Delhi High Court
Dayagen vs Union Of India on 1 September, 1994
JUDGMENT P.K. Bahri, J.
1. This is a suit for recovery of Rs. 1,75,977.90 paise. The case set up by the plaintiff, in brief, is that the defendant/Union of India had taken on rent initially the premises comprising of ground floor to fourth floor of the property named 'Punj House Annexe', M-13, Connaught Circus, New Delhi at the monthly rent of Rs. 32,328/- besides electricity and water charges.
2. It is one of the terms of the agreement between the parties that in case there occurs any delay in commissioning the lift in the premises, the defendant shall be entitled to deduct Rs. 500/- per month for first six months and Rs. 750/- per month for next six months and Rs. 1,000/- per month till the lift was to be commissioned. It is averred in the plaint that during the subsistence of the lease, the defendant wanted to use and occupy the staircase, caretaker's space, terrace at the top floor in addition to the premises already leased and the plaintiff allowed the same to be used by the defendant subject to the defendant paying additional rent of Rs. 5,403.10 paise per mensem.
3. It is averred that additional accommodation was allowed to the defendant on 1st August, 1976 and same was used by the defendant till the premises were vacated by defendant on November 11, 1978. It is also averred that the lift was commissioned in the premises in the month of June 1976 and was handed over to the defendant in good working order. So, the plaintiff claims that defendant has illegally deducted the lift charges to the tune of 27,366.66 paise and defendant is liable to pay Rs. 3,585.86 paise as the arrears of charges for the caretaker's space, Rs. 71,759.52 paise for staircase and Rs. 16,887.50 paise for the use of the top floor space and Rs. 50,228.50 paise for use of the terrace. It is also averred in the plaint that Rs. 2,461/- is due as defendant made deductions from the rent for 12 months and 11 days @ Rs. 199/- which the defendant was not entitled to do in law. A sum of Rs. 3,688.86 paise is claimed as electricity and water charges due from the defendant which the plaintiff had to deposit with the municipal authorities. So, after serving a notice under Section 80 of C.P.C. the present suit was filed for recovery of the aforesaid amount. Interest @ 16% per annum is claimed from the date of the suit till realisation.
4. The suit is contested by the defendant. It is disputed by defendant that the monthly rent of the demised premises comes to Rs. 32,328/- as alleged. The plea taken is that the rent was to be calculated on the basis of the area existing on each floor i.e., Rs. 150/- per sq. ft. for the area on the ground floor and Rs. 350/- per sq. ft. for the area on other floor and by the typographical mistake the area on ground floor was mentioned as 1997.06 sq. ft. while in fact the area on the ground floor comprised of only 1197.06 sq. ft. So, the plea taken is that the plaintiff had no right to recover any rent in respect of the ground floor in excess of the ground floor area existing at the spot and 800 sq. ft. area has been wrongly included in the calculations pertaining to the ground floor. It was pleaded that Lease Deed executed between the parties being unregistered document, thus the same could not be looked into at all in order to prove the terms of the Lease Deed which includes the rate of rent. With regard to additional accommodation purported to have been given to the defendant, plea taken by the defendant is that the staircase in any case was part of the original Lease Agreement as the upper floors could never be used without the facility of staircase. It was pleaded that the barsati on the top floor was never given to the defendant for its use and there was no occasion for the defendant to use the open terrace on the top floor as no official business could be transacted by the defendant on the terrace. It was controverter that defendant at any time agreed to pay Rs. 5,403.10 paise as monthly rent for any additional alleged accommodation given to the defendant. It was further averred in the written statement that lift in question was commissioned only on 1st April, 1977 and thus the defendant was entitled to deduct the portion of rent, as mentioned in the plaintiff, up to that date. It was also controverter by the defendant that defendant is liable to pay any electricity or water charges, as claimed by the plaintiff, or any amount claimed by the plaintiff, as given in paras 12(a) to 12(g).
5. In replication, it was reiterated by the plaintiff that aggregate of rent was Rs. 32,328/- per month and in fact the rent was being paid by the defendant on that basis although deductions have been made by the defendant illegally for non-commissioning of the lift for some period. Reference is made to certain portions of unregistered Lease Deed to show as to what premises had been let out initially and what rate of rent had been fixed between the parties. Regarding the measurements given by the defendant with regard to the ground floor, the same were not controverter in the sense that only plea taken was that such measurements have no effect in determining the rate of rent fixed between the parties. The plaintiff, in the replication, had not categorically stated that in fact the measurements given in the written statement with regard to the ground floor are not correct factually. At any rate, a local commissioner was appointed to give the report with regard to the measurements of the ground floor after inspecting the premises and Sh. Phool Chand Goel had given a report to which no objections have been filed by the plaintiff which report also indicates that by and large the measurements given by the defendant with regard to the area available in the ground floor are correct.
6. From the pleadings of the parties, following issues were framed :
(1) Whether the plaintiff firm is a partnership firm and has been duly registered under the Indian Partnership Act and the plaint has been signed and verified by a duly registered partner ?
(2) What is the agreed rent of the premises in dispute ?
Note : This would cover the plea regarding the alleged mistake in calculation of the area on the ground floor as pleaded in para 2 of the written statement.
(3) To what deductions were the defendants entitled on account of the non-commissioning of the lift and for what period ?
(4) Whether the defendant was allowed exclusive use of the staircase, caretaker steps and terrace on the top floor of the said premises in addition to the premises which were already in their tenancy and if so, to what amount the plaintiffs were entitled on that account ?
(5) Whether the plaintiffs were entitled to any amount on account of electric and water charges ?
(6) Whether the plaintiffs were entitled to any interest ? If so, at what rate ?
(7) Relief and to what amount, if any.
Issue No. 17. The plaintiff has proved on record Ex. P-2 which is copy of Form 'A' showing that plaintiff is a registered partnership firm. P-28 is copy of the power of attorney executed in favor of Mr. S. N. Punj. Sh. S. N. Punj has signed and verified the plaint and has instituted the present suit. Counsel for defendant has not raised any arguments in view of these documents on this issue. I, hence, hold that plaint has been signed, verified and instituted by a duly authorised person on behalf of the plaintiff. Issue is decided in favor of the plaintiff.
Issues No. 2 and 48. I will deal with issues No. 2 and 4 together as to some extent they are interconnected.
9. The learned counsel for plaintiff has placed reliance on Lease Deed executed between the parties which is Ex. P-32. It is no doubt admitted fact that this document was executed between the parties but unfortunately for the plaintiff, this document was required to be compulsorily registered under Section 17 of the Indian Registration Act but was not got registered. In order to prove the rate of rent agreed between the parties, the learned counsel for plaintiff has placed reliance on this document Ex. P-32. So, the short question which arises for consideration is whether an unregistered document of release can or cannot be looked into under Section 49 of the Indian Registration Act to know the rate of rent settled between the parties.
10. In this very case, before filing of the written statement, the defendant had moved an application under Section 34 of the Indian Arbitration Act for staying of the proceedings pleading that there exist a written arbitration agreement. The defendant was trying to place reliance on this very document of lease in order to get the suit stayed but vide judgment dated March 25, 1981, it was held by this court that document being unregistered cannot be looked into to know the terms of the lease and arbitration term incorporated in the said agreement is part of the term of the lease which cannot be looked into even taking resort to Section 49 of the Indian Registration Act.
11. Apart from this I may refer to a ratio laid down by the Supreme Court in case of Satish Chand v. Govardhan Das (AIR 1984 SC 148), where it has been laid down that unregistered Lease Deed cannot be taken into consideration to know the terms of the lease as the terms of the lease incorporated in the Lease Deed which is unregistered cannot be treated as collateral purpose within the meaning of Section 49 of the Indian Registration Act.
12. A Division Bench of this court in case of Smt. Chandervati v. Lakhmi Chand & other , also held that the combined effect of Section 91 of The Evidence Act and Section 49 of the Registration Act is to shut out all evidence to prove the terms of the unregistered deed.
13. A Division Bench of Allahabad High Court in case of Zarif Ahmed v. Satish Kumar (AIR 1983 All 164), has also laid down that an unregistered Lease Deed which is required to be registered compulsorily cannot be looked into to find out the rate of rent.
14. In order to show as to what was the basis on which the rent was settled between the parties, the defendant has produced and proved on record the correspondence exchanged between the parties. PW-5, the attorney of the plaintiff, in cross-examination admitted that originally the rent was agreed upon at some rate per sq. ft. but later on the rent was agreed to be Rs. 32,328/- as lump sum. He referred to Ex. P-1 in support of his contention that a lump sum rate of rent was agreed upon between the parties. A categorical suggestion was given to the witness that rent was agreed to be calculated on the basis of the carpet area and he could not deny this fact but persisted with his statement that a lump sum figure was arrived at for fixing the rent. He was confronted with certain documents to show that the rent was calculated on the basis of the carpet area of each floor and by mistake the carpet area of the ground floor was miscalculated and thereafter measurements was made in presence of the representative of the plaintiff and it was found that the exact carpet area in the ground floor is less by 800 sq. ft. as mentioned in the documents exchanged between the parties.
15. It is true that the defendant has not been able to prove satisfactorily the document marked 'A' which records the measurements carried out allegedly in the presence of the representative of the plaintiff. However, it was quite clear that the carpet area existing at the spot can neither increase nor decrease and it is not the case of the plaintiff that any more carpet area has been given to the defendant from the one which was given originally, so necessity of appointing a local commissioner arose to determine the exact carpet area existing at the spot and Mr. Phool Chand Goel was appointed as the local commissioner who filed the report to which the plaintiff had not filed any objections. It is only defendant who had filed the objections which is I.A. 3071/86. The report of the local commissioner shows that the carpet area existing in the ground floor was to the extent of only 1464.44 sq. ft. Although the objections of the defendant were that carpet area was only 1197.06 sq. ft. but the learned counsel for the defendant has not been able to show in agruments that calculations made by the local commissioner area in any way incorrect, so the report of the local commissioner has to be accepted that the carpet area of the ground floor is only 1464.44 sq. ft. instead of what is recorded in the documents exchanged between the parties i.e. 1997.06 sq. ft. so the carpet area for which the rent has been calculated in the ground floor by more area of 532.62 sq. ft.
16. As far as correspondence exchanged between the parties is concerned, which is not disputed, Ex. P-1 is the letter written by the defendant to the plaintiff in which it is clearly mentioned that the government sanctioned the rate of rent vide its letter dated 26th October, 1974 by calculating Rs. 1.50 per sq. ft. in respect of the ground floor and Rs. 3.60 per sq. ft. in respect of the upper floors. The area of the ground floor mentioned was 1997.60 sq. ft. Now the area which has been found at the spot is 1464.44 sq. ft., so the rate of rent for the ground floor on this basis ought to have been Rs. 2,196.66 paise instead of Rs. 2,995.59 paise. So, it is evident that no lump sum rent was fixed in respect of the said premises. The rent was fixed on the basis of calculations. If there had occured a genuine mistake in calculating the area of a particular floor, no undue advantage could be taken by the plaintiff for such miscalculations in the letter Ex. P-1.
17. In this very letter, the terms were also incorporated as to how for initial six months Rs. 500/- per mensem and for next six months Rs. 750/- per mensem and for remaining period Rs. 1,000/- per mensem were to be deducted by the defendant till the lift was to be commissioned. The plaintiff is relying on these terms appearing in Ex. P-1 for his claim regarding the amount of the deductions made by the defendant from rent as according to the plaintiff, the lift was commissioned in June 1976.
18. Ex. D-1 is the letter written by plaintiff to the defendant dated July 16, 1976 in which also it is admitted that the plaintiff claimed the rent to be fixed in respect of additional accommodation on the basis of the area in sq. fit. in respect of stairs, terrace, caretaker space and barsati. D-26 is the letter dated 23rd December, 1977 written by the defendant to the plaintiff in which it was pointed out that there has occurred mistake in calculating the area of the ground floor and if the proper calculations are made, then total rent payable was Rs. 31,129.20 paise. The extra payment made to the plaintiff was also indicated to the tune of Rs. 25,548,40 paise for the period 23rd June, 1975 to 31st March, 1977 and for the period 1st April, 1977 to 30th October, 1977, the extra payment was said to be only Rs. 14,000/- after Realizing the lift charges of Rs. 1,000/- w.e.f. 1st April 1977. No reply appears to have been given by the plaintiff to this letter. However, in letter dated December 29, 1977. Ext. D-22, Along with with copy of the letter dated December 20, 1977, Ext. D-23 was sent, it was mentioned by the plaintiff that no proper measurements have been taken in respect of the ground floor and the measurements given earlier were correct.
19. From all these documents, it is quite evident that rent was being calculated on the basis of the area existing in the various floors at a particular rate. So, it does not lie in the month of the plaintiff to assert that any lump sum amount had been fixed as a rent dehors the calculations based on area existing on each floor and at a particular rate. If that is so, in view of the fact that rate of rent cannot be proved from the unregistered Lease Deed, the court has to go by the correspondence exchanged between the parties in order to determine the agreed rate of rent between the parties. Mere fact that the defendant under the mistaken belief had been paying rent on wrong calculations does not debar the defendant from pleading and proving as to what was the agreed rate of rent which was to be based on the calculations of the area and multiplied by the rate which finds mention in the correspondence exchanged between the parties. There is no dispute that the rent for the first floor, second floor and third floor is Rs. 7,160,40 paise each and for the fourth floor it is Rs. 7.851.60 paise. So, the total rent would come to Rs. 31,529.46 paise for all the floors.
20. The next question which arises for decision is whether the plaintiff is entitled to have any rent in respect of staircase, terrace, barsati and caretaker's room. As far as staircase is concerned, it is evident that same was necessary for being used for the area already let out to the plaintiff and there is no question of giving any additional rent to the plaintiff in respect of the staircase because it is evident that once ground floor to fourth floor had been let out, the premises could not be used without the staircase which already existed in the premises.
21. As far as entitlement of the plaintiff to claim any rent in respect of caretaker's space, terrace and the barsati room is concerned, there is ample correspondence between the parties which, in my opinion, would make it clear that such accommodation had been in occupation and use of the defendant since the inception of the tenancy and defendant in the correspondence had been agreeing to pay the charges for the same but later on the defendant decided not to pay any charges. In letter dated 4th March, 1976, Ext. P-2, the defendant had admitted that the roof is being used by the defendant and it was mentioned that defendant is willing to pay reasonable rent, if any, in respect of the said roof. The defendant also sent a letter dated 21st May, 1976, Ext. P-3, wherein it was mentioned that the defendant is willing to pay the rent for the said terrace. Vide letter dated 16th July, 1976, the plaintiff offered to allow the defendant to use the terrace as well as the top floor and caretaker's space and also the stairs and demanded the rent of Rs. 5,403.10 paise. The rent for the terrace is claimed @ Re. 1 per sq. ft. and the area is mentioned as 1905 sq. ft. The rent for the barsati is claimed at Rs. 3.50 per sq. ft. and area mentioned is 183 sq. ft. and the amount comes to Rs. 640.50 and for the caretaker's space the area mentioned is 68 sq. ft. and rent is calculated at the rate of Rs. 2/- per sq. ft. which comes to Rs. 136/-.
22. As already mentioned by me above, the plaintiff is not entitled to have any extra rent for the staircase which is part of the original demised premises, so we have to examine whether the plaintiff is entitled to claim Rs. 5,403.10 paise minus Rs. 2,721.60 paise per mensem in respect of caretaker's space, barsati floor and terrace or not. The plaintiff had been sending repeated letters to the defendant claiming the said rent which are Ex. P-6 to P-8. In letter Ex. P-9 dated 11th January, 1977, the Assistant Director of defendant offered to pay the rent for caretaker's space and barsati and pleaded that there are no rules and regulations by which the rent could be paid for use of staircase and terrace. Vide letter Ex. P-11 and P-12, the plaintiff had been demanding the rent for the said portions from the defendant. Even in the letter of the defendant, Ex. P. 26, barsati and caretaker room areas have been mentioned, it was mentioned that the care taker place is being used by the defendant but possession of the barsati has not been given to the defendant. The defendant has not examined any witness to show that plaintiff had kept in his possession either the caretaker room or the barsati or the plaintiff had been having any access to the terrace after the premises had been let out to the defendant. So, it can be held that defendant has been using not only the terrace but also the barsati room and the caretaker's room and admittedly no rent was calculated in respect of those portions. If that is so, the defendant has to, in my view, pay the rent of the said portions which would come to Rs. 2,681.50, So, the total rent payable by the defendant was Rs. 31,529.46 paise plus Rs. 2,681.50 paise, aggregating to Rs. 34,210.96 paise.
23. These issues are decided accordingly.
Issue No. 324. Admittedly, the defendant was entitled to deduct the amount mentioned above, while narrating the facts, till the lift was to be commissioned. In order to prove as to on what date the lift was commissioned. the plaintiff examined PW-1 who has been working as Private Secretary to Mr. V. P. Punj since 1962 and he deposed that the lift in the premises was installed by OTIS people and the lift was got inspected from the officials of the Delhi Administration and Ex. P-22 note was signed by the official of the Delhi Administration. In cross-examination, he could not state as to when, in fact, the lift had become operatable. PW-2 is an official of the Delhi Administration who proved on record the sanction letter Ex. P-13 for installation of the lift and the license issued in respect of the said lift after installation which is Ex. P-24. He disclosed that the lift was stated to be inspected on 13th July 1976 and was found to be in order.
25. PW-3 is the official of OTIS Elevator Company which had installed the lift who deposed that the records pertaining to the said lift had been destroyed and he proved the certificate Ex. P-25. In examination in-chief, itself he stated that installation of the lift was complete on 30th July, 1976 and the lift was handed over for operation on 30th July 1976 whereas the Delhi Administration people had already given a license for the lift after inspecting the lift even before it had become operational. In cross-examination, he states that in absence of the record he cannot say whether actually the lift was handed over to the owner on 30th July, 1976 on not.
26. Mr. Puuj, coming as PW-5, deposed that the lift became operational from July 1976 which statement obviously is not correct when we find that up to 30th July, 1976, the lift has not become operational. The commissioning of the lift does not mean mere putting up a lift in the building and obtaining of certificate and license from Delhi Administration. The question is when, in fact, the lift starts operating propertly. The evidence of the plaintiff in that respect is not clear. We have the advantage of the correspondence exchanged between the parties with regard to the aforesaid lift. Ex. P-13 is the letter written by the plaintiff which is dated 18th October, 1976 mentioning that the lift has become operational since July 1976 and this fact is repeated in letter Ex. P-14 dated 15th November, 1976 but we find from the plaintiff's letters written to the defendant that lift was not operating successfully for some period.
27. Reference is made to Ex. D-23 where it was admitted by the plaintiff that the lift had not worked for the some period for mechanical defects which were attended to by the manufacturer. This letter is dated December 20, 1977. So, there is no positive evidence led by the plaintiff to show as to on what date the commissioning of the lift could be deemed to be completed meaning thereby that the lift was put in proper working condition and started functioning properly. So, in absence of that evidence, it has to be held that the lift became operational, as claimed by the defendant, from 1st April, 1977 onward. It is held that defendant was not entitled to deduct and amount in respect of the non-commissioning of the lift from 1st April, 1977 onward. So, on that account, Rs. 19,000/- have been wrongly deducted from the rent by the defendant which are liable to be adjusted in the account. The issue is decided accordingly.
Issue No. 528. The plaintiff has proved on record the document Ex. P-26 to show that electricity and water charges have been paid to the tune of Rs. 3,688.86 paise in respect of the period in which the defendant was in occupation of the premises, so this amount is liable to be paid by the defendant. The issued is decided accordingly in favor of the plaintiff.
Issues No. 6 & 729. In view of the above decision on various issues, it is quite evident that the plaintiff was entitled to have rental of Rs. 31,529.46 paise and not Rs. 32,328/- as claimed by the plaintiff in this manner the defendant is entitled to adjust Rs. 22,632.26 paise as rent overpaid for the relevant period. The plaintiff is entitled to have a sum of Rs. 73,389.30 paise as the rent of the terrace, barsati, and the caretaker's room for the period 1st August, 1976 to 11th November, 1978 as it is the case of the plaintiff that additional accommodation was given to the defendant from 1st August 1976. So, after adjusting Rs. 19,000/- which was due to the plaintiff as wrongly being deducted from the rent for non-commissioning of the lift from 1st April 1977 onwards, the total amount now due to the plaintiff including the amount of the electricity and water charges mentioned above would come to Rs. 73,446/-. The suit is liable to be decreed in respect of this amount. The plaintiff is also entitled to have pendente lite interest and future interest @ 9% per annum.
30. I, hence, decree the suit for recovery of Rs. 73,446/- with proportionate costs and grant interest @ 9% per annum from the date of the suit till realisation.