Delhi District Court
Suit No.764/2007 ("Brahm Yadav vs Hindustan Alloy Forgings & Anr.") Doj : ... on 18 November, 2009
Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009
IN THE COURT OF SHRI VINOD YADAV:
Sr. CIVIL JUDGE-CUM-RENT CONTROLLER (WEST):
TIS HAZARI COURTS: DELHI
SUIT NO.: 764/2007
Date of Institution of suit: 10.12.2007
Date of decision : 18.11.2009
In Re:
Shri Braham Yadav,
S/o Shri Ganpat Ram,
R/o WZ-550-B, Madipur,
New Delhi - 110 063.
.....Plaintiff
Versus
1.M/s Hindustan Alloy Forgings & Casting Pvt. Ltd., Through its Directors, WZ-266-B (Lal Dora), Madipur, New Delhi - 110 063.
2. Mr. Raj Kumar Sachdeva Director, M/s. Hindustan Alloy Forgings & Casting Pvt. Ltd.
8/40,West Punjabi Bagh, Near Central Market, New Delhi.
.....Defendants Suit for possession, rec.of arrears of rent damages/use & occupation/mesne profits ("Decreed") Page 1 of 20 Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009 SUIT FOR POSSESSION AND RECOVERY OF ARREARS OF RENT DAMAGES FOR USE AND OCCUPATION AND MESNE PROFITS.
Ex-PARTE JUDGMENT:
The case of the plaintiff as born out from the plaint is that the plaintiff is the owner and landlord of property bearing No. WZ-266-B, village Madi Pur, New Delhi and the defendant no.2, being director of the defendant no.1 approached the plaintiff for taking on lease the area of ground floor of above property measuring about 150 sq. yds. under tenancy in the name of the defendant no.1 (hereinafter referred to as "tenanted premises").
2. It is averred that rent agreement dated 3.3.2003 was executed between the plaintiff and the defendant No.2 and the plaintiff leased out ground floor portion of above property to the defendants for a period of 24 months w.e.f. 3.3.2003 to 2.3.2005 on a monthly rent of Rs. 8,500/- (Rupees Eight Thousand and Five Hundred only).
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3. It is further averred that it was agreed between the plaintiff and the defendants that the rent was to be paid in advance on or before the expiry of 10th day of each English Calender month. It was also agreed at the time of agreement that the defendants had to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) as an interest free security deposit to the plaintiff which was refundable at the time of handing over of the vacant and physical possession of the tenanted premises to the plaintiff by the defendants.
4. It is further averred that as per the terms and condition of the rent agreement dated 3.3.2003, the tenancy month commenced from the 3rd day of each English calander month and ended on the 2nd day of the next month. It was further agreed that the defendants shall pay the electricity and water charges as per the consumption according to the bills of local authorities in respect of the premises in question directly as per the bills received, including any penalty for late payment or non-payment.
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5. It is further averred that ever since the inception of the tenancy, the defendants have been very irregular in making payment of the rent and the defendants had lastly paid the rent for the month of January' 2004 and thereafter the defendants have not paid a single penny to the plaintiff either towards arrears of rent or towards the use and occupation charges of the tenanted premises. The defendants have also failed to pay the electricity and water charges since January,2004 so consumed by the defendants as per the bills so received by the defendants from the concerned authorities.
6. It is further averred that at the time of letting, the defendants had agreed that the monthly rent would be paid regularly on or before the 10th day of each English calander month to the plaintiff and failing to pay the rent for two months the tenancy rights of the defendants automatically terminated and the rent agreement stood cancelled.
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7. It is further averred that the defendants in total disregard of their commitment deliberately and with mala-fide intention defaulted in making payment of arrears of rent since February,2004 onwards in respect of the tenanted premises and the tenancy of the defendants automatically terminated as per the clause 12 of the rent agreement.
8. It is further averred that as per clause 14 of the rent agreement the plaintiff had every right to terminate the tenancy even during the subsistence of lease in case of violation of the terms and conditions of the rent agreement dated 3.3.2003, however, on repeated assurance and promises of the defendant No.2, to pay the arrears of rent alongwith interest at the rate of 24% p.a. accrued thereupon, the plaintiff had not taken any step to get the defendants evicted from the tenanted premises. Suit for possession, rec.of arrears of rent damages/use & occupation/mesne profits ("Decreed") Page 5 of 20 Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009
9. It is further averred that even otherwise as per the terms and condition of the rent agreement, the above period of the tenancy has expired by efflux of time on 2.3.2005. Despite the above fact of expiry of the tenancy by efflux of time, the defendants have neither handed over the vacant and physical possession of the tenanted premises to the plaintiff nor asked the plaintiff to get the said agreement renewed.
10. It is further averred that the plaintiff after the termination of tenancy by efflux of time, did not wish the defendants to continue in his premises as his tenant any further nor he wishes to renew the rent agreement and continue with the rent agreement or that the defendants should continue remain as a tenant in the premises.
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11. It is further averred that when the defendants have miserably failed to abide by the terms and conditions of the rent agreement and failed to pay arrears of rent as is due and payable by the defendants to the plaintiff sent notice dated 28.01.2006 upon the defendants terminating their tenancy and also calling upon them to pay the arrears of rent.
12. It is further averred that through notice dated 28.01.2006, the defendants were communicated that the possession of the defendants in the tenanted premises owned by the plaintiff is illegal and as of a tresspasser and as an unauthorized occupant of the said premises w.e.f. 3rd March 2005 and the defendants were called upon to pay the damages for use and occupation of the premises being illegal and unauthorized occupants of the premises being illegal and unauthorized occupants of the premises after expiry of the period of lease deed @ Rs. 15,000/- per month excluding of other charges.
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13. It is further averred that one Shri Ashok Kumar Gulati filed a complaint case under section 138 of the Negotiable Instrument Act read with section 420 of IPC against the defendants and in that case the defendants have failed to appear before the court of Ld. Metropolitan Magistrate despite service and accordingly proceedings under section 82/83 of Criminal Procedure Code were initiated against the defendant No.2.
14. It is further averred that on 27.10.2004, orders for sealing of the factory which is under the tenancy of the defendant No.1, owned by the plaintiff was passed and the intimation thereof was sent to DCP and FRRO and the tenanted premises was duly sealed by SHO, PS Punjabi Bagh, on 3.12.2004 and police put its own lock on the shutter of the factory and keys of the same were kept in the police station.
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15. It is further averred that coming to know about the sealing of the tenanted premises, the plaintiff moved an application under section 84 Cr.PC stating therein that the accused no.1 (the defendant no.1 herein) is not the owner of the tenanted premises and infact the applicant (the plaintiff herein) is the owner and landlord of the same and that the accused are the tenants in the said premises and prayed that the factory be ordered to be de-sealed and the possession of the tenanted premises be ordered to be handed over to the plaintiff. While passing orders on the application of the plaintiff the Ld. MM, New Delhi, held that since the possession of the said factory is with the accused no.1 company and possession has not been surrendered by the accused to the owner/landlord and further held that this court is criminal court can not pass any order pertaining to handing over possession of the said factory to the plaintiff. The court of Shri A.K. Chaturvedi, M.M, New Delhi, further held that the possession of the said premises be kept by the court as trustee on behalf of accused no.1 company (defendant Suit for possession, rec.of arrears of rent damages/use & occupation/mesne profits ("Decreed") Page 9 of 20 Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009 no.1 herein) and the possession of the said premises would be immediately handed over to the plaintiff pursuant to any orders according to directions of the Ld. Civil Court/Rent Controller/Competent court and a Local Commissioner was appointed to make the inventory of the goods lying in the said premises under tenancy of the defendants.
16. It is further averred that on 25.9.2006 Shri Pramod Saxena, advocate visited the tenanted premises as Local Commissioner and he prepared the inventory as per the directions of the Ld. MM and after making the inventory, the shutter was pulled down and new lock was put on the shutter by him and the keys of the said lock in triplicate was submitted to the Court of Ld.M.M, Delhi. Therefore, the possession of the tenanted premises is with the Court as trustee from 25.09.2006 onwards. Suit for possession, rec.of arrears of rent damages/use & occupation/mesne profits ("Decreed") Page 10 of 20 Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009
17. It is further averred that the defendants have not paid the rent of the tenanted premises from February2004 onwards @ Rs.8,500 per month. Since the tenancy of the defendants expired by efflux of time on 3.3.2005 and thereafter the defendants are liable to pay the damages for use and occupation charges @ Rs.15,000/- and the defendants were called upon to pay that amount of arrears of rent and damages for use and occupation through notice dated 28.01.2006.
18. It is further averred that the plaintiff through notice dated 13.11.2007 again called upon the defendants to get the said tenanted premises de-sealed and released from attachment from the court of ld. MM, New Delhi, with in fifteen days of the receipt of that notice and to remove all fittings, fixtures, furniture as may have been lying in the possession at the time of handing over of the vacant and physical possession of the tenanted premises failing which the plaintiff shall be constrained to get them removed from the court of law.
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19. It is further averred that the defendants are also liable to pay all charges i.e. water, electricity and taxes, municipal, chargeable in respect of the premises in question and through notice dated 13.11.2007 the defendants were called upon by the plaintiff to pay the same with in fifteen days of the receipt of notice and before that date the premises in question be vacated by the defendants and the possession of the tenanted premises be handed over to the plaintiff.
20. It is further averred that the said notice dated 13.11.2007 was sent through Regd. AD cover, UPC, Courier and through affixation by the plaintiff. Through that notice the defendants were called upon to get the tenanted premises de-sealed and released from attachment from the court and thereafter obtaining the possession from the court of MM, New Delhi, to hand over the actual and physical possession of the tenanted premises to the plaintiff on or before 30th November,2007 as the Suit for possession, rec.of arrears of rent damages/use & occupation/mesne profits ("Decreed") Page 12 of 20 Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009 tenancy of the defendants has already been terminated by efflux of time on expiry of rent agreement on 2.3.2005 and thereafter no notice was required to terminate the tenancy of the defendants but the notice of termination of tenancy was given and the tenancy was terminated through notice dated 28.01.2006.
21. It is further averred that through that notice dated 13.11.2007 the defendants were called upon to pay arrears of rent from February, 2004 till February 2005 @ Rs. 8,500/- per month alongwith interest at the rate of 24% p.a. so accrued thereupon. The defendants were also called upon to pay Rs.15,000/- per month towards damages for use and occupation charges for illegal and unauthorized use and occupation of the tenanted premises in question from Marc,2005 till the handing over the vacant and physical possession of the tenanted premises alongwith interest at the rate of 24% p.a. so accrued thereon from the date of withholding over the vacant and physical possession of the premises.
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22. It is further averred that the defendants were also called upon to clear all statutory dues/water electricity and municipal chargeas maintenance charges in respect of the premises in question up to the date of handing over the vacant and physical possession of the premises in question and provide the plaintiff with a no dues certificate/other documents showing proof of payment of all bills to the local authorities.
23. It is further averred that it was also mentioned in that notice that if any amount found due and payable to any of the concerned authorities as mentioned herein above in preceding paras during the period of use and occupation of the premises by the defendants the plaintiff shall be entitled to recover the said amount from the defendants.
24. Accordingly the plaintiff has filed the present suit interalia praying the followings:-
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Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009
(a) Pass a decree for possession in favour of the plaintiff and against the defendants directing the defendants, their assignees, representative, to hand over the vacant and peaceful possession of the suit premises in his occupation i.e. ground floor in property No. WZ-266-
B, Village Madi Pur, New Delhi to the plaintiff,
(b) To pass order to hold an enquiry as per provisions of Order 20 rule 12 CPC for determining the rate of mesne profits/damages for use and occupation for which the plaintiff is entitled and decree for su;ch sum as damages with interest for the period from the passing of the judgment till the delivery of possession may be passed in favour of the plaintiff and against the defendant, and to
(c) Cost of the suit.
25. The defendant was served in the matter by way of substituted means of publication. Despite service of summons in this case the defendant did not appear and therefore vide order dated 18.08.2008 the defendant was proceeded "ex-parte" and the matter was kept for ex-parte plaintiff's evidence. Suit for possession, rec.of arrears of rent damages/use & occupation/mesne profits ("Decreed") Page 15 of 20 Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009
26. In its ex-parte evidence, plaintiff has examined himself as PW-1 and one Shri Sumrat Singh Yadav as PW-2. PW-1, the plaintiff in his affidavit by way of evidence Ex. "X" has proved on record site plan of the tenanted premises as Ex.PW1/1; copy of rent agreement as Mark X, registry receipts of legal notice dated 28.01.2006 sent by the plaintiff to defendant by registered post as Ex.PW1/2 and Ex.PW1/3; original returned registered letters with AD as Ex.PW1/4 and Ex.PW1/5; certified copies of order dated 27.10.2004 and 04.12.2004, passed by the Ld.MM for initiating proceedings U/s 82/83 Cr.P.C against accused No.1 as Ex.PW1/6 (Colly); order dated 25.06.2005, passed by the Ld.MM on his application U/o 84 Cr.P.C in C.C No.1443/05, titled as, "Ashok Kumar Gulati V/s Hindustan Alloy Forging & Casting Pvt. Ltd.", as Ex.PW1/7; certified copy of the report of Local Commissioner as Ex.PW1/8; computerized copy of notice dated 13.11.2007 as Ex.PW1/9; registry receipt in respect thereof as Ex.PW1/10 and Ex.PW1/11; UPC receipt in respect thereof as Ex.PW1/12; original Suit for possession, rec.of arrears of rent damages/use & occupation/mesne profits ("Decreed") Page 16 of 20 Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009 returned registered letters with A/Ds as Ex.PW1/13 and Ex.PW1/14; original UPC letters as Ex.PW1/15 and Ex.PW1/16; and photograph of affixation of aforesaid notice on the shutter of tenanted premises as Ex.PW1/17 (colly).
27. While PW-2 Shri Sumrat Singh Yadav, in his affidavit by way of evidence Ex.PW2/A has proved the original rent agreement as Ex.PW2/1.
28. This is all as far as ex-parte evidence in the matter is concerned.
29. I have heard Shri Chander Mal, counsel for the plaintiff and perused the material on record. It is pertinent to mention here that on 12.11.2009, statement of plaintiff was recorded in court, wherein he requested the court to dispense with enquiry U/o 20 Rule 12 CPC and confined his claim for damages @ Rs.8,500/- per month, i.e the rent shown in Rent Deed Ex.PW2/1. Suit for possession, rec.of arrears of rent damages/use & occupation/mesne profits ("Decreed") Page 17 of 20 Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009 Accordingly, in view of the same, prayer (b) of the plaintiff with regard to holding an enquiry U/o 20 Rule 12 CPC is hereby dispensed with as not pressed.
30. The testimonies of PW-1 and PW-2 have unrebutted and hence duly proved as per law. There is no reason to disbelieve the unrebutted and uncontroverted testimonies of PW-1 and PW-2 and the documents proved by them on record, particularly the following documents:
(i) Original rent agreement executed between plaintiff and defendant as Ex.PW2/1.
(ii) Registry receipts of legal notice dated 28.01.2006 sent by the plaintiff to defendant by registered post as Ex.PW1/2 and Ex.PW1/3;
(iii) Certified copies of order dated 27.10.2004 and 04.12.2004, passed by the Ld.MM for initiating proceedings U/s 82/83 Cr.P.C against accused No.1 (defendant No.2 herein) as Ex.PW1/6 (Colly);
(iv) Order dated 25.06.2005, passed by the Ld.MM on his application U/o 84 Cr.P.C in C.C No.1443/05, titled as, "Ashok Kumar Gulati V/s Hindustan Alloy Forging & Casting Pvt. Ltd.", as Ex.PW1/7;
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(v) Certified copy of the report of Local Commissioner as Ex.PW1/8 and;
(vi) Photograph of affixation of aforesaid notice on the shutter of tenanted premises as Ex.PW1/17 (colly).
31. Accordingly, in view of the evidence of PW-1 and PW- 2 and the documents proved by them on record, suit of the plaintiff is decreed as under:
(a) A decree of possession is passed in favour of the plaintiff and against the defendants and defendants are hereby directed to hand over vacant and peaceful possession of tenanted premises, i.e ground floor of property bearing No. WZ-266-B, village Madi Pur, New Delhi to the plaintiff within four weeks from today;
(b) A decree of mesne profits/damages/use and occupation charges @ Rs.8,500/- per month alongwith interest @ 12% per annum from the date of filing of the suit till realisation thereof is also passed in favour of the plaintiff and against the defendants;
(c) Costs of the suit.
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Suit No.764/2007 ("Brahm Yadav V/s Hindustan Alloy Forgings & Anr.") DOJ : 18.11.2009
32. As a consequence of judgment passed today, SHO, PS Punjabi Bagh is hereby directed to de-seal the tenanted premises, i.e ground floor of property bearing No. WZ-266-B, village Madipur, New Delhi, as shown in red colour in site plan Ex.PW1/1 forthwith. Plaintiff is also at liberty to move an appropriate application before the concerned Ld.MM for obtaining the keys of the tenanted premises.
33. Decree sheet be prepared accordingly.
34. File be consigned to Record Room after completion of necessary formalities.
Announced in the open court (Vinod Yadav)
on 18.11.2009 SCJ-cum-RC (West)
Tis Hazari Courts: Delhi
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