Delhi District Court
Sh. Pawan Kumar Kejriwal vs Kendriya Hindi Shikshan Mandal on 24 September, 2021
IN THE COURT OF MS. SUNENA SHARMA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS no.59389 OF 2016
Date of Institution:01.07.2013
Arguments concluded : 15.09.2021
Date of decision :24.09.2021
Sh. Pawan Kumar Kejriwal
s/o Sh. P.R Kejriwal
r/o R-15, Nehru Enclave (Kalkaji)
New Delhi-110019
............. Plaintiff
VERSUS
1. Kendriya Hindi Shikshan Mandal
(KHSM) Agra
Government of India under HRD Ministry
Through its authorized regional director
B-26/A, Qutub Institutional Area, New Delhi
And also at
Kendriya Hindi Shikshan Mandal
Through its Director Hindi Sansthan Marg
Agra, UP
2. Union of India
Through its secretary
Ministry of Human Resources Development
Shastri Bhawan, New Delhi.
............... Defendants
Digitally signed by
SUNENA SUNENA SHARMA
SHARMA Date: 2021.09.24
04:52:05 +0530
CS no.59389 of 2016
PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 1 of 20
JUDGMENT
1. Vide this judgment, I shall dispose of the suit filed by the plaintiff against defendants for seeking recovery of Rs.27,50,000/- (twenty seven lacs fifty thousand) alongwith pendentelite and future interest @18% per annum w.e.f 01.04.2010 till the actual date of payment.
2. Tersely put the facts of the plaintiff‟s case are that plaintiff is the lawful owner of the entire built up property bearing no.R-12, situated at Nehru Enclave (Kalkaji), New Delhi-110019 (hereinafter referred as „suit property‟). Defendants approached the plaintiff to let out the suit property to them and plaintiff agreed to said proposal. On 07.07.2006, a lease deed was executed between plaintiff and defendant no.1 i.e.Kendriya Hindi Shiksha Mandal, Agra which is an institute under the HRD Ministry of the defendant no.2 i.e. Union of India through its authorized persons i.e. Regional Director. Accordingly, suit property was leased out to defendants for the period of two years at the monthly rent of Rs.2,30,000/- per month w.e.f 01.04.2006 to 31.03.2008 which was renewable for a further term of two years i.e. upto 31.03.2010 subject to increase of rent by 15% of the last paid rent. The said lease deed was duly registered as document no.9991 in Book no.1, vol. no.6380 on pages 85 to 94 on 07.07.2006 with the office of Sub Registrar-V, New Delhi. Lease deed was renewed after 31.03.2008 for another period of 2 years i.e.upto 31.03.2010 with 15% increase and a letter of confirmation for renewal was received by the plaintiff. It is averred that after said renewal the lease rent became Rs.2,64,500/-pm (Rs.2,30,000 + Rs.34,500) w.e.f 01.04.2008.
Digitally signed by SUNENA SUNENA SHARMA
SHARMA Date: 2021.09.24
04:52:31 +0530
CS no.59389 of 2016
PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 2 of 20
3. It is averred that on expiry of 2nd term on 31.03.2010, defendants however failed to vacate the suit property nor defendants got the same further renewed and by said conduct defendants made them liable to pay penal rent over and above last paid rent as per clause no.4(ii) of the lease deed dated 07.07.2006 which reads as under:-
"If the Lessee does not vacate the demised premised on expiry of this lease or earlier termination or the extended period thereof as the case may be, as herein before mentioned, the lessee will be bound by the terms of lease deed to pay a penal rent @ Rs.10,000/- (Rupees ten thousand only) per day which shall be over and above the rent therein reserved, till such time that the demised premises are not handed over in vacant condition to the Lesser."
4. It is stated that despite plaintiff‟s requests, letters and reminders, the suit property was vacated only on 31.12.2010. As per clause 4(ii), for the period with effect from 01.04.2010 to 31.12.2010, defendants were liable to pay Rs. 2,64,500/-pm with the penalty of Rs.10,000/- per day but the amount paid for this over stayed period was only Rs.2,64,500/-pm which was accepted by plaintiff without prejudice to his rights to claim penal rent. Plaintiff approached the defendants on various occasions with a demand for payment of penal rent of Rs.10,000/-per day for over stayed period of 275 days amounting to Rs.27,50,000/-(Rupees twenty seven lakhs fifty thousand only) but in vain.
5. After making requests and reminders to defendants, plaintiff issued a legal notice dated 30.03.2013 under section 80 CPC upon defendants to call upon them to pay aforementioned amount alongwith interest of 18% per annum within 60 days of the receipt of notice but the defendants gave a false reply to said notice in order to avoid said amount.
CS no.59389 of 2016
PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 3 of 20
Digitally signed by
SUNENA SUNENA SHARMA
SHARMA Date: 2021.09.24
04:53:11 +0530
6. The cause of action to file the present suit is stated to have arisen when the lease deed expired on 31.03.2010; when plaintiff made repeated requests to defendants to pay the penal rent for overstayed period; when plaintiff issued a legal notice under section 80 CPC to the defendants for payment of RS.27,50,000/- alongwith interest @ 18% per annum. As suit property was leased to the defendants at Delhi and defendants were also situated at Delhi falling under the territorial jurisdiction of the court, this court was stated to have been vested with the jurisdiction to try and entertain the present suit. I may mention here that suit was initially filed before Hon'ble High Court but owning to enhancement of pecuniary jurisdiction of District Courts, the same was transferred to this court on 08.09.2016. Plaintiff has valued the suit at Rs.27,75,000/-upon which requisite court fees has been paid.
7. Pursuant to the summons of the suit, defendants appeared in the matter and jointly filed their written statement wherein they denied that initial lease deed was executed between the parties on 07.07.2006. It is stated that initially the first lease deed was executed on 23.03.2004 between the plaintiff and defendant no.1 vide which suit property was leased out to defendant no.1 for a period of two years w.e.f 01.04.2004 to 31.03.2006 on the payment of rent of Rs.2,00,000/- per month subject to payment of TDS which was further renewable for further two terms of two years each i.e upto 31.03.2010 subject to increase in rent by 15% of last paid rent. It is further averred that lease deed between parties expired on 31.03.2010 by a efflux of time as the same was extended for a period of two years only w.e.f 01.04.2008 to 31.03.2010 but no fresh lease deed was executed between the parties and it was mutually agreed between the plaintiff and defendants that defendants shall vacate the premises on CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 4 of 20 Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.09.24 04:53:34 +0530 31.12.2010 and in the circumstances, the condition of two months prior notice was not applicable. It is further stated it was mutually agreed between the plaintiff and defendants that defendants shall vacate the premises on 31.12.2010 and in said facts and circumstances clause no.4 (ii) is also not attracted.
8. In written statement, it is stated that although the lease expired on 31.03.2010 but, as the newly constructed building of defendants was not ready for possession, defendants were required to retain possession for 6-8 more months and hence, defendants requested plaintiff to allow them to retain the tenanted property uptill 31.12.2010 on the same rent and same was mutually accepted by the plaintiff and he never objected to the same and when possession of suit property was handed over to plaintiff, he waived off the condition contained in clause 4 (ii) of the lease deed as per mutual agreement. Since no fresh lease deed was executed between the parties, therefore, condition of two months prior notice was also not applicable. It is denied that defendants were required to pay sum of Rs.10,000/- per day to the plaintiff besides the payment of rent of Rs.2,64,500/-pm. It is stated that in view of mutual agreement between the parties, the defendant no.1 rightly paid a sum of Rs.2,64,500/-per month for over stayed period to plaintiff which was accepted by him and he never raised any objection regarding non receipt of Rs.10,000/- per day. It is further denied that plaintiff ever approached defendants for payment of the penal rent. It is stated that defendant no.1 is not liable to pay any penal rent of Rs.10,000/- per day as plaintiff had waived off said clause in view of mutual agreement and had permitted defendants to retain the suit premises till 31.12.2020. Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.09.24 04:53:51 +0530 CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 5 of 20
9. After completion of pleadings following issues were framed on 06.07.2017:-
1. Whether the plaintiff is entitled for the recovery of Rs.27,50,000/- as prayed for? OPP
2. Whether the plaintiff is entitled for the pendentelite and future interest @ 18% per annum with effect from 01.04.2010 till the actual date of payment? OPP
3. Whether plaintiff waived off the condition mentioned in clause 4 (ii) of the lease deed dated 07.07.2006? OPD
4. Whether plaintiff has abandoned the claim of penalty @Rs.10,000/- per day? OPD
5. Relief.
10. In order to prove his case, plaintiff examined himself only as PW1. In rebuttal defendant also examined only one witness. Initially, Pramod kumar Sharma was examined as DW1 as his evidentiary affidavit was filed on record but, before said witness could tender his affidavit or cross examined in the matter, he left the service of defendants. Thereafter, defendants examined another witness Mahender Singh Rana as DW1. DW1 claimed himself to be well conversant with the facts and circumstances of the case. Careful perusal of affidavits of witnesses from both the sides shows that in their affidavits they have deposed more or less on the same line of their respective pleadings. Hence, for brevity sake, contents of their affidavits are not repeated herein. Both the witnesses were duly cross examined by respective opposite counsels and relevant part of their cross examination shall be discussed while returning findings on the issues.
11. PW1 in his affidavit relied upon numerous documents such as original lease deed dated 07.07.2006, copy of letter dated 08.04.2010, 24.03.2012, 07.04.2012, 21.04.2012, CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 6 of 20 SUNENA Digitally signed by SUNENA SHARMA SHARMA Date: 2021.09.24 04:54:08 +0530 28.04.2012,15.05.2012, 17.05.2010, 08.06.2012 written by plaintiff to Professor and Regional Director, Central institute of Hindi/defendants' counsel Sh. D.S. Mahendru, Advocate, legal notice dated 30.03.2013. Defendant's reply to plaintiff's legal notice dated 24.05.2013 has been relied upon by both the PW1 as well as DW1 in their respective affidavits.
12. However, except one document which is letter dated 17.05.2010 allegedly written by plaintiff to defendant no. 1, all other documents filed by plaintiff in support of his case were admitted by defendants by way of affidavit of admission denial of documents filed by Ms. Geeta Sharma, the then Regional Director of defendant no.1.
ISSUE NO.3 AND 4"(3) Whether plaintiff waived off the condition mentioned in clause 4 (ii) of the lease deed dated 07.07.2006? OPD (4) Whether plaintiff has abandoned the claim of penalty @Rs.10,000/- per day? OPD"
13. The aforementioned issues have been taken up first before deciding the other issues for the decision on said issues would cut short the scope of discussion on the other two issues. The onus of proving issue no. 3&4 is upon the defendants. Before adverting to respective evidences of parties, I may first refer to brief background which led to framing of above issues. As per the lease deed dated 07.07.2006 executed between plaintiff and defendant no.1, the suit property was leased out for a period of 2 years at monthly rental of Rs.2,30,000/-w.e.f 01.04.2006 to 31.03.2008 which was renewable for further term of two years i.e. upto 31.03.2010. Lease deed dated 07.07.2006 is a registered document and same is available on record as Ex.PW1/1. As per said lease deed, the lease for second term of two years was renewable subject to increase in rent by 15% on last paid CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 7 of 20 Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.09.24 04:54:25 +0530 rent at the option of the lessee subject to the lessee agreeing to take the lease on the terms and conditions mentioned in the lease deed. As per clause 2(iii) in event of lessee interested in extension of lease for the second term, lessee was supposed to give a written information two months prior to expiry of lease deed to the lesser upon which the lease was to get renewed on mutual consent. As per plaintiff's case, the lease was renewed after 31.03.2008 for another period of two years i.e.upto 31.03.2010 with 15% increase in rent and letter for confirmation was received by the plaintiff. As such, after the renewal of the lease, the rent got increased by 15% (Rs.34,500/-) of the last paid rent (Rs.2,30,000/-) i.e. to the tune of Rs.2,64,500/-per month w.e.f 01.04.2008. Plaintiff's claim is that the second term of the lease deed expired on 31.03.2010 but the defendants failed to vacate the property on said date and over stayed till 31.12.2010 thereby making them liable to pay rent @ Rs.2,64,500/- alongwith penalty of Rs.10,000/- per day over and above said last paid rent, for the overstayed period. However, plaintiff kept paying only amount of Rs.2,64,500/-pm even after 31.03.2010 till 31.12.2010 and plaintiff accepted said payment without prejudice his right to claim penal rent as per clause 4(ii) of lease deed ExPW1/1.
14. Before discussing the respective evidence led by the parties, let's look at the relevant term of said lease deed contained in clause no.4(ii) which is reproduced below:-
"If the Lessee does not vacate the demised premised on expiry of this lease or earlier termination or the extended period therof as the case may be, as herein before mentioned, the lessee will be bound by the terms of lease deed to pay a penal rent @ Rs.10,000/-(Rupees ten thousand only) per day which shall be over and above the rent therein reserved, till such time that CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 8 of 20 Digitally signed SUNENA by SUNENA SHARMA SHARMA Date: 2021.09.24 04:54:42 +0530 the demised premises are not handed over in vacant condition to the Lesser."
15. On the other hand, defendants in their written statement came up with the plea that the lease deed expired between the parties on 31.03.2010 by efflux of time and no fresh lease deed was executed but it was mutually agreed that defendant shall vacate the premises on 31.12.2010 and the condition of two months prior notice would not be applicable. In the circumstances, there does not arise any question of application of clause 4 (ii) because, plaintiff had waived off even said condition and permitted the defendant to stay in premises till 31.12.2010. It is further stated that though lease expired on 31.03.2010 but since newly constructed building of defendants was not ready for possession, at defendants request, plaintiff allowed them to retain the possession of tenanted premises upto 31.12.2010 on the same rent i.e on the last paid rent. Ultimately vacant and physical possession of the property was handed over to the plaintiff on 31.12.2010. It is further stated that defendant no.1 always paid agreed rent to the plaintiff well in time without any default.
16. In the light of the above stand taken by defendants in their written statement, the aforementioned issues were framed and onus of proving the same was put upon the defendants.
17. It is an admitted position on record that after the expiry of the second term of lease deed dated 07.07.2006, no fresh lease deed was executed between the parties. In order to prove the waiver of aforementioned condition of penal rent contained in clause 4 (ii) of ExPW1/1, defendants in addition to their own evidence, have also relied upon the cross-examination of plaintiff/PW1 as well as on various documents filed by the plaintiff himself. Counsel has drawn CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 9 of 20 Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.09.24 04:55:00 +0530 attention of the court on following portion of cross-examination wherein PW1 in an answer to suggestions deposed as under:-
"It is correct that in the letter mark A, I have asked defendant no.1 to pay me enhanced rent @ 15% of the last paid rent till the time the defendant no.1 vacate the premises as a condition to continue possession of the premises. (Vol. I had also demanded Rs.10,000/- per day as penalty as per lease deed dated 07.07.2006).
It is correct that in my various letters written to defendant no.1 I have mentioned that I want to amicably close this chapter and simply want our rent money. It is correct that I had not demanded any penalty from the defendant no.1 in said letters. It is wrong to suggest that I had not demanded any penalty from the defendant no.1 as I had myself permitted the defendant no.1 to continue in the possession of suit property and everything was settled. It is wrong to suggest that demand of penalty and interest is after thought and has been claimed with malafide intention.
It is wrong to suggest that I had verbally permitted the defendant no.1 to continue in possession of suit premises till 31.12.2010. It is wrong to suggest that since it was mutually agreed between the parties that defendant no.1 shall vacate the premises on 31.12.2010, Clause 4 (ii) of the lease deed was not applicable in the circumstances. It is wrong to suggest that since no fresh lease deed was executed after 31.03.2010, the condition in Clause 4 (ii) of lease deed regarding penal rent was not applicable. It is wrong to suggest that I was informed by defendant no.1 that their new building was under
construction and the same would be available for possession upto 31.12.2010. It is wrong to suggest that since the newly constructed building of the defendant was not ready for possession, I had permitted the defendant to retain the possession till 31.12.2010.
Q- Is it correct that you have prayed for only penalty in the prayer clause of your suit as to the relief claimed? A- Yes.
It is correct that I have not prayed for increased rent in my prayer clause of my plaint. It is wrong to suggest that I never objected to continuation of defendant in the suit premises. It is correct that I kept on receiving rent from the defendants till they continued the possession of the suit premises. (vol. The rent was paid by them at the old rate). It is wrong to suggest that I had permitted the defendant no.1 to continue in the CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 10 of 20 Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.09.24 04:55:20 +0530 possession of premises by paying the old rent only. It is correct that I have never demanded penalty @ Rs.10,000/- per day from defendant no.1 after 31.12.2010 till initiation of legal proceedings. (Vol. I had offered the defendant to settle the matter amicably by making payment of increased rent @ 15% ). It is correct that I had never objected to receive the rent as paid by defendant and kept on receiving till they continued the possession of the premises. (vol. Whenever I received the rent I used to remind them by way of my letters as well as oral request to pay increased rent as per the lease deed). It is wrong to suggest that relations between me and the defendant were very cordial till the defendant continued possession of the suit premises. It is correct that in my letter mark M, I have stated that during our tenancy, we had maintained very cordial relations and we do not want that relationship should be strained. (Vol. Tenancy was only till 31.3.2010). It is wrong to suggest that I have never asked the defendant to vacate the premises after April 2010 till December, 2010. I do not remember whether there is any clause for interest in the lease deed executed between me and the defendant. It is wrong to suggest that I am not entitled for any interest as there is no interest clause in the lease deed between the parties. It is wrong to suggest that I had waived off the condition mentioned in Clause 4(ii) of the lease deed dated 07.07.2006 by accepting the monthly rent (on old rate of rent from the defendant. It is wrong to suggest that I had abandoned the claim of penalty @ Rs.10,000/-per day by accepting the rent from the defendant till 31.12.2010 without any objection. It is correct that I have not sent any letter to the defendant after 31.12.2010 till 23.03.2012 demanding any increased rent, penalty and interest. (vol. I had kept on requesting verbally). It is wrong to suggest that I had never raised any demand from the defendant during the aforesaid period as everything was settled between me and the defendant. I cannot say as to how I have sent the letter mark L. Again said I have sent through Fax or courier. It is correct that I have not placed on record any proof of sending of this letter. It is wrong to suggest that letter mark L is fabricated letter. It is correct that I have alleged for the first time vide my letter dated 08.6.2012 mark M that the defendant has vacated the premises in unhealthy and shabby conditions. It is wrong to suggest that the building was vacated by defendant in satisfactory condition and that is why I had not raised any allegation/claim/complaint about the same for about one and half years after vacation of premises by the defendant. It is wrong to suggest that the lease was renewed on month to month basis after 31.03.2010 on my acceptance of monthly CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 11 of 20 SUNENA Digitally signed by SUNENA SHARMA SHARMA Date: 2021.09.24 04:55:42 +0530 rent from the defendant. It is wrong to suggest that I am not entitled for any relief as claimed in my suit. It is wrong to suggest that I have filed false affidavit and I am deposing falsely."
18. Indisputably, the second term of lease expired on 31.03.2010 and till the expiry of second term of lease, the rent payable was Rs.2,64,500/-pm. It is also undisputed that w.e.f 01.04.2010 till vacating the suit property on 31.12.2010, the defendants had paid rent at the same rate i.e. @ Rs.2,64,500/-pm. As per defendants' case, defendant no.1 had to shift to their newly constructed building but since the possession of said building was yet not been handed over to defendant no.1, plaintiff was requested to allow defendant no.1 to retain the possession till 31.12.2010 on the same terms and conditions and same was duly agreed by the plaintiff. In view of the fact that tenancy uptil 31.12.2010 was extended on the same rent with the mutual oral agreement of the parties, there is absolutely no question of payment of any penal rent or application of clause 4 (ii) of the previous lease deed dated 07.07.2006.
19. Admittedly, no written lease agreement was executed between the parties after expiry of lease on 31.03.2010. The plaintiff has categorically denied existence of any mutual agreement between the parties with regard to defendants continuing in possession of the tenanted premises on the same rent i.e. @ Rs.2,64,500/-as alleged by the defendant. Even in answers to the suggestions put in the cross- examination of PW1, PW1 has nowhere admitted existence of any such mutual agreement between the parties nor the defendant is able to elicit anything from his cross-examination to prove the existence of any such mutual agreement. As per the plaintiff, the rent of Rs.2,64,500/- was accepted only under protest because plaintiff vide his letter dated 08.04.2010 had already put the defendants to notice CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL Digitally AND ANR.signed by Page No. 12 of 20 SUNENA SUNENA SHARMA SHARMA Date: 2021.09.24 04:56:02 +0530 that for overstayed period they shall be liable for penal charges as per clause 4 (ii) of the lease deed dated 07.07.2006.
20. Let us now advert to the defendants' evidence. In order to discharge the onus of aforementioned issue defendants examined one witness Mahender Singh Rana as DW1 who deposed that after expiry of lease deed on 31.03.2010, no fresh lease deed was executed but it was mutually agreed between the plaintiff and the defendant that defendant shall vacate the premises on 31.12.2010 and therefore, the condition of two months prior notice was not applicable nor clause 4(ii) of the lease deed as the plaintiff waived off said condition and permitted the defendants to remain in possession of premises till 31.12.2010. He further deposed that as per mutual agreement defendant no.1 kept paying rent of Rs.2,64,500/- per month till the time of vacation of tenanted premises on 31.12.2010. He further deposed that plaintiff had never approached defendants for payment of penal rent nor the defendant ever assured plaintiff regarding consideration of said alleged demand of plaintiff at their end. DW1 further deposed that even in the communication dated 24.03.2012 Ex.PW1/3, 07.04.2012 Ex.PW1/4 and 15.05.2012 Ex.PW1/10 received from the plaintiff, plaintiff always insisted for the payment of rent for the period from 01.04.2010 to 31.12.2010 (wrongly mentioned as 31.03.2010) and said amount had already been received by the plaintiff as admitted by him even in para no.8 of the plaint.
21. It is pertinent to note that in cross-examination of DW1, a question was asked from him as to whether defendant offered/tendered the increased rent after 31.03.2010 i.e. after expiry of lease deed, the witness said no and further testified that on the basis of mutual oral understanding between the parties, it was agreed that defendant should keep paying the same rent of Rs.2,64,500/-pm CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 13 of 20 Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.09.24 04:56:19 +0530 even after expiry of lease deed till December 2010 and pursuant to said mutual understanding the plaintiff had already received said rent. DW1 further deposed that said mutual understanding was between the owner of the property and professor S.C Jaiswal, the then Regional Director of the defendant organization and he (DW1) was informed about same by Sh. S.C Jaiswal and there was no oral understanding between DW1 and the landlord.
22. From the aforementioned testimony of DW1, it is quite clear that deposition of DW1 in respect of said alleged oral agreement/mutual understanding is nothing but a heresay evidence which is totally inadmissible in law. Mr. S.C Jaiswal with whom the plaintiff allegedly entered into said mutual agreement was never examined by the defendant. As such, there is no positive evidence adduced by defendants to prove the alleged mutual agreement nor the defendants even succeeded in brining out anything from the cross- examination of PW1 to prove the existence of any such oral agreement.
23. Thus, in backdrop of above circumstances, the parties shall be bound by the terms and conditions of last lease deed ExPW1/1 which put an obligation on the lessee to vacate the suit premises on the expiry of extended period of lease term and in the event of any breach, to pay Rs.10,000/- per day over and above the last paid rent of Rs.2,64,500/- to the lessor.
24. However, from the correspondence exchanged between the parties especially letter dated 08.06.2010, which is available on record as Mark M, it appears that plaintiff had been asking the defendant to pay the rent with 15% further enhancement for the overstayed period which comes out to be Rs.3,04,175/-pm (2,64,500 towards last rate of rent + 39,675 towards 15% enhancement on last CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 14 of 20 SUNENA Digitally signed by SUNENA SHARMA SHARMA Date: 2021.09.24 04:56:33 +0530 paid rent). Since the plaintiff had already received the rent @ Rs. 2,64,500/- for the period of 9 months w.e.f 01.04.2010 to 31.12.2010, the plaintiff had asked the defendant to pay the deficient amount which comes out to be Rs.3,57,075/-(39,675x 9).
25. Counsel for plaintiff has vehemently argued that said option to clear the account and settle the matter once for all on said deficient payment of 15% enhancement on the last paid rent was available only if the plaintiff was not forced to take the legal recourse and rigmore of trial. Counsel further submitted that since the plaintiff did not want to start a legal battle therefore, he gave defendant an opportunity to settle the matter out of court on payment of 15% of the last paid rent but, the defendants was bent upon not to pay even said amount despite repeated reminders of the plaintiff and forced the plaintiff to approach the court and therefore, in said circumstances, defendants cannot be absolved from their liability to pay the penal rent as per clause 4 (ii) of last lease deed ExPW1/1.
26. It is important to note here that immediately after expiry of lease deed, the plaintiff had put the defendant to a notice to either vacate the tenanted premises on clearing upto date rent or to get a fresh lease deed executed and in event of breach to pay penal charges for the overstayed period as per clause 4(ii) of the lease deed. Admittedly, no fresh lease deed was executed between the parties while the plea of alleged mutual understanding or mutual agreement regarding defendant continuing in possession on the same rent has remained unproved. As already noted above defendant has miserably failed to prove the same because the regional director of defendant no.1 Mr. S.C Jaiswal with whom the plaintiff allegedly entered into said mutual understanding/agreement was not even examined while the witness DW1 examined in the matter was admittedly not a witness to CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 15 of 20 SUNENA Digitally signed by SUNENA SHARMA SHARMA Date: 2021.09.24 04:56:51 +0530 said alleged agreement as is evident from his deposition where DW1 stated that he had not even seen the plaintiff.
27. In the light of above-mentioned facts and circumstances of the case, defendants cannot be allowed to take shelter of said pleas that plaintiff had waived off the condition mentioned in clause 4 (ii) of the lease deed dated 07.07.2006 or that he had abandoned the claim of penalty @Rs.10,000/- per day. Accordingly, both the issues no.3 and 4 have been decided against the defendants and in favour of plaintiff.
ISSUE NO.1 "(1) Whether the plaintiff is entitled for the recovery of Rs.27,50,000/- as prayed for? OPP"
28. The onus to prove said issue was upon the plaintiff. The plaintiff has claimed above-mentioned recovery towards damages for breach of the term contained in clause 4 (ii) of the lease agreement. As per plaintiff, defendants failed to vacate the suit premises after expiry of extended period of lease and as per clause 4 (ii) of the lease deed Ex.PW1/A, defendants became liable to pay Rs.10,000/- per day as penal charges for overstayed period of 265 days (w.e.f 01.04.2010 to 31.12.2010).
29. Here, it is necessary to note that suit amount has not been claimed as mesne profits rather the same has been claimed as damages for breach of agreement. Although, in the light of my findings on the issue no.3 and 4, it stands established on record that defendant no.1 had committed the breach of lease agreement Ex.PW1/A by overstaying in the property after expiry of extended period of lease i.e after expiry of 2nd term of lease which expired on 31.12.2010. But, that itself is not suffice for the plaintiff to seek CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR.
Digitally signed by Page No. 16 of 20 SUNENA SUNENA SHARMA
SHARMA Date: 2021.09.24
04:57:07 +0530
recovery of damages to the tune of Rs. 27,50,000/- as claimed in the plaint.
30. The object of award of damages for breach of contract is to place the injured party in the position in which he would have been if the contact had been executed. Section 73 to section 75 of the Contract Act deals with the rules relating to loss or damage resulting from breach of contract. In Fateh Chand Vs. BalkishanDass, AIR 1963 SCC 1405, it was held by Hon'ble Supreme Court that the party aggrieved of breach of contract is entitled to a resonable compensation that could not exceed the amount of penalty or the amount predetermined to be paid after the breach of the contract. In ONG Ltd. Vs. Saw Pipes, Appeal (civil) 7419 2001 of 518 decided on 17.04.2003, it was further held by Hon'ble Apex court that:-
(1) Terms of the contract are required to be taken into consideration before arriving at the conclusion whether the party claiming damages is entitled to the same; (2) If the terms are clear and unambiguous stipulating the liquidated damages in case of the breach of the contract unless it is held that such estimate of damages/compensation is unreasonable or is by way of penalty, party who has committed the breach is required to pay such compensation and that is what is provided in Section 73 of the Contract Act.
(3) Section 74 is to be read along with Section 73 and, therefore, in every case of breach of contract, the person aggrieved by the breach is not required to prove actual loss or damage suffered by him before he can claim a decree. The Court is competent to award reasonable compensation in case of breach even if no actual damage is proved to have been suffered in consequences of the breach of a contract. (4) In some contracts, it would be impossible for the Court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, Court can award the same if it is genuine pre-
CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 17 of 20 Digitally signed by SUNENA SUNENA SHARMA SHARMA Date: 2021.09.24 04:57:26 +0530 estimate by the parties as the measure of reasonable compensation.
31. From a conjoint reading of the observations and rulings in the above decisions of the Supreme Court, it can be stated that parties may be able to take benefit of Liquidated Damages Clause and the requirement of proof that is strictly applicable to a Section 73 situation may not be applicable under an Liquidated Damages Claim particularly where the parties have expressly stated that the estimate of damages is a pre-estimate that is agreed between the parties and is not in the nature of a penalty.
32. But in the instant case, stipulation of damages in breach of contract is certainly in the nature of penalty as is also evident from the use of term penal rent in the clause. Clause 4(ii) of ExPW1/A stipulates for payment of Rs. 10,000/- per day which would amounts to Rs.3 lakh pm and same is payable over and above the last payable rent which in the instant case is Rs.2,64,500/-pm. Hence, it is beyond doubt that liquidated damages stipulated in the contract is in the nature of penalty. Admittedly, no evidence has been adduced on record by plaintiff to prove the actual damages as no lease deeds of relevant period of any similarly situated properties have been placed or proved on record to show as to how much rent the plaintiff could have actually fetched on the leased property during relevant time. But, in the light of aforementioned judgements of Hon'ble Apex Court, this court can still award reasonable damages in favour of plaintiff.
33. In considered view of this court, defendants have acted very unfairly in not even paying 15% enhancement on last paid rent for over stayed period as demanded by plaintiff which led the plaintiff to file this case in the court in the year 2013. With prolonged trial of more than 7 years, the case has now reached the stage of judgement.
CS no.59389 of 2016
PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 18 of 20
Digitally signed by
SUNENA SUNENA SHARMA
SHARMA Date: 2021.09.24
04:57:38 +0530
In said circumstances, it will not be justified to merely award 15% enhancement in last paid rent as damages to the plaintiff on the lines of his decade old proposal which he made to defendants with a view to avoid any litigation with them. Even otherwise, the defendants as per their own case had completed 3 terms of 2 years each in the tenanted premises and thereafter, overstayed for 9 more months. No lease deed was executed after July, 2008. In such circumstances, had the property been let out afresh to a new lessee, the plaintiff would have been in a far better position to bargain on much higher rent than the one he was proposing to the defendants to pay to avoid any litigation. In my considered view, during relevant period, the plaintiff under a new tenancy would have definitely fetched atleast Rs. 3,25,000/- pm as rent in respect of suit property. As the plaintiff has already received payment @ last paid rent of Rs.2,64,500/- pm, he is awarded damages to the tune of Rs 5,44,500/-(five lakh forty four thousand and five hundred), calculated @ Rs.60,500/-pm (Rs.3,25,000 - Rs.2,64,500) for the period of 9 months i.e for the period w.e.f 01.04.2010 to 31.12.2010.
34. With above findings, the issue no.1 stands decided accordingly in favour of plaintiff and against defendants.
ISSUE NO.2 "(2) Whether the plaintiff is entitled for the pendentelite and future interest @ 18% per annum with effect from 01.04.2010 till the actual date of payment? OPP"
35. Plaintiff did not adduce any evidence for proving his entitlement for interest at claimed rate of 18%pm, which seems quite excessive and exorbitant especially in absence of any such stipulation in the lease agreement. Since the transaction in question is non CS no.59389 of 2016 PAWAN KR. KEJRIWAL VS. KENDRIYA HINDI SHIKSHAN MANDAL AND ANR. Page No. 19 of 20 SUNENA Digitally signed by SUNENA SHARMA SHARMA Date: 2021.09.24 04:57:52 +0530 commercial, future interest for more than 6%per annum cannot be awarded in the light of section 34 of CPC. Accordingly, I am inclined to award only 6% per annum future interest on the decreetal amount.
36. However, keeping in account the conduct of defendants to unnecessarily drag the plaintiff in this uncalled for litigation by declining his most genuine and reasonable demand to settle the matter once for all on payment of 15% enhancement on last paid rent for over stayed period, I am not inclined to show any leniency in their favour. Accordingly, I award 12% per annum pendentelite interest on the decreetal amount in favour of plaintiff.
Relief
37. In view of my above-mentioned findings on the issues framed in this case, suit is partly decreed in favour of plaintiff and against defendant no.1 for the sum of Rs. 5,44,500/-(five lakh forty four thousand and five hundred) along with 12% per annum pendentelite and 6% per annum future interest thereon. Cost of litigation is also awarded in favour of plaintiff.
38. Decree sheet be prepared accordingly. File be consigned Digitally signed to record room.
SUNENA by SUNENA
SHARMA
SHARMA Date: 2021.09.24
04:58:06 +0530
(Sunena Sharma)
Addl. Distt Judge-04
Judge Code : DL00222
PHC: New Delhi
Announced in the open court on
24.09.2021
CS no.59389 of 2016
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