Delhi District Court
Ravi Bansal vs A.S. Chugh (Deceased) on 5 January, 2019
IN THE COURT OF DR. HARDEEP KAUR, ADJ02
(SHAHDARA), KKD COURTS/DELHI.
(RCA 199/16)
In the matter of:
Ravi Bansal
S/o. Dr. S.L. Bansal
R/o. H.No. 1449/13,
Gali No.8, Durgapuri Extension,
Delhi110032. ...Appellant
Vs.
1.A.S. Chugh (deceased)
Through LRs:
A. Hanit Mangat
D/o. Late A.S. Chugh
R/o. C392, Defence Colony,
New Delhi.
B. Rano Singh
D/o. Late A.S. Chugh
R/o. 1058D, New Friends Colony,
New Delhi.
C. Neetu Singh
D/o. Late A.S. Chugh
R/o. 15, Aurangzeb Road, New Delhi.
2.Surrender Chugh
W/o. Late A.S. Chugh
3. Rakesh Chugh
S/o. Late A.S. Chugh
Both R/o. 15, Chander Road,
Dehradhun (Uttrakhand) ....Respondents
Date of Institution : 03.09.2016
Date of Judgment : 05.01.2019
Decision : Dismissed.
RCA No. 199/16
Page 1
JUDGMENT
1. This appeal has been filed by the appellant/defendant against the impugned judgment and decree dated 27.07.2016 passed by Ld. Civil Judge, East Karkardooma Courts, Delhi in CS No. 6389/16/07 titled as A.S Chugh vs. Ravi Bansal, whereby Ld. trial court has decreed the suit of the plaintiffs. For the sake of convenience nomenclature of the parties are the same as in the suit.
2. The brief facts of the case are that the plaintiffs filed the suit for recovery of possession & mesne profits against the defendant. Plaintiffs are the owners of property bearing Godown No.2 in the Chugh Warehouse Compound situated at 6th Milestone, GT Road, Near Old Seelampur, Delhi bearing Municipal no. 483/48, GT Road, Shahdara, Delhi measuring a total area of 1,650 sq. feet approximately. They are running their business under the partnership M/s. Chugh Warehouse.
Plaintiffs contended that the defendant was inducted as a tenant in suit property as per lease deed dated 19.08.2000 at a monthly rent of Rs. 4,000/. Thereafter, thus was renewed as per the lease deed dated 30.09.2004 at the same rent for a period of 11 months commencing from 01.09.2004 to 31.07.2005. After expiry of RCA No. 199/16 Page 2 the lease deed, the defendants did not vacate the suit property and thus, a legal notice dated 11.05.2006 was issued upon the defendant. Since the defendants refused to pay the rent, the plaintiffs were constrained to file a civil suit against the defendants which was subsequently withdrawn on the defendant's assurance and payment of arrears of rent vide statement and order dated 16.10.2006. The defendants paid the arrears of rent in cash on 07.10.2006 for the period of 01.08.2004 to 31.10.2006.
The defendants stopped tendering the rent from 01.11.2006 despite repeated demands and requests made by the plaintiff. The plaintiff were thus compelled to issue a legal notice dated 17.08.2007 whereby the defendant was asked to handover peaceful and vacant physical possession to the plaintiffs on or before 31.08.2007. It is the case of the plaintiff that since 31.08.2007 the defendants have been in unauthorized and illegal occupation of the suit property and are therefore, liable to pay damages at the prevailing market rate of Rs.10,000/ per month until realisation.
Defendant filed a written statement denying therein the averments of the plaintiff. The defendant submitted that he is an old tenant of the plaintiff and was a tenant of the plaintiff, in properties Godown No.2 and 3, Chugh Warehouse Compound at a monthly rental of RCA No. 199/16 Page 3 Rs.4,000/ and Rs.5,500/ respectively. It is the submission of the defendant that in July 2006 the defendant visited the plaintiffs at Dehradun and on instructions and on their behalf, on 20.07.2016 the plaintiffs' through their manager and attorney Sh. Reyaz Ahmed Khan entered into the a fresh rent agreement relating to the godown No.2, 3 and 4. It is the contention of the defendant, that the rent of Godown No.2 and 3 was to be reduced to Rs.2,800/ and Rs.3,400/ respectively. This rent was to be applicable from November 2006 and was decreased due to fallen market rates. It is further stated that the plaintiffs' through their attorney Reyaz Ahmed also entered into an agreement to sell and purchase 1000 sq. yards of the plaintiffs' property for Rs.20 lakhs out of which Rs.10 lakhs was paid as part consideration and Rs.50,000/ as security.
It is stated by the defendants that in order to pay the rent for the month of November, 2006 the defendants paid the plaintiffs vide pay orders no. 722004, 722003, 722002 and 722001 of rs.3,400/, 2,800/, 1,800/ and 1,500/ dated 09.11.2006 issued by Oriental Bank of Commerce, Dwarka, New Delhi. It is also the contention of the defendant that now since the rent is below Rs.3,500/, the suit of the plaintiff is not maintainable and should be filed under the Delhi Rent Control At.
Further the defendant avers that the plaintiffs RCA No. 199/16 Page 4 had employed muscle men as security personnel who tried to forcibly evict the defendants from the suit premises. It is also averred that plaintiffs are not owners of the suit property and that the site plan filed by the plaintiffs is not correct.
3. Based on the pleadings, the following issues were framed on 23.04.2008: (1)Whether rent of the suit premises was reduced from Rs.5,500/ per month to Rs.2,400 w.e.f. 01.11.2006? OPD (2)Whether the suit is barred in view of provisions of Section 50 DRC Act? OPD (3)Whether the plaintiff is entitled to the decree of possession as prayed for in the plaint? OPP (4)Whether the plaintiff is entitled to a decree for a sum of Rs.48,000/ as arrears of rent w.e.f. 01.11.2006 to 31.10.2006? OPP (5)If issue No.4 is decided in affirmative, whether the plaintiff is entitled to any interest? If so at what rate? And for what period? OPP (6)Whether the plaintiff is entitled to decree of mesne profit? If so at what rate? And for what period? OPP (7)Relief.
4. After considering the evidence which came on record, ld. trial court had decreed the suit of the plaintiffs. Consequently, being aggrieved of the order of learned trial RCA No. 199/16 Page 5 Court, appellant/defendant approached this court by filing an appeal mainly on the following grounds :
(a) That the impugned judgment and decree dated 27.07.2016 passed by ld. Trial court are against the law and facts of the case on record and are liable to be quashed and set aside and it is based on guess work, conjectures and surmises.
(b) That the impugned judgment and decree dated 27.07.2016 passed by trial court is without jurisdiction as jurisdiction of civil court was barred u/s 50 of Delhi Rent Control Act and the trial court had no jurisdiction to entertain & adjudicate the suit as the rent of the suit premises was below Rs. 3500/ as the rent was reduced to Rs. 2800/ vide rent agreement dated 20.07.2006.
(c) That ld. trial court has failed to appreciate that said rent agreement was executed by Reyaz Ahmed who was manager & duly authorized attorney of the plaintiffs and on the date of execution of the rent agreement dated 20.07.2006 his authority was not withdrawn, revoked or cancelled.
(d) That ld. trial court failed to appreciate that previous attorney/attorneys of plaintiffs had been executing rent agreement with the tenants without obtaining any written permission or approval the RCA No. 199/16 Page 6 plaintiffs for execution of rent agreements and the plaintiffs have failed to place on record any such written approval or permission.
(e) That ld. trial court has failed to appreciate that the plaintiffs have taken contradictory pleas with respect to execution of rent agreement dated 20.07.2006. It is submitted that in reply to notice EX DW 1/2, the plaintiffs have taken plea that the rent agreement dated 20.07.2006 is forged and fabricated document, but in replication and affidavit of evidence, the plaintiffs have stated that the said rent agreement was executed without any authority.
(f) That ld. trial court has failed to appreciate that tenancy of appellant being statutory can not be terminated by giving notice.
(g) That ld. trial court has illegally awarded damages to the plaintiffs as the court has failed to appreciate that as the occupation of the suit premises by the appellant was legal and therefore no damages could have been awarded.
5. During the pendency of the present appeal, appellant has filed application u/O 41 Rule 27 CPC r/w Section 151 CPC and the same has been dismissed by separate order of even date.
6. Submissions heard on behalf of parties. Record RCA No. 199/16 Page 7 perused.
7. It is contended on behalf of appellant/defendant that the impugned judgment and decree dated 27.07.2016 passed by trial court is without jurisdiction as jurisdiction of civil court was barred u/s 50 of Delhi Rent Control Act and the trial court had no jurisdiction to entertain & adjudicate the suit as the rent of the suit premises was below Rs. 3500/ as the rent was reduced to Rs. 3400/ vide rent agreement dated 20.07.2006.
Record shows that defendant has admitted in his written statement that he had been tenant of the plaintiffs since 19.08.2000 at the rent of Rs. 5,500/ per month. However, it is further stated by the defendant that he had entered into a new lease agreement with the attorney of the plaintiffs Sh. Reyaz Ahmed on 20.07.2006. As per this agreement, the rate of rent was reduced from Rs. 5,500/ to Rs. 3400/. It is further stated by the defendant that in the same transaction the defendant and Sh. Reyaz Ahmed entered into an agreement for purchase of 1000/ sq. yards of the suit property for Rs. 20 lakhs and the defendant at that time paid part consideration (bayana) of Rs. 10 lakhs in furtherance of it.
It is pertinent to note that at the time when the said agreement is said to have been entered, there was RCA No. 199/16 Page 8 litigation pending between both the parties, which was not settled/compromised till October 2006. The suit previously filed by the plaintiffs Ex. PW 1/8 was for recovery of possession against the defendant and was filed in July 2006, wherein the defendant had admittedly filed a written statement Ex. PW 1/9. In this written statement, the defendant stated that the rent of the property till today is Rs 4,000/. though defendant has not mentioned anything regarding the subsequent agreement entered into between the parties to renew the lease. It appears highly improbable that the parties instead of first resolving the dispute of arrears of rent, negotiated in the midst of litigation and entered into a fresh lease agreement and the same was never disclosed to the court by the parties of the suit.
Further, in the statements recorded before the Court on 16.10.2006, the defendant paid arrears of rent upto October 2006 for rent at the rate of Rs. 5,500/. No explanation has been forwarded as to why the agreement so entered into on 20.07.2006 was to be implementable from November 2006. As the defendant had already stated that the rate of rent has been reduced to Rs. 3400/ by way of agreement dated 20.07.2006, then why the defendant has paid higher rent of Rs. 5,500/ for the suit property from the period of July 2006 to October 2006.
RCA No. 199/16Page 9 Thus, it is incomprehensible as to why defendant has not mentioned at any stage regarding agreement dated 20.07.2006. As stated above, it is admitted by the defendant that since induction into the tenancy , the rate of rent of the premises has been Rs. 5500/.
Record further shows that during cross examination the defendant failed to explain the reasons for reduction of the rent of the suit property though he has already admitted in his written statement that rate of rent of the suit property is Rs. 5500/. Further, the defendant in his written statement filed in suit no. 1430 of 2006, had stated that the market rate of suit property was not more than Rs. 5,500/ rent which he was already paying to the plaintiffs. This written statement was verified on 28.04.2006 preceding the agreement dated 20.07.2006. Though, defendant has failed to show the reason which compelled the plaintiffs to agree on lower rate of rent. As no explanation has been given by the defendant, it is improbable to believe that plaintiffs have entered into the agreement dated 20.07.2006 for reduction of rate of rent. Defendant further deposed during cross examination that he has not filed any documentary proof for the alleged agreement to sell and he has also claimed that he paid rent free security in the sum of Rs. 50,000/, however, no receipt in relation to this has been filed by the defendant.
RCA No. 199/16Page 10 Defendant has placed on record photocopy of the rent agreement dated 20.07.2006. The defendant has sought to prove the agreement by examining Sh. Hari Prakash Chauhan as DW 2, the witness to the said agreement. DW 2 during his cross examination deposed that he had signed on the agreement entered into between the defendant and Reyaz Ahmed. However, he cannot read or write in English and thus can not tell what the agreement is about.
He deposed that he was never told by the defendant about the old rate of rent as well as new rate of rent paid by him to the plaintiffs. Furthermore, the defendant in his cross examination deposed that at the time of negotiation for reducing in rent, Reyaz Ahmed had consulted the plaintiffs over the phone and it was only after his instructions that the agreement had been entered into. This stance of the defendant deviates from the stand held earlier, wherein the defendant claimed that Reyaz Ahmed was the attorney holder and always executed the rent agreement without the presence of the plaintiffs. Further, in his written statement, it is also stated by the defendant that he went to Dehradun to negotiate the agreement with the plaintiffs, however, this fact found no mention in his evidence.
DW1 during his examination has deposed that RCA No. 199/16 Page 11 they used to pay rent by way of cash or cheque. However, immediately after October 2006, rent for November 2006 was paid by the defendant vide pay orders no. 722004, 722003, 722002 and 722001 of Rs. 3400/, 2800/, 1800/ and 1500/ respectively. The pay orders however were returned immediately by the plaintiffs stating therein that the pay orders had been sent with a covering letter and that there were unable to decipher as to what for the payment was being made. In paragraph 2 of preliminary objections, the defendant has stated that there is an oral agreement between the parties. The defendant had stated in his written statement that the attorney of the plaintiff had assured him that the lease would be extended for another three years. This had occurred way back in august 2005 and extension of the lease deed implied continuation of the same rent for the premises. Reduction of rent in a subsequent deed is highly improbable and against the market parameters.
Record further shows that defendant has admitted Reyaz Ahmed was the attorney of the plaintiffs and plaintiffs filed GPA executed in favour of Riyaz Ahmed and the same clearly states that the attorney is allowed to make, sign, enter into and execute any lease or license deed in respect of the suit property subject to prior written approval of the original plaintiffs i.e Sh A.S Chugh, Mrs. RCA No. 199/16 Page 12 Surinder Chugh and Sh Rakesh Chugh. However, no proof of any written approval or consent taken by Riyaz Ahmed from the plaintiffs has been shown by the defendant.
It is further contended on behalf of appellant/defendant that ld. trial court has illegally
awarded damages to the plaintiffs as the court has failed to appreciate that as the occupation of the suit premises by the appellant was legal and therefore no damages could have been awarded.
Record show that appellant /defendant himself admitted that he has paid rent amount upto 31.10.2006 and further stated that for the month of November 2006, they sent rent vide pay orders no. 722004, 722003, 722002 and 722001 of rs.3,400/, 2,800/, 1,800/ and 1,500/ dated 09.11.2006 issued by Oriental Bank of Commerce, Dwarka, New Delhi.. However, this rent was refused by the plaintiffs. This position is also admitted by the defendants. In paragraphs 8 of WS reply on merits, the defendant has categorically admitted that plaintiffs have refused to receive the rent for the period of arrears as claimed. Admitting thereby that the defendant had not discharged his liability to pay rent for the period w.e.f. 01.11.2006 till filing of the written statement by the defendant.
Further, since 01.08.2007 it is admitted by the defendant that he did not vacate the property and is still in RCA No. 199/16 Page 13 possession. The tenancy of the defendant was validly terminated by a legal notice dated 17.08.2007 w.e.f 01.09.2007. The defendant thus has been in occupation of the suit premises as an unauthorized occupant.
Ld. Trial court has rightly awarded damages at the rate of Rs. 8,000/ per month till the defendants vacate the suit property as appellant/defendant has failed to vacate and hand over the possession after termination of the tenancy. Hence, damages appears to be reasonable as the suit property is a commercial property.
In view of aforesaid discussions and the facts and circumstances of the case, this court finds no illegality in the impugned order / judgment of Ld. Trial Court dated 27.07.2016. The appeal is hereby dismissed. Decree sheet be drawn accordingly. Trial Court record be sent back along with copy of this order.
8. File be consigned to record room after necessary compliance.
(Dr. Hardeep Kaur) ADJ02/Shahdara/Karkardooma Courts/Delhi.
(Announced in the open Court on 05.01.2019) RCA No. 199/16 Page 14