Sanjiv Pathak vs Som Nath & Ors
2013 Latest Caselaw 3472 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 6th August, 2013

+                             RFA 324/2013

       SANJIV PATHAK.                                          .... Appellant
                   Through:              Mr. Sudhir Nandrajog, Sr. Adv. with
                                         Mr. Sanjeev K. Trivedi, Advocate.

                                 Versus
       SOM NATH & ORS                                       ..... Respondents

Through: None.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

CM No.12033/2013 (of appellant for interim stay)

1. The application has been filed on the premise that notice of the appeal has been issued. However, on 16th July, 2013 when the appeal was first listed, the counsel for the appellant sought an adjournment and the appeal was thus posted to 21st August, 2013 for admission. It was however clarified that the counsels to come prepared to address on the appeal finally. Without notice of the appeal being issued, the question of grant of any interim stay does not arise.

2. The senior counsel for the appellant states that the appeal may be heard on the merits. The said request is acceded to.

3. The application is disposed of.

RFA 324/2013 & CM No.10624/2013 (for stay)

4. The appeal impugns the judgment and decree (dated 31 st May, 2013 of the Court of Additional District Judge ADJ-01, South District, Saket Courts in Suit No.320/2012 filed by the respondents) on admissions of ejectment of the appellant from the premises earlier in its tenancy. The respondents had filed a caveat and had appeared on the last date of hearing.

5. Advance copy of this application aforesaid is stated to have been served on the respondents.

6. None appears.

7. Be that as it may, the senior counsel for the appellant has been heard on the merits of the appeal.

8. It is not in dispute that the appellant was a tenant under the respondents and the rent payable by the appellant was in excess of Rs.3,500/- per month; thus the premises were not within the umbrella of Delhi Rent Control Act, 1958. Though termination of tenancy was disputed but that question is now of not much relevance in view of the judgment of the Supreme Court in Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC 728 followed by the Division Bench of this Court in Shrif Ram Pistons & Rings Vs. C.B. Agarwal MANU/DE/2381/2008.

9. The only point addressed by the senior counsel for the appellant is that the respondents landlords had agreed to sell the tenanted premises to the appellant and the possession of the appellant is thus as an agreement purchaser.

10. It is not as if the learned ADJ has not dealt with the said aspect. Relying on Section 17(1A) of the Registration Act, 1908 and several judgments of this Court, it has been held that since the Agreement of Sale is not registered, the benefit of Section 53A of the Transfer of Property Act, 1882 is not available to the appellant.

11. The senior counsel for the appellant has sought to carve out a distinction. He has contended that the possession of the premises has not been delivered by the respondents to the appellant in pursuance to the Agreement to Sell but the Agreement to Sell records that the appellant has been in possession of the premises as a tenant since the year 2000. He has thus contended that Section 17(1A) of the Registration Act would not apply.

12. I am unable to agree. The possession of the appellant of the premises can either be as a tenant or as an agreement purchaser. If the possession is as a tenant, then the tenancy has been determined and the appellant has to go out of the possession. On the contrary, if the possession is as the agreement purchaser, an agreement purchaser can protect such possession only under Section 53A of the Transfer of Property Act and not otherwise. The benefit of Section 53A is not available to the appellant for the reason of the Agreement to Sell under Section 17(1A) being required to be compulsorily registered and the agreement claimed by the appellant being not registered. This Court in Jiwan Dass Rawal Vs. Narain Das AIR 1981 Delhi 291 has held that an agreement purchaser has no right in the premises, not only till a decree for specific performance of the said agreement is passed but also till the Conveyance Deed in pursuance thereto is executed. Thus, the rights of

the appellant if any, as an agreement purchaser without the benefit of Section 53A, cannot be intertwined with the ejectment of the appellant from the premises as a tenant and the appellant if in the proceedings for specific performance of the Agreement of Sale is found to have a prima facie case, the appellant can obtain the relief therein of restraining the respondents from dealing with the premises.

13. On enquiry, it is informed that a counter-claim for specific performance was made in the suit for ejectment itself but which was rejected on account of that Court not having pecuniary jurisdiction to deal therewith and the senior counsel for the appellant on instructions states that the appellant is in the process of filing a suit for specific performance in the Court of appropriate jurisdiction.

14. There is thus no merit in this appeal which is dismissed.

15. The date fixed of 21st August, 2013 is cancelled.

No costs.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J AUGUST 8, 2013 BS..