RFA (OS) No. 118/2011 & CM No. 6572/2012. Case: FAB India Overseas Private Limited Vs S.N. Sheopori. High Court of Delhi (India)
| Case Number | RFA (OS) No. 118/2011 & CM No. 6572/2012 |
| Judges | Sanjiv Khanna and S.P. Garg, JJ. |
| Issue | Code of Civil Procedure, 1908 - Rules 1, 12, 18(1), 18(2); Companies Act, 1956 - Section 43A(1); Delhi Rent Control Act, 1958 - Sections 14, 14(1)(b), 14(b), 21, 25, 50; Foreign Exchange Regulation Act, 1973 - Section 30; Transfer of Property Act, 1882 - Sections 111, 111(d), 111(f) |
| Judgement Date | January 31, 2013 |
| Court | High Court of Delhi (India) |
Judgment:
Sanjiv Khanna, J.
1. This judgment disposes of the first appeal filed by Fab India Overseas Private Limited and the cross-objections filed by Janak Mushran against the judgment and decree dated 4th July, 2011 passed by the single Judge in CS(OS) No. 246/2009 titled S.N. Sheopori and Janak Mushran v. Fab India Overseas Private Limited. Before dwelling into the disputed questions, we deem it appropriate to state the undisputed facts and contentions raised. For the sake of convenience, S.N. Sheopori has been referred to as Sheopori, Janak Mushran as Mushran and Fab India Overseas Private Limited has been referred to as FIOP Limited.
2. Around 4th September, 1995 Sheopori and Mushran filed a suit against FIOP Limited seeking decree of possession of premises No. 14, N Block-Market, Greater Kailash-I, New Delhi-110048 (property, for short); decree of recovery of Rs. 40,000/- towards arrears of rent from 1st May, 1995 to 30th June, 1995 with pendente lite and future interest @ 18% per annum; decree of mesne profits and damages @ Rs. 1 lac per month for the period 1st July, 1995 to 31st August, 1995 with pendant lite and future interest @ 18% per annum; future mesne profits till the delivery of vacant possession at least @ Rs. 1 lac per month or at any higher rate as may be prevailing and interest @ 18%.
3. The two plaintiffs Sheopori and Mushran, as admitted by FIOP Limited, were joint owners of the property constructed on 197 square yards, comprising of basement, ground floor, first floor and second floor, with covered area of approximately 4200 square feet.
4. FIOP Limited accepts that they were the tenant, under the co-owners Sheopori and Mushran. There was no written or registered lease and the tenancy was oral. The contentions regarding whether there was one single tenancy, as claimed by her (Mushran), or six separate and distinct tenancies, for the separate portions of the property, as claimed by FIOP Limited, is one of the disputes and will be examined subsequently. FIOP Limited contends that, in case, there were separate tenancies then the individual tenancies below Rs. 3,500/- per month would be protected under the Delhi Rent Control Act, 1958 (DRC Act for short) and, consequently, the suit for ejectment should have failed.
5. Sheopori and Mushran had served legal notice, dated 10th May, 1995, through their counsel and had terminated the tenancy of FIOP Limited, from the mid night of 30th June, 1995. The receipt of notice is not disputed and was replied to by FIOP Limited, vide letter dated 31st May, 1995, claiming that the tenancy was protected under the DRC Act.
6. Sheopori and Mushran claimed that, at the time of termination of tenancy, FIOP Limited was paying monthly rent of Rs. 20,000/- on which Tax at Source (TDS for short) was deducted. The aforesaid factum is not disputed by FIOP Limited but, it is claimed, that the consolidated said rent represented the rent paid in respect of six different tenancies and not for one tenancy.
7. Sheopori, the original plaintiff, died on 6th January, 1999 and his share in the suit property devolved on his elder daughter Lakshmi Dar, who too expired on 4th September, 2002. Consequently, Lakshmi Dar's two children Dhruv Dar and Preeti Atal were brought on record, in the civil suit.
8. Dhruv Dar and Preet Atal, by registered sale deed dated 21st October, 2005, sold their 50% share in the suit property to FIOP Limited.
9. Additional District Judge, before whom the suit was pending, by order dated 26th November, 2007 held that the suit for possession was not maintainable against the co-owner. By another order dated 29th April, 2008, issue No. 7 (whether the plaintiff, i.e., Mushran was entitled to recovery of possession of the suit property) was directed to be deleted and issue No. 3 was modified. The issues required to be decided were:
1. Whether the plaintiff has concealed the material facts that the tenancy was governed by DRC Act; if so, its effect? OPD
2. Whether the tenancy for different portions was in different tenancy and same carried rent less than Rs. 3,500/- p.m.? OPD
3. Whether the suit for recovery of rent and mesne profits is not maintainable in view of provisions of Sec. 50 DRC Act? OPD
4. Whether this Court has no jurisdiction in view of Sec. 50 DRC Act? OPD
5. Whether the defendant is entitled to receive Rs. two lakhs from the plaintiff, by way of counter claim, on account of excessive payment? OPD
6. Whether tenancy of the defendant has been validly terminated? OPD
7. XXX XXX XXX (deleted by order dated 29.04.2008).
8. Whether the plaintiff is entitled to the amounts towards arrears/damages/mesne profits, as claimed; if so how much and any interest, if so, at what rate? OPP
9. Relief.
10. By another order dated 13th October, 2008, Mushran's application for amendment of the plaint was allowed and paragraphs 10.A to 10.F were permitted to be incorporated. The said paragraphs refer to the subsequent developments i.e. sale deed executed by Dhruv Dhar and Preeti Atal, in respect of 50% share in the property, in favour of FIOP Limited. It was averred that Mushran remains owner to the 50% undivided share in the property. She did not wish to keep her share joint with FIOP Limited and sought partition. The joint ownership of Mushran and FIOP Limited stands acknowledged and admitted in the registered sale deed, dated 21st October, 2005, executed by Dhruv Dhar and Preeti Atal, in favour of the FIOP Limited. The property was capable of being partitioned by metes and bounds. Paragraphs 10D and 10E refer to tenancy rights procured by FIOP Limited in respect of the shops in the same market, i.e., N Block, Greater Kailash, Part-I, New Delhi, under separate lease agreements with different landlords. In paragraph 10F it is claimed that Mushran was entitled to rendition of accounts under Order XX Rule 12 from FIOP Limited from 21st October, 2005 till the date of handing over of possession.
11. As a result of amendments, prayer clauses (e) and (f) were inserted and the amended prayer clause of the plaint was:-
(a) a decree for possession in respect of premises bearing No. 14, N-Block Market, Greater Kailash Part-I, New Delhi-110048 as shown in Red in the Site Plan;
(b) a decree for recovery of Rs. 40,000/- towards arrears of rent for the period 1.5.1995 to 30.6.1995 along with pendente lite and future interest at the rate of 18% per annum at monthly rests;
(c) a decree for mesne profits/damages at the rate of Rs. 1,00,000/- per month for the period 1.7.1995 to 31.8.1995 along with pendent lite and future interest at the rate of 18% per annum at monthly rests;
(d) a decree for future mesne profits till delivery of vacant possession to the plaintiffs, at least at the rate of Rs. 1,00,000/- per month or at a higher rate which may be prevailing at the time of the disposal of the suit along with pendente lite and future interest thereon @ 18% per annum at monthly rests; and
(e) a decree of partition in respect of premises bearing No. 14, N-Block Market, Greater Kailash-I, New Delhi as shown in red in the site plan or as the premises exist at the spot.
(f) A decree for rendition of accounts for the period 21.10.2005 upto the date of decree.
(g) costs of the suit with such other relief as deemed fit in the circumstances of the case.
FIOP Limited filed written statement to the amendment plaint.
12. In spite of the amendment of the plaint, no new issues were added and the framed issues remained unmodified. Parties did not lead any fresh evidence. Arguments were heard and, thereafter, the impugned judgment was pronounced. As per the impugned judgment and decree, Mushran has been held entitled to preliminary decree of partition for half undivided share in the property. She is further held entitled to mesne profit from 1st July, 1995 to 21st October, 2005, i.e., the date on which Dhruv Dhar and Preeti Atal had sold 50% share in the property to FIOP Limited. Mesne profits have been restricted to 50%, as Mushran was owner of 50% of the property. Mesne profits for the entire property was determined at Rs. 3.75 lacs and Mushran has been entitled to mesne profits @ Rs. 1,87,500/- for the period 1st July, 1995 to 21st October, 2005. No mesne profits are to be paid for the period post 22nd October, 2005. Mushran was direct to pay court fees for the arrears of mesne profits, up to 21st October, 2005 from 1st July, 1995.
13. FIOP Limited has challenged the judgment/decree raising the following points:
(i) Single Judge has erred in passing a decree for partition as no issue was framed and no evidence was recorded. It is postulated that decree for partition should not have been passed, in view of the order dated 26th November, 2005, passed by Additional District Judge, Delhi holding, inter alia, that the suit for possession was not maintainable viz. the co-owner and as issue No. 7 (whether the plaintiff is entitled to recovery of possession of the suit property) was deleted and issue No. 3 was modified.
(ii) As per the doctrine of merger, the tenancy rights of FIOP Limited merged in the 50% ownership rights acquired by FIOP Limited. Suit for ejectment against the co-owner, who is also a tenant, is not maintainable in view of the doctrine of merger.
(iii) There were six separate tenancies in respect of different portions of the property and, therefore, the suit for ejectment on the basis of one single tenancy was not maintainable. Some of the tenancies were/are protected tenancies under the DRC Act, as the rent payable qua the separate portions was less than Rs. 3,500/- on the date of the filing of the suit. Therefore, suit was liable to be dismissed.
14. In the cross-objections filed by Mushran, it is submitted as under:
(a) There is an error in awarding mesne profits @ Rs. 1,87,500/- per month for the period 1st July, 1995 to 21st October, 2005. The mesne profits awarded should be enhanced.
(b) Mesne profits should have been awarded for the period 22nd October...
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