M/S Mgr Holding (P) Ltd vs M/S Loil Overseas Foods Ltd & Anr
2015 Latest Caselaw 6737 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment pronounced on: 9th September, 2015

+                      I.A. No.9260/2010 in CS (OS) 2255/2009

       M/S MGR HOLDING (P) LTD                        ..... Plaintiff
                    Through Mr.Sanjeev Singhwani, Sr. Adv.,
                              with Mr. Arvind Bhatt, Adv. with
                              Mr.Asheesh Kr. Mishra, Adv.

                            Versus

       M/S LOIL OVERSEAS FOODS LTD & ANR.                 .... Defendants
                     Through None.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. By way of this order, I propose to decide the above mentioned application filed on behalf of the plaintiff under Order XII Rule 6 read with Section 151 of CPC for judgment on admission.

2. It is undisputed fact that the plaintiff is the owner of commercial flat No.807 measuring 111.67 sq. mtr (1202 sq. ft) in Kailash Building at 26, K.G. Marg, New Delhi-110001(hereinafter referred to as the "suit property").

3. On 15th August, 2003 the plaintiff had inducted the defendant No. 1 as a tenant in the suit property for an office purpose. A registered lease deed for the said purpose was executed on 22nd August, 2003 commencing the tenancy from 15th August, 2003. The

lease was for three years and the same was expired on 14th August, 2006.

4. The lease deed also provided the lock-in-period of three years from 15th August, 2003 to 14th August, 2006. As per clause 16(a) of the lease deed, the said deed could be renewed once only for another period of 3 years only, subject to 20% escalation from the last paid rent by the defendant No.1.

5. By clause 16 (b) of the lease, the tenant/defendant No.1 had to exercise its opinion for renewal by giving an advance notice, three months before the expiry of the lease. It was further provided that in case of renewal, a fresh lease deed on the same terms and conditions shall be executed and registered with the office of sub- registrar of Delhi. As per clause 21 of the lease deed, all such communications are to be made by registered post only.

6. After the expiry of the initial period of lease i.e. 14th August, 2006, the defendant No.1 started remitting the rent with 20% increase from the last paid rent to the plaintiff, however, no request in writing was made by it before three months from the expiry of the lease deed for renewing the lease for another three years to be expired on 14th August, 2009. However, no letter of request for renewal of lease deed before three months expiry of the initial period of lease was sent and received by the plaintiff and no fresh lease for renewing the expired tenancy was executed. The remittance of rent with 26% increase i.e. Rs.57,696/- per month was received till June, 2008. The acceptance of increased rent was without prejudice to the right of the plaintiff and

further the said acceptance of the rent after expiry of the lease created a monthly tenancy in favour of the plaintiff, to be determined by 15 days calendar notice to the defendant No.1 as per Section 106 of the Transfer of the Property Act.

7. On 23rd July, 2008 and 14th August, 2008 the plaintiff vide its legal notices determined the monthly tenancy of the defendant No.1 and directed it to restore the possession of the tenanted premises to the plaintiff along with other charges.

8. The defendant No.1 instead of complying with the legal notices, filed a false and frivolous suit bearing CS(OS) No. 2185/ 2008, before this Court against the plaintiff and prayed for the following reliefs which are reproduced as under ;-

"i. Pass a decree of specific performance directing the defendant to specifically perform its obligations under the lease deed dated 22nd August, 2003 by extension /renewal, execution and registration of the lease deed for a further period of three years with effect from 15th August, 2006 to 14th August, 2009 in favor of the plaintiff.

ii. Pass a decree of declaration, declaring the notice dated 23rd July, 2008 and 14th August, 2008 sent by Mr. Vineet Sinha Advocate, on behalf of the defendant, to the plaintiff to be null, void illegal and inoperative and set-aside the same;

iii. Pass a decree of permanent injunction restraining the defendant, its Directors, servants, officers, employees, representatives, agents, nominees, permitted assigns and any persons claiming through or under it from in any manner whatsoever dispossessing the plaintiff from the Demised premises viz. flat bearing

No. 807, 8th Floor, Kailash Building, 26 Kasturba Gandhi Marg, New Delhi - 110001 till the expiry of the total lease period and the repayment of the security deposit and the other amount expended by the plaintiff towards extensive redesigning of and interior fit outs/alterations in the demised premises; iv. Grant the cost of the instant suit in favor of the plaintiff and against the defendant; and, v. Grant any other or further order or relief that this Court deems fit and proper in the facts and circumstances of the present case in favor of the plaintiff and against the defendant."

9. After receiving the summon of the suit, the plaintiff filed its written statement-cum-counter claim to the suit filed by the defendant No.1 and prayed for possession of the suit premises along with mesne profits and damages to the tune of Rs.31, 92,512/- along with service tax and additional damages of Rs.4,20,700/- per month from December, 2008 till the delivery of the possession from the defendants.

10. The counter claim as filed by the plaintiff was treated as a separate suit and was registered as CS (OS) No.2255/2009 in view of the order dated 24th November, 2009 passed by this Court in suit bearing CS (OS) No.2185/2009 as filed by the defendant No.1.

11. The defendant Nos.1 and 2 in CS (OS) No. 2255/2009 in January, 2010, jointly filed their written statement and contested the suit for possession and damages and prayed the dismissal of the present suit. The plaintiff filed its replication on 12th March, 2010 to

the written statement of the defendants and reiterated its claim as made in the plaint.

12. In the written statement, the defendants admitted material part of the claim of the plaintiff. Thus, the application has been filed by the plaintiff to obtain decree on the basis of these admissions without trial in terms of Order XII Rule 6 CPC which are as under:-

a) The relationship of land lord and tenant is accepted.

b) The execution of the lease deed and its contents and registration is admitted.

c) The expiry of the initial period of tenancy i.e. on 14th August, 2006 is admitted.

d) The request for renewal of the lease for another 3 years w.e.f. 15th August, 2006 to 14th August, 2009 is not made through registered letter is admitted.

e) No further lease after the expiry of original lease on 14th August, 2006, was executed/ signed/registered between the parties.

13. It is only alleged that the letter of renewal dated 4th April, 2006 was delivered by hand. The same does not bear any acknowledgement of the plaintiff even the alleged period of renewal of lease expired during the pendency of' the suit in the year 2009 itself.

14. By virtue of an application for amendment, the defendant No.1 (plaintiff in CS (OS) No. 2185/2008) attempted to introduce a new case set up in the plaint that vide letter dated 14th September, 2006, the plaintiff agreed to renew the lease for further 6 years to be

expired in 2015. On the basis of that letter, which was authored by defendant No.1, the plaintiff is not the party of the same nor signed the same, as it wanted to take an altered plea that though as per the registered lease, the renewed period of lease expired however, the defendants are entitled to continue in the premises because as per letter of the defendant No.1 the lease was to be renewed for further 6 years.

15. The said plea of the defendants is contrary to the plaint and after-thought and is barred by law because no renewal or specific performance or plea of part performance can be made on the basis of self authored letter written by the defendant No.1 which is neither registered nor properly stamped and signed by the plaintiff and it cannot be asked to be specifically enforced against the plaintiff in the suit for possession filed.

16. As per settled law, after the expiry of the original period of lease on 14th August, 2006, the defendant No.1 became a monthly tenant after expiry of the lease and acceptance of the rent thereafter has no effect of automatically renewing the tenancy for another 3 years. As per Section 107 of Transfer of Property Act, the tenancy for more than 11 months has to be by registered documents and in absence of the same the tenancy becomes monthly tenancy, determinable by notice under Section 106 of Transfer of Property Act, which was made and received by the defendant. Even the alleged period of one renewal of lease expired during the pendency of the suit before this Court on 14th August, 2009.

17. By letter dated 14th September, 2006 the defendant tried to take a plea that as per oral negotiation the plaintiff agreed to renew the lease for another 6 years and the same has been recorded in the said letter. But the said letter/document has no meaning in legal value as the plaintiff was not the party to it nor it has the signature of the plaintiff. Further, being unilateral in nature and being no party to it, it cannot bound the plaintiff.

18. The said letter can be relied upon by the defendants in the suit for possession in the absence of registered lease-deed executed between the parties.

19. Further, the alleged letter dated 14th September, 2006 reads:

"On your assurance we have spent a sum of Rs.32,00,000/- towards re-designing, refurbishment and interior fit outs..."

and, therefore seeks : (1) extension by six years; and (2) refund of Rs.32 lakhs. On which date was the alleged assurance or understanding - Surely it could not have been prior to 4th April, 2006, for then it would have found mention in the alleged April letter and not in the alleged September letter.

20. Further, the statement is falsified by defendant No.1 own balance sheet which does not depict any such expenditure of Rs.32 lakhs. Furthermore, this is contrary to Clause 11 of Lease dated 22nd August, 2003.

21. Thus the basic facts such as (i) Landlord Tenant relationship,

(ii) Rent above Rs.3,500/- per month, (iii) No registered Lease Deed after 15th August, 2006; and (iv) Service of Notice to Quit dated 23rd

July, 2008 having been admitted, a decree for ejectment always follow.

22. The suit for specific performance of alleged renewal is pending and the same may continue on the basis of said letter. But the prayer of handing over possession in the present suit cannot stalled in view of pendency of said suit. Even the defendants failed to appear and argue the application filed by the plaintiff under Order 12 Rule 6 CPC for passing the decree on the basis of admission.

23. In the case of DLF Limited vs. Emirates (2010) ILR 4 Delhi 345 passed by this Court wherein similar plea as raised by the defendant in the present suit was decided as no evidence is required to be adduced in the present case. To further elucidate the scope and meaning of Section 91 of the Evidence Act, 1872, learned Senior counsel referred the case of Roop Kumar Vs. Mohan Thedani, (2003) 6 SCC 595 wherein it was held as follows :

"13. Section 91 relates to evidence of terms of contract, grants and other disposition of properties reduced to form of document. This section merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule". It is in really declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it. (See Thaver's Preliminary Law on Evidence p. 397 and p. 398; Phipson Evidence 7th Edn. p. 546; Wigmore's Evidence p. 2406.) It has been best described by Wigmore stating that the rule is no sense a rule of evidence but a rule of

substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. It does not concern a probative mental process - the process of believing one fact on the faith of another. What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all. But this prohibition of providing it is merely the dramatic aspect of the process of applying the rule of substantive law. When a thing is not to be proved at all the rule of prohibition does not become a rule of evidence merely because it comes into pay when the counsel offers to "prove" it or "give evidence" of it; otherwise any rule of law whatever might reduced to a rule of evidence. It would become the legitimate progeny of the law of evidence. For the purpose of specific varieties of jural effects - sale, contract etc. there are specific requirements varying according to the subject."

In para 11 of the said judgment, the facts in the case of DLF (supra) are narrated i.e. the lease deed which was registered and execution of which is also not disputed, it appears that the lease deed was for a term of 54 months only subject to the condition of renewal. As the defendant did not opt for the renewal in the prescribed manner, the parties are not at issue on any question of law or fact. Therefore, trial in the present case is not necessary and the application filed by the plaintiff under Order XII Rule 6 CPC is liable to be allowed and the Court is empowered to pronounce the judgment even in view of the provision of Order XV of CPC.

24. In the case of G.M. Enterprises Pvt. Ltd. Vs. Sem Tian Exports & Hotels Pvt. Ltd., 118 (2005) DLT 500 (paragraph 14) which reads as under :

"14. In the absence of a contractual period of tenancy, the defendant could continue in possession of the premises but only as a month to month tenant which tenancy was terminable by the Lesser on service of a notice. That such a notice was sent to and received by the lessee is not disputed. Even the validity of the said notice is not in dispute before me. If that be so, there is nothing left to be tried, examined or determined in the suit in so far as the same prays for a decree for possession against the defendant. The provisions of Order XII Rule 6 of the CPC are, therefore, squarely applicable, entitling the plaintiff to a judgment in its favor to the extent the said judgment can be sustained on admissions made by the defendant."

25. In the case of Uptron Powertronics Ltd. Vs. Sh. G.L. Rawal, 1999 IV AD (Del) 861 wherein a suit for possession, mesne profits and damages was filed. Before the issues were framed, the plaintiff in that case moved an application under Order XII Rule 6 CPC praying that in view of admissions made by the defendant, no evidence was required to be led and a decree may be passed for possession. The learned Division Bench observed that the lease was for a period of three years and renewal of the same was not registered. Hence, the lease became a lease on month to month basis under the Transfer of Property Act and was terminated in accordance with law under Section 106 of the same Act.

26. The defendant in the present case also did not exercise the option of renewing the lease deed within the stipulated time frame contained in the lease agreement. In the case of Caltex (India) Ltd. Vs. Bhagwan Devi Marodia, AIR 1969 SC 405 (para 3) the Supreme Court observed that renewal of a lease deed is a privilege and if the lessee wishes to benefit from that privilege he must do so strictly within the time period provided for that purpose. A lessee not having exercised the option of renewal within the time limited/stipulated by the clause is not therefore entitled to a renewal.

27. It has also been held in a recent judgment by this Court in National Insurance Co. Ltd. & Anr. Vs. Pahlad Tempo Service & Anr., reported in 158 (2009) DLT 58, that "the object of Order XII Rule 6 is to enable the party to obtain a speedy judgment at least to the extent of the relief to which there are admissions in the documents or in the pleadings. The court cannot unduly narrow down the meaning of this Rule merely because the defendant gives a different interpretation to the documents than that what the law permits. The Court can hear the arguments on the issue of interpretation of documents and give its finding on the implications of such documents in view of the settled law."

28. In the above stated facts and circumstances of the case, the prayer made in the application is allowed. Consequently, the suit of the plaintiff is decreed by passing a decree of possession in favour of the plaintiff and against the defendants in respect of the suit property which is in occupation of the defendants.

29. Enquiry under Order 20 Rule 12 CPC into the mesne profits is ordered. The defendant's Chamber Appeal against the order dated 18th October, 2012 directing answering of the interrogatory is without merit and is liable to be dismissed in view of decree passed by the Court in the application filed by the plaintiff under Order 12 Rule 6 CPC. Ordered accordingly.

CS (OS) No. 2255/2009 List before Joint Registrar on 14th October, 2015.

(MANMOHAN SINGH) JUDGE SETPEMBER 09, 2015