Delhi District Court
M/S Shrishti Properties Pvt. Ltd vs Royal Nepal Airlines Corporation on 22 March, 2010
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL
SENIOR CIVIL JUDGECUMRENT CONTROLLER
PATIALA HOUSE COURTS, NEW DELHI
Case Identification No. 02403C0928542008
Eviction Petition (Old) No.137/03/02
Eviction Petition (New) No.06/08/08
M/s Shrishti Properties Pvt. Ltd.
6, Babar Lane, Bengali Market,
New Delhi110 001
(through its Director
Sh. Pradeep Kumar Singh) .......Petitioner
Versus
Royal Nepal Airlines Corporation,
44, Janpath, New Delhi
(through its Regional Director) .......Respondent
A. Date of institution of
the eviction petition : 07.02.2002
B. Date of conclusion of final
arguments & fixing the
matter for orders : 16/03/2010
C. Date of Judgment : 22/03/2010
D. Final Order : Petition Allowed.
Eviction of respondent
ordered.
Anand Swaroop Aggarwal
SCJCumRC/New Delhi
Eviction Petition (Old) No.137/03/02
Eviction Petition (New) No.06/08/08
1/29
Application for eviction of tenant Under Section 14(1)(a) of the Delhi
Rent Control Act, 1958, as amended up to date.
J U D G M E N T
This eviction petition under section 14(1)(a) of the DRC Act has been filed by the petitioner against the respondent seeking eviction of the respondent from premises No. 44 (GROUND FLOOR PORTION), more specifically shown in the site plan attached Ex.AW1/7, Janpath, New Delhi.
In brief case of the petitioner is that premises was let out to the respondent for 25 years and a lease deed was executed in this regard on 25.07.1976. However, the respondent took the premises on 21.07.1975. The rate of rent is Rs.1000/ p.m. excluding other charges and Rs.1100/ w.e.f. from 01.01.2002. As per petitioner, petitioner is a private limited concern which is incorporated under the Companies Act 1956 and Sh. Pradeep Kumar Singh is one of the present Directors who is well conversant with the facts and circumstances of the case and also duly authorised to sign, verify & file this petition. As alleged, respondent are running their office of Air Lines in the premises.
As per petitioner, the petitioner is the owner of the property bearing No.44, Janpath, New Delhi, as the same has been purchased by the petitioner from its erstwhile owners Sh. Vijay Narain and Sh. Virender Narain Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 2/29 Seth by virtue of a registered Sale Deed which was duly executed in favour of the petitioner on 25.09.1996.
Further, petitioner has alleged that since the date of purchase of the property by the petitioner, the respondent became the tenant under the petitioner and the respondent has neither paid nor tendered the arrears of rent inspite of the repeated requests and demands of the petitioner.
As alleged, the respondent has deposited the rent of the tenanted premises for the month of July 2000 (It should be Aug, 2000) ONLY amounting to Rs.1000/ under section 27 of the DRC Act in DR No. 187/2000 disposed of by Sh. V.K. Bansal, ld. ARC on 04.01.2002.
Petitioner has further alleged that petitioner has served the respondent with a legal notice dated 20.11.2001 through registered A.D. as well as by hand delivery. The notice dated 20.11.2001 was sent through registered post on 24.11.2001 as well as the same was handedover to the official of the respondent which was received by them on 24.11.2001. Through the said notice, respondent was called upon to pay the entire legally recoverable rent and also to handedover the peaceful and vacant possession of the tenanted premises but the respondent inspite of the receipt of the said legal notice has failed to comply the same and hence this eviction petition.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 3/29
2. Respondent has contested this eviction petition by filing a detailed Written Statement of Defence. In the written statement, respondent has taken certain preliminary objections such as the present eviction petition is not maintainable as the respondent is not the defaulter in the matter of payment of rent. As alleged, the respondent had paid the rent for the month of July,2000 to the previous owner/landlord of the premises in question and since the month of August,2000, three persons/companies had started claiming that they are the owner/landlords of the premises in question and the respondent should pay the rent to them. The respondent, thereafter finding no other alternative, filed a petition under section 27 of DRC Act before the Rent Controller, Delhi for depositing the rent for the month of August,2000. In the aforesaid petition, the respondent has made M/s. Shrishti Properties Pvt. Ltd., present petitioner, Jagat Talkies Distributors and Mr. Danchand Bafna as parties to the aforesaid petition. As alleged, the court of Sh. V.K. Bansal, Additional Rent Controller, Delhi vide order dated 04.01.2002 was pleased to direct the respondent to pay the rent since September, 2000 onwards to the present petitioner and in accordance with the order dated 04.01.2002, the respondent sent the rent vide cheque No.317553 dated 31.01.2002 for Rs.17,000/(being the rent for the period from September,2000 to January,2002) vide letter dated 21.01.2002 to the petitioner at 6, Babar Lane, Bengali Market, New Delhi, the address which the petitioner has mentioned in the present petition, but the petitioner, in order to create a false ground for eviction of the respondent, malafidely managed a report from the Postal Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 4/29 Authorities "IS NAAM KI KOI COMPANY NAHI HAI". The respondent thereafter sent the aforesaid closed envelope containing the aforesaid cheque to the petitioner at the other address available with the respondent i.e. E72, Greater KailashI, New Delhi vide their letter dated 05.02.2002 by Registered A.D. As alleged, the respondent has received back the A.D. Card and the respondent had also sent the rent for the month of February 2002 vide letter dated 28.02.2002 and the same has been duly acknowledged.
Further, as per the respondent, the present petition is not maintainable, in as much as the respondent is a foreign sovereign since established by a Statute of his Majesty The King of Nepal. In the absence of consent/ permission of Central Government, no legal proceedings against the respondent are maintainable in view of the prohibition as setout under section 86 of C.P.C. Also as per respondent the present petition has not been signed by a duly authorised and competent person and as such the present petition is not maintainable an is liable to be dismissed.
On merits, respondent has admitted that rate of rent is/was Rs.1000/ p.m. As per respondent, respondent has not received, till the date of filing the WS any statutory notice for the enhancement of the rent by 10% from the petitioner and in the absence of the statutory notice, the petitioner cannot claim the enhancement of rent. The averments made by petitioner in para. 18
(a) (v) regarding service of notice dated 20/11/2001 Ex. AW1/10 on Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 5/29 24/11/2001 have been replied in para. 18 (a) (v) of Written Statement by the respondent by stating that DR No. 187/2000 titled as Royal Nepal Air Lines Corporation Vs. Shrishti Properties Pvt. Ltd. & Ors. was pending in the Court of Sh. V. K. Bansal ld. ARC Delhi as there was bonafide dispute as to whom the respondent should pay the rent, there was no requirement & necessity to give the reply to the aforesaid notice. This reply suggest that respondent as a matter of fact was served with notice dated 20/11/2001 Ex. AW1/10. As per the respondent, the respondent is not a defaulter in the matter of payment of rent and as such the present petition is liable to be dismissed with exemplary cost.
3. Petitioner has filed a REPLICATION to the written statement of the respondent.
As per the petitioner an attornment letter dated 18.03.1996 was sent by erstwhile owner of the premises to the respondent and the said attornment letter was duly served upon the respondent and if the respondent has paid the rent to the erstwhile owner, as alleged, inspite of the receipt of the attornment letter, the respondent itself is liable to face the consequences thereof. As per petitioner, since the attornment letter has already been issued by the erstwhile owner to the respondent, as such, it is/was the duty of the respondent to pay the rent to the petitioner only.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 6/29 Further, as per petitioner, the court of Sh. V.K. Bansal, Addl. Rent Controller, Delhi has not passed any order to pay the rent since September,2000 onwards, rather, the Court was pleased to pass an order "..... and petitioner in future will pay or tender rent to the respondent No.1. File be consigned to Record Room." As per petitioner, no cheque no. 317553 was ever received by the petitioner from the respondent in any manner.
Further, as per petitioner, an agreement was duly signed and executed between the erstwhile owner and the respondent herein where the respondent has claimed itself as M/s Royal Nepal Airlines Corporation and in the entire agreement which was executed between the parties, it has not been mentioned that the respondent corporation was established by the Statute of his Majesty The King of Nepal. As per petitioner, restrictions under section 86 CPC are only towards Foreign Rural or Ambassdor & Envoy and the respondent does not fall under the ambit of section 86 of CPC as the respondent is neither a Foreign Rural nor Ambassador nor Envoys.
As per petitioner a legal notice as well as a notice for the enhancement of rent was issued on 20.11.2001 and the same was duly received by the respondent by hand on 24.11.2001 and the said notice was also sent to the respondent by registered post.
In the REPLICATION, averments, except those whereby admissions Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 7/29 have been made by respondent, made in Written Statement have been denied & those made in the eviction petition have been reaffirmed.
4. Vide order dated 16.07.2002 Order under section 15(1) of DRC Act was passed directing the respondent to pay the petitioner or deposit in the court at the rate of Rs.1000/ w.e.f. 08.02.1999 uptill date within one month from the date of order and respondent was further directed to pay or deposit th the future rent at the same rate month by month by the 10 day of each succeeding month of English Calender month. Further, it was observed that rent for August,2000 shall stand adjusted and disputes regarding rate of rent, the period of arrears of rent etc. required adducing of evidence by both the sides before adjudication.
5. The order dated 16.07.2002 passed under section 15(1) of DRC Act was challenged by respondent before ld. Addl. RCT in MCA No. 97/2002, wherein Sh. G.P. Thareja, ld. Addl. RCT Delhi vide order dated 11/10/02 had observed as under: "1.................The legally recoverable rent would be from 01.02.1999. The appellant shall deposit the rent from 01.02.1999 uptill the end of the month previous to that in which deposit is made within one month and continue to deposit the rent @ Rs.1000/ per month th which is the last paid rent month by month by the 15 day of each succeeding month till further orders. The appellant shall be entitled to adjust the rent which has been deposited in court.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 8/29
2. The amount so deposited shall not be paid to the respondent which relates to the period upto July,2000 since the pleadings are not clear. It can also be imagined/ inferred from the claim that previous to July 2000 rent has been paid to Sh. Bafna with regard to that dues the court below shall make an order after arriving at a final decision. The appellant shall deposit the said rent within one month from the date of this order as directed. Accordingly, the impugned order is modified. The appeal is disposed of"
6. To substantiate its case on judicial file petitioner has examined one witness namely AW1 Mr. Umesh Gupta who has filed his detailed affidavit Ex. A1 as regards his examination in chief. Petitioner's evidence was closed on 12.07.2005 by Mr. Umesh Gupta, AR of the petitioner by making a separate statement to that effect. The respondent in his evidence has examined Mr. B. K. Singh as RW 1 and thereafter RE was closed by Sh. H. K. Tulani, Adv. for respondent by making a separate statement to that effect.
7. I have heard Sh. Ajay Gupta Adv. for the petitioner. On the other hand, ld. counsel for the respondent preferred to place on record the Written Final Arguments & did not orally argued the matter.
Ld. counsel for petitioner has submitted that relationship of landlord & tenant between petitioner & respondent stands proved in as much as while disposing of an application/petition u/s 27 of the DRC Act Sh. V. K. Bansal ld.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 9/29 ARC Delhi had held that petitioner/respondent no.1 therein, is the owner of the tenanted premises. Further it is submitted that petitioner has even been allowed to withdraw the rent deposited by the respondent. Also, as submitted, there is no crossexamination of the petitioner's witness on the lines that Sale Deed Ex. AW1/6 executed in favour of petitioner is forged. As per ld. counsel for the petitioner, the fact that previous owner was collecting the rent is not relevant. It is further submitted that even if it is assumed, though denied, that rent stands paid uptil July 2000, interest has not been paid. Also it is submitted in view of reply in para.18 (a) (v) of the Written Statement of the respondent, it can be said that service of notice dated 20/11/2001 is not disputed by the respondent.
In the course of arguments ld. counsel for the petitioner has relied upon following case laws:
1. Prof. Ram Prakash Vs. D. N. Srivastava 2006 (1) RCR 204
2. Gopi Chand Vs. Jain Plastic 2002 RLR 385 (SC)
3. E. Palanisamy Vs. Palanisamy (D) by LRs & Ors.
2003 RLR 30(SC)
4. Shashi Kumar Vs. Dharam Pal 1981 Rajdhani Law Reporter 191
5. Prime Industries Vs. Rafiq Ahmed 1997 Rajdhani Law Reporter 432 Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 10/29
6. Smt. Kamla L. M. Harvettakar Vs. Om Parkash 1974 RLR 247
7. Jain Motor Car. Co. Vs. Swayam Parbha 1982 RLR 754
8. Jain Motor Co. Vs. Swayam Prabha 1996 RLR 163(SC)
9. Kamal Raj Sadana Vs. D. D. Saigal 1995 RLR 406
10. Ravinder Kr. Suri Vs. Aero Traders Private Ltd.
107 (2003) Delhi Law Times 77 I have gone through the above case laws with utmost regards.
8. The respondent has taken an objection to this eviction petition on the basis section 86 CPC. The said objection stands already dealtwith/rejected by ld. predecessor of this court vide order dated 16/07/2002 whereby this eviction petition has been held to be maintainable. Ex. AW1/3A, a letter written by Mr. Prabhat Kumar Deputy Chief of Protocol (F) Ministry of External Affairs, New Delhi to the petitioner herein states that legal proceedings may be initiated against the Royal Nepal Airlines Corporation (the respondent herein) without the prior permission of the Ministry of External Affairs, New Delhi for nonvacation of the above property. Thus finally it is concluded that s. 86 CPC is of no help to the respondent herein.
9. At the outset it is pertinent to note that, ld. counsel for the respondent Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 11/29 has challenged Ex. AW1/1, i.e. Resolution dated 6/11/2002 authorising AW1 Mr. Umesh Gupta to institute, sign, verify and depose his statement in the Court regarding this eviction petition. Also it has been suggested to AW1 Mr. Umesh Gupta that he is not a director of the petitioner company. Further as per respondent document Ex. AW1/3 i.e. Memorandum and Articles of Association has not been proved as per Evidence Act. I find no substance in these objections taken on behalf of the respondent in as much as, besides taking bald suggestions, nothing positive has been brought on record by the respondent that Ex. AW1/1 or Ex. AW1/3 are in fact forged and fabricated. Also nothing positive has been brought on record by the respondent to prove that AW1 Mr. Umesh Gupta is not one of the directors of petitioner company. Also it is pertinent to note that evidence in the present case is substantially documentary in nature rather than being a oral evidence Document Ex. AW1/1 and Ex. AW1/3 have been produced under the seal and authority of petitioner company & thus they have to be taken as prima facie true & correct unless and until respondent proves that facts are otherwise.
It is equally pertinent to note that even DW Mr. B.K. Singh has not brought on record his authority letter, authorising him to depose on behalf of respondent. Further in his crossexamination he has deposed as under : "Personally I did not have any knowledge about the present eviction petition prior to January, 2009 as well as proceeding thereof."
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 12/29 Despite above depositions, evidence of RW Mr. B.K. Singh is being considered by this Court in as much as substantially evidence of Mr. B.K. Singh is documentary in nature.
Also I find no substance in the submission of respondent that site Plan Ex. AW1/7 has not been proved as per law in as much as it does not bear the signature of the petitioner/witness or that no architect has been examined by petitioner. Respondent has not at all pleaded as to in what respect site Plan Ex. AW1/7 is defective i.e. it is not representing the true and correct position/ situation extent of the tenanted premises. Also respondent has not proved/produced any other site Plan on judicial file to controvert/contradict site Plan Ex. AW1/7. Thus there is no substance in the objection taken by respondent regarding site Plan Ex. AW1/7.
In the present case, undisputedly there exist a relationship of landlord and tenant between the petitioner and respondent in as much as petitioner is owner of the tenanted premises vide Sale Deed Ex. AW1/6. Sh. V. K. Bansal Ld. ARC, Delhi vide order dated 4.01.2002 had also directed the respondent herein, on a petition filed by respondent herein u/s 27 of the DRC Act against, inter alia, petitioner herein, to pay the rent since September 2000 onwards to the petitioner herein. The said order has attained finality with the passage of time as the same has remained unchallenged.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 13/29 Even in the pleadings of this case landlordship of the petitioner qua the tenanted premises has not been challenged by the respondent. Sale Deed Ex. AW1/6 has also remained unchallenged. Thus undisputedly there exist relationship of landlord and tenant between the petitioner and respondent.
10. Petitioner in para. 18(a) (v) & 18(b) of this eviction petition has alleged as under : "v. That the petitioner also got served a registered AD/as well as by hand delivery. The notice dated 20.11.2001 was sent through registered post on 24.11.2001 as well as the same was handed over to the officials of the respondent which were received by them on 24.11.2001, whereby, the respondent were called upon to pay the entire legally recoverable rent and also to handover the peaceful and vacant possession of the tenanted premises but the respondent inspite of the receipt of the said legal notice has failed to comply the same; hence, the present petition before this Hon 'ble Court.
18 (b) Whether notice required has been given and if so, particulars thereof. (Copies of such notice and tenant's reply if any, should be furnished.) Yes. A registered AD/by hand legal demand notice dt. 20.11.2001 was duly served upon the respondent and even inspite of the receipt of the said notice, the respondent has not complied the same."
In reply to this respondent in its Written Statement has alleged as under: Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 14/29 "18(a) (v) That in reply to para no. 18 (a) (v) of the petition, it is submitted that since the case being DR No.187/2000 titled as "Royal Nepal Airlines Corporation Vs. Shrishti Properties Pvt. Ltd. and Others" for deposit of the Rent was pending before the Hon' ble Cour of Shri V.K. Bansal, ARC Delhi, as there was a bonafide dispute as to whom the respondent should pay the rent, there was no requirement and necessity to give the reply to the aforesaid notice. It is further submitted that during the period when the aforesaid notice was sent by the petitioner, the petitioner was made by the respondent as a party to the aforesaid petition for deposit of rent and was contesting the aforesaid case. The respondent, in compliance with the orders of Hon' ble Court of Shri V.K. Bansal, ARC Delhi, has duly sent the rent to the petitioner at the available addresses of the petitioner.
18 (b) That in reply to para no.18(b) of the petition, the reply as given in para no.18(a) (v) of the present written statement may be read and treated as part of reply to this para also as the same are not being repeated herein for the sake of brevity."
The reply given by respondent without any doubt suggest that respondent was admittedly served with notice dated 20/11/2001 Ex.AW1/10.
Also the postal receipt vide which the notice Ex.AW1/10 was dispatched to respondent has been proved as Ex. AW1/11. No suggestion has been given that postal receipt Ex.AW1/10 is false & forged. DW1 Mr. B.K. Singh in his cross examination has admitted that the address mentioned on Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 15/29 Ex.AW1/10 is the correct address of respondent.
Even further as per petitioner notice dated 20/11/2001 Ex. AW1/10 was also delivered to respondent by hand & the same was duly acknowledged by respondent on 24/11/2001. There exist signatured dated 24/11/2001 on the notice dated 20/11/2001 Ex. AW1/10.
As regards service of notice Ex. AW1/10 except a bold suggestion that notice Ex. AW1/10 was not sent to the respondent nothing has been brought on record by respondent to suggest that respondent was infact not served with notice Ex.AW1/10. Also RW Mr. B.K. Singh in his affidavit Ex. RW1/A has deposed as under : "The respondent never received any notice from the Petitioner for increasing of rent by 10% as alleged in the petition."
RW Mr. B.K. Singh is silent about alleged nonservice of notice Ex.AW1/10 dated 20/11/2001. It is pertinent to note that notice Ex. AW1/10 is demand notice u/s 14(1)(a) as well as a notice for increasing the rent by 10% in as much as para. 5 of the said notice reads as under: Para. 5 of Ex. AW1/10 "5. That the rent of the tenanted premises has also not been enhanced since long and the same is liable to be enhanced w.e.f. 1.1.2002 and you are liable to pay the rent at the enhanced rate of rent i.e. Rs.1100/ per month."
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 16/29 Hence service with Ex. AW1/10 also amounts to service with notice for increasing the rent by 10%. Also RW Mr. B.K. Singh in his cross examination has deposed as under: " ........... Without checking the record I cannot say when did the respondent makes the payment after the receipt of notice Ex. AW1/10. ................................ The address mentioned on Ex.AW1/10 is the correct address of respondent. It is incorrect to suggest that the documents Ex. RW1/1 and RW1/2 are forged & fabricated documents. It is incorrect to suggest that respondent has not complied with the demand notice Ex. AW1/10. ..................."
Above depositions also suggest that respondent was duly served with notice Ex.AW1/10 which was a demand notice u/s 14(1)(a) DRC Act as well as a notice for increasing the rent by 10% w.e.f. 1.1.2002 enhencing the rent of the tenanted premises from Rs.1000/ P.M. to Rs.1100/ P.M. w.e.f. 1/1/2002.
Thus on the basis of admissions by necessarily implication made in the Written Statement of the respondent as well as on the basis of other material available on judicial file it can be safely concluded that respondent was duly served with notice Ex. AW1/10 sent/handed over by petitioner to the respondent. Notice Ex. AW1/10 is a Demand Notice u/s 14 (1) (a) of the DRC Act as well as a Notice of increase of rent u/s 8 of the DRC Act 1958.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 17/29
11. Admittedly rate of rent of the tenanted upto the period prior to 1.1.2002 is Rs.1000/ P.M.. Now, as the Court has concluded that respondent was served with notice Ex.AW1/10, respondent was liable to pay the rent @ Rs.1100/ P.M. with effect from 1.1.2002.
12. As per petitioner, tenanted premises were purchased by it from erstwhile owner Sh. Vijay Narain and Shri Virender Narain by virtue of a registered Sale Deed which was executed in favour of petitioner on 25/9/1996. The Sale Deed is Ex. AW1/6. Thus the petitioner became owner landlord of the tenanted premises with effect from 25.09.96.
Petitioner in its eviction petition is absolutely silent about any intimation given by it (i.e. the petitioner) or the erstwhile owner regarding purchase of the tenanted premises by the petitioner. For the first time, reference has been made to attornment dated 18.3.1996 allegedly sent by the erstwhile owner of the premises to the respondent in the replication to the Written Statement of the respondent. Also in the affidavit Ex. A1 of Mr. Umesh Gupta it has been alleged as under : "10. That the erstwhile owner selling the property has got issued a letter of attornment to the Respondent, which was duly received by the Respondent regarding the fact that the property has been sold by the erstwhile owner of the property to the Petitioner herein. The copy of the attornment letter is Ex.AW 1/8 and the same was sent through registered post. The postal receipt is Ex. AW1/9."
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 18/29 The attornment letter Ex. AW1/8 is a photocopy paper. Receipt Ex. AW1/9 is also a photocopy of postal receipt. Also it is pertinent to note that the said letter Ex. AW1/8 is dated 18.3.1996 but the Sale Deed in favour of petitioner is dated 25.9.1996. As such respondent could have been attorned to be present petitioner with effect from 25.9.1996 onwards & not w.e.f. 8.3.1996. Also Ex. AW1/8 has not been dispatched by petitioner but by Mr. Virender Narain & Vijay Narain. But neither Mr. Virender Narain nor Mr. Vijay Narain has appeared in the witness box to prove the dispatch of attornment letter Ex. AW1/8 vide postal receipt (photocopy) Ex. AW1/9. Also nothing has been brought on judicial file by petitioner to proved the service of the said attornment letter on the respondent. No UPC has been produced/proved on judicial file in this regard. No. postal employee has been examined by petitioner regarding service of the said attoment letter.
Further one fail to understand as to why the said Ex. AW1/8 also bears postal stamp dated 13.11.02. Further, in the facts & circumstances of this case, petitioner must have pleaded about the attornment letter Ex. AW1/8 in the eviction petition itself but it failed to do so. In my considered opinion in the totality of this discussion it can be concluded that petitioner has failed to prove Ex. AW1/8 or its dispatch to the respondent. No benefit can be given to the petitioner by virtue of Ex. AW1/8 and AW1/9.
13. AW1 Mr. Umesh Gupta in his cross examination has deposed as Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 19/29 under: ".......... I do not know whether earlier Respondent company use to pay the rent to Bafna & Company, Attorney of earlier owner. It is correct that the petition u/s. 27 of DRC Act was in respect of the deposit of rent of Aug. 2000 .........."
To prove its stand that rent upto July 2000 stands paid to DANCHAND BAFNA, respondent has produced/proved record Ex. RW1/1 & Ex. RW1/2. Nothing has been brought on record by the petitioner to discredit the reliability of Ex. RW1/1 & RW1/2 except a bald suggestion in the crossexamination of the RW Mr. B.K. Singh to the effect that Ex. RW1/1 and RW1/2 are forged & fabricated documents which has been denied by RW Mr. B.K. Singh. The petitioner could have summoned Mr. DANCHAND BAFNA to prove the genuineness or otherwise of Ex.RW1/1. Similarly genuineness or otherwise of Ex. RW1/2 could have been proved by calling a witness from M/s Jagat Talkies Distributors but petitioner for reasons best known to it has opted not to do so. In the totality of facts & circumstances, in my opinion, this court should reply upon Ex. RW1/1 & RW1/2. As such, in my opinion, it can be concluded that rent stood paid to the previous owner by the respondent uptil July 2000. No fault can be found with the respondent in this regard in as much as petitioner has failed to prove that it had intimated the respondent regarding its purchasing the property in question from the erstwhile owner. The petitioner cannot demand rent from the respondent uptil July 2000.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 20/29 Admittedly rent for the month of Aug. 2000 stands deposited by respondent u/s 27 DRC Act; petition filed by respondent in this regard was disposed by Sh. V.K. Bansal, the then ld. ARC, vide order dated 4.01.2002. I have already concluded that respondent was served with the notice Ex. AW1/10 dated 20.11.2001, whereby petitioner has enhanced the rent of the tenanted premises to Rs.1100/ P.M. with effect from 1.1.2002 and further petitioner called upon the respondent to pay the entire arrears of rent within a period of 15 days from the date of receipt of the said legal notice. Inconsistent with its pleadings, in the course of cross examination of AW1 Mr. Umesh Gupta, respondent has taken a stand that notice Ex. AW1/10 was not sent to the respondent. This stand of respondent has already been discarded by this Court in the course of discussion in para. 10 hereinabove. Thus no payment/tender of rent was made by respondent pursuant to service of notice Ex. AW1/10. However, as per respondent, the respondent in compliance of the orders dated 4/1/2002 passed by Sh. V.K. Bansal the then ld. ARC Delhi without prejudice to its rights and contentions sent a cheque bearing no. 317553 dated 31/1/2002 drawn on Citi Bank, New Delhi for Rs.17,000/ towards rent for the months of September, 2000 to January, 2002 at the rate of Rs.1000/ P.M. for seventeen months vide Ex. RW1/3. But the envelope containing the said letter Ex. RW1/B alongwith cheque for Rs.17,000/ was returned with remarks. "No such firm at this address returned to sender." The said cheque, then was dispatched at another addresses of respondent i.e. M/s. Shristi Properties Pvt. Ltd. E72 Greater Kailash I, New Delhi vide Ex.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 21/29 RW1/4. Also, as per petitioner, rent of Rs.1000/ for the month of February 2002 was sent to petitioner vide cheque no. 317621 dated 28.2.2002 drawn on Citi Bank, New Delhi vide Ex. RW1/5. As regards this version of respondent, the stand of the petitioner as deposed by AW Mr. Umesh Gupta in the course of his crossexamination is as under: "I do not remember whether I have received Mark 'A', Mark 'B', Mark 'C' sent by the respondent along with the cheques of Rs.17,000/ and Rs.1,000/, Ex. Mark 'D' and Mark 'E'."
Here document Mark A is Ex. RW1/3, Mark B is Ex. RW1/4 and Mark C is Ex. RW1/5. Mark D and Mark E are cheque for Rs.17,000/ & Rs.1,000/.
The above depositions suggest that possibility of the petitioner receiving the abovesaid cheques cannot be ruled out altogether. Also in the facts & circumstances of this case presumption regarding, petitioner having been served with those cheques can be raised. But the respondent has not proved on judicial file that these cheques were got encashed by the petitioner. In the present case, case law Gopi Chand Vs. Jain Plastic relied upon by ld. counsel for petitioner has no application, particularly in view of above depositions of AW1 Mr. Umesh Gupta. Also in this case cheque for Rs.17,000/ was sent to proper registered address of the petitioner initially & later on it was sent to another address. Further petitioner has failed to bring on record any material to show that respondent could not have tendered the rent through cheque by virtue of some agreement between the respondent Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 22/29 and petitioner/its predecessor in interest.
This being so, the case law of Gopi Chand Vs. Jain Plastic is of no help to the ld. counsel for petitioner in the facts & circumstances of this case. The tender of Rs.17,000/ as rent for the month of September, 2000 to January, 2002 & of Rs.1,000/ for February, 2002 through cheques may be said to be valid tender. But crucial question that requires determination is whether by virtue of above said tenders Demand Notice as well as Notice to increase the rent Ex. AW1/10 can be said to have been complied with/satisfied by the respondent. The answer to this question, in the facts & circumstances of this case, is in NEGATIVE. The reasons for this decision/ conclusion are many. In this case respondent was served with notice Ex. AW1/10 on 24/11/2001 but the letter Ex. RW1/3 and cheque sent therewith are dated 31/1/2002 i.e. beyond the period of two months after service of respondent with notice Ex. AW1/10. Also by letter Ex. AW1/10, respondent had tendered the rent for the months from September, 2000 till January, 2002 @ Rs.1000/ P.M. but the petitioner did not tender the interest on the delayed payment of rent which it was bound to tender in view of case law reported as Prof. Ram Prakash Vs. D. N. Srivastava (relied upon by ld. counsel for petitioner) as per which, where there is delay in payment of rent, tenant is liable to pay interest thereon which becomes component or rent and "rent" includes in its ambit "contractual rent" together with "interest on delayed payment", as also, "Statutory increase of rent" for the purposes of eviction Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 23/29 u/s. 14 (1) (a) of the DRC Act. Even further, after having been served with the notice Ex. AW1/10, respondent was supposed to pay rent w.e.f. 1/1/2002 @ Rs.1100/ P.M., but it tendered rent @ Rs.1000/ P.M. Thus respondent cannot be said to have complied with/satisfied the notice Ex. AW1/10 which is a Demand Notice as well as Notice to increase the rent u/s 8 of the DRC Act. As such, respondent has committed first default in payment of rent.
14. Now the question that requires determination is whether respondent in this case entitled to benefit u/s 14 (2) of the DRC Act or Not. To get the said benefit, respondent has to show that it has complied with the order passed u/s 15 (1) of the DRC Act.
In this case order u/s 15 (1) DRC Act was passed on 16/07/2002 whereby it was directed as under: "16.07.2002.
.......................................................................... .......................................... In the circumstances, order u/s 15 (1) DRC Act is hereby passed and the respondent is directed to pay the petr. or deposit in the court at the rate of Rs.1000/ w.e.f. 8.2.99 uptill date within one month from the date or order and is further directed to pay or deposit the future rent at the same rate month by month by the 10th of each succeeding month of English Calender Month. The rent for August, 2000 shall stand adjusted ..............." Instead of complying the order dated 16/07/2002, respondent moved Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 24/29 an application on 14/08/2002 for extension of time for depositing the rent with the averment that respondent has filed an appeal against the order dated 16/07/2002. On 14/08/2002 the said application, was ordered to be put up with file on 26/08/2002. On 26/08/2002 the application was adjourned to 2/09/2002 for proper orders by the reader because ld. P.O. was on leave on date day. On 2/09/2002 the application was again adjourned for 20/09/2002 because on 2/09/2002 again ld. P.O. was on leave. On 20/09/2002, again ld. P.O. was on leave & case was adjourned to 10/10/2002 for proper order. On 10/10/2002 the case was adjourned for 17/12/2002 for P.E. Thus no orders were passed by the Court on the application moved on 14.08.2002 by respondent for extension of time for deposit of rent. To my mind, having failed to obtain an order, even on account of ld. P.O. being on leave, extending the time for deposit of rent as per order dated 16/07/2002, respondent was supposed to comply the order dated 16/07/2002 but it did not comply the said order. But vide order dated 21/08/2002 Sh. G. P. Thareja ld. ARCT Delhi in MCA597/2002 passed the following order : "Royal Nepal Airlines Corporation Vs. M/s Shrishti Properties Pvt. Ltd.
Smt. Nivedita Anil Sharma ARC Delhi.
597/02 Prt. Counsel for appellant Fresh appeal filed.
It be registered.
Heard. Appeal is admitted for hearing.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 25/29 Issue notice to the resp. for 20.09.02.
The impugned order shall be complied with by the appellant for the period the appellant admits that the rent is due from the appellant until further order by this order.
Sd/ ARCT 21.08.02"
Pursuant to this order respondent deposited the rent for the months from September 2000 till Aug. 2002 @ Rs.1,000/ P.M. amounting to Rs.24,000/ on 2/09/2002. The MCA No.597/2002 was disposed of by Sh. G. P. Thareja ld. ARCT vide its order dated 11/10/02 relevant portion thereof has been reproduced in para. 5 herein above. Pursuant the said order, an application was moved on behalf of respondent on 11/11/2002 for condenation of delay of 24 days in depositing the rent. This application was allowed by ld. predecessor of this Court vide order dated 11/11/2002 & thus a sum of Rs.19000/ was deposited by respondent being rent for the period 1.02.99 to 30.6.2000 and Nov. & Dec. 2002 @ Rs.1,000/ P.M. on 12/11/2002. It is pertinent to note that respondent has not deposited the rent for the month of July 2000 despite order dated 11/10/2002 passed by ld. ARCT, Delhi. This is no explanation that rent of July 2000 was paid to previous Owner. Even the rent for the period prior to July 2000 was paid to previous owner but still an order was made for depositing the same with the Court & the said order was even complied with by the respondent.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 26/29 Further, rent for November 2004 to January 2005 was deposited by the respondent on 23.12.04. Thus, it can be said that rent for the month of November 2004 was not deposited by 15th December, 2004 in terms of the order passed by the Ld. ARCT. As per the respondent itself rent for the month of November 2004 was deposited late. Further, in the written submissions filed on behalf of the respondent on 16.03.10, it has been mentioned that no explanation is there with the respondent and admittedly rent was despited late which was due to inadvertence and same may be condoned. It is pertinent to note that condonation for late deposit of rent for the move of November 2004 is being sought at this final stage of the proceedings. In my opinion, the respondent ought to have made a prayer for condonation of delay in late deposit of the rent at the time of moving an application seeking permission to deposit the rent, but it was not so done by the respondent. Even at this stage, no plausible reason/explanation has come on record for the late deposit of the rent except that it was due to inadvertence. To my mind, inadvertence means nothing but negligence.
However, I find no fault with the respondent for depositing the rent for the period from December 2008 to May 2009 on 16.04.09 in as much as with effect from 01.11.08 Civil Courts started functioning at Patiala House Courts Complex and initially for a period of 46 months there was no facility of deposit of rent with regard to the cases which were pending adjudication. The above discussion goes to suggest that respondent was not sincere Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 27/29 enough to comply the orders passed by the court u/s 15 (1) of the D.R.C. Act in as much as even the order dated 16.07.02 was not complied with by the respondent in letter and spirit. Even the respondent has not comply the order dated 11.10.02 passed by the Ld. ARCT in time and the said order was complied with only after seeking condonation of delay in this regard. In any way respondent has not deposited the rent for the month of July 2000 and no explanation has come on record for late deposit of rent for the month of November 2004. To my mind, conduct of the respondent does not deserve any leniency and as such, the defaults committed by the respondent in complying with the order passed by this court or Ld. ARCT u/s 15 (1) of the D.R.C Act cannot be condoned. As such, it can be concluded that respondent has not complied with order passed by the court u/s 15 (1) of the D.R.C. Act and thus, respondent is not entitled benefit u/s 14(2) of the D.R.C. Act.
15. In view of our above detailed discussion, it is concluded that petitioner is entitled to rent from the respondent @ of Rs. 1,000/ per month from September 2000 uptill 31.12.2001. Also petitioner is entitled to interest @ 15 % per annum on the rent due with effect from September, 2000 - December, 2001 uptill January, 2002. Further, petitioner is entitled to rent @ of Rs. 1100/ per month from 01.01.2002 onwards. Till date, petitioner has become entitled to rent upto February, 2010. Also petitioner is entitled to interest @ 15% per annum on the rent due w.e.f January, 2002 - July, 2002 uptill 16.07.2002. The petitioner shall be entitled to withdraw the amount so Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 28/29 calculated from the amount deposited by the respondent with the court pursuant to orders passed by this court or Ld. ARCT. Remaining amount, if any, be refunded to the respondent. If the amount deposited by the respondent is insufficient to meet out the entitlement of the petitioner in terms of this paragraph petitioner shall be at liberty to file a suit for recovery of arrears of rent against the respondent. Naib Nazir to do the necessary calculations in this regard.
17. In view of our above detailed discussion, to my mind, present petition stands succeeds and the respondent herein has been able to prove the ground of eviction u/s 14(1) (a) of the D.R.C Act and respondent is liable to be evicted from the tenanted premises i.e. premises No.44 (Ground floor Portion), more specifically shown in the site Plan Ex. AW1/7, Janpath, New Delhi. Ordered accordingly. Parties to bear there own cost.
File be consigned to Record Room.
Pronounced in Open Court.
(Anand Swaroop Aggarwal) SCJCumRC/New Delhi 22/03/2010 Anand Swaroop Aggarwal SCJCumRC/New Delhi Eviction Petition (Old) No.137/03/02 Eviction Petition (New) No.06/08/08 29/29