Punjab & Sind Bank vs Shri Balbir Singh Kohli & Ors
2014 Latest Caselaw 3860 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      RFA 2/2014
                                                 Decided on 22nd August, 2014
       PUNJAB & SIND BANK                            ..... Appellant
                          Through:      Mr. Parminder Singh, Adv.
                          versus
       SHRI BALBIR SINGH KOHLI & ORS                        ..... Respondents

                          Through:      Mr. D.D. Singh and Mr. Navdeep
                                        Singh, Advs.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

1. Briefly stated, facts of the case, for the purpose of disposal of present

appeal, are that property bearing no. B-9, Gujranwala Town, Part-I, Delhi was

purchased by the respondents from Shri Raj Tandon in the year 1988.

Appellant was tenant in respect of the ground floor and basement of said

property right from 1975 onwards (for short, hereinafter referred to as „suit

property‟). A registered lease deed was executed between Shri Raj Tandon

and appellant on 27th August, 1991 for a period of 5 years, that is, with effect

from 1st March, 1990 to 28th February, 1995. Since the suit property was used

by the appellant for non confirming use, therefore, proceedings under Section

29(2) of the Delhi Development Act, 1957 were initiated against the erstwhile

owner. As per the appellant, penalty imposed by the Delhi Development

Authority (DDA) was paid by the appellant initially but subsequently, appellant

disputed its liability to pay the same. However, issue regarding payment of

penalty is not relevant for the purpose of present appeal since legality of decree

of possession passed under Order 12 Rule 6 CPC is the subject matter involved

in this appeal.

2. Respondents further alleged that a registered lease agreement was

executed between the respondents and appellant on 25th May, 2006 for a period

of 5 years commencing from 1st March, 2005 on the payment of monthly rent,

as spelled out in the lease deed. Appellant agreed to pay rent on 5th day of each

succeeding calendar month. After expiry of 5 years appellant continued to

occupy the suit property on one or the other pretext, despite the fact that it had

failed to comply with the terms as contained in the lease deed dated 25th May,

2006. Vide notice dated 22nd February, 2010 appellant was informed that since

lease was expiring on 28th February, 2010 appellant shall handover peaceful

and vacant possession of the suit property to respondent on or before 31st

March, 2010. On receipt of this notice appellant sent a reply through its

counsel alleging therein that lease stood automatically renewed. Respondent

alleged that after expiry of the lease in the year 2010 appellant became tenant

on month to month basis. Rent of the premises was increased after expiry of

lease deed on 28th February, 2010 but no registered lease deed was executed

between the parties. As on the date of filing of suit appellant was paying rent

of `81,000/- to the respondents. Appellant did not pay non confirming charges

though it assured that it shall be paid. Appellant also assured to vacate the suit

premises but to no effect. Appellant continued to hold the possession of the

suit property. Accordingly, vide notice dated 21 st August, 2012 respondents

again called upon the appellant to vacate the suit premises. Since the suit

property was not vacated despite service of notice, hence the suit.

3. In the written statement, appellant did not deny that it was inducted in

the suit property as a „tenant‟ in the year 1975 by the erstwhile owner,

inasmuch as, registered lease deed dated 27th August, 1991 was executed. It

was not disputed that penalty of `95,512/-, as imposed by the DDA on the

previous landlord but the same was paid by the appellant. It was also not

disputed that respondents had purchased the suit property from the erstwhile

owner. Execution of the registered lease deed between the respondents and

appellant on 25th May, 2006 was not disputed. Rent as stipulated in the lease

deed was also not disputed. However, it was stated that rent was enhanced to

`67,500/-. According to appellant rent was enhanced with the mutual consent

of parties. Receipt of notice dated 25th February, 2010 was also not disputed.

However, it was alleged that in terms of the lease deed dated 25th May, 2006,

lease was automatically renewed for two terms of 5 years each on expiry of

initial 5 years period. Thus, tenancy could not have been terminated by the

respondents vide legal notice dated 1st October, 2012. It was stated in para 10

of the written statement that respondents had not issued any further notice to

the appellant to vacate the suit premises.

4. Trial court has held that landlord-tenant relationship was admitted by the

appellant. Rent of the premises being more than `3,500/- was an admitted fact,

thus, suit property was not covered under the Delhi Rent Control Act, 1958. As

regards automatic renewal of lease deed is concerned, trial court has held that

since no fresh registered lease deed was executed for future period, tenancy

was on month to month basis on expiry of five years, accordingly, same could

have been terminated by the respondent by serving the notice dated 25th

February, 2010 on the appellant. In any case, it was terminated vide notice

dated 1st October, 2012 which was sent through registered post at the correct

address, thus, a presumption under Section 27 of the General Clauses Act, 1897

is drawn that the same had been duly received by the addressee. Finally, the

tenancy stood terminated vide notice dated 1st October, 2012. By placing

reliance on Punjab National Bank vs. Virendra Prakash & Another 188

(2012) DLT 48 and Sky Land International Pvt. Ltd. vs. Kavita P. Lalwani

191 (2012) DLT 594, trial court has concluded that respondents were entitled

to a decree of possession under Order 12 Rule 6 CPC since above-referred

three ingredients were duly established from the admission culled out from the

pleadings and documents of the parties.

5. Learned counsel for the appellant has vehemently contended that before

passing a judgment on admission under Order 12 Rule 6 CPC, Court has to

satisfy itself that defendant has made unambiguous and clear admission of fact

either in the pleadings or the documents or otherwise. In case there are no clear

and unambiguous admissions made by the defendant no judgment on admission

can be passed by the Court. It is further contended that appellant had taken a

specific plea in the written statement that lease was for a period of 15 years in

view of the Clause 5 of the lease deed, which envisaged that there would be

two automatic extensions of 5 years each on expiry of initial term of 5 years

that too at the discretion of appellant. On receipt of notice dated 25 th February,

2010 appellant had sent a reply to the respondents and also enhanced rent

which was accepted by the respondents, thus, notice stood waived. Subsequent

thereto respondents continued to accept the enhanced rent, thus, a new tenancy

came into existence. Notice dated 1st October, 2012 was never received by the

appellant. Service of the subsequent notice was disputed, thus, it cannot be

said that there was a clear admission about termination of tenancy.

Accordingly, trial court could not have passed a decree on admission in

absence of unequivocal, clear and unambiguous admission. Reliance has been

placed on Sushil Bhardwaj vs. Ved Parkash Shastri & Ors. 163 (2009) DLT

287, Daljit Singh Anand vs. Harjinder Singh Anand 149 (2008) DLT 303,

Puran Chand Packaging Industrial Pvt. Ltd. vs. Sona Devi & Anr. 154

(2008) DLT 111 (DB) and Himani Alloys Ltd. vs. Tata Steel Ltd. 2011 (7)

SCALE 566.

6. As regards legal preposition as propounded by the aforesaid judgments,

there cannot be any quarrel. It is well settled that a decree on admission under

Order 12 Rule 6 CPC can be passed only in cases where clear, unambiguous

and unequivocal admission has been made by the one party of the case of the

other party. However, as to whether or not there is a clear and unambiguous

admission by one party of the case of the other party is a question of fact which

depends on the facts of each case. No straight jacket formula can be adopted.

Wherever, there is a clear admission of facts in the face of which it is

impossible for the party making such admission to succeed, a judgment on

admission can be passed.

7. In Charanjit Lal Mehra and Ors. vs. Smt. Kamal Saroj Mahajan

and Anr. AIR 2005 SC 2765, Apex Court held that Order 12 Rule 6 CPC is

enacted for the purpose of and in order to expedite the trials and if there is any

admission on behalf of the defendants or an admission can be interred from the

facts and circumstances of the case without any dispute, then, in such a case, in

order to expedite and dispose of the matter such admission can be acted upon.

It is trite law that in a suit for possession plaintiff has to prove existence of

landlord-tenant relationship between the parties; rent of premises being more

than `3,500/- per month so as to not to attract the provisions of Delhi Rent

Control Act and also termination of tenancy by efflux of time or by a valid

notice sent by the plaintiff to the defendant under Section 106 of the Transfer

of Property Act. In this regard, judgments titled Atma Ram Properties Pvt.

Ltd. vs. Pal Properties Pvt. Ltd. & Ors. 2002 (62) DRJ 623 and Sky Land

(Supra) can be referred to with advantage. In case above three ingredients are

satisfied from the pleadings or documents, a judgment on admission under

Order 12 Rule 6 CPC can be passed.

8. Now, coming back to the facts of the present case, landlord-tenant

relationship is not in dispute. Rent being more than `3,500/- is also an

admitted fact. As regards plea of appellant that tenancy was for a period of 15

years since Clause 5 of the lease deed dated 25th May, 2006 provided extension

of two consecutive terms of 5 years each after expiry of initial period is

concerned, I do not find much force therein. A perusal of Clause 5 of the lease

deed dated 25th May, 2006 makes it clear that parties had agreed that separate

deeds from time to time were to be executed in such an eventuality. Clause 5

reads as under :-

5. The lessors agrees that on the expiry of five years from the date of commencement of this lease the lessee will have the right to continue his occupation as a lessee of the building herein demised for further period of five years on the same terms and conditions. The lessors further agrees that on the expiry of the said options period of five years the lessee will have another option to continue their occupation of the said demise building for another period of five years on the same terms and conditions automatically unless the lessee gives one month notice of their intention to surrender the lease. But it will be done by separate deeds from time to time.

(emphasis laid)

9. A perusal of last line of the aforesaid Clause makes it clear that parties

had agreed for extension of two consecutive periods of 5 years each on expiry

of initial period of 5 years only by executing separate deeds from time to time.

Admittedly, in this case, no such lease deed was executed after expiry of initial

period, inasmuch as, respondents served a legal notice dated 25th February,

2010 thereby calling upon the appellant to vacate the suit premises. The status

of appellant thereafter became that of a tenant on month to month basis. Mere

acceptance of rent simplicitor would not amount to extension of lease for

another period of five years in absence of registered lease deed. In the facts of

this case, even if it is presumed that by accepting the enhanced rent respondents

had waived the said notice even then status of appellant remained that of a

tenant on month to month basis. Respondents by serving a notice dated 1 st

October, 2012 through registered A.D. post again terminated the tenancy and

on such termination appellant was left with no option but to vacate the suit

property. In the written statement, no categorical assertion has been made that

notice dated 1st October, 2012 was not received by the appellant. Appellant has

simply stated that no notice was served. Even otherwise, service can be

inferred from the documents. Postal receipt was placed on record. Notice was

sent through registered post and envelope was not received back by the

respondents as undelivered. It is not the case of appellant that address

mentioned in the notice is incorrect. If that is so, then a presumption under

Section 27 of the General Clauses Act arises that the notice was received by the

addressee. Indubitably, this presumption is rebuttal. However, appellant did

not place on record of the trial court any certificate issued by the postal

authority that registered cover was not delivered to appellant. That apart,

service of notice is not of much importance since service of summons in suit

along with plaint itself amounts to notice under Section 106 of the Transfer of

Property Act. Please refer to Nopany Investments (P) Ltd. vs. Santosh Singh

(HUF) 146 (2008) DLT 217 (SC) and Jeevan Diesels and Electricals Ltd.

vs. Jasbir Singh Chadha (HUF) and Anr. 182 (2011) DLT 402. In Nopany

(Supra), Apex Court held that service of notice under Section 106 of the Act

was not necessary as filing of eviction suit under the General Law itself

amounted to a notice to a tenant. In Jeevan Diesel (Supra), it has been held

thus :-

"(iv) Another reason for rejecting the argument that the tenancy would not be terminated by the legal notice Ex.PW1/3 is that the Respondents/Plaintiffs admittedly filed a copy of this notice along with the suit way back in the year 2007. Once the summons in the suit along with documents were served upon the Appellant/tenant, the Appellant/tenant would obviously have received such notice. Even if we take this date when the Appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of 15 days has expired thereafter and keeping the legislative intendment of amended Section 106 in view, the Appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises. I am in view of this position consequently entitled to take notice of subsequent events under Order 7 Rule 7 CPC, and taking notice of the subsequent events of the expiry of 15 days after receipt of a copy of the notice along with documents in the suit, I hold that the tenancy has been validly terminated, and as on date, the Appellant/tenant has no right to stay in the premises and consequently the decree for possession was rightly passed by the trial Court."

10. Special Leave Petition filed against the Jeevan Diesel (Supra) has alredy

been dismissed by the Apex Court. In this case, admissions can safely be

culled out with regard to the fact that there existed landlord-tenant relationship

between the respondents and appellant; rent of the suit premises being more

than `3,500/-, provisions of Delhi Rent Control Act were not attracted and that

tenancy was duly terminated. In a suit for possession by a landlord against

tenant only aforesaid three ingredients are required to be established before

passing a decree on admission. Thus, in my view, trial court has rightly passed

a decree of possession under Order 12 Rule 6 CPC.

11. For the foregoing reasons, appeal is dismissed.

A.K. PATHAK, J.

AUGUST 22, 2014 ga