Delhi District Court
Smt. Meeta Vij vs Sh. Ravindra S. Singhvi on 27 March, 2025
IN THE COURT OF SH. HARJYOT SINGH BHALLA
DISTRICT JUDGE-05, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ 6443/16
SMT. MEETA VIJ VS. SHRI RAVINDER S. SINGHVI & ORS
CNR No. DLST01-000387-2013
Smt. Meeta Vij
W/o Sh. S.K. Vij
R/o A-1/20, Third Floor,
Safdarjung Enclave, New Delhi.
............ PLAINTIFF
Vs.
1. Sh. Ravindra S. Singhvi
2. Ms Subha Singhvi
Both of at:-
A-2/9 (G.F.) African Avenue Road,
Safdarjung Enclave, New Delhi 110 029.
Service Also At:
18A, Chinar Drive, DLF Farms,
Chattarpur, New Delhi-110 074.
3. V.L.C.C. Health Care Pvt. Ltd.,
4. Smt. Vandana Luthra,
Owner/Founder/Promoter
V.L.C.C., Health Care Pvt. Ltd.
5. Sh. Mukesh Luthra
Owner/Founder/Promoter
V.L.C.C. Health Care Pvt. Ltd.
6. Sh. Sandeep Ahuja,
M.D. V.L.C.C. Health Care Pvt. Ltd.
7. Sh. Kadiyan
CS DJ No. 6443/2016 Page 1 of 44
C/o V.L.C.C. Health Care Pvt. Ltd.
8. Smt. Geetanjali Uppal
(Asstt. Head, Customer Care)
V.L.C.C. Health Care Pvt. Ltd.
9. Sh. Suhendu,
Incharge of Repair, Renovation and reconstruction Work
V.L.C.C. Health Care Pvt. Ltd.
All the above defendants 3 to 9 at the Regd. Office of
V.L.C.C. Health Care Pvt. Ltd.
64, HSIDC Industrial Area,
Sector-18, Gurgaon (Haryana)-122015
10. Smt. Geeta Bahri
Local Heead & Incharge of the Centre)
V.L.C.C. Health Care Pvt. Ltd.
Service on the above defendants No.3 to 10 also at:
A-2/9 (G.F.) African Avenue Road,
Safdarjung Enclave,
New Delhi-110029.
.......... DEFENDANT
Date of Institution : 11.01.2013
Argument concluded on : 08.01.2025
Date of judgment : 27.03.2025
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit for declaration, injunction and recovery of money.
2. The present suit was filed by the plaintiff for recovery of damages on account of losses, inconvenience, loss of reputation, etc. due to physical damage to the property of the plaintiff while the defendants carried out repair/renovation/reconstruction work in the neighbouring CS DJ No. 6443/2016 Page 2 of 44 premises owned by defendant no.1 and 2 and leased to the VLCC Health Care Pvt. Ltd., the defendant no.3 herein. The plaintiff claims to be the owner of the basement in property bearing number A-2/9 (G.F.) Africa Avenue Road, Safdarjung Enclave, New Delhi-110029.
3. That the previous owner of the property on the basement, as detailed and referred to above, was M/s South Delhi Apartments Pvt. Ltd. from whom the plaintiff had purchased the said property on the (Lower Ground Floor) by a Sale Deed dated 06/10/08 and thus became the rightful and sole owner of the said property.
4. That since the time of the previous owner, the said property was leased out to M/s Haymarket SAC Publishing (India) Pvt. Ltd. The said company alongwith their sister concern, have entered into a new lease deed, as now the plaintiff is the owner and landlord. The defendants are owners/occupiers of the ground floor in the following manner:
(a) that the defendant no.2 is the real owner and the land lord of the property;
(b) apparently defendant no.1 has been exercising all rights of ownership relating to the said property on the ground floor; and
(c) it has admittedly been taken on lease by the defendant No.3 from defendant No.1 (as admitted in the defendant's reply to the plaintiff's notice dated 17/02/2012).
5. That defendant no. 3 is a company registered under the Companies Act, 1956 and running the business of beauty/slimming and Health Centre/Institute.
CS DJ No. 6443/2016 Page 3 of 446. That the defendants no.4 & 5 are the owners, founders and promoters of defendant no.3, and are also ultimately responsible for any tort causing damages to the plaintiff even if committed by defendant no.3 and/or its functionaries/officials, while the defendants no.6 to 9 are the functionaries/officials of defendant no.3 and are incharge of day to day functioning of the company. As far as defendant no.10 is concerned she is Incharge/Local Head of the centre of defendant no.3 functioning at A2/9 (G.F.) Africa Avenue Road, Safdarjung Enclave, New Delhi-110029.
7. That although defendant no.3 is a company registered under the Companies Act 1956 and is a juristic person in itself, defendant no.4 to 10 are also responsible in their private capacity for the tort committed by them causing damages to the plaintiff.
8. That defendant no.1 and 2 along with other defendants have been carrying on the work of repair, renovation and reconstruction in the premises occupied by defendant no.3, conjointly with defendant no. 3 and other defendants since January 2010.
9. That while carrying on the work of repair, renovation and reconstruction in their premises, on the ground floor, the defendants no. 1 to 10 carried out the aforesaid work in such an unprofessional and irresponsible manner, that damages were caused to the property belonging to the plaintiff on the basement/lower ground floor.
10. That the plaintiff by means of personal contacts telephonic conversation, meetings, E.mails etc. tried to apprise the defendants about the loss and damages being done to the CS DJ No. 6443/2016 Page 4 of 44 property belonging to the plaintiff, situated at the basement but they (the defendants) turned a deaf ear to the repeated objections of the plaintiff.
11. That the damages caused, to the plaintiff's property are the following:
a) Structural damages including cracks in the load sharing beam and consequent breaking of the slab in the ceiling at many places.
b) Widespread seepage in the walls and ceiling of the hall and very seriously in the washrooms.
c) Defacement of most of the entire property.
12. That the said irresponsible and unprofessional manner of carrying out the repair, renovation and reconstruction work on the ground floor by the defendants has affected normal working of the occupants of the basement, (the lessee of the plaintiff), who suffered heavy losses, due to inconvenience and harassment to them and other visitors of the building including their customers.
13. That prior to the starting of repair, renovation and reconstruction work by the defendants on the ground floor, the lessees of the plaintiff were going to be extending the existing original 9 Years Lease, on the terms and conditions as laid down in the lease deed dated 13/08/2008. But due to the damage to the property and its defacement and harassment and inconvenience to the said lessees, and other visitors, including their customers, they (the lessees) started threatening vacation of the building.
14. After intense and prolonged negotiations, however the lease could survive only when the plaintiff agreed to execute a fresh lease deed with lessor rent and sterner and unfavourable CS DJ No. 6443/2016 Page 5 of 44 terms and conditions for the plaintiff. Here it would be pertinent to mention that the property is situated in the mixed use area, and commercial activity being carried out from before, is allowed to be carried out and the plaintiff has paid all necessary taxes and charges etc. in this connection.
15. That while the previous lease deed was for a period of 9 years with a monthly rent of Rs.2,90,000/- with a provision of 20% increase in rent, every three years. The plaintiff was compelled to execute a fresh lease deed dated 19.12.2011 with the said lessee and its sister concern with lesser increase in rent and other unfavourable conditions for the former thus causing loss to her (the plaintiff).
16. That in the said lease deed dated 19.12.2011 the lessees insisted on including one new clause which is the following:
"The Lessor will incur repair cost of the water proofing, color wash, varnish, renovation of toilet and pantry and other repairs. For carrying out the repairs, the contractor will be appointed on mutual consent by lessor and lessee(s). The Lessor shall do all repairs required for ensuring the working of the office is not affected". Which the plaintiff was compelled to accept under threat of vacation by the lessee.
17. That the estimate of the losses suffered by the plaintiff in the whole affair as pointed out above, and which is also clear from reading the two lease deeds dated 13.08.2008 and 19.12.2011 is as follows:
Particulars Amount
A. Estimate Loss of rent
(excluding playable taxes)
CS DJ No. 6443/2016 Page 6 of 44
June. 2011 Rs. 58,000/-
July 2011 to November 2012 @ Rs. 6,75,500/-
(Rs.39750/- x 17) (Round figure)
Rs.4,38,000/-
Dec 2012 to May 2014 (24,338/- x 37) (Round figure) June 2014 to June 2017 @ (Rs.42,152/- Rs.15,59,500/-
x 37) (Round figure) B. Cost of Execution and Rs.1,30,000/-
Registration of the New Lease (Round figure) Deed dated 19.12.2011 (which was borne by the plaintiff) C. Estimated cost of repair and renovation (due to the defendants)
(i) Paid by the plaintiff directly Rs.4,38,000/- (Round figure)
(ii) Cost of work to be done by the lessee and adjusted by foregoing half Rs.9,00,000/-
month's rent for the month of April, (Round figure) May and June 2012 Rs.4,62,375/-
D. Compensation for harassment to the plaintiff and for loss of prestige Rs.20,50,000/-
suffered by the plaintiff due to
harassment to her Tenant for
basement and other visitors
Total Rs.58,11,000/-
18. That initially the plaintiff had sent to the defendants 1 & 3 to 10 (as the details of defendant No.2 were not known at that time) a notice claiming Rs.60,00,000/- (Rupees Sixty Lacs) as damages, but the plaintiff filed a suit for compensation of damages for a total amount of Rs. 58,11,000/-.
19. That the cause of action for the suit arose between December, 2010 and August, 2011 when the defendants caused particularly serious damage to the property belonging to the plaintiff (in the basement) as said in detail in the preceding paragraphs, while carrying out repair, renovation and CS DJ No. 6443/2016 Page 7 of 44 restructuring work in the premises on the ground floor just above the aforesaid property of the plaintiff. It also arose during the aforesaid period when the Plaintiff apprised (through her husband Sh. S.K. Vij) the defendants through contacts, meetings and e- mails etc. about the irresponsible and unprofessional manner in which work of repair etc. was being carried out by the defendants including their men, causing damage to the plaintiff property and also arose on or about 17.02.2012 when the plaintiff served a notice dated 17.02.2012 to the defendants No. 1 & 3 to 10 through his counsel by registered post and thereafter when the defendants did not comply with but rather defendants no. 3 gave evasive and wrong reply dated 24.03.2012 to the said notice.
20. Summons were sent to defendants. The defendants have filed their written statements and the defence taken by defendants as culled out from the Written Statement is being noted:
Written Statement of Defendant no.1 and Defendant no.2.
21. It is not denied that property No. A-2/9 (Ground Floor), African Avenue Road, Safdarjung Enclave, New Delhi belongs to the answering defendant Nos. 1 and 2 and the said property, owned by answering defendant No. 1 and 2, is let out to defendant No.3 and is in occupation of defendant No.3.
22. It is categorically denied that the said defendant no.1 and 2 along with other defendants have been carrying on the work of repair, renovation and reconstruction in the premises occupied by defendant No.3, conjointly with defendant No.3 and other defendants. That the defendant Nos. 1 and 2 have not carried out any repair, renovation or reconstruction in the property owned by the answering defendants along with CS DJ No. 6443/2016 Page 8 of 44 defendant No. 3 conjointly with other defendants.
23. It is denied "that since the time of the previous owner, the said property was leased out to M/s Haymarket SAC Publishing (India) Pvt. Ltd.
24. It is categorically denied that defendant No. 3 with the help of other defendants carried out extensive repair, renovation and reconstruction work in its premises on the ground floor, which is situated just above the premises belonging to the plaintiff. It is stated that the said defendants have not carried out any repair, renovation and reconstruction work in the premises on the ground floor.
25. The allegation that 'the said, repair, renovation and reconstruction work was carried out in such an irresponsible and unprofessional manner and without caring about the damage, that it could cause, and in fact it did cause to the property belonging to the plaintiff on the lower ground floor' has been denied as false and concocted.
26. That the description of the alleged damages has been denied as false.
27. The allegation of irresponsible and unprofessional manner of carrying out repair, renovation etc. and their alleged effects have been denied as false and concocted.
28. The allegations about threat by the plaintiff's lessee for vacating the building due to the damage, defacement etc. and non extension of 9 years prior lease have been denied as false and concocted.
29. The allegations of a fresh lease with unfavourable terms and conditions for the plaintiff have been denied as false and concocted. However, it is not denied that the property is CS DJ No. 6443/2016 Page 9 of 44 situated in the mixed use area and commercial activities are being carried out from there.
30. It is averred that the plaintiff has not suffered any loss or damages because of any act of the defendant no.1 and 2.
31. It is averred that the alleged legal notice was sent to the answering defendants with totally wrong facts and it does not give any right to plaintiff to file the present suit for compensation and damages.
32. It is claimed that the plaintiff has got no cause of action to file the suit for damages and compensation against the defendants, especially against the defendant no.1 and 2.
33. That the present suit of the bogus and is based plaintiff is totally on wrong facts and circumstances.
34. It is claimed that the defendant No.1 & 2 are the owners of property A-2/9 (Ground Floor) Africa Avenue Road, Safdarjang Enclave, New Delhi-110029 which has been let out by defendant No.1 & 2 to defendant No. 3 and the property owned by answering defendants is in use and occupation of defendant No. 3 which was let out to them for opening a Health Clinic.
35. That the property owned by answering defendants was let out to defendant No. 3 for setting up a Health Unit of defendant No. 3, and they were also authorized to install and fix wooden cabins and partitions etc. only in the premises for their use but they were not authorized to make any structural alterations in the premises owned by answering defendants nor were authorized to make heavy repairs etc. in the property under tenancy, and all the terms and conditions were mentioned in the lease deed executed between the answering defendants and CS DJ No. 6443/2016 Page 10 of 44 defendant No. 3.
36. That as per knowledge of defendants no.1 and 2, no such major repairs or alterations have been carried out by defendant No. 3 or their employees which has resulted in any structural damages to the property of the plaintiffs which is situated below the property owned by the defendant no.1 and 2.
37. That even if any renovation / alterations has been carried out by the defendant No. 3, which is not admitted at all; the same would have been done by them themselves without any authority and knowledge and prior approval of the answering defendants no.1 and 2 and the defendants no.1 and 2 cannot be held liable for any damages caused to plaintiff (if any) on account of act of defendant No. 3. Plaintiff has not suffered any loss or damages due to any act of defendant No. 3 nor is the plaintiff entitled for any compensation.
38. That the plaintiff has manipulated the facts with malafide intention to grab money from the defendants, which is clear from the fact that the plaintiff has alleged that the repairs were carried out in January 2010 and they have claimed damages for estimated loss of rent from the month of June, 2011 till June, 2017. These damages are claimed with malafide intentions. It appears that in the present period of recession the rents of leased premises have gone down, and now-a- days the rental value of the properties is decreasing. From the plaint it is clear that initially rent was rupees 2 Lac 90 thousand per month and initial lease was for three years and the initial lease was executed on 13.08.08, and the period expired in June 2011. It appears from the facts narrated in the plaint that after the completion of initial period the tenant of plaintiff would have intended to vacate the CS DJ No. 6443/2016 Page 11 of 44 premises under their tenancy and due to that the plaintiff and their tenant again renegotiated the amount of rent and they executed fresh lease among themselves. The answering defendants have no knowledge about it but from the plaint itself it is evident. That's why they have claimed damages from June 2011 to June 2017 instead of January 2010 when they allege about the carrying out of the extensive repairs etc. by defendant No. 3.
39. That as regards the estimated cost of repairs and renovation also the same is not correct. The plaintiff has not narrated what damages have caused to her. Only lump sum compensation has been claimed. The plaintiff has not narrated what damage has caused to the building and what cost they have incurred in making the repairs. The defendant no.1 and 2 have no responsibility or liability to pay the damage and compensation. The defendant no.1 and 2 cannot be made liable for any loss or damage done by defendant No. 3, if any.
40. That the compensation which has been claimed on account of harassment to the tenant of plaintiff is totally wrong and denied. No harassment has been suffered by the tenant of plaintiff and/or their visitors.
41. That the suit is malafide and based on total wrong facts which are not admitted by the answering defendants.
42. That the defendant no.1 and 2 have been wrongly impleaded in the suit. They are not necessary and proper party and the suit is not maintainable against the answering defendants.
43. That the suit is liable to be dismissed with cost.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO.
CS DJ No. 6443/2016 Page 12 of 444 & 5.
44. That the present action is gross abuse of the process of law, devoid of merits, premature and un-occasioned and thus deserves to be dismissed in limine with costs.
45. Present suit is bad because of misjoinder of parties as defendant no.4 and 5 are not concerned with the present proceedings and therefore their names must be deleted from the array of the parties as they are not necessary parties.
46. Defendant no.4 and 5 have no concern with the present proceedings being they are in no way concerned with the day to day affairs, business or management of defendant no. 3 and as such defendant no.4 and 5 are not liable in any manner whatsoever. It is submitted that both the defendant no.4 and 5 are only shareholders of Defendant no. 3. It is submitted that Defendant No. 4 is neither a director nor employee of the company while defendant no. 5 is a non- executive director of defendant no. 3. The defendant no.3 company is limited by shares, duly registered under the provisions of Companies Act, 1956 and is a different juristic entity and as such addition of defendant no.4 and 5 in the array of parties, besides being an abuse of the process of law, is a malicious attempt on the part of the plaintiff to harass and also to stain the goodwill and reputation of the defendants.
47. Since the defendant no.4 and 5 are not concerned with day to-day- affairs of defendant no.3, therefore, by no stretch of imagination, can be held accountable even vicariously on behalf of either defendant no.3 or any of its employees.
48. Attribution of any action, if at all there was any, to CS DJ No. 6443/2016 Page 13 of 44 defendant no.4 and 5 which had the effect of either direct or indirect causing damage plaintiff or her property is denied as false and incorrect. As a matter of fact no cause of action ever accrued in favour of plaintiff qua defendant no.4 and 5.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 3,6,7, 8, 9, & 10.
49. That the present suit is a gross abuse of the process of law, devoid of merits, premature and un-occasioned by any cause of action towards the replying defendants and thus deserves to be dismissed in limine with costs.
50. Present suit is bad for misjoinder of parties being defendants no. 6, 7, 8,9 & 10 could not be made party to the present proceedings in their individual capacity and therefore their names should be deleted from the array of the parties as they are not necessary parties. It is pertinent to mention that Defendant no.7 has left the employment of defendant no.3 and is no longer associated with defendant no. 3.
51. Briefly stated, defendant no.3 is a company incorporated under the companies Act, 1956 engaged in the business of running Beauty, Slimming and Health Center/Institute. Defendant no. 3 has taken the ground floor of the premises bearing No. A-2/9, Safdarjung Enclave, Africa Avenue Road, New Delhi-110029 (hereinafter referred to as "Premises") from Defendant No. 1 & 2 on Lease for the running it's business. In terms of the said lease, Defendant no. 3 is permitted only to make temporary addition or alterations in the premises only in accordance with the requirement of defendant no. 3 to run its business from the said premises. It is stated that in CS DJ No. 6443/2016 Page 14 of 44 terms of the aforesaid lease deed it is only the defendant No.1 who may carry out repairs of leakage of roof, seepage from walls, external electricity wiring, external bursting of water pipes or defective sewage system or other such major defects in the Premises. Right from inception, Plaintiff has been raising false and frivolous claims and disturbing and interfering with the peaceful possession of defendant no. 3 and adversely affecting the smooth running of its business for the reasons best known to Plaintiff only. It is stated that defendant no. 3 has not caused any damage to the premises in any manner as alleged or at all. It is denied that any structural damage including crack in load sharing beam and slab at many places has been caused by defendant no.
3. It is also incorrect to state that alleged seepage in the wall and ceiling and defacement of property has been caused by defendant no. 3 in any manner whatsoever. As no major addition/ alteration can be done by the Defendant no. 3 as per the terms of the Lease Deed, the question of structural damage does not arise at all.
52. Defendants no. 4 and 5 are not the owners of defendant no. 3 as suggested and averred by plaintiff. Suggestions and averments regarding an alleged ownership of a separate juristic entity are not only factually incorrect but legally ludicrous/untenable. It is specifically denied that defendants have in any manner, whatsoever, committed any actionable wrong qua plaintiff as alleged. It has been denied that defendants no. 6-10 are in charge of day to day functioning of defendant no.3 and responsible in their private capacity for any kind of tort.
53. It has been denied that defendants no. 1 & 2 alongwith other defendants have carried out the work of repair, renovation or reconstruction in the premises occupied by CS DJ No. 6443/2016 Page 15 of 44 defendant no. 3.
54. It is denied that any repair, renovation or reconstruction in the premises was carried out by defendants or any damage was caused to the property belonging to the plaintiff in any manner whatsoever.
55. It is submitted that as no major addition/ alteration can be done by the Defendant no. 3 as per the terms of the Lease Deed. The question of Plaintiff apprising the answering defendants of the irresponsible and unprofessional manner in which any repair, renovation or reconstruction was being carried out does not arise.
56. It is denied that any extensive renovation was started by the defendant no. 3 as alleged.
57. It is, however, admitted that only interior works, partition which require no material alteration in the Premises were carried out. That all interior work was done with the consent of Defendant no. 1. It is stated that Defendant no. 1 duly inspected the premises and no issues whatsoever was raised by defendant no. 1 for any kind of renovation. All averment that the said work was carried out in unprofessional and irresponsible manner, or any structural damages including cracks in load sharing beam and slab in many places was caused or that there was any widespread seepage in the wall and ceiling of the hall and in the washrooms have been denied. It has been denied that there was any defacement in the building.
58. Defendants have questioned whether any commercial activity i.e. publishing, is permissible from the basement as per governing law. It is stated that no commercial activities could be carried out from basement from a residential CS DJ No. 6443/2016 Page 16 of 44 area in terms of MPD 2007 & MPD 2021. Apparently plaintiff had purchased a property where already illegal activities were being carried out by the lessee having obtained on lease the basement from its erstwhile owner. Besides, in the year 2007 sealing drive by Municipal Corporation for violation of statute has rendered many properties liable to be sealed and since in terms of MPD 2007 & MPD 2021 the premises of plaintiff also was rendered unfit for carrying on business and such it was but natural for a lessee to vacate the premises. Apparently, lessee of plaintiff also may have wanted to vacate the premises upon which plaintiff may have offered lessee lucrative terms which further may have resulted in notional losses to plaintiff. Be that as it may since there was no wrong having been committed by defendants there cannot a question of fastening tortuous liability on answering defendants. As a matter of fact it is plaintiff who is guilty of violation of MPD 2007 & MPD 2021. It is denied that the said defendants have caused any harassment, damage to the Plaintiff in any manner or at all. Threat, if any, given to Plaintiff is not attributable to said defendants in any manner whatsoever. The concocted story of execution of fresh lease by Plaintiff with tenant is denied for want of knowledge as this does not relate to the said defendants in any manner whatsoever. It is further denied that answering defendants are responsible for any loss of rent and damage caused to Plaintiff.
59. Baseless allegation have been leveled by plaintiff in the corresponding paragraph under reply in order to vilify answering defendants for some flimsy and imaginary damages having suffered by plaintiff. Losses as alleged in the plaint, even by its own admission are merely 'estimates' and not actual losses CS DJ No. 6443/2016 Page 17 of 44 suffered by plaintiff.
60. Factum of having received notice is not denied.
61. As a matter of fact no cause of action ever accrued in favour of plaintiff qua answering defendants.
Issues:
62. As per order dated 03.04.2017, admission-denial of documents was not done. On the pleadings of the parties, the following issues were framed vide the said order:
1. Whether the plaintiff is entitled for a decree of Rs.58,11,000/- against the defendants on account of damages / compensation as prayed for? OPP
2. If issue no. 1 is proved in affirmative, whether plaintiff is entitled for pendent-lite and future interest, if so, at what rate? OPP
3. Whether no cause of action has arisen in favour of the plaintiff and against the defendants? OPDs
4. Whether the suit is bad for misjoinder of parties? OPD 4 & 5 .
5. Relief.
Evidence:
63. The plaintiff has firstly examined Sh. S.K. Viz as PW-1 on 06.09.2018 and relied upon the following documents:
A. Sale Deed dated 06.10.2008 as
Ex.PW-1/A.
B. Certificate U/s 65B of evidence Act as Ex.PW-1/B. CS DJ No. 6443/2016 Page 18 of 44 C. Original E-mail Printouts consisting of 4 pages as Ex. PW-1/C1 (Collectively).
D. Original E-mail Printouts consisting of 57 pages now Ex. PW-1/C2 (Collectively).
E. Original E-mail Printouts consisting of 7 pages as Ex. PW-1/C3 (Collectively).
F. Original Lease Deed dated 13.08.2008 as Ex.PW.1/E. G. Lease Deed/Agreement dated 19.12.2011 as Ex.PW1/F (OSR).
H. Letter of Agreement regarding repair as Ex.PW-1/G. (OSR) I. Copy of Repair Bill as Ex.PW-1/H. (OSR) J. Photographs of premises belonging to plaintiffs property now Ex.PW1/I-1 to PW1/I-20.
K. Legal Notice dated 17.02.2012 as Ex.
PW1/J. (All the documents objected to by the counsel for all the defendants being not admitted).
64. PW-1 was duly cross-examined and discharged.
65. Thereafter, Plaintiff examined herself as PW-2 on 15.11.2018, and relied upon the documents which are already exhibited by PW-1. PW-2 was also duly cross-examined and discharged.
66. In defence, the Defendant no. 3 examined Sh. Sachin CS DJ No. 6443/2016 Page 19 of 44 Agarwal as DW-1. DW-1 tendered his evidence by way of Affidavit as Ex.DW-1/A and relied upon the following documents:
1. Photocopy of certificate for Incorporation of defendant no.3 as Mark DW1/A.
2. Copy of Board Resolution dated 25.10.2018 as Ex.DW1/B
3. Photocopy of lease deed dated 03.08.2010 as Mark DW1/C.
67. DW-1 was also duly cross-examined by the plaintiff and discharged.
68. Thereafter, Defendant no.2 was examined as DW-2 and she tendered her affidavit by way of Evidence as Ex.DW-2/1X. DW-2 was also duly cross-examined and discharged.
69. As far as defendant no.3 and other defendants are concerned, it was argued on behalf of the counsel for defendants that defendant no.3 being a company, the remaining defendants are not necessary party to the present suit. No decree can be passed against them. It is further submitted that in terms of Mark DW1/C lease dated 03.08.2010, lessor had covenanted for carrying out repairs and was responsible for the changes.
70. It is claimed that there was no damage caused by the defendant no.3 and other defendants to the property and they had only carried out the interior work as per the requirement. That the plaintiff has failed to prove the damages alleged.
71. Ld. Counsel for defendant no.1 and 2 has, on the other hand, argued that repairs were carried out by defendant no.3 and other defendants and therefore, defendant no.1 and 2 are not liable. He has relied upon the reply dated 17.02.2012, sent by CS DJ No. 6443/2016 Page 20 of 44 the defendant no.3 to the plaintiff, which document, although, not exhibited, but was filed by the plaintiff to buttress the said submission. It is further claimed that the plaintiff has miserably failed to show any loss as alleged. It is argued that only additional clause of service tax was incorporated, which was a component of the rent amount in the earlier lease. The new lease executed by the plaintiff increased the rent after every 1 year by 5%, instead of 20% every 3 years and therefore, in any event, there was almost 16% increase within the span of 3 years. That the defendant could not be burdened with the lease execution expenses, which anyway, have to be borne by the parties executing the lease. No recital can be found in the lease that the rent was being reduced because of any damage to the property.
72. That there is no evidence for additional claim of Rs.9 Lacs, nor of damage on account of loss of prestige and therefore, the suit of the plaintiff was required to be dismissed. It is further argued that the document Ex.PW1/9 and Ex.PW1/H are mutually inconsistent. How the letter dated 04.06.2012 for the purposes of carrying out the work be after the document Ex.PW1/H, unless it was only an estimate. In that eventuality, where is the bill/invoice. Even this estimate was never proved by the plaintiff, as the maker thereof, was not examined as a witness.
73. Record perused.
74. I shall now deal with issues framed in the present case. I shall first deal with issue no.3 i.e. Whether no cause of action has arisen in favour of the plaintiff and against the defendants? OPDs.
75. Ex.PW1/I-1 to Ex.PW1/I-20 are photographs showing bad condition of the wall because of seepage, resulting CS DJ No. 6443/2016 Page 21 of 44 in presence of fungus and peeling of plaster and paint. Photograph, such as, Ex.PW1/8 show poor condition of the ceiling of the basement. The plaintiff's witness admitted in the cross examination that the said photographs was taken during the year 2011 and photographs of further damage from August 2012 onwards, have not been filed separately. These photographs were admitted to have been taken on 15.07.2011. The claim made in the suit is that from August 2012 onwards, plumbing work was carried out by defendant, resulting in seepage. The legal notice dated 17.02.2012 i.e. Ex.PW1/J, describes the agony of the plaintiff and that how his property was being damaged by the renovation being carried out on the ground floor.
76. Although, the formal admission/denial of documents was not carried out by the parties, the receipt of legal notice was not denied by the defendant concerned. The defendant no.3 admitted in terms that the defendant no.3 was permitted to make temporary additions and alterations in the premises in accordance with requirements of defendant no.3 to run its business. Defendant no.3 further claimed that it was the defendant no.1 who had to carry out repairs for leakage on roof, seepage of walls, external wiring etc. as per the lease executed between the defendant no.1 and defendant no.3.
77. It was claimed in the written statement that no major additions/alterations could be done by defendant no.3. That the defendant carried out only interior work, partition, which require non material alterations in the premises. All interior work was done with the consent of defendant no.1 and the defendant no.1 had inspected the premises and no issue, whatsoever, was raised by the defendant no.1 for any kind of renovation. Therefore, CS DJ No. 6443/2016 Page 22 of 44 there is an admission by the defendant that some interior work was carried out by the defendant and partition was being raised.
78. Since the defendant no.3 was the occupier/tenant in possession of the property and has admitted that it was carrying out interior work, the extent of interior work carried out was required to be proved by the said defendants. The defendants also had to show that the testimony of the plaintiffs alleging seepage and damage to suit property due to renovation on the ground floor was false or unreliable. Were the defendants able to do so?
79. It may be pertinent to note that witness on behalf of defendant no.3, namely, Sh. Sachin Agarwal, who appeared as DW-1, admitted that he had joined the defendant no.3 on 24.02.2018 and he had no connection with the defendant no.3 before the said date. That he had never visited the suit premises and he could not tell any details of the fixtures/equipments installed at the premises and any modification/construction/repair carried out. The relevant portion of his cross examination dated 08.05.2019 is quoted for ease of reference:
I have joined defendant No.3 on 24.02.2018 and before that I was working with Videocon Industries Ltd. And before 24.02.2018, I had no connection with the defendant No.3. My affidavit was prepared on my instructions by our Counsel. As I have never visited the premises i.e. A- 2/9, Ground Floor, Africa Avenue, New Delhi-110029, I cannot tell any detail about the fixtures/equipments installed at the premises and any modification/construction/repair carried out at any point of time in the above premises. I cannot even tell the layout of the premises. VOL: Some equipments are common in every center like saloon chair, hair wash area, spa area, fitness equipments, etc. CS DJ No. 6443/2016 Page 23 of 44 Generally/at least, there are two washing areas in every center of the company defendant No.3. I am aware about the facts of the present case only from the records available at my office and with discussions with my seniors. I got prepared my affidavit EX.DW-1/A only after going through the record available and after discussion with my seniors/colleagues. The contents of para No.2, 3, 4, 5, 6, 7, 9, 14 of EX.DW-1/A were got prepared by me after reading the facts of the case. The contents of para No.2, 3, 4, 5, 6, 7, 9, 14 are my conclusions. The contents of para No.8, 10, 11, 12, 13 in my affidavit EX.DW-1/A are not in my personal knowledge but gathered from the discussions with seniors and colleagues.
80. The defendant no.2 Ms. Subha Singhvi appeared as DW-2 and she was cross examined on the claim of damages raised by the plaintiff. This witness was confronted with the document Mark DW1/C. The relevant portion of the document i.e. lease agreement dated 31.08.2010, is quoted for ease of reference:
The Lessee to hand over the possession by removing all the temporary internal structures and on the same condition of the property as was given to them.
...
c) The flooring of the premises shall be made as per the specifications to be provided by the Lessee & Lessee undertakes to get that job done on behalf of the Lessor and for that Lessor has paid the required amount.
...
The Lessor shall refund the security deposit amount at the time of vacation of CS DJ No. 6443/2016 Page 24 of 44 premises by the Lessee. In case the Lessor delays in returning the security deposit amount to the Lessee, then the Lessee can withhold handing over of the keys of the premises without payment of any rentals to the Lessor from the date of vacation of the premises.
81. When witness was confronted with this portion of the document, her reply to the questions is as follows:
Q8: At this stage, witness is shown Para C at Page 4 of Mark DW-1/C and asked what was the amount paid to the VLCC with regard to work in Para C?
A: I do not remember the exact amount which was paid by us to the VLCC in this regard. I cannot even tell the tentative amount also.
We had adjusted our rent amount of one and a half month towards the structural changes done by VLCC.
We never paid any amount to VLCC towards any repairs of leakage of roof. (VOL. They never asked for the same.)
82. The aforesaid evidence is sufficient to show that renovation work was carried out in the premises, including repair of flooring. The existence of washing area, spa area in centre would have required plumbing work. The claim that only partitions were raised is therefore, not proved by the defendant. The defendant no.3 has rather failed to support the claim made in the written statement through the testimony of its witness DW-1. DW-1, in my view, had no knowledge of the facts and circumstances of the case and his testimony on these aspects is CS DJ No. 6443/2016 Page 25 of 44 not even worth the paper it is printed on. The defendants have also failed to show that the photographs filed were unreliable or forged or not of the basement or of the period concerned.
83. At this juncture, certain admissions made by the defendants may also be referred to:
Affidavit of Evidence of DW-1 Sh. Sachin Agarwal on Defendant no. 3 to 10:
That defendant No.3 has taken the ground floor of the premises bearing No.2/9 Safdarjung Enclave, Africa Avenue Road, New Delhi-110029 (hereinafter referred to as "Premises") from defendant Nos.1 & 2 on Lease for the running its business. That in terms of the said lease, defendant No. 3 is permitted on to make temporary addition or alterations in the premises only in accordance with the requirement of defendant No. 3 to run its business from the said premises. That in terms of the lease deed it is only the defendant No.1 who may carry out repairs of leakage of roof, seepage from wall, external electricity wiring, external bursting of water piper or defective sewage system or other such major defects in the premises.
...
That defendant Nos.3 to 10 have not caused any damage to the premises in any manner as alleged or at all. That any structural damage including crack in load sharing beam and slab at many places has not been caused by defendant Nos. 3 to 10. That alleged seepage in the wall and ceiling and defacement of property has not been caused by defendant Nos. 3 to 10 in any manner whatsoever. Since no major addition/alteration could be done by the defendant No. 3 as per the terms of the Lease Deed, the question of structural damage does not arise at all.CS DJ No. 6443/2016 Page 26 of 44
Affidavit of DW2 Ms. Shubha Singhvi If any alteration has been done by VLCC and any damage is caused to plaintiff property, which is not accepted, the same is not payable by the deponent or defendant no. 1 & 2.
...
That as per knowledge of deponent no such major repairs or alterations have been carried out by defendant No. 3 or their employees which has resulted in any structural damages to the property of the plaintiffs which is situated below the property owned by the defendant No. 1 & 2. VLCC was occupying the building since 2007 and no alterations were done by them.
...
That since the rents were declining and VLCC was not in a position to pay the agreed rent, they also vacated the premises since the business was going down due to recession after the year 2010.
Cross-examination of DW2 Ms. Shubha Singhvi dated 04.12.2019:
I am a housewife. I have no professional qualification, I am only BSC Graduate. I had visited the said property i.e. A-2/9, Ground Floor, Africa Avenue Road, New Delhi-110029 about 15 days back. At present, it Is in the tenancy of Renault Car and the rental amount is about Rs.6.10 Lakh per month. I am not sure about the exact amount of rent on which the premises was given Initially to VLCC but it was around Rs.4.5-5 Lakh per month. The lease agreement with the VLCC was executed only once. (VOL. As they could not pay the rent, they vacated) VLCC vacated in 2012. Tenancy of VLCC CS DJ No. 6443/2016 Page 27 of 44 started on the said premises from 2007. There was no lease agreement in 2010. It is wrong to suggest that I am giving false statement intentionally. It is further wrong to suggest that I am giving false statement knowing well that I have to depose correctly on Oath.
At this stage, the witness is shown Mark DW-1/C and asked whether your signature surfaces on any of the 10 pages of the lease agreement dated 31.08.2010.
At this stage, the witness is shown Mark DW-1/C and asked whether your signature surfaces on any of the 10 pages of the lease agreement dated 31.08.2010.
As it is a photocopy, I am unable to identify my signature. I do not remember the exact rent amount during the period from 2010 till the vacation. (Vol. Every three year 10% increase in rent was agreed.) AT the time when we initially rented the property to VLCC, there was only one common overhead water tank with capacity of 1500 Liters approx. was installed for the entire building. It is correct that as per the agreement with the VLCC, the agreed rent for the period 16.10.2010 to 15.10.2013 was Rs.4,84,000/- per month for the period of 16.10.2010 to 15.10.2015 was Rs.5,57,000/-
per month. The ratio of rent sharing between myself and my husband was 2/3rd and 1/3rd.
As far as I remember, the lease agreement with the VLCC was executed in 2007at Hayat Regency Hotel, New Delhi.
...
Q.1: Was any condition of lease agreement defeated by the conduct of VLCC?
A: No condition of the lease agreement was defeated by the conduct of VLCC.
We had refunded the amount of security of the value of three months to the VLCC when CS DJ No. 6443/2016 Page 28 of 44 they vacated the premises.
...
Q5: What is the basic damage claimed by the plaintiff caused by the construction/repair on the ground floor of the premises?
A: The basic damage claimed by the plaintiff was damage due to leakage from the work on the ground floor. (VOL. However, infact there was no damage.) It is wrong to suggest that actually there was large scale damage in the premises of the plaintiff due to the above said leakage.
As per the agreement, all the repair work including the leakage was to be done by the VLCC people. The affidavit filed by me was dictated by me and thereafter the printout was taken and I put my signatures.
84. The aforesaid material and evidence which includes the oral testimony shows that, although, the defendant no.1 and 2 on one side and defendant no.3 on the other side, had been throwing the responsibility on each other, they admit the renovation mostly by VLCC with the consent of the defendant no.1 and 2 for which even adjustments were made in rent qua structural changes made by defendant no.3.
85. In these circumstances, the claim of the plaintiff in the suit cannot be said to be devoid of cause of action. Renovation of the property by the defendant no.3 with the approval of the defendant no.1 has been established, as also, that it led to some damage including because of seepage in the basement area, resulting in an injury (breach of a legal right) to the plaintiff. Issue no.3 is accordingly decided against the CS DJ No. 6443/2016 Page 29 of 44 defendant no.1 to defendant no.3 and in favour of the plaintiffs.
86. As far as other defendants are concerned i.e. defendant no.4 to defendant no.10, the plaintiff has not been able to show that any damage was caused by the defendant no.4 to defendant no.10 by any act on their part. The company was the lessee and the renovation carried out was for the purposes of the company. There is no averment that any of the employees were actually present at the site at all times and were carrying out or supervising the renovation work. This is not a case requiring lifting of the corporate veil so as to hold accountable the share holders, promoters, directors or employees of the defendant no.3 company. No cause of action has been disclosed qua defendant no.4 to defendant no.10. They were unnecessarily impleaded as defendants in the present case. The issue is accordingly decided in favour of defendant no.4 to defendant no.10.
87. That takes me to issue no.4 i.e. Whether the suit is bad for misjoinder of parties? OPD 4 & 5 .
88. In view of the finding hereinabove given vis-a-vis defendant no.4 to defendant no.10, it is clear that the said defendants were wrongly arrayed as defendants. The case is one of misjoinder of defendants, however, misjoinder of defendants alone, unless accompanied by misjoinder of causes of action, is not fatal to the suit. However, the same has led to unnecessary harassment of the said defendants and they had to litigate for several years without any relief being capable of being granted against them. On that count, they are entitled to compensation towards costs of litigation. Issue no.4 is accordingly decided in favour of defendant no.4 and 5.
89. That takes me to issue no.1and issue no.2 i.e. Issue CS DJ No. 6443/2016 Page 30 of 44 no.1: Whether the plaintiff is entitled for a decree of Rs.58,11,000/- against the defendants on account of damages / compensation as prayed for? OPP and issue no.2: If issue no. 1 is proved in affirmative, whether plaintiff is entitled for pendent-lite and future interest, if so, at what rate? OPP.
90. That plaintiff has been able to show seepage in the property resulting in a legal injury to the plaintiff. The same is itself proof of negligence, as the things speak for themselves. The doctrine of res ipsa loquitur has to be applied to the case like the present one. Some damage can also be assumed considering the condition of the walls and ceiling due to the seepage.
91. Now the next question that needs to be determined is that of damages.The law on damages is well settled. Damages in action arising out of tort of negligence can be classified as:
general and special or pecuniary or non− pecuniary loss. The distinction between the two has been brought out by various High Courts of the country.
92. In C.B. Singh v. Cantonment Board, Agra, AIR 1974 All 147, the Allahabad High Court has dealt with the subject comprehensibly and crystallized, for our benefit, the law on the subject. The Hon'ble Judge of the said High Court observed:
23. General damages are those which the law presumes to flow from the negligence complained of.
These damages must be proved, but it is not necessary to allege them in detail in the statement of claim. Special damages mean some specific item of loss which the plaintiff alleges is the result of the defendant negligence in the particular case, although it CS DJ No. 6443/2016 Page 31 of 44 is not presumed by the law to flow from the negligence as a matter of course. Full particulars of all special damage must be given. The orthodox approach was to bring the various heads of damages under one or the other of these two classes, but the practice of the courts has demonstrated that these heads often overlap and it is not always possible to maintain the distinction between them.
93. In Minor Veeran and another v. Krishnamoorthy and another, AIR 1966 Ker 172 it was observed in reference to General Damages that:
"General damages represents the pecuniary reparation or solatium to the plaintiff for the injuries sustained by him. As has been said already, general, damage is to be presumed by the Court and therefore needs no specific pleading for grant of relief. In practice, a mere general allegation that the plaintiff has suffered damage or injury or a mere statement of facts about the accident with a prayer for award of damages is sufficient to entitle the plaintiff to a decree for general damages. (See the Law of Damages and Compensation by Rameswara Rao, Chapter XXXIII, para 3 and Law of Pleadings by Mogha, 10th Edn, pages 24−25). Even in valuing the claim, it is open to the plaintiff to put an estimate of the general damages paying court−fee thereon and offering to pay before decree is passed additional court−fee on the fixation of damages due to him. (See Ragavaji Sait v. Annamalai Mudali, (1907) 17 Mad LJ 625). A plaintiff, claiming damages but failing to prove any special damage, may be entitled to general damages.
94. On the facts before the court, the court observed that:
CS DJ No. 6443/2016 Page 32 of 44The Munsif has disallowed general damages on the ground that the 1st plaintiff is not suffering from any infirmity after the medical treatment received by him. The reason is fallacious. What about the pain and suffering undergone by the 1st plaintiff ? They are material items for which the 1st plaintiff is entitled to pecuniary compensation by way of general damages.
95. As the law provides for payment of general damages in cases like the present one the next question is: How general damages have to be calculated?
96. The Jammu & Kashmir High Court has in Roshan Lal Bhalla & Another v. Sudesh Kumar & Others, AIR 1968 J&K 2 observed that:
"There can be no exact measure of awarding damages in cases of injury to persons and mental suffering. If the tort is in relation to property, assessment of damages is comparatively easier because the damages are then determined by the pecuniary loss suffered, but when the injury to a person is the subject−matter of a suit for torts it becomes rather difficult to assess in actual monetary terms the quantum of damages. It is, however, well settled that damages must not be too remote. Consequences which are reasonable and probable and are the direct result of an unlawful act will not be very remote and can be taken into consideration in determining the quantum of damages."
97. The Jammu & Kashmir High Court observed that in Rowley v. London and North Western Rly. Co., (1873) 8 Ex.221:42 LJ Ex. 153, the english court had approved and laid down the rule as declared by Baron Parke that the jury must not attempt to give damages to the full amount of a perfect CS DJ No. 6443/2016 Page 33 of 44 compensation for the pecuniary injury, but must take a reasonable view of the case and give what they considered under all the circumstances a fair compensation. The Court interpreted the expression fair compensation as:
"22. The words what is meant by compensation that is fair and yet not full have been interpreted as what would a fair−minded man, not a millionaire, but one with a sufficiency of means to discharge all his moral obligations, feel called upon to do for a plaintiff whom by his careless act he has reduced to so pitiable a condition."
98. Now the plaintiff's claim has been divided into following parts:
Particulars Amount
A. Estimate Loss of rent
(excluding playable taxes)
June. 2011 Rs. 58,000/-
July 2011 to November 2012 @ Rs. 6,75,500/-
(Rs.39750/- x 17) (Round figure)
Rs.4,38,000/-
Dec 2012 to May 2014 (24,338/- x 37) (Round figure) June 2014 to June 2017 @ (Rs.42,152/- Rs.15,59,500/-
x 37) (Round figure) B. Cost of Execution and Rs.1,30,000/-
Registration of the New Lease (Round figure) Deed dated 19.12.2011 (which was borne by the plaintiff) C. Estimated cost of repair and renovation (due to the defendants)
(i) Paid by the plaintiff directly Rs.4,38,000/- (Round figure)
(ii) Cost of work to be done by the lessee and adjusted by foregoing half Rs.9,00,000/-
month's rent for the month of April, (Round figure) May and June 2012 Rs.4,62,375/-
CS DJ No. 6443/2016 Page 34 of 44D. Compensation for harassment to the plaintiff and for loss of prestige Rs.20,50,000/-
suffered by the plaintiff due to
harassment to her Tenant for
basement and other visitors
Total Rs.58,11,000/-
99. The claim under the head A, B and C hereinabove deals with pecuniary loss or special damage, whereas claim under the head D seems to be a claim in general damages. I will first deal with the claim A and B since they pertain to loss on account of the inconvenience to the tenant of the plaintiff and the tenants renegotiating the lease on said account. The claim is divided into two parts i.e.:
Particulars Amount
A. Estimate Loss of rent
(excluding playable taxes)
June. 2011 Rs. 58,000/-
July 2011 to November 2012 @ Rs. 6,75,500/-
(Rs.39750/- x 17) (Round figure)
Rs.4,38,000/-
Dec 2012 to May 2014 (24,338/- x 37) (Round figure) June 2014 to June 2017 @ (Rs.42,152/- Rs.15,59,500/-
x 37) (Round figure) B. Cost of Execution and Rs.1,30,000/-
Registration of the New Lease (Round figure) Deed dated 19.12.2011 (which was borne by the plaintiff)
100. When the plaintiff's witness PW-1 was cross examined on the aspect of damages, he has made certain admissions contrary to the claim made in the plaint and affidavit towards evidence. It was the case of the plaintiff that the tenant CS DJ No. 6443/2016 Page 35 of 44 threatened to vacate the property and renegotiated and insisted on reduced rentals. Rent was reduced and fresh lease deed was executed, hence the claim A and B. The relevant portion of the cross examination to the extent it pertains to the claim for damages on account of renewal of lease, its expenses, requirement of renewal, reduced lease rental etc. is reproduced for ease of reference:
Cross-examination of PW-1 Sh. S.K. Vij dated 17.09.2018:
The said property was purchased in 2008. The tenant in 2008 was M/s. Hay Market. The period of lease was 9 years broken into three period of three years each. Q. Whether the lease in 2008 was executed for 3 year or for 9 years.
Ans. It was executed for 9 years. Q. Who was the land lord at that time? Ans. M/s South Delhi Apartments. I have read that lease which was executed in the year 2008.
Q. Whether the deed of 2008 was to operate for 3 years or 9 years?
Ans. 9 Years.
Q. Whether Any renewal of lease deed was to be done or not?
Ans. Normally Not.
Q Whether in the deed there was any clause for renewal of lease deed or not? Ans. This is a matter of record on the file. Q. Who was to pay the expenses of renewal of lease deed? (Objected as being irrelevant). Ans. As all ready said, no renewal was to take place during the period of 9 years. At this stage the witness was shown and made to read para 2 (page no.5) of the lease deed dated 13.08.2008.
Q. According to this (para no.2 above) renewed lease was to be executed after 3 years what you have to say?
Ans. By convention and by my CS DJ No. 6443/2016 Page 36 of 44 understanding, unless changes were necessitated, there was no need to execute a renewal lease.
Q. Whether any option was to be exercised by the lessee for the renewal of two succibe renewals of lease deed of 3 years each? Ans. This is a matter of record in the lease deed.
...
Q. This renewal of lease deed in 2011 was done in lieu of the lease deed of 2008 and the same was necessary as per the deed of 2008 is it correct or wrong?
Ans. It is wrong to suggest.
Q. Whether the property in question is a basement property?
Ans. Yes.
Q. Whether the property in possession of VLCC was on ground floor?
Ans. Yes, right above my property. Q. Since when VLCC was a tenant on ground floor?
Ans. Not known to me exactly. How ever they were tenants during the course of damages caused and compensation claimed by me in the said ease.
Q. Whether they were tenant of ground floor premises when you purchased the basement? Ans. It would be a matter of record. Q. Whether you have knowledge of their possession prior to of the year 2008 or note. Ans. No Q. When the lease deed was executed in the year 2011, whether at that time one more lessee was inducted in the lease deed or not? Ans. This is a matter of record. The deed records a sister company of the original lessee who did it for their own tax reasons. It is also to be noted that the deed was one and not two separate deeds.
Q. Whether their areas were separate or not? Ans. The deed recorded their areas as one CS DJ No. 6443/2016 Page 37 of 44 third and two third but there was no physical separation.
Cross-examination dated 01.10.2018:
The initial period I of lease with Hay Market was for three years starting from 01.06.2008 to 31.05.2011. It is correct that the lessee paid the rent upto 31.05.2011 as was agreed upon. The second agreement was executed on 19.12.2011. The part period of this second lease was from 01.07.2011 to 30.06.2014. The rent for this first period was a total of Rs.3,08,250/- for one year and thereafter there was increase by 5% from 01.12.2012 and in addition to the rent 10.3% Service Tax was to be paid separately and it was also agreed that from 01.06.2014 the rent will be further increased by 16%. Both Hay Market companies vacated the premises on 31.12.2017. This 16% increased rent was paid from 01.06.2014 to 30.06.2017. When they asked for extension, they paid some more percentage about 5% over and above the previous rent in June 2017. This increase was only for 6 months. There is a written agreement for this period also. I have not filed this agreement which was executed after June 2017. If required, I will file this also. I do not know where they have gone after vacating my premises. They have certainly vacated it having bad experience even after spending lot of money in 2012.
101. The aforesaid cross examination of the plaintiff dated 17.09.2018 has to be read with contents of the lease dated 13.08.2008 Ex.PW1/E relevant part of which, reproduced for ease of reference:
That the initial period of the lease shall be for Three years commencing from Ist June 2008 and ending on 31st May 2011 CS DJ No. 6443/2016 Page 38 of 44 (hereinafter referred to as 'Lease Period') Upon the expiry of initial period of three years, the lease would be renewed for two more successive terms of the three years after increase in the monthly rent by 20% of the last rent paid from the beginning of the fourth year and further (after every three years). The renewed lease deed shall be executed and registered with the appropriate authorities.
102. Thus, the lease had to be renewed, in any event, after 3 years. When the new lease was executed, the rent had, in fact, increased by 5% per year from 01.12.2012 and additional 10.3% service tax was to be paid separately. Further, that from 01.06.2014, the rent was to be increased by 16%. The tenant continued in the property till 31.12.2017 and the increase of 16% was paid. That the witness could not prove or depose regarding the reduced rent in the first half of the year 2012. Further, the plaintiff admitted that for tax purposes, a sister company of the original lessee was also inducted as a tenant alongwith the original lessee.
103. Therefore, to my mind, the plaintiff has miserably failed to show any loss of rent on account of alleged damage. Rather the claim that, the lease for reduced rent was entered into, because of seepage, is belied by the plaintiff's admissions made in the cross examination that the sister company of the original lessee was inducted as a tenant alongwith the original lessee for tax reasons and that rent was agreed to be increased by 5% per annum w.e.f. 01.12.2012 and 16% from 01.06.2014 and the component of service tax of 10% was to be paid additionally over and above the rent, which covenant was not part of the original CS DJ No. 6443/2016 Page 39 of 44 lease. Therefore, the claim A and B is liable to be rejected, as neither reduction of rent, nor expenses of execution of fresh lease can be attributable to the alleged damage by seepage.
104. There is another way of looking at the matter. The fresh lease deed does not record that rent was being reduced on account of seepage or damage to the property because of any renovation by the occupiers of the ground floor. The tenant was never called as a witness to prove the circumstances which led to execution of a fresh lease, alleged reduction of rent and the reasons thereof and the reasons for inducting the sister concern and the introduction of element of service tax. The plaintiff cannot take advantage of these facts in the absence of any evidence on behalf of the tenant. Any subsequent document cannot be read to justify the reasons for execution of fresh lease between the plaintiff and the tenant.
105. That takes me to claim C i.e.:
C. Estimated cost of repair and renovation (due to the defendants)
(i) Paid by the plaintiff directly Rs.4,38,000/- (Round figure)
(ii) Cost of work to be done by the lessee and adjusted by foregoing half Rs.9,00,000/-
month's rent for the month of April, (Round figure) May and June 2012 Rs.4,62,375/-
106. To prove the first part of the claim, the plaintiff has relied upon Ex.PW1/H issued by one Nazrul Kazi. It is not a bill but only seems to be an estimate. The maker of the said document i.e. Mr. Nazrul Kazi was never examined as a witness by the plaintiff. Therefore, the said document has not been proved by the plaintiff as per law. Even otherwise, when the CS DJ No. 6443/2016 Page 40 of 44 plaintiff's witness was questioned on the said document, the alleged repairs and the payments made towards the alleged work, his answers do not inspire any confidence. The cross examination of plaintiff's witness PW-1 dated 01.10.2018, to the extent relevant to the aspect, is quoted for ease of reference:
The repair work was done in the month of March 2012 to June 2012. The work done by us was of water proofing, repairs to walls and ceiling and the rest of the work was got done by the tenants. Mr. Nazrul Kazi did the work of waterproofing of walls and ceilings. Mr. Nazrul Kazi gave me a document at the time of completion of the work which I have filed in this court case. The paper No.116 Ex.PW-1/H filed is the bill/ in lieu of bill given to me by Mr. Nazrul Kazi that I have filed. This bill even though not specifically addressed to me pertains to this property address as recorded thereon. This document is regarding the total work done by Mr. Nazrul Kazi. I have made the payment of paper No.116 Ex.PW-1/H to Mr. Nazrul Kazi in installments from the beginning to the end of the work. I do not maintain any books of accounts. This expenditure does not entitle me to any rebates in Income Tax and thus has not been shown in my ITR. This amount may have been pad mostly in cash and some by cheque as part payments are required-to be released frequently for Mr. Nazrul Kazi to buy the materials and pay his labour and for hire of the equipment. I am not sure if I can file any details of cheques released to Mr. Nazrul Kazi. This alleged bill is regard to repairs of walls and of ceilings concrete work. It is wrong to suggest that we have not made any payment for any repairs as has been alleged in the suit. It is also wrong to say that the alleged bill of Mr. Nazrul Kazi is also not correct and so much work was not CS DJ No. 6443/2016 Page 41 of 44 done in the premises.
107. The plaintiff has, thus, fail to prove the bill and the payment of amount against it to Nazrul Kazi.
108. That takes me to the second part of the said claim i.e. rebate of half month rent towards cost of repair carried out by tenant. The cross examination of the plaintiff witness dated 01.10.2018, relevant to the extent, is quoted for ease of reference:
I was receiving payment by cheque or by bank transfer. They were paying rent regularly every month except for three months which was agreed to be half month rent instead of full month to meet the cost of damages repaired by them. I do not remember for which months they deducted the rent but perhaps it was in the first half of 2012. I do not know whether I have filed any document regarding the reduction in 50% rent but after obtaining bank statements it can be filed. This being my reduced income, only reduced income was reflected in the ITR. There is no need to file any additional document regarding reduction of rent to the Income Tax Authorities.
109. Thus even the claim towards loss on account of less payment of rental that is at half rate has not been substantiated by any evidence in the form of bank statement showing actual payment of less amount. Therefore, the entire claim under the head C is also liable to be rejected as no special damage or pecuniary loss on account of repairs, loss of rental, etc. has been established.
110. That takes me to claim D i.e.:
D. Compensation for harassment to the plaintiff and for loss of prestige Rs.20,50,000/-CS DJ No. 6443/2016 Page 42 of 44
suffered by the plaintiff due to
harassment to her Tenant for
basement and other visitors
111. The plaintiff has not produced the tenant to depose regarding how the plaintiff suffered loss of prestige in the eyes of the tenant. No reduction of rent has been proved, as already indicated, the renewal of lease included a sister concern of the tenant and admittedly for tax purpose, the element of service tax was carved out and rent was increased annually instead of every 3 years. The amount spent on repairs was not proved. The extent of damage so as to diminish the value of the property has not been proved by examining any expert. The damage as visible to the naked eye in the photographs only has been established.
Therefore, the plaintiff is only entitled to general damages for the damaged caused to the property and for harassment on account of the damage, the need for repair and the litigation that ensued to enforce the legal right. For the aforesaid heads of general damage, this court deems it fit to grant damages @ Rs.5,00,000/- towards damage to property and its need for repair, taking judicial notice of the amount that would have been spent in removing the damage and restoring the property to a better look. Plastering and repainting work would have been undertaken. On account of harassment suffered, a sum of Rs.2,00,000/- is hereby awarded to the plaintiff. The costs of the present proceedings are also awarded in favour of the plaintiff towards litigation expenses, besides an additional sum of Rs.50,000/- towards the time spent by the plaintiff in prosecuting the present claim.
112. The amount shall carry pendente lite and future interest @ 6% per annum. The defendants are jointly and CS DJ No. 6443/2016 Page 43 of 44 severally held liable to pay the aforesaid amount as damages to the plaintiff for the following reasons:
a. The contract between the defendant no.1 and 2 on one side and defendant no.3 on the other side and its covenants are not relevant for the tort committed in the present case. The same are of the nature of contract of indemnity inter se and even otherwise, no specific issue vis-a-vis any contractual liability of defendants inter se was raised or framed and neither defendant cross examined the other defendants witness; b. The defendants have admitted that the defendant no.3 had carried out the repairs and renovation with the consent of defendant no.1 and 2 and some amount was also adjusted on account of repairs required to be carried out by defendant no.1 and 2, but carried out by defendant no.3, as has been discussed while deciding the issue pertaining to cause of action.
113. As far as defendant no.4 and 5 are concerned, the plaintiff shall bear the costs of litigation incurred by them, as this is not a case where there was any uncertainty about their liability. The defendant no.3 was a company was known to the plaintiff all throughout.
114. Decree sheet be drawn accordingly.
115. File be consigned to Record Room.
Digitally signedHarjyot by Harjyot Singh Bhalla Singh Date:
Pronounced in the open court 2025.03.27 Bhalla 16:55:55 +0530 on 27.03.2025 HARJYOT SINGH BHALLA DJ-05, SOUTH SAKET COURTS NEW DELHI CS DJ No. 6443/2016 Page 44 of 44