Unsuccessful litigants after having suffered a judgment cannot be allowed to raise the plea with regard to Section 12A of the Commercial Courts Act: Delhi High Court

CM(M) 966 2021 respondent plaintiff landlord under Order XIII A of the Code of Civil COMM.) No.574 2019 whereby filed by Judge Commercial Court 02 West District Tis Hazari Courts Delhi in CS impugns the order judgment dated 1st April 2021 passed by the District The present petition under Article 227 of the Constitution of India 38987 2021CM(M) 966 2021 CM No. 38986 2021 and CM No. The application is disposed of. Allowed subject to all just exceptions. CM No. 38988 2021AMIT BANSAL J.VIA VIDEO CONFERENCING] HON BLE MR. JUSTICE AMIT BANSAL S. GURBIR SINGH Through: None. Respondent Nayyar and Mr. Tushar Anand Through: Mr. Sachin Tandon Mr. Aseem Petitioner GURJINDER SINGH CM(M) 966 2021 Date of decision: 29th October 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 relief of possession. The said application has been allowed and the summary judgment against the petitioner defendant tenant in respect of of the CPC was also filed by respondent plaintiff landlord for passing on 4th February 2020. In January 2021 an application under Order XIII A petitioner defendant tenant entered appearance before the Commercial Court into a commercial suit on 10th January 2020. The tenant. The said suit in question was filed as an ordinary suit and was mesne profits and for permanent injunction against the petitioner defendant respondent plaintiff landlord for possession recovery of arrears of rent to clear the arrears. Accordingly the suit was filed by 2019. Despite receipt of the said legal notice the petitioner defendant tenant tenancy was terminated by serving a one month’s notice dated 24th October 2019. As the petitioner defendant tenant failed to clear the arrears the till January 2019 and thereafter stopped paying rent w.e.f. 1st February electricity and water charges. The petitioner defendant tenant paid the rent 2018 for a period of five years at the monthly rent of Rs. 15 000 excluding commercial purposes vide unregistered rent agreement dated 22nd January The suit premises were let out to the petitioner defendant tenant for impugned order. respondent plaintiff landlord within one month from the date of the said peaceful and vacant possession of said premises 110018 and the petitioner defendant tenant was directed to hand over premises no. K 86 Ground Floor Sham Nagar Khyala Road New Delhi has been passed against the petitioner defendant tenant in respect of Procedure 1908has been allowed a summary judgment for eviction Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 agreement. It is also stated that his client is also having tenancy in property and his client has repeatedly asked him to sign rent defendant wherein it is stated that his client is tenant of the plaintiff has also filed the legal notice sent by the counsel for the thereby admitted relationship of landlord and tenant. Further the facts. That the defendant is tenant since 17.07.2017. The defendant plaintiff has not come with clean hands and has concealed true valued as the plaintiff has not paid the proper court fee and the stated in the written statement are that the suit is not properly present application they are noticed. Brief facts of the case as although was not taken on record however for the purpose of “13. The defendant had filed the written statement twice impugned judgment is set out hereinbelow: Commercial Court while passing the impugned order. Paragraph 13 of the the defence set up by the petitioner defendant tenant was considered by the judgment that even though the written statement was not taken on record taken on record it is clear from the reading of paragraph 13 of the impugned As regards the ground in respect of the written statement not being Courts Act’) was instituted in the case before filing of the suit. Commercial Courts Act 2015 no order judgment primarily on the grounds that the written statement of the The counsel for the petitioner defendant tenant assails the impugned 2021. Hence the present petition. Commercial Court has passed a summary judgment for eviction on 1st April Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 application under Order VII Rule 11 of the CPC filed on behalf of the the written statement filed by the petitioner defendant tenant or in the that no such ground was ever taken by the petitioner defendant tenant in The counsel for the petitioner defendant tenant fairly concedes the petitioner defendant tenant. Commercial Courts Act was ever taken before the Commercial Court by whether the ground with regard to non compliance of Section 12A of the It was put to the counsel for the petitioner defendant tenant the CPC and passed the impugned summary judgment for eviction. filed on behalf of the respondent plaintiff landlord under Order XIII A of been served. Accordingly the Commercial Court allowed the application tenant has been sent by registered post the tenant is assumed to have came to the conclusion that once the notice at the correct address of the Durga Enterprises & Ors. 8 SCC 529 the Commercial Court Wazir Jaivir Chand AIR 1989 SC 630 and Indo Automobiles Vs. Jai Relying upon the judgments of the Supreme Court in Madan & Co. Vs. landlord on the petitioner defendant tenant for terminating the tenancy. basis and the notice had been duly served by the respondent plaintiff noted in the impugned order that the tenancy was on a month to month appearing on behalf of the petitioner defendant tenant. It has also been said fact has also been admitted before this Court by the counsel relationship of landlord and tenant has been admitted by the parties. The It has also been noted in the impugned judgment that the plaintiff and defendant is undisputed.” duly notarized on 23.01.2018. Thus the relationship between the the property by virtue of rent agreement dated 22.01.2018 which is Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 impugned judgment was passed. The only answer forthcoming from the the reasons for filing the present petition almost seven months after the It has been put to the counsel for the petitioner defendant tenant should have been made at the earliest before the Commercial Court. petitioner defendant tenant had bona fide intentions the said request plea with regard to Section 12A of the Commercial Courts Act. If the litigants after having suffered a judgment cannot be allowed to raise the already passed against the petitioner defendant tenant. Unsuccessful petition filed before this Court after the summary judgment has been Commercial Courts Act has been taken for the first time in the present It is obvious that the ground with regard to Section 12A of the pressed before the Commercial Court. been considered by the Commercial Court since this issue was never relief’ in terms of Section 12A of the Commercial Courts Act has not with his suit. However whether the same qualifies as an ‘urgent interim filed an application under Order XXXIX Rules 1 and 2 of the CPC along It may be noted here that the respondent plaintiff landlord had Commercial Courts Act. maintainability of the commercial suit in light of Section 12A of the been moved by the petitioner defendant tenant with regard to the by the counsel for the petitioner defendant tenant that no application has noted in any of the orders of the Commercial Court. It was also agreed perusal of the record shows that no reference to such a request has been request was made to the Commercial Court in relation to the same. A petitioner defendant tenant. It is further submitted that only an oral Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified CM(M) 966 2021 Sakshi R. OCTOBER 29 2021 AMIT BANSAL J made out under Article 227 of the Constitution of India. 14. No grounds for interference with the impugned judgment are petitioner defendant tenant before the Commercial Court. Section 12A of Commercial Courts Act has been filed by the Commercial Courts Act. Even till date no application with regard to maintainability of suits on non compliance with Section 12A of the only after when the petitioner came across the ground with regard to the It is clear from the above that the present has been filed belatedly COVID 19 pandemic. counsel for the petitioner defendant tenant was that it was on account of Signed By:ARUNAKANWARSigning Date:31.10.202117:32:28Signature Not Verified 

Summary: If the petitioner/defendant tenant had bona fide intentions, the said request should have been made at the earliest before the Commercial Court and unsuccessful litigants after having suffered a judgment cannot be allowed to raise the plea with regard to Section 12A of the Commercial Courts Act as upheld by the High Court of Delhi through the learned bench led by Justice Amit Bansal in the case of Gurjinder Singh V. S. Gurbir Singh (CM(M) 966/2021).  Brief facts of the case are that the suit premises were let out to the petitioner/defendant tenant for commercial purposes vide unregistered rent agreement dated 22nd January, 2018 for a period of five years at the monthly rent of Rs. 15,000/-, excluding electricity and water charges. The petitioner/defendant tenant paid the rent till January, 2019 and thereafter, stopped paying rent w.e.f. 1st February, 2019. As the petitioner/defendant tenant failed to clear the arrears, the tenancy was terminated by serving a one-months’ notice dated 24th October, 2019. Despite receipt of the said legal notice, the petitioner/defendant tenant failed to clear the arrears. Accordingly, the suit was filed by respondent/plaintiff landlord for possession, recovery of arrears of rent, mesne profits and for permanent injunction against the petitioner/defendant tenant. The said suit in question was filed as an ordinary suit and was converted into a commercial suit on 10th January, 2020. The petitioner/defendant tenant entered appearance before the Commercial Court on 4th February, 2020. In January 2021, an application under Order XIII-A of the CPC was also filed by respondent/plaintiff landlord for passing summary judgment against the petitioner/defendant tenant in respect of relief of possession. The said application has been allowed and the Commercial Court has passed a summary judgment for eviction on 1st April, 2021. Hence, the present petition. The Hon’ble Court held, “The only answer forthcoming from the counsel for the petitioner/defendant tenant was that it was on account of COVID-19 pandemic. It is clear from the above that the present has been filed belatedly, only after when the petitioner came across the ground with regard to the maintainability of suits on non-compliance with Section 12A of the Commercial Courts Act. Even till date no application with regard to Section 12A of Commercial Courts Act has been filed by the petitioner/defendant tenant before the Commercial Court. No grounds for interference with the impugned judgment are made out under Article 227 of the Constitution of India. Dismissed.”