Pradeep Kumar Jain v. Atma Ram Buiders (P) Ltd & Ors

RAJIV SAHAI ENDLAW, J. JULY 11, 2018 'PP'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 11th July, 2018 + RFA 1016/2017, CM No.43764/2017 (for stay) & CM No.43766/2017 (for condonation of 13 days delay). UDDAM SINGH JAIN CHARITABLE TRUST & ORS …. Appellants Through: Mr. Praveen Kapoor, Adv. versus ATMA RAM BUILDERS PVT LTD ..... Respondent Through: Mr. Amit Sethi and Mr. Ishan Khanna, Advs. for R-1. AND + RFA 1046/2017 & CM No.45960/2017 (for stay) and CM No.45962/2017 (for condonation of 140 days delay in filing appeal). PRADEEP KUMAR JAIN ..... Appellant Through: Mr. Rajesh Banati, Adv. versus ATMA RAM BUIDERS (P) LTD & ORS ..... Respondents Through: Mr. Amit Sethi and Mr. Ishan Khanna, Advs. for R-1. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Both the First Appeals, under Section 96 of the Code of Civil Procedure, 1908 (CPC), impugn the judgment and money decree dated 31st January, 2017 in CS No.11759/2016 against the appellants in both the appeals and in favour of the respondent no.1 / plaintiff in both appeals, consequent to the dismissal of the applications filed by the appellants in both appeals for leave to defend the suit filed under Order XXXVII of the CPC. 2. Vide order dated 20th December, 2017, notice of these appeals was ordered to be issued and subject to the appellant no.1 in RFA No.1016/2017 depositing 50% of the decretal amount in this Court, execution was stayed. Only Rs.2,50,000/-, being 50% of the principal amount, and not of the decretal amount, is stated to have been deposited. The appellants are thus in non-compliance of the order subject to which stay of execution was granted. 3. Be that as it may, the counsel for the appellants in RFA No.1016/2017 has been heard. 4. The sole argument of the counsel for the appellants is that the suit has been entertained under Order XXXVII of the CPC, without there being any contract between the parties and without there being any cheque or other negotiable instrument issued by the appellants in favour of the respondent no.1 / plaintiff. 5. Having gone through the file and having found the respondent no.1 / plaintiff to have sued under Order XXXVII of the CPC, in enforcement of the clause in the registered Lease Deed between the respondent no.1 / plaintiff and the appellant no.1 Trust in RFA No.1016/2017, and of which the other appellants as well as the other respondents are trustees, and on the basis of the payment made by the respondent no.1 / plaintiff to the Land & Development Office (L&DO), Government of India, I have enquired from the counsel for the appellants, whether not his contention, of there being no contract, is factually erroneous. 6. The counsel for the appellants however insists that there is no contract and only draws attention to page 59 of the paper book, being a copy of the letter dated 15th September, 1986 of the L&DO demanding the charges for unauthorised mezzanine in the portion of 'Jain Tube' and contends that the demand with respect to portion of Jain Tube cannot be recoverable from the appellants. 7. The aforesaid argument of the counsel for the appellants also is found to be contrary to record. 8. The counsel for the respondent no.1 / plaintiff has handed over in the Court a copy of a registered Lease Deed dated 31st December, 1982 referred to in the impugned order and which the appellants have chosen not to file. Upon the counsel for the appellants being confronted therewith, he admits that the same is on record of the Trial Court but has not been filed by the appellants before this Court. 9. The aforesaid shows that for the sake of gaining an order of admission, an argument contrary to record and on facts is being urged. 10. What has been held by the Suit Court and is otherwise borne out from the record is, (i) that the appellant no.1 Trust in RFA No.1016/2017 was a tenant in first floor with Private no.3,4,&5 and Municipal No.D-18, 19 & 20 of the building known as 'Hotel India' situated at D-Block, Connaught Place, New Delhi under the owners of the said bui