Delhi High Court
Ishpinder Kochhar vs Deluxe Dentelles(P) Ltd & Anr on 24 January, 2014
Author: Jayant Nath
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on :26.09.2013
Decided on : 24.01.2014
+ IA No. 10766/2012 in CS(OS) 3075/2011
ISHPINDER KOCHHAR ..... Plaintiff
Through Mr. Sumit Bansal, Mr.Ateev Mathur,
Ms. Sumi Anand and Ms.Richa
Oberoi, Advocate
versus
DELUXE DENTELLES(P) LTD & ANR ..... Defendants
Through Mr. Neeraj Kishan Kaul, Senior
Advocate with Ms.Rohini Musa,
Advocate
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
IA No. 10766/2012 (u/O 12 R 6 CPC)
1. This is an application under Order 12 Rule 6 CPC filed by the
plaintiff seeking a judgment on admission. The accompanying plaint is
filed by the plaintiff seeking a decree of possession in respect of eastern
part of ground floor of property bearing No.10, Jor Bagh, New Delhi
comprising of eastern shop, an office block, a mezzanine over the office
block, a toilet, courtyard at the back and concerned verandah with a display
window and also western portion of the ground floor of the said property.
Other consequential reliefs are also being sought.
2. As per the Plaint the plaintiff is the absolute owner of the said
property No.10, Block-172, Jor Bagh Market, New Delhi. The said
property is stated to have been purchased from the erstwhile owner
Smt.Neeta Mehra on 14.8.2006. Based on these documents a registered
conveyance deed was executed by NDMC on 12.10.2009 in favour of the
plaintiff.
3. Defendant No.1 had entered into an unregistered agreement of lease
dated 21.11.1999 with the erstwhile owner Smt.Neeta Mehra with respect
to 45% area of the said property which is falling on the eastern part. The
Agreement to lease was to commence with effect from 18.11.1999 and is
also stated to have expired on 28.2.2011. It is stated that defendants paid
the entire rent for the lease period of 11 year 11 months amounting to
` 4,39,224/-. The actual payment was made after deduction of TDS of
`65,884/-. It is further averred that as per the Agreement to lease the rent
was fixed at ` 2,650/- per month and the rent was to be enhanced by 10%
after every three years. Hence, it is stated that with effect from 17.11.2002
the rent went upto ` 2,915/-. Thereafter with effect from 17.11.2005 the
rent is stated to have gone upto ` 3,207/-. It is further stated that from
17.11.2008 the rent has gone upto ` 3,527/-. It is further stated that if the
said amount of ` 4,39,224 is bifurcated for 11 year 11 months then it would
be in accordance with the calculation of rent as stated by the plaintiff after
the necessary enhancement of 10% after every three years. There is a small
difference of ` 13 in these calculations.
4. It is further averred that the said agreement of lease being an
unregistered document, the tenancy of the defendants was on month to
month basis. Further, as the rent of the premises with effect from
17.11.2008 stood enhanced to `3,527/- per month, after 17.11.2008 the
tenancy stood governed by the provisions of the Transfer of Property Act,
1882.
5. It is stated that the plaintiff terminated the month to month tenancy of
the tenant by giving notice dated 3.5.2010 under Section 106 of the
Transfer of Property Act and that the tenancy stands terminated with effect
from midnight of intervening 17/18th June, 2010.
6. It is stated that defendant instead of complying with the terms of the
said legal notice dated 3.5.2010 sent a reply dated 30.6.2010 where the
contentions of the plaintiff have been denied. Hence, the plaintiff has filed
the present Suit for possession, mesne profit and damages.
7. It is further averred that certain portions of the western portion have
been illegally occupied by the defendant. Hence, relief for possession to
the said effect has also been sought.
8. The present application is filed urging that the written statement has
clear admissions to the following effect that:-
(a) the defendant is a tenant of the eastern portion of the premises.
(b) they were served with legal notice for termination of tenancy.
(c) they have admitted that they were inducted by virtue of unregistered
Agreement of lease dated 21.11.1999.
(d) that they have admitted that ` 4,39,224/- was paid after deduction of
TDS as advance rent for a period of 11 year 11 months and that the initial
rent of `2,650/- was to be increased at the rate of 10% every three years.
It is further stated that the defendants have also filed on record the
ledger account which support the fact that payment of ` 4,39,224/- was
made as advanced rent for a period of 11 year and 11 months. The ledger
account also is stated to prove that the initial rent was `2,650/- per month
commencing from November, 1999 and was also increased by 10% every
three years and these rents have at the time of termination of the tenancy
increased to more than ` 3,500/- per month.
9. In view of the above, it is stated that there is clear, unambiguous and
unequivocal admission and keeping in view the provisions of Order 12 Rule
6 CPC and in view of judicial pronouncement and settled position of law
the plaintiff is entitled to a decree of possession on the said admissions.
10. The defendants in their reply have denied the submissions of the
plaintiff. It is stated that the defendants are protected tenants under the
Delhi Rent Control Act, 1958 and hence, the legal notice dated 3.5.2010
sent by the plaintiff does not terminate the tenancy. It is further stated that
the unregistered lease agreement and the clauses therein cannot be looked
into as it is inadmissible in evidence since the same is unregistered. It is
further stated that the provisions of Delhi Rent Control Act will prevail
over the alleged/purported lease agreement signed but not acted upon by the
parties. It is further stated that the sum of ` 4,39,224/- was paid in
lumpsum towards rental for a period of approximately 14 years and not 11
years 11 months as claimed by the plaintiff. It is further stated that the
defendant paid in lieu of security deposit/pagdi various sums including a
sum of ` 19,95,523/- to the previous tenant on behalf of the erstwhile
owner. Reliance is also placed on Section 6A of the Delhi Rent Control
Act to state that there cannot be an automatic increase in the rent payable
by the defendants unless the same is demanded in accordance with
procedure as laid down under Section 8 of the said Act. Admittedly, it is
stated that no notice as envisaged in the said Act was ever issued by
Smt.Neeta Mehra, the erstwhile landlord.
11. Learned counsel appearing for the plaintiff has reiterated the
submissions made by the plaintiff in the plaint and the application. It is
stated that the execution of Agreement to Lease is admitted. The clause in
the said agreement which stipulates the initial rent at ` 2,650/- per month
and the enhancement clause is admitted. The only argument it is stated of
the defendant is that the enhancement clause is contrary to the Delhi Rent
Control Act. It is also stated that the admitted position is that the rent was
enhanced and the enhanced rent has already been paid by the plaintiff.
12. Learned counsel for the plaintiff relies upon various judgments to
submit that the present application should be allowed. He has placed heavy
reliance on the judgment of this Court in the case of CONSEP India Pvt.
Ltd. Vs. CEPCO Industries Pvt. Ltd., ILR (2010) III Delhi 766 to contend
that Sections 6A and 8 of the Delhi Rent Control Act would have no
application where the lease deed itself provides for increase of rent and rent
is agreed between the landlord and tenant by consensus. Reliance is also
placed on the judgment of the Supreme court in the case of Uttam Singh
Dugal & Co. Ltd. Vs. Union Bank of India & Ors., JT 2000 (9) SC 78 to
contend that where there are clear, unambiguous and unconditional
admissions, this Court in exercise of power under Order 12 Rule 6 CPC
should pass appropriate judgment without waiting for determination of
other questions.
13. Learned senior counsel appearing for the defendants has vehemently
argued that the submissions raised by the parties clearly raise triable issues.
He has submitted that the fact as to whether the rent was to increase after
every three years and whether the submissions of the plaintiff that the
advanced rent paid in 1999 was rent for 11 year 11 months, is or is not a
correct calculation as claimed by the plaintiff are all triable issues. It is
further averred that in view of section 6A and 8 of the Delhi Rent Control
Act the claim of the plaintiff for enhanced rent is illegal. It is stressed that
for any increase in rent as provided under the Delhi Rent Control Act notice
has to be given as envisaged under Delhi Rent Control Act which has
admittedly not been done by the plaintiff. It has been vehemently argued that
for increase of rent, in terms of section 8, it is mandatory to give a legal
notice as provided in Section 8 of the Rent Control Act before the rent could
be increased. It is further argued that the rent effectively was never increased
and this is only a bald averment being made by the plaintiff without any
basis whatsoever. It is also vehemently argued by the learned senior counsel
that the duration of the lease keeping in view the payments made in 1999
would show that the duration of the lease is nearly 14 years and not 11 year
11 months as claimed by the plaintiff. Hence, it is averred that in the
absence of clear, unambiguous and unequivocal admissions, the present
application is mischievous as serious disputed questions of law and fact
arise. It further stressed, that even otherwise, the suit itself is barred by law
and liable to be dismissed as it is hit by Delhi Rent Control Act.
14. Learned senior counsel for the defendants has also relied upon
various judgments to contend that in the absence of clear and unambiguous
admission, no order under Order 12 Rule 6 CPC can be passed. Reliance is
placed on the judgment of the Supreme Court in the case of Jeevan Diesels
and Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) and Anr., (2010) 6
SCC 601. Reliance is placed on the judgment of the Division Bench of this
Court in the case of Atma Ram Properties (P) Ltd. Vs. M/s.Escorts Ltd,
2012 VIII AD (Delhi) 395 and Santosh Vaid & Anr. Vs. Uttam Chand,
2012(128) DRJ 392 to stress that in view of Sections 6A, 8 and Section 50
of the Delhi Rent Control Act, it is the Rent Tribunal alone which has the
jurisdiction for determination of the revision of rent.
15. In my view, the controversy herein is a narrow controversy. The
defendants have admitted execution of the lease agreement dated
21.11.1999 (Ex.P1). The admission is however subject to a note put on the
document during admission/denial which reads "admitted subject to
pleadings and clarifications." The receipt of the legal notice dated
03.05.2010 sent by the plaintiff is admitted where a request was made to the
defendants to handover vacant physical possession of the demised premises
giving 15 days notice determining the lease in terms of Section 106 of the
Transfer of Property Act. The defendants have in reply to the said legal
notice on 30.06.2010 admitted that they were inducted as a tenant on
18.11.1999 on a monthly rent of Rs. 2,650/-. It is however stated in the
reply that the rent continues to be Rs. 2,650/- per month. It is admitted that
the defendants have paid Rs.4,39,224/- towards rent. It is further claimed
that the same is the rent for more than 13 years and 9 months at the monthly
rent of Rs. 2650/-.
16. In my view, the facts as projected by the defendants on rate of rent
payable are contrary to admissions. The plaint in para 3 gives calculations
as to how, as per the terms of lease deed dated 21.11.1999, the rent as of
17.11.2008 is Rs. 3,523/- per month. The said para of the Plaint reads as
follows:-
"3.That the said Agreement of Lease was to commence w.e.f.
18.11.1999 and was to expire on 28.02.2011. The defendants have
paid the entire rent of the lease period of 11 years and 11 months
amounting to `4,39,224/-. It may be noted that an amount of
`3,73,340/- was paid after deducting the TDS of ` 65,884/- to the
erstwhile owner at the time of executing lease dated 21.11.1999. It
is submitted that in terms of the said Agreement of Lease, initially
the rent was fixed at `2,650/- per month. It was also agreed that the
rent would be enhanced by 10% after every three years.
Accordingly the rentals were enhanced in terms of the following
schedule:
SN DATE RENT
1. 17.11.2002 : 2,915/-
2. 17.11.2005 : 3,207/-
3. 17.11.2008 : 3,527/-
The following calculation be also noted:
Rent Period Amount
Amount
` 2650/- 36 Months ` 95,400/-
` 2915/- 36 Months ` 1,04,940/-
` 3207/- 36 Months ` 1,15,452/-
` 3,527/- 35 Months ` 1,23,445/-
Total ` 4,39,237/-
Less TDS ` 65,884/-
Net Total ` 3,73,353/-
17. Reference may now be had to the written statement where para 3
reads as follows:-
"3. With reference to paragraph 3, various averments are based on
the alleged lease agreement, are denied. It is submitted that the
alleged lease agreement has neither any legal or factual
consequences. It is submitted that allusion to the alleged lease
agreement is without merit and cannot form the basis of the
Plaintiff's case. The table given stating the alleged rents and
enhancements are without any basis and cannot be countenanced
inasmuch as they purport to depict exaggerated rent amounts
which have no legal or factual basis. In point of fact, payments
made by the answering Defendant for use and occupation as tenant
were the following for the purposes stated hereinbelow:
a. ` 19,95,523/- paid towards the security deposit/Pagdi;
b. ` 2,650/- paid in lump sum as monthly rent for a period of
approximately 14 years totalling ` 4,39,224/-."
18. Clearly there is a bald denial of the calculations put forth by the
plaintiff in the plaint. The only stand is that rent remained stationery at
`2650/- per month. Order 8 Rule 3 CPC provides that it shall not be
sufficient for a defendant in his written statement to deny generally the
grounds alleged by the plaintiff but the defendant must deal specifically with
each allegation of fact. Order 8 Rule 4 CPC provides that where a defendant
denies an allegation of fact in the plaint, he must not do so evasively but
must answer the point of substance. Similarly, Order 8 rule 5 CPC reads as
follows:-
"5.Specific denial.-[(1)] Every allegation of fact in the
plaint, if not denied specifically or by necessary implication,
or stated to be not admitted in the pleading of the defendant,
shall be taken to be admitted except as against a person
under disability:
Provided that the Court may in its discretion require
any fact so admitted to be proved otherwise than by such
admission.
[(2) Where the defendant has not filed a pleading, it shall be
lawful for the Court to pronounce judgment on the basis of
the facts contained in the plaint, except as against a person
under a disability, but the Court may, in its discretion,
require any such fact to be proved."
The denial as contained in para 3 in the written statement is clearly
evasive and does not answer the point in substance of the averment as given
in the corresponding para of the plaint. I came to the conclusion as the
calculations , taking into account the enhancement clause are not
denied.What is stated is that the rent remained stationery at ` 2650/- per
month.
19. The contention of the defendants that the rent continues to be `2,650/-
per month as stipulated in the lease deed dated 21.11.1999 is also contrary to
the admitted documents placed on record by the defendants.
The first such document is the agreement to lease dated 21.11.1999.
This document is Ex.P-1. However, we may for a moment ignore this
document as the defendant has strenuously urged that the said document
cannot be looked into inasmuch as it is an unregistered document. We may
look at the second document. The defendants have placed on record an
abstract of the ledger of defendant No. 1 which is for the period 01.04.1999
to 31.03.2000. Relevant part of the same reads as follows:-
"Date Vr. No. Bank/Cash/Journal Debit
21/11/99 00219 To State Bank of Saurashtra-301551
Paid: Neeta Mehra by chq.no.488017 dt.21/11/99 4,39,224.00
Narr: Advance rent for 11 yrs 11 months @ 2650 pm with
10% hike every 3 yrs
23/01/00 80176 To State Bank of Saurashtra-301551 200.000.00
Paid: NEETA MEHRA by chq no.488099 dt 23/01/00
Narr: token advance rent for shop situated at 10 jar
Bagh mkt ndlh
02/02/00 80202 To State Bank of Saurashtra-301551 166,752.00
Paid: Neeta Mehra by chq.no.499404 dt.02/02/00
Narr: advance rent for 11 yrs 11 month @ 2650 pm with
10% hike every 3 years"
20. In the above entry in the accounts books of defendant No.1, there is a
clear admission that the rent when the lease agreement was executed on
21.11.1999 was ` 2,650/- per month and it was agreed that there would be a
10% hike in rent after every three years. There is no explanation
forthcoming from the defendant about the said entry and a clear
unequivocal statement made therein that the said sum of Rs.4,39,224/-
represents advance rent of 11 year 11 months @ 2650 per month with 10%
hike every three year.
21. The third document on this aspect is the reply dated 30.6.2010 sent
by the counsel for the defendant to the legal notice issued by counsel for the
plaintiff dated 3rd May 2010. Reference may be had to paras 2, 3, 4, 5, 6 and
7 of the said reply which reads as follows;
"S.N.Gupta & Co.
Advocates & Legal Consultants
R-26, Ground Floor, South Extension, Part-II,
New Delhi-110049
SUB: REPLY TO LEGAL NOTICE DATED 3RD MAY,
2010 ON BEHALF OF YOUR CLIENTESS
SMT.ISHPINDER KOCHHAR.
We are instructed by our client M/s Deluxe Dentelles
Pvt. Ltd. having its registered office at 10, Jor Bagh, New
Delhi-110003 to address you as under:-
1. ....
2. The true and correct facts are that my client was inducted
as a tenant in premises No. at 10, Jor Bagh, New Delhi-
110003 on 18th November, 1999 and continues to be so at
a monthly rent of Rs.2,650/- (Rupees Two Thousand Six
Hundred Fifty Only).
3. That at the time my client was inducted into the
premises, it was in a dilapidated condition and in order to
make it habitable it required considerable investment. As
my clients Landlady Mrs.Neeta Mehra was not in a
financial condition to spend any amount on renovation
and no one else was willing to invest substantial amount
on renovation, she taking advantage of the fact that my
client was in a desperate need of a shop and as no other
suitable premises were available in the vicinity imposed
unreasonable and arbitrary conditions. My clients
landlady taking undue advantage of the situation
included unreasonable conditions in the rent agreement
that were neither legal nor binding upon my client. Since
my client was in desperate need of a place, she agreed to
invest substantial amounts on the condition that the lease
would be for a longer period. Not only my client invested
substantial amount on renovation but in addition she was
also made to pay the entire rent in advance, even for the
part period to be covered by the renewals. The terms
were further in contravention of the provisions of the
Delhi Rent Control Act, 1958. You are well aware that
provisions of the said Act will prevail notwithstanding
any agreement to the contrary.
4. Under these unfavourable conditions, my client was
persuaded to invest a substantial amount on such
renovation that was required to make it habitable and in
usable condition. My client was thus forced to sign on an
agreement that was neither legal nor lawful and was
made to part with huge amounts that were to be adjusted
against future rent.
5. In order to make the shop presentable, the amount to be
invested by my client would not be recovered within the
contractual period of tenancy taking into account
reasonable returns on the investment made by my client:
It was thus stipulated that initially the contractual
tenancy would be for a period of eleven years and 11
months and it further specifically stipulated that said
contractual tenancy would be renewed for further a
period of 11 years on the same terms and conditions at
the option on my client.
6. That my client has paid Rs.4,39,224/- (Rupees Four Lakh
Thirty Nine Thousand Two Hundred Twenty Four only)
towards rent which after deduction of TDS comes to
Rs.3,73,340/- (Rupees Three Lakhs Seventy Three
Thousand Three Hundred Forty only) the amount that
was paid to my client‟s landlady, which is for more than
13 years and 9 months at a monthly rent of Rs.2,650/-
(Rupees Two
Thousand Six Hundred Fifty Only) keeping in view the
fact that escalation clause is against the statutes. In that
view of the matter my client continues to be the
contractual tenant beyond July, 2012 and thereafter at its
option for a further period of eleven years.
7. That provision in the agreement that the rent payable by
the lessee to the lessor shall be enhanced/escalated by
10% after every three years, not having been followed in
terms of Section 8 of the Act, is not legal and valid.
Hence my client continues to be the contractual tenant @
2,650/- per month as of now. Unless the procedure
prescribed in Section 8 of the act, which is mandatory in
nature, is followed and rent increased accordingly, there
is no deemed enhancement of rent and therefore, my
client still continues to be contractual tenant.
8. ...."
22. The above reply to the legal notice sent by counsel for the defendant
unequivocally admits that the tenancy began w.e.f. 18.10.1999 and the
agreed rent at that time was Rs.2650 per month. Existence of the escalation
clause, namely, that the rent will be increased by 10% after every three year
is admitted. The only explanation given is that the said rent enhancement
clause is not legal and valid as the procedure as prescribed under Section 8
of the Delhi Rent Control Act which is mandatory has not been followed.
Hence it is argued that the advance rent covers a period of nearly 14 years
and not 11 years and 11 months. The explanation is purely legal. We may
look into the merits of this explanation.
23. Reference may be had to the said statutory provisions. Section 6A and
Section 8 of the Delhi Rent Control Act reads as follows:-
"[6A. Revision of rent.- Notwithstanding anything contained
in this Act, the standard rent, or, where no standard rent is
fixed under the provisions of this Act in respect of any
premises, the rent agreed upon between the landlord and the
tenant, may be increased by ten per cent, every three years.]
8.Notice of increase of rent.- (1) Where a landlord wishes to
increase the rent of any premises, he shall give the tenant
notice of his intention to make the increase and in so far as
such increase is lawful under this Act, it shall be due and
recoverable only in respect of the period of the tenancy after
the expiry of thirty days from the date on which the notice is
given.
(2)Every notice under sub-section (1) shall be in writing
signed by or on behalf of the landlord and given in the manner
provided in section 106 of the Transfer of Property Act, 1982
(4 of 1882)."
24. The present facts are somewhat akin to the judgment of this Court in
the case of CONSEP India Pvt. Ltd. Vs. CEPCO Industries Pvt. Ltd.,
(supra) in which in para 38 and 39 this Court held as follows:-
"38. A look at Section 6A and Section 8 of the Act, in my
opinion, clearly shows that the said Section has no application to
the instant case where the Lease Deed itself provided for the
increase of the rent from time to time. Section 6A and Section 8
reads as under:-
"6A. Revision of rent.- Notwithstanding anything
contained in this Act, the standard rent, or, where no
standard rent is fixed under the provisions of this Act
in respect of any premises, the rent agreed upon
between the landlord and the tenant, may be increased
by ten per cent every three years."
"8. Notice of increase of rent.- (1) Where a landlord
wishes to increase the rent of any premises, he shall
give the tenant notice of his intention to make the
increase and in so far as such increase is lawful under
this Act, it shall be due and recoverable only in respect
of the period of the tenancy after the expiry of thirty
days from the date on which the notice is given. (2)
Every notice under sub-section (1) shall be in writing
signed by or on behalf of the landlord and given in the
manner provided in section 106 of the Transfer of
Property Act, 1982 (4 of 1882)."
39. Clearly, Section 6A envisages and permits revision of rent by
10% every three years. Such increase, the Section envisages,
shall be made upon the standard rent or where no standard rent is
fixed under the provisions of the Act in respect of any premises,
the rent agreed upon between the landlord and the tenant. As
such, it is only the rent agreed upon between the landlord and the
tenant which is subject to revision by 10% every three years.
This provision clearly can have no application in a case where in
Lease Deed itself provision is made for the increase of rent and
the rent is agreed upon between the landlord and the tenant by
consensus."
25. Hence, in view of section 6A of the said Act, it follows that the
standard rent or where no standard rent is fixed the agreed rent between the
landlord and tenant may be increased by 10% every three years. The
mechanism to increase the rent is as stated in section 8 of the Act namely by
giving a notice to the tenant of the intention to increase the rent. However,
the statutory provisions do not contain any prohibition prohibiting an
agreement between landlord and tenant whereby parties have agreed to
increase the rent after periodic intervals on their own. The plaintiff here has
not approached this Court seeking any direction for enhancement of rent in
exercise of power under Sections 6A and 8 of the Delhi Rent Control Act.
His case is that parties have not only agreed to increase rent @ 10% after
every three years, but the increased rent also stands paid. In view of the
judgment of this Court in the case of CONSEP India Pvt. Ltd. Vs. CEPCO
Industries Pvt. Ltd., (supra), enhancement of rent by consent done by
defendant No.1, is not barred under Section 6A and Section 8 of the Delhi
Rent Control Act.
26. Reliance of the learned senior counsel for the defendants on the
judgment of this High Court in the case of Atma Ram Properties (P) Ltd.
Vs. M/s.Escorts Ltd,(supra) is misplaced. Paras 38 to 40 of the said
judgment reads as follows:-
"38. Section 6A provides for revision of rent wherein the rent
may be increased by ten percent (the interpretation is discussed
under the separate head). Section 14 (1) proviso (a) provides
for the ground of eviction on non payment of the rent and the
same can be done by preferring the application for eviction
before the Rent Controller. The mechanism for tendering the
rent before the Rent Controller is also provided under Section
26 and 27 of the Act. Further, the powers of the Rent
Controller are akin to the civil court though for limited
purposes and finality clause enacted in Section 43 gives
finality to the orders of the Controller and specifically bars the
calling into question in any original suit, application or
execution proceeding except in cases provided by the Act. To
dispel any further doubt, Section 50 of the Act, provides for
the express bar of jurisdiction of civil court in relation to
standard rent in respect of any premises to which this Act
applied or to eviction of any tenant there from or to any other
matter which the controller is empowered by or under the Act
to decide.
39. All these provisions are indicative of the mechanism and
working of the Rent Controller and appeal tribunal formed
under the Act. The said provisions make it explicitly clear that
the matters relating to standard rent or for that matter, increase
in rent are the matters, which fall within the exclusive domain
of the Rent Controller as the same is clear by way of reading of
Section 6A read with Section 9 of the Act.
40. Therefore, the matters relating to increase in rent or the
standard rent which are falling within the exclusive domain of
the Rent Controller to decide, cannot fall within the domain of
the civil court to decide in view of the express bar of
jurisdiction envisaged under Section 50 of the Act. Thus, the
suits pertaining to matters of standard rent or increase in
standard rent as contained in Section 6, 7 and 9 of the Act
would be straightforwardly barred by way of operation of
Section 50 of the Act read with Section 9 of Code of Civil
Procedure Code."
27. Similarly the Division Bench of this High Court in the case of
Santosh Vaid & Anr. Vs. Uttam Chand(supra) in para 29 held as follows:-
"29. We accordingly answer the question framed by us herein
above as under:-
A landlord of a premises governed by the Delhi Rent Control Act,
1958 is entitled to have increase(s) in rent only in accordance with
Section 6A and 8 thereof and not otherwise; such a landlord
cannot approach the Civil Court contending that the rent stands
increased or should be increased in accordance with the inflation
or cost price index; the jurisdiction of the Civil Court in this regard
is barred by Section 50 of the Delhi Rent Act."
Clearly the facts of above two cases are not the same as the facts of this
case. Both the judgments envisage a situation where the landlord is seeking
enhancement of rent from the tenant in exercise of powers under Section 6A
of the Delhi rent control Act. In the present case, the plaintiff does not seek
enhancement of rent under Section 6A of the Delhi Rent control Act. The
plaintiff submits that the rent had to be increased in terms of the agreement
to lease agreed upon between the parties and further that the provisions of
the said enhancement of rent have also duly been complied with by the
parties.
28. Reference may also be had to the judgment of the Allahabad High
Court in the case of Lallan Parsad v. Sharda Parsad AIR 1953 All 316 where
in para 4, the High Court of Allahabad held as follows:
"4. I do not accept the contention that it was not open to the
parties by mutual agreement to enhance the rent. Section 5 (2),
U. P. (Temporary) Control of Rent and Eviction Act does not
exhaustively lay down the ways in which the (agreed) rent can
be enhanced. It does not bar other lawful ways to enhance the
rent. It uses the word „may‟ suggesting that it is at the option of
the landlord to use other means of enhancing the rent. The
enhancement that is contemplated by Section 5 (2) is
enhancement by unilateral action or which can be imposed
upon fine tenant against his will. But it is always open to the
parties by agreement between themselves to enhance the rent;
no restriction on this right has been imposed by the Act. As a
matter of fact if the parties agree to pay and receive a higher
rent, that becomes the agreed rent and at once becomes liable to
be paid by the tenant under Section 5 (l). Section 5(2) deals
with enhancement of the agreed rent, i. e., enhancement in the
absence of an agreement. No question of notice can possibly
arise when the tenant not only knows everything about the
enhancement, but has also accepted it as binding. Thus
enhancement by mutual agreement has greater effect than
enhancement imposed upon the tenant under Section 5 (2) of
the Act. I hold that the enhancement to Rs. 20 P. M. did not
become invalid because no notice as contemplated by Section 5
(2) was given."
The statutory provision mentioned above namely UP (Temp.) Control
of Rent and Eviction Act, 1947, though differently worded, deals with the
issue relating to enhancement of rent for the landlord.
29. Going back to the 3rd document that was being discussed earlier,
namely, the reply of the counsel for the defendant dated 30.06.2010 to the
legal notice sent by the counsel for plaintiff, it is apparent that the
explanation as to why the rent-increase clause is not applicable, is
completely without any basis and contrary to the provisions of Section 6A
and 8 of the Delhi Rent Control Act. In view of the legal explanation given
in the said document being without any merits, it is obvious that the said
document also contains a clear admission that there existed an incremental
clause for increase of rent after every three years at the rate of 10% per
month as per agreed terms of a lease.
30. What follows? The lease agreement provides increase of rent after
every three years. This is admitted in the statement of account of the
defendant. This is admitted in the reply by counsel for the defendant in its
reply dated 30.06.2010. The payment of `4,39,224/- by the defendants to
the predecessor of the plaintiff read with para 3 of the plaint shows that the
said amount contemplates payment of rent for the said period including
increased rent after every three years. There is no proper denial of this in the
written statement. Hence there is an admission that the sum of `4,39,224
represents rent for the period of 11 years 11 months with appropriate
increase of 10% after every three years. In view of the above facts it would
follow that the as on 17.11.2008 monthly rent is of ` 3,527/- and the
property has ceased to be covered by the provisions of Delhi Rent Control
Act, 1958 inasmuch as Section 3 of the said Act provides that where
monthly rent exceeds ` 3,500/- per month, the said Act would have no
application.
31. I will now deal with some other submission of the defendant. One of
the submissions vehemently argued by the learned senior counsel for the
defendants is that the lease agreement between the parties dated
21.11.1999 is an unregistered document and hence the same cannot be
looked into for the purpose of holding that the defendants were liable to pay
enhanced rent.
32. In my view, as already explained above, the said contention is
misconceived. The plaintiff is not relying only on the said document to show
the incremental clause for the rent. The reliance is on the books of accounts
of the defendant which clearly stipulate that the defendants have agreed to
increased rent @ 10% per month after every three years and also the fact
that payment tendered by the defendants at the time when the lease was
entered into in 1999 represents a lease of 11 years and 11 months with
appropriate enhancement of rent after every three years. Reliance is also
placed by the plaintiff on the reply dated 30.6.2010 by the counsel for the
defendant to the legal notice sent by counsel for the plaintiff dated 3.5.2010.
In the said reply dated 30.6.2010 there is no denial to the clause which in the
agreement to lease provides for enhancement of rent @ 10% per month after
every three years. The only contention made in the said reply is that the said
clause is illegal and contrary to the Delhi Rent Control Act. Hence this
contention of the defendants is without merits.
33. The next contention of the defendants that it has paid large amount on
behalf of the erstwhile owner of the said property is a contention without
any basis and does not affect the merit of the case. The defendants
vehemently argued that it has paid on behalf of the erstwhile landlord a sum
Rs. 19 lacs to the previous tenant as security/pagdi. These facts do not in any
way effect the factual and legal position namely that the defendants are the
tenant of the plaintiff since 1999 at an agreed rent of Rs. 2,650/- per month
for the lease period of 11 years and 11 months subject to the incremental
clause and consequently that the property in 2008 has ceased to be a
protected property under the Delhi Rent Control Act as the rent has crossed
Rs.3,500/- per month.
34. For the purpose of the application of Order XII Rule 6 CPC, I may
refer to the judgment of the Division Bench of this Court in the case of Vijay
Mayne vs. Satya Bhushan Kumar, 142 (2007) DLT 483 where in paragraph
12 this Court held as under:-
"12. It is not necessary to burden this judgment by
extracting from the aforesaid authoritative pronouncement
as the learned Single Judge has accomplished this exercise
with prudence and dexterity. Purpose would be served by
summarizing the legal position which is that the purpose
and objective in enacting the provision like Order 12 Rule
6 CPC is to enable the Court to pronounce the judgment
on admission when the admissions are sufficient to entitle
the plaintiff to get the decree, inasmuch as such a
provision is enacted to render speedy judgments and save
the parties from going through the rigmarole of a
protracted trial. The admissions can be in the pleadings or
otherwise, namely, in documents, correspondence etc.
These can be oral or in writing. The admissions can even
be constructive admissions and need not be specific or
expressive which can be inferred from the vague and
evasive denial in the written statement while answering
specific pleas raised by the plaintiff. The admissions can
even be inferred from the facts and circumstances of the
case. No doubt, for this purpose, the Court has to
scrutinize the pleadings in their detail and has to come to
the conclusion that the admissions are unequivocal,
unqualified and unambiguous. In the process, the Court
is also required to ignore vague, evasive and unspecific
denials as well as inconsistent pleas taken in the written
statement and replies. Even a contrary stand taken while
arguing the matter would be required to be ignored."
35. Reference may also be had to the judgment of the Supreme Court in
the case of Usha Rani Jain vs. Nirulas Corner House Pvt. Ltd., 73(1998)
DLT 124 para 18 of which reads as follows:-
"18. The object of Order XII Rule 6 CPC is to enable a party to
obtain a speedy judgment, at least, to the extent of the
admissions of the defendant to which relief the plaintiff is
entitled to. The rule permits the passing of the judgment at any
stage without waiting for determination of other questions. It is
equally settled that before a Court can act under Order 12 Rule
6, the admission must be clear, unambiguous, unconditional
and unequivocal. Admissions in pleadings are either actual or
constructive. Actual admissions consist of facts expressly
admitted either in pleadings or in answer to interrogatories. In
a suit for ejectment, the factors which deserves to be taken into
consideration in order to enable the Court to pass a decree of
possession favour of the plaintiff primarily are:
1) Existence of relationship of Lesser and lessee or entry in
possession of the suit property by defendant as tenant;
2) Determination of such relation in any of the contingencies
as envisaged in Section 111 of the Transfer of Property Act."
36. In my view the clear admissions are there about the relationship of
landlord and tenant. The facts and documents as stated above demonstrate
that the agreed rental of the premises as payable by the defendants as on
17.11.2008 is above Rs. 3,500/- per month. There is termination of the lease
deed vide legal notice dated 03.05.2010. The defence raised by the
defendants pertaining to the decree of eviction is moonshine and absolutely
devoid of merits. The plaintiff would be entitled to an appropriate decree to
be passed on the admissions in view of Order 12 Rule 6 CPC. The
application is accordingly is allowed.
CS (OS) 3075/2011
In view of the above application being allowed, the suit is decreed in
favour of the plaintiff and against the defendant for possession of the suit
property in terms of prayer (a) of the Plaint. Decree sheet be drawn up
accordingly.
List before the Joint Registrar on 18.02.2014 for further proceedings
pertaining to balance reliefs.
JAYANT NATH
JUDGE
JANUARY 24, 2014
n/rb
