M/S Saurabh Buildcon Pvt. Ltd. vs M/S Aster Technologies Pvt Ltd & ...
2012 Latest Caselaw 7032 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CS(OS) No. 2498/2012
%                                                             10th December, 2012

M/S SAURABH BUILDCON PVT. LTD.                   ..... Plaintiff
                 Through: Mr. Umesh Shandilya, Adv.

                      versus

M/S ASTER TECHNOLOGIES PVT LTD & ANR.       ..... Defendants
                 Through: Mr. Pawan Kumar, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

By this judgment I am decreeing the suit of the plaintiff/landlord filed for

possession and mesne profits qua the relief of possession under Order 12 Rule 6

CPC.

2. This suit is filed by the plaintiff/landlord for recovery of possession, arrears

of rent and mesne profits. The suit premises are 71/5, Shivaji Marg, Najafgarh

Road, New Delhi-110015 admeasuring a total of 4156 sq.ft. Plaintiff is the

subsequent purchaser of the suit premises and original landlord/erstwhile owner

was M/s. Delhi Floorings Pvt. Ltd. Though the plaintiff claims the document of

purchase as a Sale Deed dated 29th December, 2009, however, this document is a

registered and stamped Agreement to Sell, and which will entitle the plaintiff to the

benefit of Section-53A of the Transfer of Property Act, 1882.

3. The counsel for the plaintiff states that the suit, at least so as to relief of

possession, be decreed under Order XII R.6 CPC inasmuch as, there are

admissions with respect to:-

      i.     Existence of relationship of landlord and tenant;

      ii.    Rate of rent being `30,000/- i.e. more than `3,500/- per month.

iii. The defendant being a monthly tenant inasmuch as there is no registered lease deed for a fixed period of the suit premises, and the monthly tenancy was terminated by legal notices dated 11.3.2008 and 9 th November, 2010. Alternatively termination of tenancy is pleaded from the date of service of summons in the suit in terms of judgment in the case of Jeevan Diesels & Electrical Ltd. Vs. M/s. Jasbir Singh Chadha (HUF) & Anr. reported as 2011 (183) DLT 712, (SLP No. 15740/2011 against which has been dismissed vide Order dated 7th July, 2011) so that the tenancy would stand determined at least so far as the aspect of grant of relief of possession is concerned. That the legal notice dated 9.11.2010 was in fact replied to by the defendants vide reply dated 28th December, 2010, and thus there can hardly be any doubt as regard the service of the legal notice dated 9.11.2010.

4. The main thrust by the counsel for the defendants so as to dispute the grant

of decree for possession was that the document being the Agreement to Sell dated

29th December, 2009 is only an Agreement to Sell and therefore, cannot confer any

title to the property. Reliance is placed upon recent judgment of the Supreme

Court in the case of Suraj Lamp Industries Pvt. Ltd. v. State of Haryana & Anr.,

183 (2011) DLT 1 (SC) to argue that as per this judgment an agreement to sell

cannot be looked into.

5. I am unable to agree with the submission as made on behalf of the

defendants that the plaintiff is not the 'owner' of the suit premises. Firstly, an

owner to whom possession can be granted need not be a complete owner of the suit

premises, and all that is required is that the plaintiff must have a better title to the

suit premises than the defendant. Secondly, the Agreement to Sell dated 29 th

December, 2009 being duly stamped and registered, the plaintiff is entitled to legal

rights flowing from the doctrine of part performance contained in Section 53A of

the Transfer of Property Act, and therefore, plaintiff has the requisite title for being

entitled to file the suit for recovery of possession.

6. Counsel for the defendants argued that the judgment in Suraj Lamps and

Industries (supra) is a bar to claim title. In my opinion, the said judgment will have

no application to the facts of the present case inasmuch as the said judgment only

seeks to bar looking into those Agreements to Sell which are unstamped and

unregistered so that they cannot confer ownership in an immovable property. In

fact, the requirement of stamping and registration of Agreement to Sell in Delhi is

subsequent to 24th September, 2001 when the Transfer of Property Act, 1882 and

Stamp Act, 1899 as applicable to Delhi, were amended vide Act 48 of 2001 to

require Agreements to Sell in the nature of part performance to be registered and

stamped. The relevant Article of the Stamp Act requiring the Agreement to Sell

falling under Section 53A of the Transfer of Property Act, 1882 to be stamped is

Article 23A of the Stamp Act.

In fact, the Supreme Court in the judgment in Suraj Lamps's (supra) case in

para 12,13, 14 & 16 ( so far as the documents prior to 24.9.2001 are concerned)

has protected and re-affirmed the rights created under Section 53A and Section 202

of the Contract Act, 1872 as also the provisions as to a Will conferring title after

the death of the executant. However, as stated above, there is no need to discuss

the applicability of the judgment of Suraj Lamp's case in the facts of the present

case where the Agreement to Sell falls squarely within Section 53A of the Transfer

of Property Act, 1882 as amended by Act 48 of 2001 as the agreement to sell is

duly stamped and registered.

7. So far as the service of notice terminating tenancy is concerned, the plaintiff

claims termination of tenancy by two notices dated 11.3.2008 (sent by erstwhile

owner) and 9.11.2010 (sent by the plaintiff). These notices are referred to in paras

5 & 7 of the plaint. A reference to the corresponding paras of the written statement

shows that only the legality of the notices is disputed i.e receipt of notices is not

disputed. In fact para 8 of the written statement admits that a reply dated

28.12.2010 was sent to the notice dated 9.11.2010. There is therefore no dispute to

the aspect of service of the two legal notices. What would be the date on which the

tenancy would be terminated is an aspect which will concern the aspect of the date

from which the mesne profits would be granted, and this aspect will be

subsequently seen during the trial in the suit with respect to the mesne profits,

however, as of today, the decree for possession of the suit premises cannot be

denied to the plaintiff, inasmuch as at least from the date of service of the legal

notices, the tenancy will stand determined. The tenancy was a month to month

tenancy as the lease deed dated 24.7.1990 is not a registered document and

therefore cannot be taken as a document for a lease of more than twelve months

w.e.f. 16.8.1990 (date of commencement of lease). Any lease deed for a period of

twelve months and above can only be by a registered document as per Section 107

of the Transfer of Property Act, 1882 read with Sections 17(1)(b) and (d) of the

Registration Act, 1908.

8. So far as the defence that the lease was for manufacturing purposes, the

argument is misconceived as even the lease deed dated 24.7.1990 filed by the

defendants does not show the purpose of letting as for manufacturing purpose.

However, even if we take the lease purpose as manufacturing purpose six months

have expired after the serving on the defendant of the notices dated 11.3.2008 and

9.11.2010 and therefore suit is not premature as per the amended Section 106 of

the Transfer of Property Act, 1882.

9. In view of the above, suit of the plaintiff for possession with respect to the

suit premises admeasuring 4156 sq.ft. forming part of the premises bearing No.

71/5, Shivaji Marg, Najafgarh Road, New Delhi-110015 is decreed and as shown

in red and yellow in the site plan annexed to the plaint as Annexure P-3.

10. List before the Joint Registrar for completion of pleadings and marking of

exhibits to the documents on 12th February, 2013.

I.A.No. 22044/2012 (U/s 8 of Arb.& Con. Act, 1996 by D-1)

11. This is an application filed on behalf of defendant no.1 under Section 8 of

the Arbitration and Conciliation Act, 1996 to refer the disputes between the parties

to arbitration.

12. The subject suit is a suit by the landlord for possession and mesne profits.

13. So far as the aspect of not referring the relief of possession to arbitration is

concerned, I have already had an occasion to deal with the same in the judgment in

the case of Shri Sanjay Saxena Vs. Sh. K.Sudershan Reddy & Ors. 2012 (190)

DLT 33 wherein I have held that with respect to the issue of possession there are

no disputed questions of fact or any disputes, which need be sent to arbitration

once the relationship of landlord and tenant between the parties, premises being

outside the protection of Delhi Rent Control Act, 1958 and termination of tenancy

are/ become admitted facts. For seeking reference to arbitration a 'dispute' must

exist, and if there is no dispute, there cannot be reference to arbitration.

Therefore, so far as the relief of possession is concerned, the matter cannot

be referred to arbitration.

14. So far as the aspect of mesne profits is concerned, the arbitration clause will

not apply because the arbitration clause perishes with the expiry of the lease deed

so far as the disputes which can be those arising during the period of the lease. In

the present case, the lease deed dated 24.7.1990 between the erstwhile original

owner and defendant/tenant may be for an unstated period w.e.f. 16.8.1990,

however in a way the period can be of three years as rent was to be increased by

20% after three years. In fact, since the lease deed is not stamped and registered

the tenancy will only be a month to month tenancy as a tenancy terminable under

Section 106 of Transfer of Property Act, 1882. The mesne profits which are

claimed in the suit are for a period for which there was no lease deed and hence for

disputes as to mesne profits for which lease deed was inapplicable there cannot be

invoked the arbitration clause which can only be invoked for the disputes falling

within the lease period. With respect to the amount which is claimed in the suit

being mesne profits from 29.12.2009 till the filing of the suit, such charges are

beyond the at the best period of three years of the lease as per the lease deed and

therefore, would not fall within the purview of the arbitration clause. Only those

disputes within the lease period of a lease deed can be the subject matter of

arbitration under an arbitration clause which appears in the lease deed. Disputes

beyond the period of the lease deed cannot fall in the scope of the arbitration clause

and hence cannot be referred to arbitration. Therefore, disputes of mesne profits

are not entitled to be referred to arbitration and the application under Section 8 of

the Arbitration and Conciliation Act, 1996 has to fail.

15. In view of the above, there is no merit in the application which is

accordingly dismissed.

I.A.No. 22046/2012 (U/o 6 Rule 17 CPC by the defendants)

16. Except on the aspect of the amendment application pleading permanent

tenancy having been created as per the agreement of lease deed dated 24.7.1990,

and which plea is barred by law inasmuch as a permanent tenancy in view of the

Section 107 of the Transfer of Property Act, 1882 and Sections 17(1) (b) and (d) of

the Registration Act, 1908 can only be by means of stamped and registered

instrument, let notice be issued only on the remaining aspects of this amendment

application to the plaintiff. In fact the plea of alleged permanent tenancy already

exists in the existing written statement and therefore there is no need to add any

aspects about the same by amendment. In fact this application in reality had been

filed as a strategy to delay decreeing of the suit qua the relief of possession.

Counsel for the plaintiff accepts notice. Reply be filed within four weeks.

Rejoinder, if any, be filed within two weeks thereafter.

17. List on 12th February, 2013 before the Joint Registrar for completion of

pleadings.

I.A.No. 22041/2012 (under Order 6 Rule 17 CPC by the defendants)

18. This is an application seeking amendment to the reply filed by the

defendants to the plaintiff's application under Order 39 Rule 10 CPC.

19. Notice. Counsel for the plaintiff accepts notice. Reply be filed within four

weeks. Rejoinder, if any, be filed within two weeks thereafter.

20. List on 12th February, 2013 for completion of pleadings.

I.A.No. 22045/2012 (U/o 6 Rule 17 CPC by the defendants)

21. In view of the fact that application under Section 8 of the Arbitration and

Conciliation Act, 1996 is dismissed, this application seeking amendment of the

application under Section 8 of the Arbitration and Conciliation Act, 1996 is also

dismissed.

DECEMBER 10, 2012                                     VALMIKI J. MEHTA, J.
rs/ib