life afresh and without the ground floor shop i.e the suit shop, with the respondents being not vacated, it is not possible to start the business afresh.
12. It is further stated that the petitioner and his four brothers also jointly owned residential house bearing no. Block C2 Rohtak Road, Karol Bagh, New Delhi. The petitioner and the four of his brothers also are the owners of one basement portion in E18, NDSE I which is in a residential area. Besides, the petitioner and his four brothers are also joint owners of residential building bearing no. H3/2, Model Town, Delhi, wherein the petitioner and all his five brothers are residing.
13. The suit shop is bonafide required by the petitioner for commercial purposes for himself as also for the members of his family dependent upon him. The petitioner has no other alternative suitable accommodation available with him for the said purpose.
14. Leave to defend applications were filed by the respondents alongwith their affidavit. It is stated in the affidavits of respondents that to ascertain the correct position, it is necessary to call income tax record, sale tax and vat record to know the exact position of the properties owned by the petitioner and the position about the business already being run by the family members of the petitioner. Both the parties are required to lead evidence in favour of their contentions without which the dispute between the parties can not be adjudicated upon, thus requiring the leave of this Hon'ble Court to grant permission to the respondents to defend the case.
15. It is further stated that the petitioner and his purported family already possess much more than sufficient alternative accommodation for their own business, as well as their other alleged requirements. Manifestly this eviction petition has been instituted to pressurize the respondent to concede to the petitioner's and his family's demand, firstly to vacate the premises in suit. The purported settlement is on its own face sham, farcial and/or procured document which has been prepared only with a view to grab the property in tenancy of the respondents.
16. It is further stated that the property being leasehold cannot be partitioned without the approval of the DDA in order to confer exclusive, sole and absolute ownership rights in the property. The ownership of the property of the petitioner is questionable and disputed and requires investigation and evidence by this Hon'ble Court so much so petitioner has not filed the alleged decree in terms of the alleged settlement arrived at in the suit referred to before this Hon'ble Court. Infact neither any decree partitioning leasehold rights in the property bearing No. 2656, Ajmal Khan Road, Karol Bagh, New Delhi, has been drawn nor any ownership rights on the petitioner have been conferred even in the records of DDA who is admittedly lessor of the property. Further lease executed by DDA does not permit any partition of the property under reference. The respondents state that in the property bearing No. 2656, Ajmal Khan Road, Karol Bagh, New Delhi, Sardar Chand Narang Continues to be lessee and no alleged partition has been effective in terms of the alleged settlement recorded in the order dated 12.05.2008 filed by the petitioner. Neither any decree has been drawn demarcating partition of the property in terms of the settlement alleged herein by the petitioner nor the partition on the basis of the said decree has been recorded and even filed with the DDA and therefore, petitioner is not the exclusive owner of the property bearing no. 2656, Ajmal Khan Road, Karol Bagh, New Delhi.
17. It is further stated that the petitioner is still doing the business under the name and style of 'Raj Jewellers'. The petitioner has neither placed the Partnership Deed pertaining to the firm's business of 'Raj Jewellers' nor filed Dissolution Deed pertaining to the business of 'Raj Jewellers'. The respondent who is running the suit shop is aware of the fact that the petitioner is running the retail business pertaining to the jewellery under the name and style of 'Raj Jewellers'. It is further stated that the petitioner has admitted himself as partner in the business of jewellery under the name and style of 'Khajana Jewellers'. Respondents state that petitioner is still running the business from 'Khajana Jewellers'. The petitioner is doing dealing with these firms.
18. It is further stated that the petitioner alongwith his brothers have arrived at settlement in order to evict the tenant including the respondents from the said shop. There is no mention of settlement of partnership business in the alleged settlement filed by the petitioner. There is no mention of any retirement of the petitioner as well as his sons from the said business of 'Raj Jewellers' and 'Khajana Jewellers'. It is further stated that the petitioner's contention that it took a hall on the first floor of M50, Greater Kailash PartI, New Delhi is totally false. Respondent states that Mascot Studio is running the business from M50, Greater Kailish PartI, New Delhi for last many years which is evident from cash memo dated 01.08.2009 filed herewith. Mascot Studio is having TIN No. 07340242494 from which it is evident that the said shop is being run from the said place from year, 1994 till date.
19. It is further stated that the petitioner's contention that he has started business from the hall on the first floor is totally false. The petitioner did not commence any business from the said hall. The respondents state that the petitioner vide registered lease deed dated 15.04.2009 registered with the Sub RegistrarIII, New Delhi bearing registration No. 2570 in Additional Book No.1, Volume 13169 have let out the said first floor measuring 1750 sq. ft to M/s Diamond Tradex Company Limited i.e M/s DTC in short on a monthly rent of Rs. 2,50,000/ excluding other charges with an increase in rent by 15% from July, 2012 i.e Rs. 2,87,500/ and thereafter from July, 2015 @ Rs. 3,30,625/ per month besides having lockin period upto year 2012. The petitioner has intentionally concealed the material fact with regard to letting out of the property to M/s Diamond Tradex Company Limited and have wrongly alleged that it is question of his survival that he bonafide requires the shop for running business for self as well as for members of his family dependent on him.
20. It is further stated that M/s Diamond Tradex Company Limited is running the business of jewellery, diamonds an hall marked jewellery which is explicitly visible from the let out show room given by the petitioner to M/s DTC i.e Diamond Tradex Company Limited. From the photographs it is evident that the business of jewellery and diamond is being run by M/s DTC from first floor of building bearing No. 2656, Ajmal Khan Road, Karol Bagh, New Delhi. It is further stated that the petitioner is using the building No. 3, Block2C, Rohtak Road, Karol Bagh New Delhi for commercial purposes which fact has been concealed by the petitioner by alleging and showing it as a residential house. The concealment of material facts is evident from the conduct of the petitioner. Draft Zonal Development Plan also shows that building No. 3, Block2C, Rohtak Road, Karol Bagh, New Delhi owned by the petitioner falls in mixed land use.
21. It is further stated that the petitioner has concealed the material fact that from the said building No. 3, Block2C, Rohtak Road, Karol Bagh, New Delhi, an ATM of Punjab National Bank is being run which has been let out to Punjab National Bank. One Yogesh Store dealing in furnishing and Home linens has taken the said building at Rohtak Road, Karol Bagh, New Delhi for running the commercial venture and it is evident from this that the said building is being used commercially. The petitioner's contention that respondent have acquired another shop bearing No. 2570, Ajmal Khan Road, Karol Bagh, New Delhi are totally wrong and hence denied. Respondent does not have any shop for running chappal and footwear business except the suit shop from which respondent is earning livelihood. Contention of the petitioner that respondent have 67 shops are not only vague but absolutely wrong and hence denied.
22. It is further stated that the petitioner has made huge investment in the DLF Estate Pvt. Limited and owns property in DLF Estate Private Limited. It is further stated that from 25.04.2009 to 08.07.2009, petitioner have paid and invested a sum of Rs. 16.75 lacs in DLF Estate Pvt. Ltd. and have paid Rs. 6,75,000/ vide cheque No. 989073 in the month of April, 2009, Rs. 5 lacs on 15.04.2009, Rs. 1,50,000/ on 27.06.2009, Rs. 2 lacs on 06.07.2009 and Rs. 1.5 lacs on 08.07.2009 from his ICICI Bank account.
23. It is further stated that the petitioner is transferring fund to and fro from Raj Jewellers and one such dealing has been made by the petitioner vide cheque No. 989072 amounting to Rs. 6 lacs on 17.04.2009. Similarly, petitioner has paid Rs. 5 lacs to his son namely Sh. Ashish Kohli and further Rs. 4 lacs in June, 2009 i.e sum of Rs. 9 lacs in total before filing the present petition. It is further stated that the petitioner who owns basement at E18, NDSE PartI, New Delhi as admitted by him has asked the property dealer namely Frontier Real Estate & Developers whose proprietor/authorized dealer is Sh. Kapil Patil 2665/3, Beadonpura, Ajmal Khan Road, Karol Bagh, New Delhi for letting out the said property for commercial purposes as well as dealer of the South Extension. The said property is presently being utilized for advertising by Jecko Animation Studio Pvt. Limited.
24. It is further stated that the respondents were inducted as tenant in the year 1977 by Sh. Sardar Chand Narang and Sh. Bhagat Raj Kohli in respect of the tenanted shop in question on a monthly rent of Rs. 450/ per month. At the time of handing over the possession, they had taken over sum of Rs. 50,000/. Therefore, ownership of the property by Sh. Sri Chand Kohli is disputed by the respondent. It is further stated that both sons of the petitioner for whom the eviction of the respondent is sought, are already working for gain and do not require the premises as mentioned. They, including petitioner, are already working profitably and as such there is no bonafide necessity/requirement of the premises by them. The petitioner is not in possession of any authentic document much less the correct site plan to support his cause.
25. Reply to the application of leave to defend alongwith counter affidavit filed on behalf of petitioner. It is stated that neither there is any occasion nor there is any purpose for calling any income tax, sale tax or VAT record to know the exact position of the properties owned by the petitioner or for the business being run by the family members of the petitioner. The petitioner states that he has no place of business for himself or any member of his family. It is only after filing of this petition, that the petitioner has taken a small shop on ground floor of the nearby building on rent. It is pertinent to mention that the respondents have atorned to the petitioner as owner of the suit property. It is denied that the petitioner or his family members possess much more/sufficient accommodation for their own business. It is further stated that settlement has been arrived at between the brothers before Hon'ble High Court of Delhi. Both their business and business properties have thus been partitioned. Now only independent businesses are being carried out by all the brothers including the petitioner.
26. It is further stated that after this settlement, Mr. Vijay Kohli, the brother of the petitioner, who has one grown up son and a daughter and who was the partner with the petitioner in M/s Khazana Jewellers, initially opened his showroom on the terrace floor of the building in question, under the name of 'Raj JewellersVijay Kohli Group'. However, since the retail business cannot work on the upper floors, except the ground floor, he had to shut the same down and has now taken on rent another shop on the ground floor in a nearby building No. 2575 A, Gali No. 5, Beodanpura, Karol Bagh, New Delhi. It is further stated that the petitioner, due to lack of proper space does not have any reasonable and suitable accommodation to start his business. In fact the petitioner has been forced to take on rent another shop @ Rs. 24,000/ (Rs. twenty four thousand only) per month, excluding other charges so as to at least start some business otherwise in today's world of competition he would be out of the retail business of jewellery, in the market. The petitioner cannot be forced to be on rent when his own shop is with the respondents.
27. It is emphatically denied by the petitioner that no ownership rights of the petitioner have been conferred, as alleged. It is reiterated that the suit building can be partitioned even in cases of lease executed by DDA. It is denied that in the property bearing no. 2656 Ajmal Khan Road, Karol Bagh, New Delhi Sh. Sardasr Chand Narang, continues to be lessee and that there is no partition in terms of the settlement with regard to order dated 12.05.2008 filed by the petitioner. It is further stated that after partition between the brothers, the petitioner started the business under the name and style of 'SRICHAND RAJ JEWELLERS' from the 1st floor of the suit building. The petitioner with his brothers Vijay Kohli and Suresh Kohli and their mother Smt. Shanti Devi, retired from the business of 'RAJ JEWELLERS' vide retirement deed dated 30.07.2008. It is further stated that the business of Khazana Jewellers came to an end by 31.03.2009. The dissolution of the firm has finally been done w.e.f 30.09.2009. Only for the purposes of rendition of accounts and for the purposes of settling accounts with debtors and creditors the time has been extended and finally the partnership of 'Khazana Jewellers' has been dissolved. The petitioner now does not have any right or interest in business of 'Khazana Jewellers', in which he was earlier a partner.
28. It is further stated that due to inadvertence property bearing no. M50, Greater Kailash PartI, New Delhi has been written instead of M49, Greater Kailash PartI, New Delhi. The petitioner had taken the first floor hall of property No. M49 on rent. However, there also the petitioner could not even start his business as there was encroachment in the egress of the said tenanted property. The said property had finally to be surrendered by the petitioner. It is not denied that M/s Diamond Tradex Company Ltd. is running their business of jewellery, diamonds and hall marked jewellery in the portion let out by the petitioner to M/s Diamond Tradex Company Ltd. The said tenant is carrying his wholesale business from the said portion let out to him. The photographs have been taken in the manner so as to confuse and mislead this Hon'ble Court.
29. It is further stated that the petitioner is not using any portion of the building no. 3, Block 2C, Rohtak Road, Karol Bagh, New Delhi for any purposes, much less, for commercial purposes, as alleged. The said property has been sold by the petitioner and his brothers in order to pay off the huge loan taken by them. The said property was sold much prior to filing of the present petition.
30. It is further stated that the petitioner have nothing to do with said Yogesh Store, if any. Neither the petitioner nor his brothers or any member of his family have been left with any right, title or interest in any portion of building no. 3, Block 2C, Rohtak Road, New Delhi. It is not denied that the petitioner has booked one residential flat in DLF Estate Pvt. Ltd. The said flat is on the second floor of the building and has been booked for the purposes of residence. It is denied that the petitioner vide cheque no. 989072 for Rs. Six lacs has made any dealings, with erstwhile M/s Raj Jewellers, as alleged. The fact of the matter is that the said cheque was issued to M/s Srichand Raj Jewellers, which is the new firm, of the petitioner. The payments made to the son Aashish Kohli to the tune of Rs. 9 lakhs is a matter of record.
31. Rejoinder to the reply of leave to defend application filed on behalf of both the respondents. All the averments made in the reply to the leave to defend application were denied and the contents of the application for leave to defend application were reaffirmed.
32. Arguments heard from the Ld. Counsels of both the parties. Record perused and considered.
33. Ld. Counsel for petitioner is relied upon the following rulings :
(i) M/s Kharati Ram Khanna & Sons Vs. Smt. Krishna Luthra, R.C.REV.
No. 113/1010 and C.M.No. 9000/2010 (Stay).
(ii) Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta, Supreme Court of India. Date of Judgment 30.07.1999.
(iii) Smt. Viran Wali Vs. Sh. Kuldeep Rai Kochhar, High Court of Delhi RC. REV. No. 124/2010 & CM No. 10165/2010. Judgment delivered on 12th November, 2010
(iv) Mohd. Usman Vs. Siraj Ahmed, 154 (2008) Delhi Law Times 342.
(v) M/s John Impex (Pvt.) Ltd. Vs. Dr. Surinder Singh & Ors., C.R.P. No. 654 of 2001 & CM No. 1381 of 2001. D/d 05.12.2006.
(vi) Mahendra Trivedi Vs. Jai Prakash Verma, 157 (2009) Delhi Law Times 690.
(vii) Sarla Ahuja Vs. United India Insurance Company Ltd., (1998) 8 Supreme Court Cases 119.
(viii) Ram Lal Sachdev Vs. Smt. Sneh Sinha, 83 (2000) DLT 141.
(ix) Sanjay Mehra & Ors. Vs. Sunil Malhotra & Anr., 170 (2010) Delhi Law Times 797.
(x) Savitri Sahay Vs. Sachidanand Prasad, (2002) 8 Supreme Court Cases
765.
(xi) Sh. Om Prakash Bajaj Vs. Sh. Chander Shekhar, 102 (2003) DLT
746.
(xii) Satyawati Vs. Bhagwat Goel, High Court of Delhi, C.M.Appl. 8677 of 2994.
(xiii) Pal Singh Vs. Sunder Singh (Dead) by LR's & Others, 37 (1989) Delhi Law Times 305.
(xiv) Sh. A.K.Nayar Vs. Sh. Mahesh Prasad, High Court of Delhi, CRP 380/2000, Date of order 05.09.2008.
34. Ld. Counsel for the respondents relied upon the following rulings :
(i) Precision Steel & Engineering Works and another Vs. Prem Deva Niranjan Deva Tayal, AIR 1982 Supreme Court 1518.
(ii) Inderjeet Kaur Vs. Nirpal Singh, 2001 (1) RCR, 33.
(iii) Bhauri Devi (Deceased) through LRs Vs. Mahender Kumar, 146 (2008) Delhi Law Times 17.
(iv) S.K.Dey Vs. D.C.Gagerna, 26 (1984) Delhi Law Times 438.
35. The present petition has been filed u/s 14 (1 ) (e) r/w section 25B of DRC Act and in order to succeed in such a petition, petitioner has to prove
(i). Ownership of the suit premises ; (ii). Purpose of letting; (iii) Alternative accommodation; and (iv) bonafide requirement;. Let the same be discussed in detail.
36. Ownership The respondents have contended that they were inducted as tenants in the year 1977 by Sh. Sardar Chand Narang and Sh. Bhagat Raj Kohli in respect of the tenanted premises on a monthly rent of Rs. 450/. The property in question being leasehold cannot be partitioned without the approval of the DDA in order to confer exclusive, sole and absolute ownership rights, therefore, the ownership of the property in favour of petitioner is questionable and required investigation and evidence by this court. It is further contended that no decree partitioning the leasehold rights in the property in question has been drawn nor any ownership rights on the petitioner have been conferred even in the records of DDA which is admittedly lessor of the property in question. It is further contended that the partition between the petitioner and his brother is a sham and misleading.
37. On the other hand the petitioner has stated that he is landlord and owner of the tenanted shop in question. The case of the petitioner is that his father was coowner of the property in question i.e 2656, Ajmal Khan Road, Karol Bagh, New Delhi alongwith one Mr. Sardar Chand Narang. The property in question came to the share of his father Sh. Bhagat Raj Kohli vide a decree dated 27.03.2001 in suit No. 23/2000 passed by the Hon'ble High Court of Delhi. Later on the shop in question which is a part of property number 2656, Ajmal Khan Road, Karol Bagh, New Delhi came to the share of petitioner vide settlement decree dated 12.05.2008. The respondents have started paying rent to the petitioner.
38. The relationship of landlord and tenant between the parties is not disputed. It is admitted case that the respondents are paying rent to the petitioner. The contentions of the respondents have no merits in view of the law laid down by various Hon'ble High Courts and the Hon'ble Supreme Court. It is well settled law that for an eviction of a tenant under the DRC Act, the landlord is not required to prove the absolute ownership. It was held in Ramesh Chand Vs. Uganti Devi, 157 (2009) DLT 450 by the Hon'ble High Court of Delhi that, "It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly".
39. In the present case the respondents admitted that they were inducted tenants by Sh. Sardar Chand Narang and Sh. Bhagat Raj Kohli in the tenanted shop in question. It is not in dispute that Sh. Bhagat Raj Kohli expired on 14.01.2004 and the petitioner is one of the sons of Late Sh. Bhagat Raj Kohli. The petitioner has filed the attested copy of settlement decree dated 12.05.2008 passed by Hon'ble High Court of Delhi. It is specifically stated in the said settlement decree that the suit of the plaintiff be decreed in terms of the settlement arrived at. As per the said settlement the tenanted shop in question alongwith first floor in the same property came to the share of present petitioner. Hence, it is clear that the petitioner has some legal right in the suit shop. The respondents being tenants have no locus to challenge the settlement decree. It is important to mention here that if the petitioner is not the owner then who is owner and to whom the respondents are paying rent. The respondents nowhere stated in the application of leave to defend to whom they are paying rent or is there any one else who is claiming ownership.
40. In view of aforesaid discussions and the law laid down in the aforesaid authority, as the respondents admit the relationship of landlord and tenant, there is no merit in the contention of the respondents that the petitioner is not the owner of the tenanted shop in question.
41. Purpose of letting The respondents contended that the scope of judicial review of legislation under Article 136 of the Constitution of India is limited and to ascertain whether the legislature has contravened any articles of the constitution or whether any particular provision of the statute is ultra virus to the constitution. It is further submitted that no finality can be attached to the Judgment of Smt. Satyawati Sood Case unless the said question is finally decided by the Constitution Bench. The respondents further submitted that the order of Hon'ble Supreme Court in Satyawati Sharma Vs. Union of India III (2008) SLT 553, is per incuriam and same cannot be pressed into service by the petitioner. On the other hand the petitioner submitted that the case of Satyawati Sharma has gained finality as the same has not been challenged in any court of law.
42. These contentions of respondents are without merits. A party cannot say that the order of Hon'ble Supreme Court is per incuriam. The Judgment of Supreme Court is being followed and this court is bound to follow the law laid down by Hon'ble Supreme Court in Satyawati Case. Hence the provisions under section 14 (1) (e) of DRC Act are applicable to the tenanted premises which are let out for commercial purposes.
43. Alternative Accommodation and Bonafide requirement.
The respondents contended that the petitioner is still doing the business under the name and style of 'Raj Jewellers' as well as 'Khazana Jewellers' and the petitioner has not filed the Partnership Deeds and Dissolution Deeds of said firms. It is further contended that the business of partnership under the name and style of 'Raj Jewellers' and 'Khazana Jewellers' have not been settled under the alleged settlement and there is no mentioning of settlement of partnership business in the alleged settlement. It is further contended that the petitioner has not taken a hall on the first floor of property M50, Grater Kailash PartI , New Delhi and a Mascott Studio is running its business on the first floor of M50, Grater Kailash PartI, New Delhi for last many years and a service tax number allotted to the said shop. It is further contended that the petitioner has not started any business from the first floor i.e a hall on the first floor of the premises in question. However, the petitioner has let out the said hall on the first floor to M/s Diamond Tradex Company Limited on a monthly rent of Rs.
2,50,000/ and which will increase from time to time as per the agreement and the petitioner has concealed these facts. M/s DTC Ltd. is running the retail business of jewellery, diamond and hall mark jewellery from the hall on the first floor of the property in question.
44. It is further contended by the respondents that the petitioner is using a building bearing no. 3, Block 2C, Rohtak Road, Karol Bagh, New Delhi for commercial purposes which fact has been concealed by the petitioner by showing the said building as residential house whereas, as per the Draft Zonal Development plan the said building at Rohtak Road, Karol Bagh, New Delhi falls in mixed land use. It is further contended that an ATM of Punjab National Bank is being run in the premises of said building at Rohtak Road, Karol Bagh, New Delhi and not only this one Yogesh Store dealing with furnishing and home linens is running its commercial venture from the said premises at Rohtak Road, Karol Bagh, New Delhi. It is further contended that the petitioner has more than sufficient alternative accommodation but he just wants to evict the respondents from the tenanted shop in question, hence file this present petition.
45. On the other hand the petitioner has denied that he is doing the business under the name and style of 'Raj Jewellers' and 'Khazana Jewellers' and the petitioner does not have any right or interest in the business of 'Raj Jewellers' and 'Khazana Jewellers'. It is further stated that due to inadvertence the property no. M50 was written instead of M49, Greater Kailash PartI, New Delhi. The petitioner had taken the first floor hall of property no. M49, Greater Kailash PartI, New Delhi on rent. However, the petitioner could not even start his business in the said shop as there was encroachment as there was in the address of said tenanted property and the petitioner had finally surrendered the same.
46. It is further stated that M/s DTC Limited is running its business of jewellery, diamond, hall mark jewellery in the hall on the first floor of the property in question and it is carrying its whole sale business from first floor. It is further stated that the petitioner is not using any portion of the building no. 3, block 2C, Rohtak Road, Karol Bagh, New Delhi for any purpose as the same has already been sold by the petitioner and his brothers much prior to the filing of the present petition. It is further stated that the petitioner has no concern with said property at Rohtak Road, Karol Bagh, New Delhi.
47. The contention that the petitioner and his sons are are still in the business of 'Raj Jewellers' and 'Khazana Jewellers' has no substance as the petitioner has filed the photocopy of Retirement Deed of Raj Jewellers dated 30.07.2008 and Dissolution Deed of Khazana Jewellers dated 30.09.2009. From these documents it is duly proved that the petitioner and his sons are no more in the business of Raj Jewellers and Khazana Jewellers. So far the shop M50, Greater Kailash PartI, New Delhi is concerned the petitioner has admitted that he has not taken said shop on rent but the petitioner has taken the shop M49, Greater Kailash PartI, New Delhi but inadvertently the shop no. M50 was written in the petition instead of M49. The petitioner is not running the shop M49, Greater Kailash PartI, New Delhi and he has surrendered his possession vide handing over possession letter dated 19.09.2009. From this it is clear that the petitioner is not carrying his business in shop no. M49, Greater Kailash PartI, New Delhi. The Further contention of the respondents is that the petitioner was having the first floor portion in the suit premises but he let out to same to M/s DTC Jewellers and getting Rs. 2,50,000/ per month as rent. These contention has no force because it is the landlord who will decide which property/shop suits to him to carry on his business. Neither the Rent Controller nor tenant can dictate the term to the landlord. It was held in It was held by Hon'ble Supreme Court in M/s John Impacts Pvt. Ltd. Vs. Surender Singh, 2007 (1), RCR 509 that the landlord is best judge of his requirement and a tenant cannot dictate terms on which the landlord should live. Bonafide of landlord would also depend upon on his financial status and his standard of living.
48. The contention of respondent that M/s DTC is running retail business on the first floor is irrelevant. Whether DTC is running retail business or whole sale business it will not affect the rights of the petitioner to choose the shop of his choice to run his business. However here petitioner already stated that he started business from first floor but could not succeed. Regarding the property at Rohtak Road, Karol Bagh, New Delhi the petitioner has filed copy of Sale Deed of this property and according to said Sale Deed the petitioner and his brothers had already sold the same before filing the petition. For the sake of argument, if it is assumed that the property at Rohtak Road, Karol Bagh, New Delhi was not sold, even then the respondents cannot dictate the petitioner to run his business from a place which is not suited for jewellery business and the petitioner wants to do business from the place that is very famous for jewellery business. It was observed by Hon'ble Supreme Court in Sarla Ahuja Vs. United India Insurance Company Limited that "The crux of the ground envisaged in clause (e) of Section 14 (1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bonafide. When a landlord asserts that he requires his building for his own occupation, the Rent Controller shall not proceed on the presumption that the requirement is not bonafide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bonafide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bonafide requirement of the landlord. It is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself".
49. It was held in Nem Chand Daga Vs. Inder Mohan Singh Rana, 1994 (2004) DLT 683 that there must be something more than a bald plea to prevail upon the Controller into coming to the conclusion that there is prima facie substance in the defence.
50. It was held by the Hon'ble Supreme Court in M.L.Prabhakar Vs. Rajiv Singhal that a landlord is required to disclose other properties owned by him only if these are residential and are suitable for him. If other properties are far off and not near or adjacent, then these can be claimed as not suitable.
51. The respondents further contended that the petitioner has invested Rs. 16 lac in DLF project and therefore his plea that he has come on road is false. It is further contended that the petitioner is transferring funds from the account of Raj Jewellers and he is still in the business of Raj Jewellers.
52. These contentions have no merits because this court has to see whether the petitioner is having any other suitable place to run his jewellery business or not. It has not to be seen while considering the bonafide requirement of the petitioner, how much money does he have or whether he can purchase any other property. The court has to consider the genuine need of the petitioner. So far the cheques are concerned, the petitioner has stated in his reply that the same were issued from the account of Sri Chand Raj Jewellers which is a new firm started by petitioner after partition of property. The averments of petitioner that he has come on road does not mean that he has no money, it means that he has no place to work. The premises shops which were stated by the respondents are not in the possession of petitioner and if they are in his possession the same are not suited for his retail jewellery business.
53. During the course of arguments, Ld. Counsel for the respondents vehemently argued that while considering the application for leave to defend only the affidavit of tenant have to be considered and Ld. Counsel relied upon Precision Steel & Engineering Works and another Vs. Prem Deva Niranjan Deva Tayal (supra). I have gone through all the rulings relied upon by the Ld. Counsel of respondents. There is shift in the approach of Hon'ble Supreme Court as observed by Delhi High Court in Nem Chand Daga Vs Inder Mohan Singh Rana (supra). It is observed in said judgment that " The Hon'ble Supreme Court in Inderjeet Kaur's case (supra), has diverted the recommended approach from that of the majority view to the minority view in the Precision Steel case (supra), inasmuch as it has specifically recommended that the "tenant cannot be thrown out from a premises summarily even though prima facie he has been able to say that the claim of the landlord is not bonafide or untenable and as such not entitled to obtain an order of eviction". However, moonshine defences or in the words employed by the Apex Court in Inderjeet kaur's case (supra), i.e "wholly frivolous and untenable defence", now do not call for leave to contest being granted".
54. Considering all this aspects I am of the considered view that the petitioner is not having any suitable/alternative accommodation to run his retail jewellery business and he bonafidely needs the tenanted shop in question to start his retail jewellery business. The respondents have failed to raise any tribal issue. Hence the petitioner is entitled for an eviction order u/s 14 (1) (e) r/w section 25B of DRC Act.
55. Accordingly, the application seeking leave to defend moved by the respondent is dismissed and an eviction order is passed u/s 14 (1) (e) r/w section 25B of DRC Act in favour of the petitioners and against the respondent in respect of the suit premises i.e building bearing no. 2656 Ajmal Khan Road, Karol Bagh, New Delhi, more specifically shown in red colour in site plan Ex. C1 (exhibited today while passing the order). However, it is made clear that the petitioners shall not be entitled to get the eviction order executed before expiry of 6 months running from today. No order as to costs.
File be consigned to Record Room.
(Announced in the open court
on 07.01.11) (Pritam Singh)
ARC/Central/Delhi