Delhi District Court
Mr. Kunal Soin vs Mr. Jetha Mal Nahta on 29 January, 2014
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IN THE COURT OF SHIRISH AGGARWAL, CIVIL JUDGE -1
CENTRAL DISTRICT, DELHI
SUIT NO: 529/08
UNIQUE CASE ID: 02401C1164812008
Mr. Kunal Soin
S/o Mr. Kiran Kumar Soin
R/o 2/63, Safdarjang Enclave
New Delhi
...Plaintiff
VERSUS
Mr. Jetha Mal Nahta
S/o Late Mr. B.M. Nahta
Prop. of Kiran Plastic Industries
B-25, DDA Shed Okhla Industrial Area
Phase-II, New Delhi-110020
.... Defendant
Date of Institution : 04.09.2008
Date of Pronouncing Judgment : 29.01.2014
SUIT FOR POSSESSION, RECOVERY OF ARREARS OF RENT
AND DAMAGES
Judgment
1.The plaintiff has pleaded in the plaint that he is owner of property bearing no. B-25, DDA Industrial Shed, Okhla Industrial Area, Phase-II, New Delhi-110020 (hereinafter referred to as "the suit property"). It is pleaded that the defendant is a tenant in the suit property at the monthly rate of rent of Rs.5,500/-. It is also stated that the defendant has paid rent till only March, 2007. It is stated that the plaintiff has terminated the tenancy by issuing a Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:1/17 2 notice under Section 106, Transfer of Property Act, 1882 dated 05.5.2008. It is further pleaded that by this notice, tenancy was terminated on 31.5.2008 and the defendant was called upon to pay arrears of rent.
2. Since the defendant did not vacate the suit property despite termination of tenancy, the defendant is in unauthorized occupation of the same and is liable to pay mesne profits for use of the suit property for the period starting on 01.6.2008 till possession is delivered. It is stated that the market rate of rent of the suit property is Rs.75,000/- p.m. Therefore, the defendant ought to pay mesne profits to the plaintiff at this rate for the period starting on 01.6.2008 till the possession of the suit property is handed over.
3. It has further been pleaded that the defendant has raised unauthorized construction in the suit property without the permission of the plaintiff.
4. On the basis of these averments, the plaintiff filed the present suit for recovery of possession of the suit property, arrears of rent and damages calculated till filing of the suit totalling Rs.2,43,500/-. The plaintiff has further sought recovery of future damages at the rate of Rs.75,000/- p.m.
5. After service of summons, the defendant filed written Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:2/17 3 statement. He admitted that the current rate of rent is Rs.5,500/- p.m. He denied that he has not been paying rent to the plaintiff. It has been stated that he had tendered rent to the plaintiff by issuing cheques but the cheques were not presented to the bank for encashment. He admitted in the Written Statement that cheques of the period starting on April, 2007 were not presented by the plaintiff for encashment.
6. The defendant has denied having being served with the legal notice dated 05.5.2008. He further denied having raised any unauthorized construction in the suit property.
7. The defendant has denied that the plaintiff is entitled to receive damages or mesne profits for the alleged illegal use and occupation of the property.
Issues
8. The following are the issues framed by the Ld. Predecessor of the Court by order dated 11.01.2010:
1. Whether the no notice is required by Section 106 of Transfer of Property Act was served upon the defendant? OPD
2. Whether the plaintiff is entitled to the recovery of the suit premises as prayer for? OPP
3. Whether the plaintiff is entitled to the recovery of sum of Rs.2,43,500/- as arrears of rent alongwith interest as prayed for? OPP
4. Whether the plaintiff is entitled to the damages @ Rs.75,000/- p.m. from the date of filing of the suit till recovery of possession? OPP Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:3/17 4 Evidence
9. To prove his case, the plaintiff examined himself as PW1 and his father, Mr. Kiran Kumar Soin as PW2. PW1 deposed the facts as mentioned in the plaint and relied upon the following documents:
Ex.PW1/1 : Site Plan
Ex.PW1/2 : Lease Deed
Ex.PW1/3 : Letter dated 26.3.2008
Ex.PW1/4 : Letter dated 05.5.2008
Ex.PW1/5 : UPC and postal receipts (colly)
10. PW2 has proved his evidence by way of affidavit as Ex.PW2/A in which he has testified that the rate of rent was Rs.5,500/- p.m. and the defendant has not paid rent since 31.3.2007. He further testified that the defendant has raised unauthorized construction in the suit property.
11. Plaintiff's evidence was closed on 05.5.2012.
12. To defend himself, the defendant examined himself as DW1. DW1 deposed the facts as mentioned in the Written Statement and relied upon the following:
Ex.DW1/1 : Statement of payment of rent
(colly)
Ex.DW1/2 : Water Consumption Bill
Ex.DW1/3 : Factory License
Ex.DW1/4 : Pollution Control Certificate
Ex.DW1/5 : Sales Tax Receipt
Ex.DW1/6 : Registration Certificate
Ex.DW1/7 : Industrial License
Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:4/17
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13. During cross-examination of the defendant, the
defendant admitted that he had been served with the legal notice of the plaintiff dated 05.5.2008. He further testified that he is "unable to say" whether he had replied to this notice or not. He further testified that the rate of rent was Rs.5,500/- p.m. which he later increased to Rs.7,500/- p.m. Defendant's evidence was closed on 22.11.2012.
14. I have perused the record and have heard arguments. The suit has been filed within the period of limitation. This court has jurisdiction to try the present suit. The issue-wise findings are as under:
Issue No.1 Whether the no notice is required by Section 106 of Transfer of Property Act was served upon the defendant? OPD
15. Onus to prove these issues was upon the defendant. The plaintiff has proved the legal notice under Section 106, Transfer of Property Act, 1882 as Ex.PW1/4 and UPC and postal receipts as Ex.PW1/5 (colly).
16. Even though, in the Written Statement, the defendant has denied having been served with the aforementioned legal notice, during cross-examination, he deposed the following:
"I had received a legal notice Ex.PW1/4. I am unable to say that whether I have replied or not to this legal Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:5/17 6 notice".
17. From the aforementioned deposition of the defendant, it is evident that the defendant had indeed been served with the legal notice Ex.PW1/4.
18. In view of Section of 58 of Indian Evidence Act, 1872, anything admitted need not be proved. The defendant has admitted having been served with the notice. Therefore, the plaintiff is discharged from the burden of proving that the notice had been served upon the defendant.
19. As is evident from the pleadings, the suit property was let out to the defendant for manufacturing purposes. Section 106 of the Transfer Property Act, 1882 provides that in absence of a contract to the contrary, a lease of immovable property for manufacturing purposes shall be terminable by service of a six months notice. It is the case of the defendant that after February, 1995, a fresh written lease agreement was entered into between the plaintiff and the defendant. PW1 & PW2 have not disputed the same. But neither of the parties have placed on record the lease agreement. Since the fresh written lease agreement has not been placed on record, it shall be presumed that there is no contract to the contrary laying down that the present lease shall be terminable by other than a six months notice.
Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:6/17 7
20. This position of law is clearly borne out from the decision of Hon'ble High Court of Delhi in the case of Deenar Builders Ltd. v. M/s. Khoday Distilleries Ltd. AIR 2000 Del 147. Section 106 of the Transfer of Property Act reads as under :
"In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property".
21. According to the plaintiff, the tenancy has been terminated by service of notice in conformity with the aforementioned provision. In support of this contention, the plaintiff has placed reliance on the testimony of PW1 i.e. the plaintiff himself. The plaintiff PW1 has stated in the affidavit Ex.PW1/A that he had sent the aforementioned legal notice Ex.PW1/4 which was duly served upon the defendant and which terminated the tenancy. This assertion of PW1 is corroborated by the legal notice Ex.PW1/4 and UPC and postal receipts Ex.PW1/5 (colly). The genuineness of the receipts Ex.PW1/5 (colly) has not been questioned by the defendant in the cross-examination of PW1 or in defence evidence. Nothing has been brought on record which could cast doubt on the genuineness of the receipts. Hence Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:7/17 8 the said receipts can be relied upon. From the receipts, it is apparent that the legal notice has been sent by registered post and UPC. The address at which the notice has been sent is that of the suit property which is admittedly in possession of the defendant. It is also not the case of the defendant that he was not in occupation of the said property when the legal notice was dispatched. From the testimony of PW1, duly corroborated by the legal notice, UPC and postal receipts, it is clear that the notice had been sent at the correct address. The defendant has failed to disclose any reason which could have prevented the service of notice upon him. Under Section 114 of Evidence Act, the existence of facts which are likely to have happened in the ordinary course of human conduct and business may be presumed. Particular reference may be made to illustration (f) of Section 114. By common course of business, the legal notice would have been received by the defendant. Under Section 27 of the General Clauses Act, 1897 also, the service of legal notice upon the defendant may be presumed.
22. As held in the case of Madan Lal Sethi Vs. Amar Singh Bhalla, 1980 (2) AIRCJ 543, a mere bald denial by the defendant of service of notice is not sufficient to rebut the presumption under Section 114 of illustration (f) of the Evidence Act. Some other evidence to show the interruption of post has to be adduced by the tenant.
Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:8/17 9
23. On this point, the Hon'ble High Court of Delhi has, in the case of Vinod Khanna v. Bakshi Sachdev (Deceased) through LRs, AIR 1996 Delhi 32 noted thus:
"From Ex. P-1 to P-11 it is proved and established that the aforesaid notice dated 12.12.1988 (Ex. P-1) terminating the tenancy was dispatched to defendant No. 2 at its registered office and also to the appellant No. 1 and 3 at their addresses at 5, Golf Links, where they were admittedly residing, as is disclosed from the evidence of DW 1/appellant No. 1. In view of the despatch of the said notices to the appellants/defendants individually at their proper addresses now the question arises as to whether a presumption of service of notice could be drawn in favour of the plaintiff or not. The basic law of presumption of service of notice is permitted under the provisions of Section 27 of the General Clauses Act and also under the provisions of Section 114 of the Evidence Act. The earliest case on the issue of drawing of presumption of service under such circumstances is probably the case of Hari Har Bannerjee v. Ram Shashi Roy, AIR 1918 Privy Council 102, wherein it was held that if a letter properly directed containing a notice to quit, is proved to have been put in the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender had taken the precaution to register. In the case of M/s. Madan v. Wazir J.V. Chand the Apex Court had held that all that a landlord can do is to comply with the provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address and that once the same is done and a letter is delivered to the post office, he has no control over it and that it can then be presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. The above being the settled law and in the present case it having been proved by the plaintiffs that a notice as envisaged under Section 106 of the Transfer of Property Act having been issued by the plaintiffs to the concerned defendants at their residential address in accordance with law, it can well be presumed under the aforesaid provisions - statutory as well as case laws - that the said notices have been duly served on the said defendants and therefore, in that view of the letter we do not find any infirmity to interfere with the findings of the learned trial court that the notice terminating the tenancy was duly, properly and validly served on the defendants."
24. Reference may also be made to the case of C.C. Alavi Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:9/17 10 Haji Vs. Palapetty Muhammed & Anr., 2007 (2) DCR 321 SC in which the Hon'ble Supreme Court held as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business".
25. It can therefore be safely presumed that the said legal notice was duly served upon the defendant.
26. This is besides the fact that during cross-examination, the defendant has admitted having been served with legal notice Ex.PW1/4.
27. The legal notice Ex.PW1/4 states that the defendant shall vacate the suit property by 31.5.2008. The notice was dispatched on 06.5.2008 as evident from UPC and postal receipts Ex.PW1/5 (colly). Having regard to the ordinary course of business, it is reasonable to assume that the notice (which was dispatched from and was destined for Delhi) reached the defendant on or before 15.5.2008. However, the notice did not afford the requisite six months time period for vacating the property which is provided under Section 106 Transfer of Property Act, 1882. Therefore, the date of termination of the lease as has Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:10/17 11 been stated in the notice is not tenable as it is contrary to law. However, this shall not make the notice completely void. This is so because by serving the legal notice upon the defendant, the plaintiff expressed his unequivocal intention to terminate the lease. The lease shall be deemed to have been terminated after six months from 15.5.2008 i.e. on 15.11.2008.
28. In these circumstances, it is held that notice under Section 106 of the Transfer of Property Act, 1882 was served upon the defendant. Hence, this issue is accordingly decided against the defendant and in favour of the plaintiff.
Issue no.2 Whether the plaintiff is entitled to the recovery of the suit premises as prayer for? OPP
29. Onus to prove this issue was upon the plaintiff.
30. The plaintiff has alleged that the defendant had done illegal and unauthorized construction in the suit property. The plaintiff has further alleged that the defendant is a habitual defaulter in making payment of rent. The defendant has denied these assertions and has pleaded that in case he is called upon to vacate the property, he shall suffer significant losses in his business which he is operating from his suit property. It has further been pleaded that on the other hand, plaintiff has other Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:11/17 12 properties and therefore does not really need the present suit property.
31. I am of the considered opinion that for the purpose of deciding the present suit, it is immaterial whether the defendant has done any illegal and unauthorized construction in the suit property. It is further immaterial whether the defendant has been a habitual defaulter in making payment of rent or not. It also does not make any difference to the decision of the present case even if the plaintiff has other properties and even if the defendant suffers losses in his business in case he is called upon to vacate this property.
32. None of these contentions, even if accepted to be correct, affect the entitlement of the plaintiff to recover possession since the plaintiff is not seeking recovery of possession on the basis of breach of conditions of tenancy but on the basis of notice terminating the tenancy. Even the Delhi Rent Control Act does not apply to the facts of the present case. Hence, the aforesaid contentions are of no relevance to the present issue and are not required to be determined herein. The only contention of the defendant that merits consideration is whether the notice dated 05.5.2008 Ex. PW1/4 was served upon the defendant and if so, the effect thereof. As has already been held hereinabove, the notice was served upon the defendant, by virtue of which, the lease was terminated with effect from Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:12/17 13 15.11.2008.
33. By way of the said legal notice proved as Ex.PW1/4, tenancy of the defendant stood terminated, in keeping with Section 111(h) of the Transfer of Property Act, 1882. The defendant therefore became liable to hand over the vacant possession of the suit property to the plaintiff on 15.11.2008. The same has not been done till date. The plaintiff is therefore held entitled to recovery of possession of the suit property from the defendant. This issue is decided in favour of the plaintiff and against the defendant.
Issues No.3 & 4Whether the plaintiff is entitled to the recovery of sum of Rs.2,43,500/- as arrears of rent alongwith interest as prayed for? OPP Whether the plaintiff is entitled to the damages @ Rs.75,000/- p.m. from the date of filing of the suit till recovery of possession? OPP
34. Onus to prove these issues was upon the plaintiff.
35. It has been alleged by the plaintiff that defendant has not paid rent to him for the period starting on 01.4.2007. The defendant has denied the same. It has been pleaded that rent was tendered by the defendant to the plaintiff by issuing cheques. However, the plaintiff did not present the same to the bank for encashment. In this regard, the following admission as made by Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:13/17 14 the defendant is his Written Statement is relevant:
"Defendant has been paying the rent regularly from time to time by way of cheques but due to malicious intention of the plaintiff none of the cheques with respect to the referred period were presented at the bank for payment. It is submitted that a pay order of amount of Rs.1,04,500/- (Rupees One Lac Four Thousand and Five Hundred Only) has been drawn in favour of Mr. Kunal Soin i.e. the plaintiff, in lieu of the payment of rent from April, 2007 to October, 2008 @ Rs.5,500/- p.m.".
36. From the aforementioned admissions, it is evident that the plaintiff has not received the amount, even if it was tendered. Therefore, there is no need of giving a finding whether the defendant had indeed tendered the rent to the plaintiff or not. The admitted rate of rent is Rs.5,500/- p.m. Therefore, the defendant is liable to pay rent at this rate to the plaintiff for the period starting on 01.4.2007 till the date when tenancy was terminated i.e. 15.11.2008. It has come on record that during the pendency of the suit, the defendant had paid Rs.82,500/- to the plaintiff. Therefore, the plaintiff shall be entitled to arrears of rent after adjusting this amount.
37. For the period after 15.11.2008, since the defendant was in unauthorized occupation of the suit property, he must pay charges for use of property for the period starting on 15.11.2008 till possession is handed over. This inference is strengthened by the decision of Hon'ble Supreme Court in the case of Shyam Charan v. Sheoji Bhai and another AIR 1977 SC 2270, in which it was held that the occupant of a premises is liable to pay mesne Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:14/17 15 profits/damages with effect from the day on which tenancy was terminated.
38. The quantum of rent/mesne profits is next required to be ascertained. Mesne profits has been defined by Section 2(12) of Code of Civil Procedure as profits which the wrongful occupant actually received or might have, with ordinary diligence, received. It has been consistently laid down in a catena of decisions that mesne profits must be awarded on the basis of the market rate of rent.
39. The plaintiff has stated in the plaint that the market rate of rent is Rs.75,000/- p.m. The defendant has stated that he is not liable to pay mesne profits which are sought to be recovered. Order 20 Rule 12 of the Court of Civil Procedure, 1908 contemplates an inquiry to be conducted into the rate of mesne profits after drawing of preliminary decree. In these circumstances, it is held that the plaintiff is entitled to recovery of mesne profits, the rate of which shall be ascertained after conducting of inquiry for the period starting on 15.11.2008 till the time possession of suit property is handed over to the plaintiff. However, for the relief of damages, the plaintiff can be called upon to pay deficient court fee.
40. In these circumstances, issues no.3 & 4 are decided in favour of plaintiff and against the defendant, in part.
Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:15/17 16 Relief
41. In the aforesaid facts and circumstances of the case, the suit is decreed in favour of the plaintiff and against the defendant, in part.
42. The defendant is directed to hand over the vacant possession of the suit property i.e. B-25, DDA Industrial Shed, Okhla Industrial Area, Phase-II, New Delhi-110020, as shown in the site plan Ex.PW1/1, to the plaintiff.
43. A decree for recovery of a sum of Rs.24,750/- as arrears of rent is passed in favour of plaintiff and against the defendant. The plaintiff is also entitled to pendente lite interest on the aforesaid sum at the rate of 9% per annum from the date of institution of the suit till the date of decree and future interest thereon at the rate of 9% per annum from the date of decree till realization.
44. Let a decree sheet with respect to the relief of possession and arrears of rent be prepared accordingly.
45. It is held that plaintiff is entitled to recovery of mesne profits, the rate of which shall be ascertained after conducting of enquiry for the period starting on 15.11.2008 till the time possession of the suit property is handed over to the plaintiff. The plaintiff is also entitled to future interest thereon at the rate of 9% Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:16/17 17 per annum from the date of final decree till realization. This direction shall be executable only after payment of appropriate court fee thereon after setting off the court fee paid on the aforesaid sum by the plaintiff at the time of institution of the plaint. The plaintiff is entitled to recover costs of the suit from the defendant.
46. Let a preliminary decree sheet with respect to the relief of mesne profits, interest thereon and costs be prepared accordingly.
To come up for holding of enquiry on the rate of mesne profits on 05.3.2014.
(Announced in the open court (SHIRISH AGGARWAL)
on 29.01.2014) CIVIL JUDGE-1
CENTRAL DISTRICT
DELHI
Kunal Soin v. Jetha Mal Nahta Suit No.529/08 Page No:17/17