* IN THE HIGH COURT OF DELHI AT NEW DELHI + % CS(OS) No. 2498/2012 10th December, 2012 M/S SAURABH BUILDCON PVT. LTD. ..... Plaintiff Through: Mr. Umesh Shandilya, Adv. versus M/S ASTER TECHNOLOGIES PVT LTD & ANR. ..... Defendants Through: Mr. Pawan Kumar, Adv. CORAM: HONBLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J.
MEHTA, J (ORAL) 1. By this judgment I am decreeing the suit of the plaintiff/landlord filed for possession and mesne profits qua the relief of possession under Order 12 Rule 6 CPC.
2. This suit is filed by the plaintiff/landlord for recovery of possession, arrears of rent and mesne profits. The suit premises are 71/5, Shivaji Marg, Najafgarh Road, New Delhi-110015 admeasuring a total of 4156 sq.ft. Plaintiff is the subsequent purchaser of the suit premises and original landlord/erstwhile owner was M/s. Delhi Floorings Pvt. Ltd. Though the plaintiff claims the document of purchase as a Sale Deed dated 29th December, 2009, however, this document is a registered and stamped Agreement to Sell, and which will entitle the plaintiff to the benefit of Section-53A of the Transfer of Property Act, 1882.
3. The counsel for the plaintiff states that the suit, at least so as to relief of possession, be decreed under Order XII R.6 CPC inasmuch as, there are admissions with respect to:i. Existence of relationship of landlord and tenant; ii. Rate of rent being `30,000/- i.e. more than `3,500/- per month. iii. The defendant being a monthly tenant inasmuch as there is no registered lease deed for a fixed period of the suit premises, and the monthly tenancy was terminated by legal notices dated 11.3.2008 and 9 th November, 2010. Alternatively termination of tenancy is pleaded from the date of service of summons in the suit in terms of judgment in the case of Jeevan Diesels & Electrical Ltd. Vs. M/s. Jasbir Singh Chadha (HUF) & Anr. reported as 2011 (183) DLT 712.(SLP No. 15740/2011 against which has been dismissed vide Order dated 7th July, 2011) so that the tenancy would stand determined at least so far as the aspect of grant of relief of possession is concerned. That the legal notice dated 9.11.2010 was in fact replied to by the defendants vide reply dated 28th December, 2010, and thus there can hardly be any doubt as regard the service of the legal notice dated 9.11.2010.
4. The main thrust by the counsel for the defendants so as to dispute the grant of decree for possession was that the document being the Agreement to Sell dated 29th December, 2009 is only an Agreement to Sell and therefore, cannot confer any title to the property. Reliance is placed upon recent judgment of the Supreme Court in the case of Suraj Lamp Industries Pvt. Ltd. v. State of Haryana & Anr., 183 (2011) DLT 1 (SC) to argue that as per this judgment an agreement to sell cannot be looked into.
5. I am unable to agree with the submission as made on behalf of the defendants that the plaintiff is not the owner of the suit premises. Firstly, an owner to whom possession can be granted need not be a complete owner of the suit premises, and all that is required is that the plaintiff must have a better title to the suit premises than the defendant. Secondly, the Agreement to Sell dated 29 th December, 2009 being duly stamped and registered, the plaintiff is entitled to legal rights flowing from the doctrine of part performance contained in Section 53A of the Transfer of Property Act, and therefore, plaintiff has the requisite title for being entitled to file the suit for recovery of possession.
6. Counsel for the defendants argued that the judgment in Suraj Lamps and Industries (supra) is a bar to claim title. In my opinion, the said judgment will have no application to the facts of the present case inasmuch as the said judgment only seeks to bar looking into those Agreements to Sell which are unstamped and unregistered so that they cannot confer ownership in an immovable property. In fact, the requirement of stamping and registration of Agreement to Sell in Delhi is subsequent to 24th September, 2001 when the Transfer of Property Act, 1882 and Stamp Act, 1899 as applicable to Delhi, were amended vide Act 48 of 2001 to require Agreements to Sell in the nature of part performance to be registered and stamped. The relevant Article of the Stamp Act requiring the Agreement to Sell falling under Section 53A of the Transfer of Property Act, 1882 to be stamped is Article 23A of the Stamp Act. In fact, the Supreme Court in the judgment in Suraj Lampss (supra) case in para 12,13, 14 & 16 ( so far as the documents prior to 24.9.2001 are concerned) has protected and re-affirmed the rights created under Section 53A and Section 202 of the Contract Act, 1872 as also the provisions as to a Will conferring title after the death of the executant. However, as stated above, there is no need to discuss the applicability of the judgment of Suraj Lamps case in the facts of the present case where the Agreement to Sell falls squarely within Section 53A of the Transfer of Property Act, 1882 as amended by Act 48 of 2001 as the agreement to sell is duly stamped and registered.
7. So far as the service of notice terminating tenancy is concerned, the plaintiff claims termination of tenancy by two notices dated 11.3.2008 (sent by erstwhile owner) and 9.11.2010 (sent by the plaintiff). These notices are referred to in paras 5 & 7 of the plaint. A reference to the corresponding paras of the written statement shows that only the legality of the notices is disputed i.e receipt of notices is not disputed. In fact para 8 of the written statement admits that a reply dated 28.12.2010 was sent to the notice dated 9.11.2010. There is therefore no dispute to the aspect of service of the two legal notices. What would be the date on which the tenancy would be terminated is an aspect which will concern the aspect of the date from which the mesne profits would be granted, and this aspect will be subsequently seen during the trial in the suit with respect to the mesne profits, however, as of today, the decree for possession of the suit premises cannot be denied to the plaintiff, inasmuch as at least from the date of service of the legal notices, the tenancy will stand determined. The tenancy was a month to month tenancy as the lease deed dated 24.7.1990 is not a registered document and therefore cannot be taken as a document for a lease of more than twelve months w.e.f. 16.8.1990 (date of commencement of lease). Any lease deed for a period of twelve months and above can only be by a registered document as per Section 107 of the Transfer of Property Act, 1882 read with Sections 17(1)(b) and (d) of the Registration Act, 1908.
8. So far as the defence that the lease was for manufacturing purposes, the argument is misconceived as even the lease deed dated 24.7.1990 filed by the defendants does not show the purpose of letting as for manufacturing purpose. However, even if we take the lease purpose as manufacturing purpose six months have expired after the serving on the defendant of the notices dated 11.3.2008 and 9.11.2010 and therefore suit is not premature as per the amended Section 106 of the Transfer of Property Act, 1882.
9. In view of the above, suit of the plaintiff for possession with respect to the suit premises admeasuring 4156 sq.ft. forming part of the premises bearing No. 71/5, Shivaji Marg, Najafgarh Road, New Delhi-110015 is decreed and as shown in red and yellow in the site plan annexed to the plaint as Annexure P-3.
10. List before the Joint Registrar for completion of pleadings and marking of exhibits to the documents on 12th February, 2013. I.A.No. 22044/2012 (U/s 8 of Arb.& Con. Act, 1996 by D-1) 11. This is an application filed on behalf of defendant no.1 under Section 8 of the Arbitration and Conciliation Act, 1996 to refer the disputes between the parties to arbitration.
12. The subject suit is a suit by the landlord for possession and mesne profits.
13. So far as the aspect of not referring the relief of possession to arbitration is concerned, I have already had an occasion to deal with the same in the judgment in the case of Shri Sanjay Saxena Vs. Sh. K.Sudershan Reddy & Ors. 2012 (190) DLT 3.wherein I have held that with respect to the issue of possession there are no disputed questions of fact or any disputes, which need be sent to arbitration once the relationship of landlord and tenant between the parties, premises being outside the protection of Delhi Rent Control Act, 1958 and termination of tenancy are/ become admitted facts. For seeking reference to arbitration a dispute must exist, and if there is no dispute, there cannot be reference to arbitration. Therefore, so far as the relief of possession is concerned, the matter cannot be referred to arbitration.
14. So far as the aspect of mesne profits is concerned, the arbitration clause will not apply because the arbitration clause perishes with the expiry of the lease deed so far as the disputes which can be those arising during the period of the lease. In the present case, the lease deed dated 24.7.1990 between the erstwhile original owner and defendant/tenant may be for an unstated period w.e.f. 16.8.1990, however in a way the period can be of three years as rent was to be increased by 20% after three years. In fact, since the lease deed is not stamped and registered the tenancy will only be a month to month tenancy as a tenancy terminable under Section 106 of Transfer of Property Act, 1882. The mesne profits which are claimed in the suit are for a period for which there was no lease deed and hence for disputes as to mesne profits for which lease deed was inapplicable there cannot be invoked the arbitration clause which can only be invoked for the disputes falling within the lease period. With respect to the amount which is claimed in the suit being mesne profits from 29.12.2009 till the filing of the suit, such charges are beyond the at the best period of three years of the lease as per the lease deed and therefore, would not fall within the purview of the arbitration clause. Only those disputes within the lease period of a lease deed can be the subject matter of arbitration under an arbitration clause which appears in the lease deed. Disputes beyond the period of the lease deed cannot fall in the scope of the arbitration clause and hence cannot be referred to arbitration. Therefore, disputes of mesne profits are not entitled to be referred to arbitration and the application under Section 8 of the Arbitration and Conciliation Act, 1996 has to fail.
15. In view of the above, there is no merit in the application which is accordingly dismissed. I.A.No. 22046/2012 (U/o 6 Rule 17 CPC by the defendants) 16. Except on the aspect of the amendment application pleading permanent tenancy having been created as per the agreement of lease deed dated 24.7.1990, and which plea is barred by law inasmuch as a permanent tenancy in view of the Section 107 of the Transfer of Property Act, 1882 and Sections 17(1) (b) and (d) of the Registration Act, 1908 can only be by means of stamped and registered instrument, let notice be issued only on the remaining aspects of this amendment application to the plaintiff. In fact the plea of alleged permanent tenancy already exists in the existing written statement and therefore there is no need to add any aspects about the same by amendment. In fact this application in reality had been filed as a strategy to delay decreeing of the suit qua the relief of possession. Counsel for the plaintiff accepts notice. Reply be filed within four weeks. Rejoinder, if any, be filed within two weeks thereafter.
17. List on 12th February, 2013 before the Joint Registrar for completion of pleadings. I.A.No. 22041/2012 (under Order 6 Rule 17 CPC by the defendants) 18. This is an application seeking amendment to the reply filed by the defendants to the plaintiffs application under Order 39 Rule 10 CPC.
19. Notice. Counsel for the plaintiff accepts notice. Reply be filed within four weeks. Rejoinder, if any, be filed within two weeks thereafter.
20. List on 12th February, 2013 for completion of pleadings. I.A.No. 22045/2012 (U/o 6 Rule 17 CPC by the defendants) 21. In view of the fact that application under Section 8 of the Arbitration and Conciliation Act, 1996 is dismissed, this application seeking amendment of the application under Section 8 of the Arbitration and Conciliation Act, 1996 is also dismissed. DECEMBER 10 2012 VALMIKI J.
MEHTA, J.
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