Madras High Court
M/S.Bharat Petroleum ... vs M/S.Atm Constructions (P) Ltd on 8 January, 2021
S.A.No.185 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.08.2021
Delivered on : 16.09.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.185 of 2021
&
C.M.P.No.3758 of 2021
1.M/s.Bharat Petroleum Corporation Ltd.,
Represented by its Senior Manager – Legal (South)
Having its Office at
No.1, Ranganathan Gardens,
Off 11th Main Road, Anna Nagar,
Chennai – 600 040.
2. M/s.Bharat Petroleum Corporation Ltd.,
Represented by its Territory Manager (Retail)
Having its office at No.34, Vaidyanathan Street,
Tondiarpet, Chennai – 600081. ...Appellants
Vs
M/s.ATM Constructions (P) Ltd.,
Represented by its Chairman,
Mr.C.M.Ibrahim,
Having its office at
No.288, Lloyds Road, Royapettah,
Chennai – 600014. ...Respondent
1/29
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S.A.No.185 of 2021
Prayer: Second Appeal filed under Section 100 of the CPC against
the Judgement and Decree passed in A.S.No.361 of 2010 dated
08.01.2021 passed by the XVIII Additional Judge, City Civil Court,
Chennai, confirming the Judgement and Decree dated 30.04.2010
made in O.S.No.711 of 2006.
For Appellants : Mr.Krishna Srinivas
For Respondent : Mr.R.Balachandaran
For Intervenor : Mr.S.S.Rajesh
(As per order dated 27.07.2021 in C.M.P.No.10571 of 2021)
JUDGMENT
The case on hand demonstrates how an unscrupulous litigant
continues litigating although he is aware that he is fighting a loosing
battle. The poor landlord is up against a public sector undertaking
which has the wherewithal to litigate continuously and the instant
litigation is over 15 years old. The defendants before the Courts
below had invoked the Jurisdiction of this Court under Section 100 of
the Code of Civil Procedure challenging the Judgement and Decree of
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the XVIII Additional City Civil Court, Chennai in A.S.No.361 of
2010 in and by which the learned Judge confirmed the Judgement and
Decree passed by the III Assistant City Civil Court, Chennai in the
suit O.S.No.711 of 2006. The parties are referred to in the same rank
as before the Trial Court.
2. The suit revolves around the property bearing Door No.282
(Old No.1/87-L) Mount Road, Teynampet, Chennai, measuring an
extent of 4 grounds 2330 Sq.ft. The plaintiff had filed the afore
mentioned suit seeking a direction to the defendants to deliver vacant
possession of the above property in which the defendants had been
inducted as a tenant under a registered lease deed dated 08.01.1958.
Plaintiff's case:
3. The plaintiff would submit that the property in question was
originally owned by three brothers, Padmanabhan, Sethuraman and
Gopinathan, who were the sons of Dr.T.Thambaiah. They had
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S.A.No.185 of 2021
entered into a lease deed with the defendant company which was then
known as M/s.Burma Shell (Oil Storage & Distribution Company)
Limited. The lease was for a period of twenty years commencing
from 01.01.1958.
4. The essential provisions of the lease deed were as follows:
(i) The lease would be for a period of 20 years commencing
from 01.01.1958.
(ii) The rent payable would be a sum of Rs.350/- per month, to
be paid on or before the 10th day of every succeeding month.
(iii) The demised premises was to be returned in the same
condition as it had been leased out on the determination of the
tenancy.
5. The lease was for the purpose of the defendants to carry on
the business of sale of petrol and diesel. The property was handed
over as a vacant site. Thereafter, the defendants had put up structure
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for the purpose of storing and for distributing petrol and diesel.
6. It appears that the original owners, namely, Padmanabhan
and others had borrowed money from Egmore Benefit Society and
had mortgaged the above property, which is herein after referred to as
the suit property. The Society had exercised their rights under
Section 69 of the Transfer of Property Act and had brought the suit
property to sale through public auction. In the auction that was
conducted on 24.05.1978, one Mrs.S.Bharwani had emerged
successful and a sale deed dated 24.06.1978 was executed by the
Egmore Benefit Society in her favour.
7. Meanwhile, the original lease executed in favour of the
defendants had determined by efflux of time on 31.12.1977.
Therefore, by their letter dated 06.07.1978 the defendants had
requested the new owner Mrs.Bharwani to extend the lease in respect
of the suit property for a further period of 20 years. The request for
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extension was made on the basis of the provisions of Burma Shell
Acquisition of Undertakings in India Act, hereinafter called the Act.
8. On receipt of the above letter Mrs.S.Bharwani had issued a
legal notice dated 27.07.1978 requesting the defendants to vacate the
suit property and expressing her refusal to extend the lease. This was
followed by another legal notice dated 18.10.1978 by
Mrs.S.Bharwani calling upon the defendants to vacate and handover
vacant possession of the suit property by the end of November, 1978,
after removing all their fixtures. The defendants through their
lawyer's notice dated 17.11.1978 declined to vacate the premises
since they had exercised their option for renewal as provided under
Section 5 (2) and 7 (2) of the Act.
9. The plaintiff herein had joined issue after the property was
purchased by their promoter S.Altaf Ahmed from the said Bharwani
under a sale deed dated 31.07.1997. The plaintiff would submit that
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once they had purchased the property the promoter of the plaintiff
company had called upon the defendants to vacate and handover the
vacant possession of the suit property by 31.12.1997. The defendants
had responded to this request by sending a reply dated 09.01.1998
attorning tenancy and seeking renewal of the lease for a further period
of 20 years with effect from 01.01.1998. This was turned down by a
letter dated 10.01.2000.
10. The plaintiff would submit that after the parties had
exchanged correspondence, the lawyer's notice was issued on
23.07.2005 by the plaintiff calling upon the defendants to surrender
possession of the suit property by the end of 31.10.2005. For the first
time after receiving this notice, the 1st defendants had issued a reply
dated 02.08.2005 stating that the property had been purchased by
S.Altaf Ahmed, only in his individual capacity and denied the
ownership of the plaintiff. They, therefore, refused to surrender
vacant possession citing the rights available to them under the Tamil
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Nadu City Tenants Protection Act.
11. The plaintiff would submit that after the first statutory
renewal the continued possession of the suit property by the
defendants was only in the capacity of a trespasser and therefore they
had come forward with the instant suit.
Written statement of the defendants:
12. The defendants have filed a written statement contending
that even when they had attorned tenancy in favour of Altaf Ahmed
they had requested for a renewal of the lease. They would further
submit that they have been paying the rents regularly without any
default and further they had put up a building and installed equipment
all of which involved huge expenditure and which they were entitled
to protect. The defendants would submit that they are discharging a
public duty and therefore their possession needs to be protected since
their eviction would mean that the consumers would be put to a lot of
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S.A.No.185 of 2021
hardship. They would also state that they were entitled to protection
as per Section 9 of the City Tenants Protection Act. They would
therefore seek to have the suit dismissed.
13. Pending the suit the defendants had filed I.A.No.6009 of
2006, under Section 9 of the City Tenants Protection Act, 1921 to
appoint an Advocate Commissioner to inspect and survey the suit
property and to decide on the extent of the land that the defendants
would require to carry on the smooth functioning of its activities and
to sell the land to that extent to them. This application was taken up
and dismissed by orders of the Court dated 27.11.2009.
14. The defendants had challenged the said order in
C.M.A.No.20 of 2010 on the file of the III Additional City Civil
Court, Chennai. The learned Judge also confirmed the order of the
learned III Assistant City Civil Judge, Chennai in I.A.No.6009 of
2006 in O.S.No.711 of 2006 by his order dated 29.04.2010.
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S.A.No.185 of 2021
Challenging the above order, the defendants had moved this Court by
filing C.R.P.No.610 of 2011. It was also dismissed by orders of this
Court dated 09.01.2012.
15. Meanwhile, the suit O.S.No.711 of 2006 came to be decreed
by the Judgement and Decree of the III Assistant City Civil Judge,
Chennai. Challenging the same, the defendants had filed A.S.No.361
of 2010 on the file of the XVIII Additional City Civil Judge, Chennai
which also ended in a dismissal.
16. The defendants had challenged the orders of this Court in
C.R.P.No.610 of 2011 before the Hon'ble Supreme Court in
S.L.P.No.17435 of 2012, which was taken on file as C.A.No.769 of
2020. By order dated 28.01.2020, C.A.No.769 of 2020 also stood
dismissed. Thereafter, the appellant has filed the present Second
Appeal on the file of this Court.
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17. The Second Appeal was admitted on the following
Substantial Questions of law:
“a) Whether the Appellate Court was justified in
dismissing the appeal when the Appellants’ rights under
Section 9 of the Tamil Nadu City Tenants Protection Act,
were yet to be decided by the Hon'ble Supreme Court in
Review Petition Nos. 1063-1067/2020? |
b) Whether the Appellate Court could have
overlooked the fact that the trial court had passed a
decree for eviction of the Appellants from the suit
premises when an appeal against an interim order on the
valuable rights of the Appellants was to be determined by
the appellate court in CMA.No.20 of 2010?"
18. Thereafter, the defendants / appellants had filed
C.M.P.No.13973 of 2021 for framing additional Substantial
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Questions of Law. The defendants had come forward with the
application though the Court had already framed the Substantial
Questions of Law by order dated 26.02.2021.
19. In the course of his arguments, the learned counsel
appearing for the defendants had submitted that only one substantial
question of law would arise in the instant case and arguments would
only be addressed with reference to this substantial question of law.
The learned counsel appearing for the plaintiff / respondent did not
have any objection to the same and therefore by order dated
26.08.2021 this Court had framed the following Substantial Question
of Law:
“Whether the plaintiff has the locus standi to
institute the proceedings since the Sale Deed stands in
the name of Mr.Althaf Ahmed and not in the name of the
plaintiff?”
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20. Mr.Krishna Srinivasan, learned counsel appearing on behalf
of the defendants would submit that the plaintiff herein did not have
locus standi for filing the above suit since the sale deed in respect of
the suit property did not stand in the name of the plaintiff but that it
stood in the name of Altaf Ahmed. He would refer to Ex.A.7, which
is the agreement of sale entered into between Bharwani and the
promoter of the plaintiff's company Altaf Ahmed on 14.11.1996. He
would submit that the agreement of sale was entered into only
between the said Altaf Ahmed and Bharwani. He would draw the
attention of the Court to recitals in the said agreement wherein the
said Altaf Ahmed has been described as “Promoter of M/s.ATM
Private Limited, company under in-corporation”.
21. Thereafter, the company has been incorporated on
07.04.1997, which is evident from a perusal of Ex.A.14 declaration
deed dated 04.03.2003. Though, the company had been registered on
07.04.1997, the sale deed has not been taken in the name of the
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plaintiff's company but once again in the name of Altaf Ahmed,
although the sale had been registered and executed on 31.07.1997.
He would therefore submit that the intention was only to purchase the
property in the name of Altaf Ahmed.
22. He would argue that thereafter the plaintiff and the said
Altaf Ahmed had entered into a deed of declaration dated 04.03.2003,
which is marked as Ex.A.14, in and by which the said Altaf Ahmed
had declared that he had entered into an agreement of sale with
Bharwani only on behalf of the plaintiff company, since the plaintiff
company was then pending incorporation.
23. However according to the learned counsel as per Section 54
of the Transfer of Property Act, any transfer of a tangible immovable
property of value of Rs.100/- and above can only be made by a
registered instrument. Therefore, it is his contention that in the
instant case the deed of declaration cannot be considered to be a
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registered instrument under Section 54 of the Transfer of Property
Act. Further, the said document has not been registered as
contemplated under Section 17 of the Registration Act.
24. The learned counsel would further submit that a transfer of
property from one to another can only be by way of deed of sale and
not by by deed of declaration as done in the instant case. He would
submit that it is only Section 14 of the Partnership Act, which permits
the property of a partner to be brought in as the property of the firm.
The defendants had questioned the right of the plaintiff even under
Ex.A.16 which was in response to the plaintiff's legal notice dated
23.07.2005. Under Ex.A.16, the defendants had in very clear terms
stated that the owner of the property was only Altaf Ahmed and not
the plaintiff company.
25. To buttress his arguments that the transfer of property can
only be by a registered document, the learned counsel would rely on
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the Judgement reported in 1997 (1) SCC 496 – State of UP Vs.
District Judge and others, and would rely on the following
observations therein:
“ It is obvious that an Agreement to Sell creates no
interest in land. As per Section 54 of the Transfer of
Property Act, the property in the land gets conveyed only
by registered Sale Deed. It is not in dispute that the lands
sought to be covered were having value of more than
Rs.100/-. Therefore, unless there was a registered
document of sale in favour of the proposed transferee
agreement holders, the title of the lands would not get
divested from the vendor and would remain in his
ownership.”
26. He would also rely upon the Judgement reported in 2004
(8) SCC 614 – Rambhau Namdeo Gajre Vs. Naryan Bapuji Dhotra,
in support of his contentions that an agreement of sale does not create
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an interest of the proposed vendee in the suit property, since, as per
Section 54 of the Transfer of the Property Act, title to the immovable
property of a value of more than Rs.100/- can only be by way of
registered sale deed. The learned counsel would submit that in the
instant case there is no agreement between the plaintiff and the
original owner and neither is their a sale deed as contemplated
between the plaintiff and the said Altaf Ahmed.
27. The other case which the learned counsel would rely upon is
the Judgement of the Hon'ble Supreme Court reported in AIR 2012
SC 206 – Suraj Lamp and Industries Pvt Ltd., Vs. State of Haryana
and others, where the learned Judges had discussed the scope of an
agreement of sale and held that a transfer of immovable property can
only be by way of deed of conveyance and in the absence of such
deed no right, title or interest can be transferred.
28. The next Judgement which the learned counsel had relied
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upon is the Judgement reported in 2017 (15) SCC 316 – Greater
Bombay Cooperative Bank Limited Vs. Nagraj Ganeshmal Jain and
others, where the provisions of Section 54 and 55 of the Transfer of
property had been evaluated. The Bench had reiterated the
proposition that an immovable property can be transferred only by
way of a registered document and the transfer cannot be effected in
any other manner.
29. The learned counsel would rely upon the Judgement
reported in 2019 (10) SCC 229 – Shiv Kumar and another Vs.
Union of India and others. This was the case where the Bench was
considering whether a purchaser of the property after the issuance of
notification under Section 4 of the Land Acquisition Act, can invoke
the provisions contained in Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act. The Bench had gone on to discuss the fact as
whether the agreement of sale, general power of attorney or Will
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would convey any title or create interest in the immovable property.
The learned Judges had held that these documents do not create a
right / interest in the immovable property.
30. Per contra, Mr.R.Balachandran, learned counsel for the
plaintiff / respondent would submit that this argument is being
addressed for the first time before this Court and has not been raised
as a defense in the written statement. He would submit that on the
contrary the defendants had filed a Section 9 application for the sale
of the land in their favour by recognizing the plaintiff as the landlord.
31. The learned counsel would submit that during the pendency
of the suit, the arguments were addressed only with reference to the
Section 9 application and the defendants had challenged the decree
right upto the Hon'ble Supreme Court. Even during the pendency of
the First Appeal before the XVIII Additional City Civil Court, the
defendant had only stated that the appeal should await the orders that
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had to be passed by the Supreme Court in the SLP filed challenging
the order of this Court in C.R.P.No.610 of 2011. Even as late as in the
year 2012 this defense had not been raised. That apart, the defendants
attorned tenancy in favour of the plaintiff. Having done so the
defendants are estopped from questioning the locus standi of the
plaintiff to file the suit.
32. The learned counsel would also refer to Ex.A.10, letter in
which the plaintiff's have attorned tenancy. The learned counsel
would submit that the defendants had recognised the plaintiff as their
lessor and once they have so recognised they cannot turn around and
question the right of the plaintiff. Further, under Section 108 of the
Transfer of Property Act, on the determination of the lease, the lessee
was bound to put lessor back in possession of the property. The
original lease had been determined on 31.12.1977 and thereafter by
statute it was extended for a period of 20 years which ended on
31.12.1997. The defendants have successfully continued in
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possession to date i.e., for over 24 years. He would submit that no
exception can be taken to the Judgement and Decree of the Courts
below and the substantial questions of law has to be answered against
the defendants and the Second Appeal be dismissed.
Discussion:
33. Heard the learned counsels and perused the evidence both
oral as well as documentary.
34. The plaintiff in their pleadings had clearly narrated how the
plaintiff had come into ownership of the suit properties in paragraph
no.19 of the plaint. This has not been refuted / rebutted by the
defendants in their written statement. The defendants who had
questioned the locus of the plaintiff under their reply marked as
Ex.A.10 did not choose to raise this issue in the suit and therefore no
issue with reference to above had been raised.
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35. An additional typed set of papers has been filed by the
plaintiff, which had also referred to by the defendants. In this there is
a counter of the defendants in A.No.650 of 2020. In the counter the
defendants have made the following statement in paragraph no.10 of
the counter, “Thereafter, defendants vide its letter dated 07.10.2005
attorned the tenancy in favour of the plaintiff”. Therefore, on their
own making, the defendants had accepted the plaintiff as their
landlord.
36. A reading of Section 2 (3) of the Tamil Nadu City Tenants
Protection Act refers only to the landlord and not to an owner of the
land. The Act defines the land lord as follows:
“'landlord' means any person owning any land,
and includes every person entitled to collect the rent of
the whole or any portion of the land, whether on his own
account or on behalf of, or for the benefit of, any other
person, or by virtue of any transfer from the owner or his
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predecessor in title or of any order of a competent Court
or of any provision of law;”
37. Tenant under the City Tenants Protection Act, means a
person liable to pay rent in respect of such land, under a tenancy
agreement express or implied. Therefore, going by the definition, the
plaintiff falls within the definition of landlord as the defendants have
attorned tenancy in favour of the plaintiff and the defendants is the
tenant as described therein.
38. Even under the Transfer of Property Act, the lesser is not
defined as the owner of the land. Section 105 of the Transfer of
Property Act would define a Lease, Lessor, Lessee, Premium and
Rent as follows:
“Lease defined.—A lease of immovable property is a transfer of
a right to enjoy such property, made for a certain time, express or
implied, or in perpetuity, in consideration of a price paid or
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promised, or of money, a share of crops, service or any other thing of
value, to be rendered periodically or on specified occasions to the
transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.—The transferor is called
the lessor, the transferee is called the lessee, the price is called the
premium, and the money, share, service or other thing to be so
rendered is called the rent.”
39. The defendants / appellants has proceeded right upto the
Hon'ble Supreme Court without questioning locus standi of the
plaintiff to file the suit. This issue has been raised for the first time in
the arguments in the Second Appeal and was not even the Substantial
Question initially framed. The arguments of the learned counsel for
the defendants that this argument is a legal issue which can be raised
at any time is incorrect. The defendants recognised the plaintiff as
their landlord and filed the application under Section 9 of the City
Tenants Protection Act. They have also acknowledged that they have
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attorned tenancy to the plaintiff.
40. In fact, it was not even a substantial question of law raised
in the memorandum of grounds of the Second Appeal. The argument
only exposes the ingenuinity of the defendants and their desire to
continue to squat on the property despite determination of the lease.
This is totally unbecoming on the part of a public sector undertaking
who pleads that they are involved in public service.
41. The defendants had contended that the sale was executed
only in favour of Altaf Ahmed and not in favour of the plaintiff
though the sale deed was entered into after the plaintiff company had
been incorporated. The plaintiff has elaborately given reasons for the
same in their plaint. Since the company had not been incorporated
the original no objection from the Appropriate Authority under the
Income Tax Act was obtained in the name of the individual.
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42. Thereafter, on 31.03.1997, the said Altaf Ahmed had
written a letter to the appropriate authority seeking an amendment of
the no objection granted on 19.03.1997 in the name of the plaintiff
company. However, since time for executing the sale deed was due to
expire they were forced to go ahead with the sale deed in favour of
the said Altaf Ahmed. Narrating the above circumstances, the deed of
declaration had been entered into between the said Altaf Ahmed and
the plaintiff company and under this deed the said Altaf Ahmed had
declared that he had no individual interest in the suit property but
only in his capacity as promoter and Managing Director of the
plaintiff's company. The declaration deed also sets out that the entire
consideration had been paid only by the plaintiff's company and not
by Altaf Ahmed. Therefore, the plaintiff has clearly established their
right to institute the suit. These contentions of the plaintiff was not
rebutted or refuted by the defendants.
43. The Substantial Questions of Law is therefore answered
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against the defendants / appellants and the Second Appeal stand
dismissed with costs throughout.
44. The dealer, M/s.Aswini Automobiles has filed an affidavit
stating that they are vacating the premises. They have stated as
follows in the affidavit dated 01.09.2021:
“I submit that since I am the Dealer in occupation
of the premises, I pray that this Hon’ble Court may be
pleased to record my undertaking to vacate the premises
within a time limit of 8 months from the date of order and
also further reserve my right to negotiate the purchase of
the property, if the landlord is agreeable”
45. Considering the fact that the appellants' terms of lease had
come to an end on 31.12.1997 and these proceedings have been
pending since the year 2006 and they have managed to stay on in the
premises for over 24 years the appellants / dealer are granted six
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months time to vacate the premises from the date of receipt of a copy
of this order. Consequently, connected Civil Miscellaneous Petition
is also closed.
16.09.2021
Internet : Yes/No
Index :Yes/No
Speaking / Non-Speaking
kan
To
1.The XVIII Additional City Civil Court, Chennai.
2.The III Assistant City Civil Court, Chennai.
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S.A.No.185 of 2021
P.T. ASHA. J,
kan
Pre-delivery Judgment in
S.A.No.185 of 2021
16.09.2021
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