Delhi District Court
Smt Kawal Ahuja vs Ravinder Singh on 22 March, 2024
IN THE COURT OF SH.AJAY GUPTA
DISTRICT JUDGE (COMMERCIAL COURT)-05
TIS HAZARI COURTS, WEST: DELHI
CNR No. DLWT01-003050-2019
Case No. CS(COMM)/120/2019
Smt.Kawal Ahuja
W/o Sh. Puran Chand Ahuja
R/o 35, Pusa Road, Karol Bagh
New Delhi-110005
.....PLAINTIFF
Versus
Shri Ravinder Singh
S/o Late Shri Avtar Singh
R/o 3260, Ground Floor
Ranjit Nagar
New Delhi-110008
Also at:
Shop No.7/1, Ground Floor
West Patel Nagar Market
New Delhi-110008
.....DEFENDANT
Date of institution of case : 18.04.2019
Date of arguments : 23.02.2024
Date of pronouncement of judgment : 22.03.2024
JUDGMENT
PLAINTIFF'S CASE
1. Plaintiff has filed the present suit for possession, recovery of arrears of rent and damages.
Case No. CS(COMM)/120/2019 Page No. 1 of 342. The plaintiff has inter-alia averred in the plaint that:-
(i) that plaintiff is the owner of the premises bearing no. 7/1 West Patel Nagar, New Delhi and plaintiff had let out to the defendant, one shop measuring 8'-
6"x20' situated on ground floor of the aforesaid premises (hereinafter referred as suit shop) for a period of 36 months starting from 01.07.2013 at monthly rent of Rs.18,000/-(rent was to be paid by 7th day of each English Calender Month) exclusive of electricity and other charges. The suit shop was let out by virtue of the lease deed (registered) dated 02.07.2013 and for running of readymade garments business. As per lease deed, rent was to be enhanced by 10% after expiry of 18 months. The aforesaid lease expired by efflux of time on 30.06.2016 and since then defendant has been holding over the suit premises as a statutory tenant.
(ii) that defendant has failed to pay the enhanced rent i.e. @ Rs.19,800/- p.m. w.e.f. January 2015. The defendant had belatedly paid rent for the month of April 2016 in the month of July 2018 and of May 2016 in January 2019 @ Rs.18,000/- p.m. The defendant paid the aforesaid delayed rent @ Rs.18,000/- p.m. Case No. CS(COMM)/120/2019 Page No. 2 of 34
(iii) that defendant has been provided with a sub meter and he has failed to pay the monthly electricity charges and he is in arrears of electricity dues of more than Rs.30,000/- approximately.
(iv) that plaintiff approached the defendant to clear the arrears of rent and to pay the rent @ Rs.19,800/- p.m w.e.f January 2015 but defendant neither cleared the arrears of rent nor paid the enhanced rent w.e.f January 2015. Thus, vide legal notice dated 29.01.2019, plaintiff demanded the arrears of rent alongwith enhanced rent and also informed the defendant that his tenancy has been terminated and defendant was asked to vacate and hand over the possession of the suit premises to the plaintiff within 15 days of the receipt of the notice.
(v) that despite service, neither defendant replied nor complied with the legal notice and therefore, he rendered himself liable to pay damages (i.e. penalty of Rs.1000/- per day) in terms of clause 15 of lease deed. Thus, it is stated that defendant is liable to pay damages @ Rs.30,000/- per month w.e.f. 01.07.2016 to Feb.2019 amounting to Rs.9,60,000/-.
Case No. CS(COMM)/120/2019 Page No. 3 of 34(vi) Thus, on the basis of aforesaid averments, plaintiff has prayed for a decree of possession qua the suit shop as well as recovery of arrears of rent of Rs.23,400/- (rent of June 2016 @ Rs.19,800/- alongwith difference of Rs.1800/- p.m. towards the enhanced rent for the month of April and May 2016). Plaintiff has also prayed for recovery of damages of Rs.9,60,000/-. Besides, plaintiff has also claimed damages @ Rs.30,000/- p.m from the date of filing of the suit till possession of the suit shop is handed over to the plaintiff.
DEFENDANT'S CASE
3. Defendant filed his Written Statement and opposed the claim of the plaintiff on the basis of following averments:-
Preliminary Objections
(i) that the defendant is not in default of making payment of rent, however, he is entitled to relief u/s 114 of Transfer of Property Act.
(ii) that the defendant has denied the execution of the aforesaid lease deed as well as receipt of the legal notice for demand/enhancement of rent.
(iii) that the lessor has received the rent of Rs.18,000/- p.m. even after expiry of lease deed and Case No. CS(COMM)/120/2019 Page No. 4 of 34 defendant has paid rent upto August 2019, thus, there is no cause of action to initiate the present proceedings against the defendant.
Reply on Merits
(iv) that it was agreed between the lessor and the defendant that rent of suit property would not be increased and the entire arrears of rent has already been cleared and nothing is due and payable by defendant to the lessor. It is stated that on request of plaintiff, defendant paid their (plaintiff's) electricity bills of lakhs of rupees which has been adjusted towards the rent of the suit premises. The lessor had received the rent from the defendant in cash or through cheque but no rent receipt was ever issued. It is further stated that it was agreed between the parties that defendant will remain a tenant in the suit shop @ Rs.18,000/- p.m rent.
(v) On the basis of the aforementioned averments, the defendant has prayed for dismissal of the suit.
4. On the basis of the pleadings of the parties following issues were framed on 03.05.2023:-
ISSUES
1. Whether the plaintiff is entitled to a decree for ejectment/possession of the premises Case No. CS(COMM)/120/2019 Page No. 5 of 34 bearing no.7/1, Ground Floor, West Patel Nagar Market, New Delhi? (OPP)
2. Whether the plaintiff is entitled to a decree for recovery of Rs.23,400/- towards the rent for the month of June 2016 @ 19,800/-
alongwith difference of Rs.1,800/- towards enhanced rent for the month of April & May '2016 respectively (i.e.Rs.1900 + 3600/-)? (OPP)
3. Whether the plaintiff is entitled to a decree for recovery of Rs.9,60,000/- towards damages for the month of July'2016 upto February '2019 @ Rs.30,000/- per month (i.e. for 32 months) and pendentelite till the actual handing over the possession of the demised premises to plaintiff? (OPP)
4. Whether the defendant is not in default of payment of rent and is entitled to a relief under section 114 of Transfer of Property Act? (OPD)
5. Whether defendant has not executed lease deed dated 2.7.2013? (OPD)
6. Whether no notice of demand or enhancement of rent was received by the defendant? (OPD)
7. Whether the defendant had paid monthly rent @ Rs.18,000/- per month up to August '2019? (OPD)
8. Relief Case No. CS(COMM)/120/2019 Page No. 6 of 34 EVIDENCE 5.1 In order to prove its case, plaintiff has examined her SPA Sh.Puran Chand Ahuja (the husband of plaintiff) as PW1. PW1 has filed his affidavit Ex.PW1/A on the similar lines of the averments made in the plaint. Besides his affidavit (Ex.PW1/A), PW1 has tendered the following documents in his evidence:-
(a) Original Special Power of Attorney dated 11.03.2019 as Ex.PW1/1.
(b) Original Lease Deed dated 02.07.2013 as Ex.PW1/2.
(c) Site plan of the premises in question as Ex.PW1/3 (Mode of proof of the site plan was objected to by the Ld. Counsel for the defendant).
(d) Office copy of legal notice dated 29.01.2019 as Ex.PW1/4.
(e) Postal receipts as Ex.PW1/5 and Ex.PW1/6.
(f) Original envelope containing the notice received back exhibited as Ex.PW1/7 but was de-exhibited as the same has not been filed.
(g) Postal tracking report of the legal notice as Ex.PW1/8 (Since certificate u/s 65-B of Indian Evidence Act was not filed in support of this document, its exhibition was objected to by the Ld. Defence Counsel).
(h) Non-starter report issued by DLSA/Central dated 09.04.2019 as Ex.PW1/9.
Case No. CS(COMM)/120/2019 Page No. 7 of 345.2 In order to bring on record the registered lease deed Ex.PW1/2, plaintiff examined PW2 Sh. Devender Kumar, an official from the office of Sub Registrar Office, Basai Darapur, Delhi. This witness placed on record the certified copy of Registered Lease Deed as Ex.PW2/1 (Colly.) (OSR).
5.3 Plaintiff examined PW3 Sh. Sardar Singh, the Public Relation Inspector from Post Office, Civil Lines to bring on record the proof of delivery of the legal notice which was sent to the defendant at his residential address as well as at the address of suit shop. As per plaintiff, on 29.01.2019, the legal notice was sent to the defendant by speed post and PW3 was examined to bring on record the proof of delivery of the aforesaid legal notice. PW3 deposed that the relevant record has already been weeded out as limitation for keeping the record related to the delivery reports of the speed post is 6 months from the date of dispatch and the online record of the same is maintained for two months. PW3 deposed that Ex.PW1/8 (On-line Tracking report) has been uploaded by the concerned department.
5.4 Thereafter, plaintiff examined PW4 Sh. Pankaj Kumar, the Manager of Canara Bank, Karol Bagh to bring on record the bank statement of the plaintiff pertaining to the Case No. CS(COMM)/120/2019 Page No. 8 of 34 period w.e.f. 01.4.2013 to 30.05.2023 Ex.PW4/1 (Colly.). Thereafter, plaintiff closed her evidence.
5.5 Defendant examined himself as DW1 and he brought on record his evidence by way of affidavit (Ex.DW1/A). DW1 tendered the following documents in his evidence:-
i) Copy of receipt issued by Sh Puran Chand Ahuja to the defendant as Ex.PW1/D1.
ii) Copy of bank statement of defendant as Ex.PW1/D2
iii) Copy of affidavit of Sh Puran Chand ahuja as Ex.PW1/D3.
iv) Copy of statement of account of the plaintiff as Ex.PW4/1 (Colly.) Thereafter, DE was closed and the case was fixed for final arguments.
6. I have heard the Ld. Counsel for the plaintiff as well as Ld. Counsel for the defendant and perused the record carefully. My issues wise finding is as under:-
ISSUE NO.1 & 51. Whether the plaintiff is entitled to a decree for ejectment/possession of the premises bearing no.7/1, Ground Floor, West Patel Nagar Market, New Delhi?
(OPP) Case No. CS(COMM)/120/2019 Page No. 9 of 34
5. Whether defendant has not executed lease deed dated 2.7.2013? (OPD) 6.1 The onus to prove the Issue no.1 was on plaintiff and Issue no.5 on the defendant. Both these issues are interconnected and thus, the same are taken up together. In order to claim possession of suit shop, plaintiff was required to prove the following requisites:-
(i) that plaintiff is the landlord,
ii) that rent of the suit shop is above Rs.3500/- p.m.,
iii) that tenancy of defendant has been terminated vide legal notice Ex.PW1/4.
6.2 In order to prove her claim qua the possession of the suit shop, plaintiff examined her husband/SPA Sh. Puran Chand Ahuja as PW1. Plaintiff has claimed that she had let out the suit shop to the defendant by virtue of a lease deed Ex.PW1/2, for a period w.e.f 01.07.2013 to 30.06.2016, at the monthly rent of Rs.18,000/-. In order to further prove the execution of the aforesaid lease deed, plaintiff summoned PW2 Sh. Devender Kumar, the official concerned from Sub Registrar Office, Basai Darapur, Delhi. This witness has brought on record the certified copy of the lease deed as Ex.PW2/1(Colly.). In regard to the execution of the lease deed, PW1 has made the similar statement in his affidavit that the suit shop was let out to the defendant by virtue of Ex.PW1/2. Before making any discussions as to how the suit shop was let out by the plaintiff to the defendant, it is necessary to discuss Case No. CS(COMM)/120/2019 Page No. 10 of 34 the defence taken by the defendant in his written statement qua the creation of tenancy of the suit shop in his favour. It is clear from the perusal of the written statement that defendant has simply denied all the averments made by plaintiff qua the contentions of the plaintiff in regard to the letting out of suit shop to him by virtue of lease deed Ex.PW1/2. Defendant has also denied the execution of the lease deed. In case, he was not let out the suit shop by virtue of Ex.PW1/2 then defendant was bound to specify as to when and how he was let out the suit shop by the plaintiff. He was required to specify all the terms and conditions of the lease in case, he was not let out the suit shop on the terms and conditions mentioned in Ex.PW1/2. Defendant is completely silent on this aspect and simply stated that the rent of the suit premises is Rs.18,000/- p.m. Thus, it is clear from the stand taken by the defendant in the written statement that the defendant has not specifically denied the execution of the lease deed, therefore, in view of the settled law, same should be deemed to have been admitted by the defendant.
6.3 Furthermore, during the cross examination of PW1, defendant has again not pointed out as to what were the terms and conditions of the lease, if, he was not let out the suit shop on the basis of Ex.PW1/2. It is also clear from the cross examination of PW1 that defendant did not dispute the execution of the lease deed Ex.PW1/2 and rather it is clear from the cross examination that firstly, defendant admitted the Case No. CS(COMM)/120/2019 Page No. 11 of 34 execution of lease deed and secondly, defendant, introduced altogether a new defence during cross examination of PW1. Here, defendant took a defence that the lease deed (Ex.PW1/2) was got executed on the pretext of issuing a registered NOC for the purpose of installation of a new separate electricity meter in the tenanted premises. Thus, it is clear from this particular cross examination that defendant has accepted the execution of the lease deed, however, tried to introduce a new defence which is not legally permissible as it was not originally taken by the defendant in the WS. It is further clear from the cross examination of defendant/DW1 that during his cross examination, he clearly admitted the execution of lease deed. Thus, in view of these discussions, it is clear that the plaintiff had let out the suit shop to the defendant by virtue of the lease deed Ex.PW1/2, hence, both the parties are bound by the terms and conditions specified in this lease deed.
6.4 It is clear from the perusal of aforesaid registered lease deed that the period of tenancy was from 01.07.2013 to 30.06.2016 and it is clear that the lease came to an end by efflux of time on 30.06.2016. It is undisputed that after expiry of the aforesaid lease, no fresh lease deed was executed between the parties and even after expiry of the lease, defendant is in possession of the suit shop and plaintiff had been receiving rent @ Rs.18,000/- p.m. from the defendant (the claim of the plaintiff qua the difference of the enhanced rent as well as qua the non payment of two month's rent will Case No. CS(COMM)/120/2019 Page No. 12 of 34 be dealt with separately). Thus, under these circumstances, it is clear that the defendant was the tenant in the suit shop by holding over which tenancy is governed by section 116 of Transfer of Property (hereinafter referred as T.P.Act) Act which is reproduced as under:-
116. Effect of holding over.--
If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under- lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.
6.5 Thus, the tenancy of defendant is to be treated as month to month tenancy and therefore, same could have been terminated by the plaintiff by issuance of 15 days notice as provided in Section 106(1) of T.P.Act.
6.6 In regard to termination of the tenancy, PW1 deposed that plaintiff served the defendant with the legal notice Ex.PW1/4 by virtue of which the arrears of rent as well as damages was demanded from the defendant besides terminating the tenancy of the defendant after expiry of 15 days of service of the notice. As per plaintiff, the said legal notice was sent at the address of the suit shop as well as at the Case No. CS(COMM)/120/2019 Page No. 13 of 34 residential address of the defendant and defendant was very well served at the address of the suit shop. PW1 has also brought on record both the postal receipts of the legal notice as Ex.PW1/5 and Ex.PW1/6 alongwith its tracking report Ex.PW1/8. Plaintiff has not filed any certificate u/s 65-B of Indian Evidence Act in support of tracking report, therefore, the same cannot be taken into consideration. Thus, it is to be seen whether defendant was served with the aforesaid legal notice. In his WS, defendant has denied the service of legal notice, however, neither in the WS nor during the cross examination of PW1, the service of aforesaid legal notice has been specifically denied. Defendant did not deny the correctness of the addresses (mentioned in the legal notice) where the legal notice was sent. It is clear from the perusal of the record that defendant has been served with the summons of the suit at the same very addresses mentioned in the legal notices. It is also clear that in his WS, defendant has mentioned the same address as his residential address which has been mentioned in the legal notice. Thus, it is clear that the legal notice was sent to the defendant at his correct addresses and therefore, in terms of section 27 of General Clauses Act, the legal notice should be assumed to have been served upon the defendant at the address of suit shop. This presumption is a rebutable presumption however, defendant has not brought on record any material to rebut this presumption. In this regard, this Court is supported by the Judgement of Hon'ble High Court titled as M/s Jeevan Diesels & Electricals Ltd. Vs. M/s Case No. CS(COMM)/120/2019 Page No. 14 of 34 Jasbir Singh Chadha (HUF) & Anr. (RFA 179/2011). The relevant para of the said Judgement is reproduced as under:-
"7. The second argument that the legal notice dated 15.7.2006 was not received by the appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows:-
(i) The respondents/plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.7.2006 as Ex.PW1/3 and with respect to which the registered receipt, UPC and AD card were exhibited as Ex.PW1/4 to Ex.PW1/6. The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the respondents/plaintiffs led evidence and duly proved the service of legal notice, the appellant/defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address.
Admittedly, the appellant/defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the appellant would not have ordinarily helped the appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in arriving at a finding that the legal notice dated 15.7.2006 was duly served upon the appellant resulting in termination of the tenancy.
6.7 Thus, under these circumstances, it is clear that defendant was duly served with the legal notice and therefore, it is held that the tenancy of the defendant was terminated by the plaintiff by virtue of the aforesaid notice. The notice was dispatched on 29.01.2019, thus, it can be assumed to have been served within 4-5 days of the dispatch. Thus, defendant is Case No. CS(COMM)/120/2019 Page No. 15 of 34 assumed to have been served on 02.02.2019 and therefore, it is clear that the tenancy of defendant stood terminated w.e.f. 18.02.2019 i.e. after 15 days of service.
6.8 Furthermore, it is also well settled law that the filing of the suit itself can be treated to be notice of termination of tenancy. In this regard, this Court is supported by the Judgement of Hon'ble High Court titled M/s Jeevan Diesels & Electricals Ltd. (supra). The relevant para is reproduced as under:-
"7. The second argument that.....
(ii) The Supreme Court in the case of Nopany Investments (P)Ltd. Vs.Santokh Singh (HUF) 2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant.
6.9 In view of these discussions, it is held that the tenancy of defendant has been duly terminated and therefore, plaintiff is entitled to the decree of possession of the suit shop as depicted in the the site plan Ex.PW1/3.
6.10 Before concluding, some relevant aspect of the matter raised by the defendant in regard to the site plan of the suit shop are also required to be discussed. Defendant has Case No. CS(COMM)/120/2019 Page No. 16 of 34 denied the correctness of the site plan of the suit shop Ex.PW1/3. At the time of tendering of site plan also, the objection to its mode of proof was raised. It is clear from the WS of the defendant that defendant has simply denied the correctness of the site plan however, neither any anomaly in the site plan has been pointed out by the defendant nor defendant has filed any site plan pertaining to the suit shop. In case, there was any discrepancy, the defendant either ought to have pointed the same or ought to have brought on record the correct site plan. However, defendant has not filed any site plan showing the correct position of the suit shop (if the same has not been depicted correctly in the site plan Ex.PW1/3 filed by the plaintiff). In this regard the provision of Order VII Rule 3 CPC are necessary to be discussed which reads as under:-
"3. Where the subject matter of the suit is immovable property-
where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers."
6.11 Thus, it is clear that the description/particulars of the suit property is to be mentioned in a manner so that it can be easily identified and this particular provision makes it clear that the filing of site plan is not mandatory in a suit for recovery of possession.
Case No. CS(COMM)/120/2019 Page No. 17 of 346.12 It is clear from the perusal of the plaint that plaintiff has specified all the relevant particulars of the suit shop. As per plaint, size of the suit shop is 8'-6"x20' and it is situated on the ground floor of the premises bearing no.7/1, West Patel Nagar Market, New Delhi. It is further clear from the WS that these particulars of the suit shop regarding its measurement, location and address have not been disputed by the defendant. Thus, it is clear that the plaintiff has mentioned the correct particulars of the suit shop in the plaint. It is also clear that defendant was served with the summons of the present suit at the address of the suit shop also, which clearly shows that the correct address of the suit shop has been mentioned and process server was able to easily identify and access the address of the suit shop. Thus, it is clear that complete and correct particulars of the suit shop have been mentioned in the plaint.
6.13 As far as the correctness of the site plan is concerned, it is clear that defendant has simply denied its correctness, however, he has neither specified the reasons for its incorrectness nor has filed any site plan to show the correct position of the suit shop. Thus, under these circumstances, the site plan filed by the plaintiff should be assumed to be correct as per site. In this regard, this Court is supported by the Judgement of Hon'ble High Court titled Babu Lal Vs. Atul Kumar & Others reported as 2014(7) AD Delhi 128.
Case No. CS(COMM)/120/2019 Page No. 18 of 346.14 Thus, in view of the aforesaid facts and circumstances, the site plan filed by the plaintiff should be accepted to be correct site plan even though the draftsman who prepared the site plan has not been examined by the plaintiff. Thus, it is held that plaintiff has duly terminated the tenancy of defendant, hence plaintiff is entitled to possession of the suit shop as specified in site plan Ex.PW1/3. This issue is decided accordingly.
ISSUE NO.3
3. Whether the plaintiff is entitled to a decree for recovery of Rs.9,60,000/-
towards damages for the month of July'2016 upto February '2019 @ Rs.30,000/- per month (i.e. for 32 months) and pendentelite till the actual handing over the possession of the demised premises to plaintiff? (OPP) 7.1 The onus to prove this issue was on the plaintiff. Plaintiff has claimed damages @ Rs.30,000/- p.m. w.e.f July 2016 to February 2019 which comes to Rs.9,60,000/-. Besides, plaintiff has also claimed damages pendentelite and till the time defendant actually hands over the possession of the suit shop to her. In order to claim damages @ Rs.30,000/- p.m. plaintiff has relied upon clause 15 of the lease deed Ex.PW1/2. As per plaintiff, after the expiry of lease deed, defendant is entitled to damages @ Rs.1000/- per day in terms of clause 15 of the lease deed. It is undisputed that after expiry of the lease, plaintiff continued to accept rent from the defendant @ Case No. CS(COMM)/120/2019 Page No. 19 of 34 Rs.18,000/- p.m (the entitlement of the plaintiff to seek the actual rent will be discussed subsequently). Thus, defendant is to be termed as a tenant by holding over in terms of Sec. 116 of T.P Act and therefore, his possession cannot be treated to be unauthorized. In order to claim the damages from the defendant w.e.f July 2016, the plaintiff was required to establish that she terminated the tenancy of the defendant immediately after expiry of the lease deed. It is clear from the averments of the plaint that admittedly, plaintiff terminated the tenancy of the defendant through legal notice Ex.PW1/4. Thus, under these circumstances, after expiry of the lease deed, w.e.f July 2016, the plaintiff is only entitled to the rent either agreed between them through previous lease deed or decided by a further mutual agreement. It is not the case of the plaintiff that after expiry of lease, some other amount of rent was fixed as monthly rent which is different from the amount mentioned in the lease deed Ex.PW1/2. Thus, under these circumstances, the plaintiff is not entitled to any damages as claimed and qua this period, the plaintiff will only be entitled to the contractual rate of rent.
7.2 Now, it is to be seen as to what was the applicable rate of rent during the aforesaid period. It is clear from the stipulation mentioned at sr.no.2 that rent of the suit shop was to be enhanced by 10% after 18 months from the starting point (01.07.2013) of the lease. Thus, w.e.f 01.01.2015, the rent of the suit shop was to be enhanced to Rs.19,800/-p.m and Case No. CS(COMM)/120/2019 Page No. 20 of 34 therefore, defendant was liable to pay the enhanced rent with effect from that very date, however it is undisputed that defendant has been paying rent at the rate of Rs.18,000/-p.m. since the inception of tenancy. Though, the defendant did not pay the enhanced rent neither during subsistence of lease period nor after its expiry, however, defendant shall always be bound by the agreed terms and conditions of the lease deed. Thus, it is held that the plaintiff is entitled to receive the rent from the defendant @ Rs.19,800/- w.e.f 01.01.2015. It is undisputed that defendant has paid the rent pertaining to the period prior to filing of the present suit and he has also been paying rent @ Rs.18,000/- p.m even after filing of the present suit. There is a dispute about non payment of rent for the period of one month only (of the month of June 2016) about which separate discussions have been made while deciding Issue no.2 which has been framed in this regard. As per defendant, he has paid entire due rent and he is not in the arrears of any rent including the rent of June 2016, however, one thing is clear that admittedly, even as per defendant, he had been paying rent @ Rs.18,000/- p.m only thus, irrespective of the fact whether defendant has paid the rent of June 2016 or not, it is clear that the plaintiff is entitled to the amount of Rs.1800/- p.m. (the difference between the rent paid i.e. Rs.18,000/- and actually due i.e. Rs.19,800/-) w.e.f. April 2016 till the date of termination (18.02.2019) of tenancy of defendant. Though the plaintiff is entitled to the amount of Rs.1800/-p.m. w.e.f 01.01.2015, however, plaintiff is entitled Case No. CS(COMM)/120/2019 Page No. 21 of 34 to the recovery of the aforesaid difference only for the preceding three years of the filing of the present suit. The present suit has been filed in the month of April 2019, therefore, plaintiff is entitled to have the aforesaid balance amount of unpaid rent from the defendant only w.e.f April 2016. In view of these discussions, it is held that the plaintiff is not entitled to the damages @ 30,000/- w.e.f Feb.2016 and it is held that plaintiff was entitled to receive the rent @ Rs.19,800/- p.m w.e.f. 01.01.2015 and accordingly, plaintiff is awarded the amount of Rs.1800/- p.m. w.e.f April 2016 to 17.02.2019.
7.3 As already discussed that the tenancy of defendant stood terminated w.e.f 18.2.2019 and from the aforesaid date the status of defendant in the suit premises is of an unauthorized occupant and therefore, he is liable to pay damages to the plaintiff. It is undisputed that defendant has been continuously paying an amount of Rs.18,000/- p.m and he has paid the said amount even after the service of legal notice. It is undisputed that even after service of notice of termination, defendant continued to occupy the suit shop, therefore, the aforesaid amount paid by the defendant to the plaintiff after termination of his tenancy cannot be considered towards the payment of rent as the possession of defendant w.e.f 18.02.2019 is unauthorized qua the suit shop and therefore, in view of the settled law the amount of Rs.18,000/- received by the plaintiff is to be considered as damages/use Case No. CS(COMM)/120/2019 Page No. 22 of 34 and occupation charges and not as rent. Furthermore, acceptance of this amount also does not amount to renewal of the lease as plaintiff was/is entitled to the said amount as the defendant continued to occupy the suit shop even after termination of the tenancy. In this regard, this court is supported by the Judgement of Hon'ble High Court titled Amresh Bajaj Vs. National Hydro Electrical Power Corporation reported as 2018 (2) Rent LR 273.
7.4 As discussed, the plaintiff has claimed damages @ Rs.1000/- per day on the basis of clause 15 of lease deed Ex.PW1/2, however, it is clear that the said lease deed already stood expired and prior to the termination, the tenancy of defendant was governed by the provisions of Section 116 of T.P. Act., therefore, defendant cannot be said to be bound by the aforesaid clause. Thus, in order to claim, the aforesaid damages, the plaintiff was required to establish on record that similarly situated shop can fetch rent of Rs.30,000/- p.m., however, it is clear from the record that the plaintiff has not brought on record any evidence in this regard. Thus, in the absence of any relevant material, plaintiff can be said to be entitled to the damages at the same rate equivalent to rent lastly paid/entitled. Keeping in view of these facts and circumstances, the defendant is directed to pay to the plaintiff, the damages at the rate of Rs.19,800/- w.e.f 18.02.20219 till handing over the possession of the suit premises. The defendant shall be entitled to the adjustment of the amount Case No. CS(COMM)/120/2019 Page No. 23 of 34 paid by him qua the use and occupation charges during the aforesaid period. Issue no.3 is disposed off accordingly.
ISSUE NO.6
6. Whether no notice of demand or enhancement of rent was received by the defendant? (OPD)
8. This issue was framed on the aforesaid plea raised by the defendant. Defendant claimed that he had not received any notice of demand or enhancement of rent. As discussed while deciding Issue no.1 & 3 that firstly, as far as the enhancement of rent (w.e.f 01.01.2015) is concerned, no notice was required to be issued as stipulation qua the enhancement of 10% rent after a period of 18 months of the inception of the lease was already there in the lease deed itself to which both the parties are/were bound. Thus, as far as the payment of rent @ Rs.19,800/- w.e.f 01.01.2015 is concerned, defendant was liable to pay the same without any notice qua the same. In regard to the demand of rent, it is clear that plaintiff demanded the arrears of rent of June 2016 as well as damages @ Rs.30,000/- p.m. w.e.f. July 2016. As already discussed, the defendant was not liable to pay the damages @ Rs.30,000/- however, defendant was liable to pay the rent at the rate of Rs.19,800/- w.e.f 01.01.2015 therefore, after receipt of the legal notice Ex.PW1/2, the defendant ought to have paid the balance (difference) amount of rent as well as defendant ought to have paid the use and occupation charges @ Rs.198,00/-
Case No. CS(COMM)/120/2019 Page No. 24 of 34p.m. after termination of his tenancy. Thus, it is clear that the defendant had raised demand of arrears of rent through legal notice Ex.PW1/2. This issue is decided accordingly.
ISSUE NO.2 & 72. Whether the plaintiff is entitled to a decree for recovery of Rs.23,400/- towards the rent for the month of June 2016 @ 19,800/- alongwith difference of Rs.1,800/- towards enhanced rent for the month of April & May '2016 respectively (i.e.Rs.1900 + 3600/-)? OPP
7. Whether the defendant had paid monthly rent @ Rs.18,000/- per month up to August '2019? (OPD)
9. Both these issues are taken up together as they are interconnected. Plaintiff has claimed recovery of arrears of rent of June 2016 and according to defendant he is not in arrears of rent and he has already paid monthly rent @ Rs.18,000/- till August 2019. As per plaintiff, defendant did not pay rent for the month of June 2016, therefore, plaintiff sought recovery of aforesaid unpaid rent. The onus has been laid on the plaintiff to prove this issue and plaintiff has averred in the plaint that defendant did not pay the rent of June 2016 and PW1 also deposed and reiterated about the same and claimed the aforesaid arrears of rent, thus, here the onus gets shifted upon the defendant to establish that rent for the said period was paid by him to the plaintiff. Defendant has claimed that he has paid the entire rent either through cheque or by Case No. CS(COMM)/120/2019 Page No. 25 of 34 cash. It is clear from the cross examination preferred by Ld. Counsel for the defendant that entire endeavour of defendant has been to establish that sometime defendant has also paid the rent in cash against which no rent receipt was issued by the plaintiff, however, this will not suffice and in order to prove the payment of the rent of June 2016, the defendant was required to firstly furnish the complete particulars as to how and on which date the rent of the said period was paid by the defendant to the plaintiff. Defendant has not brought on record any document in this regard. Moreover, no specific cross examination of PW1 has been conducted on this aspect by putting to PW1 that rent of June 2016 was paid by the defendant to the plaintiff on a particular date and time. PW1 was also not cross examined on behalf of the defendant on the aspect as to whom the defendant had paid the aforesaid rent. Besides, it is clear that prior to filing the suit, the defendant was served with legal notice Ex.PW1/2 by virtue of which his tenancy was terminated. Besides, termination of tenancy of defendant, plaintiff had demanded damages alongwith rent for the month of June 2016. It is undisputed that defendant did not send any reply to the said legal notice rather defendant denied service of the said legal notice. Thus, it is clear that in case, the defendant would have already paid the rent of June 2016, he would have immediately rebutted the same through his reply and defendant would have also specified the particulars of the said payment in his WS. Thus, under these circumstances, it is held that the defendant has failed to establish that he had paid Case No. CS(COMM)/120/2019 Page No. 26 of 34 the rent of June 2016 to the plaintiff. Hence, plaintiff is entitled to the arrears of Rent of the month of June 2016 i.e. Rs.19,800/-.
9.1 Though, the Issue no.7 has been framed that whether defendant had paid the rent till August 2019 @ Rs.18,000/- p.m, however, it is clear from the record that the payment of Rs.18,000/- p.m. is undisputed except the payment of rent for the period of June 2016. In regard to the rent for June 2016, it has already been held while deciding Issue no.2 that defendant is in arrears of rent of June 2016. Both these issues are decided accordingly.
ISSUE NO.4
4. Whether the defendant is not in default of payment of rent and is entitled to a relief under section 114 of Transfer of Property Act? (OPD) 10.1 The onus to prove this issue was on the defendant. Defendant has contended that though he is not in default of payment of rent but still entitled to a relief u/s 114 of T.P.Act. In order to analyze the aforesaid defence of the defendant, the legal position related to section 114 of T.P. Act is required to be discussed.
10.2 It has been held by the Hon'ble Rajasthan High Court in the case titled as Ramakant Vs. Om Prakash, reported as 2016(3) LJR 58 that in order to claim relief u/s Case No. CS(COMM)/120/2019 Page No. 27 of 34 114 of TP Act, the defendant/ tenant is required to firstly establish on record that the tenancy is governed by provision of Section 111(g) of T.P.Act. Sec.111(g) of T.P.Act is reproduced as under:-
111. Determination of lease.--
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or 10.3 Thus, after tenant establishes that there is a forfeiture clause in the lease then it is to be seen whether the suit for possession has been filed after the tenancy of the tenant has been determined for non payment of rent. It has been held by Hon'ble Rajasthan High Court in the case titled as Bhagwati Lal Vs. Ghanshyam Das reported as 2017(1) DNJ 459 that in case, the tenancy has been determined for non payment of rent then the tenant has an option to exercise his right u/s 114 T.P.Act and for this purpose, the defendant, at the time of first hearing of the suit, has to pay to the landlord, the entire arrears of rent alongwith interest accrued thereon alongwith cost of the suit. The provisions of Section 114 reads as under:-
"114. Relief against forfeiture for non-payment of rent.--
Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, Case No. CS(COMM)/120/2019 Page No. 28 of 34 together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred."
10.4 Now it is to be seen whether all the aforesaid requisites are available in the present case. It is clear from the lease deed Ex.PW1/2 that as per clause 15, the plaintiff (landlord ) had a right to terminate the tenancy of the defendant for non payment of rent, however, it is to be seen that whether in the present case, the forfeiture clause can be invoked or has been invoked by the plaintiff. It is clear from the aforesaid discussions that the lease deed Ex.PW1/2 stood expired by efflux of time and no fresh lease deed was executed between the parties and defendant was holding the suit shop as a tenant by holding over and therefore, the after expiry of the lease deed, tenancy was governed by the provisions of Section 106 of TP Act. Thus, under these circumstances, the aforesaid forfeiture clause could not have been invoked by the plaintiff in the present case. Thus, it is clear that in the present case, forfeiture clause is not applicable. Since forfeiture clause is not applicable therefore, defendant can't seek benefit of Section 114 of T.P.Act.
Case No. CS(COMM)/120/2019 Page No. 29 of 3410.5 Furthermore, it is also well settled law that where a tenant is in arrears of rent and by a single notice the arrears of rent is demanded as well as tenancy is terminated (u/s 106 of TP Act) then it would be considered that the suit for possession has been filed by the landlord on the basis of determination of tenancy (as per Section 106 of TP Act) by virtue of a notice issued in terms of Section 111(h) of T.P.Act. and not because of non payment of rent. In the present case also, in the legal notice, the plaintiff has claimed arrears of rent and simultaneously plaintiff has terminated the tenancy of the defendant thus, in view of the settled law, the provisions of section 114 T.P.Act cannot be invoked in the present case. In this regard, this Court is supported by the Judgement of Hon'ble Rajasthan High Court titled Mohd. Anwar & Anr Vs. Surendra Kumar, reported as 2015(3) DNJ 1046.
10.6 Besides, in case, the defendant wanted to claim the benefit of the provisions of Section 114 of T.P Act then firstly, defendant was to admit that he is in the arrears of rent and secondly, at the time of first hearing of the suit he ought to have paid or tendered the entire arrears of rent alongwith interest and cost of the suit and ought to have prayed for granting relief u/s 114 of TP Act, however, in the present case, defendant has taken a contradictory stand as far as the provisions of Sec.114 of TP Act is concerned as on one hand, defendant claimed that he is not in the arrears of rent and on the other hand, he claimed that he is entitled to relief u/s 114 Case No. CS(COMM)/120/2019 Page No. 30 of 34 of TP Act. Thus, in view of the settled legal position discussed above, the provisions of section 114 of T.P Act are not applicable to the facts and circumstances of the present case. Moreover, it is clear, in view of the discussions made while deciding Issue no.2 and 3 that defendant was in arrears of one month rent and he had also paid partly rent for the period specified therein and did not pay the arrears of rent at the time of first hearing of the present case, therefore, even otherwise, defendant is not entitled to benefit u/s 114 of TP Act. This issued is decided accordingly.
11. Before concluding, one more aspect of the matter is required to be dealt with which has been argued by the Ld. Counsel for defendant qua document Ex.PW1/D-3. During the course of arguments, Ld. Counsel referred to this document and submitted that during pendency of the present case, the entire controversy in the present case was settled between the parties and therefore, the present suit is not maintainable and liable to be dismissed as settled. There seems to be no substance in this submission of the Ld. Counsel for the defendant as firstly, it is clear from the contents of this document that this affidavit was given by the plaintiff to the defendant qua receipt of the full and final settlement amount of arrears of electricity arrear charges and secondly, there is no discussion about the settlement of entire subject matter of the present suit in this document. Moreover, if that would have been the scenario then immediately after the aforesaid Case No. CS(COMM)/120/2019 Page No. 31 of 34 settlement, defendant would have brought this document into the notice of the Court and would have made a prayer to dispose off the case in terms of this settlement. However, neither any submission was made from the side of the defendant that matter has been settled nor this document was ever brought to the notice of the Court. In case the entire subject matter of the present suit would have been settled then defendant would not have waited till the evidence of the plaintiff. Furthermore, defendant would have cross examined PW1 while referring to Ex.PW1/D3 that this document/affidavit is in regard to the settlement of entire subject matter which includes the arrears of rent and damages also, however, no such cross examination was conducted on behalf of the defendant. Moreover, it is clear from the plaint that though the plaintiff has made some averments qua outstanding electricity charges, however, it is clear that no relief qua the recovery of unpaid electricity charges has been sought by the plaintiff in the present case. Therefore, even if this settlement has taken place between the plaintiff and the defendant during pendency of the present case, it does not affect the merits of the present case in any manner. In view of the aforesaid discussions, it is held that this document pertains to the settlement qua pending electricity charges.
RELIEF 12.1 In view of my issues wise findings, the suit of the plaintiff is decreed for recovery of possession of suit shop, Case No. CS(COMM)/120/2019 Page No. 32 of 34 arrears of rent as well as damages. As such, the plaintiff has been awarded the following reliefs:-
(i) The suit of the plaintiff is decreed for recovery of possession of suit shop i.e. shop (measuring 8'-6"x20') situated on ground floor, forming part of premises bearing no.7/1, West Patel Nagar Market, New Delhi as shown in Red Colour in the site plan Ex.PW1/3. The plaintiff is held to be entitled to recover the possession of the suit shop from the defendant.
(ii) The plaintiff is awarded arrears of rent for the month of June 2016 @ Rs.19,800/- p.m and as such plaintiff is held to be entitled to recover the same from the defendant.
(iii) The plaintiff is also awarded the balance/unpaid rent @ Rs.1800/- p.m. w.e.f April 2016 to Feb.2019 and as such plaintiff is held to be entitled to recover the same from the defendant.
(iv) The plaintiff is awarded damages @ Rs.19,800/- p.m. w.e.f. March 2019 till defendant actually hands over possession of the suit shop to the plaintiff and as such, plaintiff is held to be entitled to recover the same from the defendant.Case No. CS(COMM)/120/2019 Page No. 33 of 34
(v) Cost of the suit is also awarded to the plaintiff.
12.2 It is clarified that the defendant shall be entitled to the adjustment of the amount paid by him to the plaintiff during the aforesaid period mentioned at points no.(ii) to (iv).
12.3 Decree sheet be prepared on plaintiff's depositing court fees on the damages/use and occupation charges awarded to the plaintiff from the date of filing of the suit till the date of Judgement.
File be consigned to record room.
Digitally
Announced in the Open AJAY
signed by
AJAY GUPTA
Court on 22.03.2024 GUPTA
Date:
2024.03.22
16:08:02
+0530
(Ajay Gupta)
District Judge (Commercial Court)-05
West, Tis Hazari Courts Extension
Block, Delhi/22.03.2024
Case No. CS(COMM)/120/2019 Page No. 34 of 34