Delhi District Court
Smriti Sethi vs Neelam Nigam And Anothers on 13 January, 2025
IN THE COURT OF SH. KISHOR KUMAR,
DISTRICT JUDGE-04, NORTH DISTRICT : ROHINI COURTS
: DELHI
CS DJ No. 169/20
CNR No. DLNT010041602020
In the matter of :-
Smriti Sethi
W/o Shri Neeraj Kalra
R/o E-4/2, Second Floor,
Model Town-II, Delhi-110009. ......Plaintiff
Versus
1.Neelam Nigam W/o Ravi Nigam R/o A-7, Second Floor, Ashok Vihar, Phase-II, Delhi-110052.
Mob. No. 9354156408
2. Shri Rutesh Nigam S/o Shri Ravi Nigam R/o A-7, Second Floor Ashok Vihar, Phase-II, Delhi-110052.
Mob. No. 8384059506 Also at Second Floor, Property No. 4-A, Block-D1 Known as D-1/4A, Model Town, Delhi-110009. .....Defendants Date of Institution : 30.06.2020 Date of Final Arguments Heard : 20.12.2024 Date of pronouncement of judgment : 13.01.2025 Final Order : Suit Decreed CS No. 169/20 Smriti Sethi Vs. Neelam Nigam And Anothers. Page No.1 of 6 SUIT FOR POSSESSION, PERMANENT INJUNCTION AND MANDATORY INJUNCTION AND RECOVERY OF ARREARS OF RENT AND MESNE PROFIT.
EX-PARTE JUDGMENT
1. The plaintiff has filed the present suit for possession, permanent and mandatory injunction and for recovery of arrears of rent with mesne profits, against the defendant.
2. Briefly stating the facts of the case are that the plaintiff is the owner of 2nd Floor of property no. 4A, Block-D1 known as D1/4A, Model Town, Delhi-09 (hereinafter be referred to as the 'suit property'), measuring 401.2 sq. Yards along with 25% share in the state parking fitted with separate electric and water meters.
3. The plaintiff and defendants entered into Lease Deed dated 10.06.2019, whereby the suit property was leased to the defendants on a monthly rent of Rs. 56,000/- per month excluding water and electricity charges for period of 1 st year and Rs. 61,600/- per month for the 2nd year.
4. The defendants had undertaken vide the Lease Deed dated 10.06.2019 to pay the rent on time but he failed to do so. Thereon, defendant no. 1 issued cheque dated 05.12.2019 for sum of Rs. 56,000/-. Defendant no. 2 also issued cheque dated 05.12.2019 for sum of Rs. 56,000/- to clear their liability i.e. the rent. However, both these cheques on their presentation stood dishonoured with the remarks "Funds Insuffcient". It is further stated by the plaintiff that defendant no. 1 had also handed over cheque dated 11.10.2019 for Rs. 56,000/-. However, the said cheque also dishonoured. Thereafter, the plaintiff had requested CS No. 169/20 Smriti Sethi Vs. Neelam Nigam And Anothers. Page No.2 of 6 the defendants to pay the rent but to no effect. As such, the plaintiff had to issue legal notice dated 28.01.2020 terminating the tenancy of the defendants subsequent to two consecutive defaults. Despite service of the legal notice, the defendants have neither handed over the possession of the suit property nor have cleared the arrears of rent. Hence, the present suit.
5. Summons for settlement of issues were issued to the defendants but they did not appear and ultimately, the defendants have been proceeded against ex-parte on dated 16.01.2021.
6. In ex-parte plaintiff evidence, the plaintiff has examined herself as PW1 by way of her affidavit in evidence Ex. PW1/A. PW1 has relied on the following documents:-
i The copy of sale Ex.PW1/1 (OSR).
ii The site plan of the property Ex.P W1/2. iii The copy of registered lease deed dated 10.09.2019 Ex.P W1/3 (OSR).
iv The copy of cheque bearing no. 859392 dated 05.12.2019 for the sum of Rs.56,000/- is marked as Mark A. v The copy of cheque bearing no. 873208 dated 05.12.2019 for the sum of Rs.56,000/- is marked as Mark B. vi The copy of return memo dated 31.12.2019 is marked as Mark C. vii The copy of return memo dated 31.12.2019 is marked as Mark D. viii The copy of legal notice dated 28.01.2020 is marked as Mark E. ix The copy of postal receipts dated 30.01.2020 are marked as Mark F to Mark I. CS No. 169/20 Smriti Sethi Vs. Neelam Nigam And Anothers. Page No.3 of 6 x The copy of Trackon Courier receipts dated 29.01.2020 are marked as Mark J to M. xi The copy of tracking reports dated 01.02.2020 are marked as Mark P and Q. xii The copy of police complaint dated 14.06.2020 is marked as Mark N. xiii The copy of complaint case filed before Ld. MM, North, Rohini Court with complaint case No. 2112/2020 is attached herewith and marked as Mark R. xiv The copy of possession letter dated 19.02.2021 is exhibited as Ex. PW1/4 (OSR).
xv The copy of cheque bearing no. 859390 dated 11.10.2019 for the sum of Rs.56,000/- and return memo dated 15.10.2019 are marked as Mark O (Colly).
7. The plaintiff has also examined PW2 Sh. Ravi, JJA in the court of Sh. Himanshu Sehloth, Ld. JMFC-03, North Rohini Courts, Delhi, who had brought the summoned record i.e. complaint Case titled "Smriti Sethi Vs. Neelam Nigam". The said case has been filed by the plaintiff against the defendants under Section 138 of the Negotiable Instruments Act. PW2 has proved the cheques, cheque returning memo, copy of complaint etc. And exhibited them as Ex. PW2/A to Ex. PW2/E.
8. I have heard Ld. Counsel for the plaintiff and have carefully gone through the record.
9. In C.S. Rowjee v. State of Andhra Pradesh, 1964 AIR 962 it was held by the Apex Court that facts in the affidavit uncontroverted by opposite party can be deemed as admitted to rely. Further, in Sushma Berlia & Ors. vs Kamal Kumar & Ors., 2014 SCC CS No. 169/20 Smriti Sethi Vs. Neelam Nigam And Anothers. Page No.4 of 6 OnLine Del, it was observed by Hon'ble Delhi High Court that Testimony of PW-1 has remained unchallenged and unrebutted. Adverse inference is to be drawn against the defendants for not contesting the suit on adjourned date and remaining ex- parte. There are no sound reasons to disbelieve the positive uncontroverted testimony of PW-1.
10. As the defendants remained ex-parte, the testimony of plaintiff remained unrebutted. As such this court has no reason to not believe the case of the plaintiff. Since the defendants did not appear in the present case and chose to remain ex parte, the evidence and documents produced on behalf of the plaintiff remained unchallenged. Consequently, the plaintiff is held entitled for the reliefs prayed for.
11. In view of the above, the present suit is hereby decreed and a decree of possession in respect of the property bearing no. 2 nd Floor of property no. 4A, Block-D1 known as D1/4A, Model Town, Delhi-09 is hereby passed in favour of the plaintiff and against the defendants.
12. A further decree of recovery of arrears of rent amounting to Rs. 2,24,000/- is also passed in favour of the plaintiff and against the defendants.
13. A further decree of mesne profits to the tune of Rs. 4,53,000/- is also passed in in favour of the plaintiff till June, 2020 with further decree of mesne profits @ Rs. 1,000/- per day till the actual physical and vacant possession of the suit property is handed over to the plaintiff.
14. Another decree of mandatory injunction is also passed in favour of the plaintiff and against the defendants and the defendants are CS No. 169/20 Smriti Sethi Vs. Neelam Nigam And Anothers. Page No.5 of 6 directed to clear all the electricity, water and maintenance of lift charges, accrueable till the date of handing over the possession of the suit property to the plaintiff.
15. A futher decree of permanent injunction is also passed in favour of the plaintiff and against the defendants, whereby the defenants, their attornyes, assignees, representatives etc. or any other person through them in any capacity are hereby permanently restrained from alienating, transferring, letting out, assigning, parting with the possession or creating any third party interest in favour of any person in respect of the suti property till the actual physical possession of the same is taken over by the plaintiff.
16. The plaintiff is also awarded cost of the suit.
17. Decree sheet be prepared accordingly.
18. File be consigned to the record room.
Digitally signed
KISHOR by KISHOR
KUMAR
Announced in open KUMAR Date: 2025.01.13
Court on 13.01.2025 16:50:01 +0530
(Kishor Kumar)
DJ-04, North, Rohini Courts,
Delhi/13.01.2025
CS No. 169/20 Smriti Sethi Vs. Neelam Nigam And Anothers. Page No.6 of 6