Delhi District Court
Correspondence Address vs Sushma Bhatia on 24 March, 2022
IN THE COURT OF SH. DHEERAJ MITTAL:
SENIOR CIVIL JUDGECUMRENT CONTROLLER
NEW DELHI DISTRICT, PATIALA HOUSE COURTS
NEW DELHI
RC ARC No. 46/18
In the matter of :
Kedar Nath Mangal
S/o Sh. Chuni Lal
r/o at present resident of 6173,
Louse Cove Drive, Windermere FL 34786 USA
Through his attorney, his son
Dr. Ajay Kumar Mangal
Correspondence Address:
809, Uyog Vihar, PhaseV,
Guru Gram (Gurgaon) (HARYANA) 122016
At present resident of 6173, Louse Cove Drive,
Windermere FL 34786 USA
... Petitioner
Vs.
1. Sushma Bhatia
W/o Late Sh. Kamal Bhatia
2. Sumit Bhatia
S/o Late Sh. Kamal Bhatia,
both r/o C93A, 1st floor, Hari Nagar,
Near Clock Tower, New Delhi110064.
3. Ekta Bhatia, since deceased
Through her legal heirs
(a) Raj Kumar Bhatia (husband)
RC ARC No. 46/18 Kedar Nath Mangal Vs. Sushma Bhatia & Ors. Page No.1 of 9
(b) Akansha Bhatia (daughter)
Minor through her father Raj Kumar Bhatia
(c) Janvi (daughter)
Minor through her father Raj Kumar Bhatia
All r/o F68, Sadbhawana Apartment,
Pitam Pura, Delhi
4. Pooja Arora
D/o Late Sh. Kamal Bhatia
r/o E2, Flat No.304, Fortune Divine City,
Misrod Hosangabad Road, Bhopal (MP)
.... Respondents
Date of institution of the petition : 02.08.2018.
Date on which judgment was reserved : Not Reserved
Date of pronouncement of judgment : 24.03.2022.
Final Judgment : Petition is allowed.
JUDGMENT
1. The petitioner has filed the present petition against the respondents U/s 14(1)(a) of Delhi Rent Control Act, 1958 (DRC Act) on the ground of non payment of rent.
2. It is stated by the petitioner that he is the absolute and exclusive owner of the shop situated on the ground floor, measuring 160 sq. ft. (approx.) in property bearing no. CB170B/3, Ground Floor, Ring Road, Narayana, Delhi Cantt. New Delhi (hereinafter referred to as suit shop) (as shown in the site plan Ex.PW1/3). It is further mentioned by the petitioner that the suit shop was given on rent to RC ARC No. 46/18 Kedar Nath Mangal Vs. Sushma Bhatia & Ors. Page No.2 of 9 Late Sh. Kamal Bhatia, the deceased predecessor in interest of the respondents in the year 1992 vide lease deed dated 16.01.1992. It is further mentioned that earlier one petition was filed under 14 (1)(a) DRC Act against Mr. Kamal Bhatia on the basis of legal notice dated 01.09.2016, however, the said petition was withdrawn as it was found that Mr. Kamal Bhatia had expired on 13.11.2016. It is further mentioned that thereafter the petitioner sent a fresh legal notice dated 23.04.2018 Ex.PW1/5 to the respondents terminating their tenancy qua the suit shop and demanding the arrears of rent. Since the respondents did not pay the arrears of rent despite service of legal notice dated 23.04.2018, the present petition has been filed by the petitioner against the respondents.
It is mentioned by the petitioner that the rate of rent is Rs.800/ per month and the respondents have not paid the rent since March, 2008.
It is mentioned that the present petition has been filed by the petitioner through his son/authorised representative Mr. Ajay Kumar Mangal, who has been authorised vide General Power of Attorney dated 26.01.2016 Ex.PW1/1.It is further mentioned that during the proceedings respondent no.3 Mrs. Ekta Bhatia expired and her LRs were impleaded in the matter under Order 22 Rule 4 CPC. Amended memo of parties dated 23.04.2019 filed by the petitioner was taken on record.
With these facts, the petitioner has filed the present petition U/s 14(1)(a) DRC Act for eviction of the respondents from the suit shop.
3. Notice of the petition was issued to the respondents. The respondent no.2 Mr. Sumit Bhatia appeared and filed his written statement. It is noted that the RC ARC No. 46/18 Kedar Nath Mangal Vs. Sushma Bhatia & Ors. Page No.3 of 9 other respondents did not file any written statement on record. It is further noted that only respondent no.2 has contested the present matter.
4. In the written statement filed by respondent no.2 Mr. Sumit Bhatia, respondent no.2 did not dispute the landlord tenant relationship between the parties (Refer to para 3 (a) & (b) of reply on merits of the written statement). The respondent no.2 stated that the rate of rent of the suit shop is Rs.800/per month (Refer to para no. 11 of reply on merits of the written statement). The respondent no.2 also admitted the execution of lease deed dated 16.01.1992 (Refer to para no. 18 (a)(iii) of reply on merits of the written statement).
The respondent no.2 mainly took the stand that right to sue survives only against the respondent no.2 as the other respondents are not in use and occupation of the suit shop and the respondent no.2 is alone running the suit shop. The respondent no.2 denied the receipt of legal notice dated 23.04.2018. Respondent no.2 vaguely taken the stand that he has paid the rent to the attorney/some person of the petitioner, but he did not mention name of the person to whom the rent was paid.
5. Thereafter, petitioner filed replication to the written statement of respondent no.2. In the replication the petitioner denied the averments made in the written statement filed by respondent no.2 and reiterated the averments made in the petition and the same are not repeated for the sake of brevity.
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6. After completion of pleadings of the parties, matter was fixed for petitioner's evidence.
7. In the petitioner's evidence, the petitioner examined Sh. Ajay Kumar Mangal (son/attorney holder of the petitioner) as PW1, who tendered his evidence by way of affidavit Ex.PW1/A. In his evidence, PW1 reiterated the averments made in the petition and mainly relied upon the following documents :
(i) Photocopy of General Power of Attorney dated 26.01.2016 Ex.PW1/1 (OSR);
(ii) Site plan is Ex.PW1/3;
(iii) Copy of Legal notice is Ex.PW1/5;
(iv) Original postal receipts are Ex.PW1/6 (colly.) (3 Pages)
(v) Tracking report is Ex.PW1/7 (colly.) 4 Pages)
(vi) Photocopy of lease deed dated 16.01.1992 Mark A and
(vii) Photocopies of two rent receipts both dated 02.12.2008 Mark B (colly.) PW1 was crossexamined by the opposite party. Thereafter, at the request of the petitioner, the petitioner's evidence was closed and the matter was fixed for respondent's evidence.
8. In the respondent's evidence, respondent no.2 Sumit Bhatia examined himself as RW1. RW1 tendered his evidence by way of affidavit Ex.RW1/A. It is noted that RW1 did not file/rely upon any document in his evidence. RW1/respondent no.2 Mr. Sumit bhatia reitereated the averments made in his written statement and the same are not reproduced for the sake of brevity. RW1 RC ARC No. 46/18 Kedar Nath Mangal Vs. Sushma Bhatia & Ors. Page No.5 of 9 was crossexamined by the counsel for the petitioner. Thereafter, respondent no.2 voluntarily closed his evidence. It is noted that other respondents did not lead any evidence. Thereafter, with the consent of both the Advocates, final arguments are heard on the same day.
9. I have heard final arguments from the Ld. Counsels for the parties and carefully perused the entire case file.
10. It has been noted above that only the respondent no.2 has contested the present petition and that too only on the ground that the legal notice dated 23.04.2018 was not served upon him. It has been noted above that respondent no.2 has not disputed that landlord tenant relationship, the execution of lease deed dated 16.01.1992. The respondent no.2 has stated that the rate of rent of the suit shop is Rs.800/p.m. The respondent no.2 has taken the plea that the legal notice dated 23.04.2018 Ex.PW1/5 was not served upon him. PW1 in his evidence has exhibited the copy of legal notice dated 23.04.2018 as Ex.PW1/5 alongwith registered postal dispatch receipts and courier receipts as Ex.PW1/6 (colly). In the legal notice dated 23.04.2018 the address of the respondent no.2 Sumit Bhatia has been mentioned as resident of C93A, First Floor, Hari Nagar, Near Clock Tower, New Delhi110064. In the crossexamination of the respondent no.2 (RW1), respondent no.2 admitted that his address as C93A, First Floor, Hari Nagar, Near Clock Tower, New Delhi110064. The respondent no.2 (RW1) during his crossexamination further admitted that the same address has been mentioned in the legal notice dated 23.04.2018 Ex.PW1/5. From these RC ARC No. 46/18 Kedar Nath Mangal Vs. Sushma Bhatia & Ors. Page No.6 of 9 facts, it is clear that the legal notice dated 23.04.2018 was sent through registered post as well as courier to the respondent no.2 at the correct address of the respondent no.2, which he has admitted during his crossexamination. As per Section 27 of The General Clauses Act, 1897, there is a presumption of delivery of notice/summons if the same has been sent through registered post at the correct address of the addressee.
In view of these facts and reasons, the bald plea of the respondent no.2 Sumit Bhatia that the legal notice dated 23.04.2018 Ex.PW1/5 was not served upon him is rejected and it can said that the legal notice dated 23.04.2018 Ex.PW1/5 was served upon the respondent no.2.
11. The respondent no.2 Sumit Bhatia has taken the vague plea in written statement that he has paid the rent to some person/attorney of the petitioner, without naming that person. It is settled proposition of law that if the landlord/owner refuses to accept the rent tendered by the tenant, the tenant can deposit the rent in the court under Section 27 of the DRC Act. The respondent no.2 has not taken the stand that he has deposited the rent in the court under Section 27 of the DRC Act. Once the respondent no.2 has admitted that he has not deposited the rent under Section 27 of the DRC Act and in view of the fact that respondent no.2 has not produced any document to the effect that he tendered/paid rent to the attorney/person of the petitioner, it cannot be accepted that the respondent no.2 has paid or tendered the rent to the petitioner and therefore, it is clear that the respondent no.2 has not tendered/paid the rent to the petitioner.
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12. It is noted that my Ld. Predecessor vide order dated 12.07.2019, passed order under Section 15 (1) of the DRC Act and directed the respondent no.2 as follows:
"As such, respondent no.2 is liable to pay rent @ Rs.800/ per month for last three years since the date of filing of the present petition subject to enhanced rent @ 880/ per month which was sought vide notice dt. 23.04.2018 w.e.f. April, 2018 till August, 2018 to the petitioner alongwith the interest at the rate of 15% per annum within 15 days from today. Also, respondent no.2 is liable to pay rent after 31.07.2019 to the petitioner month by month by the 15 th day of each calendar month by depositing the same in the bank account of the AR of the petitioner whose details are mentioned below:
Name : Ajay Kumar Mangal
IFSC : KKBK0004257
Account no. : 1211763753
Bank : KOTAK MAHINDRA BANK
N & N1, Enkay Tower, Vniya Nikunj
PhaseV, Gurgaon122016, Haryana.
13. The respondent no.2 complied with the said order dated 12.07.2019 subject to payment of certain cost and it is evident from the order sheets of my Ld. Predecessors dated 27.11.2019 and 12.12.2019.
14. In the given facts and reasons, it can be said that the respondent no.2 is the tenant in the suit shop under the tenancy of petitioner and he has not paid the rent despite service of legal notice dated 23.04.2018 Ex.PW1/5 . It has been proved on record that the respondent has not paid the rent within two months RC ARC No. 46/18 Kedar Nath Mangal Vs. Sushma Bhatia & Ors. Page No.8 of 9 from the date of service of legal notice dated 23.04.2018 Ex.PW1/5 sent by the petitioner.
15. Consequently, the petition filed by the petitioner is allowed and it is held that the respondents including respondent no.2 have committed the default in payment of rent despite service of legal notice dated 23.04.2018. However, the respondents are not liable to be evicted at this stage because respondent no.2 who is in the actual possession of the suit shop has complied with the order dated 12.07.2019 passed under Section 15(1) of DRC Act and therefore, benefit of Section 14 (2) of DRC Act is given to the respondents.
File be consigned to record room after necessary formalities.
[DHEERAJ MITTAL]
Announced in the open court SCJcumRC
on 24.03.2022 New Delhi Distt, PHC, Delhi
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