Delhi District Court
M/S Hemant Khandelwal (Huf) vs Shri Subodh Singhal on 6 August, 2016
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 202/14
Unique I.D. No. 02401C0435402014
In the matter of :
M/s Hemant Khandelwal (HUF)
Through its Karta
Shri Hemant Khandelwal
At C19, Shivalik Enclave,
Malviya Nagar, New Delhi110017. ...........Petitioner
Versus
Shri Subodh Singhal
Sole proprietor of M/s Munshi Lal Om Prakash,
At 3685, Chawri Bazar, Delhi110006. ......... Respondent
ORDER
06.08.2016
1. Vide this order, I shall dispose off the application moved by respondents for grant of leave to defend the eviction petition filed by the petitioner u/s 14(1)(e) Delhi Rent Control Act, 1958 [in short, 'the Act'].
2. An eviction petition has been filed by the petitioner M/s Hemant Page 1 of 17 E. No. 202/14 2 Khandelwal (HUF) through its Karta Sh. Hemant Khandelwalagainst the respondent Sh. Subodh Singhal for vacation of the tenanted premises, i.e., shop bearing No. 3685, Chawri Bazar, Delhi110006, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act. (hereinafter referred to as "the Act").
3. The case of the petitioner is that the petitioner is the owner of the tenanted premises by means of duly registered partition deed dated 08.02.2005. As per the said partition deed, the property in question alongwith shop No. 3690, Chawri Bazar, Delhi was allotted to Sh. Hemant Khandelwal. That since the date of allotment of this property bearing No. 3685, Chawri Bazar, Delhi is being treated as HUF property. The ownership of the premises vest with the petitioner and the respondent is tenant under the petitioner and paying rent to the petitioner.
4. That the petitioner owns only two shops, i.e., shop No. 3685 and shop No. 3690, Chawri Bazar, Delhi. That the shop No. 3690 is also not available to the petitioner as the same is in use and occupation of the an old tenant M/s Prakash & Co. That apart from these two shops, the petitioner does not own any other commercial properties in Delhi or outside Delhi. Second floor of property No. 179, Kailash Hills, New Delhi is owned by Sh. Hemant Khandelwal wherein he is residing alongwith his family members. Another premises available with the Karta of HUF is Page 2 of 17 E. No. 202/14 3 basement of property No. C19, Shivalik Enclave, Malviya Nagar, New Delhi which is situated in a residential colony and cannot be put for commercial use. The said premises being a basement can be used storage purposes and at present the said premises is being used by the Karta of the petitioner as his correspondence address as well as for storing his photography instruments and also for running a small studio which is not an approved user of the said premises and therefore, there is always a threat of sealing of these premises at the hands of MCD. That Sh. Hemant Khandelwal is compelled to use this basement premises as no other commercial premises is available to him.
5. It is averred by the petitioner that the family in which Sh. Hemant Khandelwal was born had a settled and reputed business and were residing at 509, Kucha Patiram, Sita Ram Bazar, Delhi. The said business family was engaged in the business of hardware and sanitary items since 1840 under the name and style of Fakir Chand Mohan Lal. That by the age of 1516, the petitioner was actively involved in the activities of said business and in the year 1991, Sh. Hemant Khandelwal was inducted as a working partner in the said business concern alongwith paternal uncle, father as well as the children of his paternal uncle. However, differences and disputes arose amongst the family members and the differences cropped to such an extent that in the year 1997, Sh.Hemant Khandelwal had to leave the said business by means of a retirement deed dated 31.03.1997. That Sh. Hemant Khandelwal having no experience other than the business of hardware and sanitary Page 3 of 17 E. No. 202/14 4 items started looking after other option to sustain in life and finally entered into the business of photography. He started learning and gaining experience in the said business of photography and later on opened a studio under the name and style of M/s Kwasa Studio. Sh. Hemant Khandelwal started this profession in order to sustain in his life. However, after more than 15 years, he has not been able to settle himself in his life. The annual income of Sh. Hemant Khandelwal is restricted to Rs. 34 lacs which is totally insufficient to support his family and himself. Further, there is lot of competition in the field of photography due to introduction of new technology and new instruments in a very short span of period. Sh. Hemant Khandelwal neither has vast experience in such a field of photography nor has got sufficient space to carry on photography business due to which he is compelled to restart his own family business of hardware and sanitary items from the tenanted premises in order to sustain in his life and to support his family members. That the tenanted premises is more suitable for the requirement of the Karta of the petitioner since the petitioner requires commercial space on the ground floor to carry out the business of hardware and sanitary items. An area of about 15002000 sq. ft. would be required by the petitioner for accommodating his goods as there is lot of variety and range in products needing space for their display as well as storage. The petitioner also requires space for its staff and office of about 10001200 sq. ft. in the said premises. The requirement of the petitioner can be met when the tenanted premises are vacated by the respondent.
Page 4 of 17 E. No. 202/14 5On the above stated grounds, prayer is made for eviction of the respondents from the tenanted premises.
6. Summons were served upon the respondent who filed the leave to defend application on the following grounds: ● That the petitioner is a renowned fashion photographer and is a multimillionaire. That the petitioner's business of fashion photography is very flourishing and the petitioner is earning several lacs of rupees per month from the said business. The said business is being run by the petitioner from his office in the basement of the building at Shivalik which is about 200 sq. yards and is sufficient for the professional photography business. ● That the petitioner has a big studio at plot No. 21, Sector 135, Noida in a commercial area.
● That the petitioner is in possession of the adjoining shop from where the petitioner is running the business with the help of his partner in premises No. 3685, Chawri Bazar, Delhi in the name of M/s. Prakash & Company and running the business of trading of sanitary goods and the petitioner himself is in the possession of said adjoining shop and there is no tenant in the said shop. ● That the petitioner is already established in the profession of photography for the last several years and no prudent businessman would change the business at this point of time. That the petitioner has already attained the age of 50 years and spent several years in the profession of photography. Further, the Page 5 of 17 E. No. 202/14 6 website of the petitioner clearly shows that the petitioner has established himself very well in the field of photography. ● That the petitioner is not the owner of the suit premises and is only a landlord and entitled to receive rent only.
● That the petitioner has failed to disclose as to how much funds petitioner intend to invest in hardware and sanitary business and what are his expectations of earning from the said business.
7. Reply to the application for leave to defend has been filed by the petitioner wherein the petitioner has denied all the averments made by the respondent in his leave to defend application. It is specifically denied that the petitioner is a renowned fashion photographer or multi millionaire. It is submitted by the petitioner that the annual income of Sh. Hemant Khandelwal is restricted to Rs. 34 lacs and he is not able to get momentum in the said business. The petitioner has also denied the contention of the respondent that he is visiting foreign countries frequently and he remains out of country at least more than 15 days per month stating that his last trip outside India was to Canada in the year 2012 which was a personal trip. Further, it is denied by the petitioner that the basement in Shivalik, Malviya Nagar is measuring 200 sq. yards. It is submitted by the petitioner that the said premises is used presently by Sh. Hemant Khandelwal as his correspondence address as well as storing his photography instruments and also running a small studio. That for the business of photography, Sh. Hemant Khandelwal has no office and he shoots mostly at the site of the customer. It is further Page 6 of 17 E. No. 202/14 7 submitted that the accommodation at Shivalik is not commercial and business of hardware cannot be run from there. This business of hardware can be run from the tenanted premises which is situated at Chawri Bazar, Chandni Chowk, Delhi which is the biggest market of hardware in Asia. Further, it is denied that the petitioner has a studio, much less big studio at plot No. 21, Sector 135, Noida, U.P. stating that neither the petitioner nor any members of his family has any concern with the said plot either in the present or in the past. It is also denied that the petitioner has got possession of any premises bearing no. 3685, Chawri Bazar, Delhi stating that in fact number of the said premises is that of the tenanted premises which is under the occupation of the respondent. As far as M/s Prakash & Co. is concerned, the same is a tenanted premises under the petitioner in respect of premises No. 3690, Chawri Bazar, Delhi since long at a rent of Rs. 260/ per month. It is denied that the said business is in the partnership of the petitioner. That in fact the said business is being run by one Mr. Narinder Chand Abrol and the petitioner is in litigation with the said tenant which is evident from the DR petitions No. 655/13 and 466/13 filed by the said tenant against the petitioner. That Sh. Hemant Khandelwal has never been a partner nor has got any beneficial interest at any point of time in M/s. Prakash & Co. It is averred by the petitioner that he is bound to leave this profession of photography as he is not able to sustain himself in the said profession as his income is restrained to Rs. 34 lacs only. That the petitioner is compelled to commence the business of hardware and sanitary from the tenanted premises in order to sustain himself in his life and with respect Page 7 of 17 E. No. 202/14 8 to allegations regarding website, it is stated that the same was got prepared several years back and similar averments are usually made by all concerned businesses in order to attract business and client. In order to prove his annual income, the petitioner has also placed on record his ITR.
8. Rejoinder has been filed wherein the respondent has denied all the averments made by the petitioner in his original eviction petition as well as in reply to the leave to defend application and reaverred what was averred by him in his leave to defend application further stating that the petitioner might not have gone outside India for last three years but petitioner has been travelling to various cities of India for business. It is further stated that the Chawri Bazar area is very congested and it has many limitations of its own.
9. I have heard the arguments and have gone through the documents.
10. Proviso (e) to Section 14(1) is a special provision which has been enacted by the legislature for the class of landlords who require the premises genuinely and their requirement is bonafide and they do not have any suitable accommodation. The essential ingredients for attracting the proviso (e) of the Section 14(1) are :
a) The said premises are bonafide required by the landlord either for himself or for his family member.
b) The landlord or the family member has no other reasonable Page 8 of 17 E. No. 202/14 9 suitable accommodation.
These twin thresholds are to be satisfied conjunctively in order to attract the provisions of Section 14(1)(e) and the absence of even one of the said ingredients clearly makes the said provision inapplicable.
11. The satisfaction of the two requirements of bonafide need and no reasonably suitable accommodation has been time and again emphasized by the Supreme Court of India in several cases and more recently in the case Deena Nath Vs. Pooran Lal, (2001) 5 SCC 705 wherein the Supreme Court observed thus:
"The Legislature in enacting the provision has taken ample care to avoid any arbitrary or whimsical action of a landlord to evict his tenant. The statutory mandate is that there must be first a requirement by the landlord which means that it is not a mere whim or a fanciful desire by him; further, such requirement must be bonafide which is intended to avoid the mere whim or desire. The 'bonafide requirement' must be in presenti and must be manifested in actual need which would evidence the Court that it is not a mere fanciful or whimsical desire. The legislative intent is made further clear by making the provision that the landlord has no other reasonably suitable residential accommodation of his own in his occupation Page 9 of 17 E. No. 202/14 10 in the city or town concerned. This requirement lays stress that the need is pressing and there is no reasonably suitable alternative for the landlord but to get the tenant evicted from the accommodation. Similar statutory provision is made in subsection (e) of Section 12(1) of the Act in respect of accommodation let for residential purposes. Thus, the legislative mandate being clear and unambiguous, the Court is dutybound to examine not merely the requirement of the landlord as pleaded in the eviction petition but also whether any other reasonably suitable nonresidential accommodation in his occupation in the city/town is available. The judgment/order of the court/authority for eviction of a tenant which does not show that the court/authority has applied its mind to these statutory requirements cannot be sustained and the superior court will be justified in upsetting such judgment/order in appeal/second appeal/revision. Bonafide requirement, on a first look, appears to be a question of fact. But in recording a finding on the question the court has to bear in mind that statutory mandate incorporated in Section 12(1)(f). If it is found that the court has not applied the statutory provisions to the evidence on record in its proper perspective then the finding regarding bonafide Page 10 of 17 E. No. 202/14 11 requirement would cease to be a mere finding of fact, for such erroneous finding illegally arrived at would vitiate the entire judgment."
12. Chambers 20th Century Dictionary defines bona fide to mean "in good faith and genuine i.e. without fraud or deceit". Requirement is not a mere desire. The degree of intensity contemplated by "requires" is much more higher than in mere desire. The phrase "required bonafide" is suggestive of legislative intent that a mere desire which is the outcome of whim or fancy is not taken note of by the rent control legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by the realities of life. It is no concern of the Courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own.
13. The meaning of "bonafide" in the context appears to be in two Page 11 of 17 E. No. 202/14 12 folds. (a) the need of the landlord must be a genuine one and not a frivolous one. (b) landlord is not motivated by extraneous considerations in trying to recover the possession from the tenant with a view to let it out again to another tenant on higher rent.
OWNERSHIP AS WELL AS LANDLORDTENANT RELATIONSHIP
14. In the present case, the respondent has not disputed the landlord tenant relationship between the petitioner and the respondent. The respondent has not disputed the landlordship of the petitioner over the tenanted premises but has stated that the petitioner is not the owner. However, having admitted the landlordship of the petitioner, the respondent is estopped under Section 116 of Indian Evidence Act from disputing the title of the petitioner over the tenanted premises for the purpose of DRC Act.
BONAFIDE REQUIREMENT
15. It is averred by the petitioner that the tenanted premises is bonafidely required by him for starting his business of hardware and sanitary items as earlier Sh. Hemant Khandelwal was in the family business of hardware and sanitary items which he left due to differences and disputes amongst the family members. Further, the petitioner has tried his hands in the photography business to sustain himself and his family members. However, after more than 15 years, he has not been Page 12 of 17 E. No. 202/14 13 able to settle himself in his life. The annual income of Sh. Hemant Khandelwal is restricted to Rs. 34 lacs which is totally insufficient to support his family and himself from the business of photography. Further, there is a lot of competition in the field of photography due to introduction of new technology and new instruments in a very short span of period. Sh. Hemant Khandelwal neither has vast experience in such a field of photography nor has got sufficient space to carry on photography business due to which he is compelled to restart his own family business of hardware and sanitary items from the tenanted premises in order to sustain in his life and to support his family members. That the tenanted premises is more suitable for the requirement of the Karta of the petitioner since the petitioner requires commercial space on the ground floor to carry out the business of hardware and sanitary items as it is located in Chawri Bazar which is the largest market for sanitary items in the Asia. Per contra, it is submitted by the respondent that the petitioner is well established in photography business and is earning very well from the said business and does not require to open any new business of hardware and sanitary items. It is further stated that the office at basement at Shivalik, Malviya Nagar is sufficient for the petitioner to carry on his business of photography and no additional space is required by the petitioner. It is also averred by the respondent that the petitioner has been frequently travelling abroad meaning thereby that he is earning very well from the said business. Further, that the petitioner has already attained the age of 50 years after spending several years in a particular field and no prudent businessman would change the Page 13 of 17 E. No. 202/14 14 business at this point of age. The petitioner on the other hand has filed his ITR in order to prove that the annual income of Sh. Hemant Khandelwal from the business of photography is not more than 34 lacs per year and not sufficient to sustain himself and his family members. It is also not disputed by the respondent that the petitioner has retired from his family business of hardware and sanitary items and even otherwise, the petitioner has placed on record the copy of retirement deed on the basis of which he has retired from his family business. Perusal of the ITR of Sh. Hemant Khandelwal clearly shows that Sh. Hemant Khandelwal has failed to establish himself in the profession of photography and thus, he wants to shift to his original family business of hardware and sanitary items in which he has vast experience since he was assisting his family in the said business previously. The contention of the respondent that the petitioner is a multimillionaire is mere a bald averment as the petitioner has filed his ITR in order to prove that he is not even able to sustain himself from that business. As far as the contention of the respondent regarding the age of the petitioner and no prudent businessman would change the business at this point of age is concerned, the respondent cannot dictate terms upon the petitioner as to which business he should carry and in which age he should commence that business. In the present case, it is the bonafide requirement of Sh. Hemant Khandelwal to start his business of hardware and sanitary and to shift from Shivalik as this property is not commercial and business of hardware cannot be run from there. The business of hardware can be run from the tenanted premises which is situated at Chawri Bazar, Page 14 of 17 E. No. 202/14 15 Chandni Chowk, Delhi which is the biggest market of hardware in Asia, in order to enhance his income. It is also averred by the respondent that the petitioner has failed to disclose as to how much fund petitioner intend to invest in hardware and sanitary business and what are his expectations of earning from the said business. However, the landlord is not required to state his financial aspects and is only required to prove his bonafide requirement. By placing on record the copy of ITR and other relevant record, petitioner has duly established his bonafide requirement.
16. Further, the shop at Chawri Bazar would be more suitable for the petitioner to start his business of hardware and sanitary items since it is situated in the commercial hub in the city of Delhi on the ground floor as compared to the shop at shivalik, Malviya Nagar which is a shop situated in the basement in residential colony. Thus, the petitioner has right to start his business from a shop situtated in commercial hub of Delhi which would definitely fetch much more customers as compared to the other commercial premises available to the petitioner. Further, the tenant cannot dictate terms upon the petitioner as to which premises is more suitable for him for starting his business of hardware and sanitary items.
AVAILABILITY OF ALTERNATIVE ACCOMMODATION
17. It is averred by the respondent that petitioner has a big plot No. 21, Sector 135, Noida, U.P. in a commercial area. However, petitioner has denied the same stating that neither the petitioner nor any of him Page 15 of 17 E. No. 202/14 16 family members have any concern with the said plot at present or in the past. Moreover, the respondent has failed to file even a single document or any photograph to prove that the said plot is under the ownership of the petitioner and his family members from where they can run his business of hardware & sanitary items, meaning thereby the averment of the respondent remains to be a mere bald averment. It is further averred by the respondent that the petitioner is in possession of adjoining shop from where the petitioner is running the business with the help of his partner in premises No. 3685, Chawri Bazar, Delhi in the name of M/s. Prakash & Company of trading of sanitary goods and the petitioner himself is in the possession of said adjoining shop and there is no tenant in the said shop. However, it is denied by the petitioner that he has got possession of any premises bearing no. 3685, Chawri Bazar, Delhi stating that in fact the number of the said premises is that of the tenanted premises which is under the occupation of the respondent. As far as M/s Prakash & Co. is concerned, the same is a tenanted premises under the landlordship of petitioner in respect of premises No. 3690, Chawri Bazar, Delhi since long at a rent of Rs. 260/ per month. It is denied that the said business is in the partnership of the petitioner. That in fact the said business is being run by one Narinder Chand Abrol and the petitioner is in litigation with the said tenant which is evident from the following DR petitions No. 655/13 and 466/13 filed by the said tenant against the petitioner. That Sh. Hemant Khandelwal has never been a partner nor has got any beneficial interest at any point of time in M/s. Prakash & Co. Thus, the contention of the respondent that petitioner is Page 16 of 17 E. No. 202/14 17 running business from premises No. 3685 remains to be a mere bald averment without any substance, and thus, cannot be relied upon. Thus, the respondent has failed to prove the availability of alternative suitable commercial accommodation for the alleged bonafide requirement.
18. Thus, from the discussion made above, respondents have failed to raise any triable issue, which requires evidence to be proved. The petitioner, on the other hand, has clearly established his bonafide requirement regarding tenanted premises. Hence, the application for leave to defend filed by respondents is ordered to be dismissed. Consequently, eviction order is liable to be passed against the respondents under Section 25 B (4) of the Act. In view of above, petitioner is held entitled for recovery of the tenanted premises, i.e., shop bearing No. 3685, Chawri Bazar, Delhi110006, as shown in red colour in the site plan annexed with the petition. However, the petitioner would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14 (7) of the Act.
Announced in open Court (Namrita Aggarwal)
th
on 06 Day of August, 2016 CCJ cum ARC1 (Central)
[This order contains 17 pages.] Tis Hazari Courts, Delhi.
Page 17 of 17 E. No. 202/14