Vishwanath Khanna & Sons, Huf vs Bank Of Baroda
1998 Latest Caselaw 43 Del

ORDER

J.B. Goel, J.

1. By this order application (IA No. 2613/97) under Order 12 Rule 6 of the Code of Civil Procedure (for short 'the Code') filed by the plaintiff seeking a decree of possession on admission is being disposed of.

2. Plaintiff, a Joint Hindu Family has filed the suit through its Karta Shri Vishwanath Khanna. The case of the plaintiff is that the plaintiff is the owner and had let out the premises, part of property No. H-11, Con-naught Circus, New Delhi to the defendant with effect from 2.3.1987 at a monthly rent of Rs. 58,000/- and subsequently a registered lease deed was also executed on 25.10.89 whereby the lease was agreed for 7 years commencing from 2.3.1987. The lease expired on 1st March, 1994, but the defendant did not vacate and hand over the possession inspite of notice of demand dated 7.9.94. Plaintiff besides a decree of possession has also claimed damages @ Rs. 150 per Sq. Ft. with effect from 2.3.94.

3. The defendant has filed written statement contesting the suit on various pleas, both legal and on fact. It is alleged that the suit has not been signed, verified and instituted by duly authorised person; plaintiff is not a HUF nor Shri Vishwanath Khanna is its Karta; the suit is not properly valued for purposes of court fee and jurisdiction as the suit against defendant as a trespasser should have been valued on the market value of the property. It is admitted that the aforesaid lease deed was executed. It is further alleged that plaintiff through Mr. Rajesh Khanna on 9.5.1995 had agreed for continuance of the tenancy at enhanced rent @ Rs. 60/- per Sq. Ft. per month which was agreed by the defendant vide letter dated 6.6.95 and according to this agreement the defendant was to vacate the premises on completion of their own building at B-3, Connaught Place, New Delhi; the defendant is a month to month tenant. Thus it is denied that the defendant is liable to vacate or to pay damages as claimed.

4. In the application under Order 12 Rule 6 it is alleged that the defendant has made admissions of material facts and the claim for possession is entitled to be decreed under Order 12 Rule 6. Defendant in reply has stated that in view of the pleas taken in the written statement the plaintiff is not entitled to a decree of possession.

5. Learned counsel for the plaintiff has argued that on the admissions made by the defendant, the plaintiff is entitled to decree of possession; various pleas taken by the plaintiff apart from being malafide and vexatious are not tenable in law and need no investigation on trial. He has relied on M/s. Sun Chandra and Company Vs. Punjab & Sind Bank 1996 (5) AD (Del) 323; Surjit Sachdev Vs. Kazakhstan Investment Services Pvt. Ltd. & Ors. , R.N. Sachdeva Vs. Ram Lal Mahajan Charitable Trust ..... and Smt. Shanti Devi Vs. Amul Kumar Banerjee AIR 1981 SC 1550.

6. Whereas learned counsel for the defendant has contended that there is no clear and unambiguous admission on the part of the defendant; there is dispute that the lease has been extended and various pleas taken in defense raise triable issues which require evidence and trial; also that the suit is not maintainable for the reasons pleaded in the written statement and as such Order 12 Rule 6 is not attracted. He has relied on M/s. Sagar Enterprises (P) Ltd. Vs. Canara Bank 1997 (1) AD 529; Dena Bank Vs. M/s. Bindal Construction (P) Ltd. and Smt. Radhey Lal Vs. M/s. Jassop & Company .

In para 1 of the plaint the plaintiff has pleaded that the plaintiff is a HUF and Shri Vishwanath Khanna is its Karta, in para 2 it is pleaded that the plaintiff is the owner and landlord of the premises in question; in para 3 it is pleaded that the plaintiff had let out to the defendant the premises in question at a monthly rent of Rs. 58,000/- with effect from 2.3.87 and in para 4 it is pleaded that after sometime a registered lease deed dated 25.10.89 containing the terms and conditions was also executed between the plaintiff and the defendant and in para 5 it is pleaded that as per this lease deed the duration of the lease was agreed for 7 years with effect from 2.3.1987 and the rate of rent was Rs. 58,000/-.

7. In para 1 of the written statement it is denied that the plaintiff is a HUF or Shri Vishwanath Khanna is its Karta; in para 2 it is admitted that the defendant has been paying rent to the plaintiff, in para 3 it is pleaded that the premises was let out by Shri Rajesh Khanna S/o Shri Vishwanath Khanna, in para 4 execution of the lease deed is admitted and in para 5 it is pleaded that the contents of para 5 of the plaint are a matter of record which means that it has admitted the duration of the lease being 7 years ending on 1.3.94 and rate of rent is also admitted.

8. Certified copy of the lease deed dated 25.10.89 has been filed by the plaintiff. Its execution and contents are not disputed. This lease deed is executed between Shri Vishwanath Khanna & Sons, HUF through its Karta Shri Vishwanath Khanna as the "lesser" and the Bank of Baroda as the "lessee" and on its behalf it is signed by Shri V.S. Mukhi Sr. Manager-cum- constituted attorney.

9. The defendant is estopped under Section 116 of the Indian Evidence Act from denying the title of the lesser. The lesser as per the lease deed is Vishwanath Khanna & Sons, a Joint Hindu Family represented by its Karta Shri Vishwanath Khanna. The factum of HUF and the fact that Shri Vishwanath Khanna is its Karta is admitted in this lease deed. The parties are bound by it and cannot bring about a change of the rights and obligations flowing from the registered lease deed. Thus the defendant cannot be heard to say that the plaintiff is not HUF or Shri Vishwanath Khanna is not its Karta. The manager of the HUF property is called Karta and the karta is entitled to sue as representing the HUF in respect of a transaction entered into by him as manager of the family or on behalf of joint family. Under Order 30 Rule 1 of the Code a suit by partners can be instituted in the name of the firm. This rule applies also to a HUF trading firm in Delhi and Punjab by virtue of the explanation added in the Rule by the Lahore High Court with effect from 12.05.1909. This suit thus could be instituted by the plaintiff in the name of HUF. It could also be filed by its Karta in his name. The suit has been filed in the name of HUF through its Karta Shri Vishwanath Khanna. Assuming that a suit cannot be instituted in the name of the HUF, in that case the description of the plaintiff by the name of HUF would be a mere misdescription which in law can be corrected and for that matter suit cannot be dismissed as not maintainable. ( Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, )

10. The defendant has pleaded that the property was let out by Shri Rajesh Khanna S/o Shri Vishwanath Khanna but it is admitted that the rent is being paid in the name of HUF. Obviously, according to this also the HUF is entitled to receive rent and it must be the lesser. In the presence of his father, Shri Rajesh Khanna would not be the Karta of the HUF nor entitled to bind the HUF. His father Shri Vishwanath Khanna is the Karta and the suit filed by him as Karta of HUF is properly and validly instituted.

11. The aforesaid lease deed executed between the parties provided that this lease is for 7 years commencing from 2.3.87. It expired by efflux of time on 1.3.94, by reason of Section 111(a) of the Transfer of Property Act and as such service of notice under Section 106 of that Act is not necessary for determination of such lease.

12. The other plea is that "after service of notice dated 7.9.1994 the plaintiff through Mr. Rajesh Khanna had a meeting with defendant's officers at their office on 9.5.95 and agreed to continuation of tenancy if defendants agreed to pay enhanced rent at Rs. 60/- per Sq. Ft. per month and specifying a date for vacating the premises; the defendant considered the said demand and to maintain cordial relations vide their letter dated 6.6.95 agreed to revise rent to Rs. 60 per Sq. Ft. per month with effect from 12th May, 1995 and also agreed to vacate the premises upon completion of their building at B-3, Connaught Place, New Delhi. Since the defendant had acted and had accepted the demand of the plaintiff no cause of action survives on or after 7th September, 1994 and the proceedings initiated is liable to be dismissed."

13. This is denied by the plaintiff in the replication. A cause of action had accrued to the plaintiff to institute the suit for possession against the defendant on the expiry of the term of the lease on 1.3.94 when the defendant did not vacate. The plaintiff in his letter dated September 7, 1994 reminded the defendant of their obligation to vacate the premises on the expiry of the lease and their continuing in occupation being illegal and unauthorised. The defendant was also put to notice that they were liable to pay damages/manse profits @ Rs. 150/- per Sq. Ft. per month with effect from 2.3.1994 and also called upon the defendant to quit and vacate. It is not the case of the defendant that the plaintiff has accepted any rent after 2.3.1994. In reply to plaintiff's letter dated 7.9.1994 the defendant wrote letter dated 6.6.95, relevant portion of which reads as under :

"...... In this connection, we are pleased to advise you that our higher authorities have sanctioned revised rent @ Rs. 60/- per sq. ft. p.m. on carpet area basis w.e.f. 12th May, 1995.

We further write to advise you that we shall be vacating the present premises upon completion of our Bank's building at B-3, Connaught Circus, New Delhi.

We would, therefore, request you to contact the undersigned on any date/time convenient to you so as to complete the necessary formalities in this regard.

Kindly acknowledge receipt of this letter."

14. This letter is addressed to Shri V. N. Khanna(HUF). There is no mention in it that the enhancement proposed was in pursuance of any oral agreement/demand/offer of Shri Vishwanath Khanna or even of Shri Rajesh Khanna or in pursuance of any meeting between either of them and officers of defendant Bank. Any assurance of Shri Rajesh Khanna if not so authorised would also not be binding on the HUF or its Karta. Moreover, this letter was in reply to letter dated 7.9.94 sent by Shri Vishwanath Khanna on behalf of HUF. No reference has been made in this letter of the defendant dated 6.6.95 of any oral talks between Shri Rajesh Khanna and officers of the defendant bank. Name of Shri Rajesh Khanna has obviously been introduced vexatiously and malafide and apparently to support a false plea. In any case, the tenure of this letter clearly shows that it is offer or counter offer on the part of the defendant and unless it was accepted by the plaintiff it is not binding on them. It is not the case of the defendant that this offer was ever accepted by the plaintiff. No rent @ Rs. 60 per Sq. Ft. per month as offered in this letter was ever tendered or accepted by the plaintiff nor it is so pleaded by the defendant. The letter also contemplated some formalities to be completed between the parties. It is not the case of the defendant that those formalities were gone into with the plaintiff. On this material there is no estoppel against the plaintiff. It thus cannot be said that the plaintiff had agreed to continue the tenancy of the defendant or had agreed to accept the enhanced rent from the defendant. The question of renewal or continuance of the tenancy thus does not arise. The plea of the defendant to this effect is neither bonafide nor needs investigation on trial.

15. The suit on behalf of the HUF could be signed, verified and instituted by its Karta and in this case it has been so done by Shri Vishwanath Khanna as Karta of HUF. The suit has been validly signed, verified and instituted and is thus maintainable.

The other objection is that in the plaint the possession of the defendant is shown as "rank trespasser" and as such for purposes of court fees and jurisdiction the suit should have been valued on the market value of the property and not on 12 times the monthly rent as valued by the plaintiff. This is disputed on behalf of the plaintiff.

16. The plaintiff's case is that the defendant was inducted as a tenant, registered lease deed prescribing the duration of lease was executed between the parties, the period of lease has expired; the defendant has no right to remain in occupation of the premises and the possession of the defendant is unauthorised and that of a rank trespasser. Substance and not form has to be taken into account. In substance and in fact the suit of the plaintiff is for recovery of possession of the premises from a tenant whose tenancy came to an end and who is holding over the premises at sufferance without any lawful right or authority. Such suit has to be valued under Section 7(xi)(cc) of the Court Fees Act, 1870, according to which the valuation is to be fixed according to the amount of the rent of the property to which the suit refers payable for the year next before the date of presenting the plaint and not on the market value of the property involved. The monthly rent of the premises admittedly was Rs. 58,000/- per month and on this plea yearly rent would be Rs. 6,96,000/-, which is also the valuation fixed for purposes of court fees and jurisdiction and court fees has also been accordingly paid. The suit cannot be said to be not properly valued for purposes of court fees and jurisdiction. This objection thus also is not bonafide and needs no investigation.

17. In Dena Bank Vs. Bindal Construction (P) Ltd. , Smt. Radhey Vs. Amul Kumar Banerjee and M/s. Sagar Enterprises Pvt. Ltd. Vs. 1997 (1) AD Delhi 529 relied on behalf of the defendant on the facts of the respective case prima facie it was held that Order 12 Rule 6 could not be available. In the first case the suit was contested by the defendant and 8 issues both on merit of the claim and on legal pleas including authority of the person to sign and verify the plaint were framed. The relief under Order 12 Rule 6 was declined inter alia on the ground that the issues involved determination of questions of fact which go to the root of the case and decision on certain issues could result in dismissal of the suit.

18. In the case of Smt. Radhey Lal (supra) the title of the plaintiff was disputed as the suit was filed by widow alone without impleading the son and daughter of the deceased lesser and also factum and the validity of the notice of termination of the tenancy was also disputed. In the case of M/s. Sagar Enterprises Pvt. Ltd. (supra) no material was placed on record nor it had been alleged in the plaint about the competence of the person to institute the suit on behalf of the company. These cases are based on their own facts and are clearly distinguishable. Order 12 Rule 6 of the Code reads as under :-

Judgment on admissions.

6. (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) x x x x x x x xx x

The object of this provision is obviously to obtain speedy judgment at least to the extent of the relief which according to the admission(s) of the opposite party the plaintiff is entitled to. The admission may be made "either in the pleadings or otherwise" i.e. the rule is wide enough to grant a speedy relief not only in case of admissions mentioned in the pleadings but also de hors the pleadings. The admissions contained in letters or other documents written or executed between the parties before the action is brought are also sufficient for the purpose of this rule. A plea of fact or law which is not bonafide and does not need investigation or trial would not be available to defeat the right of speedy relief to which party is entitled to. Only such pleas which raise disputed questions of law and facts and need investigation could be said to be disputed ones and not otherwise. (Surjit Singh Vs. A.N. Pahilaj (deceased) Thru. LRs. ).

19. In the present case it is admitted that the defendant was inducted as a tenant, a registered lease deed was executed between the plaintiff and the defendant, the lease was for 7 years as per the lease deed, it expired by efflux of time on 1.3.1994 and no rent has been paid to or accepted by the plaintiff thereafter. The pleas taken by the defendant as noticed above are not bonafide and do not need investigation. The cause of action for seeking possession of the premises has accrued to the plaintiff on the expiry of the lease. On the admissions of these facts or there being no dispute on these, the plaintiff is entitled forthwith to the decree of possession.

20. I, accordingly, allow this application and pass a decree of possession under Order 12 Rule 6 of the Code in favour of the plaintiff and against the defendant and direct the defendant to hand over the peaceful and vacant possession of the premises, namely the portion on the ground floor measuring 1100 Sq. Ft. and the mezzanine floor thereof, measuring in all 2900 Sq. ft. of property No. H-11, Connaught Circus, New Delhi as shown in red in the plan filed with the plaint. Plaintiff will also get proportionate costs of the suit on this relief.