ARUN KUMAR TANDON Vs. AKASH TELECOM PRIVATE LIMITED

JUDGEMENT

(1.) By this petition, the petitioner has assailed an order dated 24th July, 2008 passed by learned Additional District Judge whereby an appeal filed by the petitioner against an order dated 3rd January, 2008 of learned Civil Judge was dismissed.

(2.) Brief facts relevant for the purpose of deciding this petition are that the petitioner is owner of a flat bearing No.3473, Sector D, Pocket III, ground floor, Vasant Kunj, New Delhi. He let out this flat to M/s. Akash Telecom Private Limited for residential purpose and the flat was occupied by Mr. Shiv Raj, respondent No.2, Director of M/s. Akash Telecom Private Limited. The flat was let out under a written agreement dated 10th May, 2003 for a period of 11 months. The rent of the flat as per the agreement was Rs.9,500/- exclusive of electricity and water charges and apart from rent vide a separate agreement, the tenant had agreed to pay Rs.4,000/- per month as maintenance charges. Thus, the total amount payable for use and occupation of the flat was Rs.13,500/- per month. Since the tenancy was for a period of 11 months, tenancy expired on 14th April, 2004. The petitioner filed a suit for possession of the tenanted premises from the respondents. The defence taken by the defendants was that the petitioner was given an advance security of Rs.39,000/-. As the petitioner was not in position to refund the security deposit of Rs.39,000/-, the petitioner then entered into an 'Agreement to Sell' with defendant No.2 and the amount of Rs.39,000/- was adjusted towards part sale consideration. The Agreement to Sell was entered into between the petitioner and respondent No.2, namely, Mr. Shiv Raj on 25th April, 2004 and the petitioner received a sum of Rs.4,50,000/- as part consideration against total consideration of Rs.35 lac and defendant No.2 was permitted to continue to hold the possession of the suit property till the deal was finalized. Thus, it was contended that defendant No.2 was in possession of the property in his own right and was not liable to either give the possession or pay the rent. The plaintiff in replication denied the execution of Agreement to Sell the premises and submitted that the market value of the flat was Rs.75 lac. He had not gone mad to sell it for Rs.35 lac. He stated that the document, namely, 'Agreement to Sell' relied upon by the defendant was a forged document. The plaintiff filed an application under Order 39 Rule 10 CPC read with Section 151 CPC seeking court's direction for defendant to pay arrears of rent with effect from 16th August, 2004 and to pay rent and maintenance charges @ Rs.13,500/- every month during pendency of suit. The learned Civil Judge dismissed this application against which the plaintiff preferred an appeal before the learned Additional District Judge which was also dismissed by the appellate court.

(3.) It is contended by counsel for the petitioner that both the courts below went wrong in relying upon the Agreement to Sell propounded by the defendants to deny the plaintiff his right to receive rent/user charges of the property of which he was lawful owner and which was in illegal occupation of the defendants. He submitted that the alleged 'Agreement to Sell' was on a plain paper and was not registered and was bearing no stamp duty. This Agreement to Sell could not even have been looked into by the courts below in view of provisions of Section 17 & 49 of Registration Act, Section 53 A of Transfer of Property Act and Section 35 read with Article 23 A of Indian Stamp Act. Learned counsel for the respondents states that this argument that the Agreement could not be looked into in view of the provisions of above Acts was being raised by the petitioner for the first time before this court and should not be considered.