Delhi District Court
Madhuri Vali vs . Crescent Exports Ltd. on 27 February, 2013
Madhuri Vali Vs. Crescent Exports Ltd.
IN THE COURT OF ADDITIONAL DISTRICT JUDGE03 (SOUTH),
ROOM NO.308, SOUTH DISTRICT, SAKET, NEW DELHI
In the matter of
CS No. 402/10
Mrs. Madhuri Vali W/o. Mr. Rajive Kumar Vali
R/o. V8, Flat No. 301, Ansal and Garg Apartment
Sarojini Nagar, Kanpur, Uttar Pradesh - 208012.
.... Plaintiff
Versus
M/s. Cresent Exports Ltd. ( through its Authorized
signatory ) having its Corporate Office at C39
Second Floor, Greater Kailash 1, New Delhi - 110048.
.... Defendant
Plaint Presented on : 21/12/2009
Date of Institution : 02/01/2010
Decision Reserved on : 06/02/2013
Date of Decision : 27/02/2013
JUDGMENT
(On application dated 19.04.2010 under Order XII Rule 6 CPC) 1.1 Plaintiff Madhuri and defendant M/s. Cresent Exports Ltd. C.S. No. 402/10 Page 1 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
entered into a registered lease agreement dated 03.07.2007 for a period of 24 months from 03.07.2007 to 02.07.2009 in respect of property no. C39, nd 2 floor, Greater Kailash I consisting of 4 bed rooms with attached bathrooms, drawingdining, kitchen AND a servant quarter (top floor) more particularly shown in colour red and green in site plan filed with the suit, (hereinafter referred as the suit property, collectively). The monthly rent was Rs. 30,000/ per month. In addition, another agreement dated 03/07/2007 was also entered between the parties for maintenance charges @ 27,500/ in respect of fittings and fixtures (shown in annexure to the agreement) and that structural repairs and heavy repairs will be carried by the plaintiff. The second agreement was coextensive with the first agreement. Then, both the parties entered into rectification of lease agreement, by recovenant clause 7 of registered lease deed that lockin period of lease will be 24 months out of lease period for 36 months but that after lockin period of 22 months, either party may give two month's advance written notice to terminate the tenancy. The plaintiff by notice dated 08.10.2009 while claiming arrears of Rs. 70,000/ as well as TDS certificate from the defendant, terminated the tenancy and asking the defendant to handover peaceful possession of the property, it was not vacated and suit has been C.S. No. 402/10 Page 2 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
filed.
1.2 The defendant by way of written statement cum counter claim not only denied the allegations vis a vis stating that as per clause 6 and 7 of lease agreement dated 03.07.2007, the lease for a period of 24 months extendable for a further period of 24 months with mutual consent of both the parties. The defendant has been regularly paying the agreed amount of rent as well as of maintenance charges. There is rectification deed but plaintiff never acted upon the said terms and conditions of lease deed, therefore, the defendant is tenant and they are governed by the lease deed. The defendant also denies other allegations. Further, the defendant in its counter claim also alleges that plaintiff was supposed to maintain and get repair the suit property but it failed to comply the agreement of maintenance. The property needs repair and para 13 of the counter claim enumerates the claim of Rs. 16,33,465/ against the plaintiff. 2.1 The plaintiff in her application under Order XII Rule 6 CPC states that there was a registered lease deed followed by rectification of lease deed and as per Para 6 and 7 of lease deed visavis the notice, the C.S. No. 402/10 Page 3 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
defendant's tenancy has been determined after lockin period but defendant failed to handover the possession. The monthly rent of the suit property is Rs. 30,000/ and maintenance charges are Rs. 27,500/ excluding electricity , water charges and fitting and fixture charges etc. There are clear admission in written statement and plaintiff is entitled for decree of possession of the suit property.
2.2 During the course of arguments, similar contentions have been advanced on behalf of plaintiff, also explaining that there is nothing on record that after expiry of lockin period and notice of terminating the tenancy, the plaintiff had extended the tenancy for any period. The parties were governed by the written lease deed, the notice was given as per terms and conditions of agreement after expiry of lockin period. 2.3 However, the defendant opposes the application vehemently that it is still a tenant, the tenancy for a period of 24 months extendable by another period of 24 months. The plaintiff had agreed for extension of lease for another 24 months, therefore, the notice dated 08.10.2009 is not only bad in law but also contrary to the terms and conditions settled between the C.S. No. 402/10 Page 4 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
parties. Moreover, the defendant had replied the notice by reply dated 07.11.2009. The defendant had also filed counter claim since plaintiff failed to fulfill the obligations under the agreement. The defendant was also ready to issue TDS certificate provided plaintiff had approached. 2.4 Therefore, neither there are clear admissions nor alike circumstances which may entitle the plaintiff for decree of possession of suit property. Since the tenancy was for a period of 36 months, out of which period of 22 months was for lockin period to be construed with regard to the terms and conditions associated either with notice or such allied terms. The parties had agreed to extend the tenancy for another 24 months after lockin period of 24 months, therefore, it can not be treated as an admission of determination of tenancy or the notice dated 08/10/2009 is a premature notice, sent prior to expiry of total 48 months of tenancy. The application is liable to be dismissed. This is the substance of reply and arguments. 3.1 FINDINGS - The contentions of both the sides are assessed, in the light of feature of case of both sides, statutory provisions of law particularly, sections 106 and 107 of Transfer of property Act, sections 17 and 49 of the C.S. No. 402/10 Page 5 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
Indian Registration Act. There is also occasion to go through the case law, in order to dispose the application under consideration, the same is reproduced hereunder :
1. Hardesh Ores Pvt. Ltd vs Hede & Company VI 2007 SLT 597 & Abhinav Outsourcing Pvt. Ltd vs Sunita Seth 186 2012 DLT 689 - held , to give effect to a renewal of lease, a document has to be executed evidencing the renewal of the agreement or lease, as the case may be, and there is no concept of automatic renewal of lease by mere exercise of option by the lessee. It is, therefore, not possible to accept the submission urged on behalf of the appellantsplaintiffs that by mere exercise of option claiming renewal, the lease stood renewed automatically and there was no need for executing a document evidencing renewal of the lease. By virtue of provisions of section 17(1)(b)(d) of Registration Act, 1908 and section 107 of Transfer of Property Act, there cannot be lease for a fixed period in excess of one year unless there is a registered lease deed for fixed period. In the absence of such registered lease deed the tenancy will be of monthly tenancy.
2. Rasiklal M. Mehta & Anr vs The Hindustan Photo Films Manufacturing Co. Ltd., AIR 1976 Madras 194 & Indian Oil Corporation Ltd. vs Smt. Alka Agarwal AIR 2007 Bombay 113 - held that once the option is exercised either by the lessor or by the lessee, a valid lease as such does not come into existence unless a registered document is executed, if the renewed lease in question satisfies the requirement of S. 107 of Transfer of Property Act. After all, the option conferred either on the lessee or on the lessor is more C.S. No. 402/10 Page 6 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
or less in the nature of preemption and neither the conferment of such option itself nor the exercise thereof automatically or of its own force brings into existence a new lease irrespective of other statutory provisions regarding the form procedure of the modalities by which also such a lease can be brought into existence. Therefore, once a renewed lease comes within the scope of section 107 such a lease can be made only be a registered instrument. This is because it is a result of the exercise of option for renewal and that too by the bilateral acts of the parties. Consequently, the new lease is made within the scope of the expression occurring in Section 107 of the T.P. Act , therefore, it has to be only by a registered instrument. Further in the absence of registered instrument the lease must be held to be monthly lease, it is not continuation of old tenancy.
3. Ansuman Mullick vs Mallika Investment Co. (P) Ltd. & Ors AIR 2004 Culcutta 316 - held, renewal of lease and extension of lease are two distinctly separate concepts. The extension of lease does not create a fresh lease or new lease but renewal does. Therefore, when it is a renewal of lease, it is fresh lease, it must be created according to provisions in section 107 of Transfer of Property Act and it requires execution and registration of lease.
3.2 In order to seek possession on admission, the plaintiff is required to satisfy the requirement of law - (1) there is relationship of the landlord and the tenant, (2) the monthly rent is more than Rs. 3,500/ and tenant is not protected by the provisions of the Delhi Rent Control Act, 1958 and (3) the tenancy has been determined. The plaintiff is also required to C.S. No. 402/10 Page 7 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
establish that there are admissions on such aspects by the defendant. Let the record be scrutinized.
3.3 There is no dispute of registered lease agreement between the parties, which is for a period of 24 months from 03.07.2007 to 02.07.2009 and another maintenance agreement dated 03.07.2007 (coextensive with main lease agreement) that lease will be of 24 months and the lockin period will also be of 24 months including 2 months notice period, that either party may give two months notice in writing to terminate the tenancy. The monthly rent was Rs. 30,000/ per month and there is separate agreement for maintenance charges @ Rs. 27,500/ per month. To say, there are admissions and no disputes with regard to first two requirements of law of existence of relationship of the landlord and the tenant between the parties as well as the monthly rent exceeds Rs. 3,500/ per month. 3.4 The defendant also admits that legal notice dated 08.10.2009 was served upon it but there are rival contentions with regard to period of tenancy. As per registered lease deed, the tenancy was for a period of 24 months having lockin period of 24 months and as per rectification period, C.S. No. 402/10 Page 8 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
the tenancy period was of 36 months with lockin period of 22 months. To say, in either of the eventuality, both the parties have agreed that minimum tenancy period will be 24 months, carrying rider of lockin period of 22 months with option that either party can give two months advance notice for determining the tenancy. Therefore, the maximum period of tenancy, as lockin period, is 24 months and thereafter either of the party will be free to serve the notice. Again, to elucidate, the minimum tenancy period is 24 months and not 36 months. As per the provisions of Section 107 of Transfer of Property Act r/w section 17 of Indian Registration Act, the tenancy was registered for a period of two years and for the subsequent period of 12 months (after lockin period of 22 + 2 = 24 months ), it was month to month tenancy, which can be determined by notice u/S. 106 of Transfer of Property Act. The defendant had replied the notice that there was oral agreement to extend the tenancy for another 24 months, however for want of registration of lease deed for such another period of 24 months and also for want of registration of rectification deed to make the tenancy for 36 months, it is month to month tenancy after initial period of 24 months of lockin period. There is an occasion to go through Uttam Singh Duggal vs Union Bank of India 2000 VI AD SC 389 = 2000 7 SCC 120, our apex court held that term C.S. No. 402/10 Page 9 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
admission in order XII rule 6 CPC is wide enough to include not only pleadings but also balance sheet, minutes of meetings, letter, agreement, notice or constructive notice and when such record leads to unambiguous and clear admissions, the court may exercise power under order XII rule 6 to pass appropriate judgment/decree. Thus, in the situation in hand, the defendant cannot derive any benefit. The notice dated 08.10.2009 was neither premature notice nor it was bad in law but the notice satisfies the requirement of law of Section 106 of Transfer of Property Act. The material on record establish the third requirement of law that the tenancy has been determined on 07.12.2009 as per law, consequent to service of two months' notice. The plaintiff is entitled for decree of possession.
4. Accordingly, plaintiff's application under Order XII Rule 6 CPC is allowed. Plaintiff's suit for possession is decreed while directing the defendant to vacate and handover peaceful possession of the suit property no. C39, 2nd floor, Greater Kailash I consisting of 4 bed rooms with attached bathrooms, drawingdining, kitchen AND a servant quarter (top floor) more particularly shown in colour red and green in site plan (now P1) to the plaintiff. However, the defendant is given one month time to handover C.S. No. 402/10 Page 10 of 11 Madhuri Vali Vs. Crescent Exports Ltd.
the possession to the plaintiff. The plaintiff is also allowed proportionate cost, inclusive of court fee, of suit for possession. Decree sheet be drawn accordingly.
File is consigned to record room.
Announced in the open Court (Inder Jeet Singh)
on 8th Phalguna, Saka 1934 Additional District Judge 03,
South District, Saket Courts,
New Delhi /27.02.2013
C.S. No. 402/10 Page 11 of 11