Delhi District Court
Raju Devi Bhansali vs Kavita on 30 August, 2024
IN THE COURT OF MS. KIRAN BANSAL,
DISTRICT JUDGE, COMMERCIAL COURT-02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
CS(COMM) NO. 382 OF 2023
IN THE MATTER OF:
1. Raju Devi Bhansali
W/o Sh. Ranjeet Singh Bhansali
R/o C-29, Surajmal Vihar,
Delhi-110092 .....PLAINTIFFS
VERSUS
Kavita
W/o Adesh Kumar
R/o 119, Janta Colony,
Circular Road,
Shahdara, Delhi - 110032
Also at:
617/2, Part of Plot No. 104,
Main 60 ft. Road, Bagichi Gali,
Vishwas Nagar,
Shahdara, Delhi - 110032
(M) 9873487446 .....DEFENDANT
Date of Institution : 31.07.2023
Date of hearing arguments : 09.05.2024
Date of judgment : 30.08.2024
CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.1 of 32
JUDGMENT
1. The plaintiff has filed the present commercial suit for possession, recovery of arrears of rent and damages/mesne profits along with pendentelite and future interest and permanent injunction against the defendant.
2. Succinctly, the case of plaintiff is that she is the absolute owner of property bearing no. 617/2, part of plot no. 104, out of Khasra No.4862/2629/774, situated in the area of Village Chandrawali alias Shahdara, in abadi of Main 60 Ft. Road, Bagichi Gali, Vishwas Nagar, Shahdara, Delhi - 110032, area measuring 200 sq. yards (hereinafter referred to as suit property) and the defendant approached the plaintiff for taking the suit property on lease/rent built up first floor to ceiling level only without roof terrace rights. Consequently, plaintiff and defendant entered into a registered lease deed dated 01.10.2020 qua the suit property. It is stated that at the time of execution of lease deed dated 01.10.2020, husband of both the parties, namely Sh. Ranjeet Singh Bhansali (i.e. husband of plaintiff) and Sh. Adesh Kumar (i.e. husband of defendant) were also present who witnessed the said lease which was duly registered before Registrar IV-B, Vivek Vihar, Delhi vide its Registration No.4959, dated 06.10.2020.
2.1 It is averred that as per clause 3 of lease deed dated 06.10.2020, the same was executed for 3 years commencing w.e.f. 01.10.2020 to 30.09.2023 and it was mutually decided between plaintiff and defendant that defendant shall pay a monthly rent of Rs.50,000/- per month and after the expiry of every 12 months, the rent shall be enhanced @ 10% as per clause 1 and 24 of lease deed. It is further averred that since beginning, defendant CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.2 of 32 had been irregular in making monthly rental payment as agreed and had not paid the whole monthly rent even once for which plaintiff requested the defendant several times to pay monthly rent on time or to vacate the suit property, but, defendant never paid any heed to the same.
2.2 It is stated that defendant started committing default in making regular payments of monthly rent, hence, the plaintiff had to terminate lease vide legal notice dated 05.07.2022. It is stated that defendant willfully and intentionally are not making payment of rent and is not paying any heed and willfully not handing over the vacant possession of the suit property to plaintiff. Plaintiff has mentioned the details of account in respect of arrears of rent including enhancement of rent @ 10%, payable to the plaintiff and remained unpaid by defendant in tabular form in para 11 of plaint, which is not reproduced herein for the sake of brevity. As per the table, rent due from defendant was Rs.18,65,000/- and the defendant has paid only Rs.9,05,000/- and therefore, there is an outstanding of Rs.9,60,000/- as rent due till 31.07.2023.
2.3 It is averred that since the defendant has violated the terms and conditions of lease deed, the defendant shall be deemed as trespasser in the suit property and is liable to pay damages at the rate of Rs.2,000/- per day along with lease money for illegally occupying the tenanted premises. It is further averred that defendant is liable to pay the amount of Rs.9,60,000/- as arrears of rent amount and damages/mesne profits @ Rs.2,000/- per day along with interest @ 18% per annum till the date of vacating and handing over peaceful possession of the suit property.
CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.3 of 32 2.4 It is stated that a huge outstanding amount of rent of Rs.9,60,000/- is due against the defendant and defendant is enjoying fruits of property without paying anything and on the other hand, the rent is the only source of income for the plaintiff, therefore, plaintiff is left with no other choice except to approach this court.
2.5 Plaintiff has stated that he has filed the present suit for possession, recovery of arrears of rent and damages/mesne profit before the ld. ADJ, but, since the matter pertained to commercial property, the then Ld. ADJ had returned the plaint to the plaintiff vide order dated 30.05.2023 for filing it before the court having competent jurisdiction.
2.6 Plaintiff has applied for pre litigation mediation on 05.06.2023 before DLSA Shahdara, but the defendants has not participated in the process of Pre Institution Mediation, hence, the Non Starter Report was issued. Plaintiff has stated that she is not in a position to attend the court regularly and to pursue her case on her own due to her ill health, so, plaintiff had appointed her husband as her lawful attorney. The present suit was received through E-portal on 30.07.2024, thereafter, an amendment application under Order VI Rule 17 CPC was moved on behalf of plaintiff as it was stated that after filing of the suit the defendant has left the suit premises and therefore, due to the subsequent development, the plaintiff wanted to amend the suit and bring the subsequent facts on record. The said application was allowed vide order dated 20.10.2023. Through this amendment, the plaintiff has inserted para no 18A to 18E as well as amended prayer clause and also para no. 19. The plaintiff has stated that as defendant has left the suit premises, they are no longer praying for relief of decree of possession and injunction and the suit is only for recovery of arrears of rent CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.4 of 32 along with mesne profits etc. on 30.07.2023, as some neighbors of tenanted premises informed her that defendant and her husband had damaged suit property and chajja of suit property had also fallen down due to their mischievous act.
2.7 It is stated that since the chajja of suit property and malba/sariya are about to fall, being in a dangerous condition, the plaintiff had no alternative, but, to enter the suit property on ground floor to go upstairs to repair the chajja, however, after getting up, plaintiff was shocked to see that defendant had damaged the flooring and roof of 1st floor of premises and had taken three fans and CCTVs installed in the premises by the plaintiff. The defendant had also broken walls of 1 st floor and had taken the main door of 1st floor premises leaving the entire floor open with malafide intention. It is further stated that defendant also left open the tap on the roof of premises due to which, the chajja was in a position to fall thereby causing extreme damages to the roof and the entire premises of plaintiff, just to evade from their liability of non payment of rent of more than Rs.10 lakhs besides electricity bill of Rs.36,000/-.
2.8 It is stated that due to aforesaid criminal acts of defendant, plaintiff had suffered huge losses for which he is claiming Rs.7,00,000/- as damages. It is further stated that it has came to notice of plaintiff that defendant had opened a GYM by name of Adesh Maruti Gym and had shifted all GYM equipments, A/C, CCTV Cameras and other articles provided by the plaintiff to the said GYM.
2.9 That the cause of action for filing the present suit arose when defendant and plaintiff entered into a lease deed and same was registered CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.5 of 32 with Sub Registrar on 06.10.2020 and when defendant made several intermittent payments to the plaintiff and made a last payment of Rs.10,000/- on 13.09.2022, thereby not paying the outstanding rent amount of Rs.9,60,000/- to the plaintiff till July, 2023, nor paying the damages/mesne profits till date.
2.10 It is further stated that defendant is residing within the jurisdiction of this court and the suit property also falls within the territorial jurisdiction of this court, thus, this court has absolute jurisdiction to try and entertain the present suit. It is further stated that the value of suit for the purpose of court fee is as (a) For Relief of damages is Rs.7,00,000/-; (b) For Arrears of Rent is Rs.9,60,000/-; (c) For permanent injunction is Rs.130/, on which requisite court fees has been paid. Though, the plaintiff has stated that she is not praying for possession and injunction but has valued the relief of injunction for court fees purposes, in the amended plaint.
3. Defendant was duly served and WS was filed stating that plaintiff has concealed the true, material and relevant facts and has not come to the court with clean hands. It is stated that no cause of action arose in favour of plaintiff and against the defendant for filing the present suit as the plaint does not disclose any cause of action in favour of plaintiff.
3.1 Defendant has stated that rent stood paid/deposited by the defendant upto the month of April, 2023 and the plaintiff illegally trespassed into the suit property and committed theft in the suit property and the said fact came into the knowledge of the defendant only on 01.08.2023, when she found that the lock of suit property was changed and gym articles and cash amount of Rs.37,000/- of defendant was stolen by plaintiff in collusion with CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.6 of 32 her husband and associates and thus, the rent due and payable by defendant is for the month of May, 2023 to July, 2023. Defendant has further stated that apart from that, at that time there were electricity dues to the tune of Rs.11,000/- approx. only.
3.2 Defendant has averred that at the time of inception of tenancy, plaintiff had taken the security amount of Rs.1 lakh from the defendant and the said security amount is liable to be refunded by the plaintiff to the defendant after deducting the rent for the months of May, 2023 to July, 2023 and electricity dues of Rs.11,000/- approx. Defendant has further averred that present suit is for seeking relief of money decree, for which commercial suit is not maintainable and is thus, liable to be dismissed.
3.3 It is stated that though there was a stipulation in the lease deed regarding enhancement of rent @ 10% after expiry of 12 months, but, plaintiff never claimed the enhanced rent from the defendant and told the defendant that she would continue to receive the rent at the same rate of rent i.e. Rs.50,000/- per month and as such the defendant continued to make payment of rent to the plaintiff @ Rs.50,000/- per month and the rent stands paid by defendant to plaintiff upto the month of April, 2023 @ Rs.50,000/- per month. It is further stated that the last rent was paid by defendant to the plaintiff through bank transaction till the month of January, 2023 and from the month of February, 2023, the rent has been paid by defendant to the plaintiff through cash, thus, the rent stands paid till April, 2023.
3.4 Defendant has denied that since beginning she had been very irregular in making monthly rental payment as agreed and had not paid the whole monthly rent even once for which plaintiff several times requested the CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.7 of 32 defendant to pay monthly rent of suit property on time or to vacate the suit property, but, the defendant never paid any heed to the same. Defendant has submitted that during lockdown period, for a period of 3 months, he could not make the payment of rent as the GYM remained closed for many months and in this regard she handed over a cheque of Rs.1,50,000/-, bearing no. 701148, drawn on Syndicate Bank to the plaintiff towards rent of three months and requested the plaintiff to present the said cheque in her bank upon restoration of normalcy so that the defendant would be in a position to maintain sufficient funds. It is stated that as regards cheque of Rs.1,50,000/-, plaintiff presented the said cheque without the knowledge of defendant and as such the said cheque was dishonored, however, the defendant was always ready and willing to make the payment of said cheque, but, plaintiff filed a false case under Section 138 N.I. Act.
3.5 Defendant has stated that she showed her willingness to make the payment of cheque, but, the plaintiff raised illegal and unlawful demand and finding no alternative, the defendant deposited the cheque amount of Rs.1,50,000/- in form of demand draft and again requested the plaintiff to receive the said amount in the form of demand draft, but, plaintiff in order to harass and humiliate the defendant, refused to accept the demand draft of Rs.1,50,000/-, thereafter, the defendant filed a criminal revision petition before Hon'ble High Court of Delhi, but, plaintiff chose not to appear and vide order dated 06.07.2023, notice was issued and Ld. MM was directed to proceed the matter on merits, but, defer passing any final order till the outcome of revision petition.
3.6 It is stated that a civil suit for possession, arrears of rent and damages was also filed against the defendant which was returned to the CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.8 of 32 plaintiff by the court of Sh. Ramesh Kumar - II, Ld. ADJ vide order dated 30.05.2023. Defendant has stated that she was ready and willing to vacate the suit property on or before 30.09.2023, as there was no business in gym, however, plaintiff was continuously putting pressure upon the defendant to vacate the suit property as plaintiff wants to let out the suit property to some other person on higher rate of rent. On 01.08.2023, defendant came to her GYM for cleaning purpose and was surprised to see that the lock on ground floor of suit property was changed and she immediately dialed 100 number. Three treadmill, three cycle, 1st set dumbbell stand and Rs.37,000/- cash were lying there in the GYM. It is stated that the police officials under the influence of husband of plaintiff who is an influential person did not investigate the matter properly and aforesaid GYM articles and cash amount of Rs.37,000/- was not recovered.
3.7 Defendant has stated that husband of plaintiff used to receive rent through cash in order to save income tax, however, the defendant was ready to pay the rent through online transaction, but, husband of plaintiff refused to receive the rent through online transaction. It is stated that now with malafide intention, plaintiff has turned dishonest and refused to acknowledge the rent received in cash. It is stated that the rent amount due and payable by the defendant is from the month of May, 2023 to July, 2023. Defendant has stated that she has made the payment of Rs.90,000/- through online transactions i.e. Rs.10,000/- on 19.09.2022, Rs.20,000/- on 12.10.2022, Rs.20,000/- on 02.11.2022, Rs.20,000/- on 19.11.2022 and Rs.20,000/- on 24.01.2023, however, the said amount has not been disclosed by the plaintiff.
CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.9 of 32 3.8 Defendant denied that she and her husband had damaged the property of plaintiff and the chajja of the property had fallen down due to their mischievous act. It is stated that the access to the first floor was through ground floor and key of the gate of ground floor remained with defendant only. It is submitted that plaintiff herself admitted in para under reply that she entered into the premises, whereas, no key was provided to the plaintiff and the suit property was in physical possession of the defendant and gym articles and cash amount of Rs.37,000/- were lying in the suit property. Defendant submitted that plaintiff in collusion with her husband and associates have illegally trespassed into the suit property and committed theft.
3.9 Defendant has denied that he left open the tap on the roof of the premises due to which the chajja was in a position to fall thereby causing extreme damages to the roof and the entire premises, just to evade from their liability of non payment of rent of more than Rs.10 lakhs besides electricity bill of about Rs.36,000/- or that due to aforesaid criminal act of defendant, plaintiff had suffered huge losses.
Most of the contents of the plaint are denied and prayer has been made for dismissal of the suit with heavy costs.
4. Plaintiff has filed replication to the WS wherein it is stated that defendant had not filed any document before this court to substantiate her false averments. Plaintiff has denied that rent stands paid/deposited by defendant upto the month of April, 2023 and plaintiff illegally trespassed into the suit property and committed theft in the suit property. Plaintiff has stated that after filing of present suit on 30.07.2023, some neighbors of tenanted premises had informed them that defendant and her husband Adesh CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.10 of 32 Kumar had damaged the property of the plaintiff and chajja of property had fallen down due to their mischievous act and they further informed the plaintiff that defendant had locked the premises from the ground floor with ulterior motive though defendant was tenant of 1 st floor of said property only. Plaintiff further stated that since chajja of premises and malba/sariya were about to fall, being in a dangerous condition, plaintiff has no alternative but to enter her premises on ground floor to go upstairs to repair the chajja urgently. Plaintiff denied that the rent was paid by the defendant to the plaintiff through cash or rent stood paid till April, 2023.
Remaining material averments of the WS are denied and the contents of plaint are reiterated by the plaintiff.
5. During admission/denial, the defendant has admitted the correctness of contents, existence and execution of document, issuance or receipt and custody of only one document relied upon by the plaintiff i.e.
(i) Original Lease Deed filed by the plaintiff same is Ex.P1.
Defendant has denied the correctness of contents, existence and execution of document, issuance or receipt and custody of the following documents relied upon by the plaintiff i.e.
(i) Copy of Sale Deed filed by the plaintiff;
(ii) Office copy of Legal Notice filed by the plaintiff;
(iii) Speed Post Receipt and Online Tracking Report filed by the plaintiff;
(iv) Original complaint dated 31.05.2023 filed by the plaintiff;
(v) Non Starter Report dated 18.07.2023 filed by the plaintiff;
(vi) Photocopy of SPA filed by the plaintiff The plaintiff in his affidavit of admission/denial of documents has not admitted any document of the defendant and has denied the CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.11 of 32 correctness of contents, existence and execution of document filed by the plaintiff i.e. (i) Copy of complaint dated 05.08.2023.
6. On the basis of the aforesaid pleadings, the following issues were settled for consideration:
i. Whether the plaintiff is entitled to damages as prayed for, if any, if yes, to what amount? OPP ii. Whether the plaintiff is entitled to decree of Rs.9,60,000/- as arrears of rent? OPP iii. Whether the plaintiff is entitled to any mesne profit, if so, at what rate and for what period? OPP iv. Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP v. Relief
7. In support of its case, plaintiff has examined herself as PW1 who tendered her evidence by way of affidavit which is Ex.PW1/A and has relied upon the following documents:
Copy of sale deed as Ex.PW1/1 (OSR).
Office copy of the legal notice dated 05.07.2022 as Ex.PW1/2. Postal receipts alongwith online tracking reports of the legal notice as Ex.PW1/3 (Colly).
The original complaint to the SHO dated 31.05.2023 as Ex.PW1/4. The dasti copy of the order dated 30.05.2023 as Ex.PW1/5. Non Starter Report as Ex.PW1/6.
Copy of Special Power of Attorney as Ex.PW1/7(OSR). The original complaint to the SHO dated 05.08.2023 as Ex.PW1/8. Original Registered lease deed as already Ex.P-1.
CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.12 of 32 She was duly cross examined on behalf of defendant. Sh. Ranjeet Singh Bhansali, husband of plaintiff examined as PW2 who tendered his evidence by way of affidavit which is Ex.PW2/A and has relied upon the same documents as PW-1.
This witness was also duly cross examined on behalf of defendant. Thereafter, PE was closed on the statement of plaintiff.
8. In rebuttal, defendant Ms. Kavita has also examined herself as DW1 who tendered her evidence by way of affidavit which is Ex.DW1/A and has relied upon the copy of complaint dated 02.08.2023 Ex.DW1/1. She was duly cross examined on behalf of plaintiff.
8.1 Sh. Adesh Kumar, husband of defendant is examined as DW2 who tendered his evidence by way of affidavit which is Ex.DW2/A and has also relied upon the copy of complaint dated 02.08.2023 Ex.DW1/1.
8.2 Summoned witness Sh. Ratnesh Singh, Manager of Canara Bank, Shahdara Branch is examined as DW3 who proved the statement of account of Kavita bearing account no.90102600001495 from 19.09.2022 to 30.01.2023 as Ex.DW3/A. 8.3 Another summoned witness Ct. Hansraj, PS Farsh Bazar, Delhi examined as DW4 who proved the DD entry No. 72A dated 02.08.2023 regarding complaint lodged by Kavita, W/o Adesh Kumar as Ex.DW4/A and General Dairy as Ex.DW4/B. 8.4 Sh. Darshan Verma, Deputy Manager of Yes Bank, Branch Preet Vihar examined as DW5 who brought statement of account of plaintiff Smt. CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.13 of 32 Raju Devi Bhansali from 19.09.2022 to 24.01.2023, vide account No. 023690700004668 maintained with Yes Bank, Preet Vihar, Delhi-92 as Ex.DW5/A. 8.5 Sh. Akshat Sharma Senior Associate, Legal Paytm Payments Bank Limited examined as DW-6 brought complete record of wallet account/savings account and account opening form (AOF) registered with number 9953137611 in the name of Sh. Adesh Kumar including the impugned five transactions and he stated that as per the record maintained by the company the beneficiaries of the above five transactions is Raju Devi having masked account number XXXXXX4668 and IFSC code YESB0000236, Yes Bank Ltd, his authority letter issued is Ex.DW6/A, Certificate u/s 65B of the Indian Evidence Act is Ex.DW6/B and statement of account is Ex.DW6/C(colly).
All these witnesses were cross examined on behalf of plaintiff. Thereafter, DE was closed on the statement of defendant.
9. The court has heard ld. counsel for the plaintiff as well as ld. counsel for the defendant and have also gone through the records of the case including the written submissions filed on behalf of plaintiff. The findings on the issues are as under :
ISSUE No.1 Whether the plaintiff is entitled to damages as prayed for, if any, if yes, to what amount? OPP
10. The onus of proving this issue was upon the plaintiff. The suit is commercial in nature and squarely falls within the purview of Section 2 (1) (C) of Commercial Courts Act as the suit property is used for commercial purposes and the amount claimed is more than Rs.3 lacs i.e. the CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.14 of 32 specified value fixed for the Commercial Courts and hence, this court has jurisdiction to entertain and decide the present suit. Plaintiff has also duly complied with mandatory provision of Pre-Institution Mediation and Conciliation as provided in Section 12 A of Commercial Courts Act, as the non starter report dated 07.06.2023 Ex.PW1/6 mentions the reason as "Notices issued to the opposite party for 06.07.2023 and 18.07.2023 reported to be served on the 1st address and remained unserved on the 2nd address with the report addressee left without instructions for 06.07.2023 and no such person in this address for 18.07.2023. Hence, Non Starter Report issued".
11. The suit instituted on 31.07.2023 claiming arrears of rent from October, 2020 and is filed within the period of limitation. As the tenanted premises false within the jurisdiction of present court, therefore, the present court has territorial jurisdiction to try and decide the present suit.
12. The defendant has taken an objection that the present suit as is only for recovery of money i.e. arrears of rent, therefore, the same is a non commercial suit. However, this fact cannot be ignored that the tenanted premises was given to the defendant only for commercial use i.e. for operating the Gym. However, the issue also came up before the Supreme Court of India in Ambalal Sarabhai Enterprises Limited v. K.S. Infraspace LLP & Anr. reported in (2020) 15 SCC 585, wherein the issue for consideration was whether the immovable property involved could be considered as being used exclusively in trade or commerce, so as to enable the Commercial Court to entertain the Suit. The relevant portion of the judgment of Hon'ble Supreme Court of India is reproduced hereinbelow:
CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.15 of 32 "37. A dispute relating to immovable property per se may not be a commercial dispute. But it becomes a commercial dispute, if it falls under sub-clause (vii) of Section 2(1)(c) of the Act viz. "the agreements relating to immovable property used exclusively in trade or commerce". The words "used exclusively in trade or commerce" are to be interpreted purposefully. The word "used" denotes "actually used" and it cannot be either "ready for use" or "likely to be used" or "to be used". It should be "actually used". Such a wide interpretation would defeat the objects of the Act and the fast tracking procedure discussed above."
13. The said judgment in Ambala's Case (Supra) was again reiterated by the Hon'ble Supreme Court in S.P. Velayutham & Anr. Vs. M/s. Emaar MGF Land Limited, IA No. 37901/2024 decided on 26.04.2024.
14. As per the above case law, it is the actual use of the property which is to be seen while deciding whether the suit based on agreement regarding immovable property, falls within the definition of commercial dispute or not. This fact also cannot be ignored that the plaintiff has earlier filed a suit which was returned as the same was filed as a non commercial suit. As the suit property was used exclusively for commercial purpose, therefore, the present court has jurisdiction regarding the subject matter of the suit.
15. The Lease Deed Ex.P1 clearly reveals that the property was let out to the defendant for use as Gym and related services by the plaintiff and CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.16 of 32 thus, the tenanted premises was actually used for commercial purposes. As tenanted premises was actually used for commercial purpose, the dispute would be a commercial dispute within the definition of Section 2 (i)(c)(vii), in view of the judgment of Hon'ble Supreme Court in Ambala's Case (Supra) and the present court has jurisdiction to try and decide the present suit.
16. The onus of proving this issue was upon the plaintiff. The plaintiff is claiming damages to the tune of Rs.7,00,000/- as it is stated by the plaintiff that defendant had left open the tap of the roof due to which the chajja had fallen down and it was informed by the neighbors of the plaintiff. Further, plaintiff has stated that defendant had broken walls of 1st floor and had removed the main door 1st floor premises leaving the entire floor open. He has stated that he has further suffered huge losses for which he is claiming Rs.7,00,000/- as damages. However, apart from bald averments in the plaint and in the affidavit of evidence, no cogent evidence has been led by the plaintiff in this regard that the wall was broken and main door of 1 st floor was removed. No photographs in this regard has been filed or proved during evidence. No neighbour of the plaintiff has been examined in this regard who had informed the plaintiff. No photograph of the ceiling/chajja having fallen down has been placed or proved on record. If the plaintiff had engaged any contractor for repairing of ceiling/chajja or the wall, the plaintiff would have made some payment to the contractor or the labor, but, no such evidence has been led on record regarding expenses incurred on alleged repairing of fallen ceiling/chajja or damaged wall etc. The plaintiff must prove that he has suffered damages and must give her best evidence in respect of her claim of damages. In the absence of any specific proof of loss or any amount incured by the plaintiff in repairing of the alleged damaged CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.17 of 32 wall or fallen ceiling/chajja, plaintiff is thus, not entitled for any damages as prayed for.
17. Plaintiff has stated in the plaint that there were electricity dues of about Rs.36,000/-. The defendant in their WS has stated that the electricity due was only about Rs.11,000/-, however, no document or electricity bill in this regard reflecting the outstanding amount of the electricity consumption by the defendant has been placed on record or proved during evidence. Even in the prayer clause, no such, prayer has been made for grant of decree of Rs.36,000/- towards electricity due for the electricity alleged consumed by the defendant. No court fees on the said amount has also been paid by the plaintiff and therefore, mere averments in the suit that there was also electricity dues to the tune of Rs.36,000/- are not sufficient to grant this amount to the plaintiff.
Issue no. (i) is thus, decided against the plaintiff and in favour of the defendant.
ISSUE No.2 Whether the plaintiff is entitled to decree of Rs.9,60,000/- as arrears of rent? OPP
18. The onus of proving this issue was upon the plaintiff. The plaintiff has given the details of the rent due and the rent paid in tabular form in para 10 of the evidence affidavit as per which an amount of Rs.9,05,000/- was paid and the rent due till July, 2023 was Rs.18,65,000/- and therefore, there is a due of Rs.9,60,000/-. The relevant cross examination of PW-1 in this respect is reproduced hereinbelow:
".....It is correct that since the date I let out the suit property to the defendant till the date of legal notice, I CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.18 of 32 had not given any letter in writing to the defendant for alleged non-payment of rent. It is wrong to suggest that no necessity was felt to issue any written letter with regard to alleged breach of non-payment of rent as it was the understanding between me and the defendant that some amount of rent was agreed to be paid by way of cash and remaining rent amount was agreed to be paid through online. It is wrong to suggest that I used to take the some part of rent in cash and remaining through bank transfer in order to save income tax. It is wrong to suggest that defendant had not committed any breach w.r.t. rent agreement.....
.....It is wrong to suggest that at the time of taking possession of the suit property by me, there was the arrears of rent only for three months i.e. May 2023 to July 2023. It is wrong to suggest that apart from the arrears of rent for the months of May 2023 to July 2023, no rent was due and payable by the defendant to me..... .....I have also filed a case under Section 138 N.I. Act against the defendant for dishonour of cheque of Rs.1,50,000/- towards part arrears of rent. It is wrong to suggest that the defendant always ready to make the payment of cheque to me. It is correct that the defendant has deposited the cheque amount of Rs.1,50,000/- before the concerned Court (Vol. The said amount was deposited at later stage). It is wrong to suggest that I did not receive the amount of Rs.1,50,000/- in order to harass the defendant. It is correct that the said amount of CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.19 of 32 Rs.1,50,000/- has not been released by me from the Court so far (Vol. This amount is not acceptable to me). I have no knowledge about any High Court case. The mobile number 9971403113 do not belong to me or my husband....."
19. The cross examination of PW-2 is on similar lines and only relevant cross examination which is in addition to the cross of PW-1 is reproduced hereinbelow:
"......The mobile number 9971403113 belongs to me. Again said my mobile number is 9971403114......"
20. On the otherhand, as per defendant only the rent of three months is due i.e. May, 2023 to July, 2023. She has stated that part of the rent was paid in cash and the remaining rent was transferred online through digital mode. Relevant cross of DW-1 is reproduced as under:
"......I had taken the aforesaid premises at the rate of rent of Rs.50000/- p.m. It is correct that it was mentioned in the lease deed that the rent will be increased after every 12 months @10% (Vol. It was written but later on it was not increased). I had paid the rent of Rs.50,000/- at one time many months (Vol. Sometimes, I had paid Rs.20,000/- and Rs.10,000/- in addition to Rs.50,000/- at one time). It is wrong to suggest that I had not paid Rs.50,000/- rent at one time even once. It is correct that I had taken the aforesaid premises on rent w.e.f. 01.10.2020. It is correct that I had not filed any statement CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.20 of 32 of account showing outstanding rent, rent due and rent paid by me till date. It is wrong to suggest that I had intentionally not filed the aforesaid statement of account as I had not paid any rent except mentioned by the plaintiff in his plaint......
...... Mostly, I used to pay the rent on-line and remaining payment used to be made in cash. I do not know how much amount of rent I had paid on-line and how much in cash till now (Vol. I had not noted down the same myself).
Q. I put it to you that since you had not noted down the rent paid by you, you cannot tell how much rent you had paid till now. What do you have to say ?
A. No necessity was felt as the rent was paid.
I do not remember the date on which I had made the payment of rent for the month of October, 2020. The same is my answer with regard to payment of rent for the month of November, 2020 to July, 2023. It is wrong to suggest that I do not remember the same as I had not made the payment of any monthly rent even once and that is why, I cannot tell how much rent I had paid on-line and how much in cash. It is wrong to suggest that I had not paid any rent in cash to the plaintiff at any point of time......
......It is correct that plaintiff had earlier filed the suit on 19.09.2022 against me vide CS No.575/22 in the Court of Sh. Ramesh Kumar, Ld. ADJ, Shahdara, KKD, Delhi, which was returned being not filed in commercial court.
CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.21 of 32 It is correct that, thereafter, the present suit was filed against me before the commercial court.
It is wrong to suggest that rent amount due towards me till July, 2023 is Rs.9,60,000/- alongwith damages/mesne profit @Rs.2000/- per day (Vol. Only rent for the period of three months is due)......"
21. As per Ex.DW3/A, payment of Rs.10,000/- was made on 19.09.2022, then payment of Rs.20,000/- was made on 12.10.2022, Rs.20,000/- was made on 02.11.2022 and further payment of Rs.20,000/- was made on 19.11.2022. Ex.DW5/A is the Statement of Account of the plaintiff Ms. Raju Devi Bhansali which reveals that payment of Rs.10,000/- was credited in the account of the plaintiff on 19.09.2022. Further, a payment of Rs.20,000/- was credited on 12.10.2022 and again Rs.20,000/- on 02.11.2022 and 19.11.2022 and thus, the statement and documents produced by DW3 are corroborated with the testimony of DW-5 and the documents produced by DW-5 reveals that a payment of additional Rs.70,000/- was received by plaintiff till 19.11.2022, which the plaintiff has not mentioned in her plaint or in her affidavit. Further, a payment of Rs.20,000/- was made by the defendant on 24.01.2023. This payment is also not stated by the plaintiff in her plaint. The payment of Rs.20,000/- made by the defendant to the plaintiff on 24.01.2023 is also reflected in Ex.DW5/A. The defendant, though, has proved on record the remaining 5 transactions which is the amount paid by the defendant after 13.09.2022, but, no evidence has been led by the defendant with regard to the amount paid before 13.09.2022. As the defendant has not led any evidence regarding payment made up to 13.09.2022, therefore, the statement and calculation given by plaintiff in affidavit of evidence is taken to be true, because if the defendant CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.22 of 32 would have made any payment apart from the one's mentioned by the plaintiff in the plaint and the affidavit of evidence Ex.PW1/A, the defendant would have proved the same by summoning the relevant witness from the concerned bank etc., as she has done in respect of the five transactions done after 13.09.2022. However, the defendant confined her evidence to prove payment of Rs.90,000/- i.e. Rs.10,000/- on 19.09.2022, Rs.20,000/- on 12.10.2022, Rs.20,000/- on 02.11.2022, Rs.20,000/- on 19.11.2022 and Rs.20,000/- on 24.01.2023. It is an admitted position that the possession of the premises was taken over by plaintiff on 01.08.2023. The plaintiff thus, is entitled to arrears of rent upto 31.07.2023. The defendant has stated that she used to pay rent in cash and that rent upto April, 2023 was paid. However, it had come on record that the plaintiff has earlier filed a suit before the court of Ld. ADJ on 19.09.2022 which was returned as the same was filed as a non commercial suit and thereafter, the present suit was instituted by the plaintiff on 31.07.2023 as a commercial suit. Copy of the order dated 30.05.2023 is Ex.PW1/5 in this regard. Perusal of the said order reveals that Advocate Sh. Raj Kumar was representing the defendant, who is also the counsel for the defendant in the present case. The defendant, thus, was aware about the proceedings of the earlier suit. Once the defendant was aware that the suit for possession and arrears of rent was instituted against her by the plaintiff, then it is highly unlikely that the defendant would have kept paying the rent in cash to the plaintiff.
22. The legal notice Ex.PW1/2 was sent to the defendant on 05.07.2022 and was served upon the defendant on 06.07.2022 at their first address and on 16.07.2022 on the second address as per the tracking report Ex.PW1/3. The defendant has denied that she has received the legal notice terminating tenancy of the defendant. The judgments titled as (i) Nanak Ram CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.23 of 32 Jaisinghani vs. Tilak Raj Salooja & Ors. passed by the High Court of Delhi in RSA No. 131/2013, dated 20.01.2014; (ii) M/s Jeevan Diesels Electricals Ltd. vs. M/s Jasbir Singh Chadha (HUF) & Anr. (2011) 183 DLT 712; (iii) M/s Nopany Investments Pvt. Ltd. vs. Santokh Singh (HUF) 2008 (2) SCC 728, are relevant in this respect.
23. The relevant portion of Nanak Ram Jaisinghani (Supra), is reproduced here-in-below:
"4. I have seen the copy of the notice which was shown to me during the Court proceedings on behalf of the respondent/landlord and I find that the said notice contains a paragraph that contractual tenancy of the appellant/ tenant/ defendant was terminated. This in my opinion is sufficient compliance of law as per Section 106 of the Transfer of Property Act, 1882. In any case, the appellate Court has referred to the judgment of this Court in the case of M/s. Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF) and Anr.(2011) 183 DLT 712 and which holds that service of summons in suit should be taken as a notice under Section 106 of the Transfer of Property Act, 1882 for terminating tenancy. The judgment in the case of M/s. Jeevan Diesels (supra) also gives other reasons with serving the notice of termination of tenancy inasmuch as copy of the notice is filed with the plaint and which is served upon the defendant alongwith the summons of the suit and which also can be treated as service CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.24 of 32 under Section 106 of the Transfer of Property Act, 1882. The relevant para 7 of the judgment in the case of M/s. Jeevan Diesels (supra) reads as under:-
"7. The second argument that the legal notice dated 15.7.2006 was not received by the appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows:-
(i) The respondents/plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.7.2006 as Ex.PW1/3 and with respect to which the registered receipt, UPC and AD card were exhibited as Ex.PW1/4 to Ex.PW1/6.
The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the respondents/plaintiffs led evidence and duly proved the service of legal notice, the appellant/defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address. Admittedly, the appellant/defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the appellant would not have ordinarily helped the appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in arriving at a finding that the legal notice dated 15.7.2006 was duly CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.25 of 32 served upon the appellant resulting in termination of the tenancy.
(ii) The Supreme Court in the case of Nopany Investments (P) Ltd.Vs.Santokh Singh (HUF) 2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction. Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/defendant."
24. Plaintiff has calculated the outstanding rent @ Rs.50,000/- per month upto September, 2021, then @ Rs.55,000/- from October till September, 2022 and @ Rs.60,000/- from October, 2022 onwards. As per clause 1 of the Lease Deed Ex.P1, the rent was Rs.50,000/- per month. As per clause 24, after every 12 months the rent was to be enhanced @ 10%. Though, the defendant has stated that the rent was not increased and the plaintiff had continued to accept the rent @ Rs.50,000/-, but, she has further admitted that at the time of execution of the lease deed it was agreed between the parties that the rent was to be increased @ 10% after every 12 months. Perusal of the table as mentioned in the affidavit of evidence of PW- 1 reveals that always part rent was paid i.e. Rs.20,000/-, Rs.10,000/- or Rs.5,000/-. As complete rent was not paid in one go it cannot be said that the plaintiff continued to accept the rent @ Rs.50,000/- per month. Also, merely because plaintiff continued to accept the rent being paid by the defendant CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.26 of 32 does not mean that she has foregone her claim for having the enhanced rent @ 10% per month from October, 2021. Plaintiff, thus, is entitled to the rent @ Rs.50,000/- per month upto September, 2021 and then @ Rs.55,000/- till September, 2022 and further @ Rs.60,500/- per month from October, 2022 onwards.
25. The plaintiff has accepted that he has received the payment of Rs.9,05000/-. Further, the defendant has proved during evidence that a further sum of Rs.90,000/- was paid by the defendant to the plaintiff. As already observed this plea that defendant is paying rent in cash to the plaintiff is not acceptable to the court, especially, it is highly unlikely that even after receiving of the legal notice and the defendant having come to know that the plaintiff has instituted a suit for recovery of possession, arrears of rent etc. against him, the defendant would have paid rent in cash. Admittedly, no online transaction happened after 24.01.2023. As the plaintiff has admitted that payment of Rs.9,05000/- and the defendant has further proved the payment of Rs.90,000/- to the plaintiff after 13.09.2022, therefore, it is directed that the plaintiff shall be entitled to an amount of Rs.8,70,000/- (i.e. Rs.9,60,000 - Rs.90,000) as arrears of rent upto July, 2023.
26. Defendant has stated that the Gym articles were stolen by the plaintiff and cash amount of Rs.37,000/- of defendant was also stolen. Defendant in para 12 of the WS has stated that Rs.1,00,000/- was taken by the plaintiff as security amount which the plaintiff was liable to refund after deducting the rent for the months of May, 2023 to July, 2023 and electricity dues of Rs.11,000/- approx. The plaintiff in the replication has not specifically denied Rs. 1 lakh as security which they are liable to refund and CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.27 of 32 has only stated that the security is not liable to be refunded by the plaintiff to the defendant after deducting the rent for the months of May, 2023 to July 2023 and electricity dues of Rs.11,000/- approx. As per rent deed Ex.P1, para 26, Rs.1,00,000/- was paid as an interest free security, which was refundable to the lessee at the time of handing over of the possession after deducting all expenses towards pending bills of electricity etc. Para 26 is reproduced hereinbelow:
"26. That the lessee has paid to the lessor a sum of Rs.1,00,000/- (Rupees One Lakh Only), as an interest free security, which will be refundable to the lessee, at the time of handing over the actual, peaceful, vacant and physical possession of the said premises after deducting all expenses towards damages, wear, tear and pending bills of electricity and water if any at the time of vacation of the said premises."
27. Electricity dues were not cleared by the defendant. The defendant had not even handed over the vacant peaceful possession of the tenanted premises to the landlord and had simply abandoned the suit premises after remaining their belongings. Moreover, no counter claim is filed by the defendant nor any specific set off pleaded and also no court fees paid regarding their claim of Rs.1,00,000/- given as refundable security, hence, the said amount cannot be adjusted towards arrears of rent. Thus, plaintiff shall be entitled to an amount of Rs.8,70,000/- as arrears of rent upto July, 2023.
Issue no.(ii) is accordingly, decided in favour of the plaintiff and against the defendant.
CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.28 of 32 ISSUE No.3 Whether the plaintiff is entitled to any mesne profit, if so, at what rate and for what period? OPP
28. The onus of proving this issue was upon the plaintiff. Plaintiff is claiming damages/mesne profits @ Rs.2,000/- per day till the date of vacating and giving the peaceful possession of the suit property. The legal notice in this regard was served upon the defendant on 06.07.2022. However, on the issue of mesne profits, Hon'ble Supreme Court in M/s Atma Ram Properties (P) Ltd. vs. M/s. Federal Motors Pvt. Ltd. in its order dated 10.12.2004 in Case No. Appeal (Civil) 7988 of 2004 has observed as below:
"Under the general law, and in cases where the tenancy is governed only by the provisions of Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease under Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant......
In Shyam Sharan Vs. Sheoji Bhai & Anr., (1977) 4 SCC 393, this Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.29 of 32 for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord. With advantage and approval, we may refer to a decision of the Nagpur High Court. In Bhagwandas Vs. Mst. Kokabai, AIR 1953 Nagpur 186, the learned Chief Justice of Nagpur High Court held that the rent control order, governing the relationship of landlord and tenant, has no relevance for determining the question of what should be the measure of damages which a successful landlord should get from the tenant for being kept out of the possession and enjoyment of the property. After determination of the tenancy, the position of the tenant is akin to that of a trespasser and he cannot claim that the measure of damages awardable to the landlord should be kept tagged to the rate of rent payable under the provisions of the rent control order. If the real value of the property is higher than the rent earned then the amount of compensation for continued use and occupation of the property by the tenant can be assessed at the higher value. We find ourselves in agreement with the view taken by the Nagpur High Court......
(2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.30 of 32 merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree"
29. Plaintiff is already claiming enhanced rent @ 10% per annum as agreed in the lease deed Ex.P1. No evidence has been led by the plaintiff in this regard that the plaintiff would have been able to rent out the suit property at a higher rent then as was agreed upon between plaintiff and the defendant. In the absence of any evidence that the suit premises could have fetched more rent then the agreed rate of rent as stated in the lease deed Ex.P1 and enhanced @ 10% after every 12 months. Thus, plaintiff is not entitled to any amount as mesne profits or damages.
Issue no. (iii) is decided accordingly in favour of the defendant and against the plaintiff.
ISSUE No.4 Whether the plaintiff is entitled to any interest, if so, at what rate and for what period? OPP
30. Plaintiff has claimed pendente lite and future interest @ 18% on the amount of arrears of rent and mesne profits etc. Interest has to be granted at a reasonable rate. However, as rent has not been paid on time by the defendant and the plaintiff has been deprived of the use of the said CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.31 of 32 amount on account of arrears of rent, it is directed that the plaintiff shall be entitled to an interest @9% per annum pendent-lite and future till its realization on the amount of arrears of rent. Issue is decided accordingly.
ISSUE NO.5:Relief.
31. In view of the findings on the issue no.1 to 4 and the documents proved on record, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendant. Plaintiff is entitled to an amount of Rs.8,70,000/- as arrears of rent upto July, 2023. Further, plaintiff is also entitled to an interest @9% per annum pendent-lite and future till its realization on the amount of arrears of rent. It is further directed that the plaintiff is entitled to the cost of the suit to the extent of the court fees and Rs.25,000/- as litigation cost.
Decree-sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally
signed by
KIRAN
KIRAN BANSAL
BANSAL Date:
2024.08.30
Pronounced in open court on
14:32:30
+0530
30th day of August, 2024 (Kiran Bansal)
District Judge, Commercial Court-02
Shahdara, Karkardooma Courts
Delhi/30.08.2024
CS(COMM) No. 382 /2023 Raju Devi Bhansali vs. Kavita Page No.32 of 32