Delhi District Court
M/S Hdfc Standard Life Insurance ... vs Gurbachan Singh Sodhi on 30 May, 2015
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL DISTRICT
JUDGE01, (WEST), TIS HAZARI COURTS, DELHI
CS No. : 243/14/2011
Counter Claim No. : 76/15
In the Matter of :
M/s HDFC Standard Life Insurance Company Ltd.
A24, Community Centre
Opposite Jwalahari Market,
Paschim Vihar, New Delhi 63
.........Plaintiff
Vs.
Gurbachan Singh Sodhi
R/o 7/2, Punjabi Bagh Extension
New Delhi 110026
.........Defendant
Date of Institution : 18.05.2011
Date of taking over the charge
in this court : 24.01.2015
Date of Arguments : 20.05.2015, 21.05.2015 & 27.5.2015
Date of Judgment : 30.05.2015
JUDGMENT
1. This is a suit for recovery of Rs. 10,11,331/ filed on behalf of plaintiff against the defendant. The facts as pleaded in the plaint are that a lease agreement was executed between the plaintiff and defendant on 12.4.2007, by virtue of which, the first and second floors of property bearing CS No. 243/14/2011 and Counter Claim No. 76/15 1/34 plot no. 6, Block B, DDA, Local Shopping Complex, Dilshad Garden, Delhi were let out to the plaintiff for a period of three years i.e. from 3.5.2007 to 2.5.2010 at monthly rent of Rs. 2 Lacs and a sum of Rs. 18 Lacs had also been deposited by the plaintiff with defendant as interest free security at the time of execution of lease deed which was repayable to the plaintiff upon termination of lease deed. In year 2010, the plaintiff vide its letter dated 24.5.2010, intimated the defendant about its intention to renew the lease for further period of three years i.e. from 3.5.2010 to 2.5.2013 at the enhanced rent of Rs. 2.31.525 per month with further mention that the renewed lease could be terminated by either party by giving two months prior notice in writing and except for the aforementioned changes, the renewed lease was required to be governed by the original lease deed dated 12.4.2007. The offer for renewal of leased premises, as stated, was also accepted by the defendant. Pursuant to the renewal of the lease, plaintiff started paying rent @ Rs. 2.31.525/ per month to the defendant with respect to the leased premises. As stated, the plaintiff vide letter dated 18.10.2010 intimated the defendant about its intention to terminate the lease with respect to the leased premises and gave the defendant two months notice , commencing from 1.11.2010, as had been mutually agreed between them vide letter dated 24.5.2010 and that the vacant possession of the leased premises shall be handed over to the defendant upon the expiry of notice period i.e. on 31.12.2010 as well as defendant was informed about his liability to refund the security amount deposited with him by the plaintiff. However, defendant CS No. 243/14/2011 and Counter Claim No. 76/15 2/34 returned the aforementioned letter to the plaintiff with an endorsement that the plaintiff was required to serve six month's notice upon the defendant in event of prior termination of the lease, upon which plaintiff again sent letter dated 1.11.2010 to the defendant reiterating therein the contents of the previous letters dated 24.5.2010 and 18.10.2010 and asking the defendant to receive the vacant possession of the leased premises from the plaintiff on 31.12.2010 and to refund the security amount deposited by plaintiff, followed by exchange of further correspondence between the parties. The plaintiff vacated the leased premises by 31.12.2010 and even issued letter dated 31.12.2010 to the defendant therein intimating the defendant that the leased premises had been vacated and defendant was further requested to refund the security amount due towards the plaintiff. But despite receipt of lease termination letter dated 18.10.2010 and several other letters from the plaintiff, the defendant, as stated, neither came to take possession of the leased premises nor made any efforts to refund the security amount and kept on sending letters to the plaintiff citing false and ridiculous reasons for his decision not to take vacant possession of the leased premises, hence, plaintiff was constrained to file the instant suit against the defendant for recovery of security amount alongwith interest.
2. In response to the suit of the plaintiff, defendant filed the written statement wherein the lease agreement entered into between the parties was admitted. However, it was stated that on the request of plaintiff, the defendant had agreed to reduce the amount of security deposit of Rs. 18 lacs CS No. 243/14/2011 and Counter Claim No. 76/15 3/34 to Rs. 12 Lacs and had also agreed to reduce the monthly rent to Rs. 2 Lacs effective for period of one year w.e.f. 1.6.2009 to 31.5.2010 and to reflect these changes in the lease agreement dated 12.4.2007, plaintiff had executed a Deed of Variation on 17.8.2009 and the security deposit of Rs. 6 Lacs out of the security deposit of Rs. 18 Lacs had been surrendered by the defendant vide letter dated 14.5.2009 by way of cheque dated 1.7.2009. The contents of letter dated 24.5.2010 intimating the defendant about renewal of the lease deed though was not denied, but as stated, this letter was not a renewed lease deed and as per clause 5 (e) of the lease deed executed between the parties on 12.4.2007, the lessor was required to execute in favour of lessee a fresh indenture of lease within a period of 30 days from the date of expiry of lease. Letter dated 18.10.2010 of plaitniff intimating the defendant regarding vacation of the premises, as stated, was not accepted by the defendant and the same was returned back in original with the observation that the termination notice required six months advance notice, as per clause 5 of the agreement. It was denied that the plaintiff company had vacated the leased premises on 31.12.2010 . As stated, some of the material of plaintiff company was lying in the premises and the premises had also been damaged due to removal of fixtures and installations which fact was also notified to the officers of plaintiff's company by defendant vide letters dated 1.1.2011, 22.1.2011, 7.3.2011 & 9.3.2011 requesting the plaintiff's company to repair and remove the defects and damages caused to the leased property but no reply was received from the side of plaintiff. It was stated that the defendant CS No. 243/14/2011 and Counter Claim No. 76/15 4/34 has suffered mentally and financially because of uncooperative attitude of the officer of plaintiff's company as no rent has been paid after November 2010 to the defendant and the leased premises was also damaged, therefore the plaintiff was not entitled for any relief as claimed.
3. Counter claim was also filed on behalf of defendant seeking recovery of Rs. 19,52,200/ towards the arrears of rent and miscellaneous payments with directions sought for the plaintiff to remove the defects and damages caused to the leased property as well as to hand over the possession of the leased property to the defendant. In reply, contents of counter claim were denied by the plaintiff.
4. Replication was filed by plaintiff in response to the written statement of defendant wherein contents of plaint were reiterated and reaffirmed and those of written statement were denied by plaintiff.
5. From the pleadings of parties, following issues were framed vide order dated 05.03.2013: (1) Whether the plaintiff has not approached the court with clean hands and is guilty of suppression of material facts? If so, its effect. OPD (2) Whether the plaintiff is entitled for recovery of Rs. 10,11,331/ , as prayed for ? OPP (3) Whether the plaintiff is entitled for interest on the aforesaid amount? If so, at what rate and for which period? OPP (4) Relief CS No. 243/14/2011 and Counter Claim No. 76/15 5/34
6. Following issues on counterclaim of defendant were framed Vide order dated 9.12.2013: (1) Whether the counter claim of the defendant is without any cause of action and an after though to evade his liability for refund of the security amount? OPP (2) Whether the defendant/counter claimant is entitled for recovery of Rs. 19,52,200? OPD (3) Whether the defendant/counter claimant is entitled for possession of leased premises? OPD (4) Whether the defendant/counter claimant is entitled for relief of Mandatory injunction for removal of defects of the damages caused to the leased premises? OPD (5) Relief
7. In evidence, plaintiff examined Sh. Rajeev Kumar, AR of plaintiff's company as PW1, Sh. Pabitra Kumar Swain , Assistant Manager (Sales) from M/s Om Trax Packaging Solutions Pvt. Ltd as PW2 and Sh. Navneet Kaushik, Deputy Manager (Administration) of plaintiff's company as PW3 and relied upon documents Ex. PW1/1 to Ex. PW1/10 and Ex. PW2/1 (collectively). Whereas defendant examined himself as DW1 and reiterated the contents of his written statement/counter claim. DW2 is Sh. Pradeep, Judicial Assistant, from High Court of Delhi who brought the summoned record and proved the copy of order dated 29.4.2014 and report of Local Commissioner alongwith photographs as Ex. DW1/2.
CS No. 243/14/2011 and Counter Claim No. 76/15 6/34
8. I have heard the arguments as well as perused the record. Issue wise findings are as under :
9. Issue no. 2 , 3 and issue no. 2 of Counter Claim : As claimed by plaintiff, both the parties had entered into a lease agreement for renting out of the property in question, in favour of plaintiff by defendant on 12.4.2007 and the property was let out for the period of three years w.e.f. 3.5.2007 till 2.5.2010 at monthly rent of Rs. 2 lacs per month. The lease was further extended from 3.5.2010 to 2.5.2013 and the rent was also enhanced to Rs. 2,31,525/ . A sum of Rs. 18 lacs was given as security deposit at the commencement of the tenancy which was repayable upon termination of the lease deed and the vacation of the property in question . A sum of Rs. 6 lacs out of the said interest free security was refunded to the plaintiff on its request vide cheque dated 1.7.2009. Pursuant to the renewal of the lease deed, plaintiff continued paying rent for the lease term @ Rs. 2,31,525/ per month to the defendant in terms of the renewal letter dated 24.5.2010 which was duly accepted by the defendant. Thereafter vide letter dated 18.10.2010, plaintiff intimated the defendant about its intention to terminate the lease for which two months notice was given commencing w.e.f. 1.11.2010 and it was also informed to the defendant that the vacant possession of the premises shall be handed over to the defendant upon the expiry of the notice period i.e. 31.12.2010. In response to the plaintiff's letter intimating termination of lease, defendant stated about requirement of six months notice for the termination of the lease followed by exchange of correspondence between the CS No. 243/14/2011 and Counter Claim No. 76/15 7/34 parties whereby the plaintiff called upon the defendant to receive the vacant possession of the suit premises on 31.12.2010 and requested the defendant to simultaneously refund the security deposit. The plaintiff had not paid rent for the month of December 2010 to the defendant and requested him to adjust the said amount against the security deposit and refund the remainder of Rs. 9,67,781/. As stated, plaintiff vacated the demised premises in two installments on 9.12.2010 and 22.12.2010 by hiring transport services but the defendant neither came to take the possession of the premises nor made any effort for refund of the security as sought from him by the plaintiff vide letter dated 18.10.10 and 31.12.2010.
10. As was deposed by PW1, plaintiff had vacated the leased premises on 31.12.2010 and was ready and willing to hand over the possession of the premises to the defendant however the defendant failed to turn up to receive the peaceful possession of vacant leased premises and to refund the security amount. As was further deposed by PW1, defendant deliberately avoided to take possession of the vacant premises when the same was offered to be handed over to him by the plaintiff on 31.12.2010 and kept on sending letters to the plaintiff citing false and ridiculous reasons for his decision not to take peaceful possession of the vacant leased premises. PW1 further deposed regarding clause 8 of the lease deed dated 12.4.2007 whereby the defendant was required to refund the entire security deposit to the plaintiff upon the termination of the lease deed and while accepting the peaceful possession of the leased premises and in the event of the lessor's failure to refund the CS No. 243/14/2011 and Counter Claim No. 76/15 8/34 security deposit, the lessee was entitled to retain the possession of the leased premises without having any liability to pay rent etc. for the same to the defendant till such time that the defendant refund the security deposit in full to the plaintiff. PW1 though stated about all the facts as pleaded in the case, however, as stated, he had joined the plaintiff's concern only on 31.12.2012 and therefore was not aware if the officials of the plaintiff company had taken the letter of possession alongwith them on 31.12.2010 and from the record of his company, he stated about the articles having been taken out from the tenanted premises even prior to 31.12.2010 i.e. on 9.12.2010 and 22.12.2010. He was also obviously not aware about the presence of officials of plaintiff company at the tenanted premises on 31.12.2010, though stated about the presence of PW3 at the spot on 31.12.2010 when the defendant had not come to take the possession of tenanted premises. He admitted that there was no correspondence made in terms of the record of the company with the defendant with respect to letters dated 22.1.2011 and 7.3.2011. He was not aware if any telephonic call was made to the defendant on 31.12.2010 asking him to take over the vacant possession of the tenanted premises or not and similarly he had shown his ignorance regarding the payment of electricity, water charges etc. of the tenanted premises prior to 31.12.2010 or thereafter. PW3 to whom PW1 had referred as present at the spot on 31.12.2010, stated about having personal knowledge about the transaction as well as regarding his presence on 31.12.2010 at the demised premises. According to him, defendant was not present there and he had to hand over the peaceful and CS No. 243/14/2011 and Counter Claim No. 76/15 9/34 vacant possession to the defendant as per the company process. He had brought a hand over letter and keys of the premises at the site on 31.12.2010 and had reached at the site at about 1 p.m. and remained there till 4/4.30 p.m. . He contacted the defendant during the period he remained at the site from his mobile phone but the defendant did not pick the phone. As stated, nobody except him was present there at the spot and at about 4/4.30 p.m. when nobody came from the side of the defendant, he informed his seniors regarding the non appearance of defendant and thereafter he locked the premises and reached at their regional office at Paschim Vihar and deposited the keys. As deposed by him, no security guard was deployed by them at the premises and he had no idea whether the company had written to the defendant regarding locking of the premises and informing the defendant to collect the keys but as stated, all the bills upto 31.12.2010 were paid and cleared by the plaintiff company, though he had not brought any proof to show the abovesaid.
11. The contention of defendant was that the premises in question could not have been vacated by the plaintiff by giving two months notice. More so as decided by plaintiff company to vacate the premises on 31.12.2010, DW1 had gone there to receive back the vacant and peaceful possession of the premises but found that the plaintiff company had not completely vacated the premises. Many of their articles were still lying in the premises and many of the fittings and fixture were damaged beyond the normal wear and tear. He stated about presence of PW3 and another person CS No. 243/14/2011 and Counter Claim No. 76/15 10/34 namely Sh. Neeraj Tiwari, both employees of plaintiff company at the spot who had come to deliver the vacant possession to him. DW1 brought to their notice the damage to fittings and fixtures as well as their goods lying in the premises and therefore he did not agree to take the possession of the premises and sent letter Ex. PW1/10 on the next date i.e. 1.1.2011 which was duly received and the endorsement was made by PW3 . In the said letter, he brought to the notice of plaintiff company that as many as 25 windows were found damaged i.e. glasses and handles were missing, windows were removed for fitting ACs, many dent and holes in the roof and plaster damaged at many places, besides mention of many other deficiencies and damages caused to the property which required repair and replacement . According to DW1, both PW3 and the other employee namely Neeraj Tiwari promised to get the repairs done subsequent to which, he had also written another letter dated 18.7.2011 Ex. DW1/1 to the plaintiff. DW1 insisted that he had told the employees of plaintiff company that he will not hesitate to take over the possession when the premises was completely vacated and the defects were rectified as well as premises was restored to its original position and thereafter also sent letters dated 22.1.2011 and 7.3.2011 but no reply was received to any of these letters sent by the defendant. In these circumstances, according to him, the plaintiff company continued to be liable to payment of rent @ Rs. 2,31,525/ w.e.f. 1.1.2011 till they restore the vacant possession to the defendant.
12. With respect to the objection raised by the defendant regarding the CS No. 243/14/2011 and Counter Claim No. 76/15 11/34 requirement of six months notice for termination of lease, the same did not find favour with the court which was rejected vide order dated 19.12.2012 on the application under order 39 Rule 10 and order 12 Rule 1 r/w section 151 CPC filed by defendant which attained finality with observations that " the tenancy of the plaintiff continued on month to month basis as the defendant accepted the enhanced rent without any protest or notice for ejectment to the plaintiff. In such a situation, notice of even 15 days for termination of the tenancy by the plaintiff would have been sufficient to terminate the tenancy and the defendant could not rely upon the agreement which has already expired. As was further observed, in terms of section 106 of Transfer of property Act, in the absence of any contract or local law or usage to the contrary, a lease of immovable property for any other purposes except for agricultural or manufacturing purposes shall be deemed to be a lease from month to month, terminable on the part of either lesser or lessee by 15 days notice. Hence, it could not said that the notice dated 18.10.2010 issued by the plaintiff was incapable of terminating the tenancy of the plaintiff and the insistence of the defendant for notice of six months under Clause 5 of Agreement dated 12.4.2007 is wholly untenable and unacceptable. As was further observed, on the one hand, defendant was refusing to accept the terms of renewal mentioned in the letter dated 24.5.2010 on the ground that no fresh lease was executed and on the other hand, he had been accepting the enhanced rent from the plaintiff. Even if the lease agreement had come to an end by efflux of time, there was no lease agreement for further period of CS No. 243/14/2011 and Counter Claim No. 76/15 12/34 three years as mentioned in letter dated 24.5.2010 as no fresh lease deed was executed between the parties, it would imply that the tenancy of the plaintiff continued on month to month basis " . Besides the abovesaid, the lease deed placed reliance upon by the parties itself was unregistered document . In terms of section 107 of Transfer of Property Act, lease for the period of more than 11 months is compulsorily registrable. The property in question was leased out on the basis of execution of lease deed between the parties for three years and therefore the compulsorily registration for the same was required. The document unregistered which is compulsorily registrable shall not affect immovable property comprising therein and cannot be read as evidence of any transaction affecting such property except for limited purpose, thereby the tenancy shall be on month to months basis terminable by notice in terms of the provisions contained in Transfer of Property Act.
13. Further, in terms of the case of plaintiff, the defendant did not come to the premises in question to take over the possession of the suit premises on 31.12.2010.The efforts made to contact the defendant telephonically also did not yield any result and finding no option, PW3 informed his seniors and thereafter locked the premises and went to his regional office at Paschim Vihar and deposited the keys. He had no idea whether the company thereafter had written any letter to the defendant regarding locking of the premises and informing the defendant to collect the keys. It was argued by Ld. counsel for plaintiff that although the plaintiff company was under the impression that since the keys of the demised CS No. 243/14/2011 and Counter Claim No. 76/15 13/34 premises after the same was vacated by 31.12.2010 were with it but the symbolic possession of the premises was with the plaintiff's company but the said belief was dislodged when on 4.7.2013, it came to its knowledge that the locks on the doors of the demised premises were not the same as were when the plaintiff was in possession thereof and thus apparently they were changed by the defendant as the possession was discreetly taken over by him. As further argued by Ld. counsel for plaintiff, PW1 specifically deposed that he came to know regarding the possession of the demised premises having been discreetly taken over by the defendant on 4.7.2013 and further as submitted by plaintiff in the written submissions, this witness has categorically denied the suggestion that the plaintiff company was retaining the tenanted premises as per clause 8 of the lease deed. PW3, as further argued, also corroborated the statement of PW1 on the above aspect which also stands corroborated from the report of Local Commissioner dated 31.8.2013 Ex. DW1/2 that the keys in the possession of the plaintiff were tried on all the locks on both the floors but none of them could be unlocked by the said keys .
14. Per contra, it was the stand taken by DW1 that on 31.12.2010 PW3 alongwith Mr. Neeraj Mishra had come to hand over the possession to him but they locked the premises in his presence and took the keys with themselves. DW1 as deposed by him had brought to the notice of representative of plaintiff's company on 31.12.2010 itself regarding the damage caused to the premises during their occupancy and also requested them to take note of the damages and get the needful done before they asked CS No. 243/14/2011 and Counter Claim No. 76/15 14/34 him to take possession of the premises. The said request was reiterated by letter dated 1.1.2011 and other letters dated 22.1.2011 and 7.3.2011. As deposed by DW1, it was reported in the letter dated 7.3.2011, that it was for everyone to see that the premises had been left by plaintiff in unusable conditions, therefore plaintiff was also requested to depute a person for making assessment of damages in the premises whereby Architect could give his assessment when the premises was shown to him but since possession of the premises was with the plaintiff, the defendant could not get the assessment done as per practice. He however consulted the Architect and gave him the details of damages in the premises alongwith the building plans.
15. The fact remains that the physical possession of the property in question was not handed over to the defendant by plaintiff company on 31.12.2010. The respective pleas taken by parties are that the plaintiff company is asserting that the symbolic possession had been handed over to the defendant on 31.12.2010 itself, the defendant having failed to receive the possession of premises and therefore plaintiff company is not liable for any liability qua the rented premises after 31.12.2010. Per contra, defendant insisted that since neither the physical possession nor the symbolic possession was ever handed over to him on the said date, therefore plaintiff company continued to be in constructive possession of the property in question and is required to pay rent for the period of their occupation as well as other charges as claimed.
16. In letter dated 1.1.2011, which was sent by DW1 to plaintiff CS No. 243/14/2011 and Counter Claim No. 76/15 15/34 company Ex. PW1/10, he reported about his visit to the suit premises on 31.12.2010 and found the shifting in process and also reminded the plaintiff company regarding the loss and damage caused to the premises for which repairs were required to be made by the plaintiff and it was also required to make up the losses. It was stated on behalf of defendant that he will not hesitate to take over the possession of the premises as and when premises is completely vacated and damages to the premises are rectified and the premises is restored to its original position. Similarly vide letter dated 22.1.2011, he reported regarding the damages caused to the premises and not complete vacation by the plaintiff company and at the same time stated about non receipt of rent of the premises for the month of December 2010 and January 2011. The third letter is dated 7.3.2011 upon the contents of which much of the emphasis was laid by counsel for plaintiff during the course of arguments while submitting that the defendant himself had admitted his possession with respect to the premises. In the said letter, defendant also admitted that he got the assessment of the said premises done from Architect and since the premises had been left vacant, it was taken by him that the plaintiff company was no longer interested in continuing the tenancy, besides the mention regarding settlement of dues so that goodwill and cordial relations which remained between the parties during tenancy were not lost. The defendant mentioned that this letter should be taken as notice and if the plaintiff failed to respond within 30 days of its receipt, the defendant shall presume that the plaintiff was not interested in settlement of the claim arising CS No. 243/14/2011 and Counter Claim No. 76/15 16/34 due to termination of lease. It was argued by Ld. counsel for plaintiff that the contents of above letter clearly demonstrated that the defendant not only terminated the subsisting lease but took over the possession of the suit premises discreetly around February 2011 since no where even in the said letter, defendant was seeking possession of the leased premises, rather was asking for settlement of dues. Thus such action of the defendant demonstrated that on the said date i.e. 7.3.2011 he was in possession of the suit premises which also stood corroborated from the fact that the locks of the said premises could not be unlocked with the keys in possession of the plaintiff on 31.8.2013.
17. In support of his contentions, Ld. counsel for plaintiff placed reliance upon Associated Journal Limited Vs. ICRA Limited RFA (OS) 62/2007 and RFA (OS) 63/2007 wherein it was observed that " in terms of Transfer of Property Act, the lessee is bound to put the lessor in possession of the property leased after the notice of termination and it is inherent that the landlord should accept the possession of the property whenever it is delivered and he cannot claim a right to receive the possession only upon the lessee paying dues or otherwise. Vacation of the leased property by the lessee together with a notice to the lessor to take delivery of the possession would sufficiently discharge the lessee of any further obligation to pay the rent and any impediment put by the lessor in the matter of delivery of possession would amount to possession being delivered and it shall be deemed for all purposes that as soon as the property was vacated and possession offered, CS No. 243/14/2011 and Counter Claim No. 76/15 17/34 constructive possession would be with the lessor. Even if the lessor has any claim,by way of damage to the property or otherwise, the right of the lessor was not to decline to receive the possession and then insist that further lease rental hand accrued each month. The right of the lessor is to sue and recover the damages "
18. Reliance was also placed upon following authorities:
19. AIR 1988 Rajasthan 44 Raja Laxman Singh Vs. State of Rajasthan " vacation of the property together with a notice to the landlord to take the deliver of the possession is sufficient for the purpose of restoration of the possession, and, any impediment put up by the landlord in the matter of redelivery of the possession and not accepting the possession on the ground that some terms and conditions will have to be fulfilled will amount to the delivery of possession and it shall be deemed for all purposes that as soon as the property has been vacated the possession had been delivered though the landlord may not accept the possession.
20. AIR 1953 Madras 996 Cooperative Society Ltd. , A.C. Raman Vs. Muthavally Seydali's son " the lessee terminating the tenancy and offering the possession though the possession is not in state of proper repairs, the offer by tenant cannot be refused by landlord as Section 111 of T.P. Act cannot compel the tenant to remain in possession whereas landlord can only sue for damages for neglect or default of tenant " .
21. Madan Lal Vs. Bhai Anand Singh & Ors. 1973 AIR 1721 SCR CS No. 243/14/2011 and Counter Claim No. 76/15 18/34 (2) 677 " the burden of proving a contract to the contrary was on the lessee and something to indicate an agreement to the contrary should be there, on such a matter involving a valuable right before this burden could be held to have been duly discharged ".
22. While applying the ratio of the abovesaid authorities on the facts of the instant case, apparently refusal by the defendant to take back the possession of the leased premises on the ground that premises had been damaged and he will take back the possession only after the repairs have been made of the damages assessed, was not justified. The notice upon the defendant regarding the proposed vacation of the premises by plaintiff on 31.12.2010 is not disputed. However, the contention of defendant remained that he was very much available at the spot on 31.12.2010 but the possession was not taken over by him for the reason that much of the damage had been caused to the property in question and also as stated by counsel for defendant that not the entire premises had been vacated by the plaintiff by that time, but as noted above in the authority (supra) as soon as possession was offered to the defendant on 31.12.2010, his refusal for the abovesaid reason shall be deemed the possession having been delivered to him and the constructive possession thereafter shall be with the landlord and if the landlord has any claim by way of damage to the property or otherwise, his right was not to decline receiving the possession but only to sue for recovery of the damages. As mentioned by plaintiff in plaint that vide clause 8 of the lease deed dated 12.4.2007 it had been agreed upon between the parties that the lessor would CS No. 243/14/2011 and Counter Claim No. 76/15 19/34 refund the entire security deposit to the plaintiff upon the termination of the lease deed and while accepting the peaceful possession of the leased premises. It was further agreed that in event of lessor's failure to refund the security deposit, lessee would be entitled to retain the possession of the leased premises without having any liability to pay rent, etc. till such time the defendant would refund the security in full to the plaintiff which shall also entail liability for payment of interest @ 18% p.a. on the said deposit till such time the security amount was refunded in full. As submitted, for the failure of the defendant to either refund the security deposit to the plaintiff or to receive the peaceful and vacant possession of the leased premises on 31.12.2010 or even thereafter, defendant had rendered himself liable for aforesaid consequences as agreed between the parties to the lease. However, PW1 in his cross examination admitted that after removing the articles, the officials of plaintiff company had locked the premises and had kept the keys with them and the possession of the premises was not handed over to the defendant as he failed to refund the security deposit as per the lease agreement. All the letters written by defendant were not replied by plaintiff as admitted by PW1 who also admitted that they did not write any letter to the defendant informing that the plaintiff was not liable to pay rent while further admitting that the keys of the premises were still lying with the plaintiff company in the custody of Administration team. In terms of admission of PW1 it was not only the defendant who had refused to receive the possession back but the possession was also not handed over to the defendant as he failed CS No. 243/14/2011 and Counter Claim No. 76/15 20/34 to refund the security deposit as per the lease agreement. Applying the same analogy if the defendant has no right to refuse the possession when offered after termination of the lease on the ground of damages caused to it, similarly plaintiff also could not refuse to hand over the possession of the premises for the failure of the lessor to refund the security deposit for which it may also sue the lessor. Reliance is placed upon Narender Gupta Huf Vs. Vigneshwara Developwell Pvt. Ltd. CS (OS) No. 114/2010 dated 13.8.2012 " The tenant has an independent remedy to recover the security but in no way can retain the possession of the premises on the plea that until and unless the security is refunded, possession will not be handed over . Such a possession by the tenant is a possession for which he has to pay the rent as the premises could not have been put in use by the landlord. No tenant can take the defense that he is entitled to retain the possession of the premises unless security amount is refunded to him. When there is an independent remedy to recover this amount, the retention of possession cannot be justified and in order to avoid the liability of rent, the tenant has the obligation to hand over the possession".
23. Ld. counsel for plaintiff submitted that in terms of clause contained in the lease agreement, the refusal of the plaintiff for handing over of the possession to the defendant for non refund of the security by the defendant was justified and the plaintiff company had no liability qua payment of rent to the defendant for such period till the amount of security CS No. 243/14/2011 and Counter Claim No. 76/15 21/34 was not refunded to him. It may be noted that the terms of lease deed not only contained the abovesaid clause regarding the refund of the security amount at the time of handing over of the possession but also contained a clause whereby refund of the deposit to the plaintiff was to be simultaneously with the lessee removing itself/its officers/employees using the leased premises from and vacating the leased premises and giving charge thereof to the lessor (reasonable wear and tear, damage/loss to/ destruction of the leased premises by fire not caused by the lessee or anything else beyond the control of the lessee). While plaintiff is insisting upon compliance of the refund of security amount in terms of clause mentioned in lease deed, same also entails responsibility upon it to fulfill the other liabilities imposed upon it, as the damage was stated to have been caused by the defendant during the tenancy period and during shifting of the plaintiff from the suit premises. However, again the fact remains that the lease deed itself was unregistered though required compulsary registration . As submitted by Ld. counsel for defendant, under section 35 of the Stamp Act, instrument not duly stamped is also inadmissible in evidence. In the instant matter, the lease deed for period of three years was on a stamp paper of Rs. 300/ whereas stamp duty should have been on the 2 % of the annual rent as well as further extension by letter was not permissible under section 107 of T.P. Act. Therefore as argued, the plaintiff cannot derive any advantage of any of the clauses of alleged lease deed and the further renewal letter. Per contra, it was submitted by Ld. counsel for plaintiff that the proviso appended to section 49 of the act CS No. 243/14/2011 and Counter Claim No. 76/15 22/34 makes it abundantly clear that the said document can be received in evidence for proving any collateral transaction not required to be effected by way of a registered document. In the instant matter, the unregistered lease deed Ex. PW1/1 contained not only such terms which are essential and pertain to the lease qua the demised premises but also the terms which are only incidental to the lease of the premises and are neither a condition precedent for lease of the property nor are enforceable while the lease is operational . One such covenant is clause no.8 which pertains to deposit of an interest free security deposit which clause further stipulates that upon the termination of the lease, the defendant shall refund the said deposit to the plaintiff without making any deduction whatsoever. Such terms pertaining to deposit of the security deposit, refund and consequences ensuing upon nor refunding are not terms which affect the lease qua the demised premises. Thus all such covenants which pertains to the deposit, refund etc. of the security deposit are not fundamental to or in any way concerned with constituting a valid and enforceable lease and the terms constituting such lease. As further argued that being so, it can be read in evidence since the same are only collateral in nature and are not required to be registered under the provisions of the registration act and thus terms of clause 8 of the lease deed dated 12.4.2007 can be read in evidence. As further argued, what section 49 stipulates is that the unregistered document cannot be received in evidence for proving its contents subject to the exception contained in proviso appended thereto.
Thus, the party intending to prove the contents of the unregistered CS No. 243/14/2011 and Counter Claim No. 76/15 23/34
document,may do so by leading other evidence or may need not do so if the same are otherwise admitted by the other party. For the abovesaid reliance was placed by Ld. Counsel for plaintiff upon Deluxe Dentelles Pvt. Ltd. Vs. Ishpinder Kochar 218 (2015) DLT 645. It was further argued by Ld. Counsel for plaintiff that although the defendant has now taken the objection regarding the inadmissibility of the lease deed Ex. PW1/1 but so far he has refused to take possession of the demised premises from the plaintiff by relying heavily on the said lease deed and citing breach of one or other term of said lease deed itself on the part of plaintiff.
24. Though it is correct that even the unregistered lease deed can be looked for collateral purpose but what constitutes collateral purpose cannot be the terms and conditions by which parties are related to each other as landlord and tenant. As was observed in 208 (2014) DLT 589 Jiwan Industries (P) Ltd. Vs. Kamlesh Rani Budhiraja " unregistered lease deed can be looked only for collateral purpose and collateral purpose cannot be interpreted to include therein the terms and conditions by which parties are related to each other as landlord and tenant and collateral purpose basically is to show nature of possession i.e. tenant has not illegally entered into possession but has legally entered into possession. All other terms and conditions between the landlord and tenant as stated in the unregistered lease deed whether it be for the period of lease, or the rate of rent, or area of tenancy or other terms and conditions, the same cannot be looked into in CS No. 243/14/2011 and Counter Claim No. 76/15 24/34 view of the specific bar of section 49 of Registration Act" . In 208 (2014) DLT 680 Bharat Lal Maurya Vs. Godrej & Boyce Mfg. Co. Ltd., it was observed that " a document that is compulsorily required to be registered and is not registered is inadmissible in evidence and cannot be used as evidence except for any collateral purpose. A collateral transaction must be independent of and divisible from the transaction to effect which the law requires registration. A collateral transaction must be a transaction not itself required to be effected by a registered transaction. Some examples of collateral transaction is transactions pertaining to land lord and tenant would be the relationship between the parties, nature of premises, purpose of letting, rate of rent etc. An unregistered lease deed can be looked into for the purposes of ascertaining any of the above collateral purposes but not for enforcing a terms of the lease. A clause in lease deed fixing or stipulating a term of the lease or a fixed term of lock in periods is not a collateral purpose which would be one of the main clauses of the lease which in absence of registration would be inadmissible in evidence and unenforceable in law " . In the instant matter, the clause containing refund of the security amount after the termination of the tenancy, cannot be termed as collateral purpose and lease being unregistered, said term is therefore not binding upon the parties and the parties to the suit thereby shall be governed by the provisions of Transfer of Property Act, in terms of which the premises is to be restored by the tenant in the original condition (subject to natural wear and tear) and no condition regarding the retention by the plaintiff of the suit premises without CS No. 243/14/2011 and Counter Claim No. 76/15 25/34 payment of the rent on the ground of non refund of security is enforceable.
25. Now the question which is yet to be answered is whether the possession of the suit property continues to be with the plaintiff company or has been received by the defendant. As submitted by Ld. counsel for plaintiff, the defendant never turned up for seeking possession on 31.12.2010 and plaintiff though was under the impression of symbolic possession of the premises with it since the keys of the demised premises were with it, but such belief was dislodged when on 4.7.2013, it came to its knowledge that the locks on doors of the premises were not the same, as they were, when the plaintiff was in possession of the premises and thus apparently they were changed by the defendant as the possession was discreetly taken over by him on 4.7.2013. As argued by Ld. counsel for plaintiff, in terms of report of LC dated 31.8.2013, the keys in possession of the plaintiff were tried on all the locks but none of the locks could be unlocked by the said keys and it was also reported by Local commissioner which strengthens the case of plaintiff that on inquiry from the other occupants of the demised building, it revealed that the said premises had been lying locked since the time plaintiff vacated the same. Contradicting the said plea, it was again argued and as mentioned in the written submissions with reference to letter dated 7.3.2011 Ex. PW1/10 whereby the defendant had called upon the plaintiff to respond within 30 days of the notice failing which he will presume that the plaintiff was not interested in settlement of dues arising out of the termination of the premises and it was submitted by counsel for plaintiff that the said reference was CS No. 243/14/2011 and Counter Claim No. 76/15 26/34 demonstrative of the fact that the defendant had taken over the possession of the suit premises discreetly around February 2011 as also the defendant had nowhere mentioned that he was seeking possession of the leased premises rather had asked only for settlement of dues mentioned therein which was again demonstrative of the fact that he was in possession of the suit premises as on 7.3.2011.
26. The plaintiff himself does not seem to be sure about taking over of the possession of the suit premises by the defendant in March 2011 or July 2013. The facts which have emerged so far, are that both the parties were at some fault with respect to handing over/receiving of the possession of property in question. The defendant could not have refused to receive back the possession after the due notice upon him citing reasons for damages caused in the suit premises and as already noted, the appropriate remedy available with him was to pursue the legal remedies for the same. At the same time, plaintiff itself was also not justified in refusing to hand over the possession of the suit premises, as has been admitted by its own witnesses, that the possession was not handed over to the defendant for non refund of the security amount, for which claim also separate legal remedy could have been pursued by the plaintiff and it was also at fault in refusing to hand over the possession of the suit premises to the defendant on the abovesaid excuse. The plaintiff despite its own submission that the keys of the premises continued to be always in possession of plaintiff till date had never taken any steps for sending the keys to the defendant by post, through messenger or CS No. 243/14/2011 and Counter Claim No. 76/15 27/34 even by deposit of the same before the court when the suit was filed nor at any subsequent stage offer was made by the plaintiff to hand over the keys of the premises in question to the defendant or to seek deposit of the same before the court. Similarly the defendant himself had not asked for the possession of the suit premises during the pendency of the case. The property in question as admitted by both the parties has been lying vacant for last more than 4 years, whereby it is the defendant who has lost so much of the rental income which could have accrued to him, had the premises in question been relet to someone else. Clause 8 of the lease deed as heavily relied upon by the plaintiff for showing lack of any responsibility qua payment of rent for the period of possession of the suit premises with plaintiff has already been discarded by this court, in which eventuality it would have been the plaintiff who had been liable to make good the losses caused to the defendant in terms of the rental income. However the ball was dropped in the court of defendant again in wake of the admission made in notice dated 7.3.2011, contents of which were put to DW1 in his cross examination upon which he stated that on 31.12.2010, PW3 alongwith Sh. Neeraj Tiwari had come to hand over the possession to him but they locked the premises in his presence and took the keys with themselves and with respect to the other contention regarding locking of the premises, he sought to clarify that someone had brought to his notice that the premises in question was being misused by HDFC at night hours which was creating a very bad situation and that is why he in consultation with HDFC, locked the premises CS No. 243/14/2011 and Counter Claim No. 76/15 28/34 and a person had been assigned the night duty. As stated by DW1 , his intention in writing this letter to HDFC was to bring to their notice that they were to follow the obligations with regard to premises till they hand over the possession and that is why in the same letter, he requested them to settle the issue and handover the premises amicably. He denied the suggestion that he had put any locks over the said premises and made any security arrangement which was for the reason that the possession was not handed over to him . It remains the fact that none of the notices/letters sent by the defendant were ever replied to by the plaintiff company which was admitted by PW1 also that no correspondence was made with regard to letter dated 1.1.2011, 22.1.2011 and 7.3.2011 and the defendant as claimed had never been handed over the possession by the plaintiff. PW1 and PW3 themselves have admitted regarding not handing over the keys of the premises in question to the defendant on 31.12.2010 or any point of time even thereafter. PW3 had rather stated about his visit to the premises in question on 31.12.2010 alone and stated about the non appearance of the defendant on the said date, contary to the assertion of DW1 that he had visited the spot on 31.12.2010 itself where two of the employees of plaintiff company i.e. Navneet Kaushik and Neeraj Tiwari were present . Said statement of DW1 also finds substantiation from the contents of report of local commissioner who during inquiry was informed by Neeraj Tiwari that on 31.12.2010, he alongwith Navneet Kaushik was present to hand over the possession of premises to the defendant but the defendant did not return the security deposit, therefore they locked the CS No. 243/14/2011 and Counter Claim No. 76/15 29/34 permises, retained the keys and deposit the same with the head office of plantiff at Paschim Vihar. However, the clearly worded notice dated 7.3.2011 does not lead to any different interpretation as pointed out by Ld. counsel for plaintiff. It was the defendant who had informed to the plaintiff vide the abovesaid notice that the plaintiff had left the premises unguarded and unlocked and this gave opportunity to some people to mis use the property. Though in terms of own admission of DW1, employees of plaintiff had locked the premises and took the keys alongwith them, yet as referred in the notice, " Now the premises has been locked and security arrangements made so as to eliminate any possibility of encroachment ". No other interpretation seems to be possible from the contents of the notice regarding the locks having been put on the premises by the defendant himself who also made the security arrangements so as to eliminate any possibility of encroachment. The contention of counsel for plaintiff that the defendant also did not seek the possession of the suit premises in terms of the contents of the notice also seems to be correct. As noted in the notice that " since the premises has been left vacant, I take it that you are no longer interested in continuing the tenancy, threfore it is in intrest of lessor and lesseee that settlement of dues is done as per provisions of the lease agreement 12.4.2007 ". The defendant's version seems to be unequivocal as recited in the notice regarding the termination of the lease and only calling upon the plaintiff for settlement of the dues. Defendant himself having acknowledged vide letter dated 7.3.2011 regarding the premises having been vacated by the plaintiff leaves no option CS No. 243/14/2011 and Counter Claim No. 76/15 30/34 for the court, but to hold that the defendant in terms of his own admission came into possession of the suit premises at least by 7.3.2011. Having discussed as above, the possession of the premises in question having been taken over by the defendant in March 2011, plaintiff becomes entitled to seek the refund of security amount after deduction of the rent for the above said period and other charges payable to the defendant due to termination of the lease.
27. Plaintiff has also claimed interest on the said amount of security. However, as already noted, it was only because of the defendant himself having admitted taking over the possession of the suit premises by March 2011, which was not even in the knowledge of plaintiff even till year 2013 who continued to be under the impression that the keys of the premises were lying with it, thereby the possession of the suit premises had not been handed over by the plaintiff to defendant at any point of time and to the good luck of plaintiff and to the bad luck of defendant, it was only for the own admission of defendant in the said notice dated 7.3.2011, that the plaintiff has been held entitled for refund of its security amount, though it otherwise has not been able to prove its case regarding handing over of the possession of the premises to the defendant at any point of time. In these circumstances, plaintiff himself having been found at fault in not handing over the possession of the suit premises to the defendant in the garb of non refund of the security cannot be held entitled for any interest on the amount of security now found recoverable in favour of plaintiff .
CS No. 243/14/2011 and Counter Claim No. 76/15 31/34
28. The rent of the suit premises in terms of the observations as above regarding defendant having come into possession of the suit premises in March 2011 onwards, the plaintiff's liability qua the payment of rent for the suit premises gets squared up for three months i.e for December 2010, for which month as admitted by the plaintiff itself the rent was not paid and then for two more months i.e. January 2011 and February 2011 and quantified for sum of Rs. 6,94,575/ calculated at admitted rate of rent of Rs. 2,31,525/ per month.
29. Defendant has also claimed the amount of Rs. 1 lac against the miscellaneous payments, but which are those miscellaneous payments have neither been elaborated by the defendant nor proved on record , therefore his entitlement in the counter claim also gets squared up only for rent of three months w.e.f. December 2010 to February 2011, quantified as above for Rs. 6,94,575/.
30. Issue no.1 and issue no.1 of Counter Claim: Both the parties have put their respective claims on the record and both the parties as above have already been found at some fault and have been held entitled for some part of their respective claims, therefore both these issues become irrelevant for disposal of the instant case in terms of the findings on issue no. 2 & 3 and issue no. 2 of counter claim , therefore no separate findings are required to be given on both these issues.
31. Issue no. 3 of counter claim: In terms of the discussion over issue no. 2 & 3 and issue no. 2 of counter claim, this court has already returned its CS No. 243/14/2011 and Counter Claim No. 76/15 32/34 finding regarding the defendant being in possession of the premises in question at least w.e.f. March 2011 , therefore no further formal order is required to be passed regarding the entitlement of the defendant for possession of the leased premises.
32. Issue no. 4 of Counter claim: The defendant has sought relief of mandatory injunction for removal of the defects and damages caused to the leased premises . DW1 stated that the plaintiff had not carried out the repairs to remove the defects and damages caused to the property for handing over its vacant actual possession to the defendant which the plaintiff company was required to repair and to remove the defects and to bring the premises in the original condition. He stated that the defendant also requested many times to the plaintiff to consider deputing technical person for making assessment of the damages caused to the leased property but no response was received by him. DW1 though deposed in his affidavit of evidence that as many as 25 windows were found damaged i.e. glasses and handles were missing , windows removed for fitting ACs , there were many dent and holes in the roof, plaster was also damaged at many places, POP was also removed, Marble skirting was removed from the floors and many electrical points were damaged, with mention of many more defects pointed out which required repairs and replacement . However the defendant has not brought on record any evidence to support his oral assertion in this respect. The report by way of which Architect had given his assessment regarding the damages caused to the property has not been placed on record nor any other witness has been CS No. 243/14/2011 and Counter Claim No. 76/15 33/34 examined on this aspect nor the photographs of the building or any other evidence to substantiate the plea of the defendant has been brought on record. Onus to prove this issue was upon the defendant who has failed to discharge the same for his failure to bring on record the evidence to support his assertion. Hence, no directions can be issued to the plaintiff in this respect. This issue is accordingly decided against the defendant.
33. Relief : Having discussed as above, the suit of plaintiff and counter claim of defendant is decreed in part and as cumulative effect, after making necessary deduction from the respective claims of the parties, the suit is decreed in favour of plaintiff for sum of Rs. 5,05,425/. Copy of this order be placed CC No. 76/15. Both the parties shall be left to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in Open Court
on 30.05.2015 ( SAVITA RAO )
Additional District Judge01(West)/Delhi
CS No. 243/14/2011 and Counter Claim No. 76/15 34/34