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Delhi District Court

Smt. Maya Sood vs Anil K. Aggarwal on 6 March, 2012

 In the Court of Dr. Rakesh Kumar: Additional Rent Controller of 
        East Delhi District at Karkardooma Courts, Delhi.

Application No. E­725/06
Unique I.D. No.02402C0551052006

In the matter of :­
Smt. Maya Sood
W/o S.L. Sood,
R/o 29, Daya Nand Block,
Madhuban Road, Shakarpur,
Delhi­110092.                                  .....Applicant

Versus

Anil K. Aggarwal
R/o 29, Daya Nand Block,
Madhuban Road, Shakarpur,
Delhi­110092.                                  .....Respondent

Date of institution           : 23.09.2006 
Date on which arguments heard : 29.02.2012
Date of decision              : 06.03.2012

     Application for Eviction of Tenant under Section 14(1)(a) of 
                     Delhi Rent Control Act, 1958


JUDGMENT 

1. This is an application for the recovery of possession of shop no.4, 29, Daya Nand Block, Madhuban Road, Shakarpur, E­725/06 Page 1 of 9 Delhi­110092 (hereinafter referred to as 'the premises') as shown in colour red in the site plan attached, made by the landlady Smt. Maya Sood against the tenant Anil K. Aggarwal on the grounds mentioned in clause (a) of the proviso of sub­section (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the DRC Act').

2. It is stated in the application that the premises were let out by the applicant to the respondent through rent deed dated 01.07.85; that the respondent had no intention to pay the rent since inception of the tenancy even he has not paid the electricity charges; that the respondent is most irregular in payment of rent and normally take one year or two year or three years to pay rent; that the respondent was served a notice by the applicant on 15.04.94; that the respondent again defaulted in payment of rent and has not paid rent since 01.03.05; that the respondent was again served a legal notice dated 09.11.05; that in reply to that notice, the respondent sent a registered letter in which he has made false allegations against the applicant and mentioned that he had enclosed a cheque against the rent but the applicant had found no cheque in the reply. It is further prayed in the application that an eviction order be passed against the respondent.

3. The respondent contested the application by filing written statement of his defence wherein he contended that the respondent was paying rent @ Rs.565.50/­ p.m. and there was no other charges which the respondent had to pay to the applicant; the respondent had taken separate electricity connection from the authority in his own name in respect of the premises; that the present eviction petition is based on the notice dated 09/11/05 which was not in accordance with law. Other allegations of the eviction application are denied and disputed by the respondent and prayed for dismissal of eviction application.

4. The applicant filed the replication to the written statement wherein she denied the contentions raised by the respondent in the written statement and reiterated the allegations made in the present eviction application.

5. The applicant examined only one witness. PW1 is Smt. Maya Sood, the applicant herself. During her evidence, the applicant also produced the documents from Ex.PW1/1 to Ex.PW1/9.

6. The respondent examined one witness. RW1 is Anil Kumar, the applicant himself. During his evidence, the respondent produced the documents from Mark A to B.

7. I have heard counsel for the parties and perused the E­725/06 Page 3 of 9 material available on record carefully.

8. My findings are as follows.

9. For getting an eviction order on the ground of non­payment of rent under Section 14 (1) (a) the DRC Act, the applicant is required to prove:

1. relationship of landlord and tenant:

2. existence of arrears of rent legally recoverable on the date of service of notice of demand;

3. service of notice of demand;

4. failure of the tenant to pay or tender the entire legally recoverable arrears of rent within two months from the date of service of demand notice.

Landlord­tenant relationship

10. To prove the relationship between the parties, it is stated by PW1 Smt. Maya Sood in her affidavit that premises were let out to the respondent on 01/7/1985 vide rent deed which was signed by the applicant to the respondent.

11. RW1 Anil Kumar Aggarwal (the respondent) has also stated in his affidavit that the petitioner Smt. Maya Sood had let out the premises to him. In view of the above, the respondent has admitted landlord­tenant relationship between the applicant and respondent and the relationship of landlord­tenant between the parties is proved.

Arrears of rent

12. To prove arrears of rent, it is stated by PW1 Maya Sood in her affidavit that the rent would be paid by 5th of every month in cash but the respondent failed to pay rent regularly. It is further stated that the respondent remained irregular and paid rent at his free will and normally took 2­3 years to pay rent. It is further stated that once respondent paid arrears of rent after 45 months in the year 01/4/99 to 12/8/02. It is stated that the respondent sent a Pay Order of Rs.9048/­ alongwith reply in that he made false allegation against applicant and promised to pay rent in time.

13. To disprove, it is stated by RW1 Anil Kumar Aggarwal in his affidavit that the respondent filed petition under section 27 of DRC Act and paid the rent upto August 2007 @ Rs.565.50/­. It is further stated that the respondent has always been prompt in making the payment of rent to the applicant and has never made any default in doing so.

14. A perusal of whole affidavit of the applicant shows that the applicant has not specifically stated any date from which the respondent had been in arrears of rent. The applicant has not specifically stated that from which date the respondent had failed to make the payment of rent.

15. In view of the petition and the affidavit of the applicant, I E­725/06 Page 5 of 9 am of the considered opinion that the material particulars regarding the date from which the respondent is in arrears of rent has been lacking and the petition as well as evidence of the applicant on this point is vague. In view of above, it is not proved from which date, the respondent is in arrears of rent.

Service of notice of demand

16. To prove service of notice of demand, it is stated by PW1 Smt. Maya Sood that the respondent again defaulted and did not pay rent and he was served with legal notice dated 09/11/05 and respondent made a reply dated 24/11/05.

17. To disprove, it is stated by RW1 Anil Kumar Aggarwal that the applicant sent a baseless and illegal notice dated 09/11/2005 to the respondent thereby allegedly terminating the tenancy and calling upon him to leave and vacate the shop and deliver the peaceful vacant possession of the same to her alleging that the respondent was not paying the rent on time.

18. The learned counsel for the respondent has referred to judgment in Hindustan Everest Tools Ltd. v. Shakti Kumar 22 DRJ 1986 (10) to argue that notice of demand sent by the applicant was not proper. It has been held by Hon'ble Delhi High Court in Hindustan Everest's case (supra) as follows:­ E­725/06 Page 6 of 9 "This notice is an unconditional notice terminating the tenancy. It did say that the tenant was in arrears of rent but it did not demand the rent. Proviso (a) requires the service of a "notice of demand for the arrear". The word 'demand' has to be given its ordinary meaning. 'Demand' according to Chambers 20th Century Dictionary (New Edition) means the asking for what is due : the amount of any article, commodity, etc., that consumers will buy : inquiry". According to Webster's Third New International Dictionary it means 'the act of demanding or asking esp. with authority : a peremptory request : the asking or seeking for what is due or claimed as due : the right or title in virtue of which something may be claimed : a thing or amount claimed to be due". Giving the ordinary meaning to the word "demand" and read in the context in which his word had been used the expression 'notice of demand' used in the proviso (a) means a notice asking the tenant to pay the arrears of rent. In other words, the tenant must be called upon to pay the arrears or rent. Low, no doubt, does not require that a demand notice should be in any prescribed form. Particular words are not required to be used but the notice must make a demand of arrears of rent. For making the demand any proper word connoting the demand could be used. A mere statement of arrears without anything more is not sufficient. The main purpose of 'the act' is to protect the tenant from eviction. The requirement of the service of notice of demand in clause (a) is to afford and opportunity to the tenant to pay the arrears of rent within two months of the service of notice of demand. The purpose could not be achieved only when the demand is made. The tenant must be asked to pay rent or face eviction. In the absence of the demand it cannot be said that the tenant had been given the required opportunity to save his tenancy from the consequences of default by not paying the rent."

19. Relevant portion of the notice of demand(Ex. PW1/6) sent by the applicant is as follows:­ "1. That you are a tenant in respect of aforesaid shop at monthly rent of Rs.55.50 p.m. let out to you for running E­725/06 Page 7 of 9 chemist shop.

2. That your are most irregular in matter of payment of rent which you never pay on time and normally take 2­3 years to pay rent and that was never agreed between your and my clilent. Not going far in previous years you did not pay rent from 1­4­99 till 12­3­2002 for 45 months and then on 10­12­02 after many oral and written requests made by my client you paid the rent for 43 months only with the promise that you would pay rent regularly in future and also pay interest in case of irregularity. Again your defaulted and you paid rent on 14­10­03 after 10 months for the outstanding rent from 1­11­02 to 31­10­03. Since then you have not paid either rent nor interest for the outstanding rent since 1­11­03.

3. That since my clients is an old lady and your are taking advantage of her deteriorating health by not paying rent on time. So my client do not want you to be tenant any more so I hereby terminate your tenancy. I therefore call upon you to vacate the same with in one month and also pay the arrears of rent and interest as agreed by you."

20. From the perusal of legal notice(Ex.Pw1/6), whereby the applicant has alleged to have demanded rent from the respondent, it can be discerned that the said notice is merely a notice of termination of tenancy. By way of the notice (Ex.PW1/6), the respondent was called upon to vacate the premises within one month and also pay the arrears of rent and interest. In the light of law clearly declared by the Hon'ble Delhi High Court in Hindustan Everest's case (supra), by way of notice of demand, the landlord must inform the tenant all the amount of arrears of rent due and if no demand of arrears was made, it was not a valid notice. It has been held in Hindustan Everest's E­725/06 Page 8 of 9 case (supra) that by way of demand of notice, the landlord must ask the tenant to pay the rent or face eviction but it was not so stated in the legal notice(Ex.PW1/6) sent by the applicant to the respondent. In view of above, I hold that notice of demand sent by the applicant to the respondent was not a proper notice of demand as required for seeking eviction under the proviso mentioned in clause (a) of the proviso of sub­section (1) of Section 14 of the DRC Act.

21. For the discussions afore­stated, the applicant has failed to prove the allegation made in the application for eviction in respect of the premises. The present application for eviction on the grounds mentioned in clause (a) of the proviso of sub­section (1) of Section 14 of the DRC Act is dismissed with costs.

Announced in the open court (Dr. Rakesh Kumar) on 06.03.2012 Additional Rent Controller (East) Karkardooma Courts, Delhi.

 E­725/06                                                           Page 9 of 9
 E­725/06

06.03.12
4.30 P.M.

Present:­     Proxy for the applicant.
              Proxy for the respondent.

Vide my separate judgment of even date, the applicant has failed to prove the allegation made in the application for eviction in respect of the premises. The eviction application under Section 14(1) (a) DRC Act is dismissed with costs.

File after due compliance be consigned to record room.

(Dr. Rakesh Kumar) Additional Rent Controller (East) Karkardooma Courts, Delhi 06.03.2012 E­725/06 Page 10 of 9