Delhi District Court
Mr. Sanjay Doulat Manchandani vs Mr. Kamal Kishore Torani on 9 September, 2021
IN THE COURT OF SHRI NARESH KUMAR LAKA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST,
SAKET COURTS, NEW DELHI
CS No. 562/2018
In the matter of:
MR. SANJAY DOULAT MANCHANDANI,
S/o Late Sh. Doulat Manchandani
R/o D-60/1 "Guru Kripa",
East of Kailash, New Delhi--110065
..... Plaintiff
VERSUS
MR. KAMAL KISHORE TORANI
S/o Sh. Bhagwan Das Torani,
R/o D-69, Third Floor,
East of Kailash, New Delhi-110065
..... Defendant
Date of Institution : 13.04.2018
Arguments concluded : 27.08.2021
Date of decision : 09.09.2021
Result : Decreed
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF RENT,
MESNE PROFITS AND PERMANENT INJUNCTION
JUDGMENT
Suit in brief The present suit was filed by the plaintiff for recovery of CS No. 562/2018 Page No. 1 of 13 Sanjay Doulat Manchandani Vs. Kamal Kishore Torani possession of the property No. D-69, Third Floor, East of Kailash, New Delhi-110065 (hereinafter referred to as 'suit property') and arrears of rent, mesne profits and permanent injunction by claiming that plaintiff and defendant are known to each other for the last more than 20 years and upon the request of the defendant, the plaintiff let out the suit property at the monthly rent of Rs.1 lakh. It is further claimed that the defendant also paid Rs.3 lakh by way of a cheque dated 11.08.2010 towards two months security deposit and one month rent and initially, he paid the monthly rent regularly but after March, 2012 he delayed the payment of rent and from September, 2013, he did not pay any rent.
2. The plaintiff has also disclosed that the another property situated at Lajpat Nagar was let out to the defendant and an office was given to the son of the defendant for a period of 5-6 months to establish his business to clear the arrears of rent. Finally, it is claimed that despite that, the defendant did not pay the huge arrears of rent and in this regard, a Memorandum of Understanding (in short 'MoU') was also executed between the parties but the defendant did not fulfill the terms of the said MoU. Thereafter vide legal notice dated 01.03.2018, the tenancy of the defendant was terminated and he was directed to pay the arrears of rent/damages and to vacate the suit premises but he did not comply with the said notice.
CS No. 562/2018 Page No. 2 of 13Sanjay Doulat Manchandani Vs. Kamal Kishore Torani Defence in brief
3. The defendant contested the present suit and filed his written statement stating therein that the suit premises was taken by defendant in lieu of friendly loan tendered to the plaintiff from time to time which accumulated to the tune of Rs.50 lakh in 2010. It is also claimed that an arrangement was made between the parties that the defendant will use and occupy the suit premises till such loan of Rs.50 lakh is repaid. The defendant also claimed that, in fact, another property situated in Rajasthan known as "Chakkardhari Wheels Pvt. Ltd. SPL, 1/K, Industrial Area, Bhiwadi" was taken on rent at the rent of Rs.1 lakh per month and the amount of Rs.3 lakh was given vide cheque dated 11.08.2010 towards the security deposit and rent of the said property and not for the suit property. It is also stated that the defendant paid rent of Rs.1 lakh regularly to the plaintiff till the said premises of Rajasthan was vacated upto August, 2013 and no rent was ever paid for the suit property which was a rent free accommodation. He also claimed that the office of plaintiff situated at Amar Colony, New Delhi was given on rent by the plaintiff to his son.
4. On parawise replies to the plaint, the defendant reiterated that the suit premises was given by the plaintiff towards security of the loan amount of Rs.50 lakh which was interest free loan and there was no relationship between the parties as landlord and tenant. The defendant CS No. 562/2018 Page No. 3 of 13 Sanjay Doulat Manchandani Vs. Kamal Kishore Torani also denied execution of MoU dated 24.04.2015 and it is claimed that this is a forged and fabricated document which was made by using digital technology and interpolation.
Replication, issues & trial
5. The plaintiff filed replication to the written statement of the defendant wherein the averments made in the plaint were reiterated/reaffirmed and the allegations of the defendant were controverted. From the pleadings of the parties, following issues were framed on 28.02.2019:
1. Whether the defendant is a tenant of the plaintiff living in the suit premises? If yes, what was the rent payable? OPP
2. Whether the plaintiff is entitled to possession of the suit premises? OPP
3. If the issue no.2 is decided in favour of the plaintiff, then whether the plaintiff is entitled to recovery of mesne profits and damages? OPP
4. Whether the MoU dated 24.04.2015 was executed by the defendant or not? If so, its effect. OPP
5. Whether the plaintiff is entitled for recovery of rent and money as claimed? OPP
6. Whether the defendant had given an interest free loan of Rs.50 lakh to the plaintiff and its effect? OPD CS No. 562/2018 Page No. 4 of 13 Sanjay Doulat Manchandani Vs. Kamal Kishore Torani
6. In order to prove his case, the plaintiff examined himself as PW-1, Sh. Dhrub Kamal from Bank of India as PW-2, Ms. Archana Arora, DGM (Finance), C/o BSES Rajdhani Power Ltd. as PW-3, Smt. Anita Babbar, Zonal Inspector, C/o SDMC, South as PW-4, Sh. Parveen Yadav, Income Tax Officer, C/o ACIT Circle 14(1) as PW-5, Sh. Dharmender Kumar Singh, PRO as PW-6, Sh. R.S. Verma, ASO, C/o ZRO, South-III as PW-7 and Sh. Dheeraj Kumar as PW-8. Likewise, the defendant examined himself as DW-1.
7. I have heard arguments from Sh. Prashant Mendiratta, Ld. Counsel for plaintiff but no arguments were advanced on behalf of the defendant despite giving ample opportunities. Record perused.
REASONS FOR DECISION Issue No.1: Whether the defendant is a tenant of the plaintiff living in the suit premises? If yes, what was the rent payable? OPP Issue No.4 : Whether the MoU dated 24.04.2015 was executed by the defendant or not? If so, its effect. OPP Issue No.6 : Whether the defendant had given an interest free loan of Rs.50 lakh to the plaintiff and its effect? OPD (The aforesaid Issue No.1, 4 & 6 are interconnected and, therefore, they are being decided together).
CS No. 562/2018 Page No. 5 of 13Sanjay Doulat Manchandani Vs. Kamal Kishore Torani
8. The entire case of the plaintiff is based on the premise that the defendant is a tenant in the suit premises whereas the defendant claimed that the said premises was given to him by the plaintiff towards a interest free loan of Rs.50 lakh and as a security towards it. Admittedly, there is no rent agreement executed between the parties but the plaintiff claimed payment of initial security deposit of Rs.3 lakh vide a cheque dated 11.08.2010 (as two months' security deposit and one month's rent).
9. It is further claimed that the defendant started delaying the payment of rent from March, 2012 and stopped making payment of rent from September, 2013. The plaintiff has also claimed that a Memorandum of Understanding dated 24.04.2015 was executed between the parties. On the other hand, the defendant took specific plea that the amount of Rs.3 lakh and the other rental amount were paid till August, 2013 to the plaintiff towards another property which was situated in Rajasthan and not towards the suit property. The plaintiff disputed the said fact of the defendant. When the payment of said amount has been admitted by the defendant, the onus was on the defendant to prove the existence of tenancy of the other property of the plaintiff which is alleged to be situated in Rajasthan but the record reveals that the defendant did not specify any detail of the said alleged tenancy with regard to execution of the rent agreement, rent receipt, payment of electricity/water bill from time to time nor any independent witness was CS No. 562/2018 Page No. 6 of 13 Sanjay Doulat Manchandani Vs. Kamal Kishore Torani examined in this regard to prove that the defendant occupied the said property as tenant. Accordingly, this court holds that the said plea of the defendant remained unproved.
10. Besides various payments made by the defendant from time to time to him, the plaintiff has heavily relied on the MoU dated 24.04.2015 which was allegedly executed between the parties. The plaintiff duly proved on record the said document by examining himself and other witnesses. The defendant claimed that it is a forged document and it does not bear either his signature or the signature of his son. As per Section 91 and 92 of the Indian Evidence Act, a document is required to be proved generally by the party who relies on it but when its content is denied or disputed, the onus lies upon the person who makes such denial. As such, the onus was upon the defendant to prove the factum of forgery or manipulation but he did not lead any evidence in this regard. He even did not get the signatures of the said document examined from the FSL expert on the basis of comparison of his admitted signature and the signature of his son nor he examined his son as a witness, who was the attesting witness to the said document. Accordingly, this court holds that the defendant failed to prove the allegation of forgery of the said document.
11. The said MoU dated 24.04.2015 specifically find mentioned that the suit property was given on rent to the defendant and the CS No. 562/2018 Page No. 7 of 13 Sanjay Doulat Manchandani Vs. Kamal Kishore Torani outstanding amount of Rs.20 lakh was due towards rent which was agreed to be paid by the defendant in few month. In the said document, the defendant also agreed to vacate the suit premises and to create first charge on his another property (i.e. a Hotel) which is situated in Bhopal in favour of plaintiff towards the due rent. As such, this court holds that the factum of relationship between the parties as landlord and tenant has been clearly proved by the plaintiff in view of the various payments made by the defendant towards the security deposit, rent and the content of the said MoU.
12. The defendant took a very specific plea that the suit property was given by the plaintiff towards security of a loan amount of Rs.50 lakh. The amount of Rs.50 lakh is very huge and ordinarily such amount is not advanced without ensuring a written loan agreement or promissory note or a document. The defendant took a further plea that he had paid the said amount by taking it from his relative, namely, Sh.Madhav Sardana and there were certain banking transactions in this regard and the plaintiff. The defendant also placed on record certain statement of accounts but from their perusal, this court does not find any entry to correlate the said amount of Rs. 50 lakhs between the parties. Record also reveals that despite giving ample opportunities, the defendant was not serious to pursue this case nor completed his evidence and failed to produce the statement of account to show the alleged payment of amount. It also indicated that he had no defence.
CS No. 562/2018 Page No. 8 of 13Sanjay Doulat Manchandani Vs. Kamal Kishore Torani
13. The defendant also took a specific plea that the plaintiff gave the suit property as security for advancing the loan of Rs.50 lakh. This court is of the considered opinion that the said plea of the defendant is not admissible in law because handing over of immovable property as security towards some loan amount tantamount to be a mortgage transaction and for entering into such transaction, a mortgage deed is required to be registered as per the provision of the Transfer of Property Act, 1882 (except the mortgage transaction which entail deposit of title document with the lander, which is not the case herein). Therefore, the defendant has no right to retain the suit property on the plea of taking it as a security for repayment of the loan amount of Rs.50 lakh in the absence of registered mortgage deed.
14. In the light of aforesaid facts and circumstances, this court holds that the defendant miserably failed to prove his defences whereas the plaintiff succeeded in proving his stands. The amount of rent @ Rs.1 lakh per month also stands duly proved. Accordingly, the aforesaid Issues No.1, 4 and 6 are decided in favour of the plaintiff and against the defendant.
Issue No. 2: Whether the plaintiff is entitled to possession of the suit premises? OPP
15. The plaintiff has duly proved on record the legal notice and its service through the postal receipt and tracking report whereby the CS No. 562/2018 Page No. 9 of 13 Sanjay Doulat Manchandani Vs. Kamal Kishore Torani tenancy of the defendant was terminated but the defendant did not send any reply to the said legal notice which amounts to be an admission on his part.
16. In view of my aforesaid findings on the issue no.1, 4 and 6, this court holds that the defendants has no right to retain the possession of the suit property and in other words, the plaintiff entitled for recovery of the same. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
Issue No. 5 Whether the plaintiff is entitled for recovery of rent and money as claimed? OPP
17. The defendant did not prove on record payment of any rent or any other amount after September, 2013. Accordingly, the plaintiff is entitled for recovery of rent @ Rs. 1 lakh per month from September, 2013 till the date of delivery of possession of the suit property. This issue is decided, accordingly, in favour of the plaintiff and against the defendant.
Issue no. 3 If the issue no.2 is decided in favour of the plaintiff, then whether the plaintiff is entitled to recover mesne profit and damages? OPP CS No. 562/2018 Page No. 10 of 13 Sanjay Doulat Manchandani Vs. Kamal Kishore Torani
18. Since the plaintiff has duly proved on record the relationship between the parties as landlord and tenant, factum of tenancy and its termination, he is entitled for recovery of mesne profit/damages for the unpaid period of rent. The plaintiff has claimed mesne profit/damages @ Rs.2,60,000 per month. The said amount appears to be on higher side. However, keeping in mind the pleadings on record and the conduct of the defendant, this court deems it fit to award mesne profit/damages to the plaintiff at the double amount of rate of rent. Accordingly, the defendant is liable to pay mesne profit/damages @ Rs. 2 lakhs per month from the date of termination of lease w.e.f. 16.03.2018 till the date of delivery of possession of the suit property. It is made clear that the amount of rent which has already been awarded in the issue no. 5 will be deducted in the aforesaid amount of mesne profits/damages. This issue is accordingly, decided in favour of the plaintiff and against the defendant.
Conclusion/Relief
19. In the light of the aforesaid findings of issue no.1 to 6, the suit of the plaintiff is decreed as under:
(a) A decree is passed for recovery of physical vacant possession of the suit property bearing no. D-69, Third Floor, East of Kailash, New Delhi 110065 with roof right CS No. 562/2018 Page No. 11 of 13 Sanjay Doulat Manchandani Vs. Kamal Kishore Torani along with all the fittings and fixtures in good condition in favour of plaintiff and against the defendant. The defendant is directed to deliver the possession of the suit property within 30 days to the plaintiff.
(b) A further decree is passed in favour of the plaintiff and against the defendant for recovery of all defaulted arrears of rent w.e.f. 01.09.2013 till the date of delivery of possession along with interest @ 12% per annum for the defaulted period of arrears of rent (month wise) till the date of realization.
(c) The suit of the plaintiff is decreed for recovery of mesne profit/damages @ Rs. 2 lakhs per month from the date of termination of lease w.e.f. 16.03.2018 till the date of delivery of possession of the suit property. It is made clear that the amount of rent which has already been awarded above will be deducted in the aforesaid amount of mesne profits/damages.
(d) The defendant is directed to pay the outstanding utility charges like electricity and water charges till the date of vacation of the property directly to the concerned authority or to the plaintiff.CS No. 562/2018 Page No. 12 of 13
Sanjay Doulat Manchandani Vs. Kamal Kishore Torani
(e) The suit is also decreed for the relief of permanent injunction and the defendants/its agents/family members are restrained from creating any third party interest in the suit property by way of sale, mortgage, gift, lease, sublease or parting with possession or by any other recognized mode of transfer without due process of law.
20. Cost of the suit be also awarded in favour of the plaintiff and against the defendant which has been specifically shown in the decree sheet. Decree sheet be prepared accordingly. File be consigned to record room.
Announced & dictated Through VC on 09.09.2021 (Naresh Kumar Laka) Additional District Judge-03 South East District/Saket 09.09.2021 CS No. 562/2018 Page No. 13 of 13 Sanjay Doulat Manchandani Vs. Kamal Kishore Torani