Delhi District Court
Late Smt. S.K. Agarwal vs M/S. Tirupati Structurals Limited on 13 September, 2018
IN THE COURT OF SH. SANJEEV KUMAR-I
ADDITIONAL DISTRICT JUDGE-12, CENTRAL,
TIS HAZARI COURTS, DELHI
Suit No. 400/16
New CSDJ No.16004/16
Late Smt. S.K. Agarwal
(Since Deceased) Through her LRs:-
a) Sh. Ashok Agarwal
S/o Late Sh.L.S. Agarwal
R/o 30-B, Malcha Marg,
New Delhi-110021.
b) Sh. Harsh Agarwal
S/o Late Sh.L.S. Agarwal
R/o 30-b, Malcha Marg,
New Delhi-110021. ...Plaintiff
Versus
M/s. Tirupati Structurals Limited
81, Functional Industrial Estate,
Patparganj,
New Delhi-110092.
Second Address
A-6/5, Site-4, Industrial Area,
Sahibabad,
Distt. Ghaziabad (U.P.) 201010 ...Defendant
Date of institution : 09.01.2009
Date of reserving order : 11.09.2018
Date of decision : 13.09.2018
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF
RENT, DAMAGES AND FUTURE MESNE PROFITS/DAMAGES
S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 1 of 14
JUDGMENT
1. Present suit has been filed for recovery of possession, arrears of rent, damages and future mesne profit/ damages, filed by the plaintiff.
2. Brief facts as stated in the plaint are that plaintiff is the owner/ landlady of premises bearing no.15/1, Asif Ali Road, New Delhi-110002 and she gave the 400 sq. ft. area of rear portion of the 3rd floor of the same to the defendant on monthly rent of Rs.4,000/- excluding water and electricity charges. Since the plaintiff do not want to keep the defendant as tenant, she served a legal demand notice dated 03.12.2008 upon the defendant terminating the tenancy and asking him to handover the premises, failing which he will be liable to pay damages/mesne profit @ Rs.30,000/- per month i.e. the prevalent market rate of rent. The defendant was also in arrear of rent @ Rs.4,000/- per month excluding water and electricity charges from 01.01.2007 till the date of termination of tenancy and defendant was also asked to pay the said amount through the said legal notice and since defendant has also caused substantial damages to the premises by breaking the flooring, tiles, walls, sanitary and electrical fittings S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 2 of 14 etc, therefore he was also asked to pay a sum of Rs.3,00,000/- towards damages caused to the premises. It is further stated by the plaintiff that despite service of demand notice, defendant failed to handover the vacant possession of the premises and defendant sent reply dated 18.12.2008 raising frivolous and untenable pleas, thus he has claimed possession of the suit premises besides claiming Rs.96,000/- as arrears of rent and Rs.3,00,000/- as damages caused to the premises and also claimed damages/ mesne profit @ Rs.30,000/- per month w.e.f. 01.01.2009 till the date of handing over the vacant possession of the suit premises.
3. Summons of the suit were sent to the defendant and defendant contested the suit by filing written statement. In the written statement, defendant has taken the preliminary objections that relationship between the plaintiff and defendant is that of lesser and lessee and they are bound by the terms of oral lease deed entered into between them. The defendant is sister concern of M/s Advance Steel Tubes Ltd. which has taken a portion of 1800 sq. ft. in the front portion of the very same floor in the same building and there was written lease deed and based on the relation of the parties the present oral lease deed was entered into S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 3 of 14 between the parties for the said portion of the premises and as per the oral lease deed it was mutually agreed between the parties that initially the lease deed will be renewed if lessee opts to continue with the usage of the premises and same may be done on the oral intimation to the lesser and enhancement of the rent @ 20% on the last rent paid. The last paid rent by the defendant to the plaintiff was Rs.4,000/- p.m. and from 01.01.2007 onwards, plaintiff stopped accepting the cheques issued by defendant towards rent without assigning any specific reasons. The defendant is conducting his office from the said premises for the last several years and above address is part of his business circle. Therefore, raising baseless allegations and threatening the defendant from eviction from the premises is arbitrary and illegal for which defendant is entitled to receive compensation.
On merits, defendant has admitted of taking the premises on rent and last paid rent was Rs.4,000/- per month. The defendant has denied that present market rate of rent is Rs.30,000/- per month. It is stated that the lease deed produced by the plaintiff regarding Fulterton India Credit Company Pvt. Ltd. was purposefully made for the present purpose and the rent shown S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 4 of 14 therein is intentionally hiked. Even otherwise the rent in the said lease deed cannot be compared and taken as yardstick as terms of both the agreements differs. Further the floors are also different and the facilities provided in the agreement are much more than what has been given to the defendant. Further it is denied that amount of Rs.3,00,000/- is to be paid to the plaintiff by way of damages. Further defendant has also denied that defendant is in unauthorized occupation of the premises. Thus defendant has claimed dismissal of the suit.
4. Plaintiff filed replication to the said written statement in which he denied the contents of written statement as incorrect and reiterated the contents of plaint as true and correct.
5. Vide Order dated 28.10.2010, my Ld. Predecessor has passed a preliminary decree under Order XII Rule 6 CPC in favour of the plaintiff directing the defendant to handover the possession of the suit property to the plaintiff. Further as admitted by the parties, the possession of the suit premises was taken by the plaintiff in pursuance of the said decree on 01.08.2011.
6. Therefore my Ld. Predecessor vide order dated 15.11.2010 S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 5 of 14 did not frame the issue of possession and framed the following issues :-
1. Whether the plaintiff is entitled for the decree of damages @ Rs.30,000/- per month or at such rate as may be determined w.e.f. 01.01.09, as prayed?
(OPP)
2. Whether the plaintiff is entitled for the recovery of Rs.96,000/- towards arrears of rent w.e.f. 1.01.07 till 31.12.08 @ Rs.4,000/- per month, as prayed? (OPP)
3. Whether the plaintiff is entitled for the decree of Rs.3,00,000/- for the damages caused by the defendant to the suit property, as prayed? (OPP)
4. Whether the plaintiff is entitled to the pendente lite and future interest as prayed? If yes, then at what rate and for what period? (OPP)
5. Whether the suit of the plaintiff is without any cause of action? (OPD)
6. Relief.
7. During the pendency of the case, plaintiff has expired and S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 6 of 14 vide Order dated 01.11.2012 his LRs namely Sh. Ashok Agarwal and Sh. Harsh Agarwal were substituted in place of plaintiff.
8. In order to prove their case, plaintiffs have examined its Manager Sh.Vinod Kumar Sharma as PW1 who led his evidence by way of affidavit Ex.PW1/A. My Ld. Predecessor closed the right of cross-examination of this witness by defendant vide order dated 02.03.2017 as defendant has not appeared for cross-examination. Though the defendant has filed an application for recalling the plaintiff witnesses but the said application was dismissed in default vide order dated 24.07.2017 and his defence was also struck off.
9. Arguments heard from Ld. Counsel for the plaintiff.
10. I have considered the submissions and gone through the records. My issuewise findings are as under:-
ISSUE NO.1 Whether the plaintiff is entitled for the decree of damages @ Rs.30,000/- per month or at such rate as may be determined w.e.f. 01.01.09, as prayed? (OPP)
11. The onus to prove this issue was upon the upon the plaintiff. In order to prove the same, plaintiff has relied upon the testimony S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 7 of 14 of PW1 Sh. Vinod Kumar Sharma, its Manager who has deposed through his affidavit Ex.PW1/A that he is Manager (Estate) of the plaintiff and has personal knowledge of the case and he is the General Power of Attorney of the plaintiff. He also deposed that plaintiff is the landlady of the premises in question and defendant was tenant for a monthly rent of Rs.4,000/- excluding water and electricity charges. Since plaintiff no longer wanted to keep the defendant as tenant, therefore had sent a legal notice dated 03.12.2008 upon the defendant terminating the tenancy after 15 clear days of service of notice and asking for Rs.30,000/- per month towards damages/mesne profit arising out of unauthorized use and occupation of the premises after said date. He also deposed that defendant was in arrears w.e.f. 01.01.2007 till the date of termination of tenancy. He also deposed that defendant has caused sufficient damages to the premises, therefore defendant is liable to pay Rs.3,00,000/- as damages caused to the premises. He has relied upon following documents :-
(i) GPA dated 10.08.2011 Ex.PW1/1.
(ii) Certified copy of perpetual lease deed dated 12.06.1952 Ex.PW1/2.
S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 8 of 14
(iii) Site plan Ex.PW1/3.
(iv) Legal notice along with postal receipts, AD Card, UPC Ex.PW1/4 to Ex.PW1/15 respectively.
(v) Letters dated 22.03.2006, 18.06.2006 and 17.10.2006 are Ex.PW1/16 to Ex.PW1/18.
(vi) Reply dated 18.12.2008 Ex.PW1/19.
(vii) Certified copy of lease deed dated 23.08.07 bearing his signatures at point A Ex.PW1/20.
12. It is settled law that even if testimony of plaintiff remain unrebutted, the plaintiff is liable to prove his own case. PW1 in order to prove that market rate of rent is Rs.30,000/- per month has only relied upon the lease deed of the same premises Ex.PW1/20. Ld. Counsel for the plaintiff has argued that said lease deed is of the same premises therefore is the best piece of evidence to prove the market rate of rent.
I have considered the submissions. On perusal of the lease deed Ex.PW1/20 it is evident that said lease deed has been executed on 23.08.2007 between Laxman Foundation (800 Sq.Ft.) & M/s Sylvania & Laxman Ltd. (1700 Sq.Ft.) and Fullerton India Credit Company Ltd. for the lease of 2500 sq.ft. of built up area S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 9 of 14 located on ground floor of the building known as "Laxman House"
situated at 9,10,11/3, Asif Ali Road, New Delhi. Hence the lease deed is of different floor than that of plaintiff which is third floor. It is known fact that even in a commercial area, there is huge difference in the market rate of rent of ground floor and third floor. Hence lease deed Ex.PW1/20 is of no assistance to the plaintiff to prove the actual market rate of rent prevalent at the time when the suit was filed, hence same cannot be relied upon to prove that market rate of rent of suit premises is Rs.30,000/- per month. However, as admitted by the defendant in the written statement that rate of rent has to be increased @ 20% on the last paid rent, therefore in my view since the defendant has kept the premises unauthorizedly after 15 days after 03.12.2008 i.e. service of demand notice till 01.08.2011, defendant is liable to pay the 15% increase in rent every year till he remained in possession. Hence the rate of rent comes to:-
Period Rate of rent p.m. Rent (Rs.)
01.01.09 to 31.12.09 @ Rs.4,600/- 55,200/-
01.01.10 to 31.12.10 @ Rs.5,290/- 63,480/-
01.01.11 to 31.07.11 @ Rs.6,084/- 42,588/-
TOTAL 1,61,268/-
S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 10 of 14
Hence I held that plaintiff is entitled to recovery of Rs.1,61,268/- (One Lakh Sixty One Thousand Two Hundred Sixty Eight) as damages w.e.f. 01.01.2009 to 01.08.2011. Issue no.1 is decided accordingly.
ISSUE NO.2 Whether the plaintiff is entitled for the recovery of Rs.96,000/- towards arrears of rent w.e.f. 1.01.07 till 31.12.08 @ Rs.4,000/- per month, as prayed? (OPP)
13. Plaintiff has claimed recovery of rent w.e.f. 01.01.07 till 31.12.08 @ Rs.4,000/- per month. Defendant has admitted in the written statement that the rent has not been paid from 01.01.2007 though he stated that plaintiff has stopped taking the cheques of the said rent. Whatever the case may be, since the rent has not been paid from 01.01.2007 till 31.12.2008. Therefore, I held that plaintiff is entitled to recovery of said rent i.e.96,000/-. Issue No.2 is decided accordingly in favour of the plaintiff and against the defendant.
S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 11 of 14 ISSUE NO.3 Whether the plaintiff is entitled for the decree of Rs.3,00,000/- for the damages caused by the defendant to the suit property, as prayed? (OPP)
14. Thought the plaintiff has claimed that defendant has caused damages to the suit property but in his affidavit he has not explained what damages defendant has caused to the premises in question and has not proved any document that Rs.3,00,000/- was spent on repair of the premises. Hence I held that plaintiff is not entitled to recovery of Rs.3,00,000/- as damages for compensation for the damages. Issue no.3 is decided accordingly against the plaintiff.
ISSUE NO.4 Whether the plaintiff is entitled to the pendente lite and future interest as prayed? If yes, then at what rate and for what period? (OPP)
15. In view of my findings of issue nos.1 & 2, defendant is liable to pay Rs.2,57,268/- to the plaintiff towards recovery of damages and rent which he did not pay, therefore, defendant has debarred S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 12 of 14 the plaintiff to use the said amount wrongfully and wrongly gain himself by using the said amount, hence he is liable to pay interest on the said amount. Hence I grant interest @ 10% per annum on the said amount from the date of termination of the tenancy i.e. 01.01.2009 till its realization. Issue No.4 is decided accordingly. ISSUE NO.5 Whether the suit of the plaintiff is without any cause of action? (OPD)
16. The onus to prove this issue is upon the defendant but defendant has not led any evidence to prove that suit is without any cause of action. Even otherwise in view of my findings of above issues, it is apparent that the plaintiff has sufficient cause of action to file the present suit as defendant has remained unauthorizedly in occupation of the suit property after termination of the lease by the plaintiff. In view of the above, I decide the issue no.5 in favour of plaintiff and against the defendant. RELIEF
17. In view of my above findings of issue no.1 to 5, I held that plaintiff is entitled for recovery of Rs.2,57,268/- along with interest S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 13 of 14 @ 10% per annum on the said amount from the date of termination of the tenancy i.e. 01.01.2009 till its realization. Plaintiff is also entitled to the cost of the suit. Plaintiff to pay deficient court fees, if any. Decree sheet be prepared accordingly after payment of the deficient court fees, if any. File be consigned to Record Room. Announced in the open Court on 13.09.2018 (SANJEEV KUMAR-I) Additional District Judge-12, (Central), Tis Hazari Courts, Delhi.
Digitally
signed by
SANJEEV
SANJEEV KUMAR
KUMAR Date:
2018.09.13
17:34:31
+0530
S.K. Agarwal Vs. M/s Tirupati Structurals Ltd. Page 14 of 14