Delhi District Court
Anil Tanwar And Anr vs M/S Haldiram Bhujiawala Inc And Anr on 7 August, 2024
CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
IN THE COURT OF VINOD YADAV:
DISTRICT JUDGE (COMMERCIAL COURT)-02:
NORTH-WEST DISTRICT: ROHINI COURTS: NEW DELHI
CNR No.DLNW01-003678-2023
Civil Suit (Comm.) No.291/2023
In the matter of:
1. Shri Anil Tanwar,
S/o Late Shri Vijender Kumar Tanwar,
R/o A-2/104, Janakpuri, New Delhi-110058.
Email: [email protected]
2. Prem Prakash Tanwar (HUF),
Through Its Karta Shri Prem Parkash Tanwar (HUF),
R/o WZ-519, Village Basai Darapur,
New Delhi-110015.
Email: [email protected]
.....Plaintiffs
(Through Shri Manish Tanwar, Advocate)
Versus
1. M/s Haldiram Bhujiawala Inc.,
Through Its Partner,
Mr.Ashok Kumar Agarwal,
S/o Late Shri Rameshwar Lal Agarwal.
Registered Office At:
A-94/5, Wazirpur Industrial Area,
Ring Road, Delhi-110052.
Email: [email protected]
Also At:
C-38, Lawrence Road,
Industrial Area, Delhi-110035.
DOD: 07.08.2024 || Page 1 of 32
CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
2. Mr.Ashok Kumar Agarwal,
S/o Late Shri Rameshwar Lal Agarwal,
Partner, M/s Haldiram Bhujiawala Inc,
Registered Office At:
A-94/5, Wazirpur Industrial Area,
Ring Road, Delhi-110052.
Email: [email protected]
Also At:
C-38, Lawrence Road,
Industrial Area, Delhi-110035.
.....Defendants
(Through Shri Gambhir Chauhan And Shri Ajay Uppal, Advocates)
Date of Institution of Suit : 21.04.2023
Date of transfer to this court : 02.08.2023
Date of hearing final arguments : 22.07.2024
Date of judgment : 07.08.2024
SUIT FOR POSSESSION, RECOVERY OF ARREARS OF RENT, MESNE
PROFIT/DAMAGES FOR UNAUTHORIZED USE AND OCCUPATION AND
MANDATORY INJUNCTION
07.08.2024
JUDGMENT
1. Plaintiff No.1 Shri Anil Tanwar is the son of late Shri Vijender Kumar Tanwar. Late Shri Vijender Kumar Tanwar (HUF) and Shri Prem Parkash Tanwar (HUF) (plaintiff No.2) have been the joint owners of property bearing No.C-38, Lawrence Road, Industrial Area, Delhi-110035, having built-up area of 12075 sq.ft. and open area comprising of ground floor, mezzanine floor and first floor, as shown in red colour in the site plan attached with the plaint (hereinafter referred to as the "suit property").
DOD: 07.08.2024 || Page 2 of 32CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
2. The suit property was let out on rent to defendant No.1 partnership firm through defendant No.2, one of its partners for a period of six years, w.e.f 01.01.2019, at a monthly rent of Rs.5,00,000/- (Rupees Five Lakhs Only) besides electricity, water, other charges and deduction of TDS. The lease deed in this regard had, however, been entered into between the parties on 30.11.2018. The defendants were liable to pay GST @ 18% on the monthly rent. The rent was to be paid by the defendants to both the plaintiffs in equal half. An interest free security of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) was paid by the defendants to the plaintiffs. The defendants were also liable to pay charges towards Common Effluent Treatment Plant, i.e CETP (Pollution) to the concerned Department.
3. On 27.12.2018, Shri Vijender Kumar Tanwar, [karta of Vijender Kumar Tanwar (HUF)] expired and plaintiff No.1 Shri Anil Tanwar being his only son took over as landlord of the part of late Shri Vijender Kumar Tanwar (HUF) as new Karta of Vijender Kumar Tanwar (HUF).
4. It had also been agreed between the parties that after three years of entering into the lease deed, the defendants would increase the rent by 15% and were required to pay @ Rs.5,75,000/- per month w.e.f 01.01.2022.
5. As per the case set up by the plaintiffs, defendant No.1 was not regular in payment of rent with GST @ 18% and never paid the same DOD: 07.08.2024 || Page 3 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
on time. The defendant No.1 had paid the rent to plaintiff No.1 through crossed cheques for first eleven (11) months from the date of inception of tenancy, i.e 01.01.2019 uptill November' 2019 @ Rs.2,25,000/- + GST @ 18% after deducting TDS, but the same was not on time. It is further stated that out of cheques towards the rent paid for the months of June and July' 2019 to plaintiff No.1 were dishonoured on their presentation. The plaintiff No.1 accordingly served a demand notice dated 07.11.2019, under Negotiable Instruments Act to the defendants, however, despite service of said notice the amount was not paid by the defendants. As such, the plaintiff No.1 filed a criminal complaint case bearing No.9572/19, titled as, "Anil Tanwar, Karta of "Vijender Kumar Tanwar (HUF)" V/s M/s Haldiram Bhujiawala Inc & Anr.". The defendants appeared in the said case before the concerned Court, where defendant No.1 undertook to pay the amount of aforesaid two dishonoured cheues, amounting to Rs.4,50,000/- to plaintiff No.1. The concerned Court of learned MM also imposed a fine of Rs.15,000/- upon the defendants. Finally, the amount of Rs.4,50,000/- alongwith cost of Rs.15,000/- was paid by the defendants on 02.06.2022 vide four separate Demand Drafts bearing Nos.006851, 006845, 006853 and 006852, all drawn on HDFC Bank. Thereafter, vide order dated 07.06.2022, the concerned Court of learned MM was pleased to allow compounding of the offence committed by defendants U/s 138 N.I Act.
6. It is further averred that similarly, defendant No.1 had paid rent to the plaintiff No.2 through cheques uptill March' 2019 @ DOD: 07.08.2024 || Page 4 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
Rs.2,25,000/- + GST @ 18% after deducting TDS, but the payment of said rent was not on time.
7. It is emphasized that besides arrears of rent with GST, CETP charges, the defendants with a malafide intention did not deposit the TDS before the concerned Department in the name of both the plaintiffs w.e.f April' 2022 till date. It is contended that the defendants have also not deposited TDS for the months of June' 2019 and May' 2021 before the concerned Department in the name of plaintiff No.1. Similarly, it is claimed that the defendants have also not deposited TDS for the months of May' 2021 before the concerned Department in the name of plaintiff No.2.
8. It is further stated that despite repeated requests and demands, the defendants have neither paid the arrears of rent with GST to the plaintiffs nor deposited the TDS amount nor deposited the CETP charges and as such, because of the said illegal act and conduct of the defendants, the plaintiffs had no other alternative, but to terminate the tenancy of the defendants vide legal notice dated 17.09.2022. The said legal notice was duly served upon the defendants. As such, it is claimed that the tenancy of the defendants stood validly terminated w.e.f 18.10.2022.
9. It is contended that as per the accounts maintained by the plaintiffs, the defendants are liable to pay a sum of Rs.57,19,581/- (i.e Rs.26,09,790/- to plaintiff No.1 and Rs.31,09,790/- to plaintiff No.2) as arrears of rent with GST @ 18% to the plaintiffs uptill the date of DOD: 07.08.2024 || Page 5 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
termination of tenancy, i.e 18.10.2022. It is further claimed that the defendants are also liable to pay damages/mesne profits @ Rs.8,00,000/- per month for unauthorized use/occupation of the suit property w.e.f 19.10.2022 till vacation thereof, i.e 21.12.2023. It is further claimed that the defendants are also in arrears of CETP (Pollution) charges amounting to Rs.87,905/- in terms of Bill dated 14.03.20233.
10. As such, the plaintiffs have filed the instant suit against the defendants, inter alia praying as under:
(a) A decree of possession in favour of plaintiffs and against the defendant(s) in respect of the suit property, i.e property bearing No.C-38, Lawrence Road, Industrial Area, Delhi-110035, having built-up area of 12075 sq.ft., as shown in red colour in the site plan attached with the plaint;
(b) Decree of arrears of rent with GST and interest amounting to Rs.76,38,741/- with pendentelite and future interest @ 18% per annum;
(c) Decree of mesne profits/damages @ Rs.8,00,000/- per month w.e.f 19.10.2022 till the date of vacation/handing over the possession of the suit property;
(d) Decree of mandatory injunction, inter alia seeking directions for the defendants, their agents, servants, authorized persons, partners etc., to deposit entire arrears of CETP charge amounting to Rs.87,905/- to the concerned Department;DOD: 07.08.2024 || Page 6 of 32
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(e) Further, decree of mandatory injunction, inter alia directing the defendants, their agents, servants, authorized persons, partners etc., to deposit upto date TDS w.e.f April' 2022. Further, directions have been sought against the defendant(s) inter alia directing the defendants to deposit TDS for the months of June' 2019 and May' 2021; and
(f) Costs of the suit.
11. After getting served with the summons, the defendants filed written statement inter alia taking preliminary objections to the effect that the tenancy of the defendants had not been terminated as per Section 106 of the Transfer of Property Act, 1882; that the suit is bad for non-joinder of all the other L.Rs of late Shri Vijender Kumar Tanwar (HUF). On merits, it has been denied that the defendants were liable to pay GST @18% on the monthly rent and deposit the same before the concerned Authority alongwith TDS. The liability of the defendants to pay CETP charges has also been denied. The receipt of the legal notice terminating the tenancy has also been denied. The entitlement of the plaintiff to have the suit amount has also been denied.
12. Plaintiff filed replication in the matter inter alia denying the averments made in the written statement and reiterating the ones made in the plaint.
DOD: 07.08.2024 || Page 7 of 32CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
13. This Court vide order dated 30.11.2023 had dismissed an application filed U/o VII Rule 11 CPC by the defendant(s), whereby rejection of plaint in the matter was sought on the ground that the suit was pre-mature because tenancy had not been validly terminated. Further, vide the aforesaid order, this Court also passed decree of possession qua the suit property and pursuant whereto the possession of the suit property was handed over by the defendants to the plaintiff on 21.12.2023, however, at the time of vacating the suit property substantial damage had been caused to the suit property.
14. The plaintiffs had placed on record photographs of the damage caused to the suit property. This prompted the plaintiffs to raise facts about the damage to the suit property caused by defendants at the time of vacation. The plaintiffs were given liberty to seek damages in this regard.
15. On the basis of pleadings of the parties, vide order dated 19.12.2023, following issues were settled for trial in the matter:
(i) Whether the plaintiff is entitled to the decree of arrears of rent, as prayed for? OPP.
(ii) If answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon. If so, at what rate and for what period? OPP.
(iii) Whether the plaintiff is entitled to the decree of mesne profits, as prayed for? OPP.
(iv) If answer to the aforesaid issue is in affirmative, then mesne profits at what rate and for what period? OPP.DOD: 07.08.2024 || Page 8 of 32
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(v) Whether the plaintiff is entitled to the decree of both the mandatory injunctions, as prayed for? OPP.
(vi) Relief.
16. Pursuant to framing of issues in the matter, vide order dated 19.12.2023, Shri O.P Gupta, learned Principal District & Sessions Judge (retired) was appointed as "Local Commissioner" to record evidence in the matter.
17. In order to discharge the onus of issues put upon him, plaintiffs examined six witnesses namely Shri Anil Tanwar (plaintiff No.1 herein) as PW-1; Shri Ojas Kaushik, Clerk from Bank of India, Kirti Nagar Branch as PW-2; Shri Devi Singh, ASO from Delhi Jal Board, Kanhiya Nagar as PW-3; Shri Harswroop Bakshi, Manager TPDDL, Keshav Puram as PW-4; Shri Devashish Chakarwati, Executive Secretary, Keshav Puram Industrial Area CETP Society, as PW-5; and Shri Akshay Dabas, Junior Assistant from the O/o Sub-Registrar VI-A, North-West-II, Ambedkar Bhawan, Dr.K.N Katju Marg, Sector-16, Rohini, Delhi as PW-6.
18. (a) PW-1, Shri Anil Tanwar, in his evidence by way of affidavit Ex.PW1/A has reiterated the contents of plaint and proved on record the following documents:
(i) Copy of registered Conveyance Deed in respect of property bearing No.C-38, Lawrence Road, Industrial Area, Delhi-110035 as Ex.PW1/1;
(ii) Site plan showing the portion let out to the defendant in red colour as Ex.PW1/2;DOD: 07.08.2024 || Page 9 of 32
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(iii) Certified copy of Bank Statement of "Anil Tanwar" in Bank of India, Kirti Nagar Branch as Ex.PW1/3;
(iv) Certified copy of Bank Statement of Prem Prakash Tanwar" in Bank of India, Kirti Nagar Branch as Ex.PW1/4;
(v) Death Certificate of Shri Vijender Kumar Tanwar, issued by NDMC, Govt. of NCT of Delhi as Ex.PW1/5;
(vi) Note: PW-1 did not file copy of Relinquishment Deed, allegedly executed by his mother, which has been referred to as Ex.PW1/6, however, the same was not found on record by the learned Local Commissioner during the course of recording of evidence of this witness.
(vii) Certified copies of cheques bearing No.901092, dated 29.07.2019 and cheque bearing No.821998, dated 18.09.2019, for Rs.2,25,000/- each, drawn on Yes Bank, Branch Shalimar Bagh as Ex.PW1/7 (Colly);
(viii) Certified copy of Demand Notice dated 07.11.2019, served to the defendants under Negotiable Instruments Act for demanding the amount of aforesaid two dishonoured cheques as Ex.PW1/8 and certified copies of four postal receipts thereof as Ex.PW1/9;
(ix) Certified copy of complaint case bearing No.9572/19, filed by PW-1 against the defendant(s) U/s 138 r/w Section 142 of Negotiable Instruments Act, 1881 as Ex.PW1/10;
(x) Certified copies of proceedings/order sheets dated 18.05.2022, 02.06.2022, and 07.06.2022 in the aforesaid case as Ex.PW1/11 DOD: 07.08.2024 || Page 10 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
(Colly);
(xi) Copy of notice dated 17.09.2022, inter alia terminating the tenancy in question as Ex.PW1/12; two original postal receipts, dated 17.09.2022 in respect of said notice as Ex.PW1/13 and Ex.PW1/14; and two track result/report in respect of delivery of said notice, downloaded from the website of Indian Post as Ex.PW1/15 (Colly);
(xii) Certificate U/s 65-B of Indian Evidence Act, 1872 as Ex.PW1/15A;
(xiii) Copy of CETP Bill, dated 14.03.2023, issued by Keshav Puram Industrial Area (KESPIA) CETP Society and addressed to M/s Prem Parkash Tanwar as Mark A;
(xiv) Statement of complete details of arrears of rent, arrears of other charges, TDS payable by defendant as Ex.PW1/16 (Colly);
(xv) Copy of Certificate of Non-Starter Report, dated 13.01.2023, issued by Secretary, DLSA, North-West as Ex.PW1/17; (xvi) Valuation report regarding damages, dated 02.01.2024, prepared by Engineer Kamal Chawla as Ex.PW1/18 (exhibition of said document was objected to by learned counsel for the defendant, however, during the cross-examination of PW-1 said document has been exhibited as Ex.PW1/DC).
(b) During the cross-examination of PW-1 by the learned counsel for the defendant, following documents were also proved/exhibited:
(i) Surviving Member Certificate, issued by SDM, Government of NCT of Delhi as Ex.PW1/DA;DOD: 07.08.2024 || Page 11 of 32
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(ii) Copy of Lease Deed dated 30.11.2018 as Ex.PW1/DB;
(iii) Valuation report regarding damages, dated 02.01.2024, prepared by Engineer Kamal Chawla as Ex.PW1/DC.
19. (i) PW-2, Shri Ojas Kaushik, Clerk from Bank of India, Kirti Nagar Branch has proved on record the statement of account/transaction inquiry in respect of account ID 600810110000817, pertaining to Prem Parkash Tanwar (HUF) for the period 01.01.2019 to 21.12.2023 as Ex.PW1/19;
(ii) Copy of statement of account/transaction inquiry in respect of account ID 600810100019558, pertaining to Shri Anil Tanwar for the period 01.01.2019 to 21.12.2023 as Ex.PW2/2;
(iii) Certificate U/s 65-Bof Indian Evidence Act, 1872 in respect of aforesaid statements as Ex.PW2/3;
20. PW-3, Shri Devi Singh, ASO from Delhi Jal Board, Kanhiya Nagar, Delhi in his evidence has proved on record copy of water bill in the name of M/s Ajay Dal General Mills, C-38, Lawrence Road, Delhi-110035 for the period 19.10.2023 to 14.12.2023 for Rs.24,626/- duly accompanied by statement of account for the period 01.01.2019 to 14.12.2023 as Ex.PW3/1 Colly (03 pages).
21. (i) PW-4, Shri Harswroop Bakshi, Manager, TPDDL, Keshav Puram in his evidence has proved on record account statement in respect of Contract Account No.60000913511, pertaining to M/s Ajay Dal & General DOD: 07.08.2024 || Page 12 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
Mills being run in House No.38, Block-C, Keshav Puram Industrial Area, Delhi for the period 15.10.2019 to 23.01.2024 as Ex.PW4/1;
(ii) Copy showing temporary disconnection of said account on 30.12.2023 as Ex.PW4/2; and,
(iii) Certificate U/s 65-B of Indian Evidence Act, 1872 regarding statement of account of aforesaid connection bearing CA No.60000913511 as Ex.PW4/3.
22. PW-5, Shri Devashish Chakarwarti, Executive Secretary, Keshav Puram Industrial Area CETP Society in his evidence has proved on record copy of Ledger Account/Statement of Account for the period 01.04.2023 to 31.03.2024, thereby showing outstanding balance of operation and maintenance charged by aforesaid CETP society from Prem Prakash Tanwar for the period ending 25.01.2024 as Rs.24,840/- (for three quarters), whereby it was also shown that payment @ Rs.99,911/- was made till June' 2023 as Ex.PW5/1;
(ii) Invoice, dated 27.01.2024, raised by Keshav Puram Industrial Area (KESPIA) CETP Society upon M/s Prem Parkash Tanwar for Rs.24,840/- as Ex.PW5/2;
(iii) Copy of payment receipt dated 03.11.2023, for a sum of Rs.99,911/-, paid by Prem Parkash Tanwar to Keshav Puram Industrial Area CETP Society as Ex.PW5/3.
23. PW-6, Shri Akshay Dabas, Junior Assistant from the O/o Sub- Registrar, VI-A (North-West-II), Sector-16, Rohini, Delhi in his evidence DOD: 07.08.2024 || Page 13 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
has proved on record the copy of lease dated 13.09.2021, pertaining to property bearing No.16, Block-A, Lawrence Road Industrial Area, Delhi, which has been registered as Document No.12517, Book No.1, Volume No.10102, from pages 19 to 30 as Ex.PW6/1A.
24. This is all as far as plaintiff's evidence in the matter is concerned.
25. (a) Whereas, defendants examined their Accountant namely Shri Bishnu Singh Bisht as DW-1, who in his evidence has by way of affidavit Ex.DW1/A has reiterated the contents of written statement and proved on record the following documents:
(i) Authority letter, dated 05.04.2024, issued by defendant No.1 in favour of DW-1 to depose in the present matter as Ex.DW1/1;
(ii) Copy of ledger/electronic record of ledger for the period 01.01.2019 to 31.03.2022, maintained by defendant in respect of Vijender Kumar Tanwar (HUF) and Anil Tanwar as Ex.DW1/2;
(iii) Copy of ledger/electronic record of ledger for the period 01.04.2019 to 31.03.2022, maitained by defendant in respect of Prem Parkash Tanwar (HUF) as Ex.DW1/3;
(iv) Certificate U/s 65-B of Indian Evidence Act, 1872 in respect of the aforesaid statements as Ex.DW1/4;
(v) Average prevailing bank interest on fixed deposits during the year 2019 to 2023, downloaded/printed from the website www.bajajfinservemarkets.in as Ex.DW1/5.
DOD: 07.08.2024 || Page 14 of 32CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
(b) During the course of cross-examination of DW-1, following documents were also proved on record.
(i) Copy of Membership Certificate, dated 15.11.2019, issued by Keshavpuram Industrial Area (KESPIA) CETP Society (Regd.), issued in the name of defendant No.1 as Ex.DW1/PA;
(ii) Five copies of payment receipts of different dates, regarding payment made by defendant No.1 to Keshav Puram Industrial Area (KESPIA) CETP Society as Ex.DW1/PB to Ex.DW1/PF;
26. This is all as far as evidence recorded in the matter is concerned.
27. There are few more facts which require mentioning here, i.e vide order dated 30.11.2023, decree of possession qua the suit property was passed in favour of plaintiff(s) and against the defendant(s), pursuant whereto on 22.12.2023, possession of the suit property was handed over to the plaintiff(s) by the defendants. On the said date, the parties had appeared in Court and the defendants had offered to handover the possession of the suit property to the plaintiff by handing over keys thereof. The plaintiffs were asked to go at the spot and see if defendant(s) had vacated the suit property, as proposed. The plaintiffs went to the spot and found a lot of damage having been caused to the suit property at the time of vacation thereof by the defendants. The plaintiffs produced photographs of the spot/suit property as well as videographic account thereof, showing substantial damage to the suit property. The plaintiff was DOD: 07.08.2024 || Page 15 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
granted liberty to seek compensation with regard to damage caused to the suit property. It appears that recording of evidence was going on at that time before the learned Local Commissioner and as such, additional issue in this regard remained to be framed. The plaintiffs proved the report of surveyor/valuer with regard to damage caused to the suit property and the amount of compensation required by the plaintiff from the defendants to restore the suit property to its original position. The report Ex.PW1/18 (as also Ex.PW1/DC) claimed the damages/compensation amounting to Rs.15,84,000/- approximately. The report of Valuer has not been challenged by the defendants. Even photographs and videographic account of damage has also not been disputed.
28. The plaintiffs have also moved an application seeking framing of additional issue in this regard after the matter was fixed for judgment. In my considered opinion, the relief of damages on account of the defendants' having caused damage to the suit property at the time of vacation thereof can be granted by the Court to the plaintiff, as firstly the liberty had already been granted to the plaintiffs to move appropriate application in this regard vide order dated 22.12.2023 and secondly the plaintiffs have led evidence in this regard and the defendants have thoroughly cross-examined PW-1 on this account.
29. It is also worthwhile to note that on 04.05.2024 when final arguments in the matter were being advanced on part of the plaintiff, the plaintiffs made joint statement, which for ready reference is re-produced DOD: 07.08.2024 || Page 16 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
hereunder:
xxxxx 04.05.2024 Statement of Shri Anil Tanwar, S/o Late Shri Vijender Kumar Tanwar, Aged about 57 years. R/o A2/104, Janakpuri, New Delhi-110058.
On S.A I am plaintiff No.1 in the present matter. On the instructions of plaintiff No.2, I am making this statement. As per Statement of Account Ex.PW1/16, I am entitled to an amount of Rs.26,09,790/- as arrears of rent as on 18.10.2022 and plaintiff No.2 is entitled to an amount of Rs.31,09,790/- as arrears of rent as on 18.10.2022.
Due to Covid-19 pandemic, I and on behalf of plaintiff No.2 are ready to forego an amount of Rs.5,00,000/- each, out of the aforesaid arrears of rent during the period March' 2020 to February' 2022, purely on humanitarian grounds.
I and plaintiff No.2 are further ready to pay interest on the security amount of Rs.15,00,000/- to the defendants w.e.f 01.01.2019 to 21.12.2023 @ 6% per annum.
I pray that on arrears of rent, I and plaintiff No.2 may be granted interest @ 18% per annum.
xxxxx
30. It is noted that vide order dated 19.12.2023, five issues were settled for trial in the matter. However, in addition to the aforesaid issues, issue No.(vi) which is with regard to damage caused to the suit property by the defendant at the time of vacation thereof shall also be considered.
DOD: 07.08.2024 || Page 17 of 32CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
Framing of this issue shall not cause any prejudice to the defendants because they were permitted to cross-examine PW-1 on this account and the defendants all through knew that evidence is being lead by plaintiffs in this regard. Now, the consolidated issues in the matter read as under:
Issues framed vide order dated 19.12.2023:
(i) Whether the plaintiff is entitled to the decree of arrears of rent, as prayed for? OPP.
(ii) If answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon. If so, at what rate and for what period? OPP.
(iii) Whether the plaintiff is entitled to the decree of mesne profits, as prayed for? OPP.
(iv) If answer to the aforesaid issue is in affirmative, then mesne profits at what rate and for what period? OPP.
(v) Whether the plaintiff is entitled to the decree of both the mandatory injunctions, as prayed for? OPP.
Additional Issue:
(vi) Whether the plaintiff is entitled to additional claim with respect to damage caused to the suit property by the defendant(s) at the time of vacation thereof; recovery of arrears of electricity charges and water charges uptil 21.12.2023; recovery of CETP charges? OPP.
(vii) Relief.
31. I have heard arguments advanced at bar by Shri Manish Tanwar, Advocate, learned counsel for the plaintiffs and Shri Ajay Uppal and Shri Gambhir Chauhan, Advocates, learned counsels for the defendants and perused the entire material on record. My issue wise DOD: 07.08.2024 || Page 18 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
findings in the matter are as under.
32. Issues No.(i) to (iv):
(i) Whether the plaintiff is entitled to the decree of arrears of rent, as prayed for? OPP.
(ii) If answer to the aforesaid issue is in affirmative, whether the plaintiff is entitled to interest thereupon. If so, at what rate and for what period? OPP.
(iii) Whether the plaintiff is entitled to the decree of mesne profits, as prayed for? OPP.
(iv) If answer to the aforesaid issue is in affirmative, then mesne profits at what rate and for what period? OPP.
The onus to prove the aforesaid issues was upon the plaintiff. All these issues are being taken up together as the same are inter-connected and the findings thereupon would be common. From the evidence led in the matter by the plaintiffs, it is abundantly clear that the lease deed dated 30.11.2018 (Ex.PW1/DB) came into operation from 01.01.2019 for a period of three years with an option to the parties to have renewal for a further period of three years by increasing the rate of rent by 15%, meaning thereby that from 01.01.2019 to 01.01.2022, the monthly rate of rent was Rs.5,00,000/-; whereas w.e.f 01.01.2022 it would have been Rs.5,75,000/- per month. It is a matter of record that two cheques towards rent given by the defendants to the plaintiff No.1 were dishonoured (Ex.PW1/7), pursuant whereto legal notice dated 07.11.2019 (Ex.PW1/8) was issued by the plaintiff No.1 to the defendants, but the same did not yield any fruitful result for him. Accordingly, a complaint U/s 138 N.I Act (Ex.PW1/10) was filed by the plaintiff No.1, wherein settlement had taken DOD: 07.08.2024 || Page 19 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
place between the parties and the defendant(s) had paid the cheque amount to the plaintiff.
33. The plaintiffs have been able to prove that there was consistent default in making payment by the defendants to the plaintiffs which led to termination of tenancy vide legal notice dated 17.09.2022 (Ex.PW1/12). The postal receipts thereto Ex.PW1/13 and Ex.PW1/14 are on record alongwith tracking report Ex.PW1/15. Admittedly, the legal notice was sent at the correct address of the defendants and there is a presumption of service of the process(es) executed through speed post, sent on correct address in terms of Section 27 of the General Clauses Act.
The Hon'ble Supreme Court of India in case reported as, "(2007) 6 SCC 555", titled as, "C.C Alavi Haji V/s Palapetty Muhammed & Anr. (DOD:
18.05.2007) has been pleased to enunciate the presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act, the relevant paragraphs whereof reads as under:
xxxxx "13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the DOD: 07.08.2024 || Page 20 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below:
"27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to DOD: 07.08.2024 || Page 21 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] ; State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774:
2005 SCC (Cri) 393].) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
xxxxx
34. As such, the tenancy stood terminated w.e.f 18.10.2022. It is the admitted case of defendants that the rent was paid upto 31.03.2022. As such, the defendants are found in arrears of rent for the period from 01.04.2022 to 18.10.2022 (when the tenancy stood terminated) and thereafter from 01.11.2022 to 21.12.2023 (till the date possession of suit property was handed over). As per the specific term of lease, the rate of rent w.e.f 01.01.2022 was to be Rs.5,75,000/- per month for the period 01.04.2022 to 18.10.2022. Thus, the total rent for the period of seven months, i.e from April' 2022 to October' 2022 comes to Rs.40,25,000/-DOD: 07.08.2024 || Page 22 of 32
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(Rupees Forty Lakhs Twenty Five Thousand Only) (i.e Rs.5,75,000/- per month x 7 months).
35. The plaintiffs have examined PW-6/Shri Akshay Dabas, Junior Assistant from the O/o Sub-Registrar to prove the registered lease deed dated 13.09.2021 as Ex.PW6/1A in respect of a similarly situated property, fetching rent around Rs.8,00,000/- per month. The learned counsel for the defendants very vehemently argued that the area of the said property was 10800 sq.ft in basement + 900 sq.ft on ground floor and 10800 sq.ft on roof; whereas, the area of suit property is far less than that.
36. As per rough calculation, the area of the suit property is around 6070 sq.ft at the ground floor; 4051 sq.ft at the mezzanine floor and 3903 sq.ft at the first floor. The covered area of the suit property is proportionately similar or more than that of the area of the property mentioned in registered lease deed Ex.PW6/1A and as such, the plaintiffs have succeeded in proving that for the period 01.11.2022 till 21.12.2023 (i.e the date when the actual possession of the suit property was handed over to the plaintiffs), the mesne profits/damages would be @ Rs.8,00,000/- per month. Thus, the total mesne profits for the period w.e.f 01.11.2022 to 21.12.2023 (thirteen months) @ Rs.8,00,000/- per month comes out to Rs.1,04,00,000/- (Rupees One Crore Four Lakhs Only) (i.e 13 months x Rs.8,00,000/-) and plaintiffs are held entitled to the same.DOD: 07.08.2024 || Page 23 of 32
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37. Thus, the total amount towards arrears of rent and mesne profits comes down as under:
(a) Arrears of rent for the period of seven Rs.40,25,000/-
months, i.e from April' 2022 to October' 2022 @ Rs.5,75,000/- per month (7 months x Rs.5,75,000)
(b) Mesne profits for the period w.e.f 01.11.2022 Rs.1,04,00,000/-
to 21.12.2023 (13 months) @ Rs.8,00,000/- per month (13 months x Rs.8,00,000/-) Total Amount Rs.1,44,25,000/-
38. The plaintiff has claimed GST as well as TDS upon the rent. A perusal of lease deed, dated 30.11.2018 (Ex.PW1/DB), specifically Clause 3.1 thereof reveals that rent was to be paid alongwith GST @18% after deducting TDS @ 10%. The plaintiffs have not placed on record any document to show that they have deposited the TDS with the authorities.
39. (i) A perusal of statement of the plaintiffs recorded in Court on 04.05.2024 reveals that a sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) is to be deducted from the aforesaid amount of Rs.1,44,25,000/-.
(ii) It is further noted that a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) as "security" of the defendants is lying deposited with the plaintiffs. The plaintiff No.1 vide his statement recorded in Court on 04.05.2024 had categorically agreed to pay interest on the aforesaid amount of Rs.15,00,000/- @6% per annum w.e.f 01.01.2019 to 21.12.2023. The total amount which comes out after adding the interest DOD: 07.08.2024 || Page 24 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
quotient @6% per annum on the aforesaid amount is Rs.19,47,500/- (Rs.15,00,000/- + Rs.4,47,500/- as interest). As such, this amount of Rs.19,47,500/- is also liable to be deducted from the aforesaid amount of Rs.1,44,25,000/-.
(iii) Thus, the total amount to be deducted is Rs.29,47,500/- (Rs.10,00,000/- + Rs.19,47,500/-).
(iv) Now, after deducting the amount of Rs.29,47,500/- from the amount of Rs.1,44,25,000/-, the figure comes out to be Rs.1,14,77,500/-
(Rupees One Crore Fourteen Lakhs Seventy Seven Thousand Five Hundred Only).
40. Both the plaintiffs are accordingly held entitled to the amount of Rs.1,14,77,500/- alongwith interest @ 12% per annum w.e.f 01.04.2022 till recovery thereof. Needless to say, the aforeaid amount shall be shared by both the plaintiffs as per the formula given in Ex.PW1/DB. Issues No.
(i) to (iv) are decided accordingly.
41. Issue No.(v):
Whether the plaintiff is entitled to the decree of both the mandatory injunctions, as prayed for? OPP.
The onus to prove this issue was upon the plaintiffs. The learned counsel for the plaintiffs has prayed that the defendants be directed to deposit TDS as per law w.e.f April' 2022 till date before the concerned Department in the name of both the plaintiffs. It has further been prayed DOD: 07.08.2024 || Page 25 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
that the defendants be also directed to deposit TDS for the months of June' 2019 and May' 2021 before the concerned Department in the name of plaintiff No.1. It is further contended that directions be also issued to the defendant to deposit the TDS for the months of May' 2021 before the concerned Department in the name of plaintiff No.2.
42. The learned counsel for the plaintiff has referred to the statement of account, regarding arrears of rent, arrears of other charges and TDS details as Ex.PW1/16 (Colly).
43. In support of his contentions, the learned counsel for the plaintiff has referred to the law laid down by Hon'ble High Court of Delhi in case reported as, "CS (Comm.) No.376/2020", titled as, "Mehra Jewel Palace Pvt. Limited & Ors. V/s Miniso Life Style Pvt. Limited" (DOD:
25.05.2022), whereby the Hon'ble High Court has been pleased to lay down that force majeure clause cannot inure to the sole benefit of the lessee alone and defendants/lessee shall be liable to pay arrears of GST on the amounts of lease rentals alongwith interest @18% per annum and shall also be liable to pay any penalty or fine that may be imposed by the GST Authorities for non-payment of amounts in a timely manner.
44. Per contra, learned counsel for the defendants has refuted the claim of plaintiff on this account and has referred to the copy of ledger/ electronic record of ledger, maintained by defendant in respect of Vijender Kumar Tanwar (HUF) and Anil Tanwar (Ex.DW1/2) and qua Prem Prakash Tanwar (HUF) as Ex.DW1/3.
DOD: 07.08.2024 || Page 26 of 32CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
45. I have considered the statements of accounts Ex.PW1/16 (Colly) as well as statements of account/ledger account maintained by the defendant as Ex.DW1/2 and Ex.DW1/3. It is a matter of record that DW- 1 in his cross-examination recorded 23.04.2024 has categorically admitted that defendant No.1 was to pay GST @18% on the monthly rent. DW-1 has further admitted that plaintiff(s) used to send the invoice to defendant No.1 and it was defendant No.1 who used to pay the same to plaintiff. In view of the aforesaid admissions of DW-1 as well as the observations made by Hon'ble High Court of Delhi in case of Mehra Jewel Palace (supra), plaintiff(s) are held entitled to receive the arrears of GST after paying/depositing the same with the GST Authorities and later on reclaim the same from the defendants. The issue is decided accordingly.
46. Additional Issue No.(vi):
Whether the plaintiff is entitled to additional claim with respect to damage caused to the suit property by the defendant(s) at the time of vacation thereof; recovery of arrears of electricity charges and water charges uptil 21.12.2023; recovery of CETP charges? OPP.
The onus to prove this issue was upon the plaintiffs. The aforesaid issue was framed pursuant to plaintiffs moving an application apropos to the observations made by this Court vide order dated 22.12.2023. The learned counsel for the plaintiffs has very vehemently argued that when the plaintiffs took possession of the suit property from the defendants on 21.12.2023, they were shocked to see that the suit property was in a very bad shape, it was lying severely damaged and not fit of human habitation.
DOD: 07.08.2024 || Page 27 of 32CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
47. (i) It is also contended that pursuant to receiving possession of the suit property from the defendant on 22.12.2023, the plaintiffs had received electricity bill, amounting to Rs.1,12,430/- uptill 01.12.2023, which was not paid by the defendants. As such, the electricity connection in the suit property was disconnected by the electricity company for non-
payment of electricity charges by the defendants.
(ii) It is next contended that pursuant to receipt of possession of the suit property, the plaintiffs had also received water charges amounting to Rs.24,630/- for the period suit property was lying occupied by the defendant. The said charges were not paid by the defendants.
(iii) It is further emphasized that defendants are further liable to pay Common Effluent Treatment Plant (CETP) charges till 21.12.2023 (date on which defendant No.1 vacated the suit property).
48. As regards the damages to the suit property, the plaintiffs have proved on record Valuation Report, dated 02.01.2024, prepared by Engineer Shri Kamal Chawla as Ex.PW1/DC, whereby the concerned Engineer has assessed/quantified the damages as Rs.15,84,209.63. Though, the learned counsel for the defendant has cross-examined PW-1 on Valuation Report Ex.PW1/DC, however, the defendants have not been able to prove that the findings/valuation contained in the aforesaid report are manipulated/faulty/exaggerated. The aforesaid Valuation Reprot is duly accompanied by coloured photographs of the suit property as well as a CD containing the videographic account thereof. The said photographs have nowhere been disputed on the part of defendants. Be that as it may, it is a DOD: 07.08.2024 || Page 28 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
matter of record that the defendants have not examined any witness of their own either to counter the findings contained valuation report Ex.PW1/DC or for assessing their own valuation. As such, in terms of the findings contained in Valuation Report, dated 02.01.2024 (Ex.PW1/DC), plaintiffs are held entitled to an amount of Rs.15,84,210/- (rounded off) towards damages caused to the suit property by the defendant(s).
49. As regards the electricity bill amounting to Rs.1,12,430/-, it is noted that PW-4/Harswroop Bakshi, Manager, TPDDL has categorically stated that the aforesaid amount was outstanding as on 21.12.2023, against Contract Acccount No.60000913511, pertaining to M/s Ajay Dal & General Mills, for the period 15.10.2019 till 23.01.2024, situated at the suit property itself. The defendants have not denied that M/s Ajay Dal & General Mills was running from the suit property itself. Admittedly, the defendants have been in possession of the suit property till 21.12.2023 and they have not produced anything on record to suggest that they have cleared the electricity arrears/bill till 21.12.2023. As such, the plaintiffs are held entitled to amount of Rs.1,12,430/- on this account.
50. Similarly, with regard to water bill, plaintiff has examined PW-3/Devi Singh, ASO from Delhi Jal Board, who in his evidence has proved on record copy of water bill in the name of M/s Ajay Dal General Mills, C-38, Lawrence Road, Delhi-110035 for the period 19.10.2023 to 14.12.2023 for Rs.24,626/- duly accompanied by statement of account for the period 01.01.2019 to 14.12.2023 as Ex.PW3/1 Colly (03 pages). The DOD: 07.08.2024 || Page 29 of 32 CS (Comm) No.291/2023: Anil Tanwar & Anr. V/s M/s Haldiram Bhujiawala Inc. & Anr.:
defendants have failed to put any dent in the evidence of this witness as well as the documents proved by him on record. Further, the defendants have not denied that the aforesaid water bill pertains to the period when the suit property was lying occupied by them. In view of Ex.PW3/1 (Colly), it is hereby held that defendants are liable to pay water bill amounting to Rs.24,626/-, as getting reflected in Ex.PW3/1 Colly.
51. As regards the CETP charges, it is noted that DW-1/Shri Bishnu Singh Bisht in his cross-examination conducted on 24.04.2024 has categorically admitted that defendant No.1 is liable to pay CETP charges till 21.12.2023 (till the time the defendants vacated the suit property). He further admitted that defendants have not filed any document on record to show that they have paid CETP charges after September' 2020.
52. The plaintiffs have examined PW-5, Shri Devashish Chakarwarti, Executive Secretary, Keshav Puram Industrial Area CETP Society, who has proved on record Copy of payment receipt dated 03.11.2023, for a sum of Rs.99,911/-, paid by Prem Parkash Tanwar to Keshav Puram Industrial Area CETP Society as Ex.PW5/3. The plaintiffs have further proved on record the Invoice, dated 27.01.2024, raised by Keshav Puram Industrial Area (KESPIA) CETP Society upon M/s Prem Parkash Tanwar for Rs.24,840/- as Ex.PW5/2. In view of categorical admission of DW-1 regarding payment of CETP charges, the defendants are held liable to pay CETP charges @ Rs.1,24,751/- (Rs.99,911/- + Rs.24,840/-). The issue is decided accordingly.DOD: 07.08.2024 || Page 30 of 32
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Relief
53. In view of findings on the aforesaid issues, suit filed by the plaintiffs stand decreed as under:
(i) A decree in the sum of Rs.1,14,77,500/- (Rupees One Crore Fourteen Lakhs Seventy Seven Thousand Five Hundred Only) towards arrears of rent and mesne profits alongwith interest @ 12% per annum w.e.f 01.04.2022 till realization thereof is hereby passed in favour of plaintiffs and against the defendants jointly and severally;
(ii) A decree of mandatory injunction is hereby passed in favour of plaintiffs and against the defendants and the plaintiffs are hereby held entitled to receive the arrears of GST after paying/depositing the same with GST Authorities and later on claim the same from the defendants. The plaintiffs are further held entitled to interest @ 12% per annum on the amount of GST so deposited by them with the GST Authorities.
(iii) A decree in the sum of Rs.15,84,210/- (Rupees Fifteen Lakhs Eighty Four Thousand Two Hundred Ten Only) is hereby passed in favour of plaintiffs and against the defendants jointly and severally towards damage caused to the suit property by the defendants;
(iv) A decree in the sum of Rs.1,12,430/- (Rupees One Lakh Twelve Thousand Four Hundred Thirty Only) towards arrears of electricity charges is hereby passed in favour of plaintiffs and against the defendants jointly and severally;DOD: 07.08.2024 || Page 31 of 32
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(v) A decree in the sum of Rs.24,626/- (Rupees Twenty Four Thousand Six Hundred Twenty Six Only) towards payment of water bill is hereby passed in favour of plaintiffs and against the defendants jointly and severally;
(vi) A decree in the sum of Rs.1,24,751/- (Rupees One Lakh Twenty Four Thousand Seven Hundred Fifty One Only) towards CETP charges is hereby passed in favour of plaintiffs and against the defendants jointly and severally;
(vii) Plaintiffs are also held entitled to costs as well as counsel's fee quantified as Rs.50,000/-.
54. Decree Sheet be drawn accordingly.
55. File be consigned to Record Room after completion of necessary formalities.
VINOD Digitally signed
by VINOD YADAV
Date: 2024.08.07
YADAV 12:18:53 +0530
Dictated & Announced in the (Vinod Yadav)
open Court on 07.08.2024 District Judge (Commercial Court)-02
North-West/Rohini Courts
DOD: 07.08.2024 || Page 32 of 32