Delhi District Court
Sh. Sardar Hardeep Singh vs Ssi Ltd on 1 June, 2010
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IN THE COURT OF SH. BHUPESH KUMAR : ADDL.
DISTRICT JUDGE : 06 : WEST DISTRICT : DELHI.
In matter of :
Suit no. 34/05
1. Sh. Sardar Hardeep Singh,
son of Late Sardar Balwant Singh
2. Mrs. Param Sachdeva
wife of Sardar Hardeep Singh
3. Sardar Ujjal Singh
son of Late Sardar Balwant Singh
4. Mr. Yagdeep Singh
son of Sardar Ujjal Singh
All resident of
321 Sector-9D, Chandigarh. .......... Plaintiffs
versus
1. SSI Ltd.,
A company registered under the
Indian Companies Act, 1956,
having its office at :
54, Thirumalai Palli Road,
T Nagar, Chennai-600017
through its general Manager,
ALSO at
S.S.I Ltd.,
C/o Aptech Ltd. (SSI Edu)
A-13, Ring Road,
South Extension , Part-I,
New Delhi.
2. Aptech Ltd.,
2
A company registered under the
Indian companies Act, 1956,
having its registered office at :
Elite Auto House 54-A,
Sir M. Vasanji Road,
Andheri (E), Mumbai-400093.
......... Defendants
Date of Institution : 5.4.2005
Date of arguments: 24.5.10
Date of Judgment : 1.6.2010
JUDGMENT
! The plaintiff has filed the present suit for recovery of possession of entire second floor of property bearing No.O-2 Lajpat Nagar, Part, II, New Delhi and recovery of rent amounting to Rs.2,70,000/- and damages and mesne profit for unauthorized use and occupation. It has been submitted that plaintiffs are owner of the aforesaid property in question and on 1.12.02 the property was let out to the defendant for three years commencing w.e.f. 1.12.02 to 30.11.05 @ Rs.30,000/- pm. The written lease deed was executed between the parties. It was settled that the defendant would pay the rent to the plaintiff as under:
I. Hardeep Singh Rs.5000/-
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II. Param Sachdeva Rs.5000/-
III Ujjal Sing Rs.10,000/-
iv. Yagdeep Singh Rs.10,000/-
The rent was settled to be paid on or before the 10th day of each calender month and in case the defendant failed to pay the rent for two consecutive months the defendant would be liable to evict the said premises. On 21.1.05 vide notice dated 16.9.04 the tenancy of the defendant was terminated and the defendant was asked to vacate and handover the peaceful possession of the premises to the plaintiff on or before 31.12.04. Notice was duly served upon the defendant but the defendant has failed to comply with the same. The defendant has not paid the rent for the month of September-October'2003, March, July and August to December 2004 and is liable to pay damages @ Rs.50,000/- p.m. thereafter for illegal use and occupation of property. Vide letter dated 21.1.05 the defendant No.1 has informed the plaintiff that defendant No.1 has incorporated its Education Division Business with defendant No.2. On the basis of these submissions prayer was made to pass decree of possession against the defendant, 7 8 9 : ; < = > ? @ A B C D E FG>G< H I ?
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arrears of rent, mesne profit alongwith interest @ 24% p.a.
2. Both the defendants contested the suit filed written statement taking preliminary objection that the defendant No.1 and 2 has entered into business purchase agreement dated 1.4.03 vide which the defendant No.1 has transferred its assets arising out of lease agreement and has assigned its tenancy rights in favour of defendant No.2. It was further submitted that plaintiff has suppressed the fact that the lease agreement dated 1.11.02 was executed between the parties and vide said lease agreement a security to the tune of Rs. 8 lac was deposited with the plaintiff in respect of entire premises at O-2 Lajpat Nagar, PH-II, New Delhi. The security deposit was understood to have part of the lease agreement dated 1.11.02 and had been apportioned into lease agreement. The instant suit relates to one part of demise premises. The plaintiff has suppressed this material fact from the court. Therefore, the suit is liable to be dismissed.
On merits the fact defendant No.1 has taken the premises on lease from the plaintiff in view of lease agreement dated J K L M N O P Q R S T U V W X YZR[O \ ] R 5 1.11.02 was not denied. However it was submitted that lease agreement was also executed between the parties earlier to the lease agreement dated 1.11.02 and vide said lease agreement security to the tune of Rs. 8 lac was deposited with the plaintiff. It was settled between the parties that the security deposit would be part of agreement dated 1.11.02 . Rate of rent to the tune of Rs.30,000/- were not denied. It was also not denied that rent was payable to defendants proportionately as stated in the plaint. It was denied that defendant was liable to pay any arrears of rent or mesne profit. Inter alia on the basis of these submissions prayer was made to dismiss the suit.
3. Replication was also filed by plaintiff wherein the averments made in the written statements have been generally denied and those made in the plaint have been reiterated and reaffirmed.
4. After the parties concluded its pleadings the possession of the property was handed over to the plaintiff in court on 15.7.06.
^ _ ` a b c d e f g h i j k l mni!c o p f 6
5. On the basis of pleadings of the parties following issues were framed by my Ld. predecessor on 12.1.07 :
1. Whether the present suit is bad for mis joinder of the parties?OPD
2. Whether the defendant have paid the security deposit to the tune of Rs. 8 lacs in terms of the lease deed dated 7.11.2000?OPD
3. Whether the plaintiff is entitled to a decree for recovery of arrears of rent amounting to Rs.2,70,000/- as prayed for ?OPP
4. Whether the plaintiff is entitled to a decree for recovery of damages/mesne profits as prayed for?If yes at what rate and for what period.
5. Whether the plaintiff is entitled to any interest, if yes, at what rate and for what period?OPP
6. Relief.
5. Plaintiff No.1 was examined as PW1 in the individual capacity being attorney of the remaining plaintiffs who deposed on similar lines to that of plaint and proved on record SPA executed by remaining defendants as Ex. PW1/1, site plan Ex.
PW1/2, copy of the pass books as reflecting the entries of payment of rent to the tune of Rs.30,000/- Ex. PW1/3, legal notice dated 16.9.04 issued by the plaintiff to the defendant as Ex. PW1/4, AD card and receipt of notice Ex. PW1/5 and Ex. PW1/6, UPC Ex. PW1/7, letter dated 21.1.05 written by defendant No.1 to the plaintiff vide which the plaintiff was informed that the q r s t u v w x y z { | } ~ 34v y 7 defendant No.1 has integrated its education devision business with defendant No.2 as ex. PW1/8. PE was closed.
6. Defendant was afforded sufficient opportunities to lead its evidence but the defendant failed to lead any evidence in support of its case and ultimately vide order dated 5.10.08 of my Ld. predecessor DE was closed by order. Sufficient opportunities were also awarded to the defendant to advance final arguments but even despite obtaining sufficient opportunities the defendant has failed to advance any arguments in support of its contentions. However arguments of Ld. counsel for plaintiff heard. Ld. counsel for plaintiff also filed written submissions. My issue wise findings are as under:-
7. Issue No.1.
Whether the present suit is bad for mis joinder of the parties?OPD The onus to prove this issue was on the defendant. The defendant has not advanced any argument on this score. But from perusal of material on record it reveals that letter dated 27.1.05 GG 8 written by defendant No.2 is on record which transpires that business of defendant No.1 and 2 were merged on 1.4.03 and the defendant No.2 came in control of the said business. On the basis of said letter the defendant has taken the plea that since the entire business was already handed over to defendant No.1 therefore he was unnecessarily joined to the present proceedings and the suit is bad for mis joinder of parties. On this score it is found that the defendant has not led any evidence to substantiate this contention nor any other material came during the cross examination of PW1 which support this plea of the defendant . Hence the defendant failed to release its burden on this issue. The issue is accordingly decided in favour of the plaintiff and against the defendant.
8. Issue No.2.
Whether the defendant have paid the security deposit to the tune of Rs. 8 lacs in terms of the lease deed dated 7.11.2000?OPD The onus to prove this issue was on the defendant. But the defendant has not led any evidence in support of his contention neither any lease deed dated 7.11.2000 was brought on record.
¡ ¢ £ ¤ ¥ ¦3§4 ¨ © 9 Hence due to lack of evidence the issue decided against the defendant and in favour of the plaintiff.
9. Issue No.3.
Whether the plaintiff is entitled to a decree for recovery of arrears of rent amounting to Rs.2,70,000/- as prayed for ?OPP The onus to prove this issue was on the plaintiff. Plaintiff No.1 Sh. Hardeep Singh appeared in witness box as PW1. He stated to the effect that property was leased out to the defendant @ Rs.30,000/- pm and the defendant has not paid the rent for the month of September-October 2003 and for the month of March and July to August 2004. Vide notice Ex. PW1/4 dated 16.9.04 the demand for rent for the said period was made from the defendant alongwith interest @ 24% p.a. Further vide the said notice the tenancy of the defendant was terminated w.e.f. 31.12.04 and the defendant was further directed to handover the possession of the property upto 31.12.04. Thereafter the present suit was filed. The witness further submitted that notice was duly served upon the defendant through registered post. But the defendant has not paid ª « ¬ ® ¯ ° ± ² ³ ´ µ ¶ · ¸ ¹3º4¯ » ¼ ² 10 demanded rent and settled rent @ Rs.30,000/- upto the month of December 2004 and after 1.5.05 the possession of the defendant over the property became illegal. It was submitted that defendant is liable to pay damages @ Rs.50,000/- pm. The witness was cross examined at length but during cross examination the defendant failed to extract anything in favour of the defendant and the evidence of this witness to the effect that defendant has not paid the rent @ Rs.30,000/- pm for the month of September-October'03, March and July to December 2004 remained unrebutted and unshaked. The present suit was filed on 4.4.05. Therefore the demanded rent found out within the period of limitation. The material available on record reveals that defendant has not paid the rent for the period September, October 2003, and March and July to December 2004 @ Rs.30,000/- pm. which comes to Rs.2,70,000/-. The issue is accordingly decided in favour of the plaintiff and against the defendant.
10. Issue No.4.
Whether the plaintiff is entitled to a decree for ½ ¾ ¿ À Á Â Ã Ä Å Æ Ç È É Ê Ë ÌÎÍÏÇnÂ Ð Í Å 11 recovery of damages/mesne profits as prayed for?If yes at what rate and for what period.
The onus to prove this issue was also on the plaintiff. The plaintiff claim mesne profit @ Rs.50,000/- pm. It is admitted fact that the lease deed was un-registered. Hence in view of section 106 of Transfer of Property Act, in the absence of registration the tenancy is deemed to be from month to month basis. In the present matter notice was issued to the defendant on 16.9.04 proved on record vide Ex. PW1/4. The notice was duly served upon the defendant which reveals from the AD card duly received and brought on record as Ex. PW1/6. The said notice was found to be issued U/s 106 of Transfer of Property Act, therefore, on the basis of contents of the notice the tenancy stands terminated w.e.f. 31.12.04 and after w.e.f. 1.1.05 the possession of the defendant over the property in question became unauthorized for which the plaintiff is entitled for mesne profit.
The record further reveals defendant has vacated the premises on 15.7.06. Hence w.e.f. 1.1.05 to 15.7.06 the plaintiff is Ñ Ò Ó Ô Õ Ö × Ø Ù Ú Û Ü Ý Þ ß àÎá áZÖ â á Ù 12 entitled for mesne profit. Now the question arises at what rate the plaintiff is entitled for mesne profit. On this score it is found that for the purpose of granting mesne profit, the court is required to conduct an inquiry in view of provisions of order 20 R 12 CPC. But in the present matter, the plaintiff No.1 has examined himself as PW1. No other witness was examined to prove the fact that how much rent the property could fetch during relevant period of unauthorized occupation. Even no neighbourer or any other persons of the vicinity has been examined. Therefore, the evidence of PW1 has not been corroborated by the evidence of any other witness for the purpose of ascertaining the mesne profit. However considering the fact that rent in Delhi enhanced rapidly therefore, it is found that 10% enhanced damages to the admitted rent would be sufficient for the purpose of ascertaining the mesne profit. Hence it is hold that the plaintiff is entitled the mesne profits for unauthorised use and occupation Rs.33000/- p.m. w.e.f. 1.1.05 to 15.7.06 which comes to Rs. 6,10,500/-. The issue is decided accordingly in favour of the plaintiff and against the defendant.
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11. Whether the plaintiff is entitled to any interest, if yes, at what rate and for what period?OPP The plaintiff has claimed the interest @ 24% p.a. both on the arrear of rent and the mesne profit. However 24% p.a. interest found to be much higher side and in order to meet the ends of justice interest @ 10% p.a. would be sufficient to meet the ends of justice. The issue is decided accordingly in favour of the plaintiff and against the defendant.
12. Relief.
In view of the above discussions, the suit of the plaintiff is decreed for a sum of Rs. 8,80,500/- with interest @ 10% p.a. from the date of filing of the suit till its realization with cost of the suit. As per admitted letter Ex.PW1/8 written by defendant No.1 to the plaintiff the business of defendant No.1 merged with the business of defendant No.2 on 1.4.03. The plaintiff has claimed due rent and the damages after 1.4.03. There is no material on record which suggest that defendant No.1 has lost interest in the said business. In these eventualities considering the entire facts and circumstances it is hold that both the defendants are jointly and severally liable to pay the said amount. Decree sheet be prepared accordingly. File be consigned to record room.
(Bhupesh Kumar) ADJ-06/West/Delhi ö ÷ ø ù ú û ü ý þ ÿ ý!û þ 14 1.6.10 (Announced in open court) ! " #$ % & #$