Delhi District Court
Shri Shyam Sunder Nagpal vs Shri Ram Chaudhary on 20 May, 2023
IN THE COURT OF SH. RAJESH KUMAR, ADDITIONAL DISTRICT
JUDGE-03 (EAST DISTRICT), KARKARDOOMA COURTS, DELHI
RCA No. 13/21
In the matter of: -
SHRI SHYAM SUNDER NAGPAL,
S/O SHRI NAND LAL NAGPAL,
R/O H. NO. 174,
JAGRITI ENCLAVE,
DELHI-110092 ............. APPELLANT
Versus
SHRI RAM CHAUDHARY,
S/O SH. JAWAHAR SINGH,
R/O 12/75, 1ST FLOOR,
GEETA COLONY,
DELHI-110051 ..............RESPONDENT
Appeal filed on : 05.10.2021
Arguments heard on : 01.05.2023
Judgment pronounced on : 20.05.2023
JUDGMENT
REGULAR FIRST APPEAL UNDER SECTION 96 R/W ORDER 41 RULE 2 AND SECTION 151 CPC ON BEHALF OF THE APPELLANT IN THE MATTER OF SH. SHYAM SUNDER NAGPAL VS. RAM CHAUDHARY, AGAINST THE JUDGMENT AND DECREE DATED RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 1/13 27.08.2021 PASSED BY MS. SAUMYA CHAUHAN, SR. CIVIL JUDGE- CUM-RENT CONTROLLER, DISTRICT EAST, KARKARDOOMA COURTS, DELHI IN CIVIL SUIT NO.7734/16.
1. Plaintiff is in appeal against the impugned judgment order dated 27.08.2021 passed by Ms. Saumya Chauhan, Ld. Sr. Civil Judge, EAST, Karkardooma Courts, Delhi in Civil Suit No. 7734/16, titled as Shyam Sunder Nagpal Vs. Ram Chaudhary for setting aside the impugned judgment/order.
2. It is submitted by appellant/plaintiff that he is the owner and landlord of the premises bearing no. 12/75, IInd Floor, Geeta Colony, Delhi measuring 100 sq. yards and the respondent is the tenant under the appellant in respect of the aforesaid premises on a monthly rent of Rs.10,000/- excluding water, electricity charges w.e.f. January, 2009. The appellant has further stated that the tenancy of the respondent starts from 1st day of each English calender month and ends on last day of the same month, the same being monthly but the respondent/defendant has neither paid nor tendered the amount of rent as agreed between the respondent and the appellant since November, 2010 inspite of various requests and reminders made by the appellant and the respondent was in arrears of rent w.e.f. 1st November, 2010 till March, 2011 and the arrears of rent which comes to Rs.50,000/- besides water, electricity and maintenance charges. The appellant further submitted before the Ld. Trial Court that since the respondent has failed to pay the agreed rate of rent of Rs.10,000/- p.m. hence the appellant do not want to keep the respondent as his tenant any more in the premises in the possession of the respondent and has terminated the tenancy of the respondent and also called upon the respondent to vacate the said premises in the respondent possession vide legal notice dated 04.04.2011 which was duly been served upon the respondent but the respondent with a view to evade the said process of law gave false and frivolous reply to the said notice dated RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 2/13 21.04.2011 and also sent the cheque amount of Rs.3000/- each vide cheque no. 666541 and 627580 both dated 14.04.2011 allegedly showing the rent amount for the month of March, 2011 and April, 2011 and the same is not acceptable to the appellant and hence the same was not presented for encashment by the appellant to its banker as the rate of rent is Rs.10,000/- p.m. excluding water and electricity charges of the suit property. The appellant filed a suit for possession, recovery of arrears of rent, damages and future mesne profit before the ld.Trial Court.
3. The Respondent/Defendant filed written statement and denied the averments made by the appellant in the plaint and further alleged that the suit is not maintainable in the eyes of law being barred by section 50 of DRC Act as the rent of the demised premises is Rs.3000/- p.m. The respondent admitted to be tenant of the appellant w.e.f. January, 2009 but disputed the rate of rent. The respondent further alleged that the initial rent was Rs.2500/- p.m. excluding other charges and further alleged that the respondent paid a security amount of Rs.6,20,000/- to the appellant at the time of commencement of the tenancy which was refundable at the time of vacation of the property and later on rent was enhanced to Rs.3000/- p.m. The respondent further alleged that he has been paying the rent regularly and there are no arrears of rent.
4. The replication was filed on behalf of the appellant wherein he denied all the allegations and claims of the respondent and reiterated the averments of the plaint. Thereafter issues were framed in the said suit and evidence was recorded from both the side. Having heard the arguments, ld. Trial Court has dismissed the suit and passed judgment and decree dated 27.08.2021, on the ground that suit of the plaintiff is barred u/s 50 of Delhi Rent Control Act.
5. Aggrieved from the said judgment and order 27.08.2021 passed by RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 3/13 ld. Trial Court, appellant/plaintiff preferring the present appeal on the following grounds:
A. The Trial Court failed to appreciate the fact that the appellant had placed on record the relevant material before the ld. Trial Court.
B. The order/ judgment passed by ld. Trial Court has been passed without application of mind and is liable to be set aside.
C. The ld. Trial Court has failed to appreciate the fact that the appellant is the owner and landlord of the premises bearing no. 12/75, IInd Floor, Geeta Colony, Delhi measuring 100 sq yard and the respondent is the tenant under the appellant in respect of the aforesaid premises on a monthly rent of Rs.10,000/- excluding water, electricity charge w.e.f January, 2009.
D. The Ld. Trial Court has failed to appreciate the fact that the respondent with a view to evade the said process of law gave false and frivolous reply to the said notice dated 21.04.2011 also sent the cheque amount of Rs.3000/- each vide cheque no. 666541 and 627580 both date 14.04.2011 allegedly showing the rent amount for the month of March, 2011 and April, 2011.
E. The Ld. Trial Court has failed to appreciate the fact that the said chqeues were not acceptable to the appellant and hence the same was not presented for encashment by the appellant to its banker as the rate of rent is Rs.10,000/- p.m. excluding water and electricity charges of the suit property.
F. The ld. Trial Court has failed to appreciate the fact that the property cannot be given on rent to the tenant consisting of 1 st and IInd Floor in 2009 can be given at the meagre rent of Rs.3000/- only that to the entire 1 st and 2nd Floor, measuring 100 sq yards.
G. The Ld. Trial Court has failed to appreciate the fact that to prove its case, RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 4/13 the appellant has got examined two independent witnesses namely Shri Krishan Kumar PW-2 and Shri Ashwini Kumar PW-3 who has stated that the rental value of the suit property for the 1st Floor is Rs.10,000/- p.m. and for 2nd floor is also Rs.10,000/- p.m. totaling to Rs.20,000/-.
H. The ld. Trial Court has failed to appreciate the fact that the said statement of PW-2 and PW-3 is corroborative in nature.
I. The Trial Court has failed to appreciate the fact that PW-3 Sh. Ashwini Kumar has stated that he has personally visited many times alongwith the appellant to collect the rent from the respondent.
J. The Ld. Trial Court has failed to appreciate the fact that the case can be proved through oral or documentary evidence and there is no independent evidence on behalf of the respondent to show that the rate of rent of the suit property was Rs.3000/- p.m. only while on the other hand two independent witnesses who have substantiated the case of the appellant and their statements are corroborative in nature and the respondent have failed to rebut and shake the evidence on behalf of the appellant which goes to show that the rental value of the suit property was Rs.10,000/- per floor i.e. Rs.20,000/- in total and not Rs.3000/- p.m. as alleged.
K. The Ld. Trial Court has failed to draw its attention towards the cross examination of PW-1 Sh. Shayam Sunder Nagpal dated 12.07.2013 conducted on behalf of the respondent at page 2 wherein the suggestion has been given "... it is wrong to suggest that the rate of rent of the entire property except some portion of the ground floor is Rs.3000/- p.m.". Hence, how it can be disputed by the respondent that only some portion of ground floor of the suit property is fetching the monthly rent of more than Rs.3000/- while the entire 1 st floor and 2nd floor consisting of 100 sq yards is getting the monthly rent of Rs.3000/- in RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 5/13 total.
L. The Ld. Trial Court has failed to appreciate the fact that the said suggestion is not only self contradictory but is the admission on part of the respondent that the rental value of the suit property is more than Rs.3000/- p.m. M. The Ld. Trial Court has failed to appreciate the fact that further during the said cross examination the ld. counsel on behalf of the respondent has given the suggestion that the market value of the suit property is around Rs.60,00,000/- and on the other hand in its cross examination dated 07.06.2018 DW-1 Shri Ram Chaudhary states that "....I cannot say that in the locality of Geeta Colony the minimum rental value of residential properties was not less than Rs.10,000/- to Rs.15,000/- p.m. in the year 2009-2010. I cannot tell the market value of the property measuring 100 sq yards in Geeta Colony. I cannot tell the market value of the property in question in the year 2009. It is wrong to suggest that ........"
On one hand, the respondent alleged that the rental value of the suit property is Rs.3000/- p.m. while on the other hand he states that he does not know the minimum rental value of the residential property in the year 2009- 2010 and even presently. This goes to show that the respondent has deliberately taken false defence with a view to grab the property of the appellant.
N. The Trial Court has failed to appreciate the fact that the respondent also have failed to show on record that the monthly rent is Rs.3000/- p.m. and the statement of account produced on record by DW2/A are not certified as per Banker's Book Evidence Act and hence cannot be read as part of evidence and also it does not prove that the rent of the property was Rs.3000/- p.m. and on a bare glance of statement of account of DW2/A the amount of Rs.3000/- even if issued by the respondent does not specify that the same has been credited in the RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 6/13 account of the appellant.
O. The impugned order, decree and judgment dated 27.08.2021 is full of conjectures and surmises and has been passed without application of mind.
6. Reply to the present appeal has been filed by respondent stating that the appeal is not maintainable in the eyes of law and facts and appellant has not proved his case in any manner whatsoever. The appeal filed by the appellant is not maintainable as the appellant has not approached with clean hands before the court and suppressed the material facts intentionally and deliberately in order to take advantage of his own wrongs and have not proved his case as per issues framed by the ld. Trial Court. The appeal filed by the appellant is not maintainable as the Ld. Trial Court passed the judgment & decree dated 27.08.2021 in civil Suit No. 7734/16, after considering the facts, circumstances, documents, events, procedure of CPC and material on record and the judgment & decree dated 27.08.2021 passed by Ld. Trial Court is rightful, consideration, as per procedure and citation laid down by the appex court and the said judgment and decree is sustainable in the eyes of law. The appeal filed by the appellant is not maintainable as due to some dispute between the appellant and the respondent, the appellant filed a Civil Suit for possession, recovery of arrears of rent and damages alongwith mesne profit against respondent before the Ld. Trial Court and after recording the statement of the appellant as well as respondent and the respondent put his evidence, documents facts, circumstances, etc. by way of affidavit as well as called the summoning witnesses and prove his defence categorically as well as issues wise, the said suit was dismissed vide order dated 27.08.2021 after considering all facts, circumstances, evidence and as per law. The appeal has been filed by the appellant against the respondent in order to harass, humiliate, tortured physically and mentally and extort money from him and also to deprive the RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 7/13 lawful right, possession of the respondent, hence, the appeal is liable to be dismissed. Respondent further denied all the other grounds as alleged by appellant in the present appeal and prayed for dismissal of the same.
7. Arguments heard on either side and record perused.
Issues in the appeal.
8. Having perused the grounds in the appeals and the trial court records in the context of written submissions made on either side, the following issues arise for consideration in the appeal:
"Whether the judgment and decree in suffering from the perversity, illegality and non application of mind in passing the impugned judgment and decree dated 27.08.2021?
9. To answer the above said issues, record is perused, considered. According to appellant/ plaintiff, he is the owner of the suit property and defendant was inducted in the suit property as tenant in the month of January, 2009 on a monthly rent of Rs.10,000/- excluding water and electricity charges. On the other hand, defendant has not disputed that appellant is the owner of the suit property. The defendant has admitted that he is the tenant in the suit property and the plaintiff is the landlord but the defendant contended that he was inducted in the suit property as a tenant initially for Rs.2500/- p.m. which was enhanced upto Rs.3000/- p.m. The defendant further contended that present suit of the plaintiff for eviction of the defendant from the suit property is barred as per section 50 of Delhi Rent Control Act because the monthly rent of suit property is Rs.3000/- p.m. which is below the rent of Rs.3500/- p.m., which brings the present suit within the provision of Delhi Rent Control Act. During trial issue no.1 was framed by ld. Trial Court which says that whether the suit is barred u/s 50 of DRC Act and the burden to prove this issue was upon the RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 8/13 defendant.
10. Perusal of record shows that plaintiff/PW-1 Shri Shyam Sunder Nagpal during his cross examination admitted that no rent agreement was executed with the defendant as the tenancy was oral. Plaintiff also stated that suit property was given on rent to the defendant in the year 2009 at the rate of Rs.10,000/- p.m on each floor. But admittedly no document was produced and proved by the defendant to prove that defendant was inducted in the suit property as a tenant at the monthly rent of Rs.10,000/- p.m. During cross examination, the plaintiff/ PW-1 Shri Shyam Sunder Nagpal admitted that cheques were encashed in his bank account. According to defendant, he was paying monthly rent of Rs.3000/- p.m. to the plaintiff from his bank account and in order to prove the same the defendant proved bank statement which is Ex. DW2/A. The defendant also examined DW-2 Rajesh Mahajan concerned official of his bank to prove the above said certified copy of the bank statement.
11. Perusal of the bank statement Ex. DW2/A shows that Rs.3000/- p.m. are being debited from the account of defendant which according to the plaintiff were being credited in to the bank account of the plaintiff. Appellant / plaintiff in the present appeal raised a ground that the defendant has not proved the aforesaid amount was credited into his account but during trial except mere denial, the plaintiff has not filed his bank statements of the said period since 2009 to show that he was not receiving monthly payment of Rs.3000/- from the defendant. Even during cross examination of DWs, no questions were asked by the plaintiff regarding the same rather during cross examination plaintiff admitted that cheques of the defendant were credited into his account. Hence, it cannot be denied that monthly rent of Rs.3000/- was being credited into the account of the plaintiff.
12. Plaintiff also examined PW-2 Shri Krishan Kumar and PW-3 Shri RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 9/13 Ashwini Kumar to prove that the defendant was inducted in the suit property for a monthly rent of Rs.10,000/- for each floor but admittedly these two witnesses are close friend of plaintiff and hence, their testimony in absence of other any corroborative documentary evidence cannot be relied upon. Hence, this court agrees with the finding of the ld. Trial court that these two witnesses being close childhood friends of the plaintiff are interested witnesses and their testimony cannot be relied upon. Moreover, these witnesses during their cross examination stated that defendant was paying rent to the plaintiff through cheque or cash and PW-3 also stated that beside the cheque defendant was also making payment in cash. But the question arises as to when the defendant was making payment of rent through cheque, then why he would pay remaining rent in cash but no reasonable explanation was given by the plaintiff and his witnesses in this regard. Hence, this deposition of PW-3 cannot be relied upon regarding the payment of remaining rent in cash. This also shows that defendant was making payment of rent of Rs.3000/- through cheque.
13. Moreover, the defendant also proved copies of cheques Mark- DW1/1 to DW1/9 all amounting to Rs.3000/- issued in the name of the plaintiff, which were encashed in the bank account of the plaintiff. The DW-2 Rajesh Mahajan also proved that above mentioned copies of cheques were duly debited from the account of the defendant. In view of the above discussion, this court agrees with the finding of ld. Trial court that the defendant proved that he was paying rent to the plaintiff @ of Rs.3000/- p.m.
14. Appellant also contended that bank statement relied upon by the defendant which is Ex. DW2/A is not admissible as the same has not been certified as Banker's Book Evidence Act and therefore as per section 34 of Indian Evidence Act books of account including bank records maintained in daily course of business in the electronic form or otherwise are relevant to be RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 10/13 admissible in the court of law, as per section 4 of Banker's Book Evidence Act, 1891, should be accompanied by a certificate as per section 2 (8) and 2 (A), to ensure accuracy and reliability of entries made in the bank records.
15. In this regard, it is relevant to mention here that evidence is the means from which inference may logically be drawn as to the existence of fact. Most commercial disputes varying from breach of contract to a case for specific performance of a contract, breach of fiduciary responsibility and money claims derive their force from financial records of the parties. One of the most accurate way of effectively supporting the claim of a party is by evidencing the same through bank statements / records of the party. Section 34 of the Indian Evidence Act, 1872 provides that entries in books of account including those maintained in an electronic form regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court or Arbitral Tribunal has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. The Bankers' Books Evidence Act 1891 ("the Act") was enacted to regulate the manner of producing evidence in the court and for defining the method of submission of the document procured from the Bank. The Act defines certified copy as a copy of any entry in the books of a bank together with certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business, and that such book is still in the custody of the bank, such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title. Subject to other provisions of the Act, a certified copy of any entry in a Banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 11/13 not further or otherwise. As per the Act, the document produced before the court must be certified according to the procedure in section 2(8) and 2(A) of the Act. However, with regards to the compliance of provisions of Section 2(8) and 2A an important question arises as to whether bank records would be admissible in absence of certain standards provided for under the said Sections. The Hon'ble High Court of Bombay in the matter of Radheshyam G. Garg vs. Safiyabai Ibrahim Lightwalla, AIR 1988 Bom 361, 1987 (3) BomCR 459, held that the provision recorded for certified copies of bank records are merely directory in nature. While deciding whether certain extracts of statement of account could be treated as certified copy and consequently read in evidence where the said statement of account were not signed by the principal accountant or manager as required and where the same did not bear any date or official seal, the Hon'ble Court clarified that the courts need not adopt a hyper technical approach. The detailed ingredients mentioned in the defining Clause 8 of Section 2 of the Bankers' Books Evidence Act, 1891 for qualifying to be 'certified copy' are not mandatory but merely directory. Sufficient compliance depending upon facts and circumstances of each case is enough to qualify a document to be 'certified copy'.
16. In the case in hand, certified copy of the bank statement was produced by the officer of the bank himself in the court and perusal of the same also shows that same also bear the seal of the bank with signature. Hence, the same can be relied upon. Moreover, the plaintiff/PW1 during his cross examination and PW-3 admitted that cheques issued by the defendant in favour of the plaintiff for rent were encashed in his bank account. This admission on behalf of plaintiff and his witnesses also corroborates bank statement relied upon by the defendant. Hence in view of the above judgment i.e. Radheshyam G. Garg vs. Safiyabai Ibrahim Lightwalla (supra) this court agrees with the finding of ld. Trial Court that even though the bank statement may not be in RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 12/13 accordance in the provision of bankers book evidence act, however, it does prove that account of Rs.3000/- was being debited from the account of the defendant when the cheques Mark DW1/1 to DW1/9 were present for the encashment. This court is also agrees with the observation of ld. Trial court that the court should not adopt a hyper technical and rigid attitude while complying with the provisions of law. Hence, this court agrees with the finding of ld. Trial court that the suit of the plaintiff was barred u/s 50 of Delhi Rent Control Act and the suit was not maintainable.
17. In view of above discussion, the present appeal has no merit. This court is of the view that there is no infirmity, illegality or impropriety in the order passed by Ld. Trial Court. There is no merit in the present appeal. The impugned order dated 27.08.2021 is hereby affirmed. Present appeal is dismissed.
TCR be sent back to Ld. Trial Court alongwith a copy of this order.
Digitally
signed by
RAJESH
Appeal file be consigned to record room. RAJESH KUMAR
KUMAR Date:
2023.05.20
16:34:11
+0530
Typed to the dictation directly, (Rajesh Kumar)
corrected and pronounced in Additional District Judge03,
open court on 20.05.2023 East/KKD Courts, Delhi.
RCA No. 13/21 Sh. Shyam Sunder Nagpal Vs. Sh. Ram Chaudhary Page No. 13/13