Delhi High Court

Sparsh Builders Pvt. Ltd. vs Maharishi Ayurveda Products ... on 16 September, 2009

Author: S. Muralidhar

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 CS(OS) 84/2009

                                        Reserved on : September 2, 2009
                                        Decision on: September 16, 2009

       SPARSH BUILDERS PVT. LTD.                  ..... Plaintiff
                    Through: Mr. Sanjay Jain, Senior Advocate
                    with Mr. Sunil Aggarwal, Mr. Sarfaraz Ahmad
                    and Ms. Ruchi Jain, Advocates.

                    versus

       MAHARISHI AYURVEDA PRODUCTS
       PVT. LTD.                                 ..... Defendant
                    Through: Mr. M.L. Bhargava with
                    Mr. Manoj Swarup, Ms.Lalita Kohli,
                    Mr.K.M. Sharma and
                    Mr. Abhishek Swarup, Advocates.

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

        1. Whether reporters of the local newspapers
           be allowed to see the judgment?                        No
        2. To be referred to the Reporter or not?                 Yes
        3. Whether the judgment should be reported in the Digest? Yes

                             JUDGMENT

16.09.2009

S. Muralidhar, J.

1. This is a suit for possession, recovery of damages and permanent

injunction. At the stage of framing of issues, the parties have been heard

on whether any triable issue arises and whether the Plaintiff is entitled to

a decree on admissions under Order XII Rule 6 CPC.

The Plaintiff's Case

2. The Plaintiff, Sparsh Builders Pvt. Ltd., states that it is the absolute

and exclusive owner of the entire property at A-14, Mohan Cooperative

Industrial Estate, Mathura Road, New Delhi, admeasuring 4617.67

sq.yds. (hereinafter referred to as the `suit property'). It states that it

purchased the suit property from the Defendant, Maharishi Ayurvedic

Products Pvt. Ltd., on payment of full and final sale consideration of Rs.

4 crores accompanied by transfer of symbolic possession. Along with

the registered Agreement to Sell dated 30th December 2004 (affixing

requisite stamp duty of Rs.30 lakhs), a registered Power of Attorney,

registered Will, registered indemnity bond etc., were executed by the

Defendant in favour of the Plaintiff on 30th December 2004.

3. It is stated that at the time of the sale transaction, the Defendant

requested the Plaintiff that it would take the property on rent for a period

of three years. Accordingly, a separate lease deed dated 30th December

2004 with effect from 1st January 2005 fixing the monthly rent for the

said suit property at Rs.14,25,000/- was executed. The Defendant

deposited a sum of Rs.42,75,000/- as interest free security, refundable

within thirty days of the vacation of the suit property in terms of the

lease agreement. Simultaneously a separate memorandum of

understanding (MoU) was also entered on 30th December 2004 whereby

the Defendant was given option of buying back the suit property on a

consideration to be mutually agreed upon between the Plaintiff and the

Defendant.

4. The Plaintiff states that on the expiry of the aforesaid lease period of

three years, the Defendant further requested the Plaintiff to extend its

occupation by another period of 11 months representing that it was still

unable to find alternative premises to shift. Accordingly, a fresh MoU

dated 1st January 2008 was entered into. A fresh lease agreement of the

same date was also executed. The MoU gave the Defendant an option of

buying back the suit property on a consideration to be mutually agreed

upon between the parties. It was stated in the lease agreement that the

lease was not extendable beyond a period of 11 months and that no

extension would be allowed under any circumstances. The increased

monthly rent was Rs.18,50,000/- besides service tax or any other tax

that may be applicable during the period of 11 months commencing

from 1st January 2008 and ending on 30th November 2008. Clause 15 of

the lease deed stipulated that the lessee would, on the expiry of the lease

period, hand over the vacant and peaceful possession of the suit property

to the plaintiff lessor in its original condition. It was stated in para 16

that in the event of the Defendant lessee failing to hand over vacant

possession of the suit property to the Plaintiff lessor after the expiry of

the period of 11 months, i.e., on 30 th November 2008, "the lessee shall

be liable to pay rent as well as damages of Rs.50,000/- per day to the

lessor for non-compliance of the terms and conditions of this lease

agreement. The damages of Rs.50,000/- per day will be applicable after

a grace period of seven days, i.e., with effect from 8th December 2008.

That this grace period with damages shall be available to the lessee for a

maximum period of 30 days after which the aid premises shall have to

be vacated under all circumstances". It was again reiterated towards the

end of Clause 16 that: "It is hereby made clear that the tenure of this

lease for all purposes is 11 months commencing from 1 st January 2008

and ending on 30th November 2008. The 30 days as mentioned

hereinabove are just grace period".

5. Prior to the lease period expiring on 30th November 2008, the Plaintiff

wrote to the Defendant on 25th August 2008, asking it to vacate and hand

over the actual physical possession of the suit property. It again wrote a

letter dated 18th October 2008 requesting the Defendant to indicate the

exact time by which the Defendant would hand over the peaceful and

vacant possession of the suit property. No response was received to this

letter or to reminder sent on 18th November 2008.

6. Since the Defendant did not hand over the possession of the suit

premises to the Plaintiff on 30th November 2008, the Plaintiff deputed

one Mr. Sanjiv Singhal to be physically present at the site to complete

the formalities and take over the possession of the suit property. Mr.

Singhal was also authorized to take along with him a Notary Public for

the purposes of delivery of possession on 1st December 2008 at 11.30

am.

7. It is stated that on 28th November 2008 the Plaintiff received from the

Defendant a letter dated 25th November 2008 expressing its desire to

purchase the suit property. This was seen by the Plaintiff merely a

delaying tactic and to avoid handing over possession. This was followed

by another letter dated 28th November 2008 written by the Plaintiff to

the Defendant expressing its hope that the Defendant would hand over

the vacant and peaceful possession of the suit property on 1st December

2008 at 11.30 am to its authorized representative.

8. When Mr. Sanjiv Singhal visited the suit property on 1st December

2008, Shri Santosh Singh one of the Directors of the Defendant refused

to hand over the vacant physical possession to him in the presence of

Mr. Vishwajit Mangla, Notary Public. It is stated that Shri Santosh

Singh refused to receive the letter/notice dated 1st December 2008 on the

some pretext. It is stated that there had was no consensus between the

parties, on the consideration for which the Defendant would buy back

the suit property from the Plaintiff. The right of buying back really did

not fructify. It is stated that since the lease period came to an end by an

efflux of time on 30th November 2008, the Defendant was bound to hand

over vacant possession of the suit property to the Plaintiff.

9. A reply dated 23rd December 2008 was received by the Plaintiff's

counsel from the counsel for the Defendant to the notice dated 12th

December 2008. It was stated in the said reply that the Defendant was in

possession of the suit property in the capacity of an absolute owner. It

was stated that the Defendant never intended to sell the suit property to

the Plaintiff; that the Plaintiff had advanced a loan of Rs.4 crores to the

Defendant; that in order to secure the said loan amount the Defendant

had executed certain documents including the registered documents, i.e.,

agreement to sell, power of attorney, will and indemnity bond. The loan

was to carry interest at 3.5% per month and therefore in order to protect

its rights, a MoU was also executed so that the Defendant would have a

buy back option. It was stated that since the Defendant was not in any

event willing to part with the possession of the suit property, a lease

deed dated 30th December 2004 was entered into between the parties.

10. The Plaintiff contested the Defendant's version of there being a loan

transaction between the Plaintiff and the Defendant as it was concocted

and contradicted by the very documents referred to by the Defendant.

Further, the payment of rent, after deducting TDS, belied the stand of the

Defendant about there having been a loan transaction or that the Plaintiff

was not the lawful owner of the suit property.

11. On the basis of the above averments, the Plaintiff has filed the

present suit claiming possession as well as damages and mesne profits.

The suit having been filed on 12th January 2009, the rent recoverable till

then, i.e., after the expiry of the lease period, calculated at

Rs.25,06,450/- and damages at Rs.17,50,000/- together with damages of

Rs.22,000/- totaling Rs.42,78,450/- was also claimed. Along with the

suit, the Plaintiff also filed IA No. 540 of 2009 under Order XXXIX

Rules 1 & 2 CPC. By an order dated 16th January 2009, this Court

directed the Defendant not to sell, transfer, alienate, encumber or part

with the possession of the property or create any third party rights in the

property till the disposal of the suit.

12. As regards IA No.541 of 2009 filed by the Plaintiff under Order

XXXIX Rule 10 CPC, this Court on 16th January 2009 recorded the

statement of the counsel for the Defendant that the Defendant shall

continue to pay the amounts including taxes as being last paid by the

Defendant to the Plaintiff. It was observed that the Plaintiff's claim for

the damages would be adjudicated upon at a later date.

Defendant's version

13. In its written statement filed on 16th February 2009, the Defendant

reiterated the stand taken by it in reply dated 23rd December 2008 to the

Plaintiff's legal notice dated 12th December 2008. It was maintained that

the agreement dated 30th December 2004 was only to secure the loan of

Rs. 4 crores advanced by the Plaintiff to the Defendant; that the loan was

advanced at an exorbitant rate of interest i.e. 3.5% per month and that

the lease agreements dated 30th December 2004 and 1st January 2008

were for recovering the interest; that the said documents were in fact not

lease agreements but "rent notes". It was stated that the Defendant has

exercised its option of buying back the suit property by the letter dated

25th August 2008 well within the time stipulated. It was the Plaintiff

which was trying to defraud the Defendant in order to "run away from

understanding and to grab the valuable property any how".

14. In the additional pleas in paras 26 to 47 of the written statement, it is

pleaded by the Defendant (in para 32) that on 30 th December 2004 the

agreement to sell, MoU, lease deed, PoA and Indemnity Bond were

executed. It is claimed that "since the defendant was never interested in

parting with ownership or possession lease deed dated 30th December

2004 was also executed for a period of three years and to cover the

interest the rent was fixed @ 14,25,000.00 per month." It is contended in

para 41 that the Defendant expressesd its intention to buy back the suit

property by the letter dated 25th August 2008 and further orally

requested the Plaintiff to seek the agreed price which according to the

Defendant is approximately Rs. 4-5 crores including all expenses

incurred by the Plaintiff."

15. In its replication, the Plaintiff denied the above averments of the

Defendant and reiterated the contents of the plaint.

16. After the completion of pleadings, the case was listed before this

Court for framing of issues on 5th May 2009. At that stage, the Plaintiff's

IA No. 5710 of 2009 praying for recording of the statement of Mr.

Anand Prakash Srivastava the Managing Director of the Defendant, was

heard. Counsel for the Plaintiff also made a submission that the Plaintiff

was entitled to a decree on admissions. The Court, after perusing the

pleadings required in the presence of Mr. Anand Prakash Srivastava on

the next date of hearing for recording his statement under Order X Rule

2 CPC, IA 5710 of 2009 was accordingly allowed. The case was listed

on 21st July 2009. Mr. Anand Prakash Srivastava appeared on 21st July

2009 and made a statement. The case was thereafter directed to be listed

in the category of short cause.

Submission of Counsel

17. The arguments of Mr. Sanjay Jain, the learned Senior Counsel

appearing for the Plaintiff and Mr. M.L. Bhargava, the learned counsel,

appearing for the Defendant have been heard.

18. It is submitted on behalf of the plaintiff that many of the critical

documents on the basis of which the Plaintiff is claiming relief, have not

been denied by the Defendant during the admission/denial of the

documents. It is submitted that the signatures of the Defendant on all

documents barring a few like the possession letter have been admitted.

Only the General Power of Attorney (GPA) of the previous owner, and

the letters dated 22nd September 2008, 18th October 2008 and 28th

November 2008 written by the plaintiff has been denied. As regards the

contents of the documents, it is submitted that receipt for a sum of Rs.4

crores executed by the Defendant, the Will, the MoU dated 30th

December 2004, MoU dated 1st January 2008, the letter dated 25th

August 2008, the Plaintiff's letter dated 25th and 27th November 2008

have all been admitted. He submits that the denial of the contents of the

registered documents like the agreement to sell dated 30th December

2004 and GPA dated 30th December 2004 or the lease agreement dated

30th December 2004 is meaningless because in the examination of Mr.

Anand Prakash Srivastava, the MD of the Defendant Company in Court

on 21st July 2009 he stated that he was aware of the contents of those

documents but claimed that there was "a certain understanding" between

the parties that the defendant had taken a loan of Rs.4 crores from the

Plaintiff and that all these documents were furnished as security. Mr.

Srivastava had also admitted that the so called understanding was not

reflected in the documents because the Defendant was not in a

bargaining position.

19. Moreover, the TDS certificates which are official documents, clearly

show indicates that what was paid by the Defendant was rent for the suit

premises. It is submitted that it is impermissible for the Defendant to

lead oral evidence which contradicts what is stated in the documents

which admittedly were executed by the Defendant. Reliance is placed on

the decisions in Roop Kumar v. Mohan Thedani AIR 2003 SC 2418;

Gurdial Singh v. Raj Kumar Aneja (2002) 2 SCC 445 and Surjit

Sachdev v. Kazakhstan Investment Services Pvt. Ltd. 66 (1997) DLT 54

(DB).

20. It is submitted that in the face of the above admissions, the suit has

to be decreed as the Defendant really had no defence whatsoever and the

main pleas remain uncontested. As regards the decree for possession, it

is submitted that as long as the Defendant admits to the above

documents, its continued possession of the suit premises is not lawful.

As regards the decree for damages, it is submitted that since the lease

agreement stands admitted in para 8 of the written statement, as well as

para 32 of the additional pleas in the written statement, this relief is also

uncontested.

21. On behalf of the Defendant, it is submitted that if the written

statement and the documents are read together, it would be plain that the

transaction was really a one of a loan of Rs.4 crores having been

borrowed by the Defendant from the Plaintiff for which the

aforementioned documents were offered as security. It is submitted that

the fact that the MoU incorporated a buy back clause, showed that the

intention of the parties was to recognize the Defendant as the owner of

the suit property. It is submitted that once the Defendant had, in terms of

the MoU dated 1st January 2008 exercised the buy-back option by

writing a letter dated 25th August 2008, then it was obligatory for the

Plaintiff to perform its part and come forward to finalise the terms on

which the property should be sold to the Defendant. It is submitted that

in any event the registered document was only an agreement to sell and

in terms of Section 17 of the Registration Act, a sale deed was required

to be compulsorily registered. In the absence of any registered sale deed,

it cannot be said that the ownership and title of the suit property passed

on to the Plaintiff. Since there was no registered sale deed in favour of

the Plaintiff, it could not be said that the Plaintiff can seek relief as if it

is the owner. As regards the registered lease deed, it is contended that

this is really in the nature of a rent note. It is further contended that this

rent note actually had to be treated as constituting the interest component

of the loans. The rent note signed by the Defendant, should be read as

acknowledgment of the payment of interest. Counsel for the Defendant

places reliance on the judgment in Sachdeva & Sons Industries Pvt.

Ltd. v. Directorate of Revenue Intelligence 2009 (109) DRJ 365 to

contend that for passing a decree based on admissions in terms of Order

XII Rule 6 CPC, the admissions should be unqualified, unambiguous

and unequivocal. Reliance is also placed on the judgments in Parivar

Seva Sansthan v. Venna Kalra AIR 2000 Delhi 349; Dudh Nath

Pandey v. Suresh Chandra Bhattasali (dead by LRs) AIR 1986 SC

1509; Balraj Taneja v. Sunil Madan AIR 1999 SC 3381; Gurdial

Singh v. Raj Kumar Aneja (supra); Kaliaperumal v. Rajagopal JT

2009 (7) SC 124.

Decree on admissions

22. The scope of the present proceedings requires the Court to briefly

examine the law in relation to the judgment on admissions in terms of

Order XII Rule 6 CPC. Under Order XII Rule 6(1) CPC where

admissions of fact have been made "either in the pleading or otherwise,

whether orally or in writing, the court may, at any stage of the suit, make

a judgment having regard to such admissions". The said rule further

makes it clear that "such a judgment will be given by the court at any

stage of the suit either on the application of any party or of its own

motion and without waiting for the determination of any other question

between the parties". The rule itself therefore explains that it is not

necessary that the Plaintiff should actually file an application under

Order XII Rule 6 CPC for the Court to pass a judgment on admissions.

23. It has been explained in a series of judgments including Dudh Nath

Pandey v. Suresh Chandra Bhattasali and Balraj Taneja v. Sunil

Madan, that the admissions must be clear and unambiguous,

unconditional and unqualified. The above law has been reiterated by this

Court in State Bank of India v. Midland Industries AIR 1988 Delhi

1953; Raj Kumar Chawla v. Lucas Indian Services AIR 2006 Delhi

266 and Parivar Seva Sansthan v. Venna Kalra (supra). This Court has

in turn relied upon the judgment of the Supreme Court in Balraj Taneja

(supra) and Dudh Nath Pandey (supra).

24. In Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd.,

where the Plaintiff had filed a suit for possession and mesne profits

together with interest, this Court held that the factors that ought to be

taken into consideration for deciding whether the suit could be decreed

on admissions are : (a) existence of relationship of lessor and lessee or

entry in possession of the suit property by defendant as a tenant; and (b)

determination of such relation in any of the contingencies as envisaged

in Section 111 of the Transfer of Property Act (TP Act). It was observed

"one of the modes stated therein is by efflux of time limited by the lease.

Only on unequivocal admission of the above two factors will entitle the

plaintiff to a decree on admission. Admission need not be made

expressly in the pleadings. Even on constructive admissions Court can

proceed to pass a decree in plaintiff's favour".

25. Turning to the facts in the present case, it is not in dispute that

several of the documents through which the Plaintiff claims to have

purchased the suit property from the Defendant are registered

documents. Prior to the amendment to the Delhi Stamp Act, 2008, the

agreement to sell, a leasehold property along with other documents like

GPA, Will, letter of possession etc., were not being compulsorily

registered. An amendment brought about to the Delhi Stamp Act now

envisages that stamp duty on 90 per cent of the sale consideration should

be paid for registration or the agreement to sell, the GPA, Will etc. In the

instant case, therefore, the agreement to sell dated 30th December 2004,

GPA of the same date, the receipt, Will, possession letter being

registered documents, cannot be brushed asideas if they do not constitute

documents of title. Likewise the lease agreement is also a registered

document. The Defendant assailing the contents of such documents

while admitting the signatures thereon, will have a very heavy burden to

discharge in order to prove that the said documents were in fact written

up later on blank stamp papers got signed by the Defendant. Intention of

parties has to be ascertained from the documents themselves.

26. A brief mention at this juncture may be made of Section 53-A of the

TP Act. Even if one were to consider the mandatory nature of the

Section 17 of the Registration Act subsequent to the amendment in the

Delhi Stamp Act read with Section 53A of the TP Act, it appears that a

registered agreement to sell, on which the stamp duty has been paid to

the extent of 90% of the sale consideration, stands on a different footing

than any other mere agreement to sell. This agreement to sell together

with the GPA, the receipt as well as the indemnity bond, are also

registered, should be held to confer upon the Plaintiff all rights that it

would have as an owner of the property. Otherwise it would really be

meaningless for the purchaser of the property to pay so much stamp duty

before the Sub Registrar including both sale consideration and got all the

supporting documents in his favour, executed and registered by the seller

in accordance with law. The Court, therefore, rejects the plea of the

Defendant that what the Plaint has, is mere agreement to sell and not a

sale deed, and therefore, could not be recognized as the owner of the

property for the purposes of seeking eviction from the suit property.

27. There is absolutely not a single phrase in any of the above

documents to suggest that the sum of Rs.4 crores was given as a loan by

the Defendant to the Plaintiff. By no stretch of imagination, upon

reading any of these documents, can such a transaction be said to be

evident either directly or indirectly.

28. As explained by this Court in Sudir Engineering Company v. Nitco

Roadways Ltd. 1995 (2) AD (Delhi) 189, "any document filed by either

party passes through three stages: (a) when they are filed (b) when they

are tendered or produced in evidence and (iii) when they were are held

to be either proved or not proved by the court." Under Order XIII Rule 4

(1) CPC every document admitted in evidence in the suit should bear the

number and title of the suit; name of the person producing the

documents, the date on which it is produced and statement of its having

been so admitted and the endorsement shall be signed or initialed by the

Judge. It was held that the right of the party disputing the document to

argue that it was not proved, will not be taken away merely because it

had not objected to the admissibility of such document. It was held that

the admission of a document in evidence is therefore not be confused

with proof of a document. It was held that "when called upon to form a

judicial opinion whether document has been disproved or not proved, the

Court would look not at the document alone or only at the statement of

the witness standing in the box; it would take into consideration

probabilities of the case as emerging from the whole record".

29. The other point that is relevant is whether a party can give oral

evidence concerning the intention of the parties at the time of the

execution of a document which is not reflected in such document. It was

explained by the Supreme Court in Roop Kumar v. Mohan Thedani

that Section 91 of the Evidence Act, 1872 (EA) "merely forbids proving

the contents of a writing otherwise than by writing itself; it is covered by

the ordinary rule of law of evidence, applicable not merely to solemn

writings of the sort named but to others known some times as the "best

evidence rule". It is in really declaring a doctrine of the substantive law,

namely, in the case of a written contract, that of all proceedings and

contemporaneous oral expressions of the thing are merged in the writing

or displaced by it".

30. It was further explained in paras 17 to 18 in Roop Kumar (supra) as

under (AIR SC @) p.2424-25):-

"17. It is likewise a general and most inflexible rule that wherever written instrument are appointed, either by the

requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Strakie on Evidence p. 648).

18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing."

31. In para 21 of the Roop Kumar (supra), after discussing the rationale

behind Sections 91 and 92 of the EA, it was held as under (AIR SC @

p.2425):-

"21. The grounds of exclusion of extrinsic evidence are (1) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing. It is

conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be paced beyond the reach of future controversy, bad faith and treacherous memory."

32. Keeping the above position of law in view, this court proceeds to

examine the nature of the documents tendered by the Plaintiff and the

stand of the Defendant vis-à-vis such documents. What is important to

note here is that the documents sought to be relied upon by the Plaintiff

are registered documents which are purportedly executed in the presence

of the Sub Registrar in whose office, the documents were registered. The

key document, of course, is the agreement to sell dated 30th December

2004. The document has been engrossed on stamp papers worth Rs.30

lakhs (which is divisible as Rs.18 lakhs towards Stamp Duty @ 4.5%

and Rs.12 lakhs towards Corporation Tax @ 3 per cent). The

photographs of the parties have been affixed on the document. The

reverse to the second page sets out the certificate number of registered as

17008 as well as the date. It bears the signature of the Sub Registrar

which states that the said document was presented by Sri Anand Prakash

Srivastava on 30th December 2004. Names of the witnesses are also

indicated. Again there is an endorsement on the bottom of the reverse of

the second page to the effect that the "contents of the documents

explained to the parties who understand the conditions and admit them

as correct. Having satisfied myself that this document was duly executed

by Shri Anand Prakash Srivastava in his official capacity, his attendance

and signature are dispensed with and the document is admitted to

entire consideration of Rs.4 crore. It is not possible to countenance the

stand of the Defendant that he denies the contents of the said documents.

The photographs of the parties apart from being engrossed on the first

page of the agreement to sell are embedded on the last page as well. The

registration No.17008 is computer generated and printed. The

photographs of the witnesses are also embedded. The whole purpose of

the Sub Registrar's office taking so many precautions, is to lend

authenticity to the documents being registered. If despite all these

precautionary and the endorsement by the Sub Registrar himself, a party

is permitted to deny the contents of such documents, even while

admitting to his signatures thereon, it will reduce the whole exercise

even of registration to a mockery. To accept such a plea would in effect

be permitting the party whose presence before the Sub Registrar is

recorded, to contend that he affixed signatures before the Sub Registrar

on blank papers or that he did not care to read what was written in the

entire document which was engrossed on stamp papers of Rs.30 lakhs or

that these stamp papers were in fact blank when he affixed his signatures

thereon. This plea is absurd and deserves rejection outright.

33. Interestingly, when he was examined under Order X Rule 2 CPC by

this Court on 24th July 2009, Anand Prakash Srivastava stated that he

was aware of these documents. The question by the Court and his

answer reads as under:-

"Q.1. In your written statement, you have admitted execution of set of five documents, viz. Agreement to Sell

dated 30.12.2004 (Exhibit P2), Memorandum of Understanding dated 01.01.2008 (Exhibits P10 and P12), Lease Deed dated 01.01.2008 (Exhibit P11), Power of Attorney dated 30.12.2004 (Exhibit P3) and Indemnity Bond dated 30.12.2004 (Exhibit P8). But during the course of admission/denial of the documents, you have made an endorsement on each of the documents to the effect that you admit the signatures thereon, but deny the contents. Can you explain the contradiction?

A.1. I was well aware of the contents of the documents executed by me, but we had a certain understanding at the time of the execution of the documents. We had taken a loan of Rs.4 crores from the plaintiff and given the suit property by way of security to the plaintiff."

34. The above statement should be taken as proof by the Defendant's

witness itself that the said document was in fact an agreement to sell

signed by the Defendant in the presence of the Sub Registrar. The plea

of the defendant that "we have a certain understanding at the time of the

execution of the documents", is not borne out by any of the documents.

This explains the next two questions and the answers thereto which read

thus:-

"Q.2. Is this understanding reflected in the documents itself. If not, why did you not insist upon the said understanding being reflected in the documents? A.2. We did not insist because we were not in a bargaining position.

Q.3. By way of these documents, you accepted that the ownership rights vested in the plaintiff and further that you were being allowed to take possession as a lessee

only.

A.3. I was aware of these facts. This was one of the conditions imposed upon for plaintiff's agreeing to advance Rs.4 crores to us."

35. Counsel for the Defendant was unable to show even a single line in

any of the documents to substantiate the plea of the Defendant having

borrowed Rs.4 crores from the Plaintiff and that these documents were

being offered as security for the said loan.

36. There is also a certain inconsistency in this plea when one examines

the position vis-à-vis the other documents. For instance the receipt for a

sum of Rs.4 crores, the original of which has been placed on record,

reads as under:-

"RECEIPT

We Maharishi Ayurveda Corporation Private Limited, a company incorporated under the Companies Act 1956, having its Regd. Office at A-14, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi, through our Director Sh. Anand Prakash Shrivastava, S/o. Sh. J.P. Shrivastava, R/o. A-214, New Friends Colony, New Delhi - 110065, have received a sum of Rs.4,00,00,000/- (Rupees Four Crores Only) as per details given below, from Sparsh Builders Pvt. Ltd., Regd. Office 51/47, Naya Ganj, Kanpur (U.P.), through its Director, Sh. Shishir Agarwal, S/o. Sh. V.K. Agarwal, R/o. 3/7, Navsheel Apartments, 56, Cantt, Kanpur (U.P.) as FULL & FINAL Payment towards the Sale of entire industrial built up property bearing No.A-14, Mohan Co-operative

Industrial Estate, Mathura Road, New Delhi alongwith sub-lease hold rights in the land underneath measuring 4617.67 sq. yards and nothing remains due or payable in this connection.


       Details of Payments
CHEQUE/PAY DATE                   AMOUNT(Rs.) DRAWN ON
ORDER NO.
531251     04.08.2003               25,00,000/-     IndusInd Bank,
                                                    Preet       Vihar,
                                                    Delhi
531252              05.08.2003    25,00,000/-        ----do----
531253              06.08.2003    25,00,000/-        ----do----
531254              07.08.2003    25,00,000/-        ----do----
504613              30.12.2004    50,00,000/-        ----do----
504614              30.12.2004    50,00,000/-        ----do----
504615              30.12.2004    50,00,000/-        ----do----
504616              30.12.2004    50,00,000/-        ----do----
504617              30.12.2004    50,00,000/-        ----do----
504618              30.12.2004    50,00,000/-        -----do----
TOTAL                             4,00,00,000/-

New Delhi 30th Day of December 2004


 Executants

                            For Maharishi Ayurveda Corp. Pvt. Ltd.

 WITNESS

1. Santosh Singh
  S/o late Sh. B.B. Singh
  C-32, Sec 41, Noida

2. Yugantar Saxena
   S/o Sh. Saran Saxena
   493-B-8 Vasundhara Encl.
   Delhi-96"

37. Interestingly, the defendant admits this entire document without

reservation. The said document categorically states that the consideration

of Rs.4 crores was paid "as full and final payment towards the sale of

entire industrial built up property bearing No.A-14, Mohan Co-operative

Industrial Estate, Mathura Road, New Delhi". In the face of such a

document which interestingly also has a photograph of the Defendant

duly attested by the Notary Public, execution of which the Defendant

admits, the question of there not having taken place any sale of the suit

property to the Plaintiff as contended by the Defendant cannot be

accepted by this Court.

38. The Defendant when confronted with the letter dated 23 rd May 2006

written by the Defendant, was again unable to deny it. That letter reads as

under:-

"To,

M/s Sparsh Builders Pvt. Ltd.

61/47 Naya Ganj KANPUR

Dear Sir,

Sub.: Information regarding Amalgamation of M/s Maharishi Ayurveda Corporation (P) Ltd. with M/s Maharishi Ayurveda Products Limited & subsequent change in name

REG. : Property No.A-14 Mohan Co-op. Indl. Estate, Mathura Road, New Delhi-44

RENT AGREEMENT

We wish to inform you that M/s Maharishi Ayurveda Corporation (P) Ltd. (MACPL) has been amalgamated with M/s Maharishi Ayurveda Products Limited (MAPL). We wish to inform you that name of the company Maharishi Ayurveda Products Limited has also been changed to Maharishi Ayurveda Products Pvt. Limited. A copy of the certificate issued by the Registrar of Companies giving effect to the above change is enclosed herewith.

We would request you to kindly take effect of the above changes in your record with respect to the Rent Agreement executed for the property mentioned above. Henceforth, the rent against the said property will be paid by M/s Maharishi Ayurveda Products Pvt. Limited, w.e.f. 01.06.2006.

Thanking you, Yours sincerely, For Maharishi Ayurveda Products Pvt. Ltd.

(Authorised Signatory)"

39. The rent agreement being referred to in the above letter is in fact the

lease deed dated 30th December 2004. As regards this lease agreement,

the signatures thereon were admitted by the Defendant but not its

contents. The admission of the letter dated 23rd May 2006 in toto, puts

paid to this so called denial. The lease agreement dated 30th November

2004 was accompanied by the MoU dated 30th December 2004 which in

any event is being relied upon by the Defendant itself. Likewise, the

Defendant also relies upon the MoU dated 1st January 2008 to contend

that it had made its offer to buy back the property in terms of that MoU.

The said MoU refers to the lease agreement dated 1st January 2008. It is,

therefore, futile for the Defendant to deny the contents of the lease

agreement dated 1st January 2008. The lease agreement is an admission

of the relation of the parties as landlord and tenant, i.e., an acceptance by

the Defendant of the Plaintiff as a landlord.

40. There is also merit in the contention of the learned Senior Counsel

for the Plaintiff that the TDS form in Form No.16A relatable to Rule 31b

of the Income-Tax Rules 1961 is further proof of the relationship

between the Plaintiff and the Defendant as landlord and tenant

respectively. The TDS forms are statutory forms signed by the

Defendant. These are Exhibits P-18 to P-22. In the column of nature of

payments, it is stated "pay to rent". The PAN/GIR number of the

Plaintiff has also been specified. It is futile for the Defendant to

contradict this by endorsing thereon "deposit admitted nature of payment

denied". It is not open to the Defendant to question the nature of

document which is in a printed form deposited with the statutory

authority. This is clearly a desperate attempt by the Defendant to wriggle

out of the legal status which stares at it in the face.

41. In the letter dated 25th August 2008, written by the Defendant to the

Plaintiff, it is stated as under:-

"25th August 2008

The Director M/s. Sparsh Builders Pvt Ltd.

51/47, Naya Ganj Kanpur, U.P

Dear Sir,

I, Anand Shrivastava, Authorised Signatory as Director of Maharishi Ayurveda Corporation Pvt Ltd now known as Maharishi Ayurveda Products Pvt Ltd, in exercise of the option vested on us vide Memorandum of Understanding (MOU) with you dated 1st January 2008 and as mentioned in its para no.3, do hereby inform you that we are very much willing to avail our right to buy back the property no. A-14, Mohan Co-operative Industrial

Estate, Mathura Road, New Delhi-110 044, which is in our absolute possession and was earlier owned by us on the same terms as agreed upon between us in the aforesaid MOU.

You are, therefore, hereby informed to kindly take all required suitable steps to pave the way for us to buy back the aforesaid property.

This letter of willingness should be treated as three months advance notice as required by MOU dated 1st January 2008.

With best wishes,

Thanking you,

Yours sincerely, For MAHARISHI AYURVEDA PRODUCTS PVT LTD

(ANAND SHRIVASTAVA) Director"

42. The above letter, which is written by the Defendant itself,

categorically states that the said property was "earlier owned by us".

The Defendant states that it is "very much willing to avail our right to

buy back the property.......on the same terms as agreed upon between us

in the aforesaid MOU". The MoU is dated 1st January 2008 which has

been admitted by the Defendant. That MoU dated 1 st January 2008

clearly states that the Plaintiffs "are the absolute and lawful owners of

all that entire built up property bearing No.A-14, Mohan Co-operative

Industrial Estate, Mathura Road, New Delhi......"

43. The above documentation is more than sufficient admission by the

Defendant about the Plaintiffs being the owners of the suit property as

well as the Plaintiffs being the landlord and the Defendant being tenant

for the period the lease was subsisting. As explained by the Supreme

Court in Roop Kumar v. Mohan Thedani, the Defendant cannot be

permitted to lead oral evidence to deny the contents of these registered

documents, as such a practice "would be attended with great mischief if

those instruments, upon which men's rights depended, were liable to be

impeached by loose collateral evidence". It also militates against the rule

of best evidence as contained in Sections 91 and 92 of the EA.

44. In the considered view of this Court, the burden was on the

Defendant to show some contemporaneous evidence which would

reflect the intention of the parties different from what is stated in the

above documents. This is also the requirement of law in terms of

Sections 91 and 92 EA as explained by the Supreme Court in the

aforementioned judgment of Roop Kumar v. Mohan Thedani. The

Defendant has miserably failed to discharge its burden. In answer to

Question No.4, the Defendant has in fact stated that "the entire

documentation effected was to show that the ownership rights vested in

the plaintiff and tenancy rights in the defendant company, but in fact it

was not so". However, the Defendant has been unable to show any

document which can reflect such imputation.

45. The other document sought to be relied upon by the Defendant is its

letter dated 25th November 2008 where again there is no mention made

of any loan of Rs.4 crores having been borrowed by the Defendant and

this document have been offered as security. In fact, this again refers to

the agreement to sell dated 30th December 2004 as well as MoU dated

30th December. It further refers to the buy-back option.

46. Then we have admission in the pleadings. In para 7 of the written

statement, while denying the contents of the para 7 of the plant, it is

stated by the Defendant that "however it is admitted that a rent note/

lease deed dated 1st January 2008 in respect of the property in suit was

executed and the alleged rent was enhanced for the reasons given in the

forgoing paras and subject to the additional pleas". In para 8 again, it is

stated that the lease agreement dated 1st January 2008 was not a lease

agreement but a `rent note'. When asked to explain what was the

difference between the lease deed and a rent note and whether this

changed the relationship between the parties which was one of landlord

and tenant, the learned counsel for the Defendant was unable to give any

satisfactory explanation. To this Court, it appears that this is merely an

exercise in semantics. The fact remains that the lease agreement dated 1st

January 2008 has been referred to in the MoU dated 1st January 2008 the

execution of which is not denied by the Defendant.

47. In paras 31 and 32 of the additional pleas in written statement it is

stated as under:-

"31. That in 2004 defendant was in desperate need of some finances and plaintiff offered Rs.4 Crores against

the security of the property worth more than (sic then) three times approximately Rs.12 Crores of the loan amount at a very high interest rate i.e. 3.5% per month and as a security asked for execution of certain documents.

32. That after due deliberations plaintiff suggested certain documents to be executed and agreed that after repayment of the amount the rights in the property will be reverted back to the defendant. As a result following documents were executed on 30.12.2004.

(a) Agreement to Sell

(b) Memorandum of understanding

(c) Lease deed.

(d) Power of Attorney

(e) Indemnity bond."

48. It requires to be pointed out that that the plea taken in para 31 is not

supported by any document placed on record by the Defendant. Such a

plea, therefore, cannot be accepted at all. As regards para 32, it in fact

constitutes an admission of those documents mentioned therein.

Therefore, the attempt by the Defendant to admit its signatures on the

agreement to sell while denying the contents thereof is futile and to no

avail.

49. It was sought to be contended that the Defendant by exercising the

buy-back option it performed its part of the MoU, and it was for the

Plaintiff to have come forward to sell the property to it. This plea cannot

be entertained in a suit filed by the Plaintiff seeking possession of the

suit property. Interestingly, the Defendant has not filed any counter-

claim in the present suit seeking specific performance of any clauses of

the MoU. The Defendant is caught in its own web of inconsistency. In

order to seek specific performance, the Defendant would have to

unequivocally states that the Plaintiff is the absolute owner of the suit

property. This, the Defendant is not prepared to do. Therefore, while

maintaining that the Plaintiff is not the owner of the suit property, the

Defendant is seeking to enforce the Plaintiff's obligation to sell the suit

property to it. Such a plea can simply not be countenanced in law.

50. The question that arises is whether these pleas of the Defendant are

unambiguous and unequivocal. As explained by the Supreme Court in

Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd., the

pleadings will have to be taken as a whole to determine if the admissions

by the Defendants are constructive even though not express. The

Defendant, as noticed hereinabove admits to the relationship between

the Plaintiff and it, of landlord and tenant respectively. In various

documents, which have not been denied by it including the MoU dated

1st January 2008, it has acknowledged the Plaintiff to be the owner of the

suit property. The fact that it repeatedly asserts that it has exercised a

"buy-back option" itself shows that the Defendant accepts the Plaintiff

as the owner of the suit property.

51. The Defendant has not been able to show to this Court on what basis

it is in possession of the suit property. The Defendant has attempted to

deny the relationship of the landlord and tenant between the Plaintiff and

it, and has attempted to deny the Plaintiff as owner of the suit property.

On both counts, its admissions on record are contrary. It must be held,

therefore, that the Defendant is continuing to occupy the suit property

without any lawful authority and therefore the Plaintiff is entitled to

succeed in getting a decree for possession in its favour.

52. The next question is whether there is any admission as regards the

damages payable by the Defendant. Here again we have clause 16 of the

lease deed dated 1st January 2008 which has been held by this Court to

have been impliedly admitted by the Defendant, constructively since it

has not denied the MoU dated 1st January 2008, which MoU implicitly

refers to the lease deed. Clause 16 of the lease deed specifies the rent

payable during the period of the lease and the grace period as well as the

damages payable thereafter. As long as the lease deed including the

above clause stands admitted, the liability of the Defendant to pay the

damages as specified also stands admitted. Therefore, there should not

be difficulty in passing a decree as regards damages as well.

53. For all of the aforementioned reasons, the suit is decreed in terms of

prayers (a) and (b). Accordingly, a decree is passed in favour of the

Plaintiff and against the Defendant in the following terms:-

(a) There will be a decree of possession in favour of the Plaintiff

and against the Defendant in respect of the entire suit property

bearing No.A-14, Mohan Co-operative Industrial Estate, Mathura

Road, New Delhi.

(b) There will be a decree for recovery in favour of the Plaintiff

and against the Defendant for a sum of Rs.42,78,450/- being the

arrears of damages, towards use and occupation charges for the

period from 1st December 2008 till the date of the filing of the

present suit and to pay a further sum of Rs.18,50,000/- per month

towards charges of use and occupation, equivalent to the last paid

monthly rent and a sum of Rs.50,000/- per day as damages in

terms of Clause 16 of the lease agreement dated 1st January 2008

from the date of the filing of the present suit till the defendant

vacates and hand over the peaceful physical possession of the suit

property to the Plaintiff.