Delhi District Court
M/S Alankit Assignment Ltd vs Mrs. Murti Devi on 26 August, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No.192/2012
IN THE MATTER OF:
M/s Alankit Assignment Ltd.
( through Mr. Y P. Sachdev & Mr. Ajay Deep,
jointly & Severally AR)
205208, Anarkali Complex,
Jhandewalan Extension, New Delhi .................Plaintiff.
Versus
Mrs. Murti Devi
W/o Sh. Laxman Singh,
R/o 68, Nimri Colony, PhaseI,
Delhi07
Also at:
68, Nimri Colony, PhaseI,
( Near Ashok ViharPhase IV)
New Delhi110052) .............. Defendant
Date of Institution: 29.09.2011
Date of Reserving for Judgment: 11.08.2014
Date of Judgment : 26.08.2014
SUIT FOR RECOVERY
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for recovery filed by the plaintiff.
Suit No. 192/2012 Page No. 1 of 17
2. The brief facts of the case as per the plaintiff are that the plaintiff company entered into the lease agreement with the defendant for setting up/ running of one of its branch offices from the shop No. 10, Deep Cinema Commercial Complex, Ashok Vihar, Delhi52 and the lease agreement was valid for a period of six years from 01062009 till 31052015 for a monthly rent of Rs. 35,000/ for first three years i.e. 01062009 till 31052012 and for remaining three years i.e. 01 062012 to 31052015 for a monthly rate of Rs. 40,250/. It is further submitted that the lease was lawfully terminated by the plaintiff company as per clause 10 of the lease agreement vide notice dt. 02052011. Further, as per clause 2 of the said lease agreement the was required to refund the security deposit amount of Rs. 1,50,000/ to the plaintiff company at the time of vacation of the said premises but she failed not only to refund the said amount but also the vacant possession of the shop in clear disregard of the written notice dt. 02052011, hence the present suit is filed by the plaintiff.
3. On the other hand the defendant in his WS has contended that the plaintiff has no locus standi to file the present suit. The plaintiff has concealed the material facts from the court . It is further submitted that the question of refund of security does not even arise unless the plaintiff relinquish the possession and as per the clause 8 of the Suit No. 192/2012 Page No. 2 of 17 lease deed by which the plaintiff is bound to keep the leased premises in good condition. The lessee damaged the structure worth of Rs. 68,000/, hence the lessor is very much entitled to adjust the pecuniary loss by way of confiscating the security. The defendant wrote two letter dt. 01062011 and 05062011 to the plaintiff company and in most elaborative manner stated to the plaintiff that the plaintiff is in breach of contract executed between them . Further no cause of action arose in favour of the plaintiff as the plaintiff has violated the clause No. 5 of the said lease deed regarding the payment of electricity bill. Thousands of rupees are due upon the plaintiff as per electricity bill. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed.
5. From the pleading of the parties following issues were framed vide order dt. 04032013.
i) Whether the plaintiff is entitled to a decree of recovery of Rs.
1,50,000/ as prayed? OPP Suit No. 192/2012 Page No. 3 of 17
ii) Whether the plaintiff has not handed over the possession of the suit property in good condition to the defendant? OPD
iii) Relief
6. To prove his case plaintiff has examined Sh. Y P Sachdev as PW1, Sh. Hemant Sharma as PW2. They have filed their evidence by way of affidavit in evidence Ex. PW1/A & PW2/A respectively. In their affidavit they have reiterated the facts mentioned in the plaint and relied upon the following documents:
i) Resolution of committee of the board of directors of the plaintiff dt. 01092011 Ex. PW1/1.
ii) Lease deed dt. 28072014 is Ex. PW1/2.
Iii) Notice of termination dt. 02052011 and reminder dt. 03062011 and legal notice dt. 13062011 along with their postal receipts are Ex. PW1/3 colly.
iv) Reply dt. 01062011 and 05062011 sent by the defendant to the plaintiff are Ex. PW1/4 Colly.
All the plaintiff's witnesses were also crossexamined by the Ld. counsel for the defendant.
7. On the other hand the defendant has examined Sh. Bhup Singh Yadav as DW1, Sh. Naresh Kumar as DW2. They have filed their evidence by way of affidavit in evidence Ex. DW1/A & DW2/A respectively. In their affidavit they have reiterated the facts Suit No. 192/2012 Page No. 4 of 17 mentioned in the WS. DW1 relied upon the documents Ex. D1 i.e. SPA in his favour. They also relied upon the documents already exhibited as PW1/1 to PW1/4. Both of them were also cross examined by the Ld. counsel for the plaintiff.
8. I have heard Ld. counsel for both the parties and perused the record & gone through the relevant provision of law.
9. My issue wise finding is as under:
10. Issue No. 1 Whether the plaintiff is entitled to a decree of recovery of Rs. 1,50,000/ as prayed? OPP Issue No. 2 Whether the plaintiff has not handed over the possession of the suit property in good condition to the defendant? OPD Issue nos. 1 and 2 since involve appreciation of common evidence are thus taken up and decided together.
Before delving upon the rival contentions of the parties it is relevant to discuss the evidence led by the parties.
11.Plaintiff examined Sh. Y.P. Sachdev as PW1 who stated in his crossexamination that Ex. PW1/2 was executed under the hands of Sh. Harish Aggarwal. He did not personally participate in the proceeding concerning the execution process of the lease agreement prior to its execution and registration. Three adjacent shop including the suit shop was taken on rent. He is the senior Suit No. 192/2012 Page No. 5 of 17 vice President of the Company. He did not use to sit in the shop of the defendant. He used to visit the premises as and when required in official capacity. He denied that said three shop were converted into one office. He denied that any repair was carried in the sip subsequent to the termination notice. The suit shop was taken on release through the property dealer Sh. Naresh Sachdev. He denied that the suit shop is located in a centrally air condition complex. No due certificate was not taken from the electricity department since the same was not called for under the lease deed. The plaintiff has deposited the charges of the association on monthly basis. Whatever bills had been received upto the notice period had been paid by the plaintiff. He did not visit the suit shop after the termination of lease. He denied that the board of the plaintiff was fixed outside the suit shop uptill December, 2011. He denied the entire case of the defendant.
12. PW2 SH. Hemant Sharma stated in his crossexamination that he is the Assistant Branch Manager of the plaintiff. He has been working with the plaintiff for past 8 years. His current work includes looking after the affair of Ashok Vihar location. On 05062011 he was at Ashok Vihar Branch. He regularly visit the Ashok Vihar Branch. He denied of carrying on any alteration in the suit shop by the plaintiff. He denied the case of the defendants. Suit No. 192/2012 Page No. 6 of 17
13. The defendant examined Sh. Bhoop Singh Yadav as DW1 and stated in his crossexamination that the lease deed was executed at the office of Sub registrar Pitampura in the last week of July 2009. He know Sh. Naresh Kumar DW2 for past 1718 years being an acquaintance and not relative or friend. Sh.Naresh Kumar is the business partner of Sh. Naresh Sachdeva. The lease deed was executed in the presence of DW2. DW1 visited the shop 67 times after the execution of the lease deed. He stated that no photographs of the shop were taken by him for the period for which the suit shop remained with the plaintiff. Thereafter, he stated that he took the photographs on 01062011, 05062011, 24062011 and in the last week of October, 2011 in the presence of Sh. Naresh Kumar. He stated that certain damages were done to the suit property namely removing of partition wall between the suit property and the other property, removal of glass and aluminum glazing doors were damaged, damaged to the fall ceiling, cutting shutter for fixing of AC , removal of AC ducting unit, removal of concealed lights and electrical switch board and damages to the floor etc. No photographs have been filed on record of the time when the suit property was let out to the plaintiff. He stated that he dos not remember whether the actual situation of the suit premises at the time of purchase by the defendant was mentioned in the sale Suit No. 192/2012 Page No. 7 of 17 purchase documents. Defendant will not depose in the court due to her old age and illness.
14.The DW2 Sh. Naresh Kumar stated in his crossexamination that he is not related to the defendant and her son and is deposing as a neighbour holding a neighbour shop in Deep Cinema Complex, Ashok Vihar, Delhi. He has read the lease deed before it was executed between the parties. Security amount equal into 6 month rent was deposited by the plaintiff with the defendant. He supported the case of the defendant and denied the case of the plaintiff.
15. The case of the plaintiff is that the plaintiff had already vide notice dated 2/5/2011 terminated the lease as per clause 10 of the lease deed dated 28/7/2009 Ex. PW1/2 but the defendant did not take the keys of the shop and ultimately keys were handed over in the court to the plaintiff on 22/1/2013. It is the case of the plaintiff that since the lease has been terminated vide letter dated 2/5/2011 possession of the tenanted suit premises have been handed over to the defendant/landlord, therefore, as per clause 2 of Ex. PW1/2 the security deposit of Rs. 1,50,000/ is liable to be refunded by the defendant to the plaintiff.
16.On the other hand, the case of the defendant is that the plaintiff is not entitled to recover the earnest money since firstly, the plaintiff has acted contrary to clause 5 and 8 of the lease deed in not giving Suit No. 192/2012 Page No. 8 of 17 the notice as per the said clause. Also, the plaintiff also leased out the adjacent and neighbouring shops in the same complex as the suit property and without the consent of the defendant, completely demolished the middle wall separating the suit property and the adjacent shop, thereby altering the structure of the tenanted premises. Also, the association of the complex has raised demands with respect to the facilities provided by the association to the plaintiff which the plaintiff has not paid. It is stated that even on 29/10/2011 when the defendant took photograph of the suit shop, the plaintiff was still using the suit premises. It is stated that dues to the extent of Rs. 68,000/ approx. are due against the plaintiff towards the defendant. It is stated that the plaintiff was carrying out the repair work but stopped it in between and suddenly instituted the suit. It is also stated that the defendant is also entitled to recover rent from June 2011 till vacation of suit property by the plaintiff. It is also stated that suit premises have been wildly used by the plaintiff and the wall have been badly damaged, ceiling/artificial ceiling and electric fittings and structure and frame of the aluminium door alongwith two units of central airconditioning are missing and the windows of the suit premises are damaged too.
17.At this juncture it is worthwhile to discuss the clause 1, 2, 5, 6, 8 and 10 of the lease deed Ex. PW1/2, which are reproduced as Suit No. 192/2012 Page No. 9 of 17 under:
1) That the lessor has leased out the property referred to above w.e.f. 01062009 for a period of 6 ( six) years upto 31052015 in consideration of the rent of Rs. 35,000/( Rs. Thirty Five Thousands only) per month which will be enhanced by 15 % from the least rent paid at subsequent terms of 3 ( three) years. Thus, the rent would be Rs. 40,250/ ( Rs. Fourty Thousand Two Hundred Fifty Only) W.E.F. 01062012. Further renewal after the expiry of 6 ( six) years, if any, will be on mutually agreed terms and conditions.
2) That the lessee has already paid to the lessor interest free security deposit of Rs. 1,50,000/ ( Rs. One lac Fifty Thousand only) vide cheque No. 319330, dt. 24042006 drawn on HDFC Bank, New Delhi and same security deposit would continue with the lessor till the expiry of the above lease deed on 31052015. The security deposit would be refundable at the time of vacation of the said premises without interest.
5) That the lessee of the other part will pay the electricity bills for the electricity consumed by them during the period of lease. On the expiry of the lease, the lessee will pay th pending electricity bills, if any as and when received from the concerned authorities in respect of the period of tenancy. The arrears, if any, prior to the date of lease shall be payable by the lessor.
6) That the lessee of the other part will use the premises for the office/shop or godown of the company/group company, Suit No. 192/2012 Page No. 10 of 17 associates & firms but it will not sublet the premises or assign or otherwise part with the possession in whole or party thereof. However, use of the premises by any of the above will not tantamount as subletting and the primary responsibility of making payment of lease rent and to obey all terms & condition of this agreement shall lie with the lessee.
8) That the lessee of the other party will keep the premises in good condition and will cause no damage to it. That the lessee will pay regular subscription to the associates by becoming its member and maintain the premises in good and working condition.
10) That in case the lessee of the other part were to vacate the premises at any time before the expiry of the lease, they shall be entitled to do by giving one month's notice to this effect. However, the ..... cannot get the premises vacated during the lease period of 6 ( six) years if all other conditions of the lease deed are adhered to.
18.The lease deed Ex. PW1/2 is an admitted document between the parties. As per the said lease deed initially the suit property was let out wef 1/6/2009 for a period of 3 years and was to be let out for a further period of 3 yrs on mutually agreed terms. As per the said Ex. PW1/2 the lease could be terminated by either party after giving one month notice before expiry of period of lease of 6 yrs. The plaintiff sent notice of termination dated 2/5/2011. It is Suit No. 192/2012 Page No. 11 of 17 worthwhile to produce relevant portion of the same, which is as under:
"We refer to the registered lease deed executed between yourself and our company on 28072009 for taking on lease shop bearing No. 10, Ground Floor , Deep Cinema Commercial Complex, Ashok Vihar, Delhi110052 on a rent of Rs. 35,000/ per month from you as owner of the premises. AS per clause 2 of the said deed Rs. 1,50,000/ had been paid to you as Security Deposit.
As per clause 10 of the aid deed, in case the lessee were to vacate the premises at any time before the expiry of the lease, they shall be entitled to do so by giving one month notice to this effect".
Accordingly, we hereby give you one month's notice for termination of lease with effect from 31052011.
We request you to kindly take the vacant possession of the aforesaid premises from us on or before 31052011 by refunding the security deposit of Rs. 1,50,000/. It may also be noted that, the lessee will not be responsible to make the payment of any rent with effect from 01062011, if the possession is not taken over before that date by refunding the security Deposit.
We also undertake to make the payment of electricity charges upto 31.05.2011."
19.The plaintiff again sent letters dated 3/6/2011 and 13/6/2011.
20.The defendant replied the termination notice vide reply dated Suit No. 192/2012 Page No. 12 of 17 1/6/2011 and the relevant portion of the same are as under:
"I am in receipt of your aforesaid letter vide which it has been intimated by you that you are going to vacate my shop w.e.f. 01062011 by terminating the lease agreement dt. 28 072009. In this regard, it is submitted that I came for taking over the vacant physical possession of my premises on 3105 2011 but it was noticed that partition wall ( both side walls) which were removed by you at the time of taking over possession of shop, have not been reconstructed till, date. Moreover, the shutter has also been damaged/cut for fixing A.C's.
You are, therefore, requested to handover the vacant physical possession of my aforesaid shop in the same condition ( as it was handed over to you) by erecting the brick walls, plastering, P.O.P, colour washing/Painting and replace the damaged shutters/floor etc. I am ready to take over the possession in the original shape and to return the security amount received by me.
As you have failed to hand over the possession of my shop in the original condition, I request you to release the rent for the month of June, 2011 and also provide me the up to date paid electricity bills along with the NOC from NDPL Authorities that nothing is due against the electricity connection of this shop.
21.The contention of the defendant that the notice dated 2/5/2011 given by the plaintiff is defective is without any merits since the notice is dated 2/5/2011 and mentions date of termination of lease wef 31/05/2011. Also, the tenancy commenced from 1/6/2009 and the termination of lease is dated 31/5/2011 i.e. a period of 3 years and as per clause 1 of the lease deed Ex. PW1/2 the tenancy for a period of further 3 years was to be Suit No. 192/2012 Page No. 13 of 17 continued on the mutual terms of the parties. Admittedly, no such mutual terms apart from Ex. PW1/2 were executed between the parties. Further, in the reply dated 1/6/2011 it has not been pleaded by the defendant that the notice is defective rather the defendant had accepted the notice as is clear from the contents of the said reply. Furthermore, since the keys of the tenanted premises have already been handed over by the plaintiff to the defendant in the court on 22/1/2013 and since the defendant has not filed a counterclaim against the plaintiff in the present case, therefore, the plea of the notice being defective is of no assistance to the defendant.
22. Although, the defendant has alleged that the plaintiff has completely demolished the middle wall separating the suit property and the adjacent shop, thereby altering the structure of the tenanted premises; the association of the complex has raised demands with respect to the facilities provided by the association to the plaintiff which the plaintiff has not paid; that even on 29/10/2011 when the defendant took photograph of the suit shop, the plaintiff was still using the suit premises; that dues to the extent of Rs. 68,000/ approx. are due against the plaintiff towards the defendant; that the plaintiff was carrying out the repair work but stopped it in between and suddenly instituted the Suit No. 192/2012 Page No. 14 of 17 suit; that the defendant is also entitled to recover rent from June 2011 till vacation of suit property by the plaintiff; that suit premises have been wildly used by the plaintiff and the wall have been badly damaged, ceiling/artificial ceiling and electric fittings and structure and frame of the aluminum door alongwith two units of central airconditioning are missing and the windows of the suit premises are damaged too but the defendant has neither placed on record any photographs in support of the said contention regarding the damage caused to the suit property and the plaintiff carrying on the business in the suit property despite having sent the notice of termination of tenancy nor has examined the witness Sh. Naresh Sachdeva, the property dealer who had assisted the parties with respect to the tenancy in the suit property, although the said property dealer was mentioned in the list of witnesses but was dropped by the defendant, who would have been the best witness to depose about the original condition of the suit premises at the time when the suit premises was let out to the plaintiff. The defendant has not produced any demand letter issued by the welfare association as alleged by the defendant. Therefore, the defendant has failed to prove the case set up by her.
23.The contention of the plaintiff that the defendant herself did not Suit No. 192/2012 Page No. 15 of 17 appear in the witness box and thus adverse inference should have been drawn against her case and that the son of the defendant could not have deposed on her behalf are without any merits in view of the decision in Mann Kaur Vs. Hartar Singh Sambha decided by the Honble Supreme Court on 0510 2010 in Civil Appeal No. 147148/2001.
24.The contention of the defendant that the plaintiff witnesses were not aware of the facts of the case and were not competent witness is without any merits since the evidence of the witnesses have to be seen on the whole and not in a piecemeal. The plaintiff witnesses have shown their competence to depose on material facts as is evident from their crossexamination as discussed above.
25.Since the defendant has failed to prove that the plaintiff has violated any of the terms of the lease deed Ex. PW1/2 and the said lease deed Ex. PW1/2 being an admitted document between the parties, the plaintiff is entitled to recovery of Rs. 1,50,000/ as per clause 2 of Ex. PW1/2 deposited with the defendant by the plaintiff towards the security deposit at the time of execution of the said lease deed Ex. PW1/2.
26.The plaintiff has prayed for recovery of Rs. 30,000/ as costs of Suit No. 192/2012 Page No. 16 of 17 the suit but nothing has been placed on record in support of the same and thus plaintiff is not entitled to recover Rs.30,000/. In view of the foregoing discussion, these issues are decided accordingly in favour of the plaintiff and against the defendant.
27. Relief:
In view of the aforesaid discussion, a decree of recovery of Rs.
1,50,000/ is passed in favour of the plaintiff and against the defendant. The costs of the suit is also awarded to the plaintiff.
Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Announced & signed in the ( Snigdha Sarvaria)
open court on 26.08.2014 Civil Judge/Central05/Delhi
Suit No. 192/2012 Page No. 17 of 17