Delhi District Court
R/O W17 vs Indian Farmers & Fertilizers ... on 27 March, 2015
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IN THE COURT OF SH. ROHIT GULIA, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.54/03
Unique Case ID No 02401C0110272001
Saurabh Prakash
S/o Late Dr. Anand Prakash
R/o W17, Greater Kailash,
PartII, New Delhi 110048
..........................PLAINTIFF
VERSUS
1. Indian Farmers & Fertilizers Cooperative Ltd.
Through its Chairman,
Flat No.402, 4th Floor,
Goverdhan Building, Plot No.5354,
Nehru Place, New Delhi.
2. Sh. Samir Prakash
S/o Late Dr. Anand Prakash
R/o W17, Greater Kailash PartII,
New Delhi110048.
.....................DEFENDANTS
Suit filed on - 12/11/2001
Judgment Reserved on - 10/03/2015
Date of decision - 27/03/2015
Suit No.54/03 Page1/13
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AMENDED SUIT FOR DAMAGES
JUDGMENT: By this judgment I shall dispose off an amended suit for damages filed by the plaintiff against the defendants.
1. The brief facts of the case as per the plaint are that the plaintiff is the owner of a half share in property bearing flat No.402, 4 th Floor, Goverdhan Building, Plot No.5354, Nehru Place, New Delhi measuring about 663 square feet carpet are (hereinafter referred to as the suit property or the said property). Defendant no.2 is the owner of the other half share in the said property.
It is further submitted that the suit property had been rented out to defendant no.1 in or about January 1977. Defendant no.1 has for the last several years been paying the rent in respect of the said premises to the plaintiff and defendant no.2, vide a single cheque in the name of of defendant no.2 who in turn is required to pay the plaintiff his half share therein.
It is further submitted that w.e.f April 1995 the rent in respect of the suit premises stood at Rs.3,843.40Paise per month.
It is further submitted that vide notice dated March 12, 1995, the plaintiff, on behalf of himself and defendant no.2 gave defendant no.1 notice of termination of tenancy w.e.f. 30th April, 1995 and called upon defendant no.1 to hand over the vacant and peaceful possession thereof w.e.f. Ist May 1995 failing which defendant no.1 was informed that the plaintiff would be compelled to commence proceedings against them as per law. Defendant no.1 however did not comply with the said notice.
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It is further submitted that defendant no.1 is liable to be evicted from the suit property forthwith and to pay damages/mesne profits to the plaintiff for the loss suffered by him for the period that it has continued to illegally occupy the said premises. It is also liable to pay him for damages/mesne profits pendente lite and till date of handing over of possession. It is further submitted that however, for the period up to and including August 2001, the plaintiff is not seeking any relief from this Hon'ble Court and shall pursue his remedy in Suit No.346 of 1998. That vide the present suit, the plaintiff is seeking the eviction of Defendant no.1 and damages/mesne profits w.e.f. September 2001.
It is further submitted that vide a judgment and decree dated 31.01.2005 passed by the Hon'ble High Court of Delhi in Suit no.1628/97 titled "Saurabh Prakash Vs. Samir Prakash" the plaintiff has become the exclusive owner of the suit property.
It is further submitted that w.e.f 01.02.2005, the plaintiff is entitled to the full amount due towards damages/mesne profits etc. It is further submitted that w.e.f. 01.11.2001, the plaintiff is entitled to damages/mesne profits calculated @ Rs.20/ per sq. ft. per month in respect of the said premises since the suit premises could easily fetch such rent in the market. That the plaintiff is also informed that defendant no.1 has been tendering rent at such rate to several other persons in respect of other similar premises in the same building.
Accordingly, having no alternative the plaintiff has filed the present suit for damages against the defendants.
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2. The WS has been filed by the defendant no.1 wherein certain preliminary objections were taken like that as the plaintiff had filed an earlier suit for possession and damages bearing Suit No.346/98, hence, the present suit is liable to be stayed as per the provisions of Section10 CPC. That the plaintiff has no locus standi to file the present suit as he is neither the landlord of the suit property nor has at any point of time dealt with defendant no.1. That the Hon'ble Court does not have the jurisdiction to try and entertain the present suit as the jurisdiction is barred under the provisions of DRC Act. That the suit is bad for misjoinder of parties. As the notice U/S 106 of Transfer of Property Act has not been served, hence, the plaint is liable to be rejected U/O 7 R.11 CPC. That the plaintiff has wrongly valued the suit for the purpose of court fees and jurisdiction as such the plaint is liable to be returned.
In reply on merits the defendant no.1 has denied all the averments made in the plaint as false and frivolous and have prayed that the suit be dismissed with heavy costs.
3. Replication has been filed on behalf of plaintiff to the WS of defendant no.1 wherein the averments made in the WS were denied and those made in the plaint were reiterated and reaffirmed.
4. From the pleadings of the parties the following issues were framed on 27/11/2013 :
1. Whether there is no cause of the action in favour of the plaintiff to file the present suit? OPD Suit No.54/03 Page4/13 5
2. Whether the plaintiff is entitled for the money decree alongwith interest as prayed for, if yes, then at what rate and for which period? OPP
3. Whether the plaintiff is entitled for the decree of mesne profits/damages along with interest, if yes, then at what rate and for which period? OPP
4. Relief.
Moreover, from the pleadings of parties following issues were also framed on 12/07/2004 :
1. Whether the suit is liable to be stayed U/s 10 CPC in view of preliminary objection no.1, 2 and 3?
2. Whether the suit is not maintainable in view of Sec. 50 of the DRC Act? OPD
3. Whether the suit is bad for misjoinder of the parties? OPD
4. Whether the sit liable to be dismissed in view of the absence of notice U/s 101 of Multi State Cooperative Societies Act? OPD
5. Whether the tenancy of the plaintiff has been validly terminated by service of notice U/s 106 of Multi State Cooperative Societies Act? OPP
6. Whether the plaintiff is entitled for recovery of damages and if so at what rate and for what period?
7. Whether the plaintiff is entitled for any interest, or damages and if so, at what rate and for what period? OPP Suit No.54/03 Page5/13 6
8. Relief.
5. That in order to prove its case the plaintiff got examined only one witness i.e. himself as PW1. On the other hand the defendant also got examined only one witness i.e. Sh. Rajinder Prasad, Chief Manager (HR) IFFCO as DW1.
6. The arguments have been heard and the record has been carefully perused. Now, I shall give my issuewise findings which are as under : First I will decided issues framed on 27/11/2013 and the issues dated 12/07/2004 will be decided thereafter.
Issue no.3 will be decided first and thereafter the issue no.1 and 2 will be decided.
7. ISSUE NO.3 Whether the plaintiff is entitled for the decree of mesne profits/damages along with interest, if yes, then at what rate and for which period? OPP The onus to prove this issue was upon the plaintiff. The main contention of the plaintiff vide the present suit is that he was the owner of half share in the suit property i.e. Flat bearing No.402, 4 th Floor, Goverdhan Building, Plot No.5354, Nehru Place, New Delhi measuring about 663 sq. ft. carpet area till 01/02/2005, after which he has become the owner of the entire suit property by way of judgment and decree dated 31/01/05 passed by the Delhi High Court in a partition suit bearing no.1628/97.
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Further, perusal of the record shows that a previous suit was also filed by the plaintiff against the same defendants on the basis of a notice dt.02/03/95 but thereafter a fresh notice dt.28/08/01 was also given by the plaintiff to the defendants on the basis of which the present suit has been filed by the plaintiff. Though, the previous suit of the plaintiff was dismissed as the possession was given by the defendant no.1 to the plaintiff during the pendency of that suit.
Further, the plaintiff is claiming mesne profits from 01/11/01 @ Rs. 20/ per sq. ft. till the possession was handed over to the plaintiff by the defendant no.1 in September, 2006.
Further, one of the main contention of the defendant no.1 is that the defendant no.1 is a multi state cooperative societies Act, 2002 and it has been alleged by the defendant no.1 that as the defendant no.1 is a Multi State Co operative Society, the suit is barred as no notice was given to the defendant no.1 under the provisions of Multi State Cooperative Society Act.
But this issue has already been decided by the court of Sh. D.C. Anand, Ld. ADJ, Delhi vide judgment Ext. PW1/D1 wherein it was clearly held that the suit is not barred by Section115 of the Multi State Cooperative Society Act or U/S 110 in the old Act as no notice was required for filing the said suit filed by the plaintiff against the society for possession and mesne profits being the dispute between landlord and tenant and provisions as contained U/S 115 of the Act are not attracted. The present suit is also between the same parties and is also of the same nature i.e. for the possession and mesne profits and hence, the present suit is not barred by Section115 or other provisions of the Multi State Cooperative Society Act.
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Moreover, it is being alleged by the defendant no.1 that the plaintiff is not the owner of the suit property. But it has been accepted by the defendant no.1 that they have given the possession of the suit property in September, 2006 to the plaintiff itself during the pendency of the previous suit. Hence, it is clear that plaintiff is the owner of the suit property.
Moreover as per the plaintiff he was only the owner of the half portion of the suit property till 31/01/2005 and thereafter he became the owner of the entire suit property. Perusal of the record shows that in the previous suit as mentioned above bearing no.50/90 a specific issue was framed that whether the plaintiff is owner of half of the suit property, i.e. issue no.3 and it was decided in favour of the plaintiff and against defendant wherein it was held that plaintiff is the owner of the half portion of the suit property. Hence, it is clear that till 01/02/05 the plaintiff was the owner of half of the portion of the suit property.
But thereafter it has been alleged by the plaintiff that he has become the owner of the entire suit property by way of judgment and decree dated 31/01/05 passed by the Delhi High Court in a partition suit bearing no.1628/97. The certified copy of the said decree has been placed on record by the plaintiff Ext. PW1/7 and it clearly shows that the suit property has fallen in the share of the plaintiff. Therefore, it is clear that after 01/02/05, the plaintiff has become the full owner of the suit property.
Moreover, it is the contention of the defendant no.1 that they have not received the notice Ext. PW1/6 relating to the termination of the tenancy. But the perusal of the previous suit bearing No.50/90 clearly shows that it was alleged on behalf of defendant no.1 that a fresh notice dated 28/08/2001 has been issued by the plaintiff and on the basis of that notice, the suit of the plaintiff, with Suit No.54/03 Page8/13 9 respect to mesne profits was dismissed. Hence, it is clear that the said notice was with in the knowledge and received by the defendant no.1.
Moreover, the plaintiff has also placed on record the said notice Ext. PW1/6 and has been able to prove that it was duly served upon defendant by placing a letter from the department of the post Ext. PW1/9 showing that the said letter was received by the defendant no.1. Therefore, it is clear that the said notice Ext. PW1/6 was duly served upon the defendant no.1 and the tenancy of the defendant was duly terminated vide the said notice U/s 106 of the Transfer of Property Act.
Vide the said notice the rate of the rent was increased by 10% per month and the defendant was also had directed to vacate the suit property but the defendant had not vacated the suit property despite the above said notice.
Moreover, after the service of the said notice Ext. PW1/6 even the benefit of DRC Act was not available to the defendant no.1 as after the increase of 10%, the rent was above Rs.3500/ and accordingly the suit is not barred by Section50 of the DRC Act. Therefore, the plaintiff is also entitled for the mesne profits till the handing over of the suit property by the defendant no.1 to the plaintiff.
To prove the quantum of the mesne profits, the plaintiff has also placed on record the lease deeds Ext. PW1/1 to PW1/5 showing the rate of rent prevailing in the vicinity of the suit property and the defendant has also placed on record lease deeds Ext. DW1/12 and DW1/13 but they are not of the properties in the vicinity of the suit property and one is of Gurgaon and another one is of Ahemdabad and after going through the said lease deeds filed by the plaintiff it is Suit No.54/03 Page9/13 10 clear that the plaintiff can seek the mesne profits of the suit property @ Rs.20/ per sq. ft. which comes to Rs.13,260/ per month.
Hence, plaintiff is entitled for the half of the above mentioned mesne profits i.e. Rs.13,260/ per month from 01/11/2001 till 31/01/05 and for full amount of mesne profits from 01/02/2005 till 31/08/2006 alongwith interest @ 10% per annum from the date the mesne profits becomes due till the realization of the amount.
The plaintiff is also directed to calculate the total amount of mesne profits as decided above and to pay the court fees on the same within 30 days.
Further, it is being clarified that the amount of rent paid by the defendant no.1 to the plaintiff in the previous suit will be deducted from the mesne profits.
This issue is accordingly decided in favour of the plaintiff and against the defendant.
8. ISSUE NO.1 Whether there is no cause of the action in favour of the plaintiff to file the present suit? OPD The onus to prove this issue was upon the defendant. As discussed above while deciding issue no.3 that the plaintiff has been able to prove that he is the owner of the suit property and hence, it cannot be said that the plaintiff has no cause of action to file the present suit.
This issue is accordingly decided in favour of the plaintiff and against the defendant.
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9. ISSUE NO.2 Whether the plaintiff is entitled for the money decree alongwith interest as prayed for, if yes, then at what rate and for which period? OPP The onus to prove this issue was upon the plaintiff. It has been accepted by the plaintiff during the crossexamination that the previous rent @ Rs.3,494/ has been paid by the defendant no.1 to the plaintiff till the eviction of the suit property by the plaintiff since 08/09/06, hence, it is clear that the rent @ Rs.3,494/ for the month of September and October, 2001 has been paid by the defendant no.1 to the plaintiff. Moreover, the prayer on the basis of which the said issue has been framed was deleted vide order dated 22/11/12. Hence, this issue has become infructuous.
Now I will decided issues dated12/07/2004.
10. ISSUE NO .1 Whether the suit is liable to be stayed U/s 10 CPC in view of preliminary objection no.1, 2 and 3?
Perusal of the record shows that the said issue was decided on 06/10/2004.
Issue no.2, 4, 5, 6 and 7 will be decided together.
11. Issue no.2 Whether the suit is not maintainable in view of Sec. 50 of the DRC Act? OPD Issue no.4 Whether the sit liable to be dismissed in view of the absence of notice U/s 101 of Multi State Cooperative Societies Act? OPD Suit No.54/03 Page11/13 12 Issue no.5 Whether the tenancy of the plaintiff has been validly terminated by service of notice U/s 106 of Multi State Cooperative Societies Act? OPP The issue have been wrongly framed and it is accordingly corrected and will be read as "Whether the tenancy of the defendant no.1 has been validly terminated by service of notice U/s 106 of Transfer of Property Act."
Issue no.6 Whether the plaintiff is entitled for recovery of damages and if so at what rate and for what period?
Issue no.7 Whether the plaintiff is entitled for any interest, or damages and if so, at what rate and for what period? OPP All these issues are covered in the decision given with respect to the issue no.3 framed on 27/11/13 as above mentioned and there is no need to again decide the said issues and accordingly all these issues are decided in favour of the plaintiff and against the defendant.
12. ISSUE NO.3 Whether the suit is bad for misjoinder of the parties? OPD The onus to prove this issue was upon the defendant. No evidence has been brought on record by the defendant to show that the suit is bad for misjoinder of the parties and moreover, there is nothing on record to show that the suit is bad for misjoinder of the parites.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
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13. RELIEF In view of the findings given on all the issues above,
documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has proved its case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is decreed in his favour and against the defendant and following reliefs are awarded to the plaintiff :
1. A money decree for the half of the mesne profits i.e. Rs.13,260/ per month from 01/11/2001 till 31/01/05 and for full amount of mesne profits from 01/02/2005 till 31/08/2006 alongwith interest @ 10% per annum from the date the mesne profits becomes due till the realization of the amount.
2. Costs of the suit.
Further, the plaintiff is directed to calculate the total amount of mesne profits as decided above and to pay the court fees on the same within 30 days. Thereafter, decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities.
(ROHIT GULIA) Civil Judge, Delhi (West)02 Announced in the open court on 27/03/2015.
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