Delhi District Court
Smt. Sharda Manaktala vs Sh. Subodh Kumar Gupta on 31 August, 2018
IN THE COURT OF JSCCASCJGJ, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 8422/2016
Smt. Sharda Manaktala
W/o Sh. C.M. Manaktala,
R/o 152, RPS, Sheikh Sarai,
PhaseI, New Delhi. ... Plaintiff
Versus
Sh. Subodh Kumar Gupta
S/o Late Sh. Roshan Lal Gupta,
R/o 52A, First Floor, Shakarpur,
Main Bazar, Opp. Dal Mill,
Delhi110092. ... Defendant
SUIT FOR POSSESSION AND MESNE PROFITS
DATE OF INSTITUTION : 06.03.2014
DATE OF FINAL ARGUMENTS : 14.08.2018
DATE OF DECISION : 31.08.2018
JUDGMENT
1. The plaintiff, a landlord has filed this suit against the defendant, a tenant, seeking two reliefs viz. (a) recovery of possession of tenanted premises and (b) recovery of mesne profits. The exact prayer made by the plaintiff, in the plaint of this suit, is reproduced below: "It is, therefore, most respectfully, prayed that this Hon'ble court may be pleased :
(a) To pass a decree of possession thereby directing the defendant, his agents, representative, family members, attorneys, etc. to Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.1 of 19 handover the peaceful possession of the tenanted premises i.e. H52A, First Floor, Shakar Pur, Main Bazar, Delhi110092 (as shown in Red colour in the Site Plan annexed as Schedule 'A' with the plaint) to the plaintiff.
(b) To pass a decree for an amount calculated @ Rs.20000/ per month to the plaintiff and against the defendant as mesne profits, on account of unlawful occupation and use of the tenanted premises by the defendant, from Jan.2014 till the date of actual handing over the peaceful possession of suit property to the plaintiff.
(c) To allow the costs of the suit in favour of the plaintiff."
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has interalia pleaded in the plaint of this suit that the plaintiff is the owner/landlady qua the first floor of property no. H52A, Shakar Pur, Main Bazar, Delhi110092, as shown in red colour in the site plan filed along with the plaint (henceforth 'tenanted premises'); that the defendant is the tenant of the plaintiff qua the tenanted premises since the year 2011; that the plaintiff had reinducted the defendant as a tenant qua the tenanted premises for a period of 11 months viz. 01.02.2013 to 31.12.2013, vide rent agreement dated 06.02.2013; that as per the said rent agreement, the rent payable by the defendant qua the tenanted premises was fixed at Rs.9000/ per month, excluding electricity and Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.2 of 19 water charges; that just before the expiry of the period viz. 01.02.2013 to 31.12.2013, the plaintiff had served legal notice dated 24.12.2013 upon the defendant, interalia asking the defendant to vacate the tenanted premises, latest by 15.01.2014; that the defendant had replied to the legal notice dated 24.12.2013, vide reply dated 31.12.2013, interalia claiming that since the oral agreement between the parties was that the tenancy of the defendant qua the tenanted premises will be for a period of 5 years viz. April 2011 to December 2016, the defendant will not vacate the tenanted premises; that along with the reply dated 31.12.2013, the defendant had also sent a copy of cheque of Rs.9200/ to the plaintiff; that the reply dated 31.12.2013, sent by the defendant is false; that upon determination of the tenancy of the defendant qua the tenanted premises, by way of efflux of time on 31.12.2013, the defendant has no right to stay at the tenanted premises; that the tenanted premises can fetch rent of Rs.20,000/ per month, if rented out afresh by the plaintiff and that as such, the plaintiff is entitled to recover from the defendant, (a) possession of the tenanted premises and (b) mesne profits at the rate of Rs.20,000/ per month w.e.f. 01.01.2014.
3. Upon service of summons for settlement of issues of this suit, the defendant has contested this suit by filing his written statement. In order to contest this suit, the defendant has interalia pleaded in his written statement that the jurisdiction of this Court to entertain this suit is hit by Section 50 of the Delhi Rent Control Act, 1958 (henceforth the 'DRC Act, 1958') because the rent payable by the defendant qua the tenanted premises was orally fixed at Rs.2500/ per month, w.e.f.
Civil Suit No.8422/2016Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.3 of 19 01.04.2013; that this suit is liable to be stayed as per Section 10 of CPC, 1908 because the subject matter of this suit is similar to the suit previously filed by the defendant against the plaintiff viz. CS No.31/2014, Subodh Kumar Gupta v Sharda Manaktala; that on various pretexts, the plaintiff had obtained signatures of the defendant on blank papers; that the rent agreement dated 06.02.2013 has been fabricated by the plaintiff on the said blank papers; that the rent agreement dated 06.02.2013 is liable to be impounded under the provisions of Stamp Act, 1899; that upon receipt of the legal notice dated 24.12.2013, the defendant had neither sent the reply dated 31.12.2013 nor sent the copy of cheque of Rs.9200/, filed by the plaintiff; that instead, the defendant had sent the reply dated 31.12.2013, filed along with the written statement and a cheque of Rs.7500/; that the said reply and cheque were returned back to the defendant with the remarks, "undelivered" and "unclaimed" and that the defendant cannot be directed to vacate the tenanted premises because as per the oral agreement made by the parties, the defendant is entitled to stay in the tenanted premises till 31.03.2018.
4. In the replication, the plaintiff has traversed the contents of the written statement of the defendant, made the necessary denials and reiterated the contents of the plaint. Also, the plaintiff has pleaded that the reply dated 31.12.2013, filed by the defendant along with the written statement, is a fabricated document.
5. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.4 of 19 27.05.2014: "1. Whether the plaintiff is entitled for the possession of the premises bearing no. H52A, first floor, Shakar Pur, Main Bazar, Delhi92? OPP
2. Whether the plaintiff is entitled for mesne profits, if so at what rate and for what period ?
OPP
3. Whether the suit is barred under section 50 of the Delhi Rent Control Act 1958 ? OPD
4. Whether the suit is liable to be stayed under section 10 CPC ? OPD
5. Whether the suit is barred under Order VII Rule 11 CPC ? OPD
6. Relief, if any."
6. During the trial of this suit, one witness viz. PW1 Smt. Sharda Manaktala was examined in support of the case of the plaintiff. Also, during trial of this suit, the defence of the defendant was struck off in exercise of power under Order XVA(A) of CPC, 1908, vide Order dated 24.05.20171, because the defendant had failed to deposit arrears of rent, in compliance of Order dated 19.09.2016. The testimony of PW1 Smt. Sharda Manaktala is not being discussed, at this stage of this judgment, 1 The defendant had sought review of the Order dated 24.05.2017 by way of a review application filed on 08.11.2017. The said application was dismissed by this Court, by way of Order dated 15.11.2017. Thereafter, the defendant had challenged the Order dated 24.05.2017 (a) before the Hon'ble High Court of Delhi by way of CM(M) No. 87/2018 and (b) before the Hon'ble Supreme Court by way of SLP No. 7859/2018, but failed to obtain any relief.
Civil Suit No.8422/2016Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.5 of 19 for the sake of brevity.
7. In order to adjudicate upon this suit, I had heard Sh. Gobind Malhotra, Ld. Advocate for the plaintiff and Sh. Anil Saxena, Ld. Advocate for the defendant, on 08.05.2018 and 14.08.2018. Also, in order to adjudicate upon this suit, I have perused the written submissions filed by Sh. Anil Saxena, Ld. Advocate for the defendant, on 17.05.2018. The issue wise findings, in this case are as follows:
ISSUES NO.5
8. In exercise of power under Order XIV Rule 5 of CPC, 1908, this issue is striked off because it is premised on paragraph 5 of the preliminary objections of written statement, wherein the defendant has unjustifiably pleaded that the plaintiff has filed this suit without any cause of action; because a plaint reading of the plaint of this suit reflects that this suit has been filed by the plaintiff, on the basis of a cause of action arising from the undisputed landlordtenant relationship of the parties and because the finding regarding the issue whether the plaint of this suit is to be rejected in exercise of power under Order VII Rule 11(d) of CPC, 1908, will be given, while deciding issue no.3 viz. "whether this suit is barred under Section 50 of the DRC Act, 1958? OPD".
ISSUES NO.4
9. In respect of this issue, the case of the defendant is that this Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.6 of 19 suit is liable to be stayed under Section 10 of CPC, 1908 because before filing this suit, the defendant had filed a suit against the plaintiff interalia seeking a permanent prohibitory injunction to the effect that the plaintiff be restrained from illegally dispossessing the defendant from the tenanted premises. Per contra, the case of the plaintiff is that this suit is not liable to be stayed under Section 10 of CPC, 1908 because the subject matter of the suit for permanent prohibitory injunction etc. filed by the defendant against the plaintiff is whether the plaintiff had ever threatened to illegally dispossess the defendant from the tenanted premises, whereas, the subject matter of this suit is whether the plaintiff is entitled to recover from the defendant, the possession of the tenanted premises and damages @ Rs.20,000/ per month w.e.f. 01.04.2014.
10. In my view, this issue is exfacie liable to be decided in favour of the plaintiff and against the defendant because alongwith the written statement of this suit, the defendant has not filed the pleadings of the suit for permanent prohibitory injunction etc. filed by the defendant against the plaintiff, as a consequence of which, this Court cannot examine whether there is any overlap in the subject matter of this suit and the suit for permanent prohibitory injunction etc. filed by the defendant against the plaintiff and because ordinarily, a suit filed by a tenant against a landlord interalia seeking a permanent prohibitory injunction to the effect that the landlord be restrained from illegally dispossessing the tenant from the tenanted premises, does not result in applicability of the doctrine of res subjudice, to the suit for possession etc. filed by the landlord against the tenant.
Civil Suit No.8422/2016Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.7 of 19
11. In view of the aforesaid, this issue is decided in favour of the plaintiff and against the defendant. It is held that this suit is not liable to be stayed as per Section 10 of CPC, 1908.
ISSUES NO.3
12. In respect of this issue, the case of the defendant is that the jurisdiction of this Court to entertain this suit is hit by Section 50 of the DRC Act, 1958 because the rate of rent payable by the defendant qua the tenanted premises is Rs.2500/ per month, excluding electricity and water charges. Per contra, the case of the plaintiff is that the jurisdiction of this Court to entertain this suit is not hit by Section 50 of the DRC Act, 1958 because the rate of rent payable by the defendant qua the tenanted premises is Rs.9000/ per month, excluding electricity and water charges.
13. In order to prove his case qua this issue, the defendant has not lead any evidence. Per contra, in order to prove her case qua this issue, the plaintiff has examined herself as PW1 Smt. Sharda Manaktala.
14. During examination in chief, the plaintiff viz. PW1 Smt. Sharda Manaktala has interalia deposed that as per the rent agreement dated 06.02.2013, Ex.PW1/B, the rate of rent payable by the defendant qua the tenanted premises is Rs.9000/ per month. During cross Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.8 of 19 examination, the plaintiff viz. PW1 Smt. Sharda Manaktala has interalia deposed that the rent agreement dated 06.02.2013, Ex.PW1/B was executed at Patiala House Courts, New Delhi, on 06.02.2013; that the rent agreement dated 06.02.2013, Ex.PW1/B was prepared by her husband, who is an Advocate by profession; that the stamp paper used in the preparation of the rent agreement dated 06.02.2013, Ex.PW1/B was purchased by her on 06.02.2013, after mentioning her name as the owner of the tenanted premises and the name of the defendant as the tenant of the tenanted premises; that the execution of the rent agreement dated 06.02.2013, Ex.PW1/B was witnessed by her husband, Sh. C.M. Manaktala; that it is wrong to suggest that the rent agreement dated 06.02.2013, Ex.PW1/B was prepared on blank papers, signed by the defendant; that it is wrong to suggest that the defendant was not present at the time of the preparation of the rent agreement dated 06.02.2013, Ex.PW1/B and that it is wrong to suggest that since 01.04.2013, the defendant is only liable to pay rent at the rate of Rs.2500/ per month, excluding electricity and water charges qua the tenanted premises.
15. Upon examining the probative value of the aforesaid unrebutted evidence lead by the plaintiff qua this issue, I find that this issue is liable to be decided in favour of the plaintiff and against the defendant because of multiple reasons. Firstly, this issue is liable to be decided in favour of the plaintiff and against the defendant because the plea of the defendant that the rent agreement dated 06.02.2013, Ex.PW1/B cannot be examined by this Court as it is not a registered Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.9 of 19 instrument1, is untenable on account of the law laid down Satish Kumar v Zarif Ahmed & Ors., (1997) 3 SCC 679. In the said judgment, the Hon'ble Supreme Court has held that a lease of an immovable property for eleven months, is not compulsorily registerable. The exact observation made by the Hon'ble Supreme Court, in the said judgment, is reproduced below:
"The question, therefore, that arises is whether a lease of immovable property from month to month or for 11 months is a compulsorily registerable document, though, it was reduced to writing as an instrument defined under Section 2(14) of the Stamp Act. A conjoint reading of the first part of Section 107 read with Section 17(1)(d) of the Registration Act, as extracted hereinbefore, does indicate that a lease of immovable property from year to year, or for any term exceeding one year or reserving an yearly rent should be made only by a registered instrument and all other instruments, though reduced to writing and possession is delivered thereunder, are not compulsorily registerable instruments."
16. Secondly, this issue is liable to be decided in favour of the plaintiff and against the defendant because the plea of the defendant that the rent agreement dated 06.02.2013, Ex.PW1/B cannot be examined by this Court as it is a document liable to be impounded by 1 The said plea of the defendant was taken for the first time in the written submissions filed on 17.05.2018.
Civil Suit No.8422/2016Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.10 of 19 this Court, in exercise of power under Section 33 of the Stamp Act, 1899, is untenable, on account of the law laid down in Section 36 of the Stamp Act, 1899 and the judgment of the Hon'ble Supreme Court in Shyamal Kumar Roy v Sushil Kumar Aggarwal, (2006) 11 SCC 331.
17. Section 36 of the Stamp Act, 1899, is reproduced below:
"36. Admission of instrument where not to be questioned. Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not duly stamped."
18. The relevant observation made by the Hon'ble Supreme Court in Shyamal Kumar Roy v Sushil Kumar Aggarwal, (2006) 11 SCC 33, is reproduced below:
"Section 36, however, provides for a 'stand alone' clause. It categorically prohibits a Court of law from reopening a matter in regard to the sufficiency or otherwise of the stamp duty paid on an instrument in the event the same has been admitted in evidence. Only one exception has been made in this behalf viz. the provisions contained in Section 61 providing for reference and revision..."Civil Suit No.8422/2016
Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.11 of 19
19. The effect of the aforesaid law laid down in Section 36 of the Stamp Act, 1899 and the judgment of the Hon'ble Supreme Court in Shyamal Kumar Roy v Sushil Kumar Aggarwal, (2006) 11 SCC 331, on the facts and circumstances of this case is that since, Sh. Anil Saxena, Ld. Advocate for the defendant had not raised any objection qua the admission of the rent agreement dated 06.02.2013, Ex.PW1/B, in evidence, during the examinationinchief of the plaintiff viz. PW1 Smt. Sharda Manaktala, on 17.12.2015, now the defendant cannot be permitted to plead before this Court that the rent agreement dated 06.02.2013, Ex.PW1/B cannot be examined by this Court because it is a document liable to be impounded by this Court, in exercise of power under Section 33 of the Stamp Act, 1899.
20. Thirdly, this issue is liable to be decided in favour of the plaintiff and against the defendant because the plea of the defendant that the rent agreement dated 06.02.2013, Ex.PW1/B has been fabricated by the plaintiff on blank papers, obtained from the defendant, on various pretext, is absolutely incredible. In this regard, it is relevant to note (a) that in his written statement, the defendant has not given any date, time etc., on which the plaintiff had obtained his signatures on blank papers, allegedly used for fabricating the rent agreement dated 06.02.2013, Ex.PW1/B; (b) that in his written statement and during cross examination of PW1 Smt. Sharda Manaktala, the defendant has nowhere the disclosed the exact pretext, on the basis of which, the plaintiff had obtained the signatures of the defendant on blank papers, allegedly used for fabricating the rent agreement dated 06.02.2013, Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.12 of 19 Ex.PW1/B; (c) that the placement of the signatures of the defendant on each page of the rent agreement dated 06.02.2013, Ex.PW1/B, actually reflects that the defendant had signed each page of the rent agreement dated 06.02.2013, Ex.PW1/B, while each page had printed contents and not while each page of the rent agreement dated 06.02.2013, Ex.PW1/B was blank1 and (d) that till date, the defendant has not filed any suit/counter claim, seeking cancellation of the rent agreement dated 06.02.2013, Ex.PW1/B, on the premise that it is a fabricated document.2
21. Lastly, this issue is liable to be decided in favour of the plaintiff and against the defendant because even if this Court agrees with the version of the defendant (a) that the rent agreement dated 06.02.2013, Ex.PW1/B cannot be examined by this Court, on account of applicability of Section 49 of the Registration Act, 1908 and Section 33 of the Stamp Act, 1899 and (b) that the rent agreement dated 06.02.2013, Ex.PW1/B is a fabricated document, the version of the defendant that the rent qua the tenanted premises is less than Rs.3500/ per month viz. only Rs.2500/ per month, is absolutely incredible. In this regard, it is relevant to note that in ordinary circumstances, a landlord like the plaintiff would not have rented out an entire floor of a property in East Delhi, at a nominal rent of Rs.2500/ per month 3 and that the defendant 1 In this regard, it is relevant to note that the signatures of the defendant on each page of the rent agreement dated 06.02.2013, Ex.PW1/B are extremely close to the typed contents of each page.
2 The defendant could have done so by resorting to Section 31 of the Specific Relief Act, 1963.
3 In this regard, reference is craved to Section 114(f) of the Evidence Act, 1872, as has been done by the Hon'ble High Court of Delhi in M.C. Aggarwal HUF v Sahara India & Ors., 183 (2011) DLT 105 and it is presumed that ordinarily in East Delhi, an entire floor of a property comprising of two rooms, drawing room, kitchen, lobby etc. would not Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.13 of 19 has neither pleaded nor led any evidence to prove the existence of any special circumstance, for example, payment of a lumpsum amount, on the basis of which, he had managed to get an entire floor on rent from the plaintiff, at a nominal rent of Rs.2500/ per month.
22. In view of the aforesaid, this issue is decided in favour of the plaintiff and against the defendant. It is held that the rate of rent payable by the defendant qua the tenanted premises is Rs.9000/ per month, as claimed by the plaintiff, on the basis of rent agreement dated 06.02.2013, Ex.PW1/B and that as a consequence thereof, the jurisdiction of this Court to entertain this suit is not hit by Section 50 of the DRC Act, 1958.
ISSUE NO.1
23. In respect of this issue, the case of the plaintiff is that the plaintiff is entitled to obtain the possession of the tenanted premises from the defendant because the plaintiff had inducted the defendant as a tenant qua the tenanted premises, on the basis of the rent agreement dated 06.02.2013, Ex.PW1/B; because as per clause 1(a)(ii) of the rent agreement dated 06.02.2013, Ex.PW1/B, the tenancy of the defendant qua the tenanted premises had determined by way of efflux of time, on 31.12.2013 and because as per clause 1(b)(iv) of the rent agreement dated 06.02.2013, Ex.PW1/B, the defendant was liable to handover the possession of the tenanted premises to the plaintiff, on 01.04.2014. Per have been given by a landlord, at a nominal rent of Rs.2500/ per month.
Civil Suit No.8422/2016Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.14 of 19 contra, the case of the defendant is that plaintiff is not entitled to obtain the possession of the tenanted premises from the defendant because instead of inducting the defendant as a tenant qua the tenanted premises, by way of rent agreement dated 06.02.2013, Ex.PW1/B, the plaintiff had inducted the defendant as a tenant qua the tenanted premises, by way of an oral agreement dated 01.04.2013 and because as per the said oral agreement, the defendant is entitled to continue as a tenant in the tenanted premises till 31.03.2018.
24. Since, it is an admitted position interse the parties that the defendant is the tenant of the plaintiff qua the tenanted premises; since, while deciding issue no.3, this Court has already concluded that the defendant was inducted as a tenant qua the tenanted premises, on the basis of the rent agreement dated 06.02.2013, Ex.PW1/B and since, as per clause 1(b)(iv) of the rent agreement dated 06.02.2013, Ex.PW1/B the defendant was supposed to handover the peaceful possession of the tenanted premises to the plaintiff on account of determination of his tenancy qua the tenanted premises, by efflux of time, on 31.12.2013 1, this issue is decided in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover the possession of the tenanted premises from the defendant, w.e.f. 01.04.2014.
ISSUE NO.2
25. In respect of this issue, the case of the plaintiff is that she is entitled to recover mesne profits at the rate of Rs.20,000/ per month 1 In this regard, reference is craved to paragraph 18 and 19 of the judgment of the Hon'ble High Court of Delhi in M.C. Aggarwal HUF v Sahara India, 183 (2011) DLT 105.
Civil Suit No.8422/2016Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.15 of 19 from the defendant, w.e.f. 01.04.2014 because despite determination of the tenancy of the defendant qua the tenanted premises, by efflux of time, on 31.12.2013, the defendant had not handed over the possession of the tenanted premises to the plaintiff, on 01.04.2014. Per contra, the case of defendant is that he is not liable to pay any mesne profits to the plaintiff.
26. In order to prove her case qua this issue, the plaintiff has examined herself as PW1 Smt. Sharda Manaktala. During examination inchief, the plaintiff viz. PW1 Smt. Sharda Manaktala has interalia deposed that she is entitled to recover mesne profits at the rate of Rs.20,000/ per month from the defendant because despite determination of the tenancy of the defendant qua the tenanted premises, by efflux of time, on 31.12.2013, the defendant had not handed over the possession of the tenanted premises to the plaintiff, on 01.04.2014 and because if rented out afresh, on 01.04.2014, the tenanted premises would have fetched her rent at the rate of Rs.20,000/ per month. During crossexamination, the plaintiff viz. PW1 Smt. Sharda Manaktala has interalia deposed that after claiming mesne profits at the rate of Rs.15,000/ per month in the legal notice dated 24.12.2013, Ex.PW1/C, she had made inquiries in the locality having the tenanted premises and found out from the nearby shopkeepers and neighbours etc. that the suit property can fetch rent at the rate of Rs.20,000/ per month.
27. In order to prove his case qua this issue, the defendant has Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.16 of 19 not led any evidence.
28. In view of the finding given qua issue no.1, it is clear that the plaintiff is entitled to recover mesne profits from the defendant, w.e.f. 01.04.2014. Therefore, the only aspect left for adjudication qua this issue is whether the plaintiff is entitled to recover the said mesne profits from the defendant, at the rate of Rs.20,000/ per month. In respect of the said aspect, I find that the aforesaid unrebutted evidence of the plaintiff does not prove that the plaintiff is entitled to recover the said mesne profits from the defendant, at the rate of Rs.20,000/ per month because the aforesaid unrebutted evidence of the plaintiff has not been corroborated with any oral or documentary evidence viz. the testimony of the shopkeepers and neighbours, referred by the plaintiff viz. PW1 Smt. Sharda Manaktala or rent agreement of the contemporary period, in respect of a property similar to the tenanted premises.
29. Further I find that since the evidence of the plaintiff qua the aforesaid aspect is incredible, in view of the law laid down in M.C. Aggarwal HUF v Sahara India & Ors., 183 (2011) DLT 105, State Bank of India v Dr. Meera Luthra & Ors., 2017 SCC OnLine Del 9513 and M/s. Basant & Co. v M/s. Osram India Pvt. Ltd., 2018 SCC OnLine Del 7776 1, the plaintiff can only be said to be entitled to recover from the defendant mesne profits at the rate of Rs.10,350/ per month for the period, 01.01.2014 to 31.12.2014; mesne profits at the rate of Rs.11,903/ per 1 In the said judgments, it has been held by the Hon'ble High Court of Delhi that in cases where no evidence is lead by the parties regarding the claim of mesne profits/damages, the Courts can ordinarily grant mesne profits/damages with 15% annual increase in the admitted/proved rent.
Civil Suit No.8422/2016Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.17 of 19 month for the period, 01.01.2015 to 31.12.2015; mesne profits at the rate of Rs.13,688/ per month for the period, 01.01.2016 to 31.12.2016; mesne profits at the rate of Rs.15,741/ per month for the period, 01.01.2017 to 31.12.2017 and mesne profits at the rate of Rs.18,102/ per month from 01.01.2018 till the handing over of the tenanted premises by the defendant to the plaintiff, along with simple interest at the rate of 12% per annum.
30. In view of the aforesaid, this issue is partly decided in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover from the defendant mesne profits at the rate of Rs.10,350/ per month for the period, 01.01.2014 to 31.12.2014; mesne profits at the rate of Rs.11,903/ per month for the period, 01.01.2015 to 31.12.2015; mesne profits at the rate of Rs.13,688/ per month for the period, 01.01.2016 to 31.12.2016; mesne profits at the rate of Rs.15,741/ per month for the period, 01.01.2017 to 31.12.2017 and mesne profits at the rate of Rs.18,102/ per month from 01.01.2018 till the handing over of the tenanted premises by the defendant to the plaintiff, along with simple interest at the rate of 12% per annum.
RELIEF
31. As a net result of the aforesaid findings qua the issues framed in this suit, on 27.05.2014, this suit is decreed in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover from the defendant, (a) possession of first floor of property no.
Civil Suit No.8422/2016Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Page No.18 of 19 H52A, Shakar Pur, Main Bazar, Delhi110092, as shown in red colour in the site plan, Ex.PW1/A; (b) mesne profits at the rate of Rs.10,350/ per month for the period, 01.01.2014 to 31.12.2014; mesne profits at the rate of Rs.11,903/ per month for the period, 01.01.2015 to 31.12.2015; mesne profits at the rate of Rs.13,688/ per month for the period, 01.01.2016 to 31.12.2016; mesne profits at the rate of Rs.15,741/ per month for the period, 01.01.2017 to 31.12.2017 and mesne profits at the rate of Rs.18,102/ per month from 01.01.2018 till the handing over of the tenanted premises by the defendant to the plaintiff, along with simple interest at the rate of 12% per annum and (c) costs of this suit.
32. Before parting with this judgment, it is clarified that in this judgment, no observation has been made regarding the FDRs deposited by the defendant, in pursuance of Order dated 19.09.2016 because it would be apposite if the said FDRs are released to the plaintiff in the execution proceedings filed by the plaintiff, subject to outcome of any appeal filed by the defendant. Also, it is clarified that the interest awarded to the plaintiff shall be calculated as per the formula given in the judgment of the Hon'ble High Court of Delhi in M/s. Basant & Co. v M/s. Osram India Pvt. Ltd., 2018 SCC OnLine Del 7776.
33. The Reader shall prepare the decree sheet as per this judgment, after supply of additional courtfees by the plaintiff. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Digitally signed by JAYAnnounced in the Open Court (Jay Thareja) THAREJA On 31.08.2018 JSCC/ASCJ/GJ/EAST DISTRICT Location: East JAY Karkardooma Courts/Delhi District THAREJA Karkardooma Courts, Delhi Civil Suit No.8422/2016 Smt. Sharda Manaktala v Sh. Subodh Kumar Gupta Date: Page No.19 of 19 2018.08.31 16:42:30 +0530