Delhi High Court
M/S Saru Smelting Private Limited vs Sharda Gupta on 22 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.212/2017 & RSA No. 213/2017
% 22nd August, 2017
+ RSA No. 212/2017
M/s SARU SMELTING PRIVATE LIMITED ..... Appellant
Through: Mr. Sultan Singh, Sr. Adv. with
Thakur Sumit, Adv.
versus
SHARDA GUPTA ..... Respondent
Through: Mr. T.C.Yogi, Adv.
+ RSA No. 213/2017
M/s SARU SMELTING PRIVATE LIMITED ..... Appellant
Through: Mr. Sultan Singh, Sr. Adv.
with Thakur Sumit, Adv.
versus
SHRADA GUPTA ..... Respondent
Through: Mr. T.C.Yogi, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. (i) By this judgment the two Regular Second Appeals are
being disposed of. Both the appeals have been filed by the tenant.
Two appeals pertain to disposal of two suits. One suit is the suit filed
by the appellant/tenant for specific performance seeking grant of a
registered lease deed every three years for the suit premises pursuant
to Clause 2 at internal page 5 of the last registered lease deed dated
1.4.1987. The second suit is the suit filed by the respondent/landlady
seeking possession of the suit/tenanted premises by terminating
tenancy as the appellant/tenant on account of rent being more than
Rs.3500/-, (i.e Rs.3660.25/-) did not have protection of the Delhi Rent
Control Act, 1958.
(ii) By the impugned judgments the suit for specific performance
filed by the appellant/tenant stands dismissed and the suit of the
respondent/landlady has been decreed on the aspect of possession.
(iii) As regards the issue of the right of mesne profits to be paid by
the appellant to the respondent, trial is going on before the court
below.
(iv) The judgment of the trial court is a common judgment disposing
of the two suits and is dated 20.1.2014. The common judgment of the
first appellate court dismissing the two appeals filed by the present
appellant is dated 6.5.2017.
2. The suit property is a commercial flat bearing no. 207,
second floor, Rohit House, Tolstoy Marg, New Delhi-110001. As per
the lease deed appellant/tenant had an area of approximately 540 sq.
ft. with one store of 45 sq. ft.
3. That there is a relationship of landlady and tenant
between the parties is not disputed and nor is disputed the fact that rate
of rent became Rs.3660.25 w.e.f 1.4.1999. Rent was regularly
increased by 10% every three years after expiry of the lease deed
dated 1.4.1987.
4. Once there is a relationship of landlord and tenant
between the parties and the rate of rent admittedly is above Rs.3500/-,
then suit for possession filed by the respondent/landlady with respect
to the suit premises had necessarily to be decreed because the legal
notice dated 9.7.1999 terminating tenancy has been proved before the
trial court as Ex. PW1/4 and reply of the appellant/tenant to the legal
notice is Ex.DW1/PX2. In any case, the issue of service of notice
terminating tenancy under Section 106 of the Transfer of Property
Act, 1882 is no longer required inasmuch as service of summons in
the suit is treated as notice under Section 106 of the Transfer of
Property Act in terms of the judgment of this Court in the case of M/s.
Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha
(HUF) and Anr. (2011) 183 DLT 712.
5. Therefore, let us examine the only relevant issue which is
to be decided as to whether the appellant was entitled to grant of lease
deed every three years in terms of Clause 2 at internal page 5 of the
registered lease deed dated 1.4.1987. It is also argued on behalf of the
appellant that the relevant Clause 2 at internal page 5 in fact amounts
to a perpetual lease deed. This relevant Clause 2 reads as under:-
"2. That the Lease is for the period of 3 Yrs. commencing from 1.4.87
and after the expiry of the period of this lease deed on 31.3.90. Fresh lease
deed will be executed. The rent will be increased by 10% by the Lessee and
after every 3 years of the last paid rent and the Lease shall stand extended
automatically for further period of 3 Yrs. on the same terms & conditions
and the said lease shall accordingly stand extended thereafter."
6. The issues which have been framed by the trial court and
the evidence which has been led by the parties are stated in para 4 and
6 of the judgment of the trial court and these paras read as under:-
"4. On completion of pleadings of parties, following common issues
for both these suits were framed on 22/01/2004 in Civil Suit No.97/10/1998:
(i) Whether the plaintiff is entitled for the decree of possession as
prayed? OPP
(ii) Whether the plaintiff is entitled for the recovery of mesne profits if
so, at what rate and for what period? OPP
(iii) Whether the defendant is entitled for the decree of specific
performance in view of the lease agreement dated 01/04/1987
(Extn: Clause 2)? OPD
(iv) Whether the defendant is lawful tenant or not? OPD
(v) Relief.
xxxxx xxxxx xxxxx
6. Evidence brought on record: Plaintiff, Smt. Sharda Gupta has led
evidence as PW1 vide affidavit dated 22/03/2004. In her affidavit, Plaintiff
has reiterated the averments of plaint.
Plaintiff has relied upon Ex.PW1/2 which is the site plan, the lease deed
dated 01/04/1987 is Ex.PW1/3, the legal notice dated 09/07/1999 is
Ex.PW1/4 and the documents showing the dispatch of said notice to
defendant is Ex.PW1/5.
Plaintiff has been cross examined by Ld. counsel for the defendant.
The documents put to plaintiff during cross examination are Ex.PW1/X1 i.e
lease deed dated 28/04/1972, Ex.PW1/X2 i.e. lease deed dated 04/01/1978,
rent receipts executed by plaintiff are Ex.PW1/X3 to Ex.PW1/X7 and had
admitted signatures on Ex.PW1/X8. Ex. PW1/X9 and Ex.PW1/X12.
Defendant has led the evidence through Sh. V.K.Kapoor, Branch Manager
of defendant company, vide affidavit dated 19/07/2004 as DW1, Ex.DW1/1
is the resolution of defendant company dated 28/08/2000 authorizing DW1
to represent defendant in present suit."
7. Let us now discuss the relevant Clause as to whether the
said Clause is a perpetual lease deed or the suit for specific
performance filed by the appellant/tenant should be decreed by
allowing a registered lease deed every three years.
8. In my opinion, the argument of the appellant/tenant that
Clause 2 is a perpetual lease deed is not only a misconceived argument
but is in fact a dishonest argument. If the lease was to be a perpetual
lease then there was no need of the Clause requiring that a fresh lease
deed was to be executed every three years. The fact that a fresh lease
deed has to be executed every three years, the same demolishes the
case of appellant/tenant of the lease deed dated 1.4.1987 being a
perpetual lease deed because of Clause 2 thereof. This argument of
the appellant/tenant is therefore rejected.
9. The issue then to be examined is that whether the
appellant/tenant is entitled to specific performance. Specific
performance in a case like this would be to grant a registered lease
deed with respect to the tenancy premises once for every three years.
Appellant/tenant pleaded that the respondent/landlady had making
written offers dated 2.3.1990, 15.2.1993, 25.2.1996 and 15.3.1999 to
extend the lease on payment of 10% increase, however, the admitted
fact is that no registered lease deed has been ever executed after the
expiry of the lease period of three years in terms of the lease deed
dated 1.4.1987. Once the appellant/tenant has itself not sought
enforcement of the Clause within the limitation period, and which
limitation period would be three years from 1.4.1990 for seeking
specific performance by grant of registered lease deed every three
years, then by filing of the subject suit in the year 2001
appellant/tenant is barred by limitation from seeking the relief of
specific performance.
10. I would like to note that I am giving additional reasoning
to the reasoning given by the courts below, and which this Court is
empowered to do under Order XLI Rule 24 CPC read with the ratio of
the recent judgment of the court in the case of Lisamma Antony and
Another Vs. Karthiyayani and Another (2015) 11 SCC 782.
11. In view of the above discussion, there is no merit in these
appeals. No substantial question of law arises. The appeals are
dismissed. However, it is noted that an aged landlady of 70 years is
pitted against a company and which is now sitting in the premises
illegally after tenancy being terminated by a legal notice way back of the
year 1999 i.e around 18 years back. Accordingly, I exercise my powers
under Volume V of the Punjab High Court Rules and Orders (as
applicable to Delhi) Chapter VI Part I Rule 15 to grant actual costs, and
therefore each of the appeals of the appellant is dismissed with costs of
Rs.1,00,000/- towards counsel fees and which costs shall be paid to the
respondent/landlady within a period of four weeks from today.
AUGUST 22, 2017/ib VALMIKI J. MEHTA, J
