Shri Karunesh Mittal & Ors. vs State Bank Of Patiala
2012 Latest Caselaw 497 Del

.*          HIGH COURT OF DELHI : NEW DELHI

+           I.A. Nos.15197/10 in CS (OS) No.1492 of 2009

%                                 Judgment decided on : 24.01.2012

SHRI KARUNESH MITTAL & ORS.                 ..... Plaintiffs
               Through: Mr. A.K. Sharma, Adv.

                                  versus

STATE BANK OF PATIALA                    ..... Defendant
                Through: Mr. Sanjiv Kakra, Adv with
                         Mr. Irfan Ahmed, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. By way of this application under Section 24 of CPC, the defendant, State Bank of Patiala is seeking transfer of the suit being CS (OS) No.225/2009 titled State Bank of Patiala vs Shri Karunesh Mittal & Ors. from the Court of Shri A.K. Chawla, learned ADJ, Delhi, Tis Hazari Court, Delhi for consolidation and trial of the same with the present suit.

2. The present suit is for possession, recovery of rent, permanent injunction and damages in respect of ground floor of the property bearing No.38, in Block F, Khasra No.199/100, Netaji Subhash Marg, Daryaganj, New Delhi (herein after referred to as „the leased premises‟).

3. It is averred in the application that the defendant is the lessee in the leased premises by virtue of the Lease Deed dated 20.05.2004 whereby Atul Ankur Builders Pvt. Ltd. are Lessors and the defendant is the Lessee in respect of the leased premises, on payment of a monthly rent of Rs.95,715/- with effect from 01.01.2004. It is also stated that the lease was for an initial period of five years, but, under Clauses 6(c) and 6(d) of the said Lease Deed, the Lessee was provided two options of renewing/continuing the lease for a period of five years each to continue as a Lessee for a maximum period of 10 years. The defendant enjoyed continuous and uninterrupted possession of the Leased Premises from 01.01.2004 till date.

4. It is further stated that by letter dated 27.11.2008, the plaintiff Nos.2 and 3 informed the defendant that they have allegedly purchased the leased premises from Atul Ankur Builders Pvt. Ltd. vide a Sale Deed dated 25.11.2008 and that the defendant right to the leased premises were now subject to the ownership rights of the plaintiffs. Thereafter, the defendant received a copy of the legal notice dated 01.12.2008, issued by Atul Ankur Builders Pvt. Ltd. to the plaintiffs, whereby it was stated that the ownership of the leased premises was a subject matter of disputes between the plaintiffs and Atul Ankur Builders Pvt. Ltd. the relevant portion of the said notice reads as under:

"........It is also to inform you that as the State Bank of Patiala is in possession of the entire ground floor, therefore, my clients are requesting the said Bank, not to release/pay any rent to your clients on the basis of Sale Deed dated 25.11.2008 until and

unless my clients inform the said Bank regarding payment of rent. ....."

5. The defendants sent various letters to both Atul Ankur Builders Pvt. Ltd. as well as the plaintiffs requesting them to provide either Consent letter of the other party concerned or an order of the Competent Court to enable the defendant to release the rent in favour of the rightful owner of the leased premises which was being deposited in the Sundry Account and also requested for the renewal of their lease in terms of under Clauses 6(c) and 6(d) of the Lease Deed dated 20.05.2004. However, the plaintiffs sent a legal notice dated 11.07.2009 alleging that the defendant has been in unauthorized occupation of the leased premises from 01.01.2009. Therefore, the defendant vide legal notice dated 25.08.2009 to the plaintiffs and Atul Ankur Builders Pvt. Ltd., called upon them to execute the Lease Deed for the period of 01.01.2009. to 31.12.2013 which was replied by the plaintiffs on 05.09.2009. The defendant, thereafter, filed the Civil Suit for specific Performance of Clauses 6(c) and 6(d) of the Lease Deed dated 20.05.2004. The defendant Bank has also filed a separate Application seeking permission of the Court to deposit the monthly rent till the disputes between the plaintiffs and Atul Ankur Builders Pvt. Ltd. are settled. The said suit is pending for adjudication before the Court of Shri A.K. Chawla, learned ADJ, Delhi, Tis Hazari Court, Delhi.

6. It is stated by the defendant that the property which is subject matter of the present suit is also subject matter of the lease deed of which the defendant is seeking specific performance in the suit pending before the Court of Shri A.K. Chawla, learned ADJ, Delhi, Tis Hazari Court, Delhi and a large portion of the defense and evidence to be led b the parties hereto in both the suits will overlap. Therefore, it would be expedient and in the interest of justice if the aforesaid suit, being CS (OS) No.225/2009 titled „State Bank of Patiala vs Shri Karunesh Mittal & Ors.‟ is transferred from the Court of Shri A.K. Chawla, learned ADJ, Delhi, and consolidated and tried along with the present suit.

7. However, the plaintiffs states that the two suits are not co- relatable as the present suit is for possession, recovery of rent and damages whereas the suit before the learned ADJ Court is for specific performance and therefore consolidation of the two suits will lead to unwanted procrastination of proceedings of the matters and their disposal may take a lot of time. It is also stated that there will be no multiplicity of proceedings or conflict in decision as alleged by the defendant because the controversies in both the cases are different and independent and they cannot be clubbed together, therefore, it would be proper that the suit filed by the parties be adjudicated independently.

8. The admitted position in the matter is that the parties in both suits are same. The suit filed by the defendant is at the stage of evidence and the suit filed by the plaintiff is at the stage of framing of issues. The main contention of the learned counsel appearing on

behalf of the plaintiff is that the suit filed by the defendant is not maintainable thereafter it is not necessary to consolidate both the proceedings, rather the progress in the present matter would be further delayed as the defendant is occupying the property without any authority.

9. The learned counsel for the defendant states that even the lease deed is to be continued as per the terms without making any formal request to the plaintiff. He refers to the proviso of Clause (c) in support of his submission, which reads as under:

"(c) That the bank paying the monthly rent hereby reserved and observing performing the covenants and conditions herein contained and on the part of the bank to be observed and performed shall and may peaceably and quietly hold, possess and enjoy the demised premises during the said terms without any interruption from or by the Lessor or any person or persons lawful/claiming any estate right, title or interest in or to the demised premises on the bank‟s written request to be made at any time before the expiration of this lease for such further period(s) named by the Bank not exceeding 10 years and on the same terms contained in this lease and at the same rent or with 20% increase in the basis rent as mutually agreed with the landlord. Provided that in case the lessee continue to hold possession of the demised premises after the expiration of initial or extended lease period without making formal request to continue the lease the lessee shall be deemed to have exercised its option for continuation of the lease on the same terms and conditions except the increase of rent as stipulated above, and lessor will be bound by the same."

10. Without deciding any rival submissions of the parties on merit, this Court in the present application has to determine the prayer on the basis of the grounds stated in the petition. The learned counsel for the defendant has referred to the judgments of F. Hoffman-La Roche Ltd. & Anr. V. Dr. Reddy's Laboratories Ltd. & Anr.: 2011 VII AD (Delhi) 86 and M/s Chitivalasa Jute Mills v. M/s Jaypee Rewa Cement; AIR 2004 SC 1687.

11. Relevant paras of M/s Chitivalasa Jute Mills v. M/s Jaypee Rewa Cement (supra) read as under:

"9. On the facts averred in the two plaints filed by the two parties before two different courts, it is dear that the parties are substantially the same. Jaypee Rewa have alleged and Willard India or Chitivalasa Jute Mills do not deny that Chitivalasa Jute Mills is nothing but a Division of Willard India Limited. The fact remains that the cause of action alleged in the two plaints refers to the same period and the same transactions, i.e., the supply of jute bags between the period 07.01.1992 and 31.12.1993. What is the cause of action alleged by one party as foundation for the relief prayed for and the decree sought for in one case is the ground of defence in the other case. The issues arising for decision would be substantially common. Almost the same set of oral and documentary evidence would be needed to be adduced for the purpose of determining the issues of facts and law arising for decision in the two suits before two different courts. Thus, there will be duplication of recording of evidence if separate trials are held. The two courts would be writing two judgments. The possibility that the two courts may record finding inconsistent with each other and

conflicting decrees may come to be passed cannot be ruled put.

12. The two suits ought not to be tried separately. Once the suit at Rewa has reached the Court at Visakhapatnam, the two suits shall be consolidated for the purpose of trial and decision. The Trial Court may frame consolidated issues. The Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 of the CPC. Unless specifically prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. The evidence having been recorded, common arguments need be addressed followed by one common judgment. However, as the suits are two, the Court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits. This is how the Trial Court at Visakhapatnam shall proceed consequent upon this order of transfer of suit from Rewa to the Court at Visakhapatnam."

12. After having considered the overall facts and circumstances and the decisions referred by the defendant, I am of the view that it

would be appropriate if both the matters be consolidated because it saves multiplicity of the proceedings, delay and expenses. Thus, the present application is allowed and it is directed that Civil Suit No.225 of 2009, titled as State Bank of Patiala vs. Karunesh Mittal and Others" pending in the Court of Sh. A.K. Chawla, learned ADJ, Delhi, be transferred to this Court for being consolidated with the present suit. However, it is made clear that the plaintiff would be at liberty to raise his main objection that the suit filed by the defendant is not maintainable and the said objection would be considered on merit without any influence of the order of consolidation of two proceedings passed by this Court. The application is disposed of.

CS(OS) No.1492/2009

List the matter before the Joint Registrar on 08.02.2012 for directions.

MANMOHAN SINGH, J.

JANUARY 24, 2012