K. S. GUPTA ( 1 ) THIS order will govern the disposal of I. A. 10931 99 filed under Order XII Rule 6 read with section 151 Civil Procedure Code by the plaintiff for passing decree of possession against the defendant in respect of portion shown in red in the site plan annexed of property bearing No. 32, Khan Market. New Delhi. ( 2 ) SUIT for possession and mesne profits were filed, interalia, alleging that under a registered lease deed dated 31/08/1987 the plaintiff had let out ground a first floors of property No. 32, Khan Market for a period of years with effect from 12/02/1986 on a monthly rent 7562. 50 to the defendant bank. The plaintiff vide notice dated 07/02/1991 which was served on the defendant on about 10/02/1991 called upon it to handover physic possession of the tenanted premises on expiry of lease period on 11/02/1991. However, instead of vacating the premises the defendant bank filed suit for injunction being No. 633/91 against the plaintiff and his brother Narender Nath Madan seeking to restrain them in any way interfering with its enjoyment and possession of the tenanted premises and other portions of property bearing No. 33, Khan Market owned by the plaintiff s said brother. It is further alleged that the plaintiff also filed Suit No. 700/92 against the defendant bank for possession and mesne profits. During the pendency of said suits negotiations for amicable settlement were negotiated. The defendant vide letter dated 07/08/1993 proposed the terms of settlement. One of the terms of settlement contained in this letter and subsequent correspondence exchanged between the parties, was that the defendant bank will vacate the first foor premises and plaintiff will handover possession of front verandah on the ground floor after covering the same at his own cost to the defendant. Defendant vacated the first floor premises and the plaintiff after covering handed over possession of front verandah to the defendant on 01/11/1993. However, inspite of part implementation of compromise the defendant bank avoided to execute the lease deed and to implement rest of the terms of settlement. It is further alleged that the defendant bank unilaterally decided to make payment of the front verandah portion only with effect from 01/04/1994. However, inspite of part implementation of compromise the defendant bank avoided to execute the lease deed and to implement rest of the terms of settlement. It is further alleged that the defendant bank unilaterally decided to make payment of the front verandah portion only with effect from 01/04/1994. Further, the defendant bank took an unjustified stand that there shall be two separate tenancies - one in respect of the portion on ground floor which was initially let out and the other in regard to portion which was delivered to it after covering front verandah on 01/11/1993, Not only that, the defendant bank wanted the period in respect of two tenancies to be different. In the circumstances, the plaintiff filed an application under Order 23 Rule 3 read with section 151 Civil Procedure Code on 04/04/1995 in the suit which was pending before an Additional District Judge, Delhi. The defendant did not file any reply to the said application and on 13/12/1996 when the suit was listed it took the stand before the Additional District Judge that it was ready to execute the Additional District Judge that it was ready to execute the lease deed and same could not be executed because of the lapse on part of plaintiff. The stand taken by the defendant was totally baseless. Believing the representation made by the defendant the Additional District Judge stayed the proceedings in the suit sine die vide order dated 13/12/1996. In Civil Revision being No. 122/97 filed by the plaintiff, said order dated 13/12/1996 was set aside by this court and said suit is still pending disposal. The defendant was making payment @ 15,310. 50 per month though as per settlement arrived at between the parties it should have started making the payment @ Rs. 19,742. 80 per month with effect from February 1996. It is stated that the tenancy of defendant has been terminated with effect from 31/05/1998 and it is now liable to pay mesne profits @ Rs. 3 lakhs per month in addition to delivering the possession of the said premises which is in its unauthorised occupation, to the plaintiff. ( 3 ) IN the suit aforesaid I. A. 10931/99 came to be filed on 13/10/1999 claiming the relief of possession. ( 4 ) DEFENDANT bank contested the suit by filing written statement. 3 lakhs per month in addition to delivering the possession of the said premises which is in its unauthorised occupation, to the plaintiff. ( 3 ) IN the suit aforesaid I. A. 10931/99 came to be filed on 13/10/1999 claiming the relief of possession. ( 4 ) DEFENDANT bank contested the suit by filing written statement. By way of preliminary objections, it is alleged that the plaintiff and his brother Narencter Nath Madan initially let out 1300 sq. ft space on the ground floor and 1450 sq. ft space on the first floor of premises No. 32-33, Khan Market to the answering defendant and two lease deeds were executed. The rent payable for the entire premises was Rs. 15,125. 00 per month out of which 50% was payable to the plaintiff and 50% to his said brother. Initial tenancy period of 5 years with effect from 12/02/1986 was renewable at the Option of answering defendant. After the expiry of that 5 years period, there was some dispute between the parties as to whether the answering defendant had exercised its option of renewal of lease in accordance with the terms of lease deed. Answering defendant was thus compelled to file a suit for mandatory injunction against the plaintiff and his brother seeking to restrain them from illegally interfering with its possession of the tenanted premises. Subsequently, plaintiff also filed a suit for possession etc against the answering defendant. During the pendency of litigation, negotiations took place for readjustment of tenanted premises and for grant of fresh lease. By a letter dated 07/08/1993 answering defendant conveyed to the plaintiff that it was ready for renewal of lease of premises on terms and conditions noted therein. Terms and conditions noted in the said letter have been set out in Para No. 2 of the preliminary objections of written statement. It is further alleged that the terms and conditions as contained in the said letter were accepted by the plaintiff. Subsequently the plaintiff desired that an additional space of about 40 sq. ft be also taken on lease by answering defendant which request was accepted by it and plaintiff was conveyed accordingly by the letter dated 22/10/1993. There had been some discussions between the parties. Finally by the letter dated 16/11/1994 it was conveyed by the answering defendant to the plaintiff that in partial modification of said letter dated 22/10/1994 rent @ Rs. 7. There had been some discussions between the parties. Finally by the letter dated 16/11/1994 it was conveyed by the answering defendant to the plaintiff that in partial modification of said letter dated 22/10/1994 rent @ Rs. 7. 26 per sq. ft for the existing ground floor premises would be effective from 12/02/1991 and the lease period of 5 + 5 years would also be from that date. The rent for covered verandah portion would be payable from 01/04/1994 and lease period of 5 years would also commence from that date. By the letter dated 22/11/1994 the plaintiff agreed to the said terms of the letter dated 16/11/1994. Identical compromise was reached with said Narender Nath Madan. Acting on that compromise the answering defendant was delivered possession of covered verandah portion and it vacated the portion on the first floor. It is stated that the suit is premature in as much as the tenancy of answering defendant continues upto 31/03/2004. It is assertedthat the answering defendant is in possession of the suit premises in part performance of the agreement and it had always been willing and ready to perform its part of the contract. Suit is alleged to be bad for non-joinder of aforesaid Narender Nath Madan. On merits, it is pleaded that the answering defendant has been paying the rent at revised rate as agreed between the parties. Towards arrears of rent which was withheld for failure of the plaintiff to execute fresh lease deed (s) the answering defendant made ad hoc payment of Rs. 2. 52 lakhs even though it was not obliged to do so. Receipt of plaintiff s notice dated 30/03/1998 is not denied. However, it is pleaded that plaintiff had no right whatsoever to terminate the lease of answering defendant. ( 5 ) DEFENDANT bank has contested the application under disposa by filing reply on the pleas icentical to those taken in the written statement. ( 6 ) I have heard Sh. Ravinder Sethi for plaintiff and Sh. Adrash 8. Dial for defendant and have also been taken through the record. ( 5 ) DEFENDANT bank has contested the application under disposa by filing reply on the pleas icentical to those taken in the written statement. ( 6 ) I have heard Sh. Ravinder Sethi for plaintiff and Sh. Adrash 8. Dial for defendant and have also been taken through the record. ( 7 ) POINTS which fall for consideration are mainly twofold - (1) whether a concluded contract was arrived at between the parties to let out the ground floor premises initially let out to the defendant bank for a further period of 5 years, with effect from 12/02/1991 together with covered verandah portion also for a period of 5 years with effect from 01/04/1994 with option of renewal for another period of 5 years to the defendant bank and (2) whether the defendant bank by invoking doctrine of part performance under section 53-A of Transfer of Property Act, protect its possession over the suit premises for the remainder renewed period of lease upto 11/02/2001/ 31/03/2004 despite registered lease deed (s) in respect thereto having not been executed. ( 8 ) ON point No. 1 reference to four letters to which my attention was drawn on behalf of defendant bank, is necessary. Omitting immaterial portion, letter dated 07/08/1993 sent by the defendant bank to the plaintiff placed on Page No. 1 of the documents filed by defendant (Part III file) which is material, is reproduced below:- "renewal OF LEASE DEED PREMISES AT. 32 SHOP and FLAT KHAN MARKET, NEW DELHI Please refer to the camptioned matter. We are pleased to inform that compromise for rrnewal of lease has been approved by Head Office. We append below the terms and conditions as approved by the Head Office. (i) The Bank will continue to occupy the existing area of 650 sq. feet on ground floor for which rent of Rs. 4719. 00 (@ Rs. 7. 26 p. sq.) will be paid w. e. f. 12/02/1991. (ii) An additional area of about 375 sq. ft on ground floor (Verandah portion) subject to actual measurement shall be given to the bank of which rent of Rs. 15000. 00 (@ Rs. 40 per sq. ft) will be paid from the date of possession. (iii) All taxes payable in respect of the premises will be borne by you. (ii) An additional area of about 375 sq. ft on ground floor (Verandah portion) subject to actual measurement shall be given to the bank of which rent of Rs. 15000. 00 (@ Rs. 40 per sq. ft) will be paid from the date of possession. (iii) All taxes payable in respect of the premises will be borne by you. (iv) The lease for the premises will initially be for 5 years w. e. f. 12/02/1991 and shall be renewed after 5 years i. e. w. e. f 12/02/1996 with 20% increase in monthly rent. (v) Loan / Deposit Nil. (vi) The additional area (verandah portion) to be suitably covered/constructed at your cost as per Bank s requirement after ensuring approval /no objection from the Municipal authorities. (vii) Arrears of the increased rent w. e. f. 12/02/1991 for the existing ground floor premises is to be paid after obtaining possession of additional area on the ground floor. (viii) The first floor premises will be surrendered after taking possession of additional area and furnishing the same (within a reasonable time ). (ix) The legal suits filed by you and the bank will be withdrawn after confirmation of compromise terms by you and Shri Nannder Nath madan, owner of flat No. 33, Khan Market, New Delhi. Both the parties (i. e. the Bank and the Landlords) will bear their own legal expenses. 3. Please treat our letter KM : ADMN : KSK 274 of 22/07/1993 as cancelled. 4. Please send us your confirmation having accepted the above terms and conditions on the duplicate of this letter. " ( 9 ) BELOW this letter towards left hand side "accepted" is written under the signature of plaintiff with date as 08/09/1993. ( 10 ) IN terms of the letter dated 22/10/1994 (copy at pages 11 and 12) the defendant bank had conveyed its approval for retention of 40 sq. ft space from additional area of 350 sq. ft (subject to actual measurement) offered in the form of verandah portion in terms of settlement, to the plaintiff. Relevant portion of yet another letter dated 16/11/1994 sent by the defendant bank to the plaintiff (copy at pages 27 and 28) which too is material, runs as under:- "please refer to your letter No. KM/dn/33/149 dated. ft (subject to actual measurement) offered in the form of verandah portion in terms of settlement, to the plaintiff. Relevant portion of yet another letter dated 16/11/1994 sent by the defendant bank to the plaintiff (copy at pages 27 and 28) which too is material, runs as under:- "please refer to your letter No. KM/dn/33/149 dated. 07/08/1993 advising you of terms and conditions of compromise for renewal 6t lease deed as approved by our Head office, which was duly accepted by you Please also refer to our I. O. M. Ref: KM/admn/ksk/445 dated 22/10/1994 advising you of terms and conditions for acceding to your request for retentior of about 40 sq. ft from the additional area of 350 sq. ft (subject to actual measurement) offered in terms of above compromise. Pending your acceptance to our letter of 22/10/1994, discussions were held by your representative at our Zonal office for partial modifications in terms of approval. 2. It has therefore, been decided that as partial modification in terms of approval conveyed vide our letter No. KM/admn/ksk/445 dated 22/10/1994, the rent @ 7. 26 per sq. ft for the existing ground floor premises is effective from 12/2/1991 and the lease period of 5 + 5 years will also be from that date. The rent for additional premises on ground floor (verandah portion) is payable from 1/4/1994 and lease period of 5 + 5 years will also commence from that date. 3. Please send us your acceptance of terms of offer order our letter No. KM/admn/ksk/445 dated 22/10/1994 read with above terms of offer as partially modified thereto. "( 11 ) BY the letter dated 22/11/1994 sent to the Chief-Manager, Khan Market branch of the defendant bank (at page 27 of the documents filed by plaintiff) the plaintiff had conveyed his acceptance to the said terms and conditions of the letter dated 16/11/1994. It is settled law that a contract can come into existence between the parties by exchange of letters (See: Ram Krishan Singhal Vs. Executive Engineer and others, ILR 1991 (1) Delhi 275 ). It is settled law that a contract can come into existence between the parties by exchange of letters (See: Ram Krishan Singhal Vs. Executive Engineer and others, ILR 1991 (1) Delhi 275 ). On a combind reading of the correspondence referred to above, it is manifest that a concluded contract was arrived at between the parties to let out said two portions on the ground floor of property for a period of 5 years with effect from 12/02/1991 / 01/04/1994 with option of renewal for a further period of 5 years reserved to the defendant bank. ( 12 ) THIS brings me to point No. 2 above. Admittedly, after 22/11/1994 no lease deed incorporating the terms and conditions as noted in the said letter dated 07/08/1993 as modified by the letters dated 22/10/1994 and 16/11/1994 was reduced into writing between the parties and registered. Contention advanced on behalf of the plaintiff was that after efflux of period of 5 years for which registered lease deed dated 31/08/1987 effective from 12/02/1986 was executed, the defendant bank had become tenant from month to month and after termination of tenancy by the notice dated 30/03/1998 it was in occupation of the suit premises as an unauthorised occupant thereof with effect from 01/06/1998. Further, provision contained in Section 53-A, T. P. Act cannot be invoked in case of a lease. In support of the submission reliance was placed mainly on the decisions in Shukla Malhotra and Ors. Vs. M/s. Vyasa Bank Limited, 1998 III AD (Delhi) 628; M/s. Asea Brown Boveri Limited vs. Shri Chiranjiv Lal Sharma, 75 (1998) DLT 773 and an unreported decision in I. A. 2217/98 in S. No. 513-A/96 Smt. Sona Devi and another Vs. M/s. Puran Chand Packaging Industries Pvt. Ltd. decided on 04/07/2000. On the other hand, heavily relying on the decision in Maneklal Mansukhbhai vs. Hormusji Jamshedji Ginwalla and Sons, AIR (37) 1950 Supreme Court 1, it was urged on behalf of defendant bank that the defence under section 53-A, T. P. Act is even available to a person who has an agreement of lease in his favour though no lease deed had been executed and registered. According to the learned counsel the defendant bank is in occupation of the suit premises in part performance of a concluded contract to let and its tenancy could not have been legally terminated and suit for possession filed during the continuance of period of lease i. e. upto 11/02/2001 / 30/03/2004. He also drew my attention to the copy of letter dated 11/02/1996 placed at page 50 whereby the defendant bank had exercised its option of renewal of lease for a further period of 5 years with 20% increase in rent. ( 13 ) IN Manek Lal Mansukhbhai s case (supra) in paras 14 to 16 of the report at page 4 which are relevant, it was held:- "14. The principal questions canvassed in this appeal are, whether the plaintiff firm has proved its title to maintain the present suit in ejectment against the defendant, and whether the defendant is entitled to the benefit of the provisions of section 53-A, T. P Act. The question as to the maintainability of the suit against the defendant without a proper notice was raised before the High Court but permission to argue it was refused because the matter had not been raised in either of the lower courts. 15. The appeal was elaborately argued before us by the learned counsel for the parties, but in our view, it is not necessary to consider and decide all the points urged because we consider that the Assistant Judge was right in entertaining and giving effect to the plea under section 53-A, T. P Act and we are satisfied that no substantial grounds existed for reversing that decision in second appeal. This section introduced in the Transfer of Property Act in 1929 is in these terms: "where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof. . . and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered. . . . . . . and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered. . . . . the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other thai a right expressely provided by the terms of the contract. " 16. The section is a partial importation in the statute law of India of the English doctrine of part performance. It furnishes a statutory defence to a person who has no registered title deed in his favour to maintain his possession if he can prove a written and signed contract in his favour and some action on his part in part performance of that contract. In order to find whether the defendant in the present case has satisfied the conditions of the section, it has to be held proved that the Talukdari Settlement Officer contracted to give a lease of the survey numbers in suit to Manilal Maganlal by a writing signed by him and that from this writing the terms of the tenancy can be ascertained with reasonable certainty. It has further to be held established that the transferee took possession of the property on did any acts in furtherance of the contract. There can be no manner of doubt that the defence under section 53-A is available to a person who his an agreement of lease in his favour though no lease has been executed and registered. We are satisfied that defendant has fulfilled both the conditions necessary to attract the application of the section in the present case. " ( 14 ) IN view of above ratio the defence under section 53-A, T. P. Act is available to a person who had an agreement of lease in his favour though no lease had been executed and registered. On behalf of the plaintiff no authority rendered by Supreme Court after the said decision taking a contrary view, had been cited before me. On behalf of the plaintiff no authority rendered by Supreme Court after the said decision taking a contrary view, had been cited before me. At the cost of repetition it may be stated that in pursuance of concluded contract to let, the defendant bank was put in possession of covered verandah portion by the plaintiff and it continues to occupy the ground floor portion which was initially let out under the registered lease deed dated 31/08/1987 in addition to its paying rent to the plaintiff of verandah portion with effect from 01/04/1994 and that of ground floor premises initially let out, with effect from 12/02/1991 onwards. Defendant bank alleges that it had always been ready and willing to perform its part of the contract. That being the position, the defence raised by the defendant bank about its being in possession of the suit premises in part performance of the contract to let within the meaning of section 53-A, T. P. Act cannot be brushed aside as having no merit at this stage. In M/s. Asea Brown Boveri s case (supra) provision of section 53-A, T. P. Act was sought to be invoked by the plaintiff for directing the defendants to execute and register in its favour lease deeds every three years in respect of Flat No. 402. Guru Angad Bhawan, 71, Nehru Place, New Delhi on the terms and conditions stated in the lease deed dated 01/12/1979 and taking note of the two decisions of Supreme. Court in Delhi Motor Co. Vs. U. A. Basrurkar, AIR 1968 SC 794 and Biswabani Pvt. Ltd. Vs. Santosh Kumar Dutta, AIR 1980 SC 226 , said relief was declined holding that said section 53-A is only available as defence to lessee and in the absence of registered instrument lease will be deemed to be a lease from month to month. In Shukla Malhotra s case (supra) the point whether protection of section 53-A T. P. Act was available in case of leases was left undecided and taking note of the decision particularly in Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor and Ors, AIR 1988 SC 1470 , it was held that a fixed term lease for a period exceeding one year if not registered, will be deemed to be a tenancy from month to month. Khaja Midhat Noor and Ors, AIR 1988 SC 1470 , it was held that a fixed term lease for a period exceeding one year if not registered, will be deemed to be a tenancy from month to month. Obviously, in the later case applicability of section 53-A, T. P. Act by way of defence was not decided at all. Likewise is the position in said unreported decision in Smt. Sona Devi s case. None of the said three decisions are of any help to the plaintiff. In my opinion, for the foregoing discussion no order can be made for delivery of the vacant possession of suit premises by the defendant bank to the plaintiff under Order XII Rule 6 and section 151 Civil Procedure Code and the application under disposal deserve? to be dismissed. ( 15 ) CONSEQUENTLY, the application is dismissed.