Shri Madhu Sudan vs Smt. Valsala Jayamani
2009 Latest Caselaw 4151 Del

*      HIGH COURT OF DELHI : NEW DELHI

        FAO No. 262/2009 & CM No. 11910/2009



%            Judgment reserved on: 08th October, 2009

             Judgment delivered on: 14th October, 2009

Shri Madhu Sudan
S/o Sh. Satyanarayan
R/o E-146, 2nd Floor
East of Kailash
New Delhi                         .............Appellant
                Through: Mr.Virender Goswami and
                         Ms.Soni Singh, Advocates.

                    Versus


Smt. Valsala Jayamani
W/o Sh. A. Jayamani
R/o E-145, Ground Floor
East of Kailash
New Delhi                          ............Respondent.
                Through: NEMO

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Yes

2. To be referred to Reporter or not?                     Yes

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




FAO No.262/09 & CM No. 11910/09            Page 1 of 14
 V.B.Gupta, J.

1. This appeal has been filed by appellant against

order dated 28.3.2009 passed by Additional District

Judge, Delhi. Vide impugned order application of

respondent under Order XXXIX Rule 10 read with

Section 151 of the Code of Civil Procedure (for short as

Code) was allowed.

2. Brief facts of this case are that respondent is the

owner/landlord of suit property. Appellant was

inducted as tenant in this property after having

executed lease dated 19.7.2006. The rent payable was

Rs.20,000/- per month with effect from June, 2006. It

is alleged that appellant paid rent only upto

September, 2006. Three cheques issued by appellant

with effect from October, 2006 to December, 2006

have been dishonoured and complaint under Section

138 of Negotiable Instruments Act against appellant is

pending in the court. Appellant has not paid rent with

effect from October, 2006 till April, 2007 and is thus an

unauthorised occupant of the property. It has also

been alleged that appellant filed forged receipts which

are inadmissible in evidence in terms of Sections 33

and 35 of the Indian Stamp Act.

3. In written statement, appellant admitted

execution of lease deed. However, it is stated that

appellant executed the agreement in good faith at the

request of respondent, as respondent wanted to have

certain rebate in tax though parties never intended

to have any landlord/tenant relationship. In fact,

respondent had agreed to sell the property for sale

consideration of Rs.45 lakhs, which was later on

increased to Rs.50 lakhs. Appellant also paid advance

of Rs.10,30,000/-. Original copies of receipts, however,

have been lost and in this regard a report has been

lodged. Appellant never admitted the liability to pay

rent @ Rs.20,000/- per month.

4. It is contended by learned counsel for the

appellant that provisions of Order XXXIX Rule 10 of the

Code are applicable only when a party admits that he

holds money or other thing capable of delivery as a

trustee for another party. Appellant has not made any

such admission. On this point, learned counsel

referred a decision of this Court, Gujarat Co-

operative Milk Marketing vs. M/s Jawahar Mal

and Sons and others. AIR 2003 Delhi 208 and Smt.

Lalbiakthangi vs. Shri H. Duna, AIR 1995 Gauhati

12.

5. Other contention is that respondent had entered

into an agreement to sell the suit property to the

appellant. Under these circumstances, there can be no

such admission on the part of appellant towards

amount payable to the respondent. There is no

relationship of landlord and tenant between the

parties, so there can be no question of admitted rent.

Moreover, appellant has filed a separate suit for

specific performance in this Court. Lastly, lease

documents being instruments and being insufficient

stamped, are liable to be impounded.

6. As per appellant's own averments, he is taking

contradictory stand. On the one hand, he admits the

execution of lease agreement while, on the other hand,

he denies its execution and claims that there was an

agreement to sell the property in question. Appellant

himself is not sure in his mind as to whether he is a

tenant or lessee or owner of the property in question,

possession of which he claims by virtue of making part

payment towards the sale consideration.

7. Order XXXIX Rule 10 of the Code read as under:

"10. Deposit of money, etc., in Court. Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court. "

8. According to this provision, where rent is payable

and liability to pay is admitted, the court can order

deposit of arrears of rent in the court.

9. As stated above, appellant is blowing hot and cold

in the same breath. Appellant has not placed on

record any agreement to sell, to show that by virtue of

which, he paid advance of Rs.80,000/- as well as

Rs.50,000/- as alleged.

10. Written statement filed by appellant in the trial

court makes an interesting reading which clearly

shows admission made by him, that he is a lessee in

the property in question. Extract of para 4, 5 and 8 of

preliminary objections of written statement filed by

appellant herein, read as under:

"4. That admittedly the Plaintiff is the Owner of the said flat and the Defendant is in occupation and in possession of the said Flat since June 2005. It is submitted that the Plaintiff alongwit h her husband Shri A. Jayamani had approached the Defendant to sell the said flat sometime in June 2005. That after much discussion and negotiations, it was decided that the Plaintiff would sell the said flat for total sale consideration of Rs. 45,00,000/- (Rupees Forty Five Lacs only) to the

Defendant. However, as the defendant did not have the entire Sale Consideration at that point of time, it was agreed that the Defendant would pay Rs.5,00,000/- (Rupees Five Lacs only) immediately and the balance amount within 18-20 months. It was also agreed that in the meanwhile the Defendant would pay interest @ Rs.18,500/- per month to the Plaintiff, till the entire aforesaid sale consideration is paid and the Sale Deed is executed in favour of the Defendant. That the Defendant accordingly paid a sum of Rs.5,00,000/- (Rupees Five Lacs only) to the Plaintiff in June, 2005 as earnest/advance money in the presence of witnesses.

5. It is submitted that the Defendant executed certain agreements in good faith at the request of the Plaintiff, as the Plaintiff wanted certain rebate in tax and also to show to her bankers some papers, though the parties never intended to have any LANDLORD- TENANT relationship. The aforesaid fact is evidence from the fact that none of these documents were registered. The Lease Agreements were executed not only for tax purposes in good faith but also to protect the possession of the said property till such time the Defendant get a sale deed executed in his favour. It is therefore evident that

there was never any intention of the parties to enter into any Lease Agreement with regard to the said flat.

8. It is pertinent to mention herein that apart from the above fact the Plaintiff had to complete certain formalities which were also never intimated to the Defendant having been done till date. It has come to the knowledge of the Defendant that the Plaintiff till date has not transferred the electricity connection in her name, neither has the Plaintiff obtained any completion certificate from the Competent authority which was required to be obtained by the Plaintiff. In fact the Plaintiff only kept on demanding money from the Defendant and kept on taking interest with an assurance that all the formalities would be completed by the Plaintiff at the earliest."

11. Appellant mischievously and very cleverly in

entire written statement, no where mentioned as to on

which date, respondent approached him to sell the flat.

As per appellant's own admissions made in the written

statement, respondent is the owner of flat in question

and appellant is in occupation and possession of flat

since June 2005. But written statement is silent about

the legal status of the appellant, as to whether he is

lessee, tenant or owner. Appellant wants the Court to

believe that out of sale consideration of Rs.50 Lakhs as

alleged by him and by paying just a sum of Rs. 1.30

lakh, appellant claims himself to be owner of the flat in

question.

12. As stated above, execution of lease deed has been

admitted by the appellant. Once execution of

document has been admitted, no oral evidence

contrary to that can be referred.

13. Section 91 of the Indian Evidence Act, deal with

the exclusion of oral by documentary evidence. This

Section, therefore, lays down that when the terms and

conditions of a contract have been set out in writing by

agreement of parties, the document is intended to be a

record of the transaction and therefore, no other

evidence shall be given to prove the transaction,

except the document itself. Oral evidence is excluded

equally when a document does exist.

14. Trial court in the impugned order observed;

"The defendant in the Written Statement has denied all these facts and has claimed that there was no intention of the parties to enter into any lease agreement and parties did not have any landlord-tenant relationship which implies that the lease deed dated 1.7.2005 and 19.7.2006 between the parties are not categorically denied by the defendant rather he has admitted the execution of these lease deeds but has taken the plea that the plaintiff had agreed to sell the said property to the defendant and has also filed the suit for specific performance and permanent injunction in Hon'ble High Court. The defendant has claimed that he has paid about Rs.10,30,000/- out of the total consideration of Rs.50 lacs but in reply to the application, he has pleaded that original copies of the receipts have been lost whereas on behalf of plaintiff, it has been alleged that these receipts have been forged by the defendant and a false plea has been taken by the defendant that the original have been lost and the photocopies relied by the defendant cannot be considered as evidence. The defendant has also taken the plea that lease agreement was signed at the request of the plaintiff that the same was to be used in good faith for tax purpose and also for protection of the property. The lease deed dated 1.7.2005 commenced for a period of 11 months wherein monthly rent was fixed at Rs.18,500/- and the lease deed dated 19.7.2006 is also for 11 months commencing from 1.6.2006

wherein the rent of the premises has been agreed to be Rs.20,000/- per month. There is a mention of the security deposit of Rs.37,000/- and the defendant is admittedly in possession of the suit property and enjoying the same without paying any rent. He claims to have paid Rs.10,30,000/- to the plaintiff but has failed to produce the original receipts and admittedly the suit property has not been sold so far by the plaintiff in his favour. Therefore, the contention of the defendant cannot be believed that only by payment of Rs.10,30,000/- out of a total sale consideration of Rs.50 lacs, the plaintiff could have allowed him to take over the possession of the suit property unless there was lease agreement between the parties and the defendant had agreed to pay the rent accordingly. Since the defendant is enjoying the property without paying any rent, the plea of the defendant that he had paid a sum of Rs.10,30,000/- to the plaintiff as part consideration for sale of property and that he was entitled to use the property without any payment cannot be sustained. Since the defendant is in possession, he is presumed to be lessee and therefore, is bound to pay the agreed rent @Rs.20,000/- per month to the plaintiff upto the lease period and thereafter on termination of lease, is bound to pay the damages/mesne profits."

15. There is no reason to disagree with above findings

of the trial court.

16. Judgments referred by learned counsel are not

applicable to the facts of the present case, as in the

present case there is clear cut admission on the part of

appellant that he has executed the lease deed. Since

execution of lease deed has not been denied,

relationship of landlord and tenant is admittedly there.

In the garb of alleged sale agreement, lease deed

executed between the parties, cannot be overlooked or

given a go bye.

17. Present appeal filed by appellant is most bogus

and frivolous one. Appellant is enjoying the property,

without paying any rent/occupation charges, since

October, 2006 and has also no intention to pay the

same. Such unscrupulous person who take property

on lease and later on claims ownership of the same and

then invent a cock and bull story, just to retain

possession of the property, should be dealt with heavy

hands. Strong message is required to be sent to such

unscrupulous persons who wants to enjoy property of

others, without paying even a single penny and deprive

the lawful owner, who had built the same with their

hard earned money. Such persons make the legal and

rightful owner to run from pillar to post i.e. from one

court to another to seek justice that is, to get their

legal dues, such as monthly rent and possession.

Appellant to a great extent has been successful in

frustrating respondent-owner efforts to get her legal

due that is, either the rent or possession. Appellant has

been taking re-course to one litigation after the other,

just to harass the respondent-owner

18. This appeal is nothing but is gross abuse of the

process of law. Appellant has no intention either to pay

agreed rent or to vacate the premises. Appellant's

intention is just to grab the property by any means

whatsoever.

19. So, keeping in view the unscrupulous conduct of

the appellant, since he wants to hold on to the

property, without paying for it, the present appeal is

dismissed with costs of Rs.50,000/- (Rupees Fifty

Thousand).

20. Appellant is directed to deposit the cost with trial

court, within one month from today, failing which trial

court shall recover the same in accordance with law.

CM NO. 11910/2009

21. Dismissed.

22. Copy of this judgment be sent to the trial court.

October 14 , 2009                          V.B.GUPTA
Ag/bhatti