Rk Bansal vs Jag Pravesh Sharma
2011 Latest Caselaw 6292 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment: 22.12.2011

+     RC.REV. 226/2010 and CM No. 21535/2011

      RK BANSAL                               ..... Petitioner
                         Through   Mr. O.P. Khadaria and
                                   Mr. Saurabh Pahura,
                                   Advocates.

                    versus

      JAG PRAVESH SHARMA                      ..... Respondent
                    Through        Mr. Sudhir Nandrajog, Sr.
                                   Advocate with Mr. Sidhartha
                                   Bambha, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. The order impugned before this court is the order dated

18.05.2010 whereby an application for leave to defend filed by the

tenant-R.K. Bansal in a pending eviction proceedings filed by the

landlord-Jag Pravesh Sharma under Section 14(1)(e) of the Delhi

Rent Control Act (hereinafter referred to as „the Code‟) had been

dismissed.

2. Record shows that an eviction petition had been filed by the

landlord on the ground of a bonafide requirement as contained in

Section 14(1)(e) of the Delhi Rent Control Act (hereinafter

referred to as „DRCA‟). The demised property comprise of two

shops on the ground floor of the property bearing No. 7226/XV,

Qutab Road, New Delhi as depicted in blue colour in the site plan

annexed with the petition. Petitioner is stated to be the owner of

the disputed premises stating that he bonafidely requires the said

premises for the use of the said premises by his wife and his two

sons, namely, Meenakshi Sharma, Amit Kapila and Sumit Kapila

who are residing with him and are dependent upon him for their

needs both residential as also for carrying out their business. It is

stated that the wife of the petitioner and his two sons have no

other property and they require this property bonafidely for

running their business. Their partnership firm constituted under

the name and style of „M/s. Mahadev Sales Corporation‟ which is

carrying on a wholesale and retail business in marble, pre-

laminated article boards etc. from the adjoining premises since

April 2000; running stock of the business is more than ` 49 lacs

and the accommodation presently available cannot accommodate

the said stock. Business cannot be expanded on account of paucity

of accommodation; accordingly, disputed premises are required

by the petitioner for running the aforenoted business of his wife

and two sons.

3. In the application for leave to defend various triable issues

are sought to have been raised and also have been orally urged

before this court. It is contended that the submission of the

landlord that his both sons are residing with him is false; Amit

Kapila is a resident of Canada and is permanently settled there;

petitioner has concealed the fact that he has a 100 sq. yds. area at

A-1/34 WHS, Kirti Nagar, New Delhi from where petitioner is

carrying out his business. It is contended that the stocks worth

`49 lacs have been incorrectly averred; all these facts are triable

issues; further contention of the present petitioner is that the site

plan filed by the landlord alongwith the eviction petition is not

correct.

4. Site plan has been perused. In the eviction petition

contention of the landlord is that the portion shown in green

colour is only under his ownership; the portion shown in blue is

the tenanted portion and the remaining part of the property

belongs to his brother Bhim Sen Sharma. Contention of the tenant

is that this submission is wrong and in fact a godown which is

depicted in the site plan behind the portion shown in green is also

a part of the share of the landlord; admittedly, this submission

now urged before this court does not find mention in the

application for leave to defend and neither did it find mention in

the rejoinder filed by the tenant to the reply of the landlord. In the

reply filed by the landlord, the landlord has vehemently contended

that only the portion shown in green colour is the share of the

landlord and the blue colour is the tenanted portion and rest of

the entire property falls to the share to his brother Bhim Sen

Sharma. As noted supra, this submission now urged that another

godown/hall behind the green portion also falls to the landlord‟s

share did not find mention in the application for leave to defend

and neither was it rebutted or denied in the rejoinder filed by the

tenant. As such this submission of the tenant that there is enough

accommodation with the landlord in the shape of a godown which

fact has been concealed by him is a submission clearly without

any merit.

5. Submission of the tenant that one son of the petitioner is

settled permanently in Canada is also not borne out; this has been

vehemently refuted by the landlord. Be that as it may, the

contention of the petitioner in his eviction petition is that these

two shops are required by him bonafidely for the running and

extension of the partnership business and the partnership deed

filed on record shows that this partnership firm comprises of his

wife and his two sons; even if one of the partners is in Canada, the

business of the partnership firm can be continued in his absence

by the other two partners. This submission also thus has also no

force.

6. The landlord alongwith his reply to the application for leave

to defend had also filed the audited balance-sheet of the

partnership firm namely „M/s Mahadev Sales Corporation‟

wherein the closing stock as on 31.03.2008 of the said partnership

firm was more than ` 49 lacs; this had also clearly adverted to in

the reply filed by the landlord to which again there is no specific

denial in the rejoinder. Documents of „M/s Mahadev Sales

Corporation‟ also show that the partnership firm comprises of

three partners namely Meenakshi Sharma, Amit Kapila and Sumit

Kapila. Thus, this submission of the tenant that the stock of ` 49

lacs is not available with the petitioner and is again an argument

which raises no triable issue.

7. The only other ground which remains to be answered is that

the tenant has contended that the petitioner has another

accommodation at A-1/34 WHS, Kirti Nagar, New Delhi and this

fact has been concealed. The petitioner in his reply has admitted

that he is carrying on his business and he is a proprietorship

concern under name and style of „M/s Basudeo‟ since 1995; this

property is jointly owned by the petitioner and his brother;

moreover this property is his sole proprietorship business i.e. of

the petitioner himself. In the rejoinder, there is no specific denial

to this submission that this is the sole business of the petitioner

himself. The tenanted premises comprise of two shops adjoining

the shop from where M/s. Mahadev Sales Corporation is carrying

on its business.

8. The documents on record of M/s Mahadev Sales Corporation

show that it is carrying on its business activities from a portion of

property bearing No. 7226/XV, Qutub Road, New Delhi and this

green portion as depicted in the site plan is only one single shop

with one verandha in front and a hall at the back; the partnership

is doing good business and has stocks of more than ` 49 lacs as

disclosed in the balance-sheet. The site plan shows that the area

in occupation of the partnership firm is one shop measuring about

16 x 12 feet and thus, the submission of the petitioner that the

stock of more than ` 49 lacs (which is a business comprised of

marble, pre-laminated article boards etc.) which are large

building material cannot be stocked in this area and for which he

needs the accommodation which is presently under the tenancy of

the tenant-R.K. Bansal is an argument which has considerable

force.

9. The landlord has been able to show that the premises are

bonafidely required by him for the expansion of his business

which is being run from a small shop and keeping in view the

business assets (evidenced from the audited balance-sheet dated

31.03.2008), he needs more space to accommodate his growing

needs in the business. The tenanted premises (as noted supra)

are two shops adjacent to the place from where the business of

M/s Mahadev Sales Corporation is being carried out.

10. The 100 sq. yds shop in Kirti Nagar is at a distance of 45

minutes by road from the present accommodation is jointly owned

by the petitioner and his brother from where the proprietorship

work of „M/s Basudeo‟ is being carried out. This is a disputed

fact.

11. Contention of the petitioner that the aforenoted disputed

premises is required by „M/s Mahadev Sales Corporation‟ for their

expansion has thus clearly been substantiated; impugned order

dismissing the application for leave to defend thus suffers from no

infirmity.

12. In 2009(2) RCR 455 titled as Ram Babu Agarwal vs. Jay

kishan Das, the Apex Court observed as under:-

"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear

business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."

13. In Sait Nagjee Purushotham and Co. Ltd. v. Vimalabai Prabhulal and Ors. reported in 2005 8 SCC 252; the Apex Court observed:

"It is always the prerogative of the landlord that if he requires the premises in question for his bona fide use for expansion of business this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not genuine need. It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."

14. Reliance placed upon the learned counsel for the petitioner

upon the judgment of the Apex Court reported as Precision Steel

& Engineerign Works vs. Prem Deva, AIR 1982 SC 1518 is

misplaced. It is only when a triable issue has arisen that the

application for leave to defend has to be granted. No such triable

issue having arisen, the impugned judgment dismissing the

application for leave to defend suffers from no infirmity.

15. Petition is dismissed.

INDERMEET KAUR,J DECEMBER 22, 2011 rb