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[Cites 11, Cited by 0]

Delhi District Court

Ms. Sadhna Jain vs M/S Aggarwal Publicity & Marketing ... on 30 November, 2021

                IN THE COURT OF MS NEHA GARG,
            CIVIL JUDGE­01, CENTRAL DISTRICT, DELHI

Suit No:­600184/2016

Ms. Sadhna Jain
wife of Sh. N.K. Jain
r/o K­16/12, DLF City, Phase­II,
Gurgaon­122002, Haryana.                                              .............. Plaintiff

                                             Versus

M/s Aggarwal Publicity & Marketing Private Ltd,
16/534, Joshi Road, Karol Bagh
New Delhi.

Through its Directors Sh. Anil Garg/Ms. Madhu Garg
Second Address:­
Property No. 2149, (First Floor),
Gali No.1, Chuna Mandi, Pahar Ganj,
New Delhi­110055.

Third Address:­
8145/2, Gali No.7, Ara Kashan Road,
Behind Hotel White House,
Multani Dhandha, Pahar Ganj,
New Delhi­110055                                               ............. Defendant


Date of institution of suit                            :       22.07.2009
Date of pronouncement of Judgment                      :       30.11.2021


 SUIT FOR POSSESSION, RENT/DAMAGES/MESNE PROFITS AS
            WELL AS PERMANENT INJUNCTION


 Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd   Page 1 of 34
 JUDGMENT

1. The present suit was filed on 22.07.2009 for possession, rent/damages/mesne profits as well as permanent injunction. The brief facts of the case are that the defendant was inducted as a tenant in respect of first floor portion only of property bearing No. 2149 situated in Gali No.1, Chuna Mandi, Pahar Ganj, New Delhi­110055 by the plaintiff on the monthly rent of Rs. 10,000/­ exclusive of water, electricity and other charges for a period of eleven months commencing with effect from 01.02.2005 to 31.12.2005, that rent agreement was also executed by the defendant through its directors Sh. Anil Garg and Ms. Madhu Garg in this respect. It is further stated that the second floor of the portion of the said property remained in use, occupation and possession of the plaintiff, that the said tenanted portion is shown in red colour in the site plan of the property. It is further averred that the said period of tenancy has long expired with the expiry of 31.12.2005 and since thereafter there has not been any further rent agreement executed in between the plaintiff and the defendant, however thereafter the defendant continued to occupy the said portion of the property as a monthly tenant which was commencing from 1st day of each English Calender month and expiring with the expiry of last day of same English Calendar month. It is further averred that the defendant was making payment of rent by cheque drawn in favour of the plaintiff but the defendant has been the defaulter in payment of monthly rent and in fact the defendant has failed to pay or tender the rent of the tenanted property due w.e.f. January 2009 inspite of demands of the plaintiff, that the defendant as such is liable to pay Rs. 60,000/­ from Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 2 of 34 January 2009 to June 2009.

2. It is further averred that the defendant has also been causing obstructions as well as hindrance to the plaintiff and her representatives etc in the free entrance/passage of the property leading from the stairs from ground floor to the second floor portion which action on the part of the defendant has been in breach of rights of the plaintiff to her enjoyment of second floor portion of the suit property which is in use, occupation and possession of defendant, that the said action also amounts to an offence punishable under the provisions of Indian Penal Code. It is further averred that the defendant was required not to create any obstructions as well as hindrance in the free entrance/passage of the property leading to the stairs from ground floor to the second floor and a notice dated 11.06.2009 was also sent by the plaintiff through her counsel to the defendant but the defendant instead of resisting itself changed the locks of the entrance keys of which have been retained by the plaintiff and defendant as such on 28 th June 2009 the plaintiff could not enter in the property and plaintiff was forced to lodge a complaint with the SHO of PS Pahar Ganj, New Delhi on 01.07.2009 for registration of case against the defendant and its directors since said act of the defendant and its directors was against the law. It is further averred that the defendant has no right to stop the ingress and egress of the plaintiff to the second floor portion of the property from ground floor entrance and defendant is liable to be restrained from doing so.

3. It is further averred that the defendant has been in arrears of rent and Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 3 of 34 has also been causing obstructions, interference as well as hindrance to the plaintiff in the enjoyment of the second floor portion of the plaintiff which is in use, occupation and possession, the monthly tenancy of the defendant was terminated vide legal notice dated 11.06.2009 sent by the plaintiff through her Advocate, that the monthly tenancy of the defendant was terminated with the expiry of 30.06.2009 and it was also mentioned in the notice that the defendant should take its tenancy to be terminated with the expiry of fifteen days from the date of receipt of the said notice. It is further averred that the vide said notice dated 11.06.2009 the defendant was required to hand over the vacant and peaceful possession of the first floor portion of property No.2149, Gali No.1, Chuna Mandi, Pahar Ganj, New Delhi to the plaintiff on or before the expiry of the tenancy otherwise w.e.f. 01.07.2009 onwards its possession in respect of said property shall not only be illegal and unlawful but shall also be unauthorised and the defendant shall also be held liable and responsible for the payment of damages/mesne profits etc on the market rate of rent which is Rs. 20,000/­ per month at present. It is further averred that the defendant was also required to pay the arrears of rent up to date with interest @ 15% per annum within 15 days from the date of receipt of said notice and the defendant was further called upon not to create any obstructions as well as hindrance in the free entrance/passage of the property to the plaintiff leading from the stairs from ground floor to the second floor portion of the property with the said notice, that it was also mentioned therein that the plaintiff be constrained to file appropriate legal proceedings against the defendant in the Court of law for recovery of Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 4 of 34 possession, rent, damages/mesne profits as well as injunction etc by holding the defendant to be liable and responsible for all the costs and consequences, that the said notice was received by the defendant but the defendant has failed to comply with the same as such w.e.f. 01.07.2009 onwards its possession in respect of said property is not only be illegal and unlawful but has also be unauthorised and the defendant is liable and responsible for payment of damages/mesne profits etc on the market rate of rent which is Rs. 20,000/­ per month. It is further averred that defendant cannot be allowed to continue to remain in illegal as well as unautorised possession of the property and the defendant is liable to be ejected. It is further averred that the said notice was duly replied by the defendant vide reply dated 30.06.2009 and that the said reply is false and frivolous. It is further averred that the plaintiff came in contact with the defendant in the year 2005 when the premises was let out and not earlier as mentioned in the said reply. It is further averred that from perusal of the said reply it was revealed that the defendant has admitted the fact of letting of the suit property vide said rent agreement dated 31.01.2005 by the plaintiff as well as the fact that the rate of rent has been Rs. 10,000/­ which was being paid by defendant to the plaintiff by cheque and paid the rent up to December 2008 and defendant has failed to pay or tender the rent due w.e.f. January 2009 onwards as such defendant is in arrears of rent since thereafter and liable to pay to the plaintiff since the defendant cannot be allowed to enjoy the property without payment of rent as well as the defendant cannot be allowed to commit breach of terms and conditions of contractual obligations. It is further Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 5 of 34 averred that on further perusal of said reply it has been found that the defendant has declined to vacate the property as well as declined to pay the the rent/damages/mesne profits on the ground that the plaintiff is not the owner of the property. It is further averred that the defendant once admitted to be the tenant under the plaintiff and also admitted having executed rent agreement dated 31.01.2005 by virtue of which the premises were let out to the defendant in such eventuality the defendant cannot be allowed to dispute the rights of the plaintiff by claiming that the plaintiff is not the owner of the property. It is further averred that since the defendant has failed to hand over the possession of the property and in fact refused to hand over the same as well as to pay the arrears of rent etc inspite of termination of its tenancy as such the defendant is also liable to pay damages/mesne profits at the rate of Rs. 20,000/­ per month w.e.f. 01.07.2009 which is at present the the market rate of rent in the area/locality if the plaintiff lets out the suit property on rent to any other person. It is further averred that the plaintiff is entitled to claim arrears of rent etc along with the amount of damages/mesne profits/use and occupation charges as admittedly the defendant is still in use, occupation and possession of the property and enjoying the same without payment of damages/mesne profits/use and occupation charges inspite of termination of its tenancy as such the defendant is also liable to pay damages/mesne profits.

4. It is further stated in the plaint that the cause of action has arisen in favour of the plaintiff and against the defendant firstly when the rent Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 6 of 34 agreement dated 31.01.2005 was executed by the defendant through its directors Sh. Anil Garg and Ms. Madhu Garg, that it again arose when the tenancy of the defendant expired by effiux of time with the expiry of 31 st December, 2005 and since thereafter there has not been any further rent agreement executed in between the plaintiff and the defendant, that it again arose when the defendant continued to remain monthly tenant w.e.f. January 2006 after the expiry of its tenancy with the expiry of 31 st December 2005, that it further arose when the defendant defaulted in the payment of rent due w.e.f. January 2009 and also started harassing the plaintiff by causing obstructions, hindrance etc in the enjoyment of second floor portion of the property by closing the entrance of second floor portion of the property by closing the entrance from ground floor and did not refrain itself dated 11.06.2009, that it again arose when the defendant interfered in the enjoyment of the second floor portion of the property and a police complaint has been lodged on 29.06.2009. It is further averred that cause of action again arose when the tenancy of the defendant was terminated vide legal notice dated 11.06.2009 with the expiry of 30.06.2009 and/or after fifteen days of receipt of the said notice by the defendant and w.e.f. July 2009 the possession of the defendant has been illegal as well as unlawful, that it again arose when the defendant became unauthorised and illegal occupant of the suit property which the defendant is liable to vacate and pay mesne profits etc, that it again arose when the defendant failed to comply with the notice dated 11.06.2009 and that is continuing with the illegal possession of the property which cannot be allowed to be done by defendant, that it again Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 7 of 34 arose when the plaintiff learnt about the intention of the defendant to part with possession of the property to third person illegally and unlawfully, that it again arose on the receipt of reply dated 30.06.2009, on 03.07.2009 which was however posted by registered AD post on 2nd July 2009 wherein the defendant has declined/refused to hand over the vacant possession of the property and pay the dues etc, that the cause of action is still continuing in favour of the plaintiff and against the defendant.

5. Summons of the suit were issued to the defendant by the Ld. Predecessor of this court upon which the defendant had put appearance and thereafter the matter was listed for filing of Written Statement on behalf of defendant.

6. Written statement was filed on behalf of defendant wherein averments made in the plaint were denied and it is submitted that the plaintiff has not come to the Court with clean hands and has suppressed the material facts, that the plaintiff cannot be allowed to take advantage of her own wrongs, that on one hand the plaintiff has committed fraud by mis leading the defendant to the effect that she is the landlord of the property, that plaintiff has got no right, title or interest and that she is neither the landlord nor the owner because the property belongs to the Slum Department of Municipal Corporation of Delhi. It is further submitted that by concealment of facts, the plaintiff has represented herself to be the owner of the property way back on 31.01.2005 and had allowed the defendant to use and enjoy the first Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 8 of 34 floor portion of the property and had also started charging the rent at the rate of Rs. 10,000/­ per month, though she had got no right either to let out the property to charge the said rent. It is further submitted that the defendant is trying to get the necessary documents in this regard from the Slum Department of Municipal Corporation of Delhi, that the even otherwise, the alleged lease deed dated 31.01.2009 was for a period of 11 months only and was an unregistered documents, that its terms and conditions cannot be read for such purposes which has already been held by the Hon'ble High Court in various judgments /judgment in this regard reported in 155(2008) Delhi Law Times titled as National Textile Corporation Ltd & Anr Versus Ashwal Vaderas. It is further submitted that the intention of the plaintiff was to create permanent, regular, continuous and perpetual lease as the premises under the occupation and possession of the defendant was lying vacant without any use and without any electricity and water connection which was applied and obtained by defendant later on, that the second floor portion of the property is still lying without any use and without any electricity and water connection and that the defendant never visited the second floor portion of the property at any time. It is further submitted that the plaintiff is a housewife and her husband Sh. N.K. Jain is doing the business of aluminum coils and other allied items under the name and style of /s Metal Udyog at 4, Maharashtra Bhawan, DBG Road, Pahar Ganj, New Delhi, that even at the time of letting the defendant was allowed to occupy the first floor of the property, the husband of the plaintiff had informed that the entire property is lying vacant without any use, that it was clearly stated by Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 9 of 34 the plaintiff through her husband that they have no intention to get the property vacated at any stretch of time and the alleged lease is being created once for all, that the present suit is a gross misuse of the legal process of law and liable to be dismissed. It is further submitted that defendant came to know about the actual facts that the plaintiff is neither the owner nor the landlady of the property and she has not only committed fraud but also cheated the defendant by misrepresenting that the plaintiff is owner of the property. It is further submitted that the property has also received an amount of Rs. 50,000/­ as security from the defendant by concealing the fact that she is not the owner of the suit property and in this manner the plaintiff has committed cheating and fraud with the defendant and the defendant reserves its right to move to the police authorities for registration of the criminal case against the plaintiff in this regard under the relevant provisions of law. It is further submitted that the fact of cheating/fraud came to the knowledge of the defendant only in the month of January 2009 when the officials of the Slum Department of Municipal Corporation of Delhi visited/inspected the property and it was specifically mentioned that second floor of the property is lying vacant/locked and without any use and it is those officials who informed that the defendant is not required to pay any rent to any other except to the MCD(Slum Department) and only thereafter, the defendant asked the plaintiff through her husband to show either the documents of title and also informed then that the defendant will pay the rent to the plaintiff only after showing the documents of title in her favour which the plaintiff has miserably failed to show and rather as a counter blast Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 10 of 34 the present suit has been filed. It is further submitted that the present suit has been filed by the plaintiff just as a pressurizing tactics to bow against the unlawful and illegal demands of the plaintiff to enhance the rent. It is further submitted that for the last many months, the plaintiff through her husband has been approaching the defendant to purchase the first floor as well as the second floor of the property as the property is of no use for them and is lying vacant but since no document of title was available with the plaintiff as such the defendant did not agree for the said deal.

7. It is further admitted in the written statement that the defendant was inducted as a tenant in respect of the first­floor portion only of property bearing No. 2149 and situated in Gali No.1 Chuna Mandi, Paharganj, New Delhi­110055 by the plaintiff on the monthly rent of Rs. 10,000/­ and other charges. It is further admitted by the defendant that a rent agreement dated 31.01.2005 was executed by the defendant. It is submitted that the site plan annexed with the plaint is not true and correct according to the site. It is further submitted that the legal notice was duly replied by the defendant through its Counsel vide reply dated 30.06.2009 wherein the plaintiff was conveyed with all the submissions but inspite of the same, the plaintiff has filed the present false and frivolous suit against the defendant knowingly well that the present suit is not maintainable.

8. Replication was filed on behalf of plaintiff wherein contents of the written statement were denied and averments made in the plaint were Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 11 of 34 reaffirmed.

9. On completion of pleadings, following issues were framed by this court vide order dated 16.10.2021:­

1.Whether plaintiff is entitled to recovery of arrears of rent amounting Rs. 60,000/- along with interest at the rate 15% per annum. OPP

2.Whether the plaintiff is entitled to recovery of damages/mesne profits for unauthorised use and occupation of the premises at the rate of Rs. 20,000/- per month or on such higher rate as is found to be the market rate along with interest at the rate 15% per annum, from the date of filing of the suit till handing over the vacant possession of the premises, as prayed for? OPP

3.Whether plaintiff is entitled to recovery of Rs.47,570 towards water charges? OPP

4.Whether defendant has paid a refundable security deposit of Rs.50,000 to the plaintiff? If the present issue is answered in the affirmative, then what is the effect of the same? OPD Evidence:­

10. Thereafter the matter was listed for plaintiff's evidence. Sh. N.K. Jain, attorney of the plaintiff was examined as PW­1. PW­1 tendered his evidence by way of affidavit Ex.PW1/A and relied upon the documents i.e. (Mark A) copy of rent agreement dated 31.01.2005, (Mark B) copy of legal notice Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 12 of 34 dated 11.06.2009, (Ex.PW1/3) Reply dated 30.06.2009 to the legal notice, (Ex.PW1/5)(OSR) GPA dated 07.04.2015 in favour of PW­1.

Additional affidavit in evidence was also tendered by PW­1 which is Ex.PW1/B and relied upon documents (Ex.PW1/4) original Water bill of September 2015.

PW­1 was duly cross examined at length by Ld. Counsel for the defendant and discharged.

PW­2 was the summoned witness, who deposed that he is a property dealer and is doing this business since year 2013 in the area of Chuna Mandi, Pahar Ganj, New Delhi and that he has seen the property No. 2149, Gali No.1, Chuna Mandi, Pahar Ganj, New Delhi and that he has seen its first floor in the year 2013, and that the market rent of the first floor portion is around Rs. 20,000/­ per month and that he cannot say what was the rate of rent in the market in the year 2009 since he started his working in the year 2013.

PW­2 was not cross examined despite opportunity.

Thereafter, the plaintiff evidence was closed vide Order dated 07.03.2018 upon separate statement of attorney of the plaintiff recorded in this regard and the matter was listed for defendant's evidence.

11. In defendant's evidence, Sh. Anil Garg, the director of the defendant company was examined as DW­1. DW­1 tendered his evidence by way of affidavit Ex.DW1/1.

Thereafter, defendant's evidence was closed vide Order dated Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 13 of 34 27.08.2018 upon separate statement of DW­1/Director of defendant company recorded to this effect and the matter was listed for final arguments.

12. The Ld. Predecessor of this court has decreed the present suit with respect to relief for recovery of possession vide judgment dated 18.08.2012. Thereafter, the matter was fixed for adducing evidence on the aspect of determination of arrears of rent and mesne profits. Therefore, the relief of recovery of possession of suit property is already satisfied and the present judgment is only directed towards determination of arrears of rents and mesne profits due towards plaintiff.

13. Final Arguments advanced on behalf of defendants were heard at length and the record is carefully perused by this court.

Issue­wise Findings :­

14. Issue No. 1:­ Whether plaintiff is entitled to recovery of arrears of rent amounting Rs. 60,000/­ along with interest at the rate 15% per annum. OPP It is admitted position between the parties that the defendant was inducted as a tenant in the suit property by the plaintiff on a monthly rent of Rs. 10,000/­ excluding water and electricity charges w.e.f. 01.02.2005 for a period of 11 months uptil 31.12.2005.

15. The primary contention of the defendant as stated in his WS, reply to Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 14 of 34 notice dated 11.06.2009 and in affidavit of evidence of DW­1 is that the plaintiff is neither the owner nor the land lady as she has got no right, title or interest in the suit property. It is the case of the defendant that in the month of January, 2009 the officials of slum department of the Municipal Corporation of Delhi visited / inspected the suit property and informed the defendant that the defendant is not required to pay any rent through any authority except to the MCD (Slum Department). In other words, the defendant has been challenging the title of the plaintiff.

16. This aspect requires a little analysis in as much as the defendant has taken a defence that the plaintiff do not continue to be its landlord, in view of the facts that the slum and JJ department had issued a letter dated 17.08.2009 bearing no. F/11/J/DDA/08/D271 wherein it has been stated that the property is under the management and control of slum and JJ Department. As per the defendant, the same takes away the ownership rights of the plaintiff in respect of the suit property and hence she cannot be termed as a landlord in respect of the suit property.

17. Section 116 of Indian evidence act creates an estoppel on the tenant or a licencee or immovable property from denying the title of his landlord unless the possession in respect of immovable property is being given up or surrendered. The aforesaid preposition of law has been duly explained by the Hon'ble Apex Court in S.K. Sharma vs Mahesh Kumar Verma AIR 2002 SC 3294, wherein the Hon'ble Court has held that Section 116 creates Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 15 of 34 a complete estoppel against the tenant to dispute the ownership of the landlord during the continuation of his possession. In a judgment reported as 2012 VIII AD (SC) 45 titled State of Andhra Pradesh vs Raghukul Prasad through LRs and others, the Hon'ble Apex Court has not only reiterated the aforesaid preposition of law but has also held that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered the possession by surrender to his landlord.

18. In the instant case, there has been a clear admission on record that the defendant was let into possession of the suit property by the plaintiff for a period of 11 months w.e.f. 01.02.2005 up till 03.12.2005 at the monthly rent of Rs. 10,000/­ and in para 1 of the written statement the admission to this effect is clear and categoric. Defendant has not been able to show as to how any dispute raised by Slum and JJ Department in respect of ownership of the suit property will give a benefit to him as a tenant. It is the settled proposition of law that a landlord may not necessarily be the owner of the rented property and law in this regard needs no reproduction herein.

19. Another ground of defence taken by the defendant in his WS is that from the bare reading alleged lease agreement dated 31.01.2005, it is clear that lease deed was granted in favour of defendant for every year and that it was continuous and perpetual lease and for this reason, the lease is continued since 01.02.2005 till date without any interruption or obstruction.

Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 16 of 34

Since it is not disputed that tenancy has not been further extended after 31.12.2005 as no agreement to this effect was ever executed between the parties, therefore, the defendant has become a month­to­month tenant with respect to suit property w.e.f. 01.01.2006. The arguments of defendant that the perpetual lease has been created in his favour is not legally tenable. The defendant has been served with a quit notice dated 11.06.2009 under Section 106 of Transfer of Property Act. Which has also not been disputed and on the contrary, the same has been duly replied by the defendant vide reply dated 30.06.2009 and to that extant there has been no dispute regarding the notice being issued and received by the defendant.

20. Plaintiff has filed on record copy of rent agreement dated 31.01.2005 and the same has been exhibited as Mark A. Rent agreement dated 31.01.2005 clearly depicts that the rent of the suit premises is Rs. 10,000/­ per month excluding water and electricity charges. DW­1 has admitted in his cross examination that the rate of rent of the suit premises was Rs. 10,000/­ per month.

21. In para 3 of the plaint, plaintiff has averred that defendant is liable to pay Rs. 60,000/­ as the arrears of rent due with effect from January 2009 to June 2009. Per contra, defendant in his WS has vaguely and evasively denied the averments of plaint, without specifically stating when and through which mode he had paid rent of the suit property for the aforesaid period. Therefore, as per provisions of Order VIII Rule 3 and 5 of CPC, the Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 17 of 34 defendant is deemed to have admitted the fact that the rent of the suit property w.e.f. from January 2009 to June 2009 remains unpaid. Reliance is placed on the judgment of the Hon'ble High Court of Delhi in the case of Suzuki Motor vs Suzuki (India) Ltd 2019 (79) PTC 227. Another point that warrants observation is that though defendant has not categorically admitted in his WS that he has not paid the rent of the suit property from January 2009, however, a meticulous reading of the WS would reveal that defendant has submitted in para 6 of the WS that in January 2009 when officials of the Slum Department of MCD visited/inspected the property, defendant was informed that he is not required to pay rent to any authority other than MCD (Slum Department). The same constitutes an implied admission by the defendant in his WS, that the defendant has stopped paying rent of the suit premises w.e.f. January 2009.

22. Therefore, in view of the aforesaid discussion, plaintiff is entitled to arrears of rent of the suit property from January 2009 to June 2009 at the rate of Rs. 10,000/­ per month, amounting to a total of Rs. 60,000/­. Plaintiff has claimed interest @ 15% per annum, however, same appears to be exorbitant, interest @ 6% per annum seems to be sufficient in order to meet the ends of justice.

23. During the course of final arguments, Ld. Counsel for plaintiff has submitted that the Hon'ble High of Delhi vide Order dated 01/03/2013 had directed the defendant to deposit arrears of rent @Rs.10,000/­ per month w.e.f. 28.02.2009 to 28.02.2013 and accordingly the defendant deposited Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 18 of 34 FDR for Rs.4,80,000/­ which has been duly released to the plaintiff. The same averments have been deposed in and substantiated by affidavit of evidence Ex.PW1/A. Defendant has also not denied the said averments of the plaintiff. In fact, DW­1 has admitted in his cross­examination that a sum of Rs.4,80,000/­ was deposited by the defendant towards arrears of rent and mesne profits. Accordingly, Ld. Counsel has submitted that defendant is liable only to pay arrears of rent for the month of January 2009 amounting to Rs.10,000/­. It is clear that only an amount of Rs.10,000/­ is due towards the plaintiff for arrears of rent for the month of January 2009.

24. Accordingly, the present issue is decided in favour of the plaintiff and against the defendant and plaintiff is entitled to arrears of rent of Rs. 10,000/­ along with interest at the rate 6% per annum from the date of filing of suit till its realization.

Issue No.2 Whether the plaintiff is entitled to recovery of damages/mesne profits for unauthorised use and occupation of the premises at the rate of Rs. 20,000/­ per month or on such higher rate as is found to be the market rate along with interest at the rate 15% per annum, from the date of filing of the suit till handing over the vacant possession of the premises, as prayed for? OPP

25. In his written submissions, plaintiff has submitted that vide order dated 22.04.2014 of the Hon'ble High Court, time was granted to the Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 19 of 34 defendant to vacate the suit premises till 31.10.2014 and that in compliance of the said order possession of the suit premises was handed over to the plaintiff on 22.10.2014. DW­1 in his cross examination has admitted that the possession of the suit premises was handed over to the plaintiff in October 2014. The copy of the Order dated 22.04.2014 of the Hon'ble High Court of Delhi is also on record. Therefore, the possession of the suit property was handed over to the plaintiff on 22.10.2014.

26. Plaintiff has deposed in his affidavit of evidence Ex.PW1/A that the market rate of rent was Rs. 20,000/­ per month at the time of the filing of the present suit. Plaintiff has further relied upon Mark B i.e., a legal notice to quit dated 11.06.2009, wherein plaintiff has informed the defendant that on his failure to vacate the suit property, defendant shall be liable to pay damages/mesne profits on the market rate of rent which is Rs. 20,000/­ per month at present.

27. Ld. Counsel for plaintiff has during the course of final arguments, relied upon the judgment of Hon'ble High Court of Delhi in the case of Hindustan Petroleum Corporation vs Mohanjit Singh 2019 (263) DLT 192, wherein it is held as follows:­ "38. By contrast, it is interesting to note that despite the respondent's aforenoted categorical pleadings regarding the rates of rent in the lease property, the only defence offered thereto by the Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 20 of 34 appellant were bald denials. No attempt was in fact made to dislodge the respondent's statements that the lease property was located in a posh locality and that similar land was not available for rate of rent less than Rs. 2,00,000/­ per month.

What emanates from the above is that, essentially, the respondent/landlord's oral evidence in support of his claim for mesne profits remained unrebutted at the stage of adjudication of the suit. In light of the respondent's specific plea and assertions regarding the quantum of mesne profits payable it was incumbent upon the appellant to adduce some evidence, even oral in nature, to demonstrate that the prevailing rate of rent of similar properties in the area, as claimed by the respondent in his claim as well as his testimony was exorbitant. The appellant has miserably failed to discharge this burden.

39. In light of the above discussion, I am unable to appreciate the appellant's plea that there was no evidence in support of the respondent's claim for mesne profits. In my view when evidence of the respondent/witness in the form of statement by way of an affidavit, had been tendered and the same remained uncontroverted, the appellant's Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 21 of 34 plea that no evidence has been led before the Court to justify the grant of mesne profits at the rate of Rs. 2,00,000/­ per month is without any merit.

28. The aforesaid judgment of the Hon'ble High Court in Hindustan Petroleum Corporation(supra) squarely applies to the present matter. Plaintiff has, in para 7 and 9 of his plaint, specifically pleaded that at the time of filing of the present suit the market rate of rent in area/locality is Rs. 20,000/­ per month. Per contra, defendant in his WS has vaguely and evasively denied the averments of plaint, without specifically stating the market rate of rent in area/locality where the suit property is situated. Therefore, as per provisions of Order VIII Rule 3 and 5 of CPC, the defendant is deemed to have admitted the fact that the market rate of rent at the time of filing of suit was Rs. 20,000/­ per month. Reliance is placed on the judgment of the Hon'ble High Court of Delhi in the case of Suzuki Motor vs Suzuki (India) Ltd 2019 (79) PTC 227.

29. Furthermore, PW­1 in his affidavit of evidence has specifically deposed that at the time of filing of suit the market rate of rent is Rs. 20,000/­ per month. PW­1 has further deposed in his affidavit of evidence re­filed on 12.07.2017 that the prevalent market rate of rent is Rs. 35,000/­ per month. Per contra, defendant in his evidence not deposed anything about the market rate of rent at the time of filing of the suit or the prevalent market rate of rent nor has the plaintiff in his cross examination of PW­1 rebutted Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 22 of 34 the deposition of market rate of rent as stated by the plaintiff. Therefore, considering the fact that defendant has failed to lead any evidence, oral or documentary, in respect of market rate of rent and the testimony of PW­1, plaintiff has proved on preponderance of probability the fact that the market rate of rent at the time of filing of suit in the year 2009 was Rs. 20,000/­ per month.

30. Now coming to the other aspect of determination of mesne profits, plaintiff has claimed enhancement of the mesne profits by placing reliance on Hindustan Petroleum Corporation Ltd (supra). The relevant paragraphs are reproduced hereunder:

"41. Further reference may be made to paragraphs 31­ 33 of the decision in National Radio (supra), on which reliance has been placed by the appellant itself, where the Division Bench has, after referring to some of the earlier decisions of this Court, observed asunder:

"31. We find that this Court has in several cases taken judicial notice of the factum of increase of rent and made awards of mesne profits and damages. Notewor­ thy in this behalf is a judicial pronouncement of the Di­ vision Bench reported at (supra) entitled Vinod Kumar v. Bakshi Sachdev. This judgment was delivered by a Division Bench of which one of us (Dr. M.K. Sharma, J.) had delivered the judgment. It was held as under:

Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 23 of 34
"21. The learned Counsel for the appellants also urged before us that the learned Trial Court was not justified in taking a judicial notice of the fact of increase of rents like the suit property and also in providing Rs.
10,000/­ per month as fair amount towards damages/mesne profits in favor of the plaintiff. It is true that no substantial evidence has been led by the plain­ tiff in respect of the increase of rent in the properties like that of the suit property. However, it is a well known fact that the amount of rent for various proper­ ties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of grow­ ing importance being the capital of the country which is a matter of public history. At this stage we may appro­ priately refer to the Court making judicial notice of the increase of price of land rapidly in the urban areas in connection with the land acquisition matters. Even the Apex Court has taken judicial notice of the fact of uni­ versal escalation of rent and even raised rent of dis­ puted premises by taking such judicial notice in case of D.C. Oswal v. V.K. Subbiah .
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22. In that view of the matter we have no hesitation in our mind in holding that the Trial Court did not commit any illegality in taking judicial notice of the fact of in­ crease of rents and determining the compensation in respect of the suit premises at Rs. 10,000/­ per month w.e.f. 19.1.1989, in view of the fact that the rent fixed for the said premises was at Rs. 6,000/­ per month as far back as in the year 1974.......

32. In another Division Bench pronouncement reported at (supra) entitled S. Kumar v. G.R. Kathpalia the issue raised was as follow:

"4. Lastly, the learned Counsel for the appellant vehe­ mently argued that the judgment of the learned Addl. District Judge cannot be sustained insofar as it has fixed damages @ Rs. 50,000/ p.m. It is submitted that in the plaint the plaintiff has claimed damages @ Rs. 10,000/­ p.m. And, therefore, the Trial Court could not go beyond the said figure while fixing the amount of damages/mesne profits. It is true that in the plaint the plaintiff claimed damages @ Rs. 10,000/­ p.m. up to the date of filing of the suit. However, it is to be noted that the plaintiff has further prayed that till such time that the possession of the suit premises is delivered to the plaintiff, the Court may hold an inquiry under Order 20 Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 25 of 34 Rule 12, CPC and determine the mesne profits/dam­ ages and decree in respect thereof may also be passed. The plaintiff has also undertaken to pay the requisite Court fee on such a decree. The Trial Court has consid­ ered the evidence in this behalf and reached a conclu­ sion that the damages/mesne profits for the premises at the relevant time ought to have been @ Rs. 50,000/­ p.m. It is a premises built on a 500 sq. yds. plot in East of Kailash, New Delhi and the period under considera­ tion is the year 1994.....
Respondent/landlord has not led any documentary evi­ dence of the prevalent market rate of other premises in the vicinity. However, keeping in mind the prime loca­ tion of suit premises, its proximity to Community Cen­ tre and commercial activity, we are of the view that a sum of Rs. 25,000/­ p.m. would be a just and fair amount by way of damages/mesne profits from the date of institution of the suit till the delivery of the posses­ sion of the premises. The decree of the Trial Court will stand modified to this extent. The respondent will pay the decree and the requisite Court fee stamps will be deposited in the trial (sic treasury) within four weeks from today."
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43. I may now refer to the next contention of the appel­ lant that considering the admitted position that the re­ spondent had, in his plaint, not claimed mesne profits at a rate higher than Rs.2,00,000/­, the trial Court could not have granted any enhancement or interest thereon; or that the award of any enhancement on the amount of mesne profits as prayed for in the plaint, amounts to granting a relief to the respondent beyond his pleadings. In my opinion, this contention of the ap­ pellant overlooks the fact that the grant of relief for fu­ ture mesne profits at a rate higher than what was claimed in the plaint was, in fact, a natural conse­ quence of the delay in adjudication of the respondent's claim for mesne profits. Merely because the respon­ dent, in his plaint filed in April, 2000, claimed mesne profits at the rate of Rs.2,00,000/­ p.m. the same would not preclude him from subsequently claiming a higher amount towards mesne profits for the period which has elapsed during the pendency of the suit, especially in cases like the instant one where the suit remained pend­ ing for over a period of 15 years. Unscrupulous parties delaying the disposal of cases is a common sight in our litigation system and even when the landlord/owner of the suit property succeeds in obtaining a decree for possession in his favour, the execution of such decree Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 27 of 34 may still take a long time. It is for this reason that it is necessary for the Courts to remain mindful of such ex­ tenuating circumstances and award reasonable mesne profits, as per the prevailing market rent; the grant of enhanced mesne profits, in such circumstances, to ac­ commodate loss of rent endured during the pendency of the suit proceedings cannot be deemed as granting re­ lief beyond the pleadings of the parties."

31. In view of the aforesaid settled position, it is clear that merely be­ cause the plaintiff in his plaint filed in the year 2009 has claimed mesne profits at the rate of Rs. 20,000/­ per month, the same would not preclude him from subsequently claiming a higher amount towards mesne profits for the period which has lapsed during the pendency of the suit especially when plaintiff has claimed in his plaint mesne profits at a higher rate as is found to be the market rate.

32. In the affidavit of evidence of PW­1 as filed on 13.04.2015, PW­1 has deposed that the prevalent market rate of rent in April 2015 is Rs. 35,000/­ per month. Since the premises were vacated on 22.10.2014, testi­ mony of PW­1 with respect to the market rate of rent in the year 2015 is not germane for the determination of enhancement in rent, if any, to be awarded to the plaintiff.

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33. It is worthwhile to note that plaintiff has summoned and examined PW­2 in support of his case. PW­2 is a property dealer who has been doing the business of property dealing in the area of Chuna Mandi, Pahar Ganj, New Delhi since 2013. PW­2 has deposed in his examination that he has seen the suit property and that in the market rate of rent of the suit property has been around Rs.20,000/­ per month in the year 2013.

34. As has already been observed in the previous paragraphs that the market rate of rent of the suit property in the year 2009 has been Rs. 20,000/­ per month and it is further clear from the deposition of the PW­2 that there has been no enhancement of market rate of rent of the suit prop­ erty from 2009 uptil 2013. Since market rate of rent of the suit premises has been same since 2009 till 2013, it can be safely presumed, in the absence of any contrary evidence on record, that the market rate of rent continued to be Rs.20,000/­ per month even in the year 2014. Therefore, plaintiff is not enti­ tled to any enhancement of mesne profits from 2009 uptil the vacation of the suit premises in 2014.

35. In light of the aforesaid discussion plaintiff has discharged, on the preponderance of probabilities, the burden of proof placed on him that he is entitled to mesne profits of use and occupation of the premises from July 2009 till 22.10.2014 @Rs.20,000/­ per month. /­. Plaintiff has claimed interest @ 15% per annum, however, same appears to be exorbitant, interest @ 6% per annum seems to be sufficient in order to meet the ends of justice.

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36. As has already been discussed above (reference may be made to concluding paragraph of Issue no.1) Rs.4,80,000 has already been paid to the plaintiff towards to arrears of rent and mesne profits @Rs.10,000/­ per month w.e.f. 28.02.2009 to 28.02.2013, out of which amount Rs.50,000 has been adjusted towards arrears of rent from the period of February 2009 to June 2009, the remaining Rs.4,30,000 is to be adjusted towards mesne profits @Rs.20,000/­ due from July 2009. Ld. Counsel has further submitted during the course of final arguments that in a compliance of subsequent order dated 22.04.2014 of Hon'ble High Court, defendant has deposited a sum of Rs.1,30,000 as arrears of mesne profits. The same averments have been deposed in and substantiated by affidavit of evidence Ex.PW1/A. Defendant has also not denied the said averments of the plaintiff. In fact, DW­1 has admitted in his cross­examination that a sum of Rs.1,30,000/­ was deposited by the defendant towards mesne profits. Therefore, the total of amount of Rs.5,60,000/­ is to be adjusted towards the arrears of mesne profits due from July 2009 till vacation of the suit property on 22.10.2014.

37. Accordingly, the present issue is decided in favour of the plaintiff and against the defendant and plaintiff is entitled to mesne profits @Rs.20,000/­ per month from July 2009 to 22.10.2014 after adjusting an amount of Rs.5,60,000/­, along with interest at the rate 6% per annum from the date of filing of suit till its realization. Plaintiff is further entitled to interest @ 6% per annum on an amount of Rs. 1,30,000/­ from the date of filing of suit till 08.01.2015, when the amount was actually paid to the Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 30 of 34 plaintiff. Plaintiff is also entitled to interest @ 6% per annum on an amount of Rs. 4,90,000/­ from the date of filing of the suit till 30.04.2014.

Issue No. 3:­ Whether plaintiff is entitled to recovery of Rs.47,570 towards water charges? OPP

38. Ld. Counsel for plaintiff has argued that the suit property was let out to the defendant at monthly rent excluding electricity and water charges and therefore the defendant was liable to hand over the possession of the suit property after clearing all dues towards electricity and water charges. It is submitted that at the time of handing over the possession of the suit property i.e., 22.20.2014 water charges amounting to Rs.47,570/­ for the period of July/August were due and payable by the defendant to Delhi Jal Board. It is further submitted that defendant has not paid current charges of Rs.2,035.34 as well as arrears of prior to August 2014 amounting to Rs.40,706.72 and that defendant is further liable to pay LPSC charges of Rs.2,265.24, the total of which amounts to Rs.47,570/­.

38. PW­1 has relied on water bill dated 07.01.2015 Ex.PW1/4 as issued by Delhi Jal Board. Per contra no evidence has been led on behalf of the de­ fendant denying or otherwise contradicting the deposition of the plaintiff that plaintiff is not entitled to recovery towards water charges due on the ba­ sis of Ex.PW1/4, which amounts to an implied admission on behalf of the defendant that defendant has not discharged the dues towards water bill on vacation of the suit premises. Though DW­1 has denied the suggestion put to him in the cross­examination that he has not deposited the water charges Suit No.600184/2016 Sadhna Jain vs M/s Aggarwal Publicity & Marketing Pvt Ltd Page 31 of 34 of Rs.47,570/­ on account of water charges but he has admitted in his cross­ examination that he is not in possession of any receipt for the payment of water charges of Rs.47,570/­ to the plaintiff. Furthermore, in cross­examina­ tion of PW­1, PW­1 has denied in his cross­examination that the water con­ nection installed in the suit property was commonly used between the occu­ pants of the first floor and second floor portion of the property in question. PW­1 has further denied in his cross­examination that he has received, in cash, the amount of water bill from the defendant. The above stated testi­ monies and evidences clearly points out that defendant has vacated the suit premises without paying the arrears of water charges, as required to be legally paid by him.

39. Now coming to the quantum of dues that plaintiff is entitled to­ wards water charges, it is apparent from Ex.PW1/4 that meter reading was taken in January 2015 and a total amount of Rs.47,570 is due towards water charges for the period from 19.08.2014 to 07.01.2015. Since the defendant has already vacated the suit premises on 22.10.2014, defendant cannot me made liable to the water charges subsequent to 22.10.2014. The bill Ex.PW1/4 is for a period of 142 days out of which defendant was in occupa­ tion of the premises for 65 days. Therefore, proportionating the amount of Rs.47,570 towards the period when premises were in occupation of the de­ fendant, defendant is liable to pay Rs.21,772 towards arrears of water bill.

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40. Accordingly, the present issue is decided in favour of the plaintiff and against the defendant and plaintiff is entitled to recovery of Rs.21,772 towards water charges.

Issue No. 4:­ Whether defendant has paid a refundable security deposit of Rs.50,000 to the plaintiff? If the present issue is answered in the affirmative, then what is the effect of the same? OPD

41. PW­1 has admitted in his affidavit of evidence Ex.PW1/A that the defendant has made a deposit of Rs.50,000/­ with the plaintiff as a security amount to be refunded at the time of vacation of the premises.

42. In view of the aforesaid admission of PW­1 in his affidavit of evidence, it is established that defendant has paid a refundable security deposit of Rs.50,000/­ to the plaintiff. The said amount of Rs.50,000 is liable to be adjusted against the amount payable on account of arrears of rent and mesne profits due towards plaintiff.

43. Accordingly, the present issue is decided in favour of the defendant and against the plaintiff and it is hereby held that defendant has paid a refundable security deposit of Rs.50,000/­ to the plaintiff. Therefore, Rs.50,000 is to be adjusted against the amount payable on account of arrears of rent and mesne profits due towards plaintiff.

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RELIEF:­ Present suit is decreed in favour of the plaintiff and against the defendant in following terms:

a. Plaintiff is entitled to arrears of rent of Rs. 10,000/­ along with interest at the rate 6% per annum from the date of filing of suit till its realization.
b. Plaintiff is entitled to mesne profits @Rs.20,000/­ per month from July 2009 to 22.10.2014 after adjusting an amount of Rs.5,60,000/­, along with interest at the rate 6% per annum from the date of filing of suit till its realization. Plaintiff is further entitled to interest @ 6% per annum on an amount of Rs. 1,30,000/­ from the date of filing of suit till 08.01.2015. Plaintiff is also entitled to interest @ 6% per annum on an amount of Rs. 4,90,000/­ from the date of filing of the suit till 30.04.2014. c. Plaintiff is entitled to recovery of Rs.21,772 towards water charges. d. An amount of Rs.50,000 is to be adjusted against the amount payable on account of arrears of rent and mesne profits due towards plaintiff. e. Costs of the suit are awarded in favour of the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance. 
Announced in the open Court                                       (NEHA GARG)
on this 30.11.2021                                            Civil Judge­01/Central,
                                                             Tis Hazari Courts/Delhi




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