Full Text
HIGH COURT OF DELHI
Date of Decision: September 12, 2023 (1) RFA(COMM) 167/2023, CM APPL. 40831/2023
BRIJ MOHAN SARNA..... Appellant
Through: Mr. Uttam Dutt, Adv. with Mr. Amitabh Krishn, Mr. Rajeev Singh, Mr. Kumar Bhashkar and
Ms. Sonakshi Singh, Advs.
Through: Mr. Amulya Dhingra, Mr. Diwakar Singh and Mr. Abhishek Dev, Advs.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO, J. (ORAL)
JUDGMENT
1. This appeal has been filled by the appellant challenging the judgment / decree dated May 8, 2023, whereby the learned District Judge (Commercial Court)-02, West Tis Hazari Courts, Delhi (‘Commercial Court’, in short), while disposing of the application under Order XIII A of the Civil Procedure Code, 1908 (‘CPC’, for short) by rendering a summary judgment has granted the possession of the suit premises in favour of the respondent herein and a preliminary decree of possession has been passed. RFA(COMM) 167/2023 Page 2
2. Mr. Uttam Dutt, learned counsel for the appellant has made the following submissions while contesting the impugned judgment / decree;-
(i) The Commercial Court failed to appreciate that the suit property bearing Room No.4, Building No.31, Raja Garden, New Delhi- 110015, measuring 264 sq.ft.(32.[6] ft x 8.10 inches approx.) (‘suit property’, for short) is a residential property and is not being used exclusively for the purpose of trade or commerce.
(ii) The Commercial Court failed to appreciate that the rent receipts filed by the respondent/plaintiff, clearly shows that the suit property is a residential room No.4 which was being let out to the father of the appellant, exclusively for residential purpose which was later inherited by the appellant along with other legal heirs of Late Gobind Ram Sarna, who were never made a party to the suit.
(iii) The Commercial Court failed to appreciate that the sale deed produced by the respondent / plaintiff itself, reflects that the suit property is a residential property and the father of appellant was residing in the said property since 1973. Hence, in that sense, the dispute is not a commercial dispute for the Commercial Court to entertain the same.
(iv) The Commercial Court failed to appreciate the objections taken by the appellant / defendant in his written statement regarding the jurisdiction of the Commercial Court to entertain the suit as the rent of the suit property is ₹2,438/- per month, which is less than ₹3,500/- hence, the appellant has the protection under RFA(COMM) 167/2023 Page 3 Delhi Rent Control Act, 1958, and as such the Commercial Court could not have entertained and the suit was liable to be rejected under Section 50 of the Delhi Rent Control Act.
(v) The Commercial Court failed to appreciate that in 2017, the defendant and the plaintiff along with her son came to an understanding that the previous rent was paid to them along with interest @13% compounded annually. As the appellant requested for repairs in the rented room, the respondent asked the appellant to bear the expenses of the repairs which was agreed to by the appellant. Accordingly, ₹10,000/- (₹2,216/towards the rent and ₹7,784/- towards the repair) per month were being extorted by the respondent / plaintiff. The appellant paid ₹10,000/- per month for two years and thereafter, stopped paying rent as no repairs which were promised were carried out. Despite the above said oral agreement / understanding, the respondent by inducing the appellant has shown ₹10,000/towards rent. Hence, there is a triable issue which requires trial and can only be proved by adducing evidence and as such the present suit filed by the respondent is not covered under the ambit of Order XIII-A of the CPC and as such the impugned judgment / decree is liable to be set aside.
(vi) The Commercial Court in passing the impugned order has also overlooked the rent agreement dated June 22, 1982 and the rent receipt. The Commercial Court failed to appreciate that the respondent / plaintiff has not placed on record, any conversion charges paid in respect of the suit property. RFA(COMM) 167/2023 Page 4
3. Having noted the submissions made by Mr. Dutt and perused the record, there is no dispute that the parties have entered into a rent agreement in the year 1982. It is the case of the respondent herein that the suit property was initially leased out for a period of 11 months to the father of the appellant vide rent agreement dated June 22, 1982, which was inherited by the appellant, and from time to time, monthly rent was enhanced from ₹675/- to ₹10,000/-, which was the last paid rent including water, electricity and other statutory charges.
4. The appellant is running a shop in the name and style of M/s. Pawan Motors in the suit property and most of the cheques are tendered by the appellant from the current account in the name of his firm “Pawan Motors” against rent receipts.
5. Mr. Dutt, on the issue that the suit is not a commercial suit as the suit property is a residential property, and even otherwise even if the suit property is situated in a mixed land use, without there being conversion charges, the nature of property continues to be residential, and usage according to the respondent is commercial still the same being a contrary law, shall not fall within the definition of “Commercial dispute” defined under Section 2 (1) (c) (vii) of Commercial Courts Act, 2015 (‘The Act of 2015’, for short). In support of this submission, Mr. Dutt has relied upon the judgment in the case of Mrs. Soni Dave v. M/s. Trans Asian Industries Expositions Pvt. Ltd., (2016) SCC OnLine Del 4282.
6. We are not impressed by the said submission of Mr. Dutt for the reason that, Section 2 (1) (c) (vii) clearly contemplates that, commercial dispute means a dispute arising out of agreement relating RFA(COMM) 167/2023 Page 5 to immovable property being used exclusively in trade or commerce. The finding of the Commercial Court, in this regard is in paragraph 9 of the impugned order, which we reproduce as under:-
7. For the purpose of determining whether the dispute falls within the definition of Section 2 (1) (c) (vii) of the Act of 2015, the requirement is that the immoveable property is exclusively used in trade or commerce. The relevant evidence placed on record; do indicate that the suit property is exclusively being used for commercial purpose, as the appellant is running a shop in the name and style of M/s. Pawan Motors. No evidence has been placed by the appellant to show otherwise. RFA(COMM) 167/2023 Page 7
8. Additionally, we note that the affidavit which has been filed in support of the appeal does not state that the appellant is a resident of Room No.4, Building No.31, Raja Garden, New Delhi-110015. Rather we find that the written statement filed by the appellant before the Commercial Court shows that the appellant to be the resident of B-89, Sushant Lok-III, Ground Floor, Sector 57, Gurgaon and presently at Delhi. In that sense, the petitioner is not a resident of Room No.4, Building No.31, Raja Garden New Delhi-110015.
9. The plea of Mr. Dutt is that the respondent has not filed any evidence to show that, she had made payment for change of user of property from residential to commercial and in the absence of the same, the property being a residential property, and to that extent, the property user is not as per law, even if, it is being used exclusively for trade or commerce, the same would not qualify as “an immoveable property used exclusively in trade or commerce” within the meaning of the Section 2 (1) (c) (vii) of the Act of 2015.
10. The plea though looks appealing on a first blush but on deeper consideration and the fact that the plea of the respondent is that the suit property is situated on the main Najafgarh Road having Road of width
60 Meter and falls in the approved Commercial Streets in Zone-G (West Zone) and as such permitted to be used for commercial purposes, can be a mere irregularity and not an illegality. So, the judgment of this Court in Mrs. Soni Dave (supra) is distinguishable.
11. Even otherwise, Mr. Dutt does not forcefully contest the stand taken by the respondent that the suit property is situated in a mixed use zone. In that sense, the property can be used for trade or commerce. If RFA(COMM) 167/2023 Page 8 that be so, merely not placing the evidence on record, for paying of charges for user conversion, would not make the usage in violation of law.
12. Having said that the learned counsel for the respondent has heavily relied upon the cheques issued by the appellant on behalf of M/s. Pawan Motors. On the issue of rent be ₹10,000/-, the learned Commercial Court has in paragraph 10 stated as under:-
RFA(COMM) 167/2023 Page 9
13. We agree with the above finding of the learned Commercial Court, inasmuch as the appellant has himself signed the rent receipts depicting the rent of ₹10,000/-. It must follow that the rent was ₹10,000/-.
14. Our above conclusion shall answer all the submissions advanced by Mr. Dutt. We do not see any merit in the appeal, the same is dismissed. CM APPL. 40831/2023 Dismissed as infructuous.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J SEPTEMBER 12, 2023