Delhi District Court
Mrs. Rama Rani Aggarwal vs M/S Ajs Builders Pvt.Ltd on 10 August, 2011
IN THE COURT OF SHRI VIMAL KUMAR YADAV:
ADDL. DISTRICT JUDGEII (NORTH): DELHI
CS No. : 375/09
Mrs. Rama Rani Aggarwal
W/o Mr. R.S. Aggarwal
R/o Naya Talab, Satna
Madhya Pradesh
Also at :
30, Hanuman Road
New Delhi110001 ... Plaintiff
Versus
M/s AJS Builders Pvt.Ltd.
1E/2, Jhandewalan Extension
New Delhi
Also at :
1st floor, 8 Shaheed Bhagat Singh Marg
New Delhi110001
Also at :
flat No.805, 8th Floor,
Antriksh Bhawan, 22, Kasturba
Gandhi Marg, New Delhi110001 ... Defendant
Date of Institution : 19.01.2007
Date of arguments : 06.08.2011
Date of Decision : 10.08.2011
JUDGMENT
The suit filed on behalf of the plaintiff for ejectment, mesne profit/ damages on account of use and occupation charges against the defendant is hereby disposed off through this judgment.
2. Succinctly, the brief facts against the backdrop of which the present case has emerged are that the defendant was tenant under the plaintiff with respect to flat No.805, 8th floor, Antriksh Bhawan, 22 Kasturba CS No.375/09 1 Gandhi Marg, New Delhi at a monthly rent of Rs.26,720/ and was also under an obligation to pay the electricity, water and maintenance charges etc. The month to month tenancy was terminated by the plaintiff through a legal notice dated 18.1.2007, pursuant to which its reply dated 31.1.2007 was given by the defendant refusing to comply. The instant suit was, thus, filed on behalf of the plaintiff claiming therein that not only the defendant be ejected from the suit property but be also called upon to pay the damages/ mesne profit for use and occupation till February, 2007 at the rate at which the rent was being paid to the plaintiff and thereafter from 1.3.2007 the defendant be called upon to pay the sum of Rs.99,300/ or higher rent which may be prevailing in the vicinity in respect of the premises in question. The plaintiff has worked out the outstanding amount of Rs.4,50,640/ till the institution of the suit and demanded a sum of Rs.99,300/ per month thereafter together with interest at the rate of 24% per annum.
3. The defendant while contesting the suit raised certain preliminary objections to the effect that the defendant was tenant for three years which was further extendable for another three years, therefore, not a tenant on month to month basis, which fact has been suppressed by the plaintiff. The period of lease which initially began from 20.9.2004 was extendable for two more blocks of three years and, therefore, the suit filed on behalf of the plaintiff was being premature since the plaint is dated 16.7.2007 and the notice is dated 18.1.2007, whereas the defendant could have continued in the suit premises w.e.f. 20.9.2007. It is further submitted on CS No.375/09 2 behalf of the defendant that verbally the parties had agreed to extend the tenancy for the period of three years on the expiry i.e. till 20.9.2010 and the defendant too had also agreed to enhance the rent by 20%, but the plaintiff started avoiding the acceptance of rent with ulterior motives. Thus, the lease was in subsistence and could not have terminated.
4. The rate of rent and the payment with regard to the amenities has not been denied by the defendant. Since the notice has also not been denied rather the notice as well as the reply filed by the defendant, both has been admitted, which restricts/ confines the dispute. The present rate of rent on the basis of which the damages has been calculated and demanded by the plaintiff has been albeit disputed by the defendant by asserting that the defendant is liable to pay rent by enhancing it to 20% on the existing rate of rent of Rs.26,720/ per month. The other assertions have been denied by the defendant.
5. In the replication, the grounds taken by the defendant have been controverted and the case as set up in the plaint has been reiterated by the plaintiff especially the fact that no understanding was there to extend the lease period for three years. The lease was never for three years and in any case, the same being beyond a year is required to be registered essentially which was not the case, therefore, the tenancy was a month to month tenancy, which has been properly terminated by the plaintiff, therefore, the plaintiff is not only entitled to evict the defendant but to claim damages as well.
6. On the pleadings of the parties, the following issues were framed CS No.375/09 3 on 14.1.2008:
1. Whether the suit is premature? OPD.
2. Whether the plaintiff is entitled for possession of suit property? OPP.
3. Whether plaintiff is entitled for recovery of mesne profit and damages for use and occupation? If so at what rate? OPP.
4. Relief.
7. In support of her case, the plaintiff has examined her attorney Shri Ashok Gupta as PW1 and Shri Sunil Srivastava, as PW2 and closed her evidence. Defendant has not led any evidence despite several opportunities granted to him and on 15.2.2011, the defendant was proceeded exparte and its evidence was also closed.
8. I have heard the contentions raised on behalf of the counsel for the parties and have perused the record as well. My Issuewise findings are as under: Issue No.1 :
It was incumbent upon the defendant to establish that the suit was premature. In this context, the defendant has initially taken the stand that the lease was for a period of three years which was extendable for another period of three years and as such there was no occasion with the plaintiff to terminate the tenancy till subsistence of the lease period. However, in the absence of registered lease deed, the same cannot be termed as binding document and in any case it is not the case of the defendant that lease deed CS No.375/09 4 was registered document nor any party has placed on record the copy of any lease deed between the plaintiff and the defendant leave alone placing the registered lease deed on record, therefore, in these circumstance the only inference which can be drawn is that the tenancy was on month to month basis and after the notice, as contemplated under Section 106 of T.P. Act, the tenancy can be terminated. In the instant case, the defendant has not denied the receipt of the notice which was got issued by the plaintiff terminating the tenancy of the defendant, therefore, in these circumstance, when the tenancy was on month to month basis stood it determined by the notice. The suit cannot be, thus, said to be premature one. Accordingly, the issue no.1 is decided in favour of the plaintiff and against the defendant. Issue no.2 It was upon the plaintiff to show that the plaintiff is entitled to have possession of the suit property from the defendant. However, the suit property was vacated by the defendant during the pendency of the suit, therefore, this issue is not required to be gone into. According to the statement of the counsels for the parties on record dated 20.8.2008, the keys of the premises in question were handed over by the defendant to the plaintiff, therefore, the issue become nonissue. Nevertheless it stands decided in favour of the plaintiff and against the defendant in view of the statement of the counsel for the defendant dated 20.8.2008.
Issue No.3 The plaintiff had to show that the defendant is liable to pay CS No.375/09 5 damages/ mesne profit on account of unauthorised occupation of the property in question. In view of the findings recorded herein before, it can be concluded that the tenancy of the defendant was month to month tenancy which stands determined through a notice dated 18.1.2007. Therefore, the occupation of the property in question by the defendant could at the most be said to be legally deliverable in February, 2007 and thereafter the occupation of the premises by the defendant entitles the plaintiff to claim damages from the defendant.
9. In this context, counsel for the defendant has contended that the plaintiff has not come to the Court with clean hands nor to the witness box, therefore, the statement of mere attorney holder in itself is not going to help the cause of the plaintiff and cannot be read in evidence. To hammer down his point, ld. Counsel for the defendant has relied upon the judgment in Janki Vashdeo Bhojwani Vs. Indusind Bank & others 2004 (10) Scale 244, wherein it was observed that :
"A General Power of Attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff."
The Hon'ble Supreme Court has gone further to say that view taken in the Shambhu Dutt Shastri Vs. State of Rajasthan 1986 2 WLL 713 and Ram Prasad Versus Hari Narain & others AIR 1998 Rajasthan 185 wherein it was held that power of attorney holder can at the most appear, plead and act on behalf of the Principal but cannot become a witness in place of CS No.375/09 6 executor of the power of attorney.
10. It is thus argued that there is no evidence on record which may be read against the defendant, therefore, the plaintiff is not entitled to any relief in the shape of damages/ mesne profit as claimed. The judgments are based on the fact that the power of attorney holder would not be in a position to depose certain facts especially those which were not in his personal knowledge. However, in the instant case, the above referred judgments are apparently not attracted on account of the fact that the power of attorney holder has categorically stated about the notice sent and the reply received coupled with the fact that what amount of damages the plaintiff is entitled. All these things are such which cannot be said to be so close and personal that only the plaintiff knows it. In this context, the relations between the power of attorney holder and the plaintiff also become important. It has come on record that PW1 Ashok Gupta is an employee of the plaintiff. He has categorically stated that he has knowledge of property measuring 662 sq. ft. situated on the 8th floor that is the suit property. He has already given reason as to why he has stepped into the shoes of the plaintiff to depose as the plaintiff being a ailing old lady and is not keeping good health. He has also denied the suggestion that attorney was not according to the wish of the plaintiff rather volunteered that she had signed the power of attorney after reading the same, which was notarized through the Notary public. Another aspect highlighted by the counsel for the defendant is the date of the execution of the power of attorney and institution of the suit, which according CS No.375/09 7 to him being July, 2007 and December, 2007, further dent the case of the plaintiff. However, the suit was filed by the plaintiff under her own signatures, thus, no flaw on this count can be attributed that suit was not filed properly. The subsequent acts can be attributed to the attorney who had full authority in terms of the power of attorney.
11. Then again the suit is confined to the aspect of damages/ mesne profit only. The defendant has admitted the service of the notice, terminating the tenancy, upon it. The defendant has also admitted the rate of rent. Thus, what appears on record is that the landlord and tenant relationship is not denied, the rate of rent is not denied and the service of the notice under Section 106 of T.P. Act is also there. These factors are enough to conclude that the defendant is not entitled to remain in the premises in dispute. Since the premises has already been vacated, therefore, that does not remain the issue any more rather the aspect of damage only has to be worked out and as area of the suit property/ tenancy premises is also not disputed by the defendant.
12. To claim the damage, the plaintiff has to show the prevailing rate of rent in the vicinity and to substantiate this aspect the plaintiff has not relied upon PW1 alone rather summoned the witness from the SubRegistrar's office namely, Sunil Srivastava record clerk who had appeared as PW2 and brought on record of the lease deed Ex.PW2/A and Ex.PW2/B. These lease deeds pertain to the adjacent building i.e. Mercantile House, Kasturba Gandhi Marg, New Delhi wherein the rate of Rs.200/ per sq. ft. was agreed to be paid as on 30.4.2007. Ex.PW2/B is the lease deed executed on 5.6.2007 whereby the rate CS No.375/09 8 of rent of Rs.195/ per sq. ft. was agreed between the parties. The properties above referred are located at Mercantile House, K.G. Marg. The suit property is also located at K.G. Marg. Therefore the evidence coming on record through PW2 becomes relevant evidence in order to determine the damage even if the statement of PW1 is ignored altogether.
12. It is further contended on behalf of the defendant that the rate of rent as reflected in Ex.PW2/A and Ex.PW2/B, cannot be looked into since that pertains to June and July, 2007 whereas the plaintiff is claiming damages from March, 2007. The contention on the face of it, is of no consequence inasmuch as not much variation is expected between March to July unless something suggesting it is brought on record. It is contended on behalf of the plaintiff in this context that plaintiff is claiming damages/ mesne profit and not the rent, therefore, it has to be more than the prevailing rate of rent. In any case, on those parameters the amount of damages claimed by the plaintiff is required to be awarded to her.
13. The defendant could not bring anything contrary on record in respect of Ex.PW2/A and Ex.PW2/B. Thus, there appears no ground not to believe the evidence brought on record by the plaintiff and work out damages in the vicinity of the amount on which properties at Mercantile House was leased through the document Ex.PW2/A and Ex.PW2/B. Thus, in the fitness of the circumstances, when the defendant continued to occupy the premises despite termination of tenancy through the legal notice till 20.8.2008 from 1.3.2007 which entitles the plaintiff to claim damages from the defendant that CS No.375/09 9 too at the rate of Rs.200/ per sq. ft. from 1.3.2007 to 20.8.2008. The issue is accordingly decided in favour of the plaintiff and against the defendant. Relief In view of the above discussions and findings recorded on the issues, the suit of the plaintiff is liable to be decreed. Accordingly, the suit of the plaintiff stands decreed whereby the defendant shall pay damage to the plaintiff in respect of use and occupation of the suit property from 1.3.2007 to 20.8.2008 at the rate of Rs.200/ per sq. ft. for the suit property measuring 662 sq. ft. together with interest thereupon from the date of institution of the suit till the realization of the money at the rate of 6% per annum coupled with the cost of the suit, subject to payment of court fee, if any, payable. The defendant shall be entitled to adjustment of security, if any, which may be there with the plaintiff. Decree be drawn accordingly. File be consigned to record room.
Announced in open court (VIMAL KUMAR YADAV)
on 10.08.2011 Addl. District JudgeII (North)
Delhi
CS No.375/09 10
CS No.375/09
10.08.2011
Present : None.
Vide separate judgment dictated and announced, the suit of the plaintiff stands decreed whereby the defendant shall pay damage to the plaintiff in respect of use and occupation of the suit property from 1.3.2007 to 20.8.2008 at the rate of Rs.200/ per sq. ft. for the suit property measuring 662 sq. ft. together with interest thereupon from the date of institution of the suit till the realization of the money at the rate of 6% per annum coupled with the cost of the suit, subject to payment of court fee, if any, payable. The defendant shall be entitled to adjustment of security, if any, which may be there with the plaintiff. Decree be drawn accordingly. File be consigned to record room.
(V.K. Yadav) ADJII (North) Delhi.
CS No.375/09 11