Full Text
. Date ofJudgment: 10.05.2016
KRISHNA RANI GROWER & ORS Petitioners
Through Mr.Sanjay S. Chhabra and Ms.Aishvary Vila-am, Advs.
Through Mr.Sanjeev Sindhwani,Sr. Adv.with Mr.T.K. Ganju,Adv.
JUDGMENT
1 Order impugned before this Court is the order dated 10.04.2015. Vide this order the application filed by the petitioner/plaintiffunder Order 12 Rule 6 of the CPC (hereinafter referred to as the 'Code') seeking a decree on admission had been dismissed.
2 The petitioner is aggrieved by this finding.
3 Record shows that the present suit is a suit for possession and recovery of mesne profits filed by the petitioner against the respondent (M/s Bata India Limited). The plaint discloses that the plaintiffs are the ownerslandlords ofshop bearing municipal No. 33, New Market, Tilak Nagar,New C.M.(M)No.603/2015 l'agelori[2] 2016:DHC:8596 Delhi (hereinafter referred to as the 'suit property'). The defendant is a public limited company. Suit premises are owned by the plaintiffs. There is no dispute on this score. The fact that the defendant is an old tenant is also undisputed. Parties had an earlier litigation which was a petition seeking eviction ofthe tenantfrom the suit premises(i.e. E.P.No.336/1993).
4 In the course oftrial ofthat eviction petition, a settlement was arrived at between the parties and a joint application under Order XXIII Rule 3 of the CPC had been filed. In terms of the aforenoted compromise, it was agreed that the defendant will pay a rent ofRs.17,000/- per month including house tax w.e.f 01.07.2001. There would be an enhancement of rent after every three years by 15%. The tenancy would be for a period of 12 years effective from 01.07.2001 with an option offurther renewal offive years on such terms as were mutually acceptable to both the parties and the defendant shall convey this option one month prior to the expiry ofthe said terms.
5 This is contained in para 7 ofthe plaint. Para 8 ofthe plaint discloses that period of12 years commencing from.01.07.2001 expired on 30.06.2013; this option given to the defendantto extend the tenancy was not exercised by him;there was nothing mutually acceptable to both parties; accordingly,the tenancy ofthe tenant came to an end by efflux oftime on 30.06.2013; legal C.M.(M)>Jo.603/2015 Page2of12 notice dated 30.07.2013 had been served upon the tenant, he failed to vacate the suit property; he had also failed to enhance the rent. Suit was accordingly filed.
6 Written statement was filed. Attention has been drawn to the corresponding paras 7& 8;they have been highlighted by the learned senior counsel for the respondent.In these paragraphs, it is stated that the defendant had exercised his option for renewal ofthe lease for another period offive years which had to now commence w.e.f. 01.07.2013 and this was duly communicated to the plaintiff. It was denied that the said tenancy had expired by efflux oftime. Submission being that the extended period oflease had come into operation which was the extended period offive years w.e.f. 01.07.2013.
7 Learned counsel for the petitioners points out that there are clear and unambiguous admissions made by the defendant in his written statement. r Submission being reiterated that admittedly the parties had agreed for a lease for a period of12 years which lease period was w.e.f.01.07.2001;this period of 12 years had expired on 30.06.2013. The option for renewal oflease was an option but the terms were to be mutually accepted to both the parties. Submission being that besides the fact that the defendant had not exercised C.M.(M)No.603/2015 Page3of12 his option to renew the lease, even otherwise this lease could only be renewed on mutual terms, which not having been agreed upon,there was no renewal. The petitioners/plaintiffs are thus entitled to a decree straight away.
8 Per contra, learned senior counsel for the respondent has drawn the attention of the Court to certain documents which include the joint application filed by the parties under Order XXIII Rule 3 ofthe CPC(in the eviction petition).
9 Para 2(a) of the application under Order XXIII Rule 3 of the CPC reads herein as under:- "That the petitioners undertake to this Hon'ble Court that they shall execute a lease deed infavour ofthe respondentfor a period of12 years effectivefrom 01.07.2001 with optionforfurther renewal byfive years on such terms as per mutually acceptable to the parties. The lessee/respondent shall convey the option in writing at least one month prior to the expiry of the term."
10 Relevant would it be also to note para 2(b) as both the parties had f relied upon it to canvass their respective arguments. In terms of this subpara (b), it had been agreed that the defendant would pay enhanced rent of Rs.17,000/- per month.
11 Para 2(d) has been relied upon by the respondent to support his argument that the right oftermination ofthe lease was available to the tenant C.M.(M)No.603/2015 Page4on[2] alone and not to the landlord. This sub-para reads herein as under "That it is expressly agreed that the petitioners as the lessorsshall not terminate the lease during the term granted and the extended term provided however the respondent as the lessee shall have the right to terminate the lease by giving to the petitioners as the lease at least two months prior notice."
12 Learned senior counsel for the respondent on this count submits that he alone had a right to terminate the lease. ^ 13 He had, however, exercised his option to renew the lease. Attention has also been drawn to a letter dated 10.05.2013 as also another letter dated 07.08.2013 addressed by the tenant to the landlord wherein he had sought a renewal ofthe lease.
14 A perusal ofthisjoint application filed by the parties clearly evidences that the option for a further renewal offive years w.e.f.01.07.2013 would be on such terms as per mutuallv acceptable to the parties. This line continued -j»- in para2(a)is definitely notredundant. For arenewal,thetermsshould have been accepted by both the parties; it could not be a unilateral act. It is thus clear that after the period of 12 years (which admittedly stood expired on 30.06.2013), it was only on mutually acceptable terms agreed to by each parties that the lease could be renewed for another period offive years. The letter dated 07.08.2013 addressed by the tenant to the landlords is also C.M.(M)No.603/20I[5] K) explicit. It clearly states that the tenant was making an offer of payment of enhanced rent ofRs.88,000/- per month. This letter is reproduced as under: "Smt. Krishna Rani Graver, Flat No.19, New Market, (Above Bata Store) Tilak Nagar, New Delhi Dear Madam, Sub: Renewal of Rent and other Lease terms & conditionsfor our Data ^ Store locatedatyourpremises bearingaddressasShopNo.33,(with area of 520sq.ft.). New Delhi, Tilak Nagar, New Delhi-110018 This is with reference to the renewal of rent and other lease terms & conditionsfor outBata Store located in yourpremises, address as mentioned above. We are offering the below mentioned rent alongwith other lease terms & conditions:
1. RenewedRent:-Rs.88,000/-per month w.e.f T'July,2013 T 2. Escalation ofRent:-15%afterevery threeyears.
3. Municipal Tax(es) Property Tax etc..-All taxes etc. related toproperty will be to you.
4. Seiwice Tax:- We allreimburse service tax(ifapplicable)to you.
5. Tenure oflease:-12years(3+3+3+3)w.e.f. F'Jidy2013to 30'^ June 2025 and the same shall be renewed asper mutually agreed terms and conditions.
6. Security Deposit:- Weshall bepayingRs.3,00,000/-(fully C.M.(M)No.603/2015 Pagc6on[2]
7. Arrears ofrent
8. Execution offresh- Lease Agreement
9. Stamp Duty & Registration Cost w refundable) security deposit which will be refunded back by you at the time ofour vacating the premises & giving back peacefulpossession to you. •- 3,32,545/-(weshallpay arrears ofrentw.e.ff June 2007to 30''^ June 2013). ■- Afresh lease agreement asper company's standard guidelines shall be executed between you as lessor and we as Lessee and the same shall be registered in due course of time (if required)..--Will be sharedequally between both lessor and Lessee. We are issuing 2(two) copies of this letter, one copy is to be sent back to us with our acceptance & confirmation andthe other copy isforyour records. For BataIndia Ltd. Agree & Acceptedby t DeepakDiwan AreaProject Manager (north & WestIndia) M-9811627390" Krishna Rani Gorver
15 This was an offer which had been made by the tenant to the landlords. It was only an offer and this is clear from the explicit language of this communication. C.M. (M) No.603/2015 16 The legal notice sent by the plaintiffs/petitioners(dated 30.07.2013)to the tenant is also relevant. It states that the tenant was paying rent of Rs.17,000/- per month but he had agreed to enhance it every three years by 15% but this enhanced rent had not been paid in terms of that lease deed which had now come to an end by efflux oftime on 30.06.2013. Shortfall of rent on this escalated figure has been detailed in para[4] ofthe legal notice for which a claim had been made.
17 Under Section 111(a)ofthe Transfer ofProperty Act, 1882,a lease of an immoveable property can be determined by efflux oftime. There is also no gain saying td the settled legal proposition that a renewal ofa lease deed can only be effected in writing. It has to be by a registered document. Section 49 of the Registration Act clearly pre-supposes a situation that an un-registered document of an immoveable property is inadmissible in evidence. f 18 Admittedly in this case after the lease of 12 years (executed on 01.07.2001) expired by efflux of time on 30.06.2013; there has been no renewal in writing. The documents refen-ed to supra and particularly the contents of para 2(a) of the application under Order XXIII Rule 3 of the CPC coupled with the letter dated 07.08.2013 (sent by the tenant to the C.M.(M)No.603/20I[5] PageSoflZ ^(V landlords) persuades this Court to hold that it was only an offer which the tenant was making to the landlord requesting him to renew the lease after 30.06.2013. It was an offer alone and this is clear from the language ofpara 2 (a) of the application (under Order XXIII Rule 3 of the CPC) which unambiguously states that it was on mutually agreed terms that the renewal ofthe lease would take place after 30.06.2013. The letter dated 07.08.2013 makes it still more explicit. This offer by itself could by no stretch of imagination become a contract. Until and unless that offer was accepted either explicitly or impliedly, it remained an offer alone. It would become a binding contract only after its acceptance. There was no such acceptance given by the landlords to the unilateral offer ofthe tenant.
19 The lease having stood determined by efflux of time under Section 111 (a)ofthe TPA,the tenant had become a tenant by sufferance. No notice to quit was required. However,going a step further and even presuming that r a notice to quit was required, the legal notice under Section 106 of the Transfer ofProperty Act(dated 30.07.2013)directing the tenant to handover the vacant and peaceful possession of the suit property was admittedly received by the tenant. At best, the case ofthe defendant would be that he had become a tenant on a month to month basis. Notice under Section 106 C.M.(M)No.603/2015 Page[9] of12 ■t"' had been duly served upon him.
20 Thus this Court is constrained to hold that after the lease of 01.07.2001 had expired by efflux of time on 30.06.2013, there was no renewal of the lease deed.
21 Reliance by the learned senior counsel for the respondent upon AIR 2015 SC 3678 S. M. Asif Vs. Virender Kumar Baj'ai as also another judgment of the Apex Court reported as (2010) 6 SCC 601 JeevanDiesels & Electriclas Ltd. Vs. Jasbir Singh Chadha (HUF) is misplaced. These judgments only lay down the proposition of law qua the manner in which an admission has to be dealt with under Order 12 Rule 6 of the CPC to which there is no dispute.
22 This Court also notes that until and unless, there are clear, unequivocal, unambiguous and transparent admissions, a decree under Order
12 Rule 6 of the CPC may not follow. This Court also reiterates that it is a discretionary power exercised by a Court while dealing with an application under Order 12 Rule 6 of the CPC. This discretion has to be exercised fairly and not arbitrarily. If it prejudices the right of another party and adversely affects him, this Court has ample powers to interfere in this discretion.
23 Having noted the aforenoted factual narration which is borne out from C.M.(M)No.603/2015 IS the pleadings ofthe parties as also the documents discussed supra,this Court is ofthe view that the Trial Court has committed an illegality in holding that issues have arisen qua the reliefofpossession. There appears to be no issue as admissions made by the defendant are clear and unequivocal. The defendant has admitted that there was a lease agreement between the parties in terms of a compromise which lease was for a period of 12 years w.e.f. 01.07.2001 up to 30.06.2013. That lease had come to an end. There was an ll' option of further renewal of five years on such terms as were mutually acceptable to both the parties. The defendant had made an offer but this offer had never been accepted by the petitioners. Since renewal could take place only on mutually,agreed terms,the offer remained an offer alone. It had not become a binding contract.
24 There is also no gainsaying in reiterating the legal position that a renewal of a lease of an immoveable property can only be effected in V" 1 writing. Admittedly,there is no such documentin writing.
25 Issues No. I to 5 framed by the Trial Court on 21.07.2014 have thus become redundant. This Court is ofthe view that the plaintiffs are entitled to a decree straight away qua the relief of possession. Issues No.I to 5 are accordingly deleted. The only issue which remains alive is the issue of C.M.(M)No.603/2015 Pagellofl[2] r mesne profit which reads herein as under:- "Whether the plaintiffis entitledfor a decree ofRs.5,00,000/- towards mesne profits/damages for unauthorized use and occupation of the suit premises w.e.f 01.07.2013 till the institution ofsuit and@ Rs.1,50,000/-per monthfrom the date offiling ofthe suit? OPD."
26 The petition is allowed and a decree of possession qua shop bearing municipal No. 33, New Market, Tilak Nagar, New Delhi is passed in terms ofthe application filed by the plaintiffs under Order 12 Rule[6] ofthe CPC.
INDERMEET KAUR,J MAY 10,2016 A