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2006 DIGILAW 1049 (DEL)

CENTRAL TRADING CO v. R. K. JAIN

2006-06-04

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( 1 ) ALLOWED subject to just exceptions. CM (M) No. 960/2006 and CM No. 8735/2006 ( 2 ) THE respondents filed an eviction petition against the petitioner under section 14 (1) (b) of the Delhi Rent Control Act (hereinafter referred to as the said Act) on account of sub-letting. The petition was dismissed by the additional Rent Controller in terms of order dated 18. 1. 2004 and the respondents aggrieved by the same filed an appeal before the Rent Control Tribunal. The appeal was allowed by the impugned order dated 16. 5. 2006. ( 3 ) THE premises in suit consist of one big hall on the ground floor of building no. 16, New Colony, Behind Filmistan Cinema, Delhi, which was let out to the petitioner vide Agreement executed in February 1972. The permissible user of the premises was for the purposes of storing of 40 tons of Phenol Normaldehyde (Backelite) Moulding Power resins and/or any other item dealt by the petitioner company. The letting was for commercial purposes. The respondents allege that the petitioner had sub-let and parted with possession of the premises to M/s. Tipco Industries Limited without permission and consent of the landlord. ( 4 ) THE stand of the petitioner was that the chemical was being manufactured by m/s. Tipco Industries Limited and M/s. B. M. Thakkar and Company. The chemical was originally manufactured by M/s. Tipco Industrial Corporation Pvt. Ltd. , the name of which was changed to M/s. B. M. Thakkar and Company Limited. The name was thereafter changed to M/s. Tipco Industries Limited. M/s. Tipco Polymers limited and M/s. Tipco Industries Limited are stated to be sister concerns of the same Group of Tipco Industries Limited. ( 5 ) THE Additional Rent Controller found that the respondents had issued a No objection Certificate to M/s. Tipco Industries Limited and M/s. Tipco Polymers limited for storing the goods in the godown in question. These firms have mentioned the address of the godown for obtaining sales tax/central sales tax, excise tax numbers but the legal and physical possession of the premises remained with the tenant and thus subletting was not established. The Appellate court, however, disagreed with the conclusion in terms of detailed judgement, which is impugned by the petitioner. These firms have mentioned the address of the godown for obtaining sales tax/central sales tax, excise tax numbers but the legal and physical possession of the premises remained with the tenant and thus subletting was not established. The Appellate court, however, disagreed with the conclusion in terms of detailed judgement, which is impugned by the petitioner. ( 6 ) THE Tribunal has found that while considering a case of sub-letting the initial onus lay on the landlord to satisfy that the necessary ingredients of the Section were complied with but insofar as the facts within the special knowledge of the tenant are concerned, the tenant himself has to prove the same and cannot withhold the evidence in the power and possession of the tenant. The petitioner is a partnership firm with ladies as partners. The husbands of the ladies are Directors of M/s. Tipco Industries Limited and M/s. Tipco Polymers limited. ( 7 ) IT is really not in dispute that the tenanted premises was never let out to m/s. Tipco and, thus, in my considered view, the finding arrived at by the tribunal that the premises could not have been used by the said companies for dealing with different departments cannot be faulted. The so-called No Object certificates were general in term. The real purpose of letting out the premises was for storage of the goods of the petitioner but the premises came to be used only for the storage of the goods of the two companies, which is also used as an address by the said two companies. ( 8 ) AN important aspect, which arises is that while considering the issue of parting with possession, a finding has been arrived at that the petitioner does not maintain any account of the goods stored in the godown nor has it stored its goods in the godown for the last several years. The goods of M/s. Tipco industries Limited were stored in the godown and the accounts are maintained by that company. The provisions of sub-clause (b) of Section 14 (1) of the said act deal with all three aspects " subletting, assignment and parting with possession. Naturally, the requirement of parting with possession is not the mere user of other person but the tenant being divested of possession or the abandonment of the right of possession by the tenant. The provisions of sub-clause (b) of Section 14 (1) of the said act deal with all three aspects " subletting, assignment and parting with possession. Naturally, the requirement of parting with possession is not the mere user of other person but the tenant being divested of possession or the abandonment of the right of possession by the tenant. ( 9 ) THE evidence on record established that the premises in question was being exclusively used for storing of the goods of only two companies. Though the petitioner was not charging any rent from the two companies, the material found on record goes on to establish the assignment of the property to the two companies as also the parting of possession in their favour. ( 10 ) LEARNED counsel for the petitioner even sought to produce a copy of the Rent deed (exhibit PW 4/1) in Court. However, the same does not advance the case of the petitioner and in fact makes it abundantly clear as to the permissible user of the premises. The relevant clause 2 of the Rent Deed reads as under:that the Lessee shall use the premises for the purpose of storing around 40 Tonne of Phenol Normaldehyde (Backelite) Moulding Power Resins and/or any other items dealt by their Company and for all commercial purposes. " ( 11 ) THE aforesaid clause makes it clear that the storage of chemical is permissible and the user is commercial. However, due care has been taken to even mention the name of the chemical to be stored as also that any other item can be stored "dealt by their company". It is, thus, the product of the petitioner, which was required to be stored while the petitioner has completely given up the storage of any material and the complete premises is controlled by the two companies. ( 12 ) THE petitioner cannot be permitted to clothe itself with the defence of sister concerns since they are all separate legal entities. The petitioner is a partnership firm while the other companies are limited companies and the relationship of the partners with the Directors of the company cannot imply that the petitioner can part with possession or assign its tenancy rights to any other legal entity. If that be so, a special provision would have been made to that effect. On the contrary the relevant clause of the Rent Deed is restrictive. If that be so, a special provision would have been made to that effect. On the contrary the relevant clause of the Rent Deed is restrictive. ( 13 ) IN view of the aforesaid facts and circumstances, I find no perversity or infirmity with the impugned order, so as to exercise jurisdiction of this Court under Article 227 of the Constitution of India. ( 14 ) AT this stage, learned counsel for the petitioner sought extension of time to vacate the premises but it was put to the learned counsel for the petitioner as to whether the petitioner is willing to give an undertaking to vacate the premises or would like to pursue its legal remedy further. Learned counsel states that the petitioner is not willing to give any undertaking to vacate the premises but would like to avail its legal remedy. In view thereof there cannot be any question of extension of time. Dismissed.