Deenar Builders Pvt. Ltd. v. Khoday Distileries Limited

Vikramajit Sen, J.— This is a suit for possession of the Basement of B-2/1, B-2/2 and B-2/3, (measuring 1555 sq. ft.) of Deenar Bhawan, 44, Nehru Place, New Delhi together with mesne profits from 1.7.92 and recovery of maintenance and other charges. It has been averred in the Plaint, that the monthly rent was Rs. 5441/- (Rs. Five thousand four hundred forty one only) which was liable to be increased by 15 per cent after the expiry of three years in the event of the lease being renewed; that renewals did take place from time to time culminating in the rent last paid being Rs. 8274/- (Rs. Eight thousand two hundred Seventy four only) per mensem. Service charges were payable by the Defendant @ 40 paise per sq. ft. with effect from 1.12.1991, apart from electricity consumption and difference in House Tax. The Defendant is alleged to have stopped paying rentals form November 1991 onwards. As a sequel, the lease was terminated through a notice dated 15.5.1992 issued by registered Post, calling upon the Defendant to hand over possession of these premises on the midnight of 30.6.1992

Another notice dated 26.11.1992, for handing over possession of the premises and for payment of monthly damages @ Rs. 10 per sq. ft. i.e Rs. 15,550/- (Rs. Fifteen thousand five hundred fifty only) from 1.7.1992 is stated to have been issued by the Plaintiff to the Defendant. Yet another notice appears to have been dispatched demanding vacation of the premises on 30.4.1993, and mesne profits Rs. 20/- per sq. ft. with affect from 1.5.1993 The arrears have been quantified at Rs. 7,50,856.33 (Rs. Seven lakhs fifty thousand eight hundred fifty six and Thirty three paise only) and further damages at the rate of Rs. 31,000/- (Rs. Thirty one thousand only) per month.

The claims of the Plaintiff have been disputed/denied by the Defendant in its Written Statement in the context of the service charges since the demised premises are stated to have been water logged due to lack of maintenance; electricity dues stated to have been paid till July 1992 whereafter the connection was discontinued; and that the Lease Deed fastened liability for payment of House Tax on the Plaintiff. Thereafter there is a bald averment that all rents have been paid till the Written Statement; it has been admitted that some defaults did occur, which were due to financial difficulties of the Defendant. The receipt of the notices dated 15.5.1992 and 26.11.1992 have not been denied, but its validity has been cryptically assailed, presumably for the reason that there was no occasion to justify its issuance. There is only an evasive denial of the service of the notice dated 18.3.1993 and of the date on which the cause of action arose, which in my opinion, is not sufficient to give rise to an ‘issue’ on these points.

In this backdrop, the Plaintiff has filed an application under order XII Rule 6 of the Code of Civil Procedure for the passing of a decree of possession of the suit premises, on the basis of ‘admissions’ contained in the Written Statement. In its reply to this application, the Defendant has contested it, inter alia, on the submission that the Plaintiff has failed to maintain the premises as a consequence of which it got flooded and goods worth about Rs. 15 lakhs were lost; electric supply was discontinued, that the suit was in effect to preempt the Defendant filing a claim for damages; that the Plaintiff cannot get a decree without proving the averment in the plaint. It has been pleaded that “the notice of termination sent by the Plaintiff is not a valid notice under Section 106 of the Transfer of Property Act,” which obviously contains an admission that it had been received.

In the extant statutory regime, tenancies are governed either by the Delhi Rent Control Act or the Transfer of Property Act. Where the monthly rental, at the time of the filing of the action is not above Rs. 3500/-, it is the former Act which applies with all its attendant rigours for obtaining eviction of the Tenant. After the decision in D.C Bhatia v. U.O.I J.T 1993 (7) SC 114, it is irrelevant when the tenancy commenced and at what initial rent.

In the category of cases governed by the Transfer of Property Act, the tenant must be able to disclose that its tenure is protected by the covenants in a legally referable/readable Lease Deed. The fulcrum of the tenants’ defence remains this document alone. If the Lease Deed pertains to a tenancy tenure exceeding eleven months, and it has not been registered, it cannot be read in evidence and the tenant is relegated to position of continuing in possession at the will sufferance of the landlord, from month to month. This is of great significance where renewals have allegedly been carried out, since such renewals are required to be evidenced in strict adherence to statutory stipulations. Where the renewal is to take effect for a period in excess of eleven months it ought to be through a registered document, unless it is predicated on the renewal cause of the Lease Deed, which renewal is not capable of controversy. The compulsion of registration is not an empty punctilio.

It obviates the adoption of a stand that an oral agreement took place, which agreement would perforce require the reception of testimony from both adversaries, a testimony which is intrinsically self-serving and therefore pregnant with underpendibility. The formality for reducing agreed terms to writing, and excluding oral evidence to controvert written terms has its genesis in the medieval Statute of Frauds. It is incumbent on the Court that frivolous defences should be sternly dealt with, and that the observations of the Supreme Court that litigation should not be allowed to linger on for no purpose, and should be put to an end at its earliest. In T. Arivandandam v. T.V Satyapal & Anr., (1977) 4 SCC 467, Justice Krishna Iyer had directed that if on a reading of the plaint it is manifestly vexatious and meritless in the sense of not discloing a clear right to sue, the Court should exercise its power under Order VII of the Code. In that case the plaint was rejected by the Apex Court. These provisions were also resorted to in the case of I.T.C Limited v. Debts Recovery Appellate Tribunal & Ors., (1998) 2 SCC 70.

Now to revert to the case in hand. Since it is a Transfer of Property Act tenancy, a suit for possession is maintainable either if its tenure has expired by efflux of time, or being a tenancy at will, from month to month, it has been determined by service of a valid notice to quit. I have already observed that the Defendant has only cryptically stated that the notice was not valid, failing altogether to substantiate the grounds on which this assault is predicated. As a general rule, the Defendant should not be allowed to later expand on this assailment, and the Court would be justified is proceeding to decide the matter assuming the notice to be duly served and legally valid. Section 106 of the Transfer of Property Act reads as follows:

106: Duration of certain leases in absence of written contract or local usage:—In the absence of a contract or local law or usage to for contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days, notice expiring with the end of a month of tenancy. Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party. or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

The last notice is dated 18.3.1993, service of which is deemed to have been effected on the Defendant. It calls upon the Defendant to hand over possession on the midnight of 30th April, 1993, and since the tenancy undeniably corresponds to the calender month, it fulfills the requirement that the tenant is to hand over possession at the end of the tenancy month. Having been issued on or about 18th March, 1993, it affords the Tenant fifteen clear days. The notice therefore complies with statutory stipulations and validly terminates the tenancy. The Lease Deed has not been registered. At the time of arguments learned Counsel for the Defendant relied on this fact to submit that the suit was therefore not maintainable. There is no substance in this objection. The consequence of this fact is that the tenancy must be treated as a monthly one, which is terminable by service of a notice to quit. Once this formality is met, the suit is certainly maintainable, and would be liable to be decreed.

It this analysis, the Defendant has not disputed the relationship of landlord and tenant; the rental is over Rs. 3500/- per month; there is no subsisting tenure of the tenancy as envisaged in Section 111 of the Act; stated differently, the tenancy has been validly terminated by service of a notice to quit; this notice/forfeiture has not been waived by acceptance of rent. Not passing a decree of possession, and allowing the suit to meander mindlessly through the motions of recording evidence would be a dereliction of Judicial duty. The application is therfore accept and allow with costs in favour of the Plaintiff and against the Defendant, adjudged at Rs. 5000/-, to be paid within thirty days from today. A decree for possession shall be drawn up in accordance with Rules.