Delhi District Court
Shri Andreas Singh Wadhwa vs National Textile Corporation Ltd on 23 September, 2024
DLND010082032021
IN THE COURT OF MRS VINEETA GOYAL,
DISTRICT JUDGE (COMMERCIAL-03),
PATIALA HOUSE, NEW DELHI
CS (COMM) No. 527/2021
CNR No.DLND010082032021
In the matter of :-
Shri Andreas Singh Wadhwa
S/o Late Sh. Paramjit Singh Wadhwa
r/o Masch Strasse 26,
30168, Hannover, Germany.
Through
Shri Jaswinder Singh Jaggi
His Special Power of Attorney,
r/o BF-9, Tagore Garden,
New Delhi-110027.
M.No.9315766029.
Email: [email protected] .....Plaintiff
Versus
National Textile Corporation Ltd.
Scope Complex, Core-IV,
7, Lodhi Road,
New Delhi-110003.
Through its Company Secretary /
Managing Director. ....Defendant
Digitally
signed by
VINEETA
VINEETA GOYAL
GOYAL Date:
2024.09.23
17:16:25
+0530
CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 1 / 39
Date of Institution : 23.11.2021
Date on which judgment pronounced : 23.09.2024
Appearance : Sh. S.C. Singhal, Ld. Counsel for the
plaintiff.
Sh. G.S. Chaturvedi, Ld. Counsel for the
defendant.
SUIT FOR RECOVERY OF POSSESSION, ARREARS OF
RENT, DAMAGES AND MESNE PROFITS
JUDGMENT
1. The present suit has been filed by the plaintiff, through his Special Power of Attorney (SPA), seeking recovery of possession of property bearing Flat No.10D, Vandana Building, 11, Tolstoy Marg, New Delhi-110001, as shown in red colour in the site plan (in short 'suit premises') along with arrears of rent, damages, and mesne profits against the defendant.
2 Brief facts as epitomized in the plaint that the suit premises was owned by Late Gurcharan Singh Wadhwa and Paramjit Singh Wadhwa as they entered into License Deed with the original owner M/s. Gee Vee Enterprises. The suit premises was let out to the defendant by the aforesaid persons at the rate of Rs.2,459.75 paise per month (Rupees Two Thousand Four Hundred Fifty Nine and Seventy Five Paise only) besides electricity, water consumption charges and maintenance charges Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:16:37 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 2 / 39 payable to the builder and concerned authorities.
2.1 It is further averred that Late Gurcharan Singh expired on 31.01.2007, leaving behind only daughter Ms. Viva Bredenbeck, who relinquished her share in favour of Sh. Paramjit Singh Wadhwa vide Relinquishment Deed dated 18.04.2007 and accordingly, on submissions of the documents to M/s. Gee Vee Construction Ltd., Late Paramjit Singh Wadhwa became sole owner. The said information was also sent to defendant vide letter dated 10.06.2008 along with all documents by registered AD and thereafter, the defendant started depositing the rent in the account of Sr. Paramjit Singh Wadhwa with Bank of Baroda, Pusa Road, New Delhi.
2.2 It is further averred that Late Sr. Paramjit Singh Wadhwa also expired on 13.06.2016 and the said intimation was given by the plaintiff to the defendant vide letter dated 23.01.2019 with all relevant documents and the defendant attorned to the plaintiff, as they deposited the rent from August, 2019 to February, 2020 in the court of Sh. Dhiraj Mittal, the then Learned Senior Civil Judge / Rent Controller, Patiala House Courts, New Delhi.
The plaintiff has already filed objections about the jurisdiction of the Rent Controller as Rent Controller has no jurisdiction to entertain and adjudicate the said deposit of rent as the rent was more than Rs.3500/- per month as rent means amount payable @ Rs.2459.75 p. plus maintenance charges, electricity charges and Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:16:47 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 3 / 39 water consumption charges and cumulatively, it is more than Rs.3500/- per month. The plaintiff has collected certain electricity bills and bill payable on 24.03.2021 was of Rs.2,382/- and bill payable for the month of 27.04.2021 was of Rs.4,986/- and similarly, maintenance charges was Rs.6,500/- which vary from month to month and the defendant itself paid maintenance charges for February and March, 2021 amounting to Rs.13,520/- therefore, all inclusive is more than Rs.3,500/- p.m. 2.3 It is further averred that the plaintiff terminated the tenancy of defendant vide notice dated 28.06.2021, which was duly received by the defendant, but the defendant did not reply or complied with the said notice and no further rent was tendered or deposited. Though the defendant has deposited the rent for the period August, 2019 to February, 2020 before the Court of Learned Rent Controller, as mentioned above, but the same is invalid deposit, as the court of Rent Controller has no jurisdiction, hence, the plaintiff prays arrear of rent from August, 2019 till 31.03.2021 amounting to Rs.59,034/- (Rupees Fifty Nine Thousand and Thirty Four only).
2.4 It is further averred that since the tenancy of the defendant was terminated vide notice dated 28.06.2021 by giving 15 days time, the defendant became unauthorized occupant, which the plaintiff is claiming from the end of month i.e. 31.07.2021, and as such, the defendant is liable to pay damages and mesne Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:17:01 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 4 / 39 profits @ market rent. If the property premises is let out in open market, it can easily fetch the rent of Rs.1,20,000/- per month and as such, the plaintiff is claiming damages and mesne profits @ Rs.4,000/- per day and as such, a sum of Rs.2,52,000/- is payable upto the date of filing of the present suit. The plaintiff is also entitled to damages and mesne profits, pendente lite and future interest till the defendant actually vacate and handed over the suit premises at the above rate or on such rate on which court arrive at after holding enquiry deem fit.
2.5 It is further averred that the cause of action for filing the present suit in favour of the plaintiff and against the defendant arose on 01.08.2021 and tenancy was terminated vide notice dated 28.06.2021 but the defendant did not comply with the notice. The cause of action also arose for recovery of arrears of rent every month since August, 2019 and for the purposes of damages and mesne profits, it arose on 01.08.2019 and continued to arise till institution of present suit.
2.6 It is further averred that this court has territorial jurisdiction to entertain the present suit as the suit premises is situated within the jurisdiction of this Court. The suit is commercial in nature and as such, pre-suit conciliation was applied but failed as the defendant did not report. Hence, this suit for possession, recovery of arrears of rent, damages, mesne profits against the defendant.
Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:17:17 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 5 / 39
3 Pursuant to summons issued, the defendant appeared and filed written statement inter alia raising preliminary objections that plaintiff is neither owner nor landlord of the suit premises ; that the plaintiff has suppressed and concealed the material facts ; that the present suit is barred under Section 50 of the Delhi Rent Control Act, 1995 (in short DRC Act) and that the suit has not been properly instituted.
3.1 On merits, it is submitted by the defendant that the defendant has already paid amount of rent in account of erstwhile landlord / owner of the suit premises. The defendant came to know about the demise of Sh. Paramjit Singh Wadhwa consequent to the account in which the rent was deposited being closed due to the demise of account holder. However, on account of reported demise of the owner, the account was found closed, in view thereof, the application u/s. 27 of DRC Act bearing no. 320/2020 for deposit of rent was filed by the defendant before the court of Learned Rent Controller, Patiala House Courts, New Delhi.
3.2 It is a matter of record that plaintiff filed objections before the Court of Learned Rent Controller. It is, however, wrong that the Learned Rent Controller has no jurisdiction to adjudicate the said deposit of rent or that the rent was more than Rs.3,500/- per month. The defendant submitted that the electricity, water charges and maintenance were distinct and were Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:17:27 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 6 / 39 separately paid as per actual consumption by the defendant to the respective authorities directly, who acknowledged the receipt of the same, especially the maintenance authority of the building, which has been issuing the receipt in the name of defendant. It is submitted that as such, the rent by no stretch of imagination can be said to be in the excess of the amount of Rs.3,500/- per month. The plaintiff has not filed the copy of objections before this court. It is apparent from the order dated 27.01.2022 in RC No.320/2020 that there is a dispute with respect to the question, as to who, is the rightful owner of the suit premises, which has not been challenged by the plaintiff in any form. It has not been decided whether the plaintiff is entitled to the rent of the premises, the ownership of which is in dispute. The defendant has already deposited the rent w.e.f. August, 2019 to July, 2020 before the court of the Learned Rent Controller. It is further submitted that even though the property falls under the protection of DRC Act, even otherwise the notice is not in terms of provisions of Transfer of Property Act. Since there is a dispute with respect to the ownership of suit premises, further rent was not deposited. It is also stated that the defendant is entitled to the protection of DRC Act. The plaintiff has not locus standi to file the present suit and no cause of action has arisen in favour of plaintiff and against the defendant. On these grounds, it is prayed that the suit filed by the plaintiff deserves dismissal.
4 Replication to the written statement of the defendant Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:17:38 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 7 / 39 filed wherein the plaintiff admitted that defendant is a tenant and the plaintiff is a successor of the owner / landlord, hence, submitted that the defendant is estoppel to challenge ownership / landlordship of the plaintiff by virtue of Section 116 of the Indian Evidence Act. The plaintiff further admitted that the defendant had made deposit under Section 27 of DRC Act though the Learned Rent Controller has no jurisdiction to entertain such petition and further submitted that mere deposit of rent does not absolve the defendant of its liability. On merits, the contents of the written statement were denied and the averments of the plaint were reiterated and asserted that it hardly matter to whom maintenance is paid, but maintenance including the rent and the defendant has not deliberately filed the copy of the lease deed, wherein clearly mentions that as to payment of maintenance charges by the defendant, which are acquired to be included in the rent.
5 From the pleadings of the parties, following issues were framed by the then Ld. Presiding officer on 21.04.2022 :-
1 Whether the plaintiff is entitled to possession of the flat no.10-D, Vandana Building, 11, Tolstoy Marg, New Delhi, as prayed for? OPP 2 Whether the plaintiff is entitled to a sum of Rs.59034/- as arrears of monthly charges as prayed for? OPP 3 Whether the plaintiff is entitled to damages, if so, at what rate and from which period? OPP 4 Whether the plaintiff is entitled to interest, pendente-lite and future, if so, at what rate and from which period? OPP 5 Whether the suit is barred under Section 50 of Delhi Rent Control Act? OPD 6 Relief.
Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:17:46 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 8 / 39
6 In order to prove its case, plaintiff examined PW-1 Sh. Jasvinder Singh Jaggi, Special Power of Attorney Holder. Besides PW-1, the plaintiff examined Sh. Shankar Singh, MTS, Sub-Registrar VII, INA, Vikas Sadan as PW-2, Sh. Sumeet Kumar, Manager, Bank of Baroda, Rajinder Place, New Delhi, as PW-3, Sh. Deepak Abhichandani, Estate Manager, Gee Vee Construction Limited, Basement, Vandana, 11, Tolstoy Marg, New Delhi, as PW-4, and Sh. Balram, Tax Inspector, NDMC, 9 th Floor, Palika Kender, Sansad Marg, New Delhi, as PW-5 and thereafter closed its evidence.
7 On the other hand, the defendant examined Sh. Ram Gopal Krishnan, AR, as DW-1 and thereafter closed its evidence.
8 I have heard arguments advanced by Ld. Counsels for the parties and gone through the record and my issue wise findings are as under :-
Issue nos.1 and 5 :
Both these issues are taken up together being inter connected.
9 The onus to prove issue no.1 was upon the plaintiff and issue no.5 was on the defendant. To support his case, the plaintiff examined his Special Power of Attorney Holder as PW-1. He tendered his affidavit of evidence as Ex.PW-1/A and made Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:17:54 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 9 / 39 statement in accordance with averments made in his plaint. He categorically deposed that Late (Sr.) Gurcharan Singh expired on 31.01.2007 leaving behind only one daughter Ms. Viva Bredenbeck, who relinquished her share in favour of Sh. Paramjit Singh Wadhwa vide Relinquishment Deed dated 18.04.2007 and the documents were submitted to Licensor M/s. Gee Vee Construction Ltd., thus, Paramjit Singh Wadhwa became the sole owner of the suit premises. Ex.PW-1/1 (OSR) is a License Deed in favour of Sh. (Sr.) Gurcharan Singh Wadhwa and Sh. Paramjit Singh Wadhwa. This witness deposed that the aforesaid information was given to the defendant vide letter dated
10.06.2008 Mark PW-1/4 and accordingly, the defendant started depositing the rent in the account of Sh. Paramjit Singh Wadhwa with Bank of Baroda. He further deposed that Sh. Paramjit Singh Wadhwa also expired on 13.06.2016 and intimation in this regard was sent by the plaintiff (only child and legal heir of Sh. Paramjit Singh Wadhwa) to the defendant vide letter dated 23.01.2019 Ex.PW-1/6 (OSR) and proved the same stating that his father Sh. Paramjit Singh Wadhwa, owner of the flat, expired on 13.06.2016 leaving him Andreas Singh Wadhwa, as his only child and legal heir. He further informed that he has applied to the Licenser and got transferred his father's shares to his name in their books of accounts. He also informed that he had applied to NDMC for mutation of his father's ownership in his name in their books accounts. PW-1 further stated that along with the letter all the relevant documents were supplied to the defendant with the Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:18:01 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 10 / 39 request to remit the rent of the flat in his account. PW-1 further submitted that Ex.PW-1/8 (OSR) is a copy of letter addressed to the defendant written by Sh. Andreas Singh Wadhwa calling upon the defendant to deposit the rent into his account and further, requesting him to vacate his premises and handed over the peaceful and vacant possession of the suit premises to him without demur. PW-1 further referred to the letter dated 04.10.2018 of Gee Vee Construction Ltd. intimating transfer of suit premises, written to the Assistant Secretary (Tax) NDMC, Ex.PW-1/9 proved by PW-1. He, after referring to the aforesaid documents, submitted that since Sh. Andreas Singh Wadhwa became owner of the suit premises, the rent for the suit premises was to be deposited into his account but the defendant instead of paying the rent, deposited the rent in the Court of Sh. Dhiraj Mittal, the then Learned Senior Civil Judge, Rent Controller, Patiala House Courts, New Delhi, from August, 2019 to February, 2020, knowing fully well that the premises does not fall under the DRC Act, as the rent includes charges for maintenance and amenities, electricity and water consumption charges, etc. Vide notice dated 26.06.2021 Ex.PW-1/11, the plaintiff terminated the tenancy of the defendant. Plaintiff further states that the aforesaid documents have been duly proved by PW-1 Sh. Jaswinder Singh Jaggi, Special Power of Attorney Holder, and the Special Power of Attorney in his favour is Ex.PW-1/10. This witness was duly cross-examined by the defendant and during cross-examination nothing could be brought on record to impeach his veracity.
Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:18:09 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 11 / 39 During his cross-examination, the PW-1 was confronted with Power of Attorney Ex.PW-1/DA which was allegedly executed by Sh. Paramjit Singh Wadhwa and the witness duly stated that it is the same Power of Attorney which was executed by the father of the plaintiff which has been shown to him today in the court. He denied the suggestion that Ex.PW-1/DA did not have the signatures of Sh. Paramjit Singh and he had forged his signatures. The witness was also confronted with copy of order dated 21.01.2022 Ex.PW-1/DB and he admitted that the said order is not under challenge and stated that Rent Controller does not have jurisdiction since the rent was more than Rs.3500/- per month as rent includes maintenance charges, utility / electricity bills. He admitted that letter of administration in respect of ownership of suit premises has not been filed.
10 PW-2, Sh. Shankar Singh, is the witness from the office of Sub-Registrar who has proved from record Ex.PW-2/A i.e. Lease Deed of property i.e. Flat 6A on the 6 th Floor of building Vandana, 11, Tolstoy Marg, New Delhi, extended by Ms. Annu Wadhwa and Ms. Nitu Bakshi in favour of Rotax Electronics Pvt.
Ltd. dated 06.10.2021 was duly registered on 12.10.2021, showing the rate of rent as Rs.1,52,987/- per month calculated on the terms of rental value of Rs.190.44 per sq. ft. for office space of 803.33 sq. ft. and maintenance charges as per bills every month during the period of occupation directly to the concerned Maintenance Society / Agency. He was not cross-examined by the defendant.
Digitally
signed by
VINEETA
VINEETA GOYAL
GOYAL Date:
2024.09.23
17:18:17
+0530
CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 12 / 39
11 PW-3, Sh. Sumeet Kumar, is the Manager of the bank
who brought statement of accounts in the name of Sh. Manjit Gurcharan, Paramjit, G.S. Wadhwa, and deposed that this account was freezed and is still in frozen condition. During cross- examination, he could not state what is the relation of Andreas Singh Wadhwa with Manjit Gurcharan. He also stated that letter dated 16.07.2019 Ex.PW-3/D, is a letter of Sh. Andreas Singh Wadhwa addressed to the bank but with this letter, no supporting document has been attached.
12 PW-4, Sh. Deepak Abhichandani, is a Estate Manager has proved License Deed Ex.PW-1/1 between M/s. Gee Vee Enterprises and Gurcharan Singh Wadhwa and Paramjit Singh Wadhwa, sons of Sh. D.S. Wadhwa, dated 13.04.1970 and also stated that it was transferred from the name of transferor Sh. P.S. Wadhwa in the favour of transferee Andreas Singh Wadhwa vide letter dated 23.07.2019 Mark PW-4/A. He also stated that Share Certificate in the name of S.Gurcharan Singh and Paramjit Singh Wadhwa dated 08.08.2008 is Mark PW-4/B. Security Deposit Form dated 23.07.2018 is Mark PW-4/C and the letter issued to NDMC is already Ex.PW-1/9 sent by them. During cross- examination, he could not tell about letter of administration, if was taken or if any LR Certificate was taken at the time of transfer but stated that his transfer certificate relates to transfer of ownership.
Digitally
signed by
VINEETA
VINEETA GOYAL
GOYAL Date:
2024.09.23
17:18:26
+0530
CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 13 / 39
13 PW-5, Sh. Balram, has produced the letter dated
24.04.2022 Ex.PW-5/1 addressed to Director (Tax), NDMC, by SPA, and SPA in favour of Sh. Jasvinder Singh Jaggi Ex.PW-5/2 and stated that they have received a letter dated 04.10.2018 from M/s. Gee Vee Construction Ltd. Ex.PW-5/3 along with all bills, and computer generated bill Ex.PW-5/4, and stated that there is a balance liability of Rs.57,86,575/- and they cannot transfer the property unless and until the dues are not cleared. He also stated that the statement is in respect of house tax payable in respect of the suit property. During cross-examination he has stated that property is mutated by NDMC and not transferred. He admitted that mutation does not confer the title of the property.
14 Per contra, the defendant examined DW-1 Sh. Ram Gopal Krishnan and he tendered his evidence by way of affidavit as Ex.DW-1/B and made statement in accordance with defence pleaded in written statement and relied upon Board Resolution Ex.DW-1/A, certified copy of application u/s. 27 of DRC Act Ex.DW-1/1, photocopy of challan Mark "A", certified copy of order dated 21.01.2022 Ex.DW-1/3, copy of tax message Mark "B" and receipt dated 30.11.2021 issued by M/s. Gee Vee Construction Ltd. Ex.DW-1/4 (OSR). In his cross-examination, he admitted that defendant is a public limited company and he is unable to state that as to whether and when the defendant company has to take on rent any premises or rent any premises, the defendant used to pass a resolution. He cannot say if any Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:18:36 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 14 / 39 resolution was passed by defendant prior to taking of suit premises in question on rent but he admitted that rent agreement was executed between the erstwhile owner and the defendant, copy of the same is available which was not produced despite notice u/o XII Rule 6 of CPC dated 16.04.2022 and reply dated 25.07.2022 Ex.DW-1/P-1 (colly). He also admitted that defendant has paid rent upto July, 2019 to erstwhile owner and thereafter deposited with the Learned Rent Controller till the end of July, 2020. He also stated that the maintenance charges were also paid to Gee Vee Construction Limited. He has stated that he has no knowledge that plaintiff is the son of Sh. Paramjit Singh Wadhwa but admitted that no other person has claimed rent from the defendant other than the plaintiff. He denied that deliberately original rent agreement was not filed and also the notice dated 28.06.2021 Ex.DW-1/11 was not replied. He has admitted that Ex.DW-1/1 was filed under his signatures before the Court of Learned Rent Controller where father name of the plaintiff is shown as Sh. Paramjit Singh Wadhwa.
15 Ld. Counsel for the plaintiff submits that defendant has admitted itself to be the tenant of the suit premises and also admitted that it has been depositing the rent in the account of Sh. Paramjit Singh Wadhwa, which could not be deposited after July, 2019 as the account was found closed on account of his demise and no other person other than the plaintiff has claimed the rent of the defendant. The important document, the deposit of rent by the Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:18:47 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 15 / 39 defendant, itself in the court of Learned Rent Controller Ex.DW- 1/1 indicates that the defendant has admitted its tenancy and deposited the rent in the name of father of plaintiff and this petition was filed under the signatures of DW-1, who has also admitted the same fact in his cross-examination, Ld. Counsel submitted that the fact remains that the plaintiff is the son of erstwhile owner and thus, the plaintiff, being the legal heir, is entitled for possession and DW-1 has not deposed anything contrary to what has been stated by the plaintiff. Ld. Counsel further argued that tenancy was terminated vide notice dated 28.06.2021 Ex.PW-1/11, receipt of which has not been denied and even otherwise filing of suit itself is sufficient to prove termination of tenancy and relied upon judgment in case of Jeewan Diesel vs. Jasbir Singh Chadha (HUF), Civil Appeal No.4344 of 2010.
16 Ld. Counsel for plaintiff further submitted that the defendant itself filed the maintenance bill dated 30.11.2021 issued by M/s. Gee Vee Construction showing the maintenance charges of two months as Rs.13388/- for one month Rs.6,694/- and admitted the rent as deposited is Rs.2,459/-. Besides electricity bills produced from record, thus, the rent becomes more than Rs.3500/- per month which is not covered under the DRC Act. Ld. Counsel submitted that in case of M/s. Sewa International & Ors. vs. Meenakshi Anand, pronounced on 18.06.2021, the Hon'ble High Court of Delhi has held "rate of rent was Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:18:57 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 16 / 39 Rs.2,738.23 p and maintenance Rs.880/- per month thus, rent works out to Rs.3618.23 paise which is above Rs.3,500/- and as such, suit is not barred under the provisions of DRC Act." Further, in another case Sewa International Fashions vs. Suman Kathpalia & Ors, pronounced on 13.08.1999, the Hon'ble Delhi High Court, while dealing with the question whether payment agreed to be paid by the petitioner to the respondents towards maintenance charges should be included within the ambit of expression rent observed in para nos.9 and 10 and the same is reproduced as under :
"9 The Division Bench decision of this court in Inder Vijay Singh (supra) has also held following the decision of the Supreme Court in Karnani Properties Ltd. (supra) that the term 'rent' is comprehensive enough to include all amenities agreed between the parties to be provided by and at the cost of the landlord.
10. Thus construing, the only irresistible conclusion that could be arrived at on consideration of the facts of this case is that the charges payable by the petitioner to the respondents as maintenance charges would also come within the ambit of the expression 'rent' and so computed, the actual rent payable by the petitioner to the respondents was above Rs. 3,500/- per month and, therefore, the provisions of Delhi Rent Control Act are not applicable to the facts and circumstances of the present case. The Additional District Judge rightly decided the aforesaid preliminary issue No.1 in favour of the respondents and against the petitioner holding that the suit is not barred under Section 50 of the Delhi Rent Control Act. There is no error in the order passed by the learned Additional District Judge. The petition accordingly has no merit and is dismissed."
17 Ld. Counsel for the plaintiff in support of the above also relied upon the judgments in case of United India Insurance Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:19:05 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 17 / 39 Co. Ltd. vs. Sh. Anuj Kumar, Standard Pharmaceutical Ltd. vs. Gyan Chand Jain & Anr, pronounced on 30.01.2002, and submitted that it is established proposition of law that rent includes not only what is original described as rent in agreement between a landlord under the agreement between him and the tenant. The payment made towards maintenance charges of the premises rented out and also for providing amenities to the tenants would also come within the expression 'rent' as rent includes all payments agreed to be paid by the tenant to his landlord for the use and occupation not only of the building but also of furnishing electricity installation and other amenities.
18 Ld. Counsel urged that it is thus, clear that rent is more than Rs.3,500/- per month as maintenance charges are attached to the suit premises and certainly if the premises is not let out though the payable by the landlord and it is unbelievable that landlord with charge Rs.2,459/- per month and would pay Rs.6,694/- per month. Thus, the objection of Section 50 of Delhi Rent Control Act, 1995, is no more available to the defendant and thus, the plaintiff is entitled for possession of suit premises.
19 Repelling the aforesaid contentions, the main thrust of the arguments of the defendant is that in para no.2 of the plaint, the plaintiff has clearly mentioned that apart from the rent of Rs.2,459.75 paise, electricity, water consumption charges and maintenance charges are payable to the builder and the concerned Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:19:26 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 18 / 39 authorities. Meaning thereby, the rent of Rs.2,459.75 p. payable to Late Sh. Paramjit Singh Wadhwa is segregated and clearly separated from other charges, which as per the plaintiff itself, are payable by the defendant to respective authorities and not to the plaintiff. As per his own admission the said charges are not payable to the landlord. It is submitted that in the DR petition Ex.DW-1/1, the rent was deposited before the Court of Learned Rent Controller as there was dispute with respect to the ownership of the person arraigned therein. Ex.DW-1/3, who claims himself to be the legal representative of erstwhile owner, Ex.DW-1/4. Even in Ex.DW-1/3, order dated 21.01.2022, it has clearly been held that the dispute with respect to the actual owner will be decided at the stage of release of rent and the said order was not admittedly challenged by the plaintiff. Ld. Counsel urged that the case of the plaintiff was under the ambit of Section 50 of DRC Act. A distinction has to be drawn in respect of the payments other than rent to the respective authorities and not to the landlord to bring it within the ambit of definition of rent. In fact, it is an admitted case that the bill receipt is also issued in the name of the defendant Ex.PW-1/4 and there is no dispute in that respect.
20 It is further argued that the plaintiff never entered into the witness box to discharge burden of proving his case. During cross-examination of PW-1, Power of Attorney was duly challenged by the defendant. PW-1 categorically admitted that the tenants made the payment of electricity bills and also maintenance Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:19:35 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 19 / 39 charges in respect of bills which are drawn in the name of the tenant. It has been stated by him that a succession certificate was obtained by the plaintiff but he admitted that no material in that respect has been filed before this court. It is settled position of law that a party has to produce best evidence before the court. Hence, an adverse inference is to be drawn.
21 Ld. Counsel for defendant further argued that the judgments relied upon by the plaintiff are distinguishable since in all the said judgments electricity and water consumption charges and maintenance charges have been held as a part of rent which were to be paid by the tenant to the landlord and not to the respective authorities as in the present case. In the instant case, admittedly the rent is separate from other charges and is to be paid to the respective authorities, who are issuing receipt in the name of the defendant. Ld. Counsel further urged that proposition put forth by the plaintiff is contrary to the common sense also and illustrated that presuming a case where a rent of a premises is Rs.2,500/- per month and the tenant is out of station for a month, so that the bill for water and electricity to be paid by the tenant to comes to say Rs.500/-, in which case the rent would be less than Rs.3,500/-. However, in another matter he stays in the premises, all the days in the month and the bill for water and electricity comes out to be say Rs.1,500/-, the stand of the plaintiff is against common sense wherein, a single premises in one month will come under DRC Act and in another month under Civil Court, the same Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:19:43 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 20 / 39 cannot be counter enhanced. Ld. Counsel relied upon judgment in case of State of Haryana & Ors. vs. AGM Management Services Ltd., reported in (2006) 3 SCT 497 (SC), wherein it has been held that, "We find that the High Court has not even indicated as to the applicability of the decision in Ramesh Chand's case (supra) to the facts of the present case.
The Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:20:43 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 21 / 39 case."
Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
*** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
22 Further in the case of Atma Ram Properties Pvt. Ltd. vs. Oriental Insurance Company Ltd., (2018) 2 SCC 27 , the Hon'ble Apex Court has distinguished Karnani Properties (supra) earlier decided by it, "The object of the Rent Act is to provide protection to tenants who under common law, including Transfer of Property Act could be evicted from the premises let out to them at any time by the landlord on the termination of their tenancy. It restricts the right of the landlord to evict the tenant at their will. It is a special law in relation to landlord and tenant issue. Therefore, the Rent Act has to prevail insofar as landlord and tenant issue is concerned.
27. Let us now consider the judgments relied upon by Shri Dushyant Dave. In Karnani Property Ltd. (supra) by agreement of the parties, the rent fixed included payment of the additional amenities and services. In Bombay Municipal Corporation (supra) the question relating to eviction of a tenant has not been considered. In Raju Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:20:50 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 22 / 39 Kakara Shetty (supra) the statutory right to recover the education cess in respect of demised premises from the occupant-tenant was quantified by agreement of the parties. In D.C. Bhatia (supra) this Court has considered the validity of Section 3(c) of the Delhi Rent Control Act, 1958. In Calcutta Gujarati Education Society (supra) this Court has not considered the eviction of a tenant nor the interplay between a provision similar to sub-section (2) of Section 7 of the Rent Act and Section 231 of the Calcutta Municipal Corporation Act, 1980 which is pari materia with Section 67(3) of the NDMC Act. Hence, these judgments have no application to the facts of the instant case.
28. Therefore, we are of the view that though the Rent Act is an earlier Act when compared to the NDMC Act, it is a special enactment with regard to the matter in issue and has a non-obstante clause. The NDMC Act is not a special enactment insofar as landlord-tenant issue is concerned and it contains Section 411 which provides that other laws not to be disregarded. Section 67(3) of the NDMC Act merely gives a right to recover the tax in respect of the premises as rent. It does not override the Rent Act insofar as obviating the effect of Section 7(2) of the Rent Act. In our opinion, the tax recoverable from the tenant under Section 67(3) of the NDMC Act as arrears of rent by the appellant cannot be considered to be forming part of the rent for the purpose of seeking eviction/ejectment of the respondent who defaults in payment of such recoverable tax as rent."
23 Again in the case titled Atma Ram Properties Pvt. Ltd. vs. Allied Motors Ltd. & Ors , the Hon'ble High Court of Delhi followed the said judgment of Hon'ble Apex Court, that :
"9 In view of the categorical ratio of the Supreme Court in the case of Atma Ram Properties Pvt. Ltd (supra) that even if property tax is payable by a tenant yet such amount which is recoverable by the landlord from the tenant will not become part of the rent. In my opinion, the mere fact that in the present case, property tax is recoverable under an agreement between the parties being the Lease Agreement dated 31.7.1946 will only mean that property tax will be recoverable because of an agreement and not because of a Statute being the relevant provisions of the Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:20:56 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 23 / 39 Delhi Municipal Corporation Act 1957 or New Delhi Municipal Corporation Act 1994 as applicable to Delhi, yet the property tax content (if the same is recoverable as per agreement between landlord and tenant) the same does not become part of the rent for being argued that civil court has jurisdiction (and not the Rent Controller), in view of the ratio of the judgment of the Supreme Court in the case of Atma Ram Properties Pvt. Ltd (supra). It is reiterated that the Supreme Court has held that property tax even if payable will not become part of the rent, for civil court to have jurisdiction, and therefore whether the property tax is payable either as per statute being section 7(2) of the Delhi Rent Control Act or as per an agreement as per proviso to section 7(2) of the Delhi Rent Control Act, will not make any difference, i.e the property tax content payable whether under statute or an agreement will not become part of the rent."
24 Ld. Counsel for defendant further argued that it is not established on record that plaintiff is the sole owner / landlord of the suit premises. In fact plaintiff has not tendered into witness box. There is nothing on record that SPA Holder is normally aware of the facts. Rent agreement has not been placed on record by the plaintiff.
25 On careful scanning of evidence adduced by the parties, it is admitted fact that suit premises was let out to the defendant on rent @ Rs.2,459.75 p. per month. The defendant has filed an application bearing no.320/2020 for deposit of rent for the period of August, 2019 to February, 2020 @ Rs.2,459.75 p. per month. Perusal of certified copy of application u/s. 27 of DRC Act, Ex.DW-1/1, reveals that in the said petition also the defendant admitted Sh. Paramjit Singh Wadhwa as the original Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:21:04 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 24 / 39 owner / landlord of the suit premises. The said petition also reveals that defendant gave reason and circumstances for deposit of rent that it came to know that the bank account of original owner / landlord namely Sh. Paramjit Singh Wadhwa (now deceased) was suspended / inoperation on 18.08.2019. It also mentions that since petitioner (defendant herein) is not sure about legal heirs of original owner, the rent would not be sent and as such, the present petition is filed for deposit of rent. In present case, PW-4, in his examination in chief stated that License Deed was transferred from the name of transferor Sh. Paramjit Singh Wadhwa in favour of transferee Sh. Andreas Singh Wadhwa vide letter dated 23.07.2019. He also confirmed that letter issued by M/s. Gee Vee Constructions Limited dated 04.10.2018 in favour of Assistant Secretary (Tax) NDMC is already exhibited as Ex.PW-1/9. From these facts, it is clear that M/s. Gee Vee Constructions Limited informed the NDMC that suit premises being commercial which was licensed in the name of Sh. Paramjit Singh Wadhwa has been transferred on 26.09.2018 in the name of Sh. Andreas Singh Wadhwa. And this information was given for updating the records for the purpose of house tax and mutation, etc. Even from the application u/s. 27 of DRC Act, Ex.DW-1/1, it transpires that in column no.3 the name and address of the landlord or the person or persons claiming to be the entitled to such, the name of the plaintiff as well as Special Power of Attorney Holder are mentioned. Moreover, in his cross- examination, the DW-1 admitted that the father's name of the Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:21:12 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 25 / 39 plaintiff has been written as Late Sh. Paramjit Singh Wadhwa, the relevant extract is reproduced as under :
"Attention of the witness is drawn to Ex.DW-1/1, it is correct that original of Ex.DW-1/1 was filed before the court of Rent Controller under my signatures and father name of the plaintiff has been written as Late Sh. Paramjit Singh Wadhwa."
26 At this juncture, it is relevant to mention here that defendant despite issuance of notice u/o XII Rule 8 of the Code of Civil Procedure, 1908, did not produce the Rent Agreement. DW- 1 admitted that Rent Agreement was executed between erstwhile owner and the defendant and the copy of the same is in possession of the defendant. He also admitted that notice u/o XII Rule 8 of CPC dated 16.06.2022 was received by the defendant and reply to the notice dated 25.07.2022 was sent to the plaintiff (Ex.DW-1/P- 1 (colly)). In these facts and circumstances, an adverse inference can be drawn against the defendant for non production of material document. In case of Gopal Krishnaji Ketkar vs. Mahomed Haji Latif and Ors., reported in AIR 1968 CS 1413, the Hon'ble Apex Court has approved the view that even if burden of proof does not lie on a party, the court should drew an adverse inference if he withholds the important document in his possession which would throw light on the facts in issue. Even while dealing with the case where it has been urged that adverse inference cannot be drawn unless the person withholding the document is called upon to produce the same. The Hon'ble Apex Court discussed earlier precedents wherein observations of the Judicial Committee has Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:21:21 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 26 / 39 been referred to, the following extract is reproduced as under :
"The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration (g) of s. 114 of the Evidence Act, and also an impressive body of authority."
27 Thus, in these premises there is nothing contrary suggestion of the fact that relation between the defendant and erstwhile owner, being father of the plaintiff, was landlord and tenant. Further, as discussed above, the plaintiff has relied on series of documents and also PW-4 which stated that as on date the tenanted premises are under the ownership of the plaintiff.
28 Now adverting to the issue as to whether the suit is barred u/s. 50 of the DRC Act. Admittedly, the defendant has deposited the rent @ Rs.2,459.75 p. per month for the period from August, 2019 to February, 2020. Undisputedly, prior to that the defendant deposited the rent @ Rs.2,459.75 p. per month in the account of Late (Sh.) Paramjit Singh Wadhwa. It implies that before filing of the instant suit and before filing of an application u/s. 27 of DRC Act, the erstwhile owner has received rent @ Rs.2459.75 p. per month. There is nothing on record to suggest that Late Sh. Paramjit Singh Wadhwa had issued another notice for enhancement of the rent. Hence, it can be held that till the date notice of Termination Ex.PW-1/11, the monthly rent of the suit premises was Rs.2459.75 p., therefore, it is not in dispute that the Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:21:28 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 27 / 39 last paid / deposit rent was Rs.2459.75 p. per month.
29 Case and arguments of the plaintiff is that rent also includes electricity charges and maintenance charges. Once the same are added, it comes to more than Rs.3500/- per month. Therefore, Section 50 of DRC Act is not applicable. The defendant has paid monthly rent, electricity and maintenance charges for the period of April, 2020 to March, 2021 for the suit premises. The plaintiff has given the following table in support of his submissions :
Statement of rent, electricity bills and maintenance charges borne by NTC Ltd. For the period April, 2020 to March, 2021 for Flat No.10-D, Vandana, Month Monthly Rent Monthly Bio-Monthly Total Electricity Maintenance Dues Charges Rupees Rupees Rupees Rupees April, 2020 2459.75 5790 May, 2020 2459.75 4082 14,706 June, 2020 2459.75 2639 July, 2020 2459.75 3518 14,706 August, 2020 2459.75 4163 September, 2020 2459.75 4207 13168 October, 2020 2459.75 4599 November, 2020 2459.75 2695 14924 December, 2020 2459.75 2246 January, 2021 2459.75 2327 12950 February, 2021 2459.75 2353 March, 2021 2459.75 2597 13520 29517 41216 83974 Total 154707
30 Based on above, it is argued that as such, the electricity charges and maintenance charges were part of rent.
31 On the contrary, the case of the defendant is that the maintenance charges are not been paid to the plaintiff. The Digitally signed by VINEETA GOYAL VINEETA Date: GOYAL 2024.09.23 17:21:36 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 28 / 39
charges in respect to the electricity and water are being paid by the defendant separately to the concerned authorities and the maintenance charges are directly being paid to M/s. Gee Vee Construction Limited, therefore, the same is not part of the rent.
32 The Hon'ble Delhi High Court in Plasti Chemicals Company v. Ashit Chadha and Anr, 114 (2004) DLT 408, 2004 (76) DRJ 654 held that if a landlord is able to show by producing a document of his ownership on record, landlord is deemed to have discharged his burden of ownership vis-a-vis the Rent Control Act and such a document can at best be challenged by the heirs of the owner and not by the tenant.
33 In Ramesh Chand vs. Uganti Devi reported as 157 (2009) DLT 450, the Hon'ble High Court of Delhi held:
".......... The imperfectness of the title of the premises cannot stand in the way an eviction petition under section 14 (1) (e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent acts dishonestly........."
34 Further, the defendant is estopped under S. 116 of the Indian Evidence Act from assailing the title of the landlord since the rent had been paid by the defendant to the predecessor in interest of the petitioner. The defendant is now estopped from Digitally signed by VINEETA GOYAL VINEETA Date:
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denying the title of the plaintiff under Section 116 of the Evidence Act. The Hon'ble Supreme Court in the case of Bansraj Laltaprasad Mishra v. Stanley Parker Jones (2006) 3 SCC 91 held that:
".....13. The underlying policy of section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
14. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted.
15. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time......."
35 In another case titled as Atyam Veerraju v. Pechetti Venkanna (1996) 1 SCR 831, the Hon'ble Supreme Court quoted with approval the judgment of the Privy Counsel in Bilas Kunwar v. Desraj Ranjit Singh, wherein it was observed as follows:
" A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
36 In summation, the principle attracted herein is once a tenant always a tenant. The tenant cannot dispute the title of his Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:21:51 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 30 / 39 landlord or his successor-in-interest. Since the predecessor-in- interest of the plaintiff had inducted the defendant as a tenant, it is estopped from challenging the title of the plaintiff, in view of the provisions of section 116 of the Evidence Act. Thus, the contention of the defendant that being son of Sh. Paramjit Singh Wadhwa, the plaintiff has no right to vacate the suit premises is without any merits for the said reason. Further, Special Power of Attorney implies that a principal authorizes the agent to act on its behalf to perform a specific task or purpose. A perusal of record shows that PW-1 has filed copy of power of attorney Ex.PW-1/B (OSR) duly attested by notary with signatures. Section 85 of the Indian Evidence Act, 1872 presumes that a power of attorney executed, duly authenticated by a notary public must be presumed to have been validly executed and authenticated and such a presumption in favour of Power of Attorney executed in favour of Sh. Jaswinder Singh Jaggi by Sh. Andreas Singh Wadhwa will remain good unless rebutted by the defendant by leading cogent evidence. Since special power of attorney holder has filed the present suit on behalf of Sh. Andreas Singh Wadhwa and it is a valid document with regard to the recovery of rent and possession of suit premises. Thus, the contention of the defendant that special power of attorney has no authority to file the instant suit is without any merits.
37 Now the only question that arose for consideration is that whether electricity and maintenance charges form part of rent.
Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:22:00 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 31 / 39 In cross-examination, the DW-1 categorically stated that maintenance charges were also paid to M/s. Gee Vee Construction Ltd. He also deposed that initially the defendant was paid rent to Sh. Paramjit Singh Wadhwa. The PW-1 during his cross- examination deposed that tenants made the payment of electricity bills, the tenants also paid the maintenance charges in respect of bills which were drawn in the name of the defendant. No suggestion to the contrary was given to PW-1 that defendant was not paying the maintenance charges on behalf of plaintiff. No suggestion was given to PW-1 that there was no understanding between the plaintiff and defendant in terms of which the defendant undertakes to pay the maintenance charges to M/s. Gee Vee Construction Ltd. on behalf of plaintiff. At this juncture, it is relevant to refer clause 7 of License Deed Ex.PW-1/1, the relevant extract is reproduced as under :
"7. That in terms of this Licence, the Buyer shall acquire the right to a perpetual heritable and transferable Licence in the aforesaid premises being part of the said building. However, the Buyer shall always remain liable for all Municipal taxes and cesses including any special or extra- ordinary taxes and cesses, or ground rent and all other charges payable to the Government, and all maintenance charges and any other tax or charges levied by any local authority or body. The liability for the aforesaid payments of taxes and cesses and all other out-goings with regard to the payments to the Government or otherwise and all maintenance charges shall be borne as hereinafter provided. The liability of the Buyer, in terms of this clause shall start from the date the Buyer is notified to take possession of the said Unit/Showroom."
38 This implied liability of the buyer includes all Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:22:09 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 32 / 39 maintenance charges and other charges levied by local authorities. In the present case, as discussed rent agreement between the defendant and erstwhile owner / landlord was not placed on record by the parties but the defendant had deposited rent @ Rs.2459.75 p. per month for the period August, 2019 to February, 2020. Thus, in the absence of contrary evidence, since from the beginning, the defendant has been paying the rent to the erstwhile owner and maintenance charges to M/s. Gee Vee Construction Ltd., as such it can safely be presumed that the maintenance charges being paid by the defendant to M/s. Gee Vee Construction Ltd. in discharge of liability towards erstwhile owner / landlord, as per arrangement between the parties.
39 In this case, one of the cardinal issue involved is that whether rent include maintenance charges agreed to be paid by the tenant to the landlord/ Service provider. The issue has been considered by the Hon'ble High court in Sewa International Fashions Vs. Smt. Suman Kathpalia, 82 (1999) DLT 104 and the matter also travelled to Hon'ble Supreme Court in SLP(C) no. 2167/2000 & Civil Appeal no. 4414/2000 which was dismissed. The Hon'ble Apex Court also observed that maintenance charges were payable by the tenant either to the Maintenance Society or to the lessor and were in addition to other amount specified in the Agreement would form part of rent of the premises.
40 In Sewa International Fashions (supra), the Hon'ble Digitally signed by VINEETA VINEETA GOYAL GOYAL Date: 2024.09.23 17:22:18 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 33 / 39
Delhi High Court took the view that apart from the money which is paid as rent if any services is rendered and if any payment is made in respect of the same, it shall be included within the definition of rent. The Hon'ble Delhi High Court relied on the judgment of Karnani Properties Ltd. v/s M/s Augustine, AIR 1957 SC 309 and following the judgment of P.L Kureen Talib Mankab Vidhan Prashad v/s Beni Prasad & Anr, held that maintenance charges could be included within the ambit of expression 'rent'. The relevant part of judgment reads as under:-
8. It is an established proposition of law that rent includes not only what is originally described as rent in agreement between a landlord and tenant but also those payment which is made for the amenities provided by the landlord under the agreement between him and the tenant. The payment made towards the maintenance charges of the premises rented out and also for providing amenities to the tenant would also come within the expression 'rent' as rent includes all payments agreed to be paid by the tenant to his landlord for the use and occupation not only of the building but also of furnishing, electric installations and other amenities."
41 The view was reiterated by Hon'ble High Court in Lalit Madhan vs Pramod Kalra RFA No.350/2013 decided on 10 January, 2014, United India Insurance Co. Ltd v/s Anup Kaur, decided on 28.04.2011, the decided cases of West Coast Paper Mills Ltd. Vs. Asha Kapoor (2007) 97 DRJ 548, Inder Vijay Singh Vs. NDMC (1995) Rajdhani Law Reporter 254, Standard Pharmaceuticals Ltd. Vs. Gyan Chand Jain 97 (2002) DLT 290 Digitally signed by VINEETA GOYAL VINEETA Date:
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and Annick Chaymotty @ Devayani Vs. Prem Mohini Mehra 95 (2002) DLT 312, are relevant wherein the consistent view of court needs to be followed which is that maintenance charges are to be considered as part of rent.
42 Adverting to the facts of the present case, the admitted rent by the parties is Rs. 2459.75 per month. The maintenance charges as submitted by the plaintiff given in the chart above varies from Rs. 14,706/-, 13168/-, 14924/-, 12950/-, 13520/-, from April 2020 to March 2021 for every two months. It is submitted that for the entire period of 12 months as above, it totals to Rs. 83974/-. The defendant no. 4 has also submitted one receipt Ex. DW1/4 of the maintenance charges for two months for October and November 2021 of Rs. 13,388/-. Even if, the average figure of these charges (making it monthly) are included then also the Rent of the tenanted premises becomes more than Rs. 3500/-. Once the admitted rent @ Rs.2459.75 p. per month is added to maintenance charges, it comes to a figure more than Rs.3500/- per month.
43 The record further shows that the plaintiff got issued Ex.PW-1/11 legal notice dated 28.06.2021. It is also evident from Ex.PW-1/11 that defendant was called upon to vacant and hand over the physical vacant possession of the suit premises immediately after expiry of 15 days of the notice. Thus, in the absence of a contractual period of tenancy, the defendant could Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:24:11 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 35 / 39 continue in possession of the premises but only as a month to month tenant which tenancy was terminable by the lessor on service of a notice. Even otherwise, there is no requirement of notice under Section 106 of Transfer of Property Act in view of ration decidendi of Hon'ble Supreme Court in Nopany Investment (P) Ltd. vs. Santosh Singh (2008) SCC 728 followed by Jeevan Diesal & Electric Ltd. vs. M/s Jasbir Singh Chadha (HUF) 182 (2011) DLT 402.
44 Hence, this court is of considered opinion that the plaintiff is entitled to eviction of defendant from the suit premises and recovery of vacant possession, as prayed for. Both these issues are accordingly, answered in favour of plaintiff.
Issue no.2 :
45 The plaintiff has sought arrears of rent of Rs.59,034/- for the period from August 2019 to 31st July 2021, @ Rs.2459.75/- per month with subsequent interest. It is matter of record that the plaintiff has not been paid any rent for this period though it is asserted that for some period the rent has been deposited with the court of the Ld. Rent Controller. In the present suit, since the tenancy is admitted, the rate of rent is not disputed, and the plaintiff has not been paid rent for the period in question as discussed above, therefore the plaintiff is entitled to the aforesaid amount as arrears of rent. In so far as the question of interest on Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:24:24 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 36 / 39 this rent is concerned the same is not allowed because the defendant has deposited a substantial rent of this period in the court of the Ld. Rent Controller. Hence, this issue is decided in favour of plaintiff.
Issue nos.3 & 4:
46 The plaintiff has also claimed mesne profits/damages in the sum of Rs.2,52,000/- from 01.08.2021 till filing of present suit 23.11.2021 together with interest @ 15% p.a. both pendente lite and further till recovery of whole of decretal amount. It has come in the affidavit of PW-1 that the suit property could easily let out at a monthly rent of Rs.1,20,000/- since it is situated in developed and approved area.
47 The aspects of mesne profits were under consideration before Hon'ble Supreme Court recently in the case of Bijay Kumar Manish Kumar Huf v. Ashwin Bhanulal Desai, 2024 SCC OnLine SC 980. In this judgment referring to Martin and Harris (P) Ltd. v. Rajendra Mehta, 2022 SCC OnLine SC 116111, the following paragraph was extracted:-
19. The basis of determination of the amount of mesne profits, in our view, depends on the facts and circumstances of each case considering the place where the property is situated i.e. village or city or metropolitan city, location, nature of premises i.e. commercial or residential area and the rate of rent precedent on which premises can be let out are the guiding factor in the facts of individual case."
Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:24:32 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 37 / 39
48 Ld. Counsel for the plaintiff emphasized that suit premises is situated near Connaught Place and with passage of time has undergone a sea change and presently the rates of rent of similarly situated properties in the area is approx. Rs.1,20,000/- per month. The plaintiff has also in this context proved a document Ex.PW-3/A. Significantly PW-3 was not cross- examined on the aspect of prevailing rate of rent in the area being lesser than the amount mentioned. No attempt was in fact made to dislodge the claim of the plaintiff. It thus, manifest from the evidence tendered by the plaintiff that corresponding properties in the area commanded a huge rental value. However, at the same time it cannot be lost sight that the plaintiff has not mentioned the exact area of the suit premises. Thus, having regard to the oral evidence of PW-1 and PW-3 and the document Ex.PW-3/A, and phenomenal rise in the rents in the Delhi more particularly where the property is situated, it would be just and equitable to grant increase of 25% per annum of the rent w.e.f 01.08.2021 every year over the contractual rate of rent Rs.2,459.75 p. till the handing over of the physical possession of the suit premises. Both these issues are decided accordingly.
Relief 49 In final analysis, the suit of the plaintiff is hereby decreed for recovery of possession of suit premises bearing Flat No.10D, Vandana Building, 11, Tolstoy Marg, New Delhi-110001, Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.09.23 17:24:40 +0530 CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 38 / 39 as shown in red colour in the site plan, and recovery of arrears of rent of Rs.59,034/-. The plaintiff is also entitled for mesne profits/damages with increase of 25% p.a. of the rent of Rs.2,459.75 p. with effect from 01.08.2021 every year till handing over the possession of vacant suit premises. The plaintiff is also entitled for costs from the defendant.
Decree-sheet be prepared accordingly. File be consigned to Record Room.Digitally signed by VINEETA
VINEETA GOYAL
GOYAL Date:
2024.09.23
17:15:43 +0530
Pronounced in the open Court (VINEETA GOYAL)
rd
on this 23 September 2024 District Judge (Commercial-03)
Patiala House, New Delhi
CS(COMM) No.527/21 Andreas Singh Wadhwa vs. National Textile Corporation Ltd. Page No. 39 / 39