United India Insurance Co. Ltd. vs M/S National Security Assurance ...
2011 Latest Caselaw 1636 Del

R-192

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                       Judgment reserved on: 18.03.2011
                        Judgment delivered on: 22.03.2011


+           RSA No.239/2005 & CM No. 11757/2005



UNITED INDIA INSURANCE CO. LTD.                 ...........Appellant

                  Through:    Ms. Suman Bagga, Advocate.

                  Versus

M/S NATIONAL SECURITY ASSURANCE
CO. LTD                                         ...........Respondent

                  Through:    None.

      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 This appeal has impugned the judgment and decree dated

26.05.2005 whereby the suit filed by the plaintiff i.e. M/s National

Security Assurance Co. Ltd. (through its voluntary liquidator) had

been decreed.

2 Present suit was a suit for possession. The Company M/s

National Security Assurance Co. Ltd. was a joint stock company.

Vide Resolution dated 07.06.1962, the plaintiff company went into

voluntary liquidation. Mr. N.R. Desai and Dr. Rustom C. Cooper

were appointed as voluntary liquidators. After the resignation of

Mr. N.R. Desai vide Resolution dated 13.09.1973 Mr. N.P. Sarda

and Mr. R. Raghavan were appointed liquidators jointly and

severally with Dr. Rustom C. Cooper. Present suit has been filed

through Mr. N.P. Sarda. The contention of the company is that it is

lawful tenant of K-41, Sher Singh Building, Opposite Plaza,

Connaught Circus, New Delhi under the landlord Sh. Om Prakash.

In 1958, the plaintiff company had allowed the erstwhile company

namely Vulcan Insurance Company Ltd. to occupy a portion of the

suit premises as a licensee; this portion comprised of two rooms

with common bath and latrine. Vulcan Insurance Co. Ltd. merged

with the defendant company i.e. M/s United India Insurance Co.

Ltd.. The defendant company is keeping the premises under lock

and has not paid any compensation to the plaintiff company. The

plaintiff company is in de jure and de facto occupation of the suit

premises. Only a temporary license had been granted to Vulcan

Insurance Company Ltd.; the defendant had no right to retain the

possession. Suit for possession was accordingly filed.

3 In the written statement, the claim of the plaintiff had been

refuted. It was stated that the defendant had been paying rent

directly to owner namely M/s Sher Singh Ranbir Singh who had

been signing vouchers for the receipt of the rent in favour of M/s

Vulcan Insurance Company Ltd. The defendant being the tenant in

the suit premise, the Civil Court has no jurisdiction to try the suit.

4 On the pleadings of the parties, the trial Judge had framed 7

issues. One witness was examined on behalf of the plaintiff. He was

the liquidator Mr. N.P. Sarda. He had proved documents Ex. PW-

1/1 & Ex. PW-1/2 which were resolutions evidencing his capacity to

institute the suit. Admittedly an earlier eviction petition had been

filed by the landlord M/s Sher Singh Ranbir Singh against the

defendant; the written statement filed by the defendant in that

eviction petition had been proved through the version of PW-1 as

Ex.PW-1/19 and ex. PW-1/20; the said petition had been dismissed

as withdrawn vide judgment Ex. PW-1/21. It is pointed out by the

learned counsel for the appellant that this eviction petition had

been withdrawn without seeking any liberty to refile a fresh

proceeding.

5 The defendant did not lead any evidence. Trial judge held

that the specific plea set up by the defendant that he was the

tenant and he had been paying rent directly to the owner M/s Sher

Singh Ranbir Singh had not been proved. The plaintiff on the other

hand had been able to establish through cogent oral evidence that

the plaintiff had only permitted Vulcan Insurance Company Ltd. to

occupy the premises as a licensee; thereafter Vulcan Insurance

Company Ltd. had merged with the defendant; the defendant had

no independent title; being only a licensee he was liable to be

evicted. There was no relationship of landlord and tenant between

the parties. The suit had accordingly been decreed.

6 The impugned judgment had endorsed this finding.

7 This is a second appeal. It had been admitted and on

16.03.2007, the following substantial questions of law were

formulated:-

"1. Whether the Civl Judge has jurisdiction to try this case?

2. Whether the appellant is in possession of the premises in dispute as a licensee or direct tenant under the owner/landlord or the respondent? "

8 On behalf of the appellant, it has been urged that the

judgments of the two courts below are perverse for the reason that

only one witness has come into the witness box namely the

voluntary liquidator Mr. N.P. Sarda who had no personal

knowledge in the present case because admittedly he was not in

the picture at the time when the so called license was created. This

was a clear case of tenancy. Jurisdiction of the Civil Court was

barred.

9 None has appeared for the respondent although he has been

served.

10 The findings in the impugned judgment do not in any manner

call for any interference. The suit was plaintiff had been rightly

decreed. The case of the plaintiff as is evident from the

documentary evidence including the written statement filed by the

defendant in the earlier eviction proceedings (Ex.PW-1/20) had

been adverted to. In Ex.PW-1/20 the National Security Assurance

Co. Ltd. had set up a plea that it is the exclusive tenant in the suit

property; it had granted permissive user of the property to Vulcan

Insurance Company Ltd. Ex.PW-1/19 was the written statement of

Unit Vulcan wherein it was admitted that M/s National Security

Assurance Company was the tenant of the suit premises.

Thereafter, on a subsequent date i.e. 28.07.1976 in view of the

statement made by the parties, the landlord had sought permission

to withdraw this eviction petition. This document is Ex. PW-1/21.

The defence set up by the defendant in the present suit was that it

had been paying rent directly to the landlord M/s Sher Singh

Ranbir Singh was never substantiated. In fact there was no

evidence adduced by the defendant at all; it did not lead any

evidence; its defence had stood closed.

11 Both the fact finding courts had correctly returned a finding

that the defendant was only a licensee in the suit premises; it had

been granted only permissive user by the plaintiff in a portion of

the suit property; after its merger with the United India Insurance

Company Ltd., it had no right to retain the suit premises without

any authorization. Relationship of landlord-tenant did not stand

substantiated as this stand taken by the defendant was never

proved. In no manner, the findings in the impugned judgment are

perverse. The impugned judgment in fact examined all issues

raised before it and returned the aforenoted findings. They read as

under:-

"13 The plea that the suit is time barred was not raised before the learned trial court and has been for the first time in appeal. But being a legal issue, the same can be entertained in appeal also. The plaintiff/ respondent has averred in its suit that in 1958 it allowed Vulcan Insurance Company Ltd. as a licensee out of its own free will and without any contractual obligations. The appellant/defendant company its merger with M/s Vulcan Insurance Company Ltd. did not acquire any right over the premises. The plaintiff/ respondent made repeated requests and demands to it to hand over the portion in their possession to the respondent/plaintiff. Since they failed to do so, finally on 02.05.1978 a registered notice was sent calling upon them to stop its occupation and hand over the portion in their possession to the plaintiff/ respondent. The suit has been filed on 17.07.1979.

14 The appellant in their written statement have not specifically denied that the plaintiff/ respondent did not make any requests or demands to it to hand over the possession of the premises in their occupation. Neither they have denied the receipt of notice dated 02.05.1978 served on it by plaintiff/respondent. Thus from the pleadings of the parties, it is apparent that after passing of the General Insurance Business, Nationalisation Act, 1972, the appellant company merged with M/s Vulcan Insurance Company Ltd. The respondent did not recognize their possession in the suit property. Thus they asked them many times to remove their goods from the said premises.

Therefore, the suit filed by the respondent/plaintiff is within the period of limitation.

15 The appellant has contended that the respondent has not paid proper court fees for valuation of the suit. That the respondent is liable to pay the court fees under Section 7 (v)(e) of the Court Fees Act, 1870. It is an admitted case of the parties that the respondent was tenant in the suit property under the original landlord. Thus he could no acquired better right than of a tenant in the suit premises. Therefore he is entitled to pay the court fees according to the provisions of section 7 (v)(c) that is according to the amount of rent of the immovable property to which the suit refers payable for the year next before the date of presenting the plaint.

16 The respondent has averred that the monthly rent of the premises is Rs.82.50/- and the annual rent comes to Rs.990/- which it has fixed as the value for the court fees and for the purpose of jurisdiction. The respondent has paid the court fees on the said amount. The appellant has not stated that how much monthly rent the suit premises could fetch during that time. Neither it has proved any other market rent than as averred by the respondent. Thus the learned trial court has correctly held that suit has been properly valued for the purposes of court fees and jurisdiction.

17 It was contended on behalf of the appellant that the respondent had abandoned all his rights and interests in the suit property. Thus it had no legal right to file the present suit. PW-1 Sh. N.P. Sarda has deposed that „the plaintiff company is in possession of the suit premises even today. However a portion of the premises was given to M/s Vulcan Insurance Company Ltd. to use the same on the leave and license basis. The remaining portion of the suit property is in their possession. At no time, neither the Vulcan nor the defendants were in exclusive possession of the suit premises.‟ The witness has not been cross- examined on the said deposition. However, he has denied the only suggestion made to him that the plaintiff/ respondent company is not in possession of any part of the suit property.

18 In the written statement the appellant has claimed that M/s Vulcan Insurance Company Ltd. was in exclusive possession of the premises. However, appellant has not proved the said plea raised by it. Neither it has proved that the plaintiff/respondent had surrendered the entire possession of the tenanted premises to M/s Vulcan Insurance Company Ltd. and since 1958 the appellant company is in the exclusive possession of the premises. Thus the learned trial court has correctly decided issue number 2."

12 There being no relationship of landlord and tenant between

the parties, civil court had the jurisdiction to entertain the present

suit; the defendant was only a licensee. Both the substantial

questions of law are answered accordingly.

13 There is no merit in this appeal. The appeal as also the

pending application is dismissed.

(INDERMEET KAUR) JUDGE MARCH 22, 2011 A