Tihsaa Industries Ltd. vs Avg Computers Ltd. And Anr.
2001 Latest Caselaw 1523 Del

JUDGMENT

J.D. Kapoor, J.

1. The plaintiff/applicant is seeking interim injunction restraining defendants from dispossessing him from the suit premises i.e. portion comprising of reception cell at ground floor, entire first floor, second floor and third floor of property bearing No. H-66, New Delhi South Extension Part-I as he claims that he is in occupation in independent capacity as a tenant.

2. The broad admitted facts are that the defendant No. 1 took the premises of defendant No. 2 on lease by way of registered lease deed dated 1st May, 2000 on a monthly rent of Rs. 45,000/-. However, the plaintiff and defendant No. 1 decided to enter a joint venture collaboration agreement for the purpose of carrying on computer centre for education. The said collaboration agreement did not work well and the parties fell apart. Consequently agreement was cancelled by agreement dated 17th July, 2000.

3. The Plaintiff has staked its claim of having been accepted and admitted by defendant No. 2 as an independent tenant, firstly on the ground that it was clearly stated in the joint venture collaboration agreement that the said joint venture company would operate its registered office and computer centre from the suit premises; secondly that it was in the knowledge of defendant No. 2 that plaintiff company in collaboration with defendant No. 1 had been carrying on the business so much so, defendant No. 2 even consented for installation of telephone in the premises in the name of the plaintiff company. The telephone bills are also in the name of the plaintiff company.

4. Admittedly Defendant No. 1 had been paying the agreed rent and also handed over the possession of the premises to defendant No. 2 after termination of the lease.

5. The Plaintiff's claim is that defendant No. 1 by way of cancellation of joint venture agreement handed over the possession of the suit property to the plaintiff on 17.7.2000 and as such the plaintiff became the tenant in his own right. Counsel for the plaintiff contends that as per the agreement dated 17.7.2000, the possession of the suit property was to remain with the plaintiff company as it had spent huge amount on the renovation of the premises.

6. Lease of immovable property is created under Section 105 of Transfer of Property Act. According to it unless and until the agreement confers upon the lessee a right to possession for a specific time against consideration of rent, it is not a lease. Its essential elements are that (i) There should be parties who are known as Lesser and lessee; (ii) They must be persons who are competent to contract; (iii) The subject matter should be immovable property; (iv) There should be transfer of an interest to enjoy the property; (v) Its commencement and cessation should be certain or capable of being ascertained; (vi) Transfer of possession should be against consideration either through premium or rent.

7. As is apparent none of the aforesaid ingredients prima facie exists even in the own reckoning of the plaintiff/applicant.

8. Tenancy cannot be created in a manner as set up by the plaintiff. Mere consent for installation of telephone in the name of the plaintiff did not create tenancy in its favor. Defendant No. 2 is gullible old lady as is apparent from the signature appearing on the application addressed to the General Manager, MTNL in which she has stated that she has no objection for installation of new telephone connection at the premises in the name of Mr. Aashit Aggarwal. Since plaintiff in collaboration with defendant No. 1 had been carrying on the business from the suit property, landlady might have given her consent for installation of telephone in the name of Mr. Aashit Aggarwal.

9. Had there been an intention on the part of defendant No. 2 to create an independent tenancy in favor of the plaintiff nothing prevented the plaintiff from entering into lease deed as defendant No. 1 had done at the time of taking possession of the premises in its capacity as tenant. Mere permission for installation of telephone in the name of one of the Directors of the plaintiff company did not amount to creating tenancy in favor of the plaintiff-company. Except the letter sent to the General Manager, MTNL, there is no other document whatsoever executed between the plaintiff and defendant No. 2 either in the form of lease deed or in the form of giving permission to defendant No. 1 to sublet the premises to the plaintiff. Rather Clause 4 of the lease agreement specifically prohibited subletting of the premises by defendant No. 1 to anybody.

10. The joint venture collaboration which was between the plaintiff and defendant No. 1 was their private internal arrangement. So was the cancellation of the agreement. Neither did it amount to consent by defendant No. 2 for subletting the premises to the plaintiff nor did it amount to creation of independent tenancy in favor of the plaintiff.

11. Even if it is presumed that defendant No. 1 had subset the premises to the plaintiff during the substance of tenancy of defendant No. 1, still it could not have conferred any right upon the plaintiff even as a lawful sublessee as the moment the relationship of defendant No. 1 and defendant No. 2 as tenant and landlord ceased of exist, plaintiffs right to occupy the premises also extinguished.

12. If such a right is allowed, it would result in great jeopardy against the landlord. No landlord will handover the possession of such a huge property at such a high rent without entering into written lease deed and to claim oral tenancy in these circumstances is highly preposterous and far fetched particularly when the original tenancy in favor of defendant No. 1 through whom plaintiff claims its right was created by way of registered lease deed.

13. The aforesaid facts demonstrate that neither has the plaintiff made out a prima facie case in its favor nor does balance of convenience lie in its favor nor would it suffer irreparable loss or injury if it is dispossessed from the premises as it has no right to remain in occupation or in possession of the premises in any capacity. Rather monstrous injustice and irreparable loss and injury would visit upon the landlady if plaintiff is allowed to retain the possession though its possession has been denied by defendant No. 2.

14. Mere fact that he has spent huge amount in the renovation of the premises by way of joint venture collaboration is not a cogent ground to allow it to remain in occupation. It was an independent arrangement between the plaintiff and defendant No. 1. Defendant No. 2 had nothing to do with creation of Joint Venture Collaboration or cancellation of the same.

15. As a consequence, the application being I.A. No. 7779/2000 is dismissed. With this order, application under Order 39 Rule 4 CPC being I.A. No. 1229/2001 also stands disposed of as well as other application being I.A. No. 9177/2000.

16. However, the claim of the plaintiff that goods worth Rs. 26 lakhs are lying in the premises can be taken into consideration for the purpose of avoiding unnecessary loss to the plaintiff. It is directed that the goods, inventory of which has already been prepared by the Local Commissioner at the time of inspection of the premises, shall be returned to the plaintiff in the presence of Local Commissioner.