Smt. Madhu Gupta & Ors. vs M/S Shyam Telecom Ltd.
2008 Latest Caselaw 1670 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+            I.A. No.778/2008 (U/O XII Rule 6 CPC) and
                          CS(OS) 1032/2007

                                         Reserved on: 11.08.2008
                                      Pronounced on : 17.09.2008


SMT. MADHU GUPTA & ORS.                                  ..... Plaintiff

                         Through Mr. Naresh Thanai, Advocate

                    Versus

M/S SHYAM TELECOM LTD.                      ..... Defendant

                         Through Mr. Sushant Thakur, Advocate


CORAM:

Mr. Justice S. Ravindra Bhat

1.

Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

Mr. Justice S. Ravindra Bhat

1. The plaintiff, by this application, seeks a decree on admissions, under

Order 12, Rule 6, Code of Civil Procedure (CPC). The plaintiff is owner of

property bearing No.C-138, Naraina Industrial Area, New Delhi - 110 028

(hereafter called "suit property") by virtue of Memorandum recording an oral

CS (OS) 1032/2007 Page 1 family Settlement, dated 6.12.2001. The suit property comprises of

basement, ground floor, first floor and second floor. The plaintiff Nos 1 and 2

own front portion admeasuring 70 ft. x 45 ft. which fell to their share; the

rear portion admeasuring 50 ft. x 45 ft. fell to the share of plaintiff No.3, who

transferred half of his share to his wife, plaintiff no.4.

2. The plaintiffs aver to the defendant being inducted as licensee in a part

of the suit mentioned property. It is also alleged that after the plaintiffs

became owners of the above mentioned property, by virtue of Memorandum

dated 06.12.2001, tenant(s) handed over constructive possession to the

plaintiffs. The plaintiffs aver that a tenancy was created by them (plaintiffs)

in favour of defendant with effect from 01.09.2004 in respect of the

basement, entire first floor, entire second floor and ground floor

admeasuring 2790 sq. ft. (approximately), total area admeasuring 13425 sq.

ft. (approximately) of the suit property. The suit property was let out to the

defendant for the purposes of testing, marketing electronic items/telephonic

products or to operate office for administrative and sale purposes. The rent

payable by the defendant to the plaintiffs for the suit premises was agreed to

be Rs.1,06,950/- to be paid in advance on or before 7th day of each English

Calendar month. The rent was agreed and/or was being paid by the

defendant in four equal shares i.e. one to each of the plaintiffs amounting to

Rs.26,737.50 ps. Electricity and water charges were agreed to be paid

directly to the concern authorities.

CS (OS) 1032/2007 Page 2

3. The plaintiffs aver that the parties executed a license deed dated

01.02.2005 in respect of the tenancy created by the plaintiffs in favour of

defendant with effect from 01.09.2004. However, the said agreement being

under stamped and unregistered is inadmissible in evidence. Thus, by

operation of law the tenancy, in favour of the defendant was on month to

month basis commencing on the first day to each English Calendar month

and ending on the last day of the said month. According to the plaintiffs, the

defendant has been defaulting as rent was never paid in advance on or

before 7th day of each English Calendar month. Even otherwise, plaintiffs

require the suit premises for carrying their own business. Therefore, plaintiffs

got the said tenancy terminated by notice dated 29.03.2007 issued on behalf

of plaintiff. The said notice was sent by registered post as well as UPC and

has been duly served upon the defendant. The AD cares duly acknowledged

were received back in regular course of business.

4. The plaintiffs allege that the defendant is liable to vacate and deliver

the suit premises to the plaintiffs and pay a sum of Rs.3,91,562/- towards

mesne profits at same rate with effect from 01.05.2007 till institution of the

suit. In the present application, it is alleged that the defendants

have not denied, in material particulars the averments in

the suit, or the documents relied upon. According to the plaintiffs, the court

should therefore, decree the suit so far as the relief of possession is

CS (OS) 1032/2007 Page 3 concerned, invoking its powers under Order 12, Rule 6, CPC.

5. The Defendant contends that the present case involves seriously

disputed issues including the terms of the real agreement to lease as agreed

mutually by and between the parties, and the validity of the legal notice. The

defendant submits that the premises had been let out to it for manufacturing

purposes and are being used as such; therefore the minimum statutory

period prescribed as "notice period" under Section 106 of Transfer of

Property act, is six months whereas the plaintiff has purported to issue a

notice for a period of hardly a month. Similarly the legal effect of the reply to

the legal notice, calling upon the plaintiff (through advocate) to either rejoind

to the reply within stipulated period or face the situation of the legal notice

being treated as withdrawn/not pressed, has, according to the defendants,

be decided.

6. The defendants counsel contends that the plaintiff was called upon by

way of reply to plaintiff's legal notice, to indicate whether the plaintiff

wanted the defendant to execute a stamped lease deed and get the same

registered, to which plaintiff has not countered/disputed in any manner and

now the plaintiff cannot be allowed to take advantage of its own

wrongs/defaults. According to the defendant, the lease period agreed upon

was 15 years, in terms of the oral understanding. It is urged that the

defendant has throughout remained ready and willing to do all what was

required for giving effect to the agreed 15 years lease period. The defendant

CS (OS) 1032/2007 Page 4 has also done all that was required on its part. It is contended that the

defendants, on the strength of representation by one Dinesh Chandra, about

being the plaintiffs' tax consultant, trusted him, and signed blank stamp

papers, which were to be used with the Delhi Development Authority to say

that no commercial activity was being carried on in the premises. However,

those papers were not used for the purpose.

7. The defendants contend that the plaintiff has opted/preferred that the

parties continue under the orally agreed agreement to lease for the entire

period of 15 years or at-least that is the legal effect of the plaintiff not having

responded or repudiated the reply sent by the defendant through

defendant's advocate to the plaintiff's legal notice. As and when the plaintiff

does repudiate/disown the commitment of oral agreement to lease for the

agreed period of 15 years, the defendant, it is contended, will have right of

legal recourse by way of appropriate proceedings against the same.

8. It was urged that as on date the plaintiff stands precluded by the

unequivocal acceptance of the contents of defendant's reply to the legal

notice and this aspect, is itself a dispute, which has to be tried in the present

proceeding. Furthermore, contends the defendant, the plaintiff has itself

attached a document which is inadmissible in evidence and is liable to be

impounded, but the same also contains a stand on the part of plaintiff to the

effect that the tenancy will continue up to September 2007. As such, even on

plaintiff's suit and documents, the action is clearly premature. The defendant

CS (OS) 1032/2007 Page 5 has explained the circumstances relating to the said document and why the

same is not binding or enforceable. However, as far as plaintiff is concerned,

all the aspects require trial of disputed averments, on evidence to be

adduced by both parties and to be tested by cross examination.

9. Learned counsel for the parties reiterated the contentions articulated

in the pleadings. It was urged, besides by the defendants counsel that aside

from all other aspects, the reply to the plaintiff's legal notice, not having

been countered by any response or by way of specific averments in the

plaint explaining why the reply to notice should not prevail, the legal effect

of the notice to quit served by the plaintiff's upon the defendant, is itself a

matter to be determined on trial after evidence. Counsel points out that the

stand of the defendant regarding the oral agreement to lease for a period of

15 years with rental increase of 5% after completion of each year, which has

been duly acted upon by both parties, and which version has neither been

countered or rebutted at the time of exchange of legal notice and reply or

before this Court in relation to the written statement and the replication,

embodies seriously disputed matters which are to be decided by evidence

after trial, and hence cannot be adjudicated by way of application under

Order 12 Rule 6 read with section 151 CPC. Thus, there is no unambiguous

admission which can be the basis of a decree.

10. Order XII Rule 6 confers discretion upon the Court to decree any suit to

the extent of admissions made. The discretion is to be exercised judiciously;

CS (OS) 1032/2007 Page 6 the power, however, is wide and encompass not only pleadings but other

materials, The Supreme Court has, however, held that it is only an

unequivocal and clear admission which can warrant proper exercise of

discretion (Ref: Balraj Taneja and Anr. vs. Sunil Madan and Anr., AIR 1999 SC

3381). Equally, a fine distinction between a specific admission on the one

hand and vague averments, which, if proved, could tantamount to admission

by the party making it on the other have been made. The Court should

consider granting decree on admissions in the first category to never grant a

decree in the latter category.

11. In this case, the plaintiff does not deny execution of the agreement, or

having received the notice of termination issued by the plaintiff. Its defense,

inter alia, is that the arrangement was for 15 years, and the lease was a

manufacturing lease, for which the notice period was 6 months. The

agreement is dated 1-2-2005, effective for a three year period, ie. 1-9-2004

to 31-8-2007. The plaintiffs' legal notice, terminating the arrangement on 29-

3-2007 is on record; its receipt is not denied. Indeed, the defendants have

placed reliance on the reply to that notice, issued on their behalf, on 17-4-

2007. This reply mentions about execution of blank papers at the

behest of Dinesh Chandra, and that the parties had

agreed to lease the premises for 15 years. No mention

about the lease being an industrial lease has been made in the

CS (OS) 1032/2007 Page 7 notice. That argument, besides, is ex-facie unfounded, because the

arrangement, though for three years, is not executed in a registered

document. Even if the document were to be construed as a lease, it would be

a monthly tenancy, which the plaintiff was at liberty to end, with 15 days

notice. In this case, such notice was undeniably issued. So far as the claim

for 15 years' arrangement is concerned, the defendant has taken no step to

enforce any such agreement; there is no contemporaneous document in

support of the plea. Likewise, the question of the defendant executing blank

stamp papers is unsupported by any material; it was raised for the first time,

in reply to the legal notice of termination of lease.

12. In the light of the above, the court is of opinion that there is

unambiguous admission about the material averments in the suit, regarding

termination of arrangement/ license with the defendant; notice in that regard

was received by the latter. These admissions are sufficient to entitle the

plaintiff, to a decree on admissions, as regards the possession of the suit

property. The suit is, therefore, partly decreed in terms of Para 14(i) of the

plaint; possession of the suit property described in the said paragraph, shall

be handed over to the plaintiff, by the defendants, within six weeks. The

application, IA 778/2008 is hereby allowed, in the above terms. In the

circumstances, there shall be no order as to costs.

Dated: 17th September 2008                              S RAVINDRA BHAT, J


CS (OS) 1032/2007                                                       Page 8