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2008 DIGILAW 148 (DEL)

Pooja Aggarwal v. Sakata Inx (India) Ltd.

2008-02-09

SHIV NARAYAN DHINGRA

body2008
JUDGMENT: JUSTICE SHIV NARAYAN DHINGRA 1. The petitioner has assailed an order dated 9th October 2007 passed by learned trial court whereby an application of the petitioner under Order 12 Rule 6 of the CPC was dismissed observing inter alia that in order to grant relief under Order 12 Rule 6 of CPC, it was necessary that the admission by the party of the facts alleged should be unambitious, and the defendant had not made an admission of termination of tenancy, as claimed by the plaintiff. .2. The relationship of landlord and tenant between the parties is undisputed in this case. It is also an undisputed fact that the rate of rent was more than Rs.3500/-and the tenancy was initially entered into for a period of three years by way of a registered lease deed starting from 1st August 2003 and the rent reserved was Rs.10,000/- per month. The premises in question is a Flat No.614, 6th Floor, Devika Tower, 6, Nehru Place, New Delhi-110006. The premises was let out for commercial use and it had an area of 500 sq. ft. The tenancy came to an end by efflux of time on 31st July 2006. However, the premises was not vacated by the defendant. Thereafter, a notice terminating the tenancy was sent by the petitioner on 10th November 2006. When the premises was still not vacated, the plaintiff filed a suit in April 2007 for possession. 3. The defendant had not denied the relationship of landlord and tenant or the tenancy having been created for a period of three yeas byway of a registered lease deed. The defence taken by the defendant was that the flat of the plaintiff (petitioner herein) formed part of an undivided premises ad measuring 1970 sq. ft of 6th Floor flat, Devika Tower and there were five landlords. The premises was taken on rent through Real Estate Promoters and Consultants namely Cosmos Developers Private Limited. The plaintiff was only a landlord and not the owner of whole of the premises and, therefore, the suit was bad. The rate of rent was not denied. Regarding notice, it was stated that the plaintiff could not have terminated the tenancy arbitrarily by means of a notice dated 10th November 2006 under Section 106 of the Transfer of Properties Act since the premises formed part of an undivided larger premises ad measuring 1970 sq. ft. The rate of rent was not denied. Regarding notice, it was stated that the plaintiff could not have terminated the tenancy arbitrarily by means of a notice dated 10th November 2006 under Section 106 of the Transfer of Properties Act since the premises formed part of an undivided larger premises ad measuring 1970 sq. ft. It was contended that the landlord had agreed to lease out the premises for a period of six years commencing from 1st August 2003 and had also agreed to increase the rental from 1st August 2006, the other landlord namely Ms. Kamla Kumari has confirmed the agreement in respect of Flat bearing No.622 which also formed part of this undivided flat. 4. It is an undisputed fact that a separate lease deed was executed and registered between the parties in respect of 500 sq ft. of the property. The termination of tenancy was not conditional vis-a-vis other flats under lease of defendant. The lease deed entered into between the plaintiff and the defendant is independent of any other lease agreement entered into by the defendant with other landlords. The plea that the premises formed part of the bigger area is not tenable. .5. No registered lease agreement was entered after expiry of the first lease agreement on 31st July 2006 and in absence of any registered lease deed entered into after expiry of the first lease agreement, the tenancy, has to be considered as month to month. This tenancy was terminated by the plaintiff by sending a valid notice at the address of the defendant through registered post. The plaintiff placed on record documents showing that the service of notice was effected on the defendant. The documents placed on record by the petitioner are receipt of registered cover, AD card received back after service of notice and UPC, all bearing correct address of the defendant and a certificate from the Department of Posts wherein it is informed that the article sent by the petitioner vide receipt in question was delivered at the address on 16th November 2006. In view of these documents, the plea taken by the defendant that he was not served with the notice is, Obviously, a sham and false plea. The Court is bound to disbelieve and ignore such bogus plea. In Atma Ram Properties (P) Ltd. v. Pal Properties (India) Pvt. Ltd. and Ors 91(2001) DLT 438, this Court observed: “13. In view of these documents, the plea taken by the defendant that he was not served with the notice is, Obviously, a sham and false plea. The Court is bound to disbelieve and ignore such bogus plea. In Atma Ram Properties (P) Ltd. v. Pal Properties (India) Pvt. Ltd. and Ors 91(2001) DLT 438, this Court observed: “13. Coming to the service of the notice, the plaintiff has placed on record the copy of the notice sent to the defendants under Section 106 of the Transfer of Property Act. The plaintiff has also placed on record the postal receipt in original by which notice was sent by registered post to the defendants. The plaintiff has also produced on record the original acknowledgment received back which is addressed to Pal Properties India Pvt. Ltd. Address is rightly mentioned as H-72 Connaught Circus, New Delhi. It bears stamp and is signed by some person acknowledging the receipt of the letter. 14. In view of these documents on record it cannot be said that the notice was not received by the defendants. Bare denial would not serve any purpose. [Ref. Shimla Development Authority and Ors. vs. Smt. Santosh Sharma and Anr., JT 1996 (11 SC 254; M/s Madan and Co. v. Wazir Jaivir Chand, AIR 1989 SC 630 ].” 6. Similarly, in Rajiv Saluja v. Bhartia Industries Limited and Anr. 2002(64) DRJ 569 , this Court observed: “12. As regards the contention of Mr. Nayar that in the absence of notice under Section 106 the instant suit was not maintainable nor is the plaintiff entitled to seek decree for possession and since in the instant case the plaintiff has prima facie failed to prove the service of notice no such relief can be granted to be plaintiff, Mr. Vijay Kishan, learned counsel for the plaintiff has relied upon the postal receipts vide which the said notice was despatched at as many as three different addresses and the certificate of Postal Authorities to the effect that the registered notice dated 8.6.2000 was duly served upon defendant No.2. Certificate is as under:- To Mrs. Kochar, 117, Supreme Court, New Delhi. No.CR/05/02 Dtd.10.01.2002 Sub: D/o AD No. 7834 of dt. 8.6.00 at Sh. O.P. Bhatia 89/A/199 Sainik Farms, N. Delhi-62 W.R.T. Your letter dated 10. Certificate is as under:- To Mrs. Kochar, 117, Supreme Court, New Delhi. No.CR/05/02 Dtd.10.01.2002 Sub: D/o AD No. 7834 of dt. 8.6.00 at Sh. O.P. Bhatia 89/A/199 Sainik Farms, N. Delhi-62 W.R.T. Your letter dated 10. 1.02 it is to inform you that as per records the AD R.L. U/R delivered to the addresses at this and on 10.6.2001 pl. Yours faithfully, sd/- Sub Post Master 13. Though the question whether the service upon defendant No.2 amounts to service upon defendant No.1 need not be gone into at this stage still the fact remains that defendant No.2 is noneless but the Chairman of defendant No.1. As per Section 106 of the Act service of notice must be in writing, signed by or on behalf of the person giving it and amounts to having been served if it is received by one of his family members or servants at his residence or affixed at a conspicuous place of property. Defendant No.2 is not only the Chairman of the defendant No.1 but was the occupant of the premises. There can be no better case of service of notice upon defendant No.1- Company when it is served upon its Chairman. xxxxxxx 17. I have taken a view in Rama Ghai vs. UP State Handloom Corporation, 2001 IV AD (Delhi) 471 that in order to invoke the provisions of Order 12 Rule 6, CPC, the Court has to scrutinize the pleadings in their totality and ignore the evasive and unspecific denials either as to the relationship or as to the service of notice or as to the nature of tenancy. 18. If the landlord either under the legal advice or by way of abundant precaution notice for termination of tenancy under Section 106 of the T.P. Act after the expiry of tenancy by way of efflux of time his intention is not to terminate the tenancy but to insist and impress upon the tenant to handover the possession after the expiry of agreed period of tenancy. 19. In the instant case, the evasive denial by the defendants to the creation of a tenancy for six months has the effect of termination of tenancy but efflux of time. Whenever the period of lease was extended for a year, the plaintiff got the lease deed registered. 19. In the instant case, the evasive denial by the defendants to the creation of a tenancy for six months has the effect of termination of tenancy but efflux of time. Whenever the period of lease was extended for a year, the plaintiff got the lease deed registered. It is unscrupulous on the part of the defendant to deny the extension of lease orally for a period of six months on compassionate ground as the petitioner did not feel the need of getting the lease registered and rightly so as such on extension of tenancy could have been agreed orally and even without unregistered lease deed under the provisions of Section 116 of the T.P.Act. Even on the premises of its own defence that the tenancy became monthly tenancy after the expiry of the registered lease period, the defendants stand on sticky wicket as even the said tenancy was validly terminated by the notice under Section 106 of the Act and, therefore, the occupation of the defendant after that period was unauthorized.” (emphasis added) 7. Inthe instant case, the admission regarding relationship of landlord and tenant is not in dispute. The rate of rent is above Rs.3500/-. The service of notice has been amply shown by the plaintiff by placing the documents on record and the denial by the defendant is a sham and false and the Court can always disregard such sham and false denials. All conditions of passing an order under Order 12 Rule 6 of CPC being satisfied, the trial court wrongly dismissed the application under Order 12 Rule 6 of the CPC. 8. As a result, the petition is allowed and the impugned order dated 9th October 2007 passed by learned trial court is hereby set aside. The application of the petitioner under Order 12 Rule 6 of CPC is hereby allowed and a decree for possession qua the Flat No.614, 6th Floor, Devika Tower, 6, Nehru Place, New Delhi is hereby passed. The suit before the trial court qua rest of the issues shall proceed.