9911796707
TMI Blog2003 (1) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... A.D. post as well as by Courier calling upon the Defendant to pay the arrears of rent for the months of March 1998 to June 1998 within sixty days of the receipt of the said Notice. In this paragraph it is specifically averred that the notice was duly served upon the defendant Company on 23-7-1998. Thereafter in paragraph 10 it has again been reiterated that the cause of action arose on 23-9-1998 when the tenancy of the Defendant Company stood expressly terminated by the Plaintiff on the expiry of sixty days of the receipt of the Notice dated 8-7-1998, by the Defendant. The defence, in essence, is that "the plaintiffs have not served legal notice dated 8-7-1998 on the defendant in accordance with Clause 4( a ) of the Lease Deed. "Since pleadings of the parties would have to be appreciated paragraphs 6 and 10 are reproduced in juxtaposition: "6. That accordingly, the Plaintiffs served a legal notice dated 8-7-1998, on the defendant company. 6. The contents of para 6 of the plaint are wrong and denied. the Plaintiffs have not served the legal notice dated 8-7-1998 on ( sic ) by means of Registered A.D. post as well as by Courier. The Plaintiffs vide the said legal notice called u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination of tenancy has been sent in accordance with the terms of the lease deed and it is further denied that the tenancy of the defendant stood expressly terminated by the plaintiffs on the expiry of 60 days of the receipt of notice dated 8-7-1998. As the defendant has not sought the permission of BIFR before filing the present suit, the suit is liable to be dismissed. " 3. I cannot arrive at any conclusion other than that the Defendant admits the receipt of the notice, but disputes its legal efficacy. 4. Clause 4( a ) of the Lease Deed dated 11-7-1991 reads as under: "( a ) If the Company makes any default in payment of the monthly rents and/or commits any violation of its obligations herein contained then the Lease shall cease to be operative and the Lessor shall have the right to re-enter the demised premises and determine this lease without prejudice to any of their rights for any antecedent breach of the terms hereof provided that the lessor shall not be entitled to determine this Lease and exercise the right of re-entry as herein mentioned unless the lessors have served before-hand a written notice to the company requiring them to make good the defects or breac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecovery of dues is sought to be made by way of execution, distress or similar process against the property of the company. Proceedings for eviction instituted by a landlord against a tenant who happens to be a sick industrial company, cannot in our opinion, be regarded as falling in this category. We may, in this context, point out that, as indicated in the Preamble, the Act has been enacted to make special provisions with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of Experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined. The provisions regarding suspension of legal proceedings contained in section 22(1) seeks to advance the object of the Act by ensuring that a proceeding having an effect on the working or the finances of a sick industrial company shall not be instituted or continued during the period the matter is under consideration before the Board or the Appellate Authority or a sanctioned scheme is under implementation without the consent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of section 22 of the Act is certainly wide. But, in the totality of the circumstances the safeguard is only against the impediment, that is likely to be caused in the implementation of the scheme. If that be so, only the liability or amounts covered by the scheme will be taken in, by section 22 of the Act. So, we are of the view that though the language of section 22 of the Act is of wide import regarding suspension of legal proceedings from the moment an inquiry is started, till after the implementation of the scheme or the disposal of an appeal under section 25 of the Act, it will be reasonable to hold that the bar or embargo envisaged in section 22(1) of the Act can apply only to such of those dues reckoned or included in the sanctioned scheme. Such amounts like sales tax, etc., which the sick industrial company is enabled to collect after the date of the sanctioned scheme legitimately belonging to the Revenue, cannot be and could not have intended to be covered within section 22 of the Act. Any other construction will be unreasonable and unfair and will lead to a state of affairs enabling the sick industrial unit to collect amounts due to the Revenue and withhold it indefin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra ) do not inexorably lead to the conclusion that Court must, in all if cases, insist on evidence being taken even if it arrives at a considered opinion that no evidence is required for deciding a particular issue. There is no specific denial that the notice contemplated by Clause 4( a ) of the Lease Deed had been received. From the reading of the averments in the Written Statement what can be properly gathered is that while service of the notice was not denied, its legal efficacy was challenged. In view of the specific allegation in the plaint pertaining to the date on which the notice was served as also the availability of the postal receipt and the acknowledgment card, it was imperative for the Defendant to specifically and meaningfully traverse the averments in the plaint. The least that could have been averred in the Written Statement was that the notice was not served on the date mentioned in the plaint or on any other date, either by ordinary process or through registered post, acknowledgement due. What the Court should assume at this stage is that the notice was served and thereupon investigate whether the notice complied with the terms of Clause 4( a ) of the Lease Deed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent by the Plaintiff is not a valid notice under section 106 of the Transfer of Property Act," which obviously contains an admission that it had been received. In the extant statutory regime, tenancies are governed either by the Delhi Rent Control Act or the Transfer of Property Act. Where the monthly rental, at the time of the filing of the action is not above Rs. 3500, it is the former Act which applies with all its attendant rigorous for obtaining eviction of the Tenant. After the decision in D.C. Bhatia v. Union of India J.T. 1993 (7) SC 114, it is irrelevant when the tenancy commenced and at what initial rent. In the category of cases governed by the Transfer of Property Act, the tenant must be able to disclose that its tenure is protected by the covenants in a legally referable/readable Lease Deed. The fulcrum of the tenants defence remains this document alone. If the Lease Deed pertains to a tenancy tenure exceeding eleven months and it has not been registered, it cannot be read in evidence and the tenant is relegated to position of continuing in possession at the will sufferance of the landlord, from month to month. This is of great significance where renewals have al ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
