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[Cites 26, Cited by 0]

Delhi District Court

Smt. Satinder Kaur vs Ms. Dwarka Air Taxi Service Ltd on 28 August, 2012

                                                                                                    1

          IN THE COURT OF SHRI MAN MOHAN SHARMA 
           ADDITIONAL DISTRICT JUDGE (CENTRAL)­1 
                  TIS HAZARI COURTS, DELHI.

C S no.: 408/09
Unique case ID no. : 02401C0065042003


          Sh. Sulakhan Singh 
          (deceased now represented by)
1.        Smt. Satinder Kaur
          W/o S. Manmohan Singh
          E­1/1, Vasant Vihar,
          New Delhi­110 057
2.        Smt. Upinder Kaur
          W/o S. Harbhajan Singh
          R/o 381, Shady Dale Dr.
          Baton Rouge
          LA­70815. U.S.A.
                                                                                    ...Plaintiffs
                                                 VERSUS

1.       Ms. Dwarka Air Taxi Service Ltd.
         14, Vasant Marg, 
         Vasant Vihar
         New Delhi­110 057
         Also at: E­1/1, Vasant Vihar, New Delhi­110 057


CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors.       Page 1 of 53
                                                                                               2

2.       Sh. Mahender Kumar Jaisinghani
         (Managing  Director of Defendant no.1)
         M/s Dwarka Air Taxi Service Ltd.
         E­1/1, Vasant Vihar,
         New Delhi­110 057

3.        Smt. Kavita Jaisinghani
          (Director of Defendant no.1)
          M/s Dwarka Air Taxi Service Ltd.
          E­1/1, Vasant Vihar, 
          New Delhi­110 057
                                                                            .....Defendants

Date of institution                                    : 08.09.2003
Date of reserving judgment                             : 24.08.2012
Date of pronouncement                                  : 28.08.2012

                                        Suit for ejectment/possession;  recovery of 
                                                  arrears of rent and mesne profits 
JUDGMENT:

­ Pleadings 1 In this suit for ejectment/possession, recovery of arrears of rent and future damages for use and occupation/mesne profits against the defendants, the facts as propounded by the plaintiff are:­

(i). Plaintiff is the owner/landlord of premises no. E­1/1, CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 2 of 53 3 Vasant Vihar, New Delhi­110 057 and is residing in the rear portion of the said premises. Vide lease agreement dated 01.01.1999 entered into between plaintiff and defendant no. 1, the front portion of premises no. E­1/1, Vasant Vihar, New Delhi­110057, comprising of drawing­cum­dinning room, three bed rooms, two baths/toilets, one kitchen and front lawn were let out to defendant no.1 for residential purposes and for personal residence of defendants no. 2 and 3, who are husband and wife and are directors of defendant no.1, @ the monthly rent of Rs.20,000/­ exclusive of electricity and water charges. Since the inception of tenancy, the demised premises are being used by defendant nos. 2 and 3 for their residential purposes only.

(ii). The tenancy of defendant no.1 was according to English calender month, being monthly tenancy commencing from 1st day of each English calender and ending with the last day of the same month.

(iii). The monthly rent was agreed to be paid in advance on or CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 3 of 53 4 before 1st day of every English calender month by account payee cheque in favour of the plaintiff. However, initially rent of Rs.20,000/­ was paid in January, 1999, then in February, 1999 and again in March, 1999, but thereafter a consolidated cheque of Rs.60,000/­ used to be paid towards three months' rent and the same was invariably issued by defendant no.3. However, defendant no.3 or even defendant no.2 had no concern with the tenancy of the demised premises, which stood in the name of defendant no. 1 only.

(iv). Initially the defendant no. 1 took the demised premises for a period of two years and on request extension was granted for yet another one year, which period has even otherwise expired on 01.01.2002. Thereafter, several demands were made by the plaintiff for vacation of the demised premises, but despite promises and solemn assurances to vacate the premises, the words were not kept.

(v). The plaintiff did not want to keep defendant no. 1 as his CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 4 of 53 5 tenant any longer, thereby terminated its tenancy by the end of 31.08.2003, giving 15 clear days notice ending with the end of its tenancy month. It was further emphasized upon the defendant no.1 that if according to it, tenancy started from any other date then even the same was being terminated by giving 15 clear days notice, terminating the tenancy by the end of month i.e. in the month of August, 2003. The aforesaid notice dated 02.07.2003 was sent through different modes on all the defendants. Firstly it was sent through Registered A/D post on 03.07.2003, which the defendants avoided to take delivery intentionally and the same was thus returned back. Then the said notice were sent through speed post acknowledgement due on 17.07.2003, but the same were also got returned by the defendants and deliberately did not receive the same. Simultaneously, the said notices were sent through courier on 17.07.2003, which also met the same fate and were got returned by the defendants. Again, the notices were sent under certificate of posting CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 5 of 53 6 on 23.07.2003 to all the defendants, which indeed were received by them and had not come back undelivered. By way of abundant precaution, the notices were tendered to all the defendants for service through Notary Public at the conspicuous part of the demised premises. However, the notices sent by registered A/D post to defendant no.1 at its 14, Vasant Marg, Vasant Vihar, New Delhi address was duly delivered to the addressee as per the certificate of Postal Authorities. Notice to quit dated 02.07.2003 was thus duly served and received by the defendants in the month of July, 2003.

(vi). In the said notice, it was further made clear that certain cheques issued by defendant no. 3 from her account did not create any tenancy right in her favour, as the tenancy was in the name of defendant no.1 alone and it was further made clear that should defendant no. 2 or defendant no.3 ever considered themselves as tenant of the demised premises then also their alleged tenancy was being terminated through notice dated 02.07.2003 in the CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 6 of 53 7 manner stated therein.

(vii). Cumulative efforts of the said notice to quit dated 02.07.2003 was to call upon the defendants to vacate the demised premises and handover vacant and peaceful possession of the same to the plaintiff by the close of 31.08.2003 or by such other day on which according to them the alleged tenancy month came to an end in the month of August, 2003. Since, the defendants have not complied with the said notice and are illegally and unauthorizedly occupying the premises.

(viii). Defendant no. 1 has paid rent up to end of June 2003.

Rent for the month of July 2003 & August, 2003 has not been paid. Damages for use and occupation for the month of September, 2003 are also due from defendant no.1. Rent for two months (July and August, 2003) amounting to Rs.40,000/­ and damages for the month of September amounting to Rs.20,000/­ aggregating Rs.60,000/­ are also being claimed in the suit.

(ix). In the said notice to quit dated 02.07.2003 it as made CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 7 of 53 8 ample clear that the non compliance of the said notice would entail levy of damages/mesne profits for use and occupation of the premises at the rate of Rs.3,000/­ per day from the date of termination of tenancy till actual vacation of the premises. Damages of Rs.20,000/­ for the month of September, 2003 are tentative, subject to final decision of damages in the suit.

2. Notice of the suit was duly served upon the defendants. They opted to contest the suit.

3. The defendant nos. 1 and 2 have filed their joint written statement. They have taken preliminary objections of suit not maintainable for want of cause of action; suit not properly valued; defendants being lawful tenants; plaintiff has accepted rent from defendant no.3 up to September, 2003, therefore the notice of termination of tenancy not surviving or waived; notice not served upon defendants; plaintiff is not the owner of the suit property.

4. On merits, the defendant nos. 1 and 2 denied the material averments of the plaint, on which the plaintiff has propounded his cause of action, in terms of the preliminary objections as above. It is CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 8 of 53 9 further stated that although a lease agreement was signed but the same was never acted upon as the rent was always paid by defendant no.3; a portion of suit property is being used for residential purpose and the defendant no.2 is also running his business in the name of defendant no.1 and the defendant no. 3 is using one room for running her boutique. The tenancy is monthly tenancy. The tenancy was never terminated. The claim of damages is not maintainable and without any basis. The answering defendants are joint tenants. It is prayed that the suit be dismissed.

5. The defendant no. 3 has taken the preliminary objections that the plaintiffs are not the owner of the suit property; no notice of termination of tenancy was ever served; suit is not maintainable as rent for subsequent months has been paid and duly acknowledged by the landlord; the suit has been filed at the instance of Sh. Manmohan Singh, son­in­law of the deceased Sh. Sulakhan Singh and not out of free will of the plaintiff; suit has not been properly valued; suit is not maintainable and need to be amended after the death of Sh. Sulakhan Singh.

6. On merits, it is submitted by the defendant no. 3 that the suit CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 9 of 53 10 property was let out to defendant no.3. However, an agreement was executed between Sh. Sulakhan Singh and the defendant no.1 but it was never acted upon. The rent has always been paid by the defendant no. 3 to the plaintiff by account payee cheques. In the absence of a valid lease deed it cannot be said that same has expired by efflux of time. The defendant no. 3 is the lawful tenant and has been paying the rent and cleared the same up to September, 2003. There is no question of termination of tenancy or service of notice or liability for any damages/mesne profits.

7. The plaintiff filed his replication to the respective written statement and denied the averments of the written statements and reiterated the averments of the plaint.

Issues

8. With the available pleadings the following issues have been framed vide minutes of proceedings dated 16.08.2004. One additional issues as issue no. 3(a) has also been framed vide order dated 07.04.2005:­

1. Whether the suit is without cause of action? OPD

2. Whether the suit is not properly valued for CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 10 of 53 11 the purpose of court of court fees and jurisdiction? OPD

3. Whether defendants no. 1 and 2 are lawful tenants alongwith defendant no.3 in respect of the suit property. OPD 3 (a). Whether the defendant no. 3 is the only tenant of the plaintiff in her individual capacity? OPD

4. Whether the notice dated 2.7.03 was not served on the defendants? OPD

5. Whether the suit is not maintainable in the present form? OPD

6. Whether the suit is not maintainable in respect of defendant no.3 as the plaintiff accepted the rent from her after a period up to September 2002? OPD

7. Whether the plaintiff is entitled to a decree of possession as prayed for? OPP

8. Whether the plaintiff is entitled to a decree of amount on account of arrears of rent/damages as prayed for? OPP

9. Whether the plaintiff is entitled to a decree of amount on account of amounts spent on service of notice to quit? OPP

10. Whether the plaintiff is entitled to a monthly rent at the rate of Rs.20,000/­ pendentelite? OPP

11. Whether the plaintiff is entitled to interest on the amount of damages, if so, at what rate? CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 11 of 53 12 OPP

12. Relief.

9. The plaintiff has examined Shri Manmohan Singh as PW­1, who has tendered the documents, Death Certificate of Sh. Sulakhan Singh as Ex.PW1/1, Copy of General Power of Attorney as Ex.PW1/2, another Power of Attorney as Ex.PW1/3, Rent Agreement as Ex.PW1/4, Quit notice dated 02.07.2003 as Ex.PW1/5, original postal receipts as Ex.PW1/6 to Ex.PW1/9, returned registered notice as Ex.PW1/10 to Ex. PW1/12, copy of non delivery registered letter are as Ex.PW1/13 and Ex.PW1/14, Postal receipts as Ex.PW1/15 to Ex.PW1/18 and returned envelopes as Ex.PW1/19 to Ex. PW1/22, courier receipts as Ex.PW1/23 to Ex. PW1/26, returned envelope as Ex.PW1/27 to Ex.PW1/30, postal receipt of UPC is Ex.PW1/31, certificate issued by Notary public dated 30.07.2003 as Ex.PW1/32, receipt issued by Notary Public is Ex.PW1/33, copy of letter dated 29.07.2003 as Ex.PW1/34, copy of Perpetual Sub Lease as Ex.PW1/35, site plan as Ex.PW1/36, copy of registered Will as Ex. PW1/37, original returned envelope as Ex.PW1/38, A cheque as Ex.PW1/39 and copy of letter dated 12.07.2004 as Ex.PW1/40 and CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 12 of 53 13 some of the rent agreement which are marked as A, B. B and D. Shri Lalu Ram Meena as PW2 who tendered copy of order whereby the record was weeded as Ex.PW2/1; Shri Jagdish Prasad Kaul as PW3. In DE The defendant no. 2 has examined himself as DW1. The defendant no. 2 has examined herself as DW2.

10. Arguments have been addressed by Sh. V. K. Singh, ld. Counsel for plaintiff and Sh. Rajesh Bhatia, ld. Counsel for defendant no. 1 and 2. Written arguments have been filed by all the defendant no. 1 and 2 as one group by defendant no. 3 separately.

Aspect of Attorney's Evidence

11. Before adverting to the issues framed in this case, it is necessary to deal with one objection of the defendants i.e. whether the deposition of the attorney can be considered.

12. Shri Rajesh Bhatia, Ld. Counsel for the defendant no. 1 has sub­ mitted that the attorney cannot give evidence in place of principal. Sh. Manmohan Singh who has entered into the witness box as PW­1 has no right to depose in place of the principal i.e. the daughters of the de­ ceased plaintiff. It is the admitted case of this witness has that he has not seen the execution of the rent agreement; it dies not bear his signa­ CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 13 of 53 14 tures; it was not executed in his presence; he has stated about the ten­ ancy on the basis of what was told to him by the deceased plaintiff; he has no personal knowledge about the case; he was not present when the negotiations for tenancy were going on; he was away to Bombay at the relevant time.

13. On this aspect the judgment of Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha (2010) 10 SCC 512 has been relied upon by the defendants.

14. Ld. Counsel for the plaintiff has argued that an attorney can ap­ pear in evidence in his own right and can depose as to the facts in his personal knowledge. Hence, his evidence is not hit being the attorney. The case of Sparrow Agro Forest Ltd. Vs. Baby Jasmeet Kaur has been relied upon.

15. Giving evidence is a sacrosanct duty. It is a function which cannot be delegated, else it will attract the doctrine of hearsay. This position of law has been crystallized in section 60 of the Evidence Act, 1872 as under:­ "60. Oral evidence must be direct --Oral evidence must, in all cases whatever, be direct; that is to say

--

CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 14 of 53

15 if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds :

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or ex­ pense which the Court regards as unreasonable :
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, re­ quire the production of such material thing for its inspection."
CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 15 of 53 16
16. In the case relied upon by the Ld. Counsel for the defendant nos. 1 and 2 Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha (2010) 10 SCC 512 it has been held as under:­
12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowl­ edge of the transaction can only give formal evi­ dence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or han­ dled any transactions, in pursuance of the power of attorney granted by the principal, he may be exam­ ined as a witness to prove those acts or transac­ tions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be exam­ ined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evi­ dence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 16 of 53 17
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessari­ ly the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conduct­ ed through a particular attorney holder, the princi­ pal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his ten­ ant, on the ground of his 'bona fide' need and a CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 17 of 53 18 purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked af­ ter by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclu­ sively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclu­ sively managing the affairs of a son/daughter liv­ ing abroad."

17. In Om Parkash vs. Inder Kaur 156 (2009) DLT 292 (DB) it has been held that any person is a good witness if he deposes about facts where are in his personal knowledge, whether he is father or at­ torney or a son or a neighbour; what law requires is that deposition must be of facts within knowledge of witness to which witness is priv­ ity.

18. Other relevant cases on the above aspect are Capt. Praveen Davar (Retd) vs. Harvansh Kumari 2010 (119) DRJ 560; Satnam Channan vs. Darshan Singh 2006 (2) RCR (Civil) 615 (P&H) and CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 18 of 53 19 Vinay Jude Dias vs. Renajeet Kaur AIR 2009 Delhi 70.

19. The ratio of law as propounded in the above judgments is that the sine qua non for a person to give evidence is that he must have had the occasion to witness certain facts. If he has so witnessed and deposes about such facts, his evidence is not hit by the fact whether he is an Attorney or not.

20. In this view of the law, the question whether the evidence of PW1 is hit by the doctrine of 'hearsay' or not has to be tested on the altar of his being privy to the facts or not. This is essentially a question of fact.

21. When the above question has been dealt with as above, it is also necessary to state that it is not necessary for any party to necessarily enter into the witness box to prove its case. A case may have a cluster of facts which are required to be established. These facts may be proved by the admissions of the adversary either in pleadings or in documents or even in cross examination; by documents or by bringing persons who are witnesses to the signatories to the execution of any document(s); by party itself entering into the witness box; by presumptions of law or facts; by adverse inferences etc. CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 19 of 53 20

22. Thus is not always incumbent upon a party to enter the witness box, if the facts can be proved by other evidences, and in such an eventuality non­appearance of a party into the witness box cannot be taken as a circumstance against it. However, if certain facts are within the personal and especial knowledge of a party, and if it shies away from entering into the witness box, it can be taken as a circumstance against it.

23. The outcome or result of a case is an aggregation of the entire facts coupled with the interpretation of law. Hon'ble High Court of Delhi in Kerala Agro Industries Corporation Limited vs. Beta Engineers 188 (2012) DLT 373 has been held that "...a civil case is decided on balance of probabilities. A civil court puts all the evidence which have been led in a melting pot so as to determine the final picture which has to emerge...".

24. Thus speaking in a scientific way, the judgment delivery process consists of what different points a party is required to prove to get a verdict in its favour; what evidence on each point has been led by the adversary parties; what weight is to be attached to such evidence and which version is more probable and finally taking a CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 20 of 53 21 collective assessment what is the final outcome. I am stating this, as this exercise has been required by the rival pleadings set up in the case and the above method has been adopted by me in reaching the final judgment.

25. Now I propose to deal with the issues framed in this case. Issue No. 1 Whether the suit is without cause of action?

26. The phrase 'cause of action' is the right to sue. It is the legal right of one person and corresponding legal obligation of the adversary. A cause of action is thus a bundle of facts and it constitutes those bare and necessary facts which the propounder must establish in order to succeed in his claim, even in the cases which are undefended.

27. Thus 'cause of action' is a phrase which means a cluster or bunch of facts and circumstances wherein a right is claimed by the propounder; a corresponding legal obligation is claimed against the adversary; a violation/denial of right is alleged and the aggrieved party approaches the Court for vindication of the right claimed.

28. This is a suit for possession on termination of lease, claim of arrears of rent and damages for use and occupation. Thus what is to be proved in a case of ejectment has been laid in Sunila Wadhawan vs. CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 21 of 53 22 Silver Smith India Ltd. {CM (M) No. 1042 of 2008 decided on 26.03. 2010} by the Hon'ble High Court of Delhi as under:­ "Para 8: This Court and the Supreme Court have time and again emphasized that the Courts must do meaningful reading of the pleadings and the grain has to be sifted from chaff. Today in pleadings many irrelevant and unnecessary things are stated which have no legal basis. The Courts must be able to sift the material part of the pleadings necessary for disposal of an application. It is not the duty of the Courts to simply reproduce the pleadings of the two parties in its order, and without analyzing the facts, in last paragraph write that in his/ her opinion, no ground in the application was not made. The trial Court in this case had done the same thing. She did give a list of judgments referred but unfortunately she had not bothered to refer to the relevant judgments and see their applicability. In such an application, the Court has to look into only three facts; (i) whether the relationship of landlord and tenant is admitted; (ii) whether the lease has been terminated by serving a notice or not; and (iii) and whether the rent was above Rs. 3,500/­ or not. The Court must keep in mind that Section 116 of Evidence Act creates and estoppel against the tenant from challenging the ownership of the landlord/ landlady. Where the CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 22 of 53 23 relationship of landlord and tenant is admitted, the averments challenging ownership of the landlord are not to be looked into."

29. Thus, in the suit of the plaintiff, it is the obligation of the plaintiff to establish the existence of following:­

(i). The relationship of landlord and tenant;

(ii). Determination of lease by serving a notice

(iii). Whether the rent was above Rs. 3,500/­ or not else the bar of jurisdiction under section 50 of the Delhi Rent Control Act may be attracted.

(iv). The claim of damages for use and occupation is incidental to the claim of ejectement. If the defendant has been proved to be in unauthorized possession, then as a logical corollary, he shall be liable for restitution so that the plaintiff is adequately compensated for the damages suffered by him.

30. The plaintiff has averred the facts akin to the above in his plaint. These factual aspects have been disputed by the defendants. The dispute by the adversary does not take away the cause of action as for determining a cause of action is disclosed or not, only the averments of CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 23 of 53 24 the plaint have to be seen and taken at the face value. The opposition of the various factual aspects by the defendants, only raises an issue(s) but cannot be taken to mean that there exists no cause of action. Whether the plaintiff is ultimately able to establish his case or not is a different matter altogether.

31. Thus the plaint taken as it is, discloses a cause of action and cannot be said to be devoid of the cause of action.

32. Hence the finding on this issue is returned against the defendants and in favour of the plaintiff.

Issue no.2 Whether the suit is not properly valued for the purpose of court of court fees and jurisdiction?

33. This is a mixed question of law and facts.

34. The court fee for a relief of ejectment is payable in accordance with Section 7 of the Court Fee Act at the amount of annual rent. As per the plaint the rent is Rs.20,000/­ per month and therefore the suit valuation for this purpose is Rs.2,40,000/­. On this aspect the suit has been appropriately valued.

35. Another relief claimed is for recovery of the arrears of rent in the sum of Rs. 60,000/­. Thus the same has been appropriately valued CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 24 of 53 25 at ad­valorum. Rs. 3000/­ has been claimed on account of service of notice etc. which has also been valued at ad­valorum.

36. The future mesne profits have been claimed to be as determined by the Court and since the quantum of same can only crystallize when the suit is finally disposed of, the same has been valued at Rs. 200/­ and the Court Fee on the same is payable when the same are determined; at the value so determined and for the total period of determination. For this relief, if granted, the plaintiff shall be liable to pay the ad­valorum court fee in accordance with the section 11 of the Court Fee Act, 1870 which reads as under:­ "11. Procedure in suits for mesne profits or ac­ count when amount decreed exceeds amount claimed. -- In suits for mesne profits or for im­ moveable property and mesne profits, or for an ac­ count, if the profits or amount decreed are or is in excess of the profits claimed or the amount at which the plaintiff valued the relief sought, the de­ cree shall not be executed until the difference be­ tween the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount so decreed shall have been paid to the proper officer.

CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 25 of 53 26 Where the amount of mesne profits is left to be as­ certained in the course of the execution of the de­ cree, if the profits so ascertained exceed the profits claimed, the further execution of the decree shall be stayed until the difference between the fee actu­ ally paid and the fee which would have been payable had the suit comprised the whole of the profits so ascertained is paid. If the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed."

37. Hence the finding on this issue is returned against the defendants and in favour of the plaintiff.

Issue no. 3. Whether defendant nos. 1 and 2 are lawful tenants alongwith defendant no.3 in respect of the suit property. OPD & Issue no. 3(a) Whether the defendant no. 3 is the only tenant of the plaintiff in her individual capacity? OPD

38. The case of the plaintiff that the defendant no. 1 had been inducted as a tenant and the agreement has been signed by the defendant no. 2, being one of the directors of the defendant no. 1. Per contra, the case as set up by the defendants is that although a lease agreement was signed but the same was never acted upon as the rent CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 26 of 53 27 was always paid by defendant no. 3.

39. Ld. Counsel for the defendant no. 1 and 2 has argued that the plaintiff has failed to prove the lease deed dated 01.01.1999 purported to have been executed between the plaintiff and defendant nos. 1 and

2. The circumstances show that the lease deed is only a piece of paper. The PW­1 has admitted that the rent has always been paid through cheque; the cheque has been signed by defendant no.3; the defendant nos. 1 and 2 never issued any cheque towards rent and that the cheques issued by defendant no. 3 were duly encashed. The plaintiff could not placed on record any evidence to show that the payment of rent has been made by defendant nos. 1 and 2. The various terms of the lease agreement like payment of security have not been acted upon which shows that the same was only a piece of paper. No connection between the defendant no. 1 and 3 has been established on record by the plaintiff. The defendant nos. 2 and 3 have been impleaded as directors of defendant no. 1 and not in their individual capacity.

40. Ld. Counsel for the plaintiff has argued that when there is documentary evidence in form a lease agreement, the oral evidence of the defendants carry no value in the eyes of law. CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 27 of 53 28

41. The Lease Agreement is Ex. PW1/4. The defendants have raised objections to its admissibility in evidence. My Ld. Predecessor has decided vide order dated 07.04.2005 that the same can be looked into for collateral purposes. The lease deed was impounded for deficiency of stamp duty and the plaintiff had been directed to pay the deficient stamp duty. On 05.05.2005 the payment of stamp duty has been reported.

42. The onus of these issues have been on the defendants. It is for them to prove the necessary facts to establish the same.

43. The execution of the Ex. PW1/4 is not in dispute. The fact which is propounded by defendants is that it was not acted upon. It is also propounded by the defendants is that the rent had always been paid by the defendant no. 3 by cheque from her bank account.

44. It is admitted by the PW1 that Ex. PW1/4 was not executed between the parties in his presence. He was admittedly not a party to the negotiations for creation of the lease. He also states that he was so told by the plaintiff. The witness has been asked about the extension of the lease agreement Ex. PW1/4 and he has stated that the factum of extension has been mentioned at Point 'A' which has been done in his CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 28 of 53 29 presence. No suggestion to the contrary has been given to the witness PW1. Thus the execution of portion at Point 'A' under the plaintiff and the defendant no. 1 is not a disputed fact.

45. PW1 has admitted in his cross examination that the rent was always paid through cheque and that the said cheques were signed by the defendant no. 3. PW1 has also stated in his cross examination that the deceased plaintiff has not made any objection or demur to the same; the deceased plaintiff had not issued any notice on this point to the defendants. PW1 also stated that it might be possible that all cheques towards rent could have been from the personal account of the defendant no. 3 and he volunteered to state that the plaintiff had no reason to doubt, the defendant no. 3 being the director of the firm. PW1 also admitted that at no point of time, the rent was paid from the account of the defendant no. 1.

46. The witness DW1 in his cross examination states that his signatures on the last page of Ex. PW1/4 appear to be forged. He has stated that his signatures at Point A were not appended in the presence of Shri Manmohan Singh.

47. The defendants have taken a stand that the defendant no. 3 is CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 29 of 53 30 not the director of the defendant no. 1, but they have not proved any document to establish the same. Books of accounts or ITRs of any of the defendants have not been produced or proved. The averments of the defendants as to the tenancy vis­à­vis the defendant no. 3 is based on their oral statement as well as the factum of tendering of rent from the bank account of the defendant no. 3.

48. Now a look at the preponderance of probabilities. The plaintiff has entertained the impression that the defendant no. 3 is one of the directors of the defendant no. 1, as this was ostensibly so represented. On the other hand, the defendants had taken the plaintiff to be owner of the suit property, though they did not verify his title and took only an objection to plaintiff's ownership of the suit property. DW1 in his cross examination admitted the plaintiff to be the owner of the suit property. Thus it is apparent that the parties took each other's respective representation, whether express or implied, as correct.

49. Court cannot lose sight of how people conduct their business and the standards so adopted are of a reasonable prudent man. A reasonable prudent man is neither over cautious nor extremely careless. The conduct of the parties has to be appreciated in this CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 30 of 53 31 context.

50. Mere non­payment of the security deposit in terms of the lease agreement Ex PW1/4 or the dishonor of the cheque of security amount, by itself, does not ipso­facto proves that the said agreement was not to be carried out. If that is the situation there is no explanation from the side of the defendants as to the endorsement appearing at 'Point A' for extension of the term of lease. There is also no explanation for the fact from the defendant as to why the parties did not enter into a written agreement, if the train had changed tracks and the tenancy was sought to be created in favour of the defendant no. 3 instead of the defendant no. 1. The accounts of the defendants or the ITRs of the defendant would have thrown the light on these aspects. However, for the reasons best known to the defendants these documents did not see the light of the day. The defendant's banked upon their oral statements only to bring home the factum of tenancy vis­à­vis the defendant no. 3. There is no reason or justification as to why the best evidence had been withheld by them from the Court.

51. Confronted with the documentary evidence produced by the plaintiff the oral and self­serving evidence of the defendants does not CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 31 of 53 32 stand at any higher pedestal. This has to be seen coupled with the fact that the initial onus has been on the defendants to establish the tenancy of the defendant no. 3.

52. One who asserts must prove viz. 'actori incumbit onus proban­ di'. The plaintiff has proved on record the lease agreement Ex. PW1/4. In this scenario, it was incumbent upon the defendants to prove that the Ex. PW1/4 was not to be acted upon and that the tenan­ cy was intended to be created in favour of the defendant no. 3. It was not for the plaintiff to prove the negative. I am supported in my view by the judgment passed by the Hon'ble Delhi High Court in UCO Bank vs. The Presiding Officer & Another 1999 LLR 1036 holding that 'burden of proving rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, for a negative is usually incapable of proof.'

53. The stand of the defendants is that the agreement between the plaintiff and the defendant no. 1 was not acted upon. It is not their stand that Ex. PW1/4 is not the said agreement. If it is not, they have not brought on record any agreement which was executed. Thus on preponderance of probabilities the agreement Ex. PW1/4 has to be CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 32 of 53 33 taken as the agreement which was originally executed between the plaintiff and the defendant no. 1. This is further corroborated by the fact of renewal as recorded at Point A, which has not been specifically denied by DW1 and DW2. PW1 has stated that the writing at Point A has been in his presence. This statement of PW1 is not hearsay, though the statement of PW1 regarding the execution of Ex. PW1/4 originally had been based on hearsay. DW1 has admitted his signa­ tures on Ex. PW1/4 but has only alleged his signatures appearing to be forged on the last page. He is not sure of forgery. Even, if it is forgery there is no evidence, what is the forgery and how it would have bene­ fitted the plaintiff and been detrimental to the defendants. Ostensibly, the plea of forgery is art for art's sake.

54. It does not appeal to reason that the plaintiff would let off the real tenant and would initiate prosecution against the person who is not the tenant. Even in cross examination the PW1 has stated that the notice of termination of tenancy was served upon the defendant no. 3 by way of abundant caution.

55. Appreciation of evidence in totality, in a meaningful manner and in the scale of preponderance of probabilities puts the case of CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 33 of 53 34 plaintiff on a higher pedestal than that of the defendants. Thus it emerges that the relationship of landlord­tenant is only vis­à­vis the plaintiff and the defendant no. 1. There is no relationship of landlord­ tenant is only vis­à­vis the plaintiff and the defendant no. 3. The above issues are answered accordingly.

Issue no 4. Whether the notice dated 2.7.03 was not served on the defendants? OPD

56. Service of notice of determination of tenancy is the sine qua non. This is the requirement of the section 106 of the Transfer of Property Act as under:­ "106. Duration of certain leases in absence of writ­ ten contract or local usage -- In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expir­ ing with the end of a year of the tenancy; and a lease of immoveable property for any other pur­ pose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 34 of 53 35 lessee, by fifteen days' notice expiring with the end of a month of the tenancy.

Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered per­ sonally to such party or to one of his family or ser­ vants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."

57. In the instant case the lease is claimed to be residential by plaintiff. The defendants have propounded that the defendant no. 2 is using a part of the premises as office and the defendant no. 3 is running a boutique in one of the room. They have not averred that such user by them is a term of the lease. However, even this plea cuts no ice and makes no difference.

58. The Transfer of Property Act envisages only two types of leases

--year to year and month to month. A lease of immoveable property for agricultural or manufacturing purposes is a lease from year to year whereas a lease of immoveable property for any other purpose is a lease from month to month. The former is terminable, on the part of CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 35 of 53 36 either of the parties by six months' notice expiring with the end of the year of the tenancy whereas the latter is terminable, on the part of either of the parties by fifteen days' notice expiring with the end of the month of the tenancy. It is not the case of defendants that their lease is for agricultural or manufacturing purposes. Thus by necessary implication the same is 'a lease for any other purpose'. As a logical corollary, it is admittedly in the latter category and thus requires 15 days notice of termination.

59. Ex. PW1/5 is the notice dated 02.07.2003 for the termination of tenancy. It is addressed to all the three defendants. The correctness of address has been admitted by the DW1 in his cross examination.

60. Whether the lease has been duly terminated is the moot question now. The termination has been conveyed by notice dated Ex. PW1/5 which is the notice dated 02.07.2003. The plaintiff has duly proved the factum of posting of notice and the circumstances and evidence on record suggest that the notice has deliberately been avoided by the defendants.

61. In the minutes of proceedings dated 05.02.2004 it has been recorded by the Court that the copies of plaint and documents have CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 36 of 53 37 been furnished to the defendants. In view of the law laid down in Jeevan Diesels & Electricals Ltd. vs. M/S Jasbir Singh Chadha (HUF) 183 (2011) DLT 712, if the service of quit notice is not admitted, the date of service of plaint and documents is deemed to be date of service of notice and the 15 days time is to be reckoned from that date.

62. In Jeevan Diesels & Electricals Ltd. vs. M/S Jasbir Singh Chadha (HUF) 183 (2011) DLT 712 the service of notice of termination of tenancy was denied by the defendant and the Hon'ble Court held that "...once the summons in the suit along with documents were served upon the appellant/tenant, the appellant/tenant would obviously have received such notice. Even if we take this date when the appellant/tenant received a copy of the notice when served with the documents in the suit, once again, the period of limitation has expired thereafter and keeping the legislative intendment of amended section 106 in view, the appellant therefore cannot argue that the tenancy is not terminated and he did not get a period of 15 days to vacate the premises...".

63. As the address of the defendants is not disputed, the CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 37 of 53 38 presumption under section 27 of the General Clauses Act, which reads as under, also comes to the aid of the plaintiff:­ "27. Meaning of service by post-- Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre­paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

64. Thus, seen from any corner, the service of quit notice is duly proved.

65. Accordingly, this issue is answered against the defendants and in favour of the plaintiff.

Issue no 5. Whether the suit is not maintainable in the present form? OPD

66. Ld. Counsel for the defendant no. 1 and 2 has argued that the CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 38 of 53 39 suit is not maintainable in its present form, as the defendant no. 2 and 3 have not been impleaded in the suit in their personal capacity. Thus the suit is not maintainable in the present form.

67. The defences pleaded by the defendant nos. 2 and 3 have been taken by them in their personal capacity. Thus the plea is only technical, and there has been no miscarriage of justice. In view of my findings on the preceding issues, the defendant no. 3 is not a stakeholder in the lis in her own right. Plaintiff has taken the stand that notice has been sent to her as an abundant caution.

68. There is defect in form of the suit, so as to render it ineffective or infructuous.

69. This issue is thus answered against the defendants. Issue no 6. Whether the suit is not maintainable in respect of defendant no.3 as the plaintiff accepted the rent from her after a period upto September 2002? OPD

70. The PW1 in para 21 of his affidavit PW1/A has deposed that the defendant no. 3 without the knowledge and consent of the plaintiff has on 08.07.2003 deposited a cheque of Rs. 60,000/­ in the bank account of the plaintiff jointly with his wife.

CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 39 of 53 40

71. The plaintiff has proved on record a legal notice dated 12.07.2004, Ex. PW1/40, taking exception to the deposit of a cheque on account of rent by the defendant no. 3 in the bank account of the plaintiff and his wife, sans his authority.

72. It is to be determined if the acceptance of rent by the plaintiff amounts to waiver of his rights. In this regard the judgment in Food Corporation of India Vs. Sarvshri Bal Karan Singh & Ors. 186 (2012) DLT 97 clinches the issue as under:­ "So far as the first argument on behalf of the ap­ pellant is concerned, the same is no longer res in­ tegra in as much as it has been held by the Supreme Court in the case of Sarup Singh Gupta Vs. Jagdish Singh & Ors., 128(2006)DLT 534(SC)­II (2006)CLT 16(SC)­III (2006)SLT 148=2006(4) SCC 205, that is a landlord after ter­ mination of tenancy, accepts the rent, merely by acceptance of rent a new tenancy does not come into existence, and the landlord is in fact entitled to a appropriate the amounts received towards charges for use and occupation. To the same ef­ fect are the observations of the Supreme Court in the case of Shanti Prasad Devi Vs. Shankar Maha­ to, V(2005) SLT 198­III (2005) CLT 1SCC 543, I CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 40 of 53 41 therefore reject this argument on behalf of the ap­ pellants."

48. The issue on this aspect is therefore seized by the above judg­ ment.

Issue no 7. Whether the plaintiff is entitled to a decree of possession as prayed for? OPP

49. In Satish Chand Makhan And Others vs Govardhan Das Byas & Others AIR 1984 SC 143 it has been held as under:­ "7. We have no doubt in our mind that the defendants were tenants holding over under Section 116 of the Transfer of Property Act and therefore it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month : Mulla's Transfer of Property Act, 5th Edn., p. 762."

50. While giving finding on the issue nos. 3 and 3(a) above the tenancy has been held to be between the plaintiff and the defendant no. 1. The rate of rent is admittedly Rs. 20,000/­ per month, thus not attracting the bar of the Delhi Rent Control Act. The service of notice CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 41 of 53 42 of termination of tenancy has been proved vide issue no. 4. The notice has determined the tenancy in specific terms. In Bhagabandas Agarwalla v. Bagwandass Kann & Ors. AIR 1977 S.C. 1120 it has been held that a notice to quit ought not to be construed with a view to find fault with it, but with a view to its validity. There is nothing in the notice Ex. PW1/3 which renders it ineffective. Thus this issue is also clinched.

51. Thus the wheel has come full circle. All the essential ingredients of section 106 of the Transfer of Property Act stand established.

52. The finding on this issue is returned in favour of the plaintiff. Issue no 8. Whether the plaintiff is entitled to a decree of amount on account of arrears of rent/damages as prayed for? OPP

53. As per section 2 (12) of the Code of Civil Procedure "mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made but the CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 42 of 53 43 person in wrongful possession.

54. Thus the essential ingredients of mesne profits are: ­

(i). The person must be in the wrongful possession of property; and

(ii). He must actually have received or might with ordinary diligence have received there from such profits; but

(iii). Such profits shall not include profits due to improvements made by the person in wrongful possession.

55. The plaintiff has tendered on record copies of lease agreements of neighbourhood property as mark A to mark B. These are photocopies only. In mark A the rent of the Ground Floor flat at E­2/3, Vasant Vihar, New Delhi has been shown as Rs.50,000/­ per month. In mark B the rent of house no.B­9/A, Vasant Vihar, New Delhi has been shown as Rs.75,000/­ per month. In mark C the rent of the house no. 79 Pachimi Marg, Vasant Vihar, New Delhi has been shown as Rs.50,000/­ per month. In mark D the rent of the property no. C­121, Anand Niketan, New Delhi has been shown as Rs.95,000/­ per month. Ld. Counsel for defendants has argued that these CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 43 of 53 44 documents do not prove anything and cannot be taken into consideration for the reason that the same are photocopies, originals have not been produced, the documents are neither duly stamped nor registered and therefore cannot be looked into. I accept this argument.

56. Mesne profits cannot be determined with scientific precision, mathematical exactitude or golden scale accuracy. There are hosts of factors involved which influence the rental. Thus a fair estimate can be made on the basis of some inquiry. No trial or evidence is envisaged on this aspect. The Court can take judicial notice of contemporary social­economic milieu and the relevant factors.

57. The suit property is situated in Vasant Vihar, which is a prime locality in New Delhi with proximity to Airport and Shopping Malls. It is close to the important places and business centres. It is a posh and elite area of Delhi and mostly inhabited by person in high income bracket. There is scarcity of accommodation in this area and the rental space is always at a premium. The defendants have been put to a notice and their withholding of the accommodation/suit property despite the notice is only at their own risk and peril.

56. Rentals do not remain static. They move northwards or CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 44 of 53 45 southwards depending upon the economic milieu and a host of business related factors. With the inflation/deflation, paucity/surplus of properties available for rental and host of other factors the rents are liable to witness a change. For the last about two decades the inflation is rising, the cost of construction and acquiring property is going up and there is scarcity of properties available for rental thus it is a landlord's market.

57. The rate of rent has been Rs. 20,000/­ when the quit notice has been sent on 02.07.2003. The suit has been instituted on 08.09.2003. Now were in the year 2012. Thus taking a collective assessment of the host of factors, as discussed above, even on a conservative basis an increase of rent @ 15% per annum would be a reasonable yardstick to determine the damages/mesne profits/charges for use and occupation. The rent for the preceding year shall be the base rent and the increment @ 15% per annum would be applicable on the said base rate.

58. Thus on this scale the damages/mesne profits/charges for use and occupation shall be at monthly rates as given under:­ CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 45 of 53 46

(i). From 01.10.2003 to 30.09.2004: Rs. 23,000/­

(ii). From 01.10.2004 to 30.09.2005: Rs. 26,450/­

(iii). From 01.10.2005 to 30.09.2006: Rs. 30,420/­

(iv). From 01.10.2006 to 30.09.2007: Rs. 34,980/­

(v). From 01.10.2007 to 30.09.2008: Rs. 40,230/­

(vi). From 01.10.2008 to 30.09.2009: Rs. 46,260/­

(vii). From 01.10.2009 to 30.09.2010: Rs. 53,200/­

(viii). From 01.10.2010 to 30.09.2011: Rs. 61,180/­

(ix). From 01.10.2011 onwards: Rs. 70,360/­

(x). Subsequently the above pattern will follow till the date of handing over the vacant possession of the suit property.

59. Any payment made on behalf of the defendant no. 1 pendetalite shall be liable to be adjusted.

60. This issue is answered accordingly.

Issue no 9. Whether the plaintiff is entitled to a decree of amount on account of amounts spent on service of notice to quit? OPP

61. As the charges on account of the service of notice have been occasioned due to the default of the defendants, the defendant no. 1 is also liable to pay the charges as claimed by the plaintiff, which are CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 46 of 53 47 established.

62. Thus this issue is answered accordingly. Issue no 10. Whether the plaintiff is entitled to a monthly rent at the rate of Rs.20,000/­ pendente lite? OPP

63. In view of my finding on the issue no. 8 this issue has lost its substratum.

64. This issue is answered accordingly.

Issue no 11.Whether the plaintiff is entitled to interest on the amount of damages, if so, at what rate? OPP

65. In Alok Shankar Pandey vs. Union of India AIR 2007 SC 1198 it has been held that 'interest is not a penalty or punishment, it is normal accretion on capital.'

66. In South Eastern Coalfield Ltd. vs. State of M.P. & Ors. AIR 2003 SC 4482 in which the scope of section 144 of the Code of Civil Procedure i.e. the doctrine of restitution has been discussed, it has been held that 'once the doctrine of restitution is attracted, the interest is often a normal relief given in restitution.'

67. When the plaintiff has been held entitled to damages for the CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 47 of 53 48 past, the payment must be adjusted as to be meaningful vis­à­vis the contemporary period. Courts can take judicial notice of factum of inflation. Inflation take a toll of the money thus reducing its worth. With the passage of time and with inflation the purchasing power of money decreases. Thus defendant no. 1's liability to pay interest to the plaintiff is a logical corollary.

68. If the interest is not awarded to the plaintiff it would be giving the defendants a premium for their wrongs and omissions. It would operate against the doctrine of restitution.

69. It is the sacrosanct duty of the Court to balance the rights of the parties and while considering rate of interest a pragmatic approach is the raison d'etre. The rate of interest must be commensurate with the contemporary economic milieu. The concept of 'opportunity cost' i.e. the cost of next best alternative as prevalent in economics can be used as a handy tool. What the money is other wise capable of earning in the other alternative investment avenues is a fairly good yardstick. Other important factor to be kept in mind is that interest awarded should not be too high so as to become punitive for defendant and should not be too low so as to create a vested benefit for the defendant CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 48 of 53 49 by delaying the payment to the plaintiff and arbitrage by earning higher interest by deploying his money other havens.

70. In my view, taking stock of the rate of interest offered by the banks, Prime Lending Rates prevalent in the banking industry and also considering the element of risk involved when the payment is struck up for a long time that too with a private party and other attendant trade risks, simple interest @ 12% per annum, pendetalite and future, appears to be just and proper in the facts and circumstances of the case.

71. This issue is answered in favour of the plaintiff accordingly.

Issue no 12. Relief

72. In view of the findings on the above issues, the suit of the plaintiff is decreed as under:­

i) A decree for possession is passed in favour of the plaintiff and against the defendant no. 1 thereby directing the defendant no. 1, its directors, assigns, administrators etc. to handover and deliver the actual, physical, CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 49 of 53 50 vacant and peaceful possession of the suit property the front portion of premises no.

E­1/1, Vasant Vihar, New Delhi­110057, comprising of drawing­cum­dinning room, three bed rooms, two baths/toilets, one kitchen and front lawn, as shown in red in site plan Ex. PW1/36, to the LRs of the plaintiff.

ii) The suit of the plaintiff is decreed in the sum of Rs. 60,000/­ against the defendant no. 1 for the arrears of rent from 01.07.2003 to 30.09.2003.

iii) The suit of the plaintiff is decreed in the sum of Rs. 3,000/­ against the defendant no. 1 towards the cost of service of notice.

iv) The damages for use and occupation charges/mesne profits shall be payable at the CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 50 of 53 51 hereinafter mentioned rates by and on behalf of the defendant no. 1 to the plaintiff viz. from 01.10.2003 to 30.09.2004 @ Rs.

23,000/­ per month; from 01.10.2004 to 30.09.2005 @ Rs. 26,450/­ per month; from 01.10.2005 to 30.09.2006 @ Rs. 30,420/­ per month; from 01.10.2006 to 30.09.2007@ Rs.

34,980/­ per month; from 01.10.2007 to 30.09.2008 @ Rs. 40,230/­ per month;

from 01.10.2008 to 30.09.2009 @ Rs. 46,260/­ per month; from 01.10.2009 to 30.09.2010 @ Rs. 53,200/­ per month; from 01.10.2010 to 30.09.2011@ Rs. 61,180/­ per month; from 01.10.2011 onwards @ Rs.

70,360/­ per month and subsequently the above pattern will follow till the date of handing over the vacant possession of the CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 51 of 53 52 suit property by the defendants to the plaintiff.

(v). The plaintiff shall adjust any amount paid towards rent/damages on behalf of the defendant no. 1 during the above said period from the total rent, damages/use and occupation charges awarded.

(vi). The plaintiff is also awarded pendetalite an future interest @12% per annum on the above arrears of rent as well as mesne profits/damages for use and occupation from the date of institution of suit till the date of realization. The interest shall be calculated for various payments of use and occupation charges/mesne profits from the date of each amount becoming due respectively till the realization of the amount.

CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 52 of 53 53

(vii). Cost of the suit is also awarded in favour of the plaintiff and against the defendants.

73. The plaintiff shall be liable to pay the Court Fee on the consolidated value of the damages awarded in above terms as well as the interest which has accrued till the date of decree. The plaintiff is directed to pay the deficient Court fee within 30 days from today and thereafter the decree shall be drawn.

74. File, after necessary compliance be consigned to the Records Room.

Announced in the Open Court On this 28th day of August 2012 (MAN MOHAN SHARMA) ADJ (Central)­01, Delhi CS408/2009 Sulakhan Singh vs. Dwarka Air Taxi Services Ltd. & Ors. Page 53 of 53