Delhi District Court
Sh. Ravinder Nath Chopra vs Sh. Mukesh Arora on 25 September, 2014
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRAL)11,DELHI
Suit No. 14/11
Unique Case ID No. 02401C0068902011
Sh. Ravinder Nath Chopra
S/o Sh. Ram Nath Chopra
R/o 25/3873, Reghar Pura,
Karol Bagh, New Delhi-110005. ..... Plaintiff
vs.
1 Sh. Mukesh Arora
S/o Sh. Surinder Pal
Prop. Of M/s. Suncity Electronics,
5/51, First Floor, W.E.A.
Karol Bagh, New Delhi-110005.
Another Address:-
F-7, Arya Samaj Road
Uttam Nagar, New Delhi-110059
2 Sh. Manpreet Singh Talwar,
S/o Not Known
C/o Sh. Mukesh Arora,
5/51, First Floor, W.E.A.
Karol Bagh, New Delhi-110005 ...... Defendants
Date of Institution of Suit : 17.02.2011
Date when reserved for orders : 23.09.2014
Date of Decision : 25.09.2014
JUGEMENT
1 Vide this judgment I shall decide a suit for recovery of possession,
Suit No. 14/11 Page no. 1/19
recovery of rent and damages / mesne profit filed by the plaintiff against the
defendants. The brief fact necessitated in filing the present suit are given as
under:-
2 That plaintiff is the owner, landlord of property bearing No. 5/51, first
floor WEA, Karol Bagh, New Delhi, 05. (Hereinafter shall be called suit
property). He inducted defendant no. 1 as tenant in respect of the suit
premises in the year 2004 on a monthly rent of Rs. 15,000/- per month. The
defendant no. 1 deposited a sum of Rs. 45,000/- as interest free security
which was to be refunded at the time of vacating the suit premises. The
tenancy of defendant no. 1 was for a period of 11 months.
3 The tenancy of defendant no. 1 has been renewed on 17.01.2008 for
further 11 months vide rent note dated 17.01.2008 on the monthly rent of Rs.
25,000/-. On 21.07.2009, a fresh registered lease deed for 11 months was
executed qua suit premises, whereby rent of the suit premises has been
enhanced to Rs. 35,000/- per month. As per clause 8 of the lease deed, the
defendant no.1 cannot sublet, assigned or part with the possession of the suit
premises. The defendant no. 1 also agreed as per clause 8 that in case he
fails to vacate the suit premises within the statutory period then he shall be
liable to pay damages for his use and occupation @ Rs. 3100/- per day till the
delivery of the possession.
4 The defendant no. 1 unauthorizedly occupied third room of the flat on
or about 18.10.2009 which was under the lock and key of plaintiff. The plaintiff
requested defendant no. 1 on various occasions to vacate the said room but
instead of vacating the said room, defendant no. 1 stopped paying the rent.
Suit No. 14/11 Page no. 2/19
The defendant no. 1 has failed to pay the rent w.e.f. from 15.10.2009. The
plaintiff is thus entitled to recover possession of the premises besides arrear
of rent @ Rs. 31000 per month w.e.f from 15.10.2009. The defendant no. 1
has violated the terms of Lease Deed, therefore, plaintiff served a legal notice
dated 31.08.2010 which has been duly served upon him. The defendant no.
1, however, neither sent any reply nor paid the rent.
5 The tenancy of the defendant no. 1 stood terminated by efflux of time
w.e.f. 14.10.2010 and thereafter he has become liable to pay damages /
mesne profit @ 3100 per day w.e.f. 15.05.2010. It is further averred that
defendant no. 1 appears to have unauthorizedly inducted defendant no. 2 in
the suit premises without the consent of the plaintiff. The said fact came to
the knowledge of the plaintiff when he received summons of a false suit filed
by defendant no. 1 against him. As per the plaintiff, both the defendants are
jointly and severally liable to pay damages/ mesne profit claimed in the suit.
On the basis of the above averment, present suit has been filed for
adjudication.
6 The summons of the suit has been duly served upon defendant no. 1
who appeared through Sh. S.K.Gupta, Advocate on 16.07.2011 as well as
19.07.2011, but he has not filed written statement despite opportunity nor
anybody appeared on behalf of the defendant no. 1 on 23.08.2011 thus vide
said order defendant no. 1 has been proceeded ex-parte.
7 The defendant no. 2 has appeared and filed written statement taking
preliminary objection that suit is not maintainable in the eyes of law; that
plaintiff has not paid the proper court fees; that suit is barred under Section
50 of Delhi Rent Control Act.
Suit No. 14/11 Page no. 3/19
8 On merit it is averred that defendant no. 2 is a tenant in the suit
property @ Rs.3000/- per month since January 2007 exclusive of electricity
and water charges for residential-cum-commercial purposes. Defendant no. 2
also paid a sum of Rs. 6,00,000/- to the plaintiff as interest free security which
was to be refunded at the time of vacation of the suit property. The plaintiff
did not issue any rent receipt despite various requests and demands.
Defendant no. 2 paid rent to the plaintiff by cash. It is further averred that on
27.09.2010, plaintiff came to the defendant and agreed to issue rent receipt
w.e.f. 01.10.2009, believing his representation, defendant no. 2 issued two
cheques dated 15.09.2010 and 04.10.2010 in the name of plaintiff qua rent of
20 months period.
9 Those cheques were duly encashed in his account. The defendant no.
2 has paid rent up to July , 2011. It is denied that the tenancy between
plaintiff and defendant no. 1 started w.e.f. 15.06.2009 for a period of 11
months. It is also denied that rent was settled @Rs 31000/- per month
exclusive of electricity and water charges. It is also denied that one room of
the suit premises was under the lock and key of plaintiff till 18.10.2009. It is
also denied that defendant no. 1 unauthorizedly occupied the said room by
breaking open lock of the plaintiff. All other averments have been denied, it is
prayed that suit be dismissed with cost.
10 The plaintiff has filed replication to the written statement filed by
defendant no. 2 thereby reiterated the averment made in the plaint and denied
the averment made in the written statement.
Suit No. 14/11 Page no. 4/19
11 On the basis of the pleadings of the parties, vide order date
23.05.2013, following issues have been framed for adjudication:-
1.Whether the plaintiff is entitled for possession with respect to premises No. 5/51, First Floor, W.E.A., Karol Bagh, New Delhi against the defendants? OPP
2. Whether the plaintiff is entitled for a decree of recovery of Rs. 13,03,300/- against the defendants? OPP
3. Whether the plaintiff is entitled for a decree of damages/ mesne profits, if so at what rate and for which period? OPP
4. Whether the plaintiff is entitled for interest, if so, for what rate and for which period? OPP
5. Whether the plaintiff has not valued the suit properly for the purpose of court fees? OPD
6. Whether defendant no. 2 is a tenant in the suit property? OPD2
7. Whether the suit filed by the plaintiff is barred under Section 50 of Delhi Rent Control Act? OPD2
8. Relief.
12 In order to prove his plea, plaintiff has examined himself as PW-1 and reiterated the averment made in the plaint in his examination in chief. PW-1 exhibited the Site Plan as Ex.PW-1/1, Lease Deed dated 21.07.2009 as Ex.PW-1/2, Rent Note dated 17.01.2008 as Ex.PW-1/3, Notice dated 31.08.2010 as Ex.PW-1/4, Postal Receipt is Ex.PW-1/5, AD Card is Ex.PW-1/6, UPC is Ex.PW-1/7, Copy of Tax Invoice No. 622 dated 01.10.2010 Suit No. 14/11 Page no. 5/19 is Ex.PW-1/8 and Statement of account is Ex.PW-1/9. PW-1 has been thoroughly cross examined by Ld. Counsel for the defendant no. 2.
13 In order to answer the claim of the plaintiff, DW-2 has examined himself as DW-1 and reiterated the averment made in the written statement in his examination in chief. DW-1 has been thoroughly cross examined by Ld. Counsel for the plaintiff.
14 I have heard Ld. Counsels for the parties and perused the pleadings, evidence and other material placed on record. My issue wise findings is as under:-
15 ISSUE NO. 1 Whether the plaintiff is entitled for possession with respect to premises No. 5/51, First Floor, W.E.A., Karol Bagh, New Delhi against the defendants? OPP ISSUE NO. 6 Whether defendant no. 2 is a tenant in the suit property? OPD2 ISSUE NO. 7 Whether the suit filed by the plaintiff is barred under Section 50 of Delhi Rent Control Act?
OPD2 Issue No. 1, 6 and 7 are taken together as they are interconnected. The plaintiff has taken a plea that he inducted defendant no.1 as tenant in the suit property in the year 2004 on a monthly rent of Rs. 15000/- per month for 11 months. The tenancy of defendant no. 1 renewed vide rent note dated 17.01.2008 for further 11 months on a monthly rent of Rs. 25,000/- per month and finally vide registered Lease Deed on 21.07.2009 whereby rent of the premises was settled @ Rs. 31000/- per month. As per the Lease Deed, the defendant no. 1 could not sub-let, assigned or part with the tenanted premises Suit No. 14/11 Page no. 6/19 but to the utter disregard of the said clause, the defendant no. 1 inducted defendant no. 2 without the consent of the plaintiff. He also failed to pay the rent w.e.f. 15.10.2009. Having left no alternative, the plaintiff served the Legal Notice dted 30.08.2010 upon defendant no. 1 which was duly served upon him. Despite the same defendant no. 1 neither replied the same nor paid the rent. The tenancy of defendant no. 1 stood terminated by efflux of time w.e.f. 14.05.2010 but defendants have not handed over possession of the suit premises.
16 The defendant no. 1 has not contested the suit despite service of the summons and has been proceeded Ex-parte vide order dated 23.08.2011.
17 The defendant no. 2 has taken a plea that he was inducted by the plaintiff as a tenant in the suit premises in January, 2007 on a monthly rent of Rs. 3,000/- per month. He also paid Rs. 6,00,000/- to the plaintiff as interest free security and has paid rent up till 2011. As per defendant, the suit is barred under Section 50 of Delhi Rent Control Act and this court has no jurisdiction.
18 In support of their plea plaintiff and defendant no. 2 have led their respective evidence.
19 An examination of the pleadings and evidence led on record shows that plaintiff has filed a suit for recovery of possession against the defendants on the ground that he inducted defendant no.1 as tenant in the suit premises initially in the year 2004 on a monthly rent of Rs. 15000/-per month. After the expiry of said period, the tenancy was renewed vide rent agreement dated Suit No. 14/11 Page no. 7/19 17.01.2008 Ex.PW1/2 for further period of 11 months on a monthly rent of Rs. 25,000/-. Finally the tenancy renewed vide registered Lease Deed dated 21.07.2009 Ex.PW1/2 whereby defendant no. 1 agreed to pay monthly rent of Rs. 35000/- per month. The said lease deed was for 11 months commencing from 15.06.2009 to 14.05.2010.
20 The plaintiff has reiterated the said fact during his evidence. The defendant no. 1 has not contested the suit filed by the plaintiff despite service and has been proceeded ex-parte vide order dated 23.08.2011. The defendant no. 1 has thus deemed to have admitted the case put forth by the plaintiff.
21 The defendant no.2 has claimed that he is the tenant in the suit premises since January, 2007. He was inducted by the plaintiff as a tenant on a monthly rent of Rs. 3000/- per month. He paid rent up till July 2011. He also taken a plea that he deposited a sum of Rs. 6,00,000/- in cash to the plaintiff as security which was to be refunded at the time of vacating the suit property. The plaintiff has controverted the said plea of defendant no. 2 and pleaded that defendant no. 2 is not a tenant nor he was inducted as a tenant by the plaintiff nor he deposited security of Rs. 6,00,000/- in cash with the plaintiff nor paid any rent up till July, 2011.
22 The defendant no. 2 is required to prove on record by leading cogent evidence that he was inducted as a tenant in the suit premises by plaintiff in January, 2007 on a monthly rent of Rs. 3000/- per month. The defendant no. 2, however, has not placed any material whatsoever on record to substantiate his plea. The defendant no. 2, during his cross examination has deposed that Suit No. 14/11 Page no. 8/19 he has no written document to show that he was inducted as a tenant in 2007 on a monthly rent of Rs. 3000/- per month. He has not filed any document to show that he paid rent to the plaintiff @ Rs. 3000/- per month since 2007. He denied that he has never paid rent to the plaintiff @ Rs.3000/- per month. The defendant no. 2 though claimed that he was inducted as a tenant in the suit premises by the plaintiff in January 2007 on a monthly rent of Rs. 3,000/- per month, however, he has not placed any material whatsoever on record to substantiate the said plea.
23 The defendant no. 2 in his cross examination has deposed that he is not aware if plaintiff had inducted defendant no. 1 as his tenant in the year 2004. He volunteered that he was in occupation prior to his entering into the suit premises. Defendant no. 2 has thus admitted that defendant no. 1 was in occupation of his suit premises prior to his possession. The plaintiff's plea is that he inducted defendant no. 1 as a tenant in suit premises and the last paid rent as per registered Lease Deed Ex.PW1/2 was Rs. 31,000/- per month. When plaintiff let out the suit property to defendant no. 1 vide registered Lease Deed Ex.PW1/2 on a monthly rent of Rs. 31,000/- per month, then how come he allowed defendant no. 2 to occupy the suit property on a monthly rent of Rs. 3000/- per month remained unanswered.
24 The premises which was capable of fetching rent of Rs. 15,000/- per month in 2004 and Rs. 25,000/- per month in 2008 as mentioned in the rent note Ex.PW1/3. No prudent person would allow his tenant to occupy that premises on a meager rent of Rs. 3000/- per month. The defendant no. 2 has claimed that he was inducted as a tenant on a monthly rent of Rs. 3000/- per month in January, 2007 and paid rent in cash but has failed to substantiate his Suit No. 14/11 Page no. 9/19 plea by leading cogent evidence on the basis of which it can be concluded that plaintiff inducted defendant no. 2 as his tenant in the suit premises on a monthly rent of Rs. 3000/- per month in January 2007.
25 The defendant no. 2 has further claimed that he paid a sum of Rs. 6,00,000/- in cash to the plaintiff as interest free security which was to be refunded at the time of vacating the suit premises. The said plea of defendant no. 2 has been controverted by the plaintiff in his replication.
26 The onus to prove the fact that defendant no. 2 paid Rs.6,00,000/- in cash to the plaintiff towards interest free security is upon him. The defendant no. 2 has not placed any material whatsoever on record on the basis of which it can be concluded that he had paid of Rs. 6,00,000/- in cash to the plaintiff. He has also not placed any material on record to show that Rs.6,00,000/- in cash was available with him in his bank account or he had arranged the said amount from some other source. No evidence in this regard has been placed on record.
27 The DW-1, during his cross examination, deposed that he has not filed any document on record to show that he paid a sum of Rs. 6,00,000/- as security to the plaintiff. He volunteered that said amount was paid in the presence of two witnesses namely Sher Singh and Shanky. The defendant no. 2 though has not placed any receipt on record to show that he paid Rs. 6,00,000/- in cash to the plaintiff as security as admitted by him during his cross examination. He, however, sought to explain that the said amount was paid by him in the presence of two persons namely Sher Singh and Shanky.
Suit No. 14/11 Page no. 10/1928 These two persons are thus the most material witnesses who could have substantiated the plea of defendant no. 2 that he paid a sum of Rs. 6,00,000/- in cash to the plaintiff. The defendant no. 2, however, has not examined these witnesses in support of his plea for the reason best known to them. The witnesses namely Sher Singh and Shanky in whose presence defendant no. 2 gave Rs.6,00,000/- in cash to the plaintiff were the material witnesses. The defendant no. 2 has failed to examine these witnesses and thus with held the material witnesses from the court. Therefore, an adverse inference is required to be drawn against defendant no. 2 to the effect that if these witnesses had been examined they would deposed against defendant no. 2.
29 The defendant no. 2 has not placed any material whatsoever on record on the basis of which it can be concluded that he paid a sum of Rs. 6,00,000/- in cash to the plaintiff as interest free security which was to be refunded at the time of vacation of the premises in question. The said plea taken by defendant no. 2 thus remained unsubstantiated and unproved. The defendant no. 2 has further taken a plea in the written statement that on 27.09.2010, plaintiff came to him and agreed to issue rent receipt w.e.f. 01.10.2009, on his assurance he issued two cheques dated 25.09.2010 and 04.10.2010 in the name of plaintiff towards the rent for 20 months period and those cheques were duly encashed in the account of the plaintiff.
30 The plaintiff has controverted the said plea in the corresponding para of his replication and pleaded that he has been running a business of surgical instrument and defendant no. 2 who had been introduced by defendant no. 1 purchased surgical instrument from the plaintiff for which he issued two Suit No. 14/11 Page no. 11/19 cheques for Rs. 30,000/- each. As per the plaintiff, those two cheques of Rs. 30,000/- each were not towards monthly rent but was paid by defendant no. 2 against goods purchased by him from the plaintiff.
31 In order to substantiate his plea defendant no.2 has examined himself as DW-1 and reiterated the said fact in his examination-in-chief. During cross examination, DW-1 denied that he purchased surgical instrument from the plaintiff vide invoice no. 622 Ex.PW1/8. He also denied that he paid two cheques of Rs. 30,000/- each in lieu of the payment qua of the said invoice. He stated that he has not received any goods against invoice Ex.PW1/8 though it is correct that CECT World Wide is his proprietorship concern. The defendant no. 2 has thus admitted that M/s. CECT is his proprietorship concern but has disputed that he purchased surgical instrument vide invoice Ex.PW1/8.
32 The plaintiff has examined himself as PW-1 and reiterated the plea taken by him in his replication. He has also exhibited tax invoice No. 622 dated 01.02.2010 for Rs. 60060/- as Ex.PW1/8 and statement of account as Ex.PW1/9. PW-1 has been thoroughly cross examined by Ld. Counsel for the plaintiff but his testimony made by him in para-11 of his examination remained uncontroverted and unchallenged. The defendant no. 2 has not disputed the testimony of PW-1 to the effect that defendant no. 2 purchased surgical instrument from him for which he issued two cheques of Rs. 30,000/- each. He has also not disputed that the bill was issued in this respect and the copy of the said invoice is Ex.PW1/8. The defendant no. 2 has thus admitted that he purchased surgical instrument from the plaintiff vide invoice Ex.PW1/8 and issued two cheques in order to make the payment qua those surgical instrument.
Suit No. 14/11 Page no. 12/1933 The above fact clearly shows that plaintiff has proved on record that he inducted defendant no. 1 as his tenant in the year 2004 on a monthly rent of Rs. 15000/- per month. His tenancy was renewed vide rent note Ex.PW-1/3 for further 11 months on a monthly rent of Rs. 25,000/- and finally vide registered Lease Deed dated 21.07.2009, Ex.PW1/2 on a monthly rent of Rs. 31,000/- per month. The plaintiff has further proved on record that defendant no. 1 violated the clause 6 & 8 of the said Lease Deed and he failed to pay rent qua the tenanted premises w.e.f. 15.10.2009 and sublet the tenanted premises to defendant no. 2. The plaintiff has further proved on record that tenancy of defendant no. 1 came to an end on 14.05.2010 by efflux of time. The plaintiff has further proved on record that he terminated the tenancy of defendant no.1 vide legal notice dated Ex.PW1/4 which was duly served upon him. Despite the service of the legal notice defendant no. 1 has failed to hand over the possession of suit premises.
34 The defendant no. 2 sought to raise a plea that he is claimed himself to be the tenant in the suit premises on a monthly rent of Rs. 3000/- per month, however, he has failed to substantiate his above plea taken by him in the written statement. The status of defendant no. 2 in the suit property is thus of an unauthorized occupant who is in occupation in the suit premises without any status.
35 In view of my above discussion, my issue wise findings is as under:- 36 ISSUE NO. 1 Whether the plaintiff is entitled for possession with respect to premises No. 5/51, First Floor, W.E.A., Karol Bagh, New Delhi against the defendants? OPP In view of the above facts and circumstances, I am of the considered Suit No. 14/11 Page no. 13/19 view that plaintiff has proved on record that he is the landlord of the suit premises. He has further proved on record that he let out the suit premises to defendant no. 1 vide rent note Ex.PW1/3 and finally vide registered Lease Deed dated 21.07.2009 Ex.PW1/2 for period of 11 months on a monthly rent of Rs. 31,000/-. The plaintiff has further proved on record that defendant no. 1 has violated clause 6&8 of the Lease Deed by parting with the possession of the tenanted premises to defendant no. 2 as well as by not making payment of monthly rent w.e.f. 15.10.2009. The plaintiff has further proved on record that he terminated the tenancy of defendant no. 1 vide Legal Notice Ex.PW1/4 which was duly served upon defendant no. 1, despite the service of Legal Notice defendant no. 1 has failed to vacate the suit premises thus made himself liable for it. The defendant no. 2 though claimed himself as tenant in the suit premises but has failed to substantiate the said plea. The plaintiff has successfully discharged the onus of Issue No. 1, same is accordingly decided in favour of the plaintiff.
37 ISSUE NO. 6 Whether defendant no. 2 is a tenant in the suit property? OPD2 In view of my discussion, I am of the considered view that defendant no. 2 has failed to prove on record that he was inducted as a tenant in the suit premises on a monthly rent of Rs.3000/- in January 2007. The defendant no. 2 has failed to discharge the onus of Issue No. 6, same is accordingly decided against defendant no.2.
38 ISSUE NO. 7 Whether the suit filed by the plaintiff is barred under Section 50 of Delhi Rent Control Act?
OPD2 In view of my finding on Issue No. 6, I am of the considered view that suit filed by the plaintiff is not barred under Section 50 of Delhi Rent Control Suit No. 14/11 Page no. 14/19 Act. The defendant no. 2 has failed to discharge the onus of Issue No. 7, same is accordingly decided against him.
39 ISSUE NO. 2 Whether the plaintiff is entitled for a decree of recovery of Rs. 13,03,300/- against the defendants? OPP ISSUE NO. 3 Whether the plaintiff is entitled for a decree of damages/ mesne profits, if so at what rate and for which period? OPP Issue no. 2 & 3 are taken together as they are interconnected. The plaintiff has claimed recovery of arrear of rent w.e.f. 15.10.2009 till 14.05.2010 i.e. for seven months on a monthly rent @ 31,000/- per month which is Rs. 2,17,000/-. He has also claimed mesne profit/ damages against both the defendants w.e.f. 15.05.2010 on ward @ Rs. 3100/- per day for the tenanted premises and of Rs. 900 per day for the room unauthorizedly occupied by defendant no. 1.
40 While deciding Issue No. 1, I have already held that plaintiff has proved on record that defendant no. 1 has failed to pay the monthly rent of the tenanted premises w.e.f. 15.10.2009 till the expiry of 11 months period i.e. up till 14.05.2010. The defendant no. 1 has failed to pay monthly rent for the period of seven months i.e. Rs. 2,17,000/- which he was under an obligation to pay. The defendant no. 1 is thus liable to pay a sum of Rs. 2,17,000/- to the plaintiff.
41 The plaintiff has claimed damages / mesne profit @ Rs. 4000/- per day i.e. Rs. 3100 for the tenanted premises at Rs. 900 for one room stated to have been unauthorizedly occupied by defendant no. 1. Mesne profits being in the Suit No. 14/11 Page no. 15/19 nature of damages, no invariable rule governing its award and assessment in every case can be laid down. One broad principle governing the liability for mesne profit is discernible from Section 2 (12) CPC which defines Mesne Profit to means: " those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
42 While deciding Issue No. 1, I have already held that the occupation of defendants in the suit premises is unauthorized after the termination of tenancy of defendant no. 1, thus they are liable to pay damages. The pliantiff has claimed mesne profit @ Rs. 4000/- per day. The claim of the plaintiff to recover mesne profit / damages @ Rs. 3100 per day is based upon clause 18 of the Lease Deed Ex.PW1/2 in which it is mentioned that if the lessee fails to vacate the tenanted premises within the stipulated period, then he shall pay damages @ Rs. 3100/- per day till the delivery of the possession. No doubt that vide clause 18 it was agreed between the plaintiff and defendant no. 1 that in case of default of delivery of possession after expiry of period of tenancy, the defendant no. 1 was to pay damages @ Rs. 3100/- per day. But the said rate of damages cannot be termed as pre-estimated damage prevailing qua the tenanted premises in the vicinity. The said clause appears to be a penalty clause which cannot be enforced as per Section 74 of Contract Act.
43 The plaintiff has not placed any material whatsoever on record to substantiate his plea that tenanted premises could have fetched rent @ Rs.
Suit No. 14/11 Page no. 16/194000/- per day at the time of filing of the suit or subsequently. No material whatsoever has been led on record in this regard. The last paid rent by defendant no. 1 as per Lease Deed Ex.PW1/2 was Rs. 31000/-. Thus, I am of the considered view that plaintiff shall be entitled to recover damages/ mesne profit against both the defendants jointly and severally @ Rs. 31,000/- per month w.e.f. 15.06.2010 till the actual delivery of physical possession of the suit property.
44 In view of the above facts and circumstances, I am of the considered view that plaintiff is entitled to recover arrear of rent of Rs. 2,17,000/- from defendant no. 1. The plaintiff is also entitled to recover mesne profit / damages from both the defendants jointly as well as severally @ Rs. 31000/- per month w.e.f 15.06.2010 till delivery of possession of suit premises. The plaintiff has thus successfully discharged the onus of Issue No. 2 & 3, both these issues are accordingly decided in favour of the plaintiff.
45 ISSUE NO. 4 Whether the plaintiff is entitled for interest, if so, for what rate and for which period? OPP The plaintiff has claimed interest @ 24% per annum over arrear of rent as well as of mesne profit/ damages. It is well settled law that interest over the arrear of rent and mesne profit can also be awarded in the interest of justice.
46 Taking into consideration the facts and circumstances of the case as well as prevailing economic scenario of the country, I am of the considered view that the interest of justice would be served, if plaintiff is awarded interest @ 12 % per annum over the arrear of rent as well as mesne profit from the Suit No. 14/11 Page no. 17/19 date of filing of the suit till the actual period. Issue no. 4 is accordingly decided in favour of the plaintiff.
47 ISSUE NO. 5 Whether the plaintiff has not valued the suit properly for the purpose of court fees? OPD The defendant no. 2 has taken a plea that plaintiff has not valued the suit properly for the purpose of court fees. The plaintiff has controverted the said plea in the corresponding para of replication.
48 The plaintiff has filed the suit for recovery of possession, recovery of rent and damages / mesne profit. He has valued the suit for the purpose of court fees in para-12 of the plaint in which plaintiff valued the suit for the purpose of recovery of possession @ Rs. 3,72,000/- i.e. 12 months rent of the tenanted premises. He also valued the suit for recovery of rent @ Rs. 2,17,000 and for recovery of damages / mesne profit @ Rs. 10,86,300/-. Thus total value of the suit has been fixed at Rs. 16,75,300/- on which requisite court fees of Rs. 19,000/- has been paid. The defendant no. 2 simply mentioned in the written statement that appropriate court fees has not been paid but he has not pointed out any deficiency in the court fees paid by the plaintiff.
49 In view of the above facts and circumstances, I am of the considered view that plaintiff has rightly valued the suit for the purpose of court fees and has paid the requisite court fees. The defendant no. 2 has failed to prove on record that plaintiff has not valued the suit properly for the purpose of court fees. The defendant no. 2 has thus failed to discharge the onus of Issue NO. 5, same is accordingly decided against the defendant.
Suit No. 14/11 Page no. 18/1950 RELIEF.
In view of the above, the suit filed by the plaintiff against the defendants is decreed with cost.
A decree for recovery of possession is passed in favour of the plaintiff and against the defendants with respect to the suit property bearing No. 5/51, First Floor, WEA, Karol Bagh, New Delhi as shown red in the site plan, Ex.PW1/1.
A decree for recovery of arrear of rent of Rs. 2,17,000/- is also passed in favour of the plaintiff and defendant no. 1 along with interest @ 12 % per annum (simple) from the date of filing of the suit till its actual realization.
A decree for mesne profit/ damages @ Rs. 31,000/- per month is also passed in favour of the plaintiff and against defendants w.e.f 15.05.2010 till the actual delivery of possession of the suit premises along with interest @ 12 % per annum simple from the date of filing of the suit till actual payment.
Plaintiff is directed to pay deficit court fees. Decree sheet be prepared on furnishing deficit court fees. File be consigned to record room after due compliance.
Announced in the open court (PITAMBER DUTT)
On 25.09.2014 Additional District Judge
Delhi
Suit No. 14/11 Page no. 19/19