Delhi District Court
Jai Healthcare Pvt Ltd vs Renu Kalra on 2 December, 2023
IN THE COURT OF Dr. KAMINI LAU: DISTRICT JUDGE
(COMMERCIAL COURT)02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
CS (COMM.) No. 265/2020 (New No. 917/2023)
CNR No. DLCT010032432020
Jai Healthcare Pvt. Ltd.
A Company Incorporated under Companies Act, 2013
Registered Office at GD101, Vishakha Enclave
Pitampura, Delhi110034.
......Plaintiff
Versus
Ms. Renu Kalra
Proprietor of Students Inn Services
W/o Sh. Sunil Kalra
19/1A, Shakti Nagar, Delhi110007
Email: [email protected]
......Defendant
Date of filing of suit: 07.03.2020
Judgment Reserved on: 20.11.2023
Date of Judgment: 02.12.2023
TABLE OF CONTENTS
Sr. No. Title Page No.
1 Brief Facts/ Case of the Plaintiff 2-8
2 Defendant is Exparte 8
3 Evidence & List of Documents 9 - 13
4 Findings & Observations 13 - 27
5 Conclusion/ Relief 27 - 29
Present: Ms. Kirti Advocate for the plaintiff.
Defendant is exparte.
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023)
Judgment dated 02.12.2023 Page No. 1 of 29
JUDGMENT:
(1) This is a Civil Suit filed by plaintiff Jai Healthcare Pvt. Ltd. against the defendant Ms. Renu Kalra seeking Recovery for Possession, Rent & Mesne Profit, etc. and Permanent and Mandatory Injunction.
BRIEF FACTS:
Case of the plaintiff:
(2) The plaintiff company is incorporated under the provisions of The Companies Act, 2013. The case of the plaintiff is as under: ➢ That the defendant who is the proprietor of Students Inn Services inducted tenant in respect of 18 rooms situated at Second & Third Floor without terrace rights and open portion in property bearing no.
19/1A, Shakti Nagar, Delhi110007 with fixtures, fittings, furniture, etc. vide registered Lease Deed dated 24.08.2017 at the rate of Rs.3,00,000/ per month besides electricity, water and Statutory Taxes and other charges, for residential purposes for a limited period of 9 years and the tenancy commenced w.e.f. 28.07.2017.
➢ That besides terms as agreed and recorded in the registered Lease Deed, it was also agreed and recorded that after every interval of one year rent Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 2 of 29 will be increased @ 8% per month and in case of delay in payment of rent, same shall be payable with late charges at the rate of 1% per day; payment monthly rent agreed to be payable in advance by or before 28th of each English Calender month, etc. ➢ That the Clause 5 (a) of the Lease Deed is reproduced herein below: ➢ 5 Lessee's Covenants: The Lessee hereby covenants as follows :
(a) That it shall pay the fixed rent as Rs.3,00,000/ per month, aforementioned on the due date. The Lessee agrees to pay daily 1% for late rent. If delay continues for 2 months, the lease deed will be terminated & payment of lock in period will be done by the Lessee.
(b) XXXXX
(c) The lessee shall deliver vacant possession of the property to the Lessee at the expiration of the period fixed in the lease or on the earlier determination of the tenancy in case of the termination of the lease or otherwise. The lessee, however, shall be liable to pay damages at the rate of Rs.40,000/ per day till the Lessor obtains such possession from the Lessee, or in the event of the legal proceedings therefore, through court & at all the time due rent/ damages will keep on continuing.
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 3 of 29 ➢ That the mutually agreed and recorded in Lease Deed the rate of rent for the first year was Rs.3,00,000/ per month (Clause 1) besides electricity and water charges [Clause 5 (m)], and annually increase in rent @ 8% (Clause 9) thus for the second year rent was Rs.3,24,000/, and for third year rent is Rs.3,49,920/ per month, since increased as per stipulation, agreed and recorded in the lease deed.
➢ That since very beginning the defendant had been a chronic defaulter in payment of rent, never paid in time despite reminders, moreover, time to time paid on account, lastly paid Rs.36,000/ on 23.01.2020, Rs.36,000/ thus till 29.02.2020 in total paid Rs.73,97,120/ out of due rent Rs.1,02,87,240/. ➢ That since, there is default in payment of rent, therefore, liable to pay penalty charges @1% per day, which is Rs.82,09,040/.
➢ That the defendant time to time orally, telephonically, emails, letters was reminded to pay rent, but defendant failed to pay rent.
➢ That the defendant has given cheque no. 000625 dated 08.07.2019 drawn on ICICI Bank A92, Kamla Nagar Branch Delhi of Rs.11 lacs towards part liability/debt of rent, same also returned back with advice memo dated 10.07.2019, again on Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 4 of 29 defendant's request was presented, but again returned back with bank advice memo dated 16.08.2019 with remarks "insufficient funds". ➢ That previously Legal Notice dated 13.08.2019 was sent to the defendant asking for payment of arrears and upon service of the said notice, the defendant requests for more time to make the payment otherwise would vacate the premises, and hence no legal actions were initiated.
➢ That on 28.08.2019, the defendant has given a declaration in writing for clearance of entire arrears but failed to honour the said declaration. ➢ That the plaintiff finally vide Legal Notice dated 28.01.2020 called upon the defendant to pay the entire arrears of rent of Rs.26,48,320/, interest, penalty, etc., simultaneously determine tenancy and asked to vacation of premises, which was sent by speed post and email, same was dully served, neither the reply nor the rent, etc., received. ➢ That there is arrear of electricity charges of Rs.2,53,510/ for the connection, electricity supply consumed by the defendant in the premises, resultantly electricity connection is disconnected by the Tata Power Delhi Distribution Ltd. On 05.11.2019, and illegally being used from adjoining premises no. 19/2A, Shakti Nagar Delhi, which illegality was brought to the notice of TPDDL and Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 5 of 29 thereafter, the wire connecting the electricity from 19/2A was taken way by TPDDL officials.
➢ That presently sometimes again connected, additionally generator to abstract electricity is used by the defendant.
➢ The Ground Floor & First Floor of building is occupied by other tenants; the basement is in possession of plaintiff, however, due to default of defendant, their connection can be disconnected by TPDDL, for that defendant shall be liable. ➢ That there is arrear of water charges of Rs.24,596/ and DJB issue disconnection notice, and water supply is likely to be disconnected. ➢ That the tenancy of the defendant is determined by Legal Notice dated 28.01.2020, duly served upon the defendant ➢ That the tenancy of the defendant is not protected under the provisions of Delhi Rent Control Act, 1958, since the rate of rent is higher side than Rs.3,500/ per month in accordance with the provisions of Section 3 (c) of Delhi Rent Control Act, 1958.
➢ That the intimation to police vide letter dated 10.02.2020 and previously vide letter dated 13.08.2019 was given, intimating the default of defendant, further conveyed to the students, relating to eviction notice.
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 6 of 29 ➢ That on 10.02.2020 threatened to sublet the premises to such people the plaintiff will not be able to get vacate, and there is genuine apprehension in the mind of its official that defendant if not restrained may achieve her illegal design. ➢ That on 17.02.2020 defendant in writing assured the plaintiff to pay the entire arrears of rent. The promise was made to pay by the end of February, 2020 and approximately payment was admitted payable at Rs.52,00,000/.
➢ That the defendant failed to pay the rent, moreover, committed some illegality, accordingly a complaint dated 25.02.2020 was made at police station Roop Nagar.
➢ That on 29.02.2020 the plaintiff received the summons of C. S. No. 186/2020 in respect of suit filed by the defendant filed as Renu Kalra Vs. Jai Healthcare Pvt. Ltd. for 12.03.2020 in respect of suit property.
➢ That against the defendant following liability exists:
1 Arrears of rent till 28.02.2020 Rs.28,90,240/ 2 Penalty charges @ 1% per day Rs.73,81,770/ 3 Damages @ Rs.40,000/ per day Rs.3,20,000/ w.e.f. 28.02.2020 to 06.03.2020 4 Electricity Charges Rs.2,53,510/ 5 Water Charges Rs.24,596/ Total Rs.1,08,70,116/ Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 7 of 29 ➢ The defendant further promised to either vacate the premise or pay the arrears of rent by 29.02.2020, but failed. Thus claims against defendant for a total recovery of Rs.1,08,70,116/.
➢ That cause of action to file the present suit arose on each and every default of payment of rent, demand, dishonor of cheque, sending legal notice dated 13.08.2019, on 28.08.2019 on giving declaration, sending legal notice dated 28.01.2020, further declaration of the defendant to pay the arrears dated 17.02.2020, 25.02.2020 and 29.02.2020. ➢ That the suit property is located in Shakti Nagar, Delhi07 within the Central District i.e. within territorial jurisdiction of this court.
Defendant is Exparte:
(3) Pursuant to the filing of the suit, the defendant put in her appearance through her counsel on 12.03.2020 and thereafter, case was listed for filing of Written Statement. However, no written statement was filed on behalf of the defendant. Time was also sought by the parties to explore the possibility of settlement, but no settlement was effected between the parties. Thereafter, the defendant stopped appearing and was proceeded exparte vide order dated 11.07.2022 and the case was listed for plaintiff's exparte evidence.
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 8 of 29 EVIDENCE & LIST OF DOCUMENTS:
(4) In order to prove its case, the plaintiff has examined its Manager namely Rakesh Gupta as its sole witness as PW1.
Before coming to the testimony of plaintiff's witness, the documents relied upon by him are put in a tabulated form as under: List of documents:
Sr. Exhibit No. Details of document relied upon by PW1 Rakesh No. Gupta 1 Ex.PW1/1 Board Resolution dated 25.02.2020. 2 Ex.PW1/2 (OSR) Certificate of Incorporation of Plaintiff Company photocopy 3 Ex.PW1/3 Site Plan 4 Ex.PW1/4 (12 Photocopy of Lease Deed dated 24.08.2017 pages) (OSR) 5 Ex.PW1/5 (3 pages) Statement of Account/ Ledger Account 6 Ex.PW1/6 (Colly., 9 Letters/ mails dated 08.08.2019, 06.08.2019, pages). 03.08.2019, 30.07.2019, 13.07.2019, 13.06.2019, 13.06.2019, 18.04.2019 and 03.04.2019 7 Ex.PW1/6A Certificate U/s 65 of Indian Evidence Act 8 Ex.PW1/7 (OSR). Cheque with Bank Memos of Dishonor.
9 Ex.PW1/8 (Colly, 3 Legal Notice dated 13.08.2019 along with postal
pages). receipt.
10 MarkA Photocopy of writings dated 28.08.2019.
11 Ex.PW1/10 (Colly, Legal Notice dated 28.01.2020 along with postal
4 pages) receipt and POD.
12 Ex.PW1/11 Email dated 28.01.2020.
13 Mark B and Mark Photocopy of Complaints dated 13.08.2019 and
C 10.02.2020 given to SHO PS Roop Nagar, Delhi.
14 MarkD Photocopy of writing dated 17.02.2020.
15 Mark E Photocopy of Complaint dated 25.02.2020 given to
SHO PS Roop Nagar, Delhi.
16 Mark F Photocopy of Electricity Bill.
17 Mark G Photocopy of Water Bill.
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 9 of 29
18 Ex.PW1/17A Photocopy of Payment receipts with regard to the water bill 19 Mark H Photocopy of cheque dated 04.07.2020 20 Ex.PW1/17B (Colly Bank statement dated from 01.07.2020 to 31.07.2020 3 pages). as payment proof.
21 Ex.PW1/17C Receipt of payment with regard to the electricity bill. 22 MarkI Photocopy of cheque dated 17.07.2020 23 Ex.PW1/18 (4 pages Photocopy of Possession letter dated 04.06.2020.
(OSR).
24 Ex.PW1/19, Affidavits of employees of defendant namely of Lalan
Ex.PW1/20 and Kumar, Shatrughun Kumar and Rahul Kumar dated
Ex.PW1/21 (OSR) 04.06.2020.
25 Ex.PW1/22 (OSR). Complaint/ intimation given to police on 04.06.2020
by the defendant's employee.
26 Ex.PW1/23 (2 Complaint/ intimation given to police on 12.06.2020
pages) (OSR). by the plaintiff's employee.
27 Ex.PW1/24 (7 Possession letters/ writings acknowledging handing
pages) (OSR). over the possession of premises/ rooms/ giving keys/
collecting of stuffs of students.
28 MarkJ Photocopy of outstanding details filed on 09.07.2020
in respect of suit premises (19/2A).
29 MarkK Photocopy of Details of the cases pending against the
defendant.
31 MarkL Photocopy of PAN Card of the defendant
32 MarkN Photocopy of Aadhar Card of the defendant
33 Ex.PW1/27 (3 Statement of account showing the arrears of rent as on
pages). the date of vacation of the premises (04.06.2020)
34 MarkN Photocopy of Electricity bill dated 11.03.2020.
35 MarkO Photocopy of Water bill dated 16.06.2020.
36 Ex.PW1/30. Statement of account as on 04.06.2020 containing all the dues/ arrears.
(5) Now coming to the testimony of the witness Rakesh Gupta (PW1), which is put in a tabulated form as under:
Sr. Details of the Deposition No. witness 1 Rakesh PW1 Rakesh Gupta is the Manager of plaintiff
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 10 of 29 Gupta (PW1) company who in his examinationinchief by way of affidavit Ex.PW1/A has corroborated what has been earlier stated in the main plaint in toto. He has placed his reliance on the following documents:
1. Board Resolution dated 25.02.2020 which is Ex.PW1/1.
2. Certificate of Incorporation of Plaintiff Company photocopy of which is Ex.PW1/2 (Original seen and returned).
3. Site Plan which is Ex.PW1/3.
4. Lease Deed dated 24.08.2017 photocopy of which is Ex.PW1/4(12 pages) (OSR).
5. Statement of Account which is Ex.PW1/5 (3 pages).
6. Letters/ mails dated 08.08.2019, 06.08.2019, 03.08.2019, 30.07.2019, 13.07.2019, 13.06.2019, 13.06.2019, 18.04.2019 and 03.04.2019 which are Ex.PW1/6 (Colly., 9 pages).
7. Certificate U/s 65 of Indian Evidence Act which is Ex.PW1/6A.
8. Cheque with Bank Memos of Dishonor which are Ex.PW1/7 (original seen and returned).
9. Legal Notice dated 13.08.2019 along with postal receipt which are Ex.PW1/8 (colly, 3 pages).
10. The writings dated 28.08.2019 which is MarkA (mentioned as Ex.PW1/9 in the affidavit and de exhibited being photocopy only).
11. Legal Notice dated 28.01.2020 along with postal receipt and POD which are Ex.PW1/10 (colly, 4 pages).
12. Email dated 28.01.2020 which is Ex.PW1/11.
13. Complaints dated 13.08.2019 and 10.02.2020 given to SHO PS Roop Nagar, Delhi which are Mark B and Mark C respectively (mentioned as Ex.PW1/12 and Ex.PW1/13 in the affidavit and deexhibited being photocopy only).
14. The writing dated 17.02.2020 is MarkD (mentioned as Ex.PW1/14 in the affidavit and de exhibited being photocopy only).
15. Complaint dated 25.02.2020 given to SHO PS Roop Nagar, Delhi which is Mark E (mentioned as Ex.PW1/15 in the affidavit and is deexhibited being photocopy only).
16. Electricity Bill which is Mark F (mentioned as Ex.PW1/16 in the affidavit and is deexhibited being photocopy).
17. Water Bill which is Mark G (mentioned as Ex.PW1/17 in the affidavit and deexhibited being photocopy).
18. Payment receipts with regard to the water bill Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 11 of 29 which is Ex.PW1/17A along with photocopy of cheque dated 04.07.2020 which is Mark H.
19. Bank statement dated from 01.07.2020 to 31.07.2020 as payment proof which is Ex.PW1/17B (colly 3 pages).
20. Receipt of payment with regard to the electricity bill is Ex.PW1/17C along with photocopy of cheque dated 17.07.2020 which is MarkI.
21. Possession letter dated 04.06.2020 photocopy of which is Ex.PW1/18 (4 pages (OSR).
22. Affidavits of employees of defendant namely of Lalan Kumar, Shatrughun Kumar and Rahul Kumar dated 04.06.2020 photocopies of which affidavits are Ex.PW1/19, Ex.PW1/20 and Ex.PW1/21 respectively (all original seen and returned),
23. Complaint/ intimation given to police on 04.06.2020 by the defendant's employee photocopy of which is Ex.PW1/22(OSR).
24. Complaint/ intimation given to police on 12.06.2020 by the plaintiff's employee photocopy of which is Ex.PW1/23 (2 pages) (OSR).
25. Possession letters/ writings acknowledging handing over the possession of premises/ rooms/ giving keys/ collecting of stuffs of students are Ex.PW1/24 (7 pages) (all OSR).
26. Outstanding details filed on 09.07.2020 in respect of suit premises (19/2A) is MarkJ (mentioned as Ex.PW1/25 in the affidavit and deexhibited being photocopy).
27. Details of the cases pending against the defendant which is MarkK (mentioned as Ex.PW1/26 in the affidavit and deexhibited being photocopy).
28. Photocopy of PAN Card of the defendant which is MarkL (marked as Mark A in the affidavit).
29. Photocopy of Aadhar Card of the defendant which is MarkM (mentioned as Mark B in the affidavit).
30. Statement of account showing the arrears of rent as on the date of vacation of the premises (04.06.2020) which is Ex.PW1/27 (3 pages).
31. Electricity bill dated 11.03.2020 which is MarkN (mentioned as Ex.PW1/28 in the affidavit and de exhibited being photocopy).
32. Water bill dated 16.06.2020 which is MarkO (mentioned as Ex.PW1/29 in the affidavit and same deexhibited being photocopy).
33. Statement of account as on 04.06.2020 containing all the dues/ arrears which is Ex.PW1/30.
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 12 of 29 The crossexamination of the witness is Nil since the defendant was exparte vide order dated 11.07.2022.
However, on Court question relating to specified value, the witness has explained that as on 04.06.2020 a sum of Rs.36,69,094/ was due towards arrears of rent; Rs.2,83,140/ was due towards electricity charges; Rs.71,237/ was due towards Water Bills and Rs.1,44,72,074/ is due towards Penalty and Damages.
FINDINGS AND OBSERVATIONS:
(6) I have heard the arguments advanced before me by the Ld. Counsel for the plaintiff and considered the written memorandum of arguments filed on behalf of the plaintiff. I may observe that during course of final arguments, Ld. Counsel for plaintiff has informed that during the pendency of the suit some talks between the parties through their representative took place pursuant to which the defendant agreed to hand over the possession of suit property to the plaintiff and accordingly the possession of the suit property was handed over by the defendant to the plaintiff on 04.06.2020 by executing the possession documents. According to plaintiff now limited prayer remains in respect of the recovery of arrears of rent (to the tune of Rs.36,69,094/ accrued upto 04.06.2020), penalty & damages (to the tune of Rs.1,44,72,074/ up to 04.06.2020), electricity charges (to the tune of Rs.2,83,140/) & water / sewage charges (to the tune of Rs.71,237/) for the use during the occupation by defendant in respect of the suit Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 13 of 29 property/ leased property and in this regard the plaintiff is placing its reliance upon statement of account Ex.PW1/27, electricity bill dated 11.03.2020 Mark'N', water bill dated 16.06.2020 Mark'O' and the statement of account as on 04.06.2020 Ex.PW1/30.
(7) At the very Outset I may observe that the provisions of Section 2 (1) (c) of Commercial Courts Act, 2015 are very clear which reads as under:
(c) "commercial dispute" means a dispute arising out of
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreements for sale of goods or provision of services;
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 14 of 29 (xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum;
(xx) insurance and reinsurance;
(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
(8) Here I may note that though initially this suit was filed before the Court of regular ADJ on the basis of the agreement showing that the property was rent out for residential purposes but vide order dated 30.09.2020, the Ld. ADJ observed that the property was in fact being used for commercial purposes and therefore, the suit was transferred to the Commercial Court and the issue has been set at rest and not disputed nor challenged and hence the present suit has been treated as "Commercial Suit" in terms of provisions of Section 2 (1) (c) (vii) of Commercial Courts Act, 2015. The relevant portion of order dated 30.09.2023 is reproduced as under: "......... As per averments made in the plaint, the suit property was let out by the plaintiff to the defendant, who was running business under the name & style of M/s Students Inn Services, whereby running a hostel facility for the students and professionals thereby providing accommodation, food, beverages, laundry, entertainment etc and other allied services in the suit property........"
(9) Further, the provisions of Section 2 (1) (c) of Commercial Courts Act as above are very much clear and covers all agreements relating to immovable property used exclusively in trade or commerce and hence the facts as alleged Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 15 of 29 in the plaint comes under the commercial dispute. (10) Secondly, with regard to the Pecuniary Jurisdiction to adjudicate the matter which is in dispute, reliance is placed upon the provisions of Section 3 of Commercial Courts Act, 2015 which provides that:
Section 3: Constitution of Commercial Courts:
3. (1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary.] 3[(1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.] (11) Admittedly, the Commercial Court Act was amended on 03.05.2018 and by virtue of the amendment and by virtue of the notification, the pecuniary value of the Commercial Courts Act shall not be less than Rs.3,00,000/. In the present case, the claim amount which shown in the plaint is of Rs.1,08,70,116/ (including electricity and water charges with interest) and Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 16 of 29 hence, this court has the pecuniary jurisdiction to adjudicate upon the issues in dispute.
(12) Thirdly, this Court has the Territorial Jurisdiction to try the present suit as the defendant is resident of Shakti Nagar, Delhi110007 and the suit property is also situated at Shakti Nagar, Delhi110007, which falls within the jurisdiction of this Court (i.e. Central District).
(13) Fourthly, coming to the aspect of Limitation, it is evident from the record that the Registered Lease Deed (Ex.PW1/4) between the parties was executed on 24.08.2017 and the suit having been filed on 07.03.2020 is well within the period of limitation.
(14) Fifthly, coming to the entitlement of the plaintiff to the recovery qua arrears of rent along with damages, penalty, mesne profit upto 04.06.2020 (i.e. date of handing over possession of suit premises) with pendentelite and future interest, the plaintiff firm has examined its Manager/ Authorized Representative namely Sh. Rakesh Gupta (PW1) who in support of his oral evidence produced the various documents including photocopy of registered Lease Deed dated 24.08.2017 [Ex.PW1/4 (12 pages) (OSR)]; Statement of Account (ledger account) [Ex.PW1/5 (3 pages)]; Letters/ mails dated 08.08.2019, 06.08.2019, 03.08.2019, 30.07.2019, 13.07.2019, 13.06.2019, 13.06.2019, 18.04.2019 and 03.04.2019 sent by plaintiff to defendant asking for payment of arrears [Ex.PW1/6 (Colly., 9 pages)]; Certificate under Section 65 of Indian Evidence Act Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 17 of 29 (Ex.PW1/6A); Cheque along with Bank Memos of Dishonour [Ex.PW1/7 (OSR)]; Legal Notice dated 13.08.2019 along with postal receipt [Ex.PW1/8 (colly, 3 pages)]; request of defendant assuring to make the payment of arrears dated 28.08.2019 [MarkA], Legal Notice dated 28.01.2020 along with postal receipt and POD [Ex.PW1/10 (colly, 4 pages)]; Email dated 28.01.2020 thereby sending the copy of Legal Notice to defendant (Ex.PW1/11); Complaints made by the plaintiff to the local police against the defendant dated 13.08.2019 and 10.02.2020 (Mark B and Mark C); request of defendant assuring to make the payment of arrears dated 17.02.2020 (MarkD); Complaint made by plaintiff to the local police against the defendant dated 25.02.2020 (Mark E); Electricity Bill dated 25.02.2020 for sum of Rs.2,53,510/ in respect of House No. 1A, 1st Floor, BLK19, Shakti Nagar, Delhi (CA No. 60016140356) (Mark F), Water Bill dated 22.02.2020 for sum of Rs.6,1491/ (Mark G); Payment receipts with regard to the water bill (Ex.PW1/17A); photocopy of cheque dated 04.07.2020 (Mark H); Bank statement dated from 01.07.2020 to
31.07.2020 as payment proof [Ex.PW1/17B (colly 3 pages)]; Receipt of payment with regard to the electricity bill (Ex.PW1/17C); along with photocopy of cheque dated 17.07.2020 (MarkI); photocopy of possession letter dated 04.06.2020 [Ex.PW1/18 (4 pages (OSR)]; Photocopies of affidavits of employees of defendant namely of Lalan Kumar; Shatrughun Kumar and Rahul Kumar dated 04.06.2020 Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 18 of 29 [Ex.PW1/19, Ex.PW1/20 and Ex.PW1/21 (OSR)]; photocopy of complaint/ intimation given to police on 04.06.2020 by the defendant's employee [Ex.PW1/22 (OSR)]; photocopy of complaint/ intimation given to police on 12.06.2020 by the plaintiff's employee [Ex.PW1/23 (2 pages) (OSR)]; Possession letters/ writings acknowledging handing over the possession of premises/ rooms/ giving keys/ collecting of stuffs of students [Ex.PW1/24 (7 pages) (OSR)]; Outstanding details filed on 09.07.2020 in respect of suit premises (19/2A) (MarkJ); Statement of account showing the arrears of rent as on the date of vacation of the premises (i.e. 04.06.2020) [Ex.PW1/27 (3 pages)], Electricity bill dated 11.03.2020 (MarkN); Water bill dated 16.06.2020 (MarkO) and Statement of account as on 04.06.2020 containing all the dues/ arrears (Ex.PW1/30). I may note that there is no denial or rebuttal of these documents. (15) Sixthly, as per the Registered Lease Deed dated 24.08.2017 (Ex.PW1/4) suit premises bearing No. 19/1A, Nangia Park Chowk, Shakti Nagar, Delhi110007 was taken on rent by the defendant Smt. Renu Kalra (i.e. 18 rooms located at 2nd & 3rd floor without roof right and vacant land right) at monthly rent of Rs.3,00,000/ for a period of nine years i.e. w.e.f. 28.07.2017 to 27.07.2026 (Ref.: Para 2 Demise in Lease Deed). Further, the lessee had agreed to pay daily 1% for late payment of the rent and if delay continues for two months, the lease deed will be terminated & payment of lock in period will be done by the Lessee. It was further agreed between the Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 19 of 29 parties that the lessee shall be liable to pay damages at the rate of Rs.40,000/ per day till the Lessor obtains such possession from the Lessee, or in the event of the legal proceedings therefore, through court & at all the time due rent/ damages will keep on continuing. It was mutually agreed and recorded in Lease Deed that the rate of rent for the first year was Rs.3,00,000/ per month (Clause 1) besides electricity and water charges [Clause 5
(m)], and annually increase in rent @ 8% (Clause 9) thus for the second year rent was Rs.3,24,000/, and for third year rent is Rs.3,49,920/ per month, since increased as per stipulation, agreed and recorded in the lease deed. According to the plaintiff the defendant lastly paid Rs.36,000/ on 23.01.2020 and thus till 29.02.2020 in total paid Rs.73,97,120/ out of due rent Rs.1,02,87,240/ (outstanding Rs.28,90,240/). (16) Seventhly, the plaintiff has placed on record Electricity Bill dated 25.02.2020 for sum of Rs.2,53,510/ in respect of House No. 1A, 1st Floor, BLK19, Shakti Nagar, Delhi (CA No. 60016140356) (Mark F) along with payment receipts dated 17.07.2020 for sum of Rs.2,68,140/ vide cheque no. 063143 dated 17.07.2020 (Ex.PW1/17C). The plaintiff has also placed on record the Water Bill dated 22.02.2020 for sum of Rs.6,1491/ (Mark G), in respect of House No. 1A, 1st Floor, BLK19, Shakti Nagar, Delhi along with payment receipts dated 06.07.2020 for Rs.91,282/ (Ex.PW1/17A) vide cheque no. 026456 dated 04.07.2020 (Mark 'H') with regard to the water bill. The statement of account Ex.PW1/17B confirms the Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 20 of 29 payment of both electricity and water charges by the plaintiff which is liable to be recovered from the defendant. (17) Eighthly, the witness Raksh Gupta (PW1) has also proved the certificate under Section 65B of the Indian Evidence Act (Ex.PW1/6A) in respect of the electronic record i.e. Ledger Account, etc., which is admissible in evidence, corroborates his oral testimony and confirms the outstanding amount.
(18) Ninthly, it is evident from the record that the defendant had also filed a suit against the plaintiff bearing no. CS DJ No. 186/2020 titled "Renu Kalra Vs. Jai Health Care Pvt. Ltd." but the status of the said suit was not placed on record and hence confirmed from the official Website which reflects the said suit CS DJ No. 186/2020 under the title "Renu Kalra Vs. Jai Healthcare Pvt. Ltd." which was pending before the Ld. Predecessor of this Court, was dismissed in default for non appearance of the plaintiff Smt. Renu Kalra on 11.07.2023. (19) Tenthly, I may note that the entire testimony of the plaintiff's witness namely Rakesh Kumar (PW1) and the documents placed on record by the plaintiff, have gone unrebutted and uncontroverted since the defendant after vacating the property, has chosen to keep herself away from the present proceedings.
(20) In the light of the aforesaid, I hold that the documentary evidence on record duly corroborates and supports the oral testimony of the duly Authorized Representative of the Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 21 of 29 plaintiff which evidence has not been rebutted. The plaintiff has proved that the defendant who is the proprietor of Students Inn Services was inducted as tenant in respect of 18 rooms situated at Second & Third Floor without terrace rights and open portion in property bearing no. 19/1A, Shakti Nagar, Delhi 110007 vide registered Lease Deed dated 24.08.2017 at the monthly rent of Rs.3,00,000/ per month besides Electricity, Water and Statutory Taxes and other charges, for residential purposes for a limited period of 9 years and the tenancy commenced w.e.f. 28.07.2017 with daily 1% for late payment of rent. The plaintiff has further proved that the defendant lastly paid Rs.36,000/ on 23.01.2020. The plaintiff has further proved that despite several telephonic reminders, emails, letters to the defendant to pay rent, the defendant failed to pay rent. The defendant has also proved that the defendant has given cheque no. 000625 dated 08.07.2019 drawn on ICICI Bank A92, Kamla Nagar Branch Delhi of Rs.11 lacs towards part liability/debt of rent but the said cheque was returned by the bank with returning memo dated 10.07.2019 and again on request of the defendant, the said cheque was presented which was again returned back with returning memo dated 16.08.2019 with remarks "insufficient funds". The plaintiff also proved having issued Legal Notice dated 13.08.2019 to the defendant asking for payment of arrears. The plaintiff further proved that on 28.08.2019, the defendant has given a declaration in writing for clearance of entire arrears but failed to honour the said Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 22 of 29 declaration and finally the plaintiff has sent the Legal Notice dated 28.01.2020 calling upon the defendant to pay the entire arrears of rent, interest, penalty, etc. (21) It has come on record that the defendant has given cheque no. 000625 dated 08.07.2019 drawn on ICICI Bank A 92, Kamla Nagar Branch Delhi of Rs.11,00,000/ towards part liability/debt of rent which was returned back with returning memo dated 10.07.2019 and was again presented to the banker on defendant's request and was again returned back with bank returning memo dated 16.08.2019 with remarks "insufficient funds" (cheque with returning memo is Ex.PW1/7). The issuance of said cheque by the defendant shows the admission of her liability towards the payment of arrears of rent. (22) Further, the service of Legal Notice dated 13.08.2019 upon the defendant has been duly proved by the plaintiff and has gone unrebutted [Legal Notice and postal receipt placed on record as Ex.PW1/8]. The relevant portion of said notice is produced as under: "....... 4. That since very beginning you are chronic defaulter in timely payment of rent, never paid in time despite reminders, moreover, paid on account, thus till date paid total amount of Rs.61,73,120/ towards rent and as on 28.07.2019 rent for the month w.e.f. 28.07.2019 to 27.08.2019 has also become due, therefore, till that date i.e. till 27.08.2019 total rent payable is Rs.78,37,920/, thus outstanding amount payable as on date is Rs.16,64,800/............."
(23) The service of the second Legal Notice dated 28.01.2020 upon the defendant has been also been proved by the Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 23 of 29 plaintiff which again has gone unrebutted [Legal Notice and postal receipt placed on record as Ex.PW1/10]. The relevant portion of said notice is produced as under: "....... 4. That since very beginning you are chronic defaulter in timely payment of rent, never paid in time despite reminders, moreover, till date on account partly paid total amount of Rs.52,98,000/ towards rent out of Rs.79,46,320/ till 28.01.2020, thus balance payable is Rs.26,48,320/. Since there is default in payment of rent, therefore, liable to pay penalty charges @ 1% per day, which is Rs.73,81,769/, thus total liability is Rs.1,00,30,089/.
5. That you have also failed to honour your declaration dated 28.08.2019 to vacate the premises if default in payment of rent is committed, admittedly, default in payment of rent is done, but premises is not vacated.
6. That you have given cheque of Rs.11 lakh towards part liability/debt of rent, same also returned back with advice recorded in the memo "Insufficient Funds". On your request again presented but returned unpaid ............."
(24) No reply to the aforesaid Legal Notices have been given by the defendant nor filed any Written Statement nor challenged averments by the plaintiff. The plaintiff as placed on record the alleged commitment letters written by defendant dated 28.08.2019 and 17.02.2020, which are only 'Mark' being photocopies and not proved in accordance with law. It is a settled law that service of notice having been admitted/ proved without reservation and that having not replied in that eventuality adverse inference should be drawn because she kept quite over the notice and did not send any reply. [Ref: Kalu Ram Vs. Sita Ram reported in 1980 RLR (Note) 44 and Metropolis Travels & Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 24 of 29 Resorts (I) Ltd. Vs. Shri Sumit Kalra & Anr. reported in 98 (2002) DLT 573].
(25) Further, I may note that the plaintiff has placed on record the receipt of payment made by the plaintiff towards the arrears of electricity charges for sum of Rs.2,83,140/ which is Ex.PW1/17C and the receipt of payment made by the plaintiff towards the arrears of water charges for sum of Rs.71,237/ which is Ex.PW1/17A, which has again gone unrebutted. (26) In so far as the various complaints given by the plaintiff to the local police against the defendant i.e. complaints dated 13.08.2019 (MarkB), 10.02.2020 (MarkC), 25,02,2020 (MarkE) are all photocopies and not proved in accordance with law except complaint dated 12.06.2020 which is Ex.PW1/23 (OSR).
(27) In so far as the relief of 'damages' is concerned, I may observe that damages constitute the compensation awarded to a contracting party for any injury or loss suffered by such party as a result of a breach by the counterparty. Such injury or loss may or may not always be capable of being quantified and it varies with the facts and circumstances of each case. (28) It is a settled law that the party claiming damages, must meet the three essential ingredients as under:
a). there must be a breach of the contract;
b). the other party must have suffered an injury as result of such breach; and
c). the injury suffered must be proximate and a direct result of such breach.
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 25 of 29 (29) Further, the essence of the judicial interpretations of Section 74 of the Contract Act is summed up as under:
i. Under a liquidated damages clause, a party is not entitled to anything beyond reasonable compensation and the stipulated amount is merely the upper limit within which such compensation can be awarded.
ii. Liquidated damages can be recovered only and only if actual loss has been suffered, not otherwise. iii. The stipulated amount may be awarded as compensation in exceptional cases where it is impossible or difficult to quantify loss, provided that the amount so stipulated in the contract is found to be a genuine preestimate of damages. In all other cases, it is necessary for the claimant to prove such loss through evidence.
iv. As per the settled contract law principles, laid out in Section 73 of the Contract Act, reasonable compensation shall be determined.
(30) The Hon'ble Delhi High Court has been repeatedly emphasizing on the necessity of evidence to substantiate loss when claiming damages and clarified that the mere presence of a penalty or liquidated damages clause did not exempt the party claiming damages from proving the loss suffered due to the breach.
(31) The requirement of proof of loss suffered by the party Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 26 of 29 claiming damages based on such a contractual entitlement has been a subject of consideration in a number of decisions of the Hon'ble Supreme Court. [Ref: Section 73 & 74 of the Contract Act; Fateh Chand vs. Balkishan Das, reported in 1963 AIR (SC) 1405; Maula Bux Vs. Union of India, reported in 1970 AIR (SC) 1970; Oil & Natural Gas Corporation Ltd. Vs. Saw Pipes Ltd. reported in AIR 2003 (SC) 2629 and Kailash Nath Associates Vs. Delhi Development Authority reported in 2015 (4) SCC 136.]. In the present case the plaintiff has failed to place on record any evidence showing damages to the property in question to substantiate its claim towards damages.
CONCLUSION & RELIEF:
(32) As per the Registered Lease Deed dated 24.08.2017 (Ex.PW1/4) a sum of Rs.12,00,000/ was paid by the defendant to the plaintiff towards the interest free security deposit which was refundable without any interest thereon upon the lessee surrendering peaceful and vacant physical possession of the property either on expiry or earlier termination of this lease subject to adjustment of arrears of rent and any other sums claimed by the lessor (i.e. plaintiff) under the deed from the lessee (i.e. defendant), however, if the lessee vacates the premises on or before July, 27,2020, the lessor shall be entitled to forfeit security deposit in addition to entitle to recover the rent for the expired period as agreed in lock in period of three years Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 27 of 29 (i.e. 28.07.2017 to 27.07.2020) (Ref.: Para 4 Security Deposit in Lease Deed). This being the background, I hereby hold as under:
A) That plaintiff is entitled for recovery of Rs.40,23,471/ (i.e. Rs.36,69,094/ towards arrears of rent accrued upto 04.06.2020 i.e. date of handing over the possession of the premises to the plaintiff; Rs.2,83,140/ towards electricity charges and Rs.71,237/ towards the water/ sewage charges), which is subject to adjustment of the security deposit of Rs.12,00,000/.
B) That in so far as the interest aspect is concerned, the plaintiff has claimed interest @ 18% per annum over the principal amount, which in my considered view is excessive and hence, in the interest of justice the plaintiff is held entitled to the recovery of principal outstanding amount of Rs.40,00,000/ (which his subject to adjustment of the security deposit of Rs.12,00,000/) along with interest @ 9% per annum from the date of filing of the suit till its realization.
C) That the plaintiff shall also be entitled to costs of the suit.
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 28 of 29 (33) Suit of the plaintiff is accordingly Decreed. Decree Sheet be prepared accordingly.
(34) File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 02.12.2023 District Judge (Commercial Court)02,
Central, Tis Hazari Courts, Delhi
Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 29 of 29 Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) 02.12.2023 Present: Ms. Kirti Advocate for the plaintiff.
Defendant is exparte.
Vide my separate detailed judgment dictated and announced in the open court, the suit filed by the plaintiff is Decreed. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Dr. Kamini Lau) Distt. Judge (Comm.)2, Central District, Tis Hazari Court, Delhi 02.12.2023 Jai Healthcare Pvt. Ltd. Vs. Renu Kalra CS (Comm) No. 265/2020 (New No. 917/2023) Judgment dated 02.12.2023 Page No. 30 of 29