Praveen Kumar Wadhwa vs M/S. Endure Capital (P) Ltd.
2010 Latest Caselaw 5114 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment reserved on : 02.11.2010
%                              Judgment delivered on:10.11.2010

+            RSA No. 137/2004 & C.M.7432/2004

PRAVEEN KUMAR WADHWA                                 ........Appellant

                   Through:    Mr. Raman Kapoor, Advocate.

                   Versus

M/S. ENDURE CAPITAL (P) LTD.              .......Respondent
             Through: Mr. B.S. Mann with Ms. Smita Mann
                      and Mr.H. Singh, Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?             Yes

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

INDERMEET KAUR, J.

1. Arguments have been heard on admission. Counsel for the

appellant has submitted that the findings in the impugned

judgment decreeing the suit of the plaintiff/respondent under

Order 12 Rule 6 of the Code of Civil Procedure (hereinafter

referred to as the 'Code') is a perversity in as much as the

impugned judgment has failed to appreciate that the question

about the ownership of the suit property i.e. property bearing no.

A-190, Inder Puri, New Delhi-12 was yet to be adjudicated upon.

2. It is pointed out that an execution petition had been

preferred by the decree holder, Mr. S.C. Mehta, wherein he had

sought attachment of the suit property; the judgment debtor was

Mr. P.K. Wadhwa (the present appellant) and the Objector before

the Executing Court was the respondent i.e. M/s. Endure Capital

Private Limited. Pursuant to the orders of the High Court an issue

in this regard had been framed by the Executing Court. This is

evident from the order dated 19.02.2003. It is pointed out that in

terms thereof evidence is being led and the matter is yet pending;

the question about the ownership of the respondent/Objector

therein i.e. M/s. Endure Capital Private Ltd. is yet to be decided.

In this view of the matter, a triable issue had arisen and a decree

under Order 12 Rule 6 of the Code could not have been passed.

For this proposition, reliance has been placed upon various

judgments of High Court reported in 82 (1999) Delhi Law Times

281 titled as Sh. Mohan Prasad Jha Vs. Sh. Shambu Prasad Singh,

1999 (49) DRJ titled as R.S. Bakshi & Anr. Vs. H.K. Malhari & Anr.

as also another judgment of this court reported in AIR 1992 Delhi

331 titled as Smt. Radha Lal Vs. M/s. Jessop & Company. It is

pointed out that facts which require investigation and proof cannot

be the subject matter of a decree under Order 12 Rule 6 of the

Code; this provision cannot be resorted to cut short the litigation.

3. Arguments have been countered by the learned counsel for

the respondent. It is pointed out that no doubt an execution

petition had been filed by the decree holder i.e. Sh. S.C. Mehta

against the judgment debtor P.K. Wadhwa (appellant) seeking

attachment of the suit property (bearing no. A-190, Inder Puri, New

Delhi-12) as certain amounts were payable to the decree holder.

Respondent/Objector M/s. Endure Capital Private Ltd., had filed

objections claiming that the suit property cannot be attached as he

is the owner thereof. It was pursuant thereto that an issue had

been framed about the ownership of the suit property. It is pointed

out that those proceedings cannot come in the way of the clear and

unequivocal admission made by the appellant (defendant before

the Trial Court) wherein he had admitted that a lease had been

executed between the parties; the legal notice terminating his

tenancy had also not been disputed. The tenancy having thus

expired by operation of law, the defendant was rightfully ordered

to be ejected.

4. Arguments have been heard.

5. The plaintiff i.e. M/s. Endure Capital Private Limited had filed

a suit for recovery of possession, arrears of rent damages/mesne

profits against P.K. Wadhwa, the defendant. The contention of the

plaintiff was that he was the owner of the second floor of the

property bearing no. A-190, Inder Puri, New Delhi-12. The plaintiff

had purchased it vide a registered sale deed dated 07.09.1995.

Lease deed of the same date i.e. 07.09.1995 had been executed

between the parties i.e. the plaintiff and the defendant. Lease

deed was for a period of seven months. On the expiry of the said

period, it could be renewed for another period of 10 months w.e.f.

07.04.1996. It was a registered lease deed. Rate of rent was Rs.

6000/-. The last paid rent was up to January, 1997. The lease had

expired by the efflux of time on 06.02.1997. The defendant failed

to vacate the suit property. The tenancy of the defendant was also

terminated vide legal notice dated 06.01.1999 duly served upon

him. Defendant did not vacate the property; suit was accordingly

filed.

6. Defendant in para 3 of the written statement had admitted

that a registered sale deed of the said property was executed in

favour of Mr. Dalip Bhatia, who is the Director of the plaintiff

company. The execution of the lease deed between the parties also

stood admitted. It was also admitted that the said lease expired by

efflux of time in February 1997. Relationship of lessor and lessee

stood established. The notice dated 6.1.1999 under Section 106 of

the Transfer of Property Act (hereinafter referred to as 'TPA')

terminating the tenancy of the defendant w.e.f. the midnight of

06.02.1999 was also admitted. In the written statement an

objection had been taken that Dalip Bhatia does not have the locus

standi to file the suit. However, it was not disputed that Dalip

Bhatia was the director of the plaintiff company. Another objection

in the written statement was that in 1994-95, the defendant had

entered into an agreement with the erstwhile owner of the

property i.e. Sh. Avtar Singh; however, it was not disputed that

Avtar Singh had thereafter on 7.9.1995 executed the registered

sale deed in favour of the plaintiff company.

7. These admissions were noted by the Trial Judge and

endorsed by the First Appellate Court. Decree for possession and

mesne profits had thereafter followed in favour of the plaintiff. The

impugned judgment had also taken note of the deed of

understanding purported to have been executed in favour of the

defendant on 05.10.1995 by the erstwhile owner, Avtar Singh,

which was admittedly, a transaction after the execution of the

registered sale deed dated 07.09.1995 vide which the title and

ownership of the suit property stood transferred in favour of the

plaintiff. The lease deed executed between the parties had

described the plaintiff as the landlord; the defendant was described

as the tenant; this document was admitted. There were two lease

deeds; the first lease deed was dated 07.09.1995 and the

subsequent lease deed renewing the lease for another period of 10

months was dated 07.05.1996. Both were registered documents.

8. These findings of the Trial Judge endorsed by the First

Appellate Court clearly call for no interference. Both the courts had

rightly decreed the suit of the plaintiff under Order 12 Rule 6 of

the Code. The admissions of the defendant/appellant in the written

statement were clear and unambiguous. The appellant/defendant

had clearly and categorically admitted in the written statement

that the plaintiff is the owner of the suit property by virtue of the

registered sale deed dated 07.09.1995. The subsequent lease

deeds executed between the parties dated 07.09.1995 and the

second which was the renewal of the initial lease dated 07.04.1996

were also admitted; they were registered documents. Legal notice

terminating the tenancy of the defendant w.e.f. midnight of

06.02.1999 was also not a disputed document. It was not the

contention of the appellant/defendant that this notice was lacking

in legal particulars. Receipt of this notice was not disputed. Rate

of rent was Rs. 6000/-. The suit property was not covered by the

provisions of the Delhi Rent Control Act. These concurrent

findings of the two courts below call for no interference.

9. The submission of the learned counsel for the appellant that

the execution proceedings pending before the executing court bar

the applicability of the provisions of Order 12 Rule 6 of the CPC is

clearly a misunderstood proposition. The execution petition was

filed by Sh. S.C. Mehta against the present appellant wherein the

Objector/respondent had filed his objections to ward off the

warrants of attachment which had ordered against the suit

property. The decision of these objections in the execution petition

would not in any manner affect the relationship of landlord and

tenant between the warring parties before this court. Section 116

of the Indian Evidence Act creates an estoppel; the

tenant/appellant is estoppeled from challenging this relationship.

10. Judgments relied upon by the learned counsel for the

appellant are inapplicable; they are distinct on facts; in this case

the admissions of the appellant/defendant are unambiguous and

clear. There is no merit in the appeal. Appeal as also the pending

application is dismissed in limine.

INDERMEET KAUR, J.

NOVEMBER 10, 2010 SS/rb