Delhi District Court
Jaina Properties Pvt Ltd vs Pacl Ltd on 4 August, 2023
IN THE COURT OF CIVIL JUDGE - 03
WEST DISTRICT, TIS HAZARI COURTS, DELHI
Presiding Officer: Sh. Kautuk, DJS
Suit No. 490/2021 Digitally
signed by
KAUTUK
In the matter of: KAUTUK Date:
2023.08.04
16:36:27
Jaina Properties Pvt Ltd +0530
(Through its Director)
Office at : M-132, Adinath Shree House,
Opposite Super Bazar,
Connaught Circus, New Delhi-110001.
................. Plaintiff
Vs.
PACL Ltd.
(Earlier Known as PACL India Ltd)
Through its Director
Office at : 22, 3rd Floor,
Amber Tower, Sansar Chandra Road,
Jaipur (302004), Rajasthan.
.............. Defendant
Date of institution of Suit : 09/04/2021
Date on which judgment was reserved : 11/07/2023
Date of pronouncement of the judgment : 04/08/2023
EX-PARTE JUDGMENT
1.The Case:
The present suit has been instituted for recovery of possession and mesne profits.
2. The brief facts of the case are that the present suit has been filed by the plaintiffs against the defendant seeking possession in respect of the commercial property no. 303 & 304, admeasuring approx. 1098.24 sq. ft. on the third floor of the CS SCJ 490/21 JAINA PROPERTIES PVT LTD Vs. PACL LTD Page 1 of 7 commercial building namely 'Sundram Tower' constructed on plots bearing no. 22-23, Paschim Vihar, Commercial Complex, New Delhi-110092 as shown in the site plan (hereinafter referred to as the "suit property"). The plaintiff has also sought for recovery of mesne profit @ Rs. 3,000/- per day till the recovery of the possession.
It is stated that plaintiff company is a builder / promoter and is engaged in construction activities and the plaintiff company had acquired rights in plots bearing no. 22-23, Paschim Vihar, Commercial Complex, New Delhi-110092 from the DDA and subsequently constructed / raised a commercial building namely 'Sundram Tower' on the said plots and started allotting commercial spaces to various intending allotees by executing separate and individual agreements. It is further stated that YK Gupta HUF, Harish Malik and Smt. Radha Bai jointly obtained the possession of the suit property vide agreement dated 29/04/1998 with the plaintiff company. Thereafter, the suit property were transferred in the name of Sh. Ashwani Kumar upon the request of initial allotees. It is further stated that on 12/08/2008, the defendant company got the rights of the suit property in its name from Sh. Ashwani Kumar and endorsement on the original agreement dated 29/04/1998 was made in the name of defendant company. It is further stated that as per the lease with DDA, the plaintiff company was bound to pay the ground rent every six months in advance to DDA and the plaintiff company was regularly making payment of the said charges to DDA in advance every year out of its own means and resources. It is further stated that as per the agreement dated 29/04/1998, all the terms and conditions of the said agreement are mandatory CS SCJ 490/21 JAINA PROPERTIES PVT LTD Vs. PACL LTD Page 2 of 7 and binding upon the defendant company. However, the defendant company since the past 23 years has been regular defaulter in making the payment of ground rent charges of the suit property which as on 31/03/2022 amounts to Rs. 7,67,457/- for which the plaintiff company has time and again raised various demands and reminders to the defendant company, however, the defendant failed to make compliance of same. Since the defendant avoided and neglected the compliance of agreement, the plaintiff got served a legal notice dated 08/03/2021 to the defendant and called upon the defendant to vacate and hand over the possession of the suit property. It is stated that despite service of the legal notice the defendant has not handed over the vacant possession of the suit property to the plaintiff, hence the present suit.
3. Summons of the suit were sent, which stood served upon the defendant on 18/11/2021. However, despite multiple opportunities, no WS has been filed and the right of the defendant to file the WS was closed VOD 18/10/2022 and the defendant was proceeded ex-parte.
4. To prove its case, plaintiff examined himself as PW- 1, as the sole witness and tendered his evidence by way of affidavit Ex. PW-1/A, reiterating the contents of the plaint therein and relied upon the following documents:-
1. Board Resolution, Ex. PW-1/1.
2. Copies of the lease Deeds, both dated 18.07.1988 executed by DDA in favour of the plaintiff company, Ex. PW-1/2 (Colly, OSR).CS SCJ 490/21 JAINA PROPERTIES PVT LTD Vs. PACL LTD Page 3 of 7
3. Copy of agreement dated 29.04.1998, Ex. PW-1/3(OSR).
4. Site plan, Ex. PW-1/4.
5. The details of the payments and their acknowledgments from DDA, Ex. PW-1/5 (Colly. OSR).
6. Computer print out of advertisement/ press note is Ex. PW-
1/6 alongwith certificate under Sec. 65B of Indian Evidence Act is Ex.PW1/7.
7. Reminders / Request for payment are Ex. PW1/8(Colly.).
8. Copy of show cause notice dated 19.02.2021 and its postal receipt, Ex. PW-1/9 and Ex. PW-1/10 respectively.
9. Office copy of the legal notice dated 08.03.2021 and its postal receipts, Ex. PW-1/11 and Ex. PW-1/12 respectively.
5. Since none appeared for the defendant when the plaintiff was to be examined, the evidence was recorded ex-parte. Thereafter, plaintiff closed its ex-parte evidence vide order dated 02/01/2023, and the matter as posted for ex-parte final arguments.
6. During the course of final arguments, the Ld. counsel for plaintiff relied on the aforesaid documents and the unrebutted deposition of PW-1 to pray for a decree of possession of suit property and and recovery of mesne profit / damages @ Rs. 3,000/- per day w.e.f 29/03/2021 till the recovery of possession.
7. Heard the final arguments advanced by the Ld. Counsel for Plaintiff. This court has carefully perused the CS SCJ 490/21 JAINA PROPERTIES PVT LTD Vs. PACL LTD Page 4 of 7 evidence on record in light of the pleadings of the plaintiff and considered the submissions of the Ld. counsel for the plaintiff.
8. Since there is no written statement on record, the entire plaint has remained unrebutted. Notably, the defendant did not join the proceedings despite service of the summons of the suit. Therefore, the pleadings are deemed to be admitted for want of specific denial.
9. In order to establish its case the plaintiff was required to prove that the defendant is the licensee of the plaintiff and the said license has been duly terminated. Further, the plaintiff was required to show that he was entitled for damages / mesne profit.
10. Now, in order to establish these facts, the plaintiff has exhibited the lease deed dated 18/07/1978 executed in favour of the plaintiff. The plaintiff has further exhibited agreement dated 29/04/1998 (Ex. PW-1/3, OSR), as per which the possession of the commercial spaces bearing no. 303 & 304 (the suit property) was given to the allotees by the plaintiff company and the same also bears the endorsement dated 29/04/1998 in the defendant company's name upon the transfer of the suit property on 12/08/2008 from the subsequent allotee Ashwani Kumar. It is the case of the plaintiff that as per the said agreement, in specific as per clause 16(a) of the agreement, the defendant was liable to pay ground rent in proportion to the area alloted to the defendant. Ld. Counsel has pointed to clause 20(f) and 24(a) of the agreement, as per which the rent was payable even without any CS SCJ 490/21 JAINA PROPERTIES PVT LTD Vs. PACL LTD Page 5 of 7 demand being raised. It is the case of the plaintiff that the defendant has regularly defaulted in making payment of the said ground rent and demand / reminders were sent to the defendant in this regard, which is Ex. PW-1/8. Further, defendant company was also served upon with a notice to show cause for termination of the allotment, which is Ex. PW-1/9. However, the defendant company failed to pay the requisite charges and subsequently clause 29 of the agreement dated 29/04/1998 was invoked by the plaintiff and a legal notice in this regard was also served, which is Ex. PW-1/11. A perusal of clause 29 of the agreement reflects that it entitles the builder to cancel the right of licensee / re-enter into possession of the property, in case the licensee fails to pay any amount due under the said agreement. It would be pertinent to record that the ground rent was supposed to be paid by the defendant under the said agreement as per clause 16(a) and legal notice in compliance of proviso to clause 29 of the agreement is also proved to have been served upon the defendant. The said documents, in the absence of the cross-examination has established that the defendant was a licensee of the plaintiff, whose rights were governed as per the agreement dated 29/04/1998 and the defendant has breached the terms of the licensee, thereby entitling the plaintiff / builder to regain the possession of the property.
11. At this juncture, it would be pertinent to record that one of the relief sough by the plaintiff is for the recover of mesne profit @ 3,000/- per day w.e.f 29/03/2021, however, no evidence has been led as to how this amount has been computed. There is no gainsaying that the case of the plaintiff has to be proved on CS SCJ 490/21 JAINA PROPERTIES PVT LTD Vs. PACL LTD Page 6 of 7 the preponderance of the probabilities and merely because the defendant has not participated in the trial, it would not result into grant of said relief without sufficiently proving the same.
12. The testimony of plaintiffs' witnesses remains unchallenged and unrebutted and I find no reason to disbelieve the same. The documents have been duly proved as per law. The suit has been proved on the scale of preponderance of probabilities in view of the documents placed by the Plaintiff on record.
13. Accordingly, the suit is decreed in favour of plaintiff and against the defendant with following reliefs:
a) A decree of possession in favour of plaintiff and against the defendant thereby directing the defendant to handover the peaceful, physical and vacant possession of the suit property i.e commercial property no. 303 & 304, admeasuring approx. 1098.24 sq. ft. on the third floor of the commercial building namely 'Sundram Tower' constructed on plots bearing no. 22-23, Paschim Vihar, Commercial Complex, New Delhi-110092 as shown in the site plan.
14. The plaintiff is also awarded the costs of the suit.
15. Decree sheet be prepared accordingly.
16. File be consigned to record room after due compliance. Digitally signed by KAUTUK Announced in open KAUTUK Date: 2023.08.04 16:36:39 +0530 court on 04.08.2023 (KAUTUK) CIVIL JUDGE-03/WEST THC/DELHI/04.08.2023 CS SCJ 490/21 JAINA PROPERTIES PVT LTD Vs. PACL LTD Page 7 of 7