Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 01.05.2014
Pronounced on : 01.10.2014
+ CRP 21/2014, CM APPLs 3661-3662/2014
ALLAHABAD BANK ..... Petitioner
Through: Mr. C. Mukund with Mr. Ashok
Kr. Jain and Ms Ekta Bhasin
and Mr. Amit Kasera, Advs.
Versus
METAL BOX INDIA LIMITED ..... Respondent
Through: Mr. Abhinav Vashistha, Sr.
Advocate with Ms. Sunita
Hansh and Ms. Malvika
Trivedi, Advs.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI
1. This petition under Article 227 of the Constitution of India
seeks the setting aside of an order of the learned Trial Court dated
26.11.2013 in Civil Suit No. 140 of 2010. \it had dismissed the
petitioner‟s (defendant‟s) application under Order 7 Rule 11 of the
Code of Civil Procedure (CPC) wanting rejection of the plaint.
2. The respondent/plaintiff had filed a suit for declaration and
permanent injunction against the petitioner/defendant apropos the
second floor of the building known as Allahabad Bank Building
situated at 17, Parliament Street, New Delhi. The plaintiff‟s case was
CRP 21 of 2014 Page 1 of 13
that the defendant was disputing their rights and title in respect of the
tenanted premises in the aforesaid property and was threatening them
to invade into their legal rights. Hence, a declaration was sought to
the effect that the plaintiff had remained the lessee/tenant in respect of
the leased premises and furthermore, that nothing remained payable
apropos the tenanted premises, etc.
3. The impugned order disposed off three applications filed by the
parties: two filed by the plaintiff, one under Order 12 Rule 6 CPC and
another under Order 13 Rule 10 CPC, while the application under
Order 7 Rule 11 CPC had been filed by the defendant/bank. The Trial
Court dismissed the plaintiff‟s application under Order 12 Rule 6 CPC
since there was no clear and unambiguous admission by the
defendants. Apropos the petitioner‟s/defendant‟s application under
Order 7 Rule 11 CPC, seeking dismissal of the suit on the plea that it
was barred under the Public Premises Act, 1971 (P.P. Act), the Court
was of the view that, insofar as the possession of the premises had
already been taken over by the defendant, an eviction order was not
required under the PP Act, hence essentially the dispute was whether
the claim of damages can be recovered under the said Act. The Trial
Court reasoned that while the proceedings under the PP Act were with
respect to damages, the suit had sought declaration to the fact that the
plaintiff was a tenant till the time he had vacated the premises and
indeed he had already paid the rent for the period they had occupied
the premises, and all such dues had been paid after the date of handing
over of possession of the tenanted premises. This amount have been
CRP 21 of 2014 Page 2 of 13
accepted by the defendant/bank without any protest or demur. The
Court treated the issue as a mixed question of law and facts and was of
the view that prima facie there was no other forum to decide the
controversy. Hence, it did not deem it appropriate to dismiss the suit
summarily. The Court referred to the dicta of this Court in Swaran
Singh v. Surinder Kumar 2011 (179) DLT 136 which held that
“when issues have been framed the powers under Order 7 Rule 11
CPC should be used sparingly.” Since issues had already been framed
in the case, the Trial Court in view of the aforesaid reasoning had
dismissed the defendant‟s application under Order 7 Rule 11 CPC.
The Court was of the view that it could not be said that the plaint did
not disclose any cause of action.
4. Mr. C. Mukund, the learned counsel for the petitioner contends
that the proceedings under Section 7 the PP Act had started much
earlier in time and the subsequent civil suit was deliberately devoid of
vital facts. He contends that the suit did not disclose the correct facts
regarding the pendency of the proceedings under the Act and the
interim stay of the PP Act proceedings was by concealment of
pendency of such proceeding. The earlier PP Act proceedings initiated
by the defendant had claimed the following reliefs:
“(a) necessary orders be passed by the Ld. Estate Officer
for payment as stated hereunder:-
(i) Direction be issued upon the defendants to
pay the arrear lease rent and service charges
in respect of the suit premises till 31.03.1994
being the sum of Rs.16,16,604/- as per the
statement enclosed;
CRP 21 of 2014 Page 3 of 13
(ii) Direction be issued upon the defendant to
pay damages to be calculated @ Rs.
2,63,865.60p only per month inclusive of
service charges for the period from 1.4.94
till 31.7.06 as stated above this amount
comes to Rs.3,77,95,988/- as on 31.7.06.
(iii) Direction be also issued upon the defendant
to pay damages to be calculated @ Rs.115/-
per square feet per month excluding the
electricity and water charges as stated above
from 1.8.06 till 10.12.2007 i.e.
Rs.10,53,630/- p.m.
(iv) Direction be also issued upon the defendant
to pay the electricity and water charges
being the aggregate sum of Rs.72,06,255/-
till 10.12.2007 as stated above;
(v) Direction be issued upon the defendant to
pay interest to be calculated @ 18% monthly
rests on the damages/mesne profit as well as
on future mesne profits and on such charges
and claims from August 1993 till payment is
made;
(b) Further damages on account of use and occupation of the
premises by the defendant be also passed;”
5. The learned counsel submits that the Trial Court was not
competent to entertain the suit in view of the bar under Section 15 of
the Public Premises Act to jurisdiction of civil courts in respect of (i)
eviction of a person who is in unauthorised occupation of any public
premises and (ii) to claim of damages payable for occupation of the
public premises. He further submitted that although the tenancy
started sometimes in 1965, the lease tenure was renewed from time to
th
time. Later the parties contracted Lease Deed on 18 April 1990, the
CRP 21 of 2014 Page 4 of 13
initial and the extended tenure (as sought by the plaintiff/tenant in
their suit for specific performance) got over by efflux of time in 1998-
1999. He submitted that this lease too got over by efflux of time in
1994. The interim injunction in the plaintiff‟s said suit (No. 1433 of
1994) restraining the bank from taking steps to evict the respondent
was vacated in 2006. The injunction was vacated on 22.07.2006 by
the Trial Court which observed that the defendant bank was competent
to invoke the provisions of the PP Act against the plaintiff for
recovery of possession of the suit property. The eviction proceedings
were started on 09.10.2006. The respondent sought prohibitory orders
against the bank. The writ petition filed before this Court from
proceedings with the eviction case. The writ petition was disposed off
with certain directions on 10.01.2007. The respondent‟s LPA against
the said order was disposed off when it was observed that the eviction
case should proceed. On 20.2.07 the petitioner bank sought the relief
of damages under section 7 of the PP Act. Thereafter four petitions
were filed before this Court by the workers‟ union of the company
seeking quashing of the eviction petition. Subsequently on
10.12.2007, the respondent intimated they were no longer interested in
keeping the possession of the premises and were delivering vacant
possession of the same. While disposing off two writ petitions on
13.12.07, this Court observed that since the premises had been handed
over to the bank, the proceedings under Section 4 of the PP Act would
not survive. However, this Court observed „these writ petitions have
also become infructuous. They are disposed of as such. This order is
without prejudice to the other rights of the parties that they may have
CRP 21 of 2014 Page 5 of 13
under the PP Act, 1971 and Sick Industrial Companies (Special
Provisions) Act, 1985. However, soon thereafter the respondent/tenant
filed the suit for declaration and injunction (No.143/2008 in which the
impugned order was passed). It is submitted that in the petitioner‟s
proceedings in the P.P. Act, a Section 7 notice was issued for
10.04.2008. To subvert the PP Act proceedings the respondent on
05.04.2008, moved an application before the BIFR seeking reliefs
relating to arrears of damages without making petitioner bank a party
to the said proceeding. Four days later on 9.4.08, the aforesaid suit
was filed by the respondent. The learned counsel submits that their
WS was filed along with the application under Order 7 Rule 11 CPC
and an application under Order 39 Rule 4 CPC. Thereafter, the
respondent started filing applications under Order 6 Rule 7 CPC for
amendment of the plaint. Two such amendments were allowed in
succession and when the application under Order 7 Rule 11 CPC was
pressed the respondent filed the application under Order 12 Rule 6
CPC for decree on admissions.
6. The learned counsel submits that the suit is without jurisdiction
and is not maintainable before the Trial Court; that the petitioner bank
had at every stage pressed its application under Order 7 Rule 11, but it
was not being taken up; that its dismissal in a mechanical manner
cannot be sustained in law. The counsel further submits that the Trial
Court failed to exercise the vested right in it by law by not rejecting
the plaint, because the proceedings initiated earlier in time by the
petitioner/defendant under the PP Act were not only with respect to
CRP 21 of 2014 Page 6 of 13
the eviction of the respondent but also claimed payment of damages
for over stay etc; that the Trial Court erred in not finding that the
Estate Officer was in seisin of the issue as to what were the rights of
the respondent after 31.03.1994 i.e. after expiry of the first tenure of
the lease agreement dated 18.04.1990 and whether the tenant had paid
the rent or not or whether any amount had been paid in excess or
whether the possession was taken without protest. Since all these
issues were pending before the Estate Officer, learned counsel for the
petitioner submits, the Civil Court had no jurisdiction. He further
contends that the suit ought to have been rejected because it
suppressed and concealed the facts. He relied upon the following
judgments: (1977) 4 SCC 467 (T. Arvindam vs. T.V. Satyapal &
Anr.) (1994) 1 SCC 1 (S.P. Chengalvaraya Naidu (Dead) by LRs v.
Jagannath (Dead) by LRs and Ors.); (2010) 8 SCC 383
(Meghmala & Ors. V. G. Narasimha Reddy & Ors.); and (2012) 1
SCC 476 (Union of India & Ors. V. Ramesh Gandhi).
7. The learned counsel submits that the petitioner bank is not
precluded from raising a claim or demand for damages under the PP
Act. Therefore, no civil court can question the exercise of such right.
He submits that the respondent ought to have disclosed the correct fact
both before the BIFR as well as Civil Court which they have
deliberately not done.
8. In reply Mr. Abhinav Vashistha, learned Sr. Advocate for the
respondent submits that the issues were framed on 5.9.2013 and the
bank participated in leading evidence. The application under Order 7
CRP 21 of 2014 Page 7 of 13
Rule 11 CPC was dismissed on 26.11.2013; plaintiff‟s evidence was
recorded on 09.12.2013; he was cross examined by the defendant on
4.2.2014 but in the interim this revision petition had been filed in
January 2014. He submitted that in a case of highly disputed question
of facts the matter ought to be decided by a Civil Court. He relied
upon a judgment of this Court in Satish Chandra Sanwalka v. Tinplate
Dealers Association Pvt. Ltd. (2012) 5 AD (Delhi) 657 in support of
his arguments. The said judgment held that where the jurisdiction of
the Company Court under Section 155 of the Act and of the Civil
Court under Section 9 of CPC were concurrent, in a highly disputed
questions of fact the case ought to be decided by the Civil Court and
not by the Company Law Board. Hence, the learned Senior Advocate
submits it is preferable that highly disputed questions of fact such as
those in the present case, ought to be decided by the Civil Court. He
further submitted that PP Act would not be applicable in the present
case since the tenancy started in 1965 i.e. prior to the petitioner/bank
becoming a government company. He submits that the petitioner
bank got nationalised only after the enactment of The Banking
Companies (Acquisition and Transfer of Undertakings Act, 1970).
Furthermore, Public Premises Act too came into effect only after 1970
therefore, the subsequent statutes would not in any way, affect the
rights of the tenant which would otherwise be governed under the
Transfer of Property Act in particular, under Section 106 thereof. He
relied upon the case of Dr. Suhas H. Pophale vs. Oriental Insurance
Co. Ltd. And its Estate Officer 2014 (2) SCALE which held as under:
CRP 21 of 2014 Page 8 of 13
“44. In Ashoka Marketing (supra), this Court was
concerned with the premises of two Nationalised Banks
and the Life Insurance Corporation. As far as Life
Insurance Corporation is concerned, the life insurance
business was nationalised under the Life Insurance
Corporation Act, 1956. Therefore, as far as the
premises of LIC are concerned, they will come under
the ambit of the Public Premises Act from 16.9.1958, i.e
the date from which the Act is brought into force. As far
as Nationalised Banks are concerned, their
nationalization is governed by The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970,
and therefore, the application of Public Premises Act to
the premises of the Nationalised Banks will be from the
particular date in the year 1970 or thereafter. For any
premises to become public premises, the relevant date
will be 16.9.1958 or whichever is the later date on
which the concerned premises become the public
premises as belonging to or taken on lease by LIC or
the Nationalised Banks or the concerned General
Insurance Companies like the first respondent. All those
persons falling within the definition of a tenant
occupying the premises prior thereto will not come
under the ambit of the Public Premises Act and cannot
therefore, be said to be persons in “unauthorised
occupation”. Whatever rights such prior tenants,
members of their families or heirs of such tenants or
deemed tenants or all of those who fall within the
definition of a tenant under the Bombay Rent Act have,
are continued under the Maharashtra Rent Control Act,
1999. If possession of their premises is required, that
will have to be resorted to by taking steps under the
Bombay Rent Act or Maharashtra Rent Control Act,
1999. If person concerned has come in occupation
CRP 21 of 2014 Page 9 of 13
subsequent to such date, then of course the Public
Premises Act, 1971 will apply.
45. It is true that Section 15 of the Public Premises Act
creates a bar of jurisdiction to entertain suits or
proceedings in respect of eviction of any person in an
unauthorised occupation. However, as far as the
relationship between the respondent No. 1, the other
General Insurance Companies, LIC, Nationalised
Banks and such other Government Companies or
Corporations, on the one hand and their
occupants/licencees/tenants on the other hand is
concerned, such persons who are in occupation prior to
the premises belonging to or taken on lease by such
entities, will continue to be governed by the State Rent
Control Act for all purposes. The Public Premises Act
will apply only to those who come in such occupation
after such date. Thus, there is no occasion to have a
dual procedure which is ruled out in paragraph 66 of
Ashoka Marketing. We must remember that the
occupants of these properties were earlier tenants of
the erstwhile Insurance Companies which were the
private landlords. They have not chosen to be the
tenants of the Government Companies. Their status as
occupants of the Public Insurance Companies has been
thrust upon them by the Public Premises Act.”
9. Having considered the aforesaid, this Court is of the view that
the orders in the writ petition were limited only to the vacation of the
premises under section 4 of the PP Act. It reserved the rights of the
petitioner bank to pursue their claims as may be available under the
Act. Furthermore, the suit did not fully disclose the fact of the
pendency of proceedings seeking damages which was filed earlier in
CRP 21 of 2014 Page 10 of 13
time and which ought to have been so disclosed in the suit as well as
in the proceedings before the BIFR where, the petitioner-Bank was not
impleaded. Although the WS had been filed, the application under
Order 7 Rule 11, which was filed along with it was not taken up by the
Court any time prior to the framing of the issues and to recording of
evidence. If the Court did not decide the Order 7 Rule 11 application
earlier the petitioner applicant cannot be faulted for it. The
developments in the suit during the pendency of the application
questioning the very maintainability of the suit will not legitimate to it
nor confer jurisdiction upon a civil court which is otherwise barred
under Section 15 of the PP Act. Relevant portion of Section 15 of the
PP Act reads as under:
Reserved on : 01.05.2014
Pronounced on : 01.10.2014
+ CRP 21/2014, CM APPLs 3661-3662/2014
ALLAHABAD BANK ..... Petitioner
Through: Mr. C. Mukund with Mr. Ashok
Kr. Jain and Ms Ekta Bhasin
and Mr. Amit Kasera, Advs.
Versus
METAL BOX INDIA LIMITED ..... Respondent
Through: Mr. Abhinav Vashistha, Sr.
Advocate with Ms. Sunita
Hansh and Ms. Malvika
Trivedi, Advs.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI
1. This petition under Article 227 of the Constitution of India
seeks the setting aside of an order of the learned Trial Court dated
26.11.2013 in Civil Suit No. 140 of 2010. \it had dismissed the
petitioner‟s (defendant‟s) application under Order 7 Rule 11 of the
Code of Civil Procedure (CPC) wanting rejection of the plaint.
2. The respondent/plaintiff had filed a suit for declaration and
permanent injunction against the petitioner/defendant apropos the
second floor of the building known as Allahabad Bank Building
situated at 17, Parliament Street, New Delhi. The plaintiff‟s case was
CRP 21 of 2014 Page 1 of 13
that the defendant was disputing their rights and title in respect of the
tenanted premises in the aforesaid property and was threatening them
to invade into their legal rights. Hence, a declaration was sought to
the effect that the plaintiff had remained the lessee/tenant in respect of
the leased premises and furthermore, that nothing remained payable
apropos the tenanted premises, etc.
3. The impugned order disposed off three applications filed by the
parties: two filed by the plaintiff, one under Order 12 Rule 6 CPC and
another under Order 13 Rule 10 CPC, while the application under
Order 7 Rule 11 CPC had been filed by the defendant/bank. The Trial
Court dismissed the plaintiff‟s application under Order 12 Rule 6 CPC
since there was no clear and unambiguous admission by the
defendants. Apropos the petitioner‟s/defendant‟s application under
Order 7 Rule 11 CPC, seeking dismissal of the suit on the plea that it
was barred under the Public Premises Act, 1971 (P.P. Act), the Court
was of the view that, insofar as the possession of the premises had
already been taken over by the defendant, an eviction order was not
required under the PP Act, hence essentially the dispute was whether
the claim of damages can be recovered under the said Act. The Trial
Court reasoned that while the proceedings under the PP Act were with
respect to damages, the suit had sought declaration to the fact that the
plaintiff was a tenant till the time he had vacated the premises and
indeed he had already paid the rent for the period they had occupied
the premises, and all such dues had been paid after the date of handing
over of possession of the tenanted premises. This amount have been
CRP 21 of 2014 Page 2 of 13
accepted by the defendant/bank without any protest or demur. The
Court treated the issue as a mixed question of law and facts and was of
the view that prima facie there was no other forum to decide the
controversy. Hence, it did not deem it appropriate to dismiss the suit
summarily. The Court referred to the dicta of this Court in Swaran
Singh v. Surinder Kumar 2011 (179) DLT 136 which held that
“when issues have been framed the powers under Order 7 Rule 11
CPC should be used sparingly.” Since issues had already been framed
in the case, the Trial Court in view of the aforesaid reasoning had
dismissed the defendant‟s application under Order 7 Rule 11 CPC.
The Court was of the view that it could not be said that the plaint did
not disclose any cause of action.
4. Mr. C. Mukund, the learned counsel for the petitioner contends
that the proceedings under Section 7 the PP Act had started much
earlier in time and the subsequent civil suit was deliberately devoid of
vital facts. He contends that the suit did not disclose the correct facts
regarding the pendency of the proceedings under the Act and the
interim stay of the PP Act proceedings was by concealment of
pendency of such proceeding. The earlier PP Act proceedings initiated
by the defendant had claimed the following reliefs:
“(a) necessary orders be passed by the Ld. Estate Officer
for payment as stated hereunder:-
(i) Direction be issued upon the defendants to
pay the arrear lease rent and service charges
in respect of the suit premises till 31.03.1994
being the sum of Rs.16,16,604/- as per the
statement enclosed;
CRP 21 of 2014 Page 3 of 13
(ii) Direction be issued upon the defendant to
pay damages to be calculated @ Rs.
2,63,865.60p only per month inclusive of
service charges for the period from 1.4.94
till 31.7.06 as stated above this amount
comes to Rs.3,77,95,988/- as on 31.7.06.
(iii) Direction be also issued upon the defendant
to pay damages to be calculated @ Rs.115/-
per square feet per month excluding the
electricity and water charges as stated above
from 1.8.06 till 10.12.2007 i.e.
Rs.10,53,630/- p.m.
(iv) Direction be also issued upon the defendant
to pay the electricity and water charges
being the aggregate sum of Rs.72,06,255/-
till 10.12.2007 as stated above;
(v) Direction be issued upon the defendant to
pay interest to be calculated @ 18% monthly
rests on the damages/mesne profit as well as
on future mesne profits and on such charges
and claims from August 1993 till payment is
made;
(b) Further damages on account of use and occupation of the
premises by the defendant be also passed;”
5. The learned counsel submits that the Trial Court was not
competent to entertain the suit in view of the bar under Section 15 of
the Public Premises Act to jurisdiction of civil courts in respect of (i)
eviction of a person who is in unauthorised occupation of any public
premises and (ii) to claim of damages payable for occupation of the
public premises. He further submitted that although the tenancy
started sometimes in 1965, the lease tenure was renewed from time to
th
time. Later the parties contracted Lease Deed on 18 April 1990, the
CRP 21 of 2014 Page 4 of 13
initial and the extended tenure (as sought by the plaintiff/tenant in
their suit for specific performance) got over by efflux of time in 1998-
1999. He submitted that this lease too got over by efflux of time in
1994. The interim injunction in the plaintiff‟s said suit (No. 1433 of
1994) restraining the bank from taking steps to evict the respondent
was vacated in 2006. The injunction was vacated on 22.07.2006 by
the Trial Court which observed that the defendant bank was competent
to invoke the provisions of the PP Act against the plaintiff for
recovery of possession of the suit property. The eviction proceedings
were started on 09.10.2006. The respondent sought prohibitory orders
against the bank. The writ petition filed before this Court from
proceedings with the eviction case. The writ petition was disposed off
with certain directions on 10.01.2007. The respondent‟s LPA against
the said order was disposed off when it was observed that the eviction
case should proceed. On 20.2.07 the petitioner bank sought the relief
of damages under section 7 of the PP Act. Thereafter four petitions
were filed before this Court by the workers‟ union of the company
seeking quashing of the eviction petition. Subsequently on
10.12.2007, the respondent intimated they were no longer interested in
keeping the possession of the premises and were delivering vacant
possession of the same. While disposing off two writ petitions on
13.12.07, this Court observed that since the premises had been handed
over to the bank, the proceedings under Section 4 of the PP Act would
not survive. However, this Court observed „these writ petitions have
also become infructuous. They are disposed of as such. This order is
without prejudice to the other rights of the parties that they may have
CRP 21 of 2014 Page 5 of 13
under the PP Act, 1971 and Sick Industrial Companies (Special
Provisions) Act, 1985. However, soon thereafter the respondent/tenant
filed the suit for declaration and injunction (No.143/2008 in which the
impugned order was passed). It is submitted that in the petitioner‟s
proceedings in the P.P. Act, a Section 7 notice was issued for
10.04.2008. To subvert the PP Act proceedings the respondent on
05.04.2008, moved an application before the BIFR seeking reliefs
relating to arrears of damages without making petitioner bank a party
to the said proceeding. Four days later on 9.4.08, the aforesaid suit
was filed by the respondent. The learned counsel submits that their
WS was filed along with the application under Order 7 Rule 11 CPC
and an application under Order 39 Rule 4 CPC. Thereafter, the
respondent started filing applications under Order 6 Rule 7 CPC for
amendment of the plaint. Two such amendments were allowed in
succession and when the application under Order 7 Rule 11 CPC was
pressed the respondent filed the application under Order 12 Rule 6
CPC for decree on admissions.
6. The learned counsel submits that the suit is without jurisdiction
and is not maintainable before the Trial Court; that the petitioner bank
had at every stage pressed its application under Order 7 Rule 11, but it
was not being taken up; that its dismissal in a mechanical manner
cannot be sustained in law. The counsel further submits that the Trial
Court failed to exercise the vested right in it by law by not rejecting
the plaint, because the proceedings initiated earlier in time by the
petitioner/defendant under the PP Act were not only with respect to
CRP 21 of 2014 Page 6 of 13
the eviction of the respondent but also claimed payment of damages
for over stay etc; that the Trial Court erred in not finding that the
Estate Officer was in seisin of the issue as to what were the rights of
the respondent after 31.03.1994 i.e. after expiry of the first tenure of
the lease agreement dated 18.04.1990 and whether the tenant had paid
the rent or not or whether any amount had been paid in excess or
whether the possession was taken without protest. Since all these
issues were pending before the Estate Officer, learned counsel for the
petitioner submits, the Civil Court had no jurisdiction. He further
contends that the suit ought to have been rejected because it
suppressed and concealed the facts. He relied upon the following
judgments: (1977) 4 SCC 467 (T. Arvindam vs. T.V. Satyapal &
Anr.) (1994) 1 SCC 1 (S.P. Chengalvaraya Naidu (Dead) by LRs v.
Jagannath (Dead) by LRs and Ors.); (2010) 8 SCC 383
(Meghmala & Ors. V. G. Narasimha Reddy & Ors.); and (2012) 1
SCC 476 (Union of India & Ors. V. Ramesh Gandhi).
7. The learned counsel submits that the petitioner bank is not
precluded from raising a claim or demand for damages under the PP
Act. Therefore, no civil court can question the exercise of such right.
He submits that the respondent ought to have disclosed the correct fact
both before the BIFR as well as Civil Court which they have
deliberately not done.
8. In reply Mr. Abhinav Vashistha, learned Sr. Advocate for the
respondent submits that the issues were framed on 5.9.2013 and the
bank participated in leading evidence. The application under Order 7
CRP 21 of 2014 Page 7 of 13
Rule 11 CPC was dismissed on 26.11.2013; plaintiff‟s evidence was
recorded on 09.12.2013; he was cross examined by the defendant on
4.2.2014 but in the interim this revision petition had been filed in
January 2014. He submitted that in a case of highly disputed question
of facts the matter ought to be decided by a Civil Court. He relied
upon a judgment of this Court in Satish Chandra Sanwalka v. Tinplate
Dealers Association Pvt. Ltd. (2012) 5 AD (Delhi) 657 in support of
his arguments. The said judgment held that where the jurisdiction of
the Company Court under Section 155 of the Act and of the Civil
Court under Section 9 of CPC were concurrent, in a highly disputed
questions of fact the case ought to be decided by the Civil Court and
not by the Company Law Board. Hence, the learned Senior Advocate
submits it is preferable that highly disputed questions of fact such as
those in the present case, ought to be decided by the Civil Court. He
further submitted that PP Act would not be applicable in the present
case since the tenancy started in 1965 i.e. prior to the petitioner/bank
becoming a government company. He submits that the petitioner
bank got nationalised only after the enactment of The Banking
Companies (Acquisition and Transfer of Undertakings Act, 1970).
Furthermore, Public Premises Act too came into effect only after 1970
therefore, the subsequent statutes would not in any way, affect the
rights of the tenant which would otherwise be governed under the
Transfer of Property Act in particular, under Section 106 thereof. He
relied upon the case of Dr. Suhas H. Pophale vs. Oriental Insurance
Co. Ltd. And its Estate Officer 2014 (2) SCALE which held as under:
CRP 21 of 2014 Page 8 of 13
“44. In Ashoka Marketing (supra), this Court was
concerned with the premises of two Nationalised Banks
and the Life Insurance Corporation. As far as Life
Insurance Corporation is concerned, the life insurance
business was nationalised under the Life Insurance
Corporation Act, 1956. Therefore, as far as the
premises of LIC are concerned, they will come under
the ambit of the Public Premises Act from 16.9.1958, i.e
the date from which the Act is brought into force. As far
as Nationalised Banks are concerned, their
nationalization is governed by The Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970,
and therefore, the application of Public Premises Act to
the premises of the Nationalised Banks will be from the
particular date in the year 1970 or thereafter. For any
premises to become public premises, the relevant date
will be 16.9.1958 or whichever is the later date on
which the concerned premises become the public
premises as belonging to or taken on lease by LIC or
the Nationalised Banks or the concerned General
Insurance Companies like the first respondent. All those
persons falling within the definition of a tenant
occupying the premises prior thereto will not come
under the ambit of the Public Premises Act and cannot
therefore, be said to be persons in “unauthorised
occupation”. Whatever rights such prior tenants,
members of their families or heirs of such tenants or
deemed tenants or all of those who fall within the
definition of a tenant under the Bombay Rent Act have,
are continued under the Maharashtra Rent Control Act,
1999. If possession of their premises is required, that
will have to be resorted to by taking steps under the
Bombay Rent Act or Maharashtra Rent Control Act,
1999. If person concerned has come in occupation
CRP 21 of 2014 Page 9 of 13
subsequent to such date, then of course the Public
Premises Act, 1971 will apply.
45. It is true that Section 15 of the Public Premises Act
creates a bar of jurisdiction to entertain suits or
proceedings in respect of eviction of any person in an
unauthorised occupation. However, as far as the
relationship between the respondent No. 1, the other
General Insurance Companies, LIC, Nationalised
Banks and such other Government Companies or
Corporations, on the one hand and their
occupants/licencees/tenants on the other hand is
concerned, such persons who are in occupation prior to
the premises belonging to or taken on lease by such
entities, will continue to be governed by the State Rent
Control Act for all purposes. The Public Premises Act
will apply only to those who come in such occupation
after such date. Thus, there is no occasion to have a
dual procedure which is ruled out in paragraph 66 of
Ashoka Marketing. We must remember that the
occupants of these properties were earlier tenants of
the erstwhile Insurance Companies which were the
private landlords. They have not chosen to be the
tenants of the Government Companies. Their status as
occupants of the Public Insurance Companies has been
thrust upon them by the Public Premises Act.”
9. Having considered the aforesaid, this Court is of the view that
the orders in the writ petition were limited only to the vacation of the
premises under section 4 of the PP Act. It reserved the rights of the
petitioner bank to pursue their claims as may be available under the
Act. Furthermore, the suit did not fully disclose the fact of the
pendency of proceedings seeking damages which was filed earlier in
CRP 21 of 2014 Page 10 of 13
time and which ought to have been so disclosed in the suit as well as
in the proceedings before the BIFR where, the petitioner-Bank was not
impleaded. Although the WS had been filed, the application under
Order 7 Rule 11, which was filed along with it was not taken up by the
Court any time prior to the framing of the issues and to recording of
evidence. If the Court did not decide the Order 7 Rule 11 application
earlier the petitioner applicant cannot be faulted for it. The
developments in the suit during the pendency of the application
questioning the very maintainability of the suit will not legitimate to it
nor confer jurisdiction upon a civil court which is otherwise barred
under Section 15 of the PP Act. Relevant portion of Section 15 of the
PP Act reads as under:
| “15. Bar of jurisdiction. No court shall | ||
|---|---|---|
| have jurisdiction to entertain any suit or | ||
| proceeding in respect of-- |
(e) the recovery of--
(iv) any portion of such rent, damages, costs of
removal, expenses of demolition or costs
awarded to the Central Government or the
statutory authority.”( emphasis supplied)
10. It is settled law that jurisdiction is a fundamental issue which
needs to be determined before any forum can proceed to entertain an
application. In the absence of jurisdiction, the entire proceeding
would be non est in law. This Court in RFA (OS) No.6/1993 titled
DDA v. Naresh Kumar & Ors. decided on 30.9.2013, has held that in
view of the clear bar to any court having jurisdiction to entertain any
CRP 21 of 2014 Page 11 of 13
suit or proceeding in respect of the eviction of any person who is in
unauthorised occupation of the public premises, the learned Single
Judge had no jurisdiction to proceed with the suit and pass the
judgment and decree. The Supreme Court in Harshad Chiman Lal
Modi v. DLF Universal Ltd., (2005) 7 SCC 791 on the issue of
invalidity/illegitimacy of the proceedings due to lack of jurisdiction
has held:
“It is well settled and needs no authority that “where a
court takes upon itself to exercise a jurisdiction it does not possess, its
decision amounts to nothing”
. A decree passed by a court
having no jurisdiction is non est and its invalidity can
be set up whenever it is sought to be enforced as a
foundation for a right, even at the stage of execution or
in collateral proceedings. A decree passed by a court
without jurisdiction is a coram non judice”
11. Whether the tenancy was to be construed as a continuance of
the 1965 tenancy or a fresh one as per the 1990 lease deed whereby it
would be undeniably deemed to be „public premises‟ under Section
2(e) of the PP Act were issues that could have been determined by the
Estate Officer. This Court is of the view that the Trial Court had no
jurisdiction to proceed with the suit because it lacked jurisdiction.
Insofar as the parties had agreed to a fresh lease agreement in 1990,
they would be bound by the same. Indeed, the tenanted had sought
specific performance of the same. This agreement was executed after
the coming into effect of the Public Premises Act. Therefore it would
be covered under the said Act. Hence, it could not be in continuation
of the old tenancy initiated in 1965. The respondent tenant had chosen
to become a tenant of a public bank i.e. an entity described and
CRP 21 of 2014 Page 12 of 13
covered in Section 2 of the Act since it is established under the Bank
Nationalisation Act. Therefore, the bar under Section 15 of the PP Act
would come into operation.
12. In view of the aforesaid, this Court is of the view that the
impugned order suffers from material irregularity and ought to be set
aside. Accordingly, the impugned order is quashed. Consequently,
the plaint is rejected. No orders as to costs.
NAJMI WAZIRI
(JUDGE)
OCTOBER 01, 2014/ acm
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