IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.04.2007 CORAM THE HON'BLE MR.JUSTICE S.ASHOK KUMAR CRP (PD) Nos.635 and 925 of 2007 and M.P.Nos. 1+1,2+2 and 3 of 2007 CRP. No.635 of 2007: ~~~~~~~~~~~~~~~~~~~ M/s.C.C. India Pvt. Ltd., formerly known as M/s. C.C.Impex (P) Ltd., rep. By its Director Mr.Ravi Karumbiah No.62, C.P.Ramasamy Street, Alwarpet, Chennai 18 ..Petitioner Vs M/s.Avastra Design Studio rep. By its Partner Mr.Atul malhotra shop No:2/2, Ground Floor GI TEX Complex Old No;7 New No.3, Khader Nawz khan Road, Chennai 6 ..Respondent
CRP. No.925 of 2007:
~~~~~~~~~~~~~~~~~~~
M/s.Avastra Design Studio
rep. By its Partner Mr.Atul malhotra
shop No:2/2, Ground Floor
GI TEX Complex
Old No;7 New No.3,
Khader Nawz khan Road,
Chennai 6 ..Petitioner
Vs
1. M/s.C.C.India Pvt Ltd.,
formerly known as M/s.C.C.Impex (P) Ltd.,
rep. By its Director Mr.Ravi Karumbiah
No.62, C.P.Ramasamy Street,
Alwarpet,
Chennai 18
2. Amarnath Reddy ..Respondents
Civil Revision Petition No:635/2007 is filed under Article 227 of the Constitution of India against the order passed in I.A.No: 3505 of 2007 and O.S.No: 1318 of 2007 dated 27.2.2007 by the learned XII Assistant Judge, City Civil Court, Chennai.
Civil Revision Petition No:635/2007 is filed under Article 227 of the Constitution of India against the order passed in I.A.No: 5269 of 2007 and O.S.No: 8791 of 2006 dated 23.3.2007 by the learned III Assistant Judge, City Civil Court, Chennai.
For Petitioner : Mr.K.M.Vijayan, SC for Law and Law (CRP.635/07)
Mr.S.Ashok Kumar (CRP.925/07)
For Respondent : Mr.V.T.Gopalan, S.C., for
Mr.G.Krishnakumari(CRP 635/07)
Mr.M.B.Mustaq Ahamed (CRP.No: 925/07)
COMMON ORDER
Civil Revision Petition No:635/2007 has been filed against the order passed in I.A.No: 3505 of 2007 and O.S.No: 1318 of 2007 dated 27.2.2007 by the learned XII Assistant Judge, City Civil Court, Chennai, whereas Civil Revision Petition No:635/2007 has been filed against the order passed in I.A.No: 5269 of 2007 and O.S.No: 8791 of 2006 dated 23.3.2007 by the learned III Assistant Judge, City Civil Court, Chennai.
2. For easy reference, the parties will be referred to as arrayed in the CRP.No:925 of 2007. The possession of the property concerned in both the CRPs is the bone of contention between the petitioner and the first respondent in CRP.No:925 of 2007. The property originally belonged to the second respondent A.Amarnath Reddy who entered into a lease agreement with the first respondent on 15.10.2002. Though the period of lease was Nine years, the lease deed was not registered as required under Section 17 of the Registration Act and Section 107 of the Transfer of Property Act. Clause 15 of the lease deed is important to arrive at a conclusion which reads as follows:
“15. TERMINATION:
15.1 The parties herein agree that the lease can be terminated only after completion of 3 years and thereafter either party shall have the option to terminate the lease by giving three months written notice to the other party, without assigning any reasons notwithstanding the contractual period.
Further, the said 3 years mentioned herein above is treated as Lock in period and during this period either party shall not have any option to terminate this lease except in case of non payment of rent.
15.2 That if any part of the rental compensation hereby mentioned shall be in arrears for three consecutive months, whether the same shall have been demanded or not, or if there shall be a breach of any of the lessee’s covenants herein contained or in law, the lessor shall after having served upon the lessee three months prior notice reenter the premises and the lease of the premises shall absolutely cease and determine instantaneously.
It is specifically agreed between the parties herein that n the event of the lessee not having handed over the premises on termination/sooner determination of this agreement, the lessee shall be liable to pay liquidated damages for use and occupation of the leased premises at the rate of Rs.76/= per sq.ft. Per month or part thereof as long as the lessee remains in occupation of the leased premises.”
3. From the above it is clear that though the lease period was for Nine years, on 31.7.2006 and 19.8.2006, the second respondent sent letters of termination of the lease and required handing over of the possession of the property within three months. On 4.8.2006 the first respondent sent a reply to the second respondent expressing his inability to vacate and handing over possession of the property as required by him. On 11.10.2006 itself the second respondent executed a sale deed with regard to the entire building in favour of the petitioner. On 28.9.2006 the first respondent filed a suit in O.S.No.8791 of 2006 against the second respondent for bare and permanent injunction to restrain the defendant-second respondent herein and his men from in any manner interfering with the possession and enjoyment of the premises. He also filed I.A.No:20331 of 2006 along with the said suit and also obtained ad interim injunction. On 28.11.2006 the defendant/second respondent filed a counter and also filed I.A.No:21290 of 2006 to vacate the ad interim injunction granted. On 27.12.2006, a common order was passed in both the I.As and the injunction already granted in I.A.No:20331 of 2006 filed by the first respondent was dismissed and the I.A.No:21290 of 2006 filed by the second respondent to vacate the said ad interim injunction was allowed. On 26.2.2007, the revision petitioner filed a suit in O.S.No:1318 of 2007 before the XII Assistant Judge, City Civil court, Chennai and he also filed I.A.No:3505 of 2007 in the said suit for ad interim injunction and the same was granted on 27.2.2007 till 8.3.2007. On 28.2.2007 the first respondent also filed I.A.No:3655 of 2007 to vacate the said interim injunction. On 1.3.2007, CRP.No:635 of 2007 was filed by the first respondent against the order injunction order passed in I.A.No:3505 of 2007 in O.S.No:1318 of 2007 and this Court stayed the said order passed in the said I.A by order dated 2.3.2007. After getting stay of the order of the 12th Assistant Judge, City Civil Court, Chennai made in I.A.No:3505 of 2007, the first respondent withdrew the vacate stay petition I.A.No:3655 of 2007 filed before the 12th Assistant Judge, City Civil Court, Chennai. On 14.3.2007, the first respondent also filed W.P.NO:9871 of 2007 to restore his possession of the property. On 22.3.2007, the first respondent filed I.A.No:5269 of 2007 in O.S.No:8791 of 2006 for injunction against the petitioner and on 23.3.2007 an order of injunction was granted in the said I.A., against the petitioner. After granting an order of injunction by the III Assistant Judge, City Civil Court, Chennai, as referred to above on 27.3.2007, the first respondent gave a letter to the Registry of this court to withdraw the CRP.No.635 of 2007.
4. In the above facts and circumstances of the case, the contention of the learned counsel for the revision petitioner in CRP.No.925 of 2007 is that the lease deed was unregistered contravening Section 17 of the Registration Act as well as Section 107 of the Transfer of Property Act. The suit filed by the first respondent before the III Assistant Judge, City Civil Court, Chennai in O.S.No:8791 of 2006, is only against the erstwhile owner alone even though on 17.11.2006 he was aware that the property has been sold to the petitioner by a letter sent by the second respondent which is alleged to have been received by the first respondent on 15.11.2006. The further contention of the learned Senior counsel is that when the ex parte ad interim injunction granted in I.A.No:20331 of 2006 in O.S No:8791 of 2006 was vacated on the application filled by the erstwhile owner in I.A.No.21290 of 2006, nothing survives in O.S.NO.8791 of 2006, since the suit is only for bare injunction and the suit has become infructuous by that cause of action. Though the suit is said to have been filed by the first respondent, represented by its Managing Director by name Ravi Karumbiah, the Affidavits and Vakalats have been signed in all the proceedings by one A.D.Senthil Kumar, claiming to be the Manager of the company without any Power of Attorney or Authorisation given to him and therefore all the applications filed by the first respondent are not maintainable.
5. The further contention of the learned senior counsel is that the first respondent has abused the process of various courts and indulged in forum shopping in getting ex parte interim orders and thereby caused grave injustice to the petitioner by playing fraud upon the courts. After exparte interim injunction was granted in favour of the petitioner on 27.2.2007 in I.A.No:3505 of 2007 in O.S.No:1318 of 2007 filed by him, the first respondent on 28.2.2007 filed vacate stay petition in I.A.No.3655 of 2007. On 1.3.2007 after filing the CRP.No:635 of 2007 and getting stay order on 2.3.2007, on the very same day he withdrew the I.A.No.3655 of 2007 filed by him before the 12th Assistant Judge, City Civil Court, Chennai. Similarly, after obtaining an order of interim injunction on 17.11.2006 against the petitioner in the pending suit O.S.No:8791 of 2006, in which the petitioner has not been impleaded as party, he also gave a letter to the Registry to withdraw the CRP.No:635 of 2007 an thus according to the learned counsel for the revision petitioner, the first respondent has played a fraud upon the courts.
6. The further contention of the learned senior counsel for the revision petitioner is that in O.S.No.8791 of 2006 in which the earlier injunction order granted against the erstwhile owner was vacated the suit itself should have been dismissed as infructuous. On the other hand, the first respondent filed an implead Petition on 22.3.2007 and notice was ordered to the revision petitioner and on the same day an order of injunction was granted against the petitioner who was on that date not even a party in the suit and thus an injunction against a party who is not on record is not maintainable.
7. The contention of the learned senior counsel appearing for the first respondent is that the lease was for a period of Nine years and believing the lease, the first respondent has invested huge sums in the interior decoration of the property and therefore sending him and immediately from the property will be a great loss to him. The first respondent also denies the very receipt of a letter intimating the sale of the property by the second respondent to the petitioner. The learned senior counsel for the first respondent would contend that he can be dispossessed only under due process of law. According to the learned senior counsel, by taking advantage of the injunction, the petitioner is trying to forcibly throw him out of the premises by influencing the police authorities etc., His further contention is that the building is 5 years old and therefore, as per Section 30 of the Tamil Nadu (Buildings Lease and Rent) Control Act, he is a statutory tenant and he cannot be evicted without due process of law.
8. Now, let us decide whether the suits filed by both the parties and the interim orders obtained by both the parties are maintainable?
9. The suit in O.S.NO.8791 of 2006 has been filed by the first respondent against the erstwhile owner, the second respondent herein is not maintainable at all since on 11.10.2006 itself the property has been sold to the petitioner by a registered sale deed. Whether the letter dated 14.11.2006 intimating the first respondent by the second respondent about the sale of the propety to the petitioner was received by the first respondent on 15.11.206 is a matter to be proved by evidence, because now the first respondent denies the very receipt of the said letter. Even though the letter sent by Courier and acknowledgment cards are produced, the signature of the first respondent is denied. However, subsequently on 22.3.2007 an application was filed to implead the petitioner and another application in I.A.No:5269 of 2007 for injunction was also filed and interim injunction was granted on 23.3.2007 against the petitioner even though he was not added as a party. Factually, on that day only notice was ordered in the implead application filed by the first respondent. Therefore, the injunction against a party against whom only notice has been ordered regarding impleading in the suit, the interim injunction obtained by the first respondent is not sustainable.
10. Earlier when the revision petitioner filed O.S.No:1318 of 2007 before the 12th Assistant Judge, City Civil Court, Chennai on 26.2.2007 and obtained an order of interim injunction in I.A.No:3505 of 2007 on 27.2.2007, the first respondent filed I.A.No:3655 of 2007 to vacate the said interim injunction obtained by the revision petitioner. However, after getting stay in M.P.No:1 of 2007 in CRP.No:635 of 2007, the first respondent withdrew the I.A.No:3655 of 2007 filed by him before the 12th Assistant Judge to vacate the injunction obtained by the revision petitioner. Similarly he also gave a letter to the Registry on 27.3.2007 for withdrawal of the CRP itself. The conduct of the first respondent in filing I.A.No:3655 of 2007 and withdrawing the same after getting stay from this Court in M.P.No:1 of 2007 in CRP.No:635 of 2007 and later on giving letter to withdraw the very CRP itself at the time when the matters are posted to be decided are condemnable and therefore there is force in the contention of Mr.s.Ashok Kumar, learned counsel appearing for the revision petitioner that the first respondent is indulging in forum shopping and abusing the process of the courts. Similarly, the III Assistant Judge, City Civil Court, Chennai after vacating the ex parte interim injunction order obtained by the first respondent against the second respondent in I.A.No:21290 of 2006 in O.S.No.8791 of 2006 ought not to have retained the suit on its file, because the suit itself which is only for bare injunction that too against the erstwhile owner has become infructuous when once it comes to know that the suit is filed against the erstwhile owner and not against the present owner. In this connection, it is useful to refer to the decision of the Apex Court in Shipping Corporation of India Ltd., Vs. Machado Brothers and others reported in 2004 (11) SCC 168, the relevant portion of which reads as follows:
“By the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice, which includes disposing of infructuous litigation. Continuation of a suit which has become infructuous by disappearance of the cause of action would amount to an abuse of the process of the court, and interest of justice requires that such suit should be disposed of as having become infructuuos. For the said purpose, it will be open to the parties concerned to make an application under Section 151 CPC to bring to the notice of the court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not.”
11. The lease deed dated 15.10.2002 between the first respondent and the second respondent is an unregistered document and it cannot be taken into account for any purpose since the same is violative of Section 107 of the Transfer of Properties Act and Section 17 of the Registration Act. Both the parties, the petitioner and the first respondent rely upon the same lease deed. The first respondent’s relies upon the lease deed to show that he has been granted a lease for a period of 9 years and the petitioner relies upon the lease deed on Clause 15 of the said lease deed, by which without assigning any reason, on a three months notice, the first respondent could be evicted.
12. The contention of the learned senior counsel for the first respondent is that he can be evicted from the premises only under due process of law. Due process of law means filing suit for recovery of possession. Normally, the present scenario is that if a suit for recovery of possession is filed before a District Munsif it would take not less than 5 years for the disposal. Then the First Appeal for another three or four years and Second Appeal before the High Court which will take another 10 to 15 years and thereafter the aggrieved party may prefer SLP to the Hon’ble Supreme Court, which will take another 5 to 7 years. Thus for the purpose of reaching finality in the litigation, more than 25 years would be required. Whether the person who has purchased the property or invested a huge sum for that purpose could be asked to wait for all these 25 years to get possession?
13. Admittedly, the property is a new building. The lease deed was executed between the second respondent and the first respondent on 15.10.2002 at the time of finishing stages of the construction of the building. Property tax has been assessed to the said property only from the year 2003 onwards. Under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act, the building which is less than 5 years old is exempted from the purview of the said Act. Section 30 of the Act reads as follows:
“30.EXEMPTION IN THE CASE OF CERTAIN BUILDINGS:- Nothing contained in this Act shall apply to–
“(i) any building for a period of five years from the date on which the construction is completed and notified to the local authority concerned;”
14. Therefore both the parties are not entitled to initiate any proceedings before the Rent Control Authorities and the only available mode for the petitioner is to file a suit for recovery of possession and for the first respondent, he can file a suit for injunction against the petitioner. Such litigation will prolong for several years as mentioned in Paragraph 12 supra. It is pertinent to note that under Clause 15 of the lease agreement without assigning any reason or three months notice, the first respondent has agreed to vacate the premises. It is now contended by the revision petitioner that the first respondent neither paid the rent nor handed over possession. Both the parties have gone to Police and cases have been registered against both parties. Both the parties have also filed Criminal Original Petitions against each other. The termination of Notice is dated 19.8.2006 and after receipt of notice nearly 9 months time have lapsed till today. It is also represented by the petitioner’s counsel that the first respondent is having several shops in the Chennai City and there is no difficulty for him to shift his materials to his other shops. Under these circumstances, I am of the opinion that if further time of six months is granted, i.e., till 30.9.2007 (thus a total period of 15 months), ends of justice would be met with and by 30.9.2007, the first respondent should vacate the premises and hand over possession to the petitioner. Till then, the first respondent should pay the contracted rent to the petitioner with entire arrears.
15. With the above direction, both the CRPs are disposed of. Consequently all the connected Miscellaneous Petitions are closed. No costs.
gkv
To
The Registrar,
City Civil Court,
Chennai.
[PRV/10290]