Delhi District Court
Smt. C.P. Gupta vs Allhabad Bank on 5 February, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:07:CENTRAL
ROOM NO.32:TIS HAZARI COURTS :DELHI
Case no: 124/08
ID NO: 02401C0395252008
SMT. C.P. GUPTA
W/o Late Sh. B.L.Gupta
R/o 308, Dr. Mukherjee Nagar
Delhi9. .....Plaintiff
Vs.
ALLHABAD BANK
Having its Head Office at
Parliament Street
New Delhi
and having its one branch at
Krishna Nagar, Murari Bhawan, Kanti Nagar
Delhi51
Through its Branch Manager. ......Defendant
DATE OF INSTITUTION : 14.3.2008
DATE OF FINAL HEARING : 03.2.2011
DATE OF JUDGMENT : 05.2.2011
SUIT FOR RECOVERY OF DAMAGES TO THE TUNE OF Rs.19 LACS
JUDGMENT
1. This suit has been filed by plaintiff against the defendant bank for recovery of Rs.19 lacs apart from interest @22% per annum as damages.
@contd.
2
2. Case of the plaintiff as per the plaint is that property no.D5/1, Krishna Nagar, Delhi was owned by plaintiff's late husband Sh. B.L.Gupta who expired on 31.12.2001. Upon his death, this property devolved upon his legal heir including plaintiff . During his st nd life time he had let the 1 and 2 floor of this property to the defendant bank vide registered lease deed dated 30.8.1991. The initial lease was cancelled and superseded by another lease dated 1.11.1991. Defendant bank was supposed to vacate the property on expiry of the terms of the deed. There was a clause of extension of the lease up to 2003 with increase in rent by 15%. Some disputes arose between the parties qua maintenance and up keep of the lift apart from installation of generators and other fixtures provided by the plaintiff. Landlord was constrained to file a suit for recovery of arrears of rent which was decreed in favour of landlord.
3. During the course of trial of that suit , vide 151 CPC application, @contd.
3defendant bank expressed its desire to vacate the premises prior to March'2005 and shift their branch to a ground floor at Kanti Nagar, Delhi.
4. Plaintiff issued a legal notice on 27.12.2004 seeking opportunity from the bank to inspect the premises to check the fixture and fitting before handing over of possession in order to assess and quantify the damage to the property. This notice was replied in detail on 7.2.2005 whereby bank denied their intention to vacate the premises and did not mention anything about inspection even though as per terms of the lease they were supposed to return the generator and other fixtures to the landlord.
5. Meanwhile alleged coowner of this property Miss Uma Nigam filed a suit titled Uma Nigam Vs. R.K. Nigam and ors wherein Sh. B.L.Gupta was a party apart from the defendant bank. It is case of the plaintiff that defendant bank deposited the keys of the suit @contd.
4premises before Ld. ADJ's Court on 25.7.05. These keys were released on 6.2.2008 after a settlement was arrived at between owners in that suit. During that period plaintiff was not able to lease the premises as several articles belonging to the bank were lying therein.
6. Owing to this act of the bank , plaintiff suffered financial loss. Due to heavy rain on 3.3.07 there was a seepage on the shop of the ground floor which necessitated appointment of Local Commission from the court of Ld. ADJ. Plaintiff found the condition of the suit property in a very bad shape in order to take out the strong room and locker from the property defendant had cut down rallying of the stair case which were found scattered in their premises. The electricity generator and lift were not operational. Although necessary repairs qua the seepage was carried out but proper assessment of damage could not be got conducted.
@contd.
5
7. Plaintiff has assessed in para 9 of her plaint, the projected cost of repair and renovation of the property apart from rental loss for the period August'05 to October'07 @50,000/ per month to be Rs.90 lacs. As such plaintiff filed this suit seeking recovery of Rs.19 lacs with interest @ 22% per annum through following heads:
a Charges for repairs / renovation of damaged floor, staircase walls Rs.1,00,000/ etc. b Charges for repairs / renovation of damaged strong room and its Rs.50,000/ walls etc. c Charges for repairs / renovation of entire sewerage system water Rs.50,000/ supply etc. d Charges for repairs / renovation of leakage / seepage of water Rs.50,000/ and replacement of MCD water pipes which have broken due to water logging e Charges for repairs of lift Rs.25,000/ f 2 Generators not operational Rs.1,25,000/ g Compensation for not handing over the premises as per lease Rs.2,00,000/ deed h Rental loss due to non delivery of premises Rs.50,000 per month RS.13,00,000 w.e.f. August 2005 to October'2007 / Total Rs.19,00,000/
8. Upon service of summons of suit it was contested by the defendant @contd.
6bank . Dismissal of the plaint was prayed on a plea that it is bad for non joinder of necessary parties in so far as the cause of action to file the suit does not survive upon the plaintiff alone. It is pleaded that plaintiff herself visited the suit property on 3.3.2007 after it was vacated on 18.5.05 and its key were surrendered in the court of Ld. ADJ on 25.7.05. On merits , defendant bank did not deny that that they had taken the suit property on lease initially as per lease deed dated 30.8.91 and subsequently as per lease deed dated 1.11.1991. It is conceded that late Sh. B.L.Gupta had his office on rd the 3 floor of the property. In the unamended decree passed by Ld. Civil Judge, plaintiff has been described as second wife of late Sh. B.L.Gupta.
9. As per the bank no one came forward to take possession of the suit premises after the death of Sh. B.L.Gupta . No generator was provided by the Landlord as claimed while the lift functioning at the @contd.
7premises was the common one and was not for exclusive use by the bank. The lift was mostly inoperative and for this reason only bank decided to leave the suit premises. It is denied that landlord had provided fixtures in the suit premises. Bank expressed its willingness to bear the cost of repairing the claimed damage of staircase. However, it denied its liability to pay for the entire cost of renovation of the suit premises. Bank denied its liability to pay Rs.19 lacs with interest as claimed in so far as they have vacated the suit premises and deposited the keys in the court of LD. ADJ. With these pleas dismissal of this suit was prayed.
10.No replication was filed to the written statement.
11.Upon completion of pleadings following issues were identified by Ld. Predecessor on 13.8.08.
ISSUES:
12.
1.Whether the plaintiff is entitled to the amount claimed @contd.
8in the suit? (OPP)
2.Whether plaintiff is entitled to the interest is so at what rate and for which period? (OPP)
3.Whether suit is bad for nonjoinder of the parties if so its effect? (OPD)
4. Relief
13.To prove her case plaintiff examined herself as PW1 apart from examining her daughter Smt,. Kanika Aggarwal as PW2.
14.On the contrary defendant bank examined its Chief Manager Sh. P.S.Kohli as DW1 and Sh. V.K.Kapoor , Sr. Manager as DW2.
15.I have heard Rajive Kapoor for plaintiff and LD. Counsel Sh. Shiv Shankar & Sh. Deepak Gupta advocate for defendant . I have also carefully perused the entire judicial record.
16.In her deposition as PW1, vide affidavit Ex.P1, plaintiff has deposed on the lines of her plaint and she has proved certified @contd.
9copy of lease deed dated 30.8.1991 at Ex.PW1/1, certified copy of lease deed dated 1.11.1991 as Ex.PW1/2, copy of notice dated 27.12.2004, postal receipt and UPC receipt as Ex.PW1/5, 6 & 7, copy of reply dated 7.2.2005 as Ex.PW1/8, copy of notice dated 15.9.05 as Ex.PW1/9, postal receipts & UPC as Ex.PW1/10 , 11 & 12, copy of letter dated 23.2.2008 as Ex.PW1/16 original photographs as Ex.PW1/17 (colly).
17.In her cross examination , she stated that apart from her , her four daughters are also coowner of the property. She denied that Sh. Rajesh Gupta @Raju, Smt. Savitri Gupta @Sabu are also owner in the property or that she was wife of late Sh. B.L.Gupta. She could not explain the reason as to why name of Smt. Sabu Gupta was incorporated in the lease deed dated 30.8.91. She accepted that the she received the keys of the premises from the court of LD. ADJ. Although witness accepted that she has filed the suit in @contd.
10individual capacity. She claimed to be having a power of attorney but the same has not been filed on record. She accepted that she visited the suit premises alongwith Local Commissioner appointed by the Court initially in September'2006 and thereafter in March'2007.
18.She got the keys from the court after a settlement arrived at in a suit pending in the Court of Ld. ADJ. She got the suit premises cleaned on 15.9.06 during the visit of Ld. LC in his presence. She accepts that the suit amount of Rs.19 lacs has been arrived her as per her own estimation . She accepted that bank has surrendered the key of suit premises in the court of Ld. ADJ in July'2005 itself. She also accepted that vide its reply dated 7.2.2005, bank had invited the landlord to inspect the premises and as per her the date of inspection was subsequently postponed / canceled.
19.PW2 Smt. Kanika Agarwal daughter of plaintiff has supported @contd.
11the case of the plaintiff. She mentioned amount some damage about Rs.3.10 lacs but admittedly the plaint is only silent to it. As per her Sh. B.L.Gupta was survived by six legal heirs, including plaintiff , 4 daughters and one Mr. Rajesh Gupta.
20.In his defence, defendant bank examined DW1 Sh.J.S.Kohli, Chief Manager of defendant bank deposed on the lines of WS. In his cross examination he accepted that he was not present when the lease in question was executed. He maintained the lift was not used by the bank. He accepted that the ground floor of the property had several shops. He could not elaborate about the claimed damage to the property on account of removal of lockers and safes. He could not identify the photographs Ex.DW1/P3 to P18. However, he identified photograph DW1/1 to DW1/3.
21.DW2 Sh. V.K.Kapoor, Senior Manager deposed on the lines of DW2/A. In his cross examination he denied that plaintiff had @contd.
12provided generator set to the bank . He identified three documents DW1/P1 to P3.
22.Now I shall dispose of individual issues identified in the matter. ISSUE NO 3
23.
3.Whether suit is bad for nonjoinder of the parties if so its effect? (OPD)
24.As per Ld. Counsel for plaintiff Late Sh. B.L.Gupta is survived by not only plaintiff but her four daughters as well. As per PW2, Sh. B.L.Gupta is also survived by one Sh. Rajesh Gupta as well. Defendant bank was admittedly inducted into the tenancy by Late Sh. B.L.Gupta. Upon his death the landlordship and ownership of the suit property devolves upon all his six legal heirs and not upon the plaintiff alone. Being coheirs and coowners, the cause of action to file this suit devolves upon all the six legal heirs equally.
th Plaintiff is only a coowner having 1/6 share therein. Admittedly @contd.
13plaintiff does not hold any power of attorney on behalf of other co owners to file this suit. Also there is nothing on record to show that the suit is filed in a representative capacity. Under Order 1 Rule 8 CPC no such permission was sought from the Court by the plaintiff to file the suit on behalf of the remaining LRs of Sh. B.L.Gupta. At any point of time no notice was given to the remaining LRs Under Order 1 Rule 8 (2) CPC. Although in the fitness of thing , all LRs should have joined hands in filing the suit against the bank, but in the absence of their becoming co plaintiff s in terms of Order 1 Rule 8 CPC , there non joinder can not take away the right of plaintiff, as coowner of the property, to sue the bank. Hence in my considered view non joining of remaining LRs does not vitiate the trial in a way justifying its dismissal .
25.However, it is observed that in case plaintiff succeeds in this suit, the remaining coowners would be entitled to claim their rightful @contd.
14share in the decreetal amount, if any, under this suit , as per law. This issue is answered accordingly.
ISSUE NO. 1
26.
1.Whether the plaintiff is entitled to the amount claimed in the suit? (OPP)
27.While evaluating the evidence available on the record brought by the plaintiff , it is found that she is claiming recovery of Rs.19 lacs under 8 different heads, as detailed supra. Out of them head no.1 to 7 pertains to charges qua repair of structure, two generators apart from compensation. I have my reservations on the point of limitation qua these seven heads. Article 55 of Schedule attached to Limitation Act provides for 3 years limitation in case of a suit seeking compensation for breach of contract.
runs as under:
28.Article 55 of Schedule II of Limitation Act @contd.
1555 For compensation for the Thre When the contract is broken or breach of any contract, e (where there are successive express or implied not herein year breaches) when the breach in specially provided for. respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.
29.The contract of lease between the defendant bank and late Sh. B.L.Gupta Ex.PW1/1 dated 1.11.1991 was for the period of seven years w.e.f. 1.8.1991 and as such it expires on 31.7.98. It is not the case of the plaintiff that this lease was renewed for any further period by any separate registered lease deed as per Section 107 of Transfer of Property Act and get registered U/s 17 of Registration Act.
30.As such it is evident that after this lease stood expired, the tenancy of the defendant was reduced to a month to month one as a tenant by holding over . The duty of a lessee / tenant to safeguard the structure and other fixtures of the tenanted premises is not @contd.
16governed under a lease contract but it has to be invoked as per Section 108 (m) of Transfer of Property Act'1882 which runs as under.
108 (m) of TPA'1882 : the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the conditions thereof and give or leave notice of any defect in such condition; and , when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;
31.In case breach of a term contained in a contract is complained of , then the relevant Article is 55 of the Schedule , as mentioned supra. However, if the tenure of the lease contract has expired by efflux of time and the tenancy continues by holding over U/s 116 of TPA, then by virtue of Section 106 TPA , it becomes a month of @contd.
17month tenancy. If the landlord complains of any damage cause to the property by the tenant, then the relevant article attracted is Article no.72 of the Schedule II of the Limitation Act which runs as under :
72 For compensation for doing or for one When the omitting to do an act alleged to be in year act or pursuance of any enactment in force omission for the time being in the territories to takes place which this Act extends
32.The limitation in such a scenario is one year . As such in the facts of the case in hand as well the Limitation to sue the tenant bank for breach of section 108 (m) TPA shall be one year and this one year shall be reckoned with from the date of the Act i.e. the alleged causing of damage to the property. The plaint is totally silent on as to when the damage was caused. As per documentary and oral evidence available on record, plaintiff came to know of the said @contd.
18damage initially in September'2006 when she visited the suit property with the Local Commissioner apart from her second visit on 3.3.2007.
33.Even if this one year limitation period is calculated from these two dates , the suit in hand filed on 14.3.2008, is time barred qua the heads no.1 to 7. Plaintiff was aware of the alleged said damage to the property even much prior with these two dates, in so far as she conceded to have requested the bank on as early as 27.12.2004 when she wrote a legal notice seeking inspection of the premises to assess the damage. As such she was throughout aware of the claimed damage to the property.
34.Further more, it is conceded by Ld. Counsel for plaintiff that there is neither documentary nor any oral proof to show as to how the amount mentioned under various heads was calculated or arrived at. No report of any loss assessor or valuer has been placed or @contd.
19proved on record in this regard. Also there is nothing on record to show that plaintiff actually incurred any expenditure in the claimed repair. In the absence of any iota of evidence, apart from the claim being time barred, plaintiff is not entitled to any recovery under these 7 heads.
35.However, as far as claim under Head 8 is concerned i.e. claim of Rs.13 lacs qua rental loss from August'05 to October'07 @50,000/ PM, the same is covered under Article 52 of the Limitation Act and as such is within limitation. According to plaintiff defendant bank was bound in law to deliver the keys of the premises on to her instead of depositing them in the Court. It is argued that even though the keys were deposited by the bank, the Court of Ld. ADJ on 25.7.05 in a connected matter , according to the plaintiff this does not tantamount to surrender of the tenancy and bank continues to be her tenant up to February'2008 when the keys @contd.
20were released to her by the Court. I am not in conformity with this plea of the plaintiff for variety of reasons.
36.Firstly for the reason that as far as termination is concerned, defendant bank initially moved an application before Ld. Civil Judge on 1.9.2004 Ex.PW1/4. Notice of this application issued to the plaintiff. In that application in para 6 and 7 the bank has clearly expressed its intention to shift after vacating the premises. Since a litigation was going on between the legal heirs of late Sh. B.L.Gupta who arguably had two wives apart from other heirs, in para 10 of the application, the bank expressed its difficulty as to, to whom the bank should hand over the keys. However, Ld. Civil Judge did not oblige the Bank by receiving the keys. As such the defendant bank was constrained to place the keys before the Court of Sh.V.K.Gupta Ld. Addl. District Judge on 25.7.05. Having done so , in my considered view the bank can not be faulted upon.
@contd.
21
37.Secondly , as in September'2004 even the plaintiff was not sure of the fact that she would succeed in becoming one of the coheirs / co owners of the suit property in so far as a litigation qua the property was going on with the said second wife of late Sh. B.L.Gupta. Plaintiff became coowner of the property only under a settlement arrived at in February'2008. In this scenario she has no legal right to claim occupation charges / damages from the bank .
38.Also I do not find any strength in the plea of the plaintiff that some articles of the bank were lying in the property and as such the court shall conclude that possession continued with the bank. This plea is farce simply because once the bank has surrendered the possession by delivering the keys , whatever scrap was left behind in the property, was by its nature a left over articles which can not be considered to be belonging to the bank any more.
39.Another argument putforth is that in the situation where LRs of late @contd.
22Sh. B.L.Gupta were embroiled in an Inter se successorship litigation, the bank should have filed an inter pleader suit. I am not in conformity with this plea as well in so far as a litigation was already underway in the court of Ld. ADJ between all the prospective LRs of Sh. B.L.Gupta. The detailed application moved therein Ex.PW1/14 by the Bank has all the requisites , required to be done by a person struck in such a situation. If the LRs of the deceased landlord are litigating amongst themselves, the tenant can not faulted upon for what he rightly did in the facts and circumstances of that case. Once the keys were submitted with the Court of Law, the Bank was out of the picture and now the matter was to be resolved by the parties amongst themselves or by moving appropriate application for the release of the keys before the court.
40.I also find no strength in the plea of LD. Counsel for plaintiff that as per Section 50 of TPA, the bank could have handed over the keys @contd.
23to either of the coowners. It is a matter of record that plaintiff became a coowner only under a settlement mutually arrived at between the litigating LRs. Had the bank delivered the keys to the plaintiff and had under the settlement arrived at after around three years, the property would have gone to the share of other wife of late Sh. B.L.Gupta, the other wife would have sued the bank for wrong delivery of the keys. Similarly, inversely had the bank nd delivered the keys to 2 wife, the plaintiff would have sued the bank for wrong delivery of possession. As concluded supra, the bank can not be faulted upon for taking impartial view or for not taking sides amongst the disputing LRs. As such in my considered view plaintiff is not entitled for recovery of any money whatsoever from the bank under Head No. 8.
41.In view of above discussion, plaintiff is not entitled any recovery whatsoever. Issue is answered accordingly .
@contd.
24ISSUE NO.2
42.
2.Whether plaintiff is entitled to the interest is so at what rate and for which period? (OPP) In view of the decision on above issue, plaintiff is not entitled for any interest .
RELIEF
43. In view of the above facts & circumstances and decision on above issues, I have no hesitation to conclude that plaintiff is not entitled for the recovery of amount from the defendant . Suit of the plaintiff is as such stands dismissed on merits with cost. Decree sheet be prepared accordingly and file be consigned to record room. ANNOUNCED AND DICTATED IN OPEN COURT ON : 5.2.2011 (SURINDER S. RATHI) ADJ07/CENTRAL:DELHI @contd.
25@contd.
26
Case no: 124/08 ID NO: 02401C0395252008 SMT. C.P. GUPTA Vs. ALLHABAD BANK 5.2.2011 Pr: Ld. Proxy Counsels for both the parties Vide a separate judgment of the day , suit of the plaintiff stands dismissed on merits with cost. Decree sheet be prepared accordingly and file be consigned to RR.
(SURINDER S. RATHI) ADJ07/CENTRAL:DELHI 5/2/2011 @contd.
27DECREE SHEET IN THE COURT OF SHRI SURINDER S. RATHI:ADJ:07:CENTRAL ROOM NO.32:TIS HAZARI COURTS :DELHI Case no: 124/08 ID NO: 02401C0395252008 SMT. C.P. GUPTA W/o Late Sh. B.L.Gupta R/o 308, Dr. Mukherjee Nagar Delhi-9. .....Plaintiff Vs. ALLHABAD BANK Having its Head Office at Parliament Street New Delhi and having its one branch at Krishna Nagar, Murari Bhawan, Kanti Nagar Delhi-51 Through its Branch Manager. .....Defendant SUIT FOR RECOVERY OF DAMAGES TO THE TUNE OF Rs.19 LACS Suit presented on 14/03/2008 This suit came for disposal before me in the presence of Rajive Kapoor for plaintiff and LD. Counsel Sh. Shiv Shankar & Sh. Deepak Gupta advocate for defendant. It is ordered that suit of the plaintiff is suit of the plaintiff stands dismissed on merits with cost.
Costs of the suits
Plaintiff Defendant
Stamp for plaint NIL Stamp for power NIL
Stamp for power NIL Stamp for exhibits NIL
Stamp for exhibits NIL Stamp for petition NIL
Pleader's fee NIL Pleader's fee NIL
Subsistence for witness NIL Subsistence for witness NIL
Commissioner's fee NIL Commissioner's fee NIL
Service of process NIL Miscellaneous NIL
Miscellaneous NIL
Total NIL Total NIL
Given under my hand and the seal of this court, Dated 05.02.2011.
(SURINDER S. RATHI) ADJ-07:CENTRAL:DELHI @contd.
28@contd.