Delhi District Court
Sh Jaswinder Singh S/O Sh S.S. Duggal vs M/S Vectra Projects Lighening Pvt. Ltd on 14 October, 2019
IN THE COURT OF MS VANDANA JAIN
ADDITIONAL DISTRICT JUDGE-07 (SE)
SAKET COURTS NEW DELHI
CS No. 6962/16
[MORE THAN FIVE YEARS OLD]
In the matter of:
1. Sh Jaswinder Singh S/o Sh S.S. Duggal
R/o D-47, Fateh Nagar, Tilak Nagar,
New Delhi.
2. Sh. Surinder Singh Duggal S/o Late Sh Bishan Singh
Duggal R/o D-47, Fateh Nagar, Jail Road, Tilak Nagar,
New Delhi-110018.
...........Plaintiffs
VERSUS
1. M/s Vectra Projects Lighening Pvt. Ltd
Having its registered office at:
2nd Floor Unit No. 4,
Raghuvanshi Mill Compound
Senapati Bapat Marg, Lower Parel, Mumbai 40013
Also at
C/o D-3, basement, Defence colony, New Delhi
............ Defendant
Date of Institution : 13.02.2014
Date of Reservation : 03.10.2019
Date of Judgment : 14.10.2019
JUDGMENT
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1. The present was filed by the plaintiff for recovery of possession, arrears of rent as well as for damages/mesne profits, however, possession was taken by plaintiff though there is dispute with respect to the date of handing over the possession.
2. Brief facts as stated in the plaint are that plaintiff is the owner of basement measuring about 1250 Sq Ft of the property bearing no. D-3, Defence Colony, New Delhi. It is further averred that on 25.09.2012, plaintiff let out a portion of the basement of the said property measuring 450 Sq Ft (hereinafter referred to as suit premises) to the defendant on the basis of the lease deed dated 25.09.2012 at a monthly rent of Rs. 57,000/- excluding all other charges for a period of four years w.e.f. 01.10.2011 for godown purposes alongwith the right to use the entrance, passages and stairs and common area in respect of the tenanted premises.
3. It is further stated that it was agreed that defendant shall not vacate the tenanted premises before the expiry of 15 months which is lock-in period and if defendant wants to vacate the Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 2 of 26 tenanted premises, then he shall be under an obligation to pay the rent to the plaintiff for the remaining lock in period.
4. It is further stated that defendant started paying the rent in respect of the said premises to the plaintiff and the defendant has failed to pay the rent w.e.f. January, 2013 onwards at the rate of Rs. 57,000/- per month inspite of repeated requests. Thereafter, plaintiff terminated the tenancy of the defendant vide notice dated 07.11.2013 which was duly received by the defendant and defendant has removed the goods lying therein and closed the business premises and illegally locked the tenanted premises. Thereafter, on 06.12.2013, plaintiff was being compelled to send a reminder to the defendant requesting the defendant to vacate the tenanted premises and the said notice was also received by the defendant but defendant failed to comply with the same. Hence, this suit was filed.
5. Written statement was filed by defendant stating that Sh. S.S. Duggal, one of the landlord (father of the plaintiff) had already Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 3 of 26 filed a suit against the defendant as well as the plaintiff claiming himself to be the co-landlord and is claiming possession of the suit premises and arrears of rent. It is further stated that Sh. S.S. Duggal who is one of the co-owner of the tenanted premises has levelled an allegation of fraud against the plaintiff. It is further stated that defendant had surrendered the tenancy of the tenanted premises to the plaintiff and defendant is not liable to pay either rent or mesne profits. It is further stated that suit of the plaintiff is bad for non-joinder of necessary parties. It is further stated that lease was executed by the plaintiff claiming himself to be SPA of his father namely Sh. S.S. Duggal and tenanted premises was leased out to the defendant by the plaintiff on behalf of his father Sh. S.S. Duggal. It is further stated that plaintiff had represented and assured the defendant that he is duly authorized by his father Sh. S.S. Duggal to let out the tenanted premises but father of plaintiff started interfering and interrupting with the possession and was raising illegal and dishonest demands for the damages from the defendant on the plea that his son i.e. plaintiff herein had forged his SPA and wrongly let out the suit premises to the Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 4 of 26 defendant on his behalf.
6. It is further stated that defendant no. 1 was in the possession of the tenanted premises vide lease deed dated 25.09.2012 for the portion of basement admeasuring 450 Sq Ft.
7. It is further stated that on account of dispute between Sh. S.S. Duggal and plaintiff, defendant notified the plaintiff on 15.06.2013 about his intention of vacating the premises within three months and accordingly surrendered the tenancy and possession of the same in September, 2013 upon expiry of three months. However, plaintiff did not come forward to take the possession of the tenanted premises and accordingly defendant through its counsel served a notice dated 10.10.2013 upon plaintiff which has been duly served upon plaintiff and accordingly the possession of the suit premises and tenancy stood surrendered to him. It is further submitted that an amount of Rs. 1,71,000/- was deposited by defendant as refundable security for 450 Sq Ft of basement which is lying with the plaintiff. It is further stated that Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 5 of 26 defendant is not in possession of the tenanted premises.
8. It is further stated that defendant was entitled to put up its board at the entrance of the showroom to show the public and prospective customers, however, frontage was blocked by the board put up by th bank due to which the defendant had no space to put up its own board and this fact was duly informed to the plaintiff, however, plaintiff was not able to make available the frontage for display of name board of defendant.
9. It is further stated that defendant had on or about 15.06.2013 put the plaintiff to notice that premises shall be vacated and lease shall be determined by September 2013 which was accordingly done. It is further stated that suit of the plaintiff is false and is liable to be dismissed with costs.
10. Replication to written statement was filed wherein the contents of the plaint were reiterated and defence raised in the written statement was denied.
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11. Thereafter, issues were framed on 28.07.2014 as under:-
(i) Whether the defendant is liable to pay arrears of rent, mesne profits/damages? If so, at what rate and for which period ?
(ii) Relief.
12. Thereafter, matter was listed for plaintiff evidence. Plaintiff examined himself as PW-1. PW-2 also examined Sh. N.K. Saini, Architect. Thereafter, plaintiff evidence was closed.
13. Defendant company examined Sh. Manoj Yadav, Technician as DW-1. Thereafter, DE was closed.
14. Thereafter, matter was listed for final arguments.
15. I have heard the arguments and have perused the record carefully.
16. I shall decide issue as under:-
Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 7 of 26
(i) Whether the defendant is liable to pay arrears of rent, mesne profits/damages? If so, at what rate and for which period ?
17. Ld counsel for plaintiff has argued that possession of the suit premises was handed over by the defendant to the plaintiff by the order of the court dated 16.05.2014. It is argued that defendant is in arrears of rent from January 2013 till January 2014. Ld counsel for plaintiff has argued that legal notice terminating the tenancy was served upon defendant, however, no reply to the same was filed and eventually present suit was filed in the year 2014. Ld counsel for plaintiff has argued that mesne profits be granted from February, 2014 till May 2014, when the possession was handed over in pursuance of court orders. It is further argued that defendant was also in arrears of electricity charges to the tune of Rs. 5000/- and same be also granted. Ld counsel for plaintiff has further argued that while vacating the suit premises, the defendant had caused damage in the suit premises and in order to prove those damages he has examined PW-2 Sh N.K. Saini, Architect Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 8 of 26 and, therefore, damages be also granted.
18. On the other hand, Ld counsel for defendant has argued that suit filed by plaintiff is completely false. He has further argued that during the pendency of the suit, father of the plaintiff namely Sh. S.S. Duggal filed an application under Order 1 Rule 10 CPC and vide order dated 24.11.2014, he was impleaded as plaintiff no. 2 in the suit. He has further argued that vide separate statement recorded on 03.08.2015, matter was settled between the plaintiff and his father and as per the compromise, both were to share the profits and liabilities equally of the outcome of the judgment passed in the present case.
19. It is further argued that in the application under Order 1 Rule 10 CPC, father of the plaintiff had categorically stated that he had not executed any power of attorney in favour of his son (plaintiff) and plaintiff fabricated the same in his own favour and let out the suit premises on rent to the defendant. Ld counsel has further argued that Sh. S.S. Duggal has filed a separate suit against plaintiff and defendant no. 2 herein and on recording compromise Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 9 of 26 between father and son, the suit was withdrawn by father of the plaintiff and he joined the present suit as co-plaintiff. He has further argued that in January, 2013 father of the plaintiff started creating hindrance in the peaceful running of the business of the defendant on the said premises and eventually in June 2013, defendant sent a notice to the plaintiff intimating his intention of vacating the suit premises and further asked the plaintiff to take possession of the same. Ld counsel for defendant submits that three months notice was given and the suit premises was vacated on 30.09.2013, though, nobody from the plaintiff side came to take possession. It is further argued that again notice dated 10.10.2013 was sent through Advocate to the plaintiff wherein it was stated that security amount of Rs. 1,71,000/- has not been refunded. It was further stated that lease deed was terminated by the defendant on 15.06.2013 and plaintiff was called upon to take over suit premises. He further argued that reply to this notice was sent by plaintiff wherein there is no denial of the receipt of the oral notice dated 15.06.2013 by which defendant conveyed its intention to terminate the lease deed by giving three months notice in terms of Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 10 of 26 clause 4 of the lease deed dated 25.09.2012. Ld counsel for defendant has further argued that since the suit premises was vacated by the defendant on 30.09.2013, therefore, defendant is not liable to pay any rent or damages/mesne profits thereafter. He further argued that this relief of damages is beyond pleadings and affidavit in respect of same which is beyond pleadings cannot be considered and, therefore, testimony of PW-2 i.e. Sh N.K. Saini, Architect cannot be considered. He has further argued that his security has not been refunded and, therefore, suit is liable to be dismissed.
20. I have heard the arguments and have perused the record carefully.
21. Execution of lease deed dated 25.09.2012 with respect to portion of the basement measuring 450 Sq Yds at monthly rent of Rs. 57,000/- excluding all other charges for a period of five years is admitted. The rent till December, 2012 has been paid as per the version of plaintiff. Defendant has taken a defence that first lease Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 11 of 26 deed was for a period of four years. However, father and brother of the plaintiff started coming to demised premises and used to question how defendant has taken the premises on lease from the plaintiff. It is stated that father of the plaintiff also filed a suit against plaintiff and the defendant and therefore he could not peacefully enjoy the suit premises. It is also stated that defendant was restrained from putting a board at the entrance of the showroom (demised premises) for prospective buyers and customers.
22. As far as disturbance is concerned, the same is apparent from the fact that father of the plaintiff had filed an application under Order 1 Rule 10 CPC in the present suit whereby he stated that he had not authorized his son to lease out the demised premises. A settlement was entered into between the father and the son (plaintiff herein) and it was decided that the benefits and liabilities of this case shall be borne by the father and the son (plaintiff) equally. In fact, Ld Predecessor of this Court had observed in order dated 27.01.2015 that :-
Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 12 of 26
"Possession in this case have been handed over in court by the defendant M/s Vector Project to plaintiff. It shall be deemed to have been handed over to both the plaintiffs...............".
Meaning thereby that father of the plaintiff was also made co- plaintiff which is is also apparent from the order dated 24.11.2014 passed by Ld Predecessor of this court on the application under Order 1 Rule 10 CPC whereby the father of the plaintiff was arrayed as plaintiff no. 2. It is pertinent to mention here that plaintiff on its own filed another memo of parties showing his father to be defendant no. 2. It is clarified that father of the plaintiff is plaintiff no. 2. This fact clearly shows that there was some dispute between the plaintiff and his father and since suit was filed by father of the plaintiff against the plaintiff herein and defendant which was later on withdrawn in pursuance of settlement between father and his son (plaintiff), therefore, testimony of the defendant's witness to the effect that there was disturbance in the demised premises is absolutely correct.
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23. Plaintiff admits that it had the knowledge of the defendant's intention to terminate the tenancy on giving oral notice by defendant in June 2015. This admission is reflected in the reply dated 17.10.2013 to the legal notice of defendant of 10.10.2013. However, plaintiff through his Advocate categorically stated in the said reply that the possession was not handed over to him and the suit premises was under the lock and key of defendant and articles of defendant were lying there. No counter reply to the said reply was filed. Eventually a legal notice dated 07.11.2013 was issued by plaintiff upon defendant terminating his tenancy. Thereafter reminder dated 06.12.2013 was sent but to no avail and suit for possession was filed and during the pendency of the suit possession was taken by the order of the court in May 2014. Whereas defendant has taken a defence that by its oral notice dated 15.06.2013 defendant had intimated its intention to vacate the suit premises and to take possession by giving three months notice but no one turned upon on behalf of plaintiff to take possession of the suit premises and on 30.09.2013 defendant Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 14 of 26 vacated the suit premises without any lock of the defendant in the suit premises and by notice dated 10.10.2013, he intimated about surrender of tenancy and demanded the security deposit back.
24. This fact categorically finds mention in the para no. 5 of the reply on merits in written statement wherein it was stated that:-
"It is submitted that the defendant had on or about 15th June 2013 put the plaintiff on notice that the premises shall be vacated and lease shall be determined by September 2013 which was accordingly done."
25. Defendant himself admits that possession was never handed over to any specific person. Now, from the aforesaid discussion, a legal proposition arises. Whether the tenancy would be deemed to be surrendered in view of oral intimation by defendant to vacate without handing over the vacant and peaceful possession to the plaintiff or the handing over the possession to plaintiff was necessary.
Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 15 of 26
26. Section 111 (h) of Transfer of Property Act, 1882 provides that "A lease of immovable property determines:-
(h) "on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
27. In the said section it is not mentioned that notice should be in writing, therefore, it is clear from the record that oral notice to determine the lease was given by the defendant to the plaintiff.
28. Section 108 of Transfer of Property Act, 1882 provides rights and liabilities of the lessor and lessee. Section 108 (q) of Transfer of Property Act 1882 provides the rights and liabilities of the lessee and is reproduced herein under:-
" on the determination of the lease, the
lessee is bound to put the lessor into
possession of the property."
29. Reading of Section 111(h) coupled with Section 108(q) of Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 16 of 26 Transfer of Property Act, 1882 shows that Section 111(h) is only for determination of lease and once the lease is determined, the liability of lessee does not stop there. Lessee is bound to put lessor into possession of the property. It is an admitted case of the defendant that possession was never handed over by defendant to the plaintiff though it is verbally stated that three months notice was given to plaintiff to take possession but nobody turned up. There is no averment that plaintiff was asked to come on fixed date and time to take the possession and goods were removed by the defendant and possession was handed over. It is simply stated that suit premises was left abandoned without any lock of defendant and DW-1 had gone to the extent of saying that on the next day it was checked and it was found that plaintiff had put its lock on the same. Notice dated 10.10.2013 was given by the defendant reiterating the factum of determination of lease by the defendant and surrendering of tenancy to which reply was given by the plaintiff wherein it was categorically mentioned that articles and goods of defendant were lying in the premises and premises was locked by the defendant and possession was not handed over. No Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 17 of 26 counter reply to this reply was ever filed by the defendant despite the same having been delivered at the same address which was mentioned in the notice dated 10.10.2013. Plaintiff in order to secure its rights thereafter issue notice of termination dated 07.11.2013 at the very same address. DW-1 had categorically admitted the address of the defendant given on that notice, however, it is stated that notice was never received. Section 114(f) of the Indian Evidence Act and Section 27 of the General Clauses Act clearly raises a presumption of fact and law in favour of plaintiff with respect to delivery of such notice sent by registered post. Postal receipt is there on record.
30. In this regard, reliance is placed upon Har Charan Singh Vs. Shiv Rani, AIR 1981 SC 1284 where it was held that:-
"7. Section 27 of the General Clauses Act, 1897 deals with the topic 'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 18 of 26 service shall be deemed to be effected by properly addressing, prepaying and posting it 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. The section thus arises a presumption of due service of proper service if the documents sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more.
Similar presumption is raised under Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 19 of 26 Illustration (f) of Section 114 of the Indian Evidence Act where under it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by addressee. .....It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed, with the knowledge of the contents thereof and in our view, this follows upon the presumptions that are raised under Section 27 of the General Clause Act, 1897 and Section 114 of the Indian Evidence Act."
31. Reading of the aforesaid judgment makes its crystal clear that notice dated 07.11.2013 was delivered upon the defendant but despite having demanded vacant and peaceful possession by the plaintiff, defendant did not turn up. Thereafter, reminder dated Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 20 of 26 06.12.2013 was sent to the defendant at the very same address and address is admitted to be correct by DW-1 in the cross examination. This notice talks about the removing of goods by defendant after service of notice dated 07.11.2013 but premises being locked by the defendant under its lock and key and ultimately present suit was filed wherein court directed the plaintiffs to take possession. It was taken in May, 2014. The plaintiff and his father Sh. S.S. Duggal jointly took the possession which is specifically mentioned in the order dated 27.01.2015 and possession is admitted to have been handed over to both the plaintiffs.
32. Ld counsel for defendant has relied upon judgment ICRA Ltd Vs. Associated Journals Ltd 2007 (98) DRJ 638 stating that once notice of termination has been given by the defendant the physical possession is not to be handed over and it can be assumed that constructive possession was handed over to the defendant. In the aforesaid judgment, notice in writing was given by defendant terminating the lease thereby calling the landlord to Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 21 of 26 take the possession of the demised premised and refund balance security amount. In the entire judgment, it is not clarified that whether any arrears of rent were due upon tenant in that case. The entire facts are not before this court so as to see whether factual situation was similar therein as to compare them with the facts of case in hand. It is further important to note that in that judgment, plaintiff even communicated to the defendant about its shifting to another premises but even then defendant did not take note of. At least six reminders were sent to take possession but possession was not taken. In these circumstances, Hon'ble High Court of Delhi held that constructive possession was handed over by defendant to the plaintiff, however, in the present case defendant has not shown its bonafides by clearing the arrears of rent and further it is not clear from the material on record that vacant and peaceful possession of the suit premises was handed over by the defendant to plaintiff. Therefore, this judgment cannot be said to applicable to the facts of the present case in hand.
33. Reliance is placed upon judgment Padma Sundara Rao & Ors Vs. State of Tamil Nadu & Ors (2002) 3 SCC 533 wherein it Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 22 of 26 was held that:-
"Courts should not place reliance on
decisions without discussing as to how the
factual situation fits in with the fact
situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, a it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.
34. Plaintiff has categorically alleged that rent has been paid till 2012. The defendant's witness has also stated that there was no disturbance in demised premised till the execution of second lease in September, 2012 for which another case is pending and the disturbance started only after January 2013. It is a matter of record that DW-1 was asked to show documents about payment of rent, however, no document was produced. This court has no reason to disbelieve the averment of the plaintiff that no rent was paid from January, 2013. Admittedly, defendant gave a notice intimating Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 23 of 26 about his intention to determine the lease within three months from 15.06.2013, however, facts remains that even the arrears of rent was not cleared before giving that oral notice. Lessee is bound to pay/tender rent at proper time and place to the lessor as per Section 108(l) of Transfer of Property Act, 1882. It so appears that letter dated 10.10.2013 was deliberately sent through its Advocate by the defendant in order to create a piece of evidence so as to use it in future in order to avoid payment of rent legally due and payable to the plaintiffs.
35. Therefore, it is observed that possession was delivered to plaintiffs in May, 2014 i.e. during the pendency of this case in pursuance of direction of this court. It is also observed that notice dated 07.11.2013 terminating the tenancy was received by the defendant thereby converting the status of defendant from tenant to unauthorized occupant. Perusal of record further reveals that security of Rs. 1,71,000/- was taken by plaintiff which is equal to three months rent. It is clarified that this security amount was taken by plaintiff Jaswinder Singh and not by his father, though decreetal amount is to be received by father and plaintiff in equal shares. Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 24 of 26 Plaintiff no. 2 shall be entitled accordingly to an additional amount of half of security deposit from the decreetal amount.
36. As far as the testimony of Architect (PW-2) is concerned, the said witness has been examined in order to say that defendant had damaged the suit premises while vacating and Architect has assessed the damages in this regard. It is argued by defendant that no amendment was sought in the plaint after taking possession of the suit premises in pursuance of court order seeking relief of damages and no application was filed in order bring on record the factum of suffering damages by the plaintiff and straightway this witness was examined which is beyond pleadings and, therefore, evidence of PW-2 cannot be considered. The evidence with respect to damages of the suit premises can not be considered in view of submissions made by defendant as the affidavit of PW-2 is beyond the pleadings of plaintiff and no relief of damages has been sought in the suit. Hence, issue no. 1 is decided in favour of plaintiffs and against defendant.
Relief.
37. Defendant is liable to pay rent to plaintiffs @ Rs. 57,000/- per Jaswinder Singh Vs. M/s Vectra Project Lighting Pvt Ltd Page 25 of 26 month from January, 2013 till November 2013 and mesne profits/damages @ Rs. 57,000/- + 10% increase from December, 2013 till 30.04.2014 as date of possession has not been clearly stated by plaintiffs. Plaintiff no. 2 shall be entitled to an additional amount of half of security deposit (Rs. 85,500/-) from the decreetal amount granted above. Plaintiff no. 1 shall be entitled to decreetal amount minus Rs. 85,500/- which is to be paid to plaintiff no. 2 as directed above. Plaintiff are further entitled to interest on the total amount of arrears of rent and mesne profits as would be outstanding as on 01.05.2014 @ 9 % per annum w.e.f. 01.05.2014 till realization.
38. Decree sheet be prepared accordingly. No order as to costs.
39. File be consigned to Record Room.
Digitally signed by
VANDANA VANDANA JAIN
JAIN Date: 2019.10.19
16:23:41 +0530
Announced in the open ( VANDANA JAIN)
court on 14.10.2019 Additional District Judge-07/SE
Saket Courts, New Delhi.
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