Delhi District Court
Maj. Gen Anil Mohan Chaturvedi & Ors vs M/S. Tecon Projects Pvt. Ltd on 27 February, 2013
: 1 :
IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 545/2011
In the matter of :
Maj. Gen Anil Mohan Chaturvedi & Ors. ..........Plaintiff
Vs.
M/s. Tecon Projects Pvt. Ltd. .......Defendant
27.02.13
ORDER :
Vide this order, I shall decide the present suit filed by the plaintiff . Brief Facts of the case:
2 Plaintiffs have submitted that plaintiffs are legal heirs of Late Mr. M.D Chaturvedi, who was owner of the suit property bearing no.103A, Friends Colony, New Delhi.
3 Plaintiffs have submitted that vide lease deed dated 14.01.2006, the defendant was given front side of the suit property on lease consisting of two bed rooms with attached bath rooms, drawing cum dining room, kitchen, lounge, garden and lawn on the ground floor and one bed room with attached bath and Contd....P..1 of 25 : 2 : pantry on the first floor of the suit property, on the terms mentioned in the said lease deed.
4 Plaintiffs have further submitted that period of the aforesaid lease deed, has expired on 31.01.2009. Though, in terms of clause 1 of the said lease deed, there was an option for further extension of lease period, upto another 3 months, at the instance of the defendant, yet said discretion has not been exercised by them, making them liable for payment of penal rent in term of clause 6 of the said lease deed.
5 Plaintiffs have further submitted that the contractual tenancy between the plaintiffs and the defendant came to an end on 31.01.2009 and thereafter there has been no renewal or extension of tenancy, either in writing or otherwise, between the plaintiffs and the defendant. The plaintiffs No.1 & 2, after the expiry of the lease period, called upon the defendant through Mr. Vidur Kohli to hand over the vacant physical possession of the suit property. 6 Plaintiffs have further submitted that despite being called upon to hand over the vacant physical possession of the suit property when the plaintiffs did not receive any positive action in that regard, the plaintiffs got the defendant served a legal notice dated 27.02.2009, thereby calling upon the defendant to hand over the vacant physical possession of the suit property. Upon receipt of Contd....P..2 of 25 : 3 : the said legal notice, the defendant sent an evasive reply. Thereafter, the plaintiffs filed the suit bearing No. 629/09 (710/2010). However, in the facts and circumstances of the said case, the said suit was dismissed as withdrawn vide order dated 07.05.2011.
7 Plaintiffs have further submitted that in the absence of any agreement in writing or otherwise, the tenancy of the defendant was presumed to be month to month, terminable on 15 days notice. Thus, the plaintiffs got served notice dated 10.05.2011 u/s 106 of TPA calling upon the defendant to hand over the vacant physical possession of the suit property within 15 days of the date of receipt of the notice. Though the said notice was served upon the defendant, however, defendant did not hand over the possession of the suit property. Thus, the plaintiffs filed the present suit.
8 The defendant filed the detailed WS and has raised the preliminary objection that the present suit is premature as the plaintiffs have no cause of action to institute the suit as the tenancy stood extended upto January, 2012 by the express consent of the plaintiffs. As a consequence, the plaintiffs are accepting the increased rent of 10% increase over the last paid rent. 9 Objection has also been taken that the suit is barred by resjudicata as an identical suit filed by the plaintiffs on the same cause of action was Contd....P..3 of 25 : 4 : withdrawn by them without being granted any liberty to file fresh suit on the same cause of action. The earlier suit (C.S. (O.S. NO. 710 of 2010) was filed on 01.05.2009 and was withdrawn by the plaintiffs on 07.05.2011. The earlier suit was based on the notice dated 27.02.2009 which stood waived by the conduct of plaintiffs. The notice dated 10.05.2011 purporting to be the basis of this suit is identical to the notice dated 27.02.2009.
10 Defendant has also contended that the suit is not properly valued for the purposes of court fee and jurisdiction. The defendant is presently paying rent of Rs.76,133/. The annual rental value of the property is Rs.9,13,596/ and the plaintiffs are liable to pay court fee on Rs.9,13,596/ which comes to Rs.
11,322.40. The plaintiffs have paid court fee of Rs.6,102/. There is a deficiency of Rs.5,230.40 in the payment of court fee.
11 Defendant has further submitted that the plaintiffs have not come to the court with clean hands and have suppressed and concealed various facts from the court. The plaintiffs are liable to produce all the documents executed by them. The plaintiffs are guilty of playing fraud on the court and on the defendant. The plaintiff are not entitled to any relief. The details are :
i Defendant exercised its option for further extension of lease for three years vide letter dated 16.10.2008 and also in a personal meeting with Contd....P..4 of 25 : 5 : plaintiff no.1 ii The plaintiffs have suppressed the execution of three supplementary agreements (i) agreement for house keeping and maintenance,
(ii) agreement for fitting, furniture and fixtures and (iii) agreement for letting out garage, space for car parking and servant quarter executed with them during the currency of the lease dated 14.01.2006 iii Defendants are in possession of the suit property since 14.01.2003. The earlier lease deed dated 14.01.2003 and the three similar agreement were executed by plaintiff with Mr. Naveen Kohli, father of Mr. Vidur Kohli on behalf of m/s NPL Motors Pvt. Ltd.
12 Defendant has admitted that Sh. M.D. Chaturvedi was the owner of suit property.
13 Defendant has submitted that on 14.01.2003, the property No. 103, Friends Colony (East), front side, New Delhi was initially taken on lease at a rental of Rs.20,000/ per month from Sh. M.D. Chaturvedi. The lease deed was executed in favour of M/s NPL Motlrs Pvt. Ltd and signed by Sh. Naveen Kohli, father of Sh. Vidur Kohli. Three other agreements detailed as under were executed by Mr. Naveen Kohli on 14.01.2003 with sons of Sh. M.D. Chaturvedi. i Agreement for housekeeping and maintenance executed with Maj.
Contd....P..5 of 25 : 6 : Gen. A.M. Chaturvedi for a sum of Rs.7,000/ per month. ii Agreement for fittings, furniture and fixtures executed with Mr. A.M. Chaturvedi for a sum of Rs.7,000/ per month.
iii Agreement for letting out garage space for car parking and servant quarter with Mr. A.M. Chaturvedi for a sum of Rs.6,000/ per month 14 The tenure of all the agreements is stated to be for three years i.e from 01.02.2003 to 31.01.2006 and were coterminus with the lease deed. Thus the total rent being received by plaintiffs was Rs.40,000/ per month. Thereafter on 14.01.2006 the same set of landlords executed a lease deed and similar agreements for the same property for a further period of three years with M/s Tecon Projects Pvt. Ltd, a family concern of Sh. Naveen Kohli. The lease was executed by Mr. Vidur Kohli, son of Mr. Naveen Kohli on behalf of the company. The rent was increased to Rs.26,000/ per month.
15 Three other agreements detailed as under were executed by Mr. Naveen Kohli on 14.01.2006 by Mr. Vidur Kohli i Agreement for housekeeping and maintenance executed with Maj. Gen. A.M. Chaturvedi for a sum of Rs.9,100/ per month. ii Agreement for fittings, furniture and fixtures executed with Mrs. Asha Chaturvedi wife of Mr. A.M. Chaturvedi for a sum of Rs.9,100/ per month. iii Agreement for letting out garage space for car parking and servant Contd....P..6 of 25 : 7 : quarter with Mr. A.M. Chaturvedi for a sum of Rs.7,800/ per month Thus, the total rent being paid was Rs.52,000/ to the plaintiffs. Defendant has submitted that the defendant exercised the option for extension of the lease deed for a further period of three years on 16.10.2008 by UPC and also in a personal meeting with Maj. Gen. A.M. Chaturvedi in the third week of October though a resident of Noida comes almost daily to the property. It was agreed that the rent would be Rs.34,600/. Other conditions of the lease remaining the same as earlier, it was agreed that i) Agreement for housekeeping and maintenance executed with Maj. Gen. A.M. Chaturvedi for a sum of Rs.12,200/ per month. ii) Agreement for fittings, furniture and fixtures executed with Mr. A.M. Chaturvedi for a sum of Rs.12,200/ per month and iii) Agreement for letting out garage space for car parking and servant quarter with Mr. A.M. Chaturvedi for a sum of Rs.10,500/ per month. Thus, the total rent being received by the plaintiffs was Rs.69,500/ which lastly has been increased to Rs.76,133/.
16 The defendant has averred that it reluctantly agreed to the above raise due to the inconvenience in shifting, even through due to recession, there was a decreasing trend in the rentals. The defendant purchased the stamp papers and as per the consensus arrived at with the plaintiffs, got the agreements engrossed on the stamp papers on the same terms and conditions Contd....P..7 of 25 : 8 : as earlier ones dated 14.01.2006.
17 Defendant has contended that in the first week of February, 2009, the defendant after signing the above mentioned four agreements dated 03.02.2009 handed them to Maj. Gen. A.M. Chaturvedi for getting them signed by him and other landlords. After about one week, plaintiffs stated on 22nd or 23rd February, 2009, all the signatories would be coming to 103A, Friends Colony (East), New Delhi and shall sign the agreements. Nobody turned up on the said date and the defendant received the notice dated 27.02.2009. The defendant has submitted that it has already exercised the option for extension of the lease, pursuant to the agreement reached with Maj. Gen. A.M. Chaturvedi on behalf of himself and other landlords for a further period of three years, the defendant is not liable to vacate the property.
18 Defendant has submitted that it received a legal notice dated 27.02.2009 and the filing of the suit (C.S. (OS) No. 710 of 2010). Defendant has contended that the suit was withdrawn unconditionally by the plaintiffs and no liberty was granted by the learned court to institute fresh suit on the same cause of action. The defendant is alleged to have exercised his option for a further period of three years in the letter dated 16.10.2008. The receipt of notice dated 10.05.2011 is denied by the defendant. Defendant has prayed for dismissal of the present suit.
Contd....P..8 of 25 : 9 : 19 Plaintiff filed the replication and reiterated the contents of plaint and denied the averments of defendants made in WS.
20 On completion of pleadings, following issues were framed vide order dated 22.12.2011 :
i. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD ii. Whether the suit is premature as the tenancy stood extended upto January 2010 by the consent of plaintiffs? OPD iii. Whether the suit is barred by the provisions of resjudicata?
OPD iv. Whether the plaintiff has not come to the court with clean hands and has indulged in suppression of documents? OPD v. Whether the tenancy has been validly terminated? OPP vi. Whether the plaintiff is entitled to the mesne profits? OPP vii. Whether the plaintiff is entitled to the interest on the mesne profits, if yes, at what rate and for what period? OPP viii. Relief.
21 Thereafter, the case was fixed for plaintiff evidence. In support of its case, the plaintiff examined five witnesses namely PW.1, Sh. Shashi Mohan Chaturvedi who proved the documents Exb.PW.1/A to 1/F; PW.2 Sh. Phool Singh who proved Exb.PW.2/A, PW.3 who proved Exb.PW.3/A; PW.4, Sh. Nabor Beck and PW.5, Sh. Anil Dhiman who proved document, Exb.PW.5/A. Thereafter, the plaintiff closed his evidence.
Contd....P..9 of 25 : 10 : 22 Thereafter, the case was fixed for DE. In support of its case, the defendant examined DW.1, Sh. Vidur Kohli who proved documents Exb.DW.1/1 to 1/5 and closed its evidence.
ISSUEWISE FINDINGS ARE AS UNDER :
Issue no.1: Whether the suit is not properly valued for the purpose of court fees and jurisdiction? Onus of this issue was placed on defendant.
23 Defendant has submitted that the monthly rent of suit property is Rs.76,133/ and it is paying to the plaintiffs an amount of Rs.60,384/ after deduction of TDS. It has further submitted that the annual rental value of suit property is Rs.9,13,596/ and plaintiffs have to pay court fees of Rs.11,332.40 on the same but have paid court fees of Rs.6,102/.
24 Plaintiffs in the plaint have not stated the quantum of monthly rent of the suit property, however in the valuation clause, the plaintiffs have submitted that the annual rent of the suit property as per the lease agreement dated 14.01.2006 is Rs.3,12,000/ and have paid court fees on the same. In the said agreement the monthly rent is stated to be Rs.26,000/ starting from 01.02.2006 and rent was agreed to be increased by 10% annually. However, the said lease deed is for a period of more than one year and is hit by Section 107 of Transfer of Property Act read with Section 49 of Registration Act. PW1 in his cross Contd....P..10 of 25 : 11 : examination on being asked the amount of rent being received by him alongwith other plaintiffs to be Rs.76,133/ after deducting TDS answered that as part of rent plaintiffs are receiving cheque of Rs.29,254/ for one month and also admitted that additional amounts are being received by them under three other agreements which do not constitute rent of the house.
25 The remaining amount is stated to be paid by the defendant to the plaintiff under the agreement for housekeeping and maintenance, agreement for fittings, furniture and fixtures and agreement for letting out garage space for car parking and servant quarter. Neither of the parties have filed certified copies of the said agreements and although, the defendant has filed agreement for housekeeping and maintenance, agreement for fittings, furniture and fixtures and agreement for letting out garage space for car parking and servant quarter stated to have been executed between the four plaintiffs and M/s. Tecon Projects Pvt. Ltd. dated 03.02.2009, none of the agreements has been signed on behalf of plaintiffs and thus were never executed by the plaintiffs. 26 However it is a matter of record that as late as on 18.02.2013, the date of hearing the arguments, the defendant has been tendering cheques to the plaintiff for a total amount of Rs.60,384/ after deducting of TDS. The contention of the plaintiffs that the amount paid towards agreement for housekeeping and maintenance, agreement for fittings, furniture and fixtures and agreement for Contd....P..11 of 25 : 12 : letting out garage space for car parking and servant quarter which were co terminus with lease deed dated 14.01.2006 are not part of rent is not tenable as it has been held by superior courts that the payments made under the said agreements by tenant to landlord form part of rent. Thus, the monthly rental of the suit property is Rs.76,133/ and thus annual rental value of the suit property is Rs.9,13,596/. Thus plaintiffs have not valued the present suit for the purpose of relief of possession. Thus issue no.1 is decided in favour of defendant and against the plaintiffs and plaintiffs are directed to pay court fees of Rs.6,102/ towards the same.
Issue No.2 : Whether the suit is premature as the tenancy stood extended upto January, 2010 by the consent of plaintiffs? The onus of this issue was placed on the defendant.
27 The defendant has submitted that tenancy stood extended upto January, 2010 by the consent of plaintiffs. The plaintiffs are stated to be accepting the increased rent of 10% increase over the last paid rent. Defendant has submitted that the exercise the option for extension of the lease deed for a further period of three years on 16.010.2008 by UPC and also in a personal meeting with plaintiff no.1in third week of October. It is further stated that the rent would be Rs.34,600/ and the total rent will be Rs.69,500/ per month which lastly has been increased to Rs.76,133/ per month. Defendant has submitted that the Contd....P..12 of 25 : 13 : plaintiffs have been accepting the enhanced rent after deduction of TDS. 28 It was held in the matter of Phool Rani Trivedi Vs. Sheel Chandra, 2004 Rajdhani Law Reporter 467 that mere payment of rent after termination of tenancy does not result in holding over u/s 116 of Transfer of Property Act nor acceptance of rent amounts to waiver. Therefore, acceptance of enhanced rent by the plaintiffs in the present matter does not amount to extension or continuance of tenancy in favour of the defendant. Further parties by their agreement, presuming if there was any, can not supersede the statutory provisions. The plaintiffs have denied the fact of alleged extension of tenancy. Further a perusal of Ex. DW 1/2, Ex. DW 1/3 and Ex. DW 1/4 i.e. agreement for housekeeping and maintenance, agreement for fittings, furniture and fixtures and agreement for letting out garage space for car parking and servant quarter reveals that these exhibits have been signed on behalf of defendant alone and not by the plaintiffs. Thus these agreements were never executed between the parties. Section 107 of Transfer of Property Act specifically provides that lease of immovable property for any terms exceeding one year can be made only be a registered instrument. Thus, in absence of registration, the contention of the defendant is untenable and dismissed. Accordingly issue no.2 is decided against the defendant and in favour of the plaintiff and the present suit is not premature. Issue no.3 : Whether the suit is barred by provisions of resjudicata?
Contd....P..13 of 25 : 14 : Onus of this issue was on defendant.
29 Plaintiffs had earlier filed a civil suit bearing no.629/09 (710/2010) which was dismissed as withdrawn vide order dated 07.05.2011. Plaintiffs have served notice of termination dated 10.05.2011 u/s 106 of Transfer of Property Act calling upon the defendant to handover the vacant physical possession of the suit property within 15 days of the date of receipt of the notice. Thus this suit has been filed on a fresh cause of action. Otherwise also civil suit bearing no.629/09 (710/2010) was dismissed as withdrawn and was not decided on merits. Thus the matters in issue were not finally adjudicated upon. Accordingly the principle of resjudicata is not applicable. Thus issue no.3 is decided against the defendant and in favour of the plaintiffs. The suit is not barred by the provisions of resjudicata.
Issue No.4 : Whether the plaintiffs have not come to the court with clean hands and have indulged in suppression of documents? The onus of this issue was also placed on defendant.
30 Defendant has submitted that the suit property was taken on lease on 14.01.2003 from 01.02.2003 to 31.01.2006 between M.D. Chaturvedi, the predecessor in interest of plaintiffs and M/s. NPL Motors Pvt. Ltd. and signed by Naveen Kohli father of Vidur Kohli alongwith agreement for housekeeping and Contd....P..14 of 25 : 15 : maintenance, agreement for fittings, furniture and fixtures and agreement for letting out garage space for car parking and servant quarter coterminus with the lease deed. Total rent received by the plaintiffs was Rs.40,000/ per month. 31 Defendant has submitted that on 14.01.2006 the same set of landlords executed the lease deed and similar agreements of suit property for a further period of three years with M/s. Tecon Projects Pvt. Ltd. a family concern of Naveen Kohli. This lease was executed by Vidur Kohli s/o Naveen Kohli on behalf of the company. Total rent was increased to Rs.52,000/ per month. The defendant exercised the option for a further period of three years on 16.10.2008 by UPC and also in personal meeting with plaintiff no.1 in third week of October and lease deed and three similar agreements were executed and Total rent received by the plaintiffs was Rs.69,500/ per month which lastly has been increased to Rs.76,133/ per month. As observed earlier, a perusal of Ex. DW 1/2, Ex. DW 1/3 and Ex. DW 1/4 i.e. agreement for housekeeping and maintenance, agreement for fittings, furniture and fixtures and agreement for letting out garage space for car parking and servant quarter reveals that these exhibits have been signed on behalf of defendant alone and not by the plaintiffs. Thus these agreements were never executed between the parties. Defendant has relied on the judgment titled Chengalivaraya (dead) by LRS Vs. Jagan Nath (dead) by LRS and Others, AIR 1994 SC 853; and has prayed for dismissal of the present suit as in the said matter, it was held that a person Contd....P..15 of 25 : 16 : whose case is based on falsehood has no right to approach the court and a litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side, then he would be guilty of playing fraud on the court as well as on the opposite party. However, this judgment does not apply to the facts of the case as neither of the parties have filed any such document / agreement as referred by defendant in its WS and the agreements filed by defendant i.e. Ex. DW 1/2, Ex. DW 1/3 and Ex. DW 1/4 i.e. agreement for housekeeping and maintenance, agreement for fittings, furniture and fixtures and agreement for letting out garage space for car parking and servant quarter reveals that these exhibits have been signed on behalf of defendant alone and not by the plaintiffs. Thus these agreements were never executed between the parties. Thus, plaintiffs have not played any fraud on the court.
32 The plaintiffs have filed the present suit on basis of lease deed dated 14.01.2006 which has been executed between their predecessor in interest and Vidur Kohli on behalf of M/s. Tecon Projects Pvt. Ltd. The lease deed specifically provides monthly rent to be Rs.26,000/ per month. The present suit has been filed for relief of possession, recovery of arrears of rent and future mesne profits / damages. Defendant has not filed any copy of the alleged three agreements for housekeeping and maintenance, agreement for fittings, furniture Contd....P..16 of 25 : 17 : and fixtures and agreement for letting out garage space for car parking and servant quarter. However, the PW no.1 has admitted execution of these documents in the year 2006 and has denied execution of any agreement in 2009. Mere non filing of these agreements of 2006 do not point to suppression of material documents from the court as the reliefs claimed by way of present suit have been based on lease deed dated 14.01.2006 and not on those agreements. PW1 in his cross examination specifically stated that three agreements constitute different services and lease money constitute rent for the house. Thus the plaintiffs can not be said to be aware of the fact that payments under these agreements form part of rent. Thus, defendant has failed to prove that the plaintiffs have not come to the court with clean hands and have indulged in suppression of documents. Thus issue no.4 is decided against the defendant and in favour of plaintiffs.
Issue No.5: Whether the tenancy has been validly terminated? Onus of this issue was on plaintiffs.
33 The factum of tenancy and the rent to be above Rs.3500/ per month has already been admitted by plaintiffs. Plaintiffs have submitted that they got served notice dated 10.05.2011 u/s 106 Transfer of Property Act, calling upon the defendant to handover the vacant physical possession of the suit property within 15 days of the date of the receipt of the notice.
Contd....P..17 of 25 : 18 : 34 The defendant has denied the receipt of notice of termination. The plaintiff no.1 appeared in Court as PW1 and was subjected to crossexamination by the learned counsel for the defendant but no question was put to him in respect of the notice of termination sent by him and proved by him in his examination in chief. Thus there is no rebuttal to his contention about termination of tenancy of the defendant by notice dated 10.05.2011. Notice and its service on defendant by the speed post and through courier have been proved. 35 Apart from this, assuming that the notice was not served on defendant, in the matter of M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha(HUF) & Anr, RFA 179/2011 decided on 25.03.11; it had been held by Hon'ble High Court of Delhi that even service of summons in a suit can be treated as a notice under Section 106 of the Transfer of Property Act, 1882. It had been further held that along with the suit, copy of the notice terminating tenancy as a document is served upon the defendant, and which once again can be treated as a notice terminating tenancy. Accordingly taking aid of Order 7 Rule 7 CPC, it had been held that in suits for possession by a landlord, technical defences with respect to notices should not be permitted as long as the 15 day period expires prior to the filing of the suit. This decision of Hon'ble High Court of Delhi was challenged by way of SLP and the same has been dismissed by the Hon'ble Supreme Court of India bearing SLP NO. 15740/2011 on 07.07.2011. In the present case also, the notice for vacation of Contd....P..18 of 25 : 19 : suit property was given on 7.08. 2008 and suit is filed on 6.11.2008 and thus 15 days period had expired prior to the filing of the suit. Further, defendant was served on 11.11.2008. In view of the law laid down in M/s Jeevan Diesels and Electricals Ltd. Vs. M/s Jasbir Singh Chadha(HUF) & Anr, RFA 179/2011 decided on 25.03.11; there is valid termination of tenancy as 15 days period had expired prior to the filing of the suit as well as because service of summons in a suit can be treated as a notice under Section 106 of Transfer of Property Act. 36 In Hill Elliott & Co. Ltd. Vs. Bhupinder Singh, Vol. 1212011 DRJ, Page 438(DB), it has been held that service of notice of termination has to be presumed where it has been sent by registered post A.D. or by Speed Post or UPC or by Courier service. In the present case, the plaintiff has proved that he had sent the notice dated 7th August, 2008 to the defendant company terminating the tenancy by the registered post A.D. as well as by under the certificate of posting.
37 It has been observed by Hon'ble High Court of Delhi in Atma Ram Properties(P) Ltd. vs. Pal Properties(India) Pvt. Ltd. and others, 91(2001) DLT438, "Coming to the service of the notice, the plaintiff has placed on record the copy of the notice sent to the defendants under section 106 of Transfer of Property Act. The plaintiff has also placed on record the postal receipts in original by which notice were sent by registered post to the defendants. The plaintiff has also produced on record the original acknowledgment received back which is Contd....P..19 of 25 : 20 : addressed to Pal Properties (India) Pvt. Ltd. Address is rightly mentioned as H72, Connaught Circus, New Delhi. It bears stamp and is signed by some person acknowledging the receipt of the letter. In view of these documents on record, it cannot be said that the notice was not received by the defendants. Bare denial will not serve any purpose."
38 As per Section 27 of General Clauses Act, if the notice is addressed at the correct address then the same is deemed to have been duly served/ delivered to the addressee. In the present matter also, Copy of notice, original postal receipts of speed post and courier receipts in original in support of notice of termination is on record. Public Relation Inspector of Krishna Nagar was examined as PW2 and he had brought the speed post booking list duly certified by Post Master, Karkardooma and was marked as Ex. PW 2/A. He deposed on the basis of the same that the document for destination M/s. Tecon Project, NOIDA i.e. defendant herein was booked under speed post no. ED 303784420IN on 27.05.2011 and document was duly dispatched from their office for delivery to the destination office. Similar is the deposition of the PW3 Public Relation Inspector of Malviya Nagar Post Office and he had brought the speed post booking list duly certified by Post Master, Malviya Nagar and was marked as Ex. PW 3/A. He deposed on the basis of the same that the document was booked under speed post no. ED 944954703IL dated 11.05.2011 and document was duly dispatched from their office for delivery to the destination office. Similar was the deposition of PW4 with respect to the same document. PW5 the dealing Contd....P..20 of 25 : 21 : assistance of court cases, SPC brought the report dated 24.11.12 alongwith true photocopy of delivery slip of speed post document mentioned at serial no.14 in the document running into two pages which was marked as Ex. PW5/A. Thus the defendant was duly served stands corroborated by testimony of PW2 to PW5.
39 Thus in view of law laid down in above cited judgments, defendant was duly served with notice of termination and the tenancy came to an end after receipt of notice of termination dated 10.05.2011 and thereafter the defendant has become unauthorized occupant of the suit property thereafter. In view of these observations, issue no.5 is decided in favour of the plaintiffs and against the defendant and it is held that tenancy has been validly terminated. Issue No.6 : Whether the plaintiff is entitled to mesne profits? Onus of this issue was on plaintiff.
40 Plaintiffs have proved service of notice of termination dated 10.05.2011. Deeming that it was served on defendant on 16.05.2011, the tenancy came to an end on 31.05.2011. The possession of the defendant thereafter became unauthorized and illegal i.e. from 1st June, 2011. The plaintiffs have relied on Clause 6 of the Lease Deed dated 14.01.2006 which provides that in case the lessee fails to deliver actual physical possession to the lessor on determination of lease, it shall be liable to pay damages @ Rs.2,600/ per day.
Contd....P..21 of 25 : 22 : Since the lease deed dated 14.01.2006 is for a period of more than one year and is unregistered, no reliance can be placed on Clause 6 of the same. 41 The Hon'ble High Court of Delhi in the case of Bakshi Sachdev (Dead) by L.R.S. v/s Concord (I), 1993 RLR 563, had held that the mesne profits or damages for use and occupation after termination of tenancy can be substantially more than the agreement. The Hon'ble Supreme Court in the case of Bhagwati Prasad v/s Chandramaul, AIR 1966 SC 735) observed that:
"Once it is held that the plaintiff is entitled to eject the defendant. It follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by direction for payment of the future mesne profits or damages."
42 Plaintiffs have not led any evidence for determining the quantum of mesne profits, however, it has been held in Vinod Khanna and Ors vs. Bakshi Sachdev (Deceased) through LRs and others, AIR 1996 DELHI 32 that for determination of mesne profits in a Suit for possession of rented premises, in cases where no evidence is led by landlord in respect of increase of rent. Judicial notice can be taken of fact of increase of rents in and around Delhi which is city of growing importance. Rent for premises in the said matter was Rs. 6000/.
Contd....P..22 of 25 : 23 : Hob'ble High Court of Delhi held that ld. Trial Court was justified in fixing compensation/ mesne profits at Rs. 10,000/ by taking judicial notice of increase in rent. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial notice in case of D. C. Oswal Vs. V. K. Subbiah, AIR 1992 SC 184. In the matter of S.Kumar Vs G.R. Kathpalia & Anr., 77(1999) DLT 266(DP) Hon'ble High Court of Delhi observed as:
"Respondent/landlord has not led any documentary evidence of the present market rent of other premises in the vicinity. However, keeping in mind the prime location of the suit premises, its proximity to community centre and commercial activity, we are of the view that a sum of Rs. 25,000/ per month would be a just and fair amount by way of damages/ mesne profits."
43 In view of the law laid down in the aforementioned judgments, I am of the considered opinion that this Court can take judicial notice of the possibility of similarly located premises fetching rent per month even in absence of any evidence being led by the plaintiff to substantiate the same. This court is of the firm view that mesne profits/damages @ Rs.90,000/ per month will serve the ends of justice. Thus issue no.6 is decided in favour of plaintiffs and against the defendant and plaintiffs are entitled to mesne profits/damages @ Rs.90,000 per month from June, 2011 to the date of handing over the vacant possession of the suit property by the defendant to the plaintiffs.
Contd....P..23 of 25 : 24 : Reliefs :
44 The present case is disposed of in favour of plaintiffs and against the defendant. Suit is decreed as follows:
(a) Decree of possession is passed in favour of plaintiffs and against the defendant and defendant is directed to handover vacant and peaceful possession of the suit property to the plaintiffs on or before 31.03.13.
(b) Decree for damages/ mesne profits for use and occupation charges is passed in favour of plaintiff and against the defendants @ Rs. 90,000/ per month from June, 2011 to the day of vacation and handing over of peaceful possession of suit property by the defendant to the plaintiffs.
45 The plaintiff has prayed for passing a decree with respect to mesne profits along with costs, pendente lite and future interest @ 18% per annum from the date of filing of the suit till realization. However, this court is not inclined to grant interest at such an exorbitant rate and is of the firm view that pendente lite interest @ 16% per annum and future interest @ 12% per annum on the quantum of mesne profits will serve the ends of justice.
Contd....P..24 of 25 : 25 : 46 Suit of the plaintiff is disposed of accordingly. Costs of the suit are also awarded in favour of the plaintiff. However, decree sheet be drawn up after the plaintiff pays the court fees of Rs.6,102/. File be consigned to record room after necessary compliance.
Dictated and announced in the open court on 27.02.2013 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 27.02.13 Contd....P..25 of 25