Delhi District Court
M/S. Pushpanjali Sales Pvt. Limited vs M/S. Tele Shop (India) Pvt. Ltd on 30 August, 2017
IN THE COURT OF SH. JITENDRA KUMAR MISHRA, ADDITIONAL
DISTRICT JUDGE - 01, PATIALA HOUSE COURTS, NEW DELHI
DISTRICT, NEW DELHI
( 15½ and 13½ YEARS OLD CASE )
CS No. 58700/16 and CS No. 58701/16
M/s. Pushpanjali Sales Pvt. Limited
Registered office at :
5, Doctors Lane, Gole Market,
New Delhi - 110 001
......... Plaintiff
Versus
1. M/s. Tele Shop (India) Pvt. Ltd.
a) 11/5-B, Pusa Road, New Delhi - 110 005
b) D-28, Connaught Place, New Delhi - 100 005
2. Sh. Ashok Gupt, Director
M/s Tele Shop (India) Pvt. Ltd
C-8/8313, Vasant Kunj
New Delhi.
3. M/s. Alka Electronics & Communications
a) D-28, Connaught Place, New Delhi - 100 005
b) G-29, Shikar, District Centre,
Janakpuri, New Delhi.
4. M/s. Bharti Cellular Limited
D-184, Okhla Industrial Area Phase - I,
New Delhi - 100 020
........ Defendants
Suit presented On : 26.11.2001 and 08.09.2003
Arguments Concluded On : 21.08.2017
Judgment Pronounced On : 30.08.2017
CS no. 58700/16 and CS No. 58701/16
M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 1 of 27
JUDGMENT
1. Plaintiff filed suits bearing no. CS No. 58700/16 and CS No. 58701/16. Suit bearing no. 58700/16 is for recovery of money and mesne profits whereas suit bearing no. 58701/16 has been filed by the plaintiff for recovery of possession, money and for mesne profits. Facts of both the cases are identical.
2. Brief facts of the cases are :
(a) Plaintiff is a private limited company and Sh. Om Prakash is Director of the company and has been duly authorized to sign, verify and institute the present suit as he is conversant with the facts of the case and has been having dealings with the defendants on behalf of plaintiff.
(b) Defendant no. 4 is a limited company having its business of Cellular Telephone while defendants no. 1 and 3 are its agents and defendant no. 2 is Director of defendant no. 1 who had negotiated the dealings which had resulted in signing of an Agreement of Commission.
(c) The said agreement was executed by defendant no.2 on behalf of defendant no. 1 while Sh. Om Prakash executed the said document on behalf of the plaintiff. The guarantee for faithful performance of the agreement was provided by defendant no. 4 for the performance of the agreement in word and spirit.
Defendant no. 2 was authorised by the Board of Directors of defendant no. 1 to enter into the said agreement which was signed and executed on 09.01.1997.
CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 2 of 27
(d) Defendant no. 1 had made payment as per the agreement upto the first term i.e. 31.12.1999 but committed breach of the agreement with respect from 01.01.2000. They were to make payment of Rs.23,83,750/- upto September, 2001 but made a payment of Rs.11,25,000/-. The balance amount of Rs.11,58,750/- remained to be paid by the defendants upto September 2001 as per details :
a) Amount payable towards fittings and Rs.3,15,000/-
furniture from 01.01.2000 to Sept.
2001b) Minimum Commission payable by Rs.19,68,750/-
defendant to the plaintiff at the rate of Rs.93,750/- per month for the above said period Total Rs.22,83,750/-
Minus - amount received Rs.11,25,000/-
Balance Payable Rs.11,58,750/-
(e) Defendant no. 1 assigned all the rights under the
agreement to defendant no. 3 with the consent and concurrence of defendant no. 4 and therefore defendant no. 3 became liable individually and collectively to pay the minimum dues as per the agreement to the plaintiff. The payment of the dues of the plaintiff under the agreement were also guaranteed by defendant no. 2 on assignment of rights to defendant no. 3 and hence he is personally liable to make the payment of the dues of the plaintiff individually or collectively alongwith other defendants.
(f) Defendant no. 3 started sending notices to get out of the agreement and asking for the refund of the security deposit. The CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 3 of 27 plaintiff replied that the agreement was not for any re-letting of the shop but it was an agreement of agency as contained in the agreement. Defendants were required to pay the amount as per the agreement, but they did not make payment.
(g) Plaintiff sent notice dated 01.10.2001 to the defendants making demand of the dues and also for consumption of water and electricity which were payable to the defendants to the plaintiff for onwards payment to the authorities.
(h) Defendant no. 3 sent a reply dated 17.10.2001 but did not make any payment of the dues of the plaintiff, therefore the plaintiff was constrained to file suit bearing no. 2392 of 2001 against the defendants. Remaining defendants have not sent any reply to the notice not had made any payment to the plaintiff.
(i) Another sum of Rs.1,08,750/- became due to the plaintiff from the defendant towards the month of October, 2001 and therefore, Rs.12,67,500/- fell due towards principal amount as is due to the plaintiff which was claimed in that suit. The defendants were also liable to make payment of Rs.1,45,000/- towards electricity and water charges from 01.01.2000 to 31.10.2001 which was payable by the defendants to the plaintiff.
(j) Meantime, contract came to an end on the expiry of the month of December, 2002. the plaintiff then sent notice to the defendants dated 10.12.2002 reminding of their contract and informing the defendants that they shall be taking over the possession of the shop on the expiry of the agreement on 01.01.2003.
CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 4 of 27
(k) On receipt of the notice, an application was filed by defendant no. 3 in the connected case praying for injunction. The court was pleased to pass an as-interim ex-parte which was later on confirmed by order dated 02.05.2003 with the result that defendants are using the shop without making any payment not even at the admitted amount. The plaintiff is due to recover from defendants an amount of Rs.21,52,500/- which has been withheld by the defendants without any reason whatsoever.
(l) The defendants had deposited a sum of Rs.9,00,000/- towards security deposit for the faithfully performance of the agreement. Thus defendants are liable to pay use and occupation charges at the market rate of rent of Rs.1,20,000/- per month. Hence the present suit.
2. In suit bearing CS no. 58700/16, the plaintiff has claimed a decree for recovery of Rs.14,67,500/- alongwith interest. In suit bearing CS no. 58701/16 plaintiff has claimed for possession, decree for recovery of Rs.24,02,500/-, decree of recovery of Rs.1,20,000/- towards damages / use and occupation charges alongwith interest.
3. Parties in both the cases are similar and in both the cases defendants filed written statements which are identical. Written statement was filed by defendants no. 1 and 2 wherein it is submitted that defendant no. 1 was a franchisee of defendant no. 4 when it took the shop on rent for running the business. The franchise however came to an end on 25.01.1999 when defendant no. 4 relocated its connect, which fact had been advertised in Times of India dated 25.01.1999. Defendant no. 3 was never its agent. However it is not disputed that defendant no. 2 is the Director of defendant CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 5 of 27 no. 1. It is admitted that defendant no. 1 had taken the shop on rent. But it is alleged that at the instance of the plaintiff, defendant no. 1 had signed the papers as wanted by the plaintiff though they were never meant to be acted upon. It is further alleged that defendant no. 2 had been authorised only to take the shop on rent and to negotiate the amount of security to be deposited. The agreement of commission got signed by the plaintiff from defendant no. 2 is a sham document as the shop was taken on rent only at Rs.75,000/- per month. It is further not disputed that defendant no. 4 had signed as a guarantor for the due payment of rent by defendant no. 1 as desired by the plaintiff. It is further alleged that plaintiff has omitted and / or mis-stated some of the clauses of that agreement, as were inconvenient to it. It is further alleged that the legal, physical and exclusive possession of the shop always remained with defendant no. 1 and 2 who used to open and close the shop and had its own locks till August, 1998 and thereafter it has been with defendant no. 3. There were no fixtures and fittings in the shop when it was let out to defendant no. 1.
4. It is further alleged that the shop consisted of Ground Floor measuring about 240 sq. Ft and the rest is Mezzanine Floor. It is further alleged that defendants no. 1 and 2 had spent around Rs.10,00,000/- on its renovation, fixtures and fittings like air condition, glass door, flooring, plastering of walls, making of stair case etc. It is further alleged that defendant no. 1 had transferred the goodwill of its business in favour of defendant no. 3 in May, 1998 for valuable consideration and parted with possession of the shop to them against payment of Rs.75,000/- per month as rent in May, 1998. However, subsequently it was agreed between Sh. Ankur Sachdeva of plaintiff, defendant no. 2 and Sh. Bhamba of defendant no. 3 that defendant no. 3 will be accepted as a direct tenant by the plaintiff and the amount of security of defendant no. 1 lying with the plaintiff would be treated CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 6 of 27 as security from defendant no. 3 and it would be refunded to him as and when it vacated the premises and delivered possession to the plaintiff. Accordingly, the plaintiff started receiving the rent of Rs.75,000/- per month from defendant no.3 by account payee cheques. Defendants no. 1 and 2 had not paid any amount to the plaintiff after August, 1998. It is denied that the plaintiff had ever served any notice upon the defendant to increase the rent / commission to Rs.93,750/- per month w.e.f. 01.01.2000.
5. It is further alleged that defendant no. 3 had requested the plaintiff as far back as in June, 2000, in the absence of defendant no. 2, to take back the shop and return the security amount to him to which the plaintiff had replied that they were not getting a new tenant who could pay that much rent and as soon as they got one, the shop would be taken back and security amount returned to defendant no. 3. It is not disputed that a notice dated 01.10.2001 was received from the plaintiff but liable to make payment by defendants no. 1 and 2 is denied. Filing of suit bearing no. 2392/2001(old number) CS No. 58700/16 (new number) which is pending in this Court. It is further objected that the alleged agreement is unregistered document and cannot be looked into or acted upon. Rest of the contents of the plaint are denied.
6. Plaintiff filed replication to the written statement of defendants no. 1 and 2 wherein objections raised by the defendants are denied. It is the case of plaintiff that security deposit is not adjustable. The same was to be refunded after adjusting the dues of the plaintiff when the agreement between the parties came to an end i.e. on 31.12.2002. The defendants are using the shop but are not paying anything to the plaintiff since 01.06.2001 and even at the admitted rate of Rs.75,000/- per month, the defendants are liable to pay Rs.24,00,000/- to the plaintiff. Rest of the averments made in the written CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 7 of 27 statement are denied and the averments made in the plaint are reiterated and affirmed.
7. Defendant no. 3 also filed separate written statement wherein it is objected that the present suit is liable to be stayed u/s 10 of CPC as admittedly earlier suit filed by the plaintiff bearing no. 2392/2001 CS No. 58700/16 (new number) against the same defendants is pending in this Court. It is alleged that defendant no. 1 through defendant no. 2 in May, 1998 transferred the goodwill and business of Tele Shop to defendant no. 3 for valuable consideration including the expense incurred by defendant no.1 on flooring, plastering of walls, making staircase and providing fixtures and fittings like AC, glass doors, electric wiring etc in the shop and also sub-let the said shop at a rent of Rs.75,000/- per month and delivered its possession to defendant no.3 who started doing business from there. Defendant no.3 is paying the said to defendant no. 1. Subsequently, it was agreed between Sh. Ankur Sachdeva of plaintiff, defendants no. 1 and 2 and defendant no.3 that M/s Alka Electronics and Communications would be accepted as a tenant in their own right by the plaintiff and plaintiff would accept the rent of Rs.75,000/- per month from them and security deposit of Rs.9,00,000/- of defendant no.1 lying with the plaintiff, would be treated as security deposit from defendant no. 3 which would be refundable without interest at the time the shop was handed back to the plaintiff. Accordingly from September 1998, defendant no.3 started paying the said rent per month to plaintiff by account payee cheques. Thus relationship of landlord and tenant came into existence between plaintiff and defendant no. 3 w.e.f. September, 1998. The plaintiff had received the rent at the rate of Rs.75,000/- per month from defendant no. 3 till April, 2001 by account payee cheques.
8. It is further alleged that defendant no. 3 got served a notice CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 8 of 27 dated 14.05.2001 on the plaintiff terminating the tenancy from the month of May, 2001 and called upon plaintiff to take possession of the shop on 01.06.2001 against the refund of the security amount of Rs.9,00,000/-. The plaintiff has concealed this material fact. Notice dated 01.10.2001 issued by plaintiff is an admitted fact. It is further alleged that reply dt.17.10.2001 was also sent in respect of the said notice. Rest of the contents of the plaint are denied.
9. Plaintiff filed replication to the written statement filed by defendant no.3 wherein the contents made in the written statement are denied and the averments made in the plaint are reiterated and affirmed.
10. Separate written statement was filed by defendant no. 4 wherein it is objected that the present suit is barred by Order II Rule 2 of CPC. It is alleged that defendant no. 3 not in any manner connected, associated or related with defendant no.4, much less as an agent. It is further alleged that defendant no. 4 never signed and / or executed any lease of guarantee nor gave any assurance as alleged nor had any privity of contract with the plaintiff. Rest of the contents of the plaint are denied.
11. Plaintiff filed replication to the written statement filed by defendant no.4. It submitted that there is definite cause of action for the present suit as stated in the plaint though some of the reliefs are in continuation of the previous suit but for the further period. The claim made suit no 2392/2001 (CS No. 58700/16 - new number) does not contain the relief of possession as the agreement was then continuing. Rest of the averments made in the written statement are denied and the averments made in the plaint are reiterated and affirmed.
12. This court vide order dated 17.05.2004 observed that CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 9 of 27 defendants no.1 to 3 have already vacated suit premises in terms of order dated 14.01.2004 and deposited the keys thereof in the court. Keys were directed to be handed over to the plaintiff subject to his furnishing security of Rs.10 lacs with the Registrar General of Hon'ble Delhi High Court.
13. Vide order dated 02.03.2006 consolidated both the cases and issues were framed in CS No. 58701/16, was directed to be treated as lead case.
14. Vide order dated 22.11.2005 following issues were framed :
1. Whether the suit has been signed, verified and filed by a duly authorised person? OPP.
2. Whether the agreement dated 09.01.1997 entered into between the plaintiff and defendant no. 1 was intended as a commission agreement on the terms and conditions mentioned therein? OPP.
3. Whether the agreement dated 09.01.1997 was a sham one executed to conceal the real transaction of sub-letting of the suit premises and being under-stamped and unregistered, is inadmissible in evidence? OPD.
4. If issue no. 3 is proved in affirmative, whether the plaintiff as entitled to refuse to refund the security amount of Rs.9,00,000/- when defendants nos. 1 & 3 offered to hand over possession of the suit premises pursuant to their notice of termination of tenancy dated 14.05.2001? if not, to what effect? OPP
5. Whether the plaintiff is entitled to the suit amount and if so, from which defendant or defendants? OPP
6. If the plaintiff is entitled to interest? If so, at what rate and for CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 10 of 27 what period? OPP
7. Whether the plaintiff is entitled to mesne profit? If so, at what rate, for what period and from which defendant or defendants? OPP
8. Whether defendants no.2 and 4 guaranteed the payment, as claimed in the suit? OPP
9. Relief.
15. To prove its case, plaintiff examined himself as PW1 and tendered his evidence Ex. PW1/A. He further proved documents :
(a) Resolution dated 22.10.2001 Ex. PW1/1
(b) Resolution dated 27.08.2003 Ex. PW1/2
(c) Site plan of shop Ex. PW1/3
(d) Collaboration / commission agreement Ex. PW1/4
(e) True copy of minutes of meeting of Board of Directors of
Teleshop (India) Pvt Ltd held on 18.12.1996 Ex. PW1/5
(f) Letter from Tele shop Ex. PW1/6
(g) Letter dated 01.01.2000 Ex. PW1/7
(h) Notice dated 14.05.2001 Ex PW1/8
(i) Letter dated 22.05.2001 Ex. PW1/9
(j) Notice dated 31.05.2001 / 01.06.2001 Ex. PW1/10
(k) Reply to notice given by plaintiff dated 20.07.2001 Ex.
PW1/11 (l) Notice dated 01.10.2001 E. PW1/12 (m) Reply dated 17.10.2001 Ex. PW1/13
(n) Notice sent by plaintiff to all four defendants Ex. PW1/14
(o) Memo of parties of suit no. 2392 of 2001 Ex. PW1/15
16. Plaintiff examined Sh. Harvinder Singh as PW2 and Sh. Narinder Singh as PW3. All the three witnesses were cross-examined at length by Ld counsel for defendants. Vide separate statement plaintiff's evidence was closed.
17. Sh. Amit Bhatia, Manager Legal, Bharti Airtel Limited on behalf of defendant no.4 stepped in the witness box as DW1. He tendered his CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 11 of 27 evidence by way of affidavit Ex. D4W1/A and relied upon power of attorney Ex. D4W1/1. This witness was cross-examined by Ld counsel for plaintiff. Vide separate statement counsel defendant no. 4 closed evidence on behalf of defendant no. 4.
18. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also considered the written arguments submitted by the plaintiff and defendants no. 1 to 3 and defendant no. 4.
19. My issue-wise findings are :
ISSUE NO. 11. Whether the suit has been signed, verified and filed by a duly authorised person? OPP.
19.1 Onus to prove issue no. 1 is upon plaintiff. Plaintiff filed the suit duly signed and verified by Sh. Om Prakash who is stated to be Director of the plaintiff and has been duly authorized to sign, verify and institute the present suit. He tendered his evidence by way of affidavit and deposed in para 1 of Ex. PW1/A about this fact. Hew also relied upon resolutions Ex.
PW1/1 and Ex. PW1/2. He further deposed that Ex. PW1/1 was signed by the Chairman Mrs. Promila Kishore. He further deposed that Ex. PW1/1 was approved on meeting held on 02.12.2001. A suggestion was given that he has forged the resolutions Ex. PW1/1 and Ex. PW1/2 for the purpose of the suit. However, the said suggestion is denied. There is no challenge to the fact that Sh. Om Prakash is Director of the plaintiff. There is no challenge that plaintiff is a company / corporation. Order 29 rule 1 of CPC provides :
1. Subscription and verification of pleading.- In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 12 of 27 or other principal officer of the corporation who is able to depose to the facts of the case.
19.2 Therefore, since Sh.Om Prakash is Director of the plaintiff therefore, this issue is answered in favour of the plaintiff with the observation that the suit has been signed and verified by duly authorised person.ISSUE NO. 2
2. Whether the agreement dated 09.01.1997 entered into between the plaintiff and defendant no. 1 was intended as a commission agreement on the terms and conditions mentioned therein? OPP.
20. Onus to prove issue no. 2 was upon the plaintiff. Agreement dated 09.01.1997 has been tendered and proved by the plaintiff as Ex. PW1/4. During cross examination PW1 admitted that the said premises were let out to defendant no. 1 at the rate of Rs.75,000/- per month. He has further admitted that agreement dated 01.01.1997 i.e. Ex. PW1/4 was also executed between the parties in the said connection. Ex. PW1/4 is perused. This document is executed on stamp paper of Rs.10/- which was purchased on 09.01.1997 as per noting at the back of the stamp paper. At the very first page it is mentioned that this document is made on 01.01.1997 whereas on the last page it is mentioned that this document was signed on 09.01.1997. First of all this court observes that when stamp paper was purchased on 09.01.1997 then how this document could be made on 01.01.1997. Moreover in clause no. 7 of this document it is mentioned :
" 7. That Party no. 1 shall pay a sum of Rupees Fifteen thousand per month for the utilisation of furniture and fixtures etc. already installed in the premises and this amount shall be paid on every 5th of the month. This payment shall be made for a period of three years i.e. from 01.01.1997 to 31.12.1999"
21. Thus as per clause no. 7, this document was executed on CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 13 of 27 31.12.1999 and it is admitted case of PW1 that Ex. PW1/4 was executed between the parties in connection to let out of the premises to defendant no.
1. Therefore, this document requires compulsory registration and payment of requisite stamp duty as 'the furniture already installed' indicates that the same is not movable i.e. immovable and Section 17 of the Registration Act provides the compulsory registration of transaction pertains to immovable property. Ld counsel for the plaintiff filed additional written submissions on behalf of the plaintiff wherein he has also submits that Ex. PW1/4 is lease deed and is not duly stamped and thus is inadmissible in evidence. However, he further argued that this document can be looked into evidence for collateral purpose. In support of his arguments he relied upon Ahmedsaheb (Dead) By LRs and ors vs. Sayed Ismail with SLP (C) No. 23457 of 2011 Shaikh Ahmed S/o Mehtab (Dead) by LRs vs. Mohd. Ismail s/o Syed Sahed (2012) 8 Supreme Court Cases 516 :
".......13.When lease is a transfer of right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the Court to determine whether there was in fact a lease otherwise than through such deed".
"13. In the written submissions of the appellants, it was contended that Exhibit 69, though an unregistered document, can still be relied upon for collateral purposes. In support of the said contention reliance was placed upon the decision of this Court in S. Kaladevi vs. V.R. Somasundaram and Ors - (2010) 5 SCC 407. The said decision is clearly distinguishable. In the case on hand Exhibit 69 was relied upon not for any collateral purpose but for the support of the CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 14 of 27 main claim of arrears of rent. The suit was for arrears of rent and Exhibit 69 was filed to show the agreement of lease of the demised premises, the other terms of the lease and the rate of rent between the parties. Therefore, the contention that the document was filed merely for establishing some collateral transaction cannot be accepted. In that respect, the conclusion of the High Court as regards Exhibit 69 cannot be faulted. However, for reasons set out in the earlier paragraphs of our judgment we reiterate that the claim of the appellants for recovery of rent was established by the Defendant's own categorical admission about the rate as well its non-payment right from day one."
22. Ld counsel for plaintiff further relied upon M/s Didi Modes Pvt. Ltd. and another vs. M/s. Hind Trading & Manufacturing Co. However, this judgment is not applicable to the facts of the present case inasmuch as this judgment differentiates between lease and licence whereas facts of this case are not as such as both parties have admitted that Ex. PW1/4 is a document for lease.
23. Ld counsel for plaintiff further relied upon Javer Chand and other vs. Pukhraj Surana 1961 AIR (SC) 1655 ; 1962(2) SCR 333 ; 1961 SCD 914 ; 1962 (2) SCJ 642 :
"....That section is categorical in its terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by S. 61, CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 15 of 27 which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross- examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 16 of 27 Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction."
24. Ld counsel for plaintiff further relied upon Shyamal Kumar Roy vs. Sushil Kumar Agarwal Civil Appeal No. 4609 of 2006 (Arising out of SLP (C) No. 13426 of 2006) decided on 31.10.2006 :
"The agreement, as notice hereinbefore, was executed in the year 1995. The applications purported to be under Section 151 of the Code of Civil Procedure, 1908 were filed by Appellant only on 16.2.2005. The Development Agreement, as noticed hereinbefore, was admitted in evidence on 17.2.2003. The learned Trial Judge as also the High Court relied upon a decision of this Court in Javer Chand (supra). An attempt to distinguish the said decision of this Court was made, inter alia, on the premise that therein this Court was concerned with interpretation of the provisions of Marwar Stamp Act, 1947 in respect of two mudatti hundis, which have been admitted in evidence on payment of duty and penalty, but sought to be made inadmissible in evidence in terms of the provisions contained in the 1947 Act. This Court opined that once the said document was admitted in evidence, the new Act i.e. the 1947 Act would be inapplicable, stating :
"Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross- examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 17 of 27 has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction."
The said decision, therefore, is an authority for the proposition that Section 36 would operate even if a document has been improperly admitted in evidence. It is of little or no consequence as to whether a document has been admitted in evidence on determination of a question as regards admissibility thereof or upon dispensation of formal proof therefor. If a party to the lis intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, he must raise an objection thereto at the appropriate stage. He may not do so only at his peril.
25. Per contra Ld counsel for defendant relied upon K.B. Saha and Sons Private Limited vs. Development Consultant Limited 1 (2008) 8 Supreme Court Cases 564 :
From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 18 of 27 registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
26. When the said document was tendered in evidence on 21.01.2006 then the exhibition of this document was objected by Ld counsel for defendant on the ground of mode of proof, admissibility and relevance. Thus, at the very threshold this document was objected. Therefore, the contention raised by Ld counsel for plaintiff is not applicable inasmuch as this document is under challenge since very beginning. In my considered view when stamp paper was purchased on 9.1.97 and document was written on 01.01.1997 then definitely it was duty of the plaintiff to explain under what circumstances document was allegedly executed prior to purchase of stamp paper. If document was reduced into writing after the purchase of stamp paper then why the correct date was not mentioned required to be explained, moreover, the document has been written on Rs.10/- stamp paper then it is insufficiently stamped and moreover, this document admittedly a document for lease agreement from 01.1.97 to 31.12.1999 i.e. for three years. Therefore, it requires compulsory registration. Section 49 of The Registration Act 1908 provides :
49. Effect of non-registration of documents required to be registered.--No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 19 of 27 be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
27. It is argued by the plaintiff at page no. 7 of the written arguments that plaintiff through EX. PW1/14 which is notice of the plaintiff dated 10.12.2002 asking the defendant to vacate the shop and handover the vacant possession. In the said notice in para no. 7 the plaintiff claimed that he would takeover possession as provided in the agreement.
28. In support of his written arguments, the plaintiff relied upon Sharda Nath vs. Delhi Administration & ors 149(2008) Delhi Law Times 1 (DB) wherein it was held :
"20. Lastly, rule of contra preferentem applies against the party / person who has prepared the document in case of any ambiguity. As per this rule, a document can be construed against a party who had prepared the same. [See United India Insurance Company v. Pushpalaya Printers, reported in I (2004) CPJ 22 (SC)=II (2004) SLT 263=(2004) 3 SCC 694]."
29. As per notings at the back of stamp paper used in of Ex. PW1/4, the same paper was purchased by the plaintiff and if there are ambiguities and discrepancies as observed herein above then the rule of contra preferentem was to be applied against the plaintiff as the plaintiff is not able to explain when the document was prepared on 01.01.1997 then how the stamp paper was purchased on later date as already observed in para no. 16 herein above in this judgment.
CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 20 of 27
30. Ld counsel for plaintiff further refers :
• M/s Om Builders Pvt. Ltd. vs. M/s Edward Keventer (Successors) Pvt. Ltd. and others AIR 1996 Delhi 330 • Roop Kumar vs. Mohan Thedani (2003) 6 Supreme Court Cases 595 • John Vallamattom and anr vs. Union of India (2003) 6 Supreme Court Cases 611 • Bondar Singh and others vs. Nihal Singh and others AIR 2003 Supreme Court 1905 • Maharashtra State road Transport Corporation vs. State of Maharashtra and others AIR 2003 Supreme Court 1999 • Pandit Kishan Lal vs. Ganpat Ram Khosla and another AIR 1961 Supreme Court 1554 • Abdul Gafoor Proprietor Shaheen Motor Service Channaryapatna vs. State of Mysore and others Air 1961 Supreme Court 1556 • Jatinder Kumar vs. Harmohinder Singh and others AIR 1994 Punjab and Haryana 60 • Miss Anurag Gupta v. State of Haryana and another AIR 1994 Punjab and Haryana 63 • Inmacs Ltd vs. Prema Sinha & orsa 153 (2008) Delhi law times 311 (DB) • Vashu Deo vs. Balkishan (2002) 2 Supreme court Cases 50 • State of Andhra Pradesh & others vs. D. Raghukul Pershad (Dead) by Lrs and others (2012) 8 Supreme Court Cases 584 30.1 However the facts of the judgment cited upon are not applicable to the facts of the present case which are entirely different.
31. Ld counsel for defendants no. 1 to 3 relied upon Anil Rishi vs. Gurbaksh Singh AIR 2006 Supreme Court 1971 and submits that burden is upon plaintiff to prove his case. He has further relied upon M.L. Gupta vs. Kripal Singh & Anr 98 (2002) Delhi Law Times 683 and submits that in replication filed by the plaintiff it is admitted case of the plaintiff that CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 21 of 27 possession of the shop is with the defendants in terms of the agreement, as pleaded in replication in reply on merits in para no. 2 and 8 of the replication.
Since replication is part of the pleadings, in terms of the law relied upon in M.L. Gupta vs. Kripal Singh (supra), therefore, the suits of the plaintiff are not maintainable at all.
32. In view of the admission on behalf of PW1 during evidence this Court comes to the conclusion that Ex. PW1/4 was not intended as a commercial agreement on the terms and conditions mentioned therein as plaintiff is not able to discharge the onus to prove this issue in terms of the admission made by him during cross examination, therefore, this issue is answered against the plaintiff.
ISSUE NO. 33. Whether the agreement dated 09.01.1997 was a sham one executed to conceal the real transaction of sub-letting of the suit premises and being under-stamped and unregistered, is inadmissible in evidence? OPD.
33. Onus to prove this issue was upon the defendant. During cross examination plaintiff has already admitted that it was not intended as a commercial agreement on the terms and conditions mentioned therein. During further cross examination specific question was put to PW1 whether he could produce any document executed by the owner of the premises to sublet the property to defendant no. 1. He replied that the agreement signed between defendant no. 1 and the plaintiff and the same was countersigned, stamped and approved by the agricultural society i.e. the owner. But he admits that there is no stamp but it bears the signature of the Secretary of the said organization. But PW1 did not verify the signatures of the Secretary of the agricultural society who is the owner of the premises. When further a CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 22 of 27 question put to PW1 during cross examination that whether he could produce any document in communication between plaintiff and defendant no. 1 for settling the accounts periodically between them as provided in Ex. PW1/4 then it is stated by him that there is no such document. Further question put to him for which he has given answer :
"Ques. Can you produce any record of Pushpanjali Sales Pvt Ltd for the period 1997 onward, relating to its income tax returns, showing any outstanding for any particular year in terms of Ex. PW1/4, outstanding and payable by Tele Shop India Pvt Ltd to Pushpanjali Sales Pvt. Ltd? Ans. I can produce income tax returns."
34. Upon specific question PW1 further deposed that there must be a resolution entered into between plaintiff and defendant no. 1 in respect of agreement Ex. PW1/4 intimating about the approval received or accorded by Board of Directors finding the suit property suitable for business by PW1. However, no such copy has been brought on record. When a specific question put regarding authorization provided to PW1 by defendant no. 4 to sign Ex. PW1/4 or any other document authorising such person to give any guarantee or assurance on behalf of defendant no.4 for compliance of the terms of the said agreement, then it was replied by PW1 that there was no such document of authorization or resolution.
35. Upon a specific question put to PW1, then it is replied by PW1 that legal possession of the shop during the term of Ex. PW1/4 was always with PW1 whereas physical possession was given to defendant no. 1. In clause 2 of Ex. PW1/4 it is mentioned that the legal possession of the premises shall always be with the plaintiff whereas in cross examination it is the case of the plaintiff that physical possession was given to defendant no.1. Here this court further refers observations made during disposal of Issue no.
CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 23 of 27 2 alongwith observations made herein above and comes to the conclusion that agreement dated 09.01.1997 is not admissible in evidence as the same is unregistered, under stamped and moreover the stamp paper used for writing this document was purchased after the execution of this document. Moreover it is admitted by PW1 himself that physical possession was given to defendant no.1. Therefore this court cannot refer to Ex. PW1/4 and thus this issue is answered against the plaintiff.
ISSUE NO. 4.
4. If issue no. 3 is proved in affirmative, whether the plaintiff as entitled to refuse to refund the security amount of Rs.9,00,000/- when defendants nos. 1 & 3 offered to hand over possession of the suit premises pursuant to their notice of termination of tenancy dated 14.05.2001? if not, to what effect? OPP
36. Since issue no. 3 has already been answered against the plain- tiff, therefore, issue no. 4 is also answered against the plaintiff.
ISSUE NO. 5.
5. Whether the plaintiff is entitled to the suit amount and if so, from which defendant or defendants?
OPP
37. In Ex. PW1/A in para no. 7 it is the case of the plaintiff that Ex. PW1/4 is a collaboration agreement whereas it is admitted case of PW1 dur- ing cross examination that by Ex. PW1/4 the physical possession was given to defendant no. 1. It is therefore the admission of PW1 that Ex.PW1/4 was executed between the parties to let out the premises to defendant no.1. Thus the whole foundation of the case was made by the plaintiff upon wrong facts mentioned in affidavit Ex PW1/A. Thus, the plaintiff has not come before this CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 24 of 27 court with clean hands. A party who does not come forward before the court with clean hands is not entitled for any relief. It was the plaintiff who has to state before the court the correct and true facts. The correct facts have not been deposed in the plaint as well as in Ex. PW1/A. The case of the plaintiff is that Ex. PW1/4 was commercial agreement whereas later on it was proved that it was a lease document. In the entire suit the plaintiff has not claimed decree for recovery of unpaid rent or lease money. Therefore there is no question for any decree in favour of the plaintiff for payment of any amount . The plaintiff has not claimed the suit amount as unpaid rent but claimed for recovery of the money as commission / use and occupation of the shop whereas it is the admitted case of the plaintiff that he has let out the suit premises to defendant no. 1. Therefore, this issue is also answered against the plaintiff.
ISSUE NO. 6.
6. If the plaintiff is entitled to interest? If so, at what rate and for what period? OPP
38. Since issue no. 5 is answered against the plaintiff therefore there is no question of interest therefore the plaintiff is not entitled for any in - terest and thus this issue is also answered against the plaintiff.
ISSUE NO. 7.
7. Whether the plaintiff is entitled to mesne profit? If so, at what rate, for what period and from which defendant or defendants? OPP
39. In Ex PW1/A the plaintiff has claimed mesne profits for handing over the possession of the shop by the defendants to the plaintiff. Vide order dated 17.05.2004 it was observed that in terms of order dated 14.01.2004 de-
CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 25 of 27 fendant no. 1 and defendant no. 3 had already vacated the premise and de- posited the keys thereafter in the court. But plaintiff has claimed mesne profits in Ex. PW1/A. The plaintiff has claimed relief in prayer clause for mesne prof - its / occupation charges from the month of September 2003 for Rs.1,20,000/-. As per the court record the keys of the premises were deposited on 17.05.2004. Therefore, around 8 months the shop was deprived from the plaintiff. Plaintiff has claimed the occupation charges @ Rs.100/- per sq. feet. It is the admitted case of PW1 in cross examination that the shop was on rent with the plaintiff with the right to sub-let the same. He has not brought the rent agreement executed in favour of the plaintiff. A suggestion was given that the plaintiff did not intentionally brought the said agreement in court since the said agreement did not bear any clause giving right to the plaintiff to sub let the shop. He has further admitted that the said agreement must be between the plaintiff and World Agriculture Fair Memorial Farms Welfare Trust Society (WAFM) must be in possession of the plaintiff. Thus, when the plaintiff was in possession of the rent agreement then it was his duty to bring the best evi - dence before the court to prove his case. In the absence of the said agree- ment, this court is of the considered opinion that plaintiff is not able to prove that the plaintiff is having any right to claim mesne profits / damages / use and occupation charges from anyone much less from the defendant. Therefore this issue is also answered against the plaintiff and the plaintiff is not entitled for any mesne profits from the defendant.
ISSUE NO. 8.
8. Whether defendants no.2 and 4 guaranteed the payment, as claimed in the suit? OPP
40. Onus to prove this issue was upon the plaintiff. In Ex. PW1/A nothing has been deposed by the plaintiff regarding any guarantee by defen-
CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 26 of 27 dant no. 2 and defendant no. 4 for the payment. No such agreement or docu- ment has been brought by the plaintiff to prove such guarantee. No such challenge was given by the plaintiff to D4W1 during cross examination that defendant no. 4 guaranteed the payment. It is reiterated that the onus to prove this issue was upon the plaintiff and the plaintiff has to challenge during cross-examination of D4W1. Therefore, this issue is also answered against the plaintiff.
Relief
42. In view of the observations made herein above, both the suits bearing no. CS No. 58700/16 and CS no. 58701/16 of the plaintiff are dis- missed. No order as to cost. Decree sheets be prepared accordingly. Signed copy of judgment be placed in both the files. File be consigned to record room.
Pronounced in open Court on 30.08.2017 (Jitendra Kr. Mishra) Additional District Judge-01, NDD/PHC/New Delhi/30.08.2017kp CS no. 58700/16 and CS No. 58701/16 M/s. Pushpanjali Sales Pvt Ltd Vs. M/s Tele Shop (India) Pvt. Ltd. & ors Page no. 27 of 27