Delhi High Court
Uddam Singh Jain Charitable Trust ... vs Atma Ram Builders Pvt Ltd on 11 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th July, 2018
+ RFA 1016/2017, CM No.43764/2017 (for stay) & CM
No.43766/2017 (for condonation of 13 days delay).
UDDAM SINGH JAIN CHARITABLE
TRUST & ORS .... Appellants
Through: Mr. Praveen Kapoor, Adv.
versus
ATMA RAM BUILDERS PVT LTD ..... Respondent
Through: Mr. Amit Sethi and Mr. Ishan Khanna,
Advs. for R-1.
AND
+ RFA 1046/2017 & CM No.45960/2017 (for stay) and CM
No.45962/2017 (for condonation of 140 days delay in filing
appeal).
PRADEEP KUMAR JAIN ..... Appellant
Through:Mr. Rajesh Banati, Adv.
versus
ATMA RAM BUIDERS (P) LTD & ORS ..... Respondents
Through: Mr. Amit Sethi and Mr.
Ishan Khanna, Advs. for R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Both the First Appeals, under Section 96 of the Code of Civil
Procedure, 1908 (CPC), impugn the judgment and money decree dated 31 st
January, 2017 in CS No.11759/2016 against the appellants in both the
appeals and in favour of the respondent no.1 / plaintiff in both appeals,
consequent to the dismissal of the applications filed by the appellants in both
appeals for leave to defend the suit filed under Order XXXVII of the CPC.
2. Vide order dated 20th December, 2017, notice of these appeals was
ordered to be issued and subject to the appellant no.1 in RFA No.1016/2017
RFA Nos.1016/2017 & 1046/2017 Page 1 of 6
depositing 50% of the decretal amount in this Court, execution was stayed.
Only Rs.2,50,000/-, being 50% of the principal amount, and not of the
decretal amount, is stated to have been deposited. The appellants are thus in
non-compliance of the order subject to which stay of execution was granted.
3. Be that as it may, the counsel for the appellants in RFA No.1016/2017
has been heard.
4. The sole argument of the counsel for the appellants is that the suit has
been entertained under Order XXXVII of the CPC, without there being any
contract between the parties and without there being any cheque or other
negotiable instrument issued by the appellants in favour of the respondent
no.1 / plaintiff.
5. Having gone through the file and having found the respondent no.1 /
plaintiff to have sued under Order XXXVII of the CPC, in enforcement of
the clause in the registered Lease Deed between the respondent no.1 /
plaintiff and the appellant no.1 Trust in RFA No.1016/2017, and of which
the other appellants as well as the other respondents are trustees, and on the
basis of the payment made by the respondent no.1 / plaintiff to the Land &
Development Office (L&DO), Government of India, I have enquired from
the counsel for the appellants, whether not his contention, of there being no
contract, is factually erroneous.
6. The counsel for the appellants however insists that there is no contract
and only draws attention to page 59 of the paper book, being a copy of the
letter dated 15th September, 1986 of the L&DO demanding the charges for
unauthorised mezzanine in the portion of 'Jain Tube' and contends
RFA Nos.1016/2017 & 1046/2017 Page 2 of 6
that the demand with respect to portion of Jain Tube cannot be recoverable
from the appellants.
7. The aforesaid argument of the counsel for the appellants also is found
to be contrary to record.
8. The counsel for the respondent no.1 / plaintiff has handed over in the
Court a copy of a registered Lease Deed dated 31st December, 1982 referred
to in the impugned order and which the appellants have chosen not to file.
Upon the counsel for the appellants being confronted therewith, he admits
that the same is on record of the Trial Court but has not been filed by the
appellants before this Court.
9. The aforesaid shows that for the sake of gaining an order of admission,
an argument contrary to record and on facts is being urged.
10. What has been held by the Suit Court and is otherwise borne out from
the record is, (i) that the appellant no.1 Trust in RFA No.1016/2017 was a
tenant in first floor with Private no.3,4,&5 and Municipal No.D-18, 19 & 20
of the building known as 'Hotel India' situated at D-Block, Connaught Place,
New Delhi under the owners of the said building, on the terms and
conditions contained in the Lease Deed dated 31 st December, 1982. On the
earlier owners of the said building transferring the same in favour of
respondent No.1/plaintiff, the appellant No.1 Trust in RFA No.1016/2017
became a tenant, on the same terms, under the respondent No.1/plaintiff.
Clauses 5&6 of the said Lease Deed are as under:-
"5. That the lessee shall be entitled to use the property
itself or sublet the same only to the concerns in which the
four trustees of the lessee namely Dr. R.N. Jain, Shri J.R.
RFA Nos.1016/2017 & 1046/2017 Page 3 of 6
Jain, shri S.R. Jain and Shri N.L. Jain are interested directly
or indirectly namely Jain Brothers, Jain tube Company Ltd.,
Super Tube Pvt. Ltd., Jain Shudh Vanaspati and / or the
concern of any of the said trustees.
6. That since additions, alterations and constructions
have been carried out by the lessee to which the lessor now
has become consenting party they shall not object to the
same. However, in any case, if any amount in the shape of
damages or penalty for raising such additions / alteration or
construction is imposed by the L&D.O. or any amount on
this account become payable to the New Delhi Municipal
Committee, the same shall be payable by the lessee, the
lessee shall pay the same and keep the lessor indemnified the
lessor against all such actions and with regard to the
damages, penalties for raising the such additional
construction."
10. The aforesaid explains the liability for the portion of Jain Tube
Company Limited being enforced by the suit, from which this appeal arises,
against the appellants.
11. The same also falsifies the contention of the counsel for the appellants,
of there being no contract between the parties.
12. The L&DO, being the lessor of the land underneath the building,
demanded the charges aforesaid for unauthorised construction in the portion
of the building so leased to the appellant No.1 Trust and allowed by the
appellant Trust to be occupied by Jain Tube and which were paid by the
respondent no.1 / plaintiff and sought to be recovered by the respondent no.1
/ plaintiff from the appellants and other respondents in these appeals, by
RFA Nos.1016/2017 & 1046/2017 Page 4 of 6
filing the suit under Order XXXVII and application filed by the appellants
wherein for leave to defend has been dismissed.
13. I have otherwise gone through the copies of the Trial Court filed by
the appellants along with the paper books and find the impugned order of
dismissal of leave to defend and consequent decree against the appellants
and the other respondents to be in accordance with the dicta of the Supreme
Court in IDBI Trusteeship Services Limited Vs. Hubtown Limited (2017) 1
SCC 568 overruling the earlier judgment of the Supreme Court in Mechelec
Engineers & Manufactures Vs. Basic Equipment Corporation (1976) 4
SCC 687. The leave to defend application of the appellants did not disclose
any substantial defence to the suit within the meaning of IDBI Trusteeship
supra.
14. The counsel for the appellants in RFA No.1046/2017 has chosen not
to appear. In any case, having gone through the memorandum of appeal in
RFA No.1046/2017, the same is not found to have urged anything different
from what has been dealt with hereinabove.
15. The counsel for the appellant in RFA No.1046/2017 subsequently
mentioned the matter and has been heard. He urged that under Section 25 of
the Indian Trust Act, 1882, a trustee who succeeds another, is not as such
liable for the acts or defaults of his predecessor.
16. The counsel, before urging so, forgets that the Indian Trusts Act, 1882
is to define and amend the law relating to Private Trusts and Trustees as
distinct from a public charitable trust. The appellant no.1 Trust in RFA
No.1016/2017, from its name itself is a public charitable trust and Section 25
RFA Nos.1016/2017 & 1046/2017 Page 5 of 6
of the Trusts Act would not be available to appellant in RFA No.1046/2017
as a trustee of said Trust.
17. No other argument has been urged.
18. No merit is thus found in the appeals which are dismissed with costs
of Rs.33,000/- recoverable along with decretal amount by the respondent
no.1 / plaintiff from the appellants and other respondents in both the appeals.
19. Decree sheet be prepared.
20. The amount deposited in this Court along with interest accrued therein
be released in favour of the respondent no.1 / plaintiff.
RAJIV SAHAI ENDLAW, J.
JULY 11, 2018
'PP'..
