Delhi District Court
Ms.Kamla Devi vs Sh. Navneet Chawla on 7 September, 2013
1
IN THE COURT OF SHRI KAPIL KUMAR, CIVIL JUDGE01
(WEST) TIS HAZARI COURTS, DELHI
Unique ID No. 02401C1410902008
SUIT NO. 460/08
Date of Institution : 16.12.2008
Date of reservation of judgment : 24.08.2013
Date of pronouncement of Judgment : 07.09.2013
IN THE MATTER OF :
Ms.Kamla Devi
W/o Sh. Metha Ram
R/o AJ7A, Shalimar Bagh
Delhi110088.
...............Plaintiff
Vs.
Sh. Navneet Chawla
S/o Sh. A.C. Chawla
Proprietor
M/s Central Electronic Industries
Shop No. 20/15
Old Market, West Patel Nagar
New Delhi11008
..........Defendant
SUIT FOR POSSESSION, RECOVERY OF
DAMAGES AND MESNE PROFITS AND COUNTER
CLAIM OF SPECIFIC PERFORMANCE OF
CONTACT OR IN ALTERNATIVE RECOVERY OF
MONEY.
Suit No 460/08
2
JUDGMENT
Case of plaintiff.
1. Plaintiff states that she is the owner/landlord of shop no. 20/15, Old Market, West Patel Nagar, New Delhi110008 ( hereinafter referred to as 'suit property.'). Further states that defendant was inducted as tenant with respect to the suit property at the monthly rent of Rs.5000/ p.m.
2. Further states that on 15.10.2003 plaintiff filed a petition for eviction against the defendant before the Rent Controller, Delhi and the said case was settled between the parties and a Memorandum of Understanding dated 01.7.2004 ( hereinafter referred to as ' MOU') was executed between the parties. However there were default and breaches in respect of the MOU on the part of defendant who had given a go bye to the MOU. Further states that MOU was unstamped and unregistered came to an end as it was not acted upon the defendant. Further states that the defendant continued to pay the rent and became a month to month tenant qua the suit property at the monthly rent of Rs. 4500/ which was enhanced to Rs. 5,000/ p.m wef 01.4.2007.
3. Further states that on 13.1.2005 a letter from the defendant addressed to the husband of plaintiff was received making inter alia false allegations which was replied by the plaintiff's husband through Advocate vide replycumnotice dated 15.1.2005 wherein the defendant was once again called upon to purchase the stamp papers and Suit No 460/08 3 get the lease deed prepared which again the defendant miserably failed to do so.
4. Plaintiff further states that a legal notice dated 21.10.2008 was issued to the defendant thereby calling upon the defendant inter alia to hand over to the plaintiff the peaceful and vacant possession of the suit property. The said notice was served upon the defendant on 24.10.2008 and accordingly the tenancy of defendant stands terminated.
5. Further states that notice dated 21.10.2008 sent by the plaintiff was replied by the defendant through his Advocate inter alia making false and baseless allegations. Plaintiff vide rejoinder notice dated 20.11.2008 clarified the correct state of affairs but no reply was sent to the plaintiff against the said rejoinder. However the plaintiff was shocked to receive an envelope through registered post containing two blank white papers. Plaintiff vide letter dated 06.12.2008 asked the defendant to confirm whether the said envelope containing two blank white papers has been sent to her and if so for what purpose but no reply/confirmation/clarification received by the plaintiff qua this from the defendant.
6. Plaintiff further states that despite the termination of tenancy the defendant has not handed over the vacant and peaceful possession of suit property and continues to retain the possession of the suit property unauthorizedly and illegally. Hence the present suit.
7. Vide present suit plaintiff is praying for the relief that a Suit No 460/08 4 decree of recovery of possession of the suit property be passed in favour of plaintiff and against the defendant. Further a decree of sum of Rs. 5,000/ be passed in favour of plaintiff on account of damages from 09.11.2008 till the filing of the suit alongwith the mesne profits from the date of filing of suit till the handing over the possession of the suit property by the defendant to the plaintiff. Case of defendant.
8. By virtue of preliminary objections defendant took the objection as to the bar of jurisdiction of the court as the rent of the suit property is Rs.2,350 p.m. Further states that defendant was the tenant @ Rs. 2350/ p.m and in the mean time plaintiff filed a petition of eviction against the defendant and during that proceeding a MOU was executed between the parties. As per MOU the defendant had agreed to increase the rent from Rs. 2,350/ to Rs. 4,500/ p.m in consideration of undertaking of plaintiff to execute a lease deed in favour of defendant for the period of 20 years with respect to the suit property. Further states that it was mentioned in MOU that if the plaintiff failed to execute the lease deed in favour of defendant for 20 years, the respective possession of both the parties would automatically revived as existed on the date of MOU. Further states plaintiff failed to comply with the undertaking of MOU with the result the plaintiff was not entitled to increase the rent and the defendant continues to be the tenant @ Rs.2,350/ p.m and accordingly the present suit is liable to be dismissed as the plaintiff concealed the material facts and not Suit No 460/08 5 approached the court with clean hands.
9. Defendant further states that he was the tenant of the plaintiff with respect to the suit property at the monthly rent of Rs. 2,350/ . The rent was increased to Rs. 4,500/ p.m as per the terms and conditions of MOU and defendant paid the rent @ Rs. 4,500/ p.m w.e.f 01.4.2004 to 31.3.2007. The rent was liable to be increased by 10 % after the expiry of three years. Although the increased rent was payable @ Rs. 4,950/ but in order to make it a round figure defendant began to pay the rent @ Rs. 5,000/ p.m at the request of plaintiff. At that time also plaintiff has undertaken to execute the necessary lease deed and assured the defendant to not to worry as he would enjoy the suit property for 20 years.
10. Defendant states that he has not received the reply cum notice dated 15.1.2005 and states that from the perusal of documents supplied by the plaintiff the alleged replycum notice purports to have been sent by registered post at the address 123, Kailash Hills, New Delhi. The acknowledgment of the receipt of said amount is not signed by the defendant. Further M/s Arora Property where that replycum notice was sent is nothing to do with the defendant. Further states that even after 15.1.2005 plaintiff had been assuring the defendant to execute the necessary lease deed and promised that she will execute the lease deed after returning from Panama but till date no such lease deed is executed.
11. Defendant further states that he received notice Suit No 460/08 6 21.10.2008 but the plaintiff does not have any right to terminate the tenancy of defendant and is bound to comply with her undertaking given in Memorandum of Understanding as per which plaintiff has no right to call the defendant to vacate the suit property for 20 years w.e.f. 01.4.2004. Defendant admitted that he sent a reply dated 03.11.2008 to the notice dated 21.10.2008 thereby asking the plaintiff to comply Memorandum of Understanding.
12. By virtue of counter claim the defendant is praying for the decree of specific performance against the plaintiff thereby directing the plaintiff to execute the Lease Deed for a period of 20 years and to get the same registered or in alternative a decree of sum of Rs. 1,33,050/ be passed in favour of defendant and against the plaintiff for recovery of excess rent paid by defendant to the plaintiff.
13. Replication filed on behalf of plaintiff wherein she states that there is no registered Lease Deed between the parties and thus the defendant is a month to month tenant and accordingly his tenancy stands terminated by virtue of notice U/s 106 of Transfer of Property Act dated 21.10.2008. Further states that the counter claim of defendant is hopelessly time barred and is liable to be dismissed. In rest of the replication plaintiff denied all the contentions of defendant and reiterated her stand as taken by her in the plaint.
14. Rejoinder to the replication filed on behalf of defendant wherein he denied all the submissions of plaintiff and reiterated his stand as taken by him in the Written Statement/Counter Claim. Suit No 460/08 7
15. Vide Order dated 1.2.2010 following issues were framed by the Ld. Predecessor of this court :
1.Whether this court has no jurisdiction to try and entertain the present suit it being ousted by Delhi Rent Control Act ? OPD
2.Whether the plaintiff is entitled to a decree for possession as prayed for ? OPP
3. Whether the plaintiff is entitled for damages as prayed for ? OPP
4. Whether the plaintiff is entitled for mesne profits as prayed for ? OPP
5.Whether the defendant/counter claimant is entitled to a decree of specific performance or in alternative to decree for recovery as prayed for ?
OPD
6. Whether the counter claim of the defendant is barred by limitation ? OPP ( added vide Order dated 16.12.2011)
7. Relief.
16. In plaintiff evidence Sh. Ravi Sawlani was examined as PW1 and Sh. Mehta Ram as PW2. They relied upon following documents :
" Site plan Ex. PW 1/1;notarized copy of memorandum as Ex. PW 1/ 2; letter Ex. PW Suit No 460/08 8 1/3 , original envelope Ex. PW 1/ 4; reply cumnotice dated 15.1.2005 Ex. PW 1/5; original certificate of posting and postal receipts Ex. PW 1/6 and Ex. PW 1/7;
acknowledgment card Ex. PW 1/8; notice dated 21.10.08 Ex. PW 1/9; original certificate of posting Ex. PW 1/10; original postal receipt Ex. PW 1/11;courier receipt Ex. PW 1/12; postal acknowledgment Ex. PW 1/13; reply dated 03.11.2008 Ex. PW 1/14;
envelope Ex. PW 1/15; reply dated 20.11.2008 Ex. PW 1/16; original certificate of posting Ex .PW 1/17; two postal receipts Ex. PW 1/18 & Ex. PW 1/19; courier receipts Ex. PW 1/20 & Ex. PW 1/21;
confirmation of service Ex. PW 1/22 & Ex. PW 1/23; original envelope Ex. PW 1/24; letter dated 06.12.2008 Ex. PW 1/25; postal receipt Ex. PW 1/26; UPC receipt Ex. PW 1/27; courier receipt Ex. PW 1/28; notice dated 25.11.2005,01.11.2008 and 10.12.2008 as Ex. PW 1/29, envelope as Ex. PW 1/30; reply dated 29.12.2008 Ex. PW 1/31; certificate of posting Ex. PW 1/32; two postal Suit No 460/08 9 receipts Ex. PW 1/33 & Ex. PW 1/34; courier receipts as Ex. PW 1/35 & Ex. PW 1/36; confirmation of delivery Ex. PW 1/37 and Ex. PW 1/38; copy of statement of account Ex. PW 1/39 lease deeds executed between third parties Ex. PW 1/40 to Ex. PW 1/42. "
17. Defendant examined himself as DW1. He relied upon the MOU which was already exhibited as PW 1/ 2 and letter dated 02.12.2008 as Ex. DW 1/1.
18. I have heard arguments advanced by Ld. Counsels for parties and carefully perused the record.
19. My issuewise findings are as under :
20. ISSUE NO. 2 & 6
Whether the plaintiff is entitled to a decree for possession as prayed for ? OPP Whether the counter claim of the defendant is barred by limitation ? OPP The onus to prove these issues was upon the plaintiff.
21. These issues are taken together as they are interlinked issues and finding upon them will depend upon appreciation of common facts and evidences.
22. The capacity of defendant as tenant in the suit property is an admitted fact. In a suit for eviction of tenant, plaintiff has to prove Suit No 460/08 10 the following three facts :
1. Relationship of landlord and tenant
2. Rent more than Rs. 3,500/
3. Service of notice of termination of tenancy U/s 106 of Transfer of Property Act.
23. By virtue of written statement defendant admitted that he is a tenant under the plaintiff qua the suit property. Hence, the first requirement i.e relationship of landlord and tenant stands established.
24. Execution of memorandum of understanding Ex. PW 1/ 2 between the parties is an admitted fact. Earlier litigation between the parties in the court of Ld. ARC was disposed off as per terms of Ex.
PW 1/ 2. It is necessary to refer the following clauses of MOU Ex. PW 1/ 2:
1. "That the second party shall continue to be tenant in the above stated property i.e 20/15, Old Market, West Patel Nagar, New Delhi for coming 20 years and in case it is found expedient that time of lease will be extended, same will be extended by mutual consent of the parties to the present MOU.
2. That the First Party undertakes to execute a lease deed in favour of the Second Party for the above mentioned period of 20 years in respect to the above mentioned Suit No 460/08 11 property bearing no. 20/15, West Patel Nagar, New Delhi as soon as possible and in case First Party fails to execute the lease deed in favour of the Second Party the respective positions of both the parties will automatically revived as they are on today.
.......
6. That the First Party shall be issuing receipt of the rent @ Rs. 4,500/ p.m only with abovestated increase of 10 % in every three years.
7. That the Second Party shall clear every dues since 3.4.2004 outstanding towards it as soon as possible at the agreed rate of rent Rs.
4,500/ per month and for the same due receipt will be issued by the First Party and it shall not creat any right in favour of the First Party to get the abovesaid premises evicted in view of any law enforceable at present or any other law in future. It is further agreed and undertaken by the First Party that First Party shall not issue any notice to demand the possession of the abovesaid premises in any manner before the expiry of the abovesaid Suit No 460/08 12 period of 20 years.
25. Accordingly as per Clause 1 of MOU the defendant shall remain tenant in the suit property for 20 years w.e.f 01.7.2004 and as per Clause 2 plaintiff has to execute Lease Deed in favour of defendant for a period of 20 years qua suit property and in case plaintiff failed to execute lease deed in favour of defendant then the defendant would remain tenant in the suit property @ Rs, 2350/ p.m. As per MOU the rent was fixed @ Rs. 4,500/ with 10 % increase after every three years. It was further agreed between the parties that plaintiff will not issue any notice for demand of possession of the suit property for 20 years.
Ld. counsel for plaintiff vehemently argued that MOU Ex. PW 1/ 2 cannot be read in evidence as the same is not stamped and registered. Ld. counsel further argued that the MOU is compulsorily registrable U/s 17 of Indian Registration Act being a lease deed for 20 years. The submission of Ld. counsel for plaintiff has no force as the MOU Ex. PW 1/ 2 is not required to be stamped or registered because the MOU Ex. PW 1/ 2 is not a lease deed rather it is an agreement to lease. Agreement to lease does not require any stamp duty or registration. Here distinction has to be drawn between the lease deed and agreement to lease. Lease deed implies transfer of some rights in the immovable property in present. On the other hand agreement to lease only gives right to get lease deed executed in future. Ex. PW 1/ 2 gives the right to defendant to get a new document in future in the form of lease deed. By virtue of Clause 3 of Ex. PW 1/ 2 plaintiff undertook Suit No 460/08 13 to execute lease deed for 20 years, this implies an agreement to lease between the parties rather a lease deed. Hence there is no requirement as to the payment of stamp duty or of registration of Ex. PW 1/ 2. Ex. PW1/2 is admissible in evidence.
26. It is not the case of plaintiff that MOU was executed by coercion, force or undue influence. Hence the MOU Ex. PW 1/ 2 is a contract between the parties and the parties are bound to honour the terms of Ex. PW 1/ 2.
27. By virtue of counter claim defendant prays for the specific performance of MOU Ex. PW 1/ 2 i.e direction be given to plaintiff to execute lease deed for 20 years. Ex. PW 1/ 2 was executed between the parties on 01.7.2004 . Counter claim was preferred on 12.2.2009 i.e around 4 ½ years of execution of Ex. PW 1/ 2. As per Article 54 of Limitation Act, 1963 a suit for specific performance of contract has to be instituted within three years of the day fixed for the performance, or if no such date is fixed when the person who filed the suit noticed that performance has been refused by opposite party.
28. Admittedly letter Ex. PW 1/ 3 was sent by defendant to the plaintiff. Vide clause 4 of Ex. PW 1/3 it is mentioned by defendant that plaintiff has to comply MOU within seven days after the receipt of Ex. PW 1/ 3 otherwise the defendant will terminate the MOU Ex. PW 1/ 2. Allegedly plaintiff replied the same vide letter dated 15.1.2005 Ex. PW 1/5. Defendant denied the service of Ex. PW 1/ 5 upon him. Ex. PW 1/ 5 was sent upon property bearing no. 123, Kailash Hills, Suit No 460/08 14 New Delhi. UPC Ex. PW 1/6, postal receipt Ex. PW 1/7 and acknowledgment Ex. PW 1/8 are placed on record. Defendant/DW1 admitted that he was residing in Kailash Hills till 2006. In view of admission of DW1 as to his place of residence in the year 2005 read with Ex. PW 1/6 to Ex. PW 1/8 service of Ex. PW 1/5 stands proved.
29. Vide Ex. PW 1/5 plaintiff mentioned that defendant has to purchase the stamp papers necessary for execution of lease deed. The case of defendant since beginning is that as per clause 2 of MOU Ex. PW 1/ 2 plaintiff has to purchase the stamp papers. DW1 deposed the same in crossexamination also. Vide Ex. PW 1/5 defendant must have known that plaintiff is not interested in execution of lease deed as per Ex. PW 1/ 2, vide which plaintiff undertook to execute lease deed in favour of defendant. For the sake of arguments if it is assumed that Ex. PW 1/5 was not received by the defendant then also defendant must have known about the intention of plaintiff as to the nonexecution of lease deed as per MOU after the service of Ex. PW 1/3. Admittedly even after the service of Ex. PW 1/3 and seven days thereafter plaintiff not executed the lease deed. In the written statement defendant mentioned the date of Ex. PW 1/ 3 as 13.1.2005. The same must have been received to plaintiff by 20.1.2005. Till 27.1.2005 seven days time given vide Ex. PW 1/ 3 also expired . Hence the period of limitation for the specific performance of contract which is MOU in the present case must have been started maximum from the month of February, 2005 which stood expired on 01.3.2008. The Suit No 460/08 15 counter claim filed on 12.2.2009 and accordingly the same is time barred. Hence the defendant is not entitled to specific performance of MOU and accordingly is not entitled for execution of lease deed for 20 years.
30. Now reverting back to the case of plaintiff as to the relief of possession. As per Clause 2 of MOU plaintiff undertook to execute lease deed in favour of defendant. The averment of the plaintiff that defendant has to purchase the stamp papers cannot be relied upon. It is clear from the perusal of clause(2) that it was the plaintiff only who undertook to execute lease deed and implied it is the duty of plaintiff to purchase stamp papers. Intention of parties has to seen by reading the document as whole rather in piecemeal. If clause 1,2 and 7 be read together the only inference come out that the plaintiff was under
obligation to purchase stamp papers and to do necessary formalities, which she admittedly not did and accordingly as per Clause 2 parties revert back to their respective positions which they had prior to the execution of MOU Ex. PW 1/ 2 i.e the defendant shall remain tenant @ 2350/ p.m.
31. The payment of rent @ Rs. 4,500/ p.m and thereafter @ 5000/ p.m by the defendant, as per the Clause 6 of MOU, was the only obligation on the part of defendant. Now as the plaintiff failed to perform his obligation as to the execution of lease deed in favour of defendant and accordingly the defendant would remain tenant @ monthly rent of Rs. 2,350/ p.m. Suit No 460/08 16
32. Accordingly it is stands proved on record that defendant is a tenant at the monthly rent of Rs. 2,350/ p.m. and hence the present suit is hit by Section 50 of Delhi Rent Control Act and the plaintiff is not entitled to possession of the suit property, by virtue of present suit.
Issue no. 2 is decided in the favour of defendant and against the plaintiff.
Issue no. 6 is decided in favour of plaintiff and against the defendant.
33. ISSUE No. 5
Whether the defendant/counter claimant is entitled to a decree of specific performance or in alternative to decree for recovery as prayed for ? OPD The onus to prove this issue was upon the defendant. In view of findings on the Issue no. 6, the claim of defendant as to the specific performance of contract i.e execution of lease deed for 20 years is time barred.
34. Now coming to the alternative prayer of the defendant as to the recovery of Rs. 1,33,050/
35. In view of findings on issue no.2 it is clear that plaintiff not performed his part of obligation as per MOU and as per Clause 2 of MOU Ex. PW 1/ 2 and defendant will remain the tenant @ Rs. 2,350/ p.m. The plaintiff is under obligation to return the excess amount received by her from the defendant. Defendant is entitled the excess Suit No 460/08 17 paid amount for the legally recoverable period only . The present counter claim was filed on 12.2.2009 and accordingly the defendant is entitled to recovery of excess rent paid from the month of February, 2006 which comes to Rs. 88,644/. No prayer as to the interest was made by the defendant. Accordingly the defendant is not entitled to interest.
Alternative prayer of recovery of amount of defendant is allowed and thus the present issue is decided in favour of defendant and against the plaintiff.
36. ISSUE No. 1
Whether this court has no jurisdiction to try and entertain the present suit it being ousted by Delhi Rent Control Act ? OPD The onus to prove this issue was upon the defendant. In view of findings on issue no.2 , the present suit is hit by Delhi Rent Control Act.
Issue is decided in favour of defendant and against the plaintiff.
37. Issue no.3 and 4 Whether the plaintiff is entitled for damages as prayed for ? OPP Whether the plaintiff is entitled for mesne profits as prayed for ? OPP The onus to prove these issues was upon the plaintiff. Suit No 460/08 18 In view of findings on Issue No.1 and 2 the plaintiff is not entitled to any damages or mesne profits.
Issues are decided in favour of defendant and against the plaintiff.
38. RELIEF In view of findings on issue no. 1, 2,3 and 4 the suit of the plaintiff is dismissed.
In view of findings on Issue no. 6 the counter claim of the defendant as to the specific performance of MOU i.e execution of lease deed for 20 years w.e.f 01.7.2004 is dismissed but as per finding on issue no. 5, the defendant is entitled to recovery of sum of Rs. 88,644/ from the plaintiff.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( Kapil Kumar ) on 07.9.2013. Civil Judge 01 ( West)/Delhi Suit No 460/08