Delhi District Court
Mr. Mohan Taneja vs Ms. Laxmi Bai (Since Deceased Through ... on 2 November, 2019
IN THE COURT OF SH. S. S. MALHOTRA: PO:MACT01/
ADDITIONAN DISTRICT JUDGE (NORTH): ROHINI: DELHI
Suit no. 1600/16 and CC no.1600A/16
Mr. Mohan Taneja
S/o Mr. K. L. Taneja
R/o 5/8, Pal Mohan Apartments,
Club Road, Punjabi Bagh,
New Delhi.
....Plaintiff
VERSUS
1. Ms. Laxmi Bai (since deceased through LRs)
(1) Mr. Pradeep Arora
(2) Mr. J. S. Arora
Both S/o Late Gianchand
Both R/o F14/49, F14/49, Model TownIII,
Delhi110009.
2. Ms. Baljit Arora
W/o Mr. J. S. Arora
3. Ms. Sushma Arora
W/o Mr. Pradeep Arora
4. Mr. Arvinder Singh
S/o Mr. J. S. Arora
All R/o F14/49, Model TownIII,
Delhi110009.
....Defendants
SUIT FOR DAMAGES AND RECOVERY
DATE OF INSTITUTION : 25.09.2002
JUDGMENT RESERVED ON : 31.10.2019
DATE OF JUDGMENT : 02.11.2019
Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 1 of 58
JUDGMENT
1. By this judgment I shall dispose off the suit filed by the plaintiff i.e. the suit for damages and recovery as well as the counter claim filed by the defendants. Brief facts stated by the plaintiff in his plaint are that he is a manufacturer of home furnishings and possesses expertise in the field of fashion designing, interior designing and providing value education in carrier oriented courses and he had entered into an agreement of franchise from Scholar School Brittanika which is affiliated to Waltham Forest College (London) U. K. Chichester College of Art Science & Technology U. K. which is internationally acclaimed in various designing carrier oriented courses. It is stated that plaintiff was one of the pioneer to bring this name alongwith its system to India for the first time and the plaintiff in order to set up his franchise center paid Rs.2,00,000/ as franchise fees to M/s Scholar School Brittanika.
2. It is stated that defendants no.1 and 2 are the coowners in respect of shop bearing no.85, Mall Road, Kingsway Camp, Delhi measuring 100 sq. yards and defendants no.3 and 4 are the coowners in respect of shop bearing no.87, Mall Road, Kingsway Camp, Delhi measuring 100 sq. yards and the defendants constructed both the properties and joined their portions at first floor and second floor of property no.85 and property no.87, Mall Road, Kingsway Camp, Delhi making total measurment 200 sq. yards i.e. 1800 sq. ft. carpet area and the defendants individually entered into respective separate agreements of lease with the plaintiff for their respective portions of the said property vide agreements dated 24.04.2002 and the plaintiff had paid a sum of Rs.25,000/ as refundable security alongwith rent for the month of April 2002 i.e. Rs.6,250/ to each of the defendant.
3. It is further stated that the defendants had separately mentioned in their Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 2 of 58 respective agreements regarding providing of 6 KV commercial electricity connections each which is evident from Clause 14 of the agreement and it is clear from the clauses of the agreements that the defendants have to provide four electricity connections of 6 KV individually to the plaintiff. It is further stated that even four connections of 6 KV were not sufficient to cater the area of 1800 sq. feet and the defendants had further assured to give NOC to the plaintiff for obtaining more electricity if required to match the required electricity load and the second floor being terrace floor, minimum 24 KV commercial electricity connection was required and only for that reason defendants had assured four connections of 6 KV each. It is further stated that plaintiff started interior work including wooden compartments to make separate rooms for different courses, library, office etc. and the plaintiff had partitioned the hall into eight rooms besides open passage and kitchen and provision for air conditioning was kept in each room separately. It is stated that plaintiff had installed four air conditioners, eight computers, twenty sewing machines to be run on electric motor, one singer fashion maker machine and two electric irons alongwith electric fans, tube lights, fancy decorative lights, bulbs etc. in the said premises and apart from that a glow sign board made of vinyl was also installed at the front of the premises and one mineral water machine was also installed but the defendants did not provide any electricity connection whereas the plaintiff had invested huge sums of money in different fixtures, furniture, electricity appliances, advertisement, interior designing etc. which comes to Rs.11,51,000/. It is further stated that he also spent an amount of Rs.28,000/ on the opening ceremony but he had to face embarrassment before his guests due to nonworking of ACs and a number of students who had got registered with the institute of the plaintiff had Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 3 of 58 cancelled their registration. Not only this, the plaintiff had employed the staff including Ms. Yukti Ahuja, faculty for interior design, Ms. Aditi Kapur, faculty for tour and travels, Ms. Parul, Counselor, Ms. Niti Malhotra, faculty for secretarial practice and others whom he had to pay salary for three months and further the plaintiff had contracted with experts for consultancy i.e. Ms. Mamta Sehgal, Head of the Department of International Women's Polytechnic, for Rs.75,000/ for a period of three months and Ms. Anila Sharma, Senior Consultant in Fashion Designing for Rs.1,00,000/ for a period of six months, which he had still to pay them despite the fact that he had to close down the institute without its being operative. It is stated that the plaintiff had spent about Rs.11,51,000/ for the establishment of the institute which he had to close down due to the misrepresentation made by the defendants and despite various requests defendants did not provide three other connections in addition to the one existing connection of 6 KV which was insufficient for running an institute and the plaintiff was unable to run the said educational institute and has thus incurred huge losses which have been calculated @ Rs.5,00,000/ per month from the month of May 2002 till the filing of the present suit and the total loss was of Rs.20,00,000/ besides the amount of Rs.11,51,000/ which was spent by the plaintiff for establishing the said educational institute and the total claim of the plaintiff is Rs.31,51,000/ for recovery of damages.
4. It is stated that the defendants instead of providing the electricity connections started extending threats to the plaintiff, for which the plaintiff has also lodged a complaint dated 09.07.2002 with the Additional Commissioner of Police and when the defendants did not provide electricity connections in the premises despite repeated requests then the plaintiff Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 4 of 58 served a legal notice dated 11.06.2002 upon the defendants for installation of electricity connections in the premises within seven days of receipt of notice and vide reply dated 28.06.2002 the defendants have vehemently and emphatically denied their liability of providing four separate electricity connections of 6 KV each for the institute of the plaintiff as agreed in the agreement and defendants had also denied their liability to the losses suffered by the plaintiff. It is stated that the defendants failed to fulfill the terms and conditions of the rent agreements dated 24.04.2002 which not only resulted in heavy losses but the plaintiff had to close the institute under compelling circumstances.
5. It is prayed to pass a decree for a sum of Rs.31,51,000/ alongwith pendenlite interest @ 24% per annum in favour of plaintiff and against the defendants from the date of filing of the suit till its realization.
6. Defendants were duly served and they filed their joint written statement cumcounter claim. Firstly, coming to the facts of the written statement. It is stated that the present suit is based on false, baseless and misconceived facts and is not maintainable legally and the plaintiff by distorting true factual proposition and by concealing material facts had grossly abused the process of law only to extort money from the defendants. True facts rather are that the defendants are in close blood relations in as much as defendant no.1 is the motherinlaw of defendants no.2 and 3 and grandmother of defendant no.4 and defendants no.1 and 2 are coowners of shop no.85, Mall Road measuring 100 sq. yards and defendants no.3 and 4 are co owners of shop no.87, Mall Road measuring 100 sq. yards. All the defendants became coowners of the resultant bigger single shop admeasuring 200 sq, yards (hereinafter referred as tenanted premises) having ¼ undivided share in the same.
Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 5 of 587. It is stated that the plaintiff through one Mr. Kulraj Singh S/o Mr. Gurbax Singh R/o F14/29, Model Town, New Delhi approached the defendants for taking on rent second floor of the tenanted premises and the whole deal was materialized through Mr. Kulraj Singh wherein it was agreed between the parties that one electricity connection of 6 KV was to be installed by the defendants in the tenanted premises. It is stated that after negotiations it was agreed between the parties that monthly rent of the tenanted premises would be Rs.25,000/ per month and it was also agreed that electricity connection of 6 KV would be provided by the defendants in the tenanted premises. It is further stated that negotiations were going on between the parties for one shop as a whole i.e. tenanted premises and under the terms between the parties, defendants were liable to provide certain facilities including provision for separate electricity connection of 6 KV in the tenanted premises and as per agreed terms facilities were to be provided by the defendants jointly and not individually. It is stated that the parties never intended that each defendant had separate liability and the same can be gathered from common terms in all the four rent agreements and even it can reasonably be assumed that in one single hall only one provision for one facility can be made and it can never be assumed that four coowners would make four separate provisions for one facility in one room.
8. It is stated that in the present case, only one rent agreement was to be executed between the parties and the said agreement was subsequently split into two i.e. shopwise but later on only to reflect true income tax liabilities of the defendants, arising out of monthly rent received, said two agreements were further split into four separate rent agreements and the original draft agreement contained security deposit clause, which was copied when the agreement split into two parts and when the agreements were split into four Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 6 of 58 parts and due to typographical error said security deposit clause were omitted to copy in two new agreements. It is stated that every agreement has same terms with small corrections as to number of shops and security deposit and every clause in all the four agreements is in the same sequence from which it is clear that from one single draft, four copies were got prepared with minor corrections as aforesaid and unfortunately clause 14 of the master draft got repeated in every agreement due to sheer inadvertence and must be termed as typographical error.
9. It is stated that no cause of action arose in favour of the plaintiff and against the defendants as entire case is based upon the clause 14 which got repeated verbatim in each rent agreement and reliance upon said clause 14 of agreement is misconceived. It is stated that the parties to the suit entered into an agreement which was legally and reasonably impossible to be performed and in the present case plaintiff alleges that defendants agreed to install four separate electricity connections of 6 KV each. It is stated that firstly, it is logically or reasonably impossible to believe that parties were ever intended to install four connections for one room/hall and secondly, four electricity connections cannot be sanctioned from concerned authority for one unit as per law. It is stated that as per rules and regulations concerned authority can provide one electricity meter in one premises and in case requirement of electricity is more than 11 KV, the concerned authority would provide three phase meter and even by supposing that any such agreement was entered into between the parties, then the same is null and void. It is further stated that as per clause 14 of the said agreement, itself if the plaintiff requires more electricity i.e. more than 6 KV, then the plaintiff can obtain another connection at his own costs and supposing each defendant was to provide one connection of 6 KV each i.e. four connections Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 7 of 58 having gross capacity of 24 KV then what was the need of specific stipulation of another connection being taken by the plaintiff at his costs which otherwise cannot be reasonably believed. It is stated that true construction of the rent agreements be read as a whole and as per rent agreement only one 6 KV electricity connection was to be provided, which has been provided and as far as legal notice dated 11.06.2002 is concerned, it is submitted that plaintiff issued four separate notices to the defendants containing same clause and clause 6 of each notice is addressed individually. It is stated that it has been admitted by the plaintiff that every defendant has already provided separate electricity connection of 6 KV each i.e. four electricity connections for total capacity of 24 KV and if the plaintiff does not controvert the above situation then in that case present suit is without any cause of action and is liable to be dismissed. It is stated that if the plaintiff is controverting the same then it would be on the same lines that all the four notices are nothing but copies of one and unfortunately same clause remained in every notice without any correction or due to some other error and in any case malafide of plaintiff is apparent and even otherwise suit of the plaintiff is not maintainable in the eyes of law. The claim of the plaintiff that he suffered losses on account of non providing electricity connection and in such circumstances the plaintiff ought to have served notice to the defendants to the effect that more electricity be provided and in case defendant would have failed to provide the same, then only the suit would have been filed. It is stated that the suit of the plaintiff is liable to be dismissed with respect to damages as the plaintiff was not sure which of the defendant had provided and which other defendants had not provided the electricity to the plaintiff. It is further stated that as per his allegations defendants had provided one electricity Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 8 of 58 connection and who has supplied the meter /6 KV electricity connection is not in the knowledge of the plaintiff and in absence of the exact knowledge, no claim of the plaintiff can be maintainable against the defendants and even the notices of the plaintiff show that one defendant has supplied meter of 6 KV and tick mark is given on all the defendants in the notice which means that the defendants have already provided electricity to the plaintiff.
10. It is further stated that even as per the claim of plaintiff out of four defendants only one defendant had provided electricity to plaintiff and the present suit should have been filed by the plaintiff against other three defendants i.e. other than one defendant that too specifically mentioning as to which defendant had complied with or which defendants had not complied with the alleged clause and it has not been clarified as to out of four defendants against which other three defendants he is claiming damages as per his own allegations. Therefore, the suit of the plaintiff is liable to be dismissed on this single count. It is stated that the suit of the plaintiff is further not maintainable as the plaintiff wants to get benefit of typing mistake in all the four rent deeds and inadvertently in all the four rent deeds it is mentioned that the lessor would provide one meter of 6 KV and in case more electricity is required, he can obtain another connection for the same at his own costs and expenses and there was no ground to provide four separate connections and the plaintiff on the basis of NOC to be issued by the defendants could have obtained new KV connection but instead of obtaining NOC from the defendants, plaintiff deliberately and with a view to extort money from the defendants has filed the suit without delivering possession which shows malafide on the part of plaintiff.
11. It is stated that the defendants have provided the electricity connection as per agreement and said connection was sanctioned by the concerned Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 9 of 58 authority on 27.04.2002 and malafide of plaintiff is apparent from the fact that the plaintiff raked up the issue nearly after one and half month from the sanction of aforesaid connection and in fact plaintiff defaulted under the said agreement and did not pay any rent with regard to tenanted premises and to avoid such rent, he had taken up this issue which otherwise a typographical mistake.
12. As far as reply on merits is concerned, it is denied that defendants had individually entered into separate agreement with the plaintiff as alleged and it is submitted that the defendants together entered into rent agreement with the plaintiff and only for the purpose of income tax, one rent agreement was split into four agreements. It is denied that to cater the area of 1800 sq. ft even the said four connections of 6 KV each also would not have been sufficient as alleged and it is submitted that even it is not the rule for DVB to provide four electricity meter of 6 KV each at one undivided floor having one kitchen i.e. one dwelling unit. It is submitted that plaintiff after getting the suit property on rent started interior work in the premises and if the plaintiff had installed computers and other gadgets as per his convenience, defendants had nothing to do with it. It is denied that plaintiff organized opening ceremony and spent a sum of Rs.28,000/ or he had to face embarrassment before his guests and various other persons due to non availability of electricity. It is submitted that had there been any requirement of the plaintiff, the plaintiff would have asked for the installation of more electricity meter before organizing the opening ceremony as is being alleged. It is denied that number of students were got registered with the Institute of the plaintiff and the plaintiff had to cancel the registration and had lost reputation in the eyes of society, his staff, or other persons whom he had to pay salary for the months together. It is Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 10 of 58 denied that he had to pay Rs.1,00,000/ for a period of six months to someone and Rs.50,000/ to someone else as mentioned in relevant paras. It is also denied that the plaintiff had to close down the institute without it being operative as alleged or due to said closure, the relations of the plaintiff with them have spoiled and the plaintiff had to face humiliation for not providing electricity by the defendants. It is denied that plaintiff spent Rs.11,51,000/ for the establishment of Institute or had to close down due to misrepresentation made by the defendants. It is further denied that plaintiff was unable to run the said institution or has incurred huge losses which had been calculated Rs.5,00,000/ per month till the filing of the present suit or that he is entitled for Rs.31,51,000/ towards rectification or towards damages as alleged. It is denied that plaintiff approached the defendants for providing more electricity or the defendant in turn started threatening the plaintiff as alleged. As far as legal notices and its reply are concerned, same are not disputed. It is denied that plaintiff was always ready to surrender peaceful vacant possession of the premises to the defendants on the payment of amount due towards rent or that no amount was due towards the defendants. The para pertaining to cause of action is denied in toto. Defendants prayed for dismissal of the suit.
13. The defendants have also filed the counter claim, which has not been registered separately and would be registered separately by way of order of this Court and the same be registered as CC no.1600A/19.
14. Now coming to the facts of the counter claim. It is stated by the defendants/counter claimants that preliminary objections as taken in the written statement be read as part and parcel of this counter claim and the present counter claim is limited to the extent of damages as per the agreement between the parties and, in addition to monthly rent of the Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 11 of 58 tenanted premises. It is further stated that as per the agreement between the parties monthly rent of the tenanted premises was Rs.25,000/ per month payable in four equal parts to each defendants i.e. Rs.6,250/ to each defendant but since inception of tenancy, plaintiff did not make any payment towards monthly rental which was inter alia mentioned in agreement and as per the agreement in case of default any payment of monthly rent, the plaintiff was liable to pay Rs.2,500/ to each defendants i.e. Rs.10,000/ per month as damages/penalty in addition to monthly rent till the payment of such rent and in support of his claim he produced Clause 15 of the rent agreement as follows:
"That in case the Second party fails to pay the rent for a month he shall be liable to pay Rs.2,500/ per month as penalty to the first party till the payment of the rent of the said month apart from the rent of the months which he failed to pay."
15. It is further stated that apart from the agreement if the plaintiff defaults/fails to pay rent for three months, tenancy was to be terminated automatically and since the plaintiff defaulted continuously in payment of rent and accordingly the tenancy got terminated automatically on 30.06.2002 as three months lapsed from 01.04.2002 and even otherwise defendants through their legal notice dated 08.07.2002 had terminated the tenancy of the plaintiff w.e.f. 11.07.2002. It is stated that combined reading of Clause 15 and 16 of rent agreement shows that the plaintiff is liable for damages/penalty of Rs.30,000/ @ Rs.10,000/ per month i.e. 01.04.2002 to 30.06.2002 in addition to monthly rent as plaintiff's tenancy stood automatically terminated on 30.06.2002.
16. It is further stated that as per agreement, the plaintiff was bound to handover vacant and peaceful possession of the tenanted premises on its termination of tenancy i.e. either on 30.06.2002 or on 11.07.2002 and as Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 12 of 58 such plaintiff was liable to pay damages @ Rs.1,500/ per day to each defendants i.e. @ Rs.6,000/ per day in addition to monthly rent from the date of termination of tenancy till the date plaintiff vacates the tenanted premises and the total claim of defendants towards damages from 11.07.2002 to 15.02.2003 for 219 days comes to Rs.13,14,000/. It is further stated that the plaintiff is accordingly liable to pay Rs.13,14,000/ i.e. damages to the defendants in addition to Rs.30,000/ of damages towards rent upto 30.06.2002/11.07.2002 and in total the defendant has to pay damages of Rs.13,44,000/ towards the damages apart from rent. The requisite court fees is stated to have been paid and defendant has undertaken to pay deficit court fee. It is accordingly prayed that decree be passed in favour of the defendants and against the plaintiff with respect to counter claim for Rs.13,44,000/ and another decree for amount of damages in favour of defendant @ Rs.6,000/ per month from the date 15.02.2003 till the date of possession.
17. Plaintiff thereafter filed replication as well as reply to the counter claim and it is stated that plaintiff has not distorted any proposition nor has concealed any material facts from the Court and in fact the defendants had not provided electricity in terms of agreement which obstructed the plaintiff to operate his institution and as such the plaintiff could not operate his institution because of the fault of the defendants. It is stated that the facts narrated by the defendants are wrong except constructing of the property and letting the same vide four different agreements to the plaintiff. It is denied that deal was materialized through one Mr. Kulraj Singh as alleged and it is submitted that plaintiff does not know at all Mr. Kulraj Singh. It is clarified that in fact the defendants are the owners of one restaurant and the same is in occupation of the brotherinlaw of the plaintiff and plaintiff has Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 13 of 58 been visiting his brotherinlaw's restaurant where he came into contact with one of the defendants and terms of tenancy were settled. It is denied that it was agreed between the parties that one electricity connection of 6 KV was to be installed by the defendants in the tenanted premises and it is submitted that if this would have been the position this fact ought to have been mentioned in only one of the agreement but providing of 6 KV electricity was mentioned in all the four agreements signed by the parties. It is stated that plaintiff had to open one institution for which he had a franchise agreement with Scholars School Britannica and the plaintiff got total area of 1800 sq. feet and ten ACs were to be installed and each AC require 2 KV of electricity besides that plaintiff had to install more machines for which more KV/electricity was required which was never provided and as such institution of plaintiff could not become operational. It is further stated that the amount mentioned in para 6 includes the amount paid by the plaintiff including security, franchise fees and also for the furniture purchased for the institution. It is further stated that for running the educational institution, 6 KV connection was not sufficient as is being alleged. It is further submitted that the defendants admitted that separate electricity connection would be provided by the defendants in tenanted premises and it was not a typographical mistake and it is submitted that in two of the agreements if security clause was not there but security amount was paid to each of the defendant it makes clear that in all agreement almost same clauses were there and that is the reason in each agreement 6 KV electricity connection was mentioned.
18. It is stated that the defendants never applied for additional load/KV connection and no landlord would allow any tenant to occupy the tenanted premises without receiving advance rent. It is denied that rent has not been Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 14 of 58 paid as alleged. It is further stated that defendants have mentioned that no separate terms were negotiated and if that was the position then why they entered into four agreements instead of one. It is stated that the defendants are trying to take new plea and it is stated that no more or less be understood from the alleged splitting of one agreement into four and it is stated that the plaintiff and defendants all were interested to have four different agreements with four different defendants and only for that reason the clause 14 specifically provided and there is no typographical mistake as alleged. It is reiterated that minimum requirement of the plaintiff was of 24 KV electricity connection as he had to install computers, ACs and other electric gadgets. It is stated that the suit of the plaintiff is maintainable and it is prayed that suit of the plaintiff be decreed.
19. As far as serving of legal notice is concerned, the same is not denied and it is made clear that only one meter of 6 KV electricity was provided and the plaintiff was filing documents to that effect and the defendants be directed to prove that they had provided 24 KV electricity connection and it is further stated that while issuing separate notice to defendant, the plaintiff mentioned in each notice that he had been provided only 6 KV and not 24 KV. It is stated that plaintiff was even not aware of this fact which set of defendants had provided the electricity but it was only Ms. Sushma, defendant no.3 and Mr. Arvinder Singh Arora, defendant no.4 who provided only 6 KV electricity connection and not even 12 KV and this fact come to the knowledge of the plaintiff recently when he got duplicate copy of the bills from NDPL which inter alia means that only two defendants had provided 6 KV jointly and to prove the said fact the plaintiff has obtained the bill history of K. no.31400156708 which fact shows and confirms that the electricity was installed only on 30.05.2002 in the tenanted premises Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 15 of 58 and prior to that there was no electricity.
20. It is further stated that plaintiff did issue notice and it was specifically mentioned in para 6 of the said notice that the plaintiff will be claiming damages which the plaintiff is incurring each day and it is reiterated that defendants had not provided electricity to the plaintiff due to which he suffered huge losses, and the plaintiff had requested time again to provide electricity connections but there was no occasion for the plaintiff to write or issue notice to the defendants for not providing electricity. It is stated that position with respect to educational institution is that there was/is specific peak time for the admission which is always after the examination of 12 th as well as BA and once this period is over, the whole year goes waste. It is stated that the defendants committed wrong and caused damages to the plaintiff's reputation as well as caused mental agony, financial losses and torture and as such they are liable to pay the damages. It is further submitted that the claim of the plaintiff is maintainable against all the defendants and only one set of defendants have applied for electricity and other set of defendants had not applied for electricity connection and it can be presumed that electricity provided by one set of defendants is consumed by other set of defendants. It is reiterated that electricity as provided by the defendants no.3 and 4 as per NDPL record and plaintiff has rightly filed the suit against all the defendants and in fact defendants no.3 and 4 had provided 3 KV each i.e. 6 KV. It is denied that plaintiff is trying to get benefit of typing mistake in the rent deeds. It is stated that the plaintiff knew that how much electricity he needed to run his educational institute having 1800 sq. feet carpet area and for that requirement he entered into an agreement with defendants which the defendants never fulfilled and now the defendants are stating that there was a typographical mistake. It is Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 16 of 58 submitted that such defence is only an after thought excuse and wrong has been committed by the defendants due to which the plaintiff has suffered losses and since the defendants had not complied with their part of agreement, plaintiff is not supposed to pay any amount of rent.
21. Now coming to the reply to the counter claim of defendants. The plaintiff has taken preliminary objections that the counter claim has to be segregated because the same cannot be allowed to be entertained alongwith the suit on account of pecuniary jurisdiction and it is stated that the claim with respect to the counter claim has to be tried by the District Judge and not by this Court and accordingly the defendants be directed to file their separate claim or suit before the District Judge and their counter claim may be ordered to be deleted from the written statement as the jurisdiction to try the counter claim of the defendant is lying with the Ld. District Judge only. It is stated that as per the provisions of Order 8 Rule 6A CPC the counter claim of the defendants has to be treated as a plaint and is governed by the Rules applicable to the plaint and if the suit as on date was to be filed for recovery of Rs.13,14,000/, the same ought to have been filed before the Ld. District Judge and even the cases which were pending before the Delhi High Court where the jurisdiction was more than Rs.5,00,000/ and upto Rs.20,00,000/ are being transferred to the District Courts.
22. It is further stated that the defendants have filed the counter claim as they wanted to save themselves from paying the suit amount and to put pressure upon the plaintiff so that he may withdraw the present suit and it is specifically mentioned that the defendants otherwise have not claimed any amount in the form of counter claim as the wrong has been committed by the defendants themselves. It is further submitted that the present counter claim is only a pressurizing tactics upon the plaintiff to withdraw the suit Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 17 of 58 and if the defendants were fair enough or were entitled for any amount as claimed in the counter claim, they could have approached this court prior to the filing of the suit by the plaintiff. It is further stated that the defendants have not come to the Court with clean hands and therefore their claim be dismissed.
23. On merits it is stated that the defendants are not entitled for any rent because main amenity and facility of electricity has not been provided by the defendants in terms of the agreement and as far as application under Order 39 Rule 10 of CPC is concerned, separate reply will be given by the plaintiff (said application has already been disposed off). It is denied that the plaintiff did not make any payment of rent to the defendants right from the inception of tenancy and it is reiterated that it is not believable that landlord will let out the premises and would allow the tenant to enter the premises without taking advance rent from the tenant. It is stated that in the present matter, the plaintiff has taken the premises on rent on 01.04.2002 and rent to each set of defendant amount to Rs.6,250/ per month total amounting to Rs.25,000/ was paid but no rent receipt was issued by any of the defendants despite their assurance. It is further stated that counter claim would have been maintainable only if the defendants would have performed/fulfilled their part of contract which they have not done.
24. It is denied that the tenancy was terminated on 30.06.2002 or it was automatically determined on 30.06.2002. It is stated that the defendants cannot ask for any damage or penalty when they themselves are on wrong foot. The date of termination of tenancy is otherwise contradictory in nature as it is explained in the notice that the tenancy had been terminated w.e.f. 11.07.2002 and at another place it is stated that the tenancy had automatically been terminated on 30.06.2002, therefore contents of counter Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 18 of 58 claim are contradictory in itself. It is denied that the plaintiff was liable to hand over vacant and peaceful possession to the defendants or if the plaintiff would not vacate the premises the plaintiff would be liable to pay damages @ Rs.1500/ per day to each defendants i.e. Rs.6,000/ per day in total in addition to the monthly rental till the date plaintiff vacates the tenanted premises. It is stated that the counter claim of the defendants is against the principle of natural justice, equity and good conscious and jurisdiction part is again reiterated and it is prayed that the counter claim of the defendants be dismissed with costs. It is further prayed that the defendants are not entitled to decree of @ Rs.6,000/ per day as claimed.
25. No replication was filed by the defendants to the reply/written statement of counter claim as filed by the defendants.
26. After completion of pleadings and disposal of various applications from time to time following issues were framed on 29.08.2008:
(i) Whether the plaintiff is entitled to damages against the defendants, if so, what amount?
(ii) Whether the plaintiff is entitled to interest, if so, at what rate and for what period?
(iii) Whether the defendants are entitled to counter claim and a decree in terms thereof on account of arrears of rents and damages and if so, what rate and for what period?
(iv) Relief.
27. Vide order dated 29.08.2008 parties were given opportunity to lead their respective evidence. Before coming to the evidence part it is a matter of record that defendants meanwhile filed an application under Order 6 Rule 17 of CPC for amending the counter claim and adding para no.7A in the counter claim and changing the prayer clause. Vide detailed order dated Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 19 of 58 02.03.2009, the said application of the defendants was dismissed. It is clear that the facts as stated in the original counter claim would be taken for deciding the issues.
28. The plaintiff has examined nine witnesses i.e. plaintiff himself as PW1 and he deposed about all the facts with respect to plaint as well as counter claim, Ms. Suman Taneja as PW2 who was the attesting witness of franchise agreement dated 07.03.2002, Mr. Shammi Madan as PW3 who was a witness to prove printing work got done by the plaintiff with respect to pamphlets on florescent paper etc., Mr. Rajiv Kumar Sharma as PW3A (wrongly mentioned as PW3) who had proved bill Ex.PW1/22 which pertains to purchase of electric items (he was examined orally and not on affidavit), Mr. Harsh Nagpal as PW4 who was a counter clerk at Gandhi Electricals who tried to prove bill Ex.PW1/23 as issued from their shop, Mr. Chander Prakash as PW5 who stated to be carpenter and had done carpenter work in the tenanted premises, Mr. Vinod Kumar as PW6 who is running a restaurant and who had done catering service for 160 person on 20.04.2002, Mr. Jasmeet Singh as PW7 who was a manufacturercum dealer of batteries, who supplied two exide batteries for inverter and Mr. Surender Kumar Grover as PW8 who is stated to be doing business of all types of publicity and artistic display work and thereafter plaintiff closed his evidence.
29. Defendants, on the other hand, examined four witnesses i.e. Mr. Pradeep Arora as DW1, Mr. Kulraj Singh as DW2, Mr. Hans Raj as DW3 and Mr. Anirudh Sinha, Assistant Manager, TPDDL, Lawrance Road, Keshav Puram, Delhi as DW4.
30. I have heard arguments advanced by ld. counsel for plaintiff and ld. counsel for defendants.
Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 20 of 5831. The case of the plaintiff in nutshell is that he took franchise from Scholar School Brittanika with respect to running an institute of fashion technology and in order to fulfill that agreement, he took the suit premises on rent from the defendants @ Rs.25,000/ per month i.e. Rs.6,250/ for each defendant and he started renovating the premises with the permission of the landlord/defendants and spent an amount of Rs.11,51,000/ on the renovation part for the purpose of running a fashion designing institute in better way and got various fittings done i.e. fitting with respect to wood work, other electric items including inverter, lights, bulbs etc., purchased inverter, installed coffee machine, tea machine, had got done carpenter work to beautify the premises so the premises remain eco friendly as well as suits the needs of the courses to be offered and then also organized an inauguration ceremony and he spent about Rs.11.51,000/ on all such items but the defendants who had to provide electricity 6 KV each did not provide the requisite electricity which compelled him to return the fees of students, and feeling harassed and stimulated at the hands of students and dignitaries who were called to inaugurate the institute and ultimately he had to close the institution. He claimed Rs.5,00,000/ per month as damages for four months on account of loss of profession and also an amount of Rs.11,51,000/ which he spent on fitment and has filed the present suit for recovery as well as damages to the tune of Rs.31,51,000/.
32. The main contention of the defendants, on the other hand, is that defendants had to provide only 6 KV electricity in totality and initially only one agreement was entered into in which it was mentioned that 6 KV electricity would be provided by the defendants but subsequently due to some income tax calculation one agreement was bifurcated into four agreements i.e. one in the name of each defendant who are the joint owners of the tenanted Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 21 of 58 premises and Clause 14 of the agreement however remained unaltered inadvertently and which terms that each of the defendant would provide 6 KV electricity to the plaintiff and it has been specifically mentioned in the agreement itself that in case the plaintiff would be requiring more electricity than 6 KV, the plaintiff can obtain another connection at his own cost and the defendants had further assured to give NOC to the plaintiff. Therefore, the main controversy would be as to whether the plaintiff was to be provided 6 KV electricity in total by all the defendants or whether plaintiff was to be provided 6 KV electricity by each of the defendants. If the plaintiff is able to prove that 6 KV electricity was to be provided by each of the defendants then his contention that he could not work properly for want of electricity would be appreciated and if the defendants are able to prove that only 6 KV electricity was to be provided by them and for more electricity he was at liberty to obtain another connection at his own cost then the case of the plaintiff would be dealt in that manner. Now coming to the issuewise findings.
ISSUE No.1: Whether the plaintiff is entitled to damages against the defendants, if so, what amount?
33. The onus to prove this issue was upon the plaintiff. Plaintiff has filed his evidence by way of affidavit Ex.PW1/A and has inter alia deposed in terms of his plaint and has exhibited the franchise agreement dated 07.03.2002 as Ex.PW1/1 of which PW2 is a witness but the said PW2 is not much relevant as far as this issue is concerned as controversy with respect to having entered into four agreements or not is subject matter of this issue. He deposed that the defendants had individually entered into separate agreements of lease with the plaintiff for their respective portions of the said property on 24.04.2002 and he proved the same as Ex.PW1/2 to Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 22 of 58 Ex.PW1/5 respectively. He deposed that they had separately mentioned in their respective agreements for providing 6 KV commercial electricity connection in terms of clause 14 which reads as under:
"That a separate electricity connection of 6 KV has been provided by the first party to the second party if the second party requires more electricity, he can obtain another connection for the same at his own costs and expenses and the basis of NOC to be issued by the first party."
34. He deposed that since they have not provided 24 KV connection, plaintiff could not start his activity in the manner in which he intended and not only this, he spent Rs.11,51,000/ upon construction, renovation and fit out of the said premises. He has also relied upon Ex.PW1/6 to Ex.PW1/28 and to prove the same he had examined PW3 to PW8.
In the crossexamination he deposed that he was in the business of manufacturing and trading of home furnishing items and before taking the said premises on rent, he was in the same business. He denied the suggestion that only single rent deed was drafted and thereafter two separate rent deeds were prepared for the said premises. He volunteered that no draft deed was prepared and four agreements were prepared simultaneously. He further deposed that he did not know four agreements were executed by the owner of the premises for the convenience of tax and he volunteered that four separate agreements were executed by the owners of the premises. He admitted that defendants no.1 and 2 are the owners of premises no.85 while defendants no.3 and 4 are the owners of premises no.87. He denied the suggestion that clause no.14 is included in all the rent deeds inadvertently by adopting the procedure of cut and paste as it was in the initial agreement. He deposed that he had not filed any document on the record to show that he required 24 KV connection to run his business and no fitting was got installed by him in the premises for installation of Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 23 of 58 remaining 18 KV with three phase connection and stated that it was the duty of the owners of the premises. He deposed that there was no occasion for him to make inquiry from the electricity office to know whether 24 KV electricity can be sanctioned in one premises as it were four separate premises. He denied the suggestion that he had even not paid rent for the first month and he closed the institute in the suit premises intentionally as his new business was not viable. He did not know in which premises and which landlord had got installed the electricity meter of 6 KV and he volunteered that the same was installed only on 30.05.2002. He deposed that he had not made any electricity payment of the said meter as he had not received any bill and no electricity was supplied to him by the defendants before installation of the said meter as building was newly constructed. He denied the suggestion that he had not sustained any loss as is being alleged. This is the entire evidence of plaintiff which has come on record. As far as other PWs are concerned, they all are the witnesses who had deposed on different aspects with respect to expenses made/cost incurred by the plaintiff on account of making the premises worth shifting/running the institute as mentioned in affidavit thereby giving explanation of spending about Rs.11,51,000/ and PW2 to PW8 are the witnesses to that aspect.
35. Defendants examined Mr. Pradeep Arora as DW1. He deposed that he was attorney of the defendants and son of defendant no.1, brother of the husband of defendant no.2, husband of defendant no.3 and parental uncle of defendant no.4 and apart from attorney he personally is well conversant with the facts of the case as it is he who had been instrumental in preparation of all the rent deeds and had let out the premises of the defendants to the plaintiff. He further deposed that he had not been deposing being attorney but also having the personal knowledge of the facts Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 24 of 58 and he proved his attorney as Ex.DW1/1. He deposed that defendants are in close relations, defendants no.1 and 2 are coowners of shop bearing no.85 and defendants no.3 and 4 are the coowners of shop each measuring 100 sq. yards and after construction, both the properties were joined and there was an area measuring 200 sq. yards. He deposed that by taking the services of one Mr. Kulraj Singh the premises was rented out to the plaintiff and after negotiations it was agreed between the parties that monthly rent of the tenanted premises would be Rs.25,000/ per month and a separate electricity connection of 6 KV was to be provided by the defendants in the tenanted premises and total rent was agreed to be Rs.25,000/ as it was a hall of 200 sq. yards. He deposed that under the agreed terms between the parties, defendants having undivided share in one singular hall including provision for separate electricity connection of 6 KV and as per agreed terms, said facilities were to be provided by the defendants jointly and not individually. He deposed that parties never intended that each defendant had separate liability to provide separate electricity connection and the same can easily be gathered from the common terms in all the four rent agreements and even it can reasonably be assumed that in one single hall, only one provision for one facility can be made and it can never be assumed that four coowners would make four separate provisions for one electricity facility in one room. He deposed that to reflect the true income tax liabilities of the defendants, arising out of monthly rent received, initially one agreement was drafted which was split into two agreement and then the said two agreements were split into four separate rent agreements and the original draft agreement contained security deposit clause, which was copied when the agreement was split into two parts and when the agreements were split into four parts, due to typographical error said Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 25 of 58 security deposit clause were omitted to copy in two new agreements. He deposed that security deposit clause found mentioned in only two rent agreements whereas the plaintiff had paid security deposit money under all the agreements. He deposed that since the original draft was made on the computer, therefore, at the time of preparation of four different agreements, various terms and conditions were just made by cut and paste on the computer but the clause 14 remained as it is and such error had been committed by preparing different rent agreements from one agreement and same clause was repeated in all other agreements. He further deposed that plaintiff issued four separate notices to all the four defendants and such notices were dated 11.06.2002 and in each notice he admitted that 6KV electricity connection had been provided by him and he proved the said notices as Ex.DW1/2 to Ex.DW1/5 and common reply was given by the defendants which is Ex.DW1/6. The intention of the plaintiff was not good as he was not running any business rather he was just grabbing the property of the defendants.
36. In the crossexamination he deposed that Ex.DW1/1 is neither notarized nor registered with the office of Subregistrar nor it has any witness in the requisite column and he cannot say whether the said documents had been filed on record or not and written statement alongwith counter claim bears his signatures. He deposed that all four defendants had executed their separate rent agreements with respect to letting out their property and he volunteered that they mentioned as their undivided share in the suit property while executing the rent agreements. He deposed that he did not know if the plaintiff after having the suit property on rent was intending to open an institute of fashion designing on this property. He admitted that his office was in the same building where he used to come daily. He deposed Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 26 of 58 that he did not know if the electricity supply was provided to the plaintiff w.e.f. 30.05.2002. He did not know as to how much amount plaintiff spent on the suit property for making usable for his own institution purpose nor can he say whether the plaintiff had installed machines etc. for making it user friendly for running its institution but he knew that ACs were not installed by the plaintiff. He admitted that only one electricity meter was installed for the purpose of providing electricity to the plaintiff and no other electricity meter was provided to the plaintiff after 30.05.2002 and he volunteered that only one electricity meter of 6 KW was provided to the plaintiff. He admitted that it is mentioned in the agreement of each defendant that each defendant had to provide electricity meter for four different undivided share and he volunteered that it was a typographical mistake and the defendants had not given any notice to the plaintiff with respect to the fact that the electricity meter is to be provided by each defendant separately has been wrongly written/typed in all the agreements. He volunteered that it never came to their knowledge. He deposed that the application for supplying 6 KW electricity meter to the plaintiff was given by Mr. Arvinder Singh Arora i.e. defendant no.4 only and other three defendants had never applied for providing 6 KW electricity meter. He denied the suggestion that since electricity connection had not been provided, plaintiff had to close his institution and he suffered a loss of Rs.31,51,000/ on account of not providing electricity.
37. Defendants had examined another witness i.e. Mr. Kulraj Singh whom the defendants claimed intervener in getting the suit property let out to the plaintiff from the defendants and Mr. Kulraj Singh in his affidavit has inter alia deposed that he got negotiations made with defendant Mr. Pardeep Arora and Mr. J. S. Arora for 2nd Floor of the building no.85 and 87, Mall Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 27 of 58 Road, GTB Nagar, Delhi and as such he fixed a meeting between the parties and participated in the meeting for settlement of the rent etc. and the building was jointly owned by the defendants and a rent deed was prepared stating that Rs.25,000/ was a monthly rent for complete second floor of shop no.85 and 87 which are adjacent and connected to each other and thus it was a complete big hall which was rented out and it was agreed that one electricity connection of 6 KV load would be provided. He deposed that defendants had gone through the said draft lease agreement in presence of both i.e. the plaintiff and the defendants Pardeep Arora but before signing the same the defendants wanted that for convenience of accounting of two separate shops, two separate lease deed may be made but again they wanted that instead of two separate cheques, there may be four cheques of each co owners be given and accordingly after the initial one lease deed, two separate lease deeds were prepared and again before signing the same, four separate lease deeds were prepared.
38. In the crossexamination this witness deposed that he is not a witness in any of the agreement executed between the parties and denied that he did not know the terms and conditions of the agreement entered between the parties. He did not know if four separate agreements were entered between the parties or one consolidated agreement was entered between the parties. He admitted that the terrace of the suit premises was opened. He denied the suggestion that he was not middleman with respect to the negotiations between the parties or that the matter was negotiated with the assistance of Mr. Mehendiratta. He admitted that Mr. J. S. Arora and Mr. Pradeep Arora were his business associates till 2010. He denied the suggestion that he had to come to depose in favour of defendant as they were his business associates. He admitted that he was not aware about the contents of the Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 28 of 58 agreement since it was not written in his presence.
39. There is another witness examined by defendants i.e DW3 Mr. Hans Raj Arora, who proved the rent agreement and deposed that he had seen the original rent agreements, copies of which are already Ex.PW1/2 to Ex.PW1/5 and the same bears his signatures at point A. He deposed that all the agreements were got drafted by him on the instruction of his client. He deposed that it was possible that one document of one floor was drafted and thereafter two documents of one half share of each floor were drafted.
40. In the crossexamination he deposed that four total agreement were entered into between the parties and he had not read and explained the contents of the agreements to the defendants as well as to the plaintiff. He deposed that the contents of the same were inquired by the subregistrar whether the same has been read and explained to the parties and the defendants had not complained nor had shown any discrepancies with respect to all agreements. He deposed that he did not know whether the contents of the agreements had been implemented or not. He was not a summoned witness and he had come to the court just to say that he had drafted the rent agreement as per the instructions of the parties.
41. There is another witness i.e. DW4 Mr. Anirudh Sinha, Assistant Manager, Connection Management Group, TPDDL, Lawrence Road, Keshav Puram, Delhi who had brought the summoned record i.e. copy of relevant portion of DERC (Supply Code and Performance Standards) Regulations 2017 as per which chapter III Clause 10 (1)(vi) and clause 10(4) as per which only one electric connection could be provided in one dwelling unit which is Ex. DW4/1(OSR).
42. In the crossexamination he deposed that he had not brought the file of the defendants with respect to the property where the electricity was to be Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 29 of 58 installed. He volunteered that since there was no notice thereby asking him to bring the whole file. He deposed that he had not seen the relevant file before coming to the court today and he also did not know if the plaintiff had one unit or four units. He deposed that he was in the service with TPDDL since the year 2006 and he did not have any knowledge if there was any rule in the year 2004 that in one dwelling unit only electricity meter has to be sanctioned as per law. He volunteered that a unit as per their rules was where there was one room, one kitchen, one latrine, bathroom exist, they call the same as one unit and he did not know if the unit of the defendants where the electricity was to be installed was a commercial unit or a domestic unit. For convenience his whole evidence is reproduced herein below:
"I have brought the summoned record i.e. copy of relevant portion of DERC (Supply Code and Performance Standards) Regulations 2017 as per which chapter III Clause 10 (1)(vi) and clause 10(4) as per which only one electric connection could be provided in one dwelling unit which is Ex. DW4/1(OSR).
XXXXXX By Sh. Pramod Ahuja, Ld. counsel for plaintiff. I have not brought the file of the defendant with respect to the property where the electricity was to be installed. Vol. Since there was no notification thereby asking me to bring the file. I have not seen the relevant file before coming to the court today. I also do not know if the plaintiff had one unit or four units. I am in the service with TPDDL since the year 2006. I do not have any knowledge if there was any rule in the year 2004 that in one dwelling unit only electricity meter has to be sanctioned as per law. Vol. A unit as per our rules is where there is one room, one kitchen, one latrene, bathroom exist, we call the same as a unit. I do not know if the unit of the defendant where the electricity was to be installed was a commercial unit or a domestic unit.
Que. Do you know that even as per your notification which you have brought, then if there are four separate units then four electricity connections can be given to all four units?
Ans. Yes."
43. From all his evidence particularly the evidence of DW4 Court has to Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 30 of 58 appreciate as to whether four separate electricity connections were to be provided by the defendants and whether the same was intended to be provided in terms of agreement as is being claimed by the plaintiff or whether 24 KV connection would have been provided to the plaintiff as per TPDDL rules or whether only 6 KV of electricity was to be provided by the defendants or whether in fact it was a typographical mistake which could not be noticed at the time of preparation of the agreement.
44. The case of the defendants from the very beginning is that one agreement was entered into between the parties with the help of Mr. Kulraj Singh and for the purpose of accounting income tax inabilities etc. the same was divided into four agreements and clause 14 which pertains to providing electricity remained as it is and could not be noticed but in fact one electricity meter of 6 KV only was to be provided. There are two material witnesses to appreciate this fact i.e. DW2 Mr. Kulraj Singh and DW4 Mr. Anirudh Sinha. DW2 Mr. Kulraj Singh is admittedly a person known to the plaintiff through Mr. Mehendiratta and as per his testimony it was the plaintiff who showed interest through Mr. Kulraj Singh for getting the property on lease near GTB Nagar, Delhi for running an institute. Plaintiff initially has not brought this witness as his own witness and this is the witness which is quite material to resolve the controversy between the parties. He categorically deposed that initially one lease deed was prepared and then two separate lease deeds for exclusive set of claimant of undivided property were prepared and again before signing the same four separate lease deeds were prepared. In his crossexamination it has come that he was not a witness to the agreements executed between the parties. Not only this, a suggestion was given to him by the plaintiff that the matter was negotiated with the assistance of Mr. Mehendiratta which means that the Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 31 of 58 plaintiff was aware of the presence of Mr. Kulraj Singh and only for that regard he would be knowing or not knowing the presence of Mr. Mehendiratta. Mr. Mehendiratta, is admittedly relative of the plaintiff through whom the plaintiff himself admitted that he started negotiations. If there would have been no role played by DW2 Mr. Kulraj Singh then such suggestion would not have been given to the witness by the plaintiff with respect to the knowledge of Kulraj Singh that the matter was negotiated with the assistance of Mr. Mehendiratta. That suggestion was not required at all. Therefore, one fact stands proved from the crossexamination that the matter was negotiated with the assistance of Mr. Kulraj Singh also who is known to Mr. Mehendiratta. There is no further crossexamination on the aspect from DW2 by the ld. counsel for plaintiff with respect to two sets of agreements or the splitting the same to four set of agreements. Since testimony of DW2 is with respect to the fact that initially one lease deed, then two separate lease deeds were prepared and again before signing the same four separate lease deeds were prepared has gone unrebutted, the contention of defendants appears to be better placed and may attract the preponderance of probabilities subject to further evidence as would be discussed hereinbelow.
45. The evidence which has come on record so far, particularly from the testimony of DW1 and DW2 and the plaintiff himself, it is proved that some negotiations had started in between the parties with respect to taking the tenanted premises on rent and it is not a disputed fact at all that the suit property was owned by four persons. It has nowhere come in the evidence of the plaintiff that plaintiff ever started talking with any of the defendants individually or if so with which defendant he had negotiated. The evidence which has come on record specifically and categorically is to the effect that Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 32 of 58 plaintiff showed his intention to take some property on rent nearby GTB Nagar, Delhi and he either took the help of Mr. Mehendiratta which is the case of plaintiff or of Mr. Kulraj Singh which is the case of defendants and as such there is no personal and direct interaction between the plaintiff on one hand and defendants on the other hand. It even otherwise cannot be assumed that the parties would sit together once and would complete all the formalities in one meeting and would sign the agreements then and there. Certain negotiations are necessary and since negotiations are not done directly some intervention is required, some discussion are required, some rough draft is required and thereafter final draft would have been prepared. Therefore, it can be appreciated that initially some agreements would have been drafted therefore when the fact of giving finality to the terms and conditions, it might have been discussed by the parties that since there are four owners of the one undivided portions, the rent should go to them individually and the rent agreements were then bifurcated accordingly. The clause 14 of the rent agreement is part of rent agreement which has not been disputed by the parties rather admitted.
46. Counsel for plaintiff has argued specifically that it is settled law that in presence of written document i.e. four rent agreements, which have been entered into between the parties, oral explanation is not valid rather has to be ignored. The law in that extent is not disputed but this law would only help the plaintiff if the agreement is unambiguous and quite specific. This Court has gone through Clause 14 once again which reads as under:
"That a separate electricity connection of 6 KV has been provided by the first party to the second party if the second party requires more electricity, he can obtain another connection for the same at his own costs and expenses and the basis of NOC to be issued by the first party."
47. This term factually, legally and practically cannot be said as to what the Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 33 of 58 parties are really intending and what they are negotiating. If the clause no.14 is read as it is then, the four separate electricity connections have already been provided and there is nothing left to adjudicate upon. To elaborate this, it has nowhere come in evidence or even in the pleadings of the parties that each defendant has already provided 6 KV electricity connection in the premises as have been mentioned in the agreement. Therefore since the term as has come on record is not specific, the contention of ld. counsel for plaintiff cannot be appreciated. Further, if this written averment of the agreement is read as it stands and as it is being claimed by the plaintiff then there would not be any requirement nor there would be any cause of action to the plaintiff worth adjudicating upon. Therefore the loosely drafted clause cannot be read with the support of Section 91 or Section 92 of Indian Evidence Act rather explanation is required.
48. It is the admitted case of the plaintiff that only one electricity connection has been provided that too on 30.05.2002, meaning thereby on the date of entering into the agreement i.e. 24.04.2002 there was not even a single connection provided by any of the defendants and since this fact stands proved there was no question of mentioning that a separate electricity connection of 6 KV has been provided. Therefore, keeping in view this fact the plaintiff cannot be allowed to take benefit of Section 91 of Indian Evidence Act as the term which the plaintiff is relying upon with respect to a written document is not supporting the pleadings and once the terms are not specific the intention from the surrounding facts and circumstances is to be gathered so as to arrive at conclusion whether it was a typographical mistake or whether it was an intention of the parties to provide 6 KV electricity connection by each of the defendants and from the intention of Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 34 of 58 the parties it appears to this court that there was no intention of the defendants to provide 6 KV electricity connection by each of the defendants to the plaintiff. The Court also get support of the fact from other surrounding fact i.e. if the portion of defendants no.1 & 2 and the portions of defendants no.3 & 4 is not divided, it cannot be assumed that for which undivided portion the defendant no.1, for which undivided portion defendant no.2 or defendant no.3 or defendant no.4 would apply for electricity and would provide the same to the plaintiff. From the pleadings it is clear that there is no internal demarcation of the tenanted premises. At the time of entering into the rent agreement the respective portion of each defendant was not demarcated and clarified and therefore there can be no intention of such defendant that they would apply for separate electricity connection for a particular portion. Not only this, it is pleaded by the counsel for defendants in the written statement that when the plaintiff served legal notice upon the defendants, which are Ex.DW1/2 to Ex.DW1/5 i.e. the plaintiff had given four separate notices to each of the defendants and in all the notices particularly in para 6 of the notice it was pleaded that one electricity connection has been provided by 'you' i.e. the defendant and for convenience it is reproduced hereinafter:
"That after lot of requests and pleadings by my client you have recently provided one electricity connection of 6 KV as per your saying on 30 th May 2002 which is insufficient in all respects and still my client is unable to run/carry our his educational institute and my client is still incurring a loss of Rs.5,00,000/ (Rupees five lakhs only) per month at your costs and consequences. I hereby finally call upon you, you all the adressees to pay the sum of Rs.10,00,000/ (Rupees ten lakhs only) immediately to my client and you will be further responsible for the loss/damages which my client is incurring each day as above stated and further to prove the remaining three commercial electricity connections of 6 KV each within a period of 7 days failing which my client will be at liberty to initiate necessary civil as well as criminal action against you all the adressees at your costs and Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 35 of 58 consequences and further the sum of Rs.11,000/ to my client as costs of this notice."
49. The word 'you' have not been explained at all and from the language of the notice, few facts are clear i.e. if the notice is proved then this notice is addressed to all the four defendants and plaintiff has nowhere stated as to what did he mean from the word you i.e. if you means Laxmi Bai defendant no.1, if you means Ms. Baljeet Arora defendant no.2, if you means Ms. Sushma Arora defendant no.3 or if you means Mr. Arvinder Singh Arora defendant no.4. The language used in all the four notices is same. From this notice, it is not clear as to which defendants had provided him 6 KV connection meaning thereby the process of 'cut and paste' which is being claimed by the defendants and is being denied by the plaintiff as far as Clause 14 of the agreement is concerned, is now being relied upon by plaintiff in para 6 of the notice of the plaintiff. Therefore, the possibility of the process of 'cut and paste' cannot be ruled out straightway nor the provisions of Section 91 of Indian Evidence Act could be interpreted without the assistance of explanation. Therefore, from all these facts, the only inference which could be gathered is that the language used in the rent agreement by the parties or the language used by the plaintiff in the notices is a case of casual drafting (if not vague drafting) or can be said to be a routine drafting, not intending to be used specifically and therefore the plaintiff in the considered opinion of the Court cannot take the benefit of Section 91/92 of Indian Evidence Act. Not only this, the defendants also cannot take any benefit of such casual drafting. Neither the defendants should have avoided to go through the language used in the agreement at the time of signing the agreement nor the plaintiff was required to mention such facts in para 6 of his notice and since this Court is of the opinion that Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 36 of 58 the parties have drafted the agreement or the notice as the case may be, too casually to be read, the interest of the parties cannot be left open and has to be adjudicate upon.
50. One of the argument of counsel for defendants is that the plaintiff in the entire plaint has not mentioned as to which defendant had provided him electricity out of four and it is argued that if one of the defendant has provided the electricity, this suit against that particular defendant would not be maintainable and which that defendant is, has not been clarified and therefore the suit otherwise is quite vague. This contention of the counsel for defendants is well found and helps to reach a conclusion that the case of both the parties is a case of casual and general drafting and not a strictly legal drafting. Once this court is of the opinion that this is a case of general drafting/loose drafting then the provisions of law have to be dealt with accordingly and in the considered opinion of the court, provision of Section 91 of Indian Evidence Act would not come to the rescue of the plaintiff and this Court is of the opinion that the defendants had only intended to provide one 6 KV electricity connection which has been provided although late.
51. It has come in evidence of the plaintiff that he started some fitout work. Admittedly, he did not start fit out work after 30.05.2002 which means that although there may not be any electricity connection of 6 KV yet the defendants had made certain arrangements so that plaintiff might start his fit out work with respect to installation of ACs or with respect to installation of electricity bulbs, tube lights, inverter etc. and this Court is of the opinion that all these work could only have been done by the plaintiff if some electricity was provided. As per the electricity bills placed on record, some of them are prior to May 2002 which means that even prior to providing electricity connection of 6 KV, plaintiff was being cooperated Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 37 of 58 by providing certain electricity from the ground floor or from other sources which helped the plaintiff to do that work meaning thereby the relation between the parties at that time were quite cordial. Not only this, the claim of the plaintiff is that he suffered losses on account of nonproviding of electricity connection which fact came as disastrous on the date of inauguration as is being contemplated by the plaintiff when he organized opening ceremony, he invited and employed several persons, many students enrolled themselves, he engaged caterers, printers who printed pamphlets etc. and when the fact came to his knowledge that 24 KV had not been provided and as such the persons invited by him had got apprehensive for nonproviding of AC facilities to the students. There is no evidence to that aspect and if the plaintiff was not having 24 KV electricity meter on that date of inauguration, he could not at all have inaugurated the institute that day, nor he should have invited various dignitaries that day, as if the plaintiff is aware of the fact that proper electricity is not there, he should have postponed such event and if despite that knowledge, he invited various dignitaries on that date when the premises was not fit as per his requirement, he cannot claim embarrassment at the hands of the defendants. He himself invited such embarrassment.
52. The next question arises is as to whether there was any requirement of 24 KV electricity connection in 200 sq. yards plot/tenanted premises or whether the load of 24 KV could have been provided by the TPDDL in that hall. Apparently there is no evidence on the court file that plaintiff would have been requiring 24 KV electricity connection on that 200 sq. yards plot irrespective of the fact that it was on the top floor. The Court would be considering these facts i.e. whether it was required as far as plaintiff part is concerned and secondly whether it would have been provided by the Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 38 of 58 TPDDL. In the given facts and circumstances the testimony of DW4 is necessary but even prior to that the later portion of the Clause no.14 is worth reading from where the intention of the parties can be gathered and the same is reproduced herein.
"i.e. .............. if the second party requires more electricity, he can obtain another connection for the same at his own costs and expenses and the basis of NOC to be issued by the first party."
53. This sentence conveys the meaning in itself i.e. as to whether the plaintiff would have been requiring more than 24 KV of electricity in that 200 sq. yards premises. This is generally neither feasible nor required and particularly in view of the fact that plaintiff has not mentioned that he is likely to install about 14 ACs that too in 200 sq. yards premises out of which only 60% to 70% would have been covered as per sanctioned plan, if any. Even in the agreement it has not been made an essence of the agreement that he would be affixing about 14 ACs in the 200 sq. yards hall less open area. Therefore, reading this fact simultaneously with other facts and keeping in view the covered area and in absence of any specific pleading the intention of the parties seems that electricity connection of 6 KV is required to be provided to the plaintiff and in case the plaintiff requires more than that he would make a request to the defendants and defendants were obliged to give him NOC although at the cost of plaintiff.
54. Further, the only period of survival of this agreement is about 23 months i.e. the plaintiff took the premises on rent in April 2002 and he made certain fitments, spent certain amount and in May 2002 he came to know that electricity provided/supposed to be provided to him was insufficient and then the dispute started. During all this period, the plaintiff himself never made a point as per clause 14 that he is suffering hardship on account of providing lesser electricity connection or on account of lesser capacity. He Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 39 of 58 could easily have written a letter to the defendants or could have applied to TPDDL that he requires electricity more than 6 KV and NOC be provided to him which could have been provided by the defendants and if not then he had better remedy to approach this Court. However in the given facts and circumstances, this Court is of the opinion that even if the vague language has been used in agreement, the plaintiff could have resolved this dispute amicably by writing a simple letter to defendants for providing more electricity but instead of that he chose this other way for the reason best known to him.
55. Counsel for defendants has argued that the plaintiff might have thought for starting a fashion designing institute and may not have received the expected response from the students and since his idea of opening a fashion institute could not go well, he left the idea and put entire blame on the defendants so as to cover the amount of expenses incurred by him on the fitments of the tenanted premises to some extent. In support of arguments it is argued by the ld. counsel for defendants that the plaintiff has not placed name of any student who got himself/herself enrolled with it, he did not examine any witness with whom he claimed to have entered into an agreement of giving the fee as mentioned in the plaint, he had not proved his passbook bank account to show that he has received response from various aspiring candidates, he did not examine even a single student who was enrolled nor he placed any document on record to show that he had to pay certain payment to various experts, he engaged and once the idea did not go well he had to shut the idea of running the institute and then entered the field of legal jargon. Although there is no legal support of this argument to prove this fact beyond doubt yet preponderance of probabilities do indicate such aspect and this court is in agreement with counsel for Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 40 of 58 defendants as it is clear from the evidence that the plaintiff is not a person who had earlier done this work (as it has come in evidence that he was not in such business earlier). The Court is not referring much opinion on this aspect nor is referring any opinion on the capacity of the plaintiff but it is clear that it is not the case of plaintiff even that he purchased 1416 ACs for the purpose of making the tenanted premises habitable to run his institute nor he has been able to prove that how many students got enrolled and how much written agreements were entered into with different experts engaged by him. This inter alia proved that neither the plaintiff spent such amount on experts nor he enrolled such students for the purpose as alleged. Apart from this lack of evidence on such aspect, the plaintiff has also not been able to prove that he in fact made sufficient wire system to have 1416 ACs nor he has been able to prove that he was in process of affixing such number of ACs in 200 sq. yards area (less open area) and as such the plaintiff has failed to prove that he would have been requiring 24 KW of electricity on one 200 sq yards hall less open area.
56. Now coming to the next aspect i.e. as to whether 24 KV electricity connection could have been provided even at the tenanted premises at all. To prove the same, guidelines as have been placed on record by the DW4 are quite material. Chapter III of the DERC (Supply Code and Performance Standards) Regulations, 2017 placed on file by the DW4 is Ex.DW4/1 and as per the said Regulations, Section 10 Sub Rule V and VI reads as under:
"v. On the request of applicant, an independent electric connection shall be given to the owner/lawful occupant on each floor of the premises.
vi. Wherever, one dwelling unit has been subdivided and separate kitchen as well as separate entry is available, second electric connection may be given to the lawful occupant."Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 41 of 58
57. Section 4 of the said Regulation reads as under:
"4. Subdivided property:
(i) Where property/premises have been legitimately subdivided, the owner/occupier of the respective portion of such subdivided property shall be entitled to obtain independent connection in his name.
(ii) The Licence shall provide the connection, to the applicant or respective portion of the legitimately subdivided property, on payment of outstanding dues on prorate basis for that portion, based on the area of such sub division or as mentioned in subdivision or as mentioned in subdivision agreement, and the Licensee shall not deny connection to such applicant on the ground that dues on the other portion(s) of such premises have not been paid, nor shall the Licensee demand record of last paid bills of other portions from such applicant(s)."
58. When this witness was crossexamined, he explained the meaning of 'one unit' and he deposed that a unit as per their rules was that where there was one room, one kitchen, one latrine, bathroom exist, they call the same as one unit and he did not know if the unit of the defendants where the electricity was to be installed was a commercial unit or a domestic unit and he did not have any knowledge if there was any rule in the year 2004 that in one dwelling unit only one electricity meter has to be sanctioned as per law. He also did not know whether the plaintiff had one unit or four units.
59. Admittedly, the tenanted premises is one single hall of 200 sq. yards and it has not been pleaded by the plaintiff that there are four separate units within the hall. It is not the case of the plaintiff at all from very beginning that he had made four rooms, four kitchens, four W/Cs and four bathrooms or it had four different/undivided working units. What about the pleadings of plaintiff it is rather not the case of the defendants even, as admittedly the 200 sq. yards portion is still undivided and had been undivided at the time of agreement and at the time of filing the present suit. If the tenanted premises had not been divided in four separate units then four separate Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 42 of 58 connection cannot be legally provided to the defendants irrespective of the fact that the agreement says so. The agreements thus would be contrary to the norms of electricity provider. The case of the plaintiff as has been set out is only that he had to run an institution meaning thereby a single institute where he could impart training, coaching with respect to fashion technology and with respect to fashion designing. Nowhere it has come either in the evidence of PW1 or in the testimony of PW2 to PW8 that there were four separate rooms/hall, four separate kitchens, four separate W/Cs and four bathroom in the tenanted premises meaning thereby tenanted premises of defendants is/was single unit or in single unit four separate electricity cannot be provided.
60. Looking from this angle what the parties agreed to sign and what actually had been intended to by the parties is that only one electricity connection of 6 KV was to be provided by the defendants to the plaintiff and in case more electricity would have been required, the plaintiff could have obtained it, for which defendants were obliged to give NOC. Therefore, the Court is of the opinion that 24 KV connection could not have been provided to the plaintiff even by the Electricity Department. Once the Court has reached to this conclusion, the testimonies of PW3 to PW8, who had deposed about some work done by such persons i.e. purchasing inverter, installing coffee machine, tea machine, had done carpenter work to beautify the premises, the person who had done electricity work, the person who had painted the tenanted premises are not much material. No doubt the plaintiff had spent some amount on the fitment but the plaintiff has failed to prove that such amount had gone wasted on account of non providing the electricity by the defendants, although one fact is clear that he spent some amount on construction/renovation of tenanted premises.
Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 43 of 5861. Now coming to the aspect of the amount spent by plaintiff on fitment. It has come on record that a Local Commissioner was appointed by the Hon'ble High Court of Delhi vide order dated 29.07.2004, who had made inventory of all such articles and the fact that all material with the consent of the parties were purchased by the defendant and settlement with respect to that material has been done is not disputed. Therefore, the plaintiff has not been able to prove that he installed articles worth Rs.11,51,000/ upon renovation/fit out of the premises. If the plaintiff has not been able to prove that cost the goods which he incurred for the use of tenanted premises the question as to whether he suffered loss of the amount, cannot be held to have been proved.
62. Now coming to the next aspect as to whether he suffered loss of Rs.20,00,000/ in four months. The plaintiff is claiming a damage of Rs.5,00,000/ per month for four months but to prove that the plaintiff has not examined any evidence to show that he suffered loss of Rs.20,00,000/ on account of nonproviding of such electricity. He has also not been able to prove through his books of accounts that he was a manufacturer of home furnishings, who if not have been doing the fit out work for starting his institution then he would have earned Rs.5,00,000/ per month. There is no evidence to that effect. Therefore, no liability can be fixed upon the defendants on this aspect. Not only this, the present case has been filed on mere assertions and the plaintiff has not placed on record any document with respect to what he was doing earlier, what he was earning from that work, how much time he spent on renovation work, how much students he got enrolled, how much amount was to be paid to various persons, how much amount is yet to be paid to various persons, how much amount was actually paid to them, how much students he would expect to train per Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 44 of 58 month, what would have been the duration of each classes, how many classes had to be engaged in one day and how much he was earning otherwise prior to this innovative idea and what books of accounts and ITR have been placed on record to prove about his earnings. In view of the above, it cannot be said that plaintiff has suffered any loss on account of the claim of Rs.5,00,000/ per month for four months.
63. Looking from yet another angle, in this matter the defendants have filed an application under Order 39 Rule 10 of CPC seeking direction to the plaintiff to pay rent of Rs.2,75,000/ and that application was allowed by the Hon'ble High Court of Delhi. The plaintiff challenged the said order before the Ld. Division Bench and before disposing of the said application the Hon'ble High Court of Delhi (Division Bench) appointed a Local Commissioner thereby directing him to visit the premises and make on the spot inspection with the assistance of architect, valuer or photographer and what is the reasonable and approximate amount which the plaintiff had spent on the premises on such renovation. The ld. Local Commissioner gave a report and filed inventory thereby stating that an amount of Rs.1,90,614.43 has been spent on the renovation part and the goods which were found on the spot were as under:
1. Tables 1 Office table with glass top (5' X 3') 1 Reception table 1 Conference table (4' X 8') 1 Big Computer table for 2 computers 1 Small side table (2' X 2') 19 Drawing tables (2' X 2 1/2')
2. Chairs 24 Small revolving chairs (5 with handles and 19 without handles) Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 45 of 58 1 big revolving chair 8 Small steel chairs 2 nos. of seater setties 2 Wash basins (1 in toilet and 1 in the open area) 2 Wcs.
3. Lights 19 tubelights
4. Cupboard 2 cupboards embedded in the wall in two different rooms.
5. Fans 9 fan (two ceiling fans of 56" size and having brown colour and 7 ceiling fans of 48" size).
6. Holders 14 (7 had Philips lights installed thereon) 1 Shutter (5' X 7" at the entrance).
64. What is to be observed is that in the entire report of Local Commissioner it is nowhere mentioned that plaintiff had installed ACs etc. or since appropriate electricity was not provided ACs could not work and students left. As per the report of Local Commissioner, there was not even a single AC which was found installed in the premises and hence the whole ground on which the plaintiff is claiming damages for not providing 24 KV electricity appears to be just an after thought and not in conformity with the pleadings. Not only this, the plaintiff claimed that he had spent Rs.11,51,000/ on renovation. That fact has also not been proved as he has not been able to prove the major bills by way of direct evidence and the placed bills are not worth inspiring. Bills Ex.PW1/8 and Ex.PW1/9 issued by Chander Prakash Sharma, bill Ex.PW1/10 issued by Grover Art Service, bill Ex.PW1/13 issued by A. J. Telecom etc. have not been proved as per law. Therefore, the plaintiff has not been able to prove that he spent Rs.11,51,000/ on renovation or that he could not run the institute on account of non providing of requisite electricity by the defendants or that Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 46 of 58 the act of the defendants for not providing 24 KV electricity, he suffered damages. Not only this, the report of ld. Local Commissioner who was assisted by a valuer show that only an amount of Rs.1,90,000/ approximately on the fitment therefore the record is not corroborating the pleadings of the plaintiff.
65. This issue is accordingly decided against the plaintiff by holding that plaintiff has neither been able to prove that he spent Rs.11,51,000/ on fitment material or that he suffered damages to the tune of Rs.5,00,000/ per month for four months or that he was requiring 24 KV of electricity to run the institute or that he suffered losses on account of nonproviding of sufficient electricity by the defendants. As far as cost of fitment material is concerned, it has been settled in between the parties that as to what was the cost of such material and for what amount it has been taken over by the defendants and this part is not required for discussion. ISSUE No.2: Whether the plaintiff is entitled to interest, if so, at what rate and for what period?
66. Since the plaintiff has not been able to prove that he is entitled for any damages, there is no question of awarding any interest. This issue is decided accordingly.
ISSUE No.3: Whether the defendants are entitled to counter claim and a decree in terms thereof on account of arrears of rents and damages and if so, what rate and for what period?
67. The onus to prove this issue was upon the defendants. The defendants in the counter claim has stated that the tenancy was entered into w. e. f. 01.04.2002 and plaintiff did not pay any rent for a single month and in terms of clauses of agreement, tenancy of the plaintiff was to be terminated in case if the plaintiff defaulted in payment of rent and therefore tenancy Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 47 of 58 got determined automatically on 30.06.2002 i.e. three months from 01.04.2002. Not only this, he served a legal notice upon the defendants thereby terminating his tenancy with efflux of time from 11.07.2002 and as such plaintiff is liable to pay rent for the whole period he remained in the tenanted premises and in terms of clause 15 the plaintiff was supposed to pay Rs.2,500/ per day to each of the defendants i.e. Rs.10,000/ in total for three months as damages/penalty in addition to monthly rental till payment of such rent and since he did not pay any rent for three months that becomes Rs.30,000/ in damages and apart from this in terms of clause 15 he is liable to pay 1,500/ per day to each of the defendant i.e. Rs.6,000/ per day and since he vacated the premises after 219 days damages amounting to Rs.13,44,000/ is due against him towards damages) and he has filed the counter claim for Rs.13,44,000/ against the plaintiff alongwith arrears of rent.
68. The plaintiff in his reply has stated that this court does not have pecuniary jurisdiction to entertain the present counter claim (as initially the suit was filed before the Hon'ble High Court of Delhi having value more than twenty lakhs and claim of the defendants was less than twenty lakhs). He further stated that the defendants are not entitled to any relief as they themselves are defaulters for not providing electricity and the suit for damages of Rs.31,51,000/ has been filed by him against them and defendants have to pay Rs.31,51,000/ to him. Defendants have not fulfilled their part of obligation and they are not entitled for any damages and he is not liable to pay any amount to the defendants as is being claimed.
69. Now coming to the evidence part. Plaintiff has led his evidence and in his crossexamination apart from putting certain suggestion nothing was asked from the plaintiff with respect to counter claim. Defendants in the evidence Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 48 of 58 of DW1 in para 18 and 19 of his affidavit put up their claim by stating that the plaintiff in case of default in payment of monthly rent, was liable to pay Rs.2,500/ to each defendants i.e. Rs.10,000/ in addition to monthly rent till payment of such rent and apart from that in case plaintiff failed to pay rent for three months the tenancy was to be terminated automatically and as such he is liable to pay Rs.1,500 to each of the defendant i.e. Rs.6,000/ per day in addition to monthly rent till the date of surrendering possession. He is liable to pay Rs.6,000/ per day for 219 days which comes to Rs.13,14,000/ and accordingly plaintiff is liable to pay Rs.13,14,000/. In crossexamination a suggestion was given to DW1 that the defendants have preferred the counter claim as the counter blast to the plaintiff's suit or that they have not filed any documents in support of their counter claim. DW1 denied the said suggestion and volunteered that documents are already on record. In reply to suggestion that the claim of the defendants claiming damages of Rs.6,000/ per day is untenable as property cannot be used without electricity, DW1 denied the said suggestion and volunteered that electricity was there. In nutshell, the defendants only gave certain suggestions to the plaintiff with respect to counter claim and plaintiff equally gave suggestions to the defendants in crossexamination of DW1 with respect to counter claim is false and fabricated. Before coming to the appreciation of the evidence and pleadings, Clause 15, 16 and 19 of the agreement are to be read which are reproduced herein as under:
"15. That in case the Second party fails to pay the rent for a month he shall be liable to pay Rs.2,500/ per month as penalty to the first party till the payment of the rent of the said month apart from the rent of the months which he failed to pay.
16. If the second party fails to pay the rent for three months, the tenancy shall stand determined.Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 49 of 58
19.That in case second party does not vacate the said property on the expiry of the tenancy or on its earlier determination, the second party shall be liable to pay Rs.1500/ per day as damages apart from the rent hereinafter reserved till the first party is able to get the said property vacated from the second party."
70. Coming first to the part with respect to arrears of rent. However, even prior coming to the part of arrears of rent, counsel for plaintiff has argued that written statement as well as counter claim had been signed by a person other than defendants and such person does not have any valid power of attorney in his favour to sign the written statement and counter claim as from the evidence it is clear that the said power of attorney has neither been notarized nor witnessed by anyone and on the basis of this power of attorney the said attorney neither could have signed written statement and counter claim nor could have deposed. Therefore, entire pleadings as filed by the defendants or the evidence led by the defendants is of a person who is stranger to the suit and as such no relief can be granted to the defendants on the basis of alleged power of attorney which is not notarized/witnesses.
71. Counsel for the defendants, on the other hand, has submitted that this witness has categorically deposed in his evidence that he was not only the power of attorney of defendants, but he otherwise had knowledge of facts pertaining to the case which fact has come in the evidence itself and once the witness has knowledge of facts, his statement cannot be discarded nor written statement and counter claim can be discarded just on the ground that the power of attorney is not notarized. He further submitted that not only this, the said personal knowledge of this witness has been testified by the counsel for plaintiff while asking various questions with respect to tenancy and other fitment period and all those facts on which counsel for plaintiff has crossexamined the said DW1 show that witness is/was well Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 50 of 58 aware of the facts of the pleadings filed by the defendants and since he is a person, having knowledge of the facts can sign the pleadings and even can depose and in support of his contention he has relied upon the judgment in the case of Grafitek International Vs. K. K. Kaura and others, 96 (2002) DLT 385 passed by the Hon'ble High Court of Delhi on 03.01.2002 in which it is held as under:
"9. Merely because the power of attorney is not duly notarised does not mean that the concerned person was not authorised to institute the suit. Notarization rises presumption as to its authentication and no more. Notarisation of power of attorney is a matter of procedure and raises the presumption of authority of the person to institute the suit. In other words it does not mean that power of attorney executed in favor of a particular person but not duly notarised does not confer power upon the person to institute the suit. The objection taken by the learned counsel is that the said power of attorney does not bear any authentication by a Notary Public and therefore Mr. Maggon had no authority to file the present suit and as a consequence such a suit was never properly instituted. xxx
13. However, any provision which governs the procedure should not be subjected to strict legal interpretation but should be interpreted in a manner so as to meet the interests of justice and not scuttle them."
72. Therefore, this Court is of the opinion that once DW1 had a knowledge of facts and had been crossexamined by the counsel for plaintiff at length, notarization of the power of attorney is not fatal to the pleadings/deposition. Now coming to the aspect of arrears of rent. As discussed while disposing of issue no.1, it is reiterated that defendants have filed an application under Order 39 Rule 10 of CPC which was allowed by the Ld. Single Judge of Hon'ble High Court of Delhi. It is matter of record that the said decision was upheld by the Ld. Division Bench and Division Bench appointed a Local Commissioner vide order dated 29.07.2004 and after filing of report by the Local Commissioner, the Ld. Division Bench disposed off the matter in following conditions vide order dated 11.10.2014 which is reproduced Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 51 of 58 hereinafter:
"The amount of Rs.190,640/ has been valued by the Local Commissioner. Without prejudice to the rights and contentions of the parties the trial court will take into consideration the report of the Local Commissioner for the purpose of inputs spent by the appellant.
During the pendency of the appeal, the appellant has already surrendered the premises to the respondent. The question of payment of rent for the period prior to the surrender of tenancy and amount damages thereof has to be determined by the learned trial court. Therefore, till that is done, the order of the learned Single Judge be not implemented. Counsel for the appellant states that Rs.1,00,000/ security is also lying with the respondent. With these directions appeal stands disposed off."
73. This order was challenged by the defendants before the Hon'ble Supreme Court of India by way of SLP being SLP (Civil) no.16078/2006 against the order FAO (OS) no.76/2004 and the Hon'ble Supreme Court of India vide its order dated 31.08.2007 declined to interfere with the interim orders passed in this case. However the Supreme Court requested the Hon'ble High Court of Delhi to hear the suit, as expeditiously as possible preferably within one year.
74. From these facts one fact which is clear now is that the order of payment of rent during the tenancy and proceedings in terms of order of Single Judge of Hon'ble High Court of Delhi has been vacated by the Ld. Division Bench of Hon'ble High Court of Delhi. Order of Division Bengh has been upheld by the Hon'ble Supreme Court of India which means that no order was passed with respect to the rent payable by the plaintiff till the time plaintiff remained in the suit property and the trial court was directed to dispose off that controversy as per the evidence. Admittedly, the plaintiff had handed over the possession on 10.08.2004, prima facie therefore, the defendants are entitled to claim rent w.e.f. 01.04.2002 to 10.08.2004. However the defendant meanwhile moved an application under Order 6 Rule 17 of CPC Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 52 of 58 subsequently seeking amendment in the counter claim thereby claiming rent from the date of tenancy upto 10.08.2004 i.e. for 29 months amounting to Rs.7,25,000/ but since that amended application was filed after four years of passing of order of handing over the possession, application was dismissed by the Hon'ble High Court of Delhi by holding that amendment sought by the defendants is time barred. Now in view of this development and in view of the issue framed by the Hon'ble High Court of Delhi particularly issue no.4 where the Trial Court has to adjudicate the issue as to whether the defendants are entitled for arrears of rent and the damages, if any, and if so, for what period and at what rate, and in view of the fact that amendment application seeking rent upto date of vacating the premises, as far as the understanding of this Court is concerned, this court is of the opinion that the order of Hon'ble High Court of Delhi has to construe so as to avoid any ambiguity and accordingly this Court is of the considered opinion that defendants are entitled for rent at least from the date of letting out the property uptill termination of tenancy i.e. 01.04.2002 to 11.07.2002 and thereafter they are entitled for damages from 12.07.2002 to the actual date of handing over the possession which is admittedly 10.08.2004. Therefore, this Court is answering this part of the issue by holding that defendants are entitled to rent from 01.04.2002 to 11.07.2002 i.e. for four months @ Rs.25,000/ per month which comes to Rs.1,00,000/.
75. Now coming to the remaining part of issue i.e. as to whether the defendants are entitled for damages if so, at what rate and for what period. This issue is answered keeping in view the order of Hon'ble Supreme Court in SLP and also keeping in view the order of Hon'ble High Court of Delhi and therefore this Court has to adjudicate as to whether the defendants are entitled to claim any damages and, if so, for what amount and for which Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 53 of 58 period.
76. The claim of the defendants is that the tenanted premises was given from 01.04.2002 but plaintiff did not pay rent even for a single month. As per clause 15 if the plaintiff would not pay rent for three months, tenancy would be determined automatically and defendants would be liable to pay damages @ Rs.2,500/ per month to each of the defendant i.e. Rs.10,000/ to all the defendants for a period of three months i.e. on which date the tenancy would stand automatically determined which means Rs.30,000/ and as per clause 19 of the agreement, if the plaintiff would not vacate the premises even after the determination of tenancy he would be liable to pay Rs.1,500/ per day per defendant till the period he hands over the possession. According to the defendants, this amount comes to Rs.13,14,000/ and if the amount of Rs.30,000/ i.e. damages with effect from 01.04.2002 to 30.06.2002 are added, the total damages would be of Rs.13,44,000/ from the plaintiff. In support of this issue the defendants have not led any positive evidence. Generally and mainly there are two provisions with respect to damages i.e. Section 74 of Indian Contract Act and another Section 2 (12) of Code of Civil Procedure where mesne profit have been defined.
77. Section 74 of Contract Act reads as under:
"Compensation for breach of contract where penalty stipulated for -- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for."
78. Section 2 (12) of CPC reads as under:
"Mesne profits of property means those profits which the person in Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 54 of 58 wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."
79. The whole concept of damages revolves around these two sections. It is the settled law by now that as per the agreement the damages claimed by one party cannot be allowed simpliciter on the base of an agreement rather what the actual damage have been suffered by the parties on account of non performance of that agreement is to be valued and even for that a specific evidence is required. In the present case there is no such specific evidence as to how these damages are being claimed. As far as agreement on the basis of which damages are being claimed has already been held to have been loosely drafted and further since no evidence has been led with respect to the agreement the damages under Section 74 of Indian Contract Act and cannot be allowed.
80. As far as mesne profit is concerned, what loss defendants suffered on account of nonvacating the premises or what amount the property could have fetched if property would have been let out to some other person after vacating the same is sole criteria for determining the same. The court while disposing the issue no.1 has come to conclusion that the agreement is not happily worded. There are certain chances of cut and paste. Since the agreement has been held to be nonspecific as far as Clause 14 is concerned, Clause 10, 15, 16, 17 and 19 also fall in the same category and have to be dealt accordingly and similar view has to be taken by the court in case of interpretation is required to be made for the other party. It cannot be held that mistake of plaintiff is malafide and mistake of defendants is bonafide or vice versa. Since agreement per se is little bit vague and uncertain, the Court is not looking into the terms and conditions either for Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 55 of 58 the plaintiff or for the defendants.
81. Therefore, loss of damages has to be seen with the help of Section 2 (12) of CPC and this fact has to be seen from evidence, however there is no specific evidence on this aspect at all. In the affidavit filed by the defendants, there is only simple assertion as per counter claim. In the crossexamination suggestion has been given and no specific evidence has been given by calling valuer or architect or surveyor as to what amount this property would have fetched if the plaintiff would have vacated the premises after service of notice upon him. Since there is no evidence led by the defendants and since it was agreed that rate of rent was Rs.25,000/ per month which is not uncertain or ambiguous at all, the Court is taking damages @ Rs.25,000/ per month which are to be payable by the plaintiff to the defendants on account of not handing over possession after the date of termination of tenancy and therefore this Court is awarding damages @ Rs.25,000/ per month w.e.f. August 2002 upto August 2004 as admittedly the property had been handed over by the plaintiff to the defendants on 10.08.2004 with these observations this issued is disposed off by holding that plaintiff is liable to pay rent to the defendants from April 2002 upto July 2002 which comes to Rs.1,00,000/ and damages from August 2002 upto August 2004 @ Rs.25,000/ per month which comes to Rs.7,25,000/. There is ancillary issue as it is admitted case of the plaintiff and defendants that Rs.1,00,000/ had been given by the plaintiff to the defendants as security. That amount has to be adjusted out of this amount. There is yet another aspect with respect to contention of defendants that plaintiff had not paid any rent for a single month. Plaintiff, on the other hand, stated that he had paid rent in cash to the defendants but no rent receipt is placed on record by the plaintiff. Once all the parties are on issue with respect to the Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 56 of 58 fact as to whether the plaintiff had paid rent even for first month or not. Plaintiff had not led any evidence on this aspect nor had placed on record any passbook etc. to prove his contention. Therefore, this Court is of the opinion that plaintiff had not been able to prove that he had paid any rent to the defendants even for one month.
82. There is yet another aspect i.e. when the Local Commissioner was appointed and was directed to give report that as to how much amount plaintiff has spent on fitment, renovation/making suit property usable for the purpose for which it was taken by him, it has come in the evidence that he has spent Rs.1,90,614.43 to be rounded as Rs.1,90,650/. Similarly it has come in evidence of DW1 particularly in para 15 where he stated that Ld. Local Commissioner prepared inventory and found that amount of Rs.1,05,000/ has been paid by the defendants to the plaintiff as the cost of his fittings and fixtures which were there. Therefore, whatever amount is spent out by the plaintiff, the plaintiff has taken a sum of Rs.1,05,000 / as full and final settlement with respect to fitments and fixtures and that ancillary issue is not res integra any more.
83. Now coming to the another aspect. Plaintiff has claimed interest @ 24% per annum whereas the defendants have not claimed interest. What was the prevailing rate of interest in the year 2002 has not been brought on record by either of the parties. As per on going process of development, it is observed that rate of interest is falling from time to time. Since there is no proper document before the Court as to what was the rate of interest in the year 2002 and what is the rate of interest, the Court is of the opinion that plaintiff is liable to pay interest @ 6% per annum on the rent and damages from the date when it fell due.
84. This issue is decided by holding that the defendants are not entitled to Suit no. 1600/16 Mohan Taneja Vs. Laxmi Bai & ors. Page 57 of 58 damages either @ 10,000/ per month from 01.04.2002 to 11.07.2002 nor the defendant are entitled to damages @ Rs.6,000/ per day w.e.f. 11.07.2002. However defendants are entitled to rent from April 2002 to July 2002 @ Rs.25,000/ per month alongwith the damages @ Rs.25,000/ per month w.e.f. August 2002 to August 2004 and the plaintiff is entitled to adjustment of Rs.1,00,000/ which he had paid towards security amount. Accordingly, plaintiff is liable to pay a sum of Rs.6,25,000/ (7,25,000 - 1,00,000) to the defendants alongwith interest @ 6% per annum from the date, as and when the rent/damages had fallen due upto the date of realization of amount.
ISSUE No.4: (RELIEF)
85. Keeping in view the findings on all the issues, the suit of the plaintiff is dismissed and counter claim of the defendants is partly allowed with proportionate cost and plaintiff is liable to pay a sum of Rs.6,25,000/ to the defendants alongwith interest @ 6% per annum from the date, as and when the rent/damages had fallen due upto the date of realization of amount.
86. Decree sheet be prepared accordingly. Digitally signed by SS S S MALHOTRA File be consigned to record room. MALHOTRA Date: 2019.11.02 17:21:48 +0000 ANNOUNCED IN THE OPEN (S. S. MALHOTRA) COURT ON 02.11.2019 ADDITIONAN DISTRICT JUDGE/ PO, MACT NORTH, ROHINI, DELHI.
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