Delhi District Court
Sh. B.S. Gosain vs Sh. Abhishek Dubey on 23 May, 2015
IN THE COURT OF MS. SHUCHI LALER, SENIOR CIVIL JUDGE,
RENT CONTROLLER, (EAST), KARKARDOOMA COURTS, DELHI
Suit No.264/12
Unique Case ID No. 02402C0236252012
Sh. B.S. Gosain
S/o Late Sh. Bhekal Singh Gusain
R/o 230D, PocketI,
Mayur ViharI, Delhi91. ... Plaintiff
Versus
Sh. Abhishek Dubey
S/o Sh. Uma Kant Dubey
R/o H. No. 31B, Medha Apartment,
Opp. Sai Mandir, Mayur Vihar Extension,
PhaseI, Delhi91 ... Defendant
SUIT FOR RECOVERY OF RS. 59,055/
Case filed on - 22.08.2012
Arguments heard on - 20.05.2015
Judgment pronounced on - 23.05.2015
J U D G M E N T
1. Plaintiff has filed the instant suit for recovery of Rs.59,055/ along with pendente lite and future interest @ 18% per annum against the defendant.
2. Brief narration of the facts as disclosed in the plaint is as under:
2.1 That the plaintiff is the owner of Flat bearing no. A1, PocketI, Mayur Vihar, Phase1, Delhi (hereinafter referred to as the Suit Property) and CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 1 of 16 he had let out the suit property to the defendant at monthly rent of Rs.
13,000/ excluding electricity, water and other charges vide rent agreement dated 08.04.2010. The rent agreement was renewed for a further period of 11 months on 09.03.2011 on revised monthly rent of Rs.16,500/.
2.2 That the defendant requested the plaintiff that he wishes to install three window air conditioners to which the plaintiff agreed and instructed the defendant to compensate him for repair/damages but the defendant did not pay any amount towards reconstruction/modification of the windows of the suit property.
2.3 That on several request of the plaintiff, the defendant vacated the suit property on 31.03.2012 and when the plaintiff inspected the suit property, he found that the borewell and the inverter which were provided to the defendant were in a damaged/unserviceable condition. The windows were also in damaged condition.
2.4 That the defendant defaulted in making payment of electricity dues of Rs.7,260/, water dues of Rs.9,567/ and PNG facility dues of Rs. 3,218/. The plaintiff got repaired the inverter and boring water pump and incurred the expenses of Rs.18,500/ and Rs.10,410/. The plaintiff also got repaired the damaged windows and incurred a cost of Rs.10,100/.
2.5 That the defendant has caused loss/damage of a total sum of Rs. 59,055/. The plaintiff served a legal notice dated 05.06.2012 upon the defendant, however, the defendant did not comply the same.
Being aggrieved, the plaintiff filed the present suit
3. Written statement has been filed on behalf of the defendant wherein he has admitted that he resided at the suit property in the capacity of a tenant. CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 2 of 16 The monthly rent of Rs.16,500/ excluding electricity, water, gas connection and facility charges stands admitted. The fact of installation of three window air conditioners by the defendant at the suit property is also admitted. The averments to the contrary made by the defendant are as under :
3.1 That the defendant had never agreed to compensate the plaintiff for modification of windows for installation of air conditioners. There was never any talk in this regard nor the plaintiff had mentioned as to what compensation was to be paid by the defendant.
3.2 That the defendant did not cause any damage to the borewell, inverter and windows and when the defendant had left the suit property, the same were in good condition. The said fact was verified by the plaintiff and only then, the defendant was allowed to leave the suit property.
3.3 That the plaintiff refused to refund the security amount of Rs.
16,500/ as per the terms of the agreement to the defendant. The defendant had not defaulted in making payment of electricity dues of Rs.7,260/ nor of water charges of Rs.9,567/.
3.4 That the defendant had not defaulted in payment of PNG facility charges of Rs.3,218/. These charges were collected by the plaintiff in cash from the defendant and the plaintiff used to collect amount more than the actual charge. The defendant never defaulted in payment of the charges.
3.5 That the inverter and boring water pump were in perfect working condition when the defendant vacated the suit property. Even the windows were in good shape. As per the agreement, the major repairs were the responsibility of the plaintiff.
In view thereof, the defendant has denied his liability to pay an CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 3 of 16 amount of Rs.59,055/ and has prayed for dismissal of the present suit with costs.
4. Replication was duly filed on behalf of the plaintiff wherein contrary averments were denied and the corresponding averments made in the plaint were reiterated and reaffirmed as true and correct.
5. Issues struck on 04.04.2013 are as under:
1) Whether the plaintiff is entitled for recovery of Rs.59,055/ along with the interest as prayed for by the plaintiff in the plaint? OPP
2) Relief.
6. Thereafter the matter was listed for plaintiff evidence. In support of his case, the plaintiff has examined himself as PW1 and he has tendered his evidence by way of affidavit which is Ex. PW1/1. He has relied upon the documents such as original Rent Agreement dated 04.03.2011 Ex. PW1/A, the Electricity Bill Ex. PW1/B, Water Bill Ex. PW1/C, Repair Bill of Inverter Ex. PW1/D, Repair Bill of Windows Ex. PW1/E, Repair Bill of Boring Water Pump Ex. PW1/F, photocopy of Police Complaint Mark C, Legal Notice and its Postal Receipts Ex. PW1/G & Ex. PW1/H (colly), photocopy of PNG Bill Mark A, photocopy of Police Verification Report of the defendant Mark B. The plaintiff has been duly cross examined by the Ld. Counsel for the defendant. Thereafter, plaintiff's evidence was closed. CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 4 of 16
7. In rebuttal, the defendant stepped into the witness box as DW1 and he tendered his evidence by way of affidavit which is Ex. DW1/A. The aforesaid witnesses have been duly cross examined on behalf of the plaintiff. Thereafter, the defendant closed his evidence.
8. I have heard the Ld. Counsels for the parties and have perused the record with their assistance. Written Submissions have been filed on behalf of defendant and same have been perused.
9. My issue wise findings are as under:
Issue No.1 : "Whether the plaintiff is entitled for recovery of Rs.
59,055/ along with the interest as prayed for by the plaintiff in the plaint? OPP"
10. The onus to prove this issue has been placed upon the plaintiff. Certain facts remain admitted. The relationship of landlordtenant, execution of rent agreement dated 08.04.2010 Ex.PW1/A, the rate of rent being Rs. 16,500/ per month excluding electricity, water and gas connection stands admitted. It is also admitted case of the parties that the defendant had vacated the suit property on 31.03.2012.
11. The case of the plaintiff is that the defendant did not pay the electricity charges of Rs.7,260/, water charges of a sum of Rs.9,557/, PNG facility charges of Rs.3,218/. It has also been alleged that the borewell, inverter and windows were in damaged condition and a sum of Rs.39,010/ has been claimed on account of said loss/damage. In total, plaintiff has claimed that CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 5 of 16 defendant is liable to pay a sum of Rs.59,055/ towards dues and damages.
12. The defendant, per contra, denied that he had caused any damage to borwell, inverter and windows and has claimed that he had left the said articles in good condition. The defendant has alleged that the plaintiff has filed the present suit as he did not want to return the security amount of Rs. 16,500/ as per rent agreement Ex.PW1/A. The defendant has claimed that he had paid the electricity, water and PNG facility charges to the plaintiff in cash and he had settled all account with the plaintiff at the time of vacation of the suit property.
13. A generic/comprehensive issue has been framed by Ld. Predecessor as to entitlement of the plaintiff for a decree of Rs.59,055/ along with interest. In order to keep the discussion focused, in the opinion of Court, certain points can be culled out which will assist in reaching a logical conclusion and which will also take into account the rival pleas of either side:
(13.1) Point 1: Whether the plaintiff is entitled to recover an amount of Rs.7,260/ as electricity charges?
(13.2) Point 2: Whether the plaintiff is entitled to recover the water charges in the sum of Rs.9,567/?
(13.3) Point 3: Whether the plaintiff is entitled to recover a sum of Rs.3,218/on account of PNG facility?
(13.4) Point 4: Whether the plaintiff is entitled to recover the cost of repair of window, inverter and boring water pump?
CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 6 of 16 (13.5) Point 5: Whether the security amount of Rs 16,300/ can be adjusted towards the amount claimed by the plaintiff?
(13.6) Point 6: Whether the plaintiff is entitled to interest, if so, at what rate and for which period?
The aforementioned points/grounds are discussed herein below: 13.1 ELECTRICITY CHARGES 13.1.1 The plaintiff has claimed that the defendant is liable to pay the Electricity Bill, Ex PW1/B. The said bill is for the period from 20.01.2012 to 11.13.2012. The defendant admittedly vacated the suit property on 31.03.2012, thus, the electricity bill Ex PW1/B is for the period when the defendant was in possession of the property as tenant. The payment of the said bill ExPW1/B has been made on 23.4.12 i.e after the property was vacated by the defendant.
13.1.2 The amount paid by plaintiff i.e. Rs. 7,260/ as mentioned in the bill Ex PW1/B includes the arrears of electricity bill since Jan 2012 and LPSC ( late payment surcharge). Bill date is 01.04.2012 i.e the bill was issued after the property was vacated by defendant on 31.3.12 and as such defendant never had the opportunity to receive the said bill and pay the same. The bill must have reached the plaintiff some days after 01.04.2012 and was paid on 23.04.2012.
13.1.3 It is not the case of the defendant that after vacation of the suit property, he had ever met the plaintiff and made the payment of the said outstanding electricity bill. The defendant has miserably failed to prove CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 7 of 16 payment of the said bill to the plaintiff. The bill which includes receipt has been filed on record by the plaintiff i.e the bill has been produced from possession of plaintiff, hence, it can be inferred without any ambiguity, that the bill was received by plaintiff after defendant had vacated the property and was paid by him.
13.1.4 As the bill Ex PW1/B pertains to the period for which the defendant was in possession of the suit property and as clause 9 of Rent Agreement ExPW1/A, fastens responsibility upon the tenant to pay electricity charges to lessor or concerned authority, the defendant is liable to pay an amount of Rs. 7,260/ to the plaintiff who made the said payment to electricity department.
Thus, the plaintiff is entitled to recover an amount of Rs. 7260/ from the defendant towards electricity bill/ charges. 13.2 WATER CHARGES 13.2.1 Secondly, the plaintiff has averred that the defendant is liable to pay water charges to the tune of Rs 9,567. The documentary evidence in support of claim of water charges is the Water Bill ExPW1/C. 13.2.2 The said Water bill is dated 23.10.11and is for the period from 3.8.09 to 3.10.11. The defendant admittedly came in possession of the suit property on 09.04.2010. Thus, the Water Bill Ex PW1/C also covers the period when the defendant was not in occupation of the suit property, so, defendant cannot in any manner be burdened with the liability to pay the entire amount as mentioned in the water bill Ex PW1/C. 13.2.3 Now ascertaining whether proportionate liability can be affixed CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 8 of 16 upon the defendant for the period of his stay on the basis of water bill Ex PW1/C. Meter reading as on 3.8.09 was 239 and as on 3.10.11 was 31 and the total number of units ( Kilo Litre) consumed during the said period were
759. It cannot be gauged on perusal of the bill Ex PW1/C as to on what basis the units have been calculated to be 759. The plaintiff was required to prove what was the criteria for calculation of the units consumed, what was the exact computation of units consumed during the stay of defendant i.e for the period 09.04.10 to 3.10.11 and consequently the exact water charges for the said period.
13.2.4 The plaintiff should have summoned a witness from Delhi Jal Board to prove the consumption of units for the relevant period and the corresponding bill amount, but no such effort has been made by plaintiff. Moreover, even in the rent agreement Ex PW1/A, there is no mention of the reading of water meter on the date of execution of rent agreement. 13.2.5 In absence of any proof as regards the units of water consumed by defendant during the period of tenancy, the defendant cannot be held liable to pay the bill amount on an average basis or on proportional basis. There is no such clause in the rent agreement. Further, the plaintiff has not proved the payment of the said bill by him as no receipt or mode of payment has been disclosed. In absence of such proof, the plaintiff cannot claim reimbursement from the defendant of the amount which he has yet not paid.
In view of above, the plaintiff has failed to establish the liability of the defendant to make payment of Rs 9,567/ towards Water Charges. 13.3 PNG CHARGES CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 9 of 16 13.3.1 Thirdly, an amount of Rs 3,218/ has been claimed by the plaintiff on account of PNG facility. The photocopy of the PNG Bill dated 17.05.2012 Mark A, has been filed on record.
13.3.2 The normal rule of leading documentary evidence is the production and proof of the original document itself. PNG bill has not been proved as per law as the original of the same was never produced before the Court. The plaintiff was aware at the time of tendering his affidavit that the original bill has not been filed on record as this fact has been mentioned by him in his evidence, still, the plaintiff choose not to prove the said bill by either producing the original or by summoning a witness from Indraprastha Gas Limited. The photocopy of the bill is a secondary evidence of the original bill and the same can be proved in evidence, only if the following condition as prescribed by Section 65 of Indian Evidence Act are satisfied i.e.:
a. when the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
b. when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
c. when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; d. when the original is of such a nature as not to be easily movable; e. when the original is a public document within the meaning of section 74;
f. when the original is a document of which a certified copy is CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 10 of 16 permitted by this Act, or by any other law in force in India to be given in evidence2;
g. when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. 13.3.3 The plaintiff has failed to prove any of the aforesaid conditions in which secondary evidence of the PNG Bill would have been admissible. In absence of the conditions as enumerated Under Section 65 Evidence Act, the document has to be compulsorily proved by primary evidence i.e. by producing the original. The plaintiff has, thus, failed to prove the PNG Bill as per the mandate of Indian Evidence Act.
13.3.4 Moreover, the plaintiff has not proved that the said bill was paid by plaintiff as no receipt or mode of payment has been disclosed. In absence of such proof, the plaintiff cannot claim reimbursement from the defendant of the amount which he has yet not paid.
Accordingly, the plaintiff is not entitled to recover an amount of Rs 3,218/ from the defendant towards PNG Charges.
13.4 REPAIR CHARGES 13.4.1 Lastly, the plaintiff has claimed an amount of Rs 39,010/ as the costs incurred by him in repairing the windows, inverter and boring water pump allegedly damaged by the defendant. The plaintiff has filed three repair bills Ex PW1/D to ExPW1/F in this regard.
13.4.2 The plaintiff has not examined any witness to show that necessary repair work was carried out at the suit property. On perusal of the bills, it cannot be ascertained as to how much amount was paid for the CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 11 of 16 damage caused and how much was spent on enhancement.
13.4.3 The plaintiff should have taken the photographs of the broken/damaged windows, inverter and boring water pump to show the damage or it would have been better, had he got the damage assessed from an independent Government Approved Valuer/Assessor. To illustrate with an example : In the case of claim from Insurance company, it is necessary to get the damage assessed to claim the amount of damages. Similarly, in the present case, the plaintiff was duty bound to prove the damages and for the said purpose, the plaintiff should have got it assessed from Government Valuer. One cannot claim any amount from the Insurance Company, without proving damages solely on basis of bills, similarly, one cannot claim damages /reimbursement of repair charges on the basis of bills alone without proving the actual damage caused and without getting it properly assessed. 13.4.4. Merely by filing three bills Ex PW1/D to ExPW1/F on record, the plaintiff cannot be said to have discharged his onus of proving the actual damage caused. Even the plaintiff could not explain whether spending of so much amount on repair was really justified.
13.4.5 The plaintiff should have either described in detail the damage to windows, inverter and boring water pumps or he should have examined the witness who actually conducted the repair work to describe as to what was the nature of damage and how much repair was done. The plaintiff, in his crossexamination, has admitted that there was no fixed amount agreed for compensation for the damage caused. Thus, in the absence of any agreement between the parties regarding the amount payable for damages, it was the responsibility of the plaintiff to establish on record on what basis he was CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 12 of 16 claiming damages to the tune of Rs 39,010.
13.4.6 Filing of bills Ex PW1/D to Ex PW1/F, per se, would not suffice as these bills are no proof of the actual damage caused. In absence of proof of any actual damage caused to the windows, inverter and boring water pump by the act of defendant, the plaintiff cannot claim just any whimsical amount from the defendant on account of repairs. There should be sufficient material on record to make specific assessment of the damage caused to award damages, which is patently missing in the present case. The Court cannot grant damages at the whims and fancies of the plaintiff.
Thus, the court is not inclined to grant any amount to the plaintiff as reimbursement of the repair charges as assessment of such repair charges cannot be made on the basis of the three bills filed by the plaintiff. 13.5 ADJUSTMENT OF SECURITY AMOUNT 13.5.1 The defendant has alleged that the plaintiff has filed the present suit in order to evade his liability to refund the security amount of Rs 16,300/. The plaintiff/PW1, in his cross examination, stated that the security amount of Rs 16,300/ was against the rent of last month of tenancy. In the entire cross examination, no suggestion or question has been put to PW1 that the last month rent was paid to him, so, he could not have adjusted the security amount towards it. The defendant has not been able to prove the payment of last month rent to the plaintiff.
13.5.2 It is settled law that when the plaintiff/landlord alleges non payment of rent, the onus lies upon the defendant / tenant to prove that he has paid the rent. It has been held in Sukhanand Vs. IVth Additional District CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 13 of 16 Judge, Bulendshahar & ors. 1994 (2) RCR (Rent) 408 that the onus to show payment of rent lies on the tenant and oral testimony of tenant in regard to the payment of rent claiming discharge of liability in this regard cannot be admitted to be worth reliance at all.
13.5.3 Similar view has been reiterated in the case titled as Raghubir Prasad Vs. Rajendra Kumar Gurudev, 1993(2) R.C.R. (Rent) 234, wherein it has been held that on default in payment of rent, the onus to show payment of rent lies on tenant. Further, in the case of Satya Prakash Vs. District Judge Ghaziabad, 1982(1) R.C.R. (Rent) 295, it was observed that if in a petition, tenant alleges that rent is paid, then as per Evidence Act, burden to prove payment lies on the tenant, as he alleges that payment is made.
13.5.4 Reference can also be made to the judgment titled as Karamchand Deojee Sanghavi Vs. Tulshiram Kalu Kumawat, 1992(1) RCR 118 wherein the Hon'ble Bombay High Court observed that in a case of eviction on arrears of rent, the onus would always be on tenant to prove that he has paid the rent.
13.5.5 Thus, in the instant case, the onus was upon the defendant / tenant to prove that he has paid the last month rent. The defendant has not made any whisper about the payment of rent of last month. No evidence has been adduced by the defendant to show that he had been regularly making payment of the rent more specifically the payment of last month.
Accordingly, the plaintiff cannot be inferred to be unjustified in adjustment of security amount towards last month rent. Consequently, CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 14 of 16 security amount cannot be adjusted towards decreetal amount. 13.6 INTEREST 13.6.1 The plaintiff has claimed pendent lite and future interest at the rate of 18% per annum, however, the plaintiff has failed to substantiate its claim for interest at such an exorbitant rate. Admittedly, there is no agreement between the parties regarding payment of interest in case of delay in making the payment. However, the court cannot overlook the fact that the defendant has withheld the payment of electricity charges of Rs. 7260/to the plaintiff without any just and sufficient cause. Hence, the plaintiff is entitled to recover interest on the aforesaid principal amount. 13.6.2 Under section 34 CPC the award of interest is within the discretion of the court. In the exercise of powers under section 34 CPC , the pendente lite and future interest is adjudged to be 6% per annum on the electricity charges of Rs.7,260/
14. Therefore, taking an overall view of the entire conspectus of the material on record, the evidence and the pleadings, it is hereby held that the plaintiff is entitled to recover only the electricity charges to the tune of Rs 7,260/ along with pendente lite and future interest @ 6% p.a.
15. Before parting, it would be apposite to mention that the rent agreement dated 04.03.2011 Ex PW1/A is on a stamp paper of Rs. 100/ only. The adequate stamp duty has not been affixed upon the rent agreement Ex PW1/A. The document is, thus, liable to be sent to Collector of Stamps for payment of appropriate stamp duty & penalty by the plaintiff/ landlord CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 15 of 16 Issue No 1 is partly decided in favour of the plaintiff and against the defendant.
RELIEF
16. In view of finding on aforementioned issue, the suit of the plaintiff is partly decreed in his favour and against the defendant. The plaintiff is held entitled to recover a sum of Rs.7,260/ along with pendente lite and future interest @ 6% from the date of the institution of the suit till the date of realization on the aforesaid amount.
17. However, as the Rent deed Ex PW1/A in the present case has not been properly stamped, hence the same is hereby impounded and the same be sent to the Collector of Stamps, who shall deal with the same as per the provisions of the Stamp Act and shall issue a certificate under Section 40 of the Stamp Act and the decree shall be executable only after the said certificate of the Collector of Stamps is received by the court directly or filed by the plaintiff/Decree Holder.
Cost of the Suit is awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court (Shuchi Laler)
Dated:23.05.2015 Senior Civil Judge/Rent Controller (East)
Karkardooma Courts, Delhi
CS No. 264/12 B. S. Gusain v. Abhishek Dubey Page 16 of 16