Delhi District Court
Sh. Mohinder Singh vs Sh. Mohit Gupta on 16 April, 2018
IN THE COURT OF MS. SHUCHI LALER: ADDITIONAL
DISTRICT JUDGE, EAST DISTRICT, KARKARDOOMA
COURTS, DELHI.
Suit No. : 105/16
In the matter of :-
1. Sh. Mohinder Singh
S/o Late Sh. Arjun Singh,
7, Sukh Vihar, Delhi - 110051
2. Sh. Anil Kumar
S/o Late Sh. Arjun Singh,
7, Sukh Vihar, Delhi - 110051 ..... Plaintiffs
Versus
Sh. Mohit Gupta,
S/o Sh. Mohan Swaroop Gupta
R/o 9372/5, Kishan Kunj,
Gausala Road, Gali Malkhan Singh,
Delhi - 110006
Also at:
Sh. Mohit Gupta, Prop.
M/s. Gupta Book Store,
D-223/4, Vikas Marg,
Laxmi Nagar,
Delhi - 110 092 ..... Defendant
Date of institution of the suit : 25.03.2014
Final Arguments Heard on : 05.04.2018
Date of Judgment : 16.04.2018
Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages
Suit for Recovery of Possession, Arrears of Rent,
Electricity and Damages.
JUDGMENT :-
1. Initially, the present suit was filed for recovery of possession, arrears of rent, electricity charges and damages by landlords / plaintiffs against their tenant / defendant. During the pendency of instant lis, the defendant delivered possession to the plaintiffs, thus, limited aspect of recovery of arrears of rent, electricity charges and damages requires adjudication.
PLAINT
2. Brief narration of the facts as disclosed, in the plaint, is as under : -
2.1 That the plaintiffs are real brothers and are owners of commercial premises consisting of four storey with basement of property bearing no. D-223/4, Vikash Marg, Laxmi Nagar, Delhi - 110 092.
2.2 That the ground floor and basement of property bearing no. D-223/4, Vikash Marg, Laxmi Nagar, Delhi - 110 092 (hereinafter referred to as suit property) was let out at monthly rent of Rs.35,000/- excluding other expenses to defendant by executing a registered Agreement dated 28.11.2011.
2.3 That the tenancy was further extended for 3 years at an enhanced rent of Rs.36,800/- excluding electricity and maintenance charges vide Registered Agreement dated Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages 14.03.2012. The security amount was also enhanced to Rs.73,600/-.
2.4 That the defendant regularly paid rent to the plaintiffs through cheque till November, 2013 except the rent for the month of June, 2013 and thereafter the defendant stopped paying the rent despite demand.
2.5 That the rent was being paid through two cheques of Rs.20,000/- each in the name of the plaintiffs as they have equal share in the monthly rent of the suit property. 2.6 That the cheque Nos. 795146 dated 17.07.2013 which was given by the defendant towards rent to plaintiff no. 2, was dishonored and the amount has not been paid till date.
After adjustment of security amount, the defendant is still in arrears of rent of Rs.1,46,400/- up to 31.03.2014 excluding electricity and maintenance charges.
2.7 That a legal notice dated 15.01.2014 was served upon the defendant to which he had replied vide reply dated 27.01.2014. The plaintiff had also sent rejoinder dated 06.02.2014.
2.8 That the defendant has not paid the entire arrears of rent nor electricity charges to the tune of Rs.10,000/-. The amount of Rs.10,000/- has been paid to BSES by plaintiff no. 1. The defendant is further liable to pay damages to the tune of Rs.2,000/- per day.
Hence, the present suit.
WRITTEN STATEMENT
3. Defendant has contested the present suit by filing Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages the written statement wherein he has taken preliminary objections such as the present suit is an abuse of the process of law; the suit is without merits and liable to dismissed with exemplary cost; the suit is filed in order to grab money from the defendant and to harass him; the plaintiff has not come to the court with clean hands and he has no locus standi to file the present suit. The averments to the contrary are as under:-
3.1 That the defendant lastly paid rent for the month of November, 2013 through cheques of Rs.20,000/- to each plaintiff. The defendant had paid Rs.40,000/- as rent in cash for the month of June, 2013 through a person, namely, Mustaaq. 3.2 That the defendant again sent Rs.20,000/-in cash for the month of July through the same person Mustaq who was a caretaker of the shop and the same was confirmed with the plaintiff on telephone, hence, the defendant has paid the rent up to November, 2013.
3.3 That the defendant faced financial losses so he decided to windup his business from Laxmi Nagar and intimated the same to the plaintiff on 03.12.2013. A request was also made for return of amount of security of Rs.70,000/-, however, the plaintiff stated that he will deduct the rent for the month of December, 2013 from the security amount and requested not to hand over the keys until he refunds the balance security amount.
3.4 That on 27.12.2013, the defendant vacated the suit property and told the plaintiff that he want to hand over the key of the suit property, however, the plaintiff stated that he should keep the same, until the plaintiff returns the balance security amount.
Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages 3.5 That the defendant finally closed his business at the suit property in the month of December, 2013 and the rent upto the month of December, 2013 has been paid regularly either through cheque or in cash. The defendant has regularly paid the electricity charges till November, 2013 and is not liable to pay any damages.
Rest of the material contents of the plaint have been denied and the defendant prayed for dismissal of the present suit with heavy cost.
REPLICAITON
4. Plaintiffs have not preferred to file replication to written statement of defendant.
ISSUES
5. Issues were struck by Ld. Predecessor on 27.03.2015, which are as under :-
(i). Whether the plaintiff is entitled for arrears of rent as claimed? OPP
(ii). Whether the plaintiff is entitled for recovery of electricity charges? OPP
(iii). Whether the plaintiff is entitled for the damages of Rs.16,000/- till the filing of the suit and further damages @ Rs.200/- per date? OPP
(iv). Relief.
Parties were directed to lead evidence.
Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages PLAINTIFF'S EVIDENCE
6. In support of their case, the plaintiff no. 1 has stepped into the witness box as PW-1 and tendered his evidence by way of affidavit, which is Ex.PW1/A. He has relied upon the following documents:-
(i) Site Plan as Ex.PW1/B; (ii) Lease Deed as Ex.PW1/1 (OSR); (iii) Legal Notice dated 15.01.2014 as Ex.PW1/2; (iv) Reply to Legal Notice as Ex.PW1/8; (v) Rejoinder to the Reply to Notice as Ex.PW1/3; (vi) Postal Receipt of Notice as Ex.PW1/4 (colly); (v) Acknowledgment as Ex.PW1/5 (colly); (vi) Returned Envelope of Notice as Ex.PW1/6;
(vii) Photocopy of Bank Statement of Account as Ex.PW1/7;
The plaintiff no. 2 has been examined as PW-2 and he has tendered his evidence by way of affidavit which is Ex.PW2/A. He has relied upon the same documents as relied by PW-1 and he further relied upon the documents such as Copy of Bank Statement of Account as Ex.PW2/1 and Cheque as Ex.PW2/2.
Both the witnesses were duly cross examined on behalf of defendant. Thereafter, plaintiffs' evidence was closed.
DEFENDANT'S EVIDENCE
7. In rebuttal, the defendant appeared as DW-1 and tendered his evidence by way of affidavit which is Ex.DW1/A. He has relied upon a CD as Ex.PW1/1 and a certificate in Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages respect of said CD under Section 65 B of Evidence Act as Ex.DW1/2.
The brother of defendant, Sh. Sachin Gupta has been examined as DW-2. He testified that the tenanted premises comprised of basement and ground floor and it was mutually agreed that his name should also be added as a tenant. He further deposed that the first tenancy was created vide Agreement Ex.PW1/D1.
The aforesaid witnesses have been duly cross- examined by ld. counsel for the plaintiff. Thereafter, defendant closed his evidence.
FINAL ARGUMENTS
8. Final arguments have been heard on behalf of plaintiff and record perused. Written submissions have been filed by defendant and same have been perused.
JUDICIAL RESOLUTION
9. Issue-wise findings are as under :
Issue No. (i). Whether the plaintiff is entitled for arrears of rent as claimed? OPP
10. The onus to prove the said issue is upon the plaintiffs. The case of the plaintiffs is that the defendant has not made any payment of rent of the month of June, 2013, December, 2013, January, 2014, February, 2014 and March, 2014. It has been alleged that the cheque bearing no. 795146 dated 18.07.2013 of an amount of Rs.20,000/- issued towards Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages rent for the month of July, 2013 in favour of plaintiff no. 2 has been dishonored. Accordingly, it has been claimed that the defendant is in arrears of rent to the tune of Rs.2,20,000/-.
11. The defendant, per contra, stated that he had paid the rent for the month of June, 2013 by cash through a person Mustaaq and a payment of Rs.20,000/- was made in cash as rent for the month of July, 2013 through the same person Mustaaq subsequent to dishonor of the aforesaid cheque. It has been claimed that the defendant closed his business in December, 2013 and telephonically, it was agreed that the plaintiff will refund the security amount after deducting the rent of December, 2013.
12. Firstly, the court would determine the liability of the defendant towards rent for the month of June, 2013 and part rent of Rs.20,000/- for the month of July, 2013 due to dishonor of cheque bearing no. 795146. The defendant has claimed that the rent for the said period was paid in cash through one Sh. Mustaaq.
13. 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 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.
14. Similar view has been reiterated in the case titled as Raghubir Prasad Vs. Rajendra Kumar Gurudev, 1993(2) Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages 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.
15. 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.
16. Thus, in the instant case, the onus was upon the defendant/tenant to prove that he has made up-to-date payment of rent and there were no arrears of rent due against him. The defendant, during cross examination of plaintiff no. 2 / PW-2, has successfully extracted an admission regarding payment of rent till November, 2013. The relevant extract of cross examination of PW-2 is reproduced hereinbelow:
"The rent of the premises was Rs.40,000/- out of which my share was Rs.20,000/- which I received till November, 2013".
17. Thus, there is an express admission of plaintiff no. 2 / PW-2 that he has received his share of rent till November, 2013. Admission is as such the best evidence against the party making it. PW-2 did not volunteer and state that the cheque for the month of July, 2013 was dishonored and no payment against the cheque amount of Rs.20,000/- was made to him.
Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages Nor he stated about non receipt of rent for the month of June, 2013. Rather, PW-2, admitted the defendant's plea about payment of rent till November, 2013. In view of clear and specific admission of PW-2, the defendant cannot be held liable to make payment of Rs.20,000/- as share of rent of PW-2 for the month of June, 2013 nor of Rs.20,000/- as rent for the month of July, 2013 due to dishonor of cheque bearing no. 795146.
18. Now, ascertaining the defendant's liability for payment of plaintiff no. 1's share of rent for the month of June, 2013. The plaintiff no. 1 / PW-1 categorically deposed, in his affidavit Ex.PW1/A, that the defendant has not made payment of rent for the month of June, 2013. Though, the defendant claimed that the said payment has been made in cash through Mr. Mustaaq, he has not been examined as a witness in the instant case. During cross examination of plaintiff no. 1 / PW-1, a vague suggestion has been put to him that the defendant had paid damages up to December, 2013 which he has denied. In the entire cross examination of PW-1, no specific question or suggestion has been given regarding receipt of his share of rent for the month of June, 2013 in cash. The testimony of PW-1 on the aspect of non payment of rent for June, 2013 has remained unrebutted and uncontroverted. Except the self favouring testimony of defendant, there is nothing on record to suggest the payment of rent for the month of June, 2013 to plaintiff no.
1. The defendant, accordingly, is held to be in arrears of rent for the month of June, 2013 to extent of plaintiff no. 1's share. The plaintiff no. 1 is, thus, entitled to recover Rs.20,000/- as his share of rent for the month of June, 2013.
Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages
19. The plaintiff's have also alleged non payment of rent for the month of December 2013 to March 2014. The keys of the suit property were handed over by the defendant to plaintiff no. 1 before the court on 05.05.2014. Ld. Counsel for plaintiff vehemently urged that the tenancy was terminated vide legal notice dated 15.01.2014 Ex.PW1/2, thus, the plaintiff is entitled to recover rent w.e.f. December, 2013 till March, 2014. Ld. Counsel for defendant, per contra, contended that the defendant had vacated the suit property in December, 2013 and it was mutually agreed between the parties that the rent for the month of December, 2013 would be adjusted in security amount and on refund of balance security amount, the key of the suit property was to be received by the plaintiff. He further contended that the plaintiff intentionally avoided to receive the key of the suit property and filed the present false and frivolous suit.
20. The pivotal question which requires adjudication in the instant case is whether the defendant vacated the suit property in December, 2013 and it was the plaintiffs who refused to take possession or the defendant retained possession of the suit property, tenancy was subsisting and was only terminated by plaintiffs vide Legal Notice dated 15.01.2014 Ex.PW1/2?
21. The tenancy in question is governed by the Registered Rent Agreement Ex.PW1/1 which is an admitted document. As per the Registered Rent Agreement Ex.PW1/1, the tenancy was created for a fixed period of three years w.e.f. 01.03.2012 to 28.02.2015. Clause 14 of the said Agreement Ex.PW1/1 empowers either party to terminate the lease prior to Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages the fixed period of 3 years. The said clause is reproduced as under:-
"14. That the lessor / lessee shall have the option to terminate the lease by giving one month notice or rent in lieu thereof".
22. The defendant, in his written statement, has averred that he had intimated the plaintiff over telephone on 03.12.2013 that he does not want to continue his business and was vacating the shop. Defendant vacated the shop on 27.12.2013 and contacted plaintiffs to take the keys of the shop but the plaintiff requested to defendant not to handover the key of the said tenanted premises until the plaintiffs refund the balance security amount. The plaintiffs have denied that the defendant gave notice to them on 03.12.2013 that he was vacating the shop.
23. In support of his plea, the defendant has placed reliance upon the recorded telephonic conversation, presented to the court in the form of CD exhibited as Ex.DW1/1 alongwith Certificate under Section 65B of Indian Evidence Act (Ex.DW1/2). The transcript of the CD was filed with the written statement on 05.05.2014 and the same is within the knowledge of the plaintiff since filing of WS. On the aspect of contents of CD, the plaintiffs in their cross examination deposed as under:-
"PW-1 Mohinder Singh ........I do not remember whether I have talked with defendant after, September, 2013. I know that defendant has relied upon one CD and the same is filed along with the WS. I have been supplied with the copy of the said CD. I have not played that CD.........".
Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages
"PW-2 Anil Kumar Singh
.........The defendant has not vacated the suit property
as he has not handed over the key of the suit property to the plaintiffs. In the second agreement, the security amount was Rs.76,800/-. I have not refunded the security amount to the defendant till date. I do not remember whether the defendant has rang me up and told me that I am vacating the premises on 03.12.2013. The father of the defendant has never asked me on phone to refund the security amount on 03.01.2014. I do not know the date when the defendant closed the shutter of the rented premises as the key was with the defendant. I have not played the CD which was provided to the court by defendant.........".
24. The plaintiffs despite having received the CD and its transcript in the year 2014, did not bother to play and hear the same till the recording of their testimony in the year 2016 and 2017. Defendant / DW-1 exhibited the CD as Ex.DW1/1 and the Certificate as Ex.DW1/2 in his examination in chief dated 26.09.2017, but no suggestion or question was put to the said witness to assail either the contents of the CD or of the accompanying Certificate under Section 65 B of Indian Evidence Act. Thus, the court is of the opinion that the defendant has successfully proved the conversations recorded in the CD as Ex.DW1/1.
25. The court has played and carefully listened to the conversation, as per which the defendant on 03.12.2013 gave two months notice to vacate the shop, but subsequently, the parties mutually agreed that the shop be vacated in a month as the plaintiffs wanted to let out the shop to new tenants. As per Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages the telephonic conversation dated 30.12.2013, the shop was vacated on 30.12.2013 and after that in telephonic conversation dated 03.01.2014 one week time to receive the possession was taken by Mr. Anil Kumar / Plaintiff No. 2.
26. The said telephonic conversation is further corroborated by the fact that in the rejoinder to reply to legal notice Ex.PW1/3, the plaintiff admitted that the shop was lying locked since 30.12.2013. The relevant portion is reproduced as under:-
"Your client has concealed that he has put his lock on the tenanted premises since after paying the rent for the month of November, 2013 and since 30th December, 2013, the premises is lying locked and the key of the said lock is still with your client".
27. So, the fact that the shop is lying locked since 30.12.2013 is admitted by plaintiffs in Ex.PW1/3, which is in corroboration of the telephonic conversation dated 30.12.2013 recorded in CD Ex.DW1/1.
28. The plaintiffs, during their cross examination, have evaded to clearly answer the questions with respect to telephonic conversation between the parties. The contents of telephonic conversation as recorded in the CD Ex.DW1/1 could not be assailed during cross examination of defendant / DW-1. The subsequent conduct of defendant in handing over the possession of the suit property before the court on the very second date of hearing renders his version probable in comparison to plaintiff's story. The defendant is not one of those tenant who wanted to harass his landlords / plaintiffs unnecessarily by retaining the possession of the suit property.
Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages
29. Taking an overall view of the entire conspectus of the material on record, the pleadings as well as the evidence, it is held that the defendant after giving notice to the plaintiffs telephonically, vacated the shop on 30.12.2013 by removing all his goods and was retaining the key on the instructions of the plaintiff for handing it over on receipt of balance security amount and it were the plaintiffs who, either deliberately or negligently, did not receive the possession of the suit property from the defendant.
30. The key of the suit property remained with the defendant due to negligence of the plaintiffs and on account of plaintiffs' negligence, the defendant cannot be fastened with the liability to make payment of rent for the period of January, 2014 to March, 2014. The defendant vacated the suit property in the month of December, 2013 so the defendant is liable to pay rent only for the month of December, 2013 to the tune of Rs.40,000/-. The court has already affixed the liability upon defendant to make payment of Rs.20,000/- as plaintiff no. 1's share of rent for the month of June, 2013. In total, the defendant is liable to pay a sum of Rs.60,000/- (Rs.40,000/- as rent for December, 2013 + Rs.20,000/- as plaintiff no. 1's share of rent for June, 2013) to plaintiffs. Admittedly, a security amount of Rs.73,600/- has been deposited by defendant with the plaintiffs. The aforesaid amount of Rs.60,000/- shall be adjusted against the refundable security amount of Rs.73,600/-. The plaintiffs are not entitled to recover any amount towards arrears of rent from the defendant.
Issue no. (i) is decided against the plaintiffs and in favour of defendant.
Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages Issue No. (ii) Whether the plaintiff is entitled for recovery of electricity charges? OPP
31. The onus to prove the said issue has been placed upon the plaintiff. The plaintiff/PW1 has testified that the defendant has not paid electricity charges to the tune of Rs.10,000/- approximately and the same has been paid by the plaintiff to BSES and further electricity charges are due upon the defendant up to receiving of peaceful possession from the court.
32. PW-1, during his cross examination, stated that the defendant did not pay the electricity bill for the month of August or September, 2013. PW-1 denied the suggestion that the defendant had paid the electricity bill till December, 2013. PW-2 stated, in his cross examination, that he had paid the electricity bill of around Rs.10,000/- of the suit property in December, 2013. The defendant / DW-1, in his cross examination, stated that he had paid the electricity charges of December, 2013 towards the end of month of December, 2013. He volunteered and stated that the Bill was of November - December, 2013 which was shown to him by the plaintiffs and he had made the payment of the same. DW-1 also stated, in his cross examination, that after December, 2013 he did not make payment of the electricity bill to the plaintiffs. As per the own version of defendant, he carried on business at the suit property till end of December, 2013. The Bill for the month of December, 2013 would have become payable in January, 2014 and admittedly, after December, 2013 the defendant did not make any payment towards electricity charges. It is apparent that there are certain electricity dues of which payment has not been Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages made by the defendant, however, there is nothing on record to ascertain the said amount.
33. The plaintiff could not prove the number of units which were consumed by the defendant. The plaintiff has arbitrarily mentioned an amount of Rs.10,000/- being due on account of electricity charges. It has not been disclosed as to how the plaintiff arrived at the calculation of Rs.10,000/- being due for electricity charges.
34. The plaintiffs have not placed on record any bill or documents to show that they had deposited the amount which they are claiming from the defendant with the electricity department. The right of plaintiff to recover electricity charges only when he pays the electricity dues to the concerned department. As no proof of payment to the concerned department has been filed, right to sue for arrears of electricity dues does not arise.
35. In view of above, the court is of the opinion that the plaintiffs has quoted a whimsical and arbitrary amount of Rs.10,000/- being due on account of electricity charges. Arrears if any, cannot be quantified in the absence of bills or any other document on record. The plaintiffs could not establish the exact amount due from the defendant for the amenities of electricity. Hence, the court is not inclined to award the electricity charges to the plaintiffs as the exact amount due on that account could not be ascertained.
Issue no.(ii) is decided against the plaintiffs and in favour of the defendant.
Issue No.(iii) Whether the plaintiff is entitled for the damages of Rs.16,000/- till the filing of the Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages suit and further damages @ Rs.200/- per date? OPP
36. The onus to prove this issue rests upon the plaintiffs. The plaintiffs have averred that after 15.03.2014, the defendant is liable to pay damages to the plaintiff at the rate of Rs.16,000/- till filing of the present suit and further damages at the rate of Rs.2000/- per day.
37. Plaintiffs' claim to damages going by the Registered Rent Deed Ex.PW1/1 is to the tune of Rs.2,000/- per day. It is no doubt correct that the Registered Rent Deed Ex.PW1/1 does contain a clause i.e. clause 19 to this effect. However, it should be borne in mind that any agreement regarding mesne profits / damages which is in terrorem in violation of Section 74 of Contract Act can possibly not be awarded. The monthly rent is Rs.40,000/-, whereas, the total damages has been fixed at Rs.60,000/- per month. The court is of the view that this is hit by Section 74 of Contract Act and as such damages / mesne profits could not have been awarded at the rate of Rs.60,000/- per month.
38. Moreover, the question of award of damages does not arise in the instant suit. The aspect of award of damages would have become relevant had the defendant been in occupation of the suit property illegally without the permission of plaintiff at any point of time. In the instant case, the defendant has not been in unauthorized occupation of the suit property. While adjudicating upon issue no. (i), the court has already observed that the defendant had vacated the suit property on 31.12.2013 of which rent has been adjusted against security amount. Claim for damages is made w.e.f. 15.03.2014 till Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages handing over the key of the suit property on 05.05.2014. When the defendant has already been held to be not in actual possession of suit property during the aforesaid period, no ground is made out for award of damages in favour of plaintiffs.
Issue no. (iii) is accordingly decided against the plaintiffs and in favour of defendant.
Relief:
In view of reasons and findings on aforesaid issues, the suit of plaintiffs is dismissed. No order as to costs.
Decree Sheet be prepared accordingly File be consigned to record room.Digitally signed by SHUCHI LALER
SHUCHI LALER Date: 2018.04.17 13:03:35 +0530 Announced in the open court (SHUCHI LALER) on this day of 16.04.2018 ADJ-04, East District KKD Courts, Delhi Suit No. 105/16 Sh. Mohinder Singh & Anr. Vs. Sh. Mohit Gupta Page No. of 19 pages