Delhi District Court
Smt. Salochana Aggarwal vs M/S. Vanshis Stores Pvt. Ltd on 17 October, 2017
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE 01 SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
CS - 10552/16
1. Smt. Salochana Aggarwal
W/o. Suresh Chand Aggarwal
R/o. 116, Priya Darshani Vihar
C.C. Colony, Delhi.
2. Shri Kumar Pahlajani
S/o. Mr. Daulat Ram
R/o. 118, Moti Bazar
Chandni Chowk, Delhi.
3. Shri Harish Pahlajani
S/o. Mr. Daulat Ram
R/o. 118, Moti Bazar
Chandni Chowk, Delhi.
....... Plaintiffs
VERSUS
M/s. Vanshis Stores Pvt. Ltd.
(Through its director/authorized signatory
Mr. Sanjay Mahipal or Company Secretary
or any other authorized representative
E81, Masjid Modh
Greater KailashIII
New Delhi - 110048.
Also At:
WATERMELON
(A Complete Solution for Kids Room)
Basement & Ground Floor
CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 1 of 19
B31, GeetanjaliPanchsheel Road
Shivalik, New Delhi 110017.
Also at :
C/o. RKG International Private Ltd.
Z262, Naraina W.H.S.
New Delhi - 110028, India.
....... Defendant
Date of Institution : 17.04.2009
Date of Arguments : 06.09.2017
Date of Judgment : 17.10.2017
JUDGMENT
1. Plaintiffs filed the suit for recovery of possession, arrears of rent and mesne profits/damages and injunctions against the defendant.
2. Adumbrated in brief the facts of the case of plaintiffs are :
Plaintiffs are joint owners and landlord of the property bearing property no. B31, Shivalik, New Delhi. The defendant was inducted as tenant by the plaintiff and the tenancy was for ground floor and basement of the property no. B31, Shivalik, New Delhi (hereinafter referred as 'suit property') for commercial purposes for a period of three years commencing from 01.10.2008 till 30.09.2011 with lockin period of 1 year.
CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 2 of 19 The lease deed was duly registered in the Office of Sub Registrar. The rent of the suit property was settled @ 2,50,000/ per month for first two years and thereafter @ Rs. 2,75,000/ per month for remaining 12 months, excluding electricity and water charges. If the defendant failed to pay the monthly rent for consecutive period of two months, the plaintiffs were empowered to cancel/terminate the registered lease deed calling upon the defendant to vacate the tenanted suit property. In such an event, the defendant was also liable to pay the damages in the nature of Rs. 10,000/ per day over and above the monthly rent.
3. It is further averred that defendant paid the rent till the month of January 2009 and deducted the TDS for the months from October 2008 till January 2009 but did not issue the TDS certificate. On nonpayment of rent for two consecutive months, the plaintiffs sent a legal notice dated 13.03.2009 calling upon the defendant to pay the arrears of rent within 15 days from the date of its receipt failing which the tenancy shall be deemed to have been terminated w.e.f. 31.03.2009. Inspite of service of legal notice on 14.03.2009, the defendant did not comply the demands and as such its tenancy stood terminated. The defendant was also liable to pay the agreed damages/ mesne profits @ Rs. 10,000/ per day in addition to the monthly rent of CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 3 of 19 Rs. 2,50,000/.
4. It is further averred that defendant sent a reply to the notice dated 13.03.2009 extending threats to handover the possession of the tenanted suit property to third person or by subletting the same. The defendant also refused to issue/handover/deliver TDS certificates to the plaintiffs. Resultant, had been this suit.
5. Defendant filed written statement denying the averments of the plaint and submitted that plaintiffs committed several breaches of their obligations and therefore defendant is entitled to invoke doctrine of suspension of rent/reduction of rent till the breaches are rectified by the plaintiffs. In pursuance of the Lease agreement after taking possession of the 'leased premises', the defendant carried out interior work of renovation and spent about 15 lacs only in designing the 'leased premises' for the purpose of usage of their showroom. The plaintiffs were required to provide parking space for 2 cars to the defendant, however plaintiffs failed to provide exclusive parking space to the defendant. The plaintiffs also did not transfer the electricity meter in the name of defendant as the registered user with BSES. The defendant sent letter dated 10.11.2008, however the plaintiffs failed to carry out their obligations including rectifying the defects arising out of leakages. When the plaintiffs took no steps to rectify the defects, the defendant CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 4 of 19 carried out the repairs and spent approx. Rs. 2.51 lakhs in repair and to rectify the damage caused to the leased premises.
6. It is further averred that notice dated 13.03.2009 was not in accordance with the terms of the Lease deed nor in accordance with Section 106 of the Transfer of Property Act. Plaintiffs had not disclosed the water leakage and seepage cracks in the building and further plaintiffs had not given 'No Objection' Certificate from the MCD for using the premises for commercial purpose and the sanction building plan of the building. Therefore, the suit of the plaintiff be dismissed with exemplary costs.
7. During the pendency of the suit on 12.08.2009, the IA No. 5280/09 (application under order XXXIX R 1 & 2) was allowed and defendant was restrained from creating any sort of third party interest in the suit property. On same day, during the course of hearing on I.A. 7359/2009 (application under Order XXXIX Rule 10 CPC), the defendant undertook to deposit 50 per cent of the admitted rent from February 2009 till date in four weeks. On 22.09.2009, the defendant deposited Rs. 8,75,000/ in Court which was directed to be kept in an FDR, which FDR was released to the plaintiffs vide order dated 30.10.2009 and the defendant was directed to continue to make payment of 50% CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 5 of 19 of the admitted rent as per undertaking dated 12.08.2009. The defendant handed over the keys of tenanted suit property to the plaintiffs on 07.05.2010 and as such the relief of possession turned infructuous and the suit continued for arrears of rent/damages/mesne profits upto 30.04.2010 only.
8. Admission/denial of the documents was conducted on 13.08.2010 wherein plaintiffs admitted 8 photographs filed by the defendant and exhibited as Ex. D1 to D8.
Defendant also admitted 18 documents filed by plaintiff viz. (1) site plan of the suit property as Ex. P1; (2) lease deed as Ex. P2; (3) Legal notice dated 13.03.2009 sent by plaintiffs to defendant as Ex. P3 of which receipt is admitted and contents are denied; (4) reply to legal notice sent by defendant to plaintiff as Ex. P4; (5) certain photographs of the suit property as Ex. P5 to P9; (6) letter dated 19.08.2009 sent by defendant to plaintiff as Ex. P10; (7) reply of plaintiffs dated 24.08.2009 to defendant as Ex. P11 of which receipt is admitted and contents are denied; (8) letter of defendant dated 29.08.2009 sent to plaintiffs as Ex. P12; (9) reply of plaintiffs dated 03.09.2009 as Ex. P13; (10) photographs of suit property as Ex. P14 to P16 ; (11) Intimation letter dated 22.04.2009 sent to defendant as Ex. P17 (12) another intimation dated 25.04.2009 of exparte stay order as Ex. D18.
CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 6 of 19
9. From the pleadings of the parties, following issues were framed on 20.10.2010.
(1) Whether notice dated 13.03.2009 terminating lease of the defendant is not proper and bad in law? OPD.
(2) Whether the plaintiff has committed any breach of obligation under the lease deed dated 05.09.2008, if so, to what effect? OPD.
(3) If Issue no.2 is decided in affirmative, whether the defendant is entitled to invoking Doctrine of Suspension of rent and if so, to what amount? OPD.
(4) Whether the plaintiff is entitled to damages/mesne profits/monthly rent as prayed for? OPP.
(5) If answer to issue 4 is decided in affirmative, whether the plaintiff is entitled to interest @ 18% and arrears of rent/damages, if so to what rate and for what period? OPP. (6) Relief.
10. Sh. Sanjay Mahipal, Director of defendant got examined himself as DW1 vide affidavit Ex. DW1/A and relied upon photographs Ex. D1 to Ex. D8 and the documents viz., (1) board resolution dated 04.05.2009 (2) copy of notice for the violation dated 16.11.2009 as Ex. DW1/2; (3) letter of defendant counsel CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 7 of 19 dated 21.11.2009 sent to plaintiff counsel as Ex. DW1/3; (4) letter dated 10.11.2008 allegedly sent by defendant to plaintiffs as Ex. DW1/4; (5) letter dated 25.06.2009 sent by defendant to Post Master, Malviya Nagar as Ex. DW1/5; (6) letter dated 13.07.2009 issued by Department of Post as Ex. DW1/6; (7) Bill details of Architect of defendant as Ex. DW1/7; (8) positives of photographs given Ex. DW1/8 to DW1/15; (9) copy of letter dated 19.08.2009 sent by defendant to plaintiffs as Ex. DW1/16; (10) positives of photographs given Ex. DW1/17 to Ex. DW1/23; (11) Invoice/Bill of Capital Colour photo Lab as Ex. DW1/24; (12) letter dated 18.03.2010 sent by defendant counsel to plaintiff counsel regarding receipt of Local Commissioner report as Ex. DW1/25; (13) courier receipts as Ex.DW1/26 and Ex. DW1/27; (14) letter of defendant counsel dated 03.08.2010 sent to plaintiff with regard to enclosing of drafts as Ex. DW1/28; (15) courier receipt Ex. DW1/29; (16) copy of banker's cheques issued in favour of plaintiff as Ex. DW1/30 (colly) DW1 was crossexamined.
11. In evidence, plaintiff no.3 examined himself as PW1 vide affidavit Ex PW1/A. PW1 relied upon documents already admitted and marked as Ex. P1 to Ex. P10 as mentioned above and also relied upon documents viz., (1) original postal receipts and AD Card as Ex. PW1/1 to Ex. PW1/3; (2) courier receipts CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 8 of 19 as Ex. PW1/4 and Ex. PW1/5; (3) four digital photographs as Ex. PW1/6 to Ex. PW1/9; (4) cash memo of Studio as Ex. PW1/10; General receipts of MCD for payment of conversion charges dated 15.09.2008 and 29.09.2008 as Ex. PW1/11 and Ex. PW1/12 respectively; (5) four photographs of suit property as Ex. PW1/13 to Ex. PW1/16; (6) report of Local Commissioner as Ex. PW1/17 (colly) (which is also as Ex. DW1/C1). PW1 was crossexamined.
12. I have heard arguments addressed by Sh. Anuj Gupta, Ld. Counsel for plaintiffs; Ms. Shilpi Choudhary, proxy Counsel for defendant and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence, written arguments of parties, relied precedents and have also examined the record of the case.
13. Defendant counsel relied upon following precedents :
(i) Kailash Chand Jain Vs. Gayatri Devi Bhargava, 9 (1973) DLT 407;
(ii) Ved Rattan and Bros. Vs. Janak Raj, MANU/DE/ 0218/1978;
(iii) Surendra Nath Bibra Vs. Stephen Court Ltd. MANU/SC/0237/1966 and
(iv) Apparel Trends & Anr. Vs. Krishna Dandona & Ors., CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 9 of 19 MANU/DE/0471/1984.
14. My issue wise findings are as under :
Findings on Issues no. 1, 2 and 3 (1) Whether notice dated 13.03.2009 terminating lease of the defendant is not proper and bad in law? OPD. (2) Whether the plaintiff has committed any breach of obligation under the lease deed dated 05.09.2008, if so, to what effect? OPD.
(3) If Issue no.2 is decided in affirmative, whether the defendant is entitled to invoking Doctrine of Suspension of rent and if so, to what amount? OPD.
15.Since these issues are interconnected, so they are being taken up together for the findings.
16. Lease Deed Ex. P2 dated 05.09.2008 interse parties to the lis is admitted document and inter alia contains the covenant of Clause 8 which reads as follows :
" 8. That the Lessor has full right to cancel the Lease deed if the Lessee shall not pay two consecutive months rent to the lessor and shall be charged Rs. 10,000/ (Rupees Ten Thousand only) per day plus rent as a penalty for over stay in the above said premises."
CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 10 of 19
17. Notice Ex. P3 dated 13.03.2009 got sent by plaintiffs through counsel to the defendant is admitted to have been received by the defendant. Even postal receipts of speed post dated 13.03.2009 of said notice to defendant are Ex. PW1/1 and Ex. PW1/2 and the acknowledgement due card is Ex. PW1/3. Further reply to said notice Ex. P3 given by defendant the Ex. P4 through undated but bear date 09.04.2002 beneath signatures of counsel for defendant and the same incorporates the receipt of notice Ex. P3. In para 5 of the plaint it is alleged that notice Ex. P3 was served on defendant on 14.03.2009. In para 5 of reply on merits in written statement said fact has not been denied. It is also an admitted fact that rent of February 2009 and March 2009 was not paid by the defendant tenant when notice Ex. P3 dated 13.03.2009 was got issued by plaintiffs through their counsel. In terms of afore elicited clause 8 of Lease Deed, Ex. P2 the lessor had full right to cancel the lease deed in the event of non payment of rent of two consecutive months by the lessee whereas as per Clause 6 of Lease Deed Ex. P2, the monthly rent was payable in advance on or before 7 th day of each English Calender month.
18. Ex. P3 rest on the premise of non payment of rent for two consecutive months of February 2009 and March 2009 by CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 11 of 19 defendant lessee to plaintiff lessor. Ex. P4 contain no denial of non payment of rent for these months of February and March 2009 by defendant lessee to plaintiff lessor. Per contra, it is asserted in Ex. P4 that no rent is due as the amount spent by defendant lessee on inherent faults and defect in the building was much more than the amount due as alleged by plaintiff. Ex. P4 did not set up any precise amount alleged to have been spent by defendant lessee to cure any alleged inherent faults and defects in the portions let out. Defendant has not proved on record of having served upon any notice or letter including letter dated 10.11.2008 containing any demand from plaintiffs for curing any inherent faults and defects in the building and / or reimbursement of any amount spent for said purpose and / or adjustment of rent against any such amounts spent for cure of such inherent fault and defects in the let out portion. Also Ex. P4 finds no mention of either sending of any letter Ex. DW1/4 dated 10.11.2008 by defendant to plaintiffs nor contains averments of any facts so contained in letter dated 10.11.2008 alleged by defendant to have been sent to plaintiffs. No proof of service of letter Ex. DW1/4 dated 10.11.2008 has been proved on record by defendant in evidence. Ex. P2 contained no promise of lessor to construct stairs from back lane or removal of existing stairs or entitling defendant for any parking space.
CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 12 of 19
19. Report of Local Commissioner Ex. PW1/17 (colly) (also Ex.
DW1/C1) contains clear mention that as on the date of inspection i.e. on 04.03.2010, there had been no seepage in the suit property which could have prevented the defendant from running the business activities. Also no furniture of the defendant was found damaged. It is fact of the matter that tenanted suit property was well inspected by defendant prior to taking said premises on rent, as is borne out from lease deed Ex. P2 and even in crossexamination of DW1 that two months time was taken to make the tenanted suit property suitable to run his business in the month of October 2008 for his Show room purposes. Afore elicited report of Local Commissioner simply finds mention of observation of sum dampness on some portion of rear wall of basement which could be easily rectified. Same can not be made a premise by defendant for invocation of doctorine of suspension of rent as alleged by defendant relying upon the law laid in the cases of (i) Kailash Chand Jain (supra); (ii) Ved Rattan and Bros. (supra); (iii) Surendra Nath Bibra (supra) and (iv) Apparel Trends & Anr. (supra); since from the same, it can not be inferred that it sufficed to prevent in any manner the defendant in the running of his business in part or in toto in the suit property or it having adversely affected the working or having caused any loss(es) to CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 13 of 19 defendant.
20. Admitted photographs Ex. D1 to D8 of defendant also do not embody any depiction of leakage/seepage in the suit property to incapacitate defendant in running of business in the leased out suit property. Other photographs given Ex. DW1/8 to Ex. DW1/15 and Ex. DW1/17 to Ex. DW1/23 are neither accompanied by their negatives nor by any certificate under Section 65 B of Indian Evidence Act in case of they being secondary evidence as digital photographs, if it is so; so they have not been proved and cannot be appreciated in evidence. Photographer who photographed these photographs has not been brought into the witness box to prove them. DW1 himself had not taken these photographs.
21. Evidence on record is shorn of any fact proved by defendant to withhold the rent of the tenanted suit property for the period of February and March 2009 on any justifiable premise in terms of Lease Deed Ex. P2. Defendant has also failed to prove the fact of having communicated by letter or notice to plaintiffs of any fact of existence of inherent faults or defects in the suit property requiring repairs by plaintiffs or consequent thereto in default of plaintiffs to carry out such repairs then for the claim of reimbursement/adjustment of amount spent on repairs/cure of CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 14 of 19 such inherent faults and defects in the suit property. Neither the notice Ex. P3 dated 13.03.2009 terminating lease of defendant was bad in law nor plaintiff committed any breach of obligation under lease deed Ex. P2 nor defendant was entitled to invoke doctorine of suspension of rent. In view of the forgoing discussions, defendant has failed to discharge its onus on Issues 1,2 and 3. Issues 1 to 3 are decided against the defendant and in favour of plaintiffs accordingly.
Findings on Issue no.4 (4) Whether the plaintiff is entitled to damages/mesne profits/monthly rent as prayed for? OPP.
22. Lease Deed Ex. P2 dated 05.09.2008 also inter alia contains following clause 9 " 9. That the Lessor has full right to cancel the Lease deed if the Lessee shall not pay two consecutive months rent to the Lessor and shall be charged Rs. 10,000/ (Rupees Ten Thousand only) per day plus rent as a penalty for over stay in the above said premises."
23. Section 2 (12) of the Code of Civil Procedure defines mesne profits as follows :
2. Definitions - In this Act, unless there is anything repugnant in the subject or context, CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 15 of 19 (12) " Mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.
24. There is no cogent evidence led on record by the plaintiff to prove that the unauthorised occupant viz. the defendant had actually received or might with ordinary diligence have received by use and occupation of the suit property, any sum exceeding the sum which for such period was payable as rent @ Rs. 2,50,000/ per month by defendant to plaintiffs. Clauses 8 and 9 in themselves embody as afore elicited that Rs. 10,000/ per day besides the rent was a penalty for overstay in the suit property. Accordingly, the additional sum of Rs. 10,000/ per day besides monthly rent of Rs. 2,50,000/ in suit property is not the pre estimate of damage but in fact is penal in nature and as such the same cannot be of any assistance for determining the mesne profits. Claim of plaintiff for any amount exceeding the agreed monthly rent sum of Rs. 2,50,000/ for use and occupation of the suit property by defendant for overstay, has no merits and is declined.
CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 16 of 19
25. It is admitted fact that during pendency of the case, the defendant had paid total sum of Rs. 11,25,000/ as Rs. 8,75,000/ were so paid/deposited by way of draft on 22.09.2009 and Rs. 2,50,000/ as drafts were deposited on 03.08.2010. Besides that the security sum of Rs. 7,50,000/ was under deposit with plaintiffs, so deposited by the defendants at the time of letting out of the property.
26. The plaintiffs accordingly were entitled for receipt of Rs.
2,50,000/ per month for use and occupation charges of tenanted suit property from defendant for period 01.02.2009 till 30.04.2010 that is for period of 15 months totalling Rs. 37,50,000/. Out of same Rs. 11,25,000/ as afore elicited amount received in pendency of suit as well as security of Rs. 7,50,000/ needs to be reduced. So balance recoverable sum for use and occupation of the tenanted suit property by plaintiffs from defendant is Rs. 18,75,000/ . Plaintiffs are held entitled for recovery of Rs. 18,75,000/ from defendant. Issue no.4 is decided accordingly in favour of plaintiff and against the defendant.
Issue no. 5 (5) If answer to issue 4 is decided in affirmative, whether the plaintiff is entitled to interest @ 18% and arrears of CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 17 of 19 rent/damages, if so to what rate and for what period? OPP.
27. In view of findings on Issues no. 1 to 4, plaintiffs were entitled for monthly rent/use and occupation charges of tenanted suit property from defendant @ Rs. 2,50,000/ payable in advance on 7th day of every English Calender month in the period from 01.02.2009 to 30.04.2010. Out of such sums payable Rs. 8,75,000/ vide drafts were deposited on 22.09.2009, whereas the drafts totalling Rs. 2,50,000/ were deposited on 03.08.2010 and security sum of Rs. 7,50,000/ stood earlier deposited by defendant with the plaintiffs at the time of letting out of tenanted suit property. Security is first adjustable towards payable sum of rent/use and occupation charges, not paid by defendant. Plaintiffs were engaged in business / commercial purposes and defendant company was working for gain. In the fact of the matter, having regard to nature of the commercial transaction between the parties, finding it expedient in the interest of justice, plaintiffs are accordingly held entitled for interest @ 12% per annum. In above terms, Issue no.5 is accordingly decided in favour of the plaintiffs and against the defendant.
Relief
28. In view of my findings with respect to issues no. 1 to 5, CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 18 of 19 plaintiffs are held entitled to (i) sum of Rs. 18,75,000/ from defendant; (ii) interest @ 12 % per annum on the payable monthly rent/use and occupation charges of Rs. 2,50,000/ per month payable and not paid by defendant in the period from 01.02.2009 to 30.04.2010; out of which initially the security sum of Rs. 7,50,000/ under deposit with plaintiff since inception of tenancy is first adjustable and later thereto on 22.09.2009, Rs. 8,75,000/ and on 03.08.2010, Rs. 2,50,000/ lakhs were paid by defendant to plaintiff to which necessary adjustments are to be given. Suit is decreed accordingly with proportionate costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (GURVINDER PAL SINGH) Court on 17.10.2017. Additional District Judge 01(SE), Saket Courts, New Delhi. (sm) CS - 10552/16 Mrs. Sulochana Aggarwal & Ors. Vs. M/s. Vanshis Stores Pvt. Ltd. page 19 of 19