Delhi District Court
Sh Deepak Rai vs M/S Invitation K Banquets on 4 October, 2019
IN THE COURT OF SH. HASAN ANZAR, ADJ06
WEST DISTRICT,TIS HAZARI COURTS
CS No. 10283/16
1. Sh Deepak Rai
S/o Late Sh P J Rai
2. Sh Sunil Rai
S/o Late Sh P J Rai
Both R/o A9, Kirti Nagar, New Delhi 15
..........Plaintiffs
Versus
M/s Invitation K Banquets
A partnership concern
Through its partner
Sh Kewal Krishan Kakkar
S/o Late Sh Jagdish Lal Kakkar
R/o A106, Ashok Vihar, Phase II, Delhi
Also at:
A9, Kirti Nagar, New Delhi 15
..........Defendant
Date of Institution : 16.10.2015
Date of Judgment : 04.10.2019
JUDGMENT
1. This judgment shall dispose of a Civil Suit filed by plaintiff and Counter Claim filed by defendant.
2. Plaintiffs are the Co owners/landlord of the property bearing No. A9, Kirti Nagar, New Delhi comprising Basement, Ground Floor, First Floor, Second Floor .
CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 1 /12 Plaintiffs have let out the basement, Ground Floor and First Floor with the permission to use Terrace above the third floor through common staircase of property bearing A9, Kirti Nagar, New Delhi (herein after called as Suit property).
3. Suit property was initially leased out to the defendant by Smt Asha Rani (mother of plaintiffs) vide registered lease agreement dated 06.02.2003 for a period of 9 years. Thereafter, plaintiffs let out the suit property vide registered agreement dated 09.12.2011 for a period of 9 years w.e.f. 06.02.2012. The rent of the suit property was fixed at Rs Six Lakhs exclusive of service tax with an annual enhancement @ 5% p.a. Rent is payable on or before 07 th day of each English Calendar month.
4. It is the case of the plaintiffs that defendant have failed to pay the enhanced rate of rent from 06.02.2014. (Meaning thereby defendant were paying the rent @ Rs 630,000 from 6.2.2013 after first hike of 5%) It is also the case of plaintiffs that defendant have failed to pay any rent as per rent agreement from October, 2014.
5. Plaintiffs therefore claim defendant failed to pay 5% increase on rent @ Rs 6,30,000/ from 06.02.2014 till 05.09.2014 which comes out to Rs 252000/ (calculated @ Rs 31500/ for 8 months from 06.02.2014 till 05.09.2014. Rent from 06.02.2014 to 05.02.2015 if Rs 661500/). It is also asserted that defendant failed to make payment of rent @ Rs 661500/ p.m. from 06.10.2014 till 05.02.2015 amounting to Rs 2646000/ and it is also asserted that defendant also failed to pay rent @ Rs 694000/ from 06.02.2015 till 05.09.2015 amounting to Rs 4858000/. Plaintiff has claimed mesne profit from 06.09.2015 till the date of handing over the CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 2 /12 possession.
6. It is contended that Clause 20 of Rent Agreement dated 9.12.2011 stipulates that in the event of 3 successive breaches, Lease agreement shall stands terminated and defendant would be treated as an unauthorised occupant.
7. It is also stated that plaintiff has served notice of termination of tenancy on 27.07.2015 and despite service of notice defendant failed to handover the vacant possession of the suit property.
8. Admittedly possession of suit property was handed over to the plaintiff on 29.02.2016 by defendant (vide order dated 07.04.2016).
9. In the Written Statement filed by defendant, plea is taken that lease agreement dated 09.12.2011 is a voidable contract as lessor(plaintiff) misrepresented about the status of the tenanted premises therefore, he is debarred from repudiating the contract.
10. A plea was also taken in the Written statement that defendant received a show cause notice for violating the provisions of master plan 2021 by not depositing the requisite charges for misuse. It is also averred that plaintiffs/lessors have not deposited the conversion charges i.e one time charges and additional FAR charges. It is also averred that notice dated 12.12.201, 04.09.2013 and 31.07.2015 was also given by the authorities but no payment was made by plaintiffs/lessor and therefore defendant deposited an amount of Rs 3314414/ towards parking charges and other conversion charges with civic authorities.
CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 3 /12
11. Pertinently in Written Statement, defendant admitted the receipt of the legal notice, however took a plea that rent/lease agreement was wrongly terminated by the plaintiff. Defendant also raised an objection that no document has been filed to the effect that plaintiffs are the legal heirs of Smt Asha Rani. A plea was also taken that deposit of Rs 18 lakhs made by defendant was not mentioned in the plaint.
12. On merits, defendant denied the averments as made in the plaint and took the plea that plaintifs are not the co owner/ land owner of suit property.
13. Defendant admitted execution of rent agreement dated 09.12.2011. A stand was taken that since plaintiff has failed to pay the legitimate dues towards one time parking charges, yearly conversion charges as well as payment of realisation of basement to the authority concerned for making the premises suitable for use of defendant by spending Rs 3314414/.
14. Defendant denied that three successive default in terms of Clause 20 of Rent Agreement occurred. Defendant admitted the receipt of legal notice dated 27.08.2015 and contended that there was no question on failure on the part of defendant in handing over the vacant possession and further stated that notice of termination of tenancy was illegal. Defendant denied his liability to pay any amount/mesne profit as claimed in the present suit.
15. Counter claim was filed by defendant for recovery of Rs 5114414/ in which amount of Rs 3314414/ was claimed in respect of payment made by defendant to Municipal Authority towards conversion charges, parking charges etc. Defendant CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 4 /12 also prayed for money decree of Rs 18 Lakhs towards the security deposit.
16. Defendant has provided a break up of Rs 3314414/ as made by defendant to Municipal Authority. Defendant paid Rs 674842/ dated 28.06.2007, Rs 754740/ dated 17.03.2008, Rs 297474/ dated 27.06.2008, 297472/ dated 24.06.2009, 297472/ dated 17.06.2010, 297472/ dated 22.06.2012, 297472/ dated 24.06.2013, 297472/ dated 30.06.2014 i.e. totaling Rs 3314414/. In the counter claim, the defendant has averred that conversion charges and one time parking charges were paid by defendant however it was as to be paid by plaintiff and therefore, defendant is entitled for recover the same from plaintiff by way of counter claim.
17. I have heard counsel for parties and perused the citations as placed by them.
18. Plaintiff has filed an application under Order 12 rule 6 CPC. Plaintiff prayed for decree on admission in view of the admission made by defendant in the Written Statement. As per plaintiff, the defendant has admitted the execution of rent agreement and the rate of rent. It is also an admitted fact that premises was handed over on 29.02.2016 and therefore suit and counter claim could be disposed of on the basis of the rent agreement existing between the parties.
19. Defendant in reply to the application under Order 12 rule 6 CPC contended that there were no admission and the present lease deed is to be read in continuation of the earlier agreement. It was also contended that the conversion charges and one time parking charges were imposed on building and without payment of the same the building could not be used for any commercial purposes and therefore, it was an obligation on plaintiff to make it usable so that suit property could be used for CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 5 /12 commercial purpose.
20. In the Written Statement as well as in reply to the application under Order 12 rule 6 CPC not much challenge has been put by defendant with regard to his liability as mentioned in the plaint. Defendant in response to para no 4 of the application under Order 12 rule 6 CPC wherein plaintiff has averred about the quantum of monthly rent and its annual increase and averment made in the plaint were not disputed by defendant in his in reply to the application under Order 12 rule 6 CPC.
21. Before proceeding to decide the application, it would be apt to rely on Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd.66(1997)DLT 54 DB in which Plaintiff filed a suit for possession and mesne profits together with interest, it was held by Hon'ble Delhi High Court that the factors that ought to be taken into consideration for deciding whether the suit could be decreed on admissions are :
(a) existence of relationship of lessor and lessee or entry in possession of the suit property by defendant as a tenant; and
(b) determination of such relation in any of the contingencies as envisaged in Section 111 of the Transfer of Property Act (TP Act). It was observed as under :
"one of the modes stated therein is by efflux of time limited by the lease. Only on unequivocal admission of the above two factors will entitle the plaintiff to a decree on admission. Admission need not be made expressly in the pleadings. Even on constructive admissions Court can proceed to pass a decree in plaintiff's favour".
22. On the basis of the pleadings it is quite apparent that there exist a landlord and tenant relationship and vide notice dated 27.07.2015 the said relationship has CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 6 /12 come to an end and furthermore, on 29.02.2016 tenanted premises was handed over to plaintiffs by defendant.
23. In Sunil Alagh vs Shivraj Puri CS(OS) No. 600/2016 dated 7.1.2019 in paragraph 20, it has held by Hon'ble High Court of Delhi when parties are not at issue on any question of law or of fact, the court may at once pronounce judgment.
24. The first objection of defendant is only to the effect that no document has been filed by plaintiff to show that they are the LR's of Smt Asha Rani who has let out the premises to defendants.
25. The objection as raised by defendant is not tenable under the eyes of law as bare perusal of the lease agreement dated 19.12.2011 would fairly indicate that defendant has entered into a rent agreement with plaintiffs as their landlord and furthermore, the said objection goes against the very teeth of Sec 116 of Indian Evidence Act which provides that no tenant during the subsistence of tenancy can deny the title of his landlord. The admitted position is that plaintiffs have been accepted as landlord and it is also an admitted position that rent/lease payment were being made to plaintiffs by defendant and therefore, plaintiffs would be entitled to maintain the present suit for recovery of money as well as for possession. Pertinently, defendant has also surrendered the possession of the suit property to plaintiffs.
26. Since Lease agreement dated 09.12.2011 has determined the rate of rent and manner in which rent is to be increased. Therefore, plaintiffs would be entitled for rent/ damages as provided in rent agreement. Defendant did not provide any break CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 7 /12 up or any material that rent as per agreement dated 09.02.2011 was paid to plaintiff and no document or banking transaction after October 2014, any rent was paid by defendant to plaintiff is placed on record.
27. In response to the specific averment of the plaint that since October 2014, no payment has been made by defendant towards the rent was not denied by defendant. Order VIII rule 3 CPC provides that denial to be specific and further more Order VIII rule 4 CPC provides that an allegations of fact must not be done in evasive manner i.e. some kind of an explanation should come into the record on behalf of defendant and thus evasive denial would amount to an admission as stated in plaint. The defendant in his written statement has also avoided to give proper denial to the assertion made in the plaint. In this context, Hon'ble Delhi High Court Ishpinder Kochhar vs Deluxe Dentelles (P) Ltd. & Ors in C.S No. 3075/2011 dated 24.1.2014 while considering the pleas has observed that defendant must answer the point of substance in denial. In the present case the denial was evasive and vague, and therefore, same can be taken into consideration for the purpose of passing the decree on the basis of admission.
28. On 18.09.2019, a statement was made on behalf of counsel for the plaintiff that he is not claiming damages against defendant except to the amount which is mentioned in the registered lease agreement. Therefore, Plaintiff would be entitled for all unpaid rent till the date of handing over the possession.
29. Defendant in his Written Statement cum counter claim took the plea that an amount of Rs 3314414/ was incurred towards the conversion charges and one time parking charges and therefore defendant is entitled to recover from plaintiffs and CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 8 /12 Defendant has provided the breakup on which such payments were made to various civic authorities.
30. However Ld counsel for plaintiff submitted that it has been agreed between the parties vide Clause No. 12,16 and 17 in rent agreement that the charges of the same shall be borne by the defendant. The relevant clause is being reproduce as under ;
Clause no 12 : That the lessee shall obtain licence in its name from the concerned authorities at his own cost and shall abide by all the rules and regulations framed by the authorities in this regard from time to time for which the lessor shall have no objection and the lessor shall give a "no objection certificate" to the lessee for this purpose.
Clause no 16 : That the lessee shall pay all business related charges to the authorities concerned directly and exonerates the lessor from any such charges, except the property tax which shall be borne by the lessor.
Clause no 17 : That during the occupancy of the demised premises any legal proceedings are taken up by any concerned authorities in relations to the business activity, then the lessee alone shall be held responsible and shall attend/ defend all the proceedings at his own cost.
31. Upon perusal of the clause 12, 16 and 17 it is apparent that the liability of CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 9 /12 various charges was put on the lessee i.e. on defendant. In view of the specific Clauses in lease agreement as referred above, it cannot be said that plaintiffs are in any manner responsible towards the payment of any charges as claimed by defendant. Plea of defendant/counter claimant is against the very spirit of Sec 91 and 92 of Indian Evidence Act which provides that when terms of contract or grant are made in writing then no amount of oral evidence shall suffice and therefore the assertion of the defendant that the payment towards charges such as conversion and parking charges has been made by the defendant and therefore, defendant is entitled to recover the same from plaintiff is liable to be rejected. Therefore, claim in the Written Statement/counter claim that by virtue of payment made by defendant on 22.06.2012, 24.06.2013 and 30.06.2014 is liable to be rejected. Reference can be to the paragraph 17, 18 & 21 of Roop Kumar VS Mohan Thedani AIR 2003 SC 2418 in reference to Section 91 of Indian Evidence Act in which it was held that oral evidence cannot be lead to contradict the fact as stated in documents.
32. Defendant also claimed conversion charges in respect of the payment made on 28.06.2007, 17.03.2008, 27.06.2008, 24.06.2009 and 17.06.2010. It is pertinent to mention that the aforesaid payments of conversion charges were made by defendant during the subsistence of the rent agreement in between the defendants and mother of plaintiff. Clause 17 of the Rent agreement dated 06.02.2003 cast an obligation on defendant to make the payment to the concerned authority. Therefore, in view of the specific Clause in the Rent agreement dated 06.02.2003 the plea of defendant that he is entitled for the reimbursement of the payment does not make out. Therefore, defendant would not be liable to recover the same from plaintiff.
33. If one reads the Written statement/counter claim on the basis of which CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 10 /12 recovery was sought by defendant in his counter claim in respect of payment made towards conversion charges and parking charges were made so that defendant can use the premises for his benefit also pertains to certain payment made on 28.6.2007, 17.3.2008, 27.06.2008, 24.06.2009 and 7.06.2009 is time barred. Article 23 of Limitation Act, 1963 provides a limitation period of 3 years in respect of the payment made by one person to third party. Present suit was filed on 16.102015 and therefore claim for recovery in respect of conversion charges and other charges made on 28.06.2007, 17.03.2008, 27.06.2008, 24.06.2009 and 7.06.2009 would be time barred.
34. Therefore on the basis of above pleadings it is clear that defendant is liable to pay the defaulted rent / damages.
35. In view of the above discussion, the application under Order 12 rule 6 CPC filed by plaintiff is allowed.
36. Defendant/counter claimant has also sought a recovery of Rs 18 lakhs paid as a security deposit. The factum of receipt of security deposit of Rs 18 lakhs was admitted in para no 6 of the Written statement to the counter claim filed by plaintiff. It was also averred that the said amount of Rs 18 lakhs shall be adjustable towards the due / charges. Hence, defendant would be entitled for set off of Rs 18 Lakhs against the claim of plaintiff. Therefore, no separate decree is being passed in respect of the counter claim.
37. Order XXI rule 19 CPC provides that where a defendant has been allowed a set off or counter claim against the claim of plaintiff, the decree shall state what CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 11 /12 amount is due to the plaintiff and what amount is due to the defendant and shall be for the recovery of any sum which appears to be due to either party.
Relief
38. In view of the above discussion, the suit filed by plaintiff is decreed to the extent as indicated above for a sum of Rs 7756000/ towards the arrears of rent from 06.02.2014 to 05.09.2015 along with an interest @ 6% p.a. from the date of filing of suit till the date of realisation. Plaintiff is also held entitled for arrears of rent @ Rs 694000/p.m. from 06.09.2015 to 05.02.2016 along with an an interest @ 6 percent annum from the date of order. Plaintiff is also held rent at the rate of Rs 728700/ p.m. from 06.02.2016 to 29.02.2016 along with an interest @ 6% from the date of the order till the date of realization. Set off of Rs 18 Lakhs is given to the defendant on the amount adjudged in favour of the plaintiff. Plaintiff is also entitled for the costs.
Decree sheet be drawn after filing the deficient court fees, if any. File be consigned to Record room.
Announced in the Open Court on 04.10.2019 (Hasan Anzar) Additional District Judge06 West District, THC CS No. 10283/16 Deepak Rai Vs Invitation K Banquets Page no. 12 /12