Kuldeep Aggarwal vs Sh. Raj Kumar Chopra And Ors.
2017 Latest Caselaw 3707 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.658/2017

%                                                      28th July, 2017

KULDEEP AGGARWAL                                        ..... Appellant
               Through:                  Mr.     Parveen       Chauhan,
                                         Advocate with Mr. Abhishek
                                         Gupta, Advocate.
                          versus

SH. RAJ KUMAR CHOPRA AND ORS.                         ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.26547/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No.658/2017 and C.M. No.26546/2017 (stay)

2. This Regular First Appeal under Section 96 of Code of

Civil Procedure, 1908 (CPC) is filed by the tenant, defendant in the

suit, impugning the judgment of the Trial Court dated 9.6.2017 by

which the trial court has decreed the suit of the

respondents/plaintiffs/landlords under Order XII Rule 6 CPC.

3. The facts of the case are that the subject suit was filed by

the respondents/plaintiffs/landlords against the

appellant/defendant/tenant pleading that the appellant/defendant/tenant

was a tenant of shop no. F2 and F3, First Floor, Plot No.19, MLU,

Sector-10, Dwarka, New Delhi-110045. The first registered lease

deed entered into between the parties was dated 9.9.2002 for a

monthly rent of Rs.33,000/-. The next registered lease deed between

the parties was dated 27.12.2005 as per which the rate of rent became

Rs.43,000/- per month and since the same was to be increased by 10%

every year, the rate of rent became Rs.52,030/- per month w.e.f

1.9.2007. The rate of rent w.e.f 1.9.2014 was pleaded to be

Rs.1,09,500/- per month and which was paid in the ratio of 1/3 rd i.e

Rs.36,300/- to each of the respondents/plaintiffs/landlords. The last

lease agreement was an unregistered lease agreement dated 15.9.2014

and as per which the rent is said to be paid till July, 2015. The

respondents/plaintiffs/landlords terminated the tenancy of the

appellant/defendant/tenant in terms of the notice dated 2.2.2017 and

thereafter filed the subject suit.

4.(i) The appellant/defendant/tenant filed the written statement

admitting to the execution of the earlier registered lease deeds dated

9.9.2002 and 27.12.2005. That the last rate of rent payable between

the parties was Rs.1,09,500/- was however denied. The service of the

legal notice sent by the respondent/plaintiff/landlords was not

specifically denied hence has to be seen as received by the

appellant/defendant/tenant. The only defence of the

appellant/defendant/tenant was that the appellant/defendant/tenant had

purchased the suit property from the respondents/plaintiffs/landlords.

The consideration for purchase was pleaded to be Rs.30 lacs. The

appellant/defendant/tenant pleaded to have paid an amount of

Rs.31.50 lacs to the respondents/plaintiffs/landlords as stated in the

written statement. It is however noted that the amounts totaling to

Rs.31.50 lacs given are alleged to be either in cash without any receipt

and by means of cheques which were however dishonored i.e amounts

are not paid under the cheques.

(ii) Also, and admittedly neither there is any registered sale deed in

favour of the appellant/defendant/tenant nor any registered agreement

to sell conveying any right, title and interest in the suit property in

favour of the appellant/defendant/tenant. For the sake of arguments,

even assuming some consideration is paid, and which is denied by the

respondents/defendants/landlords, ownership of an immovable

property passes only because of a registered sale deed vide Section 54

of the Transfer of Property Act, 1882 and even to take benefit of the

doctrine of part performance w.e.f 24.9.2001 when Act 48 of 2001

was brought in by the Legislature amending Section 53A of the

Transfer of Property Act, the agreement to sell has to be stamped and

registered and admittedly there is not even an agreement to sell.

Clearly therefore the defence of the appellant/defendant/tenant of his

having purchased the property had no legs to stand upon because

transfer of title in the property is by means of registered document and

which admittedly did not exist and therefore by admitted fact no

defence was made out before the trial court for not decreeing the suit

under Order XII Rule 6 CPC.

5. It is therefore seen that the relationship of landlord and

tenant between the parties is admitted. The rate of rent being above

Rs.3,500/- is admitted. The service of legal notice was not specifically

denied and hence admitted, and in any case, the same is not necessary

in Delhi in view of the judgment of this Court in the case of Jeevan

Diesels & Electricals Ltd. Vs. Jasbir Singh Chadha (HUF) & Anr.

2011 (183) DLT 712 which holds that service of summons in the suit

can be taken as a notice under Section 106 of the Transfer of Property

Act.

6(i). It is high time that dishonest litigation in this country

must be discouraged. The present appeal and defence of the

appellant/defendant/tenant before the trial court is completely

dishonest and malicious to somehow or the other enable the

appellant/defendant/tenant to illegally continue in possession of the

suit premises.

(ii) I cannot agree with the argument of the counsel for the

appellant/defendant/tenant that no case is made out under Order XII

Rule 6 CPC inasmuch as once all the three ingredients of existence of

relationship of landlord and tenant between the parties, rate of rent

being above Rs.3,500/- per month and notice terminating tenancy is

served because it is not denied and also not necessary in view of the

judgment of this Court in the case of Jeevan Diesels & Electricals

Ltd. (supra) the trial court was hence justified in decreeing the suit

under Order XII Rule 6 CPC. The defence of the

appellant/defendant/tenant of having purchased the suit property was

liable to be rejected in limine in view of the fact that there cannot be

purchase of an immovable property or purchase of any right, title and

interest in the property without registered documents in view of

Sections 53A and 54 of the Transfer of Property Act.

7. Accordingly, this appeal being an abuse of process of law

is dismissed with costs of Rs.2 lacs and which costs shall be paid by

the appellant/defendant/tenant positively within three weeks from

today with the website www.bharatkeveer.gov.in and receipt thereof

be filed in this Court within one week thereafter. Registry will ensure

that if receipt is not deposited then the matter will be listed in the

Court for taking necessary action for non-deposit of costs.

JULY 28, 2017                              VALMIKI J. MEHTA, J
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