Delhi High Court
Harbans Singh vs Tirath Prakash Sharma on 22 November, 2004
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
1. CM.14163/2004:
Cause shown in the application appears to be sufficient. CM(M) 337/2004 and CM.APPL.3325/2004 are restored to their original number and file. Application allowed and disposed of.
2. CM(M) 337/2004 and CM.APPL.3325/2004:
This petition seeks to challenge the order dated 12.1.2004 of the Additional Rent Control Tribunal in RCA No. 806/2003 whereby the Tribunal while adjudicating in appeal from an order dated 29.10.2003 passed by the Additional Rent Controller, Delhi allowing the petition under Section 14(1)(b) of the Delhi Rent Control Act has dismissed the appeal.
3. Brief facts of the Case as noted by the Additional Rent Control Tribunal are as follows:-
''Respondent in the eviction petition claimed that the appellant has sublet, assigned or parted with the premises to one Shri Ankit son of Shri R.K. Tandon who is running the scooter parts business from the premises in question without the consent of the landlord. Appellant claimed in the written statement that the appellant is in physical and legal possession of the premises in question. Shri Ankit is a partner of the appellant and both are running partnership business under the name and style of M/s Unted Auto Traders since 7.3.1998. There is no question of subletting, assignment or parting with possession of the property.
On the aforesaid pleadings parties led the evidence. Respondent examined Shri Tirath Prakash Sharma. Appellant examined five witnesses. As RW-1 Shri R.K. Sharma father of Ankit the alleged sub tenant who appeared as a special authority of the tenant/appellant. RW-2 alleged sub-tenant Ankit Tandon son of Shri R.K. Tandon were examined. RW-3 is Maha Ram Singh LDC from the Registrar of Firm. As RW4 Shri Rafiq who is having business dealing with Ankit the alleged sub tenant and as RW5 Shri Virender Kumar Tandon who is the real brother of Shri R.K. Tandon.''
4. It is contended by counsel for the petitioner that there was no question of sub-letting or parting with possession of the premises in question since the petitioner had by virtue of a partnership deed entered into a partnership with Ankit Tandon and that the premises in question was being used by the partners. To substantiate its case counsel for the petitioner draws my attention to the balance-sheet dated 31.3.2002, Exhibit RW-2/2 as also RW-2/3, income tax record signed by the alleged sub-tenant as a partner, Exhibit RW 2/4 -RW 2/5, the alleged deed of partnership, Exhibit RW 1/B. From these documents counsel wants the court to infer that the partnership is genuine and, therefore, there is no parting with possession. He has also cited various judgments of the Supreme Court to the effect that a partnership entered into does not amount to sub-letting.
5. From a bare perusal of RW-1/B it appears that the shares of the parties in the partnership are 10% of the tenant and 90% of the alleged sub-tenant. The partnership business is stated to have come into existence in 1998. However, no account books have been produced since 1988, when the alleged sub-letting has been complained of. The appellant has produced balance-sheet for the year 2002, but has not produced the account books which are supposed to be regularly maintained in the due course of busines. No Bank Account has been proved and there is no evidence that the petitioner dealt with sale- purchase and cash. Mere production of partnership deed is not sufficient. This appears to be a sham document. It would be interesting to note that even a regards the 10% shares in the so- called business the power of attorney by Harbans Singh has been made in favor of the uncle of Ankit Tandon.
6. All this lends me to believe that the so called partnership is a camouflage and in fact the possession of the premises in question has been parted with. Two courts below, on the question of fact have arrived at concurrent findings. I find no reason to interfere with the same. Moreover the judgments cited by counsel are of no avail since as a matter of fact it was held therein that the partnership was genuine. In the present case the partnership is not genuine and, therefore, the judgment are of no assistance.
7. CM(M) 337/2004 and CM.APPL.3325/2004 is dismissed.
