H.G. Gupta And Sons vs Messrs Silvertone Motors Private ...
2008 Latest Caselaw 221 Del

JUDGMENT

Badar Durrez Ahmed, J.

IA 4236/2006 (Under Order 12 Rule 6, CPC)

1. This is an application filed on behalf of the plaintiff seeking judgment on admissions in favor of the plaintiffs and against the defendants for directing the defendants to hand over to the plaintiffs physical vacant and peaceful possession of the suit premises, as more specifically described in the site plan annexed as Annexure-B to the plaint. The application has been made on the basis of purported admissions on the part of the defendants. The suit has been filed for possession and for mesne profits in respect of premises No. 31, Najafgarh Road, New Delhi measuring approximately 24003 sq. ft. The defendant was inducted as a tenant in the said suit property by virtue of a document which is titled as "Agreement to Let", but in effect is a lease deed. The said lease deed has been admitted by the defendant and is marked as Exhibit P-1. It is a registered document. The lease deed was entered into on 01.09.2002 and was registered on 19.10.2002 as document No. 14646, Addl. Book No. -I, Volume No. 10614 at pages 83-91 with the Sub-Registrar, West District, Delhi. The lease (Exhibit P-1) contains several clauses. The relevant ones are discussed below:

i) Clause 3 of the lease specifically provides that the premises shall be let with effect from 01.09.2002 to 30.04.2006.

ii) Clause 4 provides that the initial rent for the period up to 30.04.2004 would be Rs 3.25 lakhs per month. For the remaining period of the lease, i.e., 01.05.2004 to 30.04.2006, the rent payable was Rs 3.75 lakhs per month.

iii) Clause VI of the Lease Covenants clearly states that upon the expiry of the lease period or sooner determination of the lease, the lessee shall peacefully and quietly yield up and return the demised premises in good repair and tenantable position by removing its belongings from the premises.

iv) Clause VIII of the very same Covenants clearly stipulates that the lessee shall be liable to pay damages in case the lessee does not remove his belongings after the determination of the lease either by efflux of time or earlier as provided in the lease.

2. There are four provisos added at the end of the lease. The first three are relevant and they read as under:

1. That the lease is subject to the court order dated 30th August 1999 in suit No. 1794/85 wherein the property has been ordered to be sold by the receiver of the firm, either to an outside party or inter se between the co-owner of the property. If the property is not sold, the lease is valid for the period as agreed between the parties, but if it is sold and the new owner wishes to terminate the lease, First party shall give the Second Party 3 months notice for the termination of the lease & a further sum equal to six months rent towards the cost of damages of interiors / Fixtures / loss of business. The Second party is bound to vacate this property without any demur or claim other than that specified above.

2. That the parties hereby agree with each other that the lease is terminable by either side by giving three months clear notice of determination of tenancy during the lease period without assigning any reason. However, it is further agreed between the parties that the party terminating the tenancy prematurely through a registered notice of the above stipulated time shall also be liable to pay six months rent as damages to the other party besides the notice of clear three months for termination of the tenancy.

3. That the lease shall automatically come to an end upon the expiry of the term of the lease unless determined earlier.

2. On 22.12.2004, the lease was determined by a notice of termination of the tenancy. This document is admitted and has been marked as Exhibit P-2. The said notice to quit was issued specifically under the second proviso referred to above where it was clearly indicated that the lease was terminable by either side by giving three month's clear notice of termination of the tenancy during the lease period without assigning any reason. The plaintiff had issued the said notice to quit through its advocate and had agreed to be liable to pay six months' rent as damages to the defendant in terms of the said second proviso contained in the said lease deed. In paragraph 7 of the said document (Exhibit P-2), it was clearly stated as under:

7. That, any amount henceforth paid by you and / or received and appropriated by our client shall be so accepted and / or appropriated by our client without prejudice to this notice and upon determination of the tenancy and all such payments shall be adjusted towards satisfaction of any part of mesne profits and / or damages for use and occupation of the said premises due from you in the event you fail, neglect and default in handing over vacant and peaceful possession of the premises on the expiry of the period of the present notice, i.e. on or before 31-3.2005, as stated above.

3. This paragraph makes it clear that any amount henceforth paid by the defendant to the plaintiff and / or received or appropriated by the plaintiff would be without prejudice to the notice to quit and upon determination of the tenancy, all such payments would be adjusted towards satisfaction of any part of mesne profits and / or damages for the use and occupation of the said premises due from the defendant in the event the defendant failed, neglected or defaulted in handing over vacant and peaceful possession of the premises on the expiry of the period of the said notice, i.e., on 31.03.2005. The said notice had been replied to by way of Exhibit P-3. Since the defendant did not vacate the premises in question despite service of notice, the present suit was filed on 30.05.2005. Thereafter, the pleadings were completed and because of the admissions made in the pleadings, the present application had been filed. It is the case of the learned Counsel for the plaintiff / applicant that all that needs to be established by the plaintiff for a decree of possession and eviction of the defendant is that the lease had been executed, the lessee came into occupation of the premises under the lease, the lease had been terminated either by a notice or by efflux of time and that the defendant continued to be in occupation despite the end of the tenure of the lease. Mr Sudhir Chandra, the learned senior counsel appearing on behalf of the plaintiff submitted that these facts are clearly admitted and, therefore, a judgment on admissions in favor of the plaintiff to the extent of relief of eviction can be granted. He referred to a few decisions. The first decision that was referred to by Mr Sudhir Chandra was the case of Charanjit Lal Mehra and Ors. v. Smt Kamal Saroj Mahajan and Anr. . He placed reliance on paragraph 8 of the said decision wherein it was particularly stated that Order 12 Rule 6, CPC is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from the facts and circumstances of the case without any dispute; then, in such a case, in order to expedite and dispose of the matter, such an admission can be acted upon. In the case before the Supreme Court, the terms of the lease had been looked into and it had been found that the lease was a joint tenancy and not individual leases as was sought to be made out by the defendant and in view of these admitted facts, the learned single Judge of the High Court decided in favor of the Lesser. Such a decision was confirmed by the Supreme Court. The key point that was made by Mr Sudhir Chandra was that the aforesaid decision of the Supreme Court recognises the fact that Order 12 Rule 6 can be invoked where there are admissions on behalf of the defendant as well as where admissions can be inferred from the facts and circumstances of the case. In this light, he submitted that as of today, the lease, which is an admitted document has also expired. Therefore, the defendant has no case for continuing in possession.

4. Mr Sudhir Chandra then referred to the order dated 21.02.2006 passed in IA No. 1234/2006 which was an application filed by the plaintiff for permission to encash the cheques which had been issued by the defendants during the currency of the suit. That application had been allowed by the said order dated 21.02.2006 without prejudice to the rights and contentions of the parties. The order dated 30.05.2007 was also referred to by Mr Sudhir Chandra wherein the amounts deposited for the period April 2006 to July, 2006 by the defendant were allowed to be appropriated towards charges for use and occupation of the premises. That order was also without prejudice to the rights and contentions of the parties.

5. Mr Sudhir Chandra then referred to the provisions of Section 111, 113 and 116 of the Transfer of Property Act, 1882. He submitted that the defendant could only have a case if the provisions of Section 113 could be invoked or the defendant could show that there was holding over as indicated in Section 116 of the Transfer of Property Act. He submitted that neither the ingredients of Section 113 constituting a waiver of the notice nor the ingredients of Section 116 constituting holding over have been set out by the defendant. He submitted that from the conduct of the parties, the admission can be easily inferred that the defendant is in occupation of the premises in question without him having any legitimate right to be in such occupation.

6. Mr Sudhir Chandra then referred to the decision in the case of Sarup Singh Gupta v. S. Jagdish Singh and Ors. which was rendered in the context of the provisions of Section 113 as well as 116 of the Transfer of Property Act. The Supreme Court observed that mere acceptance of rent for the subsequent months in which the lessee continued to occupy the premises even after the expiry of the period of lease cannot be said to be a conduct signifying assent to the continuance of the lease even after the expiry of the lease period. The following observation of the Supreme Court is also noteworthy:

...We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so Intended....

7. The last decision referred to by Mr Sudhir Chandra was that of Shanti Prasad Devi and Anr. v. Shankar Mahto and Ors. wherein the Supreme Court once again considered the provisions of Section 116 of the Transfer of Property Act. The Supreme Court, agreeing with the High Court and the first appellate court, noted that mere acceptance of rent for the subsequent months in which the lessee continued to occupy the lease premises could not be said to be a conduct signifying assent to the continuance of the lease even after the expiry of the lease period.

8. The learned Counsel for the defendant submitted that although the lease is an admitted document as well as the notice to quit, the plaintiff had accepted rent after the termination of the lease / expiry of the lease and, therefore, this constituted holding over. He submitted that in this context, while the plaintiff was alleging that the plaintiff did not accept any rent for the period subsequent to termination of the lease, the defendant had contended that the plaintiff had accepted the rent and thereby constituted holding over on the part of the plaintiff. He submitted that this in itself was an issue which was friable and for which evidence was necessary and a judgment on admissions could not be granted. The learned Counsel referred to the decision of the Supreme Court in the case of Bhuneshwar Prasad and Anr. v. United Commercial Bank and Ors. which was also a decision considering Section 116 of the Transfer of Property Act. That was a case in which the lease was for five years with an option for renewal for two terms. The option was to be exercised one month prior to the expiry of the lease period. The first option had been exercised in time, but the second option had not been and the request to renew had been declined. However, the tenant had deposited rent in the account of the landlord, but without his consent. The tenant, therefore, claimed month-to-month tenancy. In that case, the rent was also withdrawn by the landlord at the increased rates as was being deposited on a monthly basis. In these circumstances, the Supreme Court was of the view that the acceptance and withdrawal of increased rent was in token of landlord's assent to the tenant to continue in possession of the premises after expiry of the lease, thereby creating tenancy from month to month. The facts of that case and the facts of the present case are entirely different. There is nothing to indicate that the plaintiff assented to the continuance of the defendant in the suit property. Unless and until such an assent is discernible from the conduct of the parties, it cannot be held that the defendant was holding over and that the defendant continued to be in occupation of the suit premises with the clear consent and assent of the plaintiff. Such an inference cannot be drawn in the facts and circumstances of the present case which are entirely different from the facts and circumstances which arose before the Supreme Court in Bhuneshwar Prasad (supra).

9. The learned Counsel for the defendant then referred to the decision of a learned single Judge of this Court in the case of Parivar Seva Sansthan v. Dr.(Mrs.) Veena Kalra and Ors. . That decision also is not of much help to the defendant inasmuch as on facts it was decided that when issues had been raised which required evidence and determination post-evidence, the purported admission on the part of the defendants could not be construed to be unequivocal or positive admission. Apart from this, there is nothing in the said decision which goes in favor of the defendant.

10. The facts of the present case are very simple. The plaintiff had executed a lease in favor of the defendant. The lease was to terminate on 30.04.2006. The lease was also terminable by giving three months notice by either party. The lease is admitted. The plaintiff gave a notice terminating the lease on 22.12.2004. The defendant did not vacate the premises despite such notice. Consequently, the plaintiff instituted the present suit. During the pendency of the present suit, the plaintiff filed this application for a judgment on admissions on the ground that the lease has been admitted as well as the notice to quit. During the pendency of the suit, certain payments were made by the defendants. Those payments were accepted by the plaintiff with the rider that they are without prejudice to their rights and contentions and without prejudice to the notice to quit. The payments were also directed to be appropriated towards use and occupation of the premises during the pendency of the suit. Such acceptance of payments cannot constitute acceptance of rent as contemplated under Section 116 of the Transfer of Property Act. Clause 7 of the notice dated 22.12.2004 had also made it clear that any payments that may be made by the defendant in favor of the plaintiff and which may have been accepted by the plaintiff would be without prejudice to the notice and without prejudice to the fact that the defendants do not have a right to continue in occupation. Apart from this, another event that has taken place is that during the pendency of the suit, the lease period itself has expired and the lease stands determined by efflux of time by virtue of Section 111 (a) of the Transfer of Property Act. There is no answer whatsoever on the part of the defendant as to how he can continue in occupation after the determination of the lease. The only answer is that certain payments were accepted by the plaintiff and this constitutes holding over. I am unable to agree with the submissions of the learned Counsel for the defendants because, as indicated in the Supreme Court decisions referred to above by Mr Sudhir Chandra, there is nothing on record to enable this Court to come to the conclusion that the plaintiff assented to the continued illegitimate occupation of the defendants in the suit premises. There is nothing on record to establish that the plaintiffs had accepted any payment from the defendant by way of rent as contemplated under Section 116(3) of the Transfer of Property Act.

11. This is a clear case of admissions having been made by the defendant and / or admissions which can be inferred from the facts and circumstances of the case. The defendant has no right to continue in occupation, the lease having expired. Consequently, this application is allowed. The plaintiff is entitled to a decree of possession. Insofar as the question of mesne profits and damages are concerned, the suit will continue. The decree sheet be drawn up for the relief of possession.

This application is allowed.