Delhi District Court
Brief Facts As Necessary For The ... vs Smt. Suman Kathpalia Air 2000 Delhi 69 on 17 March, 2018
IN THE COURT OF ANKUR JAIN
ADDITIONAL DISTRICT JUDGE (CENTRAL) 10: DELHI
Suit No. : 89/15
New No. : 13099/16
S.K.Finance Corporation
Through Sh. Harinder Singh, Partner
15 Local Shopping Centre,
Madangir, New Delhi - 110023. ....Plaintif
VERSUS
Punjab National Bank
Regional Office, South Delhi.
Atma Ram House, 1 Tolstoy Marg,
New Delhi - 110001 ....Defendant
Suit for possession and damages
Date of Institution of suit : 03.04.2008
Reserved for Judgment on : 13.02.2018
Date of Order : 17.03.2018
J U D G M E N T:-
01. Brief facts as necessary for the disposal of the present suit are that plaintiff had filed a suit for possession and damages with respect to property bearing no. flat no. 12 C, situated at 1 Atma Ram building, Tolstoy Marg, New Delhi admeasuring 500 sq. feet which was given on lease to the New Bank of India at a monthly rent of Rs.2400/- w.e.f. 06.01.1978 vide lease deed Suit no. 89 of 2015 Page no. 1 of 17 executed on 10.05.1978. New Bank of India subsequently merged with Punjab National Bank which continued to make the payment of rent. After the expiry of the lease by efflux of time in 1983 no notice was given by the lessee and the tenancy became month to month. Even otherwise the tenancy was terminated by issuance of notice but the defendant did not vacate the said premises and continued the tenancy. Delhi Rent Control Act was amended in 1988 and a new section 6 A was added. Pursuant to the amendment legal notice was given and the rent was increased from Rs. 2400/- to Rs. 2640/-. Letters were written to the bank to revise the rent but nothing fruitful happened. Plaintiff was forced to file suit no. 151/2001 before the Rent Controller in which plaintiff came to know that defendant is paying maintenance to M/s. Atma Ram Constructions Pvt. Ltd.. The plaintiff also received the letter in 2006 from M/s Atma Ram Constructions that the maintenance charges have been increased to Rs. 3/- per sq. feet w.e.f. 01.10.2005 and thus the bank had been paying maintenance @ Rs. 1500/- per month. It is undisputed that subsequently the rent was increased to Rs. 2,904/- w.e.f. from 01.05.2004. It is further stated that bank had been paying monthly rent @ Rs. 4404/- as Rs. 2904/- was the Suit no. 89 of 2015 Page no. 2 of 17 rent being paid to the landlord and Rs. 1500/- were paid to M/s. Atma Ram Constructions since 01.10.2005, the plaintiff also came to know that prior to 01.10.2005 the bank was paying maintenance charges @ Rs. 2/- per sq. feet which would mean that the bank was paying rent of the premises @ Rs. 3904/-. The plaintiff issued a notice dated 02.04.2007 by means of registered AD asking the bank to enhance the rent or vacate the suit property by 06.05.2007. No reply was given to said notice. According to the plaintiff the defendant did not have any protection of the Delhi Rent Control Act since 01.05.2004 as it has been paying rent @ Rs. 2904/- and Rs. 1,000/- as maintenance charges to M/s. Atma Ram Constructions. Accordingly the present suit was filed seeking possession and mesne profits/damages.
02. Written statement was filed by defendant in which objections was taken that the plaintiff being an unregistered partnership firm has no legal right or locus standi to file the present suit in view of the embargo as contained u/s 69 of the Indian Partnership Act. The suit of the plaintiff is barred as earlier he has filed the suit seeking eviction of the defendant under the Suit no. 89 of 2015 Page no. 3 of 17 provisions of Delhi Rent Control Act and therefore, the admissions made in the said petition are binding. The rent was revised from 06.05.1992 from Rs. 2400/- to Rs. 2640/- which has been regularly paid. The suit of the plaintiff is barred under Section 50 of the DRC Act.
03. On the pleadings of the parties on 28.10.2009 following issues were framed :-
1. Whether the suit is barred u/s 11 CPC as alleged in the preliminary objection no. 4 to the written statement? OPD.
2. Whether the plaintiff terminated the tenancy of the defendant in respect of the suit premises vide notice dated 02.04.2007? If so, its effect? OPP.
3. To what amount of damages, if any, the plaintiff is entitled ? OPP.
4. Whether written statement has not been signed and verified by the duly authorized person? If so, its effect?
OPD.
5. Relief.
An additional issue was framed on 31.05.2014 which is as follows:-
Whether the suit of the plaintiff is barred u/s 50 DRC Act. It is to be noted no issue with respect to the capacity of the plaintiff to file the suit was framed.
OPD.
Suit no. 89 of 2015 Page no. 4 of 17
04. In order to prove its case plaintiff has examined Sh.
Harinder Singh as PW-1. On the other hand defendant has examined Sh. R.P. Taneja as DW-1. Sh. R.K. Sharma as DW2 who was a summoned witness from M/s. Atma Ram Constructions and has deposed about the maintenance charges being taken from the defendant bank. Sh. R.N.T. Singh as DW-3.
05. Ld. counsel for the plaintiff has argued that lease deed was executed on 10.05.1978 in which the monthly rent was Rs.2400/- which stood expired in 1983 by efflux of time. However, the defendant took shelter under the Delhi Rent Control Act. He has further argued that the rent includes maintenance charges which therefore, takes the rent beyond the statutory limit of Rs. 3500/-. Written submissions have been filed and in support of his arguments Ld. counsel for the defendant has placed reliance on the judgment of Sewa International Fashions Vs. Smt. Suman Kathpalia AIR 2000 Delhi 69. Kamani Properties Ltd. Vs. Miss Augustine & Ors, AIR 1957 SC 309, Mst. Qaiser Jahan Begum Vs. M/s. Ramzan Kasim & Sons 1998 (46) DRJ 7, Ashok Chopra & PRs Vs. Syndicate Bank & Anr. 169 (2010) DLT 361. Mrs. (Dr) P.S. Suit no. 89 of 2015 Page no. 5 of 17 Bedi Vs. Project & Equipment Corporation of India AIR 1994 Delhi 255.
06. On the other hand Ld. counsel for the defendant has argued that the rent was enhanced to Rs. 2904/- w.e.f. 01.05.2004 and the present suit is thus barred under the provisions of DRC Act. He further submits that maintenance charges which are being separately paid to M/s Atma Ram Constructions cannot be included and the plaintiff having filed an eviction petition the present suit is barred under the principles of res-judicata. In support of his arguments Ld. counsel for the defendant has placed reliance upon Mohammed Ahmad & Anr. V/s Atma Ran Chauhan & Ors. 2011 755, Sheodan Singh Vs. Darya Kunwar AIR 1996 SC 1332, Dodu Dayalu Mahasabha Jaipur (Trust) Vs. Mehant Ram Niwas & Anr, AIR 2008 SC 2187, United Bank of India Vs. Naresh Kumar & Ors. 1996 (6) SCC 660.
07. I have heard the Ld. counsels for the parties and perused the record.
Suit no. 89 of 2015 Page no. 6 of 17
08. My issue-wise findings are as under:-
Issue no. 1:-
Whether the suit is barred u/s 11 CPC as alleged in the preliminary objection no. 4 to the written statement? OPD.
The onus to prove this issue is upon the defendant. It is the case of the defendant that plaintiff has filed an eviction petition before the Addl. Rent Controller titled as S.K. Aggarwal Vs. PNB and the findings of the said court are binding. The perusal of the order dated 08.02.2002 shows that the claim of rent @ 3,513/- w.e.f. 06.05.2001 has been rejected. It is also the matter of record that the said order was set aside in the appeal vide order dated 12.11.2002 (vide Ex. DW1/10) and the parties were directed to lead evidence. DW1 in his affidavit by way of evidence has stated in para 8 of his affidavit that the said case of the plaintiff was dismissed in default vide order dated 27.08.2009. The copy of the said order has not been placed on record by the defendant. Even otherwise as per the evidence of DW1 the case was dismissed in default and there was no decision/judgment on the merits of this case. The said petition was filed under Section 14 (1) (a) read with Section 6A of the Delhi Rent Control Act alleging that the rent of the premises is Suit no. 89 of 2015 Page no. 7 of 17 not being revised since 06.05.1995, 06.05.1998 and 06.05.2001 and therefore, the defendant are in arrears of rent and hence entitled for eviction. The present cause of action was not available to the plaintiff when the eviction petition was filed before the ARC. Hence, in the opinion of this court the principle of res-judicata as enshrined in Section 11 of the CPC would not apply to the facts of the present case. Hence, this issue is decided against the defendant and in favour of the plaintiff.
09. Issue no. 2:-
Whether the plaintiff terminated the tenancy of the defendant in respect of the suit premises vide notice dated 02.04.2007? If so, its effect? OPP.
The onus to prove this issue is upon the plaintiff. It is argued by the Ld. Counsel for the defendant that Ex. PB is the notice which is a photocopy and hence, could not be proved. It is an undisputed fact that the lease deed expired by efflux of time and no fresh lease deed was ever executed between the parties, therefore, the tenancy was from month to month which could be terminated by giving a notice. Plaintiff in para 12 of its plaint has categorically stated that the notice dated 02.04.2007 was served upon the defendant/tenant by means of registered AD/UPC. In Suit no. 89 of 2015 Page no. 8 of 17 reply, thereto in the written statement the defendant has taken a stand that plaintiff could not have issued the notice and that the notice of the plaintiff is non-est and not actionable, from the pleadings of the defendant, therefore, it is crystal clear that defendants have themselves admitted the service of the notice, as they have not denied receipt of the notice, but have challenged the capacity of the plaintiff to issue the notice, therefore, even if the original notices has not been filed it would be immaterial. In his evidence by way of affidavit PW-1 has exhibited the notice as Ex. PB. There is no cross examination or suggestion to the witness that no such notice Ex PB was never sent or that no such notice was ever received by the defendant. A suggestion was given to the witness with respect to a notice dated 30.03.1992 which is a photocopy moreover that is a simplicitor notice for enhancement of rent. In view of the above discussion on the basis of pre-ponderance of probabilities it can be safely held that notice was duly served upon the defendants and the tenancy was terminated. The notice clearly stated that in case the rent is not revised the bank is directed to hand over the vacant possession of the premises. The Hon'ble Delhi High Court in Ashok Chopra (supra) has held in para 17 that "No Suit no. 89 of 2015 Page no. 9 of 17 notice was required to terminate the lease". Last but not the least it has been held in Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF), 2008 (2) SCC 728. That filing of the suit for eviction is in self a notice to the tenant. Therefore, looking from whichever angle it cannot be said that the tenancy of the defendant has not been terminated in respect of the suit premises. Hence, this issue is accordingly decided in favour of the plaintiff and against the defendant.
10. Additional Issue :-
Whether the suit of the plaintiff is barred u/s 50 of the DRC Act? OPD.
The onus to prove this issue is upon the defendant. According to the defendant the admitted rent was less than 3500/- per month and therefore, this court does not have the jurisdiction to try the suit. According to the defendant the rate of rent was Rs. 2904/- w.e.f. 01.05.2004. Ld. Counsel for the defendant has also laced reliance on the Judgment of Mohammad Ahmad (supra) to argue that it has been held in the said Judgment that the landlord is only entitled to rent, excluding any other charges. On the other hand Ld. counsel for Suit no. 89 of 2015 Page no. 10 of 17 the plaintiff submits that along with the rent of Rs. 2,904/- the defendants are paying maintenance charges to Atma Ram Construction. At the rate of Rs. 1500/- per month from 01.05.2005, therefore, if the amount of maintenance charges is included in the rent. The same would be beyond the statutory limit of Rs. 3500/- and this court would have jurisdiction . In support of his Contentions he had relied upon judgment Sewa International Fashions Vs. Suman Kathpalia, AIR 2000 Delhi 69.
11. The question therefore, to be determined by this court is whether rent would include payment of maintenance charges or not. The Judgment of the Hon'ble Court in Mohammad Ahmad (supra) is not applicable to the facts of this case, as it does not lay down that for purpose of calculating the rent, whether rent would include maintenance charges or not whereas, The Hon'ble High Court in Lalit Madhan Vs. Pramod Kalra 2014 (3) AD Delhi 323 has extensively dealt with the issue and while relying upon the judgment of Sewa International (supra) has come to the conclusion that rent includes all payment made by the tenant which is as not only per the original agreement but Suit no. 89 of 2015 Page no. 11 of 17 all the other payments which are made for amenities provided by the landlord including maintenance charges. The Hon'ble Supreme Court in Karnani Properties Ltd. (supra) has held in para 5 that "rent" is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishing, electric installations and other amenities agreed between the parties. That being the position of law the maintenance charges would have to be included in the amount of rent, hence the rent would be beyond the statutory limit of Rs. 3500/- and this court would have jurisdiction.
12. DW-2 in his cross examination has stated that there is no agreement in writing between the Punjab National Bank and Ms. Atma Ram Constructions for payment of maintenance but they volunteered to say that there is oral agreement. He also stated that the power to collect the maintenance charges from the occupier has been given to M/s. Atma Ram Constructions by means of license deed dated 19.05.1973 executed between plaintiff and Atma Ran Construction. In his re-examination he Suit no. 89 of 2015 Page no. 12 of 17 stated that there is no express clause but again volunteered to say that plaintiff has given authority in writing to collect maintenance charges from the occupier. He further stated in his cross examination that circular regarding maintenance charges is first served upon the occupier than on the owner. In his examination in chief he had categorically stated that if the occupant does not pay the maintenance charges then the owner of the property is liable to pay the same amount. From his testimony it is clear that maintenance charges are not independent and the liability of the owner still remain in case the occupier does not pay therefore, in view or the law laid down by the Hon'ble Delhi High Court as discerned above it is crystal clear that the payment of maintenance charges would be included in rent. Hence, this issue is decided in favour of the plaintiff and against the defendant.
13. Issue no. 3:-
To what amount of damages, if any, the plaintiff is entitled ? OPP.
It is the case of the plaintiff that he is entitled to damages @ Rs. 75,000/- per month from 06.05.2007 i.e. at the Suit no. 89 of 2015 Page no. 13 of 17 rate of Rs. 150/- per sq. feet. In order to prove he has placed reliance upon the various lease deed which were exhibited by him as Ex. PC, PD, PE, PF, PG. On the other hand defendant has argued that plaintiff is not entitled to damages. The lease deed which has been relied upon by the plaintiff are not of the same building. None of the lease deed is in respect of Tolstoy Marg. Lease deed Ex. PC is in respect of Hansalya Building situated at Barakhamba Road. Lease deed Ex. PD is in respect of Merchantile Building, Kasturba Road. Lease deed Ex. PE is in respect of Himalaya House situated at Kasturba Gandhi Marg. Lease deed Ex. PF is in respect of Statesman House, Kasturba Gandhi Marg. Lease deed Ex. PG is in respect of Narayan Manzil situated at Barakhamba Road. The plaintiff has failed to prove the amount of damages he is entitled to for the use and occupation of the premises. However, judicial notice can be taken of this fact.
14. The Hon'ble High Court of Delhi in Suman Verma Vs. Sushil Mohini Gupta, 2014 (140) DRJ 595 has distinguish the judgment of National Radio and Electronics Company Vs. Motion Pictures Association, 2005 (122) DLT 659 and has observed that it can not be lost sight of the fact that the Suit no. 89 of 2015 Page no. 14 of 17 courts are for doing justice between the parties and not for, on hyper technicalities, allowing the parties to suffer injustice. Reliance can also be placed upon the judgment of Binod Khanna Vs. Bakshi Sachdev AIR 1996 Delhi 32, S. Kumar Vs. B.K. Kathpalia 1991 (1) RCR 431 which were also relied by the Hon'ble Delhi High Court in the case of Suman Verma (supra) wherein even when the landlord had not led any documentary evidence, the decree of mesne profits was upheld. In the judgment of Suman Verma (Supra) it was also laid down that Section 2 (12) of the CPC 1908 includes award of interest. Thus the plaintiff would be entitled to damages as follows:-
@ Rs. 75/- per sq. feet : 06.05.2007 till 05.05.2010 @ Rs. 90/- per sq. feet : 06.05.2010 till 05.05.2013, @ Rs. 110/- per sq. feet from 06.05.2013 till 5.05.2016 @ Rs. 135/- per sq. feet from 06.05.2016 till the date of handing of possession.
In case the possession is not handed over within the period of 90 days from today the rate of damages shall be calculated @ Rs. 200/- per sq. feet.
Suit no. 89 of 2015 Page no. 15 of
17
15. Issue no. 4:-
Whether written statement has not been signed and verified by the duly authorized person? If so, its effect? OPD.
It is the case of the defendant that the written statement has been signed by P.S. Bhotia who was the Chief Manager. Counsel for the plaintiff has been unable to point out as to how the written statement was not signed or verified by the competent person. The Hon'ble Supreme Court in United Bank of India Vs. Naresh Kumar, 1996 6 SCC 660 has held that defects which do not go to the route of the matter should not be permitted to defeat a just cause. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
16. Relief.
In view of the findings on the issue the plaintiff is entitled to damages @ Rs. 75/- per sq. feet from 06.05.2007 till 05.05.2010 @ Rs. 90/- per sq. feet from 06.05.2010 till 05.05.2013, @ Rs. 110/- per sq. feet from 06.05.2013 till 05.05.2016, @ Rs. 135/- per sq. feet from 06.05.2016 till the date of handing of possession with interest @ 6% p.a.. In case the Suit no. 89 of 2015 Page no. 16 of 17 possession is not handed over within the period of 90 days from today the rate of damages shall be calculated @ Rs. 200/- per sq. feet.
No order as to cost.
Decree sheet be accordingly prepared on payment of balance court fees, if any.
File be consigned to record room.
Announced in the open court on 17th March, 2018 (Ankur Jain) Addl. District Judge (Central)-10 Delhi Suit no. 89 of 2015 Page no. 17 of 17