Delhi District Court
Manish Kejriwal vs Rohit Jain on 9 June, 2025
IN THE COURT OF MS. KIRAN BANSAL:
DISTRICT JUDGE (COMMERCIAL COURT-02
SHAHDARA DISTRICT
KARKARDOOMA COURTS : DELHI
Civil Suit (Comm) No. 488/2021
In the matter of
Manish Kejriwal
S/o Sh. Satya Bhawgan Kejriwal
R/o R-56-C, Block R,
Dilshad Garden,
Delhi - 110095 .... Plaintiff
Vs.
Rohit Jain
S/o Sh. Sunil Jain,
R/o 9/2357, Gali No.12,
Kailash Nagar, Gandhi Nagar,
Delhi - 110031 .... Defendant
Date of Institution :25.11.2021
Date of final arguments :04.06.2025
Date of conclusion :09.06.2025
JUDGMENT
1. This is a suit for recovery of arrears of rent/license fee, mesne profit along with pendente lite and future interest and recovery of possession and damages.
2 Briefly stated the facts of the case are that plaintiff has filed a suit for eviction, recovery of possession, arrears of rent/license fee and damages against the defendant being unlawful occupant of the property i.e. basement and ground floor Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.1 of 53 situated at 56-B/5, Damodar Park Industrial Area Dilshad Garden, Delhi - 110095 (hereinafter referred to as suit property) . Plaintiff has stated that being the landlord/owner of suit property, he let out the suit property on rent/lease at monthly rent/license fee of Rs.75,000/- per month to the defendant. Plaintiff stated that defendant is engaged in the business of manufacturing and trading of bubble wrap and running the same from the suit property under the name and style of M/s Vardhaman Enterprises.
2.1 It is stated that initially, the defendant namely Rohit Jain was having a partnership firm comprising of two partners i.e. Rohit Jain himself and Vikash Jain and both the partners entered in two agreements with plaintiff to take the suit property on rent/license @ Rs.75,000/- per month for a period of two years vide agreements dated 05.03.2019 and it was agreed that the rent of Rs.75,000/- would be paid via two modes i.e. Rs.60,000/- from the account of defendant and Rs.15,000/- from the account of the firm through cheque / NEFT / RTGS or in cash on month to month basis and accordingly two separate agreements were executed between the parties, one was executed for an amount of Rs.15,000/- and another was executed for Rs.75,000/-. Further, it is stated that plaintiff had issued the bills/invoices of said rent, but, the defendant was not paying rent/license fee on regular basis in accordance to agreement and on receipt of rent, plaintiff had issued bills/invoices of said rent, however, defendant was paying GST only on the bill against rent of Rs.15,000/- and had not paid GST on Rs.60,000/- since 05.03.2019 till March, 2020 and since April 2020 till date had not paid license fee of Rs.60,000/-.
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.2 of 53 2.2 Plaintiff stated that after some time some dispute inter alia regarding payment of GST on rent/license fee of Rs.60,000/- had arisen between defendant and his partner Vikas Jain and the said partnership firm between the partners i.e. Rohit Jain and Vikash Jain was dissolved. After dissolution, it was agreed between plaintiff and defendant along with his erstwhile partner Vikash Jain that entire rent as agreed shall be continued and be paid by Rohit Jain i.e. defendant only and plaintiff will issue separate bills/invoices for Rs.15,000/- per month and Rs.60,000/- per month along with GST separately.
2.3 On 30.07.2019, two fresh agreement of rent/lease and license were executed exclusively between plaintiff and defendant on the basis of same terms and conditions as were mentioned in earlier agreements executed on 05.03.2019, accordingly, plaintiff used to issue bills/invoices to defendant in two parts i.e. Rs.15,000/- + GST and Rs.60,000/- + GST. Defendant in a clandestine manner paid rent/license fee of Rs.75,000/- in two separate modes, but, he paid GST only on bill issued of Rs.15,000/- from July, 2019 to March, 2020. It is stated that defendant used to seek time to pay GST on bill/invoice issued for Rs.60,000/-, but, never paid GST to plaintiff which was to be deposited with concerned government authority.
2.4 In May 2020, defendant paid license fee of Rs.75,000/- for the month of March 2020, but, did not pay any license fees for April, 2020, thereafter, defendant requested the plaintiff to leave rent/license charges for April to June, 2020, however, plaintiff asked defendant to pay half of arrears of rent i.e. Rs.1,12,500/- with GST, out of Rs.2,25,000/-, but, defendant Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.3 of 53 refused to pay.
2.5 Plaintiff had sent a Notice to defendant through whatsapp requesting him to pay arrears of rent and to vacate the suit property. Defendant filed a suit against the plaintiff before concerned court seeking injunction not to dispossess him without due process of law, however, the said suit was withdrawn. In reply to said Notice, defendant Rohit Jain undertaken to clear all the outstanding towards tenanted premises and further stated that his business has stopped due to covid pandemic. Plaintiff stated that he had been issuing bills/invoices against receipt of rent/leave and license fee and had deposited GST to concerned government department. Plaintiff terminated the tenancy of defendant by sending legal notice dated 04.08.2020 to the defendant through email, despite that defendant neither vacated nor paid arrears of rent. As per plaintiff, on receipt of legal notice, the defendant has been in unauthorized and unlawful possession of the suit property and eventually is liable to pay damages to the tune of Rs.5,000/- per day in addition to rent. The details of account in respect of arrears of rent including enhancement of rent @ 5% (after every eleven months) and interest @ 18% per annum incurred over the same and GST remained unpaid by the defendant as stated in plaint are as follows:
Month Rent Enhancement of Total in Rs. GST Net rent@5% p.a. Amount in Rs. Rs.
April, 2020 75,000 3750 78750 2835 81585 May, 2020 75,000 3750 78750 2835 81585 June, 2020 75,000 3750 78750 2835 81585 July, 2020 75,000 3750 78750 2835 81585 August, 75,000 3750 78750 2835 81585 2020 Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.4 of 53 September, 75,000 3750 78750 2835 81585 2020 October, 75,000 3750 78750 2835 81585 2020 November, 75,000 3750 78750 2835 81585 2020 December, 75,000 3750 78750 2835 81585 2020 January, 75,000 3750 78750 2835 81585 2021 February, 75,000 3750 78750 2835 81585 2021 March, 75,000 3750 78750 2835 81585 2021 April, 2021 78,750 3938 82688 2979 85667 May, 2021 78,750 3938 82688 2979 85667 June, 2021 78,750 3938 82688 2979 85667 July, 2021 78,750 3938 82688 2979 85667 August, 78,750 3938 82688 2979 85667 2021 Septermber, 78,750 3938 82688 2979 85667 2021 October, 78,750 3938 82688 2979 85667 2021 Total 1451250 72563 1523813 54873 1578686 (i.e. (Rent Due with GST) 2.6 Plaintiff has also given calculation of interest on rent
and the due balance amount towards the defendant as under:
Interest on rent @ 15% per annum incurred over Rs.3,48,850/- arrears of rent/license charge upto October, 2021 GST paid by the plaintiff for 2019-2020 Rs.1,29,600/-
Total Rs.4,78,450/-
Outstanding owning by the Rs.20,57,136/- (i.e. defendant i.e. Rent Due + Interest 15,78,686 + 3,48,850 + incurred over the rent and GST 1,29,600) Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.5 of 53 Amount Received from the defendant till the filing of the suit is as under 30.07.2020 Rs.74,340/-
20.01.2021 Rs.94,500/-
22.06.2021 Rs.20,160/-
01.09.2021 Rs.47,250/-
Total amount received from Rs.2,36,250
defendant is
Grand Total due balance Rs.18,20,886/-
towards defendant (i.e. Rs.20,57,136 -
Rs.2,36,250)
2.7 Plaintiff stated that defendant is also liable to pay
interest adjusted by BSES while raising invoices of consumption which is exclusively consumed by defendant and same comes to Rs.17,750/-. Further, it is stated that suit property falls within Shahdara District and plaintiff is in bonafide need of the same for his son who has completed BBA. Further, it is stated that the cause of action arose when defendant declined to vacate the suit property and has not clear dues / arrears, hence, the present suit.
Further, it is stated that present suit is within limitation and both plaintiff and defendant are working for gain in Shahdara District and suit property is also situated in Shahdara District, thus, this court has jurisdiction to entertain and decide the present suit. Along with this plaint, affidavit and statement of truth of Sh. Manish Kejriwal is filed.
3. During the course of proceedings the defendant had filed two applications under Order VI Rule 17 CPC seeking permission to amend the WS and another application for amendment of the affidavit of admission and denial. As far as the amendment to WS is concerned, the application was allowed Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.6 of 53 subject to cost. While the application for amendment in affidavit of admission and denial is concerned the same was allowed only to extent that the defendant can amend his affidavit to deny the correctness of the rent agreement dated 05.03.2019 and 30.07.2019 where the amount of rent is Rs. 75,000/-. However, the defendant was not allowed/permitted to withdraw his admission qua the signatures on the rent agreement.
4. Amended WS to the amended plaint was filed by defendant stating that no cause of action arose for filing the present suit as the plaintiff himself admitted the execution of agreement between him on one hand and Vikas Jain and Rohit Jain on other hand. Further, suit of plaintiff is liable to be dismissed under provisions of Section 7 Rule 11 (d) CPC on the ground that proper valuation of suit was not done as per market value of suit property. Defendant has stated that plaintiff has filed the suit on the basis of some unregistered rent agreements pertaining to 2 years and the same cannot be relied upon as per Section 17 of Registration Act, 1908. Further, defendant stated that suit is bad for non joinder of necessary party as plaintiff has not arrayed Vikash Jain as a party to the instant suit which is necessary as the alleged claim is based on Lease/Rent Agreement executed between Manish Kejriwal and Vikash Jain and Rohit Jain.
4.1 It is stated that plaintiff had allegedly filed his claim on the basis of some forged, fabricated and unacknowledged copies of Tax Invoices issued by M/s A.S. Enterprises against M/s Vardhman Enterprises by manipulating the averments and there is no whisper about the same in the alleged agreements.
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.7 of 53 It is stated that it is improbable that owner would rent out the area more than his ownership because as per the sale deed of suit property, there are allegedly two owners of property, namely, plaintiff and Varun Kejriwal measuring 107.48 sq. meter (128 sq. yards), however, as per alleged rent agreement, plaintiff allegedly provided area measuring 130 sq. yards on the basement and ground floor of suit property, therefore, area of suit property is disputed and in the absence of any demarcation, the suit cannot stand. Further, it is stated that plaintiff had forged, fabricated the rent agreements, tax invoices and other documents just to get favorable orders from this court.
4.2 It is stated that plaintiff had earlier filed suit by impleading M/s A.S. Enterprises as necessary party, but, present suit is filed by plaintiff who is not the real owner of suit property and plaintiff filed the bills on behalf of M/s A.S. Enterprises. Further, it is stated that suit of plaintiff clearly indicates that the same is merger of several separate issues/fresh tenancy which cannot be clubbed in one suit. Defendant submitted that there were two separate tenancy vide two separate rent agreements which plaintiff merged into one illegally to evict the defendant from the suit property without due process of law. Further, defendant has submitted that plaintiff had obtained his signatures on two copies of agreements (one for the plaintiff and other for the defendant), but, later on, plaintiff had forged and fabricated the agreement by mentioning the rent of the premises as Rs.75,000/- instead of Rs.15,000/-.
Rest of the material contents of the plaint are denied by the defendant and prayer has been made for dismissal of the suit with heavy cost.
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5. During the course of arguments, the counsel for the plaintiff has argued that para 6 of the amended WS was amended whereas the defendant has not taken permission to amend it. Perusal of the WS and the amended WS revealed that para 6 of the WS has been changed/ amended without specifically applying for amendment in the same. Thus, as a consequence for this unauthorized amendment, para 6 of the amended WS will not be taken into consideration while deciding the suit on merits.
6. Replication to the amended WS was filed by plaintiff stating that plaintiff undertakes that if the court fees paid is found deficit, he shall pay the same as and when directed. It is denied that suit is bad for non-joinder of party because no relief is being sought against alleged Sh. Vikas Jain as he had already ceased to be the partner of defendant and thereafter, the defendant had entered into fresh lease / rent agreement executed on 30.07.2019. Further, it is stated that defendant in his suit for injunction bearing no. 739/20 titled as Rohit Jain Vs. Manish Kejriwal had categorically admitted that he is tenant of plaintiff and the relationship of landlord and tenant was established and thus, the estoppel is squarely applicable to defendant.
6.1 Plaintiff further stated that Sh. Varun Kejriwal was real brother of plaintiff and joint owner of property (HUF property) in question wherein the plaintiff has been karta of family, besides this, the plea of defendants is hit by Section 116 of Indian Evidence Act 1872. It is submitted that plaintiff and defendants are sole proprietors of their respective firms and the alleged firms are not separate legal entities, thus, there is no need Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.9 of 53 to make their respective firms as necessary parties to the case in hand. Further, it is submitted that Sh. Vikas Jain has ceased to be a partner of defendant, therefore, fresh agreements were executed between the plaintiff and the defendant on 30.07.2019 and the previous agreement stood terminated after fresh/new rent agreements were entered, therefore, Sh. Vikas Jain is not a necessary party. Further, it is submitted that defendant in his suit for injunction bearing no.379/2020 titled as Rohit Jain Vs. Manish Kejriwal had categorically admitted therein that he is tenant of plaintiff, thus, the estopple is squarely applicable to the defendant.
Remaining material averments made in the plaint are reiterated and the contents of the WS are denied.
7. During admission/denial, the defendant has admitted the following documents relied upon by the plaintiff which are as follows:
(i) Agreement dated 05.03.2019 wherein rent is @ Rs.15,000/- per month as Ex.P1;
(ii) Another Agreement dated 30.07.2019 @ INR 15000/- per month as Ex.P2;
(iii) Copy of Order dated 17.03.2021 as Ex.P3;
(vi) Certified copy of plaint/suit bearing no. 379/2020 filed by defendant against the plaintiff in the court of ld. SCJ, Shahdara, KKD Court as Ex.P4;
On the other hand, plaintiff has admitted the following documents relied upon by the defendant which are as follows:
(v) Certified copy of previous litigation/suit filed by Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.10 of 53 defendant as Ex. D1;
(vi) Copy of Sale Deed dated 28.05.2013 as Ex. D2.
8. During the course of the proceedings, the plaintiff has filed an application under Order XII Rule 6 CPC r/w Section 151 CPC was filed on behalf of the plaintiff for directing the defendant to hand over the vacant peaceful possession of the suit property to the plaintiff. Vide order dated 06.07.2023, the application of the plaintiff was allowed and the suit of the plaintiff was partly decreed in his favour and the defendant was directed to remove forthwith all his machineries and belongings from the suit premises on the following grounds:
i. The landlord-tenant relationship was admitted. ii. The tenancy was terminated by the notice, as the tenancy was considered as month-to-month notice. iii. The rent of the premises was more than Rs. 3,500/- per month so the matter was out of purview of The Delhi Rent Control Act.
Since the possession was already granted by the said order, no issue with respect to possession was framed.
9. The possession of the suit property was directed to be handed over to the plaintiff on an application under Order XII Rule 6 CPC vide order dated 06.07.2023. Though, the defendant during his cross examination has stated that he has already handed over the keys of the suit premises to the plaintiff on 14.09.2023 or in August, 2023, but, this plea is not correct, in as much as, during the proceedings of the execution petition filed in pursuance of the part decree dated 06.07.2023, the defendant who is JD had appeared in the court on 12.10.2023 and had Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.11 of 53 stated that he would hand over the keys to the DH in the evening and thus, till 12.10.2023, the possession of the suit property was not handed over to the plaintiff/DH. Clarificatory statement of the plaintiff to this effect recorded on 04.06.2025. Ld. counsel for defendant had also admitted that the possession was handed over only after the hearing on 12.10.2023 and thus, the possession of the suit premises was handed over to the plaintiff/DH on 15.10.2023.
10. Thereafter on completion of pleadings of the parties, the following issues were framed:
i. Whether the plaintiff is entitled for the decree of Rs.18,38,646/- as arrears of rent? OPP ii. Whether the plaintiff is entitled to any mesne profit, if so, at what rate and for what period? OPP iii. Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP iv. Whether the plaintiff is entitled to recover interest incurred upon the fixed deposit made to BSES and adjusted while issuing the bills/invoices against consumption of electricity charges as prayed for and if so, to what rate and to which period, OPP v. Relief
11. In support of its case, plaintiff has examined himself as PW-1 and tendered his evidence by way of affidavit on 15.03.2024 which is Ex.PW1/1 and has relied upon the following documents:
• Order of withdrawal of suit as Mark A; • Non Starter Report as Ex.PW1/B;
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.12 of 53 • The Agreements dated 05.03.2019 as Ex.PW1/C and Ex.PW1/D;
• The Agreements dated 30.07.2019 as Ex.PW1/E and Ex.PW1/F;
• Certified Copy of plaint/suit filed by defendant against the plaintiff as Ex.PW1/G and copy of order sheet as Mark X; • The screenshots of the conversation held between the plaintiff and defendant on whatsapp as Ex.PW1/H; • Certificate under Section 65B of Indian Evidence Act as Ex.PW1/I;
• Copies of bills/invoices and GST Form GSTR-3B and R-1 as Ex.PW1/J (colly);
• Legal Notice dated 04.08.2020 as Mark Y. He was cross examined at length on behalf of defendant.
11.1 Another witness Sh. Vikash Jain, S/o Late Mitra Sain Jain is examined as PW-2 who tendered his evidence by way of affidavit on 15.03.2024 which is Ex.PW2/1 has relied upon the documents which were already exhibited in the evidence of PW-1:
(i) The Agreements dated 05.03.2019 as Ex.PW1/C and Ex.PW1/D;
(ii) The Agreements dated 30.07.2019 as Ex.PW1/E and Ex.PW1/F. He was duly cross examined on behalf of defendant.
11.2 Sh. Ravinder Kumar, S/o Brijpal Singh is examined as PW-3 who tendered his evidence by way of affidavit on 15.03.2024 which is Ex.PW3/1 and has relied upon the documents which are already exhibited in the evidence of PW-1:
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(i) The Agreements dated 05.03.2019 as Ex.PW1/C and Ex.PW1/D;
(ii) The Agreements dated 30.07.2019 as Ex.PW1/E and Ex.PW1/F. He was duly cross examined on behalf of defendant.
11.3 Summoned witness Sh. Hasan Mohd., Senior APO BSES is examined as PW-4 who brought the summoned record i.e. copies of the bills dated 11.04.2019, 04.04.2020, 26.04.2021, 13.04.2022 and 12.04.2023 Ex.PW4/1 (colly) (5 sheets). He stated that as per bills Ex.PW4/1 (colly) security amount deposited against CA No. 151488421 was Rs.1,14,000/- and on the said amount interest is paid annually as per regulations. Despite opportunity been given, the witness has not been cross examined.
11.4 Another summoned witness Sh. Deepak Rawat., Junior Secretarial Assistant from Department of Trade and Taxes examined as PW5 has brought the summoned record i.e. certified true copy of the transaction GSTR - 1 and GSTR - 3B of the Financial year 2019 - 2020, 2020 - 2021 and 2021 - 2022 pertaining to M/s. A.S. Enterprises (GSTIN No. 07AASPK0382K1ZB) Ex.PW5/2 (colly) and the bills raised in the name of defendant reflecting in Form GSTR - 1 and the GST paid by the owner of the A.S. Enterprises reflecting at point B to B Ex.PW5/2 (colly).
Thereafter, PE was closed on the statement of plaintiff.
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12. In rebuttal, defendant has examined himself as DW-1 and tendered his evidence by way of affidavit on 26.07.2024 which is Ex.DW1/1 and has relied upon the following documents:
1. Copy of sale deed dated 28.05.2013 as Ex.DW1/A(colly);
2. Certified copy of CS (Comm) No.408/2020 as Ex.DW1/B(colly).
12.1 Summoned witness Sh. Dinesh Kumar examined as DW2 brought the record of deposit and details of GST i.e. GST return, GSTR-1, GSTR-3B for the financial year 2019-2020, 2020-2021, 2021-2022 and 2022-2023 of the proprietorship firm namely M/s Vardhman Enterprises, owned by Sh. Rohit Jain bearing GST No.07ASVPJ6194P2ZJ along with certificate u/s 65B of the Indian Evidence Act. The GSTR-3B of financial year 2022-2023 as Ex.DW2/1(colly), GSTR-1 of the financial year 2022-2023 as Ex.DW2/2 (colly) , GSTR-3B of the financial year 2021-2022 as Ex.DW2/3 (colly), GSTR-1 of the financial year 2021-2022 as Ex.DW2/4 (colly), GSTR-3B of the financial year 2020-2021 as Ex.DW2/5 (colly), GSTR-1 of the financial year 2020-2021 as Ex.DW2/6 (colly), GSTR-3B of the financial year 2019-2020 as Ex.DW2/7 (colly) and GSTR-1 of the financial year 2019-2020 as Ex.DW2/8 (colly) .
12.2 The forwarding letter issued by the office of the VATO/GSTO (Ward-77), Department of Trade and Taxes, Government of NCT of Delhi, dated 13.08.2024 is Ex.DW2/9 and certificate u/s 65B of the Indian Evidence Act as Ex.DW2/10. He also brought the record i.e. form no. GSTR-2A and GSTR-2B from the year 2019-20, 2020-21, 2021-22 and Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.15 of 53 2022-23 along with Certificate u/s 65B of the Indian Evidence Act Ex.DW2/11(Colly).
12.3 A summoned witness Sh. Rajesh Kumar, S/o Sh.
S.R. Sharma is examined as DW-3. He stated that document already exhibited as Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F have not been notarised by him and the seal put on the said documents and signature on the documents are not of him. Thereafter, DE was closed on the statement of defendant.
13. Ld. Counsel for the defendant has relied upon the following judicial precedents:
M/s Paul Rubber Industries Private Ltd. vs. Amit Chandra Mitra and Anr. decided by Hon'ble SC (2023 INSC 854) on 25.09.2023 Sevoke Properties Ltd. vs. West Bengal State Electricity Distribution Company Ltd. AIR 2019 SUPREME COURT 2664 G. Mackertich vs. Steuart and Co. Ltd. (1971) 3 SCC 39 Messrs Shree Nursing Timber Works and Messrs Shree Nursing Electric Stores vs. Sm. Amala Bala Dassi 1973 CWN 522 K.B. Saha and Sons Private Ltd. vs. Development Consul- tant Ltd. (2008) 8 SCC 564 C.M. Abdul Azeez vs P. Manoj RC Rev No. 61/2015 de- cided by Hon'ble Ker HC on 12.04.2017 Chandrakala vs. Soman 2004 (3) KLT 432 Punjab and Sind Bank vs Rajesh Kumar, CS (Comm) No. 619/2022 decided by ld. District Judge (Commercial Court Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.16 of 53
-02), Shahdara District, Karkardooma District court on 30.09.2024 A.S. Papayya Satry and Ors. vs. Government of A.P. and Ors. decided by SC on 07.03.2007 Lazarus Estates Ltd. vs. Beasley (1956) 1 All ER 341 Indian Bank vs Satyam Fibres (India) Pvt. Ltd. (1996) 5 SCC 550 Avinash Kumar Chauhan vs. Vijay Krishna Mishra SLP (Civil) No. 8651 of 2007 AIR 2009 SUPREME COURT 1489 Satish Chand Makhan and Ors. vs. Govardhan Das Byas and Ors. AIR 1984 SC 143
14. On the other hand, Ld. Counsel for the plaintiff has relied upon following cases (which are also relied upon by the defendant):
Chandrakala vs Soman 2004 (3) KLT 432 M/s Paul Rubber Industries Private Ltd. vs. Amit Chandra Mitra and Anr. SLP Civil No. 15774/2022
15. The court has heard ld. counsel for the plaintiff as well as ld. counsel for the defendant and have also gone through the records of the case and the written arguments filed by both the parties. The findings on the issues are as under :
ISSUE No.(i). Whether the plaintiff is entitled for the decree of Rs.18,38,646/- as arrears of rent? OPP
16. The onus to prove the issue is upon the plaintiff. The suit is commercial in nature and squarely falls within the Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.17 of 53 purview of Section 2 (1) (C) of Commercial Courts Act as the tenanted property was let out for commercial purposes and plaintiff has also duly complied with mandatory provision of Pre-Institution Mediation and Conciliation as provided in Section 12 A of Commercial Courts Act, as per the Non Starter Report dated 04.10.2021 Ex.PW1/B.
17. As far as territorial jurisdiction is concerned, both plaintiff and defendant are residents as well as work for gain in Shahdara District and the suit property is also situated within Shahdara District and therefore, the present court has territorial jurisdiction to decide the present case. The, present court also has the pecuniary jurisdiction over the matter since the suit amount claimed by the plaintiff is more than the specified value of Rs.3 lacs of the Commercial Courts.
18. Since the suit filed by the plaintiff is for possession and arrears of rent and the limitation period for such suit is three years from the date when the rent is due. As per plaintiff, the rent is due from April 2020. The Non-Starter Report is dated 04.10.2021 (Ex.PW1/B) and the present suit is instituted on 25.11.2021 is filed within the prescribed period of limitation.
19. The case of the plaintiff, in a nutshell, is that the plaintiff is the landlord of the suit property and had initially entered into lease agreement with the defendant and his erstwhile partner namely, Sh. Vikash Jain by way of execution of two agreements dated 05.03.2019 for two years at monthly rent of Rs. 75,000/-. The above said rent was to be paid in two modes i.e. Rs. 60,000/- from account of defendant and Rs. 15,000 from Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.18 of 53 the account of firm of the defendant.
20. However, as per plaintiff, the defendant only paid GST for rent @ Rs. 15,000/- per month and had not paid GST for Rs. 60,000/- per month since 05.03.2019. Thereafter, the partnership between the defendant and Mr. Vikash Jain was dissolved and it was agreed that defendant will continue to pay the rent as mentioned above. Consequently, two fresh agreements dated 30.07.2019 containing same terms as per the agreements dated 05.03.2019, were executed.
21. As per plaintiff, GST invoices were issued for two rent agreements i.e. Rs. 15,000 and Rs. 60,000/- and the defendant paid the rent of Rs. 75,000/- but use to pay GST only on invoices for rent @ Rs. 15,000/- from July 2019 to March 2020. As per the plaintiff, the defendant had paid the rent till March 2020 and since then he has not paid the rent.
22. As per plaintiff, the tenancy of the defendant was terminated by sending a legal notice dated 04.08.2020 and since 07.09.2020 the defendant is in unauthorized and unlawful possession of the suit property. Thus, the plaintiff has filed the present suit against the defendant.
23. Defendant has admitted that he was the tenant and even during his cross examination, he has admitted that since July, 2019, he was the liable to pay the entire rent amount and therefore, fresh rent agreements were executed. In such circumstances, Sh. Vikas Jain is not a necessary party to the present suit and this objection of the defendant only seems to have been taken for the Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.19 of 53 sake of it. The suit is, thus, not bad for non-joinder of any necessary party. Similarly, when the relationship between the landlordship and tenant is admitted, even if the co-owner of the tenanted premises i.e. Sh. Varun Kejriwal is not one of the plaintiff and the same is inconsequential, as even the co-owner Sh. Varun Kejriwal is not a necessary party to the present suit. Also, the firms of both the plaintiff and defendant are sole proprietorship firm which are not legal entity and therefore, the suit was not required to be instituted in the name of the sole proprietorship firm which is not a juristic entity.
24. The defendant in his amended WS has taken the defence that the suit of the plaintiff proceeds on the basis of the lease deed dated 30.07.2019 which is for period of two years, the same being unregistered and therefore, it suffers from the want of registration as per Section 17 of The Registration Act, 1908 and therefore, suit is liable to be dismissed.
25. Further, the defendant has taken the stand that the plaintiff has obtained the signatures of the defendant on two copies of agreement (one for the plaintiff and other for the defendant) but later on, the plaintiff had forged and fabricated the agreement by mentioning the rent of the premises as Rs. 75,000/- instead of Rs. 15,000/-. The defendant has stated that the rent fixed for the premises was only @ Rs. 15,000/- and the plaintiff has filed the suit on the basis of the false and fabricated documents. Rest of the contents of the plaint are denied by the defendant and are not repeated here for sake of brevity.
26. This plea of the defendant that two copies of the rent Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.20 of 53 agreement, one for him and one for plaintiff, seems to be clearly an afterthought, in as much as, nowhere the defendant has stated that he had asked for his copy from the plaintiff and despite request of the defendant, the plaintiff had not handed over his alleged copy of the rent agreement to him. If two copies were made, one for the plaintiff and one for the defendant, then the possession of the other/second copy should be with the defendant or in alternative, the defendant should have atleast stated that he had asked for his copy from the plaintiff. It is pertinent to mention here that in first affidavit of admission/denial, the defendant has admitted the correctness as well as execution of all the rent agreements, but, later on, the defendant amended his WS and affidavit of admission/denial and denied even the existence and execution as well as correctness of the rent agreements. However, he was not permitted to withdraw his admission regarding his signature on the said rent agreement as revealed from order dated 11.12.2023. It was also observed in the said order that defendant has admitted that there was two different tenancy regarding which two different rent agreements were executed and therefore, now the defendant cannot be permitted to say that only one rent agreement was executed, as the defendant in his earlier WS has clearly stated that there are two separate tenancy vide two separate rent agreements.
27. Thus, from the pleadings of the parties, the admitted position is that the defendant was a tenant of the plaintiff and that the lease deed dated 05.03.2019 is no longer in question and the suit revolves around the two fresh agreements dated 30.07.2019.
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.21 of 53
28. The defendant has also contended that the signatures of the defendant was obtained by fraud on rent agreements which provide for the rent of Rs. 75,000/- per month. The onus to prove the alleged fraud was upon the defendant. In his cross examination, the defendant has deposed as follows:
"Q. I put it to that you have mentioned in your WS that a forgery was being committed in respect of the rent agreement amounting to Rs.75,000/-. Can you explain, what kind of forgery was being committed?
A. I admit my signature on the agreement dated 05.03.2019 and 30.07.2019, but I do not admit the content of these agreements, this was the forgery being committed against me as to how the amount Rs.75,000/- is mentioned in agreement dated 05.03.2019 and 30.07.2019."
29. The defendant has examined DW-3 Sh. Rajesh Kumar, who is stated to be a notary. The defendant has examined him in order to prove that rent agreements dated 05.03.2019 and 30.07.2019 for rent @ Rs. 75,000/- per month were not properly notarized. DW-3 in his Examination in chief has stated that rent agreements Ex. PW-1/C, Ex. PW-1/D, Ex. PW-1/E and Ex. PW-1/F have not been notarized by him. Thus, he has discarded notarization of all the rent agreements involved in this suit. The relevant part of his Examination in chief is as follows:
"Document already Ex.PW1/C, Ex.PW1/D, Ex.PW1/E and Ex.PW1/F have not been Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.22 of 53 notarised by me. The seal put on the above documents and signature on the documents are not mine."
30. In his Examination, DW-3 has deposed the manner in which he used to notarize the documents. The relevant part of the said examination is as follows:
"Whenever a document is produced for attestation before me, I do not see the contents of the document, however, I get the signature on the document before me after verifying the ID proof of the parties. Thereafter, I paste photographs of the parties on my Notary Register and also obtain the signature of parties on the Notary Register. Thereafter, I put the entry number mentioned in the Notary Register on the document which has been notarised by me and also mention the year and date on the documents."
31. In his testimony, he has stated that he used to notarize the documents himself and that he has never notarized these documents. However, this testimony of DW-3 is inconsistent with the stand of the defendant where the defendant has admitted the rent agreements for rent @ Rs. 15,000/- i.e. Exhibit PW-1/C and Ex. PW-1/E. Thus, it can not be understood that how come the defendant has admitted the two documents when the notary i.e. DW-3 has outrightly rejected the fact of notarising any of the rent agreements. Thus the testimony of the Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.23 of 53 DW-3 can not be considered sufficient to discharge the burden on the defendant to prove the alleged forgery or fraud.
32. As per the testimony of the defendant the defendant has admitted the signatures on the rent agreement. The relevant part of the cross examination of the defendant is as follows:
"At this stage, the document Ex.PW1/D is shown to the witness and after seeing the document witness admit his photo and his signature at point A. Further, the witness says that "I do not know whose signature is at points B, C, D, E and F".
At this stage, the document Ex.PW1/C is shown to the witness and after seeing the same witness says that "I do not know whose photo and signature is at point A". Further says "I do not remember whether the signature at points B, C, D, E, F is mine or not". Witness has again perused the signatures carefully and said, they are mine.
I cannot identify the signature of my father as I have never seen him signing any document.
Court observation: Witness is being evasive in his answers.
At this stage, the document Ex.PW1/E is shown to the witness and after seeing the same witness identified his photo and his signature at point A, B, C, D, E, F and G. Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.24 of 53 At this stage, the document Ex.PW1/F is shown to the witness and after seeing the same witness identified his photo and his signature at point A, B, C, D, E and F. It is wrong to suggest that I am deliberately not identifying my signature at points B, C, D, E and F on the documents exhibited as Ex.PW1/D."
33. It is a settled law that if the defendant pleads fraud or forgery being committed against him, the burden of proving the same is not to the extent of preponderance of probabilities. The defendant has to adduce cogent evidences to prove the same.
34. In the case of Union of India vs M/S Chaturbhai M. Patel & Co. And Vice Versa 1976 SCC (1) 747, Hon'ble SC has held that fraud has to be established beyond reasonable doubt. It was held as under:
"The High Court has carefully considered the various circumstances relied upon by the appellant and has held that they are not at all conclusive to prove the case of fraud. It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt; per Lord Atkin in A. L. N. Narayanan Chettyar v. Official Assignee, High Court Rangoon. However suspicious may be the circumstances, Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.25 of 53 however strange the coincidences, and however grave the doubts, suspicion alone can never take the place of proof. In our normal life we are sometimes faced with unexplainable phenomenon and strange coincidences, for, as it is said, truth is stronger than fiction. In these circumstances, therefore, after going through the judgment of the High Court we are satisfied that the appellant has not been able to make out a case of fraud as found by the High Court."
35. In the present case, the defendant has not produced cogent evidences to prove the element of fraud and forgery being committed. Thus, the contention of the defendant that fraud or forgery is being committed is not sustainable.
36. The counsel for the defendant has further argued that since the lease deed dated 30.07.2019 was for period of 2 years commencing from 04.03.2019 to 03.03.2021 and thus, it is required to be registered as per Registration Act. He has referred to section 17 and section 49 of the Registration Act to argue that the impugned lease deed can not be taken into evidence and can only be used for collateral purpose. In this regard, ld. Counsel for the defendant has relied upon case laws as stated above. These cases are discussed hereinbelow.
37. In the case of Sevoke Properties Ltd. vs. West Bengal State Electricity Distribution Company Ltd. SLP Civil Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.26 of 53 No. 3873 of 2019, the Hon'ble SC referred to sections 17 and 49 of The Registration Act and held that if the lease (of one year or upwards) is unregistered, then the contents of the instrument i.e. lease are inadmissible in evidence. It was held that since the lease was unregistered, the contents of the lease would be inadmissible for the purpose of determining the terms of the contract between the parties and the only purpose for which it could be looked at, as per section 17 and 49 of The Registration Act, is for assessing the nature and character of possession of the respondent i.e. tenant.
38. In the case of Singer India Ltd. vs. Amita Gupta 88 (2000) DLT 186, Hon'ble Delhi HC was facing with the issue whether defendant (lessee) would get protection of section 53A of The Transfer of Property Act in case of unregistered lease deed. The Hon'ble HC has held that in the facts of the case, when the unregistered lease was for three years, the terms of such lease can not be looked at in evidence. Para 8 of the relevant judgment is as follows:
"8. There is yet another reason to take this view. Here we mention another statutory provision which comes in the way of the appellant namely Section 49 of the Registration Act. As per the provisions of Section 49 of the Registration Act, a document which is compulsorily registrable and is not registered cannot be read into in evidence. Original lease deed executed between the parties is admittedly Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.27 of 53 unregistered. The appellant is relying upon the clause of this very lease deed, which relates to renewal of the lease agreement by offering enhanced rent at the rate of 15 per cent over the original rent. When the lease deed is unregistered the aforesaid term in the lease deed is not admissible in evidence. The appellant cannot rely upon the same and contend that merely by offering enhanced rent after the expiry of original period, lease got extended by a period of three years. Accepting the contention of the appellant would amount to ignoring the provisions of Section 49 of the Registration Act. In fact by claiming renewal for another period of three years, appellant is trying to invoke the aforesaid term of unregistered lease. This is not permissible. Invoking such a term of lease cannot be said to be looking at a lease for collateral purpose. Such a case cannot be brought under the proviso to Section 49."
39. In the case of Chandrakala vs Soman 2004 (3) KLT 432, it is provided that unregistered lease deed can be looked upon only for collateral purposes. Para 5 of the said judgement being relevant is as follows:
"...Under Section 49 of the Registration Act no document requiring registration under Section 17 or by any provision of the Transfer Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.28 of 53 of Property Act is to affect any immovable property comprised therein or to be received as evidence of any transaction affecting such property unless it is registered. An unregistered document cannot be admissible in evidence to prove its terms, though it can be put in evidence for collateral purpose. The term of lease, claim for enhanced rent are not collateral purpose. Rate of rent is an important ingredient of the rental agreement. If the landlady wanted to create any right in her favour for revision of rent after a period of two years the same could be done only through a registered document. Unregistered lease deed cannot be pressed into service to create any right for revision of rent.
Consequence of non-registration of a document has been dealt with in Section 49 of the Registration Act. Section 49 bars reception in evidence of document or proceeding which is required to be registered under Section 17 of the Registration Act but not registered. Unregistered lease deed could at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provisions which are collateral to the principal transaction....."
40. Ld. Counsel for the defendant has relied upon C.M. Abdul Azeez vs. P. Manoj RC Rev No. 61/2015 decided by Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.29 of 53 Hon'ble Ker HC on 12.04.2017. In this case, it was held that rate of rent is an important ingredient of rental agreement. An unregistered lease deed cannot be looked into to create any right for revision of rent. Para 9 and 11 of the judgement is as follows:
"9. Section 17 (1) (e) of the Registration Act, 1908 provides that lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent is to be compulsorily registered. Section 49 of the Act XVI of 1908 speaks of the effect of non-registration of documents required to be registered. It says that no document required by Section 17 of the Act to be registered or by any provision of Act 4 of 1882 to be registered shall affect any immovable property comprised therein or confer any power to adopt or be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. The proviso to the section provides for receiving as evidence of a contract in a suit for specific performance under Chapter II of Act 3 of 1877 or as evidence of any collateral transaction not required to be effected by a registered instrument. .....
11.The observations in Chandrakala squarely apply to the facts of the instant case as well. Lease of immovable property reserving Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.30 of 53 yearly rent can only be by a registered document. The rate of rent is an important ingredient of the rental agreement. An unregistered lease deed cannot be pressed into service to create any right for revision of rent. An unregistered lease deed could at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provisions which are collateral to the principal transaction. If the revision petitioner wanted a revision of rent, the remedy available to him is to approach the Rent Control Court for fixation of fair rent. We respectfully concur with the view in Chandrakala (supra)."
41. In the case of M/s Paul Rubber Industries Private Ltd. vs. Amit Chandra Mitra and Anr. SLP Civil No. 15774/2022 , Hon'ble SC has held that terms of the unregistered lease deed can be looked into only for the purposes of collateral purpose for determining the nature of the possession and not for others. As the plaintiff is also relying upon the said judgment, the same is discussed in detail in the later part of judgment.
42. In the case of Satish Chand Makhan and Ors. vs. Govardhan Das Byas and Ors. AIR 1984 SC 143, Hon'ble SC has discussed the implications of unregistered lease deed and held that unregistered lease deed cannot be taken in evidence and has held that in case of unregistered lease deed, tenancy would be Month to month and tenant would be having status of tenant by Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.31 of 53 Holding over. Para 7 of the said judgement is as follows:
"7. We have no doubt in our mind that the defendants were tenants holding over under Section 116 of the Transfer of Property Act and therefore it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month: Mulla's Transfer of Property Act, 5th Edn., p. 762. It was definitely wrong on the part of the High Court to have proceeded on the assumption that the lease was for a specific term of nine years and therefore the lease stood determined by efflux of time under Section 111(a) of the Transfer of Property Act, and that the defendants were tenants at sufferance and no quit notice was required. It is no doubt true that where the lease is for a definite term, it stands determined by efflux of time under Section 111(a) of the Transfer of Property Act, and the erstwhile tenant becomes a tenant at sufferance, but that is not the case here. The legal position is not contested and it was fairly conceded that the defendants were holding over under Section 116 of the Transfer of Property Act as tenants from Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.32 of 53 month to month, and further that no notice as required by Section 106 was served on them."
43. In K.B. Saha and Sons Pvt. Ltd. vs Development Consultant Limited (2008) 8 SCC 564, Hon'ble SC laid down following guidelines with respect to application of section 49 Registration Act:
"21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :-
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.33 of 53 be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
44. On the other hand, plaintiff has relied upon Chandrakala vs Soman 2004 (3) KLT 432 and M/s Paul Rubber Industries Private Ltd. vs. Amit Chandra Mitra and Anr. SLP Civil No. 15774/2022. The case of Chandrakala vs. Soman (supra) has already been discussed above and therefore, is not being repeated here for the sake of brevity.
45. In the case of M/s Paul Rubber Industries Pvt. Ltd. vs. Amit Chand Mitra and Anr. SLP Civil No. 15774/2022 , Hon'ble SC was dealing with the question that to what extent can court take cognizance of a clause relating to purpose for which a lease is granted contained in an unregistered deed of lease for immovable property stipulating period of five years.
46. Ld. Counsel for the plaintiff has relied upon para 15 of the said judgement to submit that in absence of registered instrument, the courts can determine the factum of tenancy from other evidence on record as well as the purpose of tenancy. Para 15 of the said judgement is as follows:
"In Park Street Properties Private Limited
-vs- Dipak Kumar Singh and Another [(2016) 9 SCC 268], which was cited in the case of Sevoke Properties (supra), it was observed that in the absence of a registered instrument, Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.34 of 53 the courts are not precluded from determining the factum of tenancy from other evidence on record as well as the purpose of tenancy. In this case, factum of creation of tenancy has been established. But the purpose of tenancy, so as to attract the six months' notice period under Section 106 of the 1882 Act cannot be established by such evidence as in such a situation, registration of the deed would have been mandatory. The onus would be on the defendant to establish the fact that manufacturing activity was being carried on from the demised premises. A mere statement by the DW-1 to which we have referred earlier or the purpose of lease as specified in the lease agreement would not be sufficient to demonstrate the purpose of lease to be for manufacturing. This could be proved by explaining what kind of work was being carried on in the factory shed. In such a situation also, the registration of the deed would have been necessary. In absence of such registration, tenancy would have been of "month to month" character. For these reasons, we do not think the High Court erred in law in dismissing the defendant's appeal. The present appeal shall stand dismissed on the same rationale."
47. Thus, from the above discussion, the essence which Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.35 of 53 can be culled out is that lease of immovable property for any term of one year or upwards are compulsorily registrable and such documents which are not registered cannot be taken into evidence as per section 49 of The Registration Act. However, the proviso to section 49 of the Act permits that such documents can be referred to for collateral purposes.
48. Also, from the cases as referred above it is clear that the term of lease, claim for enhanced rent are not collateral purpose. Rate of rent is an important ingredient of the rental agreement and therefore, it cannot be said to be a collateral purpose and thus, an unregistered lease deed cannot be looked into for purposes of rate of rent. (Though, in Chandrakala's case, rate of rent was held to be collateral to the principal transaction and it was observed that unregistered lease deed can be looked into for the purposes of determining rate of rent). Thus, the unregistered lease deed could only be looked for collateral purposes such as commencement of possession and other similar transaction which are independent of, or divisible from, the transaction to effect which the law required registration.
49. Further the ld. Counsel for the defendant has relied upon the case of Avinash Kumar Chauhan vs. Vijay Krishna Mishra SLP (Civil) No. 8651 of 2007 and relied upon Section 35 of The Stamp Act to contend that a document which was to be charged with stamp duty but the said stamp duty has not been paid, such documents cannot be referred to in evidence for any purpose. Para 21 of the said judgement is as follows:
"21. Section 35 of the Act, however, rules out Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.36 of 53 applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes."
50. Thus, on the basis of the above said judgement of Hon'ble SC, it can be said that both the said lease deeds dated 30.07.2019 can not be looked into for evidence for the enhancement of rent etc. However, it is a settled law that when the document is not admissible in evidence for any purpose, the court can look into other materials available on record, including the testimony of the witnesses and other documentary evidences, to decide the contention of the parties. (M/s Paul Rubber Industries Pvt. Ltd. vs. Amit Chand Mitra and Anr. SLP Civil No. 15774/2022)
51. Thus, on the basis of the above discussed case, it is settled that as per Section 17 and 49 of the Registration Act, a lease for period greater than 11 months has to be registered and an unregistered lease deed can only be looked into for collateral purposes such as nature and character of the possession and the commencement of the possession. Since the rate of rent, revision of rent and term of lease are essential ingredients of a lease deed, unregistered lease can not be looked into for determining them. However, the same can be determined on the basis of other evidences and admissions of the parties available on record.
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.37 of 53
52. Now dealing with the merits of the case. The plaintiff has stated that there were two agreements executed between the plaintiff and defendant on 30.07.2019. One agreement provided for the rent @ Rs. 15,000/- per month while other provided for the rent @ Rs. 75,000/- per month. However, the plaintiff in his plaint and evidence by way of affidavit has maintained a stand that rent was fixed for Rs. 75,000/- per month payable in two modes i.e. Rs. 60,000/- + Rs. 15,000/-. It is also stated by the plaintiff that he used to raise invoices also of Rs. 15,000/-+60,000/- per month and that the defendant had paid GST only on invoices of Rs. 15,000/- from July 2019 to March 2020 but has always sought more time to pay GST amount to plaintiff on invoice of Rs. 60,000/- but never paid it.
53. As per the evidence affidavit of PW-2/Sh. Vipin Jain, two rent agreements were executed between PW-2, Defendant and Plaintiff. One was for Rs. 15,000 per month and another one was for Rs. 75,000/-. It is stated that the plaintiff agreed to take the rent by way of two different modes i.e. Rs. 60,000/- to be paid from the account of the defendant and Rs. 15,000/- to be paid from the account of the partnership firm.
54. It is pertinent to mention herein that PW-2 Sh. Vikash Jain is the same person who was earlier the partner of the defendant and who along with defendant had taken on rent, the same suit premises from the plaintiff in March, 2019, but, after dispute arose between the two of them, their partnership was dissolved and the entire suit premises was taken on rent by the defendant and therefore, fresh rent agreements were executed. In Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.38 of 53 such circumstances, his testimony is relevant. He has clearly stated that the rent of the suit premises was Rs.75,000/- only, which was payable in two different modes i.e. Rs.15,000/- from the account of partnership firm and Rs.60,000/- from the account of the defendant. Nothing has come on record during his cross examination to establish that rent was Rs.15,000/- only and not Rs.75,000/-. The entire cross examination is regarding execution of the rent agreements Ex.PW1/C to Ex.PW1/F. No suggestion has been given to PW2 during cross examination that the rent was only Rs.15,000/- and not Rs.75,000/-.
55. Even PW-3 who is the property dealer and the mediator between the plaintiff and defendant has in his affidavit of evidence stated that on 05.03.2019 two rent agreements were executed, one for amount of Rs.15,000/- and another for Rs. 75,000/- per month. With regard to rent agreement dated 30.07.2019, PW-3 has deposed that the rent agreements were executed in counter parts and that no rent agreement was manipulated by mentioning the amount as Rs. 75,000/- per month. He has also clearly stated that the defendant had agreed to take the basement and ground floor on the monthly rent of Rs.75,000/- + GST with enhancement of rent after every 11 months. Though, the rent agreement has not been registered and also in view of the testimony of DW-3, who is the Public Notary who has deposed that the documents Ex.PW-1/C, Ex.PW-1/D, Ex.PW-1/E and Ex.PW-1/F have not been notarized by him, the said documents cannot taken into account, but, PW-2 and PW-3 are very relevant and independent witnesses, in as much as, PW-2 was one of the partner of the defendant who had taken the suit premises on rent along with defendant in March, 2019 Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.39 of 53 and PW-3 the property dealer, who was also mediator between the plaintiff and the defendant. Nothing has come even during cross examination of PW-3 to suggest that he was not the mediator between the parties.
56. Relevant part of the cross examination of PW-3 with respect to Ex. PW-1/E and Ex. PW-1/F is as follows:
"It is correct that an agreement Ex. PW1/E and Ex. PW1/F in counter parts (two originals) were prepared on 30.07.2019. It is wrong to suggest that agreement Ex. PW-1/E and Ex. PW-1/F were for Rs. 15,000 each. It is wrong to suggest that a Rent Agreement dated 30.07.2019 mentioning amount of Rs.
75,000/- is a manipulated document. It is wrong to suggest that counter part of Rent Agreement dated 30.07.2019 was manipulated by mentioning Rs. 75,000/- per month."
57. The cross examination of PW-2 and PW-3 was on similar lines disputing the rent agreement and their due execution, but, no suggestion has been given even to PW-3 that the rent of the tenanted premises/suit premises agreed was not Rs.75,000/- per month and was only Rs.15,000/- per month. It is also highly unlikely that commercial premises comprising of basement and ground floor of about 107 sq. meter would have fetched a rent of Rs.15,000/- only per month, in the year 2019. Though, the rent agreements cannot be taken into account for the purpose of Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.40 of 53 establishing the rate of rent and enhancement of rent, but, on the basis of the other evidence which has come on record, it is clearly established that the suit premises was given on rent to the defendant at monthly rent of Rs.75,000/- and thus, the rate of rent was Rs.75,000/- per month.
58. The plaintiff in para 20A of his plaint has provided details of the arrears of rent. The perusal of the said table has revealed that the rent computed by the plaintiff is of Rs.78,750/- i.e. Rs.75,000 per month + 5% enhanced rent from April 2020 and it continues till March 2021. From April, 2021, rent is Rs.82,688/- i.e. Rs.78,750/- + 5% enhanced rent upto October, 2021.
59. The defendant in his testimony has admitted that he was solely responsible for the payment of rent of the suit premises and he was also responsible to pay the electricity bill. The relevant part of the cross examination is as follows:
"It is correct that since July, 2019 I had taken over the entire control of M/s Vardhman Enterprises and the premises which was taken on rent from the plaintiff where my manufacturing unit was running. It is also correct that after July, 2019 I was solely responsible to pay the rent of the suit premises. It is correct that I was also solely responsible to pay the entire electricity bill incurred on consumption of the same and same was not included in the monthly rent of Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.41 of 53 the said premises."
60. The defendant has also admitted the fact of letting out the suit property on rent. The relevant part of the cross examination of DW-1 is as follows:
"It is correct that the premises in question was given to me on rent only for two years. It is correct that as per the rent agreement executed between me and plaintiff, I was supposed to vacate the premises latest by 03.03.2021"
61. As far as the term regarding the enhancement of rent is concerned, the plaintiff has claimed the enhancement of 5% on the rent after every 11 months. The relevant part of cross examination of DW-1 is as follows:
"It is correct that as per the rent agreement, I was to pay rent with enhancement of 5% after each and every 11 months. (Vol. I had been paying the rent with enhancement of 5% of the rate of rent). I do not remember whether I had stopped making payment of rent since April, 2021. I do not remember whether I had paid the rent to the plaintiff including the 5% enhancement to the actual rent or not."
62. Since the lease deeds dated 30.07.2019 cannot be taken into evidence, as discussed above, but, on the basis of Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.42 of 53 admission of defendant, it can be held that there was an agreement for enhancement of 5% rent after every 11 months. Even as per written submissions filed by the defendant, the defendant has been paying the enhanced rent, however, the rent has been enhanced in every April and not after 11 months.
63. Now coming to the amount of arrears of rent to which the plaintiff is entitled to. As per plaintiff the defendant has not paid any rent of Rs.60,000/- since April 2020. On the other hand, the defendant has stated that he has paid rent @ Rs. 15,000 per month and has also admitted the rate of enhancement. However, he has not stated the time upto which he has paid the rent. The relevant part of the cross examination of DW-1 is as follows:
"It is correct that as per the rent agreement, I was to pay rent with enhancement of 5% after each and every 11 months. (Vol. I had been paying the rent with enhancement of 5% of the rate of rent). I do not remember whether I had stopped making payment of rent since April, 2021. I do not remember whether I had paid the rent to the plaintiff including the 5% enhancement to the actual rent or not."
64. The defendant has also stated during cross examination that he has handed over the possession/ keys of the said property to the plaintiff in August 2023. The relevant part of the cross examination of the defendant is as follows:
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.43 of 53 "I handed over the keys and possession of the suit property in August, 2023. It is wrong to suggest that I had handed over the key to the plaintiff after filing and during the execution petition before the concerned court or that I had handed over the keys and possession of the premises to the plaintiff on 14.09.2023."
65. However, the testimony of the defendant that the keys were handed over in August 2023 is not correct. It is pertinent to mention here that the plaintiff has filed an execution petition (Ex. Comm 181/2023) in pursuance to order dated 06.07.2023 whereby the suit of the plaintiff was decreed to the extent of possession. Vide order dated 12.10.2023 in Ex. Comm 181/2023, the defendant/JD in execution petition has submitted that he would hand over the key to the plaintiff in the evening. Thus, possession of suit premises was not handed over till 12.10.2023. However, there is no document on record to prove that the keys were handed over on the same day. On the other hand, the plaintiff has made statement on oath that the keys were handed over to him on 15.10.2023. Therefore, in view of above, it can be held that keys were handed over to plaintiff after 12.10.2023 and on 15.10.2023.
66. The defendant has filed copy of one statement of his bank account along with written arguments. However, the bank account statement has not been proved as per law during evidence. Though, the bank account statement was not proved as per law, but, as it is always better to decide the case on merits Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.44 of 53 rather than on technicalities, the clarification was sought from the plaintiff and the plaintiff stated that he has received a payment of Rs.3,29,500/- during the pendency of the suit and thus, the plaintiff has admittedly received this amount of Rs.3,29,500/- after the filing of the suit.
67. The suit was filed in November, 2021 and as per the plaint the defendant has lastly paid the rent till March, 2020 i.e. before the lock down. Thereafter, the defendant has paid an amount of Rs.2,36,250/- as stated in para 2.6 above. The suit premises was given on rent in March, 2019. Though, both the parties are stating that there was an agreement for enhancement of rent @ 5% after every 11 months, but, the table filed by the plaintiff in the plaint reveals that he has claimed enhanced rent from April, 2020 till March, 2021 and thereafter, further enhanced rate @ 5% from April, 2021 and thus, plaintiff is claiming enhancement after 13 months initially and not 11 months and thereafter, after every 12 months. As observed above, even defendant in his written submissions has given a table and as per the said table also, the rent has been enhanced @ 5% per annum in April of every year and not after 11 months as stated by both the parties. As the plaintiff himself is claiming enhancement of rent from April, 2020 @ 5% and thereafter from April, 2021 @ further 5% per annum it is deemed fit that the enhancement of rent is granted to the plaintiff as per his claim in the plaint i.e. enhancement of 5% per annum of rent from April, 2020 till March, 2021 and further enhancement of rent from April, 2021 till March, 2022 and futher enhancement of 5% per annum from April, 2022 to March, 2023 and further 5% per annum from April, 2023 till 15 October, 2023 when the property was vacated. The plaintiff is thus, entitled to arrears of rent @ 78,750 Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.45 of 53 from April, 2020 till March, 2021 and thereafter @ Rs.82,688/- per month from April, 2021 till March, 2022, thereafter @ Rs.86,823/- per month from April, 2022 till March, 2023, thereafter @ Rs.91,165 per month from April, 2023 till 15th October, 2023, when the property was vacated.
68. Plaintiff is also claimed GST on the above said amount. Plaintiff has not filed any proof that he has paid the GST as claimed by him. He has only stated that whenever rent along with GST was paid, he had paid the same. As it revealed from the testimony of the party, it seems that plaintiff has deposited the GST with the concerned department only when the GST amount has been paid along with rent by the defendant to the plaintiff. As per GSTR-2A of the defendnat filed, the GST amount was paid till July, 2022 on the rent calculated @ Rs.15,000/- + 5% enhancement in April every year and not thereafter, the plaintiff thus, is not entitled to claim the amount of GST, which he has not deposited with the concerned GST department.
69. Plaintiff is, thus, held entitled to arrears of rent @ 78,750/- per month from April, 2020 till March, 2021 and thereafter @ Rs.82,688/- (rounded off) per month from April, 2021 till March, 2022, thereafter @ Rs.86,823/- (rounded off) per month from April, 2022 till March, 2023, thereafter @ Rs.91,165/- (rounded off) per month from April, 2023 till 15th October, 2023 and from the total of this amount, the amount of Rs.2,36,250 + Rs.3,29,500/- is liable to be adjusted as this payment is already received by the plaintiff.
Issue no. (i) is decided accordingly.
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.46 of 53 ISSUE No.(ii). Whether the plaintiff is entitled to any mesne profit, if so, at what rate and for what period? OPP
70. The onus of proving this issue was upon the plaintiff. Plaintiff is claiming damages/mesne profits @ Rs.5,000/- per day in addition to the rent / license fees @ Rs.75,000/- per month alongwith 5% enhancement in rate of rent being an illegal and unauthorized occupant of the premises/ property in question till the date of vacating and giving the peaceful possession of the suit property. In the case of Bijay Kumar Manish Kumar HUF vs. Ashwin Bhanulal Desai 2024 INSC 445 (decided by Hon'ble SC on 17.05.2024), the Hon'ble SC while referring to Indian Oil Corporation Ltd. v. Sudera Realty Private Limited 2022 SCC OnLine 1161 has held as follows:
"19. While the above-stated position is generally accepted, it is also within the bounds of law, that a tenant who once entered the property in question lawfully, continues in possession after his right to do so stands extinguished, is liable to compensate the landlord for such time period after the right of occupancy expires. In this regard, we may refer to Indian Oil Corporation Ltd. v. Sudera Realty Private Limited, wherein this Court in para 64 observed as under:
"64. A tenant continuing in possession after the expiry of the lease may be treated as a tenant at sufferance, which status is a shade higher than that of a mere trespasser, as in the case of a tenant continuing after the expiry of the lease, Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.47 of 53 his original entry was lawful. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits.""
71. It was further observed by the Hon'ble SC as under:
"20. It is to be noted that the Court in Sudera Realty (supra) observed that mesne profits become payable on continuation of possession after 'expiry' of lease. In our considered view, the effect of the words 'determination', 'expiry', 'forfeiture' and 'termination' would, subject to the facts applicable, be similar, i.e., when any of these three words are applied to a lease, henceforth, the rights of the lessee/tenant stand extinguished or in certain cases metamorphosed into weaker iteration of their former selves. Illustratively, Burton's Legal Thesaurus 3rd Edn. suggests the following words as being similar to 'expire' - cease, come to an end; 'determine' is similar to - come to a conclusion, bring to an end; 'forfeiture' is similar to -
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.48 of 53 deprivation/destruction of a right, divestiture of property; and 'terminate' is similar to - bring to an end, cease, conclude. Therefore, in any of these situations, mesne profit would be payable"
Thus, what can be culled out from the above referred case is that the landlord is entitled to get mesne profit from the landlord in case the tenant continues in the possession after the lease has been determined/ forfeited/ expired.
72. As per Section 111(a) of The Transfer of Property Act, 1882, a lease is said to be determined when the time limited by the lease has been expired. The relevant provision is as follows:
"A lease of immoveable property determines--
(a)by efflux of the time limited thereby;"
73. In the facts of the present case, the plaintiff has claimed the mesne profit till the final eviction of the premises with pendente lite and future interest. However, the plaintiff has not led any evidence to prove the prevailing rate of market rent in the vicinity where the suit property is situated. Also, though, the tenancy of the defendant was treated as month to month as the lease deed(s) was not registered, but, the fact remains that the period of tenancy was for 2 years and thus, the plaintiff vide lease deed(s) had agreed to let out the suit premises for a period of 2 years on a monthly rent of Rs.75,000/- per month with enhancement of rent @ 5% per annum.
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.49 of 53
74. In the present case, the period of lease expired on 03.03.2021. Moreover an order under Order XII Rule 6 CPC was passed on 06.07.2023 whereby the plaintiff was granted the possession of the suit premises. The possession of the suit premises was handed over after 12.10.2023 on 15.10.2023.
75. The plaintiff has not led any evidence to prove that the rent in the prevailing area was more than the rent agreed and, since it is already directed the plaintiff is entitled to arrears of the rent at the enhanced rate of 5% increase annually + Rs.75,000/- per month as decided above, the plaintiff is not entitled to mesne profits @ Rs.5,000/- per day as claimed.
Issue no. (ii) is decided accordingly.
ISSUE No.(iii) Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP
76. The plaintiff in his prayer para has prayed for interest @ 15% p.a. as pendente lite and future interest. However, the plaintiff has not led any evidence on record to show that this was agreed rate of interest between the parties. Moreover, it is a settled law that the plaintiff is entitled to interest at reasonable rate. In the facts of the present case, the plaintiff is awarded interest @ 9% p.a. on the amount of arrears of rent from the month in which the arrears of rent had accrued, till its realisation, in the interest of justice.
Thus, issue no. (iii) is decided in favour of plaintiff and is accordingly decided.
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.50 of 53 ISSUE No.(iv) Whether the plaintiff is entitled to recover interest incurred upon the fixed deposit made to BSES and adjusted while issuing the bills/invoices against consumption of electricity charges as prayed for and if so, to what rate and to which period? OPP
77. Plaintiff has stated that he has made one time fixed payment while applying for electricity connection and interest on the said account was adjusted by the BSES Yamuna Power Limited by raising invoices of consumption/usage charges for the 2020 - 2021 for an amount of Rs.8900/- and for the year 2021 - 2022 is Rs.8,850/- which comes to Rs.17,750/- and for which the defendant had taken the illegal advantage and has not paid to the plaintiff. PW-4 in this respect was examined who proved the copies of bills dated 11.04.2019, 04.04.2020, 26.04.2021, 13.04.2022 and 12.04.2023 as Ex.PW4/1 (colly). He further deposed that security amount of Rs.1,14,000/- was deposited against CA No. 151488421 and on the said amount interest is paid annually. As per Ex.PW4/1 an amount of Rs.7,570/- was adjusted in bill of April, 2019, however, the same is for the year interest accrued for the financial year 2018 - 2019. The suit premises was taken in March, 2019 and therefore, the plaintiff is not entitled to this amount. Further, an amount of Rs.9,773/- was the interest accrued for the financial year 2019- 2020, as per the bill for the month with due date 13.05.2020 and the plaintiff is entitled to this amount. Further, an amount of Rs.8,835/- was adjusted as per the interest accrued in the financial year 2020-2021, as per the bill with due date 10.05.2021; an amount of Rs.7,980/- was the interest accured for the financial year 2021 - 2022, as per the bill with due date 28.04.2022; an amount of Rs.7,980/- was the interest accrued for Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.51 of 53 the financial year 2022-2023; as per the bill with due date 27.04.2023, the plaintiff is thus, entitled to this amount of Rs.34,568.7 (i.e. Rs.9,773.70 + Rs.8835/- + Rs.7980 + Rs.7,980/-), as the same was the interest on the security amount deposited by the plaintiff.
Issue is decided accordingly.
ISSUE NO.(vi): Relief.
78. In view of the findings on the issue no.(i) to (v) and the documents proved on record, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant as per the following order:
ORDER (A). Plaintiff is thus, entitled to arrears of rent @ 78,750/- per month from April, 2020 till March, 2021 and thereafter @ Rs.82,688/- (rounded off) per month from April, 2021 till March, 2022, thereafter @ Rs.86,823/- (rounded off) per month from April, 2022 till March, 2023, thereafter @ Rs.91,165/- (rounded off) per month from April, 2023 till 15th October, 2023 and from the total of this amount, the amount of Rs.2,36,250 + Rs.3,29,500/- is liable to be adjusted as this payment is already received by the plaintiff. (B) Plaintiff is further awarded interest @ 9% p.a. on the amount of arrears of rent from the month in which the rent had accrued, till its realisation;
(C) Plaintiff is further entitled to an amount of Rs.34,568.7 towards interest incurred upon the fixed deposit made to BSES. (D). It is further directed that the plaintiff is entitled to the cost of the suit to the extent of the Court Fees and Rs.1 lakh as litigation cost.
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.52 of 53 The plaintiff has paid court fees of Rs.12,700/- for the relief of possession and Rs.20,150/- on the arrears of rent of Rs.18,38,636/- (calculated till October 2021) and interest accrued on fixed charges deposit for installation of electricity connection. At this stage, it is made clear that the decree for the arrears of the rent from November 2021 and remaining amount as granted as per above order shall be executable subject to the deposit of the appropriate court fees.
Decree-sheet be prepared accordingly.
File be consigned to Record Room after due
Digitally signed
by KIRAN
compliance. KIRAN BANSAL
Date:
BANSAL 2025.06.09
16:29:53
+0530
Announced in the open court (Kiran Bansal)
on 09.06.2025 District Judge, Commercial Court-02
Shahdara, Karkardooma
Delhi/ 09.06.2025
Civil Suit (Comm) No. 488/2021 Manish Kejriwal Vs. Rohit Jain Page No.53 of 53