Delhi District Court
M/S. Shirdi Constructions vs Mr. Ashok Chug on 1 December, 2009
Suit no. 252/07 1 Dated : 01.12.09
IN THE COURT OF SH. JITENDRA SINGH
CIVIL JUDGE,(CENTRAL-02), DELHI.
SUIT NO. 252/07:
Date of Institution :29.05.07
Date of Reserving for Judgment: 23.11.09
Date of Judgment:01.12.09
In the matter of:
M/s. Shirdi Constructions
40,Pusa Road, New Delhi
Through its partner Shri Kirti Pahwa ....Plaintiff
Versus
Mr. Ashok Chug
S/o Mr. Bhoj Raj Chug
R/o Part of Third Floor, L-60,
Kalkaji, New Delhi ....Defendant
SUIT FOR THE RECOVERY OF Rs.73,920/- ,POSSESSION,
DAMAGES / MESNE PROFIT & INJUNCTION.
1.This is a suit for recovery of Rs.73,920/-, possession, damages, mesne profit alongwith interest &
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Suit no. 252/07 2 Dated : 01.12.09 injunction with respect of part of third floor of property bearing no. L-60, Kalkaji, New Delhi consisting two bedrooms with attached bathroom and balcony, one drawing cum dining room and one kitchen (hereinafter referred to as suit property).
2. Briefly stated, it is the case of the plaintiff that the plaintiff is the owner / landlord and defendant is the tenant in the suit property. on the monthly rent of Rs. 11,000/- excluding electricity, water and other charges. It is stated in the plaint that defendant was inducted as a tenant by the plaintiff vide deed of agreement dated 31.07.2005. It is stated in the plaint that as per the lease agreement dated 31.07.2005 , lessee was to pay the sum of Rs. 33,000/- as security deposit which is agreed to be returned by the lessor on vacating the premises by the lessee. It is stated in the plaint that the lessee had undertaken not to sub let, assign, license or otherwise part with possession of the whole or any part thereof without the consent in writing of the lessor.
3. It is stated in the plaint that defendant has now in utter disregard to the terms of letting has stopped paying the rent. The cheques given towards the lease amount for
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Suit no. 252/07 3 Dated : 01.12.09 the months of October and November 2006 amounting to Rs. 22,000/- were dishonoured.
4. It is averred in the plaint that the defendant has not paid the rent for October & November 2006. Therefore, a legal notice dated 28.12.20006 has been issued through registered. post as well as Courier whereby the plaintiff has terminated the tenancy of the defendant and further called upon him to pay the lease money @ Rs. 11,000/- p.m. w.e.f. October 2006 and other outstanding dues and also to vacate the premises. It is averred in the plaint that on 10.04.2007 the plaintiff received bank draft for the sum of Rs. 22,000/- from the defendant as rent for the month of December 2006 and January 2007 which were adjusted as such.
5. It is averred in the plaint that defendant has not paid the rent for the month of October & November 2006 and from February 2007 till filing of the suit nor vacated the premises under his occupation which amounts to Rs. 66,000/- being the arrears of rent along with interest @ 24% p.a. thereupon which comes to Rs. 7,920/- totaling to Rs. 73,920/- . And the Defendant is also liable to pay the mesne profit / damages @ Rs. 30,000/- per month being
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Suit no. 252/07 4 Dated : 01.12.09 the prevalent rent for the similar premises after the institution of the suit till the date of handing over the actual possession.
6. It is averred that defendant has threatened to vacate the suit property by handing over complete possession to some unauthorized person. It is stated in the plaint that defendant has got no right or authority to sublet or part with the possession of the tenanted portion. Hence, the present suit.
7. Detailed WS has been filed on behalf of the defendant wherein preliminary objections has been imposed upon the plaintiff. It is stated in the WS that the present suit of the plaintiff is without any cause of action and hence the same is liable to be dismissed. It is stated in the WS that plaintiff has concealed the material facts from the Hon'ble court and has filed the present suit on the basis of the false and baseless facts and the plaintiff has not appeared before this Hon'ble court with clean hands and plaintiff has not submitted the true and correct facts in the present suit and has not failed any documentary evidence of the ownership of the property.
8. Replication has been filed on behalf of the plaintiff
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Suit no. 252/07 5 Dated : 01.12.09 denying all the allegations which are alleged in the WS.
9. Pleadings are complete. On the basis of the pleadings following issues were framed on 3.10.08 by my Ld. Predecessor.
(i) Whether plaintiff is entitled for recovery of possession as claimed in the plaint ? (OPP)
(ii) Whether plaintiff is entitled for recovery of amount as claimed in the plaint ? (OPP)
(iii) Whether plaintiff is entitled for interest, if so, for what rate and for what period ? (OPP)
(iv) Whether plaintiff is entitled for mesne profit / damages at the rate of Rs. 30,000/- per month ? (OPP)
(v) Whether plaintiff is entitled for decree of permanent injunction as claimed for ?(OPP)
(vi) Relief.
10. Plaintiff examined one witness Sh. Kirti Pahwa as PW1. Thereafter, the PE was closed. It is pertinent to mention that vide order dated 3.10.08 the defence of the defendant was struck off as defendant has not complied with the order dated 28.05.08.
11. I have heard the arguments addressed by both counsel and have perused the record. My issues wise
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Suit no. 252/07 6 Dated : 01.12.09
findings are as follows:
ISSUE NO. 1.
The onus to prove this issue was placed on the
plaintiff . In order to discharge this onus the plaintiff examined witness namely Kirti Pahwa as PW1, who is the partner of the plaintiff firm. The PW1 has stated in his examination in chief that he is a partner of the registered plaintiff's firm and is authorized to file the present suit and in support of this he has relied on form A and B maintain under section 59 (4) (1) of the Indian Partnership, Act 1932 which is Ex. PW1/1. The PW1 has also proved deed of agreement (lease Deed dated 31.07.05) by which the defendant was inducted as a tenant in the suit premises which is Ex. PW1/4 . Further, plaintiff has proved the Legal Notice dated 28.12.06 by which the tenancy was terminated. To show the service of the legal notice to the defendant the PW1 has placed on record postal receipt and Ad card which is exhibited PW1/7 and PW1/8. The deposition of the PW1 supports the case of the plaintiff. It is pertinent to mention as the defence of the defendant was struck off. Thus, the written statement of the defendant cannot be read and the defendant had limited right of cross examination. The said
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Suit no. 252/07 7 Dated : 01.12.09 witness was cross examined but nothing material came in his cross examination which could demolish the case of the plaintiff. The Plaintiff has proved that the Defendant was the tenant with respect to the suit property and the tenancy was terminated on the ground of non payment of rent. Therefore the Plaintiff is entitled to the possession. The plaintiff has successfully discharged his onus. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2 & 3.
The issue no. 2 and 3 are being taken up together as interconnected and for the shake of brevity . The onus of the both the issues is on the plaintiff. The plaintiff has claimed recovery of amount of Rs. 73,920/-. The same is arrears of rent for the month of October and November, 2006 and from the month of February to May of the year 2007. The rate of rent in the lease deed agreement is Rs. 11,000/- per month. Which amounts to Rs. 66,000/-. The clause 10.2 of the lease deed prescribed rate of interest @ 24% for the period of delay in the payment of rent. The said interest is in the form of penalty as the interest is being imposed upon the defendant for ensuring that the defendant
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Suit no. 252/07 8 Dated : 01.12.09 makes the payment within the stipulated time and thus was only leviable on default. Hence, the interest of 24% is unreasonable. Therefore, in view of the aforementioned discussion I am of the opinion that the plaintiff is entitled to Rs. 66,000/- @ 9% from due date till the filing of the suit alongwith interest @ 6% per annum. Hence, these issues are partly decided in favour of the plaintiff and partly decided in favour of the defendant.
ISSUE NO. 4The onus of the present issue is on the plaintiff. The plaintiff has claimed mesne profits @ 30,000/- per month. The Plaintiff has proved the termination of tenancy, therefore the Plaintiff is entitled to the mesne profit but the plaintiff has not placed on record any document in support of rate of mesne profit as well as the deposition of PW1 has not dealt with the same effectively. Thus, the plaintiff has failed to discharge his onus to the extent of rate of mesne profit even though he is entitled to the mesne profits @ 11,000/- per month which was the rate of rent for the suit property .
ISSUE NO. 5The onus of this issue is on the plaintiff. The plaintiff
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Suit no. 252/07 9 Dated : 01.12.09 has successfully established his case for the claim of possession. The PW1 in his examination in chief has stated that the Defendant has threatened for vacating the suit property after handing over the possession to some unauthorized person.
Taking into consideration the apprehensions raised by the Plaintiff, the Plaintiff is also entitled to the injunction. Thus, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 6.
Relief.
In view of the findings of issue no. 1 to 5 the plaintiff is entitled to the following reliefs:
(A) A decree of possession is being passed in favour of the plaintiff and against the defendant and the defendant is required to vacate and hand over the possession of the suit property within two months from the passing of this order. (B) A decree for recovery of Rs. 66,000/- @ 9% from due date till the filing of the suit alongwith interest @ 6% per annum .
Further the Plaintiff is directed to adjust the security amount of Rs. 33,000/- in the same.
(C) A decree for recovery of mesne profit @ Rs. 11,000/- per
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Suit no. 252/07 10 Dated : 01.12.09 month from June, 2007 till the delivery of the possession alongwith interest @ 6% per month.
(D) The defendant , his agents etc. are restrained from illegally subletting or parting with the possession or creating any third party interest in the suit property Cost is also awarded in favour of the plaintiff. Decree Sheet be prepared on filing of the requisite court fees on the amount of mesne profit. File be consigned to record room after due compliance.
Announced in the open Court (JITENDRA SINGH) on 1st Day of December, 2009 CIVIL JUDGE / CENTRAL-02 DELHI
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