Delhi District Court
Mrs. Alka Arora vs Nitco Roadways Limited on 18 July, 2022
IN THE COURT OF SH SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA COURTS,
DELHI
CS DJ ADJ No.845/2018
CNR No.DLSW010153622018
Mrs. Alka Arora
through her duly constituted attorney
Shri Praveen Arora,
both R/o H. No.15, Road No.62,
West Punjabi Bagh, New Delhi110026 ....Plaintiff
v.
1. M/s Grovalue commodity Pvt. Ltd.,
Anmol Arcade, 1st floor, 102 LB Road,
Adyar, Chennai, Tamilnadu600020
Also at:NPS Business Centre,
7A, Kiran Shankr Roy Road,
Kolkata700001, West Bengal
Also at:03, Enterprise Centre,
Off Nehru Road near Domestic Airport
Vile Parle (East), Mumbai400057,
Maharashtra
2. Shri Kamal Dalpat Lal Shah and
3. Shri Rupesh Pravin Chandera Dalal
(both directors of defendant no.1)
Anmol Arcade, 1st floor, 102 LB Road,
Adyar, Chennai, Tamilnadu600020 ....Defendants
CS DJ ADJ845/18
Date of institution of suit 21.08.2018
Date of order reserved: 12.07.2022
Date of pronouncement of order: 18.07.2022
JUDGMENT
1. Plaintiff, namely, Smt Alka Arora, filed the present suit through her duly appointed attorney Mr. Parveen Arora for eviction, recovery of possession, arrears of rent and mesne profits/damages against the defendants.
2. Briefly stated, it was the case of the plaintiff that she is the wife of Parveen Arora, the duly appointed attorney herein through whom the present case is filed and owner of property bearing no.209, 2 nd floor, area measuring 422sq.ft., situated at Vishwadeep Tower, built up plot no.4, District Centre, Janakpuri, New Delhi110058 which is part of commercial unit comprising of property bearing no.209210, 2 nd floor, situated at Vishwadeep Tower, built up plot no.4, District Centre, Janakpuri, New Delhi110058 (hereinafter referred as the suit property).
3. It is further the case of the plaintiff that the suit property was given on rent to defendant No.1 which is a private limited company having its office at Anmol Arcade, First Floor, 102 Laxmi Bai Road, Adyar, Chennai, Tamilnadu600020 and in this regard a rent agreement was executed on 11.04.2016 for a period of 60 months at a CS DJ ADJ845/18 monthly rent of Rs.23,700/ subject to increase as per clause9 of the agreement and the defendant was paying rent @28,891/ per month including service tax/GST. It is further the case of the plaintiff that defendant started defaulting in payment of rent for the suit premises post August 2017.
4. It is further the case of the plaintiff that vide email dated 26.10.2017, the defendant intimated the plaintiff that they are vacating the suit premises by 05.11.2017 to which the plaintiff responded immediately. Thereafter, the defendant made no communication with the plaintiff and therefore, the plaintiff wrote to the defendant vide email dated 15.11.2017 asking the defendant to settle the pending rent, maintenance bills and electricity dues and the defendant vide email dated 16.11.2017 provided Annexure3 to reconcile the accounts. It is further the case of the plaintiff that after repeated reminders, the defendant made a deficient payment in lump sum in the month of December 2017 and continued holding over possession of the suit premises.
5. It is further stated that thereafter the defendant stopped replying to any of the plaintiff's email and after repeated emails, the defendant finally replied on 10.04.2018 and in the said email, the defendant stated that the defendant had left the premises on 07.12.2017.
6. Ultimately, plaintiff through their advocate served written notice dated 14.04.2018 upon the defendant, calling upon him to clear the CS DJ ADJ845/18 arrears of rent which is Rs.3,27,937/ and the plaintiff is also claiming interest @18% on the outstanding rent. The defendant through their counsel replied to the said notice on 09.05.2018 falsely alleging that the defendant had handed over the possession and denied payment of rent due.
7. It is the case of the plaintiff that the defendants have put a lock on the door of the suit property and never responded and also not paid towards rent and electricity and maintenance charges of the suit premises and the suit premises are still in possession of the defendant as per the rent agreement. Hence, the present suit.
8. Summons for settlement of issues were issued to the defendants and on 12.11.2018, memo of appearance was filed by Ms. Nidhi Shukla, Advocate and she was directed to file written statement and the matter was adjourned to 22.01.2019, on the said date Ms. Khushbu Jain, Advocate appeared on behalf of the defendants and sought opportunity to file memo of appearance during the course of the day and last opportunity was granted to file the written statement and the matter was adjourned to 09.04.2019 and as no written statement wasfiled on 09.04.2019, the right to file written statement was closed. Thereafter, on 03.06.2019, fresh vakalatnama was filed by Shri Amit Malik, Advocate on behalf of the defendants and he also sought opportunity to file the written statement and the matter stood adjourned. Thereafter, none appeared on behalf of the defendants, accordingly the defendants were proceeded ex parte on 23.09.2019 and CS DJ ADJ845/18 the matter was listed for ex parte plaintiff's evidence.
9. Mr. Parveen Arora examined himself as PW1 being duly constituted attorney of plaintiff namely Smt. Alka Arora and filed his evidence by way of affidavit Ex.PW1/A and reiterated the stand taken by the plaintiff in the plaint which is not being reproduced here for the sake of brevity. The PW1 relied upon the following documents:
i)copy of rent agreement dated 11.04.2016 as Ex.PW1/1(OSR);
ii)copy of email dated 26.10.2017 as Ex.PW1/2;
iii)copy of email dated 15.11.2017 as Ex.PW1/3;
iv)copy of email dated 16.11.2017 as Ex.PW1/4;
v)copy of email dated 10.04.2018 as Ex.PW1/5;
vi)office copy of legal notice dated 14.04.2018 as Ex.PW1/6;
vii)reply of notice dated 09.05.2018 as Ex.PW1/7;
viii)original power of attorney dated 18.08.2018 executed by plaintiff in favour of PW1 as Ex.PW1/8, and
ix)certificate under Section 65B of Indian Evidence Act, 1872 as Ex.PW1/9
10. PW1 also relied upon the following documents by way of additional affidavit Ex.PW1/B:
i)certified copy of plaintiff's letter dated 17.03.2020 to BSES as Ex.PW1/10, and
ii)original letter dated 18.03.2020 received from BSES Rajdhani Power Limited as Ex.PW1/11.
11. Thereafter, the matter stood adjourned for ex parte final CS DJ ADJ845/18 arguments.
12. I have heard the arguments of the learned counsel who argued in tandem with the pleadings and evidence led by the plaintiff. Findings
13. It is settled law that even in an ex parte case, as per the mandate of Section 102 of Indian Evidence Act, the burden of proof is still on the plaintiff to prove his/her case by leading affirmative evidence in order to obtain the reliefs prayed for.
14. The Hon'ble Apex Court in Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7 SCC 350 explained the law with regard to burden of proof of plaintiff in an ex-parte suit. The observations of the Hon'ble Apex court may be reproduced herewith as follows:
"Even if the suit proceeds ex parte and in the absence of a written statement, unless the applicability of Order 8 Rule 10 CPC is attracted and the court acts thereunder, the necessity of proof by the plaintiff of his case to the satisfaction of the court cannot be dispensed with. In the absence of denial of plaint averments the burden of proof on the plaintiff is not very heavy. A prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may in law be found entitled. In a case which has proceeded ex parte the court is not bound to frame issues under Order 14 and deliver the judgment on CS DJ ADJ845/18 every issue as required by Order 20 Rule 5. Yet the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the "points for determination" and proceed to construct the ex parte judgment dealing with the points at issue one by one. Merely because the defendant is absent the court shall not admit evidence the admissibility whereof is excluded by law nor permit its decision being influenced by irrelevant or inadmissible evidence."
15. Accordingly, this Court proceeds to examine whether the plaintiff is able to discharge the burden and successful in proving her case as per the averments made in the plaint in her favour.
Reg: Evidentiary Value of the Unregistered Lease Agreement.
16. In the present case, the rent agreement Ex.PW1/1 was executed between the plaintiff and the defendant and as per the agreement the lease period was of 60 months (5 years). It is pertinent to mention that as per Section 107 of Transfer of Property Act r/w Section 17(1)(d) of the Registration Act, 1908 "A lease of immovable property from year to year, for any term exceeding one year or reserving a yearly rent can only by a registered instrument".
17. Further, Section 49 of the Registration Act provides the effects of non registration of a document required to be registered and as per the provision a document which is required by Section 17 of the Act or CS DJ ADJ845/18 by any provision of the TPA Act to be registered, if not registered than the same cannot be received in evidence of any transaction attracting such property and as per the proviso the unregistered document may be received in evidence only for the purpose of collateral transaction.
18. Therefore, in view of the combined reading of Section 107 of the Transfer of property Act and Section 17 r/w Sec 49 of the Registration Act, the lease deed relied upon by the plaintiff cannot be read into evidence except for collateral purposes as the same is unregistered.
Reg: Legal Notice sent by Plaintiff and reply to the legal notice thereof.
19. Now, once the rent agreement dated 11.04.2016 cannot be read into evidence, this Court proceeds further to examine whether there is any independent evidence on record which establishes that there is any tenancy between the plaintiff and defendant with respect to the suit premises.
20. On perusal of the legal notice dated 14.04.2018, Ex.PW-1/6, it is observed that in running para 1 of the notice, the terms of the tenancy, monthly rent is specifically found mentioned and even the same is admitted by the defendants in the reply sent in pursuant to the legal notice of the plaintiff but Surprisingly, the said reply which was tendered into evidence by the plaintiff as Ex. PW-1/7, bears the date 09.05.2017, whereas the plaintiff sent the notice on 09.04.2018 which means the reply to the legal notice sent by the plaintiff is antedated.
CS DJ ADJ845/18Even there are different dates mentioned under the heads "Sub" and 'ref' in the said reply. Further, the plaintiff has not tendered the original reply in evidence and only the photocopy of the reply is tendered and further, the plaintiff also not tendered any envelope through which the said reply was received by her. As per the Indian Evidence Act, 1872, a party is not allowed to lead secondary evidence unless the grounds for not producing the primary evidence are not established before the Court and in light of the Judgment titled as Sudhir Engineering Company vs. Nitco Roadways Limited,1995 (34) DRJ 86, mere exhibition of a document in evidence does not amount to proof unless the same is proved as per the provisions of the Indian Evidence Act, 1872. Therefore, the photocopy of reply to the legal notice cannot be relied upon as an admission of tenancy and monthly rent on the part of the defendants.
Regarding Correspondence through Emails
21. As the legal notice and its reply thereof are not of any help, this Court moves further to examine whether the case of the plaintiff is made out in her favour on the basis of exchange of emails between the parties. On perusal of the first email dated 26.10.2017 Ex.PW1/2 addressed by the defendants to the plaintiff, it is stated in the mail that 4th "As informed to you by Mr. Anand Sharma on of October, we 2nd are reconfirming that we shall be vacating the office, 209-210, floor, Vishwajeet Tower, Janakpuri, District Centre, New Delhi by 5th November". The said mail was promptly replied to on the same CS DJ ADJ845/18 date by the duly constituted attorney of the plaintiff "There was no such communication to me regarding vacating of office".
22. Thereafter, the plaintiff wrote another email Ex.PW1/3 dated 15.11.2017 to the defendant "When you people intend to vacate the office, prior to handing over possession you have to settle the pending rent. Also you have to provide the up to date payment of the maintenance bills and electricity bills proof. Let me know about these and date and time so we may depute our representative to take possession". The said email was replied to by the defendant on 16.11.2017 Ex.PW1/4 and it is mentioned "Go through with the excel and reconcile the account". Thereafter, the plaintiff sent email to the plaintiff on 16.01.2018, 27.01.2018, 07.02.2018, 28.02.2018, 09.04.2018 to the defendant in the shape of reminders for payment of pending rent, electricity dues, inspection of furniture and fixtures and also to hand over the physical possession of the suit property. The above emails were ultimately replied to by the defendant vide email dated 10.04.2018 Ex.PW1/5, the defendant wrote to the plaintiff "We have left the office on 07.12.2017, same was duly informed to you as per the clauses mentioned in the rent agreement. The company is not liable to pay any rent after 07.12.2017. If you have any pending balances with us as on 07.12.2017, kindly raise the issue with particulars." Thereafter, there is no email communication between the parties and the plaintiff issued the legal notice to the defendants.
23. From the exchange of email communications between the CS DJ ADJ845/18 parties, as reproduced above, it is clearly established that the defendants had taken the suit premises on rent from the plaintiff. Hence, the landlord tenant relationship stands proved from the exchange of emails between the parties. Accordingly, the Court proceeds further to decide the present suit in light of the reliefs claimed by the plaintiff in the prayer clause.
For the relief of Eviction and Possession
24. It is the case of the plaintiff that the suit premises are still under the lock and key of the defendants. On perusal of the emails it is observed that the defendants sent the first mail on 26.10.2017, re- confirming to the plaintiff that 'As informed to you by Mr. Anand 4th Sharma on October, we are reconfirming you that we shall be 5th vacating the suit premises by November 2017." The said mail was promptly replied to by the plaintiff denying any such communication received from Mr. Anand Sharma on 4th of October.
25. Therefore, even if it is presumed that the plaintiff has not received any communication from Mr. Anand Sharma on 4th of October with respect to vacation of the suit premises by the defendants, the email dated 26.10.2017, which was sent for re- confirmation by the defendants that they are going to vacate the suit property on 5th November, 2017 can be deemed to be the first termination notice sent by the defendants to the plaintiff as it is settled law that in case of an unregistered lease deed as in the present case, the lease is deemed to be oral lease and is a lease from month to month CS DJ ADJ845/18 basis terminable on the part of either lessor or lessee by 15 days notice as per the provisions of Section 106 of the Transfer of Property Act, 1882.
26. Thereafter, in the subsequent email dated 10.04.2018 Ex.PW1/5, the defendant wrote to the plaintiff "We have left the office on 07.12.2017, same was duly informed to you as per the clauses mentioned in the rent agreement. The company is not liable to pay any rent after 07.12.2017. If you have any pending balances with us as on 07.12.2017, kindly raise the issue with particulars." The above email admittedly never replied by the plaintiff.
27. Therefore, there is no iota of doubt that the suit premises are lying vacant since 07.12.2017, however, it is the case of the plaintiff that the premises are still under the lock and key of the defendants and they have not handed over the physical possession to her but surprisingly, the plaintiff has not brought on record before this Court, any evidence in the shape of photographs or any other oral or documentary evidence that the premises are still under the lock and key of the defendants. In such circumstance this Court is of the view that the suit property was vacated by the defendants on 07.12.2017 and the same is lying vacant and merely because the defendants have not cleared arrears of rent or other dues as claimed by the plaintiff is not a ground to presume that the defendants are still holding over the possession of the suit premises.
28. In view of the above observations, once the plaintiff has failed to prove that the suit property is still under the lock and key of the CS DJ ADJ845/18 defendants despite communication of vacation of the suit property by the defendants on 07.12.2017, resultantly, the relief for eviction and possession is hereby declined.
For relief of Permanent and Mandatory Injunction.
29. In view of the observations made above, while deciding the relief of eviction and possession, no ground for relief of permanent and mandatory injunction is made out in favour of the plaintiff and hence, the same is hereby also declined.
For relief of Arrears of Rent upto the date of filing of the present suit and further relief for arrears of rent upto the date of decision.
30. As already observed above, neither the rent agreement nor the correspondence of legal notice is of any help for the plaintiff in the present case and it is only the emails that can be relied upon and on perusal of the emails, the agreed monthly rent as claimed by the plaintiff is not proved as there is no correspondence regarding agreed monthly rent in the emails. Even though the plaintiff averred in the plaint that the defendants vide email dated 16.11.2017 had shared an excel sheet to reconcile the accounts and in fact the said averments stands fortified on perusal of Ex. PW-1/7 that the defendants had shared an excel sheet with the plaintiff to reconcile the accounts but the plaintiff never tendered the said excel sheet in evidence for the reason best known to her to establish before this Court the factum that the last agreed monthly rent was Rs. 39150/- and the defendants had CS DJ ADJ845/18 not paid any rent post August,2017 as claimed by the plaintiff in the present suit. On the other hand it is clearly mentioned by the defendants in email dated 10.04.2018, Ex-PW1/5 that they have vacated the suit premises on 07.12.2017 and have also cleared all the dues upto that date and in case of any pending balances, plaintiff can raise the issue with particulars, which was never done by the plaintiff. Therefore, in absence of any proof by leading affirmative evidence by the plaintiff that what was the amount of agreed monthly rent and what was the date, month and year on which the defendants paid the last rent to the plaintiff, no ground for relief of arrears of rent is made out in favour of the plaintiff. It is also relevant to observe that on one side in para no.7 of the plaint, it is claimed by the plaintiff that defendants started defaulting in payment of rent post August 2017; whereas in para no.11 it is averred by the plaintiff that the defendants made deficit payment in lump sum in the month of December, 2017 and while arguing the matter before this Court, the plaintiff place on record a calculation sheet and in concluding part of the sheet, the plaintiff deducted the amount of rent paid up to 27.01.2018 by the defendant. Therefore, there are three different versions of the plaintiff regarding the non payment/default in rent by the defendants. It is further relevant to observe that in the calculation sheet, the plaintiff added TDS for the assessment year 2017-18 and 2018-19, meaning thereby that the plaintiff was receiving the rent by cheque or direct credit in the bank, however, the plaintiff has not placed on record any account statement to substantiate the amount of last paid monthly rent and the date on CS DJ ADJ845/18 which the last rent was paid. Accordingly, the reliefs for arrears of rent stands declined.
For relief of payment of Outstanding Dues
31. As far as the relief of payment of outstanding dues is concerned, the plaintiff tendered into evidence documents Ex.PW1/10 and Ex.Pw1/11 which pertains to the letters received by the plaintiff from BSES and as per Ex.PW1/11,it is stated by the BSES that the last bill of Rs.14,030/ was paid on 04.04.2018 and due to non payment of electricity bill, the meter was removed on 14.01.2018, security deposit of Rs.12,000/ has been adjusted in the final bill and as on today an amount of Rs.5558.25 is in excess with BSES.
32. On perusal of Ex.PW1/11, it is mentioned that the last bill was paid on 14.04.2018, admittedly, the defendant left the suit premises on 07.12.2017, therefore, it cannot be said that the defendants have not paid the electricity bill which was due as on 07.12.2017 and due to default in payment of bill by the defendants, the electricity meter was removed by the BSES. Accordingly, the relief for payment of outstanding dues stands declined.
Relief:
33. In view of the relief wise findings given by this Court, the plaintiff failed to prove her case, therefore, the present suit is hereby CS DJ ADJ845/18 dismissed.
34. Decree sheet be drawn accordingly.
35. File be consigned to record room after due compliance and completion.
Pronounced in the open Court (Sachin Jain)
on 18.07.2022 Addl. District Judge-02
South West District
Dwarka Courts Complex, Delhi
dkg
CS DJ ADJ845/18