Delhi District Court
Sh. Harveen Kaur & Ors vs . Sh.Sunil Kapoor on 31 January, 2011
IN THE COURT OF SH SUNIL KUMAR AGGARWAL:
ADDITIONAL DISTRICT JUDGE (CENTRAL) 10: DELHI
Suit No. 153/09
Sh. Harveen Kaur & Ors Vs. Sh.Sunil Kapoor
31.01.2011
Order on application under Order 12 Rule 6 CPC
1.This is to dispose off an application dated 25.02.2011 of the plaintiffs for passing decree in respect of the relief of possession on the basis of admission in pleadings. It is averred that defendant is a lessee in property No. N246, Ist Floor, Greater Kailash PartI, New Delhi48 on monthly rent of Rs. 4,000/. The tenancy was terminated vide legal notice dated 24.08.2004 for violating the terms of registered lease deed dated 13.011.2002. Even otherwise the limited period tenancy has expired on efflux of time on 31.10.2005. No admissible evidence has been produced by the defendant in support claim of acquiring beneficial ownership in the suit premises. As such no evidence need to be led by the parties so far as the relief of possession of immovable property is concerned, in view of admitted facts.
2. Relevant facts, in brief, are that the plaintiffs claiming to Suit No. 153/09 Page No. 1 of 15 be joint owners and landlords of suit premises compromising two bed rooms, lounge, living room, kitched, two bathrooms, veraundah exclusive of the part required for services, had inducted the defendant as tenant therein in the year 1990, which was renewed from time to time. It was lastly renewed vide regd. lease deed dated 13.11.2002 at a monthly rent of Rs. 4,000/ excluding electricity and water charges for a period of three years expiring on 31.10.2005. The defendant has all along been in arrears of rent, water and electricity charges which he did not clear despite assurances and promises. Rent from June 2004 was started to be due on the date of filing of suit on 25.11.2004 besides a sum of Rs. 95,487.55 towards arrears of electricity and water charges. Further the defendant has caused substantial damage to the suit premises by breaking boundary wall, flooring of terrace, breaking the flooring of all rooms and bathrooms, illegal opening of door from property no. N248, Greater KailashI, towards the suit premises and projection of iron bars from said property to the tenancy premises. The plaintiff thus did not wish to keep defendant as their tenant and terminated his lease by sending legal notice dated 24.08.2004 under Section 106 of Transfer of Property Act from the midnight of 31.10.2004 or the day when defendant considered his tenancy month expired, in terms of clause 6 of lease deed. The defendant has sent a false and frivolous reply dated 28.09.2004 claiming to have filed a Suit No. 153/09 Page No. 2 of 15 suit for specific performance on the basis of oral agreement to sell. It is claimed that an earlier lease termination notice dated 22.07.2004 was sent by the plaintiffs to the defendant which he had intentionally avoided to receive. In order to avoid technical objection another notice was served on him. It appears that defendant has filed suit for specific performance in between on the basis of forged, fabricated and manipulated documents. The defendant has such, is in unauthorized occupation of the suit premises after 31.10.2004. He is also liable to pay arrears of rent till that date damage @ Rs. 25,000/ per month w.e.f. 01.11.2004 for use and occupation of suit premises, Rs. 2,00,000/ for causing damage to the tenancy premises and arrears of electricity and water charges. On expiry of period of last lease on 31.10.2005 also the defendant is liable to vacate the premises and deliver physical possession unto the plaintiffs.
3. In his written statement defendant claimed to be in occupation of the suit premises or owner w.e.f. 01.08.2004 in pursuance of oral agreement to sell between the parties for a total consideration of Rs. 80,00,000/ our ot which Rs. 10,00,000/ stand paid to the plaintiffs. The defendant thus is occupying the suit property in his own right and has filed Suit No. 1018/04 in the Hon'ble High Court and during pendency thereof present suit is liable to be stayed. The locusstandi of plaintiffs to seek his Suit No. 153/09 Page No. 3 of 15 ejectment has therefore been challenged and notice dated 24.08.2004 termed illegal and unwarranted. It is alleged that plaintiffs having received part of the settled consideration for suit premises are estopped from filing the suit particularly when they are not sure when the tenancy was terminated. It is stated that defendant is in occupation in terms of the provisions of Section 53 A of Transfer of Property Act and therefore, the suit cannot be maintained. The ownership claim of plaintiffs, relationship of landlords and tenant vide lease deed dated 13.11.2002 have been admitted at the rate of Rs. 4,000/ p.m. Defendant denied being in arrears of rent or having caused damage to the suit premises. In fact plaintiffs had agreed to sell a portion of their property including the suit premises to defendant for Rs. 80,00,000/ and had accepted Rs. 2,00,000/ on 23.02.2004 as part payment against receipt. Further Rs. 6,04,000/ was paid to them in cash and Rs. 1,96,000/ was adjusted being the amount paid to the plaintiffs in excess of rentals from time to time through cheques. Plaintiff No. 1 had issued receipt on 08.05.2004 in this behalf for Rs. 8,00,000/. Two cheques of Rs. 16,000/ each were subsequently for adjusting rent w.e.f.01.06.2004 and excess to be adjusted towards cost of property at the time of execution of sole documents. Whereas the defendant has always been ready and willing to pay the balance amount, the plaintiffs could not execute sale deed for their own reasons. It was Suit No. 153/09 Page No. 4 of 15 agreed between the parties that since defendant is not at fault, he will not be liable to pay rent of the suit premises w.e.f. 01.08.2004 and will enjoy it as owner having paid Rs. 10,00,000/ as part consideration. There was no occasion for the plaintiffs to terminate the tenancy of defendant as the deed of lease had already come to an end in view of the sale agreement between the parties. Liability to pay damages, arrears of rent, damages/mesne profits, electricity and water charges, therefore, has been refuted and it is urged that suit may be dismissed with costs.
4. Replication is reiteration of plaint and denial of the adverse contents of written statement. Plaintiffs outrightly denied the existence of any agreement to sell, oral or written, with the defendant in respect of the suit premises. His suit for specific performance is started to be devoid of cause of action. Only a receipt of Rs. 2,00,000/ was executed by plaintiff no. 1 on 23.02.2004 in consideration of a future agreement to sell to be executed on finalization of terms and conditions by the parties which event never took place. Neither any meeting was held nor any terms were settled or agreement to sell finalized. No payment from defendant was received either. The receipts of subsequent dates are forged and fabricated on which basis defendant has filed suit to harass and humiliate the plaintiffs. Even the receipt of Rs. 2,00,000/was signed by plaintiff no. 1 in September 1999 but the Suit No. 153/09 Page No. 5 of 15 defendant has interpolated and tempered with it by putting date of 23.02.2004 and showing his wife as witness. The receipt cannot constitute agreement to sell for want of specific terms, stam duty and registration. Moreover, plaintiff no. 3 had neither authorized plaintiffs no. 1 and 2 to take decision in respect of property on his behalf nor was ever a part of discussions with defendant. It is denied that defendant is to enjoy the suit premises without paying rent or use and occupation charges from 01.08.2004 or that he had paid excess sent at any point of time.
5. The application of defendant under Section 10 and 151 CPC for stay of suit in view of pendency of his previously instituted suit for specific performance, was dismissed on 14.05.2007. CM(M) No. 1215/07 of the defendant aggrieved by the said order, has been dismissed by Hon'ble High Court on 29.01.2010. His SLP(Civil) No. 6010/10 is also dismissed by Hon'ble the Apex Court of India on 23.03.2010.
6. Arguments have been heard on behalf of the parties on the application under disposal. In the of ruling of Hon'ble Supreme Court in Uttam Singh Duggal & Co. Vs. Union bank of India, AIR 2000 SC 2740 , it has been held in Deepak Kumar Arya Vs. Jatinder Gupta, 2010 I AD (Delhi) 508 that object of Order 12 Rule 6 is to enable expeditious grant of decree to a plaintiff in a suit, Suit No. 153/09 Page No. 6 of 15 when the defendant has made any admission in pleadings or otherwise, orally or in writtng. The plaintiff, in such a case, need not wait for completion of trial; he can seek part decree of suit, to the extent of such admission. The legislative interest of the provision is to curtail the period of determination of disputes and ensure that a decree on admission is passed without any unnecessary hindrance. The provisions are to be liberally construed. The Court should satisfy itself that the element which constitute 'admission' are present on record. An admission to enable the plaintiff to relief, should be unambiguous, clear and unconditional. Further it has been held in Prem Narain Mishra Vs. Fairy Brothers Export & Import RFA (OS) No. 01/05 decided by Division Bench of Hon'bleDelhi Court on 12.07.2007 (Manu/DE/8255/2007) that the 'admissions' can even be constructive and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. These can also be discerned from the facts and circumstances of a case.
7. The factors necessary for evaluation in the contest of applications are: • Existence of relationship of landlord and tenant between the parties.
• Rent should be out of purview of Delhi Rent Control Act. Suit No. 153/09 Page No. 7 of 15 • The tenancy has been validly terminated.
Let us examine whether there are unequivocal, unqualified and positive admissions in pleadings in relation to the relief of possession.
8. Relationship There is absolutely no dispute between the parties about existence of relationship of landlords are tenant in respect of the suit premises. Though not needed yet reference to Bhogadi Khanna Babu Vs. Viggina Pydamma Vigging 2006(5) SCC 532 may usefully be made where it was laid that a tenant let into possession cannot deny his landlord's title howsoever defective so long as he has not openly restored the possession or surrendered the premises to him.
9. Defendant is claiming occupation of suit premises as owner thereof w.e.f. 01.08.2004. Admittedly there is no sale deed of this portion of property no. N246, GKI, New Delhi in his favour. The inference of agreement to bill is sought to be drawn on the basis of three receipts besides oral terms. The first token receipts of Rs. 2,00,000/ was issued by plaintiff no. 2 in the presence of plaintiff no. 1 with clear stipulation that the detailed terms and conditions and price of property shall be discussed and formal agreement to sell shall be made within two months. The handwritten words "The total consideration is rs. 80,00,000/" Suit No. 153/09 Page No. 8 of 15
seems incongruent in the context of receipt. It cannot be taken as an agreement in itself simply because it talks of subsequent discussions and execution of formal agreement. It also provides for discussion on the price of property to be agreed to be sold. The receipt does not say whether the amount was paid in cash or instrument or in kind. It does not give any date of receipt. No document supporting the contention of paying the amount on or about 23.02.2004 viz. Bank pass book, ledger account, income tax returns etc. has been filed by the defendant. This document, of which date of execution and signature of witness no. 2 are disputed by plaintiffs is incapable of creating any beneficial interest in favour of the defendant.
10. Receipt dated 08.05.2004 and endorsement dated 08.07.2004 purportedly executed by plaintiff no. 1 for self and on behalf of other plaintiffs have been denied by the plaintiffs stating them to be forged and fabricated documents. Again no documents showing that the defendant had been paying amounts to the plaintiffs in excess of due rent. No period nor excess amounts paid from time to time has been specified. No plausible reason of defendant bestowing this benefit on plaintiffs has been offered. Further he has not shown the availability of cash amount of Rs. 6,04,000/ on or about 08.05.2004 is produced. The document does not speak of any discussions having taken place between the parties subsequent to execution of token receipt and why need to reduce a Suit No. 153/09 Page No. 9 of 15 formal agreement is not being felt. The extent of area of property no. N - 246 cursorily stated in this receipt does not match the claim of defendant in the written statement. No time and mode of paying balance amount is recorded. There is nothing to perceive that plaintiff no. 1 had executed it on behalf of all the plaintiffs. Defendant having parted with a good amount of Rs. 10,00,000/ for the property must have reflected it in his income tax returns but no record has been filed. Receipt is silent about status of demised property on the date of its alleged execution. For being uncertain and open ended in respect of vital terms which invariable form part of an agreement to sell, the receipt dated 08.05.2004 falls much short of the requirement. Besides this all the three documents forming backbone of the defence of defendant are unstamped either as agreement to sell with transfer of possession of immovable property demised therein and the middle one even as a receipt. To take benefit of the doctrine of part performance, the stipulation should have been in writing which was compulsorily registrable.
11. the endorsement dated 08.07.2004 does not make any reference to receipts earlier mentioned. It is also silent about delivery of two cheques of Rs.16,000/ each to the plaintiffs. It does not tell the total amount settled, what has been paid, what remains to be paid, mode and division, if any of balance amongst three plaintiffs. It is strange that the sale deed was to be executed by Suit No. 153/09 Page No. 10 of 15 31.08.2004 on receipt of balance amount (from unknown/unidentified person/s but the plaintiffs generously agreed not to change rent even for the month of August 2004. the total consideration for the property called for obtaining income tax clearance certificate from concerned department. Defendant does not tell as to who had to be obtain this certificate and whether it was applied for at all. Had the transaction between the parties been smooth, there was no question of plaintiffs initiating legal process against the defendant by giving him notice dated 22.07.2004, within two weeks of endorsement dated 08.07.2004 and much before the agreed day on 31.08.2004.
12. As the above reveal that defendant is harping on the three documents which hardly contain any term indicating agreement of sale of an immovable property worth Rs. 80,00,000/, Moreover if we imagine them to collectively with surrounding circumstances, constitute an agreement to sell, it creates no beneficial ownership in favour of the defendant. At best it given him a right to seek specific performance which he has already exercised. His rights to compel plaintiffs to execute sale deed of suit premises etc. are still to crystallize and only after execution of conveyance deed he may be able to enforce occupation of the suit premises as owner. Till then his occupation of suit premises was under the lease deed and the relationship of landords and tenant Suit No. 153/09 Page No. 11 of 15 between the parties has not assumed another padestal.
13. Rate of rent.
Admittedly the rate of rent of the suit premises under the registered lease deed dated 13.11.2002 was Rs. 4,000/ per month. Hence the same is not a subject matter of the provisions of Delhi Rent Control Act, 1958. The plaintiffs thus are not required to establish any ground of evidence of tenant specified therein.
14. Termination of lease.
Despite having admitted the receipt of legal notice dated 22.07.2004 on behalf of the plaintiffs in his suit for specific performance filed in September, 2004, defendant did not whisper about it in written statement much later filed in this case. Be that as it may, the plaintiffs do not claim to take benefit of said notice for termination of lease but rely on subsequent notice dated 24.08.2004 of which service has been accepted and even reply dated 28.09.2004 was sent by the defendant. It has been contended that plaintiffs are required to prove their contention regarding violation of terms of lease by defendant by remaining in arrears of rent and causing substantial damage, addition/alteration in suit premises. The argument cannot be accepted because no reasons were required to be assigned fro terminating the lease as per agreed terms. There was clear notice of two months in compliance of clause 6 of deed dated 13.11.2002 thus lease of the suit premises stood terminated Suit No. 153/09 Page No. 12 of 15 from the end of 31.10.2004.
15. Even otherwise, there was limited period tenancy of suit premises for three year which has expired on 31.10.2005 during pendency of the suit. As above discussed, there is neither renewal of lease nor the relationship of parties has otherwise changed. The objection of defendant that termination of lease by efflux of lease period being not one of the original causes of action, should not be considered as part of application of the plaintiffs. Plaintiffs cannot be blamed for delay in disposal of the suit. Having added their pleas regarding entitlement of seek ejectment of defendant on expiry of lease period by way of amendment, the plaintiffs cannot be debarred from seeking judgment on the basis of admission. In fact the plea was already there contained in admitted lease deed specifying the date of its expire by efflux of time. Moreover the amendment was allowed to avoid multiplicity of proceedings. The plea, if available to plaintiffs in a new suit set on different cause of action, there is no reason not to alow them the same herein. Interminating the lease either way no ulterior motive or extraneous material is discernible.
16. The defence raised in this case is not found to have potential to resist the possession claim of the plaintiffs even on culling the pleadings and documents relied upon by the parties. There is only a semblance of opposition without substance. There are real, plain and candid admission of facts in respect of the three Suit No. 153/09 Page No. 13 of 15 essential factor. This course shall not thus delve the parties to undergo the trauma of trial as far as the relief of possession of suit premises is concerned as that would tantamount to obviating the spirit of legislature behind Order 12 Rule 6 CPC and going against the elementary theory of "admission of facts need no proof". All the essential features are available in the case in hand. The eventuality of passing an ejectment order in such background was held proper in Central Bank Vs. Lalit Bhargav, 2006 RLR 355.
17. As a corollary of above, the application of plaintiffs is hereby allowed. Consequently suit is partly decreed in respect of the relief of possession of first floor of property NO. 246, Greater Kailash PartI, New Delhi comprising two bed rooms, lounge, dining room, kitchen, two bath rooms, varandah, terrace exclusive of services part shown bounded in red colour in site plan now marked Ex PX in favour of the plaintiffs and against the defendant.
Decree sheet be drawn.
Announced in the open court on 31st January, 2011 (Sunil K. Aggarwal) Addl. District Judge (Central)10 Delhi.
Suit No. 153/09 Page No. 14 of 15 Suit No.153/09 31.01.2011 Present: Sh. Gaurav Mahajan, Adv. Ld. Counsel for the plaintiffs.
None for the defendant.
Since one steno is on leave and another has left early due to an urgent call, I have made handwritten order whereby the application under Order 12 Rule 6 CPC of plaintiffs is allowed. On rest claim of the claims in suit following issues are settled.
1. Whether the suit has been properly valued for the purposes of jurisdiction and Court fee and appropriate Court fee is affixed on the plaint? OPP
2. Whether the plaintiffs are entitled to decree of arrears of rent from 01.06.2004 against the defendant? OPP
3. Whether the plaintiffs are entitled to recover Rs. 95,487.55 from defendant as arrears of electricity and water charges of suit premises? OPP
4. Whether the plaintiffs are entitled to recover Rs. 2,00,000/ from defendant on account of damage caused to the suit premises? OPP
5. To what amount by way of use and occupation charges of suit premises are the plaintiffs entitled from the defendant and Suit No. 153/09 Page No. 15 of 15 :2: for which period? OPP
6. Whether the plaintiffs are entitled to interest on the amounts, if any, awarded in issues no. 2, 3, 4 and 5? If so, at what rate for which period? OPP
7. Relief.
No other issue arises. Fixed 06.05.2011 for PE. Affidavits of private witnesses be filed of which copies be supplied to Ld. Opposite Counsel two weeks in advance. List of witnesses be filed in 15 days.
(Sunil Kr. Aggarwal) Addl. District Judge (Central)10 Delhi: 31.01.2011 Suit No. 153/09 Page No. 16 of 15