Full Text
HIGH COURT OF DELHI
Date of Decision: July 3, 2023
M/S DENTEDGE HEALTHCARE PVT. LTD & ANR. ..... Appellant
Through: Mr. Vishal Chaudhary and Mr. Vivek Jha, Advs.
Through: Mr. Sekhar Dasi, Mr. S.K. Gupta and Mr. Ayush Dasi, Advs.
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA V. KAMESWAR RAO, J. (ORAL)
JUDGMENT
1. This appeal has been filed by the appellants challenging the order dated September 6, 2022 of the District Judge (Commercial Court)-03, Patiala House Courts, New Delhi in CS (COMM) NO. 133/2022 whereby the learned District Judge has decided the application filed by the appellants herein under Order VII Rule 11 CPC and by the respondent herein under Order XII Rule 16 read with Order XV(A) CPC.
2. The suit has been filed by the respondent herein for possession of flat bearing No. 8/78, First Floor, Janpath, New Delhi and recovery of damages etc. against the appellants herein. The case of the respondent before the learned District Judge is that RFA (COMM) 49/2023 Page 2 he is the owner of the above flat and the same was let out to the appellants on August 1, 2016 on monthly rent of ₹31,000/exclusive of water, maintenance and other charges vide lease deed dated August 12, 2016. Initially, the flat was let out to appellant No.2 vide lease deed dated May 17, 2016. The appellant No.2 vide her letter dated June 20, 2016 expressed her inability to continue with the tenancy and on her request, the tenancy was changed in the name of the appellant No.1 with the lease deed signed by the appellant No.2 on behalf of the appellant No.1. As per the lease deed, the rent would be increased by 5% after the expiry of every year.
3. The case of the respondent before the learned District Judge was that since March, 2020, the appellant No.1 stopped paying rent and a sum of ₹7,16,100/- for the period from March 1, 2020 to December 31, 2021 became due and payable by the appellants. The appellants also stopped paying the electricity charges which made the respondent pay ₹41,142/- on December 9, 2019, ₹22,800/- on August 6, 2020, ₹4,923/- on October 27, 2023 and ₹6,106/- on January 19, 2021, totalling ₹74,971/- to the NDMC to avoid disconnection. Despite repeated requests, the appellants did not clear the outstanding liabilities either.
4. It is stated that a notice was issued on December 13, 2021 calling upon the appellants to pay the arrears of rent, electricity charges etc. totaling to ₹8,00,336/- along with interest and also terminating the tenancy from the midnight of December 31, 2021, RFA (COMM) 49/2023 Page 3 calling upon them to hand over the vacant and physical possession of the tenanted premises.
5. It was the case of the respondent that w.e.f January 1, 2022, the occupation of the appellants in the tenanted premises became unauthorised and they are liable to pay mesne profits / damages.
6. A written statement was filed by the appellants wherein it is stated that the respondent has not shown any document regarding ownership of the property. The alleged transaction that took place between the parties is not commercial in nature. The lease deed is an unregistered document and has no evidentiary value. The respondent did not comply with the provisions of Section 12(A) of the Commercial Courts Act, 2015 before filing the suit. It was also stated that appellant No.2 admitted the execution of the lease deed of the property and the tenancy was transferred in the name of the appellant No.1 and a fresh lease deed was executed.
7. It was the case of the appellants that during the period of tenancy, the plaintiff / respondent on several occasions offered to sell the property to the appellants, but since the carpet area of the property was less than the requirement of the appellants, they declined. In February 2020, respondent again approached them with a proposal for making an investment of ₹20 lakhs in the property, whereby the carpet area of the property would be doubled by making structural changes and adding a mezzanine floor. It was also proposed to sell the property for a consideration of ₹35 lakhs. The appellants accordingly made an investment of ₹20 lakhs. RFA (COMM) 49/2023 Page 4
8. It is stated that after entering into an understanding, the lease deed and relationship of the landlord and tenant came to an end. After February 2020 neither did the respondent demand rent nor the appellants paid any. When the respondent failed to honour his commitment, they filed an application before the Police Station, Barakhamba Road, New Delhi on June 26, 2020. It was also their case that the respondent was asked to provide the title documents of the property and enter into a sale agreement as promised by the respondent, but the respondent did not do so.
9. The learned District Judge has dismissed the application under Order VII Rule 11 and allowed the application under Order XII Rule 6 read with Order XV(A) of the CPC by stating in paragraph 13 onwards as under:
10. Mr. Vishal Chaudhary, learned counsel appearing for the appellants would submit that it is the specific case of the appellants that the respondent had agreed to sell the property in question by an oral agreement and since such an issue is triable issue, the application under Order XII Rule 6 read with Order XV(A) could not have been allowed. In support of his submission, he has relied upon the judgment of the Supreme Court in the case of Karan Kapoor v. Madhuri Kumar, Civil Appeal No. 4645/2022 decided on July 6, 2022. That apart, he submits that there is no admission of the appellants to enable the District Judge allow the application under the said provision. In this regard he has drawn our attention to the application filed under Order XII Rule 6 CPC and reply to the application filed by the appellants herein. He states that the impugned order is required to be set aside relegating the parties to trial.
11. On the other hand, Mr. Sekhar Dasi, learned counsel appearing for the respondent would justify the order passed by the learned District Judge by stating that there was no agreement written or otherwise, between the parties wherein the respondent had decided to sell the property in question to the appellants. RFA (COMM) 49/2023 Page 10 According to him, even an agreement to sell of an immoveable property is required to be executed by way of a registered deed. In the absence of any proof / evidence that such an agreement was executed, the plea advanced on behalf of the appellants cannot be accepted. That apart, it is the conceded case of the appellants that they have not initiated any litigation seeking specific performance of the so-called oral agreement. He submits that it is a settled law that till such time the ownership of the appellants is established, there is a presumption based on the lease deed, that the relationship between the parties is that of landlord and tenant and it is the lease deed which would govern the same. He submits that the appellants have admitted the relationship of the landlord and tenant with the respondent herein. Even the rent is not disputed. That apart, termination of tenancy has been admitted. It necessarily follows that there is no defence available to the appellants to justify their continuance after the termination of the tenancy. In support of his submissions, he has relied upon the following judgments:
1. Mohd. Raza and Ors. v. Geeta reported as AIR 2021 SC 4826
2. Sanjiv Pathak v. Som Nath & Ors. Reported in 2013 (204)DLT 667
3. Raghubir Rai v. Prem Lata & Anr. reported as 2014 (211) DLT 516 (DB)
12. Learned counsel for the parties have filed their written submissions during the hearing. The same are taken on record.
13. Having heard the learned counsel for the parties and perused the record, we are of the view that the learned District RFA (COMM) 49/2023 Page 11 Judge is justified in dismissing the application under Order VII Rule 11 CPC and allowing the application under Order XII Rule 6 read with Order XV(A) of the CPC. This we say so because of the conclusion drawn by the learned District Judge, which we have already reproduced above.
14. In so far as the reliance placed by the learned counsel for the appellants on the Judgment of the Supreme Court in the case Karan Kapur (supra) is concerned, the same has no applicability in the facts of this case, inasmuch as in the said case, it is clearly held that the parties therein had executed the agreements to sell in respect of property in question and as such, the defence taken is plausible which is required to be decided in the Trial. But it is not such a case of the appellants here. It was in that factual scenario Supreme Court was of the view that the issue is a triable one and it needs to be decided at the time of trial.
15. The issue which falls for consideration in the facts of this case can be seen from the perspective of the Judgment relied upon by the learned counsel for the respondent in the case of Mohd. Raza and Ors. (supra) wherein in paragraph 9, the Supreme Court has held as under: “It is to be noted at this stage that defendant No.2 cannot be said to be the owner as her suit for specific performance is yet to be decided by the learned Trial Court. Unless and until there is a decree passed in her favour and the decree for specific performance is passed and/or the sale deed is executed pursuant to such a decree, she cannot be said to be the owner of the suit property. Till the suit for specific performance is decided, the plaintiff – respondent herein RFA (COMM) 49/2023 Page 12 continues to be the owner and defendant No.1 – appellant herein continues to be the tenant. In the written statement in paragraph 1, it is specifically stated by the defendants that the defendants are not „now‟ the tenant of the plaintiff but the actual owner of the suit property. As observed hereinabove, till the suit for specific performance is decided in favour of the defendants, more particularly defendant No.2, she cannot be said to be the owner and that therefore the plaintiff – respondent herein continues to be the owner and defendant No.1 continues to be the tenant. Therefore, the aforesaid is rightly treated as an admission on behalf of the defendants with respect to the ownership of the plaintiff and that defendant No.1 is a tenant. Therefore, the High Court as such has rightly passed the decree on admission under Order XII Rule 6 of CPC which in the facts and circumstances of the case cannot be said to be erroneous. However, at the same time, when the substantive suit filed by defendant No.2 against the plaintiff for specific performance is pending, it is to be observed that the decree passed by the High Court by the impugned judgment and order shall always be subject to the outcome of the said suit filed by defendant No.2 against the plaintiff and if ultimately she succeeds in the suit, and a decree for specific performance is passed and the learned Trial Court passes the decree for possession (if prayed), then necessary consequences shall follow and the plaintiff, subject to filing the appeal, shall have to abide by the decree that may be passed in the suit for specific performance. It also goes without saying that any injunction granted by the learned Trial Court in the suit filed by defendant No.2 for specific performance of the contract shall also not be affected unless subsequently the order of injunction if any in favour of defendant No.2 is modified by the learned Trial Court.” (emphasis supplied) RFA (COMM) 49/2023 Page 13
16. Concedingly, no suit has been filed seeking specific performance of the so-called agreement to sell. The rent and termination of the tenancy having not been denied by the appellants, the foregone conclusion is that the appellants could not have continued to hold the property in question. In fact, learned counsel for the appellants had not made any submission on the merit of application under Order XII Rule 6 of CPC.
17. We do not see any merit in the appeal. The same is dismissed. No costs.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J JULY 3, 2023