Composite Securities Ltd. vs Col. Amar Singh and Others

Valmiki J Mehta, J.

CM No. 1472/2011 (Exemption)

Exemption allowed subject to just exceptions.

Application stands disposed of.

RFA No. 49/2011 & CM No. 1473/2011 (Stay)

The challenge by means of this regular first appeal u/s 96 of the Code of Civil Procedure, 1908, is to the impugned judgment and decree dated 26.11.2010 whereby the landlord/Respondent suit for possession and mesne profits against the Appellant/Defendant/tenant was decreed.

The requirements for a decree in a suit for possession and mesne profit for a landlord against the tenant firstly is that the rent must be more than Rs. 3500/- so that there is no protection of the Delhi Rent Control Act, 1958. Here admittedly, the rate of rent when the tenancy was terminated was Rs. 36,800/-. The second requirement is that the tenancy must be terminated by means of a notice u/s 106 of the Transfer of Property Act, 1882. On this aspect also, there can be no cavil because legal notice dated 30.3.2010 was duly served upon the Appellant/Defendant/tenant and in fact a reply was sent by the Appellant dated 19.4.2010. In this view of the matter, the tenancy of the Appellant having been validly terminated, the suit for possession and mesne profits has been rightly decreed.

Learned Counsel for the Appellant firstly argued that the lease was in fact a lease for 9 years and not for 3 years and assuming that the stamp duty was inadequate on the lease deed for a lease of 9 years, the document should have been impounded, however, they would not entitle the landlords/Respondents to terminate the tenancy. Reliance is placed upon the following clauses of the admitted lease deed between the parties dated 28.4.2004 and which read as under:

The lease has been granted by the LESSORS to the LESSEE for a period of 3 (three) years commencing from 1st August, 2004, and ending on 31st July, 2007.

3a. However the lease period may be extended on the expiry of there years lease period by enhancing the rent by 15% of the last rent paid for another period of three years. On expiry of the extended lease period of three years the Lease period may further be extended for another term of three years by further enhancing the rent by 15% of the last rent paid.

3b. However, the Lessee will give three months advance notice prior to the expiry of the said lease agreement for extension of such lease period.

3c. For the renewal of each lease on the expiry of three years a Supplementary Lease Agreement containing the changes from the original Lease Agreement shall be executed which shall become and Addendum to the original Lease agreement. At the end of nine years of the said extended lease period the Lessee will have to handover the possession of the flat to the Lessor. In case of any delay in handing over the possession of the flat the Lessee will have to pay mense damages at 25% over & above the last rent paid.

I do not agree with the contention of the learned Counsel for the Appellant inasmuch as these very clauses clearly show that the lease has been granted for a period of 3 years from 1.8.2004 to 31.7.2007. In case, the lease was to be extended, then, this Clause 3(c) makes it clear that a fresh supplementary lease deed will be executed for the additional period. Admittedly, no registered lease deed was executed with respect to the extended period and once there is no registered lease deed, a tenant would be a tenant only from month to month and whose tenancy can be terminated by a notice u/s 106 of the Transfer of Property Act, 1882.

The counsel for the Appellant has cited M. Mohan v. Smt. Maheshwari Seth AIR 1987 Del 115 in support of the proposition of the stamping of the document. This judgment will not apply because I have already held that the lease is not for 9 years, but only for 3 years. Learned Counsel for the Appellant has also relied upon Provash Chandra Dalui and Another Vs. Biswanath Banerjee and Another, and para 10 thereof to canvass that the lease deed must be read as per its intention. I agree that the lease deed has to be read as per its intention and the intention is very clear from the aforesaid quoted clauses that the lease was for 3 years. Learned Counsel for the Appellant also relied upon Bimlesh Tewari (Deceased) v. The Food Corporation of India and Ors. 2004 6 (Del) 142. The case of Bimlesh Tewari (supra) was a case where a tenant was not allowed to vacate the property before a fixed period on such stand of the landlord inasmuch as the property was constructed for the lease being granted for a fixed period and on the specific representation of the tenant to stay in the property for a particular number of years. The facts of the present case are however exactly opposite because the landlord is insisting on the tenant vacating and not staying in the tenanted premises. IN the present case the tenant/Appellant was a month to month tenant whose tenancy could have been and thus was terminated by means of a legal notice u/s 106 of the Transfer of Property Act.

No other point or issue was canvassed before this Court. The appeal and the application are accordingly without merit and are dismissed leaving the parties to bear their own costs.