Delhi District Court
Mukesh Goyal vs Mayank Garg on 27 October, 2023
1
IN THE COURT OF SH. BHUPESH KUMAR: DISTRICT
JUDGE (COMMERCIAL COURTS)-05, SOUTH-EAST
DISTRICT, SAKET COURTS, NEW DELHI
CS (Comm) Nos. 1194/2022
Mukesh Goyal,
S/o Late Shri Ram Nath Goyal,
R/o A-11, Indra Enclave, Loni Road,
Ghaziabad-201102
....Plaintiff
Vs.
Mayank Garg,
S/o Nand Kishor Garg,
At property no.C-70/A,
Madanpur Khadar,
Near Sarita Vihar,
Delhi-110076
....Defendant
Date of institution : 14.12.2022
Date of final argument : 21.10.2023
Date of Judgment : 27.10.2023
JUDGMENT
1. The present suit has been filed by the plaintiff Mukesh Goyal against the defendant Mayank Garg, seeking decree for recovery of possession, arrears of rent, damages/mesne profits.
2. The brief facts of the matter as emerged from plaint are that the plaintiff has rented out the commercial shop situated at ground floor of CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 2 the property bearing no. C-70/A, Madanpur Khadar, near Sarita Vihar, New Delhi, constructed on a plot of land measuring 140 sq. Yards, including basement connected with the said shop, measuring about 65 sq. Yards (here-in-after referred as suit property) to the defendant for commercial purpose vide lease deed dated 18.05.2022 for a period of 11 months commencing from 01.05.2022 till 31.03.2023 @ Rs.25,000/- per month. It is further submitted that the plaintiff has issued legal notice under Section 106 of the Transfer of Property Act to the defendant on 29.09.2022 and terminated the tenancy of the defendant. The defendant has duly received the notice and replied the same vide reply dated 28.10.2022 by taking false defense but has not handed over the vacant peaceful physical possession of the property within 15 days i.e. 18.10.2022 from the date of receipt of notice on 03.10.2022. Hence, the defendant is in un-authorized and illegal possession of the property. It is further submitted that the defendant has paid the rents upto 30.09.2022 and has not paid due arrears of rent w.e.f. 01.10.2022 till 19.10.2022 which comes to Rs.15,000/-. It is further submitted that w.e.f. 19.10.2022, the defendant is liable to pay Rs. 35,000/- per month being illegal occupant of the property as damages/mesne profit as the property being commercial in nature can easily fetch such rent. Inter-alia, on the basis of these submissions, prayer has been made to pass decree of possession of the property in question, decree of arrears of rent of 18 days from 01.10.2022 till 18.10.2022 and decree of mesne profits/damages at the rate of Rs. 35,000/- per month.
CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 3
3. The defendant has contested the suit wherein preliminary objections have been taken to the effect that the property was rented out to the defendant in the month of March, 2012 for 20 years and when the property was rented out Rs. 20,00,000/- were paid as 'Pagri' by defendant to plaintiff. It is further submitted that as such the lock- in-period was for 20 years. It is further submitted that even the legal notice issued to the defendant under Section 106 of the Transfer of Property Act, is not a valid notice because as per law, the tenancy can be terminated from the end of the month i.e., 31.10.2022, whereas in the present matter the tenancy was terminated w.e.f 18.10.2022. It is further submitted that the plaintiff used to procure the signatures of defendant on various blank papers including blank stamp papers on the pretext of obtaining electricity connection to enhance electric load etc. It is further submitted that lease deed relied upon by the plaintiff is false and fabricated document. It is further submitted that the rate of rent is Rs. 20,000/- per month w.e.f. 01.05.2022 which the defendant is paying regularly. It is denied that the monthly rent was Rs. 25,000/- per month.
On merits, the landlord-tenant relationship was not disputed. It has been submitted that leased deed dated 18.05.2022 is false and fabricated document. It was denied that tenancy was for 11 months. It has been further submitted that defendant has invested Rs.2.0 lac in modernization of the suit property shop with wooden structures, fixtures and fittings. It is denied that the property can easily fetch rent CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 4 at the rate of Rs. 35,000/- per month. Inter alia, on the basis of these submission prayer has been made to dismiss the suit.
4. Replication to the written statement of the defendant was filed by the plaintiff, wherein, he has generally denied the averments made in the written statement and reiterated and reaffirmed the contents of the plaint.
5. Before proceeding ahead, here it is necessary to mention that the plaintiff has moved an application under Order XII Rule 6 r/w Section 151 CPC to pass judgment/decree of possession of the property on admissions in the written statement, and the said application was allowed vide order dated 17.08.2023 and decree of the possession was passed against the defendant. However, for the remaining dispute, the following issues were framed on 02.09.2023 :-
1. Whether the plaintiff is entitled for arrears of rent, as prayed for? OPP
2. Whether the plaintiff is entitled for decree of mesne profits/damages, as prayed for? OPP
3. Whether plaintiff is entitled for any interest, if so, for which period and on what rate, as prayed for? OPP
4. Relief.
6. In support of its case, the plaintiff has examined himself as PW-1 and led his evidence by way of affidavit Ex.PW1/A wherein he has deposed on the similar lines to that of the contents of the plaint CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 5 and has brought on record various documents viz. lease deed dated 18.05.2022 as Ex.PW1/1, legal notice dated 29.09.2022 alongwith postal receipts as Ex. PW1/2, Reply dated 28.10.2022 as Ex.PW1/3, Non-starter report dt. 11.11.2022 as Ex. PW1/4.
The witness was cross-examined at length by Ld. Counsel for defendant, however, his cross-examination shall be considered at the time of appreciation of evidence. PE was closed.
7. DW-1 Mr. Mayank Garg, has lead his evidence by way of affidavit Ex. DW1/A1 and made similar deposition to that of contents of the written statement. The witness has further brought on record viz. payment receipt dated 01.03.2012 as Ex.DW1/A (as this document was already on record as Ex. PW1/DA, hence, the same was read as Ex. PW1/DA), reply dated 28.10.2022 as Ex. DW1/B (this document was already on record as Ex. PW1/3. Hence, the same has been read as Ex. PW1/3), statement of account as Ex.DW1/C (the document stand de-exhibited being photocopy and is marked as Mark B), cheque dated 19.09.2022 as Mark A (this document was already on record as Ex.PW1/DB, hence, the same has been read as Ex. PW1/DB).
This witness was also cross-examined at length. However, his cross-examination shall be also considered at the time of appreciation of evidence. DE was closed.
CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 6
8. I have heard the arguments of Sh. Deepak Chauhan, Ld. Counsel for plaintiff and Sh. Shamsher Ali, Ld. Counsel for defendant besides going through the material available on record. Written submissions also filed on behalf of both parties.
9. My issue-wise findings are as under :
Issue no.1 : Whether the plaintiff is entitled for arrears of rent, as prayed for? OPP The onus to prove this issue was on the plaintiff. Ld. Counsel for plaintiff submitted that the property in question was rented out to the defendant for commercial purpose vide lease deed dated 18.05.2022 Ex.PW1/1, for 11 months from 01.05.2022 till 31.03.2023. However, the tenancy of the defendant was terminated vide termination notice dated 29.09.2022 Ex.PW1/2 vide which defendant was called upon to vacate the premises within 15 days from the receipt of the notice but the defendant has not vacated the premises. It is further submitted that the rent till month of September 2022, has already been paid but the defendant has not paid the rent for 18 days i.e. from 1.10.2022 till 18.11.2022 as by 18.10.2022 the defendant was in permissible and legal possession of the suit property as tenant. It is further submitted that the defendant was called upon to vacate the premises within 15 days from the receipt of the notice, meaning by till 18.10.2022. It is further submitted that the rate of rent is Rs. 25,000/- per month. It has been further submitted that plaintiff has examined himself as PW-1 and his testimony is fully corroborate CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 7 the contents of plaint and documents brought on record. It has been further submitted that evidence of PW-1 is fully reliable and trustworthy.
On the other hand, Ld. Counsel for defendant submitted that the defendant has taken the property on rent in the month of March, 2012 with lock-in-period of 20 years. It is further submitted that when the property was taken on rent, Rs. 20,00,000/- were paid to the plaintiff as 'Pagri' as per receipt Ex. PW1/DA. However, it is submitted that the rate of rent is Rs. 20,000/- w.e.f. 01.05.2022 and not Rs. 25,000/- as claimed by the plaintiff. It has been further submitted that defendant appeared in witness box as DW-1 and has proved the receipt as Ex. PW1/DA. During cross-examination, the plaintiff has admitted his signatures on the receipt Ex. PW1/DA. Accordingly, the lock-in- period of 20 years also stand proved which shows that plaintiff is precluded from terminating the tenancy before lock-in-period of 20 years which expire on 29.02.2032. It has been further submitted that plaintiff has failed to prove the lease deed Ex.PW1/1.
Arguments heard. Material perused.
The landlord-tenant relationship between the parties not disputed. However, both parties brought on record the documents in their favor i.e. the plaintiff has brought lease deed Ex. PW1/1 on record, whereas the defendant has brought on record the payment receipt Ex. PW1/DA, as discussed earlier.
At this juncture, the Court is required to consider what evidentiary value can be attached to these documents. First of all, the CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 8 payment receipt Ex. PW1/DA is considered. This receipt has been executed on 01.03.2012, which reflects that vide this receipt the shop in question was rented out to defendant for 20 years and 'Pagri' of Rs.20.0 lac was paid to plaintiff. The plaintiff has admitted his signature at point A on this receipt. However, the plaintiff has denied the fact of renting out the property to defendant for 20 years and receipt of payment of Rs.20.0 lac. Here for the sake of arguments, in case it is admitted that receipt Ex. PW1/DA is genuine document, the question arises if this document help the claim of defendant, in any manner. As matter of fact, the receipt Ex. PW1/DA qua which the property was rented out to defendant for 20 years. In this respect, it is found that as per provisions of Section 17(1)(d) of Registration Act, in case the property is leased out for more than one year, it is mandatory that the lease deed should be registered.
Further as per Section 49 of the Registration Act, in case document required to be registered under Section 17, is not registered it cannot be read in evidence. Reliance in this respect can be made in case, New Okhla Industrial Development Authority (NOIDA) vs Army Welfare Housing Organization, (2010) 9 SCC 354.
Reverting to the present matter, as discussed earlier the receipt Ex. PW1/DA is not registered, and accordingly, no reliance can be made on this document. Therefore, the contentions of Ld. Counsel for defendant that lock-in-period available to defendant was for 20 years in view of this receipt, is found to be without any merits.
CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 9 In respect to lease deed Ex.PW1/1, it is found that it was executed on 18.05.2022 and lease period was from 01.05.2022 till 31.03.2023 i.e. for 11 months. In view of Section 17 (1) (d) of The Registration Act, the lease deed for the period less than one year is not required to be registered.
However, the defendant has denied execution of this lease deed on the ground that plaintiff used to obtain his signatures on blank documents and stamp papers under the garb of obtaining electricity connection or for enhancing the electric load. But he has not brought on record any further material that when the plaintiff has obtained his signatures on such documents and whose presence. No independent evidence has been brought on record by defendant, in this respect. The defendant has not denied his signatures on this document.
The defendant claimed that rate of rent was Rs.20,000/-. But he has not produced any other evidence in this respect, apart from his verbal testimony. Therefore, the plea of defendant that he has not signed the lease deed Ex. PW1/1 and that rate of rent was Rs.20,000/- is found to be vague and without any basis.
In the light of this discussion, it is found that plaintiff has proved the lease deed Ex. PW1/1 as genuine document and that rate of rent of suit property was Rs.25,000/- per month, as per lease deed Ex. PW1/1.
Under these circumstances, it is found that the plaintiff is entitled for arrears of rent from 01.10.2022 till 18.10.2022, CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 10 proportionate to the rate of rent of Rs. 25,000/- per month. This issue stands disposed off accordingly.
10. Issue no.2 : Whether the plaintiff is entitled for decree of mesne profits/damages, as prayed for? OPP The onus to prove this issue was on the plaintiff. Ld. Counsel for plaintiff submitted that in view of the notice Ex.PW1/2, Dated 29.09.2022 issued under Section 106 of Transfer of Property Act, the defendant was called upon to vacate the premises within 15 days from date of receipt of notice. It has been further submitted that notice was received by defendant on 03.10.2022, hence, tenancy stand expired on 18.10.2022. However, the defendant has not vacate the premises on 18.10.2022 till date. Hence, the possession of defendant over the property in question after 18.10.2022 becomes illegal and the defendant is unauthorized occupant of the property. It is further submitted that the prevailing rate of rent in the market rate of rent in the area is around Rs. 35,000/- and the defendant is liable to pay Rs. 35,000/- per month to the plaintiff since the day, defendant is in unauthorized possession of the property. It is submitted that even the plaintiff has not examined any witness in this respect, however, the damages/mesne profit can be granted to plaintiff. Reliance in this respect has been made in case "Basant & Co. vs. Osram India P. Ltd" 248(2018) Delhi Law Times 658 of Hon'ble Delhi High Court.
CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 11 On the other hand, Ld. Counsel for defendant submitted that the plaintiff has failed to bring on record any evidence to show that the property can easily fetch rent at the rate of Rs. 35,000/- per month. Therefore the plaintiff is not entitled for the said amount.
Heard on this score.
It is found that the plaintiff has not brought on record any independent corroborative evidence/material to prove that the property could easily fetch Rs. 35,000/- per month. The plaintiff has not examined any independent witness in this respect. However, in view of judgment in case Basant & Co. vs. Osram India P. Ltd (Supra), the damages/mesne profit can be granted in these eventualities.
The property in question is situated in the area of Madanpur Khadar, near Sarita Vihar, New Delhi. Considering the entire facs and circumstances of the matter, it is found that it would be justified to meet the ends of justice, if damages/mesne profit to the tune of 10% per annum increase, is granted, on the rent of Rs.25,000/- from 18.10.2022 till its realization. This issue stand decided accordingly.
11. Issue no.3 : Whether plaintiff is entitled for any interest, if so, for which period and on what rate, as prayed for? OPP The onus to prove this issue was on the plaintiff. The plaintiff has claimed 12 % per annum interest on the arrears of rent and the damages from the due date. However, the same is found to be on higher side. Considering the entire facts and CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023 12 circumstances of the matter, it is found that interest @ 8% per annum would be sufficient to meet the ends of justice on the due arrears of rent and mesne profits till its realization.
12. Relief The suit of the plaintiff is decreed against the defendant qua arrears of rent from 01.10.2022 till 18.10.2022, proportionate to the rate of rent of Rs. 25,000/- per month and 10% per annual enhanced as damages on the rate of rent Rs.25,000/- w.e.f. 19.10.2022 till its realization along with interest at the rate of 8% per annum. Further, the defendant is also directed to pay the cost of Rs. 20,000/- to the plaintiff which includes court fee cum pleader's fee and other miscellaneous charges.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court today on this 27th day of October 2023.
(Bhupesh Kumar) District Judge (Commercial Court)-05 South-East/Saket/New Delhi.
CS (Comm) 1194/22 Bhupesh Kumar, District Judge (Commercial)-05, S-E, Saket, New Delhi/27.10.2023