Delhi District Court
Shri Kishore Kumar Thakur vs Shri Sham Sunder Vaid on 9 April, 2013
IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
RCT appeal No. 46/2013/2009
Unique ID No. 0240IC0531952009
In the matter of:
Shri Kishore Kumar Thakur,
S/o late Shri Kashi Ram
R/o 46/12, East Patel Nagar,
New Delhi.
....Appellant
Versus
1- Shri Sham Sunder Vaid
S/o late Sh. Krishan Lal,
R/o 122, First Floor,
Shankar Road Market,
New Rajinder Nagar,
New Delhi.
2- Smt. Seema Thakur
W/o late Sh. Bansi Lal Thakur,
R/o 46/12, East Patel Nagar,
New Delhi.
Presently residing at:
LH-14, Hari Nagar,
New Delhi.
3- Master Karan Thakur,
minor son of late Sh. Bansi Lal Thakur,
through his mother and natural guardian,
Smt. Seema Thakur, at above address
mentioned in column No.2.
Also at:
New Grand Bakery,
121, Shankar Road Market,
New Delhi.
(RCT Appeal No.46/2013/2009) (Page 1 of 12)
4- Master Kunal Thakur,
minor son of late Sh. Bansi Lal Thakur,
through his mother and natural guardian,
Smt. Seema Thakur, at above address
mentioned in column No.2.
5- Smt. Panchi Devi Thakur,
W/o late Shri K.R. Thakur,
R/o 46/12, East Patel Nagar,
New Delhi.
6- Smt. Neena w/o Sh. Ashok Kumar,
D/o late Shri K.R. Thakur,
R/o 18/45, East Patel Nagar,
New Delhi.
7- Smt. Veena W/o Shri . Puri,
D/o late Shri K.R. Thakur,
R/o 46/12, East Patel Nagar,
New Delhi.
....Respondents.
Date of institution of appeal :21.11.2009
Date when appeal received by transfer:08.03.2013.
Date when arguments on application were heard:08.04.2013
Date of pronouncement of order :09.04.2013.
O R D E R:-
Vide this order I shall dispose of an application under Section 151 moved on behalf of respondent No.1/ landlord for directing the appellant to pay use and occupation charges in terms of judgment of Hon'ble Supreme Court in the matter titled as Atma Ram Properties (P) Limited v. Federal Motors Pvt. Limited, 2005 RLR 90 (SC). 2- It is alleged in the application that vide order dated 13.10.2009, the eviction petition filed by the respondent under Section 14(1)(a) & (j) of the Delhi Rent Control Act, (RCT Appeal No.46/2013/2009) (Page 2 of 12) 1958 (hereinafter referred to as "the DRC Act") has been allowed directing the respondents No.2 to 7 to deposit entire arrears of rent w.e.f. 01.10.1999 upto 31.03.2001 @ Rs.600/- per month and further to pay and deposits the rent w.e.f. 01.04.2001 to 30.09.2001 @ Rs.660/- per month and also to pay the differential amount of Rs.60/- per month w.e.f. 01.10.2001 till date from the date of judgment to avail benefit of judgment under Section 14(2) of the DRC Act. 3- Vide same judgment, learned Addl. Rent Controller has directed to appellant and respondents No. 2 to 7 to restore the suit premises to its original condition within two months from the date of order. However, the appellant and respondents No.2 to 7 have not complied with that order of learned Addl. Rent Controller. As such, eviction order is deemed to have been passed against them.
4- Respondent No.1 has filed the execution proceedings before the learned Addl. Rent Controller and warrants of possession were issued. However, the appellant filed an application for early hearing and the execution proceedings were stayed vide order dated 01.02.2012. It is alleged that the appellant has got the stay order without any direction to pay use and occupation charges at market rate. As such, lot of prejudice is being caused to the respondent No.1 who is not being paid the use and occupation charges in terms of the judgment passed by the Hon'ble Supreme Court. The market rate of similar premises is more than Rs. 1 lakh as the same is situated on main road and is a big shop. As such, appellant is liable to pay use and occupation charges (RCT Appeal No.46/2013/2009) (Page 3 of 12) @ Rs.1 Lakh w.e.f. 13.12.2009 and in case of failure, the stay order dated 01.02.20112 be vacated.
5- Notice of the application was given to the Appellant who has not filed any reply.
6- I have heard Shri Deepak Sharma, Advocate for the Appellant, Shri H.S. Arora, Advocate for the respondent and have perused the record.
7- It is submitted by the learned Counsel for the appellant that by virtue of this application, the respondent is claiming use and occupation charges @ Rs.1 lakh w.e.f. 13.12.2009. As such, the amount comes to approximately Rs.30 Lakhs. The respondent No.1 was directed to make up deficiency in the court fee. However, he has paid court fee of Rs.150/- only, whereas he was supposed to pay court fee on the amount of Rs.30 Lakhs. As such, the application cannot be heard. Moreover, vide order dated 01.02.20112, execution proceedings initiated by respondent No.1 were stayed. By virtue of this application, respondent No.1 is virtually seeking modification of the stay order. If he was aggrieved by this stay order, he should have taken the legal remedy available to him as per law and present application could not have been filed. Moreover, respondent No.1 is seeking enhancement in rent for which there is specific provision under Section 6(A) read with Section 8 in the DRC Act. At the most, the respondent can increase rent by 10% and that too after serving notice upon the appellant. As such, it was submitted that the application is liable to be dismissed. Reliance was placed on 2012 (129) DRJ 229, (RCT Appeal No.46/2013/2009) (Page 4 of 12) Atma Ram Properties (P) Ltd. v. Escorts Ltd. & Anr. 8- Per contra, it was submitted by learned Counsel for respondents that the respondent was required to pay Court fee as prescribed under the rules. Although, he was required to pay court fee of Rs.100/- only, but he has paid court fee of Rs.150/-. Moreover, he was not supposed to file a suit for recovery. In fact, as per directions given by the Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (supra), which was subsequently followed by Hon'ble High Court in a number of cases that since an eviction order has already been passed, the appellant is liable to pay use and occupation charges at market rate. Reference was made to the lease agreement for similarly situated property wherein rent is being paid @ Rs.1 Lakh. As such, it was submitted that appellant is liable to pay use and occupation charges @ Rs.1 lakh, failing which stay order be vacated. As regards the authority relied upon by the learned Counsel for the Appellant, it was submitted that same is distinguishable and has no bearing on the present application.
9- I have given my considerable thoughts to the respective submissions of the parties and have carefully perused the records.
10- In M/s. Atma Ram Properties (P) Ltd. Vs. Federal Motors (supra) it was held by Hon'ble Supreme Court that once a decree for eviction has been passed, in the event of execution of decree being stayed, the appellant/tenant can be put on such reasonable terms as would in the opinion of (RCT Appeal No.46/2013/2009) (Page 5 of 12) the appellate Court to reasonably compensate the decree holder for loss occasioned by delay in execution of decree by the grant of stay, in the event of the appeal being dismissed. It was also held that with effect from the date of decree of eviction, the tenant is liable to pay mense profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree. It will be apt to reproduce observations made by Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. Vs. Federal Motors (Supra):-
"8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in the Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an order of stay.
Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellate may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and (RCT Appeal No.46/2013/2009) (Page 6 of 12) weighed against the other paramount consideration; why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior Forum. Still the question which the Court dealing with a prayer for the grant of stay asks to itself is: Why the status quo prevailaing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.
9. Dispossession , during the pendency of an appeal of a party in possession, is generally considered to be 'substantial loss' to the party applying for stay of execution within the meaning of Clause (a) of Sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c); of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for order of stay must do equity for seeking equity: Depending on the facts and circumstances of a given case an appellate Court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the (RCT Appeal No.46/2013/2009) (Page 7 of 12) end of the appeal."
11- This authority was subsequently relied upon in M/s. Anderson Wright and Co. Vs. Amar Nath Roy & others AIR 2005 S.C. 2457. Following the ratio of M/s. Atma Ram Properties (P) Ltd. v. Federal Motors (Supra) our Hon'ble High Court in Praveen Davar (Capt. Retd.) & another Vs. Harvansh Kumari & others 153(2008) DLT 204(DB) and Jagbir Singh Vs. Jai Singh Panwar & others 160(2009) DLT 219 (DB), passed a conditional order while staying the operation of the impugned order.
12- I have carefully gone through the authority Atma Ram Properties (P) Ltd. Vs. Escorts Ltd. (supra) relied upon by ld. counsel for the appellant. With due respect, this authority is not applicable to the present case inasmuch as in that case, the suit for recovery of rent at market rate was filed and an objection was taken by the respondent. It was held that increase in rent was governed by the provisions of the DRC Act. The suit is barred by Section 50 of the DRC Act and plaint was liable to be rejected. At the cost of repetition, it may be mentioned that respondent No.1 is not seeking recovery of rent at the market rate but is seeking use and occupation charges in terms of direction given by Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. Vs. Federal Motors (supra).
13- In view of these authoritative pronouncements, while stay of the execution of decree, the applicant can be put on such reasonable terms as would reasonably compensate the decree holder for loss occasioned by grant of stay and appeal (RCT Appeal No.46/2013/2009) (Page 8 of 12) ultimately being dismissed.
14- During the course of arguments, Counsel for respondent No.1 referred to the conduct of the appellant for submitting that respondents No.2 to 7 are none else but the legal heirs of the deceased tenant and the appellant took more than two years to get them served, thereby delaying the execution of the decree.
15- There is force in this submission inasmuch as by way of present appeal, the appellant has challenged the order dated 13.10.2009 and the record reveals that till 05.05.2011, respondents No.2 to 7 could not be served and ultimately they were served by way of affixation and publication and they failed to appear, therefore, were proceeded ex parte. 16- As regards the submission of learned Counsel for Appellant, that the respondent is required to pay court fee on the sum of Rs.30 Lakhs, the same is devoid of merits inasmuch as by virtue of notification dated 31.07.2012 now court fee is required to be paid on the application and as such, directions were given to the appellant to pay the court fees in response to which the court fees of Rs.150/- was paid. That being so, the submission that the respondent No.1 is required to pay court fee on the sum of Rs.30 Lakhs is without any substance. Similarly, the plea that by virtue of this application, the respondent No.1 is seeking modification of the stay order, same is also devoid of merits inasmuch as in view of the aforesaid discussion, the court is empowered to put condition while staying the operation of the decree. Even if on 01.02.2012, while staying the (RCT Appeal No.46/2013/2009) (Page 9 of 12) execution proceedings initiated by respondent No.1, no condition was imposed, that does not deprive the respondent from filing the present application and seeking relief. There is no substance in the submission of learned Counsel for the Appellant that respondent No.1 can at the most, seeks increase in rent by 10% that too after serving the notice under Section 6A read with Section 8 of the DRC Act, because respondent No.1 is not seeking increase in rent, but is claiming use and occupation charges for the period for which appellant is in possession after the eviction order has been passed. That being so, the respondent No.1 is entitled to seek use and occupation charges. The respondent No.1 has placed on record, copy of the lease agreement in respect of property No. 5/54, Old Rajender Nagar, Shankar Road, New Delhi by virtue of which the premises were let out in the year 2008 @ Rs.1 Lakh per month for carpet area of 700 sq. feet and 800 sq. feet in super built up area on the ground floor of the building alongwith space measuring 10' x 12' in the terrace of the building. The area in possession of the appellant is one shop measuring 30' x 12' approximately on the ground floor in the property bearing No. 122, Shankar Road Market, New Rajender Nagar, New Delhi. The exact calculation of the quantum of the amount is not possible but we cannot lose sight of the fact that the suit property has a commercial potential. It is situated in Shankar Road Market, New Rajender Nagar, New Delhi which is primarily commercial. Under the circumstances, the appellant is at least liable to pay damages i.e. use and occupation charges (RCT Appeal No.46/2013/2009) (Page 10 of 12) @ Rs.10,000/- per month from the date of decree. The application moved by respondent No.1 is disposed of in terms of the following directions:
i) The Appellant is liable to pay or deposit a sum of Rs.10,000/- per month from the date of order i.e. 13.10.2009 till date;
ii) First such deposit shall be made on or before 31.05.2013. The appellant may adjust by way of calculation, the amounts, if any paid by him to the respondent No.1 for this period.
iii) With effect from 01st June, 2013, the appellant shall continue to pay or deposit for payment to the respondent No.1, an amount calculated at the same rate month by month and by the 15th day of that month;
iv) The respondent-landlord shall file an undertaking on affidavit, making a statement that the amount recovered by the respondent in terms of this order shall be refunded or remain available for adjustment in terms of any directions which this Court may make at the end. If any amount becomes liable to be refunded consistently with the decision of this Court in the appeal, the respondent shall refund the same, within the time appointed by the Court for the purpose and the amount shall remain a charge on the suit property.
v) Non-compliance with any of the terms referred above shall result in the order of stay passed by this Court being vacated and the respondent shall be free to execute the decree and recover possession from the appellant. Similarly, non-compliance by the respondent No.1 with the condition (RCT Appeal No.46/2013/2009) (Page 11 of 12) No.4 stated herein-above would dis-entitle him to receive the amount and the amount liable to be paid by the appellant shall be deposited in the Court and invested in fixed deposit from time to time.
17- It is clarified that amount quantified by this Court is only a tentative opinion formed by the Court on the basis of material available on record and is not determination of the actual amount which the respondent may be able to get from the appellant.
18- The application is disposed off accordingly.
Announced in open (SUNITA GUPTA) court on 09.04.2013 Rent Control Tribunal: Delhi (RCT Appeal No.46/2013/2009) (Page 12 of 12)