CS(OS) 1444-98 Page 1 of 25 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 07.12.2010 CS(OS) 1444/1998 SHRI KRANTI ARORA ..... PLAINTIFF Vs M/S BIRLA VXL LTD. ..... DEFENDANT Advocates who appeared in this case: For the Plaintiff : Mr Rajit Dutta, Sr. Advocate with Mr Kumar Dushyant Singh, Advocate For the Defendant: Mr Sanjiv Jha & Mr Sanjay Kumar Yadav, Advocates CORAM :- HON'BLE MR JUSTICE RAJIV SHAKDHER 1. Whether the Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to Reporters or not ? No 3. Whether the judgment should be reported in the Digest ? Yes RAJIV SHAKDHER, J 1. This is a suit filed by the plaintiff for possession and recovery of damages. The property in issue of which possession is sought is a flat bearing No. 12, situate at 3-4, South End Lane, New Delhi (hereinafter referred to as the „flat‟). The plaintiff has claimed ownership of the flat. It is the plaintiff‟s case that the defendant being a trespasser, has no legal right to claim the occupation of the flat and hence, possession ought to be given to him. It would be pertinent to note here that the issues famed with regard to ownership of the flat have not been pressed by the plaintiff in view of the stand taken by the defendant that the plaintiff is the land lord. I will advert to the orders passed in this regard in the later part of my judgment. 1.1. However, consequential relief of damages is sought for three years spanning a period, commencing from May, 1995 and ending with May, 1998. Damages are sought at the rate of Rs 85,000/- per month. Total damages claimed are a sum of Rs 30,60,000/-. CS(OS) 1444-98 Page 2 of 25 1.2 I may also point out at this stage that even though in paragraph 7 of the plaint the suit has been valued for the purposes of jurisdiction at Rs 11,50,000/-, the learned Jt. Registrar during the course of scrutiny, vide order dated 13.08.2003, came to the conclusion, based on a holistic reading of the averments made in paragraph 7 of the plaint, that the suit for the purposes of jurisdiction and court fee is valued above Rs 20 lacs. This order of the court has attained finality. There is no issue between the parties with regard to the pecuniary jurisdiction of this court. 2. The plaintiff in support of his case and reliefs claimed (which are noticed hereinabove), has made the following averments. However, before I set out to do that, I must indicate that there is complete lack of chronological structure in the pleadings of both parties. I have attempted to put these in a chronological manner in the later part of my judgment after perusing the pleadings, placing together the evidence and recording the submissions of counsel. 2.1 On 08.09.1979 a builder by the name of M/s Kailash Nath & Associates (hereinafter referred to as “Kailash Nath Associates”) entered into a collaboration agreement with one Smt. Birender Amarjit Singh, Mr Inder Vijay Singh, Mrs Tavleen Amarjit Singh and Mrs Uday Hardev Singh (collectively described as „Singhs‟) in respect of development of a plot situate at 3-4, South End Lane, New Delhi (in short the “South End lane plot”) . The said collaboration agreement gave rights to Kailash Nath Associates to sell and dispose residential flats constructed thereon in the manner, in which, it was thought fit by them. 2.2 The plaintiff, in the meanwhile, entered into an agreement with Kailash Nath Associates for purchase of a flat admeasuring 2200 sq. ft. which, as per the averment made in the plaint, would be an area on any floor, of the complex, to be built on the South End Lane plot. In pursuance of the said agreement on 19.02.1990, the plaintiff paid a sum of Rs 6.90 lacs by way of a draft bearing no. 683219, drawn on New Bank of India, Tolstoy Marg, New Delhi (hereinafter referred to as „NBI‟) to Kailash Nath Associates, towards the booking amount, for a flat to the constructed in the proposed complex. CS(OS) 1444-98 Page 3 of 25 Against the said payment, a receipt was issued by Kailash Nath Associate bearing No. 699 dated 19.02.1990. 2.3 The proposed flat was hypothecated by the plaintiff in favour of the NBI. NBI evidently opened loan account in the name of the plaintiff being account no. 533/38. 2.4 It is pertinent to note that prior to the plaintiff‟s claim of purchase of the flat he had entered into an agreement dated 30.01.1989 (in short „1989 agreement‟) with the Singhs. It is averred in the plaint that in terms of clause 15 of the 1989 agreement the plaintiff, who was the buyer of the flat, authorized the seller (i.e., the Singhs) to hand over vacant peaceful possession to a company by the name of General Marketing and Manufacturing Co. Ltd. (in short „GMMCL‟), in terms of, what was evidently, a court decree. To be noted the particulars of the court decree were not referred to. The said clause 15 of the 1989 agreement further went on to say that delivery of possession to GMMCL would be deemed and treated, as if the sellers, i.e., Singhs had handed over peaceful possession to the plaintiff, (i.e., the buyer) subject to, however, the plaintiff/ buyer having paid all amounts due to the seller/ Singhs and other authorities concerned within the stipulated period. 2.5 The plaintiff further avers (and therefore display knowledge of proceedings concerning the flat in the Supreme Court) that by an order passed by the Supreme Court on 18.11.1992 in IA No. 2/1990, 3&4/1992 and 5&6/1992 he was compelled to hand over peaceful possession of the flat to the GMMCL. There is, in the plaint, also a reference to another order of the Supreme Court dated 19.04.1993 based on which the plaintiff avers that it has taken resort to the present suit proceedings as, express liberty in that regard had been granted to the plaintiff. 2.6 It is also averred that one Sh. O.P. Khaitan, Advocate/ Solicitor, along with the defendant herein, wrongly claimed to be the assignees of the flat and hence, are guilty of misuse of the process of law. There is also a reference to the proceedings before the Additional Rent Controller (in short „ARC‟) whereby, the interim standard rent of the flat was fixed by the said ARC at Rs 1300 per month. The said order was carried in appeal to CS(OS) 1444-98 Page 4 of 25 the Additional Rent Controller Tribunal (in short „Tribunal‟) which evidently by order dated 03.04.1998 set aside the order of the ARC and remanded the matter to ARC for adjudication. 3. As against this, the stand taken by the defendant is that they are the tenants of the plaintiff and that their rights flow from various orders passed by the Supreme Court in Civil Appeal No. 2684/85 entitled General Marketing and Manufacturing Co. Ltd vs Smt. Birender Amarjit Singh & Ors. Particular reference has been made by the defendant to orders dated 21.08.1984, 18.11.1992, 02.12.1992 and 08.12.1992 passed in the said proceedings. It is the defendant‟s case that except for the first order the last three orders of the Supreme Court were deliberately suppressed by the plaintiff herein. It is also the case of the defendant that the orders passed by the Supreme Court from time to time in the said proceedings would demonstrate that they are in lawful possession of the flat in their capacity as a „tenant‟. The defendants have also made reference to the fact that by order dated 21.08.1984, passed in the aforementioned Civil Appeal, the Supreme Court had directed that the appellant (i.e., GMMCL) in those proceedings shall pay to the respondent (i.e., Birender Amarjit Singh) the interim rent as determined by the ARC, Delhi pending determination of the standard rent. 3.1 The defendant says that the interim rent of Rs 1300 per month was fixed by the ARC by order dated 19.05.1995 to which reference has also been made by the plaintiff, as noticed by me hereinabove; keeping in view another agreement dated 23.07.1971 which postulated a rent of Rs 1300 per month. The defendant has also referred to the order of the Tribunal dated 03.04.1998, whereby order dated 19.05.1995 passed by the ARC was set aside. The stand taken by the defendant is that the application for fixation of standard rent is pending before the ARC. The defendant has alleged that the instant action has been filed in collusion with Mr O.P. Khaitan, who, as a matter of fact, it is averred, has also filed a suit bearing no. 935/95 wherein, damages in the form of rent at the rate of Rs 85,000/- per month have been claimed from the defendant, which is a figure identical to one claimed in the present suit. The defendant has also referred to one CS(OS) 1444-98 Page 5 of 25 Mr Ashwani Kumar, who filed a suit no. 4352/1992 in this court claiming to be the owner of the flat and, in that sense has put a question mark on the ownership of the plaintiff to the flat. The defendant has also taken objection as regards non-joinder of necessary parties in so far as Singhs and O.P.Khaitan are concerned. 3.2 More particularly, the defendant has raised an objection with regard to the subject matter jurisdiction of this court in the context of Section 50 of the Delhi Rent Control Act 1958 (hereinafter referred to as “DRC Act”). 3.3 There are also objections with regard to limitation and the valuation of the suit for the purposes of jurisdiction. 3.4 It is averred that since the market value of the flat was about Rs 1.50 crores (at the point in time, when the written statement was filed) and hence, the suit was not properly valued. 4. In the replication, apart from reiterating the stand taken in the plaint, the plaintiff has refuted the contentions of the defendant. It is specifically stated that since there exists no relationship of landlord and tenant between the plaintiff and the defendant – the defendant being in illegal possession, is a mere trespasser; entitling the plaintiff to seek possession, by having the defendant evicted from the flat. A particular emphasis is placed on order dated 19.04.1992 passed by the Supreme Court in the aforementioned proceedings which, according to the plaintiff, enabled it, as indicated above, to institute the proceedings for seeking possession, and consequential relief of damages against the defendant. 5. In support of its case the plaintiff examined himself and three other witnesses. Mr Kranti Arora, i.e., the plaintiff (PW1); Mr Sunil Mendiratta, Clerk, Punjab National Bank (PW2); Sh. Manmohan Sharma, C.A. with Kailash Nath & Associates (PW3) and Mr Ashok Kr. Gupta (PW4) contractor, who evidently undertook the renovation work in the flat. The defendant, on the other hand, examined only one witness, i.e., Mr R.C. Tiwari (DW1), who purportedly is the constituted attorney of the defendant. CS(OS) 1444-98 Page 6 of 25 5.1 Kranti Arora (PW1) in his examination-in-chief, which was filed by way of affidavit, reiterated the stand taken in the plaint. In his cross-examination he testified that he purchased the flat from Kailash Nath & Associates in January, 1989 and paid an initial amount of Rs 6.90 lacs by taking a loan from NBI. The witness, in his cross-examination accepted the fact the agreement dated 23.07.1971 (in short „1971 agreement‟) entered into between Singhs and GMMCL was in his knowledge, as also the fact that, the said agreement finds mention in the 1989 agreement which evidenced the purchase of flat by him. The witness went on to say that prior to the signing of the 1989 agreement he was not aware of the contents of the 1971 agreement. However, he became aware of the same on signing the 1989 agreement in January of that year. He further stated that on signing of the 1989 agreement he became aware that the flat „in dispute‟ was to be given on rent to GMMCL. He voluntarily stated that it had to be given on rent for a period of 10 years. The witness, however, refuted the fact that he had any knowledge of the agreement between Birender Amarjit Singh and GMMCL of 1971 and 1984. The witness went on to say that on signing 1989 agreement he became aware of agreement dated 21.08.1984 signed/ executed between Birender Amarjit Singh and GMMCL. PW1 also accepted the fact that the rent of the flat was to be determined by the ARC and that he became aware of the fact of fixing the rent when he signed the 1989 agreement (PW1/5). PW1, however, asserted that he did not know that GMMCL had assigned its right in favour of O.P. Khaitan (HUF). The witness, however, accepted the fact that he had filed the assignment deed dated 30.11.1987, which is marked as true copy along with the suit. The witness went on to state that he became aware of the assignment deed dated 30.11.1987 through his lawyer, who informed him that there was litigation pending between O.P. Khaitan (HUF) and the defendant. The witness displayed a lack of knowledge as to whether he had approached the Supreme Court before filing the suit or that he had moved any application before the Supreme Court in respect of the flat. On being shown the list of documents, wherein an application filed before the Supreme Court was also attached, the witness stated that he was aware of the orders that had been passed CS(OS) 1444-98 Page 7 of 25 in respect of the flat by the Supreme Court. He accepted the fact that he was aware of the order of the Supreme Court, whereby it was directed that the flat in dispute had to be handed over to the defendant. Curiously, while he stated that he was aware of the orders passed by the Supreme Court, he said that he was not aware that the interim rent of the flat in dispute was fixed at Rs 1300 per month by the ARC. He went on to say that against the said order of the ARC, an application had been moved before the Tribunal. PW1, however, accepted the fact that he was aware that the rent of the flat in question was Rs. 1300 per month prior to filing of the instant suit. The witness stated that he had paid consideration in respect of the flat through cheque. The witness also accepted the fact that the defendant had been tendering the rent to him once a year. The witness went on to accept the fact that he had represented to the NDMC that it is the defendant who would pay the property tax on the flat in issue. The witness, on being show an affidavit dated 29.08.1980 filed before the Supreme Court, accepted the fact that the said document bore his signatures. 5.2 To be noted the aforesaid document, which is appended at page 30, is an affidavit dated 29.08.1990 filed in Civil Appeal No. 2684-85/1984. The said document on perusal appears to be an application filed in the Supreme Court for impleading the defendant, i.e., Kranti Arora as party to the suit proceedings. Despite this, the witnesses stated that he did not remember whether he moved an application for impleadment as a party to the proceedings in the Supreme Court. He also displayed lack of knowledge as to whether he had mentioned this fact in the instant suit or in his affidavit by way of evidence. He also displayed lack of knowledge as to the exact date when the defendant purportedly trespassed in the flat in question. 5.3 Sh. Sunil Mendiratta (PW2), who was an employee of the Punjab National Bank at the relevant point in time, testified to the effect that the erstwhile NBI has merged with Punjab National Bank. PW2 went on to state that since the record was more than 8 years old, it was destroyed as per the banking guidelines then in operation. A copy of the said guidelines (Ex. PW2/B) was placed on record. The witness went on to testify that since CS(OS) 1444-98 Page 8 of 25 the record had been destroyed, he could not produce the document pertaining to the loan account no. 533 whereby the amount in issue, purportedly a sum of Rs 6.90 lacs, had been furnished as loan to the plaintiff (PW1). 5.4 In his cross-examination PW2 said that he was not aware of the transaction pertaining of loan account no. 533 purportedly pertaining to the plaintiff. He displayed lack of knowledge both with regard to account number and its status. 5.5 Sh. Uday Kumar, whose affidavit by way of evidence had been placed on record, was dropped by the plaintiff as a witness based on the statement of the counsel recorded by the court vide order dated 15.11.2006. 5.6 Sh. Manmohan Sharma (PW3) deposed that the flat in issue, which is located in a building known as Gauri Apartment, South End Lane, New Delhi was developed by Kailash Nath & Associates. He went on to say that in pursuance of the collaboration agreement a flat was directly booked after receiving payment from parties. The witness identified the signatures on the 1989 agreement (Ex. PW1/B) of one Mr Ravi Khanna. He further identified the signatures of Mr Kailash Nath on Exhibit PW1/1 (Colly). He also identified the signatures of Mr Kailash Nath on letter dated 22.08.1990 (Ex. PW1/1 collectively). The witness asserted that flat no. 12 was sold to the plaintiff. In his cross- examination PW3 accepted the fact that he was retainer of Kailash Nath & Associates and not its employee. The witness asserted that the 1989 agreement was executed in his presence, and that the said agreement was executed for selling flat no. 12 constructed on the South End Lane Plot. The witness further testified that the said agreement was executed between Birender Amarjit, Kailash Nath Associates and the plaintiff. PW3 also testified that the total consideration of the flat was Rs 11.50 lacs out of which Rs 5 lacs was paid directly by the plaintiff, and the balance Rs 6.90 lacs was received from the bank. To be noted there is obviously a typographical error and/or a calculation mistake as the amount adds up to Rs 11.90 lacs and not Rs 11.50 lacs as stated. 5.7 Continuing with the narrative, PW3 further asserted that in the agreement though the total amount was mentioned, the details of the transaction was not set out. The CS(OS) 1444-98 Page 9 of 25 witness also alluded to the fact that he was unaware of any other document having been executed qua the flat in question or, about any dispute pertaining to the same. 5.8 Ashok Kumar (PW4), is the contractor, who evidently carried out renovation work in the flat in question. The witness in his cross-examination stated that he did not remember as to whether the affidavit of evidence filed by him was executed in Patiala House Court or before the oath Commissioner in the High Court. PW4 testified that he had received Rs 2.5 lacs for the work of renovation and, since it was a meager amount, there was no written contract executed with the plaintiff. On being confronted that in the affidavit the remuneration received was mentioned as Rs 8 lacs, the witness explained the same by saying that he had included not only the consideration received by him in respect of the work carried out, but also the consideration received by other sub-contractors, such as, the electrician, carpenters, etc. In so far as his work was concerned, PW4 stated that scope of work envisaged carrying out only civil work. 6. In so far as DW1 is concerned in his examination-in-chief filed by way of affidavit he stated that GMMCL is a Birla‟s concern, and a tenant of Smt. Birender Amarjit Singh (the landlady) of the complex situate on South End Lane plot. Since Smt Birender Amarjit Singh had desired to build complex, that is, multi-storey building on the South End Lane plot she approached GMMCL to hand over vacant possession in lieu it being given a flat on rent in the proposed. Accordingly, an agreement dated 23.07.1971 (Ex. PW1/3) was executed between Smt Birender Amarjit Singh, the erstwhile landlady and GMMCL. The witness further testified that since Smt Birender Amarjit Singh reneged on her promise after the completion of the complex, propelling GMMCL to institute a suit which, reached the Supreme Court. In the Special Leave Petition filed by GMMCL, on leave being granted it was converted into civil appeal no. 2684-85/1984. 6.1 In the Supreme Court Smt Birender Amarjit Singh arrived at a settlement with GMMCL vide agreement dated 21.08.1984 which received the imprimatur of the Supreme Court by an order of even date i.e., 21.08.1984 (Ex. DW1/4). The witness went on to depose that by a deed of assignment dated 30.11.1987, GMMCL assigned its rights CS(OS) 1444-98 Page 10 of 25 in the proposed flat for the Sum of Rs 5,000/- in favour of O.P. Khaitan (HUF); a fact which is not, according to the witness, denied by the plaintiff. DW1 further asserted that O.P. Khaitan (HUF) assigned his rights in the agreement dated 21.08.1984 to the defendant-Birla for a consideration of Rs 18.50 lacs. DW1 deposed that since Smt Birender Amarjit Singh had failed to hand over the flat to GMMCL, an application was filed in the Supreme Court. The Supreme Court vide order dated 05.09.1990 directed that the land lady (sic) shall furnish an undertaking to keep a vacant plot available in the complex situate on South End Lane plot in compliance with its order dated 21.08.1994. Accordingly, an undertaking dated 11.09.1990 was furnished by Smt. Birender Amarjit Singh. The copy of the order and the undertaking are marked as exhibits DW1/5 and DW1/6. DW1 further asserted that the defendant once again approached the Supreme Court for possession of the flat in issue. The Supreme Court by an order dated 18.11.1992 directed Smt. Birender Amarjit Singh to do the needful in the matter. Since Smt. Birender Amarjit Singh did not comply with the order; on 02.12.1992 the Supreme Court directed Mr. R.C. Bhalla, Advocate be handed over possession of the flat. The commissioner of police, Delhi was directed to ensure compliance of the order through the Deputy Commissioner of Police. DW-1 further deposed that finally, the flat in issue was handed over to the defendant on 05.12.1992; a fact which was reported to the Supreme Court on 08.12.1992. A copy of the order of the Supreme Court dated 08.12.1992 was filed and marked as exhibit DW1/9. DW1 further asserted that pursuant to the orders of the Supreme Court an application was moved by the defendant for fixation of rent before the ARC, Delhi. Consequent thereto, the witness asserted, that interim rent of Rs 1300 was fixed. In this regard order of the ARC dated 19.05.1995 was also relied upon. 6.2 The witness went on to depose that since the land lady had failed to pay the rent, NDMC had attached the rent, and finally it was the defendant which discharged the liability of property tax in respect of the flat. CS(OS) 1444-98 Page 11 of 25 6.3 The witness also asserted that O.P. Khaitan (HUF) had filed a suit bearing no. 62/2001 claiming therein to be the land lord qua the defendant; wherein a prayer for mesne profit is also made. 6.4 By an order dated 29.07.2005, the aforementioned suit was dismissed on the ground that it was barred under the provisions of Section 50 of the DRC Act. 6.5 DW1 asserted that an appeal being RFA No. 650/2005 has been filed against the dismissal of the said suit, wherein the defendant has filed objections being: CO No. 15767/2006. To be noted the said RFA is pending adjudication in this court. 6.6 DW1 asserted that the plaintiff