Sanatana Dharam World University ... vs Shri M.Muthu & Anr.
2009 Latest Caselaw 4335 Del

 *              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of Reserve: October 10, 2009
                                          Date of Order: October 27, 2009

+ IA No.7515/08 & CS(OS) No.1473/07

     %                                               27.10.2009
         SANATANA DHARAM WORLD UNIVERSTITY TRUST &
         ORS.                              ..... Plaintiffs
         Through: Mr. K.R. Gupta with
                  Ms. Kiran Dharam , Advs.

                         versus

         SHRI M.MUTHU & ANR.                    ..... Defendants
         Through: Mr. Udaya Kr. Sagar with
                  Ms. Bina Madhavan, Advs. for D.1
                  Ms. Y.Arunagiri with Mr. P.Rakesh, Advs. for D.2

         JUSTICE SHIV NARAYAN DHINGRA

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

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

         ORDER

1. This suit has been filed by the plaintiff for recovery of

possession of property no.20, South Patel Nagar, New Delhi

comprising basement and four floors let out to the defendant vide a

rent agreement dated 4th September, 2004 at monthly rent of Rs.2

lakhs plus electricity and water charges. The suit premises was let

out for running a restaurant/hotel/banquet hall/guest house.

Although, the rent agreement mentioned that the letting was

initially for a period of 5 years and was renewable further but the

rent agreement was not a registered lease deed between the

parties and therefore could not be considered as a valid document

and cannot be looked into except for collateral purpose. The rent

deed between the parties, in order to be considered as a valid

document was also required to bear proper stamp duty since it

sought to create an interest in the property for a period of more

than one year. The rent deed does not bear the stamp duty as per

law. Thus, the lease between the parties in respect of property had

to be considered as a month to month lease.

2. The defendant had given an advance rent of Rs.12 lakhs

to the plaintiff at the time of creation of tenancy as security. This

was adjustable on vacation of the premises. The plaintiff stated in

the suit that defendant paid rent upto 28th February, 2006 and

thereafter defaulted in making the payment and continued to

occupy the premises. The defendant despite notice for payment of

rent failed to clear the arrears of rent and also failed to make the

current payment of rent. Under these circumstances, the plaintiff

served a legal notice dated 15th January, 2007 on defendant

terminating the tenancy with effect from 20th February, 2007. After

service of this notice, defendant paid part of the arrears of rent and

gave a draft of Rs.20 lakhs to the plaintiff and assured the plaintiff

that he would be handing over the keys of the premises and shall

hand over the physical possession of the premises shortly.

However, when the plaintiffs went to collect the keys on appointed

day, the defendant did not hand over the keys and did not hand

over the possession. The plaintiff again served another legal notice

dated 10th May, 2007 terminating the tenancy with effect from 31st

May, 2007 and thereafter filed the suit for recovery of possession

and arrears of rent to the tune of Rs.20 lakhs.

3. During pendency of the suit, on 27th August, 2008

counsel for the defendant informed the Court that a sum of Rs.20

lakhs would be paid to the plaintiff within 4 weeks towards arrears

of rent. This amount was not paid. On 16th October, 2008, this

Court again directed the defendant to comply with the order dated

27th August, 2008 for payment of Rs.20 lakhs and also directed to

give a statement of amounts paid and due to the plaintiff. A

cheque of Rs.4 lakhs was received by the plaintiff towards rent of

August and September, 2008 from the defendant no. 1. Thereafter,

again no rent was paid. However, on 20th July, 2009, counsel for the

defendant no. 1 gave undertaking to the Court to clear the entire

arrears of rent on next date of hearing in the Court, i.e., on 8th

October, 2009. Today again the defendant's counsel expressed

inability of the defendant to clear the arrears of rent. The total rent

which had become due against the defendant in terms of agreement

amounts to Rs.58 lakhs. In view of the fact that the defendant had

given an undertaking to the Court to clear the arrears and despite

undertaking had not paid the arrears of rent, the defence of the

defendant was struck off.

4. It is a strange case where the defendant was not using

the premises and was not paying the rent for about more than a

year and was not vacating the premises also.

5. The plaintiff has moved this application under Order 12

Rule 6 CPC for passing a decree on the basis of admissions. A

perusal of WS filed by the defendant shows that the defendant has

not disputed taking of premises on rent. The rent per month has

also not been disputed. The extent of premises under tenancy of

the defendant has also not been denied. The admission/denial of

documents done by parties shows that the notice terminating

tenancy sent by the plaintiff dated 15th January, 2007 to the

defendant has been admitted by the defendant. Reply to the notice

sent by the defendant to the plaintiff has also been admitted. The

site plan of the property has also been admitted. The plaintiff has

placed on record the notice dated 10th May, 2007 along with postal

receipts showing that notice dated 10th May, 2007 was also posted

at the correct address of the defendant through registered covers as

well as by UPC. Although, the receipt of this notice has been denied

by the defendant but a presumption goes in favour of the plaintiff

that when the notice was posted at correct address through normal

course and notice was not received back undelivered, it was

received by the defendant.

6. The termination of tenancy of the defendant by service

of two notices; first in January, 2007 and then in May, 2007 stands

proved. It is undisputed that the tenancy was created by an

unregistered document and tenancy was a month to month tenancy

and can be terminated by a 15 days' notice and the tenancy was

validly terminated by notice dated 15th January, 2007 and this

termination was reiterated by another notice dated 10th May, 2007.

7. The Court can pass a decree in favour of the plaintiff if

there is admission of the facts enabling the Court to pass the decree

of possession. The admission can be either directly in the pleadings

or through admission of documents. In the present case, in the

pleadings the defendant had admitted the entire case of the

plaintiff. I therefore consider that the plaintiff was entitled to a

decree of possession as the tenancy of the defendant was lawfully

terminated by the plaintiff by giving a 15 days notice. The plaintiff

has claimed user charges at the rate of Rs.2 lakhs per month which

is again admitted rate of rent between the parties. This admission

has come in the WS of the defendant. The plaintiff is therefore

entitled to a decree of arrears of rent/user charges at the rate of

Rs.2 lakhs per month. The application is allowed. The suit of

plaintiff is therefore decreed in following terms:-

(i). A decree of possession of premises no. 20, South Patel

Nagar, New Delhi comprising basement and 4 floors is passed

in favour of the plaintiff.

(ii). A decree for a sum of Rs.20 lakhs for arrears of rent

before filing of the suit is passed in favour of the plaintiff and

against the defendant.

(iii).A decree for recovery of compensation for use and

occupation of the premises from date of filing of suit till the

premises is vacated at the rate of 2 lakhs per month is passed

in favour of the plaintiff. Any amount paid during pendency of

suit shall be adjustable.

(iv). Since the plaintiff paid Rs.20 lakhs to the defendant

towards fitting and fixtures etc. the plaintiff shall be entitled to

recover the possession along with all fittings and fixtures.

(v). The plaintiff is entitled to the costs of the suit.

October 27, 2009                      SHIV NARAYAN DHINGRA J.
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