Delhi District Court
Shri G. D. Chopra vs Mrs. Manorma Vaid on 23 January, 2013
IN THE COURT OF SH. VINOD KUMAR GAUTAM
ACJcumARC : (NORTH) DELHI.
In Re : Suit no. 855/2008
Unique Case ID No. 02401C0489832006.
Shri G. D. Chopra
S/o Shri H. K. Chopra,
R/o B22, Greater KailashII,
New Delhi. ...............Plaintiff.
Versus.
Mrs. Manorma Vaid
W/o Shri N. K. Vaid,
R/o A/72, New Friends Colony,
New Delhi.
or
B22, Greater KailashII,
New Delhi. ............Defendant.
Date of Institution of Suit : 17/02/1993
Date on which Order was reserved : 16/01/2013
Date of Pronouncement of Order : 23/01/2013
J U D G M E N T
The brief facts of the case are that the plaintiff is the owner
of the property bearing no. B22, Greater Kailash EnclaveII, New Delhi
Suit no. 855/2008 Page No. 1 / 30
(hereinafter referred as "Suit Property"). The plaintiff has let out the
entire first floor of the suit property to the defendant on a monthly rent of
Rs.3600/ for which a lease deed dated 25.01.1992 was executed
between the parties which expired on 24.01.1993 but the defendant
failed to vacate the suit property despite service of notice dated
24.11.1992 and notice dated 07.01.1993 upon the defendant. Hence,
the plaintiff filed the present suit and has prayed therein for passing a
decree of possession in his favour and against the defendant in respect
of the suit property and for passing a money decree for a sum of
Rs.10,800/ with interest from the date of filing of the suit till realization
and future damages at the rate Rs.7,200/ from the date of filing of the
present suit till the possession is delivered back to the plaintiff.
Written statement was filed by the defendant submitting
therein that on 09.04.1990, the plaintiff had entered into an agreement
with the defendant for sell of the entire suit property for Rs.80,000,00/
and the defendant in pursuant of the said agreement also paid
Rs.1,01,000/ to the plaintiff through cheque of Rs.51,000/ and cash of
Rs.50,000/. The defendant has further averred that in pursuant to the
Suit no. 855/2008 Page No. 2 / 30
said agreement to sell, the plaintiff also executed a Power of Attorney in
favour of the defendant whereby the plaintiff authorized the defendant to
take legal steps to evict the tenants from the suit property. The
defendant has further averred that on 12.04.1990, the defendant further
paid a sum of Rs.12,00,000/ in cash by two separate receipts of
Rs.6,00,000/ each and on 23.04.1990, the plaintiff applied for obtaining
the permission to sell the suit property under Section 269 UC (37) (I)
which was jointly signed by the parties and on 15.06.1990, the
permission to sell the suit property was also granted by the appropriate
authorities. The defendant has further averred that on 04.08.1990, the
defendant paid a sum of Rs.78,99,000/ through account payee cheque
to the plaintiff as a further payment in pursuant to the agreement to sell.
The defendant has further averred that on 14/16.08.1990, the plaintiff
and the defendant also entered into an agreement whereby the
defendant agreed to sell to the plaintiff the built up space of 3200 Sq.
yards in the suit property for Rs.80,00,000/ in the proposed building to
be constructed by the defendant and the plaintiff gave a cheque of
Rs.80,00,000/ to the defendant. The defendant has further averred that
in the year 1983 only single storey of the suit property was built up and
Suit no. 855/2008 Page No. 3 / 30
the plaintiff had entered into an agreement with one Shri J. P. Shadh for
letting out the first floor of the suit property to Shri J. P. Shadh for a rent
of Rs.2500/ with further agreement for construction of the first floor in
the suit property by Sh. J. P. Shadh out of his own funds which was to
be treated as a loan to the plaintiff. The defendant has further averred
that the plaintiff had filed a case for eviction against Sh. J. P. Shadh
which was later on compromised between them on 27.04.1987 and the
loan amount due against the plaintiff stood reduced to Rs.70,000/. The
defendant has further averred that on 25.01.1992, she on behalf of the
plaintiff had paid a sum of Rs.70,000/ to Sh. J. P. Shadh in full and final
settlement of the loan due upon the plaintiff and thereafter, the said loan
was assigned in favour of the defendant. The defendant has further
averred that she had paid a sum of Rs.30,000/ to Sh. J. P. Shadh
towards the one time premium for transferring /assigning all his tenancy
rights in favour of the defendant. The defendant has further averred that
Sh. J. P. Shadh vacated the first floor of the suit property and handed
over the possession of the same to the defendant. The defendant has
further averred that on 25/01/1992, a lease deed was executed between
the plaintiff, defendant and Shri J. P. Shadh and a separate lease deed
Suit no. 855/2008 Page No. 4 / 30
was also executed between the plaintiff and the defendant in which inter
alia it was agreed that the tenanted premises would be taken on lease
by the defendant on a monthly rent of Rs.3600/ per month and the
arrangement was made only to give financial aid to the plaintiff during
the period of implementation of the agreement dated 09.04.1990. The
defendant has further averred that the debt of Rs.70,000/ was
separately discharged through memorandum of payment executed
between the plaintiff and the defendant and the amount of Rs.70,000/
was treated as further part payment towards the agreement dated
09.04.1990. The defendant has further averred that she had paid
Rs.3600/ per month regularly to the plaintiff up till September, 1993.
The defendant has further averred that the defendant was already in
possession of the first floor of the suit property, however, on 01.10.1993,
the plaintiff handed over the vacant peaceful possession of the entire
first floor of the suit property in pursuant to the agreement to sell dated
09.04.1990, thereby, the tenancy created by and between the plaintiff
and the defendant vide agreement dated 25.01.1992 stood surrendered
and thereafter, the defendant is in possession of the suit property in
pursuant to the agreement to sell dated 09.04.1990. The defendant has
Suit no. 855/2008 Page No. 5 / 30
further averred that she has performed her part of the contract and the
plaintiff has breached the terms of the contract. The defendant has
prayed for the dismissal of the suit with heavy cost.
Replication to the Written Statement was filed by the
plaintiff denying the averments made in the Written Statement and has
reiterated and reaffirmed those of the plaint. The plaintiff has denied the
cause of action of agreement to sell dated 09.04.1990 between the
parties for sell of the suit property and has submitted that the defendant
did not perform her part of the agreement and did not pay the amount of
Rs.80,000,00/ as mentioned in the agreement, therefore, the
agreement dated 09.04.1990 and Power of Attorney were cancelled by
a letter dated 07.07.1991. The plaintiff has further denied that the
defendant paid any payment to the plaintiff in pursuant to the agreement
to sell dated 09.04.1990 or the plaintiff had executed the receipt for the
same. The plaintiff has further submitted that in the midnight of
16.08.1990, the defendant called the plaintiff at his meeting place and
asked the plaintiff to sign some papers as paper transaction for the
purpose of income tax record. The plaintiff has further submitted that
Suit no. 855/2008 Page No. 6 / 30
physically no cheque for Rs.78,99,000/ was given to him, however,
receipt was taken at midnight. It is further submitted that by
misrepresentation, fraud and coercion the defendant got a cheque from
the plaintiff for a sum of Rs.80,00,000/ in the garb that it would be a
paper transaction. The plaintiff has further submitted that the moment
he came to know about the fraud, he immediately stopped the payment
of the cheque on 17.08.1990 and the defendant also never presented
the cheque as it was in her knowledge that no transaction infact took
place either regarding the cheque of Rs.78,99,000/ or for the cheque of
Rs.80,00,000/. It is further submitted that the payment made by the
defendant to Sh. J. P. Shadh was made by her in her own interest to get
the suit property on rent on 25.01.1992. The plaintiff has denied that the
tenancy rights were transferred in favour of the defendant and has
submitted that the fresh tenancy was created as per the lease deed. It
is further submitted that Shri J. P. Shadh had handed over the
possession of the suit property to the plaintiff and the plaintiff handed
over the possession of the same to the defendant as per the lease deed
dated 25.01.1992. It is further submitted that at the time of creation of
the lease deed dated 25.01.1992, the defendant got a document from
Suit no. 855/2008 Page No. 7 / 30
the plaintiff showing about the handing over the possession and
incidentally it was without date and it seems that the defendant has
converted the said document by putting a false date i.e. 01.10.1993 and
the same is not in handwriting of the plaintiff. It is further submitted that
it has not been mentioned in any of the documents that the possession
was handed over in pursuant to the agreement dated 09.04.1993 and
the said agreement was cancelled much earlier. The plaintiff has
denied the other averments of the Written Statement.
On the pleadings of the parties, following issues were
framed by my learned predecessor vide order dated 30/09/1995 :
1.Whether relationship of landlord and tenant existed between the parties ? OPP
2. Whether possession of the defendant is protected u/s 53A of Transfer of Property Act ? OPD
3. Whether the plaintiff is entitled to recovery of possession of suit premises ? OPP
4. Whether the plaintiff is entitled to recovery of Rs.10,800/ as claimed ? OPP Suit no. 855/2008 Page No. 8 / 30
5. Whether the plaintiff is entitled to damages ? if so, at what rate and for which period ? OPP
6. Relief.
Thereafter, the plaintiff has examined himself as PW1 and in his examinationinchief he has filed on record various documents i.e. lease deed as Ex.P1, copy of notice sent to the defendant on 24/11/1992 as Ex.P2, postal receipt as Ex.P3, certificate from the post office as Ex.P4, notice sent by learned counsel for the plaintiff to the defendant as Ex.P5, postal receipt as Ex.P6, UPC as Ex.P7, the rent receipts filed by the defendant as Ex.PW1/D1 to Ex.PW1/D9, notice for cancellation of agreement to sell dated 09/04/1990 as Ex.P8, postal receipt as Ex.P9, acknowledgment as Ex.P10 and the site plan as Ex.PW1/11.
Thereafter, the defendant has examined Sh. Aditya Vikram Vaid as DW1 and Sh. Arun Vohra as DW2, who have filed their evidence by way of affidavits, reiterating and reaffirming the stand taken by the defendant in her Written Statement.
Suit no. 855/2008 Page No. 9 / 30
DW1 has filed on record various documents i.e. Articles of Understanding as Ex.PW1/D10, receipt of Rs.50,000/ as Ex.PW1/D11 and receipt of Rs.51,000/ as Ex.DW1/3, agreement to sell dated 09/04/1990 as Ex.DW1/2, power of attorney executed by the plaintiff in favour of the defendant as Ex.PW1/D12, two receipts of Rs.6 lacs each as Ex.DW1/4 and DW1/5, permission letter obtained from Income Tax Authority as Ex.DW1/6, receipt dated 04/08/1990 for Rs.78,99,000/ issued by the plaintiff as Ex.PW1/D13, offer letter dated 14/08/1990 of the plaintiff as Ex.PW1/D14, agreement letter dated 16/08/1990 for the offer made by the plaintiff to purchase a space of 3200 sq. feet in the suit property to be constructed by the defendant as Ex.PW1/D15, copy of compromise entered between the plaintiff and Sh. J. P. Shadh in the court of Sh. J. M. Malik, the then learned A.R.C., Delhi is MarkZ, receipt dated 25/01/1992 executed by Sh. J. P. Shadh as Ex. DW1/7, agreement executed between the plaintiff, Sh. J. P. Shadh and the defendant for assignment of debt as Ex.PW1/D16, possession letter dated 25/01/1992 executed by Sh. J. P. Shadh in favour of the defendant as Ex.DW1/8, lease deed dated 25/01/1992 executed Suit no. 855/2008 Page No. 10 / 30 between the plaintiff, the defendant and Sh. J. P. Shadh executed to get the suit property vacated from Sh. J. P. Shadh as Ex.PW1/D17, memorandum of payment executed between the plaintiff and the defendant for an amount of Rs.70,000/ which is to be treated as further part payment towards agreement to sell as Ex.PW1/D18, possession letter executed by the plaintiff dated 01/10/1993 with regard to the suit property in favour of the defendant as Ex.DW1/9 and the carbon copy of the said undated letter as Ex.DW1/10.
I have heard the final arguments advanced by the learned counsel for the parties and have perused the records of the case and the authorities relied by the parties.
My findings on the issues are as follows :
ISSUE NO.1 : Whether relationship of landlord and tenant existed between the parties ? OPP ISSUE NO.2 : Whether possession of the defendant is protected Suit no. 855/2008 Page No. 11 / 30 u/s 53A of Transfer of Property Act ? OPD The issues no.1 and 2 are taken up together for discussions as both these issues are interconnected and require appreciation of common facts and evidence. It is an admitted case of the parties that the lease deed Ex.P1 was executed between them for letting out the first floor of the suit property to the defendant on a monthly rent of Rs.3600/. However, the case of the defendant is that on 09/04/1990 the plaintiff and the defendant in pursuant to Articles of Understanding dated 21/12/1989, Ex.PW1/D10 had entered into an agreement to sell of the suit property vide Ex.DW1/2 and the defendant on 01/10/1993 was put in possession of the suit property in pursuant to the Ex.DW1/2, therefore, her possession is protected under the doctrine of part performance under Section 53 of the Transfer of Property Act.
On the other hand, the case of the plaintiff is that the execution of the Ex.DW1/2 and the Ex.P1 are two separate and independent transactions and the document, Ex.DW1/2 was earlier cancelled by the plaintiff as the defendant did not perform her part of the contract and the Ex.P1 was executed between the parties subsequently Suit no. 855/2008 Page No. 12 / 30 for letting out the suit property to the defendant.
The plaintiff has deposed in his examinationinchief that the agreement to sell, Ex.DW1/2 was cancelled by him by notice dated 07/07/1991, Ex.P8 which was served on the defendant through postal receipt, Ex.P9 and acknowledgment, Ex.P10. There is no question or suggestion being put in the cross examination of the plaintiff on behalf of the defendant to deny the fact of receiving of the notice, Ex.P8 by the defendant. Therefore, the receiving of the Ex.P8 is deemed to be admitted by the defendant.
The case of the plaintiff is that the receipt dated 01/10/1993, Ex.DW1/9 is a forged document as there was no date mentioned in Ex.DW1/10 which is a carbon copy of Ex.DW1/9 and which was filed by the defendant at the time of filing of the Written Statement and the date was filled up later on by the ink in Ex.DW1/9. The plaintiff has deposed in his examinationinchief that he never signed any receipt or document on 01/10/1993. DW1 has deposed in his examinationinchief that due to inadvertence or oversight the date on Ex.DW1/10 was not typed and Suit no. 855/2008 Page No. 13 / 30 the date was written by ink on Ex.DW1/9. The testimony of the DW2 that he was present at the time of the execution of the Ex.DW1/9 can not be relied upon as in his crossexamination he has denied the suggestion of the plaintiff that at the time of typing and signing of the Ex.DW1/9 the date as October 1, 1993 was not mentioned. The denial of the aforesaid suggestion by the DW2 also contradict the case of the defendant that the date on Ex.DW1/10 was not typed due to inadvertence. There is a merit in the contention of the learned counsel for the plaintiff that the Ex.DW1/9 is a forged document as if the document had been executed on 01/10/1993 then in the normal course of circumstances, the date would have been mentioned in the Ex.DW1/9 and the date column would not have been left blank. Moreover, the leaving of blank space in the date column in Ex.DW1/9 further substantiate the case of the plaintiff that the said document was got signed by the defendant from the plaintiff earlier on some other pretext and not on 01.10.1993.
The case of the defendant is that the lease deed, Ex.P1 was entered between the parties so as to provide financial help to the Suit no. 855/2008 Page No. 14 / 30 plaintiff as the plaintiff was facing financial hardship due to vacation of the suit property by the tenant. The defendant except the bare testimony of the DW1 has not led any other evidence to substantiate her case that the lease deed, Ex.P1 was executed between the parties for providing financial help to the plaintiff during the subsistence of the agreement to sell, Ex.DW1/2. There is no such terms mentioned in the Ex.DW1/2 with regard to providing financial help by the defendant to the plaintiff during the subsistence of the Ex.DW1/2. If there were any such agreement between the parties with regard to providing of financial help by the defendant to the plaintiff of a specific amount as a rent then in that case, nothing would have prevented the parties to incorporate such kind of arrangement as one of the terms and conditions of Ex.DW1/2. Even there is no such clause mentioned in Ex.P1 to show that the lease deed was executed for providing the financial help by the defendant to the plaintiff. In the normal course of circumstances, if there were any such arrangement between the parties, then the same would have been incorporated in Ex.P1 or Ex.DW1/2 as one of the terms and conditions of the of the aforesaid agreement. The contention of the learned counsel for the plaintiff that there was a relationship of landlord and Suit no. 855/2008 Page No. 15 / 30 tenant between the parties has been further substantiated by the rent receipts, Ex.PW1/D1 to Ex.PW1/D9 which proves that the rent was being paid by the defendant regularly in respect of the suit property.
The learned counsel for the plaintiff has relied on a case titled as Janki Vashdeo Bhojwani & another Vs. Indu Singh Bank Ltd. & Others wherein it has been held by the Hon'ble Supreme Court that power of attorney cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which principal is liable to be crossexamined. In the present case also the defendant has not come to the witness box to prove that the Ex.P1 was executed between the parties for providing financial help to the plaintiff till the subsistence of the agreement to sell, Ex.DW1/2. Therefore non examination of the defendant and depriving the plaintiff the opportunity to cross examine the defendant also calls for an adverse inference against the defendant.
The learned counsel for the plaintiff has also relied on a case titled as Asman Investments Ltd. Vs. K. L. Suneja and another 181 Suit no. 855/2008 Page No. 16 / 30 (2011) DLT 156 wherein also the defendant has taken the plea that there was a registered agreement to sell executed between the parties.
The Hon'ble High Court of Delhi in the aforesaid case has held that if two deeds in question embodied separate and independent transactions then the lease transaction was not a sham transaction but was independent of agreement to sale and it is not open to rely on oral evidence to consider whether they were part of same transaction. In the present case, DW1 has admitted that on 25/01/1992 the tenancy of Shri J. P. Shadh was transferred to the defendant. There is a merit in the contention of the learned counsel for the plaintiff that the alleged payment made by the defendant to Shri J. P. Shadh is a separate transaction and has no concern with the present case and that any payment made by the defendant to Shri J. P. Shadh in her own interest. In the present case also there were two transactions between the parties, one was for agreement to sell and the other was for lease agreement and the latter one was executed subsequently. Therefore, in view of the aforesaid authority relied by the plaintiff and in the absence of any documentary evidence, the oral testimonies of DW1 and the DW2 that both the aforesaid transactions were part of the same Suit no. 855/2008 Page No. 17 / 30 transaction can not be relied upon especially when the plaintiff has already cancelled the former transaction of agreement to sell vide notice Ex.P8.
In the aforesaid case, the Hon'ble High Court of Delhi has further held that in a suit for specific performance, a plaintiff has to aver and prove that he was always and continued to be ready and willing to perform his part of the bargain. The learned counsel for the plaintiff has also relied on a case titled as A. Lewis and another Vs. M. T. Ramamurthy and others (2007) 14 SCC 87, wherein it has been held by the Hon'ble Supreme Court that a benefit of Section 53A of the Transfer of Property Act would not be available, if the transferee kept quite and remained passive without taking effective steps and that he must also perform his part of the contract and convey his willingness.
The learned counsel for the plaintiff has also relied on a case titled as Sushila Kumari Vs. Rama Stores, 120 (2005) DLT 479 wherein it has been held by the Hon'ble High Court of Delhi that the defendants have to establish that they have part performed and ready Suit no. 855/2008 Page No. 18 / 30 and willing to comply their obligation.
In the present case, the defendant has not led any evidence to prove that she has taken any action against the plaintiff in respect of the Ex.DW1/2 or has filed any suit against the plaintiff in respect of the specific performance of the agreement to sell, Ex.DW1/2 or that she was always continued to be ready and willing to perform her part of the agreement. The defendant has also not led any evidence to prove that she has issued any notice to the plaintiff with regard to her willing and ready to perform her part of the agreement. The defendant has also failed to prove that the required balance amount was ready and available with the defendant. DW1 has also admitted in his cross examination that the defendant was having no money in the bank. It is also an admitted case of the defendant that no separate legal proceedings have been initiated by the defendant against the plaintiff with regard to the agreement to sell Ex.DW1/2.
The plea of the defendant that her possession is protected under Section 53A of the Transfer of Property Act would have been Suit no. 855/2008 Page No. 19 / 30 valid, if the defendant had taken the possession of the suit property in pursuant to the agreement to sell, Ex.DW1/2. However, admittedly, the possession of the suit property was given to the defendant on 25/01/1992 in pursuant to the lease deed, Ex.P1 and not in pursuant to the agreement to sell, Ex.DW1/2. Therefore, the contention of the learned counsel for the defendant that the defendant was given the possession of the suit property on 01/10/1993 in pursuant to the agreement to sell, Ex.DW1/2 is highly improbable as the defendant was already in possession of the suit property since 25/01/1992 and was paying rent of the suit property to the plaintiff. The contention of the learned counsel for the defendant that the defendant was given the possession on 01/10/1993 is also otherwise not believable as the plaintiff has already filed the present suit against the defendant in the month of February, 1993 for recovery of the suit property from the defendant. Therefore, when the parties are already under litigation, it is highly improbable that the plaintiff would had handed over the possession of the suit property during the pendency of the present suit on 01/10/1993 and thereafter had continued with the present suit. Suit no. 855/2008 Page No. 20 / 30
The learned counsel for the plaintiff has relied on a case titled as Sunil Kapoor Vs. Himmat Singh and others, 167 (2010) DLT 806 wherein it has been held by the Hon'ble High Court of Delhi that the defence of legal agreement to sell is not a legal defence available to petitioner in a suit for ejectment. In the present case also, in view of the aforesaid authority, the defence taken by the defendant of an execution of agreement to sell between the parties is not a legal defence which is available to the defendant.
The plaintiff has deposed that he has never received Rs.12 lakhs from the defendant and the receipts, Ex.DW1/4 and DW1/5 are forged documents. The contention of the plaintiff is substantiated by the fact that the date on the receipt has been mentioned as 02/04/1990 whereas the agreement to sell was entered on 09/04/1990. Therefore, any payment in pursuant to the agreement to sell, Ex.DW1/2 would not have been before 09/04/1990 on which date the agreement to sell, Ex.DW1/2 was executed between the parties. Even there is no clause in Ex.DW1/2 which shows that the defendant has to make the payment on 02/04/1990 or 12/04/1990 or any amount was paid on 02/04/1990. Suit no. 855/2008 Page No. 21 / 30 Therefore, the question of making the payment by the defendant on the aforesaid dates would not have been arisen. Therefore, there is a merit in the contention of the learned counsel for the plaintiff that when there is no clause to this effect then the defendant was not bound to make the payment of Rs.12,00,000/ to the plaintiff. It is an admitted case of the parties that the agreement to sell in respect of the suit property was entered between the parties for an amount of Rs.80 lacs. Therefore, if the defendant had made the payment of Rs.12 lacs on 02/04/1990, then the balance amount would have come to Rs.66,99,000/ and not Rs.78,99,000/. The receipt of Rs.78,99,000/ dated 04/08/1990 would not have been taken by the defendant especially when there is no such written condition between the parties for making any extra payment as part payment with regard to the suit property. As per clause 5 of the Ex.DW1/2 the defendant was to make the payment of Rs.8,99,000/ to the plaintiff after obtaining the permission by the plaintiff from the Income Tax Department in Form 37I and after handing over of the possession of the portions of the plaintiff to the defendant. It is an admitted case of the parties that the aforesaid permission was received on 15/06/1990. However, the payment has been alleged by the Suit no. 855/2008 Page No. 22 / 30 defendant to be made on 12/04/1990 which was not as per the terms of the agreement between the parties and even the payment was made in excess as to what was agreed to be paid as part payment. Even, admittedly, the possession of the suit property was not handed over by the defendant to the plaintiff nor the defendant has led any evidence to prove that she had taken any action by sending a notice to the plaintiff for handing over the possession of the suit property. The case put up by the defendant at the time of the cross examination of DW1 is that the possession of the suit property was not taken by the defendant from the plaintiff even after making of the payment because the plaintiff had requested the defendant that he wanted to have an alternate accommodation to shift from the suit property and the plaintiff had given the assurance to the defendant that he will shift after twothree months of the receiving of the permission from the Income Tax Department. The aforesaid case put in the cross examination of the DW1 can not be relied upon as the same is beyond pleadings of the defendant and the said explanation has been given for the first time in the cross examination of the DW1. The defendant has also not produced herself in the witness box to prove that any such arrangement was made Suit no. 855/2008 Page No. 23 / 30 between the parties which calls for drawing an adverse inference against the defendant. The defendant has also not led any evidence to prove that the plaintiff has sought the time for handing over the possession of the suit property to the defendant at the time of making of alleged payment of Rs.12,00,000/ to the plaintiff. Two receipts Ex.DW 1/4 and Ex.DW1/5 are also not witnessed by any witness when there are the witness to the other document which substantiates the contention of the plaintiff with regard to the receipts being forged and not genuine.
The case of the plaintiff is that the cheque for an amount of Rs.78,99,000/ was not given by the defendant to the plaintiff, though the receipt Ex.PW1/D13 was executed by him. The DW1 has admitted in his cross examination that the cheque of Rs.78,99,000/ was not encashed by the plaintiff. The fact of non encashment of the aforesaid cheque further substantiates the case of the plaintiff that the defendant was not willing and ready to perform her part of the contract which is further substantiated by the testimony of the DW1 who has stated in his cross examination that there was no money in the bank. Suit no. 855/2008 Page No. 24 / 30
The plaintiff in his cross examination has deposed that he did not enter into any memorandum of agreement about payments to the defendant after the cancellation of the agreement to sell, Ex.DW1/2. There is also no suggestion on behalf of the defendant that the plaintiff had executed any memorandum of agreement about payments to the defendant after cancellation of the Ex.DW1/2. The case of the plaintiff is that the said transaction was not materialized and the cheque of Rs.80 lacs given by the plaintiff to the defendant was stopped payment by the plaintiff on the next day. There is merit in the contention of the learned counsel for the plaintiff that the transaction of giving offer by the plaintiff to the defendant vide Ex.PW1/D14 was a separate transaction and not concerned with the present case.
Therefore, the plaintiff has been successful to prove that there was a relationship of landlord and tenant between the parties. On the other hand, the defendant has failed to prove that she was put in the possession of the suit property in pursuant to the agreement to sell Ex.DW1/2. Hence, the issues no.1 and 2 are decided in favour of the plaintiff and against the defendant.
Suit no. 855/2008 Page No. 25 / 30
ISSUE NO.3 : Whether the plaintiff is entitled to recovery of possession of suit premises ? OPP The onus to prove this issue was upon the plaintiff. The plaintiff has deposed in his examinationinchief that the suit property was let out to the defendant vide lease deed Ex.P1 which expired on 24/01/1993 and the plaintiff had served a notice dated 24/11/1992, Ex.P2 upon the defendant vide postal receipt, Ex.P3, certificate from the post office Ex. P4 and also vide notice Ex.P5 sent by the plaintiff through his advocate vide post receipt Ex.P6, UPC, Ex.P7. The case of the defendant is that the lease deed Ex.P1 is not a registered document and the notice regarding the termination of the tenancy was not served upon the defendant. Learned counsel for the plaintiff has relied on a case titled as Jeevan Diesels and Electricals Ltd. Vs. M/s. Jasbir Singh Chadha (HUF) & Anr., 182 (2011) DLT 402, wherein it has been held by the Hon'ble High Court of Delhi that the suit plaint itself can be taken as notice terminating the tenancy and if there was no registered lease deed for leased premises then the tenancy stands Suit no. 855/2008 Page No. 26 / 30 terminated after 15 days of receipt of service of summons and suit plaint and the tenancy will be on month to month basis, which would be terminated by notice under Section 106 of Transfer of Property Act. In the present case there is no specific suggestion put on behalf of the defendant in the crossexamination of the plaintiff to deny that the plaintiff has not served the notice for termination vide Ex.P3 to P7. It is also not the case of the defendant that she is not residing at the address at which the notices Ex.P2 and Ex.P5 were served. The defendant has not led any evidence to prove that the Ex.P3 to Ex.P7 are forged and fabricated documents. The plaintiff has proved that the notices Ex.P2 and Ex.P5 were served upon the defendant. Even otherwise, in view of the aforesaid authority, the suit plaint can be taken as a notice for termination of tenancy. There is no merits in the contention of the learned counsel of the defendant that the lease deed, Ex.P1 cannot be looked into as being not registered. In the present case the defendant has admitted the relationship of landlord and tenant between the parties. The tenancy is also proved by the rent receipts, Ex.PW1/D1 to Ex.PW1/D9. Even otherwise, the tenancy is to be treated as month to month in case lease deed is not registered.
Suit no. 855/2008 Page No. 27 / 30
Therefore, the plaintiff has been successful to discharge the onus of this issue. Accordingly, the issue no.3 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.4 : Whether the plaintiff is entitled to recovery of Rs.10,800/ as claimed ? OPP The onus to prove this issue was upon the plaintiff. However, the plaintiff has not led any evidence to prove his case that the defendant is in arrears of rent for the period from November, 1992 to January, 1993. Therefore, the plaintiff has failed to discharge the onus of this issue. Hence, issue no.4 is decided in favour of the defendant and against the plaintiff.
ISSUE NO.5 : Whether the plaintiff is entitled to damages ? if so, at what rate and for which period ? OPP The onus to prove this issue was upon the plaintiff. It is an Suit no. 855/2008 Page No. 28 / 30 admitted case of the parties that the suit property was let out for Rs.3600/ per month. The plaintiff has deposed in his examinationin chief that after 24/01/1993 the defendant is a trespasser. The plaintiff has further deposed in his examinationinchief that from 25/01/1993 to September, 1993, he is entitled to damages at the rate of Rs.7200/ per month but the defendant has only paid at the rate of Rs.3600/ per month and the balance is due for the said period and from October, 1993 damages at the rate of Rs.7200/ is due. There is no question or suggestion has been put on behalf of the defendant in the cross examination of PW1 to deny that the plaintiff is entitled for damages at the rate of Rs.7200/ from October, 1993. DW1 has admitted in his examinationinchief that the defendant paid a sum of Rs.3600/ per month to the plaintiff upto September, 1993. Therefore, the case of the plaintiff is that he is entitled for damages at the rate of Rs.7200/ per month is deemed to be admitted by the defendant.
Therefore, the plaintiff has been successful to discharge the onus of this issue. Hence, the issue no.5 is decided in favour of the plaintiff and against the defendant.
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ISSUE NO.6 : Relief.
In view of my above discussions on the issues no.1 to 3 and 5, the plaintiff has been successful to prove his case. Hence, the suit of the plaintiff is decreed and a decree of possession is passed in respect of the entire first floor of the suit property i.e. B22, Greater Kailash EnclaveII, New Delhi in favour of the plaintiff and against the defendant and a decree is also passed for damages at the rate Rs.7,200/ per month from 25/01/1993 till the possession is delivered back to the plaintiff. The plaintiff is directed to pay the deficient court fees with respect to the amount of damages before the preparation of the decree. Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court today on 23 Day of January, 2013 rd (VINOD KUMAR GAUTAM) ADMINISTRATIVE CIVIL JUDGE cumADDITIONAL RENT CONTROLLER (NORTH) TIS HAZARI COURT: DELHI.
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