Daewoo Anchor Electronics Ltd. vs S.L. Bhalla And Ors.
2001 Latest Caselaw 1543 Del

JUDGMENT

Vijender Jain, J.

1. The present Suit has been filed for recovery, declaration and permanent injunction by the plaintiff, inter-alia, praying for the following relief:-

(a) pass an order and decree in favor of the Plaintiff and against the Defendants for Rs. 34,72,250/- along with 24% interest on Rs. 28,24,250/- from the date of filing of the suit till the actual payment (particulars stated in Annexure "L").

(b) pass an order and decree of declaration declaring that the lease has been properly and validly terminated by Plaintiffs.

(c) pass an order and decree of permanent injunction in favor of the plaintiffs restraining the defendants, his servants, agents and anyone claiming through or under them from entering upon and/ or disturbing or interfering the possession and occupation of the said premises of the plaintiff unless the amount claimed in prayer (a) above is paid in full and without the due process of law.

2. The defendant field an application under Order 7 that same does not disclose any cause of action. It was that same does not disclose any cause of action. It was contended before me by Mr. Jaitley learned counsel appearing for the applicant that the Lease Deed dated 25th April, 1998 was not registered in terms of the Registration Act and the same was a void document on account of non-registration. It was contended that a void document cannot be the basis for filing a suit either for declaration or for injunction or for relief of recovery of amount. It was contended that the Lease Deed dated 25 April, 1998 was for a period of three years commencing from 1st April, 1998. Under the said Lease Deed, the plaintiff paid a sum of Rs. 19,44,000/- to the defendant being monthly advance rent for nine months which was adjustable in 36 equal Installments of Rs. 44,000/- each, rent being Rs. 2,16,000/- per month for initial 25 months. Further amount of Rs. 25,92,000/- was paid by the plaintiff as interest free, security deposit refundable when the plaintiff hand over the possession of premises on the expiry of the alleged Lease Deed or on its earlier determination.

3. Under Clause 14 of the alleged Lease Deed either party could terminate or determine the lease by giving three months' notice. The controversy arose as the plaintiff issued notice dated 28.1.2000 terminating the lease from 1st May, 2000. The said notice of termination was received by the defendant on 4.2.2000. The defendant replied to the said notice by a letter dated 16.2.2000 which is at page 22 of the plaint, inter-alia, stating that as the notice dated 28.1.2000 was received by the defendant on 4.2.2000, the same does not given three months' notice of termination under the Agreement and, therefore, the notice was not valid and demand to pay Rs. 6,48,000/- was not correct and it would be much less. After receipt of the letter, for the reasons vest known to the plaintiff, the plaintiff sent a letter dated 12.4.2000 stating that in case the defendant feels that the notice dated 28.1.2000 was not sufficient, defendant may extend the date till 5th May, 2000 for refunding the security deposit of Rs. 25,92,000/- and Rs. 5,94,000/- This is how the letter dated April 12, 2000 reads under paragraph 6 at page 25.

"With reference to paragraph 6 of your said letter, the letter of termination was sent to you on 28th January, 2000. Therefore, the re is more than three months' period form the date of actual date of termination i.e. 1st May 2000. However, in case you feel that the notice is still not sufficient, you may extend the date till 5th may, 2000 for refund of security deposit of rs. 25,92,000/- and Rs. 5,94,000/- being the excess amount lying with you by way of Demand Draft, against which we will hand over the quite and peaceful possession of the said premises.

4. Thereafter on 14.7.2000 a notice was sent by the counsel for the plaintiff reiterating the date as 5th May, 2000 and demanding other amounts. It is contended before me that on the basis of the aforesaid letters notice which was earlier sent on 28.1.2000 was not a valid notice under Clause 14 of the Agreement which required three months' period to the opposite party intending to terminate the lease before the expiry of the periods of 3 years. it was further contended that subsequent letters dated 12.4.2000 as well as 14.4.2000 were no notice in the eyes of law either in terms of clause 14 of the Lease Agreement or in terms of Section 106 of the Transfer of Property Act. It was further contended that the Lease dated 25.4.1998 was a document which was void on account of non registration and if it is assumed that the subsequent notice dated 12.4.2000 be taken as a notice on the basis of month to month tenancy, the same was not a valid notice read with Section 106 of the Transfer of Property Act.

5. Lastly, it was contended that in view of the Lease Deed being void and that is the basis of the suit and the prayers, prayer of injunction as well as for recovery is dependant on the unregistered document, no declaration can be granted by this Court. In support of his submissions, learned counsel for the defendant has cited Biswabani Pvt. Ltd. v. Santosh Kumar Dutta and Ors. .

6. On the other hand, counsel for the plaintiff has contended that it was on the basis of the letter received from the defendant that the notice dated 28.1.2000 being a notice in terms of Clause 14 of the Agreement and three months' lime had not been granted plaintiff had extended the period by four days, pursuant to the notice dated 28.1.2000. The tenancy was terminated from 1st May, 2000 but when the letter dated 16.2.2000 of the defendant was received by the plaintiff, the plaintiff had extended the time of termination of tenancy by 5th May, 2000 vide its letter dated 12.4.2000. Mr. Savla has further contended that if the tenancy was month to month even then the notice dated 28.1.2000 was a valid notice.

7. Mr. Salva has contended that the notice dated 28.1.2000 was a valid notice in terms of section 106 of the Transfer of Property Act. It was next contended before me by learned counsel for the plaintiff that the provisions of Order VII Rule 11 of CPC will not be applicable as the plaint does disclose cause of action as the prayer of the plaintiff is three fold and even if the prayer regarding declaration of termination based on the Lease Deed cannot be granted other two prayers one for recovery of amount for which receipt was issued and other prayer for injunction could be granted by this Court. On the basis of aforesaid contention it was contended that it cannot be said that the plaint does not disclose any cause of action. It was further contended that the plaintiff is in settled possession and he cannot be dispossessed and for that purpose the clause of the Lease Deed can be considered for collateral purposes. In support of his contention learned counsel for the plaintiff has cited Gajendra Singh v. Mann Singh and Ors. 2000 AIHC 3102 Krishna Ram Mahale (Deed) by his Lrs. v. Shobha Venket Rao K. Panchapagesa Ayyar and Anr. v. K. Kalyanasundaram Ayyar and Ors. , Shruti Enterprises v. Daya Nand 63 (996) DLT 68 and Sardar Amar Singh and Anr. v. Surinder Kaur .

8. I have given my careful consideration to argument advanced by both the parties. Order 7 Rule 11 of the CPC is follows:-

11. Rejection of plaint- The Plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued by the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law:

(Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.)

9. At this stage, while deciding an application of this nature Court has to see whether the plaint discloses a cause of action. Two arguments have been advanced for rejection of the plaint. Firstly, the Lease being void for want of registration could not be the basis of the suit for declaration or for any other ancillary prayers based on the said lease deed. Secondly, reliefs as prayed in the plaint were barred by law pursuant to Order 7 Rule 11 and Sub-rule (d) of CPC.

10. Let me first deal as to whether plaint discloses any cause of action, Clause 14 of the Lease Deed which has been the bone of contention between the parties is to the following effect:-

"That at any time before the expiry of the period of this Lease Deed, the lessee may vacate the premises by giving 3 (three) months notice or rent in lieu thereof to the Lesser after the expiry of initial lease period of at least 13 months, i.e. after 30 April, 1999. The Lesser shall then return the unadjusted advance rent and security deposit to the Lessee.

11. In paragraph 7 of the plaint, the plaintiff has set out a case that the plaintiff gave three months notice on 28.1.2000 for termination of the said Agreement. Once the notice dated 28.1.2000 was modified in terms of the date of termination by the plaintiff as per the averments made in the plaint by a letter dated 12th April, 2000 notice of 28.1.2000 did not remain a valid notice under Clause 14 of the Agreement. Merely by reading the letter dated 12th April, 2000 one comes to this conclusion that plaintiff itself thought the notice was deficient, not proper and not valid and, therefore, allowed time till 5th May, 2000. The date to be taken as a date for termination was changed on 12.4.2000. A notice if given under Clause 14 was to give three clear months time to the defendant which was not given in terms of the plaintiff's own averment. Letter dated 12th April, 2000 was no notice either in terms of Clause 14 of the Agreement or in terms of the Section 106 of the Transfer of Property Act, if tenancy is to be construed from month to month basis.

12. Section 106 of Transfer of Property Act postulates that for a lease of immovable property in the absence of written contract same shall be deemed to be a lease from month to month terminable on the part of either Lesser or lessee by fifteen days' notice expiring with the end of the tenancy month.

13. Mr. Savla tried to canvass that the notice dated 28.1.2000 is a notice which is under Section 106 of the Transfer of Property Act. From the perusal of the notice nowhere it states that the notice is under Section 106 of the Transfer of Property Act. Same is not even averred in the plaint. As observed earlier, the notice terminating the tenancy does not terminate tenancy with the last day of month i.e. 31st May. Once the notice neither valid nor proper either in terms of law or in terms of alleged agreement then no cause of action exists which is based on the lease deed or on the said notice therefore plaint is to be rejected so far as the prayer based on the averment on this notice or lease deed was concerned.

14. Coming to the next submission of learned counsel for the plaintiff that relief of declaration if cannot be granted on account of document being void for want of registration relief of injunction as well as for recovery could still be granted. For grant of a relief of injunction, the law is well settled. Under Section 41 of the Specific Relief Act, an injunction has to b granted if there is a breach of a legal obligation. Legal obligation has been defined under Section 2 of the Specific Relief Act. The plaint is totally silent with regard to averment on breach of obligation and no case has been made out for grant of injunction in the plaint.

15. Only averment made in the plaint for the said relief is in paragraph 16 of the plaint which is reproduced hereunder:-

16. The Plaintiffs submit that the Plaintiff were ready and willing to hand over possession of the said premises to the Defendants against the Defendants, simultaneously, therewith returning the security deposit paid by the Plaintiffs. The Plaintiffs say that by reason of the wrongful conduct of the defendants, the Plaintiffs have become entitled to continue to be in their settled and juridical possession of the said premises till the Defendants repay the said security deposit with interest and other expenses incurred by the Plaintiffs towards maintenance of the said premises as stated herein. The Plaintiffs submit that as per the stand taken by the Defendants the said lease agreement is inadmissible in evidence for want of registration and consequently the Defendants are not entitled to take any proceedings against the Plaintiffs for obtaining possession of the said premises. The Plaintiffs say that under the circumstances, the Plaintiffs are entitled to an Order of declaration that termination vide termination notice dated 28.01.2000 was valid and proper. The Plaintiffs are also entitled for an order or injunction referring the defendants from disturbing the possession of the Plaintiffs without due process of law and in any event until the amount claimed by the Plaintiffs is paid in full.

16. From the bare reading of averment made in paragraph 16 above what plaintiff has prayed that this Court injunct the defendant to take any proceedings against the plaintiff for obtaining possession of the said premises without due process of law. Nothing has been stated which would give any cause of action necessary facts as to the threat of dispossession, when give, who had given has not been pleaded in the plaint. In the absence of such pleadings no relief can be granted on the basis of the pleadings in paragraph 16 of the plaint to restrain the defendants. Therefore, the authorities cited by learned counsel for the plaintiff is of no help in the facts and circumstances of the instant case. Plaint in the present case does not disclose any cause of action with regard to the grant of relief so as to enable this Court to grant the relief under the well settled principle of law of injunction.

17. Lastly, coming to the submission of learned counsel for the plaintiff that the amount was to be recovered from the defendant therefore that prayer can be granted. The amount which is to be taken by the plaintiff is on the basis of the agreement of lease and the receipt of the amount is neither a independent transaction nor will create a cause of action in favor of plaintiff once no declaration can be sought on the unregistered document ie.e. Lease Deed. Moreover from the perusal of the receipt which is placed at page 17, Lease Deed dated 1st April, 1998 has been mentioned in the said receipt therefore it cannot be said that the receipt has to be read dehors to lease agreement.

18. Following is the law laid down in Biswabani Pvt. Ltd. v. Santosh Kumar Dutta and Ors. .

"no party can take advantage of any lease for want of registration."

19. I allow the application of the defendant and reject the plaint of the plaintiff. Before parting, I would like to observe that during hearing, the plaintiff was advised to surrender the possession which the plaintiff is admittedly in possession of so that the liability of the payment of rent may be crystallised, the plaintiff declined to do the same without payment of the amount. Plaint is rejected.