Delhi District Court
Amitabh Verma vs Ashish Malhotra on 7 May, 2013
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADJ01
SOUTH DISTRICT : SAKET COURTS : NEW DELHI
RCA No. 20/12
In the matter of :
Amitabh Verma
S/o Sh. P.S. Verma
R/o E5, Ground Floor
E.P. Railway ColonyII
New Delhi
...... Appellant
Versus
Ashish Malhotra
S/o Late Sh. R.C. Malhotra
R/o E5, First Floor
E.P. Railway ColonyII,
New Delhi
..... Respondent
07.05.2013
ORDER :
1 Vide this order, I shall dispose off the present appeal filed under Rule 96 CPC against the impugned judgment/decree dated 03.01.2012. 2 Brief facts of the case are as under:
The respondent filed a suit for recovery of Rs. 1,09,150/ towards Contd....P..1 of 20 : 2 : the charges of fixtures and fittings installed in the suit premises @ Rs. 13,000/ per month vide agreement dated 09.03.2009. It has been alleged by the respondent that the agreement of Hire was to run simultaneously with the lease agreement dated 28.02.2009 entered into between Smt. Sneh Lata Malhotra his mother in respect of letting out of a portion of ground floor bearing no. E5, Greater KailashII, Enclave, New Delhi to the appellant. It has been further alleged by the respondent that fittings and fixtures charges had not been paid by the appellant since 01.04.2009 and thus served the appellant with a notice of demand dated 19.08.2009 sent through his counsel.
3 The respondent stated in the plaint that the respondent has received neither the envelope containing the said notice back, nor the AD card showing proof of delivery. According to the respondent, said notice has been served upon the appellant.
4 It has been alleged by the respondent that due amount in respect of fitting and fixture charges for the period 01.04.2009 to 30.11.2009 comes to Rs. 1,04,000/ towards principal and a sum of Rs. 5,150.60 towards interest and the appellant is liable to pay a sum of Rs. 1,09,150/ inclusive of interest @ 15% p.a from 01.04.2009 to 30.11.2009.
5 The appellant filed a detailed W/S and specifically denied that there Contd....P..2 of 20 : 3 : was any relationship of landlord and tenant between the appellant and respondent herein in respect of the suit premises. He never entered into any alleged agreement for fitting and fixtures charges @ Rs. 13,000/ installed in the tenanted premises or he ever agreed to pay fitting and fixture charges @ Rs. 13000/ per month besides a sum of Rs. 14000/ towards the rent for the tenanted premises. Appellant has specifically mentioned that he never agreed to pay any hire charges separately @ Rs. 13000/ as demanded by the respondent besides Rs. 14000/ towards rent. No amount much less as claimed or otherwise is due or payable by the appellant towards fitting and fixtures charges as claimed by the respondent in the main suit. Appellant submitted that the alleged articles for which the respondent claims a sum of Rs. 13000/ per month as hire charges cannot be believed because the value of the articles cannot be said to be worth more than Rs. 15000/.
6 Appellant submitted that the address mentioned in the title of the plaint is not correct address of the appellant. The correct address of the suit property is E5, E.P. Railway Colony, Near Greater KailashII, New Delhi. The appellant has also specifically denied that any legal and valid notice of demand was ever served upon him nor the same was ever tendered by any postal authority at any point of time. Even the address mentioned in the alleged notice is not the correct address of the appellant. No notice could have been served on the addressee as mentioned in the alleged notice at the said address. The Contd....P..3 of 20 : 4 : respondent intentionally and deliberately mentioned the wrong address in the alleged notice. Since no notice as required under the law has been served upon the appellant, which is even otherwise mandatory one. Infact, the alleged notice is no notice in the eyes of law.
7 The appellant alleged that Smt. Sneh Lata Malhotra, mother of the respondent agreed to let out the tenanted premises for a period of three years at the agreed rate of Rs.14,000/ per month. Terms and conditions of tenancy were settled orally through property dealer, Sh. Gulshan, Prop. Lajpat Nagar, New Delhi on 31.01.2009. Said Smt. Sneh Lata at the time of creation of tenancy on 31.01.2009 demanded the advance rent for the said period as they were facing some financial crisis and were in dire need of amount. However, the appellant agreed to pay the maximum advance payment towards rent and promised to pay the balance amount of rent as and when the funds will be available with the appellant. Said Smt. Sneh Lata agreed to the same. On 31.01.2009, when terms and conditions were finally settled and agreed by both the parties i.e. the appellant and Smt. Sneh Lata Malhotra, mother of the respondent, the appellant paid a sum of Rs.15,000/ as booking amount for the creation of tenancy. On 01.02.2009, the appellant paid a sum of Rs.81,000/ by way of cross cheque and Rs.73,000/ in cash as agreed on 31.01.2009. On the receipt of said payment towards advance rent, said Smt. Sneh Lata handed over the vacant possession to the appellant and thus tenancy commenced from 01.02.2009 for a period of Contd....P..4 of 20 : 5 : three years at the agreed rate of Rs.14,000/ per month. It has been stated by the appellant that in the month of March, 2009, he paid a sum of Rs.27,000/ by way of cheque and Rs.27,000/ by cash to Smt. Sneh Lata Malhotra. In the month of April, 2009, Smt. Sneh Lata also received a sum of Rs.27,000/ by way of cheque in the name of her son and Rs.1,000/ in cash. Thereafter, in the month of May, 2009, Smt. Sneh Lata received a sum of Rs.50,000/ in cash. Lastly, the appellant paid a sum of Rs.1 lac in the month of February, 2010 to said Smt. Sneh Lata. All the payments were received by her according to her wishes, desire and criminate. Thus, Smt. Sneh Lata has already received a sum of Rs. 4,14,000/ towards advance payment in respect of the tenanted premises. 8 The appellant alleged that the alleged agreement of hire and fixtures and fittings dated 09.3.2009 is a procured document and he never executed any such document. Since the alleged document was never executed between the parties and thus, the terms and conditions of the alleged agreement are not binding upon the appellant. Respondent cannot take advantage of the alleged agreement, which is a procured and camouflage document. 9 Appellant has also contended that said Smt. Sneh Lata Malhotra, mother of the respondent also filed a suit for possession along with use and occupation charges in respect of the tenanted premises. The said suit is pending adjudication before the court of Sh. Sandeep Yadav, Ld. Sr. Civil Judge, Delhi Contd....P..5 of 20 : 6 : titled as suit bearing No. 1193/2009 "Smt. Sneh Lata Vs. Amitabh Verma". In the said suit, Smt. Sneh Lata Malhotra, the mother of respondent filed an application U/o 39 Rule 10 CPC read with Section 151 CPC praying that the appellant be directed to pay to her the entire arrears of rent / charges for use and occupation of the premises under the tenancy of the appellant. Vide order dated 27.07.2010, the court of Sh. Sandeep Yadav, Ld. Sr. Civil Judge, South District was pleased to dismiss the said application. The respondent concealed all these material facts from this court. The appellant prayed that the suit of the respondent deserves to be dismissed.
10 The Ld. trial court vide order dated 03.01.2012 decreed the suit of the respondent for a sum of Rs.1,09,150/ together with pendente lite and future interest @ 12% per annum. Aggrieved with the impugned judgment dated 03.01.12, the appellant has filed the present appeal on the following amongst other grounds :
GROUNDS OF APPEAL :
A That the impugned judgment of the Ld. trial court dated 03.01.2012 is against the law, facts, evidence and documents on record. B That the impugned judgment of the Ld. trial court is based upon surmises and conjectures and misconception of the facts of the case. C That while passing the impugned judgment, Ld. Trial court has Contd....P..6 of 20 : 7 : erred not to take into consideration the fact that the address mentioned in the title of the suit is not the correct address and location of the suit property. The suit property does not fall in the area of Greater KailashII as mentioned in the title of the suit. The suit property is situated in E.P. Railway Colony which is near to Greater KailashII. The factum of prove to show the correct address of the suit property is very much evident from the electricity bills and water bills being placed on record. Since the suit property has not been described properly in the tile of the suit, the present suit cannot survive on the face of this legal objection. D The Ld. trial court has also erred not to take into consideration while passing the impugned judgment that there was absolutely no relationship of landlord and tenant between the parties to the present suit. It is an admitted case of the parties that Smt. Sneh Lata let out the suit property to the appellant on a monthly rent of Rs.14,000/ per month. The Ld. trial court while passing the impugned judgment did not take into consideration the factum of the another suit in respect of the suit premises between themselves. E The Ld. trial court also erred not to to take into consideration that since the address mentioned in the alleged notice is not the correct address, no notice could have been served upon the addressee as mentioned in the alleged notice as the said address and no notice as required under law has been served upon the appellant. The correct address of the suit property is E5, E.P. Railway Colony, near Greater KailashII.
F The Ld. trial court should have held that no legal demand notice Contd....P..7 of 20 : 8 : was ever served upon the appellant.
G The Ld. trial court at the time of passing the impugned judgment should have considered that the suit premises was let out by Smt. Sneh Lata Malhotra to the appellant on a monthly rent of Rs.14,000/ per month and the appellant has already paid excess amount towards advance rent to the tune of Rs.4,14,000/ in the manners stated in the WS.
H The Ld. trial court at the time of passing the impugned judgment should have taken into consideration that no separate agreement was ever executed between the parties to the present suit. The appellant specifically denied the execution of the said document, which is a procured camouflage document. The respondent has not examined any witness to prove the execution of this document. Since no attesting witness / independent witness was ever examined by the respondent to prove the authenticity of the said document, no reliance can be placed on the same.
I The ld. trial court also failed to take into consideration that the nature ad details of the articles installed in the tenanted premises for which the respondent claims a sum of Rs.13,000/ per month towards hire charges for fittings and fixtures is not more than Rs.15,000/ in all. No evidence has been led by the respondent to prove the same on record.
J The Ld. trial failed to consider the evidence of the appellant and passed the impugned judgment without applying the judicial mind. K That while passing the impugned judgment, the ld. trial court below Contd....P..8 of 20 : 9 : should have taken into consideration that a suit titled as " Smt. Sneh Lata Malhotra Vs. Amitabh Verma" is pending adjudication before the court of Sh. Sandeep yadav and the said suit is hotly contested by the appellant. Even in the said suit, said Smt. Sneh Lata Malhotra, mother of the respondent filed an application u/o 39 Rule 10 CPC praying therein that the appellant be directed to clear the outstanding amount towards rent / use and occupation charges in respect of the premises under his tenancy. Said application has been dismissed by the said court after hearing arguments vide order dated 27.07.2010. L The ld. trial court while passing the impugned judgment did not take into consideration that the appellant never paid any amount towards fitting and fixture charges in respect of the tenanted premises at any rate to the respondent. The respondent has not examined any independent witness in this regard. M The Ld. trial court erred in holding that no affirmative evidence has been led by the appellant to discharge the onus. No expert opinion was sought by te appellant to prove that the signature on the agreement Exb.PW.1/1 is not his. The Ld. trial court should have held that no agreement Exb.PW.1/1 was ever executed between the parties.
N That there is absolutely no evidence on record to show that there was any separate agreement was executed for hire charges of fitting and fixing charges @ Rs.13,000/ per month between the parties besides a sum of Rs. 14,000/ towards rent agreed between Smt. Sneh Lata Malhotra, mother of the respondent and the appellant herein in respect of the tenanted premises. The Contd....P..9 of 20 : 10 : respondent has failed to place on record any such document or even examine any witness in support of this contention. In the absence of the same, no reliance should have been placed on the testimony of PW.1. It is nowhere mentioned that the hire charges agreement are different from the lease agreement and running concurrently with the lease agreement. 11 The ld. trial court has overlooked the fact that no independent / attesting witnesses were examined to prove the execution of Exb.PW.1/1. Said Smt. Sneh Lata Malhotra is not the attesting witness to the said document, as such no reliance can be placed on the testimony of said Smt. Sneh Lata Malhotra that she was present when so called agreement was executed. 12 No formal reply was filed by the respondent and the matter was argued directly.
Arguments heard. Record perused.
13 Since the appellant has referred to the matter titled "Snehlata Malhotra Vs Amitabh Verma" and has relied on the order passed by Sh. Sandeep Yadav, Ld. Civil Judge at that time and has also referred to the lease agreement dated 26.02.2009, the parties were directed to file copy of plaint in the said suit alongwith copy of lease deed.
Contd....P..10 of 20 : 11 : 14 Appellant has submitted that his address mentioned in the title of the suit is not the correct address. He has stated that the suit property is situated in E.P. Railway Colony which is near to GKII and has given his address in the memo of parties of the present appeal as E5, Ground Floor, E.P. Railway ColonyII, New Delhi. Accordingly, he has stated that he was never served with any copy of notice sent by respondent to him with respect to demand for fittings and fixture charges. Appellant is aggrieved by the finding of Ld. Trial Court that the defendant/ appellant has failed to prove that the address as mentioned in the legal notice was not his correct address. Ld. Trial Court has specifically observed that the appellant did not file or prove any document showing his address proof. Not even a single question or suggestion was put to PW1 regarding legal notice or service of legal notice and thus the testimony of PW1 that the legal notice Ex. PW1/3 was sent on the correct address of the defendant has gone unrebutted. It is also observed that DW1 i.e. appellant in his affidavit of evidence had not deposed that the legal notice was not received by him. A perusal of the summons served on the defendant before the Ld. Trial Court reveals that the address of the appellant mentioned on the said summons is E5, GKII Enclave, Ground Floor, New Delhi. The same address is mentioned in the memo of parties of plaint, agreement for hire of fixtures and fittings as well as in the legal notice dated 19.08.2009. Since the defendant/appellant was duly served at the address as E5, GKII Enclave, Ground Floor, New Delhi, I find no reason to differ from the finding of Ld. Trial Court that the notice was duly served on the appellant before Contd....P..11 of 20 : 12 : filing the present suit. Similarly the objection that address of parties has not been described properly in the title of the suit in view of incorrect mentioning of the address of the defendant is also untenable.
15 Appellant is aggrieved that Ld. Trial Court did not take into consideration that there is absolutely no relationship of landlord and tenant between the parties to the suit and also it did not take into consideration fact of pendency of another suit in respect of the suit property between themselves. The said objection of the appellant is baseless. The impugned judgment has been passed on the basis of Agreement of Hire of fixture and fittings dated 09.03.2009. For determination of arrears under the said agreement, the existence of relationship of landlord and tenant between the parties is not at all important as the said agreement has not described the parties to the suit before Ld. Trial Court as landlord and tenant. Further, the pending civil suit is not pending between the appellant and respondent rather it is pending between the appellant and mother of respondent and the said suit has been filed for recovery of possession and for arrears of rent with respect to suit property i.e. E5, GKII Enclave, Ground Floor, New Delhi. Thus there was no reason for Ld. Trial Court to take into consideration the pendency of that suit.
16 Appellant has submitted that no separate agreement was ever executed between the parties to the present suit and he specifically denied the Contd....P..12 of 20 : 13 : execution of the said documents, however, respondent did not examine any witness to prove the execution of the documents and since no attesting witness / independent witness was ever examined by respondent to prove the authenticity of the said document, no reliance can be placed on the same. Appellant has relied on judgment cited as AIR 1976 Madras 4 and AIR (31) 1944 Oudh 99, in support of his submissions that when execution is denied, the documents cannot be admitted in evidence unless at least one attesting witness has been called for proving the documents of execution. It was also argued that the agreement dated 09.03.2009 is neither notarised nor registered nor attested by any witness and is a sham document.
17 Appellant has submitted that there is absolutely no evidence on record to show with respect to the execution of the agreement dated 09.03.2009. The existence of the said agreement itself evidences the execution of the agreement. A perusal of agreement reveals that it bears the signatures of both the parties along with list of fittings and fixtures enumerated therein and the same was duly proved as Exb.PW.1/1 by the respondent before ld. Trial Court. Respondent in his affidavit of evidence has deposed about the execution of the agreement dated 09.03.2009 and has deposed that the same was signed by him at point A on both the pages and by appellant at point B on both the pages. He further deposed that appellant signed and executed the said agreement in his presence and he identifies his signatures. The list of fittings and fixtures was Contd....P..13 of 20 : 14 : also deposed to be appended to the said agreement and bears signatures of appellant as well as respondent and the original agreement alongwith the annexures is Ex. PW1/1. Ld. Trial Court has specifically observed as:
"In cross examination of PW1, not even a single question or suggestion was put to PW1 as to identification of signatures of the plaintiff or defendant. Not even a single suggestion was given by the defendant to the PW1 that the signatures on the Ex. PW1/1 at point B and witness is deposing falsely. Thus the testimony of PW1 that the signatures on the Ex. PW1/1 are that of the plaintiff at point A and the defendant at point B and list of fittings and fixtures also contains the signature of the plaintiff and the defendant has gone unrebutted.
A specific suggestion was put to PW1 that a mother of the plaintiff was present when the agreement Ex. PW1/1 was executed and PW1 has admitted the same. On the one hand, defendant is denying the execution of the agreement Ex. PW1/1 and on the other hand, the defendant is giving suggestion to the plaintiff that his mother was present at the time of the execution Ex. PW1/1, which are not only self contradictory but also makes the testimony of mother relevant. The mother of the plaintiff has entered into the witness box and has deposed that the agreement Ex. PW1/1 was executed in her presence. Testimony of Pw1 and PW2 is also consistent as regard the place and the time of the execution of the agreement Ex. PW1/1. PW1 and PW2 has deposed that Ex. PW1/1 was executed at the ground floor on the premises given on rent to the defendant at around 34 PM and no other person was present. Thus the testimony of PW1 and PW2 fully support the plaintiff case and thus, the onus shifts upon the defendant to prove that the signature on the agreement Ex. PW1/1 is not his and the same has been forged by the plaintiff which the defendant has failed to prove. No affirmative evidence has been led by the defendant to discharge the onus. No expert opinion was sought by the defendant to prove that the signature on the agreement Ex. PW1/1 is not his. It is proved that the hire agreement Ex. PW1/1 was executed between the plaintiff and the defendant."
18 None of the provisions of Registration Act or the Notaries Act Contd....P..14 of 20 : 15 : provides for registration or notarisation of the agreement of the nature executed herein. Appellant has not shown any statutory provision requiring for compulsory attestation of agreement for hire of fixtures and fittings. 19 In the matter of Asudamal S/O Laxmandas Sindhi vs Kisanrao S/O Wamanrao Dharmale, 2004 (2) BomCR 361, Hon'ble High Court of Bombay observed as :
"In my view, the findings given by the appellate Court that the isarchitthi i.e. agreement of sale was not proved because the plaintiff did not examine any of the attesting witnesses cannot be sustained. A perusal of Section 68 of the In dian Evidence Act would reveal that the provision of Section 68 of the Act are ap plicable only in respect of those documents which are required by law to be at tested.
10. Section 2 Subclause (e) of the Indian Contract Act, 1872 defines an agree ment of the contract which reads as follows :
"Every promise and every set of promises, forming the consideration for each other, is an agreement."
Section 10 of the Indian Contract Act, 1872 defines which agreement are con tracts, which reads as follows :
"All agreements are contracts if they are made by the free consent of par ties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in (India) and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents."
11. None of the provision of the Indian Contract Act state that in order to prove an agreement it is necessary to examine the attesting witnesses. Only under the Contd....P..15 of 20 : 16 : provision of the Indian Succession Act, for proving a Will, examination of attest ing witness is essential. Thus, only where there is a specific provision made in the Act requiring that the document is to be attested then in such cases the ex amination of the attesting witnesses is necessary as laid down in Section 68 of the Indian Evidence Act. The finding of the appellate Court that though one of the attesting witness is alive, the original plaintiff was duty bound to examine him to prove the execution of the isarchitthi i.e. agreement of sale is, therefore, not cor rect."
20 Thus, the objection of the appellant that the agreement dated 09.03.2009 is inadmissible in evidence because of its nonregistration and non notarisation is unsustainable. The objection of the appellant that in view of his denial, respondent was bound to prove it by examining any attesting witness is also not tenable. Accordingly, the agreement was rightly taken into evidence by ld. trial court.
21 Appellant has submitted that the nature and details of the articles installed under the agreement claiming a sum of Rs.13,000/ per month towards the charges for fitting and fixtures is not more than Rs.15,000/ in all. However, no evidence to such effect has been led by appellant before ld. trial court, and infact no such submission was made before ld. trial court. Accordingly, appellant has failed to substantiate his submission and section 92 of Evidence Act bars him from leading any evidence to the contrary.
22 Appellant has submitted that the suit property was let out to him by Contd....P..16 of 20 : 17 : Snehlata Malhotra on a monthly rent of Rs. 14,000/ and appellant has already paid amount of Rs. 4,14,000/ as detailed in the W/S. A perusal of WS reveals that defendant has stated that the suit property was let out to him for a period of 3 years at the agreed rent of Rs.14,000/ per month and he paid a sum of Rs. 15,000/ as booking amount and on 01.02.2009, he paid a sum of Rs.84,000/ by way of crossed cheque and Rs.73,000/ in cash as agreed on 31.01.2009. He has further stated that Smt. Sneh Lata i.e. mother of respondent sometimes used to receive the rent in cash and sometimes by way of cheque in her name and / or in the name of her son i.e. respondent. It is further stated that the appellant paid a sum of Rs.27,000/ by cheque in March, 2009 and also Rs. 27,000/ in cash. In the month of April, 2009, Smt. Sneh Lata received a sum of Rs.27,000/ by way of cheque in the name of respondent and Rs.1000/ in cash. Again in May, 2009, appellant paid a sum of Rs.50,000/ in cash and in August, 2009, Rs.27,000/ were paid by way of cheque in the name of respondent and Rs. 1000/ in cash and lastly Rs.1 lac was paid by appellant in February, 2010. It is not understandable that when tenancy commenced on 01.02.2009, why the appellant had made a payment of Rs.4,14,000/ to mother of respondent. He has not explained the reason in the WS nor in the present appeal. The only reason is stated to be that it was the advance rent for the rented premises and it was for the appellant to prove the same which he failed to prove. It is also not understandable that if appellant had paid a sum of Rs.27,000/ by way of cheque and Rs.27,000/ in cash in March, 2009 why he made further payment of Rs.
Contd....P..17 of 20 : 18 : 27,000/ in April, 2009 by cheque. Appellant has not placed any single document in support of cash payments and had led no evidence nor any suggestions were put to PW.1 with respect to these payments. Accordingly, appellant failed to prove cash payment allegedly paid to respondent or his mother which is otherwise also not believable in view of his own submission of having paid Rs. 4,14,000/ in a period of one year when the annual rent of the suit property comes to Rs.1,68,000/ and for three years, it comes to Rs.5,04,000/. 23 Further, Lease Deed provides for security deposit of Rs.54,000/ to be made by the appellant, however, admittedly, he paid a cheque of Rs.84,000/. Interestingly, amount of Rs.54,000/ of security, Rs.14,000/ for monthly rent and Rs.13,000/ as charges for fittings and fixtures comes to Rs.81,000/. The Lease Agreement between the appellant and mother of respondent is a registered document and admittedly, the monthly rent was fixed at Rs.14,000/ per month. Appellant has given no reason for why he paid a cheque of Rs.27,000/ per month in the months of March and April, 2009 and interestingly, the amount of Rs. 14,000/ towards rent and Rs. 13,000/ towards fittings and fixtures comes to Rs. 27,000/ and the respondent has also submitted in his plaint that the appellant has paid Rs. 13,000/ per month for the month of February and March 2009 towards hire charges and no payment thereafter. If the appellant had already paid Rs. 27,000/ by cheque and Rs. 27,000/ in cash in March 2009, why will he pay Rs. 27,000/ by cheque and Rs. 1000/ in cash again in month of April Contd....P..18 of 20 : 19 : 2009. No question was put to PW1 that the amount paid was towards advance rent. Not even a single question was put to PW1 that no such amount was ever paid by appellant to the respondent for hire charges. Thus testimony of PW1 remained unrebutted.
24 A question was put to PW1 whether he can show the amount received under the lease agreement was shown by him in the income tax record to which he answered in affirmative and brought his IT records which were marked as Ex. PW1/11. It is pertinent to mention here that a suggestion was given to PW1 on bringing the IT records that a blank cheque was given to mother of PW1 which was filled up by him to which PW1 replied in negative. Appellant made a suggestion contradictory to his pleadings. In his pleadings he had nowhere stated that at any point of time he had given blank cheque to mother of respondent. Thus Ld. Trial Court has rightly observed that the appellant has failed to discharge his onus and prove that the amount paid by him was towards the advance rent and not hire charges. Thus, there is no force in the submission of the appellant that he never paid any amount towards hire charges for fittings and fixtures.
25 Appellant has submitted that in the suit titled 'Sneh Lata Malhotra Vs Amitabh Verma, the application under Order 39 Rule 10 CPC filed by Sneh Lata i.e. mother of respondent has been dismissed wherein she had prayed that Contd....P..19 of 20 : 20 : the appellant be directed to clear the outstanding amount towards rent/ use and occupation charges in respect of tenanted premises. The said order has no implication on the impugned judgment/ decree since respondent is not a party to those proceedings and further an application under Order 39 Rule 10 CPC is only allowed when there are admissions on part of non applicant. Since there were no admissions made on behalf of appellant in the said matter, the application was dismissed.
26 In view of these observations, I concur with the findings of Ld. Trial Court and find no reason to interfere with the same. The impugned judgment and decree is accordingly upheld and respondent is at liberty to invoke the bank guarantee of Rs. 1 lac lien deposited by appellant with this court as per procedure. The appeal is accordingly dismissed. No order as to costs. TCR alongwith copy of this order be sent back to the Ld. Trial Court. File be consigned to record room after necessary compliance.
Dictated and announced in the open court on 07.05.2013 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 07.05.2013 Contd....P..20 of 20