Delhi District Court
Navin Chandra vs Ashwini Katariya on 22 September, 2023
Suit No. 990/19 Page 1 of 14
IN THE COURT OF SH. DIVYANG THAKUR
ADDL. DISTRICT JUDGE-03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 990/19
CNR No. DLSW01-014158-2019
In the matter of :
Sh. Navin Chandra
S/o Late Sh. Babu Ram Paliwal
R/o House no.1749,
Sector-4, Gurugram
Haryana - 122001 ....Plaintiff
Versus
Mrs. Ashwini Kataria
D/o Sh. C.P.S.Kataria
W/o Sh. Sameer Kataria
R/o Flat no.B-93, Kunj Vihar CGHS Ltd.
Plot no.19, Sector-12, Dwarka,
New Delhi - 110075 ....Defendant
Date of institution of the suit : 16.12.2019
Final Arguments Heard on : 16.05.2023
Date of Judgment : 22.09.2023
Decision : EX PARTE DECREED
SUIT FOR POSSESSION AND RECOVERY OF MONEY
JUDGMENT :
1. Present suit has been filed for possession and recovery of Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 2 of 14 money for unauthorised use and occupation of the suit property by the defendant.
2. The brief facts of the case as mentioned in the plaint originally instituted are reproduced here as under:
(i) The plaintiff is the co-owner alongwith his deceased wife Mrs. Usha Paliwal and landlord of Flat no.B-93, Kunj Vihar CGHS Ltd., Plot no.19, Sector-12, Dwarka, New Delhi - 110075 (hereinafter referred to as 'suit property').
(ii) The defendant approached plaintiff in the month of June 2016 and requested him to give suit property on rent. The plaintiff agreed to give the suit property on rent to the defendant and a Lease / Rent Agreement dated 28.06.2016 was executed between the plaintiff and defendant for a period of 11 months. The rent agreement commenced from 01.07.2016 and was to terminate on 31.05.2017, i.e. 11 months, for a sum of Rs.24,000/- per month. Apart from the said rent, the defendant was also liable to pay maintenance charges of the society, water and electricity charges. The monthly rental charges were to be raised by 10% after each year, if the tenancy continued after 31.05.2017. An amount of Rs.48,000/- was also deposited by defendant towards security amount, which was to be refunded to her Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 3 of 14 without interest at the time of vacation and handing over the suit property by the defendant. However, the said security amount stood adjusted towards the pending arrears of rent at defendant's request which became due after 31.05.2017.
(iii) As per the lease deed dated 28.06.2016, the tenancy had come to an end by efflux of time on 31.05.2017 but in June, 2017 when plaintiff requested the defendant to vacate and handover the possession of the suit property, the defendant requested the plaintiff to give her somemore time to find an alternative accommodation for herself and her minor daughters and had further assured him that as soon as she gets an alternate accommodation to shift, she would vacate and handover the possession of the property to plaintiff.
(iv) After some time, defendant informed plaintiff that she has been unable to find a suitable alternative accommodation for herself and her family and further requested the plaintiff to allow her to live in the same property with a promise that defendant would pay an additional 10% extra amount every month as increased rent and would also pay the regular dues of the society. Considering the request of defendant, the plaintiff allowed the defendant to further stay in his property. The defendant further requested plaintiff to adjust the security amount of Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 4 of 14 Rs.48,000/- towards two months' pending arrears of rent but defendant did not pay the extra 10% monthly amount as promised by her. When the plaintiff requested the defendant to pay the same, she promised to pay the same in lumpsum at the end of the year, which was also not paid. The defendant kept on paying the monthly rental amount of Rs.24,000/- only to plaintiff till 31.08.2019 but from 01.09.2019 onwards, the defendant has not paid the monthly rent till date. Apart from this, defendant did not even pay the maintenance charges of the society which are Rs.59,400/- for a period of 01.10.2017 to 31.12.2019 @ Rs.2200/- per month. The Society has been issuing notices for the recovery of its maintenance charges since 2017 to both the plaintiff and defendant but the defendant has not cleared her legal dues despite so many requests and reminders of plaintiff and society. Defendant is in occupation of the aforesaid premises since 01.09.2019 as plaintiff had verbally terminated her tenancy on 01.09.2019.
(v) The tenancy of the defendant came to an end by 31.05.2017 and verbal termination of tenancy on 01.09.2019, plaintiff served a legal demand notice dated 07.11.2019 upon the defendant terminating the tenancy of the defendant in respect of the demised premises after 15 days from the date of receipt of the notice and on the following day, Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 5 of 14 the defendant was called upon to hand over the vacant, peaceful, physical possession of the premises to the plaintiff. The aforesaid legal demand notice was duly served upon the defendant on 13.11.2019. The defendant was also informed by way of Legal Demand Notice dated 07.11.2019 that her failure to hand over the vacant peaceful physical possession of the premises to the plaintiff would make her further liable to pay damages / mesne profits arising out of the unauthorised use and occupation of the premises from the date of termination of her tenancy i.e. 01.09.2019 till the possession of the premises is handed over by her to the plaintiff. Since the written termination notice was served on 13.11.2019, hence, from the said date, the tenancy had been terminated.
(vi) The defendant is in arrears of rent of Rs.72,000/- i.e. from 01.09.2019 to 31.11.2019 alongwith an additional amount of Rs.72,000/- towards 10% extra increased rental (i.e. from 01.06.2017 to 30.11.2019) by defendant as agreed between both the parties, totalling to Rs.1,44,000/- towards the plaintiff. The defendant is also liable to pay a sum of Rs.59,400/- towards pending maintenance charges of society from 01.10.2017 to 31.12.2019. The defendant is also liable to pay a sum of Rs.30,000/- per month from 01.12.2019 Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 6 of 14 onwards towards damages as per the prevailing market rate of the similar properties situated in this area till handing over of possession of the same. By virtue of the legal demand notice dated 07.11.2019, the defendant had further been called upon to pay the entire arrears of rent alongwith other dues but she has failed to do so. The defendant is also liable to pay damages for unauthorised use and occupation of the demised premises at the market rate of Rs.30,000/- per month from 01.12.2019 till the handing over possession of the premises to the plaintiff. Since the defendant has failed to hand over the vacant, peaceful, physical possession of the premises to the plaintiff, despite termination of tenancy coupled with the fact that she has not cleared her dues, the plaintiff was left with no efficacious remedy, but to file the present suit for a total sum of Rs.2,33,400/- alongwith interest @ 12% per annum.
3. The present suit was instituted on 16.12.2019 and summons for settlement of issues were issued to the defendant which were duly served. On 22.01.2020, the defendant entered appearance through his counsel and copy of plaint and annexures were supplied to him. He was directed to file Written Statement within 30 days. On 19.02.2020, Written Statement filed and on 09.09.2020 was taken on Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 7 of 14 record and the matter was fixed for replication, examination of parties and settlement of issues. On 18.10.2020, rejoinder to the Written Statement alongwith application u/o XXXIX R 10 CPC and an application u/o XV A read with Section 151 CPC were filed. An application u/o XII R 6 CPC and annexures including case laws was also filed. Notice of the aforesaid applications were issued to the defendant on 28.07.2021 and the matter was fixed for arguments on the aforesaid applications. On 20.09.2021, reply to the applications were given by the defendants. Arguments were heard on the application on behalf of the plaintiff. On 27.10.2021, ld. counsel for defendant stated that the defendant has not complied all the instructions of the court and threfore, he wants discharge in this counsel as counsel for defendant. Hence, he was discharged from this case. On 22.03.2022, reply to the application u/o XXXIX R 10 CC was filed by the defendant. Thereafter, the relief of possession was decreed u/o XII R 6 CPC vide order dated 12.04.2022. It may be also mentioned here that execution petition of 248/2022 was also filed to execute the decree of possession. On 12.08.2022, the matter was further listed for arguments on the application u/o XXXIX R 10 CPC read with Order XV-A of CPC seeking directions to the defendant for Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 8 of 14 depositing arrears of rent. The same application was allowed vide order dated 16.09.2022 and issues were also framed on the same date. Written Statement
4. On 02.09.2016, Written Statement was filed by the defendant. In his Written Statement, the defendant has averred that the plaintiff has not approached the court with clean hands and has misrepresented the facts only to reap undue benefits and cause wrongful loss to the Defendant. He has further averred that the defendant was a tenant of the plaintiff through one of the common friends of both the parties w.e.f. 01.07.2016 through Rent Agreement till 31.05.2017 and during the said tenancy period in the month of September, 2016 the plaintiff and his wife told the defendant that they wanted to sell out the property in question due to some personal reasons, hence defendant and the plaintiff entered into an oral agreement to sell in the presence of one of the common friend of both the parties for a total consideration of 1.25 crores. He has further averred that in the month of September / October, 2016, the defendant paid Rs.25,00,000/- in cash to the plaintiff and balance of consideration was to be paid till the month of August, 2019 on the execution of the sale deed. He has also averred that the defendant paid Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 9 of 14 rent amount to the plaintiff including maintenance charges of society, water and electricity charges till November, 2019 because of the oral sale agreement as there was no renewal of rent agreement after expiry of tenancy period. He has further averred that in the month of November 2018, the plaintiff demanded a sum of Rs.10,00,000/- from the defendant as his wife was hospitalized due to some serious illness, hence, keeping in view of the urgent need of the plaintiff, further gave a sum of Rs.10,00,000/- to the plaintiff in cash out of the balance consideration amount. In good faith, the defendant did not take any receipt from the plaintiff at that the time and plaintiff assured the defendant that he would certainly execute the receipt of the complete paid amount of Rs.35,00,000/-. Thereafter, the defendant kept on asking the plaintiff to execute the sale related documents in his favour but the plaintiff kept on putting off the defendant on one pretext or the other.
5. On the pleadings of the parties, the following issues were framed :
(I) Whether the plaintiff is entitled for a decree with respect to arrears of rent / maintenance charges of society / damages / Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 10 of 14 increased rent, as prayed for by the plaintiff?
OPP.
(ii) Whether the plaintiff is entitled to interest and at what rate? OPP.
(iii) Whether the defendant had paid the sum
of Rs.35,00,000/- to the plaintiff? OPD.
(iv) Whether the defendant had paid rent up to
the month of November 2019? OPD.
(v) Relief.
Thereafter, the matter was fixed for plaintiff's evidence. On 07.02.2023, ld. counsel for plaintiff pointed out that the defendant has not complied with the previous order dated 16.09.2022, hence court notice was issued to the defendant to show cause as to why the order dated 16.09.2022 for deposition of Rs.8,60,000/- has not been complied with which was received back unserved on 16.05.2023. Since none appeared for the defendant, his defence was struck off and he was proceeded ex parte.
6. On 16.05.2023, Sh. Navin Chandra was examined as PW-
1. He tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents :
Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 11 of 14
(i) Ex.PW-1/1 (OSR) (Colly) i.e. Certificate of allotment
(ii) Ex.PW-1/2 (OSR) (Colly) i.e. Certificate of occupancy
(iii) Ex.PW-1/3 (colly) i.e. death certificate of his wife and the joint owner.
(iv) Ex.PW-1/4 (OSR) i.e. proof of residence i.e. Aadhar Card.
(v) Ex.PW-1/5 (OSR) i.e. Rent agreement dated 28.06.2016.
(vi) Ex.PW-1/6 (OSR) (colly) i.e. bank statements for the period June 2016 to December 2019
(vii) Ex.PW-1/7 (colly) i.e. notice issued by the society administrator dated 30.12.2021.
(viii) Ex.PW-1/8 (colly) i.e. copies of legal notice, postal receipts and internet tracking reports
(ix) Mark A i.e. police verification form for proff of address of the defendant.
His cross examination was recorded as NIL as defendant was already proceeded ex parte. Vide separate statement of plaintiff, PE was closed and the matter was fixed for final arguments. Ex parte final arguments were heard and the matter was fixed for judgment.
7. I have heard the final arguments and perused the record.
8. The defendant did not lead any evidence to discharge the Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 12 of 14 onus of issues no.3 and 4. Therefore, the said issues are decided against the defendant and in favour of plaintiff.
9. Now, coming to the case of the plaintiff, it is the proved case of the plaintiff due to the unchallenged testimony of PW-1 that the defendant was paying a rent of Rs.24,000/- initially and that he continued to accept the said rent till 31.08.2019 and thereafter, no rent was paid and that the defendant continued to occupy the property till 26.08.2022. The ld. counsel for the plaintiff has prepared a calculation sheet, the basis of the same being the averment of the plaintiff that there was an agreement between the parties that the rent would increase by 10% every year. The ld. counsel for the defendant has relied upon Clause 17 of the lease agreement Ex.PW-1/5 dated 28.06.2016. I find that the plaintiff has not been able to prove the said fact of any such agreement. The Clause 17 with respect to increase of rent by 10% is merely an agreement to agree in the future and not an enforceable term of the contract. Even if it is assumed that there was an oral agreement, it is the plaintiff's own case that he was accepting Rs.24,000/- without any demur even after the expiry of the initial rent agreement dated 28.06.2016 which was for a period of 11 months only. Even though the said agreement expired in June, 2017, the Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 13 of 14 plaintiff continued to accept the sum of Rs.24,000/- as rent till August 2019.
10. Therefore, the plaintiff is awarded a sum of Rs.24,000/- per month from September, 2019 till August 2022 which would come to Rs.8,64,000/-. The plaintiff has also been able to prove that the maintenance charges were not paid by the defendant which would come to the sum of Rs.59,400/- as prayed for. The plaintiff is also awarded a further amount of Rs.5,000/- as damages and mesne profits per month during the pendency of the suit which would come to Rs.1,05,000/-. Issues no.1 and 2 are decided accordingly in favour of the the plaintiff and against the defendant.
11. Therefore, the suit of the plaintiff has to be decreed for Rs.10,28,400/- as against defendant. The aforesaid sum shall carry pendente lite interest i.e. from the date of filing of the suit till date of decree @ 6% per annum and future interest till the realization @ 6% per annum.
12. Relief: In view of the aforesaid discussion, plaintiff is entitled for the recovery from defendant no.1 for total amount of Rs. Rs.10,28,400/- along with pendente lite interest @ 6 % per annum and future interest till the realization @ 6% per annum from the date of Navin Chandra vs Mrs. Ashwini Kataria Suit No. 990/19 Page 14 of 14 filing of suit till date of decree. Suit of the plaintiff is decreed accordingly. Cost of the suit is awarded in favour of the plaintiff.
13. Decree sheet be prepared accordingly.
14. File be consigned to Record Room after due compliance. Digitally signed by DIVYANG
DIVYANG THAKUR
THAKUR Date:
2023.09.22
16:51:53 +0530
Announced in the open court (Sh. Divyang Thakur)
On 22.09.2023 ADJ-03/South West
Dwarka / New Delhi
22.09.2023
Navin Chandra vs Mrs. Ashwini Kataria