Deluxe Stores vs Allahabad Bank
2006 Latest Caselaw 654 Del

JUDGMENT

Anil Kumar, J.

1. This order shall dispose of plaintiff's application under Order 12 Rule 6 read with Section 151 of the Code of Civil Procedure to pass a decree for recovery of possession on the basis of the admissions of the defendant.

2. The relevant facts for appreciation of disputes between the parties are that the plaintiff is the exclusive owner of the building known as Vishwakarma consisting of ground floor, mezzanine floor and top floor with an open area having a total area of 3770 sq.feet situated at Lal Kuan, Tuglakabad, New Delhi.

3. The defendant is a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its head office at 2, Netaji Subhash Road, Calcutta and its office in New Delhi at Allahabad Bank Building, Parliament Street, New Delhi. As the defendant had been looking for a suitable premises to run its branch office in Tuglakabad, New Delhi, the defendant approached the plaintiff for taking his house on rent.

4. The defendant sanctioned the terms and conditions by letter dated 27th September, 1989 and premises was let out by the plaintiff to the defendant with effect from 1st April, 1990 at a monthly rent of rupees five per square feet for a period of five years. A lease deed for letting was forwarded by the defendant to the plaintiff which was signed and sent back to the defendant for executing it and getting it registered in accordance with law.

5. The defendant thus, took on rent the building known as 'Vishwakarma' comprising of ground floor, mezzanine floor and top floor with an open area of 350 sq.feet, having a total area of 3770 sq.feet from 1st April, 1990 for a period of five years at a monthly rent of Rs. 5/- per sq.feet and started paying an aggregate amount of Rs. 17,220/- per month. Though no lease deed duly stamps and registered as contemplated under law was executed in April, 1990, however, after the expiry of five years period on 31st March, 1995 plaintiff averred that he wrote a letter dated 3rd June, 1995 seeking clarification as defendant had not come forward for execution of lease for renewed period nor had paid the rent at enhanced rate. It was contended that after number of reminders on personal visits and communication over telephone, the defendant asked the plaintiff to forward relevant information to draft the lease deed for the renewed period. The plaintiff averred that the information which was sought by the defendant was forwarded by the plaintiff to the defendant by his letter dated 22nd July, 1995. The requisite information given by the plaintiff was as under:-

July 22, 1995

To,

The Manager,

Allahabad Bank

Tughlakabad,

New Delhi.

Dear Sir,

Re : Branch Premises

I. In continuation to our letter dated June 3, 1995, and subsequent meeting out partner Mr. Ram Kumar had with you on July 21, 1995. We give below the requisite information for assisting you to draft the lease deed for renewal:-

1. Area of occupation by bank

Ground floor

1575 sq.ft.

First Floor

1575 sq.ft.

Top Floor

270 sq.ft.

Open Space

350 sq.ft.

3770 sq.ft.

2. Period of renewal w.e.f. 01.04.95

3. Rent (per Clause 11 of the lease deed) Rs. 5/- + 25% = Rs. 6.25 per sq.ft.

4. Interest free rent advance for Six Months i.e. Rs. 3770X6.25X6 = Rs. 141375.00

5. Monthly rent Rs. 23,562.50

II Further, kindly note that you have not yet paid the arrears of rent comprising mainly of rent for open space i.e. (326X5 = 1750 p.m.) for 5 years Rs. 97,800.00 plus rent for the period April to July 95 i.e. (3770 X 6.25 X 4.00)= Rs. 94,250.00 plus interest for the period April 90 to July 95 on a compounding basis Rs. 4,89,000.00

As such we shall appreciate your forwarding us your cheque for Rs. 8,22,425.00 at the earliest as per detail given below:-

Arrears of Rent for open space for five years up to 31.03.95

97,800.00

Rent for April to July 95

94,250.00

Interest

4,89,000.00

6,81,050.00

Rent advance for six months

1,14,375.00

8,22,425.00

Yours faithfully,

Sd/-

For Deluxe Stores

6. The plaintiff, however, contended that since defendant remained silent another letter dated 18th November, 1995 was sent to the defendant to pay the arrears of rent at the revised rent. Thereafter the offer to renew the lease for further period on the terms and conditions as desired by the plaintiff were also communicated to the defendant by letter dated 21st March, 1996.

7. On failure of the defendant to get the lease executed for a renewed period on the terms and conditions as offered by the plaintiff, a notice dated 8th March, 1997 was sent under Section 106 of Transfer of Property Act, 1882 determining the tenancy of the defendant from the mid-night of the 31st March, 1997. The defendant was further asked to pay damages @ Rs. 20/- per sq.feet per month for the unauthorized use and occupation of the premises from 1st April 1997.

8. The plaintiff contended that despite the termination of the tenancy of the defendant from 31st March, 1997, neither the possession was handed over nor the damages as demanded by the plaintiff were paid entailing giving another notice dated 11th August, 1998 to the defendant asking the defendant to handover and vacate the premises by 31st August, 1998. The defendant did not hand over the possession, however, remitted the damages only @ Rs. 5/- per sq.feet. per month instead of Rs. 20/- per sq.feet. per month demanded from the defendant. The damages at the @ 5/- sq. feet per month were not acceptable to the plaintiff and consequently plaintiff returned the amount tendered by the defendant by plaintiff's letter dated 8th October, 1998.

9. On account of failure of the defendant to handover the possession of the premises, yet another notice dated 10th November, 1998 was sent to the defendant asking him to handover the possession of the premises by mid-night of 30th November, 1998 and thereafter another notice dated 5th July, 1999 under Section 106 of the Transfer of Property Act again demanding defendant to handover the possession on the mid-night of 31st July, 1999 was sent. The plaintiff, therefore, contended that the tenancy of the defendant was terminated by a legal and valid notice dated 5th July, 1999 with effect from 31st July 1999. Thereafter, as the defendant failed to handover the possession of the premises and failed to pay the damages for use and occupation of the premise, plaintiff filed the suit for recovery of possession of the premises and arrears of damages and interest thereon @ 15% per annum. The plaintiff, therefore, sought a decree for recovery of possession besides recovery of damages of Rs. 20,78,200/- for the unauthorized use and occupation of the premises from the defendant.

10. The suit is contested by the defendant who contended that the suit is false, frivolous, baseless and the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure. The defendant contended that the premises was offered for rent on 6th July, 1989 with an option to the defendant bank for renewing the lease on the same terms and conditions for a further unlimited period. According to the plea of the defendant, the said terms of the plaintiff were considered and accepted by the defendant bank by the sanction letter dated 27th September, 1989 whereby it was agreed that the premises be taken on rent @ Rs. 5/- per sq.feet for an initial period of five years with an option to the bank to renew the leas for a further period of 5+5 years more with 15% increase in the rent after the expiry of initial period of five years. The letter also specified that the charges for execution of the lease shall be borne by the plaintiff and consequently the premises was finally let out on 1st April, 1990 for an initial period of five years up to 31st March, 1995. The defendant contended that after 31st March, 1995, defendant opted for renewal for another period of five years and wrote a letter dated 23rd January, 1995 to the plaintiff for the option of the Bank for renewal of the tenancy for another period of five years. The defendant also averred that he agreed for enhancement of 15% on the last paid rent up to 31st March, 1995 and therefore the defendant became a tenant till 31st March, 2000. It was further averred by the defendant that on expiry of extended period of five years on 31st March, 2000, the option was exercised and the premises was let out for another period of five years till 31st March, 2005 and the defendant bank enhanced the rent and tendered the same to the plaintiff which the plaintiff refused to accept.

11. The defendant contended that the plaintiff refused to accept the rent and, therefore, the suit should be dismissed. It was also pleaded that plaintiff raised the dispute about paying the charges for the entire area being 3770 sq.feet. According to defendant, the covered area was 3444 sq.feet and the rent was accepted from 1st April, 1999 @ Rs. 5/- per sq.feet amounting to Rs. 17,220/- per month for the covered area. Subsequently, the plaintiff started demanding rent for the open area of 350 sq.feet also. It was contended by the defendant that the demand for rent for the open area is against the agreement/ understanding and proposal dated 6th July, 1989 and the sanction letter dated 27th September, 1989.

12. The defendant also asserted that after the expiry of initial period of five years, the defendant requested the plaintiff to execute a registered lease deed which the plaintiff declined though he continued to accept the rent. It was contended that the plaintiff refused to accept enhanced rent of 15% as the plaintiff started demanding enhancement of 25%. According to the defendant, a letter dated 10th July, 1995 was served on the plaintiff intimating that the lease has been extended for another period of five years with 15% increase in the rent, i.e. @ Rs. 5.75p per sq.feet for 3444 sq.feet amounting to Rs. 19,803/-

13. The defendant also gave total area under his tenancy as 3444 sq.feet, being 1575 sq.feet on the ground floor; 1575 sq.feet on the first floor; 267 sq.feet on the second floor and 27 sq.feet on the pump room at the ground floor. The defendant also contended that in accordance with the term of the lease dated 1.4.1990 a notice dated 23.1.1995 was sent to the defendant with the request to execute the lease deed and further extend/renew the lease deed. The defendant also relied on a letter dated 10.7.1996 and contended that a verbal decision was taken to extend the lease which was communicated to the plaintiff. The defendant also claimed that the rent has been accepted from 1.4.1995 till 31.3.1997. The defendant admitted the notice dated 8.3.1997, however, stated that it was illegal, malafide and was served in order to pressurize the defendant to pay enhance rent by 25% instead of 15%. The defendant also admitted the notice dated 5.7.1999 and relied on the reply dated 25.8.1999 given by the defendant to the plaintiff.

14. The defendant rather asserted that the tenancy continued till 31.3.2005 and the defendant denied his liability to pay Rs. 20,78,200/-. Regarding electricity charges, defendant contended that the charges are being paid directly to the concerned authority and since no water facility was available in the tenancy premises, the defendant had to spent a sum of Rs. 1000/- per month for the water which the plaintiff is liable to pay to the defendant since the inception, however, no counter claim for the recovery of amount @ Rs. 1000 per month was filed.

15. On the basis of these pleadings plaintiff filed the application under Order 12 Rule 6 of the Code of Civil Procedure contending that in the written statement the following facts have been admitted by the defendant:-

a) the relationship of landlord and tenant;

b) the rate of rent;

c) no lease deed for renewal was executed as the defendant had not agreed to renewed terms offered by the plaintiff.;

d) Notices dated 8.3.1997 followed by other notices and notice dated 5.7.1999 have been admitted.

16. The plaintiff/applicant therefore contended that no friable controversy has been raised by the defendant for the purpose of recovery of possession and on account of constructive admissions made by defendant, the suit for possession be decreed in favor of plaintiff.

17. To contend that there is a constructive admission on the part of the defendant, it is contended that the tenancy of the defendant was terminated by a notice under Section 106, Transfer of Property Act, 1882 which notice has been acknowledged by the defendant and after the determination of the tenancy, no lease deed was executed for the subsequent period and consequently the possession of the tenant is not legal and therefore, a decree for possession can be passed. The plaintiff has relied on 79 (1999) DLT 22, Raj Gopal (HUF) v. State Bank of India; , Samir Mukherjee v. Davinder Kumar Baja; , Singer India v. Amita Gupta; , Uptrol Powertronics v. G L Rawal; AIR 1976 Madras 194, Rasiklal Mehta v. Hindustan Photo Films; AIR 1996 Madras 285, BPCL v. Ashvinraj; , Canara Bank v. Smt. Shanti Vaish; , Rajeev Srivastava v. Sanjeev Tuli in support of his pleas and contentions for a decree for recovery of possession.

18. The application is contested by the defendant/non applicant contending that the defendant has raised friable issues whether the plaint is liable to be rejected under Order 7 Rule 11 of CPC in as much as the sanction letter dated 27.9.1989 was accepted on the basis of which the premises was let out to the defendant on 1.4.1999. The non-applicant contended that the terms and conditions of sanction letter are the only terms agreed between the parties and the tenancy is governed on the basis of the sanction letter dated 27.9.1989 according to which the premises was let out up to 31.3.1995 and thereafter an option was given to the defendant for renewal of the same for another five years which had been availed by the defendant and the renewed tenancy expired on 31.3.2000 and even thereafter the defendant had opted for renewal of the lease of the premises and in the circumstances friable issues have been raised whether the plaintiff could terminate the tenancy in the manner in which the plaintiff has done it and whether the tenancy could be terminated before 15 years period that is up to 31.3.2005.

19. The defendant has relied on , Dudh Nath Pandey v. Suresh Chandra Bhattasali; , Chikkam Koteswara Rao v. Chikkam Subbarao and Ors.; 1997 V AD (Delhi) 627, Madhav Leasing Finance (P) Ltd. v. Erose Educational Infotech Pvt. Ltd.; 79 (1999) DLT 172, R.S. Bakshi and Anr. v. H.K. Malhari and Anr.; , Deepak Chopra (HUF) and Ors. v. Raj Kumar Gupta; , Narayan and Anr. v. Madan and Ors.; 81(1999) DLT 779 (SC), Balraj Taneja and Anr. v. Sunil Madan and Anr.; , State Bank of India v. Midland Industries and Ors. to contend that the disputes raised between the parties require evidence and there are no such admissions which would entail a decree for recovery of possession from the defendant.

20. I have heard the learned Counsel for the parties in detail and have perused the pleadings of the parties and the application and its reply and the documents.

21. The learned senior counsel for the defendant Mr. Keshav Dayal was very emphatic that merely on the basis of the averments made in the plaint and the written statement, without framing the issues and allowing the party to lead evidence, the issues which have arisen between the parties cannot be decided. He contended that the pleadings of the defendant are to be read as a whole and there are no such admissions which will entitle plaintiff for a decree of possession.

22. For the purpose of passing a decree of possession what is to be seen is whether there was a relationship of landlord and tenant which has been determined and on determination of the lease whether the tenant is still entitled to continue in possession. The purport of Rule 6 of Order 12 of the Code of Civil Procedure is to enable the party to obtain speedy judgment. It has been held that the admissions on which judgment could be claimed must be clear and unequivocal and that such admissions made in the suit or even for a part of the claim enables a party to get a decree passed to the extent of the admissions.

23. It has also been held by the Courts that in case of clear and unequivocal admissions, the suit could be decreed which may be whole or in part for one of the relief laying down that for the purpose of a decree of possession in such matters the consideration has to be regarding existence of relationship of a Lesser and lessee and determination of such relation in any of the contingencies as envisaged in Section 111 of the Transfer of Property Act, 1882. Section 111 of the Transfer of Property Act, 1882 is as under:

111. Determination of lease

A lease of immoveable property determines

(a) by efflux of the time limited thereby:

(b) where such time is limited conditionally on the happening of some event by the happening of such event:

(c) where the interest of the Lesser in the property terminates on, or his power to dispose of the same extends only to, the happening of any event by the happening of such event:

(d) in case the interests of the lessee and the Lesser in the whole of the property become vested at the same time in one person in the same right:

(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the Lesser, by mutual agreement between them:

(f) by implied surrender:

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the Lesser may re-enter {The words `` or the lease shall become void `` omitted by Act 20 of 1929, Section 57.}; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; (Ins.by Section 57, ibid.} [or (3) the lessee is adjudicated an insolvent and the lease provides that the Lesser may re-enter on the happening of such event]; and in { Subsection by Section 57, ibid., for `` either case ``.} [any of these cases] the Lesser or his transferee { Sub-section by Section 57, ibid., for ``does some act showing'`}[gives notice in writing to the lessee of] his intention to determine the lease:

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

Illustration to Clause (f)

A lessee accepts from his Lesser a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.

24. The Courts have held that on an unequivocal admission of these two factors, plaintiff will be entitled for a decree of possession even if such admissions have not been made expressly in the pleadings because even on constructive admissions the Court can proceed to pass a decree in the plaintiff's favor.

25. In Raj Gopal (HUF) v. State Bank of India (supra) relied on by the plaintiff, no registered lease was executed between the parties in respect of suit premises and the tenancy between the parties was held to be month-to-month which was determined by the landlord by giving 15 days? notice in terms of the provisions of Section 106 of the Transfer of Property Act, which was found to had been duly served on the tenant and the lease was duly determined. Relying on the determination of the tenancy admitted by the defendant, a single Judge of this Court had held that on the basis of constructive admission, a court can pass a decree in favor of plaintiff decreeing the suit for recovery of possession of the suit property relying on the facts which are deserved to be taken into consideration to enable the court to pass a decree of possession, as laid down in Surjit Sachdev v. Kazakhastan Investment Services Pvt. Ltd. 66 (1997) DLT 54. In Surjit Sachdev (supra) a Division Bench of this Court had laid down the following factors to enable the court to pass a decree for possession which are enumerated as (a) existence of relationship of Lesser and lessee or possession of the suit property by defendant as a tenant; and (b) determination of such relation in any of the contingency, as envisaged in Section 111 of the Transfer of property Act. The learned Division Bench held that an unequivocal admission of the above two factors would entitle the plaintiff to a decree for possession and even such admissions need not be made expressly in the pleadings and even on the constructive admissions court can proceed to pass a decree in favor of the plaintiff/landlord. In Samir Mukherjee (supra), the trial court had passed a decree for possession despite the specific averment in the written statement that the intention of the parties at the time of creation of tenancy was to grant tenancy permanently and not for any temporary period because the lease was granted in favor of the defendant for manufacturing purpose and since inception of tenancy, the tenant had been carrying on business of manufacturing transmission towers and railway electrification fittings. Admitting the notice under Section 106 of the Transfer of Property Act, it was held that notice was not in accordance with the Section 106 of the Transfer of Property Act as the notice ought to have been for six months expiring with the year of tenancy of the lease. Relying on relationship of landlord and tenant and the determination of tenancy under Section 106 of the Transfer of Property Act, a decree for possession was passed under Order XII Rule 6 which was upheld in the appeal holding that since there was no written lease deed, it could not be a permanent tenancy and such a tenancy could be terminated by 15 days? notice as tenancy exceeding one year only could be created by a registered lease deed and such a tenancy was held to be a month-to-month tenancy which could be determined by 15 days? notice and consequently appeal filed by the defendant/tenant was dismissed and the judgment for recovery of possession passed under Order XII Rule 6 of the Code of Civil Procedure was upheld.

26. Another Division Bench in the matter of Singer India Ltd. (supra), where the defendant had relied on an unregistered lease deed incorporating a clause relating to renewal of the lease agreement by offering enhanced rent @ 15% over the original rent, it was held that on the basis of a clause in an unregistered lease deed for renewal of the lease, the tenant does not acquire right to stay in the leased premises for another period of three years and despite such a renewal clause the tenancy would be a month-to-month tenancy which could be determined by notice under Section 106 of the Transfer of Property Act. The tenant was also not permitted to invoke terms of unregistered lease by invoking Section 53-A of the Transfer of Property Act and the decree for possession passed was upheld. Another Division Bench in the matter of M/s. Uptron Powertronics Ltd. (supra) had held that an agreement of lease incorporating the plea of renewal after the expiry of lease does not renew the lease for a further term without registered instrument for the subsequent period and on the expiry of the original lease, the tenancy, if continued would be for month-to-month and not for the period as stipulated for renewal in the original lease. Even in Rasiklal Mehta (supra), it was held that renewed lease can be made only by a registered instrument, even if the option is exercised either by the Lesser or by the lessee for the renewal of the lease. In Bharat Petroleum Corporation Ltd. (supra), it was held that where the lessee expressed his desire for renewal of lease on expiry of term of original lease, though such expression amount to exercising the option for renewal of lease, however, his failure to get lease deed duly executed and registered thereafter would take away his right of renewal and entitling Lesser to file a suit for recovery of possession of property. Not exercising the option of renewal within the time limited by the original lease does not entitle to a renewal of lease, was held by a Division Bench in Canara Bank (supra).

27. Per contra the defendant has relied on some precedents, none of which support the pleas raised by the him. In Dudh Nath Pandey (supra), the Apex Court had held that the admission must be taken as a whole and it is not permissible to rely on a part of admission ignoring the other. In this matter, the appellate court had given a finding that the plaintiff?s claim was barred by limitation and had dismissed the suit and plaintiff feeling aggrieved took up the matter to the High Court. This finding was, however, reversed by the High Court relying on an admission of the defendant in the written statement and the evidence of the witnesses produced on behalf of defendant. The High Court had made a fresh appraisal of the evidence and had come to a different finding contrary to the findings recorded by the first appellate court which was set aside by the Apex Court holding that the Court could not do it in the exercise of power under Section 100 of the Code of Civil Procedure. Even on the merits, it was held that High Court was not right in relying upon the alleged admission as the admission ought to have been taken as a whole and it was not permissible to rely on a part of the admission. In case of defendant, the admission which is considered is about the relationship between the plaintiff and the defendant; non execution of a registered lease deed, termination of tenancy by a notice under Section 106 of Transfer of Property Act and no lease deed executed for the renewal period. These facts and pleas are apparent and can not be denied. In the circumstances, it can not be contended by the defendant that a part of the admission is being considered.

28. In Chikkam Koteswara Rao (supra), another case relied on by the defendant, the Apex Court held that the admissions must be clear in their meaning holding that before right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear cut and conclusive. In the matter of Madhav Leasing Finance (P) Ltd. (supra), a single Judge of this Court had held that a decree under Order XII Rule 6 cannot be passed unless the admission made is clear cut and unambiguous. In this case, the defendant had alleged that under an unregistered agreement dated 4th December, 1994, the lease was mutually agreed to be extended for a further period of five years with effect from January 15, 1995 and the defendant was assured that the unregistered agreement would be transformed into a registered lease deed and the enhanced rent after the expiry of January 15, 1997 would be 50% of the total rent. The original agreement dated 4th December, 1994 was in possession of the plaintiffs and a copy of which was in possession of the defendant company. The defendant had also filed a counter-claim. Perusal of the facts of the case relied on by the defendant shows that the facts are apparently distinguishable as in this case it was categorically asserted that there was an agreement not only for renewal of the lease, however, that agreement was acted upon and the enhanced rent of 50% was also agreed and it was represented to the tenant that the unregistered agreement dated 4th December, 1994 would be transformed into a registered lease deed on the basis of which the defendant even had filed a counter-claim.

29. Another case relied on by the defendant R.S. Bakshi and Anr. (supra) was under the Rent Control Act under Section 14(1)(h) of the Delhi Rent Control Act, 1958, where the tenant had made an averment that no allotment has been made of a flat for which category respondent was entitled and it had been held that since the respondent/tenant had not yet been allotted a flat in terms of the order passed by the High Court in a writ petition, no clear cut admission was made out on the part of the respondent, consequently, on the basis of such an admission, eviction order was not passed.

30. There is no dispute that the admission pursuant to which an order of recovery of possession can be passed under Order XII Rule 6 has to be unequivocal and unambiguous. Reliance by defendant on Deepak Chopra (HUF) and Ors. (supra) where a decree for recovery of possession under Order XII Rule 6 was not passed on the ground that the tenure of the lease was subsisting and the ground whether the lease could be legally terminated during the subsistence of lease on the ground of non-payment of rent was yet to be established. Since the lease was subsisting and the ground for non-payment of rent was not admitted and established, it was held that it was not open to the landlord to determine the lease treating it as month-to-month tenancy when it was for a longer period of five years and the question of non-payment of rent had to be substantiated by leading evidence. In Narayan and another (supra), the suit was filed on the basis of unregistered agreement to sell and it was held that unregistered document affecting immovable property can be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act or as part of evidence for the contract for the purpose of Section 53A of the Transfer of Property Act, 1882 or as an evidence of any collateral transaction not required to be effected by registered instrument. Another case of Balraj Taneja (supra) relied on by the defendant is also clearly distinguishable as that was a case for specific performance where it was held that under Section 16 of the Specific Relief Act, the plaintiff has to plead his readiness and willingness to perform his part of the contract and the court before acting under Order VIII Rule 10 has to scrutinise the effects set out in the plaint to find out whether all the requirement specially those incorporated under Section 16 of the Specific Relief Act had been complied with or not. In those circumstances, it was held that the court can at interlocutory stage of proceeding pass a judgment on the basis of admission made by the defendant but before the court can act upon the admission, it has to be shown to be unequivocal, clear and positive and courts are not to act blindly or mechanically and the discretion is with the Court to pass such order as it may think fit as an alternative.

31. In State Bank of India (supra), the judgment relied on by the defendant, a single Judge of this Court had held that the judgment on admission under Order XII Rule 6 is not as a matter of right but matter of discretion of the court. This was a case for recovery of loan and admission of the defendant as to the sum due to the Bank was not unequivocal and the defendant had even raised certain preliminary objection going to the root of the matter which could have non-suited the plaintiff and in these circumstances it was held that the Court was not to exercise its discretion and pass a judgment on the basis of alleged admissions on the part of the defendant.

32. In the case of the defendant in the present suit, the case of the defendant is that the lease was renewable but there is a clear admission that the lease was not renewed by execution of a registered lease deed. Even the original lease deed was not registered and was not duly stamped. The tenancy of the defendant will be month to month in the facts and circumstances and will be determinable by notice under Section 106 of the Transfer of Property Act, 1882. No circumstance has been alleged in the entire written statement to show that the lease was further renewed by execution of a registered lease deed or could be renewed without the registered lease deed and that renewal of the lease was accepted by the plaintiff. If there are more than one relief claimed by a party, for decreeing the suit for one relief, admissions made in respect of that relief are to be considered. Even if there are no admissions for other relief, if admissions for one of the relief are sufficient, necessary judgment and decree can be passed in respect of one particular relief.

33. In a number of cases it has been held that a decree of possession can be passed, if the tenant is unable to show continuation of tenancy. Reliance for this can also be placed on 2000 (VI) AD (Delhi) 347, Zulfiquar Ali Khan (dead) through LRs and Ors. v. Straw Products Limited and Ors.; 1997 I AD (Delhi) 641, Atma Ram Properties Pvt. Ltd. v. Air India; , Vijayshree Commercial (P) Ltd. v. Tika Jagjit Singh Bedi; , Amar Chand Talwar and Ors. v. Export Promotion Council for Handicrafts; 2000 I AD (Delhi) 699, Bank of Rajasthan Ltd. v. Sarin and Co.; 2002 IV AD (Delhi) 845, State Bank of Patiala v. Anant Raj Agencies Properties; 2003 III AD (Delhi) 419, Delhi Jal Board v. Surndra P. Malik to contend that on the basis of averments in the written statement and documents, a decree for possession can be passed, if the tenant is unable to show continuation of tenancy besides Samir Mukerjee (supra); Shri Surjit SAchdeva (supra); M/s Singer India Ltd.(supra); M/s Uptron Powertronic Ltd (supra); Rasiklal Mehta (supra) and Bharat Petroleum Corporation Ltd.(supra) referred to in above paragraphs.

34. This is not disputed between the parties that there was a relationship of landlord and tenant between the plaintiff and the defendant. The defendant has contended that a lease deed dated 1.4.1990 was executed on a stamp paper of Rs. 2/- which was not registered. The lease categorically stipulated that it could be renewed for a further period of five years if the intention not to renew the lease is not communicated before the expiry of the term of this lease. The term which was agreed between the parties on the basis of sanction letter dated 27.9.1989 is as under:-

The term of lease will be for a period of 5 years initially with an option to the Bank to renew the lease for a further period of 5+5 years with 15% increase in rent after every 5 years. The expenses in connection with the execution and registration of the lease deed will be borne by you in full.

The relevant term which was incorporated in the unregistered lease deed dated 1.4.1990 which was signed by the plaintiff and returned to the defendant is extracted as under:-

That in the event of the Lessees not being desirous of exercising the option to them hereinbefore reserved to renew this lease for a further period of 05 years they shall not less than three months before the expiry of the terms of this lease, give the Lessers intimation in writing of their intention not to renew the same, failing which notice it will be held that the option is being exercised.

35. Pursuant to these documents the possession of the premises was taken by the defendant and he continued to pay the rent till March, 1997. In the circumstances the relationship of landlord and tenant is not disputed. The dispute is whether this was a lease for 5 years from 1.4.1990 till 31.3.1995 and renewed subsequently for two terms of five years each or was it a month to month lease.

36. It is no more res integra that a lease for a period of more than one year can be created in accordance with Section 105 of the Transfer of Property Act which contemplates that the lease should be in writing and it should be in accordance with law. On the conjoint reading of the provisions of the Registration Act, the Stamp Act and the Transfer of Property Act, 1882 a lease for more than one year has to be in writing and on a stamp paper of 1% of the annual rent, in Delhi for a period up to five years in the present facts and circumstances, duly registered with the Registrar of documents. Admittedly the plaintiff has only produced a photocopy of the lease. Defendant has not produced the original lease deed or a copy thereof. The defendant is also relying on the photocopy of the lease deed produced by the plaintiff. Admittedly registered lease deed was not executed by the parties for tenancy commencing from 1.4.1990. 37. It can also be not disputed and has not been disputed by the counsels that if a lease is not registered still it can be considered for collateral purpose provided it is duly stamped. Admittedly the monthly rent for the tenancy commencing from 1.4.1990 was Rs. 17,220 per month. For a written lease for more than one year with a monthly rent of Rs. 17,220 the appropriate stamp paper could not be Rs. 2/-.

38. The learned Counsel for the defendant is unable to point out any provision and any precedent that a lease deed which is not executed on an appropriate stamp paper can be considered even for collateral purpose. For the sake of argument even if a written lease deed executed on a deficient stamp paper is considered for collateral purpose, the term regarding the period of the lease and the stipulation in the lease that the lease can be renewed for further period on exercising option, is not and cannot be construed as collateral purpose. The learned senior counsel for the defendant though insisted vehemently that the matter required framing of the issues some of which have been delineated in the above paras, but he was unable to show anything that the term regarding the period of lease and the term in the lease deed for the renewal for further period will be a collateral purpose and can be considered and enforced.

39. The inevitable inference in the circumstances is that the lease deed dated 1.4.1990, a photocopy of which was produced by the plaintiff could neither be considered as a lease for five years from 1.4.1990 till 31.3.1995 nor Clause 2 of the lease can be considered and enforced.

40. If that be so the relationship between the plaintiff and the defendant was of a month to month tenant and such a monthly tenancy could be terminated by a notice as contemplated under Section 106 of the Transfer of Property Act, 1882.

41. Despite the tenancy being month to month from the beginning as there was no registered lease deed which was alleged to be for five years, the plaintiff has also pleaded on the premise that there was a lease between the parties for a period of five years from 1.4.1990 up to 31.3.1995 which could be renewed for a further period of five years on exercising option three months before the expiry of the lease period and on the terms and conditions settled between the parties. The contention of the plaintiff is that though no communication was sent three months prior to the expiry of the lease on 31.3.1995 and in the circumstances, according to the term of the lease, it was renewed, however, despite letters dated 3.6.1995, 22.7.1995, 18.11.995, 21.3.1996, nothing was done by the defendant to get the renewed lease deed executed. The defendant has relied on the letter dated 23.1.1995 from Regional Manager of the defendant to the plaintiff regarding exercise of option to renew the lease. The said letter exhibit D1 refers to another letter bearing No. Tuglaq/Premises/52/95 dated 31.12.1994 and on the basis of letter dated 23.1.1995 the defendant bank cannot contend the exercise of its option for the renewal of lease three months before the expiry on 31.3.1995 had culminated into a further lease of five years without executing a registered lease deed.

42. The learned senior counsel for the defendant has laid great emphasis on the sanction letter dated 27.9.1989 regarding the term settled between the parties. Perusal of sanction letter and the term about renewal incorporated in the unregistered lease deed, it is apparent that there is variation even among the two. Whereas the sanction letter dated 27th September, 1989 contemplates renewal for 5+5 years with the option to the bank, the unregistered lease deed contains renewal for a period of five years only. In my opinion even on the basis of the terms and conditions agreed between the parties by the sanction letter dated 27.9.1989, if it was agreed by the defendant that the lease deed will be for more than one year, a lease for more than five years with renewal for two terms of five years each could not be created without executing a written instrument on a stamp paper in accordance with the provision of The Stamp Act and by getting it duly registered with the Registrar of Documents nor the said term can be enforced to renew the lease for a further period of five years without executing a duly stamped and registered instrument. The tenancy of the defendant will be month to month and did not expire after five years period on 31.3.1995 but continued as a month to month tenancy till it was determined by the plaintiff?s first notice under Section 106 of the Transfer of Property Act, 1882 dated 8th March, 1997 terminating the tenancy w.e.f 31st March, 1997.

43. The plaintiff has given four notices. By notice dated 8.3.1997 the tenancy was determined and the defendant was asked to hand over the possession by 31.3.1997 in accordance with the requirement of Section 106 of the Transfer of Property Act, 1882. Another notice dated 11.8.1998 was given demanding handing over of possession by 31.8.1998 and thereafter notice dated 10.11.1998 was given demanding handing over of possession by 30.11.1998 and final notice dated 5.7.1999 was given demanding handing over of possession by the defendant at the midnight of 31.7.1999. In para 10 of the written statement on reply on merits it was admitted that the plaintiff served a legal notice dated 5.7.1999 which was even replied by the defendant by reply dated 25.8.1999.

44. In para 7 of the written statement of reply on merits, the defendant has admitted the notice dated 8th March, 1997 contending that the notice was given in reply to letter dated 12th February, 1997 of the defendant asking the plaintiff to execute the lease deed. It was also averred that the notice was illegal and malafide and to pressurize the defendant to pay the rent in respect of open space of 350 sq.feet. However, it was not pleaded as to how the notice could not determine the tenancy in accordance with the provision of Section 106 of Transfer of Property Act, 1882. Even for the subsequent notice dated 5th July, 1999 it is stated that the notice is false because the plaintiff had been claiming arrears of rent in respect of 3770 sq.feet instead of 3444 sq.feet and demanded enhancement of rent of 25% instead of 15% but it has not been averred that the tenancy could not be determined in accordance with Section 106 of Transfer of Property Act, 1882.

45. The tenancy between the parties was from month to month which could be determined without assigning any reason by giving a notice as contemplated under Section 106 of Transfer of Property Act, 1882 terminating the tenancy after fifteen days from the service of notice or after 15 days expiring with the last date of the month of the tenancy. The defendant has not contended that the tenancy could not be determined but has stated that it is false as the rent has been claimed for 3770 sq.feet in place of 3444 sq.feet. On termination of tenancy how much amount is due to the plaintiff from the defendant on account of arrears of rent or on account of damages for use and occupation of the charges and from which date such charges are payable is yet to be determined especially in the present case as there are four notices given on different times and after giving the first notice whether the rent was accepted by the defendant making it month to month tenancy again which was again determined by a subsequent notice is also yet to be established. If the tenancy stood determined pursuant to notice dated 8.3.1997 with effect from 31.3.1997 and was not renewed than this will make defendant liable to pay damages from 1.4.1997. However, if after this notice there was acceptance of rent and intention to create another month to month tenancy it is to be established. However after the last notice dated 5th July, 1999 terminating the tenancy from 31st July, 1999 neither any allegations have been made about payment of rent nor it has been contended that a tenancy was created after 31st July, 1999. After determination of tenancy by notice under Section 106 of the Transfer of Property Act, 1882. The plaintiff has claimed arrears of damages from 1st April, 1997 after determination of tenancy by first notice dated 8th March, 1997. The plaintiff has also relied on term of the lease about the termination of tenancy after five years on 31st March, 1995. Since the lease was not registered nor on an appropriate stamp, the clause regarding the period of lease can not be considered and it can not be held that the tenancy was for five years and expired after five years. The tenancy of the defendant in the facts and circumstances was month to month and continued as month to month tenancy till it was determined by notice as contemplated under Section 106 of Transfer of Property Act, 1882. Whether the plaintiff will be entitled for rent for the open space or not, if the plaintiff will be entitled for rent for the open space then from which date, is also to be determined. Therefore, what arrears the plaintiff is entitled for is yet to be determined and will be determined after the parties will lead evidence in support of their claim.

46. In Civil Appeal No. 8177 of 2003 decided On: 29.03.2006 titled Sarup Singh Gupta v. S. Jagdish Singh and Ors. it was held that a mere perusal of Section 113 of the Transfer of Property Act, 1882 leaves no room for doubt that in a given case, a notice given under Section 111, Clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the Court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative. In present case, the defendant has not made any averment that after determination of tenancy by notice dated 5th July, 1997 determining the tenancy from 31st July, 1997 there has been payment of rent and acceptance of it by the plaintiff with the intention to create a fresh month to month tenancy. The plea of the defendant is that lease was created for five years in 1990 with an option to renew the lease for two more terms of five years which option was exercised by the defendant which tenancy continued up to 31st March, 2005 which has been negatived.

47. The two factors therefore, which emerges unequivocally between the parties are that there was a relationship of landlord and tenant between the plaintiff and defendant and that relationship has been determined as contemplated under Section 111 of Transfer of Property Act. The learned Counsel for the defendant is unable to point out any pleading in the written statement which will make the notice under Section 106 of the Transfer of Property Act terminating the tenancy defective or invalid so as to lead to an inference that the tenancy between the parties was not determined. There is nothing to show that after the determination of tenancy the defendant is entitled to continue in possession of the suit premises. The plea of the defendant that the lease period was for fifteen years and could not be terminated by notice under Section 106 of The Transfer of Property Act, 1882 has already been declined.

48. One of the objection of the defendant is that since the plan of the premises has not been filed, though it is stated in the plaint that the premises is shown in the red in the plant, the plaintiff is not entitled for recovery of possession. It has not been disputed that the entire property known as Vishwakarma situated at Lal Kuan, Tuglakabad, New Delhi was let out and is identifiable as this is not the case of the defendant that some portion of the building was let out to some other person or company. If the building which was demised is identifiable, the plaintiff shall be entitled to recover the possession of the same and on this ground also the plaintiff cannot be deprived of recovery of possession from the defendant. The defendant has also claimed that the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure. Perusal of the averments made in the plaint, it is inevitable to infer that the plaint discloses cause of action and none of the grounds as contemplated under Order VII Rule 11 of the Code of the Civil Procedure is made out to entail rejection of the plaint and consequently on this ground also the decree of possession in favor of the plaintiff and against the defendant can not be declined.

49. Consequently on the basis of pleadings regarding recovery of possession the inevitable inference is that it has been established that there was a relationship of landlord and tenant between the parties which stood determined on termination of the lease by a notice under Section 106 of the Transfer of Property Act and after determination of tenancy there was no fresh tenancy created in favor of defendant and consequently the defendant is not entitled to retain possession after determination of his tenancy. If the defendant is not entitled to retain possession after determination of his tenancy, inevitably a decree for recovery of possession has to follow to recover possession of the premises demised to the defendant and to restore the possession to the plaintiff.

50. Therefore, the application of the plaintiff under Order 12 Rule 6 is allowed and a decree for recovery of possession for the premises/building known as Vishwakarma, situated at Lal Kuan, Tuglakabad, New Delhi consisting of ground floor, mezzanine floor and top floor with an open area having a total area of 3770 sq.feet is passed in favor of plaintiff and against the defendant. However, parties are left to bear their own costs in the facts and circumstances of the case.