Full Text
HIGH COURT OF DELHI
Date of Decision: September 03, 2021
M/S HIMANGNI ENTERPRISES..... Appellant
Through: Mr. Rajat Aneja, Adv. with Mr. Kartik Krishan Sood, Adv.
Through: Mr. Sandeep Sethi and Mr. Sudhir Nandrajog, Sr. Advs. with
2021:DHC:2728
Mr. Preet Pal Singh, Mr. Sameer Chaudhary, Ms. Tanupreet Kaur, Mr. Aaryan Sharma, Mr. Saurabh Sharma, Ms.Sonali Jain, Mr. Gaurav Sharma &
Mr. Siddharth Tandon, Advs.
CM No. 26748/2021 in FAO 175/2021 CM No. 26751/2021 in FAO 176/2021
CM No. 26754/2021 in FAO 177/2021 CM No. 26759/2021 in FAO 178/2021
CM No. 26764/2021 in FAO 179/2021 CM No. 26768/2021 in FAO 180/2021
CM No. 26775/2021 in FAO 181/2021 CM No. 26780/2021 in FAO 182/2021
CM No. 26785/2021 in FAO 183/2021 CM No. 26792/2021 in FAO 184/2021
CM No. 26795/2021 in FAO 185/2021 CM No. 26798/2021 in FAO 186/2021
CM No. 26803/2021 in FAO 187/2021 CM No. 26806/2021 in FAO 188/2021
CM No. 26811/2021 in FAO 189/2021 CM No. 26814/2021 in FAO 190/2021
CM No. 26874/2021 in FAO 191/2021 CM No. 26879/2021 in FAO 192/2021
CM No. 26882/2021 in FAO 193/2021 CM No. 26899/2021 in FAO 194/2021
CM No. 26928/2021 in FAO 195/2021 CM No. 26939/2021 in FAO 196/2021
CM No. 26991/2021 in FAO 197/2021 CM No. 26994/2021 in FAO 198/2021
CM No. 27360/2021 in FAO 199/2021 These applications have been filed by the appellant seeking condonation of 344 days delay in filing these appeals.
2021:DHC:2728
For the reasons stated in the applications, the delay of 344 days in filing the appeals is condoned.
Applications are disposed of.
JUDGMENT
1. As these appeals involve almost identical facts and issues and the parties in these appeals being the same, the appeals are being decided through this common order.
2. The challenge in these appeals arises from orders, (all) dated May 30, 2020 passed by the Addl. District Judge-07, South-East District, Saket Courts, New Delhi (‘ADJ’ for short) in the Civil Suit Nos. 8174/2018, 7263/18, 7752/2018, 2021:DHC:2728 FAO 175/2021 and connected matters 9213/2018, 6980/2016, 8180/2018, 7137/2018, 7954/2018, 9214/2018, 9216/2018, 7940/2018, 8181/2018, 9215/2018, 7976/2018, 9195/2018, 8176/2018, 6954/2018, 8182/2018, 9194/2018, 8179/2018, 6953/2018, 8178/2018, 9196/2018, 8177/2016 & 7221/2018 (all) titled as Kamaljeet Singh Ahluwalia v. Himangni Enterprises whereby the applications of the respondent (plaintiff in the civil suits) under Order XXXIX Rule 10 read with Section 151 of Code of Civil Procedure, 1908 (‘CPC’, for short) were allowed by the ld. ADJ directing the appellant (defendant in the civil suits) to pay arrears of rent and use and occupation charges to the respondent / plaintiff with respect to the following suit properties / units on the second floor in a commercial complex known as “OMAXE SQUARE” situated at Plot No. 14, nonhierarchical Commercial Centre, District Centre, Jasola, New Delhi – 110025 within a period of one year from the date of the said order as per the details given below:
┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Case Nos. / Unit Nos./ suit Amount Awarded Predecessor-in- Dt. Of execution │ │ No. Suit Nos. properties interest of sale deed │ ├──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. FAO 175/2021 Commercial Arrears of rent Sh. Mahesh Bajaj 16..09.2014 │ │ space/shop bearing @ Rs. 37,363/- per month │ │ CS. No. 8174/2018 No. SF-3, w.e.f. 18.09.2014 till │ │ admeasuring 385.19 29.07.2015 and use and │ │ square feet (super) occupancy charges from │ │ 29.07.2015 till 28.11.2018 │ │ 2. FAO 176/2021 commercial Arrears of rent @ Rs. Smt. Ratna Arora 18.02.2015 │ │ space/shop bearing 64,286/- per month w.e.f. │ │ CS. No. 7263/2018 no. SF-40, 20.02.2015 till 08.08.2015 │ │ admeasuring 535.72 and use and occupancy │ │ square feet (super) charges from 09.08.2015 till │ │ 28.11.2018 │ │ 3. FAO 177/2021 Commercial Arrears of rent @ Rs. Sh. Sunil Mittal 05.11.2014 │ │ space/shop bearing 28,753/- per month w.e.f. and │ │ CS. No. 7752/2018 No. SF-23A, 11.11.2014 till 29.07.2015 Sh. Rakhee Mittal │ │ admeasuring 296.42 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 4. FAO 178/2021 Commercial Arrears of rent @ Rs. Smt. Rachna Saha 05.03.2015 │ │ space/shop bearing 48,254/- per month w.e.f. │ │ CS. No. 9213/2018 No. SF-32, 10.03.2015 till 29.07.2015 │ │ admeasuring 497.46 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ FAO 175/2021 and connected matters Page 4 of 34 │ │ 2021:DHC:2 │ │ 5. FAO 179/2021 Commercial Arrears of rent @ Rs. Sh. Mitra Lal 16.09.2014 │ │ space/shop bearing 33,155/- per month w.e.f. Sharma │ │ CS. No. 6980/2016 No. SF-8, 17.09.2014 till 08.08.2015 │ │ admeasuring 341.80 and use and occupancy │ │ square feet (super) charges from 09.08.2015 till │ │ 28.11.2018 │ │ 6. FAO 180/2021 Commercial Arrears of rent @ Rs. Sh. Rajan Bajaj 31.12.2014 │ │ space/shop bearing 65,250/- per month w.e.f. │ │ CS. No. 8180/2018 No. SF-42, 13.01.2015 till 10.08.2015 │ │ admeasuring 450 and use and occupancy │ │ square charges from 10.08.2015 till │ │ feet (super) 28.11.2018 │ │ 7. FAO 181/2021 Commercial Arrears of rent @ Rs. Smt. Archana 05.03.2015 │ │ space/shop bearing 34,552/- per month w.e.f. Singhal │ │ CS. No. 7137/2018 No. SF-31, 10.03.2015 till 29.07.2015 and │ │ admeasuring 356.21 and use and occupancy Sh. Rahul Singhal │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 8. FAO 182/2021 Commercial Arrears of rent @ Rs. Sh. V.C. Mehta 30.10.2014 │ │ space/shop bearing 52,686/- per month w.e.f. │ │ CS. No. 7954/2018 No. SF-43, 11.11.2014 till 29.07.2015 │ │ admeasuring 501.77 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 9. FAO 183/2021 Commercial Arrears of rent @ Rs. Sh. Ranvir Singh 28.02.2015 │ │ space/shop bearing 13,766/- per month w.e.f. │ │ CS. No. 9214/2018 No. SF-6, 02.03.2015 till 29.07.2015 │ │ admeasuring 141.92 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 10. FAO 184/2021 Commercial Arrears of rent @ Rs. Smt. Alka Jain 05.03.2015 │ │ space/shop bearing 28,753/- per month w.e.f. and │ │ CS. No. 9216/2018 No. SF-29, 10.03.2015 till 29.07.2015 Sh. Ruchir Jain │ │ admeasuring 296.42 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 11. FAO 185/2021 Commercial Arrears of rent @ Rs. Sh. Mahesh Mittal 13.11.2014 │ │ space/shop bearing 43,371/- per month w.e.f. │ │ CS. No. 7940/2018 No. SF-4, 21.11.2014 till 29.07.2015 │ │ admeasuring 447.12 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 12. FAO 186/2021 Commercial Arrears of rent @ Rs. Sh. Sanjeev 03.11.2014 │ │ space/shop bearing 42,981/- per month w.e.f. Malhotra │ │ CS. No. 8181/2018 No. SF-30, 11.11.2014 till 29.07.2015 │ │ admeasuring 296.42 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 13. FAO 187/2021 Commercial Arrears of rent @ Rs. Sh. Joginder Bir 17.10.2014 │ │ space/shop bearing 32,624/- per month w.e.f. Kaur │ │ CS. No. 9215/2018 No. SF-25, 18.10.2014 till 29.07.2015 │ │ admeasuring 336.33 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 14. FAO 188/2021 Commercial Arrears of rent @ Rs. Sh. G.R. Lakshmi 30.10.2014 │ │ space/shop bearing 45,619/- per month w.e.f. │ │ CS. No. 7976/2018 No. SF-45, 11.11.2014 till 10.08.2015 │ │ admeasuring 470.30 and use and occupancy │ │ square feet (super), charges from 10.08.2015 till │ │ 28.11.2018 │ │ 15. FAO 189/2021 Commercial Arrears of rent @ Rs. Sh. Sanjay Goel 17.10.2014 │ │ space/shop bearing 32,013/- per month w.e.f. and │ │ CS. No. 9195/2018 No. SF-23, 18.10.2014 till 29.07.2015 Smt. Jyoti Goel │ │ admeasuring 296.42 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 16. FAO 190/2021 Commercial Arrears of rent @ Rs. Sh. Rajan Bajaj 31.12.2014 │ │ space/shop bearing 68,855/- per month w.e.f. │ │ CS. No. 8176/2018 No. SF-28, 14.01.2015 till 10.08.2015 │ │ admeasuring 474.86 and use and occupancy │ │ FAO 175/2021 and connected matters Page 5 of 34 │ │ 2021:DHC:2 │ │ square feet (super), charges from 10.08.2015 till │ │ 28.11.2018 │ │ 17. FAO 191/2021 Commercial Arrears of rent @ Rs. M/s. Unique 31.12.2014 │ │ space/shop bearing 39,661/- per month w.e.f. Alloys Pvt. Ltd. │ │ CS. No. 6954/2018 No. SF-2, 14.01.2015 till 29.07.2015 │ │ admeasuring 317.29 and use and occupancy │ │ square feet (super), charges from 29.07.2015 till │ │ 28.11.2018 │ │ 18. FAO 192/2021 Commercial Arrears of rent @ Rs. Smt. Geeta Tiwari 18.02.2015 │ │ space/shop bearing 62,904/- per month w.e.f. │ │ CS. No. 8182/2018 No. SF-17, 21.02.2015 till 29.07.2015 │ │ admeasuring 648.49 and use and occupancy │ │ square feet (super) charges from 29.07.2015 till │ │ 28.11.2018 │ │ 19. FAO 193/2021 Commercial Arrears of rent @ Rs. Smt. Sunila Goela 23.02.2015 │ │ space/shop bearing 59,159/- per month w.e.f. │ │ CS. No. 9194/2018 No. SF-37, 02.03.2015 till 29.07.2015 │ │ admeasuring 492.99 and use and occupancy │ │ square feet (super), charges from 29.07.2015 till │ │ 28.11.2018 │ │ 20. FAO 194/2021 Commercial Arrears of rent @ Rs. Sh. Aman Khera 03.11.2014 │ │ space/shop bearing 79,450/- per month w.e.f. │ │ CS. No. 8179/2018 No. SF-Com-1, 11.11.2014 till 29.07.2015 │ │ admeasuring 820 and use and occupancy │ │ square feet (super), charges from 29.07.2015 till │ │ 28.11.2018 │ │ 21. FAO 195/2021 Commercial Arrears of rent @ Rs. Smt. Kamlesh 31.12.2014 │ │ space/shop bearing 32,624/- per month w.e.f. │ │ CS. No. 6953/2018 No. SF-26, 28.11.2014 till 29.07.2015 │ │ admeasuring 336.33 and use and occupancy │ │ square feet (super), charges from 29.07.2015 till │ │ 28.11.2018 │ │ 22. FAO 196/2021 Commercial Arrears of rent @ Rs. Sh. Daman Kumar 11.11.2014 │ │ space/shop bearing 84,393/- per month w.e.f. │ │ CS. No. 8178/2018 No. SF-39, 11.11.2014 till 10.08.2015 │ │ admeasuring 544.47 and use and occupancy │ │ square feet (super), charges from 10.08.2015 till │ │ 28.11.2018 │ │ 23. FAO 197/2021 Commercial Arrears of rent @ Rs. Sh. Inderdeep 24.02.2015 │ │ space/shop bearing 37,732/- per month w.e.f Singh Modi │ │ CS. No. 9196/2018 No. SF-24, 24.02.2015 till 29.07.2015 and │ │ admeasuring and use and occupancy Sh. Rajneesh │ │ 388.99 square feet charges from 29.07.2015 till Chopra │ │ (super), 28.11.2018 │ │ 24. FAO 198/2021 Commercial Arrears of rent @ Rs. Sh. Anil Kumar 05.11.2014 │ │ space/shop bearing 61,217/- per month w.e.f. Chopra │ │ CS. No. 8177/2016 No. SF-27, 11.11.2014 till 29.07.2015 │ │ admeasuring 631.10 and use and occupancy │ │ square feet (super), charges from 29.07.2015 till │ │ 28.11.2018 │ │ 25. FAO 199/2021 Commercial Arrears of rent @ Rs. M/s. Jai Ambey 31.12.2014 │ │ space/shop bearing 85,781/- per month w.e.f. Construction │ │ CS. No. 7221/2018 No. SF-1, 14.01.2015 till 29.07.2015 │ │ admeasuring 686.25 and use and occupancy │ │ square feet (super), charges from 29.07.2015 till │ │ 28.11.2018 │ │ 3. The facts as noted from the appeals are, Suits were │ └──────────────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
8.[2] of the lease / agreements by the respondent under which it has been agreed between the predecessors-in-interest of the respondent and the appellant that in case the lessee fails to make the payment of rent on the due date then the lessor shall give a notice of such default to the lessee and the lessee may pay within 90 days. However, no such notice qua the rent or arrears of rent had ever been issued by either the respondent or the predecessors-in-interest at any point of time. Mr. Aneja had also stated that the ld. ADJ had failed to take into consideration that the case of the respondent was based on the sale deeds which were allegedly executed by the predecessorsin-interest of the respondent in his favour. As per clause 4 of the sale deed (for example, dated February 24, 2015), it was clearly mentioned that the vendor (predecessor-in-interest) of the respondent has handed over the vacant and physical possession of the suit properties to the vendee (respondent / plaintiff). However, it was an admission that the suit properties were under the physical possession of the tenant WIPRO Ltd. and the said possession of the suit properties was delivered by the WIPRO Ltd. to the appellant on March 18, 2015 and in the FAO 175/2021 and connected matters light of the aforesaid, there was no question of delivery of possession of the suit properties by the predecessor-in-interest of the respondent to him on February 24, 2015. Therefore, the execution of the alleged sale deed on the basis of which the said suit was filed was under cloud. In view of the uncontroverted material on record, the ld. ADJ has committed an error in allowing the application under Order XXXIX Rule 10 CPC.
16. Mr. Aneja has also stated, it was the stand of the respondent that Rajesh Arora, the partner of the appellant represented that WIPRO Ltd. is interested in taking on lease the suit properties and that Rajesh Arora can get all the units leased out to WIPRO Ltd. and shall take his brokerage by way of service charges for facilitating and working out the modalities of the lease with WIPRO Ltd. It was further averred by the respondent that Mr. Rajesh Arora is in discussion with other unit holders in the said commercial complex and will try to facilitate their leases also since WIPRO Ltd. is interested in taking a substantial chunk of the commercial complex on rent. According to Mr. Aneja, it was apparent that the respondent himself admitted that the role of appellant was merely that of an agent.
17. Mr. Aneja concluded his arguments by stating that the appeals filed by the appellant need to be accepted and the impugned orders passed on the applications filed by the respondent under Order XXXIX Rule 10 CPC need to be set aside.
18. Mr.Sandeep Sethi, learned Senior Counsel appearing for the respondent in some appeals would submit that the respondent had filed the suits for ejectment of the appellant, who was a tenant, from different units; for recovery of rent and mesne profits at market rate on the ground that the appellant is in unauthorized occupation. In a suit for ejectment, what has to be seen is whether there is a landlord-tenant relationship and the tenancy has been terminated. According to him, both the requirements have been met in the cases in hand as can be seen from various documents filed on record. He stated that the lease deeds executed between the appellant and the predecessors-in-interest of the respondent (which are identical in respect of all units) are registered deeds and as the nomenclature itself suggest the same were “lease deed”. That apart, clause 2.[1] of the same suggest the payment of lease rent @ Rs.37,732/- (in FAO 197/2021) by the appellant to the respondent and it is this amount as depicted in all the lease deeds pertaining to the units in all the appeals which have been granted by the ld. ADJ.
19. He laid stress on the fact that the payment of rent by the appellant was not subject to use by WIPRO Ltd. Mr. Sethi has also referred to Clause 8.[2] of the lease deed (in FAO 197/2021) which is a stipulation governing termination of lease in the eventuality, the appellant (lessee) failing to make payment of the lease rent which shall result in the appellant handing over the vacant possession of the premises (units). Mr.Sethi has also highlighted the fact that on an application FAO 175/2021 and connected matters filed by the respondent under Order XII Rule 6 CPC, the possession of the units / premises was granted in favour of the respondent vide order dated August 20, 2018 which order has not been challenged by the appellant, and to that extent the same has attained finality. Mr. Sethi stated, reliance placed by Mr.Aneja on the MoU dated October 12, 2015 is misconceived as the same was not the part of the defence / written statements filed by the appellant. In fact, according to him, there is no counter claim of the appellant in the suits. Even the attempt of the appellant to seek amendment of the written statements was rejected by the ld. ADJ on July 19, 2018 and the appeals thereof have been dismissed.
20. Further, Mr. Sethi by contesting the MoU would submit, even otherwise the appellant Himangni Enterprises was not a signatory to the said MoU, i.e., the parties herein are not bound by the same. He has drawn my attention to the order dated August 03, 2018 of this Court in CM (M) 880/2018 wherein this Court has rejected the challenge to the order dated July 19, 2018 and has noticed that the suit and the MoU have no connection, as the subject manner of the suit was completely different.
21. In substance, it is his submission, that Mr.Aneja cannot rely on MoU. He also stated, in fact, no issue has been framed in the suits for Mr.Aneja to argue that the respondent has to pay the amount as sought to be claimed by the appellant. He stated if a party intend to setup a case different from landlord and tenant, it has to specifically plead and place evidence in FAO 175/2021 and connected matters that regard. He has relied upon the judgment in the case of Sudhir Sabharwal v. Rajesh Pruthi, 218 (2015) DLT 290. Mr. Sethi has also relied upon the order dated January 20, 2020 of a Coordinate Bench of this Court in transfer petition being TR.P.(C.) 7/2020 whereby the transfer petition of the appellant seeking transfer of 28 suits (including these) to this Court on the ground of pendency of suit being CS (COMM) 1218/2018, Rajesh Arora & Ors. v. Kamaljeet Singh Ahluwalia & Ors., was dismissed by noting that the decree of ejectment has been passed against the appellant which has been given effect to in terms of order dated November 28, 2018 passed in CS (COMM) 1218/2018 and also it do not find any overlapping issues in the two suits.
22. According to him, under Order XVA CPC, the Court not only can direct payment of admitted rent but can also direct something more than that by referring to the judgment in the case of Raghubir Rai v. Prem Lata & Ors., 211 (2014) DLT 516. On similar proposition, he relied upon the judgment in the case of Sunil Kapoor v. Himmat Singh & Ors., 2010 SCC OnLine Del 354. It is his plea that the appellant cannot take recourse to the pending suit (being CS (COMM) 1218/2018) to frustrate the provisions of Order XVA CPC. In conclusion he stated that the impugned order is not perverse in nature but based on reasons and seeks the dismissal of the appeals.
23. Mr.Sudhir Nandrajog, learned Senior Counsel appearing for the respondent in some other appeals would FAO 175/2021 and connected matters contest the case setup by the appellant in the appeals, that it has a claim of Rs.20 Crores against the respondent, by stating the same is untenable in view of the provisions of Order VIII Rule 6 CPC, which requires the case has to be setup in the pleadings at the first instance. Concedingly, the case as being argued, has not been pleaded in the written statements. The attempt of the appellant to plead such a case by way of amendment has been rejected, so also the appeal therefrom.
24. Mr.Aneja in rejoinder submissions stated that even if the appellant is precluded from relying upon the MoU, surely the appellant is within its right to cross examine the witnesses of the respondent on the same as it is the case of the appellant that there is no relationship of tenant and landlord between the parties but that of a principal and agent and the amounts sought in the suits are not payable.
CONCLUSION
25. Having heard the learned counsel for the parties, and perused the record, the only issue which arises for consideration in these appeals is, whether the ld. ADJ is justified in allowing the applications of the respondent (in the suits filed by him) under Order XXXIX Rule 10 read with Section 151 CPC and grant the arrears of rent and use and occupation charges in his favour till the date of possession of the units / suit properties to him.
26. The respondent has filed Suits for ejectment possession, recovery of arrears and permanent injunction on the strength of lease deeds executed in respect of the properties / units by his predecessors-in-interest. The respondent purchased the units / suit properties from the predecessors-ininterest by way of registered sale deeds. It was the case of the respondent that the tenancies have come to an end with efflux of time and the appellant neither paid nor tendered monthly rentals to the predecessors-in-interest or to him from different dates with regard to different units. Despite notices, the appellant had not vacated the unit / properties.
27. There is no dispute that the appellant, handed over the possession of the units / properties on November 28, 2018 after the application of the respondent under Order XII Rule 6 was allowed which order was given effect to in the order dated November 28, 2018 in CS (COMM) 1218/2018 of this Court.
28. The plea of Mr.Aneja in substance is that the ld. ADJ could not have passed the impugned orders in view of the documents filed on record by the appellant including the MoU dated October 12, 2015 by which a compromise was entered between the respondent and Rajesh Arora, whereby the respondent undertook to pay Rs.20 Crores to Rajesh Arora who in turn agreed to handover the units situated at the second floor of OMAXE SQUARE. That apart, the MoU does not stipulate, the payment of arrears of rent due, qua the suit properties.
29. I am not impressed by this submission of Mr.Aneja; firstly there is no stand / claim of the appellant based on the MoU as a defence or as a counter claim(s) in the written statements and as such no issue has been framed in that regard, FAO 175/2021 and connected matters for determination by the Court. Secondly, even otherwise, the MoU has not been filed by the appellant in the suits. The attempt of the appellant to seek amendment of written statements based on MoU was rejected by the ld. ADJ vide order dated July 19, 2018 wherein in para 12 the ld. ADJ has stated as under: “12. This judgment is squarely applicable to the case in hand. However, even if we consider this application on merits, it is an admitted fact that this application has no concern with the defendant firm whatsoever or with the subject matter of the present case. The present suit has been filed for eviction of the defendant firm from the suit premises. The WS filed earlier contained no reference to these two companies. By moving this application, the defendants wishes to file MoU entered into between the parties out of court, however, this document does not find mention of these cases pending before this court specifically. There is no mention with respect to disputes pending between the plaintiff and defendant herein in this MoU. It is pertinent to mention here that as per the application of the defendant Mr Rajesh Arora was Managing Director of the two companies namely Arora and Associates Realty Ltd. and M/s Innovating Thermal Coatings Pvt Ltd known as ARC Arora Projects Pvt Ltd. It is pertinent to mention here that companies are distinct legal entities separate from its shareholders/directors. This MoU- is between the plaintiff and Mr Rajesh Arora and is not even accompanied board resolution in favour of Mr Rajesh Arora to act on behalf of the company. The court itself cannot contemplate or take into consideration that this MoU includes the settlement in respect of present FAO 175/2021 and connected matters case as well. Even if this settlement is taken to be true, the amendments proposed to be made in the written statement in this case are not related to the defendant firm. The subject matter of the suit pending in this court is completely different. Therefore, this court do not find any merits in this application. Hence, application is dismissed.” (emphasis supplied)
30. The above reveals a finding of the Court below, that the MoU on which reliance is placed by Mr. Aneja does not include a settlement in respect of the suits filed by the respondent herein. It is also a finding that the MoU is not related to the appellant (defendant firm) which means, the amount is not payable to the appellant. This finding of the Court has attained finality with the rejection of CM (M) 880/2018 on August 03, 2018.
31. The ld. ADJ has dealt with the submission, as now made by Mr. Aneja in para 25 which I reproduce as under: “25. Another argument of the defendant’s counsel is that there was no admission in respect to the rent and a memorandum of understating was executed between one of the partners of the defendant and the plaintiff and as per that MOU, defendant was not required to pay any rent till it received the same from Wipro. As far as this argument is concerned, first of all, the MOU relied upon by the defendant is not a part of defence of the defendant of all in this case. It was attempted to be put on record by way of moving an amendment application which was disallowed. The order of dismissal was challenged by the defendant however of no avail and that order has also attained finality. Apart from this, the FAO 175/2021 and connected matters defendant tried to club the present case alongwith the suit for recovery filed by the defendant against the plaintiff before the Hon’ble High Court of Delhi but the application for transfer was dismissed by the Hon’ble High Court of Delhi vide its order dated 20.01.2020.”
32. Insofar as the submission of Mr.Aneja that the ld. ADJ has failed to consider the order dated November 28, 2018 passed in CS (COMM) 1218/2018 of this Court seeking the relief of specific performance in respect of MoU dated October 12, 2015 which is still pending and the appellant is entitled to prove his defence during cross examination of the witnesses of the respondent, which right cannot be taken away is concerned, the said submission of Mr.Aneja is overlooking the fact that the appellant had failed in its attempt to bring on record the said MoU through amendment. Even the revision petition was dismissed. The ld. ADJ while rejecting the argument has in para 26 stated as under: “26. As far as the lease deed executed between the defendant and predecessor in interest of the plaintiff is concerned, there can not be any contest to the same as it was placed on record by the defendant itself & the rate of rent is mentioned therein. So, defendant can not fall on any MOU for absolving itself from its liability to pay the arrears.”
33. I agree with the aforesaid conclusion of the ld. ADJ. As the application under consideration was under Order XXXIX Rule 10 CPC for payment of arrears of rent / use and FAO 175/2021 and connected matters occupation charges, till the possession of the units was given to the respondent, based on the admitted rent in the lease deed executed between the predecessors-in-interest of respondent and the appellant, the ld. ADJ has rightly granted the amounts by holding that the appellant cannot fall back upon MoU and absolve itself from its liability to pay the arrears.
34. The plea of Mr. Aneja that, the Trial Court could not have precluded the appellant from producing or relying upon the documents already on record in support of his defence which is principally that the appellant is an agent only and not a tenant is also not appealing. This I say so, in view of the conclusion of the ld. ADJ while deciding application under Order XII Rule 6 CPC of the respondent herein, wherein in para 23 to 27 ld. ADJ has held as under: “23. Relationship of landlord and tenant between the parties: Ld Sr. Advocate for the defendant has argued that lease deed executed between the predecessor in interest of the plaintiff and that of defendant is not a lease deed, in its true spirit and it is a contract of agency. In order to decide whether the lease deed in question was in fact a lease deed or a contract of agency, certain facts are important which are placed herein under:-
24. First of all, it is pertinent to mention here that it was a registered lease deed for a period of three years which had already expired on 14.07.2013. Section 105 of the Transfer of the Property Act provides here as under:- "A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid FAO 175/2021 and connected matters or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasion to the transfer by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined:- The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."
25. First condition is that it should be of an immovable property which is satisfied here. Second, it is a transfer of right to enjoy such property. Transfer of possession of unit in question from predecessor of plaintiff to defendant is not denied. In the lease deed specific period of three years have been mentioned with a further clause of allowing the lessee i.e. defendant to sub let the same to Wipro Ltd. The consideration amount is in the form of rent which was Rs. 37,732/- per month. All the conditions mentioned in the Section 105 of Transfer of Property Act stands satisfied. Merely having a clause of sub letting does not make it contract of agency. It is pertinent to mention here that an agent has no right to retain the property whatsoever unless otherwise stated or proved. The defendant has filed documents along with its written statement. A lease deed entered between it (defendant) and M/s Wipro was executed in pursuance of the lease deed executed between the parties herein. This lease deed (between defendant and M/s Wipro) specifically provides that M/s Himangi Enterprises i.e. defendant is a lessor. At one place i.e. in the written statement, defendant alleges that property was taken for giving it to Wipro as an agent, however, in the lease deed executed between the defendant and Wipro, it specifically shows that defendant is a lessee. This fact is neither disputed nor explained in any FAO 175/2021 and connected matters manner. Defendant cannot be allowed to approbate & reprobate at the same time. Merely taking a plea in this case that a registered lease deed is a contract of agency is inconsequential. The execution of the same has not been denied. This is an attempt to bring it within the ambit of Section 202 of Indian Contract Act, where agent has an interest in the subject matter. But this argument or interpretation is an absolute fallacy. Registered lease deed has to be read in the manner in which it is written in view of Section 91 & 92 of Indian Evidence Act, 1872. Therefore, it stands established that predecessor in interest of the plaintiff and defendant had a relationship of landlord and tenant between them.
26. This lease deed expired by efflux of time on 14.07.2013, however, admittedly no fresh lease deed was executed between the parties and the defendant became a month to month tenant. Plaintiff purchased this property on 18.02.2015 from the predecessor and got the sale deed registered on 24.02.2015 and at that time defendant was a month to month tenant. It is pertinent to mention here that in a separate suit filed by defendant against Wipro, the property stood vacated on 18.03.2015 by the order of Hon'ble High Court of Delhi and possession lies with the defendant thereafter. Though, it is argued that possession has been taken forcibly by one M/s Godfrey at the instance of plaintiff, however, it is not substantiated by any document and merely remains an averment which is denied by plaintiff. As far as Naspuri Dharmaiah (Supra) is concerned, in this case it was not clear as to who is in the possession of the property, however, in the present case documents and the pleadings reveals that property has already been handed over by M/s Wipro to defendant on 18.03.2015 in pursuance of the order of Hon'ble High Court of Delhi in another case filed by the defendant herein against FAO 175/2021 and connected matters M/s Wipro. The plea of forcible dispossession of defendant by M/s Godfrey in connivance with plaintiff is not substantiated. Therefore, this judgment is not applicable.
27. It is also argued that no deed of adherence was signed by subsequent purchaser i.e. plaintiff in view of clause 6.[2] of the lease deed. In this regard, it is worthwhile to note here that when the plaintiff purchased the suit property, this lease deed had already expired and none of the terms of the lease deed with respect to any compliance was binding on the plaintiff. The reading of the entire lease deed together clearly shows that it was a rent agreement. The relationship of landlord and tenant between the parties stands established.”
35. There is a conclusive finding of the Trial Court that there is a relationship of landlord and tenant between the parties. This finding has not been disturbed, as no appeal has been filed. The said finding is also not interfered with in the order dated November 28, 2018 in CS (COMM) 1218/2021. So, the plea of Mr.Aneja that the appellant was only an agent, is liable to be rejected. The plea of Mr.Aneja that; (i) after the aforesaid order dated August 20, 2018 was passed, this Court in the suit bearing CS (COMM) 1218/2018, with the consent of the parties disposed of an interim application being I.A.15170/2018 vide order dated November 28, 2018, which clearly reveals the issue, of handing over of possession of the suit properties, was put to rest and there was no necessity to challenge the order dated August 20, 2018 and; (ii) the ld. ADJ without appreciating erroneously held that the order passed in FAO 175/2021 and connected matters the application under Order XII Rule 6 was never challenged and therefore observation made therein had attained finality are concerned, the same are unmerited as in the order dated November 28, 2018 this Court in paragraphs 9 and 10 has also stated as under: “9. It is also informed that there is a decree for ejectment in favour of the defendants and against the plaintiff no.4 Himangi Enterprises with respect to the aforesaid flats.
10. It is clarified that the execution of the decree will be in terms of above.”
36. From the above, it is clear that this Court was conscious that a decree of ejectment has been passed against the plaintiff No.4, i.e., Himangni Enterprises appellant herein with respect to flats / units and that the execution of the decree will be in terms of the above, i.e., the decree of ejectment in favour of the respondent herein. In other words, this Court has not varied the order passed by the ld. ADJ in the application under Order XII Rule 6 CPC. Hence, I am in agreement with the conclusion of the ld. ADJ that the order passed on application under Order XII Rule 6 CPC has attained finality.
37. The argument advanced by Mr.Aneja that the lease deed executed between the predecessor in interest of the respondent and the appellant, was not a lease deed as envisaged under Section 105 of the Transfer of Property Act, 1882 as the same is only a contract of agency for the purpose of looking after and managing the suit properties, is also without merit for the reasons already stated above.
38. The plea of Mr.Aneja that the other owners of individual units of the second floor of the commercial complex had in similar and identical manner appointed the appellant as their agent to collect rent, which fact has not been appreciated by the ld. Trial Court is also unmerited in view of clear stipulation in lease deed and the conclusion already drawn by the ld. ADJ on the application under Order XII Rule 6.
39. Insofar as the plea of Mr. Aneja, with regard to the date of possession is concerned, the order dated November 28, 2018 is very clear wherein in para 7 this Court has clearly stated that defendants will take the possession of their flats, which presupposes till that date, the possession of the flats was not taken by the defendants, who included the respondent herein. Hence, the ld. ADJ has rightly granted the use and occupation charges till November 28, 2018.
40. In the end, I may refer to the judgment of this Court in the case of Sunil Kapoor (supra), wherein this Court has held that pendency of suit for specific performance is not a bar for suit for ejectment. The relevant paragraph of the said judgment is reproduced as under: “20. Though the aforesaid two judgments of the Division Bench of this Court are on injunction application in suits for specific performance, but the principles laid down therein would apply here. The jurisdiction, if any, to stay eviction pending a suit for specific performance is of the court where the suit for specific performance is pending and the court where the suit for ejectment/eviction is pending ought not to restrain its hands merely FAO 175/2021 and connected matters because the suit for specific performance has been filed.”
41. In the case of Nutan Tyagi v. Nirmala Dabas, 232 (2016) DLT 60, wherein it was similarly held as under: “38. Thus, while allowing the appeal, it is clarified
(i) that the pendency of the suit for specific performance will not come in the way of the suit for ejectment filed by the respondent/defendant against the appellant/plaintiff and/or in execution of the decree therein………”
42. In view of my above discussion, I do not see any illegality / perversity in the orders passed by the ld. ADJ in the appeals. The appeals and connected application(s) are accordingly dismissed. No costs.
V. KAMESWAR RAO, J