M/S. RAJ ENGCON PROJECTS (I) LIMITED, A COMPANY REGISTERED UNDER THE INDIAN COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT PRESENT AT 62, NALINI SETH ROAD, FIRST FLOOR, KOLKATA Vs. M/S. SAHARA INDIA HOUSING LIMITED HAVING ITS HEAD OFFICE/REGISTERED OFFICE AT SAHARA INDIA BHAWAN, I KAPPORTHALA COMPLEX, ALIGANJ, LUCKNOW

JUDGEMENT

(1.) This is plaintiff's appeal against the order dated 15.09.2011 passed in Eviction Suit No.19 of 2008, where under the Sub Judge-IV, Patna, allowed the applications of the defendants-respondent nos.1 and 2 filed under Order 7, Rule 11 (a) and (d) of the Code of Civil Procedure, rejecting the plaint of the plaintiff-appellant.

(2.) In brief the case is that the plaintiff is the absolute owner of the multistoried building situated at Boring Canal Road, Patna, consisting of basement ground to seventh floors, which is popularly known as Raj Tower , over an area of 23,328 square fts. The defendant no.3, Sri D.K. Srivastava, while working in the office of M/s. Sahara India having its head/registered office at 1, Kapoor Thalla Complex, Aliganj, Lucknow, as Deputy Senior Coordination Worker in the Zonal Office, patna, situated at 2nd Floor, Mona Commercial Complex, East Gandhi Maidan, approached the plaintiff in the month of Nov. 1993 for taking the part of the Raj Tower Building comprising part of the basement and entire 3rd to 7th floors on monthly rent for a fixed period of eleven months. The plaintiff agreed and let out the same to M/s. Sahara India on a monthly rent of Rs.52,250 and maintenance charge of Rs.50,250.00, total of Rs.1,02,500.00 per month for a period of eleven months with effect from 01.12.1993 to 31.10.1994. M/s. Sahara India through the defendant no.3, Sri D.K. Srivastava, came in possession over the said entire premises on 01.12.1993, accordingly, the memorandum of lease incorporating the terms and conditions of the tenancy was executed on 01.12.1993 in between the plaintiff and M/s. Sahara India through the defendant no.3, Sri D.K. Srivastava. While the premises in suit was under occupation of M/s. Sahara India as tenant, the plaintiff on negotiation for sale of the entire tenanted premises entered into a memorandum of understanding executed in between the plaintiff and defendant no.2, M/s. Sahara India Savings and Investment Corporation Limited through its Managing Director and authorised signatory Sri Subrata Roy on 11.01.1994. Subsequently, on receipt of earnest money, the agreement for sale was executed in between the plaintiff and the defendant no.2, M/s. Sahara India Savings and Investment Corporation Limited through the Managing Director, Sri Subrata Roy on 02.02.1994 incorporating the terms and conditions agreed upon in between the parties. Subsequently, the name of Sahara India Savings and Investment Corporation Limited changed as M/s. Sahara Indian Financial Corporation Limited. M/s. Sahara India did not pay monthly rent for any month during the period of said fixed period of lease as per the terms and conditions agreed upon for payment of rent but, however, on expiry of the said period of lease, M/s. Sahara India through the defendant no.3, Sri D.K. Srivastava, Deputy Senior Coordination Worker, Zonal Office, Patna, vacated the entire premises under tenancy and handed over the possession to the plaintiff on 31.10.1994 with undertaking to pay the entire arrears of rent for the eleven months through demand draft at the earliest. Defendant no.3, Sri D.K. Srivastava, through letter dated 01.11.1994 paid 50% rent, i.e., Rs.5,63,750.00 through Bank Draft to the plaintiff. After vacating of the entire premises by M/s. Sahara, the plaintiff let out the said entire suit premises to the defendant no.1, M/s. Sahara India Housing Limited for a fixed period of eleven months with effect from 01.11.1994 to 30.09.1995 on a monthly rent of Rs.56,375.00 and maintenance charge of Rs.56,375.00, total Rs.01,12,750.00 per month. The defendant no.1, M/s. Sahara India Housing Limited, through Sri N.K. Pal came in possession of the entire suit premises on 01.11.1994 as a tenant for a fixed period of eleven months and, accordingly, a memorandum of lease on 1st of Nov., 1994 incorporating the terms and conditions of the tenancy as agreed upon in between the parties was executed. According to the agreement, the monthly rent of the premises in suit was payable in the first week of every month in advance but the defendant no.1, failed to make payment of the monthly rent as per the said terms of the tenancy and deliberately. The defendant no.1 without obtaining consent of the plaintiff deliberately and collusively brought its other sister concern's office, namely, Sahara India Financial Corporation Limited, the defendant no.2, and other sister concern/s offices in the suit premises, violating the terms of the tenancy. After 01.11.1994, the plaintiff began to make request orally as well as in writing about the payment of the balance rent of Rs.5,63,750.00 of the first lease and rent of second lease. In response to the request of the plaintiff, the defendant no.3, Sri D.K. Srivastava, took up the matter admitting tenancy of its sister concern as its own wrote a letter dated 15.11.1995 to the plaintiff on behalf of Sahara India Savings and Investment Corporation Limited, defendant no.2, as its Chief Controller, agreeing to pay the balance arrear of rent of first lessee M/s. Sahara India, but denied the arrear of rent of the second lease saying that rent agreement is not mentioned in the agreement to sale while memorandum of lease and agreement to sale has no concern each other. However, he stated in the letter that in case any problem arises, the matter will be sorted out amicably. According to letter dated 15.11.1995 written by defendant no.3, a meeting between the plaintiff and defendants was held and it was decided that the defendant no.2 shall pay the arrears of rent of the second lease period upto 30.09.1995 and, thereafter, the defendants will continue as monthly tenants on month to month basis till the defendant no.2 as per terms of the agreement to sale gets the sale deed executed and will pay the current rent with increase of 20% in every financial year, over the last rent which was payable for Sept., 1995, i.e., over Rs.1,12,750.00 and in case of failure to pay the rent, the plaintiff shall adjust all the arrears and current rent from the earnest money paid towards purchase of the same space. Sri D.K. Srivastava as Chief Controller Zonal Office, Patna, on behalf of Sahara India Financial Corporation Limited accepting as tenant of the plaintiff paid the balance rent of Rs.5,63,750.00 of the first lease vide letter dated 01.01.1996 and also paid rent for the second lease for five months amounting to Rs.5,63,750.00 vide letter dated 26.07.1996, i.e. from Nov., 1994 to March, 1995 to the plaintiff for and on behalf of the lessee M/s. Sahara India Housing Limited, the defendant no.1. The plaintiff also accepted the defendant no.2 as its tenant and accepted the monthly rent paid by the defendant no.2. Thereafter, the defendant no.1 in collusion with its sister concern's companies, the defendant no.2 and the defendant no.3, deliberately violated the terms of tenancy incorporated under the memorandum of lease dated 01.11.1994 and failed to make payment of the monthly rent of the premises in suit. Even the defendant no.2 paid rent of the second lease upto March 1995 but did not pay further rent even on several requests of the plaintiff, then the plaintiff as per already agreed decision began to adjust the arrears of rent and current rent from the earnest money paid by the defendant no.2, M/s. Sahara India Savings Investment Corporation Limited under agreement to sale dated 02.02.1994. The plaintiff after adjusting the earnest money towards the monthly rent of the suit premises regularly to send the accounts to the defendant no.2. The monthly rent on calculation of its yearly increasement has been adjusted by the plaintiff out of the earnest money paid by the defendant no.2 and the said sister company of the defendant no.1 and it has fully been adjusted upto part rent only of the Feb., 2005 but part rent for Feb., 2005, i.e., Rs.1,74,122.00 remained due and unpaid. The defendant no.1 in collusion with defendant nos.2 and 3 and their officers are neither making payment of the monthly rent of the suit premises nor vacating the suit premises. The cause of action for the suit arose on 01.11.1994 when the defendant no.1 occupied the suit premises of the plaintiff as monthly tenant for a fixed period of eleven months, on the date when the defendant no.1 went in collusion with its other sister company and paid the rent only for five months. On much persuasion the defendants requested the plaintiff to adjust the earnest money paid by its sister's concern company, the defendant no.1, against the dues amount of the monthly rent, on the date the entire earnest money has been adjusted towards the dues of the monthly rental but in spite of request the defendants did not pay the monthly rental of the suit premises and, lastly, on 30.04.2008, the defendants refused to vacate the suit premises and clear the dues of arrears of rent.

(3.) The defendant nos.1 and 2 filed separate applications under Order-VII Rule 11 (a) and (d) of the Code of Civil Procedure with prayer to reject the plaint of the plaintiff. The defendant no.1 filed its application under Order 7, Rule 11 (a) and (d) of the Code of Civil Procedure on 06.01.2009 with contention that this defendant entered into agreement for only eleven months tenancy with effect from 01.11.1994 with plaintiff. The defendant no.1 ceased to be the tenant of the suit premises after 31.03.1995. Thereafter, the plaintiff handed over the vacant suit premises to the defendant no.2 in part performance of the registered agreement to sale dated 02.02.1994 after receipt of 95% of the sale consideration as the proposed purchaser. In view of the terms of the fixed tenancy agreement dated 01.11.1994, the plaintiff is not entitled to claim the relief sought in the plaint after the period of limitation as no cause of action subsisted against the defendant no.1 after three years, i.e., after 1998. It is further stated that the defendant no.1 came to know that due to a dispute having arisen between the plaintiff and the defendant no.2 with regard to execution of the sale deed in pursuance to the registered agreement to sale dated 02.02.1994, the defendant no.2 by virtue of the arbitration clause contained in registered agreement to sale filed Request Case No.3 of 2001 before this Court against the plaintiff in which the plaintiff appeared and the said Request Case No.3 of 2001 was finally disposed of by this Court vide order dated 22.04.2002 appointing Mr. Justice Bimlendu Narain Sinha (Retired) as the sole arbitrator with direction to enter into reference and to decide the matter. In view of the order dated 22.04.2002, the defendant no.2 and the plaintiff have appeared before the Arbitrator and submitted statement of claims and counter claims before the arbitrator and the arbitration proceeding is going on before the Arbitrator. As such, in view of Sections 5 and 8 of the Arbitration and Conciliation Act, 1996, not only civil court but all judicial authorities are restrained from intervening in the matter and, as such, the present suit is not maintainable.