Delhi District Court
Smt. Kanchan Sethi vs Sh. Satish Kumar Sarogi on 3 February, 2014
IN THE COURT OF SH. SUMIT DASS, SENIOR CIVIL JUDGE
CUMRENT CONTROLLER (NORTH), ROHINI COURTS,
DELHI
Suit No. : 23/12
Smt. Kanchan Sethi
W/o Shri Suraj Parkash Sethi
R/o DP77, Pitampura,
Delhi110034.
Through her special Attorney
Shri Suraj Prakash Sethi ...Plaintiff.
Versus
Sh. Satish Kumar Sarogi
S/o Shri Gobind Parshad
R/o Society Built Flat No. 12,
IIIrd Floor, Swarn Apartment,
Near Madhuban Chowk,
Pitampura, Delhi110034. ...Defendant.
Suit No. 23/12 1 of 9
Kanchan Sethi v. Satish Kumar Sarogi
Date of Institution : 16.01.2012.
Date of Arguments : 03.02.2014.
Date of Judgment : 03.02.2014.
SUIT FOR RECOVERY OF POSSESSION & FOR RECOVERY OF
FUTURE DAMAGES/OCCUPATIONAL CHARGES @ Rs. 16,500/
PER MONTH
JUDGMENT:
1. In short facts are as under: Plaintiff has sued for ejectment of defendanttenant. A decree of possession was passed in terms of order dated 15.02.2013 upon an application under Order 12 Rule 6 CPC. The decree was executed and the possession has also been resumed by the plaintiff consequently the suit as it is now remains only for the purpose of damages. The plaintiff has sought damages @ Rs. 16,500/ per month pursuant to the termination of Suit No. 23/12 2 of 9 Kanchan Sethi v. Satish Kumar Sarogi the tenancy/defendant becoming an unauthorised occupant w.e.f. 1.1.2012. The damages have been confined till 27.6.2013. The reason for such a claim is that the Lease Deed which was executed interse had clause no. 23 which reads as under: "That on the expiry of these period, if lessee fails to handover peacefully lease premises to lesser after issuing the notice, lessee agree to pay Rs. 16,500/ (Rs. Sixteen Thousand Five Hundred Only) per month as penalty till handover the possession to the lessor".
The said clause of the Lease Deed is being enforced by way of the present suit.
2. On behalf of the defendant in the WS in respect of the said assertion pertaining to damages, the defendant had denied the contents of the Lease Deed and alleged that he was a tenant in the said premises since 2006 without break, initially inducted at monthly rent of Rs. 5000/ which was subsequently enhanced to Rs. 8000/. However, though the validity of the lease deed was denied including its content the factum of registration was admitted. The entire written statement otherwise consists of denial and the Suit No. 23/12 3 of 9 Kanchan Sethi v. Satish Kumar Sarogi entire plaint averments have been denied in toto.
3. Replication was filed. Issues in the matter were settled on 02.08.2013 which runs as under:
1. Whether the plaintiff is entitled for the decree of recovery of damages as prayed for? (OPP)
2. Whether the plaintiff is entitled for the decree of recovery of damages as prayed for? (OPP)
3. Relief.
4. The parties were directed to lead evidence. On behalf of the plaintiff the husband of the plaintiff Shri Suraj Prakash Sethi appeared in the witness box and tendered his evidence by way of affidavit Ex. PW1/A. PW1 Shri Suraj Prakash Sethi relied upon documents i.e. Power of Attorney dated 13.01.2012 Ex. PW1/1. He also relied upon documents i.e. copy of rent agreement, Ex. PW1/2, copy of legal notice Ex. PW1/3 and Regd. AD Ex. PW1/4. He was cross examined on behalf of the Suit No. 23/12 4 of 9 Kanchan Sethi v. Satish Kumar Sarogi defendant. The defendant sought not to lead defence evidence and DE was closed in terms of order dated 29.11.2013.
5. Heard either side.
6. My issue wise findings are as under:
The lease deed particularly the Clause 23 which has been extracted as herein above is sought to be enforced by the present suit. Nothing has been pointed out in the entire WS as to whether the defendant was compelled/any undue influence was exercised over him or he was under some coercion or pressure at the time of execution of the lease deed. The lease deed was duly registered. Any apprehension in this regard could have been told by the defendant to the Sub Registrar. It is to be noted that the tenancy of the defendant was an old one as admitted by defendant that he was in possession since 2006 and as such there was no immediate need for getting the lease deed registered except that the parties intended to reduce their terms/terms of tenancy in writing including fixing Suit No. 23/12 5 of 9 Kanchan Sethi v. Satish Kumar Sarogi the liability of the defendant on account of non handing over of the possession. Once a lease deed is subsequently entered into after putting a tenant into possession, necessarily the allegations pertaining to any fraud or undue coercion particularly raised by the tenant are superfluous and totally made for the purposes of denial only/disputing his liability. The defendant thus cannot efface or disown the lease deed. Neither he defendant has probabalized or placed on record any material which would substantiate his plea. Defendant has not even lead any evidence.
7. The second question which arises for consideration is as to whether the said clause No. 23 in a manner amounts to a penalty. Section 74 of the Indian Contract Act reads as under: "Compensation for breach of contract where penalty stipulated for.
When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to received from the party who has broken the contract reasonable compensation not exceeding the amount so named or, Suit No. 23/12 6 of 9 Kanchan Sethi v. Satish Kumar Sarogi as the case may be, the penalty stipulated for."
8. Section 74 of the Indian Contract Act deals with the situation where the parties have agreed for damages/there is a pre estimate of the loss likely to be sustained and also the situation where penalty has been prescribed or the stipulation is in the form of penalty. Now in this regard nothing has been pointed out by the defendant that said clause in a manner amounts to penalty. He has also enjoyed the possession of tenancy for a period of 11 months on account of said lease deed including the said clause. He could have sought change or variation of the said clause or even reply to the legal notice specifically in this regard but chose not to do so. The clause prescribes that in the event of default in vacating the premises nearly twice the amount would be chargeable. To my mind the said clause is not a penalty clause for two specific reasons:
(i). Plaintiff had to approach the court of law for getting back the possession which normally entails considerable expenses. Such a situation he intended to obviate and hence such a clause was inserted in the lease Suit No. 23/12 7 of 9 Kanchan Sethi v. Satish Kumar Sarogi deed.
(ii). The said clause caps the amount at Rs.16,500/ without there being any enhancement. It is not an extremely high figure or amount which perse can be said to be a penalty clause. It was a clause which was intended to enforce the agreement. It is not a clause in terrorem. Further the entire agreement has to be read and upon perusal of the rent agreement particularly clause 21 signifies that the effect of clause 23 is tampered or moderated in as much as upon extension of tenancy subject to 10% increase of rent there could have been extension of tenancy provided the option was exercised prior to termination of the lease deed. The defendant opted not to avail the same.
9. Under such facts and circumstances in my considered opinion the said clause has to be given due effect. Plaintiff is held entitled for the damages @ Rs. 16,500/ for the said period i.e. w.e.f 01.01.2012 till handing over of possession till 27.06.2013. The defendant shall be liable for deduction of any amount deposited by him towards rent. Decree of Suit No. 23/12 8 of 9 Kanchan Sethi v. Satish Kumar Sarogi mesne profit shall be executable upon filing of deficient court fees. No interest is granted on mesne profit. Suit is decreed alongwith cost. Decree sheet be drawn accordingly.
File be consigned to Record Room.
Announced in the open court (Sumit Dass)
on 03.02.2014 SCJCUMRC (NORTH)
(This judgment contains 7 pages & ROHINI COURTS, DELHI.
each page bears my signature.)
Suit No. 23/12 9 of 9
Kanchan Sethi v. Satish Kumar Sarogi
Suit No. 23/12
03.02.2014.
Present: Sh. Vikram Baweja Ld. Counsel for the plaintif.
Ld. Counsel for the defendant.
Defendant in person.
Final arguments heard.
Vide separate judgment of even date, suit of the plaintiff is decreed. Costs of the suit are also awarded. Decree sheet be prepared accordingly. Suit file be consigned to Record Room.
(SUMIT DASS)
ACJcumARC (North West)
Rohini Courts, Delhi/03.02.2014
Suit No. 23/12 10 of 9
Kanchan Sethi v. Satish Kumar Sarogi