Delhi District Court
Shri Kewal Krishan Khosla vs Punjab National Bank on 25 April, 2018
IN THE COURT OF SH. DEEPAK DABAS:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/611761/2016
SHRI KEWAL KRISHAN KHOSLA
Son of Late Shri D.R. Khosla,
R/o Khosla Farm,
MG Road, Sultanpur,
New Delhi ..........Plaintiff
Vs.
PUNJAB NATIONAL BANK
Service affected through
its chairman,
having its office at:
7-B, Bhikaji Cama Place,
New Delhi-66 ...............Defendant
Date of institution :-15.02.2007
Order Reserved On:-21.03.2018
Date of Decision:-25.04.2018
For the Plaintiff:- Sh.Amit Kumar, Advocate.
For the Defendant:- Sh. Y.P. Chandana, Advocate.
SUIT FOR RECOVERY OF RS.6,55,129/- ON BEHALF
OF THE PLAINTIFF UNDER ORDER XXXVII OF CPC
Kewal Krishan Khosla Vs. Punjab National Bank Page No. 1/22
JUDGMENT
1. By this judgment, I shall decide the present suit filed by plaintiff under Order 37 CPC for recovery of Rs.6,55,129/- from defendant.
2. The facts of present case in brief are that on receipt of summons for appearance as prescribed under Order 37 CPC, defendant filed its appearance in court within stipulated time. Thereafter, plaintiff filed an application for issuance of summons for judgment. The said application was allowed. Summons for judgment were issued and served upon defendant. Defendant filed an application seeking leave to defend. Vide order dated 18.10.2010, application filed by defendant seeking leave to defend was allowed and defendant was granted unconditional leave to defend the present suit.
A. CASE OF PLAINTIFF
1. According to plaintiff, he is the owner/landlord of immovable property i.e. Flat bearing no.112(half part), 113, 114 and 115(part), Rattan Jyoti Building, Rajendera Place, New Delhi. Plaintiff has claimed that New Bank of India was inducted as a tenant w.e.f. 18.04.1981 vide written agreement dated 27.08.1982 at a monthly rent of Rs.6.25 per sq. feet which was later increased to Rs.6921.55 per month w.e.f. 18.04.1986.
Kewal Krishan Khosla Vs. Punjab National Bank Page No. 2/222. According to plaintiff, by virtue of gazette notification dated 04.09.1993, the erstwhile New Bank of India alongwith its entire banking business, liabilities etc. amalgamated into Punjab National Bank and as such the tenanted premises came in possession of Punjab National Bank i.e. defendant.
3. According to plaintiff, tenancy of defendant was terminated and in a separate suit filed by plaintiff for possession and damages, decree of possession has already been passed against the defendant on 15.07.2003. According to plaintiff, defendant handed over possession of said property on 23.02.2004 without paying maintenance charges to the builder or to the plaintiff.
4. According to plaintiff, the tenancy was governed by the covenants of lease deed dated 27.08.1982 executed between plaintiff and New Bank of India i.e. Predecessor-in-interest of defendant. Plaintiff has claimed that as per clause 11 of agreement/lease deed dated 27.08.1982, defendant was liable to pay the maintenance charges to the builder.
5. According to plaintiff, upon making inquiry from the builder in January 2004, plaintiff came to know that defendant has not paid the maintenance charges to the builder.
6. Plaintiff has further claimed that he had been regularly requesting the defendant to pay maintenance and water charges but it failed to do so and vacated the property without paying the same to the builder. Plaintiff Kewal Krishan Khosla Vs. Punjab National Bank Page No. 3/22 has further claimed that he had to pay a sum of Rs.498196.63P to builder on 05.02.2005 and thereafter on 07.02.2005, builder gave no dues certificate to plaintiff.
7. Plaintiff has further claimed that being the owner of the property, he has no other option except to deposit said amount with the builder and defendant is liable to pay said amount to plaintiff.
8. According to plaintiff, one legal demand notice dated 02.12.2006 was also sent to defendant for payment of maintenance charges but defendant refused to pay the same and had sent a frivolous reply dated 17.01.2007 denying the liability.
9. Hence, the present suit has been filed by plaintiff against defendant for recovery of aforesaid amount.
B. CASE OF DEFENDANT
1. Defendant in its written statement has taken some preliminary objections i.e. plaintiff has no cause of action to claim the amount prayed in the suit. Plaintiff has no locus standi to claim the maintenance charges. Suit filed by plaintiff is barred by limitation. Plaintiff has not impleaded the erstwhile builder i.e. M/s Kumar Construction Pvt Ltd either as plaintiff or as proforma defendant and therefore, the suit filed by plaintiff is liable to be dismissed on account of non-joinder of necessary party. According to defendant, plaintiff had earlier filed a suit for possession Kewal Krishan Khosla Vs. Punjab National Bank Page No. 4/22 and for recovery of damages/mense profits in February 1994 wherein the plaintiff neither reserved his right to claim the maintenance charges nor had sought permission from said competent court to file a separate suit for recovery of maintenance charges. According to defendant, present suit filed by plaintiff is barred as per Order 2 Rule 2 CPC. According to defendant, there is no privity of contract between plaintiff and defendant to pay maintenance charges to plaintiff. According to defendant, plaintiff has failed to show as to how M/s R.C. Sood & Co. Pvt. Ltd. was entitled to recover any amount from plaintiff and even M/s R.C. Sood and Co. has no privity of contract either with plaintiff or with defendant.
2. On merits, defendant in its written statement, admitted existence of relationship of landlord and tenant between the parties. Defendant has claimed that plaintiff has neither pleaded nor placed any document on record to prove the termination of tenancy of defendant. According to defendant, plaintiff has failed to furnish details regarding arrears of maintenance and has also failed to furnish name of the builder who was entitled to recover the maintenance charges. Defendant has further claimed that no demand notice was ever served upon defendant. Defendant has further claimed that premises in question were vacated by it on or before 27.02.2004 and it is not liable to pay any demand raised after that date. Defendant in its written statement has further claimed that plaintiff is not entitled to the suit amount and any interest thereon. According to defendant, the plaint filed by plaintiff lacks material particulars and hence the suit filed by the plaintiff is liable to be dismissed.
Kewal Krishan Khosla Vs. Punjab National Bank Page No. 5/22C. REPLICATION Replication was filed by plaintiff to written statement of defendant wherein contents of plaint were reiterated and version of defendant was denied.
D. ISSUES After completion of pleadings, following issues were framed on 18.05.2011:-
(1)Whether M/S Kumar Constructions Pvt Ltd., the erstwhile builder of the suit property is a necessary party and, hence, the suit is bad as pleaded in the WS?OPD (2)Whether the plaintiff paid Rs.4,98,196.63p to the said builder towards maintenance and water charges on 5.02.05? If so, its effect? OPP.
(3) Whether plaintiff has the locus standi to file the present suit?OPP (4) Whether there is no privity of contract between the parties as pleaded in preliminary objection no.-8 of the WS?OPD (5) Whether the suit is barred u/o 2 rule 2 CPC as pleaded in the WS?OPD (6)Whether the suit is barred by time as pleaded in the WS?OPD (7) To what amount if any is the plaintiff entitled to recover from the defendant and at what rate of interest?OPP (8) Relief Kewal Krishan Khosla Vs. Punjab National Bank Page No. 6/22 E. EVIDENCE LED BY PLAINTIFF In order to prove his case, plaintiff has produced and examined two witnesses. PW-1 is Sh. Love Kumar Khosla i.e. GPA holder of plaintiff. PW-2 is Sh. Rajesh Gautam i.e. Assistant Accounts officer of R.C. Sood and Company Pvt Ltd. It is pertinent to mention that plaintiff himself never appeared in witness box in support of his case. PW-1 filed his evidence by way of affidavit i.e. Ex.PW-1/A and has relied upon some documents. Examination-in-chief of PW-2 was recorded in Court and PW-2 also relied upon some documents. PW-1 as well as PW-2 were cross examined at length by Counsel for defendant.
F. EVIDENCE LED BY DEFENDANT Defendant produced and examined only one witness in support of its case i.e. Sh. Anil Kumar Jain(DW-1). DW-1 is Senior Manager of defendant and DW-1 filed his evidence by way of affidavit. DW-1 has not relied upon any document. DW-1 was also cross examined by Counsel for the plaintiff.
G. I have heard Ld. Counsel for plaintiff as well as Ld. Counsel for defendant and I have perused the record carefully.
H. My findings on the issues are as under:- 1. ISSUE NO.-1:-
Whether M/S Kumar Constructions Pvt Ltd., the erstwhile builder of the suit property is a necessary party and, hence, the suit is bad as pleaded in the WS?OPD Kewal Krishan Khosla Vs. Punjab National Bank Page No. 7/22 Onus of proving this issue is upon the defendant.
Defendant in its written statement has taken preliminary objection that the erstwhile builder i.e. M/s Kumar Constructions Pvt Ltd has not been impleaded either as plaintiff or as proforma defendant. Defendant has further claimed that M/s Kumar Construction Pvt Ltd is a necessary party and the suit is liable to be dismissed on account of its non-joinder.
Though the defendant has taken the aforesaid objection, however, the defendant has failed to demonstrate/show as to how Ms/ Kumar Construction Pvt Ltd is a necessary party to the present suit. Neither any evidence has been led in this regard nor any material has been placed on record in support of aforesaid contention. Even at the stage of final arguments, Counsel for the defendant has failed to show as to how M/s Kumar Construction Pvt Ltd is a necessary party to the present suit.
In view of aforesaid facts and circumstances, I am of the considered view that defendant has miserably failed to prove the aforesaid issue hence, issue no.-1 is decided against defendant and in favour of plaintiff.
2. ISSUE NO.-(2)&(7):-
(2)Whether the plaintiff paid Rs.4,98,196.63p to the said builder towards maintenance and water charges on 5.02.05? If so, its effect?OPP.
(7) To what amount if any is the plaintiff entitled to recover from the defendant and at what rate of interest?OPP Issue no.-2 and 7 are connected and therefore they are taken up and decided together. Onus of proving these issues is on the plaintiff.Kewal Krishan Khosla Vs. Punjab National Bank Page No. 8/22
Plaintiff in his plaint has stated that he had to pay a sum of Rs.4,98,196.63P on 05.02.2005 to the builder and after receipt of said amount, builder issued no dues certificate to the plaintiff. Plaintiff has further claimed that as per clause 11 of lease deed executed between plaintiff and defendant, defendant was liable to pay the maintenance charges to the builder. Clause 11 of lease deed dated 27.08.1982 i.e. Ex.PW-1/12 is reproduced herein for sake of convenience and ready reference:-
"11. That the lessee shall pay towards maintenance/service charges/replacement funds/insurance as also such additional charges on the basis of the actual outgoings as may be billed by the builder or the building society."
On the other hand, defendant in its written statement has claimed that plaintiff has failed to plead as to for what period the said maintenance charges of Rs.4,98,196.63P has been claimed. Defendant has further claimed that till the vacation of the said property, no demand was raised by plaintiff/builder and therefore, defendant is not liable to pay anything.
In order to prove aforesaid issue, plaintiff has examined two witnesses. PW-1 is GPA holder of plaintiff. GPA dated 21.01.2014 in favour of PW-1 is Ex.PW-1/1A. Plaintiff himself never appeared in witness box to depose in favour of his case.
Hon'ble Supreme Court of India in a case titled as "Man Kaur (dead) by LRs Vs. Hartar Singh Sangha reported as (2010) 10 SCC 512" summarized the legal position as to who should give evidence in regard to matters involving personal knowledge as follows:-
Kewal Krishan Khosla Vs. Punjab National Bank Page No. 9/22(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) if the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c)The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d)Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders.
(e)Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-
holder to prove the transaction, and not a different or subsequent attorney-holder.
Kewal Krishan Khosla Vs. Punjab National Bank Page No. 10/22(f)Where the different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to to be examined.
(g)Where the law requires or contemplated the plaintiff or other party to a proceedings to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. Where all the affairs of a party are completely managed, transacted and looked after by an attorney(who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad".
In the aforesaid case, Hon'ble Supreme Court of India further held that where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.
In the present case also, plaintiff failed to appear in witness box and has not stated his own case on oath and has not offered himself to be Kewal Krishan Khosla Vs. Punjab National Bank Page No. 11/22 cross examined by the other side. No explanation whatsoever has been furnished by plaintiff for his non-appearance in witness box. Hence, a presumption arises that the case set up by plaintiff is not correct.
PW-1 i.e. GPA holder of plaintiff in para 1 of his evidence by way of affidavit has stated that he has personal knowledge about the present case. However, in his cross examination, PW-1 admitted that at the time of purchase of said property by plaintiff he was minor. PW-1 also admitted that at the time of execution of lease deed dated 27.08.1982 also he was minor. PW-1 in his cross examination further stated that he is not aware about the bills raised by maintenance agency during the tenancy. PW-1 also admitted that the period for which the maintenance has been charged has not been described in receipt Ex.PW-1/1. Careful perusal and analysis of testimony of PW-1 shows that though PW-1 has claimed that he has personal knowledge about present case, however, his ignorance qua various material aspects of present case falsifies his claim. PW-1 was minor at the time of execution of lease deed/agreement dated 27.08.1982 i.e. Ex.PW-1/12. It is also pertinent to mention that the relevant documents does not bear signatures of PW-1. PW-1 even failed to explain as to how he acquired personal knowledge about present case. Hence, the aforesaid claim of PW-1 cannot be accepted.
Even otherwise plaintiff has claimed that he had paid a sum of Rs. 4,98,196.63P on 05.02.2005 vide receipt i.e. Ex.PW-1/1 to builder and defendant is liable to pay the said amount to plaintiff as per clause 11 of Lease deed dated 27.08.1982 i.e. Ex.PW-1/12.
Perusal of Ex.PW-1/1 i.e. receipt shows that payment of Rs.4,98,196.63P was made for Ground Rent (Rs.1106/-), R.Fund Kewal Krishan Khosla Vs. Punjab National Bank Page No. 12/22 (Rs.35093.40P), Building Insurance (Rs.346.00/-), Maintenance Charges (Rs.2,62,971.40P), Water Charges (Rs. 37,671.83P) and Interest on Late/delayed payment (Rs.1,61,008.00). Perusal of Ex.PW-1/1 clearly shows that no period has been mentioned for which aforesaid amount was charged/paid. On Ex.PW-1/1, it is mentioned that Ground Rent, R Fund, Building Insurance and Maintenance Charges are upto 31.03.2005 and water charges are upto 31.03.2004. The date w.e.f. which such charges have been taken/received is not mentioned on Ex.PW-1/1. From Ex.PW-1/1, it is not clear since when such charges have been taken/received i.e. whether from the date of purchase of said property or from the date on which said property was leased out to defendant. Neither in plaint nor PW-1 in his evidence by way of affidavit has mentioned anything about it.
Even PW-2 in his cross examination admitted that the period is not mentioned on aforesaid documents. PW-2 in his cross examination further stated that the total arrears were Rs.18,66,900/- approx. and it included interest amount of Rs.2,58,800/- and was settled at Rs.4,98,196.93P including interest of Rs.1,61,008/-. PW-2 in his cross examination further stated that the arrears were for the period w.e.f.1992 till 31.03.2005. The aforesaid claim of PW-2 is beyond pleadings and no reliance can be placed upon it. Neither the plaintiff in his plaint nor PW1 in his evidence by way of affidavit has claimed that arrears were for the period w.e.f. 1992 to 31.03.2005. Moreover, no document/material has been placed on record by PW-2 in support of his said claim. The testimony of PW-2 to the effect that total arrears were Rs.18,66,900/- is also beyond pleadings and contrary to the case of plaintiff. Even Kewal Krishan Khosla Vs. Punjab National Bank Page No. 13/22 otherwise it is admitted case of parties that defendant had handed over possession of said property to plaintiff on 23.02.2004 and therefore the defendant is not liable to pay the charges till 31.03.2005.
Keeping in view the discussion made hereinabove, I am of the considered view that plaintiff is able to prove that an amount of Rs.4,98,196.63P was paid to builder by him towards maintenance and water charges etc. on 05.02.2005. However, the plaintiff is not entitled to recover the said amount from defendant as plaintiff has miserably failed to prove the period for which said charges were paid. Plaintiff has failed to prove since when such charges were paid. Plaintiff has merely proved that water charges were paid upto 31.03.2004 and maintenance etc charges were paid upto 31.03.2005. It is reiterated that defendant had vacated said property on 23.02.2004. Hence, plaintiff is not entitled to recover any amount from defendant.
Hence, issue no.2 & 7 are decided against plaintiff and in favour of defendant.
3. ISSUE NO.:- (3) Whether plaintiff has the locus standi to file the present suit?OPP Onus of proving this issue is on the plaintiff.
Defendant in its written statement has taken preliminary objection that plaintiff has no locus standi to claim maintenance charges. According to defendant, tenancy was created with erstwhile New Bank of India vide lease agreement dated 27.08.1982. According to defendant, the maintenance charges if any were to be claimed by the builder or the maintenance agency and since the plaintiff is neither the builder nor the Kewal Krishan Khosla Vs. Punjab National Bank Page No. 14/22 maintenance agency therefore, the present suit for recovery of maintenance charges is not maintainable.
On the other hand, Ld. Counsel for the plaintiff has relied upon Section 69 of the Indian Contract Act. Section 69 of the Indian Contract Act is reproduced herein for the sake of convenience and ready reference.
Section 69 of Contract Act postulates that a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.
Ld. Counsel for the plaintiff argued that since defendant failed to pay maintenance charges etc to builder as agreed, as per clause 11 of Lease Deed dated 27.08.1982, the same were paid by plaintiff on 05.02.2005 vide receipt Ex.PW-1/1 to builder and hence, plaintiff is entitled to recover said amount from defendant.
Plaintiff has alleged that since defendant has failed to pay maintenance charges to the builder, as agreed, the same were paid by plaintiff to builder on behalf of defendant and therefore, the plaintiff is entitled to recover the same from defendant. In view of aforesaid facts and circumstances, I am of the considered view that plaintiff has locus standi to file present suit against defendant.
Hence, issue no.-3 is decided in favour of the plaintiff and against defendant.
4. ISSUE NO.-(4) Whether there is no privity of contract between the parties as pleaded in preliminary objection no.- 8 of the WS?OPD Kewal Krishan Khosla Vs. Punjab National Bank Page No. 15/22 Onus of proving this issue is on the defendant.
The defendant in its written statement has taken preliminary objection that there is no privity of contract between the plaintiff and the defendant.
Though the defendant has taken the aforesaid objection however, the defendant has failed to show/demonstrate as to how there was no privity of contract between the plaintiff and the defendant. No evidence has been led by defendant in order to prove said plea. The plea taken by defendant remained unsubstantiated. The defendant has failed to discharge the onus of proving the aforesaid issue.
Hence, Issue no.(4) is decided in favour of the plaintiff and against the defendant.
5. ISSUE NO.:-(5) Whether the suit is barred u/o 2 rule 2 CPC as pleaded in the WS?OPD Onus of proving this issue on the defendant.
Defendant in its written statement has taken preliminary objection that present suit filed by plaintiff is barred under Order 2 Rule 2 CPC. According to defendant, Plaintiff had earlier filed a suit for possession and recovery of damages/mesne profits in February 1994 wherein plaintiff had neither reserved his right to claim maintenance charges nor had sought permission from said competent Civil Court to file a separate suit for recovery of maintenance charges. According to plaintiff, the said suit was decreed on 15.07.2003 and defendant had vacated the premises on 23.02.2004. According to plaintiff, in view of aforesaid facts and circumstances, the present suit for recovery of maintenance charges is Kewal Krishan Khosla Vs. Punjab National Bank Page No. 16/22 barred by order 2 Rule 2 CPC. According to defendant, plaintiff had also filed another suit for permanent injunction wherein it was prayed that defendant be directed to pay maintenance charges, however, the said suit was dismissed in default on 06.05.2004.
On the other hand, Counsel for the plaintiff argued that cause of action for the previous suit and cause of action for the present suit are altogether different and Order 2 Rule 2 CPC is not applicable in present case.
Order 2 Rule 2 of CPC lays down the general principle that a suit must include whole claim which the plaintiff is entitled to make in respect of a cause of action and if he does not do so then he is liable to face the consequence mentioned therein. Order 2 Rule 2 CPC is reproduced herein for sake of convenience and ready reference:-
"2.Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim :- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs:- A person entitled to more than one relief in respect of the same cause of action may sue for all or any such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
A perusal of aforesaid provision of law clearly shows that once the Kewal Krishan Khosla Vs. Punjab National Bank Page No. 17/22 plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the same cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as Sub-Rule 3 is concerned before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is same in both the suits and if in the earlier suit, plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press into service in that suit cannot be subsequently prayed for except with the leave of the Court.
A constitution Bench of Hon'ble Supreme Court of India in Gurubux Vs. Bhoora Lal reported as AIR 1964 SC 1810 has held that "an order that a plea of a bar under Order 2 Rule (3) of CPC should succeed the defendant who raise the plea must make out (1) that second suit was in respect of the same cause of action as that of which the previous suit was based (2) that in respect of that cause of action, the plaintiff was entitled to more than one relief (3) that being thus entitled to more than one relief, the plaintiff without leave obtained from the Court, omitted to sue for the relief which the second suit had been filed. From this analyses it would be seen that the defendant would have to establish primarily and to start with precisely cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim Kewal Krishan Khosla Vs. Punjab National Bank Page No. 18/22 in the later suit is based there would be no scope for the application of the bar.
Plaintiff had filed earlier suit for possession and damages/mesne profits. Photocopy of plaint of said earlier suit is Mark E. The said suit was decreed on 15.07.2003. Perusal of Mark E i.e. plaint of earlier suit shows that the said suit was filed by plaintiff herein against the defendant who was a tenant in the said property on the ground that the tenancy of the defendant was terminated vide legal notice but despite service of legal notice, defendant failed to vacate the said property. Hence, suit for possession and damages/mesne profits was filed by plaintiff against defendant.
Perusal of Mark E i.e. plaint of earlier suit vis-a-vis present plaint shows that cause of action for filing the earlier suit for possession etc against the defendant was different from the cause of action of the present suit. Cause of action for filing the suit for permanent injunction against the defendant was also different from the cause of action of the present suit. The plaintiff filed earlier suit for possession as defendant failed to deliver possession of said property despite the termination of tenancy whereas present suit has been filed on the ground that plaintiff had deposited the amount of maintenance charges etc. with the builder on behalf of the defendant and defendant has failed to reimburse the same to plaintiff.
Plaintiff could not have claimed the relief sought in the present suit, in the earlier suits as the cause of action for filing the present suit was not available at that stage. The claim of the plaintiff in present suit is based on Section 69 of Contract Act therefore, he could not have claimed Kewal Krishan Khosla Vs. Punjab National Bank Page No. 19/22 the amount of maintenance charges from the defendant unless and until same have been paid by him to the builder on behalf of the defendant. Plaintiff deposited/paid the maintenance charges to builder on 05.02.2005 vide receipt Ex.PW-1/1. Hence, cause of action to recover the said amount arose in favour of plaintiff on 05.02.2005 i.e. after he made the said payment.
The cause of action for filing of the present suit is altogether different from the Cause of action of earlier instituted suit filed by plaintiff against the defendant and the relief sought by the plaintiff by way of present suit was not at all available or could not have been claimed at the time of filing of the previous suits. Therefore, Order 2 Rule 2 CPC is not applicable in the facts and circumstances of the present case. The present suit is not barred under Order 2 Rule 2 CPC.
Hence, issue no.-(5) is decided in favour of plaintiff and against the defendant.
6. ISSUE NO. (6) Whether the suit is barred by time as pleaded in the WS?OPD Onus of proving this issue is on the defendant.
Defendant in its written statement has taken preliminary objection that suit filed by plaintiff is barred by limitation. However, defendant in its written statement has not elaborated as to how the same is barred by limitation. Defendant has merely pleaded that the plaintiff came to know about the arrears of maintenance charges in January 2004 and has filed the present suit on 15.02.2007 and therefore the present suit is barred by limitation.
Kewal Krishan Khosla Vs. Punjab National Bank Page No. 20/22Plaintiff has filed present suit on the basis of lease deed dated 27.08.1982. As per Clause 11 of said lease deed defendant was liable to pay maintenance charges etc. to the builder. According to plaintiff, defendant failed to pay the same and therefore, plaintiff was constrained to pay the same to builder on behalf of defendant. Plaintiff paid the said amount to builder on 05.02.2005 vide receipt Ex.PW-1/1.
Section 69 of Contract Act postulates that a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.
Plaintiff could have recovered the said amount under Section 69 of the Contract Act from the defendant only once he had paid the said amount to the builder. Plaintiff had paid said amount to builder on 05.02.2005 vide receipt Ex.PW-1/1. Therefore, cause of action for seeking recovery of the said amount arose in favour of plaintiff on 05.02.2005. The suit for recovery of the said amount paid by the plaintiff on behalf of defendant could have been filed within three years from that date. The present suit has been filed on 15.02.2007 i.e. within three years from the commencement of the cause of action.
The Hon'ble Nagpur High Court in Case titled as Tota Ram Jawahar Lal Vs. Harish Chand reported as AIR 1937 Nagpur 403 has held that "The right to be reimbursed arises under Section 69 of the Contract Act on a contract either express or implied to reimburse, and the limitation is three years from the date on which the money was paid".
In the present case, money was paid by plaintiff on 05.02.2005. The suit could have been filed upto 04.02.2008. Present suit was filed on Kewal Krishan Khosla Vs. Punjab National Bank Page No. 21/22 15.02.2007 i.e. within the period of three years from the date of making the payment. The present suit is thus within the period of limitation. Defendant has failed to prove aforesaid issue in his favour. Hence, Issue no.-6 is decided against defendant and in favour of plaintiff.
7. ISSUE NO.(8):- RELIEF In view of my findings on the aforesaid issues, the plaintiff is not entitled for any relief. The suit filed by plaintiff is hereby dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to record room after completion of necessary formalities.
Announced in the open Court (DEEPAK DABAS)
Dated : 25th April 2018 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
Kewal Krishan Khosla Vs. Punjab National Bank Page No. 22/22