Delhi District Court
Bharat Rao (Deceased) Through Lr'S ... vs Amit Bhalla And Anr on 18 April, 2024
DLND010013402014
IN THE COURT OF DISTRICT JUDGE - 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 57616/2016
Bharat Rao (deceased)
Through his Legal Representative
1. Raunak B Rao
S/o Late Sh. Bharat Rao
R/o 8/601, Garden Estate,
Pokhran Road (2), Near Khevra Circle,
Thane (West) - 400610
Maharashtra
2. Jaya B Rao
S/o Late Sh. Bharat Rao
R/o 8/601, Garden Estate,
Pokhran Road (2), Near Khevra Circle,
Thane (West) - 400610
Maharashtra
......... Plaintiffs
Versus
1. Amit Bhalla
S/o Sh. J.R. Bhalla
R/o H.No. 116, Jor Bagh,
New Delhi - 110003
CS No. 57616/16 Pages 1 of 29
Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors
2. Amit Jai Bhalla & Son HUF
R/o H.No. 116, Jor Bagh,
New Delhi - 110003
3. M/s J.R. Bhalla Trust
R/o H.No. 116, Jor Bagh,
New Delhi - 110003
........ Defendants
Suit presented On : 02.04.2014
Arguments Concluded On : 06.03.2024
Judgment Pronounced On : 18.04.2024
JUDGMENT
FACTUAL MATRIX
1. As per admitted facts, the defendants being owners1 of flats bearing nos. 1216 to 1220, situated on 12 th floor of Naurang House, 21 Kasturba Gandhi Marg, New Delhi (hereinafter, referred as 'suit premises'), jointly leased out the suit premises to the plaintiff (who is the sole proprietor of M/s Tecknowsource) vide registered sale deed dated 21.01.2013 subject to following relevant terms :
(a) That the lease agreement was for a period of 5 years w.e.f.
15.01.2013 to 14.01.2018 with a condition for enhancement of rent @ 15% after 3 years (Clause 2).
(b) That the rent of 12 months was payable in advance by way of 1 Defendant no. 1 - Flat no. 1216, 1218 and 1220 admeasuring 1493 sq. ft.
Defendant no. 2 through its Karta defendant no.1-Flat no. 1219 admeasuring 518 sq. ft. Defendant no. 3 through its Karta defendant no.1 - Flat no. 1217 admeasuring 486 sq. ft.
CS No. 57616/16 Pages 2 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors post dated cheques (Clause 2).
(c) That for the first 3 years the rent was fixed at Rs.4,60,000/- p.m. payable in advance by 15th of each calender month as under :
"4(a) During the term of this Lease, for the first 03 (three) years, from 15th January 2013 till 14th January 2016, which comes to Rs.4,60,000/- per month (Rupees Four Lacs Sixty Thousand only), and the same shall be paid, in advance, on or before 15th day of each calender month for which it is due, and till further instructions from the LESSORS in writing, shall be paid as per details given below :
Sl no. Amount To be paid to
1. Rs.2,75,100/- Sh. Amit Bhalla
2. Rs.95,400/- Amit Jai Bhalla & Son HUF
3. Rs.89,500/- J.R. Bhalla Trust
(Clause 4{a})
(d) That TDS was deductable at source (Clause 5).
(e) That service tax on lease rent, and any other tax, charge, surcharge and levy on as a percentage of service tax, as and when applicable, from time to time was payable by the plaintiff (Clause
6).
(f) That a sum of Rs.27,60,000/- as interest free refundable security deposit was payable as under:
"7. The LESSEE shall deposit with the LESSORS, on execution, of this Lease Agreement, a sum of Rs.27,60,000/- (Rupees Twenty Seven Lacs Sixty Thousand Only) as interest free refundable Security Deposit, equivalent of 6 (six) months Lease rent, as per the details given below :
Sl Amount DD no. Bank To be paid to
no. &
Date
1. Rs.16,50,480/- 006445 HDFC Sh. Amit Bhalla
19.01.23
CS No. 57616/16 Pages 3 of 29
Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors
2. Rs.5,72,424/- 006447 HDFC Amit Jai Bhalla 19.01.23 & Son HUF
3. Rs.5,37,096/- 006446 HDFC J.R. Bhalla Trust 19.01.23
(g) That it was also agreed as per (Clause 7) as under :
"This Security Deposit amount shall be held in trust by the LESSORS and, subject to the terms contained herein below, shall be refunded by the LESSORS to the LESSEE on expiration or pre-determination of this Agreement, simultaneously against handing over of the quiet, peaceful, and physical and vacant possession of the Leased Premises to the LESSORS, in the condition as mentioned in Clause 23 herein below. However, it is agreed that the LESSORS shall be entitled to deduct any sums, from this Security Deposit, recoverable by the LESSORS from the LESSEE under or by virtue of this Lease Agreement towards Leased Premises or towards arrears of rent, Rent for the Lock-in period, electricity dues, water charges, maintenance dues and / or any other dues or charges relating to the Leased Premises payable by the LESSEE, and refund only the balance amount to the LESSEE. If the refundable Security Deposit as mentioned herein above is not refunded to the LESSEE at the time of vacation and handing over of the vacant, peaceful, physical possession of the Leased Premises, then the LESSORS shall pay interest @ 24% (twenty four) per annum to the LESSEE until the refundable Security Deposit or such part thereof as is repayable hereunder, has been paid in full."
(h) That the plaintiff was liable to pay electricity, water and maintenance charges (Clause 9).
(i) That the plaintiff could not carry out major or structural changes, alterations or additions. However, subject to certain terms, non permanent and temporary additions and alteration to the furniture, furnishing, decoration, electric fixtures and fittings, wood work, equipment, false celling etc could be done with specific permission, in writing obtained from the defendants CS No. 57616/16 Pages 4 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors (Clause 13).
(j) That minor day to day expenses of maintenance was to be taken care of by the plaintiffs (Clause 17).
(k) That the plaintiff, on expiry / sooner determination / termination of the lease agreement had to vacate and deliver to the defendants quiet and peaceful, physical and vacant possession of the suit premises and the furniture and fixtures and fitting therein, in the same condition as they were at the time of letting however, normal wear and tear were excepted (Clause 22).
(l) That joint inspection before taking possession was to be undertaken. It could also be videographed (Clause 22).
(m) That pertinently as per clause 23 of the agreement on sooner determination / termination of the agreement, if the plaintiff failed to deliver and handover quiet and peaceful possession of the suit premises as per conditions mentioned above, the defendants were entitled to, without prejudice to their rights and remedies, to compensation @ 20% over and above the rent immediately preceding the date of termination for the first six months of unauthorized occupation, which would be increased thereafter, every 6 months by 20% over and above the last rate of compensation. This was without prejudice to the right of the defendants to claim damages for breach of agreement.
(n) That by virtue of clause 30, 12 months of the term of the lease was the lock-in period.
(o) That after the lock-in period, the plaintiff could terminate the lease agreement after giving 3 months notice in writing or paying CS No. 57616/16 Pages 5 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors 3 months rent, in lieu thereof (Clause 31).
(p) That the plaintiff had to continue to pay full rent and other charges under the lease agreement for such time as he did not hand actual, vacant, peaceful and physical possession of the suit premises to the defendants (Clause 36).
(q) That the parties also agreed not to waive of any provisions of the lease agreement verbally (Clause 42).
2. The security deposit was made and the lease period began from 15.01.2013. Thereafter pursuant to exhaustion of the lock- in period, the plaintiff claims that vide letter dated 15.01.2014, it notified the defendants that he would be exercising his rights under clause 32 (iv) of the lease agreement entitling him to terminate the lease after 3 months notice in writing. However, defendants no. 2 and 3 did not respond to the same. Thereafter, vide email dated 29.03.2014, the plaintiff again informed the defendants of his intentions and also wrote letter dated 12.04.2014 confirming that he would be handing over possession of the suit premises on 14.04.20214 and therefore, sought fixation of time for the same. The plaintiff also sought refund of his security deposit at the time of taking over of the possession of the suit premises. On 06.04.2014, the plaintiff again emailed defendant no.1 requesting to specify the date for joint inspection of the suit premises. In response thereof, defendant no.1 claimed an actual loss of Rs.5,35,000/- due to termination of the lease deed and restoration of the suit premises to its original condition CS No. 57616/16 Pages 6 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors before joint inspection. The plaintiff refuted the contentions of the defendants vide email dated 07.04.2014. A joint inspection of the suit premises was conducted on 11.04.2014 and in the meanwhile the plaintiff shifted office to property no. 1001 and 1002, 10th floor of the same building.
3. On 11.04.2014, joint inspection of the suit premises was carried out in the presence of representatives of the plaintiff and Sh. Pradeep Kaushik and Ms. Sonia Bhalla (wife of defendant no.1) , on behalf of the defendants. Whereas, it is the case of the plaintiff that Ms. Sonia Bhalla was satisfied with the condition of the suit premises, on 12.04.2014, the defendants emailed to the plaintiff claiming Rs.5,35,000/- as damages and enclosed pictures showing defects in the suit premises. The plaintiff has claimed that the defects pointed out were normal wear and tear permissible under the lease agreement, yet to avoid unnecessary conflict, the plaintiff claims to have corrected them. The plaintiff has also stated that he cleared all the dues of the maintenance society and informed the defendants about the same on 12.04.2014. The plaintiff through the same email again insisted that the defendants take possession of the suit premises on 14.04.2014 and to refund the security deposit to the plaintiff. The defendant allegedly replied to the email, without inspecting the suit premises in a per-meditated manner to withhold the security deposit of the plaintiff on legally untenable and frivolous reasons. Further emails were again exchanged and on 14.04.2014, Sh.
CS No. 57616/16 Pages 7 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors Pradeep Kaushik on behalf of the defendants arrived at the suit premises but allegedly did not take possession of the suit premises on the pretext that he was not authorized to sign any document. Thus, it is asserted by the plaintiff that he handed over the constructive possession of the suit property to the defendant on 14.04.2014 itself and thereafter, the suit premises was lying vacant at the risk and cost of the defendant.
4. Considering that, the plaintiff received email dated 14.04.2014 alleging that the plaintiff had failed to hand over possession of the suit premises and remained liable to pay rent, the plaintiff was constrained to issue legal notice dated 15.04.2014 to the defendants to take actual possession of the suit property simultaneously, against refund of security deposit with interest @ 24% p.a. In response thereof, the defendants replied on 16.04.2014 that its representative had been refused entry into the suit premises and defendants also raised invoice towards rent. Again on 21.04.2014, a letter dated 19.04.2014 was received to the legal notice after which, the present suit came to be filed with the following reliefs :
"(a) pass a decree of an amount of Rs.27,60,000/- (Rupees Twenty Seven Lacs Sixty Thousand Only) towards the plaintiff and against the defendants;
(b) direct the defendants to pay interest at the rate of 24% per annum on the amount found due in prayer (a) from 15.04.2014 till the date of actual payment;
(c) award the costs of institution, prosecution filing of this suit in favour of the plaintiff and against the defendants including costs for appointment of local commissioner, if any ;
(d) pass such other and further order(s) as may be deemed fit CS No. 57616/16 Pages 8 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors and proper in the facts and circumstances of the case."
4.1 Vide order dated 02.05.2014 on I.A. no. 8249 of 2014, at joint request of the parties, a local commissioner was appointed to oversee handing over of possession and for assessing the condition of the suit premises. Thereafter, on 02.05.2014, actual possession of the suit property was handed over to the plaintiff.
5. The written statement invoked clause 21, 22 and 36 of the lease agreement urging that on sooner determination / termination of the lease agreement, the plaintiff was liable to hand over peaceful, physical and vacant possession of the fully furnished suit premises and the furniture and fixtures and fittings therein, in the same condition as the leased premises as at the time of letting, subject to normal wear and tear and to pay full rent till handing over of actual and vacant possession on 02.05.2014. It is stated that out of Rs.27,60,000/- the defendants during the pendency of the present suit, have already paid the following amount :
(i) Rs.13,00,000/- 02.05.2014
(ii) Rs.2,02,327/- Vide cheque no. 140553
dated 10.02.2015
(iii) Rs.70,814/- Vide cheque no. 287959
dated 19.02.2014
(iv) Rs.64,070/- Vide cheque no. 64070
dated 19.02.2014
CS No. 57616/16 Pages 9 of 29
Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors
6. The present dispute is now confined narrowed down to recovery of Rs.11,22,789/- which the defendants have adjusted the security deposit in terms of lease deed dated 21.01.2013 as under :
1 Towards repairs, polish, Rs.2,50,212/-
cleaning, fixtures, fittings etc 2 Towards costs of missing items Rs.16000/- 3 Towards electricity bill Rs.7,161/- 4 Towards rent for the period of Rs.3,10,113/-
15.04.2014 to 02.05.2014 5 Towards maintenance for the Rs.8,417/-
period 15.04.2014 to
02.05.2014
6 Towards loss of rent for one Rs.5,16,855/-
month
7 Towards maintenance for one Rs.14,027/-
month
Total Rs.11,22,789/-
7. Plaintiff filed replication to the written statement wherein, the contents of the written statements are denied and averments made in the plaint are reiterated and affirmed.
ADMISSION AND DENIAL OF DOCUMENTS
8. No admission and denial of document was conducted.
CS No. 57616/16 Pages 10 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors ISSUES
9. Vide order dated 30.11.2018 following issues were framed :
(i) Whether the plaintiff is entitled to recover the amount after deduction of the amount already paid to the plaintiff in terms of the orders of Hon'ble High Court dated 26.05.2014? OPP
(ii) If issue no.1 is proved in affirmative, whether plaintiff is entitled for any interest thereon, if so at what rate and for what period? OPP
(iii) Whether the suit is without any cause of action? OPD
(iv) Whether on account of the reasons stated in para 6, 6.1 to 6.7 of the WS damages have been caused to the property of the defendants, if so its effect? OPD
v) Relief.
PLAINTIFF EVIDENCE
10. In order to prove its case, the plaintiff examined himself as PW-1. He tendered evidence by way of affidavit Ex. PW1/A. He relied upon the following documents:
Sr. Documents Exhibited as No. 1. Original power of attorney Ex. PW1/1 2. Copy of lease deed dated 21.01.2013 Ex. PW1/2 3. Original Termination letters dated EX. PW1/3
15.01.2014 with original proof of dispatch (colly)
4. Copy of emails dated 14.01.2014, Ex. PW1/4 18.01.2014 and 29.03.2014 sent by the plaintiff to defendants CS No. 57616/16 Pages 11 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors
5. Office copy of letter dated 05.04.2014 Ex. PW1/5 with original proof of dispatch sent by the plaintiff to defendants
6. Copy of emails exchanged between the Ex. PW1/6 parties from 06.04.2014 to 10.04.2014 (colly)
7. Certified copy of lease deed dated Ex. PW1/7 28.03.2014
8. Original bills and invoices Ex. PW1/8 (colly) (objected to on mode and manner off proof as deponent is not the author of the said document)
9. Original receipts issued towards Ex. PW1/9 maintenance charges paid by the plaintiff
10. Certified copy of lease deed dated Ex. PW1/10 28.05.2014
11. Copy of the emails exchanged between Ex. PW1/11 the plaintiff and defendants dated (colly) 12.04.2024, 13.04.2014 and 14.04.2014
12. Original legal notice dated 15.04.2014 Ex. PW1/12 with original postal receipt
13. Original reply issued on behalf of the Ex. PW1/13 defendants in reply to legal notice
14. Report of Local Commissioner dated Ex. PW1/14 06.05.2014 16. Bank statement Ex. PW1/15 CS No. 57616/16 Pages 12 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors (objected to as beyond pleading)
17. Invoices raised towards litigation Ex. PW1/16 expenses (objected to as beyond pleading)
18. Affidavit u/s 65B of The Indian Evidence Ex.PW1/B Act, 1872 The witness was extensively cross-examined by Ld. Counsel for the defendant.
10.3 Vide order dated 25.03.2019, PE stood closed in the present matter.
DEFENCE EVIDENCE
11. In defence, defendant no.1 examined himself as DW1. He tendered his evidence by way of affidavit Ex. DW-1/A and relied upon the following documents :
Sr. Documents Exhibited as No.
1. CD of joint video recording dated Ex. DW1/1 21.01.2013 (objected to on the ground of mode and manner of proof) (However, the same could not be played as it was tagged with file and CS No. 57616/16 Pages 13 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors destroyed)
2. Plaintiff's email dated 14.01.2014 Ex. DW1/2
3. Copy of plaintiff's letter dated Ex. DW1/3 15.01.2014
4. Copy of email dated 12.04.2014 Ex. DW1/4 alongwith attachments and also Mark X
5. Copy of email dated 12.04.2014 Ex. DW1/5
6. Copy of email dated 14.04.2014 at Ex. DW1/6 02.30 p.m.
7. Copy of email dated 14.04.2014 Ex. DW1/7
8. Copy of email dated 14.04.2014 at Ex. DW1/8 03.16 p.m.
9. Copy of letter dated 14.04.2014 Ex. DW1/9
10. Copy of letter dated 16.04.2014 Ex. DW1/10
11. Copy of reply dated 19.04.2014 Ex. DW1/11
12. Copy of photographs taken by the Ex. DW1/12 defendants on 03.05.2014 (objected to on the ground of mode and manner of proof)
13. Invoice Ex. DW1/13 to Ex.
DW1/22(not produced and are de-exhibited)
14. Copy of cheque given to Spark Ex. DW1/23 International Chairs Pvt. Ltd (not produced and are de-exhibited)
15. Copy of cheque given to Royal Ex. DW1/24 Touch Interior Solutions (not produced and are de-exhibited)
16. Copy of cheque given to Advance Ex. DW1/25 Engineers (not produced and are de-exhibited)
17. Copy of letter dated 21.02.2015 Ex. DW1/26 CS No. 57616/16 Pages 14 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors addressed to the plaintiff
18. Affidavit u/s 65B of Indian Ex. DW1/B Evidence Act 11.1 DW-2 Sh. Anurag Bansal tendered his evidence by way of affidavit and relied upon CD already Ex. DW1/1 and photographs already Ex. DW1/12.
11.2 DW-3 Sh. Rahul Kumar deposed that invoice no.104 Mark DW3/A was issued by issued by R.P. Contractor. He stated that he could not bring the record as it was of the year 2014.
11.3 DW-4 Sh. Mahesh Pai to prove statement of account of account no. 5145215228, Citi Bank for the period 01.06.2014 to 31.08.2014 as Ex. DW-4/A to show transaction carried out vide cheque no. 140524 for sum of Rs.13,500/- towards payment to Spark International Chairs Pvt. Ltd.
11.4 DW-5 Sh. Rahul Joshi to prove statement of account bearing no. 51111140898, with Kotak Mahindra Bank as Ex. DW5/A Colly to show payments made by Amit Bhalla vide cheques bearing no. 000108 and 000109 to Royal Touch and Advance Engineers, respectively.
11.5 DW-6 Sh. Kiran Kumar to prove original invoice no. 3049 dated 31.05.2014 issued by Royal Touch to defendant as Ex. DW6/1.
CS No. 57616/16 Pages 15 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors 11.6. All the witnesses were duly cross-examined by Ld. Counsel for LRs of the plaintiff.
Vide order dated 27.10.2022 application under Order XXII Rule 3 of CPC was allowed and LRs of the plaintiff were impleaded.
FINAL ARGUMENTS
12. Final arguments have been advanced by Sh. Deepak Yadav, Ld. Counsel on behalf of the LRs of the plaintiff and Sh. Kushagra Pandit, Ld. Counsel on behalf of the defendants.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
13. The Court has gone through the entire record of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial.
ISSUEWISE FINDINGS
i)Whether the plaintiff is entitled to recover the amount after deduction of the amount already paid to the plaintiff in terms of the orders of Hon'ble High Court dated 26.05.2014? OPP
(iii) Whether the suit is without any cause of action? OPD CS No. 57616/16 Pages 16 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors
(iv) Whether on account of the reasons stated in para 6, 6.1 to 6.7 of the WS damages have been caused to the property of the defendants, if so its effect? OPD
14. Onus to prove issue no. (i) was upon the plaintiff and issues no. (iii) and (iv) was upon the defendants.
14.1 The issues are taken up for discussion together as they are inter-related.
14.2 The parties are at common ground that Rs.27,60,000/- had been paid as security deposit. The controversy is now limited as to whether, Rs. 11,22,789/- (out of the aforementioned amount) is still recoverable by the plaintiff and whether the defendant is entitled to retain the same. The retention of Rs.11,22,789/- is under following heads which are taken up for discussion separately.
14.3 Towards rent for the period 15.04.2014 to 02.05.2014 amounting to Rs.3,10,113/- alongwith maintenance for the same period amounting to Rs.8,417/-
14.3.1 Ld. Counsel for the plaintiff has argued that the aforesaid amount is not recoverable from the plaintiff by referring to clause 30 and 31 of lease deed (Ex. PW1/2) which provided for termination of the lease by the plaintiff by giving three month's notice on lapse of lockin period. It has further been submitted that the plaintiff had issued the termination letter CS No. 57616/16 Pages 17 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors (Ex. PW1/3) on 15.01.2014 which was well within the stipulated period. However, the taking over of possession was purposely avoided by the defendant raising false pretext of damage to the property and therefore, the plaintiff cannot be made liable for the aforementioned amount. Reliance has been placed upon H.S. Bedi, Vs. National Highway Authority of India (2015) 151 DRK 2482 to urge that when the landlord deliberately chose not to take possession with intention of misappropriating security deposits, possession is deemed to have been delivered to the landlord who is not liable to rent or mesne profits from the tenant. Thereafter, relying upon A.C.Raman vs. Muthavally Seydali's son Valiyakath Kaithakkal Kunhi Bara Haji3, it has been submitted that the lease was validly terminated and possession was offered to the landlord who refused to take possession on the ground that the suit premises should be put in repair, cannot amount to continuance of lease in favour of the plaintiff and the only remedy available with the landlord was to sue for damages. Also relying upon ICRA Limited Vs Associated Journals Limited and Anr.4, it has been argued that once the possession of the suit premises was offered upon termination of the lease, the defendant could not refuse to take the possession and would not amount to continuance of lease making the plaintiff liable for rent. It has also been adumbrated that Sh. Pradeep Kaushik (AR of the defendant) who visited the suit premises on 14.04.2014, the date 2 (2015) 151 DRJ 248 3 CRP no. 1290 of 1950 4 2007 (98) DRJ 638 CS No. 57616/16 Pages 18 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors when the possession of the suit property was to be handed over was not authorized to acknowledge receipt of keys of the suit premises and also refused to accept the possession of the suit property.
14.3.2 Per contra, Ld. Counsel for the defendant has argued that it is evident from record that actual physical possession of the suit premises was only handed over on 02.05.2014, before the Ld. Local Commissioner and the possession was taken under protest. Reliance has been placed upon paragraph no. 11 of Ld. Local Commissioner's report dated 06.05.2014. Thereafter, attention of the Court has been drawn to affidavit of the plaintiff (Ex. PW1/A) wherein it has been admitted by the plaintiff undertook repair works both prior to 11.04.2014 (date of first joint inspection pursuant to termination of the lease) and even thereafter, evidencing that the suit property was not in the condition in which the premises was handed over to the plaintiff and there was a breach of clause 22 of the lease agreement (Ex. PW1/2). It has further been submitted that Sh Pradeep Kaushik (AR of the defendant) was duly authorized to take possession of the suit property as already mentioned in email dated 14.04.2014 at 01.24 a.m. part of Ex. PW1/11(colly).
14.3.3 In rebuttal, attention of the Court has been drawn to cross examination of defendant no.1 (DW1) on 11.03.2022 wherein, even though it is admitted by the witness that authority CS No. 57616/16 Pages 19 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors letter to take possession of the suit premises was carried by Sh. Pradeep Kaushik but since no such letter was produced, it has further been urged that adverse inference should be drawn against the defendant. It has been submitted that the defendants did not have the intention to take possession of the suit property despite termination of the lease and therefore, cannot seek rent for the above mentioned period.
14.3.4 In H.S. Bedi Vs. National Highway Authority of India (Supra), the Delhi High Court relying upon A.C.Raman vs. Muthavally Seydali's son Valiyakath Kaithakkal Kunhi Bara Haji (supra), Raja Laxman Singh Vs. State of Rajasthan 5, Onida Finance Ltd. Vs. Malini Khanna6, Uberoisons (Machines) Ltd. Vs. Samtel Colour Limited7, Tamil Nadu Handloom Weavers' Society Vs. Harbanslal Gupta 8, Tikka Brijender Singh Bedi Vs. Metso Minerals (New Delhi) Pvt. Ltd9, Kamal Mangala Vs. Tata Finance Limited10, Associated Journal Limited Vs. ICRA11, observed as under :
"10. Summary of Principles of law: From the analysis of the above decisions and the provisions with which we are concerned, the following principles emerge:-
10.1. Determination of lease - Section 111 of the Transfer of Property Act provides various modes of determination of lease such as determination by efflux of time [Section 111(a)]; expiry of the period of notice of termination [Section 111(h)]; express surrender [Section 111(e)] and implied 5 AIR 1988 Rajasthan 44 6 2002 (3) AD (Delhi) 231 7 2003 (69) DRJ 523 8 2009 (107) DRJ 418 (DB) 9 (2010) 114 DRJ 653 10 2011 ILR 3 Delhi 682 11 MANU/DE/0851/2012 CS No. 57616/16 Pages 20 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors surrender [section 111(f)].
10.2. Obligations of the landlord and the tenant upon determination of lease - The tenant is bound to handover the vacant and peaceful possession of the tenanted premises to the landlord upon determination of lease [under Section 108(q)].
10.3. Duty of tenant to restore the tenanted premises -The tenant is bound to restore the tenanted premises in the same condition in which it was taken.[Section 108(B)(m]. 10.4. Remedy of landlord in the event of non-restoration by the tenant - In the event of non-restoration of the tenanted premises to their original condition, the remedy of the landlord is to adjust the damages in the security deposit or sue the tenant for damages after taking over of the possession.
10.5. Landlord cannot refuse to take over the possession upon determination of lease and offer of possession by the tenant - The landlord, upon determination lease and offer of possession by the tenant, cannot refuse to take over the possession on the ground that the property has been damaged or not restored to its original condition. 10.6. Consequences of the landlord refusing to take the possession offered by the tenant - In the event of refusal of the landlord to take the possession offered by the tenant, the possession shall be deemed to have been delivered to the landlord and the tenant shall not be liable to pay the rent thereafter.
10.7. Consequences of the tenant refusing to handover the possession - If the landlord is ready to accept the possession but the tenant refuses/fails to handover the possession, the liability of the tenant to pay the rent shall continue till the handing over of the possession.
10.8. Remedy of tenant in case of non-refund of security deposit by the landlord - The tenant cannot refuse to hand over the possession till the security deposit is refunded. In the event of non-refund of security deposit by the landlord, the remedy of the tenant is to sue the landlord for refund of security deposit after handing over the possession."
14.3.5 Reverting to the evidence led by the parties whether a genuine offer to take possession of the suit premises was made by the plaintiff versus reluctance of the defendants to take CS No. 57616/16 Pages 21 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors possession it is observed that the plaintiff (as PW1) stated on oath that on 14.04.2014, Sh. Pradeep Kaushik, representative of the defendants reached the suit premises where the plaintiff was already present. He handed over the documents evidencing payment of maintenance amount to the concerned agency till 14.04.2014. However, when the representative of the defendants was asked to conduct joint inspection of the suit premises, take photographs and sign the acknowledgement of the receipt of the keys, he refused to sign any document and accept actual possession of the suit premises. During cross examination the witness stated as under :
"Q 38. Is it correct that Mr. Pradeep Kaushik, authorized representative of the defendants had visited the site premises on 14.04.2014?
Ans. It is correct.
A 39. I put it to you that Mr. Pradeep Kaushik had visited the premises as an authorized representative to carry out joint inspection and take over possession but you refused to carry out the joint inspection and hand over possession to him?
Ans. There are two aspects. The meeting was fixed on 14.04.2014 to hand over the possession of the premises and keys to the authorized representatives of the defendants and Mr. Pradeep Kaushik was deputed by the defendants. I requested him to carry out a joint inspection and sign the documents for taking over the possession. He refused to do so stating that he is not authorized to sign any documents.
Q 40. I put it to you that your above statement is incorrect?
Ans. The suggestion is denied.
Q 41. I put it to you that you continued to use the leased premises till 30.05.2014 for meeting your clients and that the said premises were not lying vacant till 03.05.2014?
(Objected to by the counsel for the plaint on the ground that the same is beyond [pleadings.
CS No. 57616/16 Pages 22 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors Per L.C. objection is kept open to be decided by the Hon'ble Court).
Ans. It is incorrect."
Therefore, the testimony of the witness on the aforesaid aspect remained uncontroverted. Even though, defendant no.1 (DW1) stated that Sh. Pradeep Kaushik was duly authorized by way of a letter to take over possession of the suit premises on 14.4.14, no such letter was adduced in evidence and therefore, the onus which shifted upon the defendants was not discharged. Hence, the only conclusion which can be drawn is in favour of the plaintiff that he offered the possession of the suit premises which was refused by the defendants.
14.3.6 Thus, this component of deduction from the security deposit by the defendants is not justified as it will be deemed that possession was handed over. Reliance is placed upon In H.S. Bedi Vs. National Highway Authority of India (supra), A.C.Raman vs. Muthavally Seydali's son Valiyakath Kaithakkal Kunhi Bara Haji (supra), Raja Laxman Singh Vs. State of Rajasthan(supra), Onida Finance Ltd. Vs. Malini Khanna(supra), Uberoisons (Machines) Ltd. Vs. Samtel Colour Limited(supra), Tamil Nadu Handloom Weavers' Society Vs. Harbanslal Gupta(supra), Tikka Brijender Singh Bedi Vs. Metso Minerals (New Delhi) Pvt. Ltd(supra), Kamal Mangala Vs. Tata Finance Limited(supra) and Associated Journal Limited Vs. ICRA (supra).
CS No. 57616/16 Pages 23 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors 14.4 Towards Repair Work after 02.05.2014 amounting to Rs. 2,50,212/-
14.4.1 The onus to establish that major repairs (as against normal wear and tear) had been undertaken by the defendants in the suit property after the possession was handed over was upon the defendants.
14.4.2 It has been argued on behalf of the defendants that the admission of the plaintiff (PW1) both before and after 11.04.2014, suggests that the suit property was not in the condition in which it was handed over. Attention of the Court was drawn to a CD filed as annexure 2 alongwith the leave to defend application purportedly made on 21.01.2013 which would have depicted the condition of the suit premises on the day it was leased out and would act as a reference. However, the same was damaged on record and could not be reconstructed. Considering that the Ld. Local Commissioner was not made aware of the aforesaid CD at the time of handing over of possession, the report of the Ld Local Commissioner has also therefore, been assailed for not being conclusive. Be that as it may, even though the CD was not in the condition of being played and could not be reconstructed, it is relevant to take note of email dated 12.04.2014 sent at 02.22 p.m. (Ex. DW1/4) by defendant no.1 to the plaintiff of damages in the suit property as per inspection CS No. 57616/16 Pages 24 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors carried out on 11.04.2014. However, during cross examination the plaintiff was successful in eliciting responses that the defendant was not present at the time of the inspection and the photographs annexed alongwith the email were not taken by him. According to the trailing mail, it was a mail forwarded by the wife of defendant no.1 to defendant no.1 which was further forwarded to the plaintiff. Considering that defendant no. 1's knowledge of the damages noticed in joint inspection dated 11.04.2014 is based upon information provided to him by his representative, his evidence to that effect would be hearsay. It has been admitted by defendant no.1 (DW1) that the pictures which are part of Ex. DW1/4 had been taken by Sh. Anurag Bansal (DW2). Sh. Anurag Bansal (DW2) entered the witness box however, he did not depose to prove the photographs and as such photographs which are part of Ex. DW1/4 remained unproved and therefore, inadmissible in evidence. Yet, it has been pointed out by Ld. Counsel for the defendant that the plaintiff himself has admitted to be carrying out repair works, it is pertinent to note that such repair works are qualified by the statement of the plaintiff (PW1) to be normal wear and tear but only to avoid unnecessary conflict, he opted to get them rectified. This assertion remained uncontroverted.
14.4.3 Also, it is worth observing that even though defendant no.1 (DW1) relied upon EX. DW1/13 to Ex. DW1/25 as invoices evidencing expenses incurred in major repairs, CS No. 57616/16 Pages 25 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors objections were taken to proof of the same as they are photocopies. It was submitted on behalf of the defendants that the originals would be produced by the witnesses. Pursuant thereto, the defendant examined Sh. Rahul Kumar (DW3) from R.P. Contractor to prove bill (Mark DW1/22). However, the invoice produced by him was yet again a photocopy and not tendered in evidence by its author and he could not verify bill /cash memo (mark DW1/22). Sh. Mahesh Pai (DW4) produced the statement of account of defendant no.1 for the period 01.06.2014 to 31.08.2014 as DW4/A (colly). Vide it, in-corroboration of Mark DW1/13, the defendants sought to prove payment having been made for it. However, the same is not sufficient to prove that work was executed for the plaintiff in the suit premises, itself. Sh. Kiran Kumar (DW6) appeared to prove invoice dated 31.5.2014 as Ex. DW6/1 according to which Rs.22,500/- had been raised upon defendant no.1 for service of 18 blinds. It is pertinent to observe that the invoice does not mention where the work was executed and during cross examination, Ld. Counsel for the plaintiff has been able to controvert the independence of the witness and therefore, even testimony of Sh. Rahul Joshi (DW5) tendered statement of account for the period 30.5.14 to 01.07.2014 of defendant no.1 maintained with Kotak Mahindra Bank to show that Royal Touch was paid Rs.22,500/- is not of much relevance.
14.4.4 Therefore, on preponderance of probabilities, it can CS No. 57616/16 Pages 26 of 29
Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors be safely concluded that defendants have not been able to establish expenses towards major repair works.
14.5 Towards loss of rent of one month tantamounting to Rs.5,16,855/- alongwith maintenance of Rs.14,027/- as the defendants could not utilize the suit property before renting it out further.
14.5.1 The onus was upon the defendant to establish the same. However, in view of the discussion on inability of the defendants to prove major repair works having been carried out in the suit premises for damages caused by the plaintiff, the issue has to be decided against the defendants.
14.6 Towards electricity dues of Rs.7161/-
14.6.1 The onus was upon the defendants to prove the same. However, no electricity bill and receipt of payment have been adduced in evidence to corroborate the same and hence the defendants have failed to prove the entitlement to it.
14.7 Towards missing items for Rs.16,000/-
14.7.1 During the course of arguments, Ld. Counsel for the plaintiff submitted that in view of the Ld. Local Commissioner's CS No. 57616/16 Pages 27 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors report, since, three fire extinguishers were found missing, it is ready to pay for the same.
14.7.2 As per the Ld. Local Commissioner's report, besides 03 fire extinguishers no other article was missing and the cost of same is awarded to the defendant.
14.8 In view of the above discussions, issue no.(i) is decided in favour of the plaintiff.
14.8.1 Issue no. (iii) is decided against the defendants.
14.8.2 Issue no. (iv), except for the amount of Rs. 3000/- towards missing items i.e. 3 fire extinguishers, is decided the against the defendants.
(ii) If issue no.1 is proved in affirmative, whether plaintiff is entitled for any interest thereon, if so at what rate and for what period? OPP
15. The onus to prove the issue was upon the plaintiff. The plaintiff has claimed interest @24% per annum from 15.04.2014 till realization in view of Clause 7 of the lease agreement (Ex. Pw-1/2). PW-1 also affirmed the same in affidavit Ex. PW-1/A. However, no cross-examination on aforesaid claim @24% has CS No. 57616/16 Pages 28 of 29 Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors been conducted. Thus, the agreement between the parties of interest @24% per annum remains un-controverted. Be that as it may, interest is governed by Section 34 of the CPC. However, in the considered view of this Court, interest @24% is exorbitant and no prevailing practice has been brought to the notice of the Court for endorsing the same. In the view of the Court, interest of justice would suffice, if interest is adjudged as simple interest @9% per annum from 15.04.2014 till realization.
RELIEF
16. In view of the findings and observations herein above, the suit of the plaintiff is decreed for sum of Rs.11,19,789/- (Rs.11,22,789/- - Rs.3000/-) alongwith 9% simple interest per annum from 15.04.2014 till realization. Cost of suit is also awarded to the plaintiff.
17. Decree Sheet be accordingly, prepared.
18. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat)
on 18.04.2024 District Judge-01,
New Delhi District,
Patiala House Courts,
New Delhi
CS No. 57616/16 Pages 29 of 29
Bharat Rao (deceased) Through his Legal Representative Vs. Amit Bhalla & ors