Delhi District Court
Sh. A.S. Brara vs . Sh. Sh. Shashi Bhushan Singh Suit No. ... on 20 January, 2010
Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 IN THE COURT OF SH. SAMAR VISHAL, CJ02 (North), DELHI SUIT NO. 120/06 MEMO OF PARTIES. Sh. A.S. Brara S/o Sh. N.S. Brara R/o D 1000, New Friends Colony New Delhi -- 110065 ..................Plaintiff VERSUS Sh. Shashi Bhushan Singh Proprietor Delhi Education Centre 15A, Jia Sarai Hauz Khas New Delhi -- 110016 ...........Defendant SUIT FOR POSSESSION, RECOVERY OF ARREARS OF RENT AND MESNE PROFITS AND DAMAGES. Date of institution of Suit: 03.05.1999 Date on which judgment was reserved: 18.12.2009 Date of announcement of judgment: 20.01.2010 Judgment Plaintiff alleges that he is the owner of Flat no. 203, Building A1213, Commercial Complex, Mukherjee Nagar, Delhi(hereinafter referred to as the suit property). Plaintiff has let out the suit property to the defendant for running coaching classes for a period of three years from 16.12.1996 to 15.12.1999 at a monthly rent or Rs. 4,600/. The rent 1 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 was to be increased by 10% on the completion of each year during the tenancy. The defendant has executed the lease deed with his free consent and has fully inspected the premises. It has also averred in the plaint that the defendant was making his own arrangement regarding electricity. It has also averred that the electricity connection got restored in the suit property in the year 1997. It is further averred that due to his own personal reasons the defendant did not want to continue as a tenant in the demised premises and both the parties hold talks with each other regarding the same. Plaintiff advised the defendant to serve a legal notice upon him because the lease was for a period of three years and would expire on 15.12.1999. Since the defendant was not complying with request of plaintiff, he has send a legal notice dated 06.05.1998 asking him to send above referred notice and to settle the accounts with the plaintiff. The defendant has also stopped paying the rent to the plaintiff from March 1998 and onwards. The defendant did not reply to the letter dated 06.05.1998 . Plaintiff send another letter dated 01.08.1998 calling upon him to pay the arrears of rent from March 1998 onwards, and also for the compliance of clause 4 of the Lease Agreement. Defendant has sent a letter dated 27.07.1998 and intimated that the defendant has vide notice dated 08.12.1997 has, giving two months notice of termination of the lease in consonance with clause 4 of the lease agreement determined the lease between the parties w.e.f. 15.02.1998. It which was also alleged in the said notice that the plaintiff failed to take the vacant physical possession of the suit premises on 15.02.1998 and for this reason the defendant was compelled to continue in the possession of the suit premises. The defendant sent another legal notice dated 10.10.1998 and the plaintiff has replied to both the notices of the defendant vide his reply dated 02.11.1998. In the said reply plaintiff made it clear that no communication dated 08.12.1997 was received by the plaintiff and since the defendant was occupying and enjoying the suit premises, he was 2 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 legally bound to pay for the period and duration of stay and occupation. On 24.12.1998 the plaintiff through his counsel sent a corrigendum to the reply notice dated 02.11.1998. Vide the said corrigendum the plaintiff accepted the the termination of Lease Agreement dated 16.12.1996, even though not received by the him. Therefore, in view of the above averments plaintiff has averred that the tenancy of the defendant was duly terminated w.e.f. 15.02.1998 and has claimed for the recovery of Rs. 60,997/ and decree of damages @ Rs. 25,000/ from the date of filing of the suit till its actual realization and possession of the suit premises. Defendant has opposed the suit of the plaintiff by filing a written statement. Defendant has admitted that the execution of lease deed dated 16.12.1996 and the period of lease being three years from 16.12.1996 to 15.12.1999. It is further averred on behalf of by the defendant that the plaintiff in the lease deed dated 16.12.1996 specifically averred that the tenanted premises had an existing and running electric connection. But on obtaining possession of the suit premises the defendant found that there was no electricity connection and despite repeated requests and reminders the defendant has not got the electricity connection to the suit premises. Defendant has to arrange for his own electricity through generator and therefore in the month of December 1997 he addressed his communication of 8 th December 1997 to the plaintiff giving two months notices in consonance with clause 4 of lease agreement determining lease w.e.f. 15 th February 1998. The lease was terminated specifically without prejudice to the rights of the defendant to recover rent for the entire period and the security deposit of Rs. 27,600/. It is further averred on behalf of the defendant that the rent for notice period of two months was paid through accounts payee cheque which has been encashed by the plaintiff. It has been further averred that despite notice the plaintiff failed to take vacant possession of the lease premises and to refund Rs. 27, 600/ and the plaintiff has averred that on the basis of the 3 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 averments by him in the plaint it was the plaintiffs failure to take back his possession and therefore the suit of the plaintiff be dismissed. No replication has been filed by the plaintiff in this case. The possession of suit property has been delivered in Court on 1952000 .Therefore as regards the relief of possession the suit stands satisfied. In this case following issues were framed: 1.
Whether the plaintiff is entitled to arrears of rent of Rs. 5,060/ from 16.02.1998 to 24.12.1998? OPP.
2. Whether the plaintiff is entitled to mesne profits and damages at the of Rs. 25, 000/ month from 25.12.1998 to handling of possession i.e. 19.05.2000? OPP
3. Whether the defendant is liable to pay Rs. 8,879/ as maintenance charges? OPP
4. Whether the plaintiff is entitled to interest @ 24% or otherwise on the amount claimed from the defendant? OPP
5. Whether there was any delay on the part of the plaintiff is obtaining possession while the defendant was ready to deliver the same. It so, its effect? OPD
6. Whether due to absence of electricity the defendant is entitled to not to pay rent of the specific period mentioned in the written statement? OPD
7. Whether the security amount Rs. 27,000/ was refundable? OPD
8. Relief.
In order to prove his case plaintiff has examined Sh. M.K. Bhattacharya as PW1 his Power of Attorney Holder who has also relied upon the documents exhibited as PW1/1 to PW1/12.
4Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 On the other hand defendant has examined himself as defence witness and is relied upon the documents which is exhibited as DW1/1 to DW1/10.
My issue wise findings are:
Issue no. 1 Whether the plaintiff is entitled to arrears of rent of Rs. 5,060/ from 16.02.1998 to 24.12.1998? OPP.
Before proceeding to decide this issue it is pertinent to mention that the plaintiff to his detriment has not examined himself as a witness in this case to prove the allegations made by him, in fact, on his behalf he has examine one Sh. M.K. Bhattacharya as plaintiff witness in this case. Before proceeding further it is pertinent to mention at the outset that the evidence of this witness is not worthy of credit because from his own cross examination it appears that he do not have any first of knowledge of what transpired between the plaintiff and defendant, about the transactions between the them and in fact he was made Attorney of the plaintiff on 21.03.2002 i.e. during the pendency of the suit and therefore whatever, he has averred is nothing more than the hearsay evidence.
In the case Janki Vashdeo Bhojwani & Anr Vs. Indusind Bank Ltd. & Ors. 2005 I AD (SC) 168 it was held that ``power of attorney holder can neither depose on his personal knowledge nor can he be crossexamined on those facts which are to the personal knowledge of the principalIf the power of attorney holder has rendered some acts in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him''.
All the documents on which the plaintiff witness is relying are not duly proved except the documents exhibited PW1/1 i.e. Power of Attorney and that can be deemed to be 5 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 presumed to be genuine in view of section 85 of Indian Evidence Act. Therefore the documents exhibited as PW1/2 to the documents exhibited PW1/12 are not duly proved in the eyes of law.
As far as the arrears of rent is concerned from the period of 16.02.1998 to 24.12.1998 is concerned plaintiff has sent to the defendant a corrigendum reply dated 24.12.1998 exhibited as PW1/8 by which the plaintiff has admitted the termination of tenancy of defendant w.e.f. 15.02.1998 .
It is a case which depicts the strange behaviour of the lessor i.e a plaintiff in this case. Plaintiff has let out his property to the defendant on rent for three years vide registered lease deed. Clause 4 of the lease deed provided that the agreement of lease may be terminated by the lessor giving three months notice or by the lessee giving two months notice of its intention to terminate the agreement to the other party in writing. In his plaint plaintiff has mentioned that in his deliberations with the defendant and through his letter dated 06.05.1998 and 01.08.1998 he has asked the plaintiff to give the notice to him regarding the termination of the tenancy because as per the deliberations between them defendant was not interested to occupy the suit property any further. The power to terminate the lease agreement was very much available with the plaintiff also as per clause 4 of the rent deed and knowingly that the defendant do not want to continue in possession of the suit property, without terminating the tenancy himself he was asking the defendant to give a notice to him. Although this option can be exercised by him.
On the other hand defendant has alleged that he has duly terminated the tenancy by giving two months notice dated 08.12.1997 in compliance of clause 4 of the rent deed. The defendant has terminated the tenancy w.e.f. 15.02.1998 and also tendered the advance rent till 6 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 the date of termination of the tenancy. He has also proved this notice exhibited as DW1/1 and has also placed on record a postal receipts exhibited as DW1/4. The defendant has not appeared in the witness box to refute this fact that he has not received this notice therefore it can be safely presumed that the plaintiff was duly served with notice dated 08.12.1997 terminating the tenancy by 15.02.1998. According to this notice defendant has also requested the plaintiff to take the vacant possession of the suit premises on 15.02.1998 subject to return of security deposited of Rs. 27,600/. Not only this the plaintiff has also accepted the fact of the termination of tenancy of the plaintiff w.e.f. 15.02.2008 vide his corrigendum reply dated 24.12.1998 and exhibited as PW1/8, therefore in the present case it can be presumed the tenancy was duly terminated on 15.02.2008. It is also proved in the absence of contrary evidence that the notice dated DW1/1 was duly served upon the plaintiff requesting him to take back the possession of the suit property and once the plaintiff has been requested to take his property back it was the duty of the plaintiff to recover his property from the defendant. Defendant is therefore not liable to pay the rent for any future period for the failure of plaintiff to obtain the possession.
It is also the allegation of the defendant that when the property was given to him there was no electricity connection in the suit premises and till the time the tenancy was terminated i.e 15.02.1998, the plaintiff has not done and has not took any steps to restore the electricity in the suit premises and for that reason he compelled to vacate the suit premises. It was the fault of the plaintiff which compelled the defendant to vacate and terminate the lease and it was fault of the plaintiff which prompted the defendant to terminate the lease because the plaintiff was fully aware of the purpose for which the defendant has taken the suit premises on lease and in absence of the electricity the whole purpose of lease of the suit premises was frustrated 7 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 because in absence of electricity it was not possible to the defendant for running the coaching classes in the suit premises.
Issue no. 2 whether the plaintiff is entitled to mesne profits and damages at the of Rs. 25, 000/ month from 25.12.1998 to handling of possession i.e. 19.05.2000? OPP As far as this issue is concerned the plaintiff has taken contradictory stands. He has averred in plaint that he has not received the notice of 8.12.1997 exhibited DW1/1 and therefore according to him he was not at all aware of the termination of the tenancy by the defendant. Therefore if this stand is accepted as true then the defendant was a tenant, even after 15.02.1998 as that was only notice which was purported to have been sent by the defendant and no notice of termination was given by the plaintiff in this case. The plaintiff vide his corrigendum letter exhibited PW1/8 and dated 25.02.1998 has accepted the notice dated 08.12.1997 of the defendant and has accepted that the tenancy of plaintiff was terminated by his notice exhibited as DW1/1 on 15.02.1998. In this case there was a dispute regarding handing over of the possession. As per the defendants case he has requested the plaintiff to take the possession back and to refund security which was given to him at the time of inception of tenancy but the plaintiff has not made any effort and to take back the delivery of possession and to pay the refundable security. Even if it is presumed that plaintiff was not aware of the termination of the tenancy till he has received the notice of 27.07.1998 by the defendant he could have taken the possession after receiving this letter but plaintiff has shied away from the witness box and there is no averments nor any proof regarding the fact that he has done his part of the job to take the property back and that it was the fault of the defendant in retaining the property unlawfully. It is also averred by the plaintiff in his plaint 8 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 that the defendant run coaching classes for about one year which clearly shows the intention of the defendant not to continue with the lease and to terminate the tenancy and not to occupy the suit property unnecessarily without using the same, secondly it was assured by the defendant that he will provide the electricity connection to the suit but all the evidence on the record points out to the fact that no such electricity connection was installed by the plaintiff in the suit property due to which the defendants has faced the problems in enjoying the leased premises and running coaching classes there. Therefore, on the basis of above discussion I am of the view that it was not the defendant fault in not delivering back the property, therefore the plaintiff is not entitled for damages and this issue is decided accordingly in favour of the defendant and against the plaintiff.
Issue no. 3 whether the defendant is liable to pay Rs. 8,879/ as maintenance charges? OPP The only evidence in this respect is the statement of plaintiff witness Sh. M.K. Bhattacharya who himself was appointed as Power of Attorney Holder for plaintiff on 26.03.2002. He has deposed in his affidavit that the plaintiff was in the arrears of maintenance charges amount of Rs. 8, 879/ for his period of stay and occupation in the demised premises. I am unable to understand how is he is deposing this fact when it is not in his personal knowledge . Secondly it has not been explained neither in the plaint nor in the evidence how the plaintiff has calculated the amount of Rs. 8, 879/ due to the defendant for maintenance charges. The lease agreement executed between the parties is also silent regarding the rate of maintenance charges to be pad by the defendant. For the lack of evidence in this respect I decide this issue against the defendant.
Issue no. 4 whether the plaintiff is entitled to interest @ 24% or otherwise on the amount 9 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 claimed from the defendant? OPP While deciding previous issues this court came to the conclusion that plaintiff is not entitled to the principal amount claimed for the arrears of rent or for damages. Therefore, no question of defendant being liable for interest arises in this case. This issue is decided against plaintiff.
Issue no. 5 whether there was any delay on the part of the plaintiff is obtaining possession while the defendant was ready to deliver the same. It so, its effect? OPD As far as this issue is concerned that whether there was any delay on the part of plaintiff in obtaining possession while defendant was ready to deliver the same is concerned , the overall evidence in this case points towards the fact that the oral evidence in this case signifies so in affirmative. The evidence led by plaintiff and defendant clearly shows that there was lack of the action on the part of the plaintiff because it is his case that he came to know about the termination of tenancy by the defendant through his letter dated 27.02.1998 . Defendant has further averred that he has also requested the plaintiff to refund security amount of Rs. 27,000/. This notice is duly proved by the plaintiff by placing on record. The copy of notice DW1/1 and the postal receipt sending the same dW1/4. Defendant has not appeared in the witness box to disprove this notice. Although he so averred in his plaint. Under section 27 of the General Clauses Act 1897 there is a presumption of service. In view of section114 of Indian Evidence Act and section 27 of General Clauses Act, there is a presumption of law in favour of effective service where the notice is sent by registered post unless rebutted it is a sufficient service. The addressee may show that the document was never delivered to him and that he never received the same. The presumption of service can be rebutted but it has not 10 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 been rebutted by the defendant in this case. The notice exhibited as PW1/1 has duly requested plaintiff to take the vacant possession of the premises on 15.02.1998 subject to the returning of the security deposit of Rs. 27, 600/ and it was also mentioned in the notice that any delay in obtaining possession or refunding the amount of security deposit shall be solely on account of plaintiff. When a clear cut intention of delivering the property was conveyed by defendant to the plaintiff, no fault can in the circumstances of the case and on the basis of evidence on record can be imputed on the defendant. Even after coming to know about this notice by the subsequent letter dated 27.07.1998, the plaintiff could have taken the possession of the suit property from the defendant and has sued the defendant for the arrears of rent and damages by showing that it was the fault of the defendant in not delivering the property. Unfortunately the plaintiff did not appear and deposed in the court that he was ready and willing to take the possession of the suit premises and it was the fault of the defendant which prevented from him taking the possession of the suit property.
Issue no. 6 Whether due to absence of electricity the defendant is entitled to not to pay rent of the specific period mentioned in the written statement? OPD Defendant has terminated the lease in question w.e.f. 15.02.1998, he has also paid the advance rent by way of cheques till 15.02.1998. Plaintiff is unable to prove that there was an electricity connection at the time the defendant terminated the tenancy. Plaintiff has also further failed to prove the electricity was installed in the premises and it is the admitted case of the plaintiff that there was no electricity connection in the suit premises at the inception of tenancy. The purpose for which the suit premises was led to the defendant was for running coaching institute and it was well within the knowledge of the plaintiff. One can not imagine how a person can run coaching classes in absence of electricity and it is the case of plaintiff that 11 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 he assured the defendant that he will make necessary arrangement for electricity at the early stage as soon as possible. Defendant claim that throughout the tenure of tenancy he has to use the generator for running coaching classes and has to incurred a huge expenses for the same. The liability of defendant to pay rent only is only up to 15.02.2008 because after that period he has terminated the tenancy and asked to plaintiff to take back the suit property after refunding the security amount. This issue is therefore decided against the plaintiff. Issue no. 7 Whether the security amount Rs. 27,000/ was refundable? OPD Yes, the security amount of Rs. 27,000/ was refundable but the defendant has not claimed this amount by way of a counter claim and it is true that the defendant was in possession of the suit premises for a long time till the year 2000 when he delivered the possession of the suit property to the plaintiff in Court. Therefore, although defendant may be entitled for refund of the security amount but he is not entitled for the same in this suit of plaintiff. He could have filed a separate suit also for that ,therefore this issue is decided against defendant.
Issue no. 8 Relief.
In view of the aforesaid discussion the suit of the plaintiff can not be decreed and is therefore dismissed. Parties will bear their respective cost of litigation. Announced in the open court (SAMAR VISHAL) On 20.01.2010 CJ02 (North)/Delhi 20.01.2010 12 Sh. A.S. Brara Vs. Sh. Sh. Shashi Bhushan Singh Suit No. 120/06 20.01.2010 Suit No. 120/06 Present: None.
Vide separate judgment, suit of the plaintiff is dismissed.
File be consigned to the record room.
(Samar Vishal) CJ02(North)/20.01.2010 13