Delhi District Court
Sh. Arvind Sikand vs Gtc Industries Limited on 8 July, 2013
IN THE COURT OF AJAY GOEL: ADDITIONAL DISTRICT
JUDGE-12(CENTRAL):DELHI.
CS-447/09
In the matter of:
Sh. Arvind Sikand,
S/o Sh. Pran Sikand,
R/o 11, Greengate, Greenford,
Middlesex UB6 0QH
Through his authorized representative
and attorney Sh. Swaraj Suri. ....... Plaintiff.
VERSUS
GTC Industries Limited,
A company incorporated and registered
under Companies Act 1956,
having its registered office at
Tobacco House, Vile Parle,
Mumbai-400056, though its
Authorised Representative
Also At:
Flat No. D, 8th Floor,
Vandana Building, Tolstoy Marg,
New Delhi-110001. ...... Defendant.
Date of filing of suit: 05.05.2009
Date of assignment to this court: 18.12.2012
Date of arguments: 01.07.2013
Date of decision: 08.07.2013
JUDGMENT
1. Vide this judgment, I shall dispose off instant suit for recovery of possession, mesne profits/damages alongwith pendentelite and future interest and cost amongst other reliefs filed by the plaintiff CS-447/09 Page:-1/11 against the defendant. The facts as pleaded in the plaint are that plaintiff is the sole and absolute owner of property being a flat No. D, 8th Floor in building commonly known as "Vandana Building", Tolstoy Marg, New Delhi containing an area of 1084 sq. ft. together with rights to make use of the entrance, toilet No. D, passages, staircase, lobbies, lifts and other easement being and pertaining to said property. It was stated that plaintiff is a resident of United Kingdom and has thus appointed Sh. Swaraj Suri to be his authorized attorney to look after said property and to file, verify and present the plaint for and on behalf of plaintiff. The defendant was tenant vide lease deed dated 08.09.2005. The lease was anti dated and period of tenancy was started from 01.4.2005 till 31.03.2008 and rate of rent was fixed as 38.88 per sq. ft. per month. It was further pleaded in plaint that plaintiff seeks recovery of possession from defendant of suit property as defendant is in unauthorised, illegal and unlawful possession of suit property since the tenure of agreement of lease dated 08th September, 2005 has attained maturity and despite being called upon, the defendant has not vacated the subject property and continues to be in its illegal and unlawful possession. As stated the defendant has refused and neglected to handover the actual physical vacant possession of the suit property despite notices and has taken a false stand and has breached the terms of lease agreement. It was stated that defendant continued to pay the rent as agreed between the parties and no notice for any extension did come from the defendant to plaintiff seeking extension beyond March 31st 2008 as was stipulated and upon which the extension was subjected. It was stated that since notice CS-447/09 Page:-2/11 seeking any extension was never received by the plaintiff and since the period of March 31st, 2008 was approaching, he on 08th March, 2008 addressed a letter to the defendant intimating the defendant that he shall visit the property on 31st March, 2008 or day later to seek possession. It was further averred in plaint that to shock of plaintiff, he received an undated response from an advocate, Mr. Sunil Dutt Dixit acting on behalf of defendant in response to his letter dated 08.03.2008 and in said letter defendant company admitted to said agreement, relationship between parties, however alleged that an alleged letter dated 19.12.2007 was allegedly sent by the defendant to the plaintiff by way of UPC and thus the defendant presumed that said letter has been duly received by plaintiff and by said letter, the defendant had exercised its option to extend the lease for a further period of three years in terms of an agreement of lease dated 08.09.2005. It was further averred that false and incorrect assertion and allegation were levelled in the said letter, since no letter of extension was ever addressed by the defendant or received by plaintiff. Thereafter, by a notice dated 04.4.2008 duly sent by registered post, the plaintiff while reiterating the facts as above sought actual, physical, vacant possession within 30 days of receipt of notice and in said notice, the plaintiff brought to the notice of defendant and claimed mesne profits from defendant @ Rs. 10,000/- each day of illegal occupation. It was also stated that plaintiff came to know that the defendant has materially altered the subject flat and has removed walls in between two adjoining flats so as to give itself more space which act is also illegal and unauthorized in breach of the terms of the lease agreement.
CS-447/09 Page:-3/11 Hence plaintiff filed the suit against the defendant seeking reliefs as prayed in plaint.
2. In reply to plaint, defendant filed the written statement wherein preliminary objections were raised stating that suit is not maintainable in its present form and the plaintiff has not come to this court with clean hands. It was also stated that plaint does not disclose any cause of action in favour of plaintiff either in respect of relief of possession or in respect of mesne profit in any manner. On merits, ownership of the plaintiff in respect of suit property was admitted. It was stated that option of extending the lease period was availed by defendant in time and letter dated 19.12.2007 was sent by defendant on 20.12.2007 by way of UPC to the plaintiff and said letter was posted after mentioning the correct address on it so a presumption arises in favour of its service upon the plaintiff. It was also stated plaintiff is intentionally trying to avoid the service of the said letter dated 19.12.2007 under a wrong advice that the service by way of UPC is not proper. It was also stated that there had been an understanding between parties to the suit and intimation regarding the intention of defendant to extend the lease beyond 31.03.2008 was given to the plaintiff on phone and sending the letter dated 19.12.2007 was only a formality and therefore, it was sent by way of UPC but later on, the plaintiff seems to have changed his mind and is now trying to avoid the said letter. The other contents of plaint were denied and it was prayed that suit of the plaintiff be dismissed with exemplary costs.
3. Replication was filed by plaintiff to the written statement of defendant wherein contents of plaint were reiterated and those of written statement were denied.
CS-447/09 Page:-4/11
4. On the pleadings of the parties, the following issues were framed vide order dated 22.12.2009:-
1) Whether the tenancy was extended by way of letter dated 19.12.2007 sent to the plaintiff UPC by the defendant. If so its effect?OPD.
2) Whether there is no cause of action to file the suit for the relief claimed in case the issue No. 1 is decided in favour of the defendant?OPD.
3) Whether plaintiff is entitled for possession and mesne profit, if so, at what rate and to which period?OPP.
4) Relief.
5. Plaintiff in support of his case examined three witnesses including himself i.e. PW-1 Sh. Arvind Sikand, PW-2 Sh. Swaraj Suri and PW-3 Sh. Sunil Srivastava. All were cross-examined by counsel for defendant and reiterated the contents of plaint. PW-1 in his evidence has stated that notice Ex. PW-1/5 was sent to the defendant. He also stated that he was not in India when Ex. PW-1/3 was received by his attorney at New Delhi. He admitted that part of property tax was also being paid by the defendant. PW-2 in his evidence has stated that plaintiff signed Ex. PW-2/1 while in U.K. He also admitted that executant plaintiff and attesting witnesses did not sign in his presence. He also stated that flat bearing No. 7D, subject matter of Mark B was given on rent in a semi furnished manner, the cabins were there but there was no furniture. PW-3 who is Record Clerk, from Sub-REgistrar office has stated in his evidence after comparing with his office record that documents Mark F does not contain the page bearing paras 22 and 23 which is the last page of the lease deed. He also CS-447/09 Page:-5/11 stated that he had not found any other discrepancy between the records of his office and documents Mark C to Mark F.
6. In defence, defendant examined two witnesses i.e. DW-1 Sh. Y. S. Kamal who is authorised signatory of defendant and Sh. Sanjay Kumar, Postal Assistant, Post Office, Sansand Marg, New Delhi. DW-1 admitted in his evidence that lease deed dated 08.9.2005 was executed between plaintiff and defendant and was signed by him on behalf of defendant. He stated that fresh lease deed was not executed because the conditions for extension were not accepted by the plaintiff though the defendant issued a letter for extension three months prior to the expiry of lease period. He further stated that there was a condition in the lease deed that all communication in respect to the lease were addressed to the father of plaintiff namely Mr. Pran Sikand as the plaintiff lives in U.K. He further stated that letter dated 19.12.2007 was not addressed to father of plaintiff as lease deed was in the name of plaintiff. He further stated he has no documentary evidence to show that the letter sent by the UPC was received by the plaintiff. DW-2 in his evidence has stated that contents of seal of post office on Ex. DW-1/1 are the same as that of sample seal Ex. DW-2/A. He further stated that by his statement, he cannot take guarantee of the seal on Ex. DW-1/1 or that he cannot make any statement as to whether the seal on Ex. DW-1/1 is genuine or not. Thereafter, D.E. was closed.
7. The counsel for plaintiff has fairly conceded during course of arguments that he is liable to pay court fees on the amount awarded in the decree after calculating mesne profit, hence plaintiff will pay court fee as made out in the relief after CS-447/09 Page:-6/11 calculating annual rent and advelorum court fee on the mense profit granted in the relief.
8. I have heard Ld. Counsel for the parties as well as perused the record. My issue-wise findings are as under:-
9. Issue No. 1. Whether the tenancy was extended by way of letter dated 19.12.2007 sent to the plaintiff UPC by the defendant. If so its effect?OPD and Issue No. 2. Whether there is no cause of action to file the suit for the relief claimed in case the issue No. 1 is decided in favour of the defendant?OPD and Issue No. 3. Whether plaintiff is entitled for possession and mesne profit, if so, at what rate and to which period?OPP:- All these issues are taken up together as they are interconnected. The onus to prove the issue regarding possession was on the plaintiff. However, this issue has become redundant because as submitted by counsel for plaintiff, the possession has already been taken by plaintiff on 05.04.2011. Hence, no observation is required on this issue. The onus to prove remaining issues was on the defendant. The foremost question in this case is whether letter dated 19.12.2007 was sent by defendant on 20.12.2007 by way of UPC to the plaintiff and whether said letter can be treated as showing the desire of defendant to extend tenancy period or whether it was sufficient action. Though clause of the rent deed does not say that any particular mode was required and it only suggested that notice will be sent in writing at least 3 months before expiry of three years for further extension of three years subject to 15% increase in rent. It is observed that letter dated 19.12.2007 allegedly sent on 20.12.2007 Ex. PW-1/DA itself says that defendant had in mind CS-447/09 Page:-7/11 that documents are to be executed for further extension because they themselves have mentioned in this letter that "we will appreciate the acknowledgment from you in this regard enabling us to get the documents ready for execution" so further action was required to be taken but there is catch regarding this document itself. DW-1 has rather admitted in his statement that when letter dated 19.12.2007 was sent, he was on leave and he got this letter after 2-3 days when he came back. If it was so then he has failed to explain that how this letter could have been sent by UPC on 20.12.2007. The defendant cannot wriggle out from admission wherein he has candidly admitted so. Moreover, he has never stated as to how the other requirements of 15% increase was complied with and to when the cheque of rent with 15% increase was sent to plaintiff. Clauses of lease cannot be read in isolation but whole of the term of the lease was to be adhered. Firstly cheque should have been sent pertaining to rent alongwith increase of 15% in time. There is no averment in the evidence to that effect. Moreover, it is also not pleaded so, hence in these circumstances, the subsequent act of plaintiff in accepting the rent if any cannot termed as extending the lease and there is no estoppel as has been observed in the judgment titled Abhinav Outsourcing Pvt. Ltd. Vs Sunita Seth 186 (2012) DLT 689, Swarup Singh Gupta Vs S. Jagdish Singh & Ors 2006 (4) SCALE and Fateh Chand Vs Purushottam Dass & Anr. 2011 (122) DRJ 356. Moreover, it is not made out as to why the alleged intention was communicated through alleged UPC when registered A.D., Couriers and E-mails were available and doubt is created regarding intention of defendant. It has been admitted by CS-447/09 Page:-8/11 DW-1 that fresh lease deed was not executed because conditions for extension was not accepted by plaintiff so it has clearly come on record that there was no consensus ad-idem. It has been rather admitted by defendant witness that non-acceptance was communicated by plaintiff on 08.03.2008 though defendant should have taken extra care for getting extension of lease period. Rather, in the lease deed itself, it has been mentioned by plaintiff that if there is extension fresh document will be executed so mere intention was not sufficient and further act was required. Furthermore, presumption of correctness is not attached absolutely with UPC but it is rebutable presumption which has been fully rebutted by plaintiff as well as by defendant himself when he has stated that this letter was not available in Delhi office on 19.12.2007 and 20.12.2007. Even otherwise, by no stretch of imagination the letter written in Mumbai on 19.12.2007 can be received on 20.12.2007 at Delhi. Reliance is placed at Mst. M.L.S. Ummu Saleema Vs. B. B. Gujaral & Ors AIR 1981 SC 1191 and Rampur Engineering Co. Ltd. Vs United Construction Co. & Ors 95 (2002) DLT 250. So version of the defendant does not inspire any confidence and is discarded. Resultingly, letter dated 19.12.2007 stand rejected and it is held that there was no extension of lease after expiry of period i.e. 01.4.2008 which converted into unauthorized possession hence plaintiff is entitled for mesne profit. Now what was rate of rent/damages depends on the circumstances as no evidence has been led and court itself has to fixed mesne profit. Though counsel for the plaintiff has relied upon 108 (2003) DLT 102 titled H. L. Mehra & Ors. Vs Inter Publicity Pvt. Ltd. This CS-447/09 Page:-9/11 judgment is not applicable because therein rate of 50% per sq. ft. in September, 1999 was taken for building of Connaught Place when no evidence was led. Herein the plaintiff is bound by the estoppel. The rent was fixed at rate of Rs. 38.88 alongwith 15% increase for further period after expiry of lease meaning thereby he was herself satisfied that if intention of extension of lease would have been communicated in time, he would have been satisfied with 15% increase on 38.88 per sq. ft per month for the next three years i.e. up till 1st April 2011 on which date the possession was handed over which comes to around 44.73 sq. feet but this would have agreed price in that situation but now it cannot be taken for mesne profit, hence reasonable mesne profit payable by defendant on the premises held by defendant against wishes of landlord is to be fixed so that it may reflect suitable compensation for damages/occupation charges and in these circumstances, I deem fit the rate of Rs. 60/- per sq. feet per month as sufficient. He is entitled for interest @ 12% on the balance amount as per judgment 189 (2012) DLT 153 titled Sneh Vaish & Anr. Vs State Bank of Patiala & Ors and 189 (2012) DLT 311 Lalit Mohan Madan VS Life Insurance Corporation of India on monthly basis on outstanding amount till its recovery. The amount already paid will be adjusted as PW-1 herself has admitted in her cross-examination that mesne profit alongwith 15% increase has been paid up to date. Accordingly, issue No. 1 is decided against the defendant and in favour of plaintiff; Issue No. 2 is decided in favour of plaintiff and against the defendant and Issue No. 3 is partly decided in favour of plaintiff and against defendant.
CS-447/09 Page:-10/11
10. Relief:- In view of the above finding, the suit of the plaintiff stands decreed with proportionate costs. The rate of mesne profit is fixed at Rs. 60/- per sq. feet per month from 01.04.2008 till possession is handed over i.e. 05.4.2011 which would be sufficient. He is entitled for interest @ 12% is awarded to plaintiff for unauthorised occupation by defendant on monthly basis on outstanding balance amount till its recovery. Decree sheet be prepared accordingly after paying of deficient court fee and file be consigned to Record Room.
Announced in open court on (Ajay Goel) 08.07.2013 ADJ-12(Central)/Delhi. CS-447/09 Page:-11/11