SHRI ANUJ KAICKER & ANR. Vs PUNJAB NATIONAL BANK -Judgment by Delhi High Court

2024-04-20 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 20th April, 2022

+ CS(COMM) 81/2019, I.A. 12582/2019 (u/O-VIII R-10 of CPC), I.A. 13170/2019 (of the defendant for condonation of delay of 44 days in filing Written Statement) & I.A. 13171/2019 (of the defendant for condonation of delay of 43 days in re-filing application)

ANUJ KAICKER & ANR. ….. Plaintiffs
Through: Mr. Amit Sethi and Ms. Riddhi Jad, Advocates.

Versus

PUNJAB NATIONAL BANK ….. Defendant
Through: Mr. Apoorv Sarvaria and Mr. Tushar Chawla, Advocates.
CORAM:
HON’BLE MR. JUSTICE AMIT BANSAL

JUDGMENT
AMIT BANSAL, J. (Oral)
I.A. 13172/2019 (of the defendant u/O-VII R-11 of CPC)

1. The present application has been filed on behalf of the applicant/defendant under provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), seeking rejection of plaint on the ground that the jurisdiction of this Court is barred under Section 50 of the Delhi Rent Control Act, 1958 (DRCA) read with Section 11 of the Commercial Courts Act, 2015.
2. Brief facts necessary for deciding the present application are as follows:
I. A notice dated 15th May, 2017 was issued by the plaintiffs to the defendant demanding arrears of rent at the rate of Rs.200 per month from 15th June, 2015 till 30th April, 2017 and payment of arrears of property tax amounting to Rs.12,16,786/- in respect of the suit property from the year 2010 to 2017. In the said notice, it was specifically averred that the plaintiffs are the co-owners of the premises bearing No. A-10, Mezzanine Floor, A Block, Connaught Place, New Delhi-110001 (hereinafter, referred to as the �suit property�).
II. A reply dated 3rd July, 2017 was issued on behalf of the defendant wherein, it was specifically stated on behalf of the defendant that the defendant is not the tenant of the plaintiffs in respect of the suit property and is in fact having ownership rights in the suit property. The existence of landlord-tenant relationship between the plaintiffs and the defendant in respect of the suit property was specifically denied.
III. A legal notice dated 27th March, 2018 was issued on behalf of the plaintiffs to the defendant in which it was stated that in view of the reply dated 3rd July, 2017, wherein the defendant had denied his status as a tenant in respect of the aforesaid premises, the possession of the defendant was unlawful and the defendant was asked to handover possession of the aforesaid premises.
IV. Thereafter, the present suit was filed seeking inter alia a decree of possession in respect of the suit property and mesne profits. The relevant paragraphs of the plaint are set out below:
�19. That the defendant which earlier was a tenant under the provisions of Delhi Rent Control Act, ceased to have the protection of Delhi Rent Control Act from the date when instead of paying the rental so demanded by plaintiffs, the defendant claimed its ownership rights while denying the existence of relationship of landlord & tenant between the parties and thus the tenancy/lease which was operational by law in favour of defendant stood extinguished thereby making the occupation of said defendant as illegal and unauthorized in respect of suit premises, actually owned by the plaintiffs.

20. That since the defendant without any force, pressure or coercion voluntarily renounced its status and character of being a protected tenant by claiming itself to be the owner of the suit premises, the tenancy rights in respect of suit premises stood forfeited by virtue of Section 111(g) of Transfer of Property Act, 1882 w.e.f. date of Reply of the defendant. As such w.e.f. 03.07.2017, the occupation of the defendant in the suit premises has become unauthorized, illegal and akin to a trespasser and unauthorized occupant.
XXX XXX XXX
26. That the cause of action for filing the present Suit for Recovery of Possession & Mesne Profit arose in favour of the Plaintiffs & against the defendant for the first time on 03.07.2017 when the defendant acting in most frivolous manner while giving Reply to the Notice of Demand of rent, arrears of rent, interest & Property Tax dated 15.05.2017 made by the Plaintiffs, claimed its ownership qua the suit property and simultaneously denied the ownership and landlordship of the plaintiffs, thereby renouncing its status and character of being the protected tenant in the suit property. The cause of action also arose in favour of the plaintiffs when the Plaintiff No. 1 applied under RTI to NDMC to obtain various papers relating to taxation & building Plans of entire property including suit property. The cause of action further arose in favour of the Plaintiffs and against the defendant on 27.03.2018 when the plaintiffs vide Notice of Termination dt. 27.03.2018 called upon the defendant to quit, vacate and surrender the vacant & peaceful possession of the suit premises and demanded the use & occupation charges/mesne profit @ Rs.5,00,000/- per month w.e.f. 03.07.2017 onwards. It further arose on 28.03.2018 when the said Notice was legally served on the defendant by Speed Post and Regd. AD, as the defendant malafidely refused to receive the said Notice though the earlier Notice dated 15.05.2017 admittedly received by the defendant and even replied to, was bearing the same address. The cause of action also arose in favour of the Plaintiffs in July 2018 & December 2018 when the Plaintiff No. 1 procured certified copies of various documents in furtherance of their cause to eject the defendant. The cause of action is still continuing as the defendant is in unauthorized use & occupation of the suit premises without having any right to remain in the same by allegedly claiming itself to be the lawful owner, without any basis. No similar matter has been filed in any other Court.�

V. Upon summons being issued in the plaint, the written statement was not filed as per the statutory time period by the defendant and an application under Order VIII Rule 1 of the CPC has been filed. It is the contention of the plaintiffs that the affidavit of the admission/denial of the documents of the plaintiffs, which was to be filed along with the written statement, was filed much after the filing of the written statement.
3. Counsel for the plaintiffs submits that the present application has been filed only to get over failure of the defendant to file the written statement in a timely manner. Reliance is placed on the judgment of the Division Bench of this Court in Naeem Ahmed Vs. Yash Pal Malhotra (deceased) Through Lr�s & Anr., (2012) 188 DLT 579, to contend that, where the tenant has denied existence of the relationship of landlord and tenant, the remedy with the landlord would be to file a civil suit for recovery of possession of the property.
4. Counsel for the applicant/defendant places reliance on the judgment of the Constitution Bench of the Supreme Court in V. Dhanapal Chettiar Vs. Yesodai Ammal, (1979) 4 SCC 214 followed in Majati Subbarao Vs. P.V.K. Krishna Rao (Deceased) By LRS., (1989) 4 SCC 732 to contend that if a property is covered under the provisions of the relevant rent control laws then the provisions of the Transfer of Property Act, 1882, including Section 111(g) would not be applicable and recourse would have to be made to the provisions under the relevant rent control laws. Accordingly, it is submitted that in the present case, the remedy with the plaintiffs was to invoke the provisions of the DRCA rather than filing the present suit, which is barred in terms of Section 50 of the DRCA. Counsel has also placed reliance on the judgment of Devasahayam (Dead) By LRS. Vs. P. Savithramma and Others, (2005) 7 SCC 653.
5. I have heard the counsels for the parties.
6. It is an admitted position that the defendant itself has denied the existence of the relationship of landlord and tenant and in fact has claimed ownership in respect of the suit property.
7. Counsel for the plaintiffs has correctly placed reliance on the judgment of the Division Bench of this Court in Naeem Ahmad (supra). In this case, the issue before the Division Bench of this Court was whether a civil court would have jurisdiction in view of the stand taken by the tenant denying landlord-tenant relationship. In the said case, the landlord had filed a civil suit for recovery of possession on the ground of tenant being a trespasser in view of the stand taken by the tenant denying the landlord-tenant relationship in its reply to the demand notice issued by the landlord. After analysing the judgment in V. Dhanapal Chettiar (supra) and other judgments, the Division Bench came to the conclusion that the suit was maintainable before the civil court and was not barred under the provisions of Section 50(4) of the DRCA. Relevant observations in Naeem Ahmad (supra) are reproduced below:
�10. Now turning our attention to the ratio of the decision in�V. Dhanapal Chettiar case�(supra) it is observed that in the said decision it was held that determination of lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act. It is trite to state that a decision is an authority for what it holds and not what flows from it.
11. From the above, it is observed that the decision in�V. Dhanapal Chettiar case�(supra) is not an authority for the proposition that even if a tenant denies the title of the landlord and claims himself to be owner, he continues to be a tenant in the eyes of law and the protection of the Delhi Rent Control Act is still available to him.
12. As aforesaid, in�Kurella’s case�(supra) and�Abdulla Bin AIVs case�(supra) when the tenants deny the title of the landlord and the tenancy, the suit filed for recovery of possession is not on the basis of the relationship of landlord and tenant between the parties, and would lie only in the civil suit and not otherwise. In the present case also it is observed that in response to the legal notice, the respondent no. 1 denied the relationship of landlord and tenant and denied that the appellant had let out the premises in suit to the respondent no. 1. Consequently, the respondent no. 1 had repudiated and renounced the relationship of landlord and tenant and set up his own title in the property. Therefore, the appellant had filed the suit for recovery of possession in the civil court since the occupation of the respondent no. 1 had become unauthorized and that of a trespasser.�
8. The judgment in Naeem Ahmad (supra) was followed by me in Indira Kumari (Deceased) Thr LR Vs. Bimla Rani (Deceased) Thr Lrs & Ors., 2022 SCC Online Del 235. In my view, the dicta of the aforesaid judgment is squarely applicable to the facts and circumstances of the present case. In the present case also, in response to the notice dated 15th May, 2017, the defendant has denied the existence of the relationship of landlord and tenant between the plaintiffs and the defendant and has claimed ownership of the suit property. In that view, the only remedy available with the plaintiffs was to file the present civil suit against the defendant, on account of the defendant having become a trespasser. Therefore, the bar under Section 50 of the DRCA would not apply.
9. In so far as the judgments cited by the defendant in Majati Subbarao (supra) and Devasahayam (Dead) By LRS. (supra) are concerned, the same were delivered in the context of rent control laws applicable in the state of Andhra Pradesh wherein, there was a specific provision of the landlord approaching the Rent Control Authorities, where the tenant denies the title of the landlord. However, such a provision does not exist in the DRCA and, therefore, the aforesaid judgments would not be of much assistance to the defendant.
10. Counsel for the defendant has also placed reliance on Section 2(l)(ii) of the DRCA to contend that the defendant continues to be a tenant in possession even after termination of his tenancy. However, the aforesaid submission overlooks the fact that this is not a case for the termination of the tenancy. This is a case, where the defendant itself has claimed to be owner of the premises and has denied the relationship of landlord-tenant.
11. It is the settled position of law that while considering the application under Order VII Rule 11 of the CPC, the Court only has to look at the averments made in the plaint and the documents filed along with the plaint. A holistic reading of the plaint discloses the fact that the present suit has been filed on the basis of the defendant being a trespasser and not a tenant.
12. Accordingly, this Court does not find any merit in the application and the same is dismissed.
I.A. 13169/2019 (of the defendant u/S 151 of CPC r/w S.12A of Commercial Courts Act, 2015)

13. The present application has been filed on behalf of the applicant/defendant under Section 12A of the Commercial Courts Act, 2015 seeking for the present suit to be referred to mediation in terms of Section 12A of the Commercial Courts Act. Though, the aforesaid application has been filed at a very belated stage, Section 12A of the Commercial Courts Act is a mandatory provision for mediation in respect of all commercial suits. In my view, this is not a fit case where the mandate under Section 12A of the Commercial Courts Act, of mediation between the parties, should be dispensed with. Therefore, it would be appropriate, if the parties are relegated to mediation as envisaged under Section 12A of the Commercial Courts Act.
14. Accordingly, the following directions are passed in this regard:
(i) Proceedings in the present suit shall be kept in abeyance in order for the parties to avail the remedy of mediation in accordance with Section 12A of the Commercial Courts Act.
(ii) The parties shall approach the Delhi State Legal Services Authority for initiating the mediation.
(iii) All rights and contentions of the parties shall remain open in the event of the mediation not being successful and the suit being revived.
15. The application has been allowed in above terms.
CS(COMM) 81/2019
16. List on 7th September, 2022 to await the outcome of the mediation proceedings.

AMIT BANSAL, J.
APRIL 20, 2022
Sakshi R.

CS(COMM) 81/2019 Page 9 of 9