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[Cites 7, Cited by 0]

Delhi District Court

Praveen Kumar vs . Dilip Jain on 24 September, 2014

                                                 Praveen Kumar Vs. Dilip Jain
                                                                 CS­487/11
                                   1


   IN THE COURT OF SH. MANISH KHURANA:JSCC­CUM­ASCJ­
      CUM­GUDN. JUDGE (NORTH): ROHINI COURTS:DELHI
                      CS NO. 487/11

Praveen Kumar
S/o Sh. Prem 
R/o 1639, Gulabi Bagh,
Delhi­07                                          .....................Plaintiff
                               Versus 

Dilip Jain
S/o Sh. Radha Kishan Jain
R/o A­88, First Floor
Ashok Vihar, Phase­II,
Delhi­52
Also at:
160, Veer Nagar,
Jain Colony, Delhi­07
                                                ......................Defendant 

                                 DATE OF INSTITUTION : 14.10.2011 
                                  DATE OF DECISION  : 24.09.2014 

                           SUIT FOR RECOVERY



                                       VALUE OF SUIT : Rs.  2,14,873/­
                                       COURT FEES PAID : Rs. 4450/­
 JUDGMENT

Praveen Kumar Vs. Dilip Jain CS­487/11 2

1. Vide this judgment I proceed to dispose of the suit for recovery of Rs. 2,14,873/­ (Rupees Two Lacs Fourteen Thousand Eight Hundred Seventy Three Only). Through this suit it has been prayed that a decree of Rs. 2,14,873/­ may be passed in favour of the plaintiff and against the defendant along with pendente lite and future interest @ 18% per annum and the cost of the suit.

2. As per case of the plaintiff, the plaintiff approached the defendant for taking his premises i.e. first floor of property bearing no. A­88, Ashok Vihar, Phase­II Delhi on rent and a registered Rent Agreement dated 15.07.2010 was executed between the parties and the plaintiff paid the sum of Rs.10 lacs as security amount vide Demand Drafts and it was agreed between the parties that an interest @ 5.75% per annum or when FD interest rate, whichever is higher, shall be payable on the sum of Rs.5 lacs and no interest was chargeable on the remaining security deposit amount of Rs.5 lacs. It Praveen Kumar Vs. Dilip Jain CS­487/11 3 is alleged that the aforesaid security amount was to be refunded at the time of vacation of the premises. It is also alleged that the lease deed was for a period of 11 months and there was no lock­in period prescribed in the said rent deed. It is also alleged that the period of lease was from 15.07.2010 to 14.06.2011 and the defendant could have got the premises vacated by giving one months notice to the plaintiff as per terms and conditions of the lease deed. It is further alleged that the plaintiff paid the sum of Rs.35,000/­ towards monthly rent for a period of 6 months and in the second week of December due to some unforeseen circumstances the plaintiff was compelled to vacate the suit premises and plaintiff verbally informed the defendant that he would not been able to continue in the suit premises and requested the defendant to take over the possession on the suit premises and to refund the security amount in terms of rent agreement. It is alleged that the defendant took the possession Praveen Kumar Vs. Dilip Jain CS­487/11 4 of the suit premises from the plaintiff on 12.01.2011 and assured the plaintiff to return the entire security amount along with interest as agreed upon. It is further alleged that the defendant did not return the security amount and the plaintiff was forced to send him a letter dated 19.01.2011 demanding the refund of security amount, but no response was received from the defendant. Plaintiff also alleged that the defendant contended that there was a lock­in period of 11 months and that the plaintiff could not have vacated the premises before expiry of 11 months. It is also alleged that defendant straightaway refused to refund the security amount without deducting the rent of remaining five months i.e. from February 2011 to June 2011. It is alleged that after much persuasion, the defendant repaid the sum of Rs.8,25,000/­ out of total security amount of Rs.10 lacs after deducting the sum of Rs.1.75 lacs allegedly on account of rent for remaining period of five months. It is alleged that the Praveen Kumar Vs. Dilip Jain CS­487/11 5 defendant threated the plaintiff to either accept the sum of Rs.8.25 lacs or to forget the entire amount and the plaintiff accepted the aforesaid amount of Rs.8.25 lacs to minimise the loss. It is also alleged that the plaintiff was made to sign two blank pages at the time of receiving the aforesaid amount of Rs.8.25 lacs on the pretext that a receipt and possession letter were to be drawn on the same. The plaintiff alleged that the defendant is liable to pay the sum of Rs.1.75 lacs which was illegally deducted from security amount along with the sum of Rs.15573/­ towards the interest on part security amount of Rs.5 lacs in terms of rent agreement. The plaintiff has also claimed the interest on the abovesaid outstanding amount @ 18% per annum. The plaintiff also alleged to have issued a legal notice dated 23.04.2011 to the defendant which was refused by the defendant. Hence the present suit for the recovery of aforesaid amount has been filed.

Praveen Kumar Vs. Dilip Jain CS­487/11 6

3. The defendant was summoned vide order dated 15.10.2011 and he appeared and written statement was filed on behalf of the defendant in which the defendant denied the averments made in the plaint and he alleged that the suit filed by the plaintiff is without cause of action. It is alleged that the suit is based on terms and conditions of registered rent agreement dated 15.07.2010 and the terms incorporated in the said documents cannot be altered and changed as alleged by the plaintiff. The defendant also relied upon the terms mentioned in the aforesaid rent agreement and he alleged that there was a lock­in period of 11 months and that the defendant is entitled to the rent for the entire period of 11 months even if the premises had been vacated by the plaintiff before the expiry of the term of lease deed.

4. From the pleadings following issues were settled by Ld predecessor of this court vide order dated 21.10.13:­ Praveen Kumar Vs. Dilip Jain CS­487/11 7

1. Whether the plaintiff is entitled to the decree for the sum of Rs. 2,14,873/­, if yes at what rate of interest? OPP.

2. Whether the suit of the plaintiff is without any cause of action? OPD.

3. RELIEF.

5. The plaintiff has examined himself as PW1 and he was cross examined by ld. counsel for the defendant. The defendant also examined himself as DW1 who was cross examined by ld. counsel for the plaintiff

6. The issue wise findings are as under:­ ISSUE NO. 1 Whether the plaintiff is entitled to the decree for the sum of Rs. 2,14,873/­, if yes, at what rate of interest? OPP.

7. In the instant case, the plaintiff has claimed the recovery of Praveen Kumar Vs. Dilip Jain CS­487/11 8 Rs.1,75,000/­ along with interest on the security deposit from the defendant who was his landlord. The plaintiff has alleged that he terminated the tenancy in accordance with clause (12) of the rent agreement dated 15.07.2010 which was executed between the plaintiff and the defendant. The plaintiff has alleged that the said rent agreement was duly registered with the Sub Registrar Rohini and the defendant/landlord has wrongfully deducted the sum of Rs. 1,75,000/­ out of the security amount of Rs.10 lacs and, therefore, he is entitled to the recovery of Rs.1,75,000/­ and the interest as agreed between the parties.

8. The plaintiff has alleged to have given the notice Ex.PW1/2 dated 19.01.2011 seeking refund of the security amount. The plaintiff has not denied the rent agreement dated 15.07.2010 and has in fact relied upon clause 12 of the said rent agreement and alleged that he terminated the tenancy in compliance of clause (12) of the rent Praveen Kumar Vs. Dilip Jain CS­487/11 9 deed.

9. Per contra the defendant/landlord has alleged that as per rent deed dated 15.07.2010 the plaintiff/tenant did not have the authority to terminate lease before the expiry of the term of the lease. It is alleged that the said lease was entered into for a fixed period of 11 months and as per agreement between the parties only the landlord had the authority to terminate the lease and there was no such covenant in the lease deed to authorise the plaintiff/tenant to terminate the lease before expiry of the period of the lease.

10. The relevant question for consideration before this court is that as to what is the sanctity of rent agreement between the parties and as to whether the tenant could have terminated the tenancy before the expiry of term of the lease. The plaintiff/tenant has relied upon clause (12) of the rent agreement according to which it is mentioned that "due to certain circumstances beyond control if the Praveen Kumar Vs. Dilip Jain CS­487/11 10 property is sold out, the tenant will have to vacate the property only after having received one month's notice in advance from the landlord."

11. Perusal of aforesaid clause 12 of the rent agreement dated 15.07.2010 clearly reveals that only the landlord had the option to get the tenanted premises vacated after serving one month's notice upon the tenant. As per clause (12) of the rent agreement, the plaintiff/tenant was obliged to vacate the premises after receiving one month's notice from the defendant/landlord in case of sale of premises.

12. The plaintiff has entered into an agreement which was duly registered and none of the term mentioned therein gives any right to the plaintiff/tenant to surrender or terminate the lease before expiry of the term of the lease.

13. Section 2 (h) Indian Contract Act 1872 provides that an Praveen Kumar Vs. Dilip Jain CS­487/11 11 agreement enforcible by law is a contract. In the instant case, both the parties have voluntarily entered into an agreement and tenanted premises was let out in terms thereof and both the parties are bound by the terms mentioned therein. The plaintiff has not challenged the veracity of the rent agreement dated 15.07.2010 and he has only relied upon clause (12) of the said agreement to entitle him to vacate the tenanted premises before expiry of the term of the lease. As discussed above clause (12) of the rent agreement nowhere gives any right to the plaintiff/tenant to serve one month's notice to vacate the premises, therefore, the plaintiff/tenant cannot be said to have terminated the tenancy by giving notice to the defendant/landlord in terms of clause (12) of the rent agreement. Therefore, any notice sent by the plaintiff cannot be said to be a valid notice for termination of tenancy before the expiry of period of lease.

Praveen Kumar Vs. Dilip Jain CS­487/11 12

14. Section 37 of the Indian Contract Act 1872 provides for obligation of parties to the contract. It is states that the parties to a contract must either perform or offer to perform, their respective promises, unless such performance is dispensed with or execused under the provisions of this Act, or of any other law. Therefore, parties to a valid contract are obliged to perform the terms of the contract entered into between them.

15. Ld. counsel for the plaintiff has argued that the plaintiff/tenant has terminated the tenancy in terms of the Section 111 (h) of the Transfer of Property Act 1882, therefore, the plaintiff is not liable to pay the rent for the remaining period of 5 months during which he did not remain in occupation of the tenanted premises.

16. Section 111 (h) of Transfer Property Act 1882 provides that a lease of immovable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quit the Praveen Kumar Vs. Dilip Jain CS­487/11 13 property leased duly given by one party to the other.

17. The notice to determine the lease is given under Section 106 of Transfer of Property Act 1882 for determination of a month to month lease. Perusal of Section 106 of TPA 1882 reveals that in the absence of a contract the lease of immovable property is terminable by notice given on the part of either lessor or lessee. Section 106 of the TPA starts with the words in the absence of a contract which shows that if there is a contract between the parties, the lease cannot be terminated by the notice as prescribed under Section 106 of the Act during the term of the lease.

18. Therefore, the combined reading of Section 111 (h) and 106 of Transfer of Property Act 1882 reveals that only in the absence of a contract a lease can be determined by a notice and if there is a contract between the parties regarding the term of a lease, any party to such contract cannot terminate the lease at his own Will in Praveen Kumar Vs. Dilip Jain CS­487/11 14 contradiction to the terms of the contract.

19. In Laxmidas Bapudas Vs. Rudrauva AIR 2001 SC 37­38 A Hon'ble Supreme Court held that a period of fixed term lease is ensured and remains protected.

20. In Modern Hotel Vs. Radhakrishanaiah AIR 1988 SC 1510 the court observed that when the lease was fixed for 30 years and there was no forfeiture clause in the lease deed leading to termination by forfeiture, contractual tenancy would subsist and an eviction from such tenancy during the subsistence of the lease is not permissible.

21. In Govindaswami Vs. Palaniappa AIR 1925 MAD 833 the court observed that Section 111 of Transfer of Property Act contains no clause providing for termination of the lease at the option of the lessee on account of breach of term of contract, nor is there anything in Section 108 TPA to enable the lessee to avoid the lease.

Praveen Kumar Vs. Dilip Jain CS­487/11 15 The court also observed that the lessee is not entitled to put an end to the lease for breach of the condition of the lease, but he can only claim damages for such breach, if any.

22. In Shanti Vs. Amal AIR 1981 SC 1550 the court observed that when the lease is for fixed term, the parties cannot alter the intrinsic character thereof or bring about a change of the rights and obligations flowing therefrom.

23. In view of the above said cited judgments it is clear that the parties to written rent agreement are bound by its terms and none of them can terminate the lease in contradiction of the terms provided therein. In the instant case, the rent agreement dated 15.07.2010 was entered into between the plaintiff and the defendant for a period of 11 months and only the landlord/defendant had the authority to terminate the lease and no such authority or power was granted to the tenant/plaintiff to determine the lease prior to the term of the Praveen Kumar Vs. Dilip Jain CS­487/11 16 lease. Therefore, it is stands proved that the plaintiff/tenant could not have terminated the lease prior to the term mentioned in the rent agreement dated 15.07.2010. Even perusal of notice dated 19.01.2011 Ex.PW1/2 relied upon by the plaintiff which was allegedly written to the defendant/landlord reveals that the plaintiff has mentioned therein that he had vacated the tenanted premises and he also stated therein that he had informed orally to the defendant/landlord in the second week of December, 2010 that he th would vacate the premises by 14 January, 2011 to which the defendants/landlord had agreed. The plaintiff also mentioned in the said letter that even after 7 days from the date of surrendering the possession the defendant/landlord had not made the payment of the security deposit amount. Perusal of the aforesaid letter relied upon by the plaintiff reveals that he has unilaterally vacated the tenanted the premises and he surrendered the possession thereof and he Praveen Kumar Vs. Dilip Jain CS­487/11 17 also relied upon an oral consent of the defendant, however, no proof of any such oral consent between the parties has been proved on record. In view of the above said facts and circumstances, the parties are bound by the registered rent agreement dated 15.07.2011 and the plaintiff/tenant was obliged to retain the possession tenanted premises for the period of 11 months w.e.f. 15.07.2010 and he was also obliged to make the payment of monthly rent of Rs.35,000/­ to the defendant/landlord for the period of the lease. The defendant has also stated in the written statement that due to the written contract between the parties, he kept the premises vacant till the expiry of term of the lease and, therefore, he is entitled to the entire rent for the period of lease. The plaintiff/tenant cannot be allowed to alter the terms of the written agreement between the parties and as discussed above he could not have vacated the tenanted premises in terms of clause 12 of the Praveen Kumar Vs. Dilip Jain CS­487/11 18 rent agreement.

24. Therefore, the plaintiff/tenant is liable to pay the rent for the entire period of the lease as agreed between the parties vide agreement dated 15.07.2011 and consequently the plaintiff is not entitled to claim the refund of Rs.1,75,000/­ which was deducted from the security amount by the defendant/landlord.

25. The plaintiff has also claimed the interest on the security deposit amount of Rs.5 lacs @ 5.5% per annum along with pendetelite and future interest on the amount claimed. As per clause 16 of the rent agreement dated 15.07.2010 the plaintiff/tenant has paid the sum of Rs.10 lacs as security amount to the defendant/landlord and out of the aforesaid amount the sum of Rs.5 lacs was interest free security and interest @ 5.75% per annum or the bank FD interest rate whichever the higher was payable by the defendant on the balance amount of Rs.5 lacs. The plaintiff has not Praveen Kumar Vs. Dilip Jain CS­487/11 19 led any evidence regarding the bank FD interest rate and, therefore, he is only entitled to the interest @ 5.75% per annum on the security deposit of Rs.5 lacs as agreed between the parties. It is pertinent to mention that Sh. JK Jain counsel for the defendant gave the statement before this court on 28.08.2014 that the defendant is ready to make the payment of interest amount on the security deposit of Rs.5 lacs. Therefore, ld. counsel for the defendant has admitted the liability of the defendant to the extent of payment of interest on security amount of Rs.5 lacs till January, 2011 @ 5.5 % per annum. As per pleadings the security amount was paid by the plaintiff to the defendant on 15.07.2010 and he received back the security amount on 31.01.2011. Hence the plaintiff is entitled to recovery of interest for 6 months and 15 days @ 5.5 % per annum on the security deposit amount of Rs.5 lacs which comes to Rs. 14,895/­. Therefore, the plaintiff is entitled to the recovery of Rs.

Praveen Kumar Vs. Dilip Jain CS­487/11 20 14,895/­ from the defendant. As the interest amount of Rs.14,895/­ has not been paid till date, the plaintiff is also entitled to the interest on the aforesaid amount @5.5% per annum w.e..f. 01.02.2011 till the realization of the amount. This issue is accordingly decided in abovesaid terms in favour of plaintiff and against the defendant. ISSUE NO. 2 Whether the suit of the plaintiff is without any cause of action? OPD.

26. Cause of action is a set of facts sufficient to justify a right to sue and it gives a legal right to a party to initiate action for the enforcement of a right against another party. The plaintiff has alleged certain facts and he has sought the recovery of the suit amount vide present plaint and he has also relied upon the rent agreement dated 15.07.2010 between the parties which has not been denied by the defendant. Perusal of the plaint filed by the Praveen Kumar Vs. Dilip Jain CS­487/11 21 plaintiff does not reveal that it is bereft of any cause of action. The plaintiff has also claimed the interest amount on the security deposit and has raised certain contentions which he is required to prove to substantiate his claim. There is no legal bar to the suit filed by the plaintiff and therefore, it cannot be rejected for want of cause of action. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.

RELIEF: The plaintiff is entitled to money decree of Rs.14,895/­ in his favour and against the defendant along with interest on decreetal amount @ 5.5% per annum w.e.f. 01.02.2011 till the date of realization of amount. No orders as to cost. Decree sheet be drawn accordingly. File be consigned to record room. 

Announced in the open                                (Manish Khurana)
Court on 24.09.2014                    JSCC­cum­ASCJ­cum­Gudn. Judge
                                                  North, Rohini Courts, Delh
              Praveen Kumar Vs. Dilip Jain
                             CS­487/11
        22