Full Text
13th February, 2018 TEXMACO INFRASTRUCTURE & HOLDINGS LTD. ..... Plaintiff
Through: Mr. Rohit K. Aggarwal and Mr. Mitash Charan, Advocate.
Through: Mr. Vinay Sabharwal, Advocate.
Defendant in person.
To be referred to the Reporter or not? YES VALMIKI J. MEHTA, J (ORAL)
I.A. No. 13267/2017 (U/o 12 Rule 6 CPC by the plaintiff)
JUDGMENT
1. This is an application under Order XII Rule 6 CPC filed by the plaintiff in a suit for recovery of possession and damages. By this application plaintiff/applicant prays that the suit be decreed so far as the same concerns the relief for possession of the suit property. Though the prayer clause is widely worded of this application, the counsel for the plaintiff concedes that through this application plaintiff only seeks a decree of possession of the suit property. The suit 2018:DHC:1087 property is the ground floor right side portion of Kothi No.2, Birla Mills Officers Compound, Mandelia Road, Kamla Nagar, Delhi- 110007 comprising of three rooms, store room, two bathrooms and kitchen etc. The site plan of the property is filed at
┌───────────────────────────────────────────────────────────────────────────┐ │ Serial no.2 of the list of documents. │ │ (ii) Considering the dishonest and frivolous defences raised by the │ └───────────────────────────────────────────────────────────────────────────┘
2. Plaintiff has pleaded that plaintiff is the owner of the suit premises in terms of a scheme of arrangement approved by the Delhi High Court’s order dated 3.1.1983 in Company Petition (CP) NO. 59/1982. It is pleaded that as per the order of this Court dated 3.1.1983, the right, title and interest of various properties of M/s Birla Cotton Spinning and Weaving Mills Ltd. were vested in the plaintiff, and which included the suit property being part of the properties at Serial no.1(a) of the Schedule II of the Scheme of Arrangement. It is pleaded that defendant in the suit was appointed by the plaintiff company as a Legal Assistant in terms of the appointment letter dated 1.5.2004. The defendant was given the suit property at a licence fee of Rs.100/- per month by the plaintiff company. Plaintiff company vide its letter dated 23.12.2016 requested the defendant to vacate the suit property as the same was required by the plaintiff company for its bonafide use. Since the defendant failed to vacate the suit property, therefore, the present suit for possession and damages came to be filed.
3. In the written statement filed by the defendant in the suit the suit is prayed to be dismissed on account of the following contentions:-
(i) Plaintiff is not the owner of the suit property but the suit property is owned by a partnership firm of M/s Birla Textile Mills and since therefore the plaintiff is not the owner of the suit premises, hence the suit is liable to be dismissed.
(ii) Plaintiff is also pleaded not to be the owner in terms of the
Supreme Court judgment dated 25.3.2010 whereby it is stated that companies such as the plaintiff have to surrender 68% of the entire land to DDA, and therefore, it is the DDA who is owner of the suit property.
(iii) Plaintiff is a tenant in the suit property with rate of rent being
Rs.100/- per month and the suit is barred by Section 50 of the Delhi Rent Control Act, 1958 and that the defendant thus has protection of the Delhi Rent Control Act.
(iv) Suit is not properly valued for the purposes of jurisdiction because plaintiff has deliberately over-valued the suit property to file the same in this Court. The correct valuation of the suit for the relief of possession as sought by the defendant has to be Rs.78,75,000/-.
(v) Defendant contents that since admittedly plaintiff has initiated proceedings under Section 630 of the Companies Act, 1956 against the defendant, therefore the plaintiff cannot pursue two remedies, and therefore this suit for possession is liable to be dismissed.
4. It is in these circumstances of the existent pleadings, and the documents filed, that this Court has to consider the present application under Order XII Rule 6 CPC. This Court also at this stage would like to note that the defendant is not a layman. The defendant is a law graduate and was appointed as a Law Assistant. Defendant is effectively a lawyer. If therefore this Court finds that a person who is well versed in law is using the process of law to abuse the process of law then this Court has to pass appropriate directions against the defendant at the conclusion of the present judgment.
5. The first issue is that whether a disputed question of fact arises that the plaintiff is not the owner of the suit property. In my opinion no disputed question of fact arises with respect to the plaintiff being the owner of the suit premises inasmuch as plaintiff has filed and this Court can take judicial notice of the order passed by this Court dated 3.1.1983 in CP No. 59/1982 approving the Scheme Of Arrangement whereby the suit property fell to the ownership of the plaintiff company. As already stated above the suit property falls as one of the properties at Serial no. 1(a) of the Schedule II of the Scheme of Arrangement approved vide order 3.1.1983 by this Court. Therefore, in my opinion, once there is finality to the order of this Court dated 3.1.1983 accompanied by the Scheme of Arrangement, and existence of which is not denied and could not be denied by the defendant, plaintiff has to be held to be the owner of the suit property.
6. Defendant has contended that it is not the plaintiff but one M/s Birla Textile Mills a partnership firm which is the owner of the suit property, however law is well settled that vague pleadings do not constitute sufficient pleadings. If the defendant contends that the suit property was owned by M/s Birla Textile Mills a partnership firm then it was not enough in the written statement merely to plead ownership of M/s Birla Textile Mills but it was also necessary to plead how M/s Birla Textile Mills became the owner and by virtue of which document inasmuch as an immovable property can be only owned by registered document as per Section 17(1)(b) of the Registration Act, 1908 and such facts and documents had to be mentioned categorically by the defendant. Except making bald and vague statements that the suit property is owned not by the plaintiff but by the partnership firm M/s Birla Textile Mills, nothing has been elucidated by the defendant in the written statement as to how M/s Birla Textile Mills is the owner of the suit property. Therefore since a vague pleading is not a pleading in the eyes of law, including because of Order VIII Rule 5 CPC, therefore the defence of the defendant in this regard does not raise any disputed question of fact which requires trial. This is all the more so because this Court has to take as final the ownership of plaintiff, including for the reason of bindingness of the order passed by this Court on 3.1.1983 in CP No. 59/1982 confirming the Scheme Of Arrangement whereby the present plaintiff company took over the assets etc of M/s Birla Cotton Spinning and Weaving Mills Ltd. 7.(i) Another contention of the defendant is that plaintiff is not the owner but the DDA is the owner of the suit property and this is stated in para 2 of the preliminary objections of the written statement and this para reads as under:- “2. Without prejudice to the above mentioned preliminary objection, it is submitted that as per the judgment of the Hon’ble Supreme Court dated 25.03.2010, a direction has been given to the owner companies to surrender 68% from the entire land, to the DDA. Assuming without admitting that the plaintiff had been the owner of the property/the land underneath, the ownership rights in respect of the same, in any event, vest with the DDA. It is therefore, the DDA who, in law, has to be treated as the owner of the suit property. The plaintiff, therefore, has no right, title and interest in respect of the suit property. The suit is therefore not maintainable and is liable to be dismissed summarily on this account as well.”
(ii) Once again, in my opinion these types of vague stands/defences taken in the written statement do not entitle a defendant to claim that disputed question of fact arises with respect to the ownership of the plaintiff company of the suit property. Such a defence does not merit to be a defence in the eyes of law including because of Order VIII Rule 5 CPC, and therefore such vague defence is rejected as not entitling the defendant to contend that there arises disputed question of fact which requires trial as regards the ownership of the suit property of the plaintiff company. In any case, once again, and at the cost of repetition, this Court has to take as final the order dated 3.1.1983 passed by this Court in CP No. 59/1982, and whereby it is the plaintiff company which will be the owner of the suit property. This defence of the defendant is therefore rejected that the issue of ownership raises a disputed question of fact requiring trial that the plaintiff is not the owner of the suit property and that it is the DDA which is the owner of the suit property.
8. At this stage, I would like to note that the plaintiff in para 4 of the plaint has specifically referred to appointment of the defendant as a Legal Assistant in terms of the appointment letter dated 1.5.2004 in the written statement. There is no denial that such a letter dated 1.5.2004 existed and was issued to the defendant with respect to the legal relationship of the defendant with the plaintiff company. Once the fact is that there exists a letter dated 1.5.2004 issued by the plaintiff company to the defendant then what are the terms of that letter have to be seen only from the letter itself in view of Sections 91 and 92 of the Indian Evidence Act, 1872. When we look at this document being the letter of appointment of the defendant dated 1.5.2004, and which is not specifically denied in the written statement, it is seen that defendant Mr. Rajesh Kumar Dudani has been appointed as a Legal Assistant by M/s Birla Textile Mills which is in the proprietorship of plaintiff company M/s Texmaco Ltd. The contents of this letter therefore have to be read against the defendant and the contents of this letter clearly state that defendant is only a licencee at a licence fee of Rs.100/- and not that the defendant is a tenant at Rs.100/- per month. In this view of the matter the contention of the defendant being a tenant at Rs.100/- per month is rejected on account of the undisputed document being the letter dated 1.5.2004 issued by the plaintiff company to the defendant.
9. So far as the termination of licence is concerned, the same was done by the plaintiff company in terms of its letter dated 23.12.2016 which is referred to in para 5 of the plaint and there is no dispute that the defendant has in fact received this letter dated 23.12.2016. The defendant only denies the contents of this letter as factually incorrect and illegal. Therefore, the defendant’s licence in the suit premises also stand terminated in terms of the letter dated 23.12.2016 issued by the plaintiff company to the defendant.
10. Now for the sake of arguments, let us assume that the defendant was a tenant in the suit property. The issue is that whether the defendant who was a tenant in the suit property, whether his tenancy would stand terminated in view of Section 111(g) of the Transfer of Property Act, 1882 which categorically provides that when a tenant denies the ownership of a person from whom the tenancy is given then the tenancy of such a tenant comes to an end. This is categorically held by a Division Bench of this Court in the case of Naeem Ahmed vs. Yash Pal Malhotra (Deceased) Through Lr's & Anr. 188 (2012) DLT 579. Therefore even if for the sake of argument if the defendant was a tenant but since the defendant has denied the ownership of the plaintiff of the suit property, hence the tenancy of the defendant comes of an end as per Section 111(g) of the Transfer of Property Act and in terms of the ratio of the judgment of the Division Bench of this Court in the case of Naeem Ahmed (supra).
11. That leaves us with the issue that whether this Court should not decide the application under Order XII Rule 6 CPC because the defendant contends that the suit has been overvalued because the valuation for the purpose of possession should be Rs.78,75,000/- and not Rs.[2] crores as is the case of the plaintiff. Firstly in my opinion, such technical defence should not be permitted for allowing of dishonest defendant to object to allowing of an application under Order XII Rule 6 CPC. Secondly and in any case this Court exercises its power under Section 24 CPC read with Article 227 of the Constitution of India to continue the suit in this Court so that ends of justice are not frustrated by the defendant taking up technical defences of lack of pecuniary jurisdiction of this Court.
12. So far as the argument of the defendant that the suit is barred because of plaintiff having availed the remedy under Section 630 of the Companies Act, once again this argument and defence is totally frivolous because law can surely provide more than one remedy for one cause of action or one set of facts may lead to arising of separate causes of action therefore the mere fact that the defendant is liable to be criminally prosecuted in a criminal complaint filed under Section 630 of the Companies Act by the plaintiff company, the defendant who is in illegal possession of the suit property, cannot contend that plaintiff cannot file a suit in a civil court for recovery of possession of the suit property. This argument of the defendant is also rejected. 13.(i) The aforesaid discussion shows that the defendant is a legally well-versed person. Defendant wants to cross all limits of dishonesty because the defendant wants to most illegally and dishonestly continue in possession of the suit premises although the defendant has no legal right to the same. Defendant being a legal person has endeavoured his best to create legal and factual defences as per the written statement, however surely law is that much substantive that a dishonest defendant should not be allowed to succeed on illegal grounds, and therefore, it is ordered that this application is allowed. Decree is passed in favour of the plaintiff and against the defendant with respect to the suit property being Kothi No.2, Ground Floor (Right Side Portion), Birla Mills Officers Compound, Mandelia Road, Kamla Nagar, Delhi-110007 and as shown in the site plan filed at Serial no.2 of the list of documents.
(ii) Considering the dishonest and frivolous defences raised by the defendant, who is not a layman but a legal person, this application is allowed with costs of Rs.[2] lacs in favour of the plaintiff and against the defendant.
(iii) Further, this Court also exercises its powers under Section 340
Cr.P.C and directs the Registrar General of this Court to file a criminal complaint against the defendant under Section 209 of the IPC for filing false defences i.e a false case. After drawing of the criminal complaint Registry will sent the criminal complaint to the competent court and thereafter plaintiff can pursue such criminal case as against the defendant.
14. At this stage, the matter is sought to be got passed over for the defendant to take instructions from his wife. After sometime, the matter has been called again and defendant states that the aforesaid judgment be not passed and the application under Order XII Rule 6 CPC can be allowed and the defendant agrees to vacate the suit premises along with his family members on or before 31.12.2018. It is also agreed that defendant till he occupies the suit premises will pay all charges towards electricity, water etc. It is also agreed that plaintiff does not claim any money decree against the defendant, but however in case the defendant fails to vacate the suit premises by 31.12.2018 or does not file an affidavit of undertaking as stated below, then the defendant will be liable to pay charges for use and occupation at Rs.30,000/- per month w.e.f 1.1.2018 and till the time vacant physical possession is given to the plaintiff of the suit premises.
15. Let the defendant and his wife Smt. Poonam Dudani file affidavits of undertaking in this Court within one week in terms of the present order. On filing the undertaking and complying with the terms of the same, time is granted to the defendant and his family members to stay in the suit premises till 31.12.2018. It is clarified that in case possession of the suit premises is not given to the plaintiff on or before 31.12.2018 then besides entitlement of the plaintiff to take possession, plaintiff will also be entitled to money decree with mesne profits being Rs.30,000/- per month w.e.f. 1.1.2018. In case such a money decree has to be executed plaintiff will pay appropriate court fee.
16. Suit is accordingly disposed of in terms of the aforesaid compromise order. All pending applications also stand disposed of.
FEBRUARY 13, 2018/ib VALMIKI J. MEHTA, J