Back
2014 Supreme(P&H) 306
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajiv Narain Raina
Civil Revision No.4915 of 2013 (O&M)
Ravi Bansal
v.
M/s Maa Bhagwati Associates
{Decided on 21/04/2014}
For the Respondent:Mr. Sunil Chadha, Sr. Advocate with Mr. Manish Bansal, Advocate.
Headnote:Partnership--Unregistered Firm--In the case of an unregistered partnership firm one partner duly authorised by the remaining partners under properly executed General Power of Attorney could act for the remaining partners in bringing suit.
Transfer of Property--Notice Terminating Tenancy--License Agreement--After expiry of period in notice terminating the license then common law rights can be pressed irrespective of the terms of licensee agreement and there are no legally available defences as aviable under tenancy laws.
(A) Civil Procedure Code, 1908, O.6 R.17--Amendment of Pleading--Proposed amendments are purely pleas for which no additional evidence is required--Held; Law is not to be pleaded or proved--It is always open to parties to canvass legal pleas at any stage of proceedings--Application was rightly dismissed. (Para 19)
(B) Partnership Act, 1932, S.69(2)--Unregistered Firm--In the case of an unregistered partnership firm one partner duly authorised by the remaining partners under properly executed General Power of Attorney could act for the remaining partners in bringing suit.
Merely, because the suit was brought in the name and style of the firm through partner Sawhney is not sufficient ground to non-suit the plaintiff-respondent--Though an unregistered partnership firm cannot sue in its own name, since it is not a juristic person but can sue only through its partners if all of them have agreed and consented to sue by executing GPAs to empower one of its partners then the suit can well lie and cannot be thrown out as not maintainable. (Para 50)
(C) Lease and License--License Agreement between the parties--Landlord terminating licensee before period of license--Held;
(i) A simple notice to quit is sufficient to terminate the license--Whether it was mentioned that notice was under Section 106 TPA or not is not significant.
(ii) None of the provision of Contract Act and Transfer of Property Act would be applicable is case license is governed by a Easement Act.
(iii) Only remedy aviable to licensee is to claim damages for breach of terms of license but breach of terms cannot be used are defence to continue possession. (Paras 43 to 45)
(D) Lease and Licence--Lease Agreement--It is per se is not strictly a contract in relation to property such as a lease deed or a Rent Note is--It is a mere licence, voluntarily signed by the defendant--It was open to the defendant not to accept the licence and look for better options in the very beginning to do his business. (Para 46)
(E) Transfer of Property Act, 1882, S.106--Notice Terminating Tenancy--License Agreement--After expiry of period in notice terminating the license then common law rights can be pressed irrespective of the terms of licensee agreement and there are no legally available defences as available under tenancy laws. (Para 37)
(F) Transfer of Property Act, 1882, S.106--Notice Terminating Tenancy--In an action brought under section 106 of the TPA, there are no statutory protections or safeguards offered to a tenant under licence, the defences under the rent laws being not available as statutory protections in a proceeding started through section 106 of the TPA. (Para 39)
(G) Transfer of Property Act, 1882, S.106--Notice terminating Tenancy--License Agreement between the parties does not protect or give immunity against such action initiated by a simple quit notice--Even if the suit is found to be a device to evict the defendant by foreclosing the licence, it was legally permissible to the plaintiff to choose not to act on the Licence Agreement but by resort to remedies lawfully available to enforce and preserve his common law right to regain possession of property let out to a licencee. (Para 34)
(H) Easement Act, Ss.63 & 64--Notice terminating License Agreement--Only Remedy aviable to licensee for breach of license/Contract is to claim damages--Landlord terminated license agreement before expiration of license period--Licensee has only remedy to claim damages for breach of terms but defence of non-expiry of license period is not available to him--Transfer of Property Act, 1882, S.106. (Para 38)
(I) Transfer of Property Act, 1882, S.106--Notice Terminating Tenancy--License agreement between the parties--If the plaintiff resorted to an independent private right to remedy under the TPA, the provisions of which were not mutually excluded in the licence agreement by express or necessary implication, then such an agreement is not immune from proceedings arising from section 106 of the TPA. (Para 39)
(J) Transfer of Property Act, 1882, S.106--Notice Terminating Tenancy--License agreement between the parties--Held; S.106 TPA itself would not be applicable since it deals with leases and their determination and that licensee or how they can be foreclosed.
Mr. Rajiv Narain Raina, J.:- In this petition the order dated 15th July, 2013 (P-7) passed by the learned Civil Judge (Senior Division), Panchkula in Civil Suit No.35 of 2009; M/s Maa Bhagwati Associates v. Ravi Bansal is challenged. The application filed by the defendant, the petitioner before this Court, under Order VI Rule 17 of the Code of Civil Procedure (for short the ‘Code’) in the suit praying for amending the written statement has been declined. The application was filed on 22nd March, 2013 together with an application under Order VII Rule 11 of the Code praying for rejection of the plaint on the ground that section 69 (2) of the Indian Partnership Act, 1932 (for short the ‘IPA’) barred the suit. The plaintiff firm, which is the owner and landlord of the disputed premises, filed replies to the both the applications on 4th April, 2013. The application under Order VI Rule 17 of the Code was dismissed on 15th July, 2013 and the one under Order VII Rule 11 was rejected on 19th July, 2013. A last opportunity was given to the defendant to lead his entire evidence on 1st August, 2013. For his inability to lead the remaining evidence on the date fixed, the defendant’s evidence has been closed by the impugned order dated 1st August, 2013.
2. Against the order dismissing the application for amendment, the petitioner has filed CR No.4915 of 2013. A separate petition has been filed impugning the order dismissing the application under Order VII Rule 11 of the Code which is CR No.4923 of 2013. The third petition i.e. CR No.4894 of 2013 has been filed against the order dated 1st August, 2013 closing the defendant’s evidence by order on 1st August, 2013.
3. The three petitions were taken up and heard together and are being disposed of by this common judgment and order.
4. The facts common to the three petitions which are necessary for decision making and not disputed may be noticed.
5. The petitioner is the sole proprietor of firm M/s New Bansal Electronics run in a part of the ground floor and basement of Shop-cum- Office No.385, Sector 8, Panchkula and is the defendant in the suit. The plaintiff firm and its partners are the landlord of SCO No.385, Sector 8, Panchkula then run under an unregistered partnership deed. Shri Harish Kumar Sawhney (for short ‘Sawhney’) is the general power of attorney holder of several partners of the firm which is the plaintiff in the suit and respondent herein.
6. Sawhney in his capacity as holder of general power of attorney of the partners of the plaintiff acting on behalf of all the partners entered into an Agreement of Licence (henceforth ‘Licence Agreement’) with the defendant, the present petitioner, letting out a part of the SCO and handing over possession of the demised premises to him. The Licence Agreement was executed by the parties on 2nd May, 2004. The licence was to expire on 14th April, 2014. An amendment extended the life till 30th April, 2014.
7. On 23rd December, 2008 plaintiff instituted a suit against the defendant for possession by ejectment from the demised premises. A prayer was also made for recovery of Rs. 38,234/- being arrears of rent together with recovery of pendente lite and future mesne profits @ Rs. 4 lacs per month together with pendente lite and future interest @ 12% per annum on principal amount.
8. The present suit was filed in the Court of Civil Judge (Senior Division), Panchkula after serving notice under section 106 of the Transfer of Property Act, 1882 (in short ‘TPA’) upon the defendant determining his licence. Indisputably, the Haryana Urban (Control of Rent & Eviction) Act, 1973 was then not applicable to the building, a part of which was licenced to the defendant. Notice under the TPA had the effect of cutting short the life of the licence by determining it claiming eviction. The defendant appeared in the suit on 4th February, 2009. He filed his written statement and reply to the injunction application on 4th May, 2009. Suffice it to say that the obj
