Naveen Chaudhary v. Siddharth Ganvir & Ors.

9. The Defendant, in her Written Statement took the preliminary objection that in the month of August, 2014 she had met Sh. Rajesh K. Ganvir, SPA holder of the Plaintiffs, through one property dealer namely, Sh. Anil Khanna and purchased the suit property for a total sale consideration of Rs. 85,00,000/-. She had paid a sum of Rs. 27,00,000/- in cash to Sh. Rajesh K. Ganvir vide Receipt dated 18.08.2014, as part payment towards the sale consideration. It was further agreed between the parties that, the Sale Deed in favour of the Defendant, would be executed by Sh. Rajesh K. Ganvir in the month of December 2014 and the balance amount of Rs. 58,00,000/- would be paid by her at the time of execution of the sale deed. The Defendant accordingly got the possession of the suit property under this oral Agreement, in the capacity of a prospective owner and not as a tenant, as is alleged by the Plaintiffs.

10. The Defendant further asserted that in December, 2014 she had telephonically requested Sh. Rajesh K. Ganvir as well as the property dealer Sh. Anil Khanna, to execute the Sale Deed in her favour; however, Sh. Rajesh K Ganvir expressed his inability to execute the Sale Deed, as he was facing some family problem. He assured the Defendant that he would inform her one month prior to execution of the Sale Deed in her favour.

11. It was further claimed that on request of Sh. Rajesh K. Ganvir, the Defendant had deposited a sum of Rs. 4,50,000/- as part payment towards the sale consideration. The Defendant on various occasions, had requested Sh. Rajesh K. Ganvir and the property dealer Sh. Anil Khanna to execute the Sale Deed in her favour, however, they hoodwinked her by claiming that she was in possession of the flat and she may continue to be in possession.

12. On merits, the Defendant reiterated her defence as taken in the preliminary objections and denied all the averments as made in the Plaint. It was submitted that the present Suit be dismissed.

13. The Plaintiffs in their Replication denied the alleged oral Agreement to Sell entered between the parties and re-affirmed the assertions made in the Plaint. The Plaintiffs further denied the assertions made in the Written Statement.

14. The learned Additional District Judge framed the following Issues vide Order dated 28.02.2019, as under:

(i) Whether there is no relationship of landlord and tenant between the parties? OPD

(ii) Whether plaintiff is entitled for decree of possession, as prayed for? OPP

(iii) Whether plaintiff is entitled for decree of damages, if so, at what rate and for what period? OPP

(iv) Whether plaintiff is entitled for recovery of arrears of rent, if so, what amount, for what period and at what rate? OPP

(v) Relief.

15. Subsequently, Issue No. 1 was modified vide Order dated 14.10.2023, which reads as under:

(i) Whether there is a relationship of landlord and tenant between the parties? OPP

16. The Plaintiffs in support of their case examined their SPA holder, as PW-1 Sh. Rajesh K. Ganvir, who reiterated the averments as made in the Plaint. He further relied on the documents exhibited as Ex. PW1/1 to Ex. PW1/11.

17. The Defendant, Mrs. Naveen Chaudhary examined herself as DW-1, who reaffirmed her defence, as stated in the Written Statement. She further relied on the Receipt dated 18.08.2014 Ex. DW1/1, for Rs. 27,00,000/exhibited as.

18. The learned Additional District Judge after considering the rival contentions and the evidence led by the parties, observed that though there may have been some cash transaction between Defendant and Sh. Rajesh K. Ganvir, SPA holder of the Plaintiffs, as per the Receipt dated 18.08.2014 Ex.DW1/1, but that does not entitle the Defendant to claim any right in the suit property against the original owners i.e. the Plaintiffs who never authorized their SPA holder to sell the property. The Receipt Ex.DW1/1 does not amount to the sale of the Suit Property.

19. The learned Additional District Judge further noted that Defendant had made payment of rent in the bank account of Plaintiff No.1, Sh. Siddharth Ganvir and not in the bank account of Sh. Rajesh K. Ganvir. Therefore, the learned Additional District Judge held that there was a relationship of landlord and tenant between the parties.

20. It was further observed that from the period of 20.09.2014 to 19.07.2016, the Plaintiffs were entitled for a total rent amounting to Rs. 2,31, 000/-. However, the Defendant had paid a sum Rs.3,15,000/- to the Plaintiffs and thus, it was held there was no liability of the Defendant to pay any arrears of rent.

21. However, the learned Additional District Judge awarded an amount of Rs. 11,000/- per month as mesne profits from the date of last payment of rent i.e. 19.07.2016 till the vacant possession of the Suit Property was handed over. The excess amount of Rs. 1,84,000/- already paid by the Defendant, was directed to be deducted. Consequently, the Suit filed by the Plaintiffs for Recovery of Possession and mesne profits was decreed.

22. Aggrieved by the Judgment and Decree dated 12.02.2024, the Defendant has preferred the present Regular First Appeal under Section 96 read with Order XLI Rule 1 of the CPC.

23. The grounds of challenge are that it has been erroneously held that there subsisted a relationship of landlord-tenant between the parties, without considering that the Defendant was a prospective buyer of the suit property, which is substantiated by the absence of any Rent Agreement and the Rent Receipts.

24. Furthermore, it has not been appreciated that the mandatory provision of Section 105 read with Section 17 of the Registration Act, 1908 which provides for mandatory registration of a Rent Agreement, has not been followed by the Plaintiffs.

25. It was contended that the Receipt dated 18.08.2014 for Rs. 27,00,000/- that had been given by the Defendant to Sh. Rajesh K. Ganvir as part payment towards the suit property, has not been considered. The observation that there may be a possibility of some cash transaction between the Defendant and Sh. Rajesh K. Ganvir, for which there existed a separate cause of action between the Defendant and Sh. Rajesh K. Ganvir which cannot be adjudicated in the present Suit, is not tenable.

26. It was further contended that the money deposited by the Defendant into the bank account of Plaintiff No. 1, was beyond the rent amount as alleged by the Plaintiffs. It has not been considered that there was no reason for the Defendant to have given an excess amount, except that it was towards the sale consideration of the suit property.

27. Furthermore, it has been held that the Defendant had last paid rent at the rate of Rs. 11,000/- per month. However, it was only a bare averment of the Plaintiffs, which is not supported by any cogent evidence. There is no basis for directing the Defendant to pay an amount of Rs.11,000/- per month, as mesne profits from 20.07.2016 till handing over the vacant possession of the suit property.

28. It is, therefore, submitted that the impugned Judgment and Decree dated 12.02.2024 be set aside and the Suit of the Plaintiffs be dismissed. Submissions Heard and Record Perused.

29. The case of the Plaintiffs, was that they were the absolute owner of the suit property, by virtue of Conveyance Deed dated 05.03.2013. It was further their case that they gave an SPA dated 16.10.2014 Ex. PW1/1 to Sh. Rajesh K. Ganvir, to manage the suit property, who on an oral rent Agreement, gave the suit property on rent to the Defendant and her husband, for a period of 22 months with effect from 20.09.2014 till 19.07.2016. The monthly rent for the first 11 months was Rs.10,000/- and thereafter was to be enhanced to Rs.11,000/- per month, for the subsequent 11 months.

30. In order to prove these aspects, PW-1, Sh. Rajesh Kumar Ganvir, proved the SPA dated 16.10.2014 Ex. PW1/1, executed in his favour. The perusal of the said SPA shows that it had been executed by the Plaintiffs in favour of Sh. Rajesh Kumar Ganvir, solely for the purpose of letting out the suit property. The relevant part of the SPA dated 16.10.2014 Ex. PW1/1, reads as under: “Before Hon’ble Executive Magistrate, Raver, Tal- Raver, Dist-Jalgaon. Date 16/10/2014 SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS THAT, I, SIDDHARTH GANVIR, S/O. SHRI KEWALRAM GANVIR AND SMT.

RAJESH GANVIR S/O SH.

KEWALRAM GANVIR (hereinafter called the SPECIAL ATTORNEY), as my true and lawful SPECIAL ATTORNEY to do or cause to be done the following acts, deeds and things in my name and on my behalf under their own signatures as deems fit and proper in any manner, regarding the property mentioned hereunder:- FLAT BEARING NO. B-509, 5TH FLOOR, POCKET-GH-IV, SECOR-29 ROHINI, Delhi-110042, (hereinafter called the Property), AND WHEREAS the 'EXECUTANT' hereby authorise the said SPECIAJ ATTORNEY to present before the SR-Concerned for the registration and execution of Rent Agreement/Deed and to take back the Registered Deed from the office concerned.

AND ALSO GENERALLY to do all other acts, deeds and things ancillary to the powers given hereinabove, even which have not been specified above nut which may becomes necessary to be performed at any stage, by the above said SPECIAL ATTORNEYS. I do hereby ratify and confirm that all acts, deeds and things done by my said SPECIAL ATTORNEYS shall be binding upon me in all respect.”

31. Evidently, it did not confer any authority or power on Sh. Rajesh K. Ganvir, to enter into any Sale Agreement in respect of the suit property.

32. Furthermore, when disputes arose with the Defendant, another SPA dated 04.08.2018, Ex. PW1/2, was executed in favour of Sh. Rajesh Kumar Ganvir, empowering him to take up any litigation in respect of the suit property. It is, therefore, evident that Sh. Rajesh Kumar Ganvir, only had the authority to let out the suit property and to defend it in litigation. He had no authority whatsoever, to enter into any Sale Agreement in respect of the suit property.

33. The Defendant had taken a defence that she had never entered into any Rent Agreement with the Plaintiffs but in fact, she entered into an Oral Agreement to Sell with Sh. Rakesh K. Ganvir, in August, 2014, for purchasing the suit property, for a total sale consideration of Rs.85,00,000/and further contended that she had paid Rs.27,00,000/- in cash to Sh. Rajesh Kumar Ganvir, vide Receipt dated 18.08.2014 Ex. DW1/1.

34. The Defendant has taken a defence of an Oral Agreement to Sell with Sh. Rajesh Kumar Ganvir. It is however, established from the testimony of PW-1 Sh. Rajesh Kumar Ganvir, that the owners were the Plaintiff, vide Conveyance Deed dated 05.03.2013. He was neither the owner of the suit property nor was he authorized, to enter into such deal of sale of the suit property. He was the SPA holder, who had been specifically authorized only manage the suit property for the purpose of giving the suit property on rent.

35. According to the Defendant herself, she had entered into the suit premises on 18.08.2014, when the aforesaid Receipt Ex. DW1/1 was executed. The Defendant, therefore, has admitted coming into the premises in August, 2014.

36. Firstly, in the present case, there is no written Agreement to Sell in favour of the Defendant. It is the case of the Defendant herself that she entered into an oral Agreement to Sell with Sh. Rajesh Kumar Ganvir, who had no authority whatsoever to execute any such Agreement to Sell, in respect of the Suit Property.

37. Secondly, the entire case of the Defendant, is based on the Receipt dated 18.08.2014, Ex. DW1/1. Pertinently, when confronted with this Receipt, Sh. Rajesh Kumar Ganvir, had denied that this Receipt had his signatures at point C and point D. Even if for the sake of arguments, it is accepted that Rs. 27,00,000/- were given by the Defendant to Sh. Rajesh Kumar Ganviri vide the aforesaid Receipt, then too, it is a deal between them and in no manner, can it bind the Plaintiffs to such a deal to which they were never a privy. She cannot bind the Plaintiffs for a transaction, which has been done by some third person, who was neither authorized to do so nor was the owner of the suit property.

38. It has further, been rightly observed that whatever be the alleged money transaction between the Defendant and Sh. Rajesh Kumar Ganvir, the Defendant had a right to pursue her remedy against him, but such alleged act cannot in any way, bind the Plaintiffs.

39. Thirdly, the Defendant had denied having ever paid any rent to the Plaintiffs in respect of the suit property. However, the Plaintiffs had proved the Bank Statement, Ex.PW1/6 collectively, which had the Bankers stamp and was thus, admissible in evidence. This Bank Statement reflects that one transfer, by way of CDM, was made on 17.07.2015, for a sum of Rs.49,000/-, through mobile phone No. 9810277465, which the Defendant herself had admitted in her cross-examination, belongs to her.

40. If there was no relationship of landlord-tenant or if the Defendant had no knowledge about the Plaintiffs being the owners of the suit property, there was no reason for her to have made a transfer from her mobile phone, to the account of the Plaintiffs. Though it may be a single entry, but is sufficient to establish that the Defendant had entered into the suit property on the basis of an oral tenancy, created in her favour by Sh. Rajesh K Ganvir, the SPA Holder of the Plaintiffs, and that she had been paying rent for the same.

41. The learned Additional District Judge has thus, rightly held that initially, on the basis of aforesaid oral tenancy, the Defendant had been inducted as a tenant in the suit property, on a monthly rent of Rs.10,000/- for 11 months and thereafter, for the next 11 months, on a monthly rent of Rs.11,000/-.

42. There was admittedly, no Lease Agreement executed between the parties. Consequently, the Lease so created orally, was month to month. The Plaintiffs have proved Legal Notices dated 17.05.2016, 22.07.2016 and 12.12.2016 which were addressed to one, Ms. Suresh Kumar; and thereafter, the next six Notices from December, 2016 to May, 2018, which had been addressed to the Defendant.

43. The aforesaid Notices were exhibited as Ex. PW1/4 (colly), wherein it had been written that the Defendant was inducted as a tenant in the suit property with effect from 20.09.2014 till 19.07.2016, at a monthly rent of Rs.10,000/-, for 11 months and thereafter, enhanced monthly rent of Rs.11,000/- for the next 11 months.

44. The tenancy being month to month stood validly terminated, through the aforesaid Legal Notices and finally, through Legal Notice dated 01.06.2018, Ex. PW1/7. The Plaintiffs have successfully proved that the tenancy of the Defendant, was validly terminated.

45. The Defendant has claimed that the Notices were neither served nor received by her. However, she has not been able to rebut the presumption of service of the aforesaid Legal Notices, admittedly sent at her correct address. Her conduct in not replying to any of these Legal Notices, further corroborates with the testimony of PW-1.

46. It is also relevant to note that though the Defendant claimed that there was an alleged Oral Agreement to Sell in August, 2014, however, she never ever sent any Notice to the Plaintiffs, for execution of the Sale Deed.

47. Though, it has been held that there existed no Agreement to Sell between the parties, however, even if it is presumed that there existed such an Agreement, the conduct of the Defendant in remaining silent for all the years till the filing of a Written Statement on 01.02.2019, to raise a plea of an Oral Agreement to Sell, further, reinforces that there existed no such Agreement. Even if, there was any such Agreement to Sell authorized or unauthorized, no specific performance till date, has been sought by the Defendant.

48. The learned Additional District Judge has rightly observed that the Defendant has not been able to establish any Oral Agreement to Sell, but she is admittedly in possession of the suit premises since August, 2014. Even if it is held that she was not inducted as a tenant in the Suit Property then, her too her possession becomes that of an unauthorized occupant, as she has not been able to establish any legal basis for her possession.

49. Therefore, the learned Additional District Judge has rightly held that there existed a relationship of landlord-tenant between the Plaintiffs and the Defendant; therefore, the Suit for Possession has been rightly decreed in favour of the Plaintiffs.

50. Insofar as, the Recovery of Arrears of rent is concerned, it has been noted that during the period from 20.09.2014 to 19.07.2016, the Plaintiffs were entitled to a total rent of Rs.2,31,000/-. However, the record shows that the Defendant has paid a sum of Rs.3,15,000/-, which is in excess by Rs.1,84,000/-. Therefore, it has been rightly held that there were no arrears of rent payable by the Defendant.

51. The learned Additional District Judge further, has rightly taken this figure of Rs.11,000/- per month, which was the last paid rent, as the amount for ascertaining the mesne profits, to be paid by the Defendant, after adjusting a sum of Rs.1,84,000/-, from 20.07.2016 till the vacant possession of the suit property, is handed over to the Plaintiffs. Conclusion:

52. In view of the aforesaid discussion, there is no merit in the present Appeal, which is hereby dismissed. Pending Application(s), if any, are also disposed of, accordingly.

JUDGE JULY 27, 2026 Va/RS