Delhi District Court
Sh. Yogesh Aggarwal vs Sh. Sher Singh on 20 December, 2012
1
IN THE COURT OF DIG VINAY SINGH, ADJ (CENTRAL) 04,
TIS HAZARI COURTS, DELHI
Date of institution : 30.08.2007
Judgment reserved on : 20.12.2012.
Judgment delivered on : 20.12.2012
Suit no.98/12 Unique id no.02401C0852602007
Sh. Yogesh Aggarwal
S/o Late Sh. Asha Ram
R/o 9/51, Khichripur,
Delhi-110096. ... Plaintiff
Versus
Sh. Sher Singh
S/o Sh. Siya Ram
R/o 5/238, Khichripur,
Delhi-110096. ...Defendant
JUDGMENT
1.This is a suit for possession of property No. 5/238, Khichripur, Delhi, as also a suit for recovery of arrears of rent and damages.
2.It is the case of plaintiff that he is owner of this property and he inducted defendant as a tenant in this property on a monthly rent of Rs.6,000/-, excluding water and electricity charges, vide a registered lease deed dated CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.1 of 16 h.l.
217.11.2003 for a period of one year w.e.f. 05.11.2003. Suit property is one room set on the ground floor and one room set on the first floor with common passage. Defendant failed and neglected to pay rent and other charges to the plaintiff. On repeated requests of the plaintiff, the defendant gave a cheque dated 20.06.2004 bearing No. 93964 for a sum of Rs.50,000/- towards arrears of rent which was dishonoured due to 'insufficient funds'. Regarding that cheque a criminal complaint under Section 138 of the Negotiable Instruments Act 1881 was filed and was claimed to be pending. Plaintiff claims that the lease expired on 04.11.2004 due to efflux of time and since then the defendant is an unauthorized occupant in the property. Plaintiff claims damages @ Rs.300/- per day from the defendant. A notice dated 30.03.2005 was also served upon the defendant calling upon him to pay arrears of rent and vacate the suit premises but it went unheeded. Plaintiff has calculated a sum of Rs.72,000/- as arrears of rent from 05.11.2003 till 04.11.2004, at the rate of Rs.6,000/- per month. Plaintiff has also calculated damages totaling to Rs.3,06,000/- on account of unauthorized occupation @ Rs.300/- per day w.e.f. 05.11.2004 to 04.08.2007. Thus plaintiff claims suit amount of Rs. 3,78,000/-. Present suit was filed on 29.08.2007.
3.Defendant's stand is, that the plaintiff is not owner of the suit property and the suit is without cause of action. The defendant claims that he is owner of the suit property and the suit is based on forged documents since certain documents were got signed by the plaintiff from the defendant under the garb of loan documents. Defendant claims that he is an absolute owner in possession of the suit property since 1976 as the suit property was allotted to him by the Government under a rehabilitation scheme. The suit property was CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.2 of 16 h.l.
3allegedly allotted to the defendant in compensation of demolition of his Zhuggi and the defendant deposited the house tax with DDA. Defendant denied that he was inducted as a tenant in the property. He claims that he is a semi- literate person and he asked the plaintiff to provide a friendly loan to him and get executed appropriate documents for loan. He promised to repay the loan to the plaintiff in the year 2002. In good faith he signed the documents without inquiring as to the nature of the documents. Plaintiff asked the defendant to accompany him to Sub-Registrar Office for execution of certain documents. In good faith he accompanied the plaintiff and signed the documents. It is also claimed by the defendant that some blank cheques were also given to the plaintiff by the defendant, as security, some of which has already been encashed by the plaintiff. Defendant claims that he repaid the entire loan amount but still the plaintiff did not return the cheques given in security.
4.In replication the plaintiff reiterated the averments of the plaint and also claimed that the suit property was purchased by the plaintiff from the defendant under documents that is an Agreement to sell, GPA, Will, Affidavit, Receipt, Possession letter dated 01.11.2002, which was also registered before the Sub-Registrar. Plaintiff claims that even the possession of property was handed over to him by the defendant and thereafter on the request of defendant, the defendant was inducted as tenant in the property w.e.f. 02.11.2002 on monthly rent of Rs.5,000/-, vide a registered lease deed. Subsequently under another registered lease deed dated 17.11.2003, w.e.f. 05.11.2003 he enhanced monthly rent to Rs.6,000/-, which lease expired by efflux of time.
5.Following seven issues were framed in the suit on 04.08.2008.
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41. Whether the plaintiff has no locus standi to file the present suit?OPD.
2. Whether the suit is without any cause of action? OPD.
3. Whether the suit has not been properly valued for the purposes of court fee?
4. Whether the plaintiff is entitled to possession of the property in question. OPP.
5. Whether the plaintiff is entitled to a recovery of the amount of rent and damages as claimed in the suit? OPP
6. Whether the plaintiff is entitled to any interest on the said amount? If so, its quantum and period? OPP.
7. Relief.
6.In support of his case, the plaintiff examined himself as PW-1, and reiterated the averments of the plaint. Plaintiff proved the documents of sale collectively as Ex.PW-1/1A to 1/1F; the earlier lease deed for the period 02.11.2002 as Ex.PW-1/2; the lease deed dated 17.11.2003 as Ex.PW-1/3; and the legal notice Ex.PW-1/4. Plaintiff deposed that during pendency of the criminal complaint under Section 138 of Negotiable Instruments Act, the defendant made payment of Rs.17,000/-.
7.Plaintiff also examined Sh.Yashwant Singh as PW2, who is the witness to the lease deed Ex.PW-1/3 dated 17.11.2003. PW-2 deposed that he is a common friend of both the parties and both the parties signed the lease deed in his presence on 17.11.2003.
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58.Neither the PW-1 was cross-examined by the defendant nor was PW-2 cross-examined, despite repeated opportunities. Thus, opportunity to cross- examine these two witnesses was closed. Thus, the testimonies of plaintiff's witnesses remain unrebutted and uncontroverted.
9.Thereafter the defendant examined himself as DW-1, reiterating the averments of his written statement. He proved house tax receipts Ex.DW-1/1; electricity bills Ex.DW-1/2 and 1/3; he also proved receipts Ex.DW-1/4 and 1/5, which are payment receipts, showing payment of electricity bills.
10.I have heard arguments on behalf of both the parties.
11.Issue no 1,2 and 4 can be decided together.
Issue no.1, 2 & 4 Whether the plaintiff has no locus standi to file the present suit?OPD.
& Whether the suit is without any cause of action? OPD.
& Whether the plaintiff is entitled to possession of the property in question. OPP.
12.The testimony of PW 1 has remained uncontroverted that he is owner of the property. The defendant during admission/denial of documents admitted that the document of sale of property bears his signatures. He admitted his CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.5 of 16 h.l.
6thumb impression, signatures and, photographs on these documents Ex.PW-1/1A to 1/1F. In such circumstances onus was heavy on the defendant to have proved that his signatures were obtained under misrepresentation. By not cross-examining the two plaintiff's witnesses, the defendant failed to discharge the onus. Out of these documents, the GPA, Ex.PW-1/B was duly registered before the Sub-Registrar. Similarly the Receipt Ex.PW-1/C was also registered before the Sub-Registrar. We need to attach some sanctity to the registered documents which are registered before the Sub-Registrar.
13.In Shanti Budhiya Vesta Patel v. Nirmala Jayprakash Tiwari and Ors. AIR 2010 SC 2132, it is observed, that a registered document has a lot of sanctity attached to it and this sanctity cannot be allowed to be lost without following the proper procedure.
14.Except making bare allegations that the defendant signed those documents under misrepresentation of documents of loan, nothing has been proved by the defendant that he was suffering from any such disability. He has not proved any loan document. After having received payment against selling the property, no one can be allowed to wriggle out of the transaction by simply claiming that the signatures were obtained under misrepresentation. The documents which are registered before the Sub- Registrar are deemed to be properly explained to the parties before signing it. Even otherwise, the defendant did not take any legal recourse against the plaintiff till date, if his signatures were obtained fraudulently. Till date no suit has been filed by him seeking cancellation of those documents signature of CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.6 of 16 h.l.
7which were allegedly obtained on misrepresentation.
15.The Hon'ble Supreme Court in the case of Prem Singh & Ors. vs. Birbal & Ors., 2006 (5) SCC 353, has dealt with the provisions of Section 31 of the Specific Relief Act, 1963 and Article 59 of the Limitation Act, 1963. Section 31 of the Specific Relief Act, 1963 provides the entitlement to seek cancellation of the documents. The Supreme Court has held that there are two types of documents; one is a void document and the second is a voidable document. So far as the void documents are concerned, for such documents there need not be filed any suit for cancellation under Section 31 of the Specific Relief Act, 1963, however so far as the voidable documents are concerned such documents have to be got cancelled as per Section 31 of the Specific Relief Act, 1963.
16.Since the plea of the defendant is that the documents in question, to which he is a party, were got signed on misrepresentation, the documents are therefore only voidable and not void.
17.The defendant is not an illiterate person. He was admittedly a cashier in a Public Sector Bank. Defendant did not cross examine the plaintiff at all. He did not even examine other witness to the documents to show that he signed them under misrepresentation. No criminal proceedings have been resorted to by him against any fraud with him. The stand of the defendant is nothing but false. Despite being in employment of bank he claims to have taken loan of Rs.1.00 lacs from the plaintiff, without any documents. Defendant claims to have issued blank cheques in favour of the plaintiff despite the fact that he is CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.7 of 16 h.l.
8a bank employee. Despite filing of a criminal complaint of dishonour of cheque against him and the present suit, no legal action is initiated till date by the defendant against plaintiff qua alleged fraudulent signatures. Thus the fact of signatures under misrepresentation cannot be believed.
18.PW-1 and 2 proved the registered lease deeds also executed by the defendant. These lease deeds Ex.PW-1/2 and 3 are also registered before Sub-Registrar. It is deposed by PW-2 as the witness of the lease deed that the defendant executed this lease deed in his presence. Testimony of PW-1 and 2 remained unrebutted and uncontroverted.
19.Under Section 91 and 92 of the Evidence Act, when a contract has been reduced to writing, it is the contract in writing which can be proved and no oral evidence against it is permitted in order to contradict, vary or to alter the terms of the contract. Section 91 of the Evidence Act provides that when the terms of a contract, grant or of any other disposition of property, has been reduced to the form of a document no evidence shall be given in proof of the terms of such contract, grant or disposition of the property except the document itself. Similarly, Section 92 of the Indian Evidence Act provides that when the terms of any such contract, grant or disposition of property has been proved by the production of the document itself, no evidence of any oral agreement or statement shall be admitted as between parties to such instrument or their representatives in interest for the purposes of contradicting, varying, adding to or subtracting from its terms.
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920.Ld. counsel for the defendant argued that the Agreement to sell, GPA, Will and Receipt, cannot be relied upon, since these documents does not have the effect of transferring the property. Admittedly in this case sale deed was never executed. He claims that in the case of Suraj Lamp and Industries vs. State of Haryana 2012 (1) SCC 656, it has been specifically held that an immovable property can be transferred only through valid Registered documents.
21.Admittedly in the case of Suraj Lamps, it was observed in Para 19 that that the observations in that case are not intended to in any way affect the validity of sale agreements and Power of Attorney executed in genuine transactions.
22.In the case of Raj Kumari Garg Vs. S.M. Ezaz and Ors., RFA (OS) No. 38/12 and FAO (OS) No.204/2012, decided on 13.08.2012, Delhi High Court observed, "34. Another aspect taken note of in the impugned order and which was canvassed before us arises from the judgment of the Supreme Court in Suraj Lamp & Industries Private Limited (2) Through Director Vs. State of Haryana & Anr. (2012) 1 SCC 656. The execution of Agreement to sell & purchase coupled with collateral documents like GPA, SPA, Will, etc. has been a common practice in Delhi. The validity of such a practice has been examined in the said judgment and it has been held that the bunch of such documents cannot be recognized as deeds of title, "except to the limited extent of Section 53A of the TP CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.9 of 16 h.l.
10Act". In fact, it has been observed in paras 26 & 27 that the observations of the Supreme Court are not intended in any way to affect the validity and powers of attorney executed in genuine transactions and the bunch of documents can continue to be treated as existing agreements of sale which would not prevent the affected parties from getting the registered deeds of conveyance to complete their title. The said bunch of documents can also be used to obtain specific performance or to defend possession under Section 53A of the TP Act. ......."
23. In the case of Vikas Jain Vs. Naresh Kumar, RFA No. 492/2001 decided on 08.02.2012, Hon'ble Delhi High Court, observed as follows;
"5. The documents which were executed by Mr. Prem Chand Jain in favour of respondent/plaintiff dated 7.8.2000 were proved and exhibited before the trial Court as Ex.PW1/E (Agreement to sell), general power of attorney (Ex.PW1/B) and affidavit with respect to handing over of possession (Ex.PW1/C) etc. I may state that the rights which are claimed on the basis of these documents arise under Section 53 A of the Transfer of Property Act, 1882 which gives rights in an immovable property pursuant to the doctrine of part performance. Rights are also created in the suit property in favour of the respondent/plaintiff as per Section 202 of the Contract Act, 1872, by which the power of attorney given for consideration is irrevocable. It is relevant to note that these documents were executed before the provision of Section 53A of the Transfer of Property Act, 1882 was amended in the year 2001, and where CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.10 of 16 h.l.11
after rights under Section 53A of the Transfer of Property Act, 1882 can only be claimed if the document is duly stamped and registered. It is relevant to note that the Supreme Court has preserved rights arising from the doctrine of part performance and an irrevocable power of attorney in the decision of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1(SC) as per paras 12, 13 and 16 of the judgment."
24. In the case of Ramesh Chand Vs. Suresh Chand and Anr., RFA NO. 358/2000 decided on 09.04.2012, by Hon'ble Delhi High Court observed as follows, in Para 3, " A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para
12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882 , Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will."
25. In the present case the testimony of plaintiff qua the fact that after CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.11 of 16 h.l.
12execution of sale documents possession of property was also handed over to the plaintiff by the defendant has remained uncontroverted. As per Section 202 of the Contract Act, 1872, the power of attorney given for consideration is irrevocable. The plaintiff thus proved sale of the property by the defendant to him and thereafter the property was given on lease to the defendant. The lease expired by efflux of time. No subsequent lease is proved on record by the defendant.
26. Thus, the plaintiff is entitled decree of possession of the suit property. The plaintiff thus has locus standi to file the present suit for possession and for recovery of rent and damages. The plaintiff also has cause of action in his favour. Thus, issue Nos. 1,2 and 4 are decided in favour of plaintiff and against the defendant.
Issue No.3 Whether the suit has not been properly valued for the purposes of court fee.
27. Since the suit is based on landlord tenant relationship, court fees had to be as per annual rent. The plaintiff has valued and filed the court fees correctly based on the annual rent. Plaintiff has valued the suit properly and paid court fees ad valorem on the annual rent. Thus, this issue is decided in favour of the plaintiff and against the defendant.
Issue No.5 Whether the plaintiff is entitled to a recovery of the amount of rent and CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.12 of 16 h.l.
13damages as claimed in the suit? OPP
28. The plaintiff has also proved that no amount of rent has been paid by the defendant for the period 05.11.2003 till 04.11.2004 amounting to Rs. 72,000/-. This testimony remained unrebutted. But the present suit has been filed on 29.08.2007. Rent for each of the month became due to the plaintiff in that month. Limitation to seek recovery of amount due is three years from the date when the amount became due. Therefore the rent for the months prior to August 2004 became due and payable more than three years prior to the date of filing of suit and thus became time barred. Giving of cheque dated 20.06.2004 bearing No. 93964 for a sum of Rs.50,000/- towards arrears of rent which was dishonoured due to 'insufficient funds', also does not make the claim within limitation as suit has been filed more than three years from the date of cheque. Thus towards the arrears of rent the plaintiff can at the most claim rent for the months of August 2004 to October 2004 i.e. for three months only. Thus plaintiff is entitled to recover Rs. 18,000 only towards arrears of rent.
29. The plaintiff has claimed damages @Rs.300/- per day, which broadly comes to Rs.9,000/- per month. Plaintiff claims damages for the period 05.11.2004 to 04.08.2007 that is till filing of the suit. Same rate of damages is claimed for pendent elite and future period also. The rent payable under the lease deed was Rs. 6000.00 per month, that too up to October 2004. From the perusal of the evidence of plaintiff as well as the defendant, it is apparent that neither the plaintiff nor defendant has placed on record any material which could either authenticate their case or disprove the claim of the CS No.98/12 Yogesh Aggarwal Vs. Sher Singh dt.20.12.2012 Page No.13 of 16 h.l.
14opposite party.
30. In Shriram Pistons and Rings Ltd. Vs. Basant Khatri 190 (2012) DLT 769 it was held by Hon'ble Mr. Justice Valmiki Mehta that even if a landlord has failed to lead evidence with respect to the prevalent rents, yet in such circumstances the Court can take judicial notice of increase in rent in metropolitan cities, more so, in commercial areas.
31. It was further held that in M/s. M.C. Aggarwal HUF Vs. M/s. Sahara India & Ors., that 15% increase of rent every year should be payable by a tenant to the landlord. In the case of M.C. Aggarwal (supra), the lease had expired on 30.06.2008 and it was held that from the date of determination of tenancy, the mesne profits will become 15% more than the agreed rate of rent and for each year thereafter, there will be a 15% increase over the last paid rent.
32. In the present case, going by the observations made in the case of Shri Ram Pistons and M.C. Aggarwal (supra), it is held that the plaintiff shall be entitled to mesne profits @ 6,900/p. m., w.e.f. 05.11.2004 (i.e. 15% more than the agreed rent of Rs.6,000/p. m.). The mesne profits shall increase by 15% over the last paid rent after every year till the vacant and peaceful possession of the suit property is delivered by the defendant to the plaintiff. The defendant shall be entitled to adjust in the mesne profits/ damages, the rent already paid by him to the plaintiff after determination of tenancy/ during the pendency of the suit.
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1533. Accordingly the plaintiff is entitled to recover the abovementioned amount minus the amount of Rs.17,000/-, received by the plaintiff during pendency of suit.
34. Plaintiff shall be entitled to damages at the abovementioned rate till the possession of property is handed over to the plaintiff by the defendant. Accordingly this issue is also decided in favour of the plaintiff and against the defendant.
Issue No.6 Whether the plaintiff is entitled to any interest on the said amount? If so, its quantum and period? OPP.
35. Turning to the next issue, the plaintiff has prayed interest @ 18% per annum. This is not only exorbitant but also arbitrary. The plaintiff is held entitled to interest @ 9% per annum on the decreetal amount from the date of filing of the suit till the date of decree. The plaintiff shall also be entitled to interest @ 6% per annum on the decreetal amount till the date of recovery.
Relief
36. Thus, the plaintiff is entitled to decree of possession of suit property. The plaintiff is also entitled to recover Rs. 18,000 only towards arrears of rent. The plaintiff shall be entitled to mesne profits @ 6,900/ p.m., w.e.f. 05.11.2004 till 04.11.2005. Thereafter mesne profits shall increase by 15% over the last paid amount after every year till the vacant and peaceful posses-
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16sion of the suit property is delivered by the defendant to the plaintiff. The de- fendant shall be entitled to adjust in the mesne profits/ damages, the rent al- ready paid by him to the plaintiff after determination of tenancy/ during the pendency of the suit.
Accordingly the plaintiff is entitled to recover the abovementioned amount minus the amount of Rs.17,000/-, received by the plaintiff during pendency of suit.
The plaintiff is held entitled to interest @ 9% per annum on the decreetal amount from the date of filing of the suit till the date of decree. The plaintiff shall also be entitled to interest @ 6% per annum on the decreetal amount till the date of recovery.
Plaintiff is also entitled to the cost of the suit. Decree sheet be prepared accordingly.
Announced in the open court on 20th December, 2012. Dig Vinay Singh ADJ-04 (Central) Delhi.
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