Delhi District Court
Kavita Mehra vs Rajveer Singh on 19 April, 2024
IN THE COURT OF SH. SACHIN MITTAL
DISTRICT JUDGE-03, DISTRICT: SOUTH-EAST,
SAKET COURTS, NEW DELHI
CS DJ No. 868/23
In the matter of:
Kavita Mehra
D/o Sh. Satyapal Malik,
R/o 304, 1st Block,
Harsha Meadows, Diagonally,
Opposite Ganesha Temple,
Suddaguntepalya, Bengalore North,
Bengalure, Karnataka-560093. .....Plaintiff.
VERSUS
Rajveer Singh
S/o S.L. Grover,
R/o S-401, Ground Floor,
Greater Kailash Part-II,
New Delhi-110048.
Also at:
House No. 2, Paschimi Marg,
DLF Phase-I, Chakarpur (74),
Gurgaon, Haryana-122002. ....Defendant.
Date of Institution : 22.11.2023
Date on which arguments concluded : 26.03.2024
Date of Judgment : 19.04.2024
Result : Decreed
JUDGMENT
1. Vide this Judgment, I shall decide: (i) an application under Order VII Rule 11, CPC filed on behalf of the defendant; and (ii) an application under Order 15 & 15A CPC filed on behalf of the plaintiff.
CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 1 of 282. It will be profitable here to narrate in brief the facts of the case leading to the filing of the aforesaid applications.
3. Plaintiff has filed the present suit praying therein mainly for the reliefs of recovery of possession and recovery of arrears of rent and mesne profit/damages. The facts/averments pleaded in the plaint in so far as the same are necessary here can be summarized as under:
(a) Plaintiff is the owner and in constructive possession of the property bearing no. S-401, Ground floor, Greater Kailash, Part-
II, New Delhi-110048, consisting of three bed rooms with attached bathrooms, drawing-cum-dining room, kitchen, balconies etc. measuring 300 sq yards (hereinafter referred as 'the suit property').
(b) Plaintiff and defendant entered into a registered lease agreement dated 23.01.2023 with respect to the suit property for a period of three years, commencing from 01.02.2023 to 31.01.2026, on monthly rent of Rs. 80,000/- for the first year, Rs. 84,000/- for the second year and Rs. 88,000/- for the third year, payable in advance on or before seventh day of each calendar month. Defendant was supposed to make the payment of electricity bill and water bill to the service providers directly and hand over the original receipts of bills so paid to the plaintiff from time to time.
(c) Defendant has never been diligent/prompt in making the payment of agreed rent and consumption charges on due date. On each month, the payment was delayed and the same was made after repeated requests/follow up from the plaintiff.
(d) Defendant made the payment of rent till June, 2023. Thereafter, defendant failed to pay the rent for the month of July, August, September, October and November, 2023, as a result of which an CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 2 of 28 amount of Rs. 4 Lakhs till November, 2023 became due from the defendant.
(e) On account of failure of defendant to pay the rent July, 2023 onwards, the lease agreement dated 23.01.2023 stood automatically terminated on 31.08.2023 by virtue of clause 17 therein and possession of defendant over the suit property became unauthorized and illegal.
(f) Plaintiff received an electricity bill of Rs. 70,616/- with due date of 14.10.2023, on account of failure of defendant to make the payment of the same. Defendant has also not handed over any payment receipt of bills of water consumption and gas consumption.
(g) Plaintiff got a legal notice dated 10.10.2023 through his counsel issued to the defendant thereby intimating him that the lease agreement dated 23.01.2023 had stood terminated and also called upon the defendant to vacate and deliver peaceful physical possession of the suit property on or before 31.10.2023. The defendant was further called upon to make the payment of Rs. 3,20,000/- towards pending rent from July, 2023 to October, 2023. Defendant was further asked to hand over the payment receipts of electricity, water and gas consumption bills.
(h) The aforesaid legal notice dated 10.10.2023 was duly served upon the defendant on the same date i.e. 10.10.2023 through WhatsApp on the mobile no.981112542 of the defendant, upon which defendant avoided the service of the said legal notice sent through the speed post dated 10.10.2023 at the suit premises and the same was returned back with the report, ' baar baar jaaney par pata karte hain nahin milta hai, atah ghar pe rehne waale lene se manaa karte CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 3 of 28 hain'. However, the said legal notice was duly served on 12.10.2023 at the permanent address of the defendant.
(i) On 16.10.2023, defendant forwarded a screenshot of message showing the payment of Rs. 72,278/-. Plaintiff was under the impression that the pending electricity bill was paid. Then, on 21.10.2023, defendant forwarded a screenshot of message showing payment of Rs. 3848.72/- to the IGL.
(j) On 27.10.2023, plaintiff received a call from BSES, who intimated that a payment of Rs. 70,860/- is due against the electricity connection installed at the suit property. Upon further inquiry, it was revealed that screenshot of 16.10.2023 forwarded by defendant was only a monkeyshine and no payment was made towards electricity outstanding bill. However, subsequently, on 31.10.2023, defendant made the payment of electricity bill.
(k) On account of non-payment of rent/damages July, 2023 onwards, following amount towards rent/damages has become due:
S.No. Particular Amount (Rs.)
1. Rent for July, 2023 80,000/-
2. Rent for August, 2023 80,000/-
3. Rent/damages for September, 2023 80,000/-
4. Rent/damages for October, 2023 80,000/-
5. Rent/damages for November, 2023 80,000/-
Total 4,00,000/-
(l) In the background of aforesaid pleadings, plaintiff has prayed for
the following reliefs:
"(a) Pass a decree of mandatory injunction in favour of plaintiff against the defendant, her relatives, legal heirs, representatives, agents or assignee directing them to vacate the suit property of the plaintiff bearing no. S-401, ground floor, Greater Kailash Part-II, New Delhi-110048, handed CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 4 of 28 over the vacant physical possession of the same, in the similar condition as it was handed over to the defendant by the plaintiff and/or;
(b) Pass a decree in favour of the plaintiff against the defendant thereby directing the defendant to pay the plaintiff the rent/damage/mesne profit of Rs. 4,00,000/- (Rs. Four Lac only) with pendente-lite and future interest thereupon @ 18% per annum from the date of filing of this suit till the date of payment and/or;
(c) Pass a decree in favour of plaintiff against the defendant thereby directing the defendant to pay the plaintiff the damage/mesne profit of @ Rs. 80,000/- per month from December, 2023 and January, 2024, thereafter @ 84, 000/- per month from February, 2024 with 5% yearly increment till the date of handing over the possession of the suit property to the plaintiff with pendente-lite and future interest @ 18% per annum from the date of filling of this suit till the date of payment, after adjusting security amount of Rs. 1,60,000/- and;
(d) Pass a decree in favour of plaintiff against the defendant thereby directing the defendant to issue NOC/final payment receipt of electricity, water, gas consumption charges and;
(e) Award the cost of the suit in favour of the plaintiff and against the defendant and/or"
4. In pursuance of service of summons, defendant entered appearance before this Court through his counsel and filed the written statement on 06.01.2024. The defence as pleaded in the written statement can be summarized as under:
(a) As per the lease agreement, the first two years were lock-in period and, therefore, the suit seeking recovery of possession of the suit property is premature. Plaintiff has not approached the Court with clean hands and is guilty of suppression of material and true facts.
(b) The suit is liable to be dismissed under Order 7 Rule 11 CPC as the same is without any cause of action.CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 5 of 28
(c) In August, 2023, plaintiff had taken Rs. 8,00,000/- from the defendant by showing her dire need of money. Plaintiff had assured the defendant that she would return the said amount by adjusting in the monthly rent of the tenanted premises. Till date, plaintiff has neither adjusted the said amount from the monthly rent, nor has she repaid the said amount to defendant.
(d) Plaintiff has failed to carry out the regular repair regarding seepage and leakage in the suit property.
(e) The defendant had been making the payment of electricity and water consumption charges from time to time to the plaintiff, apart from the payment of agreed rent.
(f) It is denied that the lease agreement dated 23.01.2023 has stood automatically terminated by virtue of clause 17 therein, or that the possession of defendant over the suit property has become unauthorized and illegal, or that an amount of Rs. 4,00,000/- on account of non-payment of rent/damages from July, 2023 till November, 2023 has become due from the defendant.
(g) Defendant did not receive any legal notice from the plaintiff.
(h) The suit has not been properly valued for the purpose of Court fees and jurisdiction.
5. On 19.02.2024, a replication to the aforesaid written statement was filed on behalf of the plaintiff. In the said replication, the allegations/averments made in the written statement have been denied and those in the plaint have been reaffirmed as correct. It has further been pleaded that the lock-in period is subject to the payment of agreed rent and to the compliance of other terms of the lease agreement. Plaintiff has specifically denied that she took an amount of Rs. 8,00,000/- from the defendant in the month of August, 2023, or that she assured to repay the said amount by adjustment in the monthly rent. It CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 6 of 28 has also been denied that plaintiff did not carry-out repair work of seepage and leakage in the suit property despite request from the defendant. Further, it has been denied that defendant had been paying electricity and water consumption charges, apart from the monthly rent to the plaintiff. It has also been stated in the replication that the reliefs have been properly valued and requisite court fees has also been paid thereupon.
6. On 22.01.2024, an application under Order 15 and Order 15A CPC was filed on behalf of the plaintiff. Plaintiff, by way of the said application, is praying that the judgment may be pronounced at once, in terms of Order 15 Rule 1 CPC, as parties are not at issue. In the alternative, plaintiff is praying for passing of direction to the defendant for making the payment of arrears of rent/mesne profit/damages from July, 2023 till the date of filing the application as well as further direction to the defendant to continue to deposit the rent/mesne profit/damages for each succeeding month till the decision in the suit.
7. On 19.03.2024, a reply to aforesaid application under Order 15 and Order 15A CPC was filed on behalf of the defendant. Defendant is opposing the said application of plaintiff on the same grounds upon which the defence of defendant as stated in written statement is based. Defendant has specifically alleged that this Court has no jurisdiction to pass an order in respect of the arrears of rent, which have not been admitted by the defendant and when the defendant has already paid the advance rent to the plaintiff.
8. On 19.03.2024, an application under Order 7 Rule 11 CPC read with Section 151 CPC, therein praying for the rejection of the plaint also came to be filed on behalf of defendant.
9. On 22.03.2024, an application under Order 7 Rule 14 CPC, therein praying for the permission to file some additional documents, CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 7 of 28 came to be filed on behalf of the plaintiff. The additional documents sought to be filed by way of the said application were the bank account statement of plaintiff and the supporting Section 65B Certificate for the purpose of showing the payments made by the defendant to the plaintiff. This Court, vide order dated 26.03.2024, for the reasons stated in the said application and in view of no objection expressed by Ld. Counsel for the defendant, allowed the said application and the aforesaid additional documents were taken on record.
10. I have heard Sh. Manish K Choudhary, Ld. Counsel for the plaintiff and Sh. Praveen Laroiya, Ld. Counsel for the defendant and perused the record.
APPLICATION UNDER ORDER 7 RULE 11 CPC FILED ON BEHALF OF THE DEFENDANT:
11. Defendant, by way of the captioned application, is seeking rejection of the plaint on the ground that the same is without any cause of action and that is also barred by law. It has further been pleaded that as per the term of lease agreement dated 23.01.2023, the first two years of lease were the lock-in period, during which plaintiff cannot seek eviction of the defendant. Ld. Counsel for the defendant has also argued that as the defendant had advanced to plaintiff an amount of Rs. 8,00,000/- in the month of August, 2023, therefore, the advance rent up to March, 2024, stood paid.
12. The law regarding rejection of plaint under Order 7 Rule 11 CPC is well settled that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7 Rule 11 CPC. Essentially, whether the plaint CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 8 of 28 discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the defendant the plaintiff may not succeed cannot be ground for the rejection of the plaint. Reliance in this regard is placed upon the judgment passed by the Supreme Court in Mayar (H.K.) Limited v. Owners & Parties, Vessel M.V. Fortune Express, AIR 2006 SC 1828.
13. The defendant is seeking rejection of the plaint on the basis of defences regarding the lock-in period and the advance payment of rent, which have been taken in the written statement. However, in view of the law, as discussed herein above, the plaint cannot be rejected on the basis of allegation/defence in the written statement.
14. In view of the above, the captioned application under Order 7 Rule 11 CPC, filed on behalf of the defendant is liable to be dismissed. Ordered accordingly.
APPLICATION UNDER ORDER 15 & 15A CPC FILED ON BEHALF OF THE PLAINTIFF:
15. Plaintiff, by way of the captioned application, is seeking either the pronouncement of judgment in terms of Order 15 Rule 1 CPC, or passing of direction to the defendant for payment of arrears of rent/ mesne profit/damages as well as future rent/mesne profit/damages on each succeeding month till the disposal of the suit in terms of Order 15A CPC. Ld. Counsel for the plaintiff has contended that there is no dispute CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 9 of 28 as regard the fact of landlord-tenant relationship between the parties and the fact of the said relationship being not governed by the Delhi Rent Control Act. So far, the defences of defendant regarding the advance payment of rent and lock-in period are concerned, Ld. Counsel has argued, that the said defences are utterly meritless. Ld. Counsel has, therefore, argued that the parties are not at issue and, therefore, the Court may pronounce the judgment at once. Per contra, Ld. Counsel for defendant has argued that there are triable issues which warrant the trial in as much as the defendant in the month of August, 2023 had paid an advance rent up to March, 2024 and, therefore, the lease cannot be validly terminated on the alleged ground of non-payment of rent and that the plaintiff cannot seek eviction of the tenant within first two years of the lease as the period of first two years is a lock-in period as per clause VI of the lease agreement dated 23.01.2023.
16. In view of the aforesaid rival contentions, it becomes necessary to examine as to whether in the present suit the parameters for the eviction of a tenant are satisfied and further, whether the present suit requires the framing of issues and then, trial of the same.
17. It is a settled law that in order to succeed in a suit for recovery of possession, the plaintiff-landlord has to prove following ingredients: (a) the relationship of landlord-tenant; (b) the valid termination of lease; and (c) the lease is not protected under Delhi Rent Control Act. In this regard, the Supreme Court in Payal Vision Ltd. v.
Radhika Choudhary, (2012) 11 SCC 405 has held as under:
"7. In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintiff landlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long as these two aspects are not in dispute the CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 10 of 28 court can pass a decree in terms of Order 12 Rule 6 CPC, which reads as under:
"6. Judgment on admissions.--(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.""
The reliance in support of the above proposition of law is also placed upon the judgment of the Delhi High Court in Atma Ram Properties (P) Ltd. v. Pal Properties (India) Pvt. Ltd. , 2001 SCC OnLine Del 438.
18. In the case at hand, there is no controversy at all regarding the relationship of landlord and tenant between the parties and regarding the fact that the said relationship is not governed by the Delhi Rent Control Act. Ld. Counsel for the defendant has argued that an issue regarding the third ingredient i.e. the valid termination of the lease, should be framed, while Ld. Counsel for the plaintiff has argued that no issue on the basis of a merit less defence/plea is required to be framed. In view of this, it becomes necessary to examine as to when the Court can pronounce the judgment without framing the issues and as to when an issue is required to be framed.
19. Order 15 Rule 1 CPC reads as under:
"1. Parties not at issue.--Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment".
Thus, the judgment can be pronounced when parties are not at issue. The subject of framing of issues has been dealt with under Order 14 of CPC. Order 14 Rule 1(4) CPC provides that an issue may be CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 11 of 28 an issue of fact, or an issue of law. Order 14 Rule 1(1) CPC provides that issue arises when a material proposition of fact, or law is affirmed by one party and denied by the opposite party. The material propositions, as per Order 14 Rule 1(2) CPC, are those propositions of law and fact, which a plaintiff must alleged in order to show a right to sue, or a defendant must allege in order to constitute his defence.
20. The Delhi High Court in Kawal Sachdeva v. Madhu Bala Rana & Ors., 2013 SCC OnLine Del 1479 extensively dealt with the subject of framing of issues as under:
"18. This Court in Lakshmikant Shreekant (HUF) v. M.N. Dastur & Company Pvt. Ltd., 1998 (44) DRJ 502 held that the Court is required to frame issues of fact or of law that necessarily and properly arise for determining the real controversy involved on the pleadings of the parties and that such issues arise when a material proposition of fact or law is affirmed by one party and denied by the other and the Court would not frame an issue which does not arise on the pleadings nor a issue need be framed on a point of law which is perfectly clear. It was further held that the Court is required to apply its mind and understand the facts before framing the issue. It was yet further held that if the plea is mala fide or preposterous or vexatious and can be disposed of without going into the facts or is contrary to law or the settled legal position, the Court will not be justified in adopting a hands off policy and allow the game of the defendant to have its sway.
19. Similarly in Zulfiquar Ali Khan v. Straw Products Limited, 87 (2000) DLT 76 it was observed that it is a notorious fact that to drag the case, a litigant often takes all sorts of false or legally untenable pleas and it was held that legal process should not be allowed to be misused by such persons and only such defence as give rise to clear and bona fide dispute or triable issues should be put to trial and not illusory or unnecessary or mala fide based on false or untenable pleas to delay the suit. It was yet further held that the Court is not bound to frame an issue on unnecessary or baseless pleas, thereby causing unnecessary and CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 12 of 28 avoidable inconvenience to the parties and waste of valuable Court time.
20. The High of Bombay also in Mohammad Hayatkhan Karimkhan v. Taramati MANU/MH/1494/2010 held that in order to frame an issue it is necessary to consider whether the plea raised is bona fide or merely raised to delay decision in the matter and which entitles the litigant so raising the plea to remain in possession of the property until adjudication of the issue. It was further held that it is also necessary to see whether there is sufficient material placed on record to frame an issue and to make a reference. The learned Judge observed that it is well settled that no frivolous plea need be a matter of reference and the Court before framing an issue is entitled to see whether such plea is bona fide and has any basis in the material placed on record. Reliance was placed on the judgment of the Division Bench of that Court in Pulmati Shyamlal Mishra v. Ramkrishna Gangaprasad Bajpai 1981 Maharashtra Law Journal 321 laying down that it is not correct to assume that the Court is under any obligation to frame and remit the issue of tenancy mechanically, merely on the same being raised in the written statement without judicial satisfaction of its necessity and justification; that remittance of any such tenancy issue and the trial thereof is known to have become a long winding and time consuming process enuring the delay for the benefit of the person in possession of the land and which prompts and tempts such persons to take such pleas to perpetuate his unmerited possession. The Bombay High Court further held that the Court has a duty to examine the substance and refuse to frame and remit any issue if the same appears to be demonstrably frivolous and mala fide. Reliance in this regard was placed on the law laid down by the Apex court on Thomas Antony v.Varkey Varkey (2000) 1 SCC 35 though in the context of reference to a Tribunal but holding that the law making reference to the Tribunal mandatory cannot be said to have intended that even a patently frivolous, mala fide and illegal plea taken by a party merely to delay the proceeding and to remain in possession is to be referred to the Tribunal and the statutory provisions have to be read as envisaging a reference only where a bona fide and legally sustainable plea is taken.
21. The Bombay High Court in Sociedade Patriotica Dos Baldios Das Novas Conquistas v. Sudhakar Sagun Bhandari CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 13 of 28 MANU/MH/0819/2008 also held that under order 14 of the CPC an issue can only arise when a material proposition of fact or law is affirmed by one party and denied by the other and when a vague plea is taken, the Court should hesitate to frame an issue on such a vague plea, unless the party is able to give particulars in support of the plea. To the same effect is the judgment of yet another Bench of the Bombay High Court in Uttam Sambha Deshmukh v. Yamunabai MANU/MH/0387/1998 where a bald plea unsubstantiated by any documentary evidence was held to be not sufficient for the purpose of framing an issue.
22. This Bench also in order dated 12.03.2013 in CS(OS) No. 505/2010 titled as Kavita Chaudhri v. Eveneet Singh; order dated 03.04.2013 in CS(OS) No. 791/2011 titled Satish Handa v. Ashok Diwan and order dated 07.11.2012 in CS(OS) No. 2695.2011 titled Satya Gupta v. Guneet Singh held:
(i) that the Court under Order 14 Rule 1(5) is required to, after reading the plaint and the written statement and after examination under Rule 2 of Order 10 and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and to thereupon proceed to frame and record the issues on which the right decision of the case appears to depend;
(ii) that issues are not to be framed on whatsoever pleas are contained in the pleadings but on material pleadings of fact and law and a plea which has no basis in law to stand on and/or a plea qua which law is well settled cannot be said to be a material plea inviting framing of an issue thereon;
and
(iii) it cannot be lost sight of that framing of an unnecessary issue invites unnecessary evidence and arguments and which protracts disposal of the suits.
23. Mention may lastly be made of the judgment of the Division Bench of this Court in Vijaya Myne v. Satya Bhushan Kaura 142 (2007) DLT 483 (DB) though in the context of order 12 Rule 6 of the CPC but holding that admissions can even be constructive which can be inferred from vague and evasive pleadings and that admissions can even be inferred from the facts and circumstances of the case. If it were to be held that on every CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 14 of 28 plea, howsoever vague and unsubstantiated, an issue needs to be struck, there can be no effective application of Order 12 Rule 6 CPC as laid down in this judgment.
28. Though jurisprudentially our justice delivery system is an adversarial one but even the said system does not require the Court/Judge to be a mute spectator in the litigation before it and to apply its mind only at the stage of final decision and by which time, if the litigants are shrewd or cunning, the delay may end up in denial of justice. The Courts have to keep pace with the times and cannot notwithstanding the practice, of the litigants taking false pleas to suit their purpose, becoming rampant, continue to act in a passive manner to conduct the trial mechanically. The Supreme Court recently in Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequira (2012) 5 SCC 370 has also observed that the Judge has to play an active role".
21. Then, the Delhi High Court in a subsequent judgment dated 21.05.2019 in the case titled Anil Kumar v. Devender Kumar & Ors. , CS(OS) 350/2018, while relying upon the aforesaid judgment in Kawal Sachdeva (supra) reiterated the law as under:
"16. I have in Kawal Sachdeva Vs. Madhu Bala Rana, 2013 SCC OnLine Del 1479 held that, (i) when a vague plea is taken, the Court should hesitate to frame an issue on such a vague plea unless the parties are able to give particulars in support of the plea; (ii) a bald plea unsubstantiated by any documentary evidence is not sufficient for the purpose of framing an issue; (iii) issues are not framed on whatsoever pleas are contained in the pleadings but only on material pleadings of fact and law; (iv) a plea which has no basis in law to stand on and / or a plea qua which law is well settled cannot be said to be a material plea inviting framing of an issue thereon; and, (v) framing of an unnecessary issue invites unnecessary evidence and arguments and which protracts the disposal of suits. Reference in this regard may also be made to Adarsh Kumar Puniyani Vs. Lajwanti Piplani 2015 SCC OnLine Del 14022, Abbot Healthcare Pvt. Ltd. Vs. Raj Kumar Prasad (2018) 249 DLT 220 and Bhavana Khanna Vs. Subir Tara Chand 2019 SCC OnLine Del 6978".CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 15 of 28
22. The Delhi High Court in Santosh Kumar v. Col.
Satsangi's Kiran Memorial Aipeccs Educational Complex and Another, 2018 SCC OnLine Del 12089 has held as under:
"12. The court cannot frame an issue and put a suit to trial when the parties, on perusal of the pleadings, are not found to be on issue at any question of law or fact. Attention of the counsel for the appellant/defendant in this regard is drawn to Order XV of the CPC which has been referred to in several of the judgments under Order XII Rule 6 of the CPC. In Ashoka Estate Pvt. Ltd. v. Dewan Chand Builders Pvt. Ltd., (2009) 159 DLT 233, reiterated in Vireet Investments Pvt. Ltd. v. Vikramjit Singh Puri, 2017 SCC OnLine Del 11183 and again reiterated in Bhupinder Jit Singh v. Sonu Kumar, 2017 SCC OnLine Del 11061, it was held (i) that the plaintiff, if otherwise found entitled to a decree on admission, cannot be deprived thereof by astute drafting of the written statement and/or by taking pleas therein which have no legs to stand upon; (ii) the Court is to read the pleadings of the parties meaningfully; (iii) issues are to be framed on 'material' and not all propositions of law and fact which may be contained in the pleadings and which are not material i.e. on the outcome whereof the outcome of the suit does not depend;
(iv) a plea, which on the face of it is found by the Court to be untenable, does not require the framing of any issue. In Adarsh Kumar Puniyani v. Lajwanti Piplani, 2015 SCC OnLine Del 14022 it was held that material propositions of law or fact would mean such issues which are relevant and necessarily arise for deciding the controversy involved; if a plea is not valid and untenable in law or is not relevant or necessary for deciding the controversy involved, the Court would not be bound and justified in framing issue on such unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time; (v) the Court is not obliged to, on finding pleas to have been raised in the written statement, mechanically frame issues thereon. If issues were to be framed in such manner, the same would be in disregard of the word 'material' in Order XV Rule 1 of the CPC; (vi) the enquiry thus to be made at the time of framing of issues is, whether the pleas raised in the written statement, purportedly in defence to the claim in the plaint, have any material bearing to the outcome of the suit and if it is found that irrespective of the findings thereon, the plaintiff would be entitled to the relief, the parties are not to be put to trial in the suit. Similarly, in Zulfiquar Ali Khan v. Straw Products Ltd., (2000) 87 DLT 76, it was CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 16 of 28 observed that it is a notorious fact that to drag the case, a litigant often takes all sorts of false or legally untenable pleas and it was held that legal process should not be allowed to be misused by such persons and only such defence as give rise to clear and bona fide dispute or triable issues should be put to trial and not illusory or unnecessary or mala fide based on false or untenable pleas to delay the suit. It was yet further held that the Court is not bound to frame an issue on unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time. Reference in this regard may also be made to Kawal Sachdeva v. Madhu Bala Rani, 2013 SCC OnLine Del 1479, P.S. Jain Co. Ltd. v. Atma Ram Properties (P) Ltd., (2013) 205 DLT 302, Vansons Footwear (P) Ltd. v. USP Fashion Weaves (P) Ltd., 2018 SCC OnLine Del 6998 and A.N. Kaul v. Neerja Kaul, 2018 SCC OnLine Del 9597".
23. Reliance is also placed upon the judgments of Delhi High Court in Shiv Kumar v Sumit Gulati, (2015) SCC OnLine Del 13857 and Bhupinder Jit Singh v. Sonu Kumar, 2017 SCC OnLine Del 11061 wherein it has been held that where there is no triable issue, the Court can pronounce judgment without going into trial.
24. The Delhi High Court in P.P.A. Impex (P) Ltd. v. Mangal Sain Metal, 2009 SCC OnLine Del 3866 held as under regarding the merit-less defence/plea in the written statement:
"8. In T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467; V.R. Krishna Iyer, J. has observed albeit in the context of dismissing a vexatious plaint which is equally applicable when the Court is confronted with a defence which is implausible that if on a meaningful--not formal-reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise its power under the said provision. And if clever drafting has created an illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Order 10, CPC.
9. It appears to us that the approach to be taken under Order XII Rule 6 is akin to what has been enunciated by the Supreme Court in Mechalac Engineers & Manufacturers v. Basic Equipment Corporation, (1976) 4 SCC 687, in the context of Order 37 of the CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 17 of 28 CPC with regard to granting leave to defend a summary suit. This is that if a defence amounting to moonshine has been presented, it should be summarily dismissed by not granting leave to defend and by decreeing the suit forthwith. The Courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial".
25. In the light of the law as explained herein above, the substance/merit in the defence of the defendant needs to be examined. The first defence of the defendant is that the defendant in the month of August, 2023, had advanced an amount of Rs. 8,00,000/- to the plaintiff, which the plaintiff had allegedly undertaken to adjust in the monthly rent for subsequent period. I find the said defence to be an utterly frivolous and merit-less for the following reasons: (a) firstly, the defendant has not stated the date, time and place of the alleged advancement of loan, apart from vaguely alleging that the same was advanced in August, 2023; (b) secondly, defendant has failed to adduce any supporting material, be it an email, or whatsapp conversation, evidencing the said advancement of loan; (c) thirdly, if the said amount was advanced as a loan, then, the proper remedy for the defendant is to file a suit against the plaintiff, to prove the alleged loan and then to seek the recovery of the same in the said suit; and (d) fourthly, such a defence is barred by virtue of Section 92 of the Evidence Act, 1872, in as much as, what the defendant by pleading the oral agreement of loan is trying to do is to vary the terms of the registered lease agreement dated 23.01.2023 regarding the payment of monthly rent on or before seventh day of each calendar month. The proviso (2) to Section 92, in this regard, provides that when a separate oral agreement is sought to be proved for the purpose of varying the terms of a written agreement, the Court shall have regard to the degree of formality of the document. Now coming to the present case, the fact that the parties had entered into a CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 18 of 28 registered lease agreement, the terms thereof cannot be allowed to be varied on the basis of a mere oral agreement. I am of the view that the defence of defendant regarding the advancement of loan to the plaintiff is based upon an astute and clever drafting of the written statement and I also find the said defence to be merit-less, frivolous, and unsubstantiated plea without any supporting evidence, which has apparently been taken only for the purpose of keeping the plaintiff out of possession of the property.
26. Now, I will examine as to whether the second defence of the defendant raises a triable issue for going into trial or not. The second defence of the defendant is that the plaintiff cannot validly terminate the lease during the period of first two years, which was the lock-in period. I am afraid that there is no merit in the said second defence of the defendant either. There is no law that the lease providing for a lock-in period can not be terminated before the expiry of the lock-in period. The lease, inherently, is a determinable contract. The only consequence of invalid termination of lease before the expiry of the lock-in period is that the aggrieved party is entitled to receive from the party in default the proper damages or the liquidated damages upon the proof of the loss as per Section 73 and 74 of the Contract Act, 1872. I also agree with the contention of the Ld. Counsel for the plaintiff that the said lock-in period is subject to the compliance of other terms of the lease agreement dated 23.01.2023. Plaintiff claims that the lease agreement got automatically terminated in accordance with the clause 17 therein as a result of failure on the part of the defendant to pay the rent for two consecutive months of July, 2023 and August, 2023. Neither of the parties, be it the landlord, or the tenant, can violate the terms of the lease agreement and at the same time claim protection under the shield of the lock-in period.
CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 19 of 2827. Now, the question arises as to whether the lease stood validly terminated. The plaintiff is claiming that the lease stood terminated in accordance with clause 17 of the lease agreement dated 23.01.2023, which reads as: "17. That the Lessee fails to pay rent as hereby agreed upon consecutively for two (2) months, the Lessor shall forthwith terminate the lease or lease would automatically terminated without any notice and the Lessor shall have full authority to take over the possession". The case of the plaintiff is that the defendant paid the rent up to June 2023 only and that he stopped paying rent July, 2023 onwards. Thus, the plaintiff claims that the lease stood automatically terminated with effect from 31.08.2023 in accordance with the aforesaid clause 17, as the defendant had defaulted in payment of rent for two consecutive months i.e. for July, 2023 and August, 2023. I have already rejected the case of the defendant regarding the advance payment of rent for the reasons stated in paragraph 25 herein above. Additionally, plaintiff sent a legal notice dated 10.10.2023 of termination of the lease to the defendant through WhatsApp and speed post on the suit property as well as on the permanent address of the defendant. Plaintiff claims that the said legal notice was duly served at the permanent address of the defendant. Plaintiff has also annexed the screenshot of WhatsApp service of legal notice, office copy of the legal notice, postal receipts and tracking reports for the purpose of proving the service of legal notice upon the defendant. Defendant, though, has denied the receipt of aforesaid legal notice. However, the proofs of postal receipt and tracking report prove the service of legal notice upon the defendant. Moreover, as per clause 17 of the lease agreement dated 23.01.2023, the lease had stood automatically terminated w.e.f. 31.08.2023, upon failure of the defendant to pay the rent for consecutively two months i.e. for the month of July, 2023 and August, 2023. Further, the Supreme Court in Nopany Investments (P) Ltd. v. Santokh Singh (HUF) , (2008) 2 SCC CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 20 of 28 728, has held that filing of suit is itself a notice to quit on the tenant and, therefore, no notice to quit under Section 106 of the Transfer of Properties Act is necessary to enable the landlord to get the decree of possession. The observation of the Supreme Court are reproduced as:
"22.... In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this Court in V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214.
28. In view of the above discussion, I have arrived at the conclusion that all the three ingredients: (a) the relationship of landlord- tenant; (b) the valid termination of lease; and (c) the lease is not protected under Delhi Rent Control Act, which are required to be proved in an eviction suit by the landlord against the tenant, stand proved. I find that the defence/plea taken by the defendant does not raise any triable issue of law or of fact and, therefore, there is no impediment in pronouncing the judgment at once without going into trial, in terms of Order XV Rule 1 CPC.
29. The captioned application under Order XV Rule 1 CPC, filed on behalf of plaintiff accordingly deserves to be allowed. Ordered accordingly.
30. The alternative relief of direction to the defendant for payment of rent/ mesne profit/ damages for the past period and pendente lite as sought in terms of Order XVA CPC has, thus, become infructuous.CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 21 of 28
31. There is yet another provision under which the present suit deserves to be decreed at this stage itself. The said provision is Order 12 Rule 6 CPC, which reads as under:
"6. Judgment on admissions.--(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced".
32. The power to pass a judgment on the basis of admission as provided under Order 12 Rule 6 CPC can be exercised by the Court suo- moto as well, as held in Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753:
"39. In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering the Judges to use it "ex debito justitiae", a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment".
33. The Delhi High Court in P.P.A. Impex (P) Ltd. (Supra) has emphasized to ignore the vexatious and false defence put forth by the defendant, while exercising the power under Order 12 Rule 6 CPC:
CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 22 of 28"7. So far as the case relating to Order 12 Rule 6 is concerned, the Supreme Court has recommended resort to this provision to bring a quick end wherever a vexatious and false defence has been presented. The following paragraph from Charanjit Lal Mehra v. Kamal Saroj Mahajan, (2005) 11 SCC 279 : AIR 2005 SC 2765 is reproduced for facility of reference:
....In fact, Order 12 Rule 8, CPC is enacted for the purpose of and in order to expedite the trials it there is any admission on behalf of the defendants or an admission can be interred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon, in the present case, looking at the terms of lease deed, there can be no two opinions that the tenancy was joint/composite and not individual one. Therefore, on these admitted facts the view taken by learned Single Judge of the High Court appears to be justified. In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of India, (2000) 7 SCC 120 : AIR 2000 SC 2740. The Lordships have held as follows:
'In the Objects and Reasons set out while amending Rule 6 of Order 12, CPC it is stated that 'where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on Admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the' relief to which according to the admission of the defendant, the plaintiff is entitled.' The Supreme Court should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment."
34. The Delhi High Court in Delhi Jal Board v. Surendra P. Malik, 2003 SCC OnLine Del 292, observed as under:
"8. The provision confers almost sweeping powers on the Court to render a speedy judgment in the suit to save the parties from going through the rigmarole of a protracted trial. The only pre-requisite for this is that there must be admissions of fact arising in the suit, be that in the pleadings or otherwise or orally or in writ CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 23 of 28 ing. Such admission of facts must be clear and unequivocal, unconditional and unambiguous and may relate to the whole claim or a part of it. These need not be made specifically or expressly and could be a constructive admissions also. Whether or not such admission arose in the suit would depend on the facts and circumstances of the case. If it involved disputed facts, claims and counter claims requiring evidence of parties for determination of issues or where the defence of a party touched the root of the matter, a judgment could not be passed under Order 12 Rule 6 dispensing with the trial because the valuable right of going to trial could not be taken away from the party unless the claim was admitted. A duty was, therefore, cast on the court to ascertain the admission of facts and to render judg ment on these either in respect of the whole claim or a part of it. The court could do so on its own or on the application of a party and without waiting for the deter mination of any other question between the parties. It could do so at any stage of the suit. Dealing with the scope of provision, Supreme Court said in Uttam Singh Duggai v. Union, AIR 2000 SC 2740:--
"Where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain a speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed."
9. The test, therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defence set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impos sible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 24 of 28 could be gathered even constructively for the purpose of rendering a speedy judgment.
35. The Delhi High Court in Vijaya Myne v. Satya Bhushan Kaura, 2007 SCC OnLine Del 828, observed as under:
"12. It is not necessary to burden this judgment by extracting from the aforesaid authoritative pronouncent as the learned Single Judge has accomplished this exercise with prudence and dexterity. Purpose would be served by summarizing the legal position which is that the purpose and objective in enacting the provision like Order 12 Rule 6, CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as such a provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored".
36. Thus, the ratio of aforesaid judgments is that the Court, while exercising power under Order 12 Rule 6 CPC, should ignore vexatious, false and merit-less defence/plea.
37. I have already returned the findings herein above which are to the effect that the defence of the defendant, which is entirely premised upon the plea of alleged advance payment of rent and lock-in period, is false, vexatious, merit-less, and without the support of any evidence. The said defence seems to have been taken only for the CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 25 of 28 purpose of prolonging the illegal possession of the defendant by protracting the present suit. If the said defence of the defendant is ignored, which this Court is duty bound to do so, all the three ingredients: (a) the relationship of landlord-tenant; (b) the valid termination of lease; and (c) the lease is not protected under Delhi Rent Control Act, are deemed to have been admitted by the defendant. Therefore, the present suit is a fit case for exercising the wide powers conferred by Order 12 Rule 6 CPC for pronouncing the judgment at this stage itself and without going into trial.
38. Plaintiff, in the prayer, has claimed recovery of an amount of Rs. 4,00,000/- towards arrears of rent/damages/mesne profit for the period of five months from July, 2023 to November, 2023, which has been calculated at the rate of Rs. 80,000/- per month, which was the rent agreed in terms of clause 1 of the registered lease agreement dated 23.01.2023. In view of the finding recorded herein above, the plaintiff is held entitled to the said relief.
39. Plaintiff has also claimed the recovery of pendente-lite/ future damages/mesne profit at the rate of Rs. 80,000/- per month for the month of December, 2023 and January, 2024 and at the rate of Rs. 84,000/ per month February, 2024 onwards with 5% yearly increment till the date of handing over the possession of suit property. The said damages/mesne profit have been claimed in accordance with clause 19 of the registered lease agreement dated 23.01.2023. The plaintiff is held entitled to the said relief as well.
40. I must note here that it is the burden of plaintiff to prove the mesne profit/damages by reliable and cogent evidence in accordance with the law, as held in National Radio & Electronic Co. Ltd. v. Motion Pictures Assn., 2005 SCC OnLine Del 675. In terms of Order XX Rule 12 CPC, the Court can either straightway pass a decree for the mesne profit at the time of passing the decree for recovery of CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 26 of 28 possession, or direct an enquiry to be conducted for assessing the mesne profit/damages. In case, the Court finds that sufficient evidences are available on record for the purpose of determination of the issue of mesne profit; the Court can award the mesne profit on the basis of such evidence. In the alternative, when there is no sufficient evidence available; the Court may direct an enquiry to be conducted in this regard. In the present case, there is on record a registered lease agreement dated 23.01.2023, and plaintiff has prayed for the grant of arrears of rent/mesne profit/damages in accordance with the terms of the said lease agreement only. In view of this, there is no difficulty in awarding the mesne profit/damages in accordance with the terms of the said registered lease agreement dated 23.01.2023. Hence, the mesne profit/damages have been awarded accordingly.
41. The Delhi High Court in the case of Consep India (P) Ltd. v. Cepco Industries (P) Ltd., 2010 SCC OnLine Del 1349 observed that interest is an integral part of the mesne profits and, therefore, the same has to be allowed in the computation of mesne profits itself. In the present case, the plaintiff has claimed pendente lite and future interest upon the rent/mesne profit/damages at the rate of 18% per annum, which, however, I, find to be disproportionately on higher side. I am of the view that the simple interest at the rate of 12% per annum would meet the end of justice.
42. In view of the above discussion, the following decrees/directions are passed in favour of plaintiff and against the defendant:
(i) Defendant is directed to vacate the suit property i.e. the property bearing no. S-401, Ground floor, Greater Kailash, Part-II, New Delhi-110048 and hand over the vacant physical possession of the same to the defendant.CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 27 of 28
(ii) A decree for the recovery of an amount of Rs. 4,00,000/- towards rent/damages/mesne profit for the period from July, 2023 to November, 2023, along with pendente-lite and future interest at the rate of 12% per annum from the date of filing of the suit till the date of payment.
(iii) A decree for the recovery of mesne profit/damages at the rate of Rs. 80,000/- per month for the month of December, 2023 and January, 2024 and at the rate of Rs. 84,000/- per month February, 2024 onwards with 5% yearly increment till the date of handing over the possession of suit property, along with simple interest at rate of 12% per annum from the date of the said mesne profit/damages becoming due and till the date of actual payment.
(iv) Costs of the suit as per the rules.
43. It is made clear here that no direction regarding the security deposit amount of Rs. 1,60,000/-, which was deposited by the defendant with the plaintiff, is being passed herein and the defendant can seek the refund of the said amount from the plaintiff upon handing over the physical vacant possession of the suit property and after deduction towards damages in the suit property, if any, and towards arrears of electricity, water and gas consumption charges, if any.
44. Upon plaintiff depositing additional Court fees upon the award of pendente-lite and future damages/mesne profit, a decree sheet as per this judgment be prepared. File be consigned to Record Room thereafter.
Pronounced in the open Court on 19.04.2024 Digitally signed SACHIN by SACHIN Certified that this judgment contains 28MITTAL pages and each MITTAL page Date: 2024.04.19 bears my signatures. 14:03:23 +0530 (Sachin Mittal) DJ-03/South-East District Saket Courts, New Delhi/19.04.2024 CS DJ No. 868/23 Kavita Mehra Vs. Rajveer Singh Page 28 of 28