Delhi District Court
Sandeep Budhiraja vs . Suresh Kumar Sabharwal on 26 August, 2015
Sandeep Budhiraja Vs. Suresh Kumar Sabharwal
CS NO. 181/2012
IN THE COURT OF SH. MANISH KHURANA: JSCCCUMASCJCUM
GDN. JUDGE: ROHINI COURTS: DELHI
Suit No. 181/2012
1. Sandeep Budhiraja
s/o Sh. G.K. Budhiraja
r/o D6/372, Sector6,
Rohini, Delhi 110085
2. Rakesh Rastogi
s/o Sh. Munshi Ram
r/o C10/127, Sector5,
Rohini, Delhi110085 ................. Plaintiffs
VERSUS
Suresh Kumar Sabharwal
s/o Late Sh. Kartar Singh
r/o C40, third floor,
Sector5, Rohini,
Delhi 110085. .............Defendant
DATE OF INSTITUTION: 29.10.2011
DATE OF DECISION: 26.08.2015
SUIT FOR RECOVERY OF POSSESSION,
RECOVERY OF ARREARS OF RENT,
DAMAGES/MESNE PROFITS
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Sandeep Budhiraja Vs. Suresh Kumar Sabharwal
CS NO. 181/2012
J U D G M E N T :
1. Vide this judgment I proceed to decide the suit for recovery of possession of the suit premises as well as for recovery of arrears of rent and damages/mesne profits filed by the plaintiffs against the defendant.
2. As per the case of the plaintiffs, they are the coowners of the residential property bearing no. C7/40, third floor, Sector5, Rohini, Delhi (hereinafter referred to as 'suit property) and the said premises was taken on rent by defendant on monthly rent of Rs.4500/ excluding water and electricity charges and a rent agreement dt. 06.06.2009 for a period of 11 months w.e.f. 10.04.2009 till 10.03.2010 was executed between the parties. It is further alleged that a second rent agreement dt. 28.04.2010 with regard to the said premises was further executed between the parties and the rate of rent was enhanced to Rs.4800/ per month excluding electricity and water charges. It is also alleged that at the time of taking the suit premises on rent, the defendant gave the interest free security deposit of Rs.10,000/ to the plaintiff no.1. It is also alleged that defendant is liable to vacate the suit premises after expiry of second rent agreement, however, the defendant did not vacate the premises and he filed a suit civil suit bearing no. 283/11 for permanent and mandatory injunction against the plaintiffs which was dismissed vide order dt. 06.09.2011. It is alleged that despite repeated 2 Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 requests, the defendant has failed to vacate the tenanted premises and plaintiffs filed a complaint dt. 25.02.2011 with the PS Rohini vide DD no. 43 B but no action was taken. It is also alleged that when the defendant did not vacate the tenanted premises despite repeated requests, the plaintiffs sent a legal notice dt. 17.09.2011 to the defendant vide speed post/AD dt. 05.10.2011 calling upon the defendant to vacate the tenanted premises but he failed to do so and hence the present suit has been filed.
3. The defendant was summoned vide order dt. 31.10.2011 and he appeared and filed the WS alleging therein that the defendant and the plaintiff entered into an oral rent agreement in the year 2009 and defendant took the suit premises on rent from the plaintiff at the monthly rent of Rs. 1200/ and the defendant gave the sum of Rs.1.00 lakh as a security deposit to the plaintiffs. It is also alleged that plaintiffs took the signatures of the defendant on blank papers/ stamp papers in the guise of making the rent agreement, however, the plaintiffs never handed over the copy of the said rent agreement despite repeated requests of the defendant. It is also alleged that defendant never executed any agreement as alleged by the plaintiffs and that the suit is barred by the provisions of Delhi Rent Control Act.
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Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012
4. Ld. Predecessor of this court settled the following issues :
1. Whether the plaintiffs are entitled to the recovery of possession of the suit property from the defendant ? OPP.
2. Whether the plaintiff is entitled for the recovery of Rs.10,000/ per month since January 2011 until the suit premises is vacated by the defendant? OPP
3. Whether the suit of the plaintiffs is not maintainable in view of Sec. 50 of Delhi Rent Control Act ? OPD.
4. Relief.
5. To prove their case the plaintiffs have examined Sh. Sandeep Budhiraja as PW1, Sh. Kapil as PW2, Smt. Dayawati as PW3, Sh. Jitender Kumar as PW4 and Sh. Ved Prakash as PW5. The defendant examined himself as DW1, Sh. Pawan Kumar as DW2 and Sh. Mahender Singh as DW3.
6. I have heard Ld. counsels for both the parties and perused the material available on record. Issuewise findings are as under: ISSUE NO. 1 "Whether the plaintiffs are entitled to the recovery of possession of the suit property from the defendant ? OPP." 4
Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012
7. The onus to prove this issue is conferred upon the plaintiffs. Plaintiffs have alleged that they are the owners of the tenanted premises i.e. C7/40, third floor, Sector5, Rohini, Delhi which was let out to defendant Suresh Kumar Sabharwal vide rent agreement dt. 06.06.2009 for a period of 11 months at the monthly rent of Rs.4500/ per month. The rent agreement dt. 06.06.2009 relied upon by the plaintiffs is Ex. PW1/A which is bearing the signatures of the plaintiff Sandeep Budhiraja as well as the admitted signatures of defendant Suresh Kumar Sabharwal. The plaintiffs have further alleged that after expiry of the first rent agreement, another rent agreement dt. 28.04.2010 was again executed between the parties and the tenanted premises was further let out to the defendant for a period of 11 months. The second rent agreement between the parties is Ex. PW1/B which also bear the signatures of plaintiff Sandeep Budhiraja as well as the admitted signatures of defendant Suresh Kumar Sabharwal.
8. Ld. counsel for the defendant has argued that the attesting witness Smt. Dayawati has no proper knowledge regarding the execution of rent agreements allegedly attested by her as she did not remember as to whether the signatures of other persons were there on the documents before her signing the same. Ld. counsel further argued that Smt Dayawati could not tell as to at how many places she signed or as to whether Mr. 5 Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 Sharma is a Notary or not.
9. The defendant has alleged that no written rent agreement was executed between the parties and that the plaintiff obtained his signatures on blank papers. The defendant has examined himself as DW1 and deposed that the rent agreements relied upon by the plaintiffs bear his signatures, however, the said agreements were blank when he signed the same. During his crossexamination, DW1 deposed that he is residing in the suit premises as a tenant and he got the same on rent from the plaintiff Sh. Sandeep Budhiraja. The defendant alleged the rate of rent to be Rs. 1200/ per month and alleged that his tenancy is protected by Sec. 50 of DRC Act. The defendant has nowhere mentioned in his affidavit Ex. DW1/A as to when he took the premises on rent from the plaintiff. During his cross examination, defendant admitted his signatures over the rent agreements. The case of the defendant is that the plaintiffs got his signatures on some blank papers at the time of giving the suit premises to him on rent and the plaintiffs did not provide the copy of rent agreement to him despite his repeated requests, however, during his crossexamination he admitted that he signed the papers in the year 2009 and he also stated that he signed the blank papers again in the year 2010. Relevant extracts of the cross examination of defendant is reproduced as under : 6 Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 "it is correct that I signed the papers in the year 2010. VOL. I also signed the papers in the year 2010 but the same were also blank. I signed the blank papers again in the year 2010 because the plaintiff was a neighbour. It is also correct that till date I have not made any complaint to anybody regarding my signing the blank papers."
10. The defendant has alleged that he was not supplied the copy of rent deed and that the blank papers were not returned to him by the plaintiff but the defendant has failed to explain as to why he again signed the alleged blank papers in the year 2010 when the earlier papers were already with the plaintiff. During his crossexamination, the defendant has clarified that he signed the blank papers because the plaintiff was his neighbour. No one is expected to sign the blank papers on the mere asking of his neighbour. Further the defendant has also admitted that he has not made any complaint to anybody regarding his signing the blank papers.
11. Further the plaintiffs have relied upon the rent agreement executed between the parties as Ex. PW1/A and Ex. PW1/B. The parties to the documents i.e. the plaintiff Sandeep Budhiraja and the defendant Suresh Sabharwal have admitted their signatures thereupon. The plaintiffs have also examined the attesting witnesses to the said rent agreements namely Smt. Dayawati and Sh. Kapil. The attesting witnesses to the said 7 Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 rent agreements have deposed during their testimonies that the said rent agreements were executed between the parties and these bear their signatures as attesting witnesses. The rent agreements relied upon by the plaintiffs are also attested by Notary Public. Section 8 of the Notaries Act, 1952 provides the functions of Notary and it stipulates that a Notary may verify, authenticate, certify or attest the execution of any instrument. Section 57 (6) of Indian Evidence Act, 1972 provides that court must take judicial notice of the seals of Notaries Public. Every notarised document is presumed to be regularly executed in due course (Reliance is placed upon :
'Baker Oil Tools India Pvt. Ltd. vs. Baker Hughes Ltd & Anr., decided by Delhi High Court on 03.06.2011 in RFA No. 583/2004').
12. The rent agreements dt. 06.06.2009 and 28.04.2010 are duly notarised and attested by witnesses namely Smt. Dayawat and Sh. Kapil and these also bear the admitted signatures of the plaintiff and that of defendant. In these circumstances, I am of the opinion that plaintiffs have proved the execution of rent agreements dt. 06.06.2009 and 28.04.2010 executed between the parties.
13. As per the rent agreements initially the rate of rent of the tenanted premises was Rs.4500/ per month which was enhanced to 8 Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 Rs.4800/ w.e.f. 10.03.2010.
14. The defendant has alleged the rate of rent to be Rs.1200/ per month and he stated that an oral rent agreement was executed between the parties. The defendant has examined himself as DW1 and deposed that the rate of rent was Rs.1200/ per month and he also examined his mamaji (maternal uncle) DW2 Pawan Kumar and DW3 Sh. Mahender Singh to show that the rate of rent was Rs.1200/ per month. During his cross examination, DW1 defendant initially stated that he got the tenanted premises directly from the plaintiff as he knew him, however, during his further crossexamination regarding the rate of rent and alleged security deposit, he deposed that he gave the security on the asking of one dealer Sh. Ramesh Gandhi. Further DW3 Sh. Mahender Singh deposed in his affidavit that the rate of rent was settled between the parties @ Rs.1200/ per month in his presence and the security amount of Rs.1.00 lakh was given by the defendant to the plaintiff in his presence. However, during his crossexamination DW3 categorically deposed that the defendant did not pay the security amount to the plaintiff in his presence and that he has no knowledge regarding the rate of rent of the tenanted premises. He further deposed that defendant had never paid any rent to the plaintiff in his presence. Therefore, the evidence led on behalf of the defendant regarding 9 Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 the rate of rent and security deposit is self contradictory and cannot be relied upon.
15. Section 92 of Indian Evidence Act provides that when a written document is proved to have been executed then no oral evidence for contradicting, varying or altering its terms shall be admitted. The plaintiffs have duly proved the rent agreements Ex. PW1/A and Ex. PW1/B and as per those rent agreements, the rate of rent of the suit premises is more than Rs.3500/ per month and therefore, the suit filed by the plaintiffs cannot be said to be barred by sec. 50 of Delhi Rent Control Act as alleged by defendant.
16. Another defence taken by defendant is that the defendant never received any notice from the plaintiffs to vacate the tenanted premises and Ld. Counsel for the defendant argued that the photographs relied upon by the plaintiff as Ex. PW1/H (colly) show that the legal notice has been pasted outside the door of a premises, however, the plaintiffs have failed to prove that the door shown in the photographs Ex. PW1/H is the door of the tenanted premises or that the legal notice dt. 17.09.2011 has been served or affixed at the tenanted premises.
17. The plaintiffs have alleged that the defendant has been in 10 Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 unauthorised occupation of the tenanted premises despite being served with a legal notice dt. 17.09.2011 which was sent vide registered post/AD calling upon him to vacate the tenanted premises. The plaintiffs have relied upon the legal notice dt. 17.09.2011 as Ex. PW1/F and the speed post vide which the same was sent as Ex. PW1/G. In M/s. Nopany Investments Pvt. Ltd. Vs. Santokh Singh (HUF) 2008 (2) SCC 728 Hon'ble Supreme Court categorically held that filing of eviction suit under general law is itself a notice to quit, therefore, even if the defendant takes the defence that no notice to quit u/s 106 of the Transfer of Property Act was served and the notice/summons of the present suit was served upon the defendant, it would be deemed that defendant has been served with notice under the Transfer of Property Act and after 15 days of the service of such notice the defendant is obligated to vacate the premises.
18. In the case in hand, the instant suit has been filed in the year 2011 and the defendant has been served with the summons of the suit and 15 days thereafter have expired long ago and the defendant has not yet vacated the tenanted premises.
19. The defendant has also taken another defence that the plaintiffs are not the owners of the tenanted premises. In the WS, the defendant has 11 Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 denied the ownership/title of the plaintiffs in the suit property. However, the defendant, who has deposed as DW1 has categorically deposed during his crossexamination that he is residing in the suit premises as a tenant and he got the same on rent from the plaintiff Sh. Sandeep Budhiraja. The plaintiffs have already proved the execution of rent agreements Ex. PW1/A and Ex. PW1/B and PW1 plaintiff Sandeep Budhiraja has also relied upon the documents of the property allegedly executed by the previous owner Smt. Veena Katyal in favour of the plaintiffs as Ex. PW1/J (colly).
20. Section 116 of Indian Evidence Act, 1872 provides that no tenant of immovable property shall during the continuance of the tenancy be permitted to deny the title of the landlord in the tenanted property. Therefore, in the case in hand, the defendant who is admittedly a tenant of plaintiff Sandeep Budhiraja cannot deny the title of the plaintiff in the tenanted premises.
21. In view of the abovesaid discussions, I am of the opinion that the plaintiffs are entitled to the possession of the tenanted property i.e. property bearing no. C7/40, third floor, sector5, Rohini, Delhi85. This issue is accordingly decided in favour of the plaintiffs and against the defendant.
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Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 ISSUE NO. 2 "Whether the plaintiff is entitled for the recovery of Rs. 10,000/ per month since January 2011 until the suit premises is vacated by the defendant? OPP"
22. The onus to prove this issue is conferred upon the plaintiffs. The plaintiffs have claimed the decree of recovery of damages @ Rs. 10,000/ per month since January 2011 until the premises is vacated by the defendant.
23. The plaintiffs have proved the rent agreement Ex. PW1/B, according to which the tenancy of defendant has expired on 10.02.2011. As per agreement between the parties, the defendant was required to vacate the tenanted premises on 10.02.2011 and the plaintiff served a legal notice dt. 17.09.2011 calling upon defendant to vacate the premises within 15 days of the receipt of notice. The notice was sent on 05.10.2011 and is presumed to be served upon the defendant on 09.10.2011 and the defendant was required to vacate the premises latest by 23.10.2011, however, the defendant is still in occupation of the tenanted premises. As per last rent agreement between the parties Ex. PW1/B, the rate of rent was Rs.4800/ per month excluding electricity and water charges. 13
Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012
24. The plaintiff has examined PW4 Sh. Jitender Kumar to show the rate of rent prevailing in the area where tenanted premises is situated and PW4 deposed that he is a tenant of property bearing no. C4/30, second floor, Sector5, Rohini, Delhi85 at a monthly rent of Rs.4500/ per month, however, during his crossexamination he clarified that the rate of rent is Rs.5500/ per month which has been inadvertently mentioned as Rs. 4500/ per month in his affidavit. He also deposed that the current rate of rent in the said area for the similarly situated property is Rs.80009000/ per month. Further, PW5 Sh. Ved Prakash, who is the owner of premises bearing no. C4/30, second floor, Sector5, Rohini, Delhi85, who let out the said premises to PW4 Jitender Kumar, relied upon the rent agreement executed between him and PW4 Jitender as Ex. PW5/A and he deposed that the rate of rent of his premises is Rs.5500/ per month.
25. The plaintiffs have proved that defendant has been in unauthorised occupation of the tenanted premises w.e.f. 23.10.2011. The plaintiffs have not pleaded that the defendant has not been paying the water and electricity charges as agreed. Considering the facts and circumstances and the evidence on record, I am of the opinion that the plaintiffs are entitled to the damages @ Rs.5000/ per month w.e.f. 23.10.2011 till the tenanted premises is actually vacated by the defendant. The plaintiffs are entitled to 14 Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 the recovery of damages subject to the payment already received by them towards admitted rent paid by the defendant in compliance of the directions under Order 39 R 10 CPC. This issue is accordingly decided in favour of the plaintiffs and against the defendant.
ISSUE NO.3 "Whether the suit of the plaintiffs is not maintainable in view of Sec. 50 of Delhi Rent Control Act ? OPD."
26. The defendant has alleged that the rate of rent of tenanted premises is Rs.1200/ per month and his tenancy is protected under DRC Act and the suit of the plaintiff is barred u/s 50 of Delhi Rent Control Act. However, as discussed above, while deciding issue no.1, the defendant has failed to prove the factum of rate of rent as alleged by him and the plaintiffs have successfully proved the execution of rent agreements dt. 06.06.2009 Ex. PW1/A and dt. 28.04.2010 Ex. PW1/B and as per these agreements, the rate of rent of the tenanted premises is more than Rs.3500/ per month.
27. Therefore, the suit filed by the plaintiffs cannot be said to be barred u/s 50 of Delhi Rent Control Act. This issue is accordingly decided against the defendant and in favour of the plaintiffs. 15
Sandeep Budhiraja Vs. Suresh Kumar Sabharwal CS NO. 181/2012 RELIEF:
28. The suit filed by the plaintiffs for possession of the tenanted premises as well as for recovery of damages is hereby decreed in favour of the plaintiffs and against the defendant. The defendant is directed to vacate the tenanted premises bearing no. C7/40, third floor, Sector5, Rohini, Delhi85, and to handover the possession thereof to the plaintiffs. The defendant is also liable to pay damages to the plaintiffs @ Rs.5000/ per month w.e.f. 23.10.2011 till the tenanted premises is actually vacated by the defendant. It is clarified that the plaintiffs are entitled to the recovery of damages subject to the payment already received by them towards admitted rent paid by the defendant in compliance of the directions under Order 39 R 10 CPC. The plaintiffs are also entitled to the costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open (Manish Khurana)
Court on 26.08.2015 JSCCcumASCJcumGudn. Judge
North, Rohini Courts, Delhi
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